G.R. No. L-33006 December 8, 1982

NICANOR NACAR, petitioner, vs. CLAUDIO A. NISTAL as Municipal Judge of Esperanza, Agusan del Sur, PROVINCIAL SHERIFF of

Agusan del Sur, ILDEFONSO JAPITANA and ANTONIO DOLORICON, respondents.

GUTIERREZ, JR., J.:

Nicanor Nacar filed this petition for certiorari, prohibition, and mandamus with preliminary injunction to annul an order of the respondent judge of the municipal court of Esperanza, Agusan del Sur directing the attachment of seven (7) carabaos, to effect the return of four (4) carabaos seized under the questioned order, and to stop the respondent judge from further proceeding in Civil Case No. 65.

Respondent Ildefonso Japitana filed the complaint in Civil Case No. 65 and entitled it "Claim Against the Estate of the Late Isabelo Nacar With Preliminary Attachment:" On the basis of this complaint, including an allegation "that defendant are (sic) about to remove and dispose the above-named property (seven carabaos) with intent to defraud plaintiff herein", and considering that Mr. Japitana had given security according to the Rules of Court, Judge Nistal issued the order commanding the provincial sheriff to attach the seven (7) heads of cattle in the possession of petitioner Nicanor Nacar. Actually only four (4) carabaos were attached because three (3) carabaos had earlier been slaughtered during the rites preceding the burial of the late Isabelo Nacar.

Nicanor Nacar filed a motion to dismiss, to dissolve writ of preliminary attachment, and to order the return of the carabaos. Private respondent Japitana filed an opposition to this motion while intervenor Antonio Doloricon filed a complaint in intervention asserting that he was the owner of the attached carabaos and that the certificates of ownership of large cattle were in his name.

The respondent Judge denied the motion to dismiss prompting Mr. Nacar to come to the Supreme Court.

In a resolution dated January 12, 1971, this Court, upon the posting of a bond in the amount of P1,000.00, directed the issuance of a preliminary mandatory injunction. The respondents were enjoined from further enforcing the writ of attachment and to return the seized carabaos. The judge was restrained from further proceeding with Civil Case No. 65.

We find the petition meritorious.

The pertinent portions of the complaint filed by Mr. Japitana with the municipal court read as follows:

ILDEFONSO JAPITANA Civil Case No. 65 Plaintiff,

FOR:

Versus

CLAIM AGAINST THE ESTATE NICANOR NACAR THE LATE ISABELO NACAR WITH Defendant. PRELIMINARY ATTACHMENT x ---------------------------------x

COMPLAINT

COMES NOW the undersigned plaintiff and before this Honorable Court, respectfully avers:

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That at various dates since the year 1968, the defendant have (sic) incurred indebtedness to the plaintiff in the total sum of TWO THOUSAND SEVEN HUNDRED NINETY ONE (P2,791.00) PESOS, which said amount had long been overdue for payment, and which the defendant up to this date have (sic) not been able to pay, despite repeated demands from the plaintiff;

That the defendant Isabelo Nacar died last April, 1970 leaving among other things personal property consisting seven (7) heads of carabaos now in the possession of the defendant Nicanor Nacar;

That plaintiff herein file a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of P2,791.99;

That defendant are (sic) about to remove and dispose the above mentioned property with intent to defraud plaintiff herein;

That plaintiff is willing to put up a bond for the issuance of a preliminary attachment in an amount to be fixed by the Court, not exceeding the sum of P 2,791.00 which is the plaintiff's claim herein;

WHEREFORE, it is respectfully prayed that pending the hearing of this case, a writ of preliminary attachment be issued against the properties of the defendant to serve as security for the payment or satisfaction of any judgment that may be recovered herein; and that after due hearing on the principal against the defendant for the sum of P 2,791,00 with legal interest from September 15, 1970 plus costs of this suit. (Annex "A", p. 7 rollo).

In his motion to dismiss, the petitioner raised the issue of lack of jurisdiction and absence of a cause of action. Mr. Nacar averred that the indebtedness mentioned in the complaint was alleged to have been incurred by the late Isabelo Nacar and not by Nicanor Nacar. There was, therefore, no cause of action against him. The petitioner also stated that a municipal court has no jurisdiction to entertain an action involving a claim filed against the estate of a deceased person.

The same grounds have been raised in this petition. Mr. Nacar contends:

xxx xxx xxx

9. That the respondent judge acted without jurisdiction.The municipal courts or inferior courts have NO jurisdiction to settle the estate of deceased persons. The proper remedy is for the creditor to file the proper proceedings in the court of first instance and file the corresponding claim. But assuming without admitting that the respondent judge had jurisdiction, it is very patent that he committed a very grave abuse of discretion and totally disregarded the provisions of the Rules of Court and decisions of this honorable Court when he issued an ex-parte writ of preliminary attachment, when there is no showing that the plaintiff therein has a sufficient cause of action, that there is no other security for the claim sought to be enforced by the plaintiff; or that the amount claimed in the action is as much as the sum for which the order is prayed for above all legal counterclaims; There was no bond to answer for whatever damages that herein petitioner may suffer; (Rollo, pp. 3- 4).

xxx xxx xxx

The respondent judge tried to avoid the consequences of the issues raised in the motion to dismiss by stating that although the title of the complaint styled it a claim against the estate of the late Isabelo Nacar, the allegations showed that the nature of the action was really for the recovery of an indebtedness in the amount of P2,791.99.

The rule cited by the judge is correctly stated but it is hardly relevant to the contents of the complaint filed by Mr. Japitana.

It is patent from the portions of the complaint earlier cited that the allegations are not only vague and ambiguous but downright misleading. The second paragraph of the body of the complaint states that the defendant (herein petitioner Nicanor Nacar) at various dates since the year 1968 incurred debts to the plaintiff in the sum of P2,791.00. And yet, in the subsequent paragraphs, one clearly gathers that the debts were actually incurred by the late Isabelo Nacar, who died several months before the filing of the complaint. The complaint which the respondent judge reads as one for the collection of a sum of money and all the paragraphs of which are incidentally unnumbered, expressly states as a material averment:

xxx xxx xxx

That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of P2,791.00;

xxx xxx xxx

Under the circumstances of this case, respondent Japitana has no cause of action against petitioner Nacar. Mathay v. Consolidated Bank and Trust Company (58 SCRA 559) gives the elements of a valid cause of action:

A cause of action is an act or omission of one party in violation of the legal right of the other. Its essential elements are, namely: (1) the existence of a legal right in the plaintiff, (2) a correlative legal duty in the defendant, and (3) an act or omission of the defendant in violation of plaintiff's right with consequential injury or damage to the plaintiff for which he may maintain an action for the recovery of damages or other appropriate relief. ( Ma-ao Sugar Central Co., Inc. vs. Barrios, et al., 79 Phil. 666, 667; Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 251, 255). On the other hand, Section 3 of Rule 6 of the Rules of Court provides that the complaint must state the ultimate facts constituting the plaintiff's cause of action. Hence, where the complaint states ultimate facts that constitute the three essential elements of a cause of action, the complaint states a cause of action; (Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215, 218) otherwise, the complaint must succumb to a motion to dismiss on that ground.

Indeed, although respondent Japitana may have a legal right to recover an indebtedness due him, petitioner Nicanor Nacar has no correlative legal duty to pay the debt for the simple reason that there is nothing in the complaint to show that he incurred the debt or had anything to do with the creation of the liability. As far as the debt is concerned, there is no allegation or showing that the petitioner had acted in violation of Mr. Japitana's rights with consequential injury or damage to the latter as would create a cause of action against the former.

It is also patent from the complaint that respondent Japitana filed the case against petitioner Nacar to recover seven (7) heads of carabaos allegedly belonging to Isabelo Nacar which Japitana wanted to recover from the possession of the petitioner to answer for the outstanding debt of the late Isabelo Nacar. This matter, however, is only ancillary to the main action. The ancillary matter does not cure a fatal defect in the complaint for the main action is for the recovery of an outstanding debt of the late lsabelo Nacar due respondent Japitana, a cause of action about which petitioner Nacar has nothing to do.

In fact the fatal defect in the complaint was noticed by the respondent court when it advised respondent Japitana to amend his complaint to conform with his evidence and from the court's admission that it was inclined to dismiss the case were it not for the complaint in intervention of respondent Doloricon. Respondent Doloricon filed his complaint for intervention on the ground that the four carabaos, subject of the writ of attachment, were actually his carabaos. Thus, the respondent court in its Order denying the petitioner's motion to dismiss, to dissolve writ of preliminary attachment and in order the return of the carabaos said:

... Antonio Doloricon manifested before this Court that he is filing a third-party complaint alleging that he is the true and lawful owner of the carabaos in questions.

