THE MINORS ALBERTO, NENITA, HILLY, CRISTY, AND MARIA SALOME ALL SURNAMED BADILLO, ASSISTED BY THEIR GUARDIAN MODESTA BADILLO, VS. CLARITA FERRER, DEFENDANT, GREGORIO SOROMERO AN…

This case was certified to this Court by the Court of Appeals which found in its Resolution
dated August 13, 1979, that the issues raised therein are
pure questions of law.  The instant case is treated as a
petition for review on certiorari.

The facts of this case as found by the Court of Appeals are as
follows:

“xxx Macario Badillo
died intestate on February 4, 1966,
survived by his widow, Clarita Ferrer, and five minor
children:  Alberto 16, Nenita 14, Hilly 12, Cristy 9,
and Maria Salome 5.  He left a parcel of
registered land of 77 square meters in Lumban,
Laguna, with a house erected
thereon, valued at P7,500.00, (the “PROPERTY”, for short).  Hence, each of the five minor plaintiffs had
inherited a 1/12 share of the P7,500.00, or P625.00 each, which is less than
the P2,000.00 mentioned in Article 320 of the Civil Code.

“On January 18, 1967,
the surviving widow, in her own behalf and as natural guardian of the minor plaintiffs, executed a Deed of Extrajudicial Partition and Sale
of the PROPERTY through which the PROPERTY was sold to defendants-appellants,
the spouses Gregorio Soromero and Eleuteria
Rana.  The
Register of Deeds at Sta. Cruz, Laguna, extended recognition to the validity of
the Deed of Extrajudicial Partition and Sale,
recorded the same, and issued a new
transfer certificate of title to defendants-appellants.  x x x.

On November 11, 1968,
Modesta Badillo, a sister of Macario
Badillo, was able to obtain guardianship over the
persons and properties of the minor plaintiffs, without personal notice to
their mother, who was alleged “could not be located inspite
of the efforts exerted” (ROA, p. 26).

“On July 23, 1970, their guardian caused the minor plaintiffs
to file a complaint in the case below for the annulment of the sale of their
participation in the PROPERTY to defendants-appellants and, conceding the
validity of the sale of the widow’s participation in the PROPERTY, they asked that, as co-owners, they be allowed to exercise the right of legal
redemption.

“The lower court defined the issues in the case below as
follows:

‘(1) Was the sale of
the shares of the plaintiffs in the ownership of the land in question which was
made by their mother, defendant Clarita Ferrer Badilla, in favor of the defendant spouses Gregorio Soromero and Eleuteria Rana as evidenced by the document marked as Exhibit
“A” for the plaintiffs and Exhibit “2” for the defendants,
valid and binding upon the plaintiffs?

(2)  May the plaintiffs, as co-owners of the property in question, still exercise their
right of redemption under Art. 1620 and pursuant to Art. 1623 of the Civil
Code; and if so, for how much?’

“The lower court, invoking the Nario
case (Nario vs. Philippine American Life Insurance
Co., 20 SCRA 434), promulgated the appealed judgment annulling the sale to
defendants-appellants of the minor plaintiffs’ participation in the PROPERTY,
and allowing them to redeem the sold participation of their mother.”^[1]

In this appeal, the defendants-appellants assign the following errors:

I

THE COURT ERRED IN FINDING THAT THE PERIOD OF THIRTY (30) DAYS
PROVIDED FOR BY ARTICLE 1623 OF THE NEW CIVIL CODE FOR PLAINTIFFS TO REDEEM THE
SHARE OF THEIR MOTHER IN THE PROPERTY SUBJECT OF THEIR CO-OWNERSHIP SOLD BY THE
LATTER TO DEFENDANTS HAS NOT YET ELAPSED.

2

THE COURT ERRED IN DECLARING THE SALE BY CLARITA FERRER BADILLO OF
THE 5/12 SHARE OF HIS CHILDREN ON THE PROPERTY INVOLVED TO DEFENDANTS AS NULL
AND VOID AND RELATIVE THERETO THE COURT CONSEQUENTLY
ERRED IN ITS FAILURE TO ORDER PLAINTIFFS MINORS TO RETURN TO DEFENDANTS THE
PURCHASE PRICE AS WELL AS THE VALUE OF THE IMPROVEMENTS MADE BY DEFENDANTS ON
THE PROPERTY.

