LEONARDO MARIANO, AVELINA TIGUE, LAZARO MARIANO, MERCEDES SAN PEDRO, DIONISIA M. AQUINO, AND JOSE N.T. AQUINO, PETITIONERS, VS. HON. COURT OF APPEALS, (SIXTEENTH DIVISION), GRAC…

Before Us is a petition for review of the decision dated May 13,
1991 of the Court of Appeals in CA-G.R. CV No. 13122, entitled Grace
Gosiengfiao, et al. v. Leonardo Mariano v. Amparo Gosiengfiao^[1]
raising as issue the distinction between
Article 1088^[2] and Article 1620^[3] of the Civil Code.

The Court of Appeals summarized the facts as follows:

“It appears on record that the decedent Francisco Gosiengfiao is
the registered owner of a residential lot located at Ugac Sur, Tuguegarao,
Cagayan, particularly described as follows, to wit:

‘The eastern portion of Lot 1351, Tuguegarao Cadastre, and after
its segregation now designated as Lot 1351-A, Plan PSD-67391, with an area of
1,346 square meters.’

and covered by Transfer Certificate of
Title No. T-2416 recorded in the Register of Deeds of Cagayan.

“The lot in question was mortgaged by the decedent to the Rural
Bank of Tuguegarao (designated as Mortgagee bank, for brevity) on
several occasions before the last, being on March 9, 1956 and January 29, 1958.

“On August 15, 1958, Francisco Gosiengfiao died intestate survived
by his heirs, namely: Third-Party
Defendants: wife Antonia and Children
Amparo, Carlos, Severino and herein plaintiffs-appellants
Grace, Emma, Ester, Francisco,
Jr., Norma, Lina (represented by daughter Pinky Rose), and Jacinto.

“The loan being unpaid, the lot in dispute was foreclosed by the
mortgagee bank and in the foreclosure sale held on December 27, 1963, the same
was awarded to the mortgagee bank as the highest bidder.

“On February 7, 1964, third-party defendant Amparo
Gosiengfiao-Ibarra redeemed the property by paying the amount of P1,347.89 and
the balance of P423.35 was paid on December 28, 1964 to the mortgagee bank.

“On September 10, 1965, Antonia Gosiengfiao on her behalf and that
of her minor children Emma, Lina, Norma together with Carlos and Severino
executed a ‘Deed of Assignment of the Right of Redemption’ in favor of Amparo
G. Ibarra appearing in the notarial register of Pedro (Laggui) as Doc. No. 257,
Page No. 6, Book No. 8, Series of 1965.

“On August 15, 1966, Amparo Gosiengfiao sold the entire property to
defendant Leonardo Mariano who subsequently established residence on the lot
subject of this controversy. It appears
in the Deed of Sale dated August
15, 1966 that Amparo, Antonia, Carlos and Severino were signatories thereto.

“Sometime in 1982, plaintiff-appellant Grace Gosiengfiao learned of
the sale of said property by the third-party defendants. She went to the Barangay Captain and asked
for a confrontation with defendants Leonardo and Avelina Mariano to present her
claim to the said property.

“On November 27, 1982, no settlement having been reached by the
parties, the Barangay Captain issued a certificate to file action.

“On December 8, 1982, defendant Leonardo Mariano sold the same property
to his children Lazaro F. Mariano and Dionicia M. Aquino as evidenced by a Deed
of Sale notarized by Hilarion L.
Aquino as Doc. No. 143, Page No. 19, Book No. V, Series of 1982.

“On December 21, 1982, plaintiffs Grace Gosiengfiao, et al. filed a complaint for ‘recovery of
possession and legal redemption with damages’ against defendants Leonardo and
Avelina Mariano. Plaintiffs alleged in
their complaint that as co-heirs and co-owners of the lot in
question, they have the right to recover their respective shares in the said
property as they did not sell the same, and the right of redemption with regard
to the shares of other co-owners sold to the defendants.

“Defendants in their answer alleged that the plaintiffs has (sic)
no cause of action against them as the
money used to redeem the lot in question was solely from the personal funds of
third-party defendant Amparo Gosiengfiao-Ibarra, who consequently became the
sole owner of the said property and thus validly sold the entire property to
the defendants, and the fact that defendants had already sold the said property
to their children, Lazaro Mariano and Dionicia M. Aquino. Defendants further contend that even
granting that the plaintiffs are co-owners with the third-party defendants,
their right of redemption had already been barred by the Statute of
Limitations under Article 1144 of the Civil Code, if not by laches.”^[4]

After trial on the merits, the Regional Trial Court of Cagayan,
Branch I, rendered a decision dated September 16, 1986, dismissing the
complaint and stating that respondents have no right of ownership or possession
over the lot in question. The trial court further said that when the
subject property was foreclosed and sold at public auction, the rights of the
heirs were reduced to a mere
right of redemption. And when Amparo G.
Ibarra redeemed the lot from the Rural Bank
on her own behalf and with her own money she became the sole owner of the
property. Respondents’ having failed to redeem the property
from the bank or from Amparo G. Ibarra, lost whatever rights they might have on
the property.^[5]

The Court of Appeals in its questioned decision reversed and set
aside the ruling of the trial court and declared herein respondents as
co-owners of the property in the question. The Court of Appeals said:

“The whole controversy in the case at bar revolves on the question
of ‘whether or not a co-owner who redeems the whole property with her own
personal funds becomes the sole owner of said property and terminates the
existing state of co-ownership.’

