GR L 14242; (September, 1920)

EN BANC

G.R. No. L-14242; September 20, 1920

JULIAN REYES, ET AL., plaintiffs-appellant,

vs.
FRANCISCA CORDERO, MARIA CORDERO, and AMANDO GATMAITAN, defendants-appellees.

Gabriel N. Trinidad and Fernando Torrillo for appellants.
Ambrosio Santos for appellee Gatmaitan.
No appearance for the other appellees.

ARAULLO, J.:

The complaint presented in the Court of First Instance of Bulacan prayed that after trial judgment be rendered ordering the partition, in accordance with law, of the land described in paragraph 2 thereof. To this end the plaintiffs alleged that they and the defendants Francisca Cordero and Maria Cordero were the descendants of the owner of said parcel of land, Leon Alfaro, who died long ago in the municipality of Paombong, Province of Bulacan; that upon his death one of his daughter, Felipa Alfaro, now deceased, mother of the defendants Francisca and Maria Cordero, succeeded him in the possession thereof; and that said land was still undivided property of the heirs. It was also alleged in paragraph 6 of the complaint that the other defendant, Amando Gatmaitan, was made a party because he was in possession of said land, claiming a supposed interest adverse to that to the plaintiffs.

To the complaint a demurrer was presented by the defendant Amando Gatmaitan on the grounds of misjoinder of parties in that he was made a party defendant and that the facts alleged did not constitute a cause of action as to him. After hearing, the court, by order of February 9, 1918, sustained the demurrer, to which order the plaintiff excepted. The plaintiffs not having amended their complaint within the time fixed by the rules of court, the court dismissed the case as to said defendant, Amando Gatmaitan, to which action of the lower court the plaintiffs also excepted and brought the case to this court on appeal by bill of exceptions.

The question presented in this proceeding is whether the defendant Amando Gatmaitan, who is neither a descendant of the deceased Leon Alfaro, nor a coheir or coowner of the plaintiffs and the other two defendant, as to the land described in the complaint, may be made a party to the suit for partition instituted by the plaintiffs, or, in other words, whether his joinder as a party defendant was proper.

An action for partition of real property, as the name itself clearly suggests, is a judicial controversy between persons, who, being coowners or coparceners thereof, seek to secure a division or partition among them of the common property, giving to each one the part corresponding to him.

The right to bring such action or to ask at any time for the division of the common property belongs solely to a coowner or coparcener (art. 400, Civil Code, and section 181, Code of Civil Procedure). The action for partition of real property cannot therefore be instituted except by the coowners or coparceners of said property, and cannot be maintained against persons who are not such, because in an action for partition of such property it is an indispensable requisite that there should be common ownership of the thing and that the parties, plaintiffs and defendants, should be coowners of coparceners.

NATURE AND OBJECTS OF PARTITION. ? The object of partition proceedings is to enable those who own property as joint tenants, or coparceners or tenants in common, to put an end to the tenancy so as to vest in each a sole estate in specific property or an allotment of the lands or tenements. . . . (Ruling Case Law, vol. 20, p. 716, paragraph 2.)

. . . It is generally held that it is a prerequisite to the maintenance of a proceeding for the compulsory partition of lands that the petitioner have, at the commencement of such proceeding, an actual or constructive possession, in common with the defendants, of the land sought to be partitioned. . . . (Id., p. 730, paragraph 13.)

This court has laid down the doctrine in several cases, among them, that of Rodriguez vs. Ravilan (17 Phil., 63), that:

In an action for the partition of property held in common, it is assumed that the parties by whom it is prosecuted are all coowners or coproprietors of the property to be divided, as he who claims or demands the partition of property of common ownership must necessarily have the status of coproprietor of the undivided property.

In such an action for partition the question of common ownership is not to be argued, nor the fact as to whether the interested parties are or are not the owners of the property in question, but only as to how, and in what manner, and in what proportion the said property of common ownership shall be distributed among the interested parties by order of the court.

