WHEREFORE, in the light of the foregoing, the appeal is hereby GRANTED. The assailed decision is hereby REVERSED and SET ASIDE.
Defendant-appellee Atty. Jose L. Tecson is entitled only to 507 square meters under Lot 2189-A; he is DIRECTED to reconvey, within thirty (30) days from notice, the excess of 457 square meters thereof to herein plaintiff-appellants in order to restore the latter's original area of 508 square meters under Lot 2189-B pursuant to Exhibit "B" (Subdivision Plan Psd-09-06-000110 dated March 25, 1974) and Exhibit "C" (the Agreement of Partition dated April 15, 1974). Failure on his part to reconvey the aforesaid 457 square meters within the period prescribed thereto, the Clerk of Court of RTC, Branch 19, Pagadian City, is hereby directed to cause the transfer of the same in favor of herein plaintiff-appellants pursuant to Section 10, Rule 39 of the Rules of Court.
Defendant-appellees Aurora L. Tecson and Atty. Jose L. Tecson are directed to pay, jointly and severally, plaintiff-appellants the following:a.) P200,000 as moral damages;
b.) P10,000 as exemplary damages; and
c.) P20,000 as attorney's fees.
[I]n undivided shares, Waldetrudes Fausto, married to Leon Nadela; and Agustin Fausto, married to Isabel Pareja, x x x.
1. The Second Partition Agreement was finally registered with the Register of Deeds. As a consequence, OCT No. 734 covering Lot 2189 was cancelled and, in lieu thereof, were issued the following titles:
- Transfer Certificate of Title (TCT) No. T-4,335 covering Lot 2189-A in the name of Atty. Fausto; and
- TCT No. T-4,336 for Lot 2189-B in the name of Waldetrudes.26
2. The sale of Lot 2189-B in favor of Aurora was likewise registered with the Register of Deeds.27 Accordingly, the newly issued TCT No. T-4,336 was immediately cancelled and replaced by TCT No. T-4,33828 in the name of Aurora.
3. Aurora executed a Deed of Absolute Sale,29 conveying Lot 2189-B to her brother, herein petitioner Atty. Jose L. Tecson (Atty. Tecson).
4. On the very same day, the above deed was registered with the Register of Deeds.30
x x x x
4. That the truth of the matter is that, my brother the late Agustin Fausto and I are co-owners of a parcel of land covered by Original Certificate of Title No. 734 of Lot 2189, situated at Gatas District, Pagadian City, containing an area of 1,015 square meters, more or less, in equal share pro indiviso;
5. That sometimes (sic) in 1974 the late Agustin Fausto and myself agreed to terminate our co-ownership and have the area surveyed and the same was approved and designated as PSD-09-06-000110, of which we have executed an agreement of partition on April 15, 1974 apportioning Lot No. 2189-A with an area of 508 square meters in favor of my late brother Agustin Fausto and Lot No. 2189-B with an area of 507 square meters in my favor;
6. That the aforestated documents were not registered in the Office of the Register of Deeds until the death of my brother Agustin Fausto on March 14, 1975, however, the papers or documents involving Lot No. 2189 was kept by me;
7. That due to financial problem especially I am already very old and sickly, I thought of selling my portion which is Lot 2189-B in favor of Jose L. Tecson, however, in the document the vendee appears to be the sister of Jose L. Tecson in the person of Aurora L. Tecson;
8. That I do not know later on how Jose L. Tecson maneuvered to have the parcel of land again surveyed reducing the area of my brother to only 51 square meters, when in truth and in fact the portion of my late brother has an area of 508 square meters;
9. That while it is true that I sold Jose L. Tecson my portion of Lot 2189-B but the area sold is only 507 square meters and there is no intention on my part to sell to Jose L. Tecson more than that area;
10. That several occasion in the past I was made to sign documents by Jose L. Tecson in relation to the portion sold in his favor, trusting him to be closed (sic) to the family, not knowing later on that he maneuvered to change the area of my portion from 507 square meters to 964 square meters encroaching the share of my late brother Atty. Agustin Fausto thereby reducing his area to 51 square meters;
11. That because of the illegal maneuvering which does not reflect to be my true intention in selling my share to Jose L. Tecson, I am informing the Honorable Court that I am joining as party plaintiff in Civil Case No. 2692 in order that the truth will come out and justice will prevail.
