356 Phil. 851
ROMERO, J.:
"WHEREFORE, the Court hereby renders judgment in favor of defendant and against plaintiff, dismissing the complaint filed by plaintiff against defendant, and on the Counterclaim and prayer of defendant in its Answer, the Court hereby declares defendant as the owner in fee simple of the share of plaintiff Laurencia Alejandrino and the shares of Marcelino, Gregorio and Abundio, all surnamed Alejandrino, of the parcel of land known as Lot No. 2798 and covered by Transfer Certificate of Title No. 19658 which 4 shares totals an area of 146 square meters more or less; and the Court further Orders plaintiff to:Laurencia appealed the decision to the Court of Appeals under CA-G.R. CV No. 33433 but later withdrew the same.[4] On April 13, 1992, the Court of Appeals considered the appeal withdrawn in accordance with Rule 50 of the Rules of Court.[5]
1. Vacate the premises subject of the complaint and surrender the property to defendant to the extent of the 4 shares aforementioned;
2. Pay the defendant the amount of P15,000.00 as litigation and necessary expenses; the sum of P10,000.00 as reimbursement for attorney’s fees; the sum of P10,000.00 as moral damages and P10,000.00 as exemplary damages;
3. Plus costs.
SO ORDERED."[3]
Petitioner Mauricia questioned this order of the lower court in a petition for certiorari and prohibition with prayer for the issuance of a writ of preliminary injunction filed before the Court of Appeals. In due course, the Court of Appeals dismissed the petition in a Decision promulgated on August 25, 1993."O R D E R
For resolution is a `Motion to Order Segregation of 146 Square Meters In Lot No. 2798’ dated January 15, 1993 filed by defendant and the `Opposition’ thereto dated February 2, 1992 by plaintiff. Movant-defendant also filed a rejoinder dated February 15, 1993 to the Opposition.
After going over the allegations in the motion, the opposition thereto and the rejoinder as well as the records of the case, particularly the decision rendered by this Court and the Order dated October 28, 1992, denying the motion for reconsideration filed by plaintiffs and allowing the issuance of a writ of execution, the Court is inclined to Grant the instant motion.
x x x x x x x x x x x x
In addition thereto, the Court makes the following observation:
1. Plaintiff (oppositor) has a total share of 146 square meters. This is admitted by her in her complaint (par. 4 thereof). In the decision rendered by this Court, this share now belongs to defendant movant by way of sale. The decision of this Court has long become final.
2. The total area of the land is 219 sq. meters (par. 2 of complaint), thus, the share of Mauricia Alejandrino is only 73 square meters.
3. As early as June 10, 1983, Mauricia Alejandrino and Laurencia Alejandrino had entered into an 'Extrajudicial Settlement of Estate' whereby they agreed to divide the land subject of this case with Laurencia Alejandrino owning 146 square meters in the frontage and Mauricia Alejandrino owning 75 square meters in the back portion (Exh. '16', Extrajudicial Settlement of Estate, par. 1) (underscoring supplied), and that the parties assure each other and their successor in interest that a right of way of two meters is granted to each party by the other permanently (Exh. '16', par. 2). This partition is signed by the parties and their witnesses. Although not notarized, it is certainly valid as between the parties, Maurecia (sic) Alejandrino, being an immediate party, may not renege on this.
4. Since the share of defendant Licerio P. Nique is specifically known to be 146 square meters, and that its location shall be on the `frontage’ of the property while the 73 square meters of Maurecia (sic) Alejandrino shall be at the back portion, then, the Court cannot see its way clear, why the 146 sq. meters share of defendant may not be segregated.