IN VIEW OF ALL THE FOREGOING, this Court for the interest of both parties will not for the meantime dismiss this case. Antonio Doloricon is hereby given 10 days from receipt hereof within which to file his third-party complaint. The plaintiff who in his opposition to defendant's motion to dismiss pray (sic) for the custody of the carabaos. This Court further requires plaintiff to put up the additional bond of P I,000.00 after which the latter may be entitled of (sic) the custody of the carabaos subject of litigation pending final termination of this case. (Rollo, pp. 18-19)

The respondent court's reason for not dismissing the case is contrary to applicable precedents on the matter. We ruled in Mathay v. Consolidated Bank and Trust Company, supra:

Section I, Rule 16 of the Rules of Court, providing in part that:

Within the time for pleading a motion to dismiss may be made on any of the following grounds; ...

(g) That the complaint states no cause of action. ...

explicitly requires that the sufficiency of the complaint must be tested exclusively on the basis of the complaint itself and no other should be considered when the ground for motion to dismiss is that the complaint states no cause of action. Pursuant thereto this Court has ruled that:

As a rule the sufficiency of the complaint, when challenged in a motion to dismiss, must be determined exclusively on the basis of the facts alleged therein' (Uy Chao vs. De La Rama Steamship Co., Inc., L-14495, September 29, 1962, 6 SCRA 69, 72. See also De Jesus, et al. vs. Belarmino et al., 95 Phil. 365, 371; Dalandan, et at. vs. Julio, et al., L- 19101, February 29, 1964, 10 SCRA 400; Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 250, 254; Acuna vs. Batac Producers Cooperative Marketing Association, Inc., et al., L-20338, June 30, 1967, 20 SCRA 526, 531)

Hence, it was error for the respondent court not to dismiss the case simply because respondent Doloricon filed the complaint for intervention alleging that he owned the carabaos.

Moreover, even assuming that respondent Japitana had a legal right to the carabaos which were in the possession of petitioner Nacar, the proper procedure would not be to file an action for the recovery of the outstanding debts of the late Isabelo Nacar against his stepfather, the petitioner Nacar as defendant. As we said in Maspil v. Romero (61 SCRA 197):

Appropriate actions for the enforcement or defense of rights must be taken in accordance with procedural rules and cannot be left to the whims or caprices of litigants. It cannot even be left to the untrammeled discretion of the courts of justice without sacrificing uniformity and equality in the application and effectivity thereof.

Considering the foregoing, the respondent court's denial of the motion to dismiss the complaint and its issuance of a writ of attachment based on the allegations of the complaint are improper. With this conclusion, we find no need to discuss the other issue on whether or not the procedural rules on the issuance of a writ of attachment were followed by the respondent court in issuing the subject writ of attachment.

WHEREFORE, the petition is hereby granted. The preliminary mandatory injunction issued on January 13, 1971 is made permanent and the cash bond filed by the petitioner in connection therewith is ordered returned to him. SO ORDERED.

EN BANC

G.R. No. L-15388 January 31, 1961

DORA PERKINS ANDERSON, petitioner-appellee, vs. IDONAH SLADE PERKINS, oppositor-appellant.

Ponce Enrile, S. Reyna, Montecillo and Belo for petitioner-appellee. Lazaro A. Marquez and J. D. Quirino for oppositor-appellant.

REYES, J.B.L., J.:

Appeal against an order of the Court of First Instance of Manila in Special Proceedings No. 29636 authorizing the special administrator of the testate estate of the late Eugene Arthur Perkins to sell at public auction certain personal properties left by the deceased.

It appears that said special proceedings were commenced on May 10, 1956, by a petition presented by Dora Perkin Anderson for the probate of the supposed last will and testament of the late Eugene Arthur Perkins, who died in Manila on April 28, 1956 allegedly possessed of personal and real properties with a probable value of P5,000,000. On the same date of the filing of the aforesaid petition, petitioner Dora Perkins Anderson also filed a urgent petition for the appointment of Alfonso Ponce Enrile as special administrator of the estate, and on the same day, the court issued an order appointing Alfonso Ponce Enrile as such special administrator upon his posting of a bond in the amount of P50,000. On July 9, 1956, Idonah Slade Perkins, surviving spouse of the deceased entered an opposition to the probate of the will presented by petitioner Dora Perkins Anderson. On September 28, 1956 the special administrator submitted an inventory of all the assets which have come to his knowledge as belonging to the deceased Eugene Arthur Perkins at the time of his death.

About two years later, or on September 4, 1958, the special administrator submitted to the court a petition seeking authority to sell, or give away to some charitable or educational institution or institutions, certain personal effects left by the deceased, such as clothes, books, gadgets, electrical appliances, etc., which were allegedly deteriorating both physically and in value, in order to avoid their further deterioration and to save whatever value migh be obtained in their disposition. When the motion was heard on September 25, 1958, the court required the administrator to submit a specification of the properties sought to be sold, and in compliance therewith, the special administrator, on October 21, 1958, submitted to the court, in place of a specification, a copy of the inventory of the personal properties belonging to the estate with the items sought to be sold marked with a check in red pencil, with the statement that said items were too voluminous to enumerate.

On July 9, 1956, Idonah Slade Perkins filed an opposetion to the proposed sale. Reasons, for the opposition were that (1) most of the properties sought to be sold were conjugal properties of herself and her deceased husband; and (2) that unauthorized removal of fine pieces of furniture belonging to the estate had been made.

The opposition notwithstanding, the lower court, on December 2, 1958, approved the proposed sale, authorizing the Sheriff of Manila to conduct the same. Oppositor Idonah Slade Perkins moved to reconsider this order on the grounds (1) that said order in effect authorized the special administrator to sell the entire personal estate of the deceased, contrary to Rule 81, section 2. Rules of Court; (2) that said order was issued without a showing that the goods and chattels sought to be sold were perishable, pursuant to Rule 81, section 2, Rules of Court; (3) that the personalty sought to be sold represented the lifetime savings and collections of oppositor; (4) that there is evidence on record showing unauthorized withdrawals from the properties of the estate, and the sale of the inventoried lot would prevent identification and recovery of the articles removed; and (5) that there is also evidence showing oppositor's separate rights to a substantial part of the personal estate.

On February 23, 1959, the lower court denied the above motion for reconsideration. Whereupon, oppositor Idonah Slade Perkins appealed to this court.

Appellant first claims that the personal properties sought to be sold not being perishable, the special administrator has no legal authority to sell them. This argument is untenable, because section 2, Rule 81, of the Rules of Court, specifically provides that the special administrator "may sell such perishable and other property as the court orders sold", which shows that the special administrator's power to sell is not limited to "perishable" property only.

It is true that the function of a special administrator is only to collect and preserve the property of the deceased until a regular administrator is appointed (sec. 2, Rule 81; De Gala v. Gonzales, 53 Phil. 104; Collins v. Henry, 118 S.E. 729, 155 Ga. 886; Sqydelko v. Smith's Estate, 244 N.W. 149, 259 Mich. 519). But it is not alone the specific property of the estate which is to be preserved, but its value as well, as shown by the legal provision for the sale by a special administrator of perishable property (Cao vs. Cascade Silver Mines & Mills, et al., 213 P. 109 66 Mont. 488). It is in line with this general power of the special administrator to preserve not only the property of the estate but also its value, that section 2, Rule 81, also empowers such administrator to sell "other proerty as the court ordered sold;" .

There is, however, a serious obstacle to the proposed sale, namely, the vigorous opposition presented thereto the appellant, the surviving spouse of the deceased, on the ground that she is allegedly entitled to a large portion of the personal properties in question, either because the were conjugal property of herself and the deceased, or because they are her own, exclusive, personal property. Indeed the records show that up to the time the propose sale was asked for and judicially approved, no proceeding had as yet been taken, or even started, to segregate the alleged exclusive property of the oppositor-appellant from the mass of the estate supposedly left by the deceased or to liquidate the conjugal partnership property of the oppositor-appellant and the deceased. Until, therefore the issue of the ownership of the properties sought to be sold is heard and decided, and the conjugal partnership liquidated; or, at least, an agreement be reached with a appellant as to which properties of the conjugal partnership she would not mind being sold to preserve their value the proposed sale is clearly premature. After all, most of the items sought to be sold pieces of furniture, kitchen and dinner ware, electrical appliances, various gadget and books can easily be protected and preserved with proper care and storage measures in either or both of two residential houses (in Manila and in Baguio City left by the deceased, so that no reasons of extreme urgency justify the proposed sale at this time over the strong opposition and objection of oppositor-appellant who may later be adjudged owner of a substantial portion of the personal estate in question.