“Admittedly, as the property in question was mortgaged by the
decedent, a co-ownership existed among the heirs during the period given by law
to redeem the foreclosed property. Redemption of the whole property by a co-owner does not vest in him sole ownership over said
property but will inure to the benefit of all co-owners. In other words, it will not put an end to
the existing state of co-ownership. Redemption is not a mode of terminating a co-ownership.

x x x

“In the case at bar, it is undisputed and supported by records,
that third-party defendant Amparo G. Ibarra redeemed the property in
dispute within the one year redemption period. Her redemption of the property, even granting that the money used was
from her own personal funds did not make her the exclusive owner of the
mortgaged property owned in common but inured to the benefit of all
co-owners. It would have been otherwise
if third-party defendant Amparo G. Ibarra purchased the said property from the
mortgagee bank (highest bidder in the foreclosure sale) after the redemption
period had already expired and after the mortgagee bank had consolidated it
title in which case there would no longer be any co-ownership to speak of.”^[6]

The decision of the Court of Appeals is supported by a long line of case law which states
that a redemption by a co-owner within the period prescribed by law inures to
the benefit of all the other co?owners.^[7]

The main argument of petitioners in the case at bar is that the
Court of Appeals incorrectly applied Article 1620 of the Civil Code, instead of
Article 1088 of the same code which governs legal redemption by co­-heirs since
the lot in question, which forms part of the instestate estate of the late Francisco
Gosiengfiao, was never the subject of partition or distribution among the
heirs, thus, private respondents and third-party defendants had not ceased to
be co­-heirs.

On that premise, petitioners further contend that the right of
legal redemption was not timely
exercised by the private respondents, since Article 1088 prescribes that the
same must be done within the period of one month from the time they were
notified in writing of the sale by the vendor.

According to Tolentino, the fine distinction between Article 1088
and Article 1620 is that when the sale consists of an interest in some
particular property or properties of the inheritance, the right of redemption
that arises in favor of the other co-heirs is that recognized in Article 1620. On the other hand, if the sale is the
hereditary right itself, fully or in part, in the abstract sense, without
specifying any particular object, the right recognized in Article 1088 exists.^[8]

Petitioners allege that upon the facts and circumstances of the
present case, respondents failed to exercise their right of legal redemption
during the period provided by law, citing as authority the case of Conejero,
et al., v. Court of Appeals, et al.^[9]
wherein the Court adopted the principle that the giving of a copy of a deed is
equivalent to the notice as required by law in legal redemption.

We do not dispute the principle laid down in the Conejero
case. However, the facts in the said
case are not four square with the facts of the present case. In Conejero, redemptioner Enrique
Conejero was shown and
given a copy of the deed of sale of the subject property. The Court in that case stated that the furnishing of a copy of the deed was
equivalent to the giving of a written notice required by law.^[10]

The records of the present petition, however, show no written
notice of the sale being given whatsoever to private respondents. Although, petitioners allege that sometime
on October 31, 1982 private respondent, Grace Gosiengfiao was given a copy of
the questioned deed of sale and shown a copy of the document at the Office of
the Barangay Captain sometime November 18, 1982, this was not supported by the
evidence presented. On the contrary,
respondent, Grace Gosiengfiao, in her testimony, declared as follows:

Q.   When
you went back to the residence of Atty. Pedro Laggui were you able to see him?

A.    Yes,
I did.

Q.   When
you saw him, what did you tell?

A.    I
asked him about the Deed of Sale which Mrs. Aquino had told me and he also
showed me a Deed of Sale. I went over
the Deed of Sale and I asked Atty. Laggui about this and he mentioned here
about the names of the legal heirs. I
asked why my name is not included and I was never informed in writing because I
would like to claim and he told me to better consult my own attorney.

Q.   And
did you go?

A.    Yes,
I did.

Q.   What
kind of copy or document is that?

A.    It
is a deed of sale signed by my mother, sister Amparo and my brothers.

Q.   If
shown to you the copy of the Deed of Sale will you be able to identify it?

A.    Yes,
sir.^[11]

Thereafter, Grace Gosiengfiao explicitly
stated that she was never given a copy of the said Deed of Sale.

Q.   Where
did Don Mariano, Dr. Mariano and you see each other?

A.    In
the house of Brgy. Captain Antonio Bassig.

Q.   What
transpired in the house of the Brgy. Captain when you saw each other there?

A.     Brgy. Captain Bassig informed my intention
of claiming the lot and I also informed him about the Deed of Sale that was not
signed by me since it is mine it is already sold and I was never informed in
writing about it. I am a legal heir and
I have also the right to claim.

