G.R. No. 119777




Manila THIRD DIVISION G.R. No. 119777 October 23, 1997 THE HEIRS OF PEDRO ESCANLAR, FRANCISCO HOLGADO and the SPOUSES DR. EDWIN A. JAYME and ELISA TAN-JAYME, petitioners, vs. THE HON. COURT OF APPEALS, GENEROSA MARTINEZ, CARMEN CARI-AN, RODOLFO CARI-AN, NELLY CHUA CARI-AN, for herself and as guardian ad litem of her minor son, LEONELL C. CARI-AN, FREDISMINDA CARI-AN, the SPOUSES PAQUITO CHUA and NEY SARROSA-CHUA and THE REGISTER OF DEEDS OF NEGROS OCCIDENTAL, respondents. G.R. No. 120690 October 23, 1997 FRANCISCO HOLGADO and HRS. OF PEDRO ESCANLAR, namely BERNARDO, FELY, SONIA, LILY, DYESEBEL and NOEMI all surnamed ESCANLAR, petitioners, vs. HON. COURT OF APPEALS, GENEROSA MARTINEZ, CARMEN CARI-AN, RODOLFO CARI-AN, NELLY CHUA CARI-AN, for herself and as guardian ad litem of her minor son, LEONELL C. CARI-AN, and SP. PAQUITO CHUA and NEY SARROSA CHUA and REGISTER OF DEEDS OF NEGROS OCCIDENTAL, respondents. ROMERO, J.: Before us are consolidated petitions for review of the decision of the Court of Appeals in CA-G.R. CV No. 39975 which affirmed the trial court's pronouncement that the deed of sale of rights, interests and participation in favor of petitioners is null and void. The case arose from the following facts: Spouses Guillermo Nombre and Victoriana Cari-an died without issue in 1924 and 1938, respectively. Nombre's heirs include his nephews and grandnephews. Victoriana Cari-an was succeeded by her late brother's son, Gregorio Cari-an. The latter was declared as Victoriana's heir in the estate proceedings for Nombre and his wife (Special Proceeding No. 7-7279).1 After Gregorio died in 1971, his wife, Generosa Martinez, and children, Rodolfo, Carmen, Leonardo and Fredisminda, all surnamed Cari-an, were also adjudged as heirs by representation to Victoriana's estate.2 Leonardo Cari-an passed away, leaving his widow, Nelly Chua vda. de Cari-an and minor son Leonell, as his heirs. Two parcels of land, denominated as Lot No. 1616 and 1617 of the Kabankalan Cadastre with an area of 29,350 square meters and 460,948 square meters, respectively, formed part of the estate of Nombre and Cari-an. On September 15, 1978, Gregorio Cari-an's heirs, herein collectively referred to as private respondents Cari-an, executed the Deed of Sale of Rights, Interests and Participation worded as follows: NOW, THEREFORE, for and in consideration of the sum of TWO HUNDRED SEVENTY-FIVE THOUSAND (P275,000.00) Pesos, Philippine Currency, to be paid by the VENDEES to the VENDORS, except the share of the minor child of Leonardo Cari-an, which should be deposited with the Municipal Treasurer of Himamaylan, Province of Negros Occidental, by the order of the Court of First Instance of Negros Occidental, Branch VI, Himamaylan, by those presents, do hereby SELL, CEDE, TRANSFER and CONVEY by way of ABSOLUTE SALE, all the RIGHTS, INTERESTS and PARTICIPATION of the Vendors as to the one-half (1/2) portion pro-indiviso of Lots Nos. 1616 and 1617 (Fishpond), of the Kabankalan Cadastre, pertaining to the one-half (1/2) portion pro-indiviso of late Victoriana Cari-an unto and in favor of the Vendees, their heirs, successors and assigns; x x x x x x x x x That this Contract of Sale of rights, interests and participations shall become effective only upon the approval by the Honorable Court of First Instance of Negros Occidental, Branch VI- Himamayla. (Emphasis supplied.) Pedro Escanlar and Francisco Holgado, the vendees, were concurrently the lessees of the lots referred to above.3 They stipulated that the balance of the purchase price (P225,000.00) shall be paid on or before May 1979 in a Deed of Agreement executed by the parties on the same day: WHEREAS, at the time of the signing of the Contract, VENDEES has (sic) only FIFTY THOUSAND (P50,000.00) Pesos available thereof, and was not able to secure the entire amount; WHEREAS, the Vendors and one of the Vendees by the name of Pedro Escanlar are relatives, and absolute faith and trust exist between them, wherein during economic crisis, has not failed to give monetary succor to the Vendors; WHEREAS, Vendors herein understood the present scarcity of securing available each (sic) in the amount stated in the contract; NOW THEREFORE, for and in consideration of the sum of FIFTY THOUSAND (P50,000.00) Pesos, Philippine Currency, the balance of TWO HUNDRED TWENTY FIVE THOUSAND (P25,000.00) Pesos to be paid by the Vendees on or before May, 1979, the Vendors herein, by these Presents, do hereby CONFIRM and AFFIRM the Deed of Sale of the Rights, Interests and Participation dated September 15, 1978, over Lots Nos. 1616 and 1617 (fishpond) of the Kabankalan Cadastre in favor of the VENDEES, their heirs and assigns. That pending the complete