FIRST DIVISION

[G.R. No. L-44426. February 25, 1982.]

SULPICIO CARVAJAL , petitioner, vs. THE HONORABLE COURT OF

APPEALS and EUTIQUIANO CAMARILLO and LIBERATA CACABELOS ,
respondents.

Zoilo P. Carvajal for petitioner.

Benito Valdez for private respondents.

SYNOPSIS

A complaint for ejectment and recovery of a 1/5 Portion of a parcel of and, inherited from
their parents by the five Espique children, two of them being Evaristo and Estefanio, was
filed by the private respondent spouses against petitioner, the occupant thereof. The
subject parcel of land was allegedly bought by the private respondents from Evaristo
Espique on April 15, 1964, while the petitioner claimed to have bought the same from
Estefanio Espique on April 26, 1967. Both sales were made while the petition for partition
of the land filed by Evaristo Espique was still pending in court. The lower court rendered a
decision which was affirmed by the Court of Appeals, declaring the respondents the lawful
owners of the land in question and ordering the petitioner to pay P30.00 in monthly rentals
until possession of the property is surrendered to respondents
The Supreme Court held that the action for ejectment and recovery of possession
instituted by the private respondents in the lower court is premature, for what must be
settled first is the action for partition; and that until the partition of the estate is ordered by
the Court of First instance of Pangasinan in the pending partition proceeding and the share
of each co-heir is determined by metes and bounds, neither petitioner nor respondents can
rightfully claim that what they bought is the part in dispute.
Judgment reversed.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; ACTION FOR EJECTMENT AND RECOVERY OF

POSSESSION OF PORTION OF A PARCEL OF LAND OWNED IN COMMON FILED BEFORE
PARTITION IS PREMATURE; REASON. — The action for ejectment and recovery of
possession instituted by herein respondents in the lower court is premature, for what must
be settled first is the action for partition. Unless a project of partition is effected, each heir
cannot claim ownership over a definite portion of the inheritance. Without partition, either
by agreement between the parties or by judicial proceeding, a co-heir cannot dispose of a
specific portion of the estate. For where there are two or more heirs, the whole estate of
the decedent is, before its partition, owned in common by such heirs. (Article 1078, New
Civil Code) Upon the death of a person, each of his heirs becomes the undivided owner of
the whole estate left with respect to the part or portion which might be adjudicated to him,
a community of ownership being thus formed among the co-owners of the estate or co-
heirs while it remains undivided. (3 Manresa 357; Alcala vs. Alcala, 35 Phil. 679; Jakosalem
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 vs. Rafols, et al., 73 Phil. 628).
2. CIVIL LAW; CO-OWNERSHIP; CO-HEIR IS NOT OWNER OF A DEFINITE PORTION OF
LAND OWNED IN COMMON BEFORE PARTITION. — While under Article 493 of the New
Civil Code, each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto and he may alienate, assign or mortgage it, and even substitute
another person in its enjoyment, the effect of the alienation or the mortgage with respect
to the co-owners, shall be limited, by mandate of the same article, to the portion which may
be allotted to him in the division upon the termination of the co-ownership. An individual
co-owner cannot adjudicate to himself or claim title to any definite portion of the land or
thing owned in common until its actual partition by agreement or judicial decree. Prior to
that time all that the co-owner has is an ideal or abstract quota or proportionate share in
the entire thing owned in common by all the co-owners. (Diversified Credit Corp. vs.
Rosado, et. al., 26 SCRA 474) What a co-owner may dispose of is only his undivided aliquot
share,, which shall be limited to the portion that may be allotted to him upon partition.
(Liwanag vs. Doriano, 32 Phil. 66; Mercado vs. Liwanag, 5 SCRA 472.) Before partition, a
co-heir can only sell his successional rights. Article 1088, New Civil Code; Broce vs. De la
Viña, 20 Phil. 423; Wenceslao vs. Calimon, 46 Phil. 906; Hernaez vs. Hernaez, 32 Phil. 214;
De Borja vs. Vda. de Borja, 46 SCRA 577).
3. ID.; ID.; ID.; SALES MADE BY HEIRS PRIOR TO PARTITION OF PROPERTY OWNED IN
COMMON IS VALID; LIMITATION. — The fact that the sale executed by Evaristo G. Espique
in favor of respondents and the sale executed by Estefanio Espique in favor of petitioner
were made before the partition of the property among the co-heir does not annul or
invalidate the deeds of sale and both sales are valid. However, the interests thereby
acquired by petitioners and respondents are limited only to the parts that may be
ultimately assigned to Estefanio and Evaristo, respectively, upon the partition of the estate
(Jakosalem vs. Rafols, et al., supra; Mercado vs. Viado, 5 SCRA 859.) subject to provisions
on subrogation of the other co-heirs to the rights of the stranger-purchaser provided in
Article 1088 of the Civil Code.
4. ID.; ID.; ID,; ID.; NOTICE IN WRITING TO CO-HEIRS NOT REQUIRED FOR VALIDITY OF
THE SALE. — The notice in writing to co-heirs is not a requisite for the validity of the sale of
the property owned in common. Its purpose is merely to apprise the co-heirs of the sale of
a portion of the estate, for them to exercise their preferential right of subrogation under
Article 1088 of the New Civil Code, that is, the right to redeem the property sold within one
month from the time they were notified in writing of the sale by a co-heir.

