736 SUPREME COURT REPORTS ANNOTATED

Mariano vs. Court of Appeals

*
G.R. No. 101522. May 28, 1993.

LEONARDO MARIANO, AVELINA TIGUE, LAZARO

MARIANO, MERCEDES SAN PEDRO, DIONISIA M. AQUINO,
and JOSE N.T. AQUINO, petitioners, vs. HON. COURT OF
APPEALS, (Sixteenth Division), GRACE GOSIENGFIAO, assisted
by her husband CHARLIE GUILLEN; EMMA GOSIENGFIAO,
assisted by her husband GERMAN GALCOS; ESTER
GOSIENGFIAO, assisted by her husband AMADOR BITONA;
FRANCISCO GOSIENGFIAO, JR., NORMA GOSIENGFIAO, and
PINKY ROSE GUENO, respondents.

Civil Law; Property; Co-ownership; Sale of property owned in

common; Right of redemption; Notice required to be given to the co-owners
of the sale to a stranger must be in writing.—Respondents have not lost
their right to redeem, for in the absence of a written notification of the sale
by the vendors, the 30-day period has not even begun to run.

Same; Same; Same; Same; Same; Redemption by a co-owner inures to

the benefit of all the other co-owners.—“Admittedly, as the property in
question was mortgaged by the decedent, a co-ownership existed among the
heirs during the period given by law to redeem the foreclosed property.
Redemption of the whole property by a co-owner does not vest in him sole
ownership over said property but will inure to the benefit of all co-owners.
In other words, it will not put an end to the existing state of co-ownership.
Redemption is not a mode of terminating a co-ownership.

Same; Same; Same; Same; Same; Consignation; It is not necessary

when tender of payment was made to enforce or exercise a right and not to
discharge an obligation.—It has been previously held that consignation is
not required to preserve the right of repurchase as a mere tender of payment
is enough if made on time as a basis for an action to compel the vendee a
retro to resell the property; no subsequent consignation was necessary to
entitle private respondents to such reconveyance.

PETITION for review of the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

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* SECOND DIVISION.

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VOL. 222, MAY 28, 1993 737

Mariano vs. Court of Appeals

The Barristers Law Office for petitioners.

Simeon T. Agustin for private respondents.

NOCON, J.:

Before Us is a petition for review of the decision dated May 13,

1991 of the Court of Appeals in CA-G.R. CV No. 13122, entitled
Grace Gosiengfiao,
1
et al. v. Leonardo Mariano v. Amparo2
Gosiengfiao raising
3
as issue the distinction between Article 1088
and Article 1620 of the Civil Code.
The Court of Appeals summarized the facts as follows:

“It appears on record that the decedent Francisco Gosiengfiao is the

registered owner of a residential lot located at Ugac Sur, Tuguegarao,
Cagayan, particularly described as follows, to wit:

‘The eastern portion of Lot 1351, Tuguegarao Cadastre, and after its segregation
now designated as Lot 1351-A, Plan PSD-67391, with an area of 1,346 square
meters.’

and covered by Transfer Certificate of Title No. T-2416 recorded in the

Register of Deeds of Cagayan.
“The lot in question was mortgaged by the decedent to the Rural Bank of
Tuguegarao (designated as Mortgagee bank, for brevity) on several
occasions before the last, being on March 9, 1956 and January 29, 1958.
“On August 15, 1958, Francisco Gosiengfiao died intestate sur-

_______________

1 Justice Justo P. Torres, Jr., ponente, Justices Ricardo J. Francisco and Consuelo Ynares-
Santiago, concurring.
2 Article 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.
3 Article 1620. A co-owner of a thing may exercise the right of redemption in case the
shares of all the other co-owners or of any of them, are sold to a third person. If the price of the
alienation is grossly excessive, the redemptioner shall pay only a reasonable one.
Should two or more co-owners desire to exercise the right of redemption, they may only do
so in proportion to the share they may respectively have in the thing owned in common.
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738 SUPREME COURT REPORTS ANNOTATED

