CRESENCIANO DE LA CRUZ, PLAINTIFF-APPELLANT, VS. JULIO CRUZ, ZENAIDA MONTES AND ALFONSO MIRANDA, DEFENDANTS-APPELLEES.

Direct appeal from a summary judgment of the Court of First
Instance of Rizal (Pasay
City), in its Civil Case No. 2723-P, dismissing the plaintiff’s complaint
against the defendants for the pre-emption and legal redemption of a portion of
registered land and granting, in the main, the letter’s counterclaim for
damages and attorneys’ fees.

The undisputed facts are as follows.

The spouses Julio Cruz and Zenaida
Montes were once the owners of a parcel of land covered by Transfer Certificate
of Title No. 10680 of the Office of the Registry of Deeds for Pasay City,
which parcel of land is more particularly described therein as follows:

“A PARCEL OF LAND (Lot 10 of the
subdivision plan Psd-790, being a portion
of the land described on plan Psu-2031-Amd. 2-A, LRC (G.L.R.O.) Record
No. 2484, situated in the Barrio of Malibay,
Municipality of Pasay, Province of Rizal. Bounded on the NE., by Lot 9
of the subdivi­sion plan; on the SE., and SW., by tot
91 of the subdivision plan; containing an area of SIX HUNDRED SIXTY TWO (662)
SQUARE METERS.”

On 16 December 1965,
Julio Cruz and Zenaida Montes sold a portion of the
aforesaid parcel of land to the plaintiff-appellant, Ores­enciano
de la Cruz. The deed, of absolute sale described the portion sold as –

 ” . . . . . . .
. . . a portion with an area of Three Hundred and Thirty-One Square
Meters (331 sq. m.) on the northern part. . . . .”

Inserted
in the deed was a stipulation, reading as follows:

“It is hereby agreed that a plan will be made on the whole
parcel of land above-described showing the portion with an area of Three
Hundred and Thirty-one Square Meters (331 sq. m.) hereby conveyed, and the
remaining portion with an area of Three Hundred Thirty-One Square Meters (331
sq. m.), together with the technical description of each portion, that is, the
portion hereby conveyed, and the portion remaining. “

On 28
February 1966, Julio
Cruz and Zenaida Montes sold the re­maining portion
of the land to Alfonso Miranda.  The deed
of sale described the portion sold as –

“. . . . . . . .  that unsegregated
portion with an area of THREE HUNDRED THIRTY ONE (331) SQUARE METERS bordering
C. Jose and F. Francisco Streets, Malibay, Pasay City, which is at the southern part of the parcel of
land covered by T.C.T. No. 10680 above-described.”

 Under
date of 25 April 1966, Cresenciano de la Cruz filed a
complaint against Julio Cruz, Zenaida Montes and Alfonso Miranda, praying the court to
have himself (plaintiff-appellant Cresenciano de la
Cruz) declared as entitled to purchase, by way of pre-emption and legal
redemption, the one-half (1/2) portion of the land that was sold to Miranda.

Upon joinder
of issues, the parties agreed, during the pre-trial of the case, to submit the
case for decision on the pleadings, and, on the basis thereof, the court below
rendered judgment, as stated at the beginning of this decision.

Not satisfied with the
court court’s decision, plaintiff-appellant Cresenciano
de la Cruz interposed the present direct appeal to the Supreme Court and
assigns the following errors as having been committed by the lower court:

“1. The trial
court erred in holding that plaintiff-appellant and defendants-appellees Julio Cruz and Zenaida
Montes are not co-owners of the parcel of land embraced in Transfer Certificate
of Title No. 10680 of the Office of the Register of Deeds for Pasay City.

“2.  The trial court erred in concluding that
plaintiff is not entitled to the right of pre-emption or legal redemption.

“3.  The trial court erred in awarding damages in
the amount of P2,000.00 in favor of defendants-appellees Julio Cruz and Zenaida
Mantes, and “another P2,000.00 in favor of their co-defendant-appellee Alfonso Miranda.

“4.  The trial court finally erred in ordering
plaintiff-appellant to pay defendants –appellees the
sum of P3,000.00 as attorney’s fees.”