The special administrator claims in his brief that t oppositor-appellant should have indicated the alleged "fine furniture" which she did not want sold and that her refusal to do so is an indication of her unmeritorious claim. But it does not appear that appellant was given a reasonable opportunity to point out which items in the inventory she did not want sold. In fact, her opposition to the proposed sale and later her motion for reconsideration to the order approving the same were overruled by the court without so much as stating reasons why the grounds for her opposition were not well-founded; the records do not even show that an inquiry was made as to the validity of the grounds of her opposition.

WHEREFORE, the lower court's order of December 2, 1958 authorizing the special administrator to sell certain personal properties of the estate is set aside, with costs against the special administrator Alfonso Ponce Enrile and petition-appellee Dora Perkins Anderson.

G.R. No. 92436 July 26, 1991

MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-TIMBOL, ERLINDA REYES-VALERIO, ERNESTO REYES, ELIZABETH REYES, ALEX, RAFAEL II, EMELINA and EVELYN, all surnamed REYES, represented by their mother, MARIA VDA. DE REYES, petitioners, vs. THE COURT OF APPEALS AND SPOUSES DALMACIO GARDIOLA and ROSARIO MARTILLANO

respondents.

DAVIDE, JR., J.:p

Assailed before Us in this appeal by certiorari under Rule 45 of the Rules of Court is the decision of the respondent Court of Appeals in C.A.-G.R. CV No. 11934, promulgated on 20 October 1989, 1 reversing the decision of 1 October 1986 of Branch 21 (Imus, Cavite) of the Regional Trial Court of the Fourth Judicial Region in Civil Case No. RTC-BCV-83-17 entitled Maria vda. de Reyes, et al. vs. Spouses Dalmacio Gardiola and Rosario Martillano, and Spouses Ricardo M. Gardiola and Emelita Gardiola, 2 and the resolution of 1 March 1990 denying the petitioner's motion for reconsideration.

As culled from both decisions and the pleadings of the parties, the following facts have been preponderantly established:

During his lifetime, one Gavino Reyes owned a parcel of land of approximately 70 hectares, more or less, located at Sangayad, Ulong-Tubig, Carmona, Cavite. He sought to bring said land under the operation of

the Torrens System of registration of property. Unfortunately, he died in 1921 without the title having been issued to him. The application was prosecuted by his son, Marcelo Reyes, who was the administrator of his property.

In 1936 the above property was surveyed and subdivided by Gavino's heirs (Exh. "6"). In the subdivision plan, each resultant lot was earmarked, indicated for and assigned to a specific heir. It appears therein that two lots, one of which is Lot No. I A-14 (Exh. "6-A"), were allotted to Rafael Reyes, Sr., one of Gavino's children. Per testimony of Juan Poblete, the children thereafter secured tax declarations for their respective shares.

In 1941, or about twenty (20) years after the death of Gavino, the original certificate of title for the whole property OCT No. 255 was issued. It was, however, kept by Juan Poblete, son-in-law of Marcelo Reyes, who was by then already deceased. The heirs of Gavino were not aware of this fact.

On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land with an area of 23,431 square meters, more or less, to private respondent Dalmacio Gardiola (Exh. "5"). According to the vendee, this parcel corresponds to Lot No. 1-A-14 of the subdivision plan aforestated. The deed of sale, however, did not specifically mention Lot No. 1-A-14. The vendee immediately took possession of the property and started paying the land taxes therein.

In 1945 or thereabouts, Juan Poblete "revalidated" the original Certificate of Title. As reconstituted, the new title is OCT (0-4358) RO-255 (Exhs. "4" to "4-A").

On 21 October 1967, when the heirs of Gavino Reyes executed a Deed of Extrajudicial Settlement of Estate (Exh. "D") based on the aforestated subdivision plan (Exh. "6"), the lot that was intended for Rafael Reyes, Sr., who was already deceased, was instead adjudicated to his only son and heir, Rafael Reyes, Jr. (the predecessor-in-interest of the petitioners herein). Private respondent Rosario Martillano signed the deed in representation of her mother, Marta Reyes, one of the children of Gavino Reyes.

As a result of the Extrajudicial Settlement, OCT RO-255 was cancelled and in lieu thereof, several transfer certificates of title covering the subdivided lots were issued in the names of the respective adjudicatees. One of them is TCT No. 27257 in the name of Rafael Reyes, Jr. covering Lot No. 1-A-14. The Transfer Certificates of Title were, however, kept by one Candido Hebron. On 10 January 1969, some of the heirs of Gavino Reyes filed a case of Annulment of Partition and Recovery of Possession before the Court of First Instance of Cavite City, which was docketed therein as Civil Case No. 1267. One of the defendants in said case is herein private respondent Rosario Martillano. The case was dismissed on 18 September 1969, but Candido Hebron was ordered by the trial court to deliver to the heirs concerned all the transfer certificates of title in his possession. 3

After obtaining the Transfer Certificate of Title for Lot No. 1-A-14 from Hebron, pursuant to the aforesaid order in Civil Case No. 1267, petitioners herein, as successors-in-interest of Rafael Reyes, Jr., filed on 14 March 1983 with the Regional Trial Court the above-mentioned Civil Case No. RTC-BCV-83-17 against private respondents (defendants therein) for recovery of possession or, in the alternative, for indemnification, accounting and damages. They allege therein that after "having definitely discovered that they are the lawful owners of the property," (Lot No. 1-A-14), they, "including Rafael Reyes, Jr., during his lifetime, made repeated demands to (sic) defendants to surrender the possession of and vacate the parcel of

land belonging to the former, but defendants refused to vacate and surrender the possession of the said land to herein plaintiffs;" the last of the demands was allegedly made on 8 October 1982. They further allege that they have been deprived by said defendants of the rightful possession and enjoyment of the property since September 1969 which coincides with the date of the order in Civil Case No. 1267. 4

In their answer, private respondents deny the material averments in the complaint and assert that they are the owners of the lot in question, having bought the same from Rafael Reyes, Sr., that the issuance of TCT No. 27257 is null and void, for such sale was known to Rafael Reyes, Jr.; that they have been in possession of the property and have been paying the land taxes thereon; and that petitioners are barred by prescription and/or laches. 5

Petitioners amended their complaint on 21 March 1985 to implead as additional defendants the spouses Ricardo M. Gardiola and Emerita Gardiola, on the basis of the following claims:

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9. Meanwhile, during the presentation of the defendants spouses Dalmacio Gardiola and Rosario Martillano's evidence the former testified that they mortgaged the subject land to the Rural Bank of Carmona Inc. For their failure to redeem the mortgage the same was foreclosed by the bank.

10. However, within the period of one(1) year from such foreclosure the questioned land was redeemed by the original defendants' son in the person of Ricardo M. Gardiola, who was knowledgeable/aware of the pendency of the above captioned case. The corresponding redemption was effected through a deed of conveyance, . . . . 6

The prayer of the amended complaint now contains the alternative relief for indemnification for the reasonable value of the property "in the event restitution of the property is no longer possible." 7

In its decision of 1 October 1986, 8 the trial court concluded that petitioners' "title over the subject property is valid and regular and thus they are entitled to its possession and enjoyment," and accordingly decided thus:

WHEREFORE, the defendants or anyone acting for and in their behalf are hereby ordered to relinguish possession or vacate the property in question which is covered by Transfer Certificate of Title No. T-27257 in favor of the plaintiffs.

All other claims and/or counterclaims of the parties relative to this case are dismissed for lack of proper substantiation.

The conclusion of the trial court is based on its finding that (a) there is no evidence that the heirs of Gavino Reyes entered into any written agreement of partition in 1936 based on the subdivision plan; (b) there is no identity between Lot No. 1-14-A and the land sold to private respondents by Rafael Reyes, Sr., or otherwise stated, the description of the latter as indicated in the deed of sale (Exh. "5") does not tally with the description of the former; and (c) moreover:

Granting, arguendo, that the sale made by Rafael Reyes, Sr. to the defendants covered the land

in question Lot No. 1-A-14 and that Transfer Certificate of Title No. T-27257 was obtained by means of fraud, the claim of the defendants over the said property is already barred. Action for reconveyance prescribes in four (4) years from the discovery thereof. If there was fraud, the defendant could have discovered the same in 1967 when the partition was made in as much as defendant Rosario Martillano was a party to that partition. Let us grant further that the issuance of Transfer Certificate of Title No. T-27257 to Rafael Reyes, Jr. created a constructive or implied trust in favor of the defendants, again, the claim of the defendants is also barred. From 1967 to the filing of their answer (let us consider this as an action for reconveyance) to this case sometime in July, 1983, a period of about sixteen (16) years had already elapsed. Prescriptibility of an action for reconveyance based on implied or constructive trust is ten (10) years.

