FELICIDAD ABUTON VDA. DE LAGMAN, PETITIONER, VS. HON. COURT OF APPEALS AND HEIRS OF PEDRO ABUTON, NAMELY: PACIENCIA, NORMA, GLORIA, LUZVIMINDA, WILFREDO, HENRY, LETICIA, VENUS A…

This is an appeal of the petitioner from the decision of the
Court of Appeals dated September 23,
1987 in CA-G.R. CV No. 04196, affirming the decision of the trial
court which dismissed, for being premature, the complaint for partition and
accounting with damages which the petitioner filed on February 6, 1978 against her step-mother, Paciencia Paler Vda. de Abuton (her father’s second wife) and her eight (8)
step-brothers and sisters involving the properties left by her father, the late
Pedro N. Abuton, who died intestate on June 2,
1975.  The petitioner alleged that she
has not received her lawful share and participation in the estate of her father
which is in the possession of, administered, and enjoyed by her step-mother and
her children.

In their answer to her complaint, the defendants denied the
allegation that Pedro Abuton left no debts because
the truth is that he had borrowed P32,000 from various
banks to finance a long litigation over properties of some 166 hectares which
he had acquired through a sales patent from the Bureau of Lands.  Those lands, bordering the Salug River, were at that time the subject of several cases
(filed by several claimants) which had been consolidated and are, according to
the defendants, docketed and pending in the Court of Appeals as CA-G.R. No.
56855-R, and otherwise known as the Salug case.  The defendants further alleged that the
action for partition is premature because on August 5, 1975, Felicidad and Paciencia Paler Vda. de Abuton signed an agreement whereby Felicidad
agreed not to demand the delivery of her 1/11 share of her father’s estate
until after the termination of the Salug case because
the income from her father’s other properties would be used to pay the expenses
of the Salug case as the Salug
lands were in the possession of their
adversaries.  The trial court and the
Court of Appeals held that petitioner is bound by that agreement which,
“not being contrary to law, morals, good customs, public policy or public
order is regarded as the law between the parties thereto (Castro vs. Court of
Appeals, 99 SCRA 722; Escano vs. Court of Appeals,
100 SCRA 197).” (p. 20, Rollo.)
The Court of Appeals further observed:

“x x x The
terms of such contract and rationale behind them being clear, the literal
meaning of such stipulations controls and governs (Sy
vs. Court of Appeals, 131 SCRA 116). 
Here, the said provision in question is clear and must govern.  The failure of the other co-owners, the children
by the second marriage, the herein co?defendants-appellees
of their mother, to give their imprimatur to such duly executed contract did
not in any way affect its binding effect upon the parties thereto who had
signed and acknowledged the same to be their free and voluntary act and deed,
such as the appellant herein.  Those who
have not yet signed said agreement are not, of course, precluded from asking
for partition; but to repeat, appellant here who had already inked the same
cannot now escape the effects thereof.  Under Art. 491, New Civil Code of the Philippines, each
co-owner may demand at any time the partition of the thing owned in common,
insofar as his share is concerned; but obviously, such right
being for the convenience of the co-owner concerned, she may waive or delay the
exercise of the right to ask for partition. 
So there was nothing illegal or in contravention of law in the agreement
entered into by appellant not to partition until after the Salug
case shall have come to an end.  Only
after the termination of the said case may an action for partition be initiated by the appellant.  As this case was commenced during the pendency of
the Salug case, the trial court was right in ordering
its dismissal on the ground of prematurity in the filing
thereof.” (pp. 20-21, Rollo)

The only issue in this case is whether the Court of Appeals erred
in holding that the petitioner’s action for partition is premature.

The record shows that on February 9, 1974, a joint decision was
rendered in favor of Pedro Abuton by the Court of
First Instance of Zamboanga del Sur,
Branch I at Pagadian City in the Salug
cases (Civil Case No. 751, entitled “Pedro N. Abuton
and Paciencia Paler de Abuton
vs. Paulina Besanes, et
al.;” Civil Case No. 950, entitled “Federico Sagario,
et al. vs. Paciencia Paler de Abuton,
et al.”; and Civil Case No. 958, entitled “Paulina
Besanes Vda. de Watin, et al. vs. Pedro N. Abuton, et al.”) The dispositive
portion of the judgment provided as follows:

“WHEREFORE, judgment is hereby rendered:

“(1)    Dismissing, as
they are hereby dismissed, both Civil Cases Nos. 950 and 958, for lack of
merit; with costs against the plaintiffs;

“(2)    In Civil Case No. 751:  ordering all the defendants appearing in the
amended complaint of the Abutons, together with their
heirs, successors-in-interest, assigns, tenants and privies, except defendants Natividad Manlegro and Flaviano Bercera who are not
found to be occupants of the land in question, to vacate the premises
respectively occupied by them and to restore possession thereof to the
plaintiffs Abutons, immediately upon receipt of this
decision.

