Note: No digest of cases:

82. Espana
84. Tac-an

Delima v. C.A.
201 SCRA 641

DOCTRINE: The issuance of the new title constituted an open and clear repudiation of the trust or co-ownership.

FACTS:
Lino Delima acquired a lot from the Friar Lands Estate in Cebu. He later died leaving as his only heirs three brothers and a sister
namely: Eulalio Delima, Juanita Delima, Galileo Delima and Vicente Delima. After his death, a title was issued in the name of his
legal heirs, as represented by Galileo Delima.

Galileo Delima declared the lot in his name for taxation purposes and paid the taxes thereon from 1954 to 1965. Petitioners, who are
the surviving heirs of Eulalio and Juanita Delima, filed with the Court of First Instance of Cebu an action for reconveyance and/or
partition of property and for the annulment of the land title with damages against their uncles Galileo Delima and Vicente Delima.

The trial court rendered a decision in favor of petitioners.

The decision was appealed, and the CA reversed the lower court’s decision. It held that all other heirs (Eulalio, Juanita and Vicente
Delima) had already relinquished and waived their rights to the property in favor of Galileo, considering that he alone paid the
remaining balance of the purchase price and the realty taxes.

ISSUE:
WON Galileo Delima already acquired the property by prescription -- YES

HELD:
When a co-owner of the property in question executed a deed of partition and on the strength thereof obtained the cancellation of
the title in the name of their predecessor and the issuance of a new one in his name, in effect denying or repudiating the ownership
of the other co-owners over their shares, the statute of limitations started to run for the purposes of the action instituted by the latter
seeking a declaration of the existence of the co-ownership and of their rights thereunder.

Since an action for reconveyance of land based on implied or constructive trust prescribes after ten (10) years, it is from the date of
the issuance of such title that the effective assertion of adverse title for purposes of the statute of limitations is counted.

Evidence shows that TCT No. 2744 in the name of the legal heirs of Lino Delima, represented by Galileo Delima, was cancelled by
virtue of an affidavit executed by Galileo Delima and that on February 4, 1954, Galileo Delima obtained the issuance of a new title in
his name numbered TCT No. 3009 to the exclusion of his co-heirs. The issuance of this new title constituted an open and clear
repudiation of the trust or co-ownership, and the lapse of ten (10) years of adverse possession by Galileo Delima from February 4,
1954 was sufficient to vest title in him by prescription.

As the certificate of title was notice to the whole world of his exclusive title to the land, such rejection was binding on the other heirs
and started as against them the period of prescription. Hence, when petitioners filed their action for reconveyance and/or to compel
partition on February 29, 1968, such action was already barred by prescription. Whatever claims the other co-heirs could have validly
asserted before can no longer be invoked by them at this time.

DJTV
Mariategui v. C.A.
205 SCRA 337

DOCTRINE: Prescription, as a mode of terminating a relation of co-ownership, must have been preceded by repudiation (of the co-
ownership). The act of repudiation, in turn, is subject to certain conditions: (1) a co-owner repudiates the co-ownership; (2) such an
act of repudiation is clearly made known to the other co-owners; (3) the evidence thereon is clear and conclusive; and (4) he has
been in possession through open, continuous, exclusive, and notorious possession of the property for the period required by law.

FACTS:
Lupo Mariategui died without a will. During his lifetime, Lupo Mariategui contracted three (3) marriages. With his first wife he begot
four (4) children. With his second wife, he begot a daughter. And with his third wife, he begot three children.

At the time of his death, Lupo Mariategui left certain properties which he acquired when he was still unmarried. Lupo's descendants
by his first and second marriages executed a deed of extrajudicial partition whereby they adjudicated unto themselves lots in the
Muntinglupa Estate. Thereafter, an Original Certiicate of Title (OCT) was issued in the name of the said heirs. Subsequently, the
registered owners caused the subdivision of the said lot into for which separate transfer certificates of title were issued to the
respective parties.

Lupo's children by his third marriage filed with the lower court an amended complaint claiming that the lots were owned by their
common father, Lupo Mariategui, and that, with the adjudication of the lots to their co-heirs, they (children of the third marriage) were
deprived of their respective shares in the lots. Plaintiffs pray for partition of the estate of their deceased father and annulment of the
deed of extrajudicial partition.

The defendants filed a motion to dismiss on the grounds of lack of cause of action and prescription. The motion to dismiss was
denied by the trial court. The plaintiffs elevated the case to the Court of Appeals (CA) but the CA upheld the trial court’s decision.
ISSUE:
Whether or not prescription barred private respondents' right to demand the partition of the estate of Lupo Mariategui. -- NO

HELD:
Prescription does not run against private respondents with respect to the filing of the action for partition so long as the heirs for whose
benefit prescription is invoked, have not expressly or impliedly repudiated the co-ownership. In other words, prescription of an action
for partition does not lie except when the co-ownership is properly repudiated by the co-owner.

Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-owners absent a clear repudiation of co-
ownership duly communicated to the other co-owners. Furthermore, an action to demand partition is imprescriptible and cannot be
barred by laches. On the other hand, an action for partition may be seen to be at once an action for declaration of co-ownership and
for segregation and conveyance of a determinate portion of the property involved.

Petitioners contend that they have repudiated the co-ownership when they executed the extrajudicial partition excluding the private
respondents and registered the properties in their own names. However, no valid repudiation was made by petitioners to the prejudice
of private respondents. Assuming petitioners' registration of the subject lot was an act of repudiation of the co-ownership, prescription
had not yet set in when private respondents filed the present action for partition.

Petitioners' registration of the properties in their names did not operate as a valid repudiation of the co-ownership.

