G.R. No.

108580 December 29, 1998 the name of the Heirs of Emilio

CLARITA P. HERMOSO and VICTORIA P. Hermoso [Exhibit 'A'].
HERMOSO, petitioners, On May 29, 1974, the Heirs of Emilio
vs. Hermoso executed a duly notarized
COURT OF APPEALS, SPOUSES CEFERINO C. ["Agreement" Exh. "1-A"], the pertinent
PALAGANAS, AZUCENA R. PALAGANAS and DR. portion of which reads, as follows:
AMANDA C. PALAGANAS, respondents. 2. That it is hereby
agreed that for the
MARTINEZ, J.: convenience of all
This petition seeks the review of the decision dated July parties the following
24, 1992 1 of the Court of Appeals which reversed the shall be observed in
decision dated February 15, 1990 of the Regional Trial the partition of the
Court of Bulacan in an action for legal redemption above-mentioned
instituted by the petitioners against the private properties; that the
respondents. The motion for reconsideration of petitioners share of CLARITA P.
was likewise denied by the respondent court in its CARIN shall in all
resolution dated December 22, 1992. 2 cases be adjacent to
There is not much dispute about the background facts, the properties
thus we quote with favor the factual antecedents as adjudicated to
summarized by the Court of Appeals, to wit: CONSOLACION
Emilio Hermoso, now deceased, and HERMOSO CRUZ;
plaintiff Clarita Hermoso, were husband then following by the
and wife whose union was blessed with shares pertaining to
the following children: Rogelio, Victoria DANILO CIRIACO
(another plaintiff-appellee), Agustinito HERMOSO,
and Danilo Ciriaco, all surnamed VICTORINA P.
Hermoso (the latter two being third party HERMOSO,
defendants-appellees). Emilio Hermoso ROGELIO P.
died on June 22, 1957, leaving as his HERMOSO and
surviving heirs, his wife Clarita, and the AGUSTINITO P.
four above-named children. Among the HERMOSO,
properties left by Emilio Hermoso is an respectively, except in
undivided one-third portion of a parcel of the partition of the
land, the whole of which consisting of parcel of land situated
7,842 square meters, more or less, is in Calvario,
now covered by OCT No. 0-1054 (M) Meycauayan,
issued in 1983, situated at Calvario, Bulacan, which is the
Meycauayan, Bulacan. subject of the DEED
The property was originally owned by OF EXCHANGE
Agrifina Francia and the ownership above-mentioned, in
thereof was transmitted upon her death which case the share
to her three (3) children, to wit: Isidro, pertaining to
Consolacion, and Emilio (herein CLARITA P. CARIN
appellees' predecessor-in-interest) in shall be adjacent to
the proportion of one-third (1/3) each. the stonewall that
Consolacion Hermoso, married to segregates the share
Manuel Cruz, later bought the one-third of CONSOLACION
(1/3) undivided share of her brother, HERMOSO CRUZ,
Isidro Hermoso. Thus, as indicated in then followed by the
OCT No. 0-1054 (M), Consolacion shares pertaining to
Hermoso owns two-thirds (2/3) thereof ROGELIO P.
and the remaining one-third (1/3) is in HERMOSO, DANILO
CIRIANO HERMOSO,
Page 1 of 11
 VICTORINA P. Palaganas, and sister, Dr. Amanda
HERMOSO, and Palaganas (Palaganases, for brevity),
AGUSTINITO P. this time giving assurance that their
HERMOSO, at the mother (Clarita Carin) had already
extreme end, consented to the transaction and that
respectively. they could convince their sister, Victoria,
[Emphasis and to finally agree to an exchange of
underscoring Ours]. shares with Danilo. Elated with this
Sometime in July, 1979, third party development, the Palaganases even
defendants-appellees Agustinito offered a higher price [P500,000.00] for
Hermoso and Danilo Hermoso the sale.
('Hermoso brothers' for brevity) offered Thus, with these assurances, the parties
to sell their respective shares to the land executed on January 30, 1980 a duly
in dispute to one Benjamin Palaganas, notarized "Deed of Absolute Sale Over
brother of appellees Ceferino Palaganas Two Undivided Shares To A Parcel of
and Amanda Palaganas, who are old Land" (Annex "B", Plaintiffs-Appellees;
family acquaintances of the Hermosos Exhibit 2, Appellants) with the Hermoso
since the lifetime of their late landlord, brothers receiving P300,000.00 upon
Don Marcos Hermoso. the execution of the contract,
Upon being shown a copy of the duly P100,000.00 to be paid upon the
notarized "Agreement" [Exh. "1-A"], Ben eviction of the squatters/tenants
Palaganas, together with the Hermoso thereon, and the balance of
brothers, approached Atty. Ireneo E. P100,000.00 to be paid upon the
Guardiano concerning the preparation of issuance of title in the name of the
a contract of sale, with the latter noting vendees.
that the shares offered for sale are Upon the commencement of the present
separated by the share of Victoria action (October 8, 1984), the Hermoso
Hermoso; hence, it would be more brothers have already received a total
feasible for Danilo Ciriaco to execute a amount of P401,500.00 with the last
deed of exchange with his sister, condition — transfer of title — not
Victoria [TSN, 29 October 1986, p. 8]. A having been yet fulfilled.