The appellants admit in their brief that it is not alleged in the complaint that the defendant Amando Gatmaitan is made a party for the reason that he is owner or possessor of the property in that capacity; and they state that, as it has been alleged therein that he is possession of the land and claims a supposed interest opposed to that of the plaintiff, these facts are matters of proof, the burden of which is upon the plaintiffs. This is just the error committed by the plaintiffs. Had it been alleged that the possession of the defendant was in the capacity of coowner with the plaintiffs or that his interest opposed to that of the latter consists in his having been subrogated by assignment, sale, or other mode of transferring ownership, to the proprietary right which any of the other defendants had in the property in question, then the joinder of the defendant Gatmaitan as such would have been proper, inasmuch as every coowner has the absolute right to his part and consequently may alienate, assign, or mortgage it and even substitute another in its enjoyment, the effect of the alienation being of course limited to the part which may be adjudicated to him upon the division of the thing in common (art. 399, Civ. Code). Said defendant, as coowner and coparcener, as to a part of the property, would have the right to be a party to the partition proceeding, and, in such case, if he is not joined as defendant, he could intervene. This is the reason why it is provided in section 183 of the Code of Civil Procedure that the complaint in partition proceedings should, besides stating the nature of the title of the plaintiff and describing the real property sought to be partitioned, also name as defendant every tenant in common, coheir or other person interested in said property. But he could by no means be joined in the complaint as defendant, with the right to prove his common ownership with the plaintiffs and the other two defendants or his corresponding right to the property, because this would amount to converting the partition proceeding into another proceeding for ejectment or unlawful entry against said defendant; and it would serve as a means by which the plaintiffs could investigate the right or interest which the defendant Gatmaitan claim to possess in the property which is the subject-matter of the complaint for partition.

One who holds property in common and pro indiviso with others has a perfect right to have a division made of the same. No hindrance to the exercise and effectiveness of this right can lie in any conveyances made of various portion of the property by some of the cotenants thereof in favor of other persons, for the law, besides granting these latter the right to a voice in the division of the thing owned in common and to object to any division made without their concurrence, considers them, in an action for the partition of real estate, as subrogated to the rights of the vendors in the portion of the property in their possession. (Arts. 399, 400, 403, and 1051, Civil Code; sec. 762, Code of Civil Procedure.) (Dancel vs. Dancel, 29 Phil., 25.)

. . . It has been held that under a statute providing that during the pendency of any partition suit any person claiming to be interested in the premises may appear and assert his right, the right to intervene is given to all persons claiming an interest in the land, whether under the common title sought to be partitioned or by title independent thereof. But even under statutes allowing the adjudication of the rights and interests of the parties to a bona fide partition suit, an action for partition cannot be used as a substitute for the action of ejectment nor for the sole purpose of testing a legal title. (Ruling Case Law, vol. 20, p. 730, paragraph 12.)

Neither would the doctrine laid down by this court in Araullo vs. Araullo (3 Phil., 567), relied upon by the plaintiff, justify the joinder of Amando Gatmaitan as defendant, in view of the allegations of the complaint as to him. In that case, the property sought to be partitioned was in the actual possession of a third persons who enjoyed possession as owners without being joined as parties to the proceeding, that is they claimed to be owners of the property by virtue of a title opposed to that both the plaintiff and the defendants, and the commissioners who were to effect the partition had already been appointed by the court. This court declared that the proceedings could not be continued because the commissioners appointed to effect the partition had no right, for the purpose of taking a view as required by law, to enter lands possessed by third persons as owners, who were not made parties in the partition proceeding; but the following is stated in the body of the decision: “Whether the persons should be made parties to the partition suit and their claims there determined, or whether an independent action must be brought against them, we do not decide.” Therefore this court did not hold in that case, as appellants seem to have understood that in a complaint for partition of property in order that the proceedings might be continued those persons should be joined as defendants who, being in possession of the property or part thereof, alleged themselves to be the owners thereof by virtue of a title opposed to that of the parties to the proceeding, or claim an interest adverse also to theirs; on the contrary the court abstained from deciding it, and did not determine whether they should be included as parties in the same proceeding or whether a new and independent action should be instituted against them.

Nevertheless it is indisputable that when the property which is yet undivided among various coowners has been usurped or is in the possession of a third person who claims a title opposed to that of the former, the common owners thereof may recover it in a proper proceeding, for, as the supreme court of Spain has held in its decision of April 6, 1896 (79 Jur. Civ., 641), “Any coowner of an undivided property may bring an action to recover it for the benefit of all.” This once more shows that a person cannot be joined as defendant, who does not a possess the property as coowner or joint owner, but by virtue of a title the nature of which is unknown but opposed to those seeking partition thereof as coowners, or who possesses the same under a claim of interest opposed to the latter. A person who like the defendant, Amando Gatmaitan, is in this situation, may be sued in another proceeding, but not in a proceeding for partition.

The demurrer filed by said defendant to the complaint was therefore correctly sustained and the plaintiffs not having amended it within the time fixed by the rules of court, the dismissal thereof as to said defendant was proper.

The order appealed from is therefore affirmed, with costs. So ordered.

Mapa, C.J., Johnson, Malcolm, Avanceña and Villamor, JJ., concur.

Batas Pinas