payment thereof, Vendees shall not assign, sell, lease, nor mortgage the lights, interests and participation thereof; That in the event the Vendees fail and/or omit to pay the balance of said purchase price on May 31, 1979 and the cancellation of said Contract of Sale is made thereby, the sum of FIFTY THOUSAND (P50,000.00) Pesos shall be deemed as damages thereof to Vendors. (Emphasis supplied).4 Petitioners were unable to pay the Cari-an heirs' individual shares, amounting to P55,000.00 each, by the due date. However, said heirs received at least 12 installments from petitioners after May 1979.5 Rodolfo Cari-an was fully paid by June 21, 1979. Generosa Martinez, Carmen Cari-an and Fredisminda Cari-an were likewise fully compensated for their individual shares, per receipts given in evidence.6 The minor Leonell's share was deposited with the Regional Trial Court on September 7, 1982.7 Being former lessees, petitioners continued in possession of Lot Nos. 1616 and 1617. Interestingly, they continued to pay rent based on their lease contract. On September 10, 1981, petitioners moved to intervene in the probate proceedings of Nombre and Cari-an as the buyers of private respondent Cari-an's share in Lot Nos. 1616 and 1617. Petitioners' motion for approval of the September 15, 1978 sale before the same court, filed on November 10, 1981, was opposed by private respondents Cari-an on January 5, 1982.8 On September 16, 1982, the probate court approved a motion filed by the heirs of Cari-an and Nombre to sell their respective shares in the estate. On September 21, 1982, private respondents Cari-an, in addition to some heirs of Guillermo Nombre,9 sold their shares in eight parcels of land including Lot Nos. 1616 and 1617 to the spouses Ney Sarrosa Chua and Paquito Chua for P1,850,000.00. One week later, the vendor-heirs, including private respondents Cari-an, filed a motion for approval of sale of hereditary rights, i.e. the sale made on September 21, 1982 to the Chuas. Private respondents Cari-an instituted this case for cancellation of sale against petitioners (Escanlar and Holgado) on November 3, 1982. 10 They complained of petitioners' failure to pay the balance of the purchase price by May 31, 1979 and alleged that they only received a total of P132,551.00 in cash and goods. Petitioners replied that the Cari-ans, having been paid, had no right to resell the subject lots; that the Chuas were purchasers in bad faith; and that the court approval of the sale to the Chuas was subject to their existing claim over said properties. On April 20, 1983, petitioners also sold their rights and interests in the subject parcels of land (Lot Nos. 1616 and 1617) to Edwin Jayme for P735,000.0011 and turned over possession of both lots to the latter. The Jaymes in turn, were included in the civil case as fourth-party defendants. On December 3, 1984, the probate court approved the September 21, 1982 sale "without prejudice to whatever rights, claims and interests over any of those properties of the estate which cannot be properly and legally ventilated and resolved by the court in the same intestate proceedings."12 The certificates of title over the eight lots sold by the heirs of Nombre and Cari-an were later issued in the name of respondents Ney Sarrosa Chua and Paquito Chua. The trial court allowed a third-party complaint against the third-party defendants Paquito and Ney Chua on January 7, 1986 where Escanlar and Holgado alleged that the Cari-ans conspired with the Chuas when they executed the second sale on September 21, 1982 and that the latter sale is illegal and of no effect. Respondents Chua countered that they did not know of the earlier sale of one-half portion of the subject lots to Escanlar and Holgado. Both parties claimed damages.13 On April 28, 1988, the trial court approved the Chuas' motion to file a fourth-party complaint against the spouses Jayme.ℒαwρhi৷ Respondents Chua alleged that the Jaymes refused to vacate said lots despite repeated demands; and that by reason of the illegal occupation of Lot Nos. 1616 and 1617 by the Jaymes, they suffered materially from uncollected rentals. Meanwhile, the Regional Trial Court of Himamaylan which took cognizance of Special Proceeding No. 7-7279 (Intestate Estate of Guillermo Nombre and Victoriana Cari-an) had rendered its decision on October 30, 1987.14 The probate court concluded that since all the properties of the estate were disposed of or sold by the declared heirs of both spouses, the case is considered terminated and the intestate estate of Guillermo Nombre and Victoriana Cari-an is closed. The court held: As regards the various incidents of this case, the Court finds no cogent reason to resolve them since the very