5. The contention by oppositor that the `segregation of defendant’s share of 146 sq. meters from Lot No. 2798 was not decreed in the judgment’ is a rather narrow way of looking at the judgment. Paragraph 1 of the dispositive portion of the judgment by this Court, Orders plaintiff to `vacate the premises subject of the complaint and surrender the property to defendant to the extent of the 4 shares aforementioned.’ The 4 shares of Laurencia Alejandrino of 146 sq. meters can be segregated because Laurencia and Maurecia had already executed an extrajudicial partition indicating where their respective shares shall be located (Exh. `16’). To deny the segregation is to make the decision of this Court just about valueless is not altogether useless. The matter of allowing the segregation should be read into the decision.
The bottomline is still that plaintiff Laurencia, despite the fact that the decision of this Court had long become final; and despite the fact that she even withdraw (sic) her appeal, she still is enjoying the fruits of the property to the exclusion of the rightful owner.
WHEREFORE, the Court hereby Grants the motion. The defendant Licerio Nique may proceed to segregate his 2146 (sic) sq. meters from Lot NO. 2798 covered by TCT No. 19658, by having the same surveyed by a competent Geodetic Engineer, at the expense of movant-defendant.
SO ORDERED."[6]
"x x x. In ordering the segregation of the 146 square meters, respondent Judge correctly referred to the text of the decision to ascertain which portion of the land covered by TCT No. 19658 was actually sold by Laurencia Alejandrino (sister of herein petitioner Mauricia) to private respondent Nique. The respondent Judge did not err in relying upon Exhibit `16', the Deed of Extrajudicial Settlement, dated June 10, 1983, mentioned in page 3 of the Decision. Pertinent portion of Exhibit `16’ reads:Petitioner Mauricia filed a motion for the reconsideration of the Court of Appeals’ decision. However, on February 15, 1994, the Court of Appeals denied the same for lack of merit "there being no new ground or compelling reason that justifies a reconsideration" of its Decision.[8]
`NOW, THEREFORE, the above-named parties-heirs hereby stipulates (sic), declare and agree as follows:
`1. That the parties have agreed to divide the parcel of land with Laurencia Alejandrino owning 146 square meters in the frontage and Mauricia Alejandrino 73 square meters in the back portions;
`2. That the parties mutually and reciprocally assure each other and their successor of interest (sic) that a right of way of two meters is granted to each party to the other permanently.’ (underscoring supplied, Annex `1’, Comment, p. 65, Rollo)
duly signed by herein petitioner and witnessed by private respondent Nique. It readily reveals that when Laurencia subsequently sold her shares to herein private respondent, per the Deed of Absolute Sale dated October 29, 1986 (Exhs. `B’ and `10’), the parties must have referred to the 146 square meters in the frontage described in said document, Exhibit `16’. Laurencia had no authority to sell more, or, less, than that agreed upon in the extrajudicial settlement between her and herein petitioner Mauricia. Insofar as the latter is concerned, she is estopped from claiming that said extrajudicial settlement was a fatally defective instrument because it was not notarized nor published. What is important is that private respondent personally knew about Laurencia and Mauricia’s agreement because he was a witness to said agreement and he relied upon it when he purchased the 146 square meters from Laurencia.
It cannot be validly claimed by petitioner that she was deprived of her property without due process of law considering that private respondent is merely segregating the portion of the land actually sold to him by Laurencia Alejandrino and it does not affect the 73 square meters that properly pertain to petitioner.
