ALEJANDRINO vs. CA
ALEJANDRINO vs. CA
FACTS
Late spouses Alejandrino left their six children (named Marcelino, Gregorio, Ciriaco, Mauricia, Laurencia and Abundio) a 219-square-meter lot in Mambaling, Cebu City identified
as Lot No. 2798.
Upon the demise of the Alejandrino spouses, the property should have
been divided among their children with each child having a share of 36.50
square meters.
However, the estate of the Alejandrino spouses was not settled in
accordance with the procedure outlined in the Rules of Court.
Petitioner MAURICIA (one of
the children) allegedly purchased some square meters from the shares of
Gregorio, Ciriaco and Abundio thereby giving her a total area of 97.43 square
meters, including her own share of 36.50 square meters.
It turned out, however, that a third party named LICERIO NIQUE, the private respondent, also purchased portions of
the property from the shares of Laurencia, Gregorio "through
Laurencia", Abundio also "through Laurencia" and Marcelino, for
a total area of 121.67 square meters.
1990 – However, Laurencia (the alleged seller of most of the 121.67 square
meters of the property) later questioned the sale in an action for QUIETING OF TITLE AND DAMAGES against
private respondent NIQUE.
RTC: ruled in favor of Nique
Laurencia filed an appeal with the CA but later withdrew it. The
decision became final & executory.
1992 – MAURICIA filed a complaint
for REDEMPTION AND RECOVERY OF
PROPERTIES against Nique.
●
The amended complaint alleged that private respondent
Nique never notified petitioner Mauricia of the purchase of 121.67 square
meters of the UNDIVIDED Lot No. 2798
nor did he give petitioner Mauricia the preemptive right to buy the area as a
co-owner of the same lot.
●
The amended complaint prayed that petitioner
Mauricia be allowed to redeem the area of 121.67 square meters
1993 – NIQUE filed a motion for the
segregation of the 146-square-meter portion of the property that had been
declared by the trial court as his own by virtue of purchase.
●
RTC – granted the motion
●
CA – dismissed the Mauricia’s petition for certiorari and prohibition
with prayer for the issuance of a writ of preliminary injunction
○
the respondent court was merely performing its
job of seeing to it that "execution of a final judgment must conform to
that decreed in the dispositive part of the decision.
○
Motion for Reconsideration denied
Mauricia filed an instant petition for review on certiorari.
contending that the lower court acted beyond its jurisdiction in
ordering the segregation of the property bought by private respondent as the
same was not decreed in its judgment, which had long become final and
executory.
The partition of the property cannot be effected because Nique is also a
respondent in a pending civil case.
Nique argued:
although petitioner was not a party litigant in Civil Case No. CEB-7038,
she is estopped from questioning the decision in that case and filing the
instant petition because she had “knowledge of the existence of said case”
where res judicata had set in.
ISSUE
- W/N as an heir of the Alejandrino property, Laurencia may validly
sell SPECIFIC PORTIONS thereof to a third party
- W/N there is forum shopping
RULING
1. NO, Laurencia may not validly sell specific
portions thereof to a third party.
Laurencia was within her hereditary rights in selling her pro indiviso
share in Lot No. 2798. HOWEVER, because the property had not
yet been partitioned in accordance with the Rules of Court, no
particular portion of the property could be identified as yet and delineated as
the object of the sale.
ARTICLE 1078 OF THE CIVIL
CODE provides that where there are two or more
heirs, the whole estate of the decedent is, before partition, owned in common by such heirs, subject to the
payment of the debts of the deceased.
The underlying rationale is that until a division is made, the
respective share of each cannot be determined and every co-owner exercises,
together with his co-participants, joint ownership over the pro indiviso
property, in addition to his use and enjoyment of the same.
Although the right of an heir over the property of the decedent is
inchoate as long as the estate has not been fully settled and partitioned, the
law allows a co-owner to exercise rights of ownership over such inchoate right.
ART. 493 [CIVIL CODE]. Each co-owner shall have the full ownership of his part and of the
fruits and benefits pertaining thereto, and he may therefore alienate, assign
or mortgage it, and even substitute another person in its enjoyment, except
when personal rights are involved. But the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of the
co-ownership.
With respect to properties shared in common by virtue of inheritance,
alienation of a pro indiviso portion thereof is specifically governed by
Article 1088 that provides:
ART. 1088 [CIVIL CODE]. Should any of
the heirs sell his hereditary rights to a stranger before the partition, any or
all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the
period of one month from the time they were notified in writing of the sale by
the vendor."
In the instant case, Laurencia was within her hereditary rights in
selling her pro indiviso share in Lot No. 2798. However, because the property
had not yet been partitioned in accordance with the Rules of Court, no
particular portion of the property could be identified as yet and delineated as
the object of the sale.
