Unenforceable

Under the law (Article 1623 of the Civil Code), if a co-owner or co-owners sell/s his/their share in the property co-owned, the other co-owners have the right of redemption within 30 (thirty) days from receipt of notice in writing by the selling co-owner. This is the law involved his case of Ato who was later on substituted by his wife Pita.

Ato was one of the 11 children of Pacio and Marta. When Pacio died in 1950, his property consisting of a parcel of land covered by OCT No. 1379 with an area of 13 hectares (lot 239) more or less passed on to Marta and the 11 children, including Ato. Although the land was not actually partitioned in a survey after Pacio’s death, a definite portion was assigned to the heirs (hantal hantal). Each heir took and possessed specific premises as his/her share in the land, farmed their respective portions, and improved them, with each heir limiting the improvement within his/her portion.

Subsequently, Rosa and her husband Bruno acquired the various portions of the land from the various co-owners or brothers and sisters of Ato to the extent of 77,511.93 square meters which was correspondingly annotated as adverse claim on the land title. Then on April 11, 1971, Rosa claimed that Ato himself who was an illiterate farmer agreed to sell his share of the land with an area of 12,527.19 square meters, to her. The supposed sale was contained in a receipt prepared by Rosa’s son in law at her behest which states that Ato received P30 only as advance payment of his share in the land purchased for P5,000.

Since Rosa wanted to register the claimed sale transaction, she demanded that Ato execute the corresponding deed of sale and to receive the balance of the consideration. When Ato refused, Rosa and her husband sued Ato and his wife Pita for specific performance of a deed of sale with damages. During the trial both Ato and Bruno died so the case was pursued and defended by their widows Pita and Rosa.

Pita denied that Ato sold his share. She claimed that Ato’s signature on the purported receipt was forged and that Ato only leased the land to Rosa for five years with an annual lease rental of P100 payable in installment. She also contended that if Rosa and Bruno indeed acquired the portions of Ato’s other co-owners, she was invoking the right to redeem the same which could still be done since no written notice of sale was given pursuant to article 1623.

In reply, Rosa claimed that Pita could no longer redeem the shares of the other co-owners because Ato was no longer a co-owner. Besides, when Ato was given a duplicate of the OCT containing the annotation of the various sales by the other co-owners, the required notice was already given to him. And since it was way beyond 30 days after said notice, Pita could not redeem the shares of the other co-owners anymore. Could Pita still redeem the portions of land sold by Ato’s co-heirs? Could Rosa on the other hand require Pita to execute a Deed of Sale of Ato’s portion?

Article 1623 of the Civil Code is clear in requiring that the written notification should come from the vendor or prospective vendor, not from any other person. In this case, Ato was not given any written notice of prospective or consummated sale of the portions of the lot 239 by the vendors or would be vendors. The 30-day period under the law therefore, has not commenced to run.

Despite this however, Pita could no longer invoke her right to redeem from Rosa, because the exercise of this right presupposes the existence of a co-ownership at the time the conveyance is made by a co-owner and when it is demanded by the other co-owner or co-owners. Co-ownership exists when the ownership of an undivided thing or right belongs to different persons. By its nature, a co-owner cannot point to a specific portion of the property owned in common as his own because his share therein remains intangible. As legal redemption is intended to minimize co-ownership, once the property is subdivided and distributed among the co-owners, the co-ownership ceases to exist and there is no more reason to sustain any right of legal redemption.

In this case, although lot 239 has not yet been formally subdivided, still the particular portions belonging to the heirs of Pacio had already been ascertained and they took possession of their respective parts. It is of no moment that the partition is informal for even an oral agreement of partition is valid and binding upon the parties. Likewise, the fact that the respective shares of Pacio’s heirs are still embraced in one and the same certificate of title and have not been technically apportioned does not make said portions less determinable and identifiable from one another, nor does it in any way diminish the dominion of their respective owners.

But Rosa could not likewise enforce the contract of sale. Said contract is perfected by mere consent of the parties. To be valid, consent must be intelligent, or with an exact notion of the matter to which it refers, free and spontaneous. Intelligence in consent is vitiated by error; freedom by violence, intimidation or undue influence; spontaneity by fraud.

The general rule is that he who alleges fraud must substantiate his allegation. But when one of the parties is unable to read, or if the contract is in a language not understood by him, the person enforcing the contract must show that the terms have been fully explained to him (Art. 1332 Civil Code). In this case Rosa bears the burden of proving that the terms of the agreement had been explained to Ato who was illiterate. This she failed to do. So the contract of sale is also without force and effect on the ground of vitiated consent (Vda. de Ape vs. Court of Appeals, G.R. 133638, April 15, 2005. 456 SCRA 193)

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