"Deed if Exchange" [Exh. "11"] was Contrary to the assurances made by the
thereafter drawn and signed by Danilo Hermoso brothers, plaintiffs-appellees
Ciriaco Hermoso but the same was not allegedly came to have known of the
however signed by Victoria Hermoso. transaction only sometime between
Nonetheless, this transaction did not May, 1983 and January, 1984
materialize for the reasons that Clarita (Complaint, par. 8 in relation to TSN, 21
Carin subsequently offered to redeem Nov. 1984, p. 32, Victoria Hermoso).
the shares sold by her children by Thereafter, plaintiffs-appellees allegedly
returning the amount already received made arrangements to negotiate for the
by her son, Agustinito. By reason of redemption of the shares sold by the
their good relations and it appearing that Hermoso brothers. This time however,
the sale was made without the the Palaganases were not so open to
knowledge and consent of Clarita Carin, the idea of the offered repurchase for
Ben Palaganas accepted the offer the value of the property in dispute had
without suspiration. considerably increased and that they
In the month of October of the same have already set foothold on said
year, Agustinito, then reviewing for the property by reason of their investments
Bar Examinations, and Danilo, in dire and the plans made for its development.
need of money, for the second time Furthermore, they relied upon the
offered to sell their respective shares to assurances made by the Hermoso
Ben Palaganas who acted for and in brothers that the transaction is known to
behalf of his brother, Dr. Ceferino Clarita Carin and Victoria Hermoso. 3
Page 2 of 11
Consequently, considering the adamant refusal of the which plaintiffs have
private respondents to resell the disputed lots, petitioners paid or are bound to
on October 8, 1984 filed a complaint for legal redemption pay their counsel;
before the Regional Trial Court of Bulacan, Branch 7, 3. Ordering the third
Malolos, with prayer for the issuance of a writ of party defendants to
preliminary injunction to enjoin defendants third-party pay the defendants,
plaintiffs from proceeding with the construction of the damages by way of
building thereon. The trial court issued the writ prayed for. legal interest in the
After trial on the merits, the court a quo issued its decision amount computed at
dated February 15, 1990, the dispositive portion of which the rate of twelve
reads: (12%) percent of the
WHEREFORE, judgment is hereby P401,500.00 which
rendered in favor of the plaintiffs and shall commence from
against the defendants and third-party the date of the filing of
defendants as follows: the complaint on
1. Ordering the October 8, 1984 until
defendants to allow the said amount of
the redemption of the P401,500.00 shall
shares sold to them have been completely
by their vendors, the paid to the defendants
third party defendants by the said plaintiffs.
herein, and upon Costs against the defendants. 4
payment of the On appeal, the issues were simplified by the respondent
amount of Four court as follows:
Hundred One 1. Whether or not the
Thousand Five property in dispute is
Hundred still co-owned or has
(P401,500.00) Pesos, actually been
to surrender the partitioned thereby
possession of the terminating the co-
portion of the land ownership;
covered by OCT No. 2. If otherwise,
0-1054 (N), together whether or not the
with whatever plaintiffs-appellees
improvement they could still exercise the
have constructed on rights of redemption.
the property, to the The respondent court disagreed with the findings of the
plaintiffs; trial court and was of the view "that laws and
2. Ordering the jurisprudence favor the appellants, hence we reverse."
defendants to pay the The dispositive portion of the appellate court's decision
plaintiffs, the amount reads:
of Twenty Thousand WHEREFORE, premises considered,
(P20,000.00) Pesos the judgment appealed from is hereby
by way of actual REVERSED, and a new one is entered
damages to cover the dismissing the Complaint and ordering
transportation Third-Party Defendants to pay on the
expenses of the Third Party Complaint, the Third Party
plaintiffs from Cebu to Plaintiffs the amount of P10,000.00 by
Malolos and back and way of attorney's fees.
also attorney's fees in The parties shall bear their respective
the amount of Fifteen costs. 5
Thousand
(P15,000.00) Pesos
Page 3 of 11
In this petition for review, Clarita P. Hermoso, now Clarita In the trial court, petitioners posited the theory that the
Carin after her remarriage, and her daughter Victoria P. disputed land is still under co-ownership. On the basis of
Hermoso, raise the following grounds: the same documentary evidence, the private respondents
I. contend that what the two brothers sold was already
THE RESPONDENT COURT ERRED definite since partition had already been effected.
IN NOT AGREEING WITH THE The first two (2) grounds for this petition refer to the nature
HOLDING OF THE TRIAL COURT of the land sold to the respondents. The question is: Was
THAT THE AGREEMENT, MARKED AS it still under co-ownership or had it already been
EXHIBIT "1-A," IS NOT A DEED OF partitioned and divided among the co-owners?
