It thus results that the respondent court had no jurisdiction or exceeded its jurisdiction in ordering the spouses Jovencio and Eulalia Concha to deliver a definite portion of lot 121-A of the San Carlos Cadastre to the spouses Fermin la la Victoria and Concepcion Nemenzo, over and above that recognized as pertaining to said spouses.
To restate, the spouses Jovencio and Eulalia Concha are the owners of that portion of Lot 121-A formerly belonging to Juan Anacleto, Marcelino, and lrenea all surnamed Ortega, ( covered by TCT No. RT 1349. exept that 21"1 p7-() indiviso portion previously sold by Anacieto and Marcelino Ortega to Fermin de la Victoria and his wife wherein the latter spouses had constructed two buildings.
WHEREFORE, the petition is granted and the orders of t respondent court in Civil Case No. 1970, dated September 20, 1966 and December 16, 1966, are hereby ANNULLED and SET ASIDE The parties are hereby ordered to effect a partition of that parcel of land known as Lot 121-A of the San Carlos Cadastre with an area of 8,250.50 square meters, covered by No. RT-1349 of the Register of Deeds of Negros Occidental in the names of Juan, Marcelino, Irenea, and Anacleto, all surnamed Ortega, and submit the same to the trial court within thirty (30) days after this decision shall have become final and executory and should they fail therein, the trial court should effect such partition in accordance with Rule 69 of the Revised Rules of Court.
SO ORDERED.
AQUINO, J., concurring:
I concur in the result.
In this Court's decision in De la Victoria vs. Levy Hermanos, Inc. 122 Phil. 330, 14 SCRA 996, the spouses, Fermin de la Victoria and Concepcion Nemenzo, were, in effect, declared to be the owners of a proindiviso one-fourth (1/4) portion, with an area of 2,062.62 square meters, of a part of Lot 121-A of the San Carlos, Negros Occidental cadastre. The total area of the portion of Lot 121-A formerly owned by the Ortegas is 8,250.50 square meters.
The remainder or the three-fourths proindiviso share, with an area of 6,187.88 square meters, of said part of Lot 121-A was regarded as the property of the spouses, Jovencio Concha and Eulalia P. Concha. They purchased it at an auction sale which was held in connection with the foreclosure proceedings brought by Levy Hermanos, Inc. against the former co-owners, Juan, Marcelino, Irenea and Anacleto, all surnamed Ortega.
Although the one-fourth share of Fermin de la Victoria and his wife is unsegregated or is an Ideal and abstract share, they took possession of a definite portion of Lot 121-A and constructed two buildings thereon. On the other hand, the spouses Jovencio Concha and Eulalia P. Concha also took possession of a part of Lot 121-A, which part has an area of around six hundred square meters (p. 18, Rollo).
The De la Victoria spouses filed in the lower court a motion dated April 18, 1966, praying for a writ of execution requiring the sheriff with the aid of a licensed surveyor to delineate the boundaries of the respective lands" of the De la Victorias and the Conchas. That motion was really a demand for partition.
The lower court made an ocular inspection of Lot 121-A (it Identifies the lot as Lot 121). It found that the lot is occupied by De la Victoria, Concha and "other persons who claim right of ownership over the portions occupied by them" (p. 20, Rollo It resolved the motion for execution in its order of December 16, 1966 by requiring the Conchas, alternatively, to deliver to the De la Victorias "the portion that is being occupied by them to the extent of 2,062.82 square meters, but if that area is not sufficient, then the De la Victorias "may seek other remedies for the full satisfaction" of this Court's judgment.
It is evident that the trial court was not aware of the exact areas of the portions of Lot 121-A actually occupied by the Conchas and the De la Victorias. As already stated above, the Conchas alleged that they are occupying an area of only 600 square meters. Fermin de la Victoria has not stated the exact area occupied by him.