object of the various incidents in this case is no longer m existence, that is to say, the properties of the estate of Guillermo Nombre and Victoriana Cari-an had long been disposed of by the rightful heirs of Guillermo Nombre and Victoriana Cari-an. In this respect, there is no need to resolve the Motion for Subrogation of Movants Pedro Escanlar and Francisco Holgado to be subrogated to the rights of the heirs of Victoriana Cari-an since all the properties of the estate had been transferred and titled to in the name of spouses Ney S. Chua and Dr. Paquito Chua. Since the nature of the proceedings in this case is summary, this Court, being a Probate Court, has no jurisdiction to pass upon the validity or invalidity of the sale of rights of the declared heirs of Guillermo Nombre and Victoriana Cari-an to third Parties. This issue must be raised in another action where it can be properly ventilated and resolved. . . . Having determined, after exhausted (sic) and lengthy hearings, the rightful heirs of Guillermo Nombre and Victoriana Cari-an, the Court found out that the second issue has become moot and academic considering that there are no more properties left to be partitioned among the declared heirs as that had long ago been disposed of by the declared heirs . . . . (Emphasis supplied). The seminal case at bar was resolved by the trial court on December 18, 1991 in favor of cancellation of the September 15, 1978 sale. Said transaction was nullified because it was not approved by the probate court as required by the contested deed of sale of rights, interests and participation and because the Cari-ans were not fully paid. Consequently, the Deed of Sale executed by the heirs of Nombre and Cari-an in favor of Paquito and Ney Chua, which was approved by the probate court, was upheld. The dispositive portion of the lower court's decision reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1) Declaring the following contracts null and void and of no effect: a) The Deed of Sale, dated Sept. 15, 1978, executed by the plaintiffs in favor of the defendants Pedro Escanlar and Francisco Holgado (Exh. "A," Plaintiffs) b) The Deed of Agreement, dated Sept. 15, 1978, executed by the plaintiffs in favor of the defendants, Pedro Escanlar and Francisco Holgado (Exh. "A," Plaintiffs) c) The Deed of Sale, dated April 20, 1983, executed by the defendants in favor of the fourth-party defendants, Dr. Edwin Jayme and Elisa Tan Jayme d) The sale of leasehold rights executed by the defendants in favor of the fourth-party defendants 2) Declaring the amount of Fifty Thousand Pesos (P50,000.00) paid by the defendants to the plaintiffs in connection with the Sept. 15, 1978 deed of sale, as forfeited in favor of the plaintiffs, but ordering the plaintiffs to return to the defendants whatever amounts they have received from the latter after May 3, 1979 and the amount of Thirty Five Thousand Two Hundred Eighteen & 75/100 (P35,218.75) 15 deposited with the Treasurer of Himamaylan, Negros Occidental, for the minor Leonell C. Cari-an — 3) Declaring the deed of sale, dated September 23, 1982, executed by Lasaro Nombre, Victorio Madalag, Domingo Campillanos, Sofronio Campillanos, Generosa Vda. de Martinez, Carmen Cari-an, Rodolfo Cari-an, Nelly Chua Vda. de Cari-an, for herself and as guardian ad litem of the minor Leonell C. Cari-an, and Fredisminda Cari-an in favor of the third-party defendants and fourth-party plaintiffs, spouses Dr. Paquito Chua and Ney Sarrosa Chua (Exh. "2"-Chua) as legal, valid and enforceable provided that the properties covered by the said deed of sale are subject of the burdens of the estate, if the same have not been paid yet. 4) Ordering the defendants Francisco Holgado and Pedro Escanlar and the fourth-party defendants, spouses Dr. Edwin Jayme and Elisa Tan Jayme, to pay jointly and severally the amount of One Hundred Thousand Pesos (P100,000.00 as moral damages and the further sum of Thirty Thousand Pesos (P30,000.00) as attorney's fees to the third-party defendant spouses, Dr. Paquito Chua and Ney Sarrosa-Chua. 5) Ordering the fourth-party defendant spouses, Dr. Edwin Jayme and Elisa Tan Jayme, to pay to the third-party defendants and fourth-party plaintiffs, spouses Dr. Paquito Chua and Ney Sarrosa-Chua, the sum of One Hundred Fifty Seven Thousand Pesos (P157,000.00) as rentals for the riceland and Three Million Two Hundred Thousand Pesos (P3,200,000.00) as rentals for the fishpond from October, 1985 to July 24, 1989 plus the rentals from the latter date until the property shall have been delivered to the spouses Dr. Paquito Chua and Ney Sarrosa-Chua; 6) Ordering the defendants and the fourth-party defendants to immediately vacate Lots Nos. 1616 and 