The trial court further held that the continued possession by private respondents, which it found to have started in 1943, did not ripen into ownership because at that time, the property was already registered, hence it cannot be acquired by prescription or adverse possession. 9

Private respondents appealed the said decision to the Court of Appeals which docketed the appeal as C.A.-G.R. CV No. 11934. In its decision of 20 October 1989, the respondent Court of Appeals formulated the issues before it as follows:

I

Whether or not the lower court erred in declaring that the property of the late Gavino Reyes consisting of 70 hectares was partitioned only in 1967 by his grandchildren after discovery of the existence of OCT No. 255 and that no actual partition was made in 1936 by the decedent's children.

II

Whether or not the lower court erred in concluding that the parcel of land sold by the appellees' predecessor-in-interest, the late Rafael Reyes, Sr. to appellant Dalmacio Gardiola was not the same parcel of land under litigation. 10

and resolved such issues, thus:

On the first issue, We believe that the lower court committed a reversible error when it declared that the landed estate of the late Gavino Reyes was partitioned only in 1967 by the latter's grandchildren; and that no actual partition was made in 1936 by the decedents' (sic) children. The evidence on record bears out the existence of a subdivision plan (Exh. 6) which was not controverted nor denied by the appellees. In like manner, the lower court itself recognized the fact that the property of the late Gavino Reyes consisting of 70 hectares was surveyed and subdivided in 1936 as evidenced by the said subdivision plan (Exh. 6). With the existence of a subdivision plan, and from the uncontroverted testimony of appellants' witness, We can only infer that at least an oral partition, which under the law is valid and

binding, was entered into by the heirs of Gavino Reyes regarding his properties in 1936. As held in a long line of decisions, extrajudicial partition can be done orally, and the same would be valid if freely entered into (Belen v. Belen, 49 O.G. 997, March 1953). The reason for this is because a partition is not exactly a conveyance for the reason that it does not involve transfer of property from one to the other but rather a confirmation by them of their ownership of the property. It must also be remembered that when Gavino Reyes died on March 7, 1921, his property was admittedly not yet covered by a torrens title, as it was only in 1941 when said properties were brought into the application of the torrens system. With this factual milieu, it can also be concluded that his heirs have indeed settled, subdivided and partitioned Gavino Reyes' landed estate without formal requirements of Rule 74 of the Rules of Court when a parcel of land is covered by a torrens title. As told earlier, the Subdivision Plan (Exh. 6) undisputedly showed on its face that the 70 hectares of land belonging to the late Gavino Reyes was subdivided and partitioned by his children in 1936. On this score, the partition of the said property even without the formal requirements under the rule is valid as held in the case of Hernandez vs. Andal, 78 Phil. 176, which states:

xxx xxx xxx

Moreover, in the Deed of Sale dated December 3, 1943 (Exh. 5) executed by Rafael Reyes, Sr. in favor of appellant Dalmacio Gardiola, the land sold therein was described as "na aking minana sa aking ama." This alone would confirm the contention of the appellants that there was already an actual partition (at least an oral partition) of the property of Gavino Reyes in 1936. As aforestated, the presence of the Subdivision Plan (Exh. 6) is an (sic) evidence of such

partition which appellees failed to controvert not to mention the fact that the lower court itself recognized the existence of said plan, in the same manner that it concluded that the property was already surveyed and actually subdivided in 1936 (page 3, pars. 3 and 4, Decision).

From the foregoing considerations it is evident that the Deed of Extrajudicial Settlement of Estate (Exh. D) executed by the grandchildren of the late Gavino Reyes in 1967 is of no moment considering that the property subject of the partition in the deed was already partitioned in 1936 by the children of Gavino Reyes. It is for this reason that the lots supposedly inherited by the grandchildren named in the deed of 1967 were the same lots inherited and given to their respective fathers or mothers in 1936 while the land was not yet covered by the torrens system. Hence, in the case of Rafael Reyes, Sr., the land inherited by him was two (2) parcels of land known as Lots Nos. 1-A-3 and 1-A-14 described in the Subdivision plan of 1936 (Exh. 6), which were the same parcels of land allegedly inherited by Rafael Reyes, Jr. from Gavino Reyes in representation of his father, pursuant to the Deed of Extrajudicial Settlement of Estate for which TCT No. 27257 was issued.

Coming to the second issue, the lower court likewise erred when it concluded that the parcel of land sold by appellee's predecessor-in-interest to appellant Dalmacio Gardiola was not the same parcel of land under litigation. It must be pointed out that the identity of the parcel of land which the appellees sought to recover from the appellants was never an issue in the lower court, because the litigants had already conceded that the parcel identified as Lot No. 1-A-14 in TCT No. 27257 was the same parcel of land identified as Cadastral Lot No. 1228 and 1235 described in Tax Declaration No. 4766. Despite this admission, however, the lower court declared that "as described in the deed of sale (Exh. 5), the land's description does not tally with the description of Lot No. 1-A-14, the land in litigation." As correctly pointed out by the appellants however, the discrepancy in the description was due to the fact that the description of the land sold in the Deed of Sale was expressed in layman's language whereas the description of Lot No. 1-A-14 in TCT No. 27257 was done in technical terms. This was so because, when Rafael Reyes, Sr. sold the property in dispute to appellant Dalmacio Gardiola on December 3, 1943, the only evidence of title to the land then available in so far as Rafael Reyes, Sr. was concerned was Tax Declaration No. 4766, because at that time, neither he nor appellant Dalmacio Gardiola was aware of the existence of OCT No. 255 as in fact TCT No. 27257 was issued only in 1967. Consequently, the land subject of the Deed of Sale was described by the vendor in the manner as described in Tax Declaration No. 4766. However, the description of the land appearing in the Deed of Sale (Exh. 5) was exactly the same land identified as Lot No. 1-A-14 in the Subdivision Plan (Exh. 6) of 1936. Accordingly, the assumption of the lower court that "if the land sold by Rafael Reyes, Sr. was the one now in litigation, he could have easily indicated Lot No. 1-A-14" is bereft of merit under the foregoing circumstances. Interestingly enough, the appellees never denied the identity of the subject lot during the hearing at the lower court. What they were denying only was the sale

made by Rafael Reyes, Sr. to appellant Dalmacio Gardiola which does not hold true because of the document denominated as Deed of Sale (Exh. 5). 11

It concluded that the trial court erred when it ordered the private respondents or anyone acting in their behalf to relinquish the possession or vacate the property in question. It thus decreed:

WHEREFORE, the appealed Judgment is ordered REVERSED and SET ASIDE and a new one is rendered declaring appellants to be the lawful owners of the lot identified as Lot No. 1-A-14 in TCT No. 27257. No costs. 12

Their motion to reconsider the above decision having been denied by the Court of Appeals in its resolution of 1 March 1990, 13 petitioners filed the instant petition on 6 April 1990 after having obtained an extension of time within which to file it.

The petition does not implead original new defendants Ricardo Gardiola and Emelita Gardiola.

As ground for their plea for the review of the decision of the Court of Appeals, petitioners allege that said court has decided questions of substance in a way not in accord with law or applicable jurisprudence when it held that "the deed of extrajudicial settlement of estate (Exh. "D") executed by the grandchildren of the late Gavino Reyes in 1967 is of no moment considering that the property subject of the partition was already partitioned in 1936 by the children of Gavino Reyes." In support thereof, they claim that (a) TCT No. 27257 covers two parcels of land; the lot described in paragraph 1 thereof is owned by petitioners and that ownership was confirmed by this Court in G.R. No. 79882, hence, the Court of Appeals should have affirmed the decision of the trial court; (b) private respondent Rosario Martillano was a party to the extrajudicial settlement of estate which was duly registered in the Registry of Deeds in 1967; said registration is the operative act that gives validity to the transfer or creates a lien upon the land and also constituted constructive notice to the whole world. The court cannot disregard the binding effect thereof Finally, the pronouncement of the Court of Appeals that private respondents are the lawful owners of the lot in question "militates against the indefeasible and incontrovertible character of the torrens title," 14 and allows reconveyance which is not tenable since the action therefor had already prescribed, as stated in the decision of the trial court.

In the resolution of 7 May 1990, We required respondents to comment on the petition. But even before it could do so, petitioner, without obtaining prior leave of the Court, filed on 29 May 1990 a so-called Supplemental Arguments in Support of The Petition For Review On certiorari 15 wherein they assert, among others, that: (a) the findings of facts of respondent Court are contrary to those of the trial court and appear to be contradicted by the evidence on record thus calling for the review by this Court; 16 (b) it also committed misapprehension of the facts in this case and its findings are based on speculation, conjecture and surmises; (c) private respondents' attack on petitioners' title is a collateral attack which is not allowed; even if it is allowed, the same had already prescribed and is now barred.

It was only on 15 June 1990 that private respondents filed their Comment. 17 We required petitioners to reply thereto, which they complied with on 8 August 1990. 18 A rejoinder was filed by private respondents on 29 August 1990.