3

THE COURT ERRED IN ORDERING THE DEFENDANTS TO RE-SELL TO PLAINTIFFS
THE REMAINING 7/12 PORTION OF THE PROPERTY IN QUESTION IN THE AMOUNT OF
P4,375.00.^[2]

The Statutory provision involved in the first error assigned is
Article 1623 of the New Civil Code, which is hereunder reproduced, thus:

“ART. 1623.  The right
of legal pre-emption or redemption shall not be exercised except within thirty
days from the notice in writing by the prospective vendor, or by the vendor, as
the case may be.  The deed of sale shall
not be recorded in the Registry of
Property, unless accompanied by an affidavit of the vendor that he has given
written notice thereof to all possible redemptioners.

“The right of redemption of co-owners excludes that of
adjoining owners.”

Under their first assignment of error, the appellants advance the
view that “the requisite notice in writing provided for by Article 1623 of
the New Civil Code was already received by the minors-plaintiffs thru their
then legal guardian, Clarita Ferrer Badillo, their mother, on the date the deed of
extra-judicial partition and sale was executed on January 18, 1967. 
And the thirty-day period of redemption must be reckoned from this
date.”^[3]
Stated differently, under Article 320 of the New Civil Code, the right granted
to Clarita Ferrer Badillo
to administer her children’s property if the same is less than P2,000.00
includes the right to receive for her minor children such notice in
writing.  When she received her copy of
the Deed of Extrajudicial Partition and Sale,
Clarita Ferrer Badillo in
effect received a notice in writing of the said sale in behalf of her minor
children.

This argument is meritorious.

Articles 320 and 326 of the New Civil Code state that:

“ART. 320.  The father,
or in his absence the mother, is the legal administrator of the property
pertaining to the child under parental authority.  If the property is worth more than two
thousand pesos, the father or mother shall give a bond subject to the approval
of the Court of First Instance.

“ART. 326.  When the
property of the child is worth more than two thousand pesos, the father or
mother shall be considered a guardian
of the child’s property, subject to the duties and obligations of guardians
under the Rules of Court.”

In other words, the father, or in his
absence the mother, is considered the legal administrator of the property
pertaining to his child under parental authority without need of giving a bond
in case the amount of his child’s property does not exceed Two Thousand Pesos.

Rule 93, Section 7, of the Revised Rules of Court goes further by
automatically designating the parent as the legal guardian of the child without
need of any judicial appointment in case the latter’s property does not exceed
Two Thousand Pesos.  It reads, thus:

“SEC. 7.  Parents as
guardians.  – When the property of the
child under parental authority is worth two thousand pesos or less, the father
or the mother, without the necessity of court appointment, shall be his legal
guardian.  When the property of the child
is worth more than two thousand pesos, the father or the mother shall be
considered guardian of the child’s property, with the duties and obligations of
guardians under these rules, and shall file the petition required by section 2
hereof.  For good reasons the court may,
however, appoint another suitable person.”

Our standing jurisprudence reveals that there is a case which is
applicable to the case at bar.  This case
involved an interpretation of Article 1524 of the Old Civil Code, the statutory
provision from which Article 1623 of the New Civil Code originated and the one
which the latter amended.  The two
articles are basically the same except that Article 1623 mandates a longer
period for redemption and limits the manner of transmitting the notice of the
sale of the property co-owned to one in writing served by the vendor.

The case is Villasor vs. Medel, et al.^[4]

In this case, the co-owner plaintiff, upon reaching the age of majority, sought to redeem a portion of a large tract of land
which was sold to the defendant while the former was still a minor.  The plaintiff,
during his minority, became a co-owner of an undivided property which he, together with his cousins,
acquired by donation from his grandmother. 
A legal guardian was duly appointed by the court to represent the minor
co-owners.  This legal guardian later sold, with the necessary
permission of the court, the shares of three co-owners to the defendant.  When
the plaintiff reached the age of majority, he wanted to redeem the said shares.

This Court ruled in favor
of the defendant, holding that:

“The law in
prescribing certain contingencies as the starting point from which the
nine-day period should be counted, is to be presumed to exclude all
others.  Exclusio unius est exclusio alterius.  The
starting point is registration or,
in the absence of registration, knowledge of the conveyance by the co-owners.  It is logical to assume that if minority had
been contemplated, the law would have
so expressly stated.  This is specially true
in a code which, unlike an ordinary
statute, is framed with meticulous care and thorough reflection.  The role of minors in cases of legal
redemption is too conspicuous and perceptible to have been overlooked in the
framing of article 1524.  The onerous
position of the purchaser and considerations of public interest, we believe,
forbade liberality as to time in favor of redemptioners;
hence the limitation of the causes of extension to those factors (actual or
constructive notice) without which the exercise of the right of redemption
would not be possible.  The shortness of
the period fixed in the above article is itself a safe index, in our opinion,
of its peremptoriness and inflexibility.”