In Adille vs. Court of Appeals (157 SCRA 455, 461-462 [1988]), the Court held:
Prescription, as a mode of terminating a relation of co-ownership, must have been preceded by repudiation (of the co-
ownership). The act of repudiation, in turn, is subject to certain conditions: (1) a co-owner repudiates the co-ownership; (2)
such an act of repudiation is clearly made known to the other co-owners; (3) the evidence thereon is clear and conclusive;
and (4) he has been in possession through open, continuous, exclusive, and notorious possession of the property for the
period required by law.

WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals dated December 24, 1980 is Affirmed.
 Oliveros v. Lopez
168 SCRA 431

DOCTRINE: Under Article 494 and 1083 of the Civil Code, co-ownership of an estate should not exceed twenty years, while the
agreement to keep a thing undivided should not exceed ten years. When parties stipulated a definite period to keep a thing undivided
which exceeds the maximum allowed by law, said stipulation shall be void only as to the period beyond such maximum. Thus, co-
ownership of an estate cannot exceed twenty years so property should be divided after twenty years. Each co-owner may demand
at any time the partition of the thing owned in common insofar as his share is concerned.

Article 494 specifically mandates that each co-owner may demand at any time the partition of the thing owned in common insofar as
his share is concerned.

FACTS:
Upon his death, Lopez left the lot he owned to his widow and six children; the heirs did not initiate any move to legally partition the
property. After many years, the widow and the eldest son, Candido, executed a deed of absolute sale of the undivided eastern portion
of their interests in favor of spouses Oliveras & Minor; another deed of absolute sale of the undivided eastern part in favor of spouses
Oliveras & Gaspar. The two Oliveras spouses had since possessed the properties.

After many years, the counsel of the two Oliveras spouses wrote to the remaining heirs of Lopez reminding them of the Oliveras
spouses’ demand to partition the property so they could acquire their titles without court action. The heirs didn’t answer so the
Oliveras spouses filed a complaint for partition and damages.

According to the Oliveras spouses, possession of the disputed properties was delivered to them with the knowledge and consent of
the heirs; however, according to the heirs, no sale transpired as the vendors, the widow and Candido, could not sold specific portions
of the property making Oliveras spouses’ possession and occupation of specific portions of the properties illegal. Trial court ruled
that the deeds of absolute sale are valid and ordered the segregation of the lot.

ISSUES:
1. Whether or not the two deeds of absolute sale were null and void since the lot had not yet been partitioned. -- NO
2. Whether or not the action for partition has prescribed. -- NO

HELD:
1. Under Article 494 and 1083 of the Civil Code, co-ownership of an estate should not exceed twenty years, while the
agreement to keep a thing undivided should not exceed ten years. When parties stipulated a definite period to keep a thing
undivided which exceeds the maximum allowed by law, said stipulation shall be void only as to the period beyond such maximum.
Thus, co-ownership of an estate cannot exceed twenty years so property should be divided after twenty years. Each co-owner
may demand at any time the partition of the thing owned in common insofar as his share is concerned.

In this case, the heirs maintained the co-ownership beyond 20 years so when the widow and Candido sold definite portions of
the lot, they validly exercised dominion over them because, by operation of law, the co-ownership had ceased. The filing of the
 complaint for partition by the Oliveras spouses who are legally considered as subrogated to the rights over the partitions of lot
in their possession merely served as formality on the widow and Candido’s act of terminating co-ownership.

2. Prescription may have barred the filing of complaint under Article 1144 (a) of the Civil Code; however, Article 494 specifically
mandates that each co-owner may demand at any time the partition of the thing owned in common insofar as his share is
concerned. In this case, although the complaint was filed after thirteen years from the execution of the deeds of sale, the Oliveras
spouses’ action for partition was timely and properly filed.

Del Banco v IAC [G.R. No. 72694 December 1, 1987]

AURORA DEL BANCO, EVELYN DEL BANCO, FEDERICO TAINO, SOLEDAD TAINO, JOVENCIO TAINO, SAMSON TAINO, NOE TAINO, SOCORRO
TAINO and CLEOFAS TAINO, petitioners, INTERMEDIATE APPELLATE COURT (Second Civil Cases Division), ALEJANDRA PANSACOLA, LEONILA
ENCALLADO, VEDASTO ENCALLADO, JOSE YEPES, et al., respondents.

FACTS: In 1859, brothers Benedicto, Manuel and Jose Pansacola decided to purchase from the Spanish Government the 1,600-hectare land in
Quezon (Cagbalite Island). They entered into anagreement for the land to be considered as their common property along with Manuel’s
children Domingo Arce and Baldomera Angulo. They agreed that whatever benefits they may derive shall be shared equally.

In 1868, after two years of actual enjoyment and possession of property, they agreed to modify the conditions of the agreement. The new
sharing and distribution of lands is: ¼ to Don Benedicto; ¼ to Jose; ¼ to the children of their deceased brother Eustaquio, Maria and Hipolito;
and ¼ to Domingo Acre, Baldomera Angulo, Marcelina Flores, Francisca Flores, Candelaria dela Cruz and Gervasio Pansacola.

A century later, private respondents Alejandra Pansacola et.al brought an action of partition at the Court of First Instance in Quezon.

CFI Ruling: in favour of successors-in-interest of the original co-owners; against Alejandra

Upon motion for reconsideration of Alejandra, the same was denied.

CA Ruling: reversed CFI decision

Three separate petitions were then filed to the Supreme Court; two for review and one to deny one of the petitions for review

ISSUE: Was the Cagbalite Island still undivided property owned in common by the heirs and successors-in-interest of the brothers,
Benedicto, Jose and Manuel Pansacola?

RULING: YES.