Q.   And
what was the reply of Don Mariano and Dr. Mariano to the information given to
them by Brgy. Captain Bassig regarding your claim?

A.     He insisted that the lot is already his
because of the Deed of Sale. I asked
for the exact copy so that I could show to him that I did not sign and he said
he does not have a copy.^[12]

The above testimony was never refuted by
Dr. Mariano who was present before Brgy. Captain Bassig.

The requirement of a written notice has long been settled as
early as in the case of Castillo v. Samonte,^[13]
where this Court quoted the ruling in Hernaez v. Hernaez, 32 Phil., 214, thus:

“‘Both the letter and spirit of the New Civil Code argue against any
attempt to widen the scope of the notice specified in Article 1088 by including
therein any other kind of notice, such as verbal or by registration. If the intention of the law had been to
include verbal notice or any other means of information as sufficient to give
the effect of this notice, then there would have been no necessity or reasons
to specify in Article 1088 of the New Civil Code that the said notice be made
in writing for, under the old law, a verbal notice or information was
sufficient.’”^[14]

Moreover, petitioners themselves adopted in their argument
respondents’ allegation in their complaint that sometime on October, 1982 they
sought the redemption of the property from spouses Leonardo Mariano and Avelina
Tigue, by tendering the repurchase money of P12,000.00, which the spouses
rejected.^[15]
Consequently, private respondents exercised their right of redemption at the
first opportunity they have by tendering the repurchase price to
petitioners. The complaint they filed
before the Barangay Captain and then to the Regional Trial Court was necessary
to assert their rights. As we learned in the case of Castillo,
supra:

“It would seem clear from the above that the reimbursement to the
purchaser within the period of one month from the notice in writing is a
requisite or condition precedent to the exercise of the right of legal
redemption; the bringing of an action in court is the remedy to enforce that
right in case the purchaser refuses the redemption. The first must be done within the month-period; the second within
the prescriptive period provided in the Statute of Limitation.”^[16]

The ruling in Castillo v. Samonte, supra, was reiterated
in the case of Garcia v. Calaliman, where We also discussed the reason
for the requirement of the written
notice. We said:

“Consistent with aforesaid ruling, in the interpretation of a
related provision (Article 1623 of the New Civil Code) this Court had stressed
that written notice is indispensable, actual knowledge of the sale acquired in
some other manners by the redemptioner, notwithstanding. He or she is still entitled to written
notice, as exacted by the code to remove all uncertainty as to the sale, its
terms and its validity, and to quiet any doubt that the alienation is not
definitive. The law not having provided
for any alternative, the method of notifications
remains exclusive, though the Code does not prescribe any particular form of
written notice nor any distinctive method for written notification of
redemption (Conejero et al. v. Court of Appeals et al., 16 SCRA 775 [1966];
Etcuban v. Court of Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva, G.R.
No. 75069, April 15, 1988).”^[17]
(Italics ours)

We likewise do not find merit in petitioners’ position that
private respondents could not have validly effected redemption due to their
failure to consign in court the full redemption price after the tender thereof
was rejected by the petitioners. Consignation is not necessary, because the tender of payment was not
made to discharge an obligation, but to enforce or exercise a right. It has been previously held that
consignation is not required to preserve the right of repurchase as a mere
tender of payment is enough if made on time as a basis for an action to compel
the vendee a retro to resell the property; no subsequent consignation was
necessary to entitle private respondents to such reconveyance.^[18]

Premises considered, respondents have not lost their right
to redeem, for in the absence of a written notification of the sale by
the vendors, the 30-day period has not even begun to run.

WHEREFORE, the decision of the Court of Appeals is hereby
AFFIRMED. Cost against petitioners.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, and Regalado, JJ., concur.

^[1]
Justice Justo P. Torres, Jr., ponente, Justices Ricardo J. Francisco and Consuelo Ynares-Santiago,
concurring.

^[2]
Article 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 of 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.

^[3]
Article 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 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.

^[4]
Decision, pp. 2-4; Rollo, pp. 71-73.

^[5]
Rollo, pp. 67-68.

^[6]
Decision, pp. 5-6; Rollo, pp. 74-75.

^[7]
Annie Tan v. C.A., G.R. No. 79899, 172 SCRA 660 (1989); Adille v.
C.A., G.R. No. 44546, 157 SCRA
455 (1988); De Guzman v. C.A., G.R. No. 47378, 148 SCRA 75 (1987).

^[8]
Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the
Philippines, Vol. III, pp. 607-608, citing Manresa at p. 777.

^[9]
16 SCRA 775 (1966).

^[10]
Id., at pp. 779-780.

^[11]
TSN, October 9, 1984, pp. 11-12.

^[12]
Id., at pp. 14-15.

^[13]
106 Phil. 1023 (1960).

^[14]
Id., at 1028.

^[15]
Amended Complaint; par. 15-16, Rollo, p. 34

^[16]
Ibid, at 1029.

^[17]
Garcia v. Calaliman, G.R. No. 26855, 172 SCRA 201 (1989).

^[18]
Francisco v. Bautista, G.R. No. 44167, 192 SCRA 388 (1991).