DECISION

TEEHANKEE , J : p

The Court reverses the appellate court's decision affirming in toto the judgment of the
Court of First Instance of Pangasinan, declaring plaintiffs-respondents the lawful owners
of the land in question and ordering defendant (herein petitioner) to pay P30.00 monthly
rentals until possession of the property is surrendered to respondents, for unless there is
partition of the estate of the deceased, either extrajudicially or by court order, a co-heir
cannot validly claim title to a specific portion of the estate and sell the same. Title to any
specific part of the estate does not automatically pass to the heirs by the mere death of
the decedent and the effect of any disposition by a co-heir before partition shall be limited
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 to the portion which may be allotted to him upon the dissolution of the communal estate.
What a co-heir can validly dispose of is only his hereditary rights.
Private respondents, who are husband and wife, had instituted a complaint before the
Court of First Instance for ejectment and recovery of possession against herein petitioner,
docketed as Civil Case No. T-1163, alleging that they are the owners in fee simple of a
parcel of commercial land, pro-indiviso, consisting of 150.8 sq. meters, more or less,
situated in Poblacion, Tayug, Pangasinan, having bought the same from Evaristo G.
Espique by virtue of a Deed of Absolute Sale executed on April 15, 1964. They also
demand that petitioner pay a monthly rental for the use of the property at the rate of
P40.00 until the property is surrendered to them.
The property in question is a 1/5 portion of a 754 sq. meter land originally owned by
Hermogenes Espique and his wife, both dead. After their death, their five children, namely:
Maria, Evaristo, Faustina, Estefanio and Trofinia succeeded them in the ownership of the
whole lot.
Petitioner presently occupies two-fifths of the whole lot inherited pro-indiviso by the
Espique children . Petitioner alleges that he purchased the northern one-half portion of the
lot he is occupying (which is also claimed by respondents) from Estefanio Espique and
that the southern one-half portion is leased to him by Tropinia Espique. The land subject of
the controversy is the most southern portion of the whole lot inherited by the Espique
children which petitioner claims he had bought from Estefanio on April 26, 1967 and which
respondents claim they had bought from Evaristo on April 15, 1964.
Both sales were made while the petition for partition filed by Evaristo Espique was still
pending before the Court of First Instance of Pangasinan, docketed therein as Civil Case
No. T-966. prLL