The Supreme Court held that the Cagbalite Island was still a co-ownership property. After review of the four agreement made a century ago,
there is nothing in the agreements that suggests that actual or physical partition of the Island had really been made by either the original
owners or their heirs or successors-in-interest. In 1859, they only agreed to the sharing of whatever benefits of the property. In 1868, the co-
owners agreed not only on the sharing proportion of the benefits derived from the Island but also on the distribution of the Island. In 1907,
the heirs that were represented agreed on how the Island was to be partitioned. More importantly, the 1908 agreement reveals that no actual
partition of the Island had as yet been done. The Supreme Court noted that despite the claims of res judicata of the successors-in-interest
because of the Court’s use of the word “partition” in the previous cases filed by their predecessors, employment or use of the word "partition"
therein was made not in its technical and legal meaning or sense but in an ideal, abstract and spiritual sense. Such is evident from the bare
statement in said decision to the effect that the property was divided into four parts, without any reference to the specific parts of the
property that may have been adjudicated to each owner. It is also worth knowing that the issue in the previous cases which were tried
together is not whether there has already been a partition of the Cagbalite Island but, to recover possession of three distinct parcels of land,
together with damages. Also, the fact that some of the petitioners have been in actual possession and enjoyment of several portions of the
property in question, does not prove that the land was actually partitioned and co-ownership terminated. A co-owner cannot, without the
conformity of the other co-owners or a judicial decree of partition issued pursuant to the provision of Rule 69 of the Rules of Court, adjudicate
to himself in fee simple a determinate portion of the lot owned in common, as his share therein, to the exclusion of other co-owners

1. It is a basic principle in the law of co-ownership both under the present Civil Code as in the Code of 1889 that no individual co- owner can
claim any definite portion thereof.

2. Reitirating the ruling in Caro v Court of Appeals, the Supreme Court held that “It is not enough that the co-owners agree to subdivide the
property. They must have a subdivision plan drawn in accordance with which they take actual and exclusive possession of their respective
portions in the plan and titles issued to each of them accordingly” In addition to, the Supreme Court stated that no prescription shall run in
favor of a co-owner against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership.

3. Co-owners cannot acquire by prescription the share of the other co-owners, absent a clear repudiation of the co-ownership clearly
communicated to the other co-owners.
4. Furthermore, Article 494 of the Civil Code provides that each co-owner may demand at any time the partition of the common property, a
provision which implies that the action to demand partition is imprescriptible or cannot be barred by laches.

PETITION DENIED
G.R. No. L-45142 April 26, 1991

SIMPROSA VDA. DE ESPINA, RECAREDO ESPINA, TIMOTEO ESPINA, CELIA ESPINA, GAUDIOSA ESPINA and NECIFORA ESPINA, petitioners, vs. THE HON.
OTILIO ABAYA and SOFIA ESPINA and JOSE ESPINA, respondents. Cipriano C. Alvizo, Sr. for private respondents. MEDIALDEA, J.:

This is a petition for certiorari with prayer for the issuance of a writ of preliminary injunction seeking the nullification of the orders issued by the respondent Judge Otilio
Abaya, in his capacity as the presiding judge of the Court of First Instance of Surigao del Sur, Branch II, Lianga, Surigao del Sur in Civil Case No. L-108, entitled
"Simprosa Vda. de Espina, et. al. v. Sofia Espina, et. al." dated May 9, 1975 dismissing the complaint for partition; July 25, 1975 denying the motion for reconsideration;
August 13, 1975 denying the second motion for reconsideration and March 15, 1976 denying plaintiffs' notice of appeal.

The antecedent facts are as follows:

Marcos Espina died on February 14, 1953 and was survived by his spouses, Simprosa Vda. de Espina and their children namely, Recaredo, Timoteo, Celia, Gaudiosa,
Necifora, Sora and Jose, all surnamed Espina. Decedent's estate comprises of four (4) parcels of land located at the Municipality of Barobo Province of Surigao del Sur.

On August 23, 1973 an action for partition of the aforementioned parcels of land was filed by petitioners Simprosa and her children Recaredo, Timoteo, Celia,
Gaudencia and Necifora.

The complaint alleges that parcel No. 1 is the exclusive property of the deceased, hence the same is owned in common by petitioners and private respondents in eight
(8) equal parts, while the other three (3) parcels of land being conjugal properties, are also owned in common, one-half (1/2) belongs to the widow Simprosa and the
other half is owned by her and her children in eight (8) equal parts.

It also alleges that parcel No. 1 has been subdivided into two lots. Lot No. 994 PL8-44 is covered by Original Certificate of Title No. 5570 in the name of one of the heirs,
Sofia Espina, who acquired the title as a trustee for the beneficiaries or heirs of Marcos Espina, while lot No. 1329 PCS-44 is covered by Original Certificate of Title No.
3732 issued in the name of one of the heirs, Jose Espina as trustee for the heirs of Marcos Espina. Said parcel of land is in the possession of petitioners and private
respondents who have their respective houses thereon.

Simprosa presently occupies parcel No. 2 while parcel No. 3 is occupied by Timoteo, although the same is actually titled in the name of Sofia. Parcel No. 4 is occupied
by Recaredo.

Petitioners have several times demanded the partition of the aforementioned properties, but notwithstanding such demands private respondents refused to accede.