We gave due course to the petition on 19 September 1990 and required the parties to submit simultaneously their respective memoranda which they complied with.

Attached as Annex "A" to private respondent's Memorandum, which was filed on 10 December 1990, is the Resolution of this Court (Third Division) of 20 August 1990 in G.R. No. 92811 entitled Spouses Artemio Durumpili and Angustia Reyes vs. The Court of Appeals and Spouses Dalmacio Gardiola and Rosario Martillano, which also involves the property of Gavino Reyes, the partition thereof among his children in 1936, and the extrajudicial settlement in 1967.

In said resolution, this Court held:

. . . The partition made in 1936, although oral, was valid. The requirement in Article 1358 of the Civil Code that acts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property must appear in a public instrument is only for convenience and not for validity or enforceability as between the parties themselves. [Thunga Hui vs. Que Bentec, 2 Phil. 561 (1903)] The subsequent execution by the heirs of the Extrajudicial Partition in 1967 did not alter the oral partition as in fact the share pertaining to Angustia Reyes corresponded to that previously assigned to her father. Considering that Angel Reyes sold this property to Basilio de Ocampo who, in turn, sold the same to respondents, we agree with the Court of Appeals that the latter lawfully acquired the property and are entitled to ownership and possession thereof.

In answer to the charge of private respondents that petitioners deliberately failed to cite this resolution, the latter, in their reply-memorandum dated 15 March 1991 and filed three days thereafter, allege:

Our failure to mention the aforementioned resolution before this Honorable Court is not deliberate nor with malice aforethought. The reason is that to date, we have not yet received any resolution to our Motion For Leave of Court To Refer Case To The Honorable Supreme Court En Banc. Moreover, we honestly feel that the resolution that will be issued therein will not be applicable to the case before this Honorable Court's Second Division. It should be mentioned that in the Durumpili case before the Third Division, the Court of Appeals relied on the alleged confirmation of the sale executed by Angustia Reyes, while in the Reyes case before this Second Division, there was no sale that was executed by the petitioners Reyes' predecessor-in-interest, Rafael Reyes, Jr.

The foregoing claim is not supported by the rollo of G.R. No. 92811, which reveals the following: (a) On 18 September 1990, petitioners therein, represented by De Lara, De Lunas and Rosales, who are the lawyers of

petitioners in the instant case, filed a motion for the reconsideration of the resolution of 20 August 1990. 19 b) This motion was denied in the resolution of 1 October 1990. 20 c) On 17 November 1990, petitioners therein, through the same lawyers, filed a Motion For Leave Of Court To Refer Case To The Honorable Supreme Court En Banc And/Or Motion For Reconsideration 21 wherein they specifically admit that said case and the instant petition have "identity and/or similarity of the parties, the facts, the issues raised," even going to the extent of "graphically" illustrating where such similarities lie. 22 d) This motion was denied in the resolution of 28 November 1990. Copy thereof was furnished the attorneys for petitioners. 23 e) Entry of judgment had already been made therein and a copy thereof was sent to petitioner's counsel per Letter of Transmittal of the Deputy Court and Chief of the Judicial Records Office dated 20 December 1990.

What comes out prominently from the disquisitions of the parties is this simple issue: whether or not respondent Court of Appeals committed any reversible error in setting aside the decision of the trial court.

We find none. The reversal of the trial court's decision is inevitable and unavoidable because the legal and factual conclusions made by the trial court are unfounded and clearly erroneous. The Court of Appeals was not bound to agree to such conclusions. The trial court erred in holding that: (a) there was no partition among the children of Gavino Reyes in 1936 since there is no written evidence in support thereof; yet, it admits that there was a survey and subdivision of the property and the adjudication of specific subdivision lots to each of the children of Gavino; (b) the land sold by Rafael Reyes, Sr. to private respondents is not identical to Lot No. 1-A-14, the lot specified for and adjudicated to Rafael Reyes, Jr. in the partition agreement; and (c) if the land sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is indeed Lot No. 1-A-14 and that TCT No. T-27257 was obtained through fraud, the remedy open to the vendee was an action for reconveyance, which should have been brought within four (4) years from the discovery thereof in 1967 when the Extrajudicial Settlement was executed since private respondent Rosario Martillano, wife of Dalmacio, was a party thereto.

The Court of Appeals correctly held that the partition made by the children of Gavino Reyes in 1936, although oral, was valid and binding. There is no law that requires partition among heirs to be in writing to be valid. 24 In Hernandez vs. Andal, supra, this Court, interpreting Section 1 of Rule 74 of the Rules of Court, held that the requirement that a partition be put in a public document and registered has for its purpose the protection of creditors and at the same time the protection of the heirs themselves against tardy claims. The object of registration is to serve as constructive notice to others. It follows then that the intrinsic validity of partition not executed with the prescribed formalities does not come into play when there are no creditors or the rights of creditors are not affected. Where no such rights are involved, it is competent for the heirs of an estate to enter into an agreement for distribution in a manner and upon a plan different from those provided by law. There is nothing in said section from which it can be inferred that a writing or other formality is an essential requisite to the validity of the partition. Accordingly, an oral partition is valid.

Barcelona, et al. vs. Barcelona, et al., supra, provides the reason why oral partition is valid and why it is not covered by the Statute of Frauds: partition among heirs or renunciation of an inheritance by some of them is not exactly a conveyance of real property for the reason that it does not involve transfer of property from one to the other, but rather a confirmation or ratification of title or right of property by the heir renouncing in favor of another heir accepting and receiving the inheritance.

Additionally, the validity of such oral partition in 1936 has been expressly sustained by this Court in the Resolution of 20 August 1990 in G.R. No. 92811. 25

But even if We are to assume arguendo that the oral partition executed in 1936 was not valid for some reason or another, We would still arrive at the same conclusion for upon the death of Gavino Reyes in 1921, his heirs automatically became co-owners of his 70-hectare parcel of land. The rights to the succession are transmitted from the moment of death of the decedent. 26 The estate of the decedent would then be held in

co-ownership by the heirs. The co-heir or co-owner may validly dispose of his share or interest in the property subject to the condition that the portion disposed of is eventually allotted to him in the division upon termination of the co-ownership. Article 493 of the Civil Code provides:

Each co-owner shall have the full ownership of his part and the fruits and benefits pertaining thereto, and he may even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.

In Ramirez vs. Bautista, 27 this Court held that every co-heir has the absolute ownership of his share in the community property and may alienate, assign, or mortgage the same, except as to purely personal rights, but the effect of any such transfer is limited to the portion which may be awarded to him upon the partition of the property.

In the case at bar, the lot sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is his share in the estate of his deceased father, Gavino Reyes. It is the same property which was eventually adjudicated to his son and heir, Rafael Reyes, Jr., represented in turn by his heirs-petitioners herein-in the extrajudicial settlement of 1967.

In respect to the issue as to whether the property sold by Rafael Reyes, Sr. is identical to Lot No. 1-14-A, the trial court based its conclusion that it is not, on his observation that the description of the former does not tally with that of the latter, moreover, if Rafael did intend to sell Lot No. 1-14-A, he should have specifically stated it in the deed since at that time, the property had already been partitioned and said lot was adjudicated to him. In addition to the contrary findings and conclusion of the respondent Court on this issue to which We fully agree, it is to be stressed that Rafael had this property declared for taxation purposes and the tax declaration issued was made the basis for the description of the property in the deed of sale. Upon the execution of the deed of sale, vendee herein private respondent Dalmacio Gardiola immediately took possession of the property. This is the very same property which is the subject matter of this case and which petitioners seek to recover from the private respondents. The main evidence adduced for their claim of ownership and possession over it is TCT No. T-27257, the certificate of title covering Lot No. 1-14-A. They therefore admit and concede that the property claimed by private respondent, which was acquired by sale from Rafael Reyes, Sr., is none other than Lot No. 1-14-A.

The participation of private respondent Rosario Gardiola in the Extrajudicial Settlement did not place private respondents in estoppel to question the issuance of TCT No. T-27257. As correctly maintained by private respondents, she signed it in representation of her deceased mother, Marta Reyes, a daughter and an heir of Gavino Reyes. She did not sign for and in behalf of her husband, Dalmacio Gardiola, vendee of the share of Rafael Reyes, Sr.