Mariano vs. Court of Appeals

vived by his heirs, namely: Third-Party Defendants: wife Antonia and

Children Amparo, Carlos, Severino and herein plaintiffs-appellants Grace,
Emma, Ester, Francisco, Jr., Norma, Lina (represented by daughter Pinky
Rose), and Jacinto.
“The loan being unpaid, the lot in dispute was foreclosed by the
mortgagee bank and in the foreclosure sale held on December 27, 1963, the
same was awarded to the mortgagee bank as the highest bidder.
“On February 7, 1964, third-party defendant Amparo Gosiengfiao-Ibarra
redeemed the property by paying the amount of P1,347.89 and the balance
of P423.35 was paid on December 28, 1964 to the mortgagee bank.
“On September 10, 1965, Antonia Gosiengfiao on her behalf and that of
her minor children Emma, Lina, Norma together with Carlos and Severino
executed a ‘Deed of Assignment of the Right of Redemption’ in favor of
Amparo G. Ibarra appearing in the notarial register of Pedro (Laggui) as
Doc. No. 257, Page No. 6, Book No. 8, Series of 1965.
“On August 15, 1966, Amparo Gosiengfiao sold the entire property to
defendant Leonardo Mariano who subsequently established residence on the
lot subject of this controversy. It appears in the Deed of Sale dated August
15, 1966 that Amparo, Antonia, Carlos and Severino were signatories
thereto.
“Sometime in 1982, plaintiff-appellant Grace Gosiengfiao learned of the
sale of said property by the third-party defendants. She went to the
Barangay Captain and asked for a confrontation with defendants Leonardo
and Avelina Mariano to present her claim to the said property.
“On November 27, 1982, no settlement having been reached by the
parties, the Barangay Captain issued a certificate to file action.
“On December 8, 1982, defendant Leonardo Mariano sold the same
property to his children Lazaro F. Mariano and Dionicia M. Aquino as
evidenced by a Deed of Sale notarized by Hilarion L. Aquino as Doc. No.
143, Page No. 19, Book No. V, Series of 1982.
“On December 21, 1982, plaintiffs Grace Gosiengfiao, et al. filed a
complaint for ‘recovery of possession and legal redemption with damages’
against defendants Leonardo and Avelina Mariano. Plaintiffs alleged in their
complaint that as co-heirs and co-owners of the lot in question, they have
the right to recover their respective shares in the said property as they did
not sell the same, and the right of redemption with regard to the shares of
other co-owners sold to the defendants.
“Defendants in their answer alleged that the plaintiffs has (sic) no cause
of action against them as the money used to redeem the lot in question was
solely from the personal funds of third-party defendant Amparo
Gosiengfiao-Ibarra, who consequently became the sole owner of the said
property and thus validly sold the entire property to the
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VOL. 222, MAY 28, 1993 739

Mariano vs. Court of Appeals

defendants, and the fact that defendants had already sold the said property to
their children, Lazaro Mariano and Dionicia M. Aquino. Defendants further
contend that even granting that the plaintiffs are co-owners with the third-
party defendants, their right of redemption had already been barred by the
Statute 4of Limitations under Article 1144 of the Civil Code, if not by
laches.”

After trial on the merits, the Regional Trial Court of Cagayan,

Branch I, rendered a decision dated September 16, 1986, dismissing
the complaint and stating that respondents have no right of
ownership or possession over the lot in question. The trial court
further said that when the subject property was foreclosed and sold
at public auction, the rights of the heirs were reduced to a mere right
of redemption. And when Amparo G. Ibarra redeemed the lot from
the Rural Bank on her own behalf and with her own money she
became the sole owner of the property. Respondents’ having failed
to redeem the property from the bank or from Amparo5
G. Ibarra, lost
whatever rights they might have on the property.
The Court of Appeals in its questioned decision reversed and set
aside the ruling of the trial court and declared herein respondents as
co-owners of the property in the question. The Court of Appeals
said:

“The whole controversy in the case at bar revolves on the question of

‘whether or not a co-owner who redeems the whole property with her own
personal funds becomes the sole owner of said property and terminates the
existing state of co-ownership.’
“Admittedly, as the property in question was mortgaged by the decedent,
a