Private respondents alleged in their answer that in or about April, 1951, the late Marcos Espina and his widow, Simprosa, together with their children made a temporary
verbal division and assignment of shares among their children. After the death of Marcos, the temporary division was finalized by the heirs. Thereafter the heirs took
immediate possession of their respective shares on April 20, 1952. Private respondents took actual physical possession of their respective shares including the portions
ceded to them by Simprosa upon their payment of P50.00 each per quarter starting April, 1952 until the latter's death pursuant to their contract of procession The
assignment of shares was as follows:

(a) To the surviving spouses, (sic) Simprosa Vda. de Espina, herein plaintiffs, one-half (1/2) of the parcel of land adjudicated to each of said plaintiffs-heirs
and defendants;

(b) To each of the following compulsory heirs, to wit:

1. To Recaredo (sic) Espina, one-half (1/2) portion which contains an area of one and three-fourths (1 3/4) hectares and which forms part of Parcel 4 whose
description is given in paragraph III of the complaint, the said Parcel IV has been in the possession of both Recaredo Espina and plaintiff Simprosa Vda. de
Espina from April 20, 1952 until the present time;

2. To Timoteo Espina, one half (1/2) portion which contains an area of not less than one-half (1/2) hectare and which forms part of Parcel 3 whose
description is given in paragraph III of the complaint, the said Parcel III was originally assigned by Marcos Espina who thereupon obtained an Original
Certificate of Title in her (sic) name but was finally adjudicated to said Timoteo Espina in April, 1952, the other half (1/2) portion of which parcel III was the
share of the surviving spouses (sic), Simprosa Vda. de Espina, and said Parcel III has been in the possession of said Timoteo Espina and Simprosa Vda. de
Espina from April, 1952 until the present time as their share;

3. To Cecilia (sic) Espina, Gaudiosa Espina and Necifora Espina, one-half (1/2) portion, share and share alike which contains two (2) hectares and which
forms part of Parcel II whose description is given in paragraph III of the complaint, the other half (1/2) of said Parcel III (sic) is the share of the surviving
spouses (sic) Simprosa Vda. de Espina, and said Parcel III (sic) has been in the possession of said Cecilia. (sic) Espina, Gaudiosa Espina and Necifora
Espina and Simprosa Vda. de Espina from April, 1952 until the present time;

4. To Sofia Espina, one-half (1/2) portion of the parcel of land included in the deception of Parcel 1 in paragraph III of the complaint, the other half (1/2) of
said parcel being the share of the surviving spouses (sic) Simprosa Vda. de Espina and having been ceded by said Simprosa Vda. de Espina to said Sofia
Espina for a valuable consideration payable quarterly at the rate of P50.00 beginning April, 1952 until her death, and said Sofia Espina has been regularly
paying to said Simprosa Vda. de Espina quarterly from April, 1952 the said amount of P50.00 until the present time, and by virtue of said agreement, Sofia
Espina obtained Original Certificate of Title in her name of said parcel of land which is included in the description of said parcel 1, as her exclusive property;

5. To Jose Espina, one-half (1/2) portion of the other parcel of land included in the description of Parcel 1 in paragraph 1 of the complaint, the other half (1/2)
of said parcel being the share of the surviving spouses (sic) Simprosa Vda. de Espina and having been coded (sic) by said Simprosa Vda. de Espina to said
Jose Espina for a valuable consideration payable quarterly at the rate of P50.00 beginning April, 1952 until her death, and said Jose Espina has been
regularly quarterly paying to said Simprosa Vda. de Espina from April, 1952 until the present time, the said amount of P50.00, and by virtue of said
agreement, Jose Espina obtained Original Certificate of Title in his name of said parcel of land which is included in the description of said Parcel 1 as his
exclusive property. (Rollo, pp. 27-28)

On February 13, 1974 private respondents filed a motion to dismiss the complaint alleging the following grounds, to wit:

I) THAT THE FACTS ALLEGED IN THE COMPLAINT FAIL TO CONFER UPON THE COURT COMPLETE AND LAWFUL JURISDICTION OVER THE
CASE FOR NON-COMPLIANCE WITH THE CONDITION SINE QUA NON CONCERNING SUIT BETWEEN MEMBERS OF THE SAME FAMILY.x x
x xxx xxx

II) THAT THE CAUSE OF ACTION IS BARRED BY . . . . STATUTE OF LIMITATIONS x x x xxx xxx

III) THAT THE PLAINTIFFS HAS NO LEGAL CAPACITY TO SUE, (Motion to Dismiss Complaint, pp. 1-5; Rollo, pp. 34-38)
 xxx xxx xxx

On May 9, 1975 the trial court granted the motion and thereafter dismissed the complaint. On May 23, 1975 petitioners filed a motion for reconsideration on the following
grounds, to wit:

1. THAT THE ORDER OF DISMISSAL HAS NO LEGAL BASIS IN FACT AND IN LAW.

2. THAT THE STATUTE OF LIMITATIONS IS NOT APPLICABLE IN THE CASE AT BAR. (Rollo, p. 50)

However, petitioners' motion was denied in an order dated July 23, 1975. On August 11, 1975 petitioners filed another motion for reconsideration stressing that they
were denied due process when their motion was not heard. Again said motion was denied on August 13, 1975.

Thereafter, petitioners filed their notice of appeal on September 11, 1975 and a motion for extension of time to file their Record on Appeal on September 18, 1975.

On March 15, 1976, the respondent judge disapproved petitioners' Record on Appeal and appeal bond on the ground that the notice of appeal was filed out of time.
Hence, this petition. The petitioners raised four (,41) assignment of errors:

1. Whether or not an action for partition among co-heirs prescribes.

2. Whether or not an oral partition among co-heirs is valid.

3. Whether or not a hearing on a motion for reconsideration is indispensable the lack of which is a deal of due process.

4. Whether or not the second motion for reconsideration is pro forma Rollo, p. 10)

Petitioners maintain that the present action is not for reconveyance but one for partition. Hence, the rule insisted by the private respondents on prescriptibility of an
action for reconcile conveyance of real property based on an implied trust is not applicable in the case at bar. In addition, petitioners, argue that private respondents
cannot set up the defense of prescription or laches because their possession of the property no matter how long cannot ripen into ownership. (Memorandum for
Petitioners, p. 7)

However, the private respondents stress that 'any supposed right of the petitioners to demand a new division or partition of said estate of Marcos Espina has long been
barred by the Statute of Limitations and has long prescribed." (Memorandum for Private Respondents, p. 5)

The petitioners claim that the alleged oral partition is invalid and strictly under the coverage of the statute of Frauds on two grounds, to wit:

Firstly, parcel No. 1 being an exclusive property of the deceased should have been divided into eight (8) equal parts. Therefore, Simprosa . could only cede her share of
the land which is 1/8 portion thereof and cannot validly cede the shares of her then minor children without being duly appointed as guardian.

