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G.R. No. 112933.
MOISES KUMMER vs. CA, et al.
SECOND DIVISION
Gentlemen:
Quoted hereunder, for your information, a resolution of this Court dated 25 SEP 2002:
G.R. No. 112933. (Moises Kummer vs. Court of Appeals and Adela Pingad)
RESOLUTION
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the decision of the Court of Appeals (CA) promulgated on October 29, 1993 in CA-G.R. No. 33341, the decretal portion of which reads:
"WHEREFORE and upon all the foregoing, the decision of the court below is REVERSED and the conjugal partnership of Luis and Adela Pingad is declared the owner of the area, subject matter of the deed of exchange, Exh. C and Exh. 1, with costs against plaintiff.
"SO ORDERED." [1] cralaw
The pertinent facts of the instant case, as aptly narrated by the CA, are as follows:
"Plaintiff-appellee Moises Kummer , Cristeta Kummer Garduque, Manuel Kummer, Joseph Kummer, Elvira Kummer Mallillin, Elias Kummer, Amparo Kummer Mallo, William Kummer and Theodoro Kummer were the children of the late spouses Eugene Kummer and Bartola Barias who died intestate in 1943 and 1948, respectively. The aforesaid children inherited from their deceased parents, a parcel of land known as Lot No. 3682, Pls-601-D of the Iguig Public Land Subdivision, situated in Malabbac, Iguig, Cagayan, containing an area of 69, 058 square meters.
"On March 10, 1958, Joseph Kummer, one of the said nine heirs, bartered off his 1/9 share in the property to defendant-appellant Adela Pingad's late husband, Luis Pingad, in exchange for the latter's carabao (Exhs. C and C-1, Exh. 1; Record, pp. 14-15). According to the defendant, Joseph had pointed to her and her late husband the property corresponding to his share under an oral partition entered among him and his brothers and sisters. Having thus acquired Joseph Kummer's share and relying on his (Joseph Kummer's) representation, the Pingad spouses had erected their house on a section of what was allegedly pointed to as pertaining to Joseph's share.
"On January 21, 1977, the nine brothers and sisters, three of them who have died through their heirs, executed an extrajudicial settlement whereby the aforesaid property was partitioned among themselves in nine shares (Exhs. A and A-1 ibid., pp. 50-51). The share therein adjudicated "to appellee Moises Kummer was Lot 3682-D, with an area of 7,673 square meters but 1,359 [2] cralaw square meters of which fronting the national road turned out to be the portion occupied by the Pingad spouses (Exhs. B and B-1; ibid., p. 52). In the same plan, Exh. B, the lot for Joseph Kummer was marked Lot 3682-A with an area of 7,674 square meters which appeared to be assigned to Visitacion Mallillin Kummer in the Extrajudicial Partition (Exh. A).
"x x x
"In 1987, demand was made by the plaintiff [Kummer] for the defendant [Pingad] to vacate the area she is occupying but the latter refused to leave. Efforts to have the matter settled between the parties at the barangay level failed (Exh. D; ibid., p. 8).
"Hence, on August 23, 1988, the appellee [Kummer] filed the complaint in instant case against the appellant [Pingad] x x x.
"In her Answer (Records, pp. 10-15), the defendant averred that she and her husband acquired the subject land in good faith, believing it pertained to the share of Joseph Kummer with Joseph Kummer's sister, Amparo Kummer Mallo, signing as one of the instrumental witnesses to the deed of exchange; she had been in actual, peaceful and continuous possession of the said parcel of land since 1956 or more than 30 years before the filing of the case." [3] cralaw
After trial, the lower court rendered a decision in favor of herein petitioner Moises Kummer. [4] cralaw
On appeal filed by herein respondent Adela Pingad, the Court of Appeals reversed the trial court's decision.