1617, Kabankalan Cadastre; 7) Ordering the defendants and the fourth-party defendants to pay costs. SO ORDERED.16 Petitioners raised the case to the Court of Appeals.17 Respondent court affirmed the decision of the trial court on February 17, 1995 and held that the questioned deed of sale of rights, interests and participation is a contract to sell because it shall become effective only upon approval by the probate court and upon full payment of the purchase price.18 Petitioners' motion for reconsideration was denied by respondent court on April 3, 1995.19 Hence, these petitions.20 1. We disagree with the Court of Appeals' conclusion that the September 15, 1978 Deed of Sale of Rights, Interests and Participation is a contract to sell and not one of sale. The distinction between contracts of sale and contracts to sell with reserved title has been recognized by this Court in repeated decisions, according to Justice J.B.L. Reyes in Luzon Brokerage Co. Inc. v. Maritime Building Co., Inc.,21 upholding the power of promisors under contracts to sell in case of failure of the other party to complete payment, to extrajudicially terminate the operation of the contract, refuse the conveyance, and retain the sums of installments already received where such rights are expressly provided for. In contracts to sell, ownership is retained by the seller and is not to pass until the full payment of the price. Such payment is a positive suspensive condition, the failure of which is not a breach of contract but simply an event that prevented the obligation of the vendor to convey title from acquiring binding force.22 To illustrate, although a deed of conditional sale is denominated as such, absent a proviso that title to the property sold is reserved in the vendor until full payment of the purchase price nor a stipulation giving the vendor the right to unilaterally rescind the contract the moment the vendee fails to pay within a fixed period, by its nature, it shall be declared a deed of absolute sale.23 The September 15, 1978 sale of rights, interests and participation as to 1/2 portion pro indiviso of the two subject lots is a contract of sale for the following reasons: First, private respondents as sellers did not reserve unto themselves the ownership of the property until full payment of the unpaid balance of P225,000.00. Second, there is no stipulation giving the sellers the right to unilaterally rescind the contract the moment the buyer fails to pay within the fixed period.24 Prior to the sale, petitioners were in possession of the subject property as lessees. Upon sale to them of the rights, interests and participation as to the 1/2 portion pro indiviso, they remained in possession, not in concept of lessees anymore but as owners now through symbolic delivery known as traditio brevi manu.25 Under Article 1477 of the Civil Code, the ownership of the thing sold is acquired by the vendee upon actual or constructive delivery thereof.26 In a contract of sale, the non-payment of the price is a resolutory condition which extinguishes the transaction that, for a time, existed and discharges the obligations created thereunder. The remedy of an unpaid seller in a contract of sale is to seek either specific performance or rescission.27 2. Next to be discussed is the stipulation in the disputed September 15, 1978 Deed of Sale of Rights, Interests and Participation which reads: "(t)his Contract of Sale of rights, interests and participations shall become effective only upon the approval by the Honorable Court of First Instance of Negros Occidental, Branch VI-Himamaylan." Notably, the trial court and the Court of Appeals both held that the deed of sale is null and void for not having been approved by the probate court. There has arisen here a confusion in the concepts of validity and the efficacy of a contract. Under Art. 1318 of the Civil Code, the essential requisites of a contract are: consent of the contracting parties; object certain which is the subject matter of the contract and cause of the obligation which is established. Absent one of the above, no contract can arise. Conversely, where all are present, the result is a valid contract. However, some parties introduce various kinds of restrictions or modalities, the lack of which will not, however, affect the validity of the contract. In the instant case, the Deed of Sale, complying as it does with the essential requisites, is a valid one. However, it did not bear the stamp of approval of the court. This notwithstanding, the contract's validity was not affected for in the words of the stipulation, " . . . this Contract of Sale of rights, interests and participations shall become effective only upon the approval by the Honorable