MARIA BICARME ASSISTED BY HER HUSBAND JOSE BALUBAR, PETITIONER, VS. COURT OF APPEALS AND CRISTINA BICARME, RESPONDENTS.

This petition seeks to set aside the appealed decision of the
lower court^[1]
as affirmed by the appellate court on August 28, 1979, directing the amicable
partition of two parcels of land between Cristina Bicarme
(private respondent) and her aunt Maria Bicarme
(petitioner), as well as the Resolution, dated October 5, 1979, denying
petitioner’s motion for reconsideration.

The affirmed decision of the lower court, rendered on December 22, 1975, disposes as
follows:

“(a) That Maria Bicarme and Cristina
Bicarme are the only surviving co-heirs and co-owners
and entitled in equal shares over the parcel of land in litigation and
described under paragraph 3 of the complaint;

“(b) That the alleged deeds of Sale
executed by Maria Bicarme covering and affecting the
two parcels of land in suit are declared null and void in so far (sic) as they
affect and/or cover the one-half undivided share and inheritance of plaintiff
Cristina Bicarme;

“(c) Maria Bicarme is ordered to account
and/or pay the value corresponding to the one-half (1/2) undivided shares of
Cristina Bicarme in the yearly fruits of the land and
to commence from the filing of this complaint; that is seventy five bundles of palay valued at P375.00 with legal interest fully paid;

“(d) That the parties are hereby ordered within (15) days from
receipt of this decision to amicably agree upon a written partition and to
submit the same for approval, parties shall appoint a Commissioner to effect
and carry out effectively the partition of the 2 parcels of land in equal parts
between the plaintiff and the defendant;

“(e) Defendant and her hirelings and representatives are forever
ordered to refrain from molesting the Commissioner in the discharge of his duty
to partition said two (2) parcels of land in suit;

“(f) And, Defendant to pay Attorney’s fee and the cost of this
suit.

“SO ORDERED.” (pp. 40-41, Record on Appeal)

Petitioner-defendant Maria Bicarme
appealed.

The Court of Appeals affirmed the decision; hence, this petition.

The main issue in this case dwells on ownership rights over the
litigated parcels of land.

As established by the trial court, Sps.
Juan Bicarme and Florencia Bidaya were the original co-owners of two parcels of land described as
follows:

“1.  Cornland in Palao, Bangued, Abra, bounded on the North – Hill, on the East – Brono Barbero, on the South – Casimiro Palos, and on the West – Clemente
Baldozan, of about 8,721 sq. m., assessed at P400.00
under Tax Dec. No. 7764;

“2.  Riceland in Palao, Bangued, Abra, bounded on the
North–Macario Bolos, East–Roberto Bicarme, South–Juliana Baldozan,
and West–Telesporo, about 1,539 sq. m., assessed at
P60.00, under Tax Dec. No. 7765;

“x x x.” (p. 10, Record on
Appeal)

The spouses died intestate and were
survived by three children – Victorina Bicarme, Sebastian Bicarme and
Maria Bicarme. 
Sebastian Bicarme died when he was a little boy
and without any issue.  Later, Victorina Bicarme died intestate,
survived by her only daughter, Cristina Bicarme.

Cristina claims that upon the death of her grandparents, Sps. Juan and Florencia, her
mother Victorina and her aunt, Maria, became
co-owners or co­-heirs of the litigated parcels of land.  Upon the death of her mother, Victorina, Cristina became co-heirs with Maria, having
inherited the share and interest of her mother corresponding to one-half of the
two parcels of land.

Cristina instituted this action for partition, because her aunt,
Maria, refused to share with her the yearly fruits of the disputed parcels of
land.  Maria, however, maintains that
“she acquired these two parcels of land in 1925 (cornland)
and 1926 (riceland) from the deceased spouses Placida
Bidaya and Margarita Bose and since then until the
present, had been in open, public, peaceful, continuous, adverse possession and
enjoyment and in the concept of absolute owner thereof.  Maria further claims that Cristina, her
niece, never shared or contributed to the payment of taxes of said two parcels of land; and,
finally, that Cristina Bicarme was presumed already
dead” (p. 35, Record on Appeal).

In ruling Maria and Cristina to be co-heirs, the trial court
relied on a provision separately stated in three deeds of sale executed by
Maria as follows:

“That
I am the sole and absolute owner over the above described cornland having acquired the same
by inheritance from my late father Juan Bicarme;” (See Exhibits ‘4,’ ‘5,’ ‘6,’ and ‘7,’ or Exhibits ‘A-1,’ ‘B-1,‘ ‘C-1,’ and ‘D-1;’ ” (p. 37, Record on
Appeal, emphasis ours)

The trial court stated that the provision was in the nature of a
trust provision in favor of Cristina as a co-owner/co-heir.