That 1966 order is assailed in the instant petition for certiorari and prohibition filed by the Conchas on January 4, 1967. They contend that this Court in its 1965 decision merely declared that the De la Victorias own an undivided one-fourth (1/4) share in the disputed land and that the Conchas own the other undivided three-fourths (3/4) share but that this Court did not order the Conchas to deliver a segregated portion of the land. The Conchas ask that the said order of the trial judge be set aside but they have not offered any concrete solution as to how the one-fourth share of the De la Victorias should be segregated or as to how the land should be partitioned.
On the other hand, respondents De la Victoria pray that the petition be dismissed. In doing so, they ignore the fact that the Conchas are entitled to the possession of a three-fourths portion of the disputed portion of Lot 121-A in the same way that they are entitled to possess a definite one-fourth portion and that it is necessary to partition the land or to terminate the co-ownership.
The trial judge in his answer to the petition manifested that he could segregate the area of 2,062.62, owned by respondents De la Victoria, "without the necessity of ventilating another case between the same parties". That was precisely what the trial court failed to do in this case. In its questioned order, it just ordered the Conchas to surrender to respondents De la Victoria the portion which they have been occupying, without taking into account the contention of the Conchas that they are occupying only an area of 600 square meters and without taking into account the right of the Conchas to possess three-fourths of the land with an area of 6,178.68 square meters.
Petitioners Concha are correct in contending that this Court's 1965 decision is merely declaratory of the undivided and unsegregated aliquot portions (3/4 and 1/4) of the disputed land owned by the parties. In this Court's decision, there was no directive for the partition of the land. In the complaint filed by the De la Victoria spouses, there was no prayer for partition and adjudication of possession.
The trouble with the instant proceeding is that the parties and the trial court have not bothered to state categorically and with certitude the facts regarding the parties possession of the portions of the disputed land. A graphic sketch, showing the portions and the areas thereof actually occupied by the contending parties, would have facilitated the partition and the resolution of this case. The salient and ultimate facts as to the parties' possession of the land are blurred. And the parties have not agreed as to whether the land should be partitioned in the old case or in a new proceedings. That explains why there has been a delay in the disposition of this case.
In my view, the trial court should designate a surveyor who should make a survey and plan of the land formerly owned by the Ortegas with an area of 8,250.50 square meters, indicating therein the areas of the portions occupied by the Conchas, the De la Victorias and other persons. The parties should share equally the expenses of the survey.
After the survey plan is submitted, the parties may agree on how they should partition the land. If they cannot agree on the manner of partition, then the trial court should appoint commissioners and proceed in accordance with Rule 69 of the Rules of Court.
Barredo Chairman, Abad Santos and De Castro, JJ., concur.
Separate Opinions
AQUINO, J., concurring:
I concur in the result.
In this Court's decision in De la Victoria vs. Levy Hermanos, Inc. 122 Phil. 330, 14 SCRA 996, the spouses, Fermin de la Victoria and Concepcion Nemenzo, were, in effect, declared to be the owners of a proindiviso one-fourth (1/4) portion, with an area of 2,062.62 square meters, of a part of Lot 121-A of the San Carlos, Negros Occidental cadastre. The total area of the portion of Lot 121-A formerly owned by the Ortegas is 8,250.50 square meters.
The remainder or the three-fourths proindiviso share, with an area of 6,187.88 square meters, of said part of Lot 121-A was regarded as the property of the spouses, Jovencio Concha and Eulalia P. Concha. They purchased it at an auction sale which was held in connection with the foreclosure proceedings brought by Levy Hermanos, Inc. against the former co-owners, Juan, Marcelino, Irenea and Anacleto, all surnamed Ortega.
Although the one-fourth share of Fermin de la Victoria and his wife is unsegregated or is an Ideal and abstract share, they took possession of a definite portion of Lot 121-A and constructed two buildings thereon. On the other hand, the spouses Jovencio Concha and Eulalia P. Concha also took possession of a part of Lot 121-A, which part has an area of around six hundred square meters (p. 18, Rollo).
The De la Victoria spouses filed in the lower court a motion dated April 18, 1966, praying for a writ of execution requiring the sheriff with the aid of a licensed surveyor to delineate the boundaries of the respective lands" of the De la Victorias and the Conchas. That motion was really a demand for partition.