Court . . ." In other words, only the effectivity and not the validity of the contract is affected. Then, too, petitioners are correct in saying that the need for approval by the probate court exists only where specific properties of the estate are sold and not when only ideal and indivisible shares of an heir are disposed of. In the case of Dillena v. Court of Appeals,28 the Court declared that it is within the jurisdiction of the probate court to approve the sale of properties of a deceased person by his prospective heirs before final adjudication.29 It is settled that court approval is necessary for the validity of any disposition of the decedent's estate. However, reference to judicial approval cannot adversely affect the substantive rights of the heirs to dispose of their ideal share in the co-heirship and/or co-ownership among the heirs.30 It must be recalled that during the period of indivision of a decedent's estate, each heir, being a co-owner, has full ownership of his part and may therefore alienate it.31 But the effect of the alienation with respect to the co-owners shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.32 From the foregoing, it is clear that hereditary rights in an estate can be validly sold without need of court approval and that when private respondents Cari-an sold their rights, interests and participation in Lot Nos. 1616 and 1617, they could legally sell the same without the approval of the probate court. As a general rule, the pertinent contractual stipulation (requiring court approval) should be considered as the law between the parties. However, the presence of two factors militate against this conclusion. First, the evident intention of the parties appears to be contrary to the mandatory character of said stipulation.33 Whoever crafted the document of conveyance, must have been of the belief that the controversial stipulation was a legal requirement for the validity of the sale. But the contemporaneous and subsequent acts of the parties reveal that the original objective of the parties was to give effect to the deed of sale even without court approval.34 Receipt and acceptance of the numerous installments on the balance of the purchase price by the Cari-ans and leaving petitioners in possession of Lot Nos. 1616 and 1617 reveal their intention to effect the mutual transmission of rights and obligations. It was only after private respondents Cari-an sold their shares in the subject lots again to the spouses Chua, in September 1982, that these same heirs filed the case at bar for the cancellation of the September 1978 conveyance. Worth considering too is the fact that although the period to pay the balance of the purchase price expired in May 1979, the heirs continued to accept payments until late 1979 and did not seek judicial relief until late 1982 or three years later. Second, we hold that the requisite approval was virtually rendered impossible by the Cari-ans because they opposed the motion for approval of the sale filed by petitioners35 and sued the latter for the cancellation of that sale. The probate court explained: (e) While it is true that Escanlar and Holgado filed a similar motion for the approval of Deed of Sale executed by some of the heirs in their favor concerning the one-half (1/2) portions of Lots 1616 and 1617 as early as November 10, 1981, yet the Court could not have favorably acted upon it, because there exists a pending case for the rescission of that contract, instituted by the vendors therein against Pedro Escanlar and Francisco Holgado and filed before another branch of this Court. Until now, this case, which attacks the very source of whatever rights or interests Holgado and Escanlar may have acquired over one-half (1/2) portions of Lots Nos. 1616 and 1617, is pending resolution by another court. Otherwise, if this Court meddles on these issues raised in that ordinary civil action seeking for the rescission of an existing contract, then, the act of this Court would be totally ineffective, as the same would be in excess of its jurisdiction.36 Having provided the obstacle and the justification for the stipulated approval not to be granted, private respondents Cari-an should not be allowed to cancel their first transaction with petitioners because of lack of approval by the probate court, which lack is of their own making. 