Hence, this petition raising a single issue, to wit:
"WHETHER OR NOT A TRANSFEREE OF A DEFINITE PORTION OF A PROPERTY OWNED IN COMMON COULD ACQUIRE OWNERSHIP OF SAID PORTION BY PRESCRIPTION DUE TO THE REPRESENTATION OF A TRANSFEROR CO-OWNER AT THE TIME OF THE TRANSFER THAT THE PROPERTY OWNED IN COMMON HAD ALREADY BEEN PARTITIONED." [5] cralaw
Records reveal that in return for a carabao they bartered, the Pingad spouses received from Joseph Kummer a determinate portion of land more specifically described as follows:
"A portion of the land covered by Tax Declaration No. 7104-a; bounded on the N, by the remaining portion as pertaining to Manuel Kummer; on the E, by Brook; on the S, by the remaining portion as pertaining to Elvira Kummer and on the W, by the National Road and F. Culiuan, containing an area of 1,352 square meters, more or less;" [6] cralaw
It is not disputed that this lot is a portion of Lot 3682-D, the share that was finally given to Moises Kummer after Lot No. 3682 was partitioned among the heirs of Eugene Kummer and Bartola Barias.
Article 493 of the Civil Code states:
"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."
Under this provision, a co-owner has no right to sell or alienate a concrete, specific or determinate part of the thing owned in common, because his right over the thing is represented by a quota or ideal portion without any physical adjudication. [7] cralaw In the present case, we agree with petitioner that no evidence was presented to show that prior to the extra judicial settlement executed by the heirs of Eugene Kummer and Bartola Barias on January 21, 1977, there was an oral partition respecting Lot No. 3682 among the said heirs. Hence, prior to January 21, 1977 Lot No. 3682 was not yet partitioned and Joseph Kummer could not have validly conveyed the subject lot to the Pingad spouses, the same being a definite or specific portion of Lot No. 3682.
However, it is not disputed that the Pingad spouses continuously occupied the subject lot as owners since 1958; [8] cralaw that they erected a house on the subject lot, built a fence around the house and planted fruit-bearing trees; [9] cralaw that at the time petitioner filed an action with the lower court against Adela Pingad, the latter was still in possession of the subject property. [10] cralaw
Under Article 1134 in relation to Article 1117 of the Civil Code, ownership and other real rights over immovable property are acquired by ordinary prescription through possession in good faith and with just title for a period of ten years. Good faith of the possessor consists in the reasonable belief that the person from whom he received the thing was the owner thereof, and could transmit his ownership. [11] cralaw On the other hand, there is just title when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any right. [12] cralaw In the instant case, the Pingad spouses bartered their carabao with the subject property relying on Joseph Kummer's representation that he owns the said parcel of land. The barter was embodied in a duly notarized deed of exchange. Joseph Kummer's representation was acknowledged by one of the sisters of Joseph, Amparo Kummer Mafia, when she signed as a witness to the Deed of Exchange executed by and between Joseph Kummer and Luis Pingad, Adela's husband. [13] cralaw Amparo's acknowledgment could therefore be a justifiable ground to form a reasonable belief that Joseph was indeed the owner of the lot in controversy. Hence, the requirements of good faith and just title are complied with by the Pingad spouses.
Furthermore, it remains a fact that Adela's possession of the subject lot was for a period exceeding thirty (30) years. Article 1137 of the same Code provides that ownership and other real rights over immovable prescribe through uninterrupted adverse possession thereof for thirty years, without need of title or of good faith. In the present case, evidence shows that the deed of exchange between Luis Pingad and Joseph Kummer was executed on March 10, 1958. [14] cralaw From that date until the filing of the complaint by petitioner with the lower court on August 23, 1986 more than thirty (30) years had elapsed. For the entirety of the said period Adeta's possession of the subject lot was uninterrupted and adverse. Therefore, we find no error in respondent appellate court's ruling that Adela acquired ownership over the subject property by prescription.
Morever, even granting en arguendo that Adela did not acquire ownership over the subject property by prescription, petitioner is, nevertheless, barred by laches from asserting his right over the same. Laches has been defined as the failure or neglect to assert a right for an unreasonable and unexplained length of time to do, that which by exercising due diligence could or should have been done earlier, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. [15] cralaw The elements of laches are: (1) conduct on the part of the defendant, or of one under whom he claims, which gives rise to a cause of action for which the plaintiff can seek a remedy; (2) delay in asserting complainant's right, after having knowledge of the defendant's conduct and having the opportunity to institute a suit; (3) lack of knowledge on the part of defendant that complainant would assert a right on which he bases his suit; and (4) injury or prejudice to defendant in the event relief is accorded to the complainant or the suit is not barred. [16] cralaw All of these elements are present in the case at bar.