Moreover, the Supreme Court has ruled that where there is ambiguity caused by an omission or mistake in the dispositive portion of a decision the court may clarify such ambiguity by an amendment even after the judgment had become final, and for this purpose it may resort to the pleadings filed by the parties, the court’s finding of facts and conclusions of law as expressed in the body of the decision (Republic Surety and Insurance Co., Inc., et al., versus Intermediate Appellate Court, et al., 152 SCRA 309). The assailed order, in effect, clarifies the exact location of the 146 square meters pursuant to Exhibit `16’. Respondent court did not act in excess of its jurisdiction. Hence, writs of certiorari and prohibition do not lie in this case."[7]
"ART. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership."With respect to properties shared in common by virtue of inheritance, alienation of a pro indiviso portion thereof is specifically governed by Article 1088 that provides:
"ART. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor."In the instant case, Laurencia was within her hereditary rights in selling her pro indiviso share in Lot No. 2798. However, because the property had not yet been partitioned in accordance with the Rules of Court, no particular portion of the property could be identified as yet and delineated as the object of the sale. Thus, interpreting Article 493 of the Civil Code providing that an alienation of a co-owned property "shall be limited to the portion which may be allotted to (the seller) in the division upon the termination of the co-ownership," the Court said:
"x x x (p)ursuant to this law, a co-owner has the right to alienate his pro-indiviso share in the co-owned property even without the consent of the other co-owners. Nevertheless, as a mere part owner, he cannot alienate the shares of the other co-owners. The prohibition is premised on the elementary rule that `no one can give what he does not have’ (Nemo dat quod non habet). Thus, we held in Bailon-Casilao vs. Court of Appeals (G.R. No. 78178, April 15, 1988, 160 SCRA 738, 745), viz:The legality of Laurencia’s alienation of portions of the estate of the Alejandrino spouses was settled in Civil Case No. CEB-7038. The decision in that case had become final and executory with Laurencia’s withdrawal of her appeal. When private respondent filed a motion for the segregation of the portions of the property that were adjudged in his favor, private respondent was in effect calling for the partition of the property. However, under the law, partition of the estate of a decedent may only be effected by (1) the heirs themselves extrajudicially, (2) by the court in an ordinary action for partition, or in the course of administration proceedings, (3) by the testator himself, and (4) by the third person designated by the testator.[13]
`x x x since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owners is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.
`The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property of the co-owners who possessed and administered it.’"[12]
"If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action for partition. x x x.Notarization of the deed of extrajudicial settlement has the effect of making it a public document[14] that can bind third parties. However, this formal requirement appears to be superseded by the substantive provision of the Civil Code that states:
The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof."
"ART. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction."By this provision, it appears that when a co-owner sells his inchoate right in the co-ownership, he expresses his intention to "put an end to indivision among (his) co-heirs." Partition among co-owners may thus be evidenced by the overt act of a co-owner of renouncing his right over the property regardless of the form it takes. In effect, Laurencia expressed her intention to terminate the co-ownership by selling her share to private respondent.
"x x x. We believe, however, that the public instrument is not essential to the validity of the partition. This is not one of those contracts in which form is of the essence. The public instrument is necessary only for the registration of the contract, but not for its validity. The validity of an oral contract among the heirs, terminating the co-ownership, has been recognized by the Supreme Court in a decision x x x (where) that tribunal said: `An agreement among the heirs that a certain lot should be sold and its proceeds paid to one of them is a valid oral contract, and the same has the force of law between the parties from and after the original assent thereto, and no one of them may withdraw or oppose its execution without the consent of all.’The deed of extrajudicial settlement executed by Mauricia and Laurencia evidence their intention to partition the property. It delineates what portion of the property belongs to each other. That it was not notarized is immaterial in view of Mauricia’s admission that she did execute the deed of extrajudicial settlement. Neither is the fact that the trial court only mentioned the existence of such document in its decision in Civil Case No. CEB-7028. That document was formally offered in evidence and the court is deemed to have duly considered[16] it in deciding the case. The court has in its favor the presumption of regularity of the performance of its task that has not been rebutted by petitioner Mauricia. Neither may the fact that the other heirs of the Alejandrino spouses, named Marcelino, Gregorio, Ciriaco and Abundio did not participate in the extrajudicial settlement of estate affect its validity. In her amended complaint in Civil Case No. CEB-11673, petitioner Mauricia herself admitted having acquired by purchase the rights over the shares of her brothers.
In a still later case, the Supreme Court held that `partition among heirs or renunciation of an inheritance by some of them 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 or ratification of title or right to property by the heir renouncing in favor of another heir accepting and receiving the inheritance.’ Hence, the court concluded, `it is competent for the heirs of an estate to enter into an oral agreement for distribution of the estate among themselves.’"[15]