3. With respect to rescission of a sale of real property, Article 1592 of the Civil Code governs: In the sale of immovable property, even though it may have been stipulated that upon failure to pay the price at the time agreed upon the rescission of the contract shall of right take place, the vendee may pay, even after the expiration of the period, as long as no demand for rescission of the contract has been made upon him either judicially or by a notarial act. After the demand, the court may not grant him a new term. (Emphasis added) In the instant case, the sellers gave the buyers until May 1979 to pay the balance of the purchase price. After the latter failed to pay installments due, the former made no judicial demand for rescission of the contract nor did they execute any notarial act demanding the same, as required under Article 1592. Consequently, the buyers could lawfully make payments even after the May 1979 deadline, as in fact they paid several installments to the sellers which the latter accepted. Thus, upon the expiration of the period to pay, the sellers made no move to rescind but continued accepting late payments, an act which cannot but be construed as a waiver of the right to rescind. When the sellers, instead of availing of their right to rescind, accepted and received delayed payments of installments beyond the period stipulated, and the buyers were in arrears, the sellers in effect waived and are now estopped from exercising said right to rescind.37 4. The matter of full payment is another issue taken up by petitioners. An exhaustive review of the records of this case impels us to arrive at a conclusion at variance with that of both the trial and the appellate courts. The sole witness in the cancellation of sale case was private respondent herein Fredisminda Cari-an Bustamante. She initially testified that after several installments, she signed a receipt for the full payment of her share in December 1979 but denied having actually received the P5,000.00 intended to complete her share. She claims that Escanlar and Holgado made her sign the receipt late in the afternoon and promised to give the money to her the following morning when the banks opened. She also claimed that while her brother Rodolfo Cari-an's share had already been fully paid, her mother Generosa Martinez only received P28,334.00 and her sister-in-law Nelly Chua vda. de Cari-an received only P11,334.00. Fredisminda also summed up all the installments and came up with the total of P132,551.00 from the long list on a sheet of a calendar which was transferred from a small brown notebook. She later admitted that her list may not have been complete for she gave the receipts for installments to petitioners Escanlar and Holgado. She thus claimed that they were defrauded because petitioners are wealthy and private respondents are poor. However, despite all her claims, Fredisminda's testimony fails to convince this Court that they were not fully compensated by petitioners. Fredisminda admits that her mother and her sister signed their individual receipts of full payment on their own and not in her presence. 38 The receipts presented in evidence show that Generosa Martinez was paid P45,625.00; Carmen Cari-an , P45,625.00; Rodolfo Cari-an , P47,500.00 on June 21, 1979; Nelly Chua vda. de Cari-an, P11,334.00 and the sum of P34,218.00 was consigned in court for the minor Leonell Cari-an.39 Fredisminda insists that she signed a receipt for full payment without receiving the money therefor and admits that she did not object to the computation. We find it incredible that a mature woman like Fredisminda Cari-an, would sign a receipt for money she did not receive. Furthermore, her claims regarding the actual amount of the installments paid to her and her kin are quite vague and unsupported by competent evidence. She even admits that all the receipts were taken by petitioner Escanlar.40 Worth noting too is the absence of supporting testimony from her co-heirs and siblings Carmen Cari-an, Rodolfo Cari-an and Nelly Chua vda. de Cari-an. The trial court reasoned out that petitioners, in continuing to pay the rent for the parcels of land they allegedly bought, admit not having fully paid the Cari-ans. Petitioners' response, that they paid rent until 1986 in compliance with their lease contract, only proves that they respected this contract and did not take undue advantage of the heirs of Nombre and Cari-an who benefited from the lease. Moreover, it is to be stressed that petitioners purchased the hereditary shares solely of the Cari-ans and not the entire lot. The foregoing discussion ineluctably leads us to conclude that the Cari-ans were indeed paid the balance of the purchase price, despite having accepted installments therefor belatedly. There is thus no ground to rescind the contract of sale because of non-payment. 