The lower court made an ocular inspection of Lot 121-A (it Identifies the lot as Lot 121). It found that the lot is occupied by De la Victoria, Concha and "other persons who claim right of ownership over the portions occupied by them" (p. 20, Rollo It resolved the motion for execution in its order of December 16, 1966 by requiring the Conchas, alternatively, to deliver to the De la Victorias "the portion that is being occupied by them to the extent of 2,062.82 square meters, but if that area is not sufficient, then the De la Victorias "may seek other remedies for the full satisfaction" of this Court's judgment.
It is evident that the trial court was not aware of the exact areas of the portions of Lot 121-A actually occupied by the Conchas and the De la Victorias. As already stated above, the Conchas alleged that they are occupying an area of only 600 square meters. Fermin de la Victoria has not stated the exact area occupied by him.
That 1966 order is assailed in the instant petition for certiorari and prohibition filed by the Conchas on January 4, 1967. They contend that this Court in its 1965 decision merely declared that the De la Victorias own an undivided one-fourth (1/4) share in the disputed land and that the Conchas own the other undivided three-fourths (3/4) share but that this Court did not order the Conchas to deliver a segregated portion of the land. The Conchas ask that the said order of the trial judge be set aside but they have not offered any concrete solution as to how the one-fourth share of the De la Victorias should be segregated or as to how the land should be partitioned.
On the other hand, respondents De la Victoria pray that the petition be dismissed. In doing so, they ignore the fact that the Conchas are entitled to the possession of a three-fourths portion of the disputed portion of Lot 121-A in the same way that they are entitled to possess a definite one-fourth portion and that it is necessary to partition the land or to terminate the co-ownership.
The trial judge in his answer to the petition manifested that he could segregate the area of 2,062.62, owned by respondents De la Victoria, "without the necessity of ventilating another case between the same parties". That was precisely what the trial court failed to do in this case. In its questioned order, it just ordered the Conchas to surrender to respondents De la Victoria the portion which they have been occupying, without taking into account the contention of the Conchas that they are occupying only an area of 600 square meters and without taking into account the right of the Conchas to possess three-fourths of the land with an area of 6,178.68 square meters.
Petitioners Concha are correct in contending that this Court's 1965 decision is merely declaratory of the undivided and unsegregated aliquot portions (3/4 and 1/4) of the disputed land owned by the parties. In this Court's decision, there was no directive for the partition of the land. In the complaint filed by the De la Victoria spouses, there was no prayer for partition and adjudication of possession.
The trouble with the instant proceeding is that the parties and the trial court have not bothered to state categorically and with certitude the facts regarding the parties possession of the portions of the disputed land. A graphic sketch, showing the portions and the areas thereof actually occupied by the contending parties, would have facilitated the partition and the resolution of this case. The salient and ultimate facts as to the parties' possession of the land are blurred. And the parties have not agreed as to whether the land should be partitioned in the old case or in a new proceedings. That explains why there has been a delay in the disposition of this case.
In my view, the trial court should designate a surveyor who should make a survey and plan of the land formerly owned by the Ortegas with an area of 8,250.50 square meters, indicating therein the areas of the portions occupied by the Conchas, the De la Victorias and other persons. The parties should share equally the expenses of the survey.
After the survey plan is submitted, the parties may agree on how they should partition the land. If they cannot agree on the manner of partition, then the trial court should appoint commissioners and proceed in accordance with Rule 69 of the Rules of Court.
Barredo Chairman, Abad Santos and De Castro, JJ., concur.
Footnotes
1 Civil Case No. 1970.
2 CA-G.R. No. 17874-R, Feb. 26,1962.
3 G.R. No. L-19766, August 31,1965; 14 SCRA 996.
4 Rollo, p. 16.
5 Id., p. 17.
6 Id., p. 20.
7 See decision in G.R. No. L-19766, Aug. 31, 1965; 14 SCRA 996.
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