LEONARDO SANTOS, ET AL., PETITIONERS VS. HON. ANGEL H. MOJICA, ET AL., RESPONDENTS.

Teodorico Allanigue, et al, filed on March 19, 1959 before the Court
of First Instance of Rizal an action for partition of a piece of
residential land situated in Parañaque, Rizal. In that case, the court a quo
found that the land was originally owned by Apolonio Allanigue who died
sometime in 1932 leaving as heirs his children by his first and second
marriages, together with his second wife. Rosa De Leon. Hence, the
Court ordered that the property, which was owned in common, be
partitioned among the twelve (12) heirs, giving one-twelfth share to
each, by executing the proper deed of conveyance within thirty days
from receipt of the decision, and that in case they are unable to agree
on the partition, it would appoint commissioners to undertake the same.

This decision became final, and as the heirs failed to come to an
amicable partition, the court appointed commissioners who undertook the
partition in line with the decision. To one Lorenza Allanigue was
awarded a portion having an area of 30 sq. m. situated at the
southwestern portion of the land, which was ordered set off to what she
was sentenced to pay as rentals in the amount of P990.00 and as she
failed to pay such amount, a writ of execution was issued against her,
as well as against those who derive interest from her.

When the sheriff tried to carry out the execution by ejecting
Lorenza Allanigue, et al. from the premises, one Leonardo Santos gave
notice to the sheriff stating that the writ could not be enforced
against the property for the simple fact that the same is his property
and as such could not be included in the partition subject of the case
in litigation. As a result, the sheriff informed the court of the
third-party claim of Leonardo Santos. Thereupon, the court a quo
issued an order requiring the plaintiffs to file an indemnity bond if
they wanted to continue with the execution. This the plaintiff did, and
as the sheriff proceeded with the execution, Leonardo Santos filed a
motion praying for the recall of the writ stating therein the reason he
already advanced that he is the owner of the property against which the
execution was being enforced by the sheriff. This motion was denied.
Then the court gave Santos, as well as the other occupants of the land,
30 days within which to vacate the premises, and having refused to do
so, the court set a date fox hearing relative to the demolition of the
houses standing on the land.

The occupants were Maria and Felicidad San Agustin and Lorenza
Allanigue who opposed the motion for the issuance of the order of
demolition. This opposition, however, was overruled, and the court
ordered the demolition of the houses. Their motion for reconsideration
having been denied, the oppositors interposed the present petition,
together with Leonardo Santos, imputing grave abuse of discretion to
the court a quo. This Court gave due course to the petition, but declined to grant the writ for preliminary injunction.

It appears that this special civil action stemmed from the complaint
for partition filed by the heirs of the original owner of the land,
Apolonio Allanigue, with the exception of Lorenza Allanigue, who,
together with Maria and Felicidad San Agustin, the actual occupants of
a portion of the land, were made defendants therein, wherein the court a quo
found that the only heirs who should be allowed to participate in the
partition were the twelve children of the deceased by his first arid
second marriages, together with the second wife by the name of Rosa De
Leon. And so the court a quo ordered that the property be
partitioned among the twelve heirs stating that, if they could not do
so amicably, it would appoint commissioners to undertake the partition.
This the court did, and what was adjudicated to Lorenza Allanigue was a
portion with an area of 30 sq. m. situated at the southwestern portion
of the land in question. This decision became final for lack of appeal
on the part of the defendants. It follows, therefore, that Lorenza
Allanigue, as well as Maria and Felicidad San Agustin, who appear
herein as co-petitioners, have no reason to complain against respondent
court, nor allege grave abuse of discretion in ordering the enforcement
of its decision, for they had an adequate and proper remedy in the
course of law which they failed to avail of for reasons that do not
appear clear in the record.

It is true that Leonardo Santos, another petitioner, was not a party
in the partition case because apparently the plaintiffs did not know
that he acquired a portion of the land from his parents Simeon Santos
and Lorenza Allanigue, even if his right was merely derivative from
that of his mother Lorenza, but the procedure followed by him in
vindicating his right is not the one sanctioned by law for he should
have filed a separate and independent action making parties therein the
sheriff and the plaintiffs responsible for the execution. Apparently,
this he failed to do. What he did was to file a motion in the partition
case for the recall of the writ of execution, and when this was denied
and the court proceeded with the demolition of the houses standing on
the land, he interposed the present petition for certiorari, together
with Lorenza Allanigue and Maria and Felicidad San Agustin. It can,
therefore, be said that Leonardo Santos has also acted improperly in
filing the present petition because his remedy was to file a separate
and independent action to vindicate his ownership over the land.

Wherefore, petition is denied. No costs.

Bengzon, C. J., Padilla, Labrador, Concepción, Reyes, J. B. L., Barrera, Paredes, Regala and Makalintal, JJ., concur.