We agree.  By admitting
that the cornland is inherited property, Maria, in effect, recognized Cristina’s rights
thereto as a co-heir/co-owner.  As the
trial court theorized:

“x x x

“(6)  That Victorina
Bicarme and Maria Bicarme never
partitioned even orally the two parcels of lands which
were then owned in common by them;

“(7)  That even after the
death of Victorina Bicarme,
the land in suit remained  undivided
and were therefore in the possession of Maria Bicarme
because her niece Cristina Bicarme went to Manila and
now married and presently residing at No. 22, 11th Avenue, Grace Park, Caloocan City.

“(8)  That without the
knowledge and consent of Cristina Bicarme who was
then of legal age, her aunt Maria Bicarme executed on
April 27, 1973 a Deed of absolute Sale (Exhibit ‘A’) in favor of Marina Pizarro
who acquired portion No. 3 of the cornland; on the
same date she also executed another Deed of Sale (Exhibit ‘B’) in favor of Saturnino Pacopia, who acquired
portion No. 2 of the cornland; and, on June 16, 1965
again Maria Bicarme executed a third Deed of Sale
(Exhibit ‘C’) in favor of Casimira Pacopia, who acquired portion No. 1 of the cornland;

“(9)  That these three (3)
separated (sic) Deeds of Sale all executed by Maria Bicarme
over the cornland have a respective total area of 740
square meters, more or less, for portion No. 3; 1,836 square meters, more or
less for portion No. 2; and 1,265 square meters, more or less for portion No.
1, or a total area of 3,481 square meters more or less;

“(10) That in these three separate Deeds of Sale, Maria Bicarme expressly provided the aforesaid trust
provision.” (pp. 36-37, Record on Appeal, emphasis ours)

Despite admission during the hearing on the identity of the lands
in question (see p. 21, Record on Appeal), Maria’s counsel, on appeal,
re-emphasized her original claim that the two parcels of land in her possession
were acquired from the Sps. Placido
Biduya and Margarita Bose.  However, the private document relative to the
purchase, was not produced at the trial, allegedly because “they were
placed in a trunk in their house which were burned during the Japanese
Occupation.” In 1945, Maria sold the riceland.  No written evidence was submitted.  For all legal intents therefore, the riceland remained inherited property.  The identity of the cornland
as inherited property can no longer be disputed, in view of Maria’s admission
in the deeds of sale she had executed, containing the trust provisions.

Having established Cristina’s co-ownership rights, Maria
nonetheless insists that Cristina’s rights are barred by prescription under Secs. 40 and 41 of Act 190 (Code of Civil Procedure,
Article 1116, Civil Code) then the applicable law, where the longest period of
both acquisitive and extinctive prescription was only ten years (Diaz v. Garricho, 103 Phil. 261, 266).  In the present case, Cristina, it is alleged,
asserted her claims 34 years after her right of action accrued, as follows:

“x x
x After Cristina left barrio Palao at the age of eleven (11), she never returned until
she was twenty two (22) years old and married (pp. 32-34, tsn.,
Nov. 4, 1974).  Upon her return her
grandmother Florencia Bidaya
was already dead (p. 33, id).  At that
time, Cristina claimed her hereditary share in the lands in question but her
demands were ignored and repudiated by her aunt Maria, Cristina admitted that
ever since the Japanese occupation when she was already of age, her aunt Maria
refused to recognize her rights to said lands (pp. 41-42, id.).  From that moment when Maria ignored and
repudiated Cristina’s hereditary rights, Cristina’s right of action already
accrued and the period of prescription began to run.

“The instant action was filed only in 1974 (p. 1, Record on
Appeal), or some 34 years after it accrued. 
If she had any rights at all, Cristina slept on her rights.  The present action is unquestionably barred
by prescription.” (pp. 27-28, Appellants’ Brief)

Against Maria’s claims of acquisitive prescription, the lower
court ruled that Maria was a trustee with respect to Cristina’s share.  As such,
prescription, as a mode of acquiring title, could not apply:

“A co-owner is a trustee for the other co-owner.  No one of the co-owners may acquire exclusive
ownership of the common property thru prescription for possession by one
trustee alone is not deemed adverse to the rest (Castrillo
vs. Court of Appeals, 10 SCRA 549; Custodio vs. Casiano, 9 SCRA 841 and, Pascual
vs. Meneses, 20 SCRA 219).” (p. 6, Rollo)

While We agree with the trial court that Maria and Cristina are co-heirs,
and that with respect to them prescription, as a mode of acquisition, cannot
apply, We hasten to elaborate on certain aspects, which need clarification.

It is correct to say that possession by one co-owner (trustee) is
not deemed adverse to the others.  In
this sense, an action to compel partition will lie at any time and does not
prescribe.  It is, however, not legally
correct to say that by virtue of the imprescriptibility
of an action for partition, prescription as a mode of acquiring title, can
never be invoked, or in the present case, that Maria, as a co-owner can never
acquire the property by prescription.