WHEREFORE, judgment is hereby rendered dismissing the case, and placing defendants spouses Jose Tecson and Leonila F. Tecson in physical possession of Lot No. 2189-B, with an area of 964 square meters in accordance with the approved subdivision plan on August 12, 1977 of the then Land Registration Commission; and ordering the plaintiffs to pay defendants:
a. Moral damages in the amount of P30,000.00;
b. Attorney's fee in the amount of P15,000.00;
c. And the cost of litigation expenses in the amount of P5,000.00.
Commissioner: What is your relation with Waldetrudes Fausto who is the claimant of Lot No. 2189 (portion) of a parcel of land located at Pagadian City and more particularly bounded as follows: On the North by Lot No. 2190, on the East by Zulueta St., on the South by National Highway and on the West by Gatas Creek with an area of 1015 sq. meters and a house as a permanent improvement.
A: I am the very one sir.
Q: How did you acquire the said land?
A: I purchase (sic) it from Sofia Vda. Claro in the year 1945 but a copy of the document was lost.
x x x x
Q: Who is your co-owner of this land?
A: My co-owner is my brother Atty. Agustin Fausto.
Article 485. x x x.
The portions belonging to the co-owners in the co-ownership shall be presumed equal, unless the contrary is proved.
DIRECT EXAMINATION
ATTY. PERALTA
Q: Now considering that you are, you owned that parcel of land jointly with your younger brother Atty. Agustin Fausto, what is the extent of your ownership?
A: We have co-equal shares sir.
ATTY. PERALTA:
Q: Will you please go over if this is the machine copy of the Deed of partition which was brought to you by Atty. Tecson and requested you to sign the same?
A: Yes sir that is the one.
x x x x
Q: When was that Deed of Partition marked as Exhibit "G" presented to you by Atty. Tecson?
A: Early part of 1977. I was already connected with the Provincial Assessor that was the time I have seen so many Deed of Sale and the area is specified so before I signed I asked Atty. Tecson where is the area and he told me never mind the area it will be surveyed and I did not insist because I trusted him very much.
Q: By the time this was presented to you by Atty. Tecson there was no survey of 2189?
A: There was no survey.
x x x x
COURT:
This document which you said you were present during the signing of your brothers and sisters but you cannot remember whether you were present for the others where did you sign this document?
A: At our house.
COURT:
Who delivered this document to you[r] house?
A: Atty. Tecson.
COURT:
You want to impress this court that when you affixed your signatures in your house Atty. Tecson was present?
A: Yes sir.
COURT:
After signing what was done to this document?
A: We are not aware of that but we just waited for the survey because Atty. Tecson told us that the survey follows later.
COURT:
Who kept this document?
A: My Auntie Waldetrudes Nadela.
COURT:
It is clear now that this document was signed in your house and it was kept by your Auntie?
A: Yes, sir.
x x x x
ATTY. PERALTA:
Q: When Atty. Tecson went your house to request you to sign how did he tell you?
A: He told us just to sign the document and the survey will just follow we just sign the document without the area and he told us that the area will just follow later.
Q: When you signed the document with your mother, brothers and sisters Atty. Tecson brought the documents?
A: Yes, sir.
ATTY. PERALTA:
Q: Why, at the time when - who brought this deed of partition for signature?
A: Jose L. Tecson.
Q: You are referring to one of the defendants, Jose L. Tecson?
A: Yes, sir.
Q: Now, when this was brought by Jose L. Tecson, the defendant Jose L. Tecson, where did he
COURT: For a moment.
Q: You said that defendant Jose L. Tecson brought that deed of partition. Were you there when defendant Jose L. Tecson brought that deed of partition?
A: Yes, your Honor.
Q: Where was it brought?
