TEOFILA FELICES, PLAINTIFF-APPELLANT, VS. FRANCISCO COLEGADO, DEFENDANT-APPELLEE.

Appeal from the decision of the Court of First In­stance of Camarines Sur, in its Civil Case
No. 5510, on a question of law — the facts having been stipulated by the
parties in the court below.

Felipe Felices died on November 5, 1938.  The only property left by him was a homestead
located in Barrio Curry, Pili, Camarines
Sur, comprising 21 hectares, more or less, for which
Original Certificate of Title No. 73 was issued in his name.  Soon after his death, five of his seven
surviving children, namely, Marta, Maria, Teofi­la, Silverio, and Pedro, all surnamed Felices,
physically partitioned among themselves the aforementioned home­stead, each one
taking actual and exclusive possession of the specific portion pertaining to
him/her, although no transfer certificate of title was issued in their
individual names.^[1]
On February 24, 1949, Maria
Felices sold her share to Roman Iriola
with right of repurchase (con pacto de
retro), which share is on the extreme northern part of the homestead,
more particularly des­cribed as follows:

“A parcel of irrigated rice land covering an area of four (4)
and one-fourth hectares situated in the barrio of Curry, municipality
of Pili, province
of Cam. Sur, Philippines,
bounded on the North by the property of Mamerto Iriola; on the East by the Himaao River;
on the South by the property of the heirs of Felipe Felices;
and on the West by the Lagundi Creek.  This land is an in­tegral part of the land
described under Original Certificate of Title No. 73 issued on October 20, 1948.  Proportio­nate assessed value:  P704.00″

Upon the insistence of Roman Iriola, the
deed of con­ditional sale was signed by all the brothers and sisters of Maria,
and soon after the execution of the deed Iriola took
possession of the above-described property.

Sometime in 1951, Silverio Felices, Pedro Felices, Marta Felices and Maria Felices agreed
to sell absolutely to Francisco Colegado their
respective shares in the homestead for the total price of P8,500.00.  Knowing, however, that such sale could not be
validly effected because of the prohibition to alienate a homestead with­in five
years from the issuance of the patent, they agreed to execute the document of
sale later on.  In the mean­time, and
inasmuch as the share of Maria Felices was still in
the possession of Roman Iriola by virtue of its
having been previously sold to him with right of repurchase, Fran­cisco Colegado advanced the amount for the repurchase of Maria’s
share from Roman Iriola.

When the repurchase price was offered to Roman Iriola, the latter refused to allow the repurchase.  The Felices
brothers and sisters (Silverio, Pedro, Marta and
Maria), therefore, consigned the amount for the repurchase with the court and
filed Civil Case No. 1991 in the Court of First Instance of Camarines
Sur to compel Roman Iriola
to allow the repurchase and accept the proferred
repurchase money.  In the complaint, Teofila Felices, the other sis­ter,
who had a share in the homestead, was joined as party defendant along with
Roman Iriola because she refused to join as a party
plaintiff with her brothers and sisters.

On September 11, 1953,
Maria, Marta, Silverio and Pedro, all surnamed Felices, and Francisco Colegado
final­ly executed a deed of absolute sale whereby the said Felices
brothers and sisters ceded to the latter their res­pective shares in the
homestead inherited by them from their deceased father.

On June 19, 1954,
a decision was rendered by the Court of First Instance of Camarines
Sur in Civil Case No. 1991 ordering Roman Iriola to allow Maria Felices to
repurchase the property that she had previously sold con­ditionally to
him.  Iriola
appealed from that decision to the Court of Appeals, and the latter court
affirmed the decision.  Upon payment by
Francisco Colegado, on August 21, 1962, of the sum of P2,053.61 to the heirs of
Roman Iriola^[2],
as finally determined by the Court of Appeals, said heirs surrendered the
possession of the land to Cole­gado.

Shortly thereafter, or on September 7, 1962, Teofi­la
Felices, thru her lawyer, addressed a letter to Fran­cisco
Colegado informing him of her desire to redeem the
parcel of land sold to him by Maria Felices and at
the same time offering the sum of P2,053.61 as the redemption price of the land
— which amount was later on deposited with the Clerk of Court — but this
offer to redeem was refused by Francisco Colegado.  On September 19, 1962, Teofila
Felices commenced the present action against Fran­cisco
Colegado in the Court of First Instance of Camarines Sur (Civil Case No.
5510), asserting that being a co-owner defendant Colegado
can be compelled to allow her to exer­cise the right or legal redemption over
that portion which her sister Maria Felices had
conditionally sold to Roman Iriola and later
repurchased from Iriola by Colegado,
in­voking the provision of Article 1620 of the Civil Code which reads:

“A co-owner of a thing may exercise the right of redemption in
case the shares of all the other co-owners or of any 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.”

