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[G.R. No. 165649.� January 10, 2005]
LAGARDE vs. DOLOIRAS
THIRD DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JAN 10 2005.
G.R. No. 165649 (Levi Lagarde vs. Jose Nelson Doloiras, Carmen Jao-Doloiras, Herminia Lagarde Cruz, Mene Lagarde Delos Santos, Jaime Lagarde, Lorna I. Lagarde, Nelly Lagarde Rivera, Jane Lagarde Purtollano And Nonita Lagarde De Vera.)
The instant petition assails the June 17, 2004 decision [1] cralaw of the Court of Appeals in CA G.R. CV No. 65811, affirming an earlier decision of the Regional Trial Court, Branch 52, Sorsogon, Sorsogon which dismissed petitioner's complaint for Annulment of Deeds and Title, Recovery of Property, Legal Redemption and Damages, thereat docketed as Civil Case No. 93-5944.
During their lifetime, the spouses Esteban Lagarde and Modesta Imperial were the owners of several parcels of land, all located at Sorsogon, Sorsogon. One of those parcels is Lot No. 3519 containing an area of 502 square meters with improvements, situated at the Poblacion, Sorsogon, Sorsogon, covered by Original Certificate of Title No. 461 and declared for taxation purposes under Tax Declaration No. 24539, both in the names of the spouses. The couple were blessed with nine (9) children, namely: Levi Lagarde (petitioner); Herminia Lagarde-Cruz; Mene Lagarde-De los Santos; Jaime Lagarde; Lorna I. Lagarde; Nelly Lagarde-Rivera; Jane Lagarde-Purtollano; Nonita Lagarde-de Vera; and Asela Lagarde.
The parents - Esteban and Modesta - died intestate in 1961 and 1974, respectively, leaving their abovenamed children as compulsory heirs and co-owners of their properties, among which is Lot No. 3519, the property in dispute.
On May 3, 1969 or about five (5) years before her death, the
mother - Modesta - executed a Deed of Assignmen
t
and Waiver of
Rights over Real Properties, whereunder she waived, assigned and
transferred all her rights and interests over all the parcels of land,
including Lot No. 3519, owned by her and her deceased husband, to their nine
(9) children for a total consideration of P2,700.00, on condition that
she would retain usufruct of those properties for as long as she lives.
It appears that upon the initiative of the herein private respondents, the Provincial Assessor, on the basis alone of the aforesaid deed of assignment and waiver and without the presentation of any deed of partition, issued individual tax declarations to petitioner and his co-heirs vis-a-vis the portions assigned and transferred to each of them under the same deed.
On May 15, 1969, Modesta further executed an Affidavit, distributing to her nine (9) children the same parcels of land subject of the deed she had earlier executed.
The family feud started when, on October 8, 1991, seven (7) of the siblings, namely: Herminia, Mene, Jaime, Nelly, Jane, Lorna and Nonita, sold, through separate deeds of sale, approximately 437 square meters of Lot 3519 to the spouses Jose Nelson Doloiras and and Carmen Jao-Doloiras (Nelson and Carmen, for short).
On October 10, 1991, the heirs, except petitioner and Asela Lagarde (already deceased), executed a Deed of Extrajudicial Partition to facilitate the registration of the instruments of sale separately executed by them in favor of the spouses Nelson and Carmen over the 437 square-meter portion of Lot No. 3519. On the basis of said deed of extrajudicial partition, OCT No. 461 formerly covering Lot No. 3519 was cancelled and replaced by a new title, TCT No. T-31847, which was itself later cancelled and replaced by TCT No. T-34086 in the names of the spouses Nelson and Carmen.
On September 27, 1993, the said seven (7) siblings executed deeds of assignment and waiver of rights in favor of petitioner over the share of their deceased sister (Asela) in Lot No. 3519.
Not in conformity with what his brother and sisters had done, particularly the sale of Lot No. 3519 to the spouses Nelson and Carmen, petitioner filed with the Regional Trial Court at Sorsogon the complaint in CC No. 93-5944 against his co-heirs and the spouses Nelson and Carmen.