Secondly, under Article 1358 of the New Civil Code, Simprosa could not have ceded her right and that of her other children except by a public document. (Memorandum
of Petitioners, pp. 8-9)

On the other hand, private respondents insist that the oral partition is valid and binding and does not fall under the coverage of the Statute of Frauds.

Petitioners claim that they were denied due process when the motion for reconsideration was denied without any hearing.

However, private respondents maintain that the hearing of a motion for reconsideration in oral argument is a matter which rest upon the sound discretion of the Court.

Finally, petitioners stress that the second motion for reconsideration is not pro forma, thus, it suspends the running of the period of appeal. Hence, the notice of appeal
was timely filed.

On this point, private respondent maintain that the order of respondent judge dated March 1 5, 1976 disapproving petitioners' Record on Appeal and appeal bond may
not properly be a subject of a petition for certiorari. (Memorandum of Private Respondents, p. 13)

We find the petition devoid of merit.

We already ruled in Lebrilla, et al. v. Intermediate Appellate Court (G.R. No. 72623, December 18, 1989, 180 SCRA 188; 192) that an action for partition is
imprescriptible. However, an action for partition among co-heirs ceases to be such, and becomes one for title where the defendants allege exclusive ownership.

In the case at bar, the imprescriptibility of the action for partition cannot be invoked because two of the co-heirs, namely private respondents Sora and Jose Espina
possessed the property as exclusive owners and their possession for a period of twenty one (21) years is sufficient to acquire it by prescription. Hence, from the moment
these co-heirs claim that they are the absolute and exclusive owners of the properties and deny the others any share therein, the question involved is no longer one of
partition but of ownership.

Anent the issue of oral partition, We sustain the validity of said partition.1âwphi1 "An agreement of partition may be made orally or in writing. An oral agreement for the
partition of the property owned in common is valid and enforceable upon the parties. The Statute of Frauds has no operation in this kind of agreements, for partition is
not a conveyance of property but simply a segregation and designation of the part of the property which belong to the co-owners." (Tolentino, Commentaries and
Jurisprudence on the Civil Code of the Philippines, Vol. II, 1983 Edition, 182-183 citing Hernandez v. Andal, et. al., G.R. No. L275, March 29, 1957)

Time and again, the Court stresses that the hearing of a motion for reconsideration in oral argument is a matter which rests upon the sound discretion of the Court. Its
refusal does not constitute a denial of due process in the absence of a showing of abuse of discretion. (see Philippine Manufacturing Co. v. Ang Bisig ng PMC et. al.,
118 Phil. 431, 434)

The absence of a formal hearing on the petitioners' motion for reconsideration is thoroughly explained in the order of the respondent judge dated August 13, 1975, which
is hereunder quoted as follows:
 When the court issued its order of June 5, 1975 requiring counsel for defendants to answer plaintiffs' motion for reconsideration, the court opted to resolve
plaintiffs' motion based on the pleadings of the parties, without further oral arguments. The court considered the arguments of the parties stated in their
pleadings as already sufficient to apprise the court of the issues involved in said motion.

Plaintiffs' allegation that the Clerk of Court failed to calendar their motion for reconsideration for oral argument has not deprived the plaintiffs of any
substantial right or his right to due process.

SO ORDERED. (Memorandum of Private Respondents, pp. 1213)

A cursory reading of the aforequoted order will show that there was indeed no formal hearing on the motion for reconsideration. There is no question however, that the
motion is grounded on the lack of basis in fact and in law of the order of dismissal and the existence or lack of it is determined by a reference to the facts alleged in the
challenged pleading. The issue raised in the motion was fully discussed therein and in the opposition thereto. Under such circumstances, oral argument on the motion is
reduced to an unnecessary ceremony and should be overlooked (see Ethel Case, et al. v. Jugo, 77 Phil. 517, 522).

We adhere to the findings of the trial court that the second motion for reconsideration dated August 11, 1975 is pro forma, to it

The grounds stated in said motion being in reiteration of the same grounds alleged in his first motion, the same is pro-forma. (Order dated March 15, 1976, p.
2, Rollo, p. 74)

xxx xxx xxx

Furthermore, the second motion for reconsideration has not stated new grounds considering that the alleged failure of the Clerk of Court to set plaintiffs'
motion for reconsideration, although seemingly a different ground than those alleged in their first motion for reconsideration, is only incidental to the issues
raised in their first motion for reconsideration, as it only refers to the right of plaintiffs' counsel to argue his motion in court just to amplify the same grounds
already deed by the court. (Ibid, p. 3, Rollo, p. 75)

Therefore, it is very evident that the second motion for reconsideration being pro-forma did not suspend the running of the period of appeal. Thus, the lower court
committed no error when it held that the notice of appeal was filed after the lapse of thirty five (35) days, which is clearly beyond the period of thirty (30) days allowed by
the rules.

Finally, it has been a basic rule that certiorari is not a substitute for appeal which had been lost. (see Edra v. Intermediate Appellate Court, G.R. No. 75041, November
13, 1989, 179 SCRA 344) A special civil action under Rule 65 of the Rules of Court will not be a substitute or cure for failure to file a timely petition for review
on certiorari(appeal) under Rule 45 of the Rules of Court. (Escudero v. Dulay, G.R. No. 60578, February 23, 1988, 158 SCRA 69, 77)

The application of the abovecited rule should be relaxed where it is shown that it will result in a manifest failure or miscarriage of justice. (Ibid, p. 77) However, as
emphasized earlier, the case at bar is totally devoid of merit, thus, the strict application of the said file will not in any way override sub-substantial justice.