“xxx The
present appellant not only had such a guardian but it was this very guardian,
Jose C. Villasor, who, as guardian of plaintiff’s
cousins and former co-owners, sold the lots in question to the defendant-appellee.  This
guardian not only could have repurchased those lots for the plaintiff within
nine days but could have sold them, with the court’s authority, directly to the
plainttiff himself instead of to Medalla.”^[5]

In the decision, this Court frowned
against a liberal interpretation of the codal
provision prescribing the period for legal redemption, hence, the following
disquisition, to wit:

xxx legal redemption is in the nature of a mere privilege created
by law partly for reasons of public policy and partly for the benefit and
convenience of the redemptioner, to afford him a way
out of what might be a disagreeable
or inconvenient association into which he has been thrust.”

“xxx The right of legal redemption is a pure creature of the law regulated by law, and works only one
way – in favor of the redemptioner.  Not having parted with anything, the legal redemptioner can compel the purchaser to sell but can not
be compelled to buy.

“We do not believe that the framers of the Civil Code ever intended to countenance a
situation so unjust to one of the parties and prejudicial to social
interest.  The construction of article
1524 which the plaintiff offers would keep the property in a state of indivision
even if one of the co-owners wanted to separate.  This is contrary to the express policy of the law that ‘No
co-owner shall be obliged to remain a party to the community, but each may, at
any time, demand partition of the thing held in common.’ (Article 400, Civil
Code.) It would be extremely unfair to the purchaser and injurious to the
public welfare to keep in a state of suspense, for possibily
as long as 20 years or more, what his co-owner might do when he becomes of
age.  While the uncertainty continued the
purchaser could not make any improvement on the property without running the
risk of losing his investments and the fruits of his labor.”^[6]

The wisdom that can easily be formulated in reconciling the laws
and the case discussed above is that the period fixed for legal redemption in
accordance with Article 1623 (then Article 1524) of the New Civil Code will run against a minor co-owner duly
represented by a judicially appointed guardian, provided that said guardian is served with the necessary written
notice by the vendor.  Corollary to this,
the period fixed for legal redemption will also run against a minor co-owner
whose property is valued no more than Two Thousand Pesos and who is merely
represented by his father or mother with no judicial appointment as a guardian
because according to Rule 93, Section 7, of the Revised Rules of Court, the
parent in this situation is automatically the child’s legal guardian.  Of course, the parent-guardian must first be
served with a notice in writing of the sale of an undivided portion of the
property by the vendor in order that the period for redemption may begin to
accrue.

In the case at bar, the value of the property of each appellee minor does not exceed Two Thousand
Pesos.  The Court of Appeals found that
each of them inherited only an undivided portion worth P625.00.^[7]
Therefore, after the minors’ father
died, their mother, Clarita Ferrer Badillo, automatically became their legal guardian.  As such, she acquired the plenary powers of a judicial guardian except that power to alienate or encumber her
children’s property without judicial authorization.^[8]

When Clarita Ferrer Badillo
signed and received on January 18,
1967, her copy of the Deed of Extrajudicial Partition and Sale,
the document evidencing the transfer of the property in question to the
appellants, she also in effect received the notice in writing required by
Article 1623 in behalf of her children. 
This manner of receiving a written notice is specifically sanctioned by
the case of Conejero, et al. vs. Court of
Appeals, et al.^[9]
Thus, in this case, the period of redemption began to toll from the time of
that receipt.

On the other hand, the judicial guardian of the appellee minors, Modesta Badillo, was only appointed as such on November 11, 1968.  She thereafter manifested her desire to
redeem the property from the appellants, formalizing such intention in the
complaint that was finally filed for this case on July 23, 1970.

Since the required written notice was served on January 18, 1967 and the offer to
redeem was only made after November
11, 1968, the period for legal redemption had already expired and
the appellants cannot now be ordered to reconvey to
the appellees that portion of the undivided property
which originally belonged to Clarita Ferrer Badillo.