In a decision dated June 15, 1999, the trial court dismissed petitioner's complaint, thus:
WHEREFORE, premises considered, judgment is hereby rendered to wit:
a)����� Ordering the dismissal of the complaint with costs against the plaintiff;
b)����� Declaring the defendant spouses Jose Nelson Doloiras and Carmen Yao, the absolute owner of the land sold by the other defendants containing an area of four hundred thirty-eight (438) sq. m. covered by Transfer Certificate of Title No. T-34086 in the name of defendants Jose Nelson Doloiras and Carmen Yao;
c)����� Declaring the plaintiff to be the owner not only of his lawful share but also he share of Asela Lagarde;
d)����� The counterclaim filed by the defendant spouses is also hereby ordered dismissed and likewise the cross-claim against defendant cross-claimants is also dismissed.
SO ORDERED. [2] cralaw
Dissatisfied, both petitioner and the spouses Nelson and Carmen appealed to the Court of Appeals in CA G.R. CV No. 65811. The spouses Nelson and Carmen interposed their appeal insofar as the trial court dismissed their counterclaim.
In a decision dated June 17, 2004, the Court of Appeals affirmed the appealed decision of the trial court. Petitioner moved for a reconsideration but his motion was denied by the same court in its resolution of October 8, 2004.
Petitioner is now with us via this petition for review on certiorari under Rule 45, raising the same factual issues already passed upon by the appellate court.
We deny.
We agree with the Court of Appeals that at the time of the sale of Lot No. 3519 to the spouses Nelson and Carmen, said lot had been actually partitioned among the heirs. As it were, the Deed of Assignment and Waiver of Rights over Real Properties and the Affidavit executed by the mother Modesta, whereunder the nine (9) heirs were each given their 1/9 share in the properties of their parents, including Lot No. 3519, with corresponding technical descriptions of each share, all conjure to a conclusion that there had been an actual partition among the heirs, petitioner included.
To be sure, each portion belonging to each of the nine (9) siblings was declared by them for taxation purposes as early as 1969 with the Assessor's Office of Sorsogon, Sorsogon, as evidenced by the separate tax declarations covering their respective portions and the corresponding official real property tax receipts for the taxes paid by each of them. And since then (1969), the realty taxes were paid by them continuously and religiously. Worse, petitioner himself signed, as owner, Tax Declaration No. 5943 covering his share on Lot No. 3519. If anything else, petitioner's signature on the same tax declaration signifies his acknowledgment of the transfer to him of the remaining 63 square meters of Lot No. 3519, of which remaining portion he paid the realty tax due thereon, as borne by a certification issued by the Municipal Treasurer on September 14, 1995.
With the above, we rule and so hold that the nine (9) heirs were no longer co-owners of Lot No. 3519 when it was sold by petitioner's seven (7) siblings to the spouses Nelson and Carmen. We agree with the two courts below that the subsequent execution on October 10, 1991 by petitioner's brother and sisters of a Deed of Extrajudicial Partition merely ratified the partition already made by their mother in 1969. And since petitioner was no longer a co-owner of Lot No. 3519 at the time his seven (7) siblings sold it to the spouses Nelson and Carmen, petitioner cannot redeem from the latter the portion thereof already sold by his brother and sisters.
To stress, after the physical division of all the properties of the parents, including Lot No. 3519, the community ownership formerly enjoyed by all the heirs, petitioner included, was terminated. Afortiori, there was no more right of redemption which petitioner may exercise under Article 210 of the Civil Code.
WHEREFORE, the petition is hereby DENIED.
SO ORDERED.
Very truly yours,
(Sgd.) LUCITA ABJELINA-SORIANO
Assistant Division Clerk of Court
Endnotes:
[1] cralaw Penned by Associate Justice Jose Catral Mendoza an concurred in by Associate Justices Eugenio S. Labitoria and Jose L. Sabino, Jr.
[2] cralaw Rollo, p. 123.
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