Therefore, the delay of five (5) days in filing a notice of appeal and a motion for extension to file a record on appeal cannot be excused on the basis of equity.

All premises considered, the Court is convinced that the acts of respondent judge, in dismissing the action for partition and in subsequently denying the motions for
reconsideration of the petitioners, does not amount to grave abuse of discretion.

ACCORDINGLY, the petition is DISMISSED.

SO ORDERED.
G.R. No. L-62251 July 29, 1985

IRENE TAC-AN-DANO, FELIPE G. TAC-AN, DIOSDADO G. TAC-AN and SOCORRO TAC-AN GENOBATEN, petitioners, vs.THE COURT OF APPEALS and
ALFONSO G. TAC-AN, respondents. Felipe G. Tac-an for petitioners. Adelino B. Sitoy for private respondent. MELENCIO-HERRERA, J.:

Petitioners herein seek to reverse the Decision of the then Court of Appeals 1 in CA-G.R. No. 63057-R, as well as its Resolution which denied their Motion for
Reconsideration, and to reinstate in toto the Decision of the then Court of First Instance of Misamis Occidental, Branch III, Oroquieta City, in Civil Case No. 3092, for
Recovery of Ownership of Coconut Trees and Damages filed by private respondent against them.

Petitioners Irene Tac-an Dano, Felipe G. Tac-an, Diosdado G. Tac-an and Socorro Tac-an Genobaten, and private respondent ALFONSO G. Tac-an, are brothers and
sisters, children of the deceased spouses Pio Tac-an and Luisa Guzman. Upon the demise of Pio Tac-an on March 12, 1948, his wife, Luisa, managed the entire estate,
including an agricultural land of approximately 89 hectares at San Isidro, Misamis Occidental, until her death on April 18, 1971.

On September 28, 1971, intestate proceedings for the settlement of Luisa's estate were instituted by petitioner Diosdado Tac-an before the Court of First instance of
Misamis Occidental, Branch III, docketed as Special Proceedings No. 615. ALFONSO opposed the petition contending that one-half of the new 6,159 coconut trees at
the San Isidro property belonged to him in accordance with his agreement with his late mother. Ultimately, on January 29, 1973, partition was ordered by the intestate
Court pursuant to a Compromise Agreement arrived at among the heirs. ALFONSO claimed, however, that the partition was without prejudice to the prosecution of his
claim in a separate suit.

On January 31, 1975, ALFONSO filed a complaint for Recovery of Ownership of Coconut Trees and Damages against petitioners with the then Court of First Instance of
Misamis Occidental, Branch III, Oroquieta City, docketed as Civil Case No. 3092, which he amended on April 3, 1975. He alleged that sometime in 1944, upon the
request of his late mother, and with the consent of petitioners, he planted coconut trees on an agricultural land of their late father at San Isidro Señor Sinacaban,
Misamis Occidental, with an area of 89.7033 hectares: that part of the land was planted with sugar cane which he gradually replaced with coconut trees, completing the
work in 1957; that he and his mother, during her lifetime, agreed, without objection from petitioners, that the coconut trees including the fruits and produce thereof, would
be equally divided between them; that their equal sharing continued for fifteen (15) years; that upon the death of their mother, petitioner Diosdado Tac-an filed in
September 1971, Special Proceeding No. 615 with the Court of First Instance of Misamis Occidental, Branch III, for the partition of the real and personal properties left
by their parents, which he opposed.

Petitioners, in their Answer, stated that ALFONSO's claim for improvements is barred by prior judgment in Special Proceedings No. 615 rendered by the intestate Court
on the basis of the amicable compromise agreement entered into by the parties after concessions were given to respondent for the settlement of said claim; that by
virtue of said Decision, the land in San Isidro was subdivided and adjudicated in equal shares among them; that the claim of respondent for one-half (½) of the produce
of the coconut trees was denied by the intestate Court in its Order of April 18, 1972, which had already became final; that the complaint states no cause of action; that
the claim is unenforceable under the Statute of Frauds, and is barred by the Statute of Limitations and/or prescription.

On September 12, 1977, the trial Court, through Judge Mariano M. Florido, dismissed ALFONSO's Complaint and rendered judgment, thus:

ACCORDINGLY, judgment is hereby rendered dismissing the plaintiff's complaint for lack of merit; and ordering the plaintiff, under the Counterclaim, to pay
and deliver to the defendants:

1. The amount of P21,000.00, representing the share of the defendants which the plaintiff failed to give and deliver to the defendants from May, 1971 to
September, 1971, with interest thereon at six (6) per cent per annum from the filing of defendants' Counterclaim on July 3, 1975, until the amount is fully
paid;

2. The forty (40) heads of cows representing the shares of the defendants in the amicable settlement dated January 29, 1973 in Special Proc. No. 615, and
the additional forty (40) heads of cows representing the offsprings, which the cows of the defendants would ordinarily have produced but which they failed to
do so, to the prejudice of the defendants, on account of the default of the plaintiff, or for a total of eighty (80) heads of cows; or in case of failure of plaintiff to
deliver the eighty (80) heads of cows to the defendants, to pay to the defendants the amount of P80,000.00, representing the value of the eighty (80) heads
of cows at P1,000.00 per head. plus interest thereon at six (6%) per cent per annum from the filing of defendants' counterclaim on July 3, 1975, until fully
paid;

3. The amount of P15,000.00 as moral damages;

4. The amount of P20,000.00 as attorney's fees; and in the further amount of P5,000.00, as expenses of litigation; and

5. With costs against the plaintiff.

On appeal, the then Court of Appeals modified the judgment of the trial Court by allowing ALFONSO to receive one-half of the produce of the coconut trees, reducing
the number of cows, and eliminating the award of damages and attorney's fees, as follows:

WHEREFORE, with the modifications that the plaintiff is entitled to receive one-half (1/2) of the produce of coconuts in the land at San Isidro, Sinacaban,
Misamis Occidental to resume upon finality of this decision; that plaintiff should only return to defendants 40 cows and if not possible the equivalent in value
at the rate of P500.00 per head or a total of P20,000.00 with legal rate of interest at 6% from the filing of defendants' counterclaim on July 3, 1975 until fully
paid; the elimination of moral damages, attorney's fees and expenses of litigation; the decision appealed from is hereby AFFIRMED in all other respects,
without pronouncement as to costs in this instance.