A review of the records shows that despite having acquired knowledge of the Pingad spouses' possession of the disputed land in the concept of owners as early as 1962, petitioner never made any sincere effort to seasonably assert his right over the subject property. He testified that in 1962 and in 1977 he advised Adela to transfer their house to the lot corresponding to Joseph Kummer's share in the partition. [17] cralaw However, on these two occasions Adela refused to vacate the disputed lot. Despite such refusal, petitioner did not take any legal steps to reclaim said lot. While petitioner claims that, prior to the filing of the case against Adela, he sought the intercession of the mayor in order to settle the controversy, he failed to present any evidence to prove his allegation. [18] cralaw It was only on August 23, 1988 that he finally filed an action to recover ownership and possession of the property in question, more than thirty (30) years from the time the Pingad spouses occupied the said property, twenty-five (25) years after he discovered such occupation, and more than ten (10) years after the extrajudicial settlement involving the said property was executed. Such delay in filing the said action definitely gives the impression that he had abandoned his right over the disputed property. It is settled that a party's long inaction or passivity in asserting his rights over disputed property precludes him from recovering the same. [19] cralaw
Petitioner failed to promptly assert his right, thereby converting his otherwise valid claim into a stale demand. It is settled that the law aids the vigilant, not those who slumber on their rights. [20] cralaw
WHEREFORE , the petition is DENIED and the assailed Decision of the Court of Appeals is AFFIRMED. Costs against petitioner.
Very truly yours,
(Sgd) TOMASITA M. DRIS
Clerk of Court
Endnotes:
[1] cralaw Rollo, p. 30.
[2] cralaw Under the Deed of Exchange (Exhibit "C"/ "1", p. 14, OR) the area of the land bartered to the Pingad spouses is 1,352, square meters.
[3] cralaw Rollo, pp. 24-26.
[4] cralaw Original Records, p. 63.
[5] cralaw Rollo, p. 13.
[6] cralaw Exhibit "C"/ "1,"supra.
[7] cralaw Abad vs. Court of Appeals, 179 SCRA 817, 826; Carvajal vs. Court of Appeals, 112 SCRA 237, 240 [1982].
[8] cralaw Original Record; Complaint, p. 1.
[9] cralaw Testimony of Adela Pingad, TSN, November 7, 1990, pp. 8-9.
[10] cralaw Ibid.
[11] cralaw Article 1127, Civil Code.
[12] cralaw Article 1129, Civil Code.
[13] cralaw Exhibit "C"/ "1", supra.
[14] cralaw Ibid.
[15] cralaw Heirs of EuLalio Ragua vs. Court of Appeals, 324 SCRA 7, 21 [2000]; Stilianopulos vs. City of Legaspi, 316 SCRA 523, 539 [1999]; Philgreen Trading Construction Corporation vs. Court of Appeals, 271 SCRA 719, 725 [1997]; Vda. de Cabrera vs. Court of Appeals, 267 SCRA 339, 355 [1997].
[16] cralaw Villanueva-Mijares vs. Court of Appeals, 330 SCRA 349, 358; Quijada vs. Court of Appeals, 299 SCRA 695, 703 [1998]; Jison vs. Court of Appeals, 286 SCRA 495, 54 1-542 [1998]; Bailon-Casilao vs. Court of Appeals, 160 SCRA 738, 747 [1988].
[17] cralaw TSN, May 31, 1990, pp. 12-13, 15-18.
[18] cralaw Id., p. 20.
[19] cralaw Po Lam vs. Court of Appeals, 347 SCRA 86, 99 [2000]; Heirs of Teodoro Dela Cruz vs. Court of Appeals, 298 SCRA 172, 181 [1998] citing Lola vs. Court of Appeals, 145 SCRA 439 [1986].
[20] cralaw Salandanan vs. Court of Appeals, 290 SCRA 671, 679 [1998].
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