Appellant’s theory, under
his first two assignments of error, is that, after he bought from the
spouses Julio Cruz and Zenaida Montes the northern
half of the parcel of land embraced by Transfer Certificate of Title No. 10680,
he and the spouses became co-owners of the said parcel of land, “the
plaintiff owning one-half (1/2) (northern part) and defen­dants Julio Cruz and Zenaida Montes owning the remaining one-half (1/2) portion
(southern part)”, or that,” considering the situation or loca­tion of
the parts being owned by plaintiff and defendants Julio Cruz and Zenaida Montes, respectively,  . . . . . . the
parts are adjacent to each other, and consequently, plaintiff and defendants
Julio Cruz and Zenaida Montes are adjacent
owners” , such that plaintiff has the right of pre-emption or legal
redemption over the portion that was subsequently sold to Alfonso Miranda
(Quoted portions taken from appellant’s brief, pages 3-4).

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 concretely
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.

Nor is
plaintiff-appellant entitled, as an adjoining owner, to the right of
pre-emption or redemption over the southern portion of the parcel of land
because he had not alleged in his complaint and has not proved (since the case
was submitted for decision on the pleadings) that said portion is so small and
so situated that a major portion thereof cannot be used for any practical
purpose within a reasonable time, having been bought merely for speculation
(Article 1622, Civil Code; Soriente vs. GA, L-17343,
31 August 1963, 62 O. G. 7013, 8 SCRA 750).

The third assignment of
error is concerned with the defendants’ counterclaim. The court a quo
awarded damages of P2,000.00 to the spouses Cruz and another P2,000.00 to their
co-defendant Alfonso Miranda because the court considered the allegations on
two (2) causes of action in the
counterclaim as not specifically denied by the plaintiff-appellant and,
therefore, deemed to have admitted said allegations.  The first cause of action, in brief, alleges
that plaintiff had failed to cause the preparation and submission of a
subdivision plan that Would serve as a basis for the issuance of separate
titles for the northern and southern parts of the land, contrary to their
agreement, and for the inaction and delay on the part of plaintiff had caused
damages in the amount of P5, 000.00 to the counterclaimants. 
The second cause of action, in turn, alleges that the plaintiff had
refused to surrender the certificate of title, despite demands, to the Register
of Deeds for an­notation of a release of mortgage that said plaintiff had
himself executed, thus preventing the dealing with the land, sans the
encumbrance, with third persons and prejudicing the counterclaimants in the sum
of P5,000.00. Appellant’s argument that the court
erred in awarding damages without proof of the amount of actual damage is
well-taken, for even though the rule is that failure to deny specifically the
material allegations in the complaint (or counterclaim) is deemed an admission
of the said allegations, an exception is provided therefor,
which is “other than those as to the amount of damage” (Section 1,
Rule 9, Revised Rules of Court).

“ . . . . . .  Under section
8, Rule 9 [Sec. 1, Rule 9 of the Revised Rules of Court], however, allegations
regarding the amount of dam­ages are not deemed admitted even if not
specifically denied, and so must be duly proved.  Appellants did not offer to present evidence
to prove their dama­ges but merely asked for judgment on the pleadings.  Hence, they must be considered to have waived
or renounced their claim for damages. . . . . . .” (Rili, et al. vs. Chunaco, et al.,
L-6630, 29 February 1956, 98 Phil. 505, 507).

On his last assignment of
error, appellant contests the award of attorney’s fees on the ground that such
fees do not accrue merely because of an adverse decision.  On the other hand, he does not claim that
the court below had abused its discretion in giving the award, which is a
matter that is discretionary with it under Article 2208, Civil Code of the
Philippines, specially since the action was clearly unfounded (Heirs of Justiva, et al. vs. Gustilo, et
al., L-16396, 31 Jan­uary 1963, 7 SCRA 72; Lopez, et al. vs. Gonzaga, et al., L-18788, 31 January 1964, 10 SCRA 167).

FOR THE FOREGOING
REASONS, the appealed
decision is hereby affirmed, except insofar as it awarded damages to the appellees, which is hereby reversed.  No pronouncement as to costs.

Dizon, Makalintal,
Zaldivar, Ruiz Castro, Fernando, Teehankee, and Villamor, JJ., concur.

Barredo, J., took no part.