A: In the house.
COURT: Proceed.
ATTY. PERALTA:
Q: Who were present in your house when this was brought by defendant Jose L. Tecson?
A: Myself, Neneth or Agustin, Romualdo and Jose Fausto. There were four (4) of us when that deed of partition was brought to the house, myself, my sister Agustina, my brothers Romualdo and Jose.
Q: Do you want to convey to the Court that when this was brought to you Francisco Fausto, Victor Fausto and your sister Elizabeth, Maria Fausto were not around when this was brought by Jose L. Tecson for signature in your house?
A: Yes, sir.
x x x x
Q: Why did you sign above the typewritten name of Francisco Fausto knowing that he was not around?
A: Because defendant Jose L. Tecson told me to affix the signature of Francisco Fausto because this deed of partition is just to facilitate the transferring (sic) of the title of the land.
x x x x
Q: Who signed for her, for and behalf of Maria Lilia Fausto?
A: I signed myself.
Q: Why did you sign for Maria Lilia Fausto?
A: Because Jose L. Tecson told me to sign the document in order that the deed of partition could be accomplished.
x x x x
Q: Now, how about the residence certificates appearing after the name of Agustina Fausto, with her own residence certificate 3976584 to have been issued January 6, 1977, Pagadian City, and the Residence Certificate of Jose Fausto which has the same number 3976584 issued on January 6, 1977, Pagadian City, who placed this residence certificate?
A: All of us sir never exhibited our residence certificates. It was the Tecsons who supplied the residence certificate numbers.
ATTY. PERALTA:
Q: Do you remember having signed a Deed of Partition together with some of your children?
A: Yes sir[.] I can remember.
Q: Who brought that Deed of Partition for signature together with some of your children?
A: Governor Tecson.
Q: Were you able to sign the Deed of Partition?
A: I signed that Deed of Partition because according to him "just sign this for purposes of subdividing the property."
x x x x
Q: Do you recall if you have filed guardianship proceeding?
A: I have not remembered having filed a guardianship proceeding.
Q: Have you heard that there was guardianship proceeding?
A: All I can remember about that guardianship proceeding was that when Gov. Tecson let me sign a guardianship because some of my children were not around.
Q: Do you want to convey to this court that personally you have not filed guardianship proceeding but it was Governor Tecson who let you sign some documents regarding guardianship?
A: It was Governor Tecson who explained to me to sign that guardianship proceeding because according to him it will facilitate and I thought that guardianship was only for purposes of being guardian to my children as a mother.
Indeed, the lack of a plausible explanation why a co-owner would gratuitously cede a very substantial portion of his rightful share to another co-owner in partition renders the foregoing testimonies more credible as against the plain general denial of Atty. Tecson. On this point, We find no reversible error on the part of the Court of Appeals.
The established facts have several legal consequences:
First. The Second Plan, having been prepared without the knowledge and consent of any of the co-owners of Lot 2189, have no binding effect on them.
Second. The Second Partition Agreement is null and void as an absolute simulation,80 albeit induced by a third party. The fraud perpetrated by Atty. Tecson did more than to vitiate the consent of Waldetrudes and the respondents. It must be emphasized that Waldetrudes and the respondents never had any intention of entering into a new partition distinct from the First Partition Agreement. The established facts reveal that Waldetrudes and the respondents assented to the Second Partition Agreement because Atty. Tecson told them that the instrument was merely required to expedite the sale of Waldetrudes' share.81
In other words, the deceit employed by Atty. Tecson goes into the very nature of the Second Partition Agreement and not merely to its object or principal condition. Evidently, there is an absence of a genuine intent on the part of the co-owners to be bound under a new partition proposing a new division of Lot 2189. The apparent consent of Waldetrudes and the respondents to the Second Partition Agreement is, in reality, totally wanting. For that reason, the Second Partition Agreement is null and void.