Before us now, petitioners, as defendants below, impugn the Decision of the Appellate Court assigning to it the following errors:

I The Court of Appeals committed serious error of law and grave abuse of discretion amounting to lack of jurisdiction in not holding that the claim for
improvements of Alfonso Tac-an is barred by a prior final order in Special Proceeding No. 615 — Res Judicata.

II The Court of Appeals committed serious error of law and grave abuse of discretion amounting to want of jurisdiction in not holding that the claim for
improvements of Alfonso Tac-an was likewise settled and adjudicated by the final decision embodying the amicable compromise agreement of the parties for
the partition of the estate in Special Proceeding No. 615 — Res Judicata.

III The Court of Appeals committed grave abuse of discretion amounting to lack of jurisdiction when it sanctioned the filing of this present independent civil
action relying mainly on the clarificatory orders (erroneously referred to by the Court of Appeals as "decision") of Judge Melecio Genato which are contrary to
the amicable compromise agreement embodied and approved in the decision of Judge Mariano Florido.
 IV The Court of Appeals committed grave abuse of discretion amounting to lack of jurisdiction in modifying the lower court decision by declaring that Alfonso
Tac-an is entitled to receive one-half (½) of the produce despite the fact that it emphatically declared and held that no agreement existed between plaintiff
and his mother.

V Assuming arguendo that there was such agreement the Court of Appeals gravely erred in enforcing it against petitioners.

VI The Court of Appeals committed grave abuse of discretion amounting to lack of jurisdiction in resolving the claim of Alfonso Tac-an by entitling him to one-
half (½) of the produce based on equity, justice and human considerations instead of applying clear and specific provisions of law (positive laws).

VII The Court of Appeals committed grave abuse of discretion amounting to lack of jurisdiction in applying laches and estoppel against defendants.

VIII The Court of Appeals gravely erred in not resolving the issue that this action is barred by prescription relying on the illegal clarificatory orders of Judge
Melecio Genato.

IX The Court of Appeals likewise gravely erred in resolving the issue that this action is barred by the Statute of Frauds also relying on the clarificatory orders
of Judge Genato.

X The Court of Appeals gravely erred in modifying the decision of the lower Court by ordering plaintiff to return to defendants only 40 heads of cows or if not
possible the equivalent in value at the rate of P500.00 per head or a total sum of P20,000.00 instead of the valuation of the trial Court.

XI The Court of Appeals gravely erred in eliminating the award of P21,000.00 representing the share of petitioners which plaintiff failed to give or deliver for
the period from May 1971 to September 1971.

XII The Court of Appeals gravely erred in deleting the award of moral damages, attorney's fees and expenses of litigation.

On July 27, 1983, we denied the petition for lack of merit, and likewise denied on January 11, 1984, petitioners' Motion for Reconsideration of said Resolution. However,
upon petitioners' Second Motion for Reconsideration, we resolved to reconsider our Resolutions of July 27, 1983 and January 11, 1984 and gave due course to the
Petition.

On res judicata and prescription

Petitioners contend that ALFONSO's suit for recovery of ownership of coconut trees is barred by prior judgment in Special Proceedings No. 615. While it may be that the
said intestate proceedings did attain finality, it was subject to the clarificatory Order, dated April 24, 1973, issued by Judge Melecio Genato reading:

The decision dated January 29, 1973, rendered by this Court based on the amicable settlement of the heirs in this case is amended to be without
prejudice to whatever claim oppositor Alfonso Tac-an has over the improvements he had personally introduced or caused to be introduced into
the estate situated at Señor Sinacaban, Misamis Occidental.

In his Order, dated June 19, 1973, resolving petitioners' Motion for Reconsideration, the same Judge held that there was "no amendment" to the Decision dated January
29, 1973. 2

Those Orders were elevated on certiorari to this Court in G.R. No. L-37298 entitled Irene Tac-an Dano, etc. vs. Hon. Melecio Genato, et al., which petition this Court
dismissed for lack of merit on February 12, 1974. 3

Premised on the foregoing, the defense of res judicata must fail and it has to be held that the right was reserved to ALFONSO to pursue his claim for recovery of
ownership of coconut trees.

Prescription can neither be invoked as against ALFONSO by reason of that reservation in his favor. He filed suit two years after the Decision in the intestate proceedings
had been rendered. Under Article 1144 of the Civil Code, he had ten (10) years from the time the right of action accrued within which to file suit upon a judgment.

On the Alleged Agreement

ALFONSO's complaint, filed in the trial Court, was completely based on an alleged oral agreement between himself, as co- owner, and his mother as another co-owner,
whereby he would be receiving benefits from the mentioned coconut land more than he would be entitled to as co-owner. Both the trial Court and the Appellate Court
made the factual finding that the arrangement if at all, could have referred only to the produce, with the difference that the former Court held that its effectivity ceased
after the mother's death and could not bind the other heirs; whereas the latter Court ruled that since petitioners acquiesced in the arrangement during their mother's
lifetime, they are now estopped from asserting the contrary.