5. Recapitulating, we have held that the September 15, 1978 deed of sale of rights, interests and participations is valid and that the sellers-private respondents Cari-an were fully paid the contract price. However, it must be emphasized that what was sold only the Cari-an's hereditary shares in Lot Nos. 1616 and 1617 being held pro indiviso by them and is thus a valid conveyance only of said ideal shares. Specific or designated portions of land were not involved. Consequently, the subsequent sale of 8 parcels of land, including Lot Nos. 1616 and 1617, to the spouses Chua is valid except to the extent of what was sold to petitioners in the September 15, 1978 conveyance. It must be noted however, that the probate court in Special Proceeding No. 7-7279 desisted from awarding the individual shares of each heir because all the properties belonging to the estate had already been sold.41 Thus it is not certain how much private respondents Cari-an were entitled to with respect to the two lots, or if they were even going to be awarded shares in said lots. The proceedings surrounding the estate of Nombre and Cari-an having attained finality for nearly a decade now, the same cannot be re-opened. The protracted proceedings which have undoubtedly left the property under a cloud and the parties involved in a state of uncertainty compels us to resolve it definitively. The decision of the probate court declares private respondents Cari-an as the sole heirs by representation of Victoriana Cari-an who was indisputably entitled to half of the estate.42 There being no exact apportionment of the shares of each heir and no competent proof that the heirs received unequal shares in the disposition of the estate, it can be assumed that the heirs of Victoriana Cari-an collectively are entitled to half of each property in the estate. More particularly, private respondents Cari-an are entitled to half of Lot Nos. 1616 and 1617, i.e. 14,675 square meters of Lot No. 1616 and 230,474 square meters of Lot No. 1617. Consequently, petitioners, as their successors-in-interest, own said half of the subject lots and ought to deliver the possession of the other half, as well as pay rents thereon, to the private respondents Ney Sarrosa Chua and Paquito Chua but only if the former (petitioners) remained in possession thereof. The rate of rental payments to be made were given in evidence by Ney Sarrosa Chua in her unrebutted testimony on July 24, 1989: For the fishpond (Lot No. 1617) — From 1982 up to 1986, rental payment of P3,000.00 per hectare; from 1986-1989 (and succeeding years), rental payment of P10,000.00 per hectare. For the riceland (Lot No. 1616) — 15 cavans per hectare per year; from 1982 to 1986, P125.00 per cavan; 1987-1988, P175.00 per cavan; and 1989 and succeeding years, P200.00 per cavan.43 WHEREFORE, the petitions are hereby GRANTED. The decision of the Court of Appeals under review is hereby REVERSED AND SET ASIDE. The case is REMANDED to the Regional Trial Court of Negros Occidental, Branch 61 for petitioners and private respondents Cari-an or their successors-in-interest to determine exactly which 1/2 portion of Lot Nos. 1616 and 1617 will be owned by each party, at the option of petitioners. The trial court is DIRECTED to order the issuance of the corresponding certificates of title in the name of the respective parties and to resolve the matter of rental payments of the land not delivered to the Chua spouses subject to the rates specified above with legal interest from date of demand. SO ORDERED. Melo, Francisco and Panganiban, JJ., concur. Narvasa, C.J., is on leave. Footnotes 1 Before the Court of First Instance of Negros Occidental, Branch 55. 2 Order dated September 28, 1972 in Special Proceedings No. 7-7279. 3 On August 2, 1979, the probate court approved the contract of lease of all the properties of the estate dedicated to rice production. On August 9, the court approved the contract of lease over Lot No. 1617 in Special Proceeding No. 7-7279. 4 Exhibit B. 5 Exhibits 9-A; 9-G; 9-FF; 9-KK; 9-RR; 9-XX; 9-YY; 9-AAA; 9-BBB; 9-CCC; 9-DDD; 9-EEE; 9-FFF; These were evidenced by handwritten receipts for installments like P112.50 (one cavan of rice), P451.50 (3 cavans of rice and 1 pig), et. al. 6 Thus, in a receipt dated December 27, 1979, Fredisminda Cari-an acknowledged receipt of P45,625.00. Carmen Cari-an and Generosa Martinez each received the same amount. Exhibits 2-6. 7 The amount of P34,218 was deposited per Order issued by Judge Osterwaldo Emilia. Exhibit 8, Records, p. 23. Nelly Chua vda. de Cari-an received the rest of their share less attorney's fees and commission. 8 Opposition to Motion for Approval dated January 5, 1982. 9 Namely Lazaro Nombre, Victoria Madalag and Domingo Campillanos. 10 Civil Case No. 218 (formerly Civil Case No. 1358), then Court of First Instance now the Regional Trial Court of Negros Occidental, Branch 61. 11 Exhibit 35. 