Third. The Second Partition Agreement being a complete nullity, it cannot be ratified either by the lapse of time or by its approval by the guardianship court.82
Fourth. The First Plan and the First Partition Agreement remain as the valid and binding division of Lot 2189. Hence, pursuant to the First Partition Agreement, Waldetrudes is the absolute owner of Lot 2189-A with an area of only five hundred seven (507) square meters. Atty. Fausto, on the other hand, has dominion over Lot 2189-B with an area of five hundred eight (508) square meters.
Fifth. Inevitably, Waldetrudes can only sell her lawful share of five hundred seven (507) square meters. The sales in favor of Aurora and, subsequently, Atty. Tecson, are thereby null and void insofar as it exceeded the 507 square meter share of Waldetrudes in Lot 2189. Nemo dat quod non habet.83
Atty. Tecson is not an innocent purchaser for value
The remaining bar to the recovery by the respondents of the excess area held by Atty. Tecson is the principle of an innocent purchaser for value of land under the Torrens System of Registration.
The petitioners claim that they are bona fide purchasers of the entire nine hundred sixty-four (964) square meters of land covered by Lot 2189-B--with Aurora merely relying on the strength of TCT No. T-4,336 in the name of Waldetrudes, while Atty. Tecson placing confidence in TCT No. T-4,338 in the name of Aurora. Both TCT Nos. T-4,336 and T-4,338 define the area of Lot 2189-B as nine hundred sixty-four (964) square meters.84 The petitioners allege that at the time they made their respective purchase, they did not know of the existing partition of Lot 2189 per the First Plan and the First Partition Agreement.85
We disagree. The proven facts indicate that Atty. Tecson knew or, at the very least, should have known that Atty. Fausto and Waldetrudes were co-owners in equal share of Lot 2189. We must be reminded of the following circumstances:
1. Atty. Tecson was a long-time friend and neighbor of the Faustos.86 Atty. Tecson himself testified that he considered Atty. Fausto as a good friend and even admitted that he would sometimes visit the latter in his house to play mahjong.87 By this, Atty. Tecson knew that Atty. Fausto has an actual interest in Lot 2189.
2. Atty. Tecson was the one who presented the Second Partition Agreement to Waldetrudes and the respondents;88
3. Waldetrudes and the respondents were not involved in the preparation of the Second Partition Agreement and, at the time they signed the said agreement, had no knowledge of the existence of the Second Plan;89 and
4. The Second Partition Agreement failed to state the specific areas allotted for each component of Lot 2189 and made no mention of the division proposed by the Second Plan.90
Being the one behind the execution of the Second Partition Agreement, there is no doubt that Atty. Tecson knew that Lot 2189 was owned in common by Waldetrudes and Atty. Fausto. This, taken together with the instrument's unusual silence as to the definite area allotted for each component lot and the Second Plan, reveals a deliberate attempt on the part of Atty. Tecson to conceal from Waldetrudes and the respondents the unequal division of Lot 2189.
The necessity to conceal the disproportionate division of Lot 2189 can only be explained by Atty. Tecson's prior knowledge that such a partition is inherently defective for being contrary to the actual sharing between Waldetrudes and Atty. Fausto. Atty. Tecson is clearly in bad faith.
Verily, Atty. Tecson cannot be considered as an innocent purchaser of the excess area of Lot 2189-B. Based on the facts and circumstances prevailing in this case, Atty. Tecson may be charged with actual notice of the defect plaguing the Second Partition Agreement. The respondents may, therefore, recover.
WHEREFORE, the petition is hereby DENIED. Accordingly, the appealed Court of Appeals decision in CA-G.R. CV No. 70303 dated 12 December 2006 is hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Corona, C.J., (Chairperson), Velasco, Jr., Leonardo-De Castro, Peralta,* and Perez, JJ.
Endnotes:
* Per Special Order No. 994, Associate Justice Diosdado M. Peralta is designated as Additional Member of the First Division in place of Associate Justice Mariano C. Del Castillo who is on official leave.
1 Via a Petition for Review on Certiorari under Rule 45 of the Rules of Court.
2 Penned by Associate Justice Rodrigo F. Lim, Jr. with Associate Justices Teresita Dy-Liacco Flores and Mario V. Lopez, concurring. Rollo, pp. 109-172.
3 Id. at 93-94.
4 Decision of the RTC in Civil Case No. 2692. The decision was promulgated on 8 November 2000 and was penned by Presiding Judge Franklyn A. Villegas. Id. at 95-108.
5 Id. at 170-171.
6 Id. at 102.
7 Id. at 111.
8 Index of Exhibits, p. 1.
9 Id. at 3.
10 Id. at 4.
11 Id.
12 Respondent Isabel Vda. De Fausto.
13 Respondents Minerva, Maria, Francisco, Agustina, Jose, Romualdo, Elizabeth and Victor, all surnamed Fausto.
14 Index of Exhibits, p. 35
15 Id.
16 Id. at 25.
17 Id.
18 Id.
19 Id.
20 Id. at 10-11.
21 Thru an instrument entitled "Extrajudicial Settlement and Partition of Estate with Sale." Id. at 16.
22 Jose was then only 20 years old, Romualdo only 19 years old, Elizabeth only 16 years old, and Victor only 14 years old. TSN dated 13 July 1978, p. 2. Index of Exhibits, p. 47. Id. at 47.
23 Docketed as SPL Case No. 1697 and assigned to the Court of First Instance, Branch III of Pagadian City.
24 Via an Order dated 28 July 1978. Index of Exhibits, pp. 20-24.
25 Via an Order dated 17 January 1980. Id. at 28-29.
26 Rollo, p. 117.
27 Id.
28 Index of Exhibits, p. 65.
29 Id. at 34.
30 Rollo, p. 117.
31 Index of Exhibits, p. 66.
32 Records, p. 1-3.
33 Id.
34 Memorandum of the Respondents. Rollo pp. 462-492.
35 Id. at 480-486.
36 Id.
37 Id.
38 Id.
39 Id.
40 Id.
41 Id.
42 Id.
43 Id.
44 Id.
45 Id.
46 Id.
47 Id.
48 Id.
49 Index of Exhibits, pp. 5-6.
50 See TSN dated 18 August 1992, p. 9.
51 Id.
52 TSN dated 22 September 1992.
53 TSN dated 3 November 1992.
54 TSN dated 6 November 1992.
55 Rollo, p. 108.
56 Id. at 107.
57 Id. at 108.
58 Id. at 170-171.
59 Memorandum of the Petitioners. Id. at 360-449.
60 Id.
61 Id.
62 Id.
63 Petition for Review on Certiorari. Id. at 4-89.
64 Id.
65 Id.
66 Index of Exhibits, p. 38.
67 Rollo, pp. 4-89.
68 Id.
69 Id.
70 Id.
71 Heirs of Leopoldo Vencilao, Sr. v. Court of Appeals, G.R. No. 123713, 1 April 1998, 288 SCRA 574, 581-582.
72 Index of Exhibits, pp. 36-37.
73 Republic Act No. 386.
74 TSN dated 18 August 1992, p. 13.
75 Rollo, pp. 148-152.
76 Id.
77 TSN dated 22 September 1992, pp. 27, 29 and pp. 31-33.
78 TSN dated 3 November 1992, pp. 5-8, 10 and 12.
79 TSN dated 6 November 1992, pp. 13-14 and pp. 16-17.
80 Under Article 1346 of the Civil Code, which provides:
Article 1346. An absolutely simulated or fictitious contract is void. A relative simulation, when it does not prejudice a third person and is not intended for any purpose contrary to law, morals, good customs, public order or public policy binds the parties to their real agreement. (Emphasis supplied.)
81 TSN dated 3 November 1992, p. 8.
82 Rollo, p. 137.
83 Literally, "one cannot give what one does not have." See Art. 1459, New Civil Code.
84 Rollo, pp. 391-404.
85 Id.
86 TSN dated 12 April 1993, pp. 15-17.
87 Id.
88 TSN dated 22 September 1992, pp. 27, 29, and pp. 31-33.
89 Id.
90 Id.