It is not disputed that the San Isidro property was the capital property of the father of the opposing parties, and that Luisa, their mother, was not authorized by petitioners
upon the death of their father, to enter into contract with ALFONSO concerning the produce of their respective shares of said property. It has been established, too, that
the expenses incurred in planting coconut trees in said land came from the common fund 4 and that concessions were given ALFONSO in the partition for his work in
converting the property into coconut land. So, whatever agreement the mother had with ALFONSO regarding the produce of the coconut trees, could legally bind her
share only, and chased upon her death. Petitioners merely tolerated such sharing arrangement in deference to their mother's commitment. This is shown by the fact that
five months after her death, petitioners instituted the proceedings for the partition of the estate of their deceased parents including the San Isidro property. Accordingly,
the doctrine of laches and estoppel as against petitioners cannot be successfully invoked. Absent was any element of turpitude or negligence connected with the silence
by which another is misled to his injury. 5

Moreover, the agreement between mother and son must be deemed superseded, for, on September 29, 1953, even during the lifetime of the mother, Original Certificate
of Title No. 28 (Lot No. 1) in the name of the deceased father, was cancelled and replaced by TCT No. RT-121 issued in the names of "Felipe Tac-An Irene Tac-an,
Alfonso Tac-an, Catalina Tac-an, Diosdado Tac-an, Socorro Tac-an and Luisa Guzman, in pro indiviso share of one- seventh (1/7) each", the last named being the
surviving spouse (Exhibit "12"). It will be seen, therefore, that, after 1953, it was expressly made of record that ALFONSO, his mother, and five (5) siblings (Catalina has
since passed away) were co-owners in equal shares. If, in fact, ALFONSO, had an agreement as to ownership of the trees and produce with his mother, that was the
time for him to have insisted on a lien to be specifically included in the title. His mother, too, would have been in a position to confirm or deny the existence of the
agreement.

Additionally, as petitioners contend, to give ALFONSO the right to receive one-half (½) of the produce of coconuts, as respondent Court did, would be to perpetuate a
state of co-ownership, contrary to Article 494 of the Civil Code, which limits co-ownership to a period of ten (10) years or at most twenty (20) years.

On the Partition
It follows that ALFONSO's claim for recovery of ownership of the coconut trees and of the produce thereof must fail. He should only be entitled to the share alloted to
him in the "share raffle" embodied in their compromise agreement and approved by the Court in Special Proceeding No. 615, dated January 29, 1973, as follows:

5. The share raffle was conducted with respect to the "Coconut Lands" mentioned on page 3 of the said partition proposal and the following result was
registered:

1. Lot 1 was drawn in favor of Mrs. Socorro Tac-an Genobatan; Lot 2 was drawn in favor of Mrs. Irene Tac-an Dano; Lot 3 was drawn in favor of oppositor
Alfonso Tac-an; Lot 4 was drawn in favor of Atty. Felipe Tac-an, and Lot 5 was drawn in favor of Diosdado Tac-an.

xxx xxx xxx

7. ... The administrator of the estate is hereby ordered to make a tentative partition of the coconut land located at Señor Sinacaban into five (5) shares based
not only on the area, but also on the value of the improvements thereon within a period of ten (10) days from today, and that the heirs hereby agree to draw
another raffle in order to determine the share that would correspond to them in the drawing of lots, except the share of Alfonso Tac-an, the oppositor, which
is agreed by the heirs to be that area where his house is standing and that the farm house be adjudicated to him. 6 (Emphasis ours)

The sharing in the Compromise Agreement submitted before the intestate Court with respect to the partition of the cows should also be maintained. The Courts, as a
rule may not impose upon the parties a judgment different from their Compromise Agreement. 7 The pertinent sharing agreement reads:

7. With respect to the number of cows, as of today, there are seventy-one (71) heads of cows. It has been agreed by the parties and their counsel that
Alfonso Tac-an will get 3/7 of this number or of whatever number of cows there are belonging to the estate, and the remainder 4/7 of the cows shall be
divided equally by the four (4) remaining heirs which would give them the equivalent of 1/7 share of the said cows. If actually the number of cows as counted
by the administrator is only 71, let it be divided in accordance with the agreement of the parties and the remaining one head of cow be turned over to the
administrator for evaluation and the administrator may sell it and distribute the actual proceeds among the heirs. ... 8

Consonant, therefore, with our finding that ALFONSO is not entitled to one-half (½) of the produce of the San Isidro property, he should give to petitioners, as ruled by
the trial court, their share which he failed to deliver from May 1971 to September 1971, or the amount of P21,000.00 plus interest thereon at six (6) per cent per annum
from the filing of petitioners' counterclaim on July 3, 1975, until the amount is fully paid.

As to the award of damages, there being no evidence of fraud and bad faith committed by ALFONSO, the elimination by respondent Appellate Court of the award of
moral damages, attorney's fees and expenses of litigation to petitioners should be affirmed.

WHEREFORE, modifying the judgment under review, this court RESOLVES:

1] The elimination of the award of moral damages, attorney's fees and expenses of litigation to petitioners is hereby AFFIRMED.

2] The award in favor of private respondent, Alfonso G. Tac-an, of one-half of the produce of the coconut trees from the coconut lands situated at San Isidro Señor
Sinacaban, Misamis Occidental, is hereby SET ASIDE;

3] Private respondent, Alfonso G. Tac-an, is hereby ordered to pay to petitioners the amount of P21,000.00 representing the latter's share in the produce of the coconuts
from May 1971 to September 1971 with six (6) per cent interest thereon per annum from the filing of the counterclaim on July 3, 1975 until the amount is fully paid; and

4] The parties are enjoined to abide by the terms of their Compromise Agreement in the partition of the heads of cattle.

No costs.

SO ORDERED.