Under the second assignment of error, the appellants contend that
the Deed of Extrajudicial Partition and Sale,
in so far as it sold to them the
appellee minors’ share of 5/12, is a voidable contract pursuant to Article 1390 of the New Civil
Code.  They then quoted verbatim the text
of the said article without identifying the particular portion of that
provision which directly supports their contention.

According to the appellants, in case a voidable
contract is annulled, Article 1398 requires the restitution by the contracting
parties to each other of the things received by them under the contract.  The appellants, however, concede that by
express mandate of Article 1399, full restitution cannot be ordered from the
minors involved in the contract.  Said
minors can only be required to restore partially, only to the extent of the
benefits they received by virtue of the questioned contract.

This contention is untenable.

The Deed of Extrajudicial Partition and Sale
is not a voidable or an annullable contract under
Article 1390 of the New Civil Code. 
Article 1390 renders a contract voidable if
one of the parties is incapable of giving consent to the contract or if the
contracting party’s consent is vitiated by mistake, violence, intimidation,
undue influence or fraud.  In this case,
however, the appellee minors are not even parties to
the contract involved.  Their names were
merely dragged into the contract by their mother who claimed a right to
represent them, purportedly in accordance with Article 320 of the New Civil
Code.^[10]

The Deed of Extrajudicial Partition and Sale
is an unenforceable or, more specifically, an unauthorized contract under
Articles 1403(1) and 1317 of the New Civil Code.  These provisions state that:

“ART. 1403.  The
following contracts are unenforceable, unless they are ratified:

“(1) Those
entered into in the name of another person by one who has been given no
authority or legal representation, or who has acted beyond his powers;
xxx”

“ART. 1317.  No one may contract
in the name of another without being authorized by the latter, or unless he has
by law a right to represent him.

“A contract entered into in the name of another by one who has
no authority or legal representation, or who has acted beyond his powers, shall
be unenforceable, unless it is ratified, expressly or impliedly, by the person
on whose behalf it has been executed, before it is revoked by the other
contracting party.”

Clearly, Clarita Ferrer Badillo has no authority or has acted beyond her powers in
conveying to the appellants that 5/12 undivided share of her minor children in
the property involved in this case.  The
powers given to her by the laws as the natural guardian covers only matters of
administra­tion^[11]
and cannot include the power of disposition.^[12]
She should have first secured the permission of the court before she alienated
that portion of the property in question belonging to her minor children.^[13]

The appellee minors never ratified this
Deed of Extrajudicial Partition and Sale.  In fact, they questioned its validity as to
them.  Hence, the contract remained
unenforceable or unauthorized.  No
restitution may be ordered from the appellee minors
either as to that portion of the purchase price which pertains to their share
in the property or at least as to that portion which benefited them because the
law does not sanction any.

The third error assigned need not be discussed further because
Our pronouncement on the first assignment of error has rendered it
academic.  Suffice it to state that since
the 30-day period for redemption had already lapsed, the appellants cannot be
ordered to re-sell to the appellees the remaining
7/12 portion of the property in question.

In view of the foregoing, the appellants are hereby ordered to
restore to the appellees the full ownership and
possession of the latter’s 5/12 share in the undivided property by executing
the proper deed of reconveyance.  The appellants’ ownership over the remaining
7/12 share in the undivided property is hereby confirmed.

WHEREFORE, the decision under review is hereby modified
accordingly and appellants are directed to deliver possession of above appellees‘ share, with no pronouncement as to costs.

SO ORDERED.

Teehankee, C.J., Narvasa,
Cruz, and Paras,
JJ., concur.

^[1]
Rollo, pp. 57-58, CA Resolution.

^[2]
Brief for the defendants-appellants, pp. 1-2.

^[3]
Ibid., p. 7.

^[4]
No. C.A.-8677, September 29, 1948,
81 Phil. 546.

^[5]
Ibid, at 550-551, 553.

^[6]
Ibid, at 550 and 552.

^[7]
Rollo, p. 57, CA Resolution.

^[8]
Nario vs. Philippine American Life Ins. Co.,
L-22796, June 26, 1967.

^[9]
G.R. No. L-21812, April 29, 1966,
16 SCRA 775.

^[10]
Deed of Extrajudicial Partition & Sale, p. 14, 19, Record on Appeal.

^[11]
Art. 320, New Civil Code.

^[12]
Rule 93, Sec. 7, Revised Rules of Court.

^[13]
Nario vs. Phil. American Life Ins. Co., supra.