A co-owner has the right to alienate his pro indiviso share in the
co-owned property even without the consent of the other co-owners.
Nevertheless, as a mere part owner, he cannot alienate the shares of the other
co-owners. The prohibition is premised on the elementary rule that 'no one can
give what he does not have' [Nemo dat
quod non habet]
Since a co-owner is entitled to sell his undivided share, a sale of the
entire property by one co-owner without the consent of the other co-owners is not
null and void. However, only the rights of the co-owner-seller are
transferred, thereby making the buyer a co-owner of the property.
The proper action in cases like this is not for the nullification of the
sale or for the recovery of possession of the thing owned in common from the
third person who substituted the co-owner or co-owners who alienated their
shares, but the DIVISION of the common property of the co-owners who possessed
and administered it.
The legality of Laurencia's alienation of portions of the estate of the
Alejandrino spouses was settled in Civil Case No. CEB-7038. The decision in that
case had become final and executory with Laurencia's withdrawal of her appeal.
When private respondent filed a motion for the segregation of the portions
of the property that were adjudged in his favor, private respondent was in
effect calling for the partition of the property.
However, under
the law, partition of the estate of a decedent may only be effected by:
(1) the heirs themselves extrajudicially,
(2) by the court in an ordinary action for partition, or in the course
of administration proceedings,
(3) by the testator himself, and
(4) by the third person designated by the testator.
On extrajudicial settlement of estate, SECTION 1 OF RULE 74 OF THE RULES OF COURT provides:
“xxx The fact of the extrajudicial settlement or administration shall be
published in a newspaper of general circulation in the manner provided in the
next succeeding section; but no extrajudicial settlement shall be binding upon
any person who has not participated therein or had no notice thereof."
Notarization of the deed of extrajudicial settlement has the effect of
making it a public document that can bind third parties. However, this formal
requirement appears to be superseded by the substantive provision of the Civil
Code that states:
ART. 1082 [CIVIL CODE]. Every act
which is intended to put an end to indivision among co-heirs and legatees or
devisees is deemed to be a partition, although it should purport to be a sale,
an exchange, a compromise, or any other transaction."
By this provision, it appears that when a co-owner sells his inchoate
right in the co-ownership, he expresses his intention to "put an end to
indivision among (his) co-heirs." Partition among co-owners may thus
be evidenced by the overt act of a co-owner of renouncing his right over the
property regardless of the form it takes.
●
In effect, Laurencia expressed her intention to
terminate the co-ownership by selling her share to private respondent.
●
Moreover, the execution of the deed of
extrajudicial settlement of the estate reflected the intention of both Laurencia
and petitioner Mauricia to physically divide the property.
●
Both of them had acquired the shares of their
brothers and therefore it was only the two of them that needed to settle the
estate.
●
The fact that the document was not notarized is
no hindrance to its effectivity as regards the two of them. The partition of
inherited property need not be embodied in a public document.
The deed of extrajudicial settlement executed by Mauricia and Laurencia
evidence their intention to partition the property. It delineates what portion
of the property belongs to each other. That it was not notarized is immaterial
in view of Mauricia's admission that she did execute the deed of extrajudicial
settlement. Neither may the fact that the other heirs of the Alejandrino spouses,
named Marcelino, Gregorio, Ciriaco and Abundio did not participate in the
extrajudicial settlement of estate affect its validity. In her amended complaint
in Civil Case No. CEB-11673, petitioner Mauricia herself admitted having
acquired by purchase the rights over the shares of her brothers.
On the part of Laurencia, the court found that she had transmitted her
rights over portions she had acquired from her brothers to private respondent
Nique. The sale was made after the execution of the deed of extrajudicial
settlement of the estate that private respondent himself witnessed. The
extrajudicial settlement of estate having constituted a partition of the property,
Laurencia validly transferred ownership over the specific front portion of the
property with an area of 146 square meters.
The trial court, therefore, did not abuse its discretion in issuing the
order for the segregation of the property. In so doing, it was merely
reiterating the partition of the property by petitioner Mauricia and her sister
Laurencia that was embodied in the deed of extrajudicial settlement of estate.
The order may likewise be deemed as a clarification of its decision that had
become final and executory. Such clarification was needed lest proper execution
of the decision be rendered futile.
2. NO, THERE IS NO FORUM
SHOPPING.
Forum shopping exists where the elements of litis pendentia are present
or where a final judgment in one case will amount to res judicata in the other.
Because the judgment in Civil Case No. CEB-7028 is already final and executory,
the existence of res judicata is determinative of whether or not petitioner is
guilty of forum shopping.
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