FIRST DIVISION
[ G.R. No. 215038. October 17, 2016 ]
NORMA C. MAGSANO, ISIDRO C. MAGSANO, RICARDO C. MAGSANO, ROQUE C. MAGSANO, JR., NIDA M. CAGUIAT, PERLITA MAGSANO, AND SALVADOR C. MAGSANO, PETITIONERS VS. PANGASINAN SAVINGS AND LOAN BANK, INC. AND SPOUSES EDDIE V. MANUEL AND MILAGROS C. BALLESTEROS, SUBSTITUTED BY HER HEIRS: GEMMA C. MANUELPEREZ, ANGELO JOHNDREW MANUEL, AND RESSY C. MANUEL, RESPONDENTS.
CONCURRING OPINION
CAGUIOA, J.:
I concur in the result.
In sustaining the validity of the mortgage on the subject conjugal property insofar as the aliquot or pro-indiviso share or interest of Susana is concerned, the ponencia relies on Article 493 of the Civil Code. I believe this is inaccurate. Article 493 provides:
ART. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or mortgage, 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.
This article recognizes the absolute ownership by a co-owner of his aliquot or undivided share and his right to alienate, assign or mortgage and even substitute another person in its enjoyment. However, the co-owner's right to alienate is limited to only his undivided share and does not in any way affect any definite portion of the thing owned in common since before partition a co-owner will not know what portion of the property will actually belong to him.1aшphi11
The situation in this case involved Susana, the surviving spouse, executing a mortgage over the entire subject conjugal property without the consent of the other heirs of Roque, Susana's deceased husband. This is a situation different from Article 493 because, clearly, Susana did not mortgage only her pro-indiviso share therein, but the entire property. That being the case, the ruling of the Supreme Court in Estoque v. Pajimula,2 through Justice J. B. L. Reyes, observed:
x x x The deed of sale to Estoque x x x clearly specifies the object sold as the southeastern third portion of Lot 802 of the Rosario Cadastre, with an area of 840 square meters, more or less. Granting that the seller, Crispina Perez Vda. de Aquitania could not have sold this particular portion of the lot owned in common by her and her two brothers, Lorenzo and Ricardo Perez, by no means does it follow that she intended to sell to appellant Estoque her 1/3 undivided interest in the lot aforementioned. There is nothing in the deed of sale to justify such inference. That the seller could have validly sold her one-third undivided interest to appellant is no proof that she did choose to sell the same. Ab posse ad actu non valet illatio.
In Estoque, a specific portion of a co-owned property was sold, albeit a specific portion of a land that was owned in common. I believe that this is no different from the situation of Susana who sold the entire co-owned property, that is, a specific parcel of land when she only had an undivided interest therein. Stated differently, the rationale for not recognizing the effectivity of the disposition over a specific portion equally applies to the disposition by a co-owner of the entire co-owned or undivided property that is more than the undivided share rightfully pertaining to the disposing co-owner.
Estoque characterizes the contract entered into by the disposing coowner as "ineffective, for lack of power in the vendor to sell the specific portion described in the deed."3 This characterization makes room for a subsequent ratification of the contract by the other co-owners or validation in case the disposing co-owner acquires subsequently the undivided interests of the other co-owners. Such subsequent ratification or acquisition will validate and make the contract fully effective.
Estoque was a decision rendered by this Court en banc, and has not been expressly overturned4; hence, it remains a sound case law, which I believe should be the controlling jurisprudence.1aшphi1
Even if Article 493 is inapplicable in this case, I concur in the conclusion that the validity of the mortgage executed by Susana binds her undivided interest in the subject conjugal property based on the principle of estoppel. Under Article 1431 of the Civil Code, "[t]hrough estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon."
Footnotes
1 Ramirez v. Bautista, 14 Phil. 528 (1909).
2 133 Phil. 55, 58 (1968).
3 Estoque v. Pajimula, id. at 58-59.
4 1987 CONSTITUTION, Article VIII, Section 4(3) states that "Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc."
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