PARTITION BUT IS A MERE SCHEME In finding that the parcel of land covered and described in
AS TO HOW TO PARTITION THE OCT No. O-1054 (M) had not been divided or partitioned
PROPERTY IN QUESTION WHICH IS among the co-owners, the trial court said:
TEMPORARY IN CHARACTER AND In fact, there is no division yet between
SUBJECT TO CHANGE AT ANY TIME the spouses, Manuel Cruz and
AND IS NULL AND VOID AS FAR AS Consolacion Hermoso Cruz on one
PETITIONER VICTORIA P. HERMOSO hand and the Heirs of Emilio Hermoso
IS CONCERNED BECAUSE SHE WAS on the other. This fact of co-ownership
STILL A MINOR WHEN SAID is easily discernible in the title itself
AGREEMENT WAS EXECUTED AND which has not yet been cancelled, and
HER CO-PETITIONER CLARITA P. therefore still subsisting.
HERMOSO HAD NO AUTHORITY TO Therefore, it is
SIGN SAID AGREEMENT IN HER ordered by the Court
BEHALF; that said land be
II. registered in
THE RESPONDENT COURT ERRED accordance with the
IN NOT HOLDING THAT THE provisions of the Land
PROPERTY IN QUESTION WAS STILL Registration Act, as
UNDIVIDED AND WAS STILL UNDER amended, in the name
CO-OWNERSHIP DESPITE THE of said spouses.
EXECUTION OF THE AGREEMENT Manuel C. Cruz and
MARKED AS EXHIBIT "1-A" BECAUSE Consolacion
CONSOLACION HERMOSO, CO- Hermoso; and heirs of
OWNER OF 2/3 OF SAID PROPERTY, Emilio Hermoso,
WAS NOT A PARTY TO SAID namely: Clarita Pajo,
AGREEMENT; Victoria Hermoso,
III. Rogelio Hermoso,
THE RESPONDENT COURT ERRED Agustinito Hermoso,
IN COUNTING THE DATE WHEN THE and Danilo Hermoso
RIGHT OF REDEMPTION SHOULD BE as their exclusive
EXERCISED FROM THE TIME THE property, —
PETITIONERS MADE A FORMAL The documents relating to the shares of
OFFER TO REDEEM INSTEAD OF the third party defendants readily show
FROM THE TIME THE PETITIONERS this fact of co-ownership. Thus, in the
STARTED NEGOTIATING FOR THE untitled instrument introduced by the
REDEMPTION OF THE TWO defendants marked as Exhibit 3 which is
UNDIVIDED SHARES AFTER THEY an agreement to sell purportedly bearing
WERE CERTAIN THAT SAID the date October 10, 1979 signed by the
UNDIVIDED SHARES WERE SOLD TO Hermoso brothers, Agustinito and
THE PRIVATE RESPONDENTS. 6 Danilo and stating how the P500,000.00
The trial and appellate courts disagreed as to the consideration of the sale shall be paid,
interpretation to be given to the agreements and contracts what was referred to have been sold
and to the notice of sale involved in this case. were the shares, rights and interests

Page 4 of 11
over the land of the said vendors. This There was no subdivision plan
document states, among others: presented by the defendants. In fact,
That we have agreed there was none as yet executed by a
to transfer and duly licensed geodetic engineer on that
convey unto spouses registered land. Ben Palaganas who
Dr. Ceferino C. was then dealing with the Hermoso
Palaganas and brothers, the named vendors in the
Azucena R. document, is a highly educated man. As
Palaganas, both of he had testified, he is an accountant by
legal age, Filipinos profession and he had served as head
and with residence of a department of the Central Bank until
and postal address at his retirement from the government. In
Bañga. Meycauayan, the opinion of this court, he knew all
Bulacan all our along that what he or his principals were
shares, rights and buying at the time were the undivided
interests over the shares, participation and interests of the
aboved escribed vendors to the land. His claim later in
parcel of land free court that the shares of the vendors
from all liens and could already be identified and
encumbrances under segregated is difficult to believe. If his
the following terms claim were true, Ben Palaganas with his
and conditions . . . Cf. experience and educational background
Exhibit 3, def., could have easily managed to executed
emphasis supplied. the proper document as a basis of an
The document signed by the two ultimate issuance of title in the name of
brothers on January 30, 1980 was the vendees. The document which he
obviously prepared at the instances of relied upon which is Exhibit 1-A as the
Ben Palagas. Acknowledged before basis for his conclusion that the
Notary Public Irineo Guardiano whose Hermoso brothers were selling definite
advise was sought by Ben Palaganas, parcels of land is belied by the recitals
its title is immediately revealing, as it is of the documents he himself introduced
titled "Deed of Absolute Sale Over Two to the court, viz. Exhibits 2 and 3. The
Undivided Shares to a Parcel of Land" document, Exhibit 1-A, if at all, could at
Cf. Exhibit C. pl., Exhibit 2, def., best be considered as a scheme how
underlining supplied. It is also stated in the land could be divided in the future
this document that what was sold by the among the heirs of Emilio Hermoso.