The same did not operate to divest the vendee of the share of Rafael Reyes, Sr. in the estate of Gavino. Petitioners, as mere successors-in-interest of Rafael Reyes, Jr., son of Rafael Reyes, Sr., can only acquire that which Rafael, Jr. could transmit to them upon his death. The latter never became the owner of Lot No. 1-A-14 because it was sold by his father in 1943. The issuance of TCT No. T-27257 in the name of Rafael Reyes, Jr., in so far as Lot No. 1-14-A is concerned, was clearly erroneous because he never became its owner. An extrajudicial settlement does not create a light in favor of an heir. As this Court stated in the Barcelona case, 28 it is but a confirmation or ratification of title or right to property. Thus, since he never had any title or right to Lot No. 1-14-A, the mere execution of the settlement did not improve his condition, and the subsequent registration of the deed did not create any right or vest any title over the property in favor of the petitioners as heirs of Rafael Reyes, Jr. The latter cannot give them what he never had before. Nemo dare potest quod non habet.

There is one more point that should be stressed here. Petitioners' immediate predecessor-in-interest, Rafael Reyes, Jr., never took any action against private respondents from the time his father sold the lot to the latter. Neither did petitioners bring any action to recover from private respondents the ownership and possession of the lot from the time Rafael Reyes, Jr. died. As categorically admitted by petitioners in their complaint and amended complaint, it was only in or about September 1969 when, after the delivery of TCT No. 27257 by Candido Hebron to them, that they definitely discovered that they were the owners of the property in question. And yet, despite full knowledge that private respondents were in actual physical possession of the property, it was only about thirteen and one-half (13 1/2) years later that they decided to file an action for recovery of possession. As stated earlier, the original complaint was filed in the trial court on 14 March 1983. There was then absolutely no basis for the trial court to place the burden on private respondents to bring an action for reconveyance within four (4) years from their discovery of the issuance of the transfer certificate of title in the name of Rafael Reyes, Jr.

The instant petition then is without merit.

WHEREFORE, judgment is hereby rendered DENYING the petition with costs against petitioners. SO ORDERED.

[G.R. No. 94918. September 2, 1992.]

DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE LEON and REGINIO I. SUAREZ, Petitioners, v. THE COURT OF APPEALS, VALENTE

RAYMUNDO, VIOLETA RAYMUNDO, MA. CONCEPCION VITO and VIRGINIA BANTA, Respondents.

Villareal Law Offices, for Petitioners.

Nelson Loyola for Private Respondent.

SYLLABUS

1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME; PROPRIETARY INTEREST OF THE CHILDREN, DIFFERENT AND ADVERSE FROM THEIR MOTHER. The legitime of the surviving spouse is equal to the legitime of each child. The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of their mother but through their own right as children of their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest.

D E C I S I O N

NOCON, J.:

The ultimate issue before Us is whether or not private respondents can validly acquire all the five (5) parcels of land co-owned by petitioners and registered in the name of petitioners deceased father. Marcelo Suarez, whose estate has not been partitioned or liquidated, after the said properties were levied and publicly sold en masse to private respondents to satisfy the personal judgment debt of Teofista Suarez, the surviving spouse of Marcelo Suarez, mother of herein petitioners.chanrobles law library The undisputed facts of the case are as follows:chanrob1es virtual 1aw library Herein petitioners are brothers and sisters. Their father died in 1955 and since then his estate consisting of several valuable parcels of land in Pasig, Metro Manila has lot been liquidated or partitioned. In 1977, petitioners widowed mother and Rizal Realty Corporation lost in the consolidated cases for rescission of

contract and for damages, and were ordered by Branch 1 of the then Court of First Instance of Rizal (now Branch 151, RTC of Pasig) to pay, jointly and severally, herein respondents the aggregate principal amount of about P70,000 as damages. 1 The judgment against petitioners mother and Rizal Realty Corporation having become final and executory,

five (5) valuable parcel of land in Pasig, Metro Manila, (worth to be millions then) were levied and sold on execution on June 24, 1983 in favor of the private respondents as the highest bidder for the amount of P94,170.000. Private respondents were then issued a certificate of sale which was subsequently registered or August 1, 1983. On June 21, 1984 before the expiration of the redemption period, petitioners filed a reinvindicatory action 2 against private respondents and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case No. 51203, for the annulment of the auction sale and the recovery of the ownership of the levied pieces of property. Therein, they alleged, among others, that being strangers to the case decided against their mother, they cannot be held liable therefor and that the five (5) parcels of land, of which they are co-owners, can neither be levied nor sold on execution. On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a final deed of sale 3 over the properties.

On October 22, 1984, Teofista Suarez joined by herein petitioners filed with Branch 151 a Motion for Reconsideration 4 of the Order dated October 10, 1984, claiming that the parcels of land are co-owned by them and further informing the Court the filing and pendency of an action to annul the auction sale (Civil Case No. 51203), which motion however, was denied.chanrobles.com:cralaw:red On February 25, 1985, a writ of preliminary injunction was issued enjoining private respondents from transferring to third parties the levied parcels of land based on the finding that the auctioned lands are co-owned by petitioners. On March 1, 1985, private respondent Valente Raymundo filed in Civil Case No. 51203 a Motion to Dismiss for failure on the part of the petitioners to prosecute, however, such motion was later denied by Branch 155, Regional Trial Court, Pasig. On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte Motion to Dismiss complaint for failure to prosecute. This was granted by Branch 155 through an Order dated May 29, 1986, notwithstanding petitioners pending motion for the issuance of alias summons to be served upon the other defendants in the

said case. A motion for reconsideration was filed but was later denied. On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-21739 an Order directing Teofista Suarez and all persons claiming right under her to vacate the lots subject of the judicial sale; to desist from removing or alienating improvements thereon; and to surrender to private respondents the owners duplicate copy of the torrens title and other pertinent documents. Teofista Suarez then filed with the then Court of Appeals a petition for certiorari to annul the Orders of Branch 151 dated October 10, 1984 and October 14, 1986 issued in Civil Case Nos. 21736-21739. On December 4, 1986 petitioners filed with Branch 155 a Motion for reconsideration of the Order 5 dated September 24, 1986. In an Order dated June 10, 1987, 6 Branch 155 lifted its previous order of dismissal and directed the issuance of alias summons.chanrobles law library : red Respondents then appealed to the Court of Appeals seeking to annul the orders dated February 25, 1985, 7 May 19, 1989 8 and February 26, 1990 9 issued in Civil Case No. 51203 and further ordering respondent Judge to dismiss Civil Case No. 51203. The appellate court rendered its decision on July 27, 1990, 10 the dispositive portion of which reads:jgc:chanrobles.com.ph "WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby annulled, further respondent Judge is ordered to dismiss Civil Case No. 51203." 11 Hence, this appeal. Even without touching on the incidents and issues raised by both petitioner and private respondents and the developments subsequent to the filing of the complaint, We cannot but notice the glaring error committed by the trial court. It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of land should have been the subject of the auction sale. The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case. "The rights to the succession are transmitted from the moment of the death of the decedent."cralaw virtua1aw library Article 888 further provides:chanrobles.com.ph : virtual law library "The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the

surviving spouse as hereinafter provided."cralaw virtua1aw library Article 892 par. 2 likewise provides:jgc:chanrobles.com.ph "If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants."cralaw virtua1aw library Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child. The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of their mother but through their own right as children of their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest. WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion. SO ORDERED.

G.R. No. 116018 November 13, 1996

NELIA A. CONSTANTINO, petitioner, vs. COURT OF APPEALS, AURORA S. ROQUE, PRISCILLA S. LUNA and JOSEFINA S. AUSTRIA, respondents.

BELLOSILLO, J.:

JOSEFA TORRES died intestate leaving a parcel of land located at Balagtas, Bulacan. Among her heirs are respondents Aurora S. Roque, Priscilla S. Luna and Josefina S. Austria. Sometime in 1984, the heirs of Josefa Torres, as vendors, and petitioner Nelia A. Constantino, as vendee, entered into a contract to sell a parcel of land with a total land area of two hundred and fifty (250) square meters. The lot, owned in common by the Torres heirs, is being occupied by petitioners' mother and sister. An adjoining lot, also co-owned by the heirs, is being occupied by spouses Severino and Consuelo Lim. Pursuant to their agreement, the heirs authorized petitioner to prepare the necessary Deed of Extrajudicial Settlement of Estate with Sale.

After having the document drafted with several spaces left blank including the specification as to the metes and bounds of the land petitioner asked the heirs to affix their signatures on the document. The heirs signed the document with the understanding that respondent Aurora S. Roque, one of the heirs, would be present when the latter would seek permission from the Bureau of Lands and have the land surveyed.

However, without the participation of any of the Torres heirs, the property was subsequently surveyed, subdivided and then covered by TCT Nos. T-292265 and T-292266. Petitioner did not furnish the heirs with copies of the Deed of Extrajudicial Settlement of Estate with Sale nor of the subdivision plan and the certificates of title. Upon securing a copy of the deed from the Registry of Deeds, the respondents learned that the area of the property purportedly sold to petitioner was much bigger than that agreed upon by the parties. It already included the portion being occupied by the spouses Severino and Consuelo Lim.