In his answer, which contains a counterclaim, defen­dant
Francisco Colegado maintains that plaintiff is now precluded
to redeem the land in question.  He bases
his stand on Article 1088 of the same Code,^[3]
and asserts that once a property is partitioned among the heirs, as in the case
at bar, the sale by any one of the heirs of his share to a third person cannot
be the subject of re­demption by his co-heirs.

On February 26, 1964,
the trial court rendered its decision dismissing the complaint, as well as
defendant’s counterclaim, with costs against plaintiff.  In its de­cision, the trial court made the
following findings and conclusions:

“The partition of the homestead left by the deceased Felipe Felices is a fact undisputed by the parties.  This was the subject of their stipulation
which reads:

‘That even before the issuance of Original Certificate of Title No.
73 on October 20, 1948 to the deceased Felipe Felices
the children of the said deceased immediate­ly after his death had already made
a physical partition of the land among themselves, although no trans­fer
certificate of title was actual­ly issued in favor of each heir to his or her
corresponding share’.

“The partition conferred upon each heir ‘the exclusive
ownership of the pro­perty adjudicated to him’ (Javelesa
vs. Bar­rios, et al., 66 Phil. 107; Aliases vs. Alcan­tara,
16 Phil. 489, Alcala vs. Alcala,
35 Phil. 679).  In other words, after the
partition of the homestead of Felipe Felices
immediately following his death on November
5, 1938, the co-ownership or co-heirship
among his children ceased and each of them became the exclusive owner of the
portion of the homestead adjudica­ted to him or her own individual share.  Con­sequently, Teofila
Felices is not a co-owner of the share of Maria Felices in the said homestead and she has, therefore, no
right to redeem the same from Francisco Colegado.

“The defendant’s counterclaim for damages is not supported by
the evidence.  It is con­vincingly
disproved by the emphatic denial of the plaintiff.

“WHEREFORE, the complaint and counter­claims are DISMISSED
with costs against the plaintiff.”^[4]

Hence the present appeal by plaintiff Teofila
Feli­ces.

The only question to be resolved in this appeal is whether, or
not, under the facts stated in the foregoing paragraphs, plaintiff-appellant
can exercise the right of legal redemption of the land in question from
defendant-appellee, pursuant to the provisions of
Article 1620 and/or Article 1088 of the Civil Code.  As correctly held by the trial court, Article
1088 of the Civil Code has no application in the present case because said
article can only be availed of when a co-heir sells his share before the
partition of the hereditary estate^[5].  That article refers to the hereditary right
itself, in the abstract sense, without specifying any particular por­tion,
although the proportionate participation of each co-heir is ascertainable.  This article presupposes that there has as
yet been no distribution of the estate among the heirs, for the moment such
distribution has taken place, even in a state of pro-indiviso,
the heirs ceased to be considered simply as co-heirs, but they have thereby
become co-owners.^[6]
Consequently, if one of the co-owners sells his share to a stranger, a co-owner
may claim his right of redemption as a co-owner under Article 1620 of the Civil
Code^[7],
not as a co?heir under Article 1088 of the same Code.

But in the instant case, We also find that plain­tiff-appellant
has no right to redeem the property as co-owner under Article 1620 of the Civil
Code.  Co-ownership exists when the
ownership of an undivided thing or right belongs to different persons^[8].  It is an inherent and peculiar feature of
co-ownership that although the co-owners may have unequal shares in the common
property, quantitatively speaking, each co-owner has the same right in a
qualitative sense as any one of the other co-owners.  In other words, every co-owner is the owner
of the whole, and over the whole he exercises the right of dominion, but he is
at the same time the owner of a por­tion which is truly abstract, because until
division is effected such portion is not concretely determined.

