ROSARIO CELO VDA. DE PAMA, FOR HERSELF AND IN BEHALF OF HER MINOR CHILDREN, NAMELY: JESSIE, AURORA, ROMEO, LILIA AND ARNOLD, ALL SURNAMED PAMA; AND VICTORIA JORDA, PETITIONERS, …

CONCURRING OPINION

AQUINO, J.:

This is a controversy over the proceeds of the sale of a
homestead. From the answer of Guillermo Pama, it
appears that in 1939, Matea Panes, a widow, and her
children named, Godofredo, Julieta
and Guillermo, all surnamed Pama, left Passi, Iloilo
and went to Barrio Tacurong, Buluan,
Cotabato in search of
greener pastures.

At Tacurong, they applied for three
adjoining homesteads with an area of around five hectares each, identified as
Lot No. 441, assigned to Godofredo Pama and his wife Rosarie Celo (petitioner); Lot. No. 462, assigned to Julieta Pama and her husband Ireneo Cancero, and Lot No. 463
assigned to Guillermo Pama and his wife Lourdes Pagayon (respondents).

Actually, Lot No. 463, the homestead of Guillermo, was applied
for by his mother, Matea Panes. His theory is that Matea Panes acted as trustee with himself as the
beneficiary. Matea resided with Guillermo, her
youngest child, who was then around twenty-one years old.

Julieta sold in 1946 her homestead
rights, left Tacurong, and resided at Barrio Banga, Koronadal with her
common-law husband, Severo Jorda,
the father of petitioner Victoria Jorda, and her two
legitimate daughters, Lolita and Evangeline Cancero. Julieta died in 1947.

Godofredo sold his homestead in 1949 for P7,000. Eventually, said homestead was bought by Roberto A. Tulio. Godofredo died in 1954.

In view of the
destruction of the records during the war, Guillermo renewed his homestead
application by paying the
initial fee of five pesos. Matea
Panes died in 1949. In 1952, Guillermo
submitted final proof of with the statutory requirements for his homestead, Lot
No. 463.

But as
the Original application was in his mother’s name, the patent and title, OCT
No. V-8900, were issued
on August 11, 1954 to
the “Heirs of Matea Panes”.

Guillermo Pama executed on June 16, 1956, or less than two years
after the issuance of the title, an affidavit adjudicating to himself the said
homestead, there being “no ascendant nor descendant left by the said
deceased (Matea Panes), except the herein affiant who
is of legal age” (Guillermo Pama). (p. 27, Rollo).

 As a consequence, OCT No. V-8900 in the name of “Heirs of Matea Panes” was cancelled and TCT No. T-4006 was
issued to Guillermo Pama on June 18, 1956, “subject to the
provisions of Section 4, Rule 74 of the Rules of Court, re claim of other
claimants, heirs, and creditors for a period of two (2) years”.

On March
10, 1969, more than
twelve years after he became the registered owner of the homestead, Guillermo Pama sold it to Roberto A. Tulio
for P70,000.

The sale to Tulio of the
homestead, which was effected after five years and before twenty-five years
after the issuance of the patent in 1954, was made without the approval of the
Secretary of Agriculture and Natural Resources. The Public Land Law provides:

“SEC. 118. x x
x                               x
x x                             x x x

“No alienation, transfer, or conveyance of any homestead after
five years and before twenty-five years after issuance of issuance of title shall be valid without the
approval of the Secretary of Agriculture and Commerce, which approval shall not
be denied except on constitutional and legal grounds.” (As
amended by Commonwealth Act No. 456.)

This point has never been
raised by the parties in their pleadings and briefs.

On May 5, 1969, the heirs
of Guillermo’s brother, Godofredo Pama,
and Victoria Jorda, the illegitimate daughter of his
deceased sister, Julieta Pama,
filed an action in the Court of First Instance of Cotabato,
Branch 4, against Guillermo Pama and his wife to
recover their share of the price of the homestead and the harvests thereof
from 1949 to 1969.

I am of the opinion that
Lot No. 463 was owned exclusively by Guillermo Pama. He
is entitled to the entire proceeds of the sale. Rosario Celo
and her children and Victoria Jorda have
no right to share in the proceeds. This might explain why Lolita Cancero and Evangeline Cancero,
the legitimate children of Julieta, did not join this
action.

Guillermo committed an
error in executing the affidavit of extrajudicial settlement but this may well
be equivalent to the dolus bonus (as
distinguished from dolus malus)
of the Roman Law. He had always occupied Lot No.
46 as his own homestead since 1979 when
he arrived at Tacurong.

I concur in the dismissal of the complaint.