12 Penned by Judge Bernardo T. Ponferrada in Special Proceeding No. 7-7279, Exhibit 3-D. 13 In addition, a complaint for Cancellation of Titles with Damages (Civil Case No. 389) was filed by Pedro Escanlar, Francisco Holgado and Edwin Jayme against the spouses Paquito Chua and Ney Sarrosa-Chua and the Register of Deeds of Negros Occidental before the Regional Trial Court of Negros Occidental sometime in July 1988. 14 Exhibit 31 for defendant. 15 Should be P34,218.75 per Order dated September 7, 1982 in Special Proceeding No. 7-7279. Exhibit 8, Records, p. 23. 16 Decision penned by Judge Rodolfo S. Layumas, Rollo, pp. 129-157. 17 CA-G.R. CV No. 39975. 18 Decision of the Court of Appeals, p. 9. Rollo, p. 65. Penned by Justice Antonio P. Solano, with Justices Minerva P. Gonzaga-Reyes and Eduardo G. Montenegro, concurring, Rollo, pp. 57-71. 19 Rollo, p. 74. 20 The petition in G.R. No. 119777 was posted on May 26, 1995 at the instance of the spouses Edwin and Elisa Jayme. The filing of the petition in G.R. No. 120690 was directed by Francisco Holgado. Counsel for the latter filed a Manifestation on November 2, 1995 stating that petitioners Escanlar and Holgado were unaware that counsel for the Jaymes had already filed a petition for review; that the Jaymes and petitioners have a common interest and thus request the consolidation of both cases. The Court granted the request for consolidation on January 17, 1996. Rollo of G.R. No. 120690, pp. 81-84. 21 43 SCRA 93 (January 31, 1972). 22 TOLENTINO, IV CIVIL CODE OF THE PHILIPPINES 3 (1992 edition). 23 Dignos v. CA, 158 SCRA 375 (1988). 24 Jacinto v. Kaparaz, 209 SCRA 246, 256 (May 22, 1992). 25 Ownership, under Roman law and the legal systems based on it, such as the Civil Law of the Philippines based on the Spanish Civil Code, cannot be transferred by mere agreement. Non nudis pactis, sed traditione dominia rerum transferentur. Tradition or delivery is needed to pass ownership. As a mode of acquisition of property, it consists in putting a thing at the disposal of the person to whom one wishes to convey it. The normal mode of accomplishing this is by real traditio or actual physical handing over of the thing by the transferer to the transferee. In contrast, there may be symbolical tradition, belonging to the class called feigned or fictitious tradition, one of which is traditio brevi manu where the buyer, being already in possession of the thing sold due to some other cause such as lease, merely remains in possession after the sale is effected, but now in concept of owner. 26 Also Article 1496 of the Civil Code. 27 Dissenting opinion of Justice Flerida Ruth P. Romero in Visayan Sawmill Company Inc. v. CA, 219 SCRA at 397 (March 3, 1993) citing Hanlon v. Haussermann, 40 Phil. 796 (1920). 28 163 SCRA 30 (July 28, 1988). 29 The Court explained that although the Rules of Court (specifically Sections 4 and 7 of Rule 89) do not specifically state that the sale of an immovable property belonging to an estate of a decedent, in a special proceeding, should be made with the approval of the court, this authority is necessarily included in its capacity as a probate court. Citing Manotok Realty Inc. v. CA, 149 SCRA 174 (April 9, 1983). 30 Acebedo v. Abesamis, 217 SCRA 193 (January 18, 1993) citing Go Ong v. CA, 154 SCRA 276 (September 24, 1987). 31 When there are two or more heirs, the entire estate of the decedent is owned in common by such heirs prior to its partition. Article 1078, Civil Code. J. VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE 452 (1993 edition). 32 Article 493 of the Civil Code, Go Ong v. CA, supra and Philippine National Bank v. CA, 98 SCRA 207 (1980). 33 Article 1370 of the Civil Code provides: "If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. If the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former. (Emphasis added.) 34 In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered. Article 1371, Civil Code. 35 Petitioners filed said motion for approval of the September 1978 sale on November 10, 1981. The heirs of Cari-an submitted their opposition to this motion on January 5, 1982. 36 Exhibit 20-B, Order dated February 28, 1985, penned by Judge Bernardo T. Ponferrada. Exhibit, pp. 71-71. 37 Angeles v. Calasanz, 135 SCRA 332 (March 18, 1985) also citing De Guzman v. Guieb, 48 SCRA 68, where the Court held that said right to rescind was forfeited by the vendors who received delayed payments without protest or qualification. 38 TSN, June 16, 1989, pp. 4-11. 39 Exhibits 2-6. 40 TSN, June 11, 1986; October 8, 1986, pp. 6-33; August 25, 1986, pp. 5-27. 41 Cf. page 6; Exhibit 31. 42 The number and identity of the heirs of Guillermo Nombre are not relevant at this point. 43 TSN, July 24, 1989, pp. 17-18. The Lawphil Project - Arellano Law Foundation