Exclude me not
Isa alleged that her brother, Reto, was the registered owner of a parcel of land known as Lot 1559. In 1963, Reto died without an issue, thus leaving his siblings, namely, Faus, Chit, Ria, and Isa as his intestate heirs to the said lot.
Isa discovered that despite Reto’s death in 1963, Spouse Ben and Norm made it appear that Reto sold to them the land through a Deed of Absolute Sale of Portion of Registered Land dated September 1, 2006 and Deed of Sale of a Portion of Land dated June 19, 2012, respectively; and in light of the execution of said deeds, new titles covering the subdivided lots were issued in petitioners’ names.
Isa was constrained to file a complaint for reivindicacion and damages before the Regional Trial Court (RTC) against the spouses.
In their answer with counterclaim, the spouses alleged that sometime in 1993, they were looking to purchase a parcel of land. Coincidentally, they were able to meet Faus’ wife and son, Al, who offered to sell them one-half of Lot No. 1559 to which they agreed.
Thus, in 1993 Faus, Chit, Ria, and Al executed an extra-judicial settlement with sale (EJSS) concerning the subject lot whereby the lot was subdivided into two parts: (a) one half was adjudicated to Faus, Chit, and Ria, who then sold the said lot to the spouses; and (b) the remaining half to Al.
Al later sold the remaining half to the spouses. According to the spouses, they have been in open, continuous, and peaceful possession of the two lots since 2010, until Isa filed a complaint in 2013.
Q: Was the extrajudicial settlement settlement with sale valid or void?
A: The EJSS is null and void, considering that it was executed without the knowledge and consent of Isa, a co-heir of Faus, Chit, and Ria, to the estate of their deceased brother, Reto.
A deed of extrajudicial partition executed to the total exclusion of any of the legal heirs, who had no knowledge of and consent to the execution of the same, is fraudulent, vicious, and a total nullity. As such, it produced no effect whatsoever either against or in favor of anyone.
Q: Was the sale and eventual subdivision Lot 1559 valid or void?
A: The subdivision of Lot No. 1559 into two equal halves, as well as the attempted conveyance of these definite portions to the spouses and Al, resulted from the execution of the EJSS, which again, was without the knowledge and consent of Isa.
A sale of a definite portion of a co-owned property requires the consent of all the co-owners. Without such unanimous consent, a co-owner can only convey his undivided, aliquot interest over a co-owned property; he/she has no right to divide, and thereafter, convey definite portions thereof.
If the alienation precedes the partition, the co-owner cannot sell a definite portion of the land without consent from his or her co-owners. He or she could only sell the undivided interest of the co-owned property.
In other words, if he is the owner of an undivided half of a tract of land, he has a right to sell and convey an undivided half, but he has no right to divide the lot into two parts, and convey the whole of one part by metes and bounds.”
Q: What is the difference between the sale of an aliquot interest and the sale of a definite portions of the co-owned land? How is this applicable in this case?
A: The undivided interest of a co-owner is also referred to as the “ideal or abstract quota” or “proportionate share.” On the other hand, the definite portion of the land refers to specific metes and bounds of a co-owned property.
Q: What rights, if any, did the spouses acquire under the circumstances?
A: As co-owners of Lot No. 1559, Faus, Chit, Ria, and Isa are free to dispose of their undivided aliquot shares in the lot, which shall be limited to the portion that may be allotted to them upon partition.
Otherwise stated, before an actual partition of an estate, an heir can only alienate his successional rights or undivided interest thereto, and not specific portions thereof.
Thus, Faus, Chit, and Ria could not sell a definite portion of an undivided property, i.e., one half of Lot No. 1559 to the spouses.
However, one must recognized the clear intent of the Faus, Chit and Ria to sell one half of their inchoate interest over Lot No. 1559 to the the spouses—not through the EJSS but via an oral contract of sale as in fact, they were able to do so as they received proper compensation therefor from the spouses.
Thus, the spouses were able to validly acquire one half of Faus, Chit, and Ria’s aggregate three-fourths interest, or a total of 3/8 interest over Lot No. 1559.
(Source: Sps. Rol vs. Racho, G.R. No. 246096, January 13,2021, [J. Perlas-Bernabe, Second Division])
The author is the Dean, College of Law at Lyceum of the Philippines University, and founder of Mawis Law Office