The Court finds merit in the petition for setting aside respondent appellate court's decision
finding for respondents-plaintiffs, for the following considerations:
The action for ejectment and recovery of possession instituted by herein respondents in
the lower court is premature, for what must be settled first is the action for partition.
Unless a project of partition is effected, each heir cannot claim ownership over a definite
portion of the inheritance. Without partition, either by agreement between the parties or by
judicial proceeding, a co-heir cannot dispose of a specific portion of the estate. For where
there are two or more heirs, the whole estate of the decedent is, before its partition, owned
in common by such heirs. 1 Upon the death of a person, each of his heirs becomes the
undivided owner of the whole estate left with respect to the part or portion which might be
adjudicated to him, a community of ownership being thus formed among the co-owners of
the estate or co-heirs while it remains undivided. 2
While under Article 493 of the New Civil Code, each co-owner shall have the full ownership
of his part and of the fruits and benefits pertaining thereto and he may alienate, assign or
mortgage it, and even substitute another person in its enjoyment, the effect of the
alienation or the mortgage with respect to the co-owners, shall be limited, by mandate of
the same article, to the portion which may be allotted to him in the division upon the
termination of the co-ownership. He has no right to sell or alienate a concrete, specific, or
determinate part of the thing in common to the exclusion of the other co-owners because
his right over the thing is represented by an abstract or ideal portion without any physical
adjudication. 3 An individual co-owner cannot adjudicate to himself or claim title to any
definite portion of the land or thing owned in common until its actual partition by
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 agreement or judicial decree. Prior to that time all that the co-owner has is an ideal or
abstract quota or proportionate share in the entire thing owned in common by all the co-
owners. 4 What a co-owner may dispose of is only his undivided aliquot share, which shall
be limited to the portion that may be allotted to him upon partition. 5 Before partition, a co-
heir can only sell his successional rights. 6

In the case at bar, the fact that the sale executed by Evaristo G. Espique in favor of
respondents and the sale executed by Estefanio Espique in favor of petitioner were made
before the partition of the property among the co-heirs does not annul or invalidate the
deeds of sale and both sales are valid. However, the interests thereby acquired by
petitioner and respondents are limited only to the parts that may be ultimately assigned to
Estefanio and Evaristo, respectively, upon the partition of the estate 7 subject to provisions
on subrogation of the other co-heirs to the rights of the stranger-purchaser provided in
Article 1088 of the Civil Code. 8 Respondent court's ruling that the sale by Estefanio in
favor of petitioner is not valid because of lack of notice to his co-heirs is erroneous. Such
notice in writing is not a requisite for the validity of the sale. Its purpose is merely to
apprise the co-heirs of the sale of a portion of the estate, for them to exercise their
preferential right of subrogation under Article 1088 of the New Civil Code, that is, the right
to redeem the property sold within one month from the time they were notified in writing
of the sale by a co-heir. (There is nothing in the record to indicate that such right of
subrogation was in effect sought to be exercised upon the co-heirs' having learned of the
sale, which is not in issue here.). Cdpr

Thus, respondents have no right to eject petitioners nor demand payment of rentals for the
use of the property in dispute. Until the partition of the estate is ordered by the Court of
First Instance of Pangasinan in the pending partition proceedings and the share of each
co-heir is determined by metes and bounds, neither petitioner nor respondents can
rightfully claim that what they bought is the part in dispute.
Accordingly, respondent court's judgment is set aside and judgment is hereby rendered
dismissing the complaint of respondents-plaintiffs in the court below. No pronouncement
as to costs.
Makasiar, Guerrero, Melencio-Herrera and Plana, JJ., concur.
Fernandez, J., took no part.
Footnotes

1. Article 1078, New Civil Code.

2. 3 Manresa 357; Alcala vs. Alcala, 35 Phil. 679; Jakosalem vs. Rafols, et al., 73 Phil. 628.
3. Santos vs. Buenconsejo, 14 SCRA 407.

4. Diversified Credit Corp. vs. Rosado, et al, 26 SCRA 474.

5. Liwanag vs. Doriano, 32 Phil. 66; Mercado vs. Liwanag, 5 SCRA 472.

6. Article 1088, New Civil Code; Broce vs. De la Viña, 20 Phil. 423; Wenceslao vs. Calimon;
46 Phil. 906; Hernaez vs. Hernaez, 32 Phil. 214; De Borja vs. Vda. de Borja, 46 SCRA 577.

7. Jakosalem vs. Rafols, et al. supra; Mercado vs. Viado, 5 SCRA 859.
8. The text of the cited article reads:
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 Art. 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.

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