Hermoso brothers were "shares, rights Temporary in nature and subject to the
and interests over the above-described conformity of the 2 sets of co-owners to
parcel of land" (which obviously refers to the land, the spouses Manuel Cruz and
the land in question). Consolacion Hermoso Cruz had not
It is significant to note that in the deed of participated in its execution. As it was,
sale marked as Exhibit 2, defendant, the there was no sound basis for Ben
area of the shares of the vendors, the Palaganas or his principals to have
Hermoso brothers were not specified. assumed that Exhibit 1-A could be
What was mentioned on the matter of enforced against the spouses Manuel
area is that of the whole parcel which is Cruz and Consolacion Cruz and other
7,829 square meters. If there was a third persons. 7
partition or separation of the portions of In overturning the aforequoted opinion of the trial court,
the whole land assigned to the owners the respondent court said that:
named in the title, the parcels conveyed In ascertaining whether the community
could have been described with their still subsists, or that it had already been
specified metes and bounds. extinguished by partition among the co-
owners, it is not a mandatory
Page 5 of 11
 requirement that the property co-owned Ben Palaganas was an accountant and was, prior to
had been determined with unmistakable retirement from government service, the head of a
definiteness and clarity, as where the department in the Central Bank. Again, we quote the trial
property has been given a technical court on this point, thus:
description after proper geodetic survey; In the opinion of this court, he knew all
it is only required that the shares are along that what he or his principals were
properly determinable and the proper buying at the time were the undivided
arrangements thereof identifiable, as shares, participation and interests of the
when nothing is left for the co-owners to vendors to the land. His claim later in
do but to actually occupy the portion court that the shares of the vendors
pertaining to their share without any could already be identified and
dispute arising over the extent of their segregated is difficult to believe. If his
respective shares and the respective claim were true, Ben Palaganas with his
position of the parcels they are entitled experience and educational background
to occupy. could have easily managed to execute
Although OCT No. 0-1054 (M) reveals the proper document as a basis of an
on its face the existence of co- ultimate issuance of title in the name of
ownership between Consolacion the vendees. The document which he
Hermoso-Cruz and the Heirs of Emilio relied upon which is Exhibit 1-A as the
Hermoso, the fact that the shares are basis for his conclusion that the
separated by a stonewall (Cf. Exh. 1-A) Hermoso brothers were selling definite
unmistakably reveals the determinate or parcels of land is belied by the recitals
determinable character of the property of the documents he himself introduced
described under said certificate of title. to the court, viz., Exhibits 2 and 3. 10
The court a quo subscribed to the theory Ben Palaganas' understanding and interpretation must
that Exhibit 1-A is merely a "scheme [of] necessarily prevail over that of the private respondents'
how the land could be divided in the who were not present during the transaction and whose
future among the heirs of Emilio claims are colored by self-interest. In fact, the same
Hermoso." (g.v., Decision, p. 5) Be that document refers to the brothers as co-owners of undivided
as it may, there is nothing more left to shares in the disputed property. 11
be done but the actual subdivision of the It is plain from the deed of sale of two undivided shares
properly by a duly licensed geodetic that the absence of a clear partition among the heirs of
engineer prior to the actual titling of their Emilio Hermoso complemented the similar absence of a
respective shares. The corresponding division of properties between the heirs and their aunt
shares of each of the heirs of Emilio Consolacion Hermoso Cruz. Two of the heirs were selling
Hermoso is not in dispute — one-fifth shares of undivided property which in turn was also an
each; and their proper respective undivided portion of a much larger undivided inheritance.
arrangements, one after another, had The alleged documents of exchange presented by the
likewise been included under Exhibit 1- respondents to show a partition with Consolacion would,
A. 8 to our mind, fall under the same category as the "1994
We agree with the trial court's findings that the records Agreement" among the heirs of Emilio Hermoso, as we
show co-ownership of undivided property instead of shall hereinafter discuss.
definite portions of land having been assigned and The allegation about Consolacion having segregated and
separately owned by each of the co-owners. having given her 2/3 share of the inheritance viz-a-viz the
It should be stressed that it was Ben Palaganas, the 1/3 share of the heirs of Emilio Hermoso is belied by the
vendee, who prepared the Deed of Sale. The private letter sent by husband Manuel Cruz in August 1981 to the
respondents never had a hand in the preparation of the Register of Deeds of Bulacan which intimated his desire to
document, even if the purchase was made in their behalf. buy the property of his co-owners in his capacity as
The document states that it is a "Deed of Absolute Sale such. 12 The spouses Cruz wanted to buy properties which
Over Two Undivided Shares to a Parcel of Land." Ben 9 they heard had been alienated by their co-owners.
Palaganas who prepared the deed of sale, knew and The absence of a deed of partition between Consolacion
intended that the transaction was over "Two Undivided on the one hand, and the heirs of Emilio on the other, is
Shares" of land. After all, as observed by the trial court,
Page 6 of 11
bolstered by the fact that the registered ownership is that HERMOSO, and AGUSTINITO P.
of the original owner over the entire property. HERMOSO, at the extreme
The deed of sale executed by the Hermoso brothers on end, respectively.
January 30, 1980, referred to undivided shares. Prior to We agree with the trial court that this Agreement was
the execution of this document, the Hermoso brothers merely a scheme as to how the land would be subdivided
were parties to a non-notarized certification dated October in the future among the heirs. The owner of two-thirds
10, 1979, 13 acknowledging the receipt of P25,000.00 from (2/3) of the property, Consolacion Hermoso, was not a
the respondents, and wherein they were described as co- party to the agreement. As a majority owner of the
owners with the petitioners. 14 undivided property, she could have demanded and
The second paragraph of the certification states that "We insisted on getting the particular portions which the
have agreed to sell, transfer and convey unto the spouses respondent court ruled had already been segregated in
Dr. Ceferino C. Palaganas and Azucena R. Palaganas. . . favor of the two vendors-brothers. The agreement among
all our shares, rights and interests over the above- the heirs of Emilio Hermoso as to shares following one
described parcel of land . . . ." 15 Note that the vendors another in a specific order cannot be binding on the co-
who have described themselves as "co-owners" agreed owner who owns 2/3 of the entire parcel but who was not
merely to sell their shares, rights and interests over the a signatory or party to the document.
land. They were not "selling" but were "agreeing to sell." The reference to a stonewall separating the shares of
They did not sell a specific portion of land but sold Consolacion Hermoso Cruz from the share of Clarita Carin
"shares, rights and interests." It is to be further noted that and the use thereof as reference point should not be taken
as late as 1979 and 1980, Ben Palaganas and the to mean that thereby a partition was effected among the
Hermoso brothers, the parties to the deeds of sale, were heirs. The statement of the Heirs of Emilio Hermoso that
in complete agreement that there was a co-ownership. the 2/3 portion of the co-owner in relation to the heirs of
The basis for the opinion of the respondent court that the Emilio shall be adjacent to that of Clarita Carin followed by
co-ownership had been terminated and the property was the shares of Rogelio, Danilo, Victorina and Agustinito is a
subdivided is the document dated May 24, 1974 statement of a desire on how the land should be
denominated "Agreement," executed by the heirs of Emilio subdivided. It cannot be said that it is a kind of division or
Hermoso. The pertinent portion of the agreement, which partition of property which clearly terminates co-
has been earlier cited and for emphasis, is reproduced ownership. The statement of Agustinito of an assignment
hereunder runs as follows: of shares cited by the respondent court was more of an
2. That it is hereby agreed that for the expression on how a future partition should be effected. In
convenience of all parties the following fact, the word "positions" was used in addition to shares.
shall be observed in the partition of the The documents evidencing the deed of sale are more
above-mentioned properties: that the authoritative in determining the existence of co-ownership.
share of CLARITA P. CARIN shall in all The May 29, 1974 "Agreement" could not have been a
cases be adjacent to the properties partition or division of co-owned properties because five
adjudicated to CONSOLACION and six years later, as can be gleaned from the October
HERMOSO CRUZ; then followed by the 10, 1979 certification and from the January 13, 1980 Deed
shares pertaining to DANILO CIRIACO of Sale Over Two Undivided Shares To A Parcel of Land,
HERMOSO, VICTORINA P. both Ben Palaganas who prepared the documents as
HERMOSO, ROGELIO P. HERMOSO vendee, and the brothers Agustinito and Danilo who
and AGUSTINITO P. HERMOSO, signed as vendors, were definite about the property being
respectively, except in the partition of under co-ownership. As late as August, 1981, Manuel
the parcel of land situated in Calvario, Cruz, the husband of Consolacion, described the parties
Meycauayan, Bulacan, which is the as "co-owners."
subject of the DEED OF EXCHANGE The private respondents, to buttress their stance that the
above-mentioned, in which case the standards of concrete determinability and identifiability
share pertaining to CLARITA P. CARIN have been met in the case at bar, cited the case of De la
shall be adjacent to the stonewall that Cruz v. Cruz. 16 We have read the case, regrettably the
segregates the share of standards are not present. In De la Cruz, the northern half
CONSOLACION HERMOSO CRUZ, of the property was assigned to the plaintiff and the
then followed by the shares pertaining to southern half to the defendant. In which case, such a
ROGELIO P. HERMOSO, DANILO division is concrete and definite, which is not so in this
CIRIACO HERMOSO, VICTORINIA P. case. Here, the majority co-owner, Consolacion Hermoso,
Page 7 of 11
was not even consulted and the mention of names hindrance to the development and better administration of
following one another was apparently only a statement of the property. 20 Thus, we agree with the trial court when it
who are the co-owners-heirs. It was not a formal division said:
or partition of the bigger property still to be validly The purpose of Article 1067 (of the old
partitioned with Consolacion, owner of two-thirds (2/3) and Civil Code, now Article 1088 of the
later, among the co-heirs who owned the remaining one- present Civil Code) is to keep strangers
third (1/3). It is only a statement of a future action to be to the family out of a joint ownership, if,
taken. We, therefore, rule that the lot in question is still as is often the case, the presence of
undivided property owned in common by the co-heirs. outsiders be undesirable and the other
The second issue herein refers to the timeliness of heir or heirs be willing and in a position
exercising the right of legal redemption. The petitioners to repurchase the share sold (De Jesus
question the respondent court's ruling that the right had vs. Manglapus, 81 Phil 144). While there
already prescribed when they exercised legal redemption. should no question that an heir may
The law apropos to this case is Article 1623 of the Civil dispose his right before partition (Rivero
Code, which provides: vs. Serrano (CA) 46 O.G. 642;
Art. 1623. The right of legal pre-emption Wenceslao vs. Calimon, 46 Phil. 906.
or redemption shall not be exercised Hernaez vs Hernaez, 32 Phil. 214), a
except within thirty days from the notice co-heir would have had to pay only the
in writing by the prospective vendor, or price for which the vendee acquired it
by the vendor, as the case may be. The (Hernaez vs. Hernaez,
deed of sale shall not be recorded in the Ibid.) 21
Registry of Property, unless It is a one-way street. It is always in favor of the
accompanied by an affidavit of the redemptioner since he can compel the vendee to sell to
vendor that he has given written notice him but he cannot be compelled by the vendee to buy the
thereof to all possible redemptioners. alienated property.
The right of redemption of co-owners In this case, the land has not been validly partitioned
excludes that of adjoining owners. between Consolacion Hermoso, who owns 2/3 and the
An identical provision governing co-heirs is found in Article heirs of Emilio Hermoso who 1/3 regardless of the
1088 of the Civil Code, quoted hereunder: sentiments of Consolacion on the land in dispute may later
Art. 1088. Should any of the heirs sell have been. There has been no subsequent distribution
his hereditary rights to a stranger before among the co-heirs of their specific shares. But even
the partition, any or all of the co-heirs granting that the heirs divided the properties owned in
may be subrogated to the rights of the common in the May 29, 1974 Agreement, the right of legal
purchaser by reimbursing him for the redemption under Article 1620 of the Code, would still
price of the sale, provided they do so subsist in their capacity as co-owners. For, it a co-owner
within the period of one month from the has offered to redeem the land within the period fixed by
time they were notified in writing of the law, he has complied with the law. He may bring the
sale by the vendor. action to enforce the redemption after every offer has
It is to be noted that Article 1623 stresses the need for been rejected. This is exactly the situation in this case.
notice in writing in three other species of legal redemption The respondent court found that the petitioners already
namely: (1) redemption in a case where the share of all had notice of the sale in January 1984. Considering that
the other co-owners or any of them are sold to a third the letter, 22 coursed through Atty. Sandico, offering to
person; (2) redemption by owners of adjoining lands
17 redeem the property was made only in September 1984,
when a piece of rural land not exceeding one hectare in the appellate court was of the view that the action to
area is alienated; 18 and (3) redemption by owners of enforce redemption had prescribed. A perusal of the
adjoining lands in the sale of a piece of an urban land so record, however, shows that after Ben Palaganas had
small and so situated that the portion thereof cannot be confirmed the transaction, the petitioners confronted the
used for any practical purpose within a reasonable time, two brothers who were compelled to admit they have sold
having been bought merely for speculation. 19 their shares. The vendor-brothers never took the initiative
In all the above-cited provisions of law, the interpretation of informing their co-heirs in writing that they have
thereof always tilts in favor of the redemptioner and alienated their shares. As found by the trial court, the
against the vendee. The purpose is to reduce the number petitioners immediately started negotiations with Ben
of participants until the community is terminated, being a Palaganas to redeem the alienated share. At this time, the
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payment for the shares had not yet been completed A — No, sir.
neither by Ben Palaganas nor by the private respondents. Q — Why not?
The observation of the trial court on this issue is A — Because I
enlightening, thus: personally believe that
It is evident from the evidence in the what we were selling
record that the vendors, i.e., the then were but our
Hermoso brothers, Agustinito and right to the said
Danilo had not notified in writing or even property.
verbally their co-heirs which include the Q — How about your
plaintiffs herein before or during the brother Danilo
execution of the sale of their shares to Hermoso, did he
Ben Palaganas or the defendants. The inform your mother
transaction of these two brothers had and sister about the
with Ben Palaganas was kept out of the sale of the property?
knowledge of their mother and sister, xxx xxx xxx
the plaintiffs herein. Their need for funds A — Danilo Hermoso,
must have been urgent and it was my brother, told me
obvious that their mother if advised what that he did not inform
they intended to do with the land could our mother and our
have objected to it. This reaction from sister about his desire
the plaintiffs was easily expected to sell his share on
because when Agustinito Hermoso sold the property.
his share to Ben Palaganas in July (TSN, 5-21-87, pp.
1979, the same was aborted by the 12-13 & 15).
plaintiff, Clarita Carin. On this regard, ATTY. OSORIO:
Agustinito Hermoso, one of the two third Q — How about the
party defendants testified: second sale which
Q — Did you inform included the share of
your mother and sister your brother?
about the sale of A — No, we did not
these properties? inform our mother
A — During that time? regarding our desire
Q — Yes. to sell our respective
A — I did not. properties, sir.
xxx xxx xxx Art. 1088 of the Civil Code is applicable
ATTY. GARCIA: in the instant case. But whether it is
Q — Do you know under this article or Article 1623 of same
when, for the first Code, the period of 30 days has not
time, did your mother began to run.
and your sister came When the plaintiffs had become certain
to know of this sale? after Ben Palaganas had confirmed the
A — Personally, I do transaction that there was such a sale
not know when they covering the shares of the third party
came upon that defendants (tsn, 6-19-86, pp. 20-21)
knowledge. sometime in 1984, the vendors had to
(TSN, 5-22-86, pp. admit to the herein plaintiffs the fact of
10-11). sale. Plaintiffs immediately started
ATTY. HERMOSO: negotiations with Ben Palaganas to
Q — Did you ever redeem the shares sold by the vendors.
consult your mother or Ben Palaganas or the defendants after
your sister of your all, had not completely paid the whole
desire to sell the consideration of the sale by that time.
property? Ben Palaganas did not want to give
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 money anymore to the vendors as the a condition precedent to the exercise of the right of
amounts already paid had amounted to redemption. It is a period set by law to restrict the right of
P401,500.00 (see footnote of Ben the person exercising the right of legal redemption. 24 It is
Palaganas in Exhibit 10). The several not one of prescription.
payments made to the vendors are The written notice required by Article 1623 of the Civil
evidenced by Exhibits 3, 4, 5, 6, 7, 8, 9 Code was enacted to remove all doubts and uncertainty
and 10. Ben Palaganas acting for that the alienation may not be definite. 25 The co-owners
himself or for the defendants refused the must know with certainty the circumstances of the sale by
offer of the plaintiffs to redeem the land, his co-owners and the terms and the validity of the
claiming that the rights to the land of his alienation. Only after said knowledge is the co-owner
principals to the vendors' shares to the required to exercise the right of redemption given to him
land was already established. The by law.
formal demand to redeem was sent by While the law requires that the notice must be in writing, it
the plaintiffs through counsel to the does not state any particular form thereof, so long as the
defendants (Exhibit B, p. 203, record). reasons for a written notice are present. The records of
Still the defendants did not respond the case show that the sale of the brothers' share was
accordingly. They had instead deliberately hidden from the petitioners. For sometime
constructed a building within the land after the sale, the petitioners were ignorant about its
covered by the title and in a place execution. When they somehow heard rumors about it,
therein, relying on the temporary they had to take one step after another to find out if the
scheme of partition marked as Exhibit 1- information was true.
a. To the plaintiffs, there was no other It is to be noted that in the case at bar, not only were the
recourse except to go to court. And they petitioners intentionally kept in the dark for several years
did by filing this complaint on October 4, but even after knowledge of the act of the two brothers,
1984 with the court. 23 they still had difficulty in ascertaining and confirming its
Ben Palaganas confirmed the offer to redeem. When veracity. Far from giving the notice required by law or
questioned why the private respondents agreed to the giving information on the history and details of the sale,
return of the sold shares in 1979 but refused to do so in Agustinito and Danilo gave the petitioners the run-around
1980, this witness waxed sentimental and gave a lengthy until the brothers were practically forced to admit it and the
narration of the debt of gratitude his family owed to the petitioners immediately went to see Ben Palaganas. In
Hermoso family. Ben Palaganas related that the patriarch their dialogue with Ben Palaganas, petitioners offered to
Marcos Hermoso allowed the Palaganas clan to build their redeem the property, but this time, unlike the first, the offer
house on his land and to stay there for 27 years without was rejected.
paying rent. And, when three sons and one daughter of When the petitioners offered to redeem within the period
the Palaganases were in medical school, and the family fixed by law, they complied with the condition precedent to
ran out of funds, Marcos Hermoso extended financial the exercise of their right. The filing of an action to enforce
assistance without interest and payable only when the the redemption is not the determining point in time. In
Palaganases could afford to pay. Out of respect for the Conejero, supra, this Court ruled that a consignation of the
Hermoso family, Ben Palaganas related, the private tendered price is not necessary as long as a valid tender
respondents agreed to the cancellation of the 1979 sale. is present. 26 However, the offer to redeem is
However, in 1984 when the offer to redeem the share sold indispensable. Considering the indignation and the wrath
in 1980 was made, the Palaganas clan no longer wanted of the petitioners directed at the two brothers for their acts
to resell the property. Considering that over the of alienating an undivided portion of the property, despite
intervening years, they had paid on a piecemeal basis the the earlier redemption of the sale sold in 1979, there can
amount of P400,000.00 to the two brothers and out of be no question about the willingness and capability of the
"self-respect" refused to agree to the redemption. But petitioners to buy back the shares sold in 1980.
since the property purchased had already increased in In applying Article 1623 of the Civil Code on the exercise
value not only "self-respect" but apparently self-interest of legal redemption to certain facts, the interpretation must
had entered the picture. be in favor of justice and equity. 27 This Court explained —
It was error for the respondent court to rule that the right of ". . . . We test a law by its result. A law should not be
the petitioner to redeem the alienated share had long interpreted so as not to cause an injustice . . . . There are
prescribed. This finding fails to take into account that the laws which are generally valid but may seem arbitrary
period of legal redemption is not a prescriptive period. It is when applied in a particular case because of its peculiar
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circumstances. We are not bound to apply them in slavish The Palaganas clan knew all along the strong feelings of
obedience to their language." the petitioners against the alienation of share in the still
Whether it is the vendees who will prevail as in the Alonzo undivided property. This was their second attempt to buy
doctrine, or the redemptioners as in this case, the righting the property. As a matter of fact, they knew that in 1979
of justice is the key to the resolution of the issues. when the land was first sold, the petitioners immediately
The standards and conditions of legal redemption took steps to cancel the sale upon discovery thereof. In
provided under Article 1623 of the Civil Code have not 1980, the private respondents and Ben Palaganas still did
been met in this petition. Furthermore, there is the fact exactly what the petitioners vigorously opposed and did
that justice and equity, as the law provides, are also on not want to happen. They also hid the sale from the
the side of the petitioners. As we said, the righting of an petitioners until confronted with facts that they could no
injustice is the key to the resolution of this case and thus longer hide or deny. The impressions of the trial judge is
would be the end result of our decision. worth quoting hereunder thus:
The two brothers, Agustinito and Danilo Hermoso, were It is obvious that the acts of Ben
still students when they sold their shares in their Palaganas or his principals would be
inheritance. In 1979, Agustinito was already a graduating considered as done in bad faith. Ben
student of law. According to the trial court, it was Palaganas should not be allowed to say
"sometime in October of that year, he and his younger that he had relied merely on the
brother Danilo separately needed cash which there could impressions given by the vendors, the
not easily secure from their mother, Clarita Carin, one of Hermoso brothers. Aside from what was
the plaintiffs herein." 28 However, if they were strapped of obvious in the documents executed by
cash, considering that their allowances were insufficient the Hermoso brothers, he should have
for their needs, they could have pleaded with their mother inquire nor verified said impressions
for additional funds instead of selling the still undivided made by the vendors from the plaintiffs
property without her knowledge and against her known or any of the co-owners to the property.
will. They knew that their mother was against the very idea The evidence in the record shows that it
of selling a portion of the undivided property considering was their intense desire to own a
that Consolacion Hermoso cancelled the prior sale made property in the place where the land is
by them in July 1979 by redeeming the property. From the located because of the business
records, one gets the impression that the two brothers, potentials thereat stated herein above.
Agustinito and Danilo, were irresponsible and self- They did not exercise the diligence of a
centered, failing to consider the wishes of their mother. good father of a family because they did
Ben Palaganas, who represented the respondents in a not want to, what with their experience
transaction, admitted a debt of gratitude to the Hermoso with the first transaction affecting the
family. Yet, apparently he took advantage of the situation. share of the third party defendant,
Through several years he doled out funds in installments Agustinito Hermoso which took place
to the two brothers in partial payment of the disputed only in July, 1979 a few months earlier
property until the indebtedness had reached an amount to the transaction in question. 29
that Agustinito and Danilo had no other recourse but to There can be no doubt that the Palaganas clan were in
sell their inheritance and practically compelled them to bad faith at the time they bought the disputed property
execute the deed of sale in dispute. from the Hermoso brothers. We cannot thus close our
Again, we reiterate the salient fact that Clarita Carin, their eyes to the injustice which would befall the petitioners
mother, and Victoria Hermoso, their sister, were kept in considering that this is not the first time that they have
the dark about the sale. Considering the factual expressed their desire to redeem the property sold by the
background of this case, the honorable and expected step Hermoso brothers. Under the circumstances, it is just and
for the Palaganas was to inform the petitioners about the equitable to rule in favor of the exercise of legal
action taken by Agustinito and Danilo. Instead, as the redemption.
record reveals the parties to the sale concealed the WHEREFORE, the assailed decision of the Court of
transaction from petitioners for four (4) years. It was only Appeals should be, as it is hereby, REVERSED and SET
after hearing rumors about the sale when petitioners ASIDE. The decision of the Regional Trial Court dated
started to investigate and search for evidence to confirm February 15, 1990 is hereby REINSTATED.
their hear say acknowledge about the transaction. Even SO ORDERED.
then, the two brothers and the Palaganases gave them a Bellosillo, Puno and Mendoza, JJ., concur.
hard time.
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