An action for partition implies that the thing is still owned in
common.  If a co-owner or co-heir holds
the property in exclusive adverse possession as owner, asserting sole and
exclusive dominion for the required period, he can acquire sole title to it as
against the co-heirs or co-owners.  The
imprescriptibility of an action
for partition cannot thus be invoked when
one of the co-owners has possessed the
property as exclusive owner, and for a
period sufficient to acquire it by prescription.  From the moment one of the co-owners claims
that he is the absolute and exclusive owner of the properties and denies the
others any share therein, the question involved is no longer one of partition, but
of ownership.  (A. Tolentino, Civil Code of the Phil., Ann., Vol. II, pp.
192-193; Bargayo v. Comumot,
40 Phil. 856, at p. 870).  In this sense,
the trial court erred in saying that there can be no prescription (as a mode of
acquiring title) in favor of a co-owner/trustee.

Having clarified this issue, the main question to be resolved is
whether or not Maria has been in possession of the lands in question under
the conditions required by Section 41 of the Code of Civil
Procedure, as to uphold acquisitive prescription in her favor.

One of the conditions imposed by said section is that the
possession must be adverse against the whole world.  In order that a possession may be deemed
adverse to the cestui que
trust, or the other co-owner the following must concur:

“x x
x (1) that he has performed unequivocal acts
of repudiation amounting to an ouster of the cestui
que trust or other co-owner, (2) that
such positive acts of repudiation have been made known to the cestui que trust
or other co-owners, and (3) that the evidence thereon must be clear and
convincing.” (A. Tolentino, Civil Code of the Phils., Ann., Vol. II, p. 193)

In the present case, Maria Bicarme
disclaims the co-ownership by denying that subject properties are the inherited
properties.  Other than the tax
declarations in her name, there is no written evidence that these were
acquired/purchased from Sps. Placido
Biduya and Margarita Bose.  Payment of land taxes does not constitute
sufficient repudiation of the co-ownership, as it is not an act adverse to
Cristina’s rights.  Moreover, Cristina,
being a minor, until she claimed her rights, was not even aware thereof.  Neither did Maria make known her repudiation
to Cristina, because all along, Maria presumed her to be dead.  Her refusal to share with Cristina the yearly
profits stemmed from Cristina’s failure to share in the yearly taxes.  Acquisitive prescription cannot therefore
apply in this case:

“Acts which are adverse to strangers may not be sufficiently
adverse to the co-owners.  A mere silent
possession by a co-owner, his receipt of rents, fruits or profits from the
property, the erection of buildings and fences and the planting of trees
thereon, and the payment of land taxes, cannot serve as proof of exclusive
ownership, if it is not borne out by clear, complete and conclusive evidence
that he exercised acts of possession which unequivocally constituted an ouster
or deprivation of the rights of the
other co-owners.” (Mangyan v. Ilan, 28 O.G. 62; Laguna v. Levantino,
40 O.G. (14th Suppl.) 136, cited in A. Tolentino, Civil Code of the Philippines, Ann., Vol. II,
pp. 193-194)

Additionally, it follows that
neither can the doctrine on laches apply, for absent
acquisitive prescription, (i.e., where it has not been shown that the
possession of the claimant has been adverse and exclusive and opposed to the
right of the others) the case is not one of ownership, in which case, the
doctrine on imprescriptibility of an action for
partition will apply.  Cristina’s right
to partition will therefore prosper.

Finally, We eliminate the award on attorney’s fees in the absence
of any specific allegation thereon in her complaint, or that the same is
covered by any of the eleven (11) exceptions enumerated in Art. 2208 of the New
Civil Code.  Even if We were to concede
exercise of judicial discretion
in the award of attorney’s fees under Art. 2208, par. 11, this provision
“demands a factual, legal or equitable justification.  Without such justification, the award is a
conclusion without a premise, its basis being improperly left to speculation
and conjecture.” (Mirasol v. De la Cruz, G.R.
L-32552, July 31, 1978; 84 SCRA 337.) Likewise, “the matter of attorney’s
fees cannot be touched once and only in the dispositive
portion of the decision.  The text itself
must expressly state the reason why attorney’s fees are being awarded” (ibid).  In the present case, the matter of such fees
was touched but once and appears only in
the dispositive portion of the decision.

ACCORDINGLY, the petition for review is DENIED and the
appealed decision as affirmed by the Court of Appeals is hereby AFFIRMED with
the modification that the award on attorney’s fees is eliminated.  Costs against petitioner.  This decision is immediately executory.

SO ORDERED.

Narvasa, (Chairman), Cruz, and Gancayco, JJ., concur.

Grino-Aquino, J., on leave.

^[1]
CFI, Abra, Branch I, CC No. 786.