“(3)    Ordering all said
defendants, except Natividad Manlegro
and Flaviano Bercera, to
pay jointly and severally the plaintiffs Abutons, the
sum of P45,000.00 representing the value of the net
produce of the land which said plaintiffs failed to realize since 1952, after
the decision of the Secretary of Agriculture and Natural Resources has become
final, up to the date of the filing of the complaint, with six (6%) percent
interest per annum until paid.

“(4)    Ordering said
defendants, except Natividad Manlegro
and Flaviano Bercera, to
pay the plaintiffs Abutons, jointly and severally,
every year since 1964 after the filing of the complaint in this case, the sum
of P59,376.00 representing the annual value of the net
share of palay and corn of said plaintiffs, until
said defendants shall have vacated the premises and restored possession thereof
to said plaintiffs.

“(5)    Ordering the said
defendants, except Natividad Manlegro
and Flaviano Bercera, to
pay jointly and severally, the plaintiffs Abutons the
sum of P6,000.00 as attorney’s fees and P1,000.00 as
incidental expenses of the case; and to pay the costs.” (pp.
230-231, Record on Appeal.)

Hence, when Felicidad commenced her action
for partition on February 6, 1978,
there was already a decision of the trial court in the Salug
case. The defeated parties unsuccessfully appealed to the Court of
Appeals.  On August 22, 1979, a joint decision was promulgated
by the Court of Appeals affirming in toto the decision of the trial court (pp. 18-26, G.R. Nos.
52224-26).  The case was elevated to this
Court on a petition for review.  This
Court’s Second Division denied the petition in a resolution dated January 9, 1980 “for having been
filed late.” The motion for reconsideration dated February 24, 1980 was likewise denied on March 26, 1980 and entry of judgment
was made by this Court on May 28,
1980.

That fact was admitted by respondent Paciencia
Paler Vda. de Abuton in her testimony in the trial court in this action for partition on January 21, 1981, as follows:

“Q   (Atty.
Acosta) We now come to the several parcels of land at Salug,
Zamboanga del Sur; did I
get you correctly that this property was acquired by means of sales patent?

“A    (Paciencia Abuton) Yes.

“Q   And
these properties were acquired during your marriage to Pedro Abuton?

“A    Yes.

“Q   Did
I get you correctly when you informed this Honorable Court that the case
involving these properties is appealed?

“A    Yes.

“Q   And
this case is already decided by the Court of Appeals?

“A    Yes,
but they appealed to the Supreme Court.

“Q   The
decision of the Court of Appeals was promulgated on August 2, 1979 and the appeal of the opposing
parties in the Supreme Court is pending decision by that court?

“A    There
is already a decision.

“Q   And in that decision of
the Supreme Court the judgment of the
Court of Appeals was affirmed?

“A    Yes.”
(Underscoring supplied; p. 8, t.s.n.,
Lopez, Jan. 21, 1981; p. 10, Rollo.)

It seems, however, that besides eliciting this admission from Paciencia, Felicidad’s counsel
did nothing more to prove that the Salug case was
finished.  It does not appear that the
decisions of the trial court, the Court of Appeals and the Supreme Court in the
Salug case, and the entry of judgment in this Court,
were presented as evidence in the partition case.  As observed by the Court of Appeals:

“x x x, plaintiff-appellant has not
shown that the Salug case, presently within the
jurisdiction of Mahayag, Zamboanga
del Sur is over.  Therefore, in accordance
with the aforesaid agreements (Exhs. A-1 & A-2; Exh. 2), she is not
yet entitled to ask for partition of subject properties owned in common.” (pp. 18-19, Rollo.)

The trial court may have inadvertently overlooked
Paciencia’s admission that the Salug
case was finished, or, it chose to be technical because Felicidad’s
complaint for partition was in fact prematurely filed before, not after,
the decision in the Salug case became final.  For the past ten (10) years, the petitioner
has vainly and stubbornly fought all the way to the Court of Appeals and this
Court to prove that the trial court erroneously ruled that her action for
partition was premature, when what she should have done, after the Supreme
Court entered judgment in the Salug case on May 28,
1980, was to amend her defective complaint for partition, or file a new one
containing the requisite allegations showing that she had a sufficient cause of
action or that it had accrued.

The trial court and the Court of Appeals did not err in
dismissing the petitioner’s complaint for partition for being premature because
when it was filed on February 6, 1978,
her cause of action had not yet accrued; at that time the Salug
case was still pending in the Court of Appeals. 
Since the termination of the Salug case was a
condition precedent for the filing of said action for partition, non-compliance
with that condition affected the existence of her cause of action (Galuba vs. Laureta, 157 SCRA 627;
Mendoza vs. CA, 19 SCRA 756).  It
rendered her complaint defective and subject to dismissal for lack of cause of
action.  The defect is not cured by the
occurrence of the condition during the pendency of
the action.

WHEREFORE, the petition for review is denied for lack of
merit.  Petitioner should immediately refile her action for partition, accounting and damages in
the competent court in Oroquieta
City.  This decision is immediately executory in the sense that no extension of time to file a
motion for reconsideration will be entertained. 
No costs.

SO ORDERED.

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