On 2 June 1986, private respondents sent a letter to petitioner demanding the surrender to them of the deed of settlement and conveyance, the subdivision plan and the certificates of title; but to no avail. On 25 June 1986 respondents filed with the Regional Trial Court of Bulacan an action for annulment of the deed and cancellation of the certificates of title, with prayer for recovery of damages, attorney's fees and costs of suit. 1

Petitioner controverted the allegations of respondents by presenting the Deed of Extrajudicial Settlement of Estate with Sale dated 10 October 1984 wherein respondents agreed to divide and adjudicate among themselves the inherited property with an area of one thousand five hundred and three (1,503) square meters. In the same document, they caused the subdivision of the property into two (2) lots according to Plan No. PSD-03-009105 identified as Lot 4-A with an area of one thousand ninety-six (1,096) square meters, and Lot 4-B with an area of four hundred and seven (407) square meters, and acknowledged the sale to petitioner of said Lot 4-B. As a consequence, on 18 March 1985, the Register of Deeds issued TCT No. T-292265 in the name of the heirs of Josefa Torres and TCT No. T-292266 in the name of petitioner.

In reply, private respondents reiterated that all the heirs signed the document before the land was surveyed and subdivided, hence, there was as yet no definite area to be sold that could be indicated in the deed at the time of the signing. They also claimed that they were not notified about the survey and the subdivision of

the lot and therefore they could not have agreed on the area supposedly sold to petitioner. The respondent heirs insist that they could not have agreed to the extent of the area actually reflected in the deed because it included the portion being occupied by the Lim spouses, which was already the subject of a previous agreement to sell between them and their predecessor.

The trial court entertained serious doubts with respect to the preparation and due execution of the Deed of Extrajudicial Settlement of Estate with Sale taking into account that (a) while petitioner claimed that all the heirs signed before the notary public and in her presence, she was not able to enumerate all the signatories to the document; (b) while petitioner claimed that the document was signed only after the survey of the land was completed, or on 10 October 1984, such fact was negated by her own witness who testified that the survey was conducted only on 16 October 1984; and, (c) while petitioner alleged that the document was signed and notarized in Manila no explanation was offered why the same could not have been signed and notarized in Bulacan where notaries public abound which could have been less inconvenient to the parties concerned. Additionally, the trial court relied heavily on the assertions of respondents as reflected in their demand letter that they did not give their consent to the sale of Lot 4-B.

Thus, on the basis of the evidence on record, the trial court on 27 September 1990 ordered the annulment and cancellation of the Deed of Extrajudicial Settlement of Estate with Sale, TCT Nos. T-292265 and T-292266 and Subdivision Plan No. PSD-03-009105. It also ordered petitioner to pay private respondents P50,000.00 for moral damages, P15,000.00 for attorney's fees, and to pay the costs of suit. 2

On 16 March 1994 respondent Court of Appeals sustained the decision of the trial court, 3 and on 20 June 1994 denied the motion to reconsider its decision. 4

Petitioner faults respondent Court of Appeals: (a) for disregarding documentary evidence already presented, marked and identified on a purely technical ground, and (b) for concluding that the Deed of Extrajudicial Settlement of Estate with Sale did not reflect the true intent of the parties.

Petitioner argues that the trial court should not have denied her motion to admit formal offer of evidence merely on the basis of technicality such as late filing, citing Siguenza v. Court of Appeals. 5 We are not persuaded. Indeed, we held in Siguenza that rules of procedure are not to be applied in a very rigid and

technical sense as they are used only to help secure, not override, substantial justice. Yet the holding is inapplicable to the present case as the trial court had a reasonable basis for denying petitioner's motion

On February 6, 1990, Atty. Ponciano Mercado, defendant's counsel, manifested in Court that he has (sic) no more witness to present. He asked that he be given 15 days to make a formal offer of evidence and which the Court granted. At the scheduled hearing of April 03, 1990, Atty. Ponciano Mercado . . . . was not in Court. Atty. Veneracion, plaintiffs' counsel, called the attention of the Court that Atty. Mercado has (sic) not yet filed and/or complied with the

Court Order dated February 06, 1990, which is to file his formal offer of evidence. On motion of Atty. Veneracion, defendant's right to file a formal offer of evidence was deemed waived. Atty. Veneracion waived the presentation of rebuttal evidence considering that the defendant can (sic) no longer make a formal offer of evidence.

On May 11, 1990, the Court was in receipt of a motion to admit formal offer of exhibits filed by the defendant thru counsel, Atty. Ponciano Mercado, on May 02, 1990. Considering that the same was filed out of time and the plaintiffs having filed their memorandum already, the motion to admit formal offer of exhibits was denied (emphasis supplied).

The trial court was correct in holding that petitioner waived the right to formally offer his evidence. A considerable lapse of time, about three (3) months, had already passed before petitioner's counsel made effort to formally offer his evidence. For the trial court to grant petitioner's motion to admit her exhibits would be to condone an inexcusable laxity if not non-compliance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice.

Petitioner also insists that the real intent of the parties was to make the entire Lot 4-B the subject matter of the sale. She claims that during cross-examination respondent Aurora S. Roque admitted that she signed in behalf of her co-heirs a receipt for P30,000.00 as partial payment for the lot occupied by Ka Baring and Lina (relatives of petitioner) and Iling (Consuelo Lim). Moreover, according to petitioner, the assertions of private respondents to petitioner contained in the demand letter should not necessarily be true and that the validity of the Deed of Extrajudicial Settlement of Estate with Sale was not affected by the fact that it was notarized in a place other than where the subject matter thereof was situated, citing Sales v. Court of Appeals. 6

These other arguments of petitioner are barren and futile. The admission of respondent Roque cannot prevail in the face of the clear evidence that there was as yet no meeting of the minds on the land area to be sold since private respondents were still awaiting the survey to be conducted on the premises. Obviously, the trial court only lent credence to the assertions in the demand letter after having weighed the respective

evidence of the parties. But even without the letter, the evidence of respondents had already amply substantiated their claims.

We ruled in the Sales case that the extrinsic validity of a document was not affected by the fact that it was notarized in a place other than where the subject matter thereof was located. What is more important under the Notarial Law is that the notary public has authority to acknowledge the document executed within his territorial jurisdiction. The ruling in Sales is not applicable to the present case. Our concern here is not whether the notary public had the authority to acknowledge the document executed within his territorial jurisdiction but whether respondents indeed appeared before him and signed the deed. However, the quantum of evidence shows that they did not.

The trial court correctly appreciated the fact that the deed was notarized in Manila when it could have been notarized in Bulacan. This additional detail casts doubt on the procedural regularity in the preparation, execution and signing of the deed. It is not easy to believe that petitioner and the ten (10) Torres heirs traveled all the way to Manila to have their questioned document notarized considering that they, with the exception of respondent Roque, are residents of Balagtas, Bulacan, where notaries public are easy to find. Consequently, the claim of private respondents that they did not sign the document before a notary public is more plausible than petitioner's feeble claim to the contrary.

Likewise, we find the allegation of respondents that they signed the deed prior to the survey, or before determination of the area to be sold, worthy of credit as against the contention of petitioner that they signed after the survey or on 10 October 1984. As found by the trial court, such contention was contradicted by petitioner's own witness who positively asserted in court that the survey was conducted only on 16 October 1984 or six (6) days after the signing. Quite obviously, when respondents affixed their signatures on the deed, it was still incomplete since petitioner who caused it to be prepared left several spaces blank, more particularly as regards the dimensions of the property to be sold. The heirs were persuaded to sign the document only upon the assurance of petitioner that respondent Roque, pursuant to their understanding, would be present when the property would be surveyed after obtaining permission from the Bureau of Lands. As it surfaced, the supposed understanding was merely a ruse of petitioner to induce respondents to sign the deed without which the latter would not have given their conformity thereto. 7 Apparently, petitioner deceived respondents by filling the blank spaces in the deed, having the lots surveyed and subdivided, and then causing the issuance of transfer certificates of title without their knowledge, much less consent. Thus all the elements of fraud vitiating consent for purposes of annulling a contract concur: (a) It was employed by a contracting party upon the other; (b) It induced the other party to enter into the contract; (c) It was serious; and, (d) It resulted in damages and injury to the party seeking annulment. 8

Perhaps, another compelling reason for the annulment of the document of settlement and conveyance is that the second page thereof clearly manifests that the number of the subdivision plan and the respective areas of Lots 4-A and 4-B were merely handwritten while all the rest of the statements therein were typewritten, which leads us to the conclusion that handwritten figures thereon were not available at the time the document was formalized.

WHEREFORE, their being no error to warrant a reversal of the decision and resolution in question of respondent Court of Appeals, which affirmed the decision of the Regional Trial Court of Malolos, Bulacan, Br. 22, the instant petition is DENIED.