In the case before Us, it is admitted by plaintiff-appellant
herself that immediately after the death of their father, Felipe Felices, she and her brothers and sisters divided or
partitioned the homestead among them­selves extrajudicially,
each heir taking physical and exclusive possession and control of his or her
aliquot share.  The portion given to
Maria Felices, which plain­tiff-appellant now seeks
to redeem, is about one-fifth of the homestead on the northernmost part, marked
out by metes and bounds, as described in paragraph 3 of the com­plaint.  And when Maria Felices
sold her share to Roman Iriola in 1949, she delivered
to him the possession of the particular portion of the homestead constituting
her distinct share, and since then Roman Iriola, and
later his heirs upon his death, have continuously cultivated the land and
introduced improvements thereon until the posses­sion thereof was in turn
delivered to defendant-appellee Francisco Colegado in 1962 pursuant to the decision of the Court of
Appeals.  There is, therefore, no doubt
that at the time Maria Felices sold her share to
defendant-appellee Colegado,
and even prior thereto when she ceded the same property to Roman Iriola, the community of interest over the entire homestead
of their father between her (Maria) and her brothers and sisters had already
ceased, and so the claim of plaintiff-appellant to redeem the property under
Article 1620 can not be sustained because when that property was sold by Maria Felices to defendant-appellee she
(plaintiff-appellant) was no longer a co-owner of that particular
property.  The following ruling of this
Court; speaking through Mr. Justice J. B. L. Reyes, is pertinent to the
resolution of the issue in the present case:

“The foregoing theory is untenable.  Tested against the concept of co-ownership,
as authoritatively expressed by the commentators, appellant is not a co-owner
of the registered parcel of land, taken as a unit or subject of co-ownership,
since he and the spouses do not ‘have a spiritual part of a thing which is not
physically di­vided’ (3 Sanchez Roman 162), nor is each of them an ‘owner of
the whole, and over the whole he exercises the right of domi­nion, but he is at
the same time the owner of a portion which is truly abstract….’ (3 Manresa 405).  The portions of appel­lant-plaintiff and of
the defendant spouses are correctly determined and identi­fiable, for to the
former belongs the northern half, and to the latter be­longs the remaining
southern half, of the land.  That their
respective por­tions are not technically described, or that said portions are
still embraced in one and the same certificate of title, does not make said
portions less determinable or identifiable, or dis­tinguishable, one from the
other, nor that dominion over each portion less exclusive, in their respective
owners.  Hence, no right of redemption
among co-owners, exists.” (De la Cruz v. Cruz, et al., L-27759, April 17,
1970, 32 SCRA, 307, 311).^[9]

The foregoing sufficiently disposes of the issue raised in this
appeal.  However, even granting the claim
of plaintiff-appellant that co-ownership of the home­stead still existed as of
the time defendant-appellee repurchased the share of
Maria Felices from Roman Iriola
still she can not exercise the right of legal redemption of the controverted property. 
The record shows that on September
11, 1953 defendant-appellee Colegado bought the respective shares of Silverio Felices, Pedro Felices, and Marta Felices in the
homestead.  By such purchase defendant-appellee had thereby become a co-owner of the
homestead.  When defendant-appellee thereafter paid for the portion allotted to Maria Felices, in August, 1962, he was at that time not a
stranger but already a co-owner of the homestead.  Hence, plaintiff-appellant can not redeem the
land from defendant-appellee because the lat­ter and
plaintiff-appellant had become co-owners, and as co-owners neither of them has
the right of legal re­demption against the other.^[10]
In the case of Viola v. Roura & Tecson (49 Phil., 808), this Court held that the right of
legal redemption is not limited solely and ex­clusively to original co-owners
but applies as well to those who subsequently acquire the respective shares of
the co-owners while the community exists.

WHEREFORE, the decision appealed from is affirmed, with
costs against plaintiff-appellant.

IT IS SO ORDERED.

Reyes, J.B.L., Acting C.J., Dizon, Makalintal, Castro, Fernando, Teehankee,
Barredo, and Makasiar, JJ., concur.

Concepcion, C. J., on official leave.

Villamor, J., did not take part.

^[1] Original
Certificate of Title No. 73 was can­celled and Transfer Certificate of Title
No. 415 was later issued in the name of the “Heirs of Felipe Felices.”

^[2]
Roman Iriola died before the termination of Civil
Case No. 1991.

^[3]
“Art. 1088.  Should any of the heirs
sell his here­ditary rights to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of the purchaser by reimbursing
him for the price or the sale, pro­vided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor.”

^[4]
Pages 62-63, Record on Appeal.

^[5]
Castro, et al. v. Castro, 97 Phil., 705.

^[6]
Castro, et al. v. Castro, supra; Caram
et al., v. Court of Appeals, et al., 101 Phil. 315.

^[7] Saturnino v. Paulino et al.,
97 Phil., 51.

^[8]
Article 484, Civil Code.

^[9]
See also Estoque vs. Pajimula,
L-24419, July 15, 1968, 24
SCRA 62-63; Umengan vs. Butacan,
L-16036, February 28, 1963,
7 SCRA 311; and De Jesus vs. Mangla­pus, 81
Phil. 114.

^[10]
Estrada vs. Reyes, 33 Phil., 31; Magno vs.
Viola and Sotto, 61 Phil. 80.