LEONORA ESTOQUE, PLAINTIFF-APPELLANT, VS. ELENA M. PAJIMULA, ASSISTED BY HER HUSBAND CIRIACO PAJIMULA, DEFENDANTS-APPELLEES.

Direct appeal from an
order of the Court of first instance
of La Union, in its Civil Case No. 1990, granting a motion to dismiss the
complain for legal redemption by a co-owner (retracto
legal de comuneros) on account of failure to state a cause of
action.

The basic facts and
issues are stated in the decision appealed from, follows:

“Plaintiff based her complaint for legal redemption on a claim
that she is a co-owner of lot No. 802, for having purchased 1/3 portion
thereof, containing an area of 640 square meters as evidenced by a deed of
sale, Annex “A”, which was executed on October 28, 1961 by Crispina Perez de Aquitania, one
of the co-owners, in her favor.

On the other hand, the defendant, who on December 30, 1959 acquired
the other 2/3 portion of Lot No. 802 from Crispina Aqui­tania and her children, claimed that the plaintiff
bought the 1/3 southeastern portion, which is definitely identified and,
segregate hence there existed no co-ownership at the time and after said
plaintiff bought the aforesaid portion, upon which right of legal redemption can
be exercised or taken advantage of.

From the complaint, it would appear that Lot No. 802 of the
Cadastral survey of Rosario, covered by original certificate of title No. RO-2720 (N.A.), was originally owned by the late spouses Rosendo Perez and Fortunata Bernal,
who were survived by her child namely, Crispin Perez, Lorenzo Perez and Ricardo
Perez.  Ricardo Perez is also now
dead.  On October 28, 1951, Crispina P. Vda.
de Aquitania sold
her right and participation in Lot No. 802 consisting of 1/3 portion with an
area of 640 square meters to Leonora Estoque (Annex
of the complaint).  On October 29, 1951,
Lorenzo Perez, Crispina Perez and Emilia
P. Posadas, widow of her deceased husband, Ricardo
Perez, for herself and in behalf of her minor
children, Gumersendo, Raquel, Emilio a and Ricardo.
Jr., executed a deed of extrajudicial settlement
wherein Lorenzo Perez, Emilia P. Posadas
and her minor children assigned all their right, interest and participation in
lot No. 802 to Crispina Perez (Annex B of the complaint).  On December 30, 1959, Crispina Perez and her children,
Rosita Aquitania Belmonte, Remedios Aquitania Misa, Manuel Aquitania, Sergio Aquitania and Aurora Aquitania
sold to Elena Pajimula, the remaining 2/3 western
portion of Lot No. 802 with an area of 958 square meters (Annex C of the
complaint).

The action of the plaintiff
is premised on the claim of co-ownership.  
From the deed of sale executed in favor of the plaintiff, it can be seen
that the 1/3 portion sold to plaintiff is definitely identified as the 1/3
portion located on the south­eastern part of Lot No. 802 and specifically bounded on the north by De
Guzman Street, on the east by Posadas street, on the
sought by Perez street, and on the west by remaining portion of the same lot,
which contained an area of 640 square meters. 
And in the deed of sale executed by
Crispina
Perez and her children in favor of defendant Elena Pajimula
over the remaining 2/3 portion of Lot No. 802, said portion is identified as
the western portion of Lot No. 802
which is bounded on the north by Dc Guzman street, on the east by properties of
Leonarda Estoque, on the
sought by the nation­al mad and on the west by Lots
Nos. 799 and 801, containing an area of 958 square meters.’

The appellant’s stand is that the deed in her favor was inoperative
to convey the southeastern third of Lot 802 of the Rosario Cadastre
notwithstanding the description in the deed itself, for the reason that the
vendor being a mere co-owner, had no right to sell any
definite portion of the land held in common but could only transmit her
undivided share, since the specific portion corresponding to the selling
co-owner is not known until partition takes place (Lopez vs. Ilustre, 5 Phil. 567; Ramirez vs. Bautista 14
Phil. 528).  from
this premise, the appellant argues that the sale in
her favor, although describing a definite area, should be construed as having
conveyed only the undivided 1/3 interest in Lot 802 owned at the time by
the vendor, Crispina Perez Vda.
de Aquitania.  Wherefore, when the next day said vendor
acquired the 2/3 interest of her two other co-owners, Lot 802 became the common property
of appelant and Crispina Perez.  Therefore, appellant argues, when Crispina old the rest of the property to appellee Pajimula spouses,
the former was selling an
undivided 2 /3 that appellant, as co-owner was entitled to redeem, pursuant to Article 1620 of the New Civil
Code.

“ART. 1620.  A co-owner
of a thing may exercise the right of redemption in case the shares of all the
other co-owners or of arty of them, are sold to a third person.  If the price of the alienation is grossly
excessive the redemptioner shall pay only a
reasonable one.

Should two or more co-owners desire to exercise the right of
redemption, they may only do so in proportion to the share they may
respectively have in the thing owned in common.

The lower court, upon
motion of defendant, dismissed the complaint, holding that the deeds of sale
show that the lot acquired by plaintiff Estoque was
different from that of the defendants Pajimula; hence
they never became co-owners, and the alleged right of legal redemption was not
proper.  Estoque
appealed.

We find no error in the
order of dismissal, for the facts pleaded negate the claim that appellant Estoque ever became a co-owner of appellee
Pajimula.

(1) The deed of sale to Estoque (Annex A
of the complaint) clearly specifies the object sold as the southeastern third
portion of lot 802 of the Rosario Cadastre, with an area of 840 square meters,
more or less.  Granting that the seller, Crispina Perez Vda. de Aquitania could not have sold this particular portion of
the lot owned in common by her and her two brothers, Lorenzo and Ricardo Perez,
by no means does it follow that she intended to sell to appellant Estoque her 1/3 undivided interest in the lot aforementioned.  There is nothing in the deed of sale to
justify such inference.  That the seller
could have validly sold her one-third undivided interest to appellant is no
proof that she did choose to sell the same. 
Ab posse ad actu non
vale illatio.

(2) While on the date of the sale to Estoque
(Annex A) said contract may have been ineffective, for lack of power in the
vendor to sell the spec portion described in the deed, the transaction was
validated and became fully effective when the next day (October 29, 1951) the
vendor, Crispina Perez, acquired the entire interest
of bar remaining co-owners (Annex B) and there became the sole owner of Lot No.
802 of the Rosario Cadastral survey (Llace, vs. Muñoz, 12 Phil. 328). 
Article 1434 of the Civil Code of the Philippines
clearly prescribes that –

“When a person who is not the owner of a thing sells or alienates and delivers it, and later the seller
or grantor acquires title thereto such title passes by operation of law to the
buyer or grantee.”

Pursuant to this rule,
appellant Estoque became the actual owner of southeastern
third of lot 802 on October 29, 1951. 
Wherefore, she never acquired an undivided interest in lot 802.  And when
eight years later Cris Perez sold to the appellees Pajimula the western
two-thirds of the same lot appellant did not acquire a right to redeem the
property thus sold, since the respective portions were distinct and separate.

IN VIEW OF THE
FOREGOING, the appealed
order of dismissal is affirmed.  Costs against appellant Estoque.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Sanchez, Ruiz Castro, Angeles, and
Fernando, JJ., concur.