SO ORDERED.

G.R. No. 124320 March 2, 1999

HEIRS OF GUIDO YAPTINCHAY AND ISABEL YAPTINCHAY, NAMELY: LETICIA ENCISO-GADINGAN, EMILIO ENCISO, AURORA ENCISO, AND NORBERTO ENCISO, REPRESENTED BY LETICIA ENCISO-GADINGAN, ATTORNEY-IN-FACT, petitioners, vs. HON. ROY S. DEL ROSARIO, PRESIDING JUDGE, RTC, BRANCH 21, IMUS, CAVITE; THE REGISTER OF DEEDS FOR TRECE MARTIRES CITY, GEORGE T. CHUA, SPS. ALFONSO NG AND ANNABELLE CHUA, SPS. ROSENDO L. DY AND DIANA DY, SPS. ALEXANDER NG AND CRISTINA NG, SPS. SAMUEL MADRID AND BELEN MADRID, SPS. JOSE MADRID AND BERNARDA MADRID, SPS. DAVID MADRID AND VIOLETA MADRID, JONATHAN NG, SPS. VICTORIANO CHAN, JR. AND CARMELITA CHAN, SPS. MARIE TES C. LEE AND GREGORIE W.C. LEE, JACINTO NG, JR., SPS. ADELAIDO S. DE GUZMAN AND ROSITA C. DE GUZMAN, SPS. RICARDO G. ONG AND JULIE LIM-IT, SPS. MISAEL ADELAIDA P. SOLIMAN AND FERDINAND SOLIMAN, SPS. MYLENE T. LIM AND ARTHUR LIM, EVELYN K. CHUA, GOLDEN BAY REALTY AND DEVELOPMENT CORPORATION, respondents.

PURISIMA, J.:

At bar is a Petition for Certiorari under Rule 65 of the Revised Rules of Court assailing the Orders dated October 25, 1995 and February 23, 1996, respectively, of Branch 21 of the Regional Trial Court in Imus, Cavite ("RTC").

The facts that matter are, as follows:

Petitioners claim that they are the legal heirs of the late Guido and Isabel Yaptinchay, the owners-claimants of Lot No. 1131 with an area of 520,638 and Lot No. 1132 with an area of 96,235 square meters, more or less situated in Bancal, Carmona, Cavite.

On March 17, 1994, petitioners executed an Extra-Judicial Settlement of the estate of the deceased Guido and Isabel Yaptinchay.

On August 26, 1994, petitioners discovered that a portion, if not all, of the aforesaid properties were titled in the name of respondent Golden Bay Realty and Development Corporation ("Golden Bay") under Transfer Certificate of Title Nos. ("TCT") 225254 and 225255. With the discovery of what happened to subject parcels of land, petitioners filed a complaint for ANNULMENT and/or DECLARATION OF NULLITY OF TCT NO. 493363, 493364, 493665, 493366, 493367; and its Derivatives; As Alternative Reconveyance of Realty WITH A PRAYER FOR A WRIT OF PRELIMINARY INJUNCTION and/or RESTRAINING ORDER WITH DAMAGES, docketed as RTC BCV-94-127 before Branch 21 of the Regional Trial Court in Imus, Cavite.

Upon learning that "Golden Bay" sold portions of the parcels of land in question, petitioners filed with the "RTC" an Amended Complaint to implead new and additional defendants and to mention the TCTs to be annulled. But the respondent court dismissed the Amended Complaint.

Petitioners moved for reconsideration of the Order dismissing the Amended Complaint. The motion was granted by the RTC in an Order 1 dated July 7, 1995, which further allowed the herein petitioners to file a Second Amended Complaint, 2 which they promptly did.

On August 12, 1995, the private respondents presented a Motion to Dismiss 3 on the grounds that the complaint failed to state a cause of action, that plaintiffs did not have a right of action, that they have not established their status as heirs, that the land being claimed is different from that of the defendants, and that plaintiffs' claim was barred by laches. The said Motion to Dismiss was granted by the respondent court in its Order 4 dated October 25, 1995, holding that petitioners "have not shown any proof or even a semblance of it except the allegations that they are the legal heirs of the above-named Yaptinchays that they have been declared the legal heirs of the deceased couple."

Petitioners interposed a Motion for Reconsideration 5 but to no avail. The same was denied by the RTC in its Order 6 of February 23, 1996.

Undaunted, petitioners have come before this Court to seek relief from respondent court's Orders under attack.

Petitioners contend that the respondent court acted with grave abuse of discretion in ruling that the issue of heirship should first be determined before trial of the case could proceed. It is petitioners' submission that the respondent court should have proceeded with the trial and simultaneously resolved the issue of heirship in the same case.

The petition is not impressed with merit.

To begin with, petitioners' Petition for Certiorari before this Court is an improper recourse. Their proper remedy should have been an appeal. An order of dismissal, be it right or wrong, is a final order, which is subject to appeal and not a proper subject of certiorari. 7 Where appeal is available as a remedy certiorari will not lie. 8

Neither did the respondent court commit grave abuse of discretion in issuing the questioned Order dismissing the Second Amended Complaint of petitioners, as it aptly ratiocinated and ruled:

But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay have not shown any proof or even a semblance of it except the allegations that they are the legal heirs of the aforementioned Yaptinchays that they have been declared the legal heirs of the deceased couple. Now, the determination of who are the legal heirs of the deceased couple must be made in the proper special proceedings in court, and not in an ordinary suit for reconveyance of property. This must take precedence over the action for reconveyance (Elena c. Monzon, et al., v. Angelita Taligato, CA-G-R- No. 33355, August 12, 1992).

In Litam, etc., et. al. v. Rivera 9 this court opined that the declaration of heirship must be made in an administration proceeding, and not in an independent civil action. This doctrine was reiterated in Solivio v. Court of Appeals 10 where the court held:

In Litam, et al. v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition." (p. 378).

The trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as "one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong" while a special proceeding is "a remedy by which a party seeks to establish a status, a right, or a particular fact." It is then decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right.

We therefore hold that the respondent court did the right thing in dismissing the Second Amended Complaint, which stated no cause of action. In Travel Wide Associated Sales (Phils.), Inc. v. Court of Appeals, 11 it was ruled that:

. . . If the suit is not brought in the name of or against the real party in interest, a motion to dismiss may be filed on the ground that the complaint states no cause of action.

WHEREFORE, for lack of merit, the Petition under consideration is hereby DISMISSED. No pronouncement as to costs.

SO ORDERED.

G.R. No. 149017 November 28, 2008

VALENTE RAYMUNDO,petitioner, vs. TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR, EVELYN SUAREZ, ET AL., respondents.

D E C I S I O N

NACHURA, J.:

This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision1 and Resolution2 in CA-G.R. SP No. 58090 which reversed, set aside and recalled the Regional Trial Court (RTC) Orders3 in Civil Case No. 51203.

First, the long settled facts.

Marcelo and Teofista Isagon Suarez'4 marriage was blessed with both material wealth and progeny in herein respondents, namely, Danilo,5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo,6 all surnamed Suarez. During their marriage, governed by the conjugal partnership of gains regime, they acquired numerous properties, which included the following: (1) a parcel of land situated in Barrio Caniogan, Pasig with an area of 348 square meters covered by Transfer Certificate of Title (TCT) No. 30680; (2) property located in Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block 2 covered by Tax Declaration No. A-01700723 (subject properties).

After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio Suarez,7 executed an Extrajudicial Settlement of Estate,8 partitioning Marcelo Sr.'s estate, thus:

WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs: TEOFISTA ISAGON, being the surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being the legitimate children of the deceased with the said TEOFISTA ISAGON;

WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ are represented herein by EUFROCINA S. ANDRES, in her capacity as the guardian and legal administrator of the property of the said minors;

WHEREAS, there are no known debts or financial obligations of whatever nature and amount against the estate of the deceased;

NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle and liquidate the assets of the conjugal partnership between the deceased and TEOFISTA ISAGON, and to settle and adjudicate the estate of the said deceased, by and pursuance to these presents, in the following manner, to wit:

1. That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in absolute and exclusive ownership the following properties as her lawful share in the assets of the conjugal partnership of gains between her and the deceased, to wit:

(a) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6938, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal;

(b) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6939, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal;

(c) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal;

(d) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal;

(e) TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90) deposited with the Commercial Bank and Trust Company of the Philippines, and THIRTY-NINE PESOS (P39.00) deposited with Prudential Bank.

2. That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, shall each and all receive and be entitled to a share equivalent to one-seventh (1/7) of the estate of the deceased MARCELO SUAREZ, which estate is comprised of the following properties, to wit:

(a) A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality of Pasig, Province of Rizal, with an assessed value of P4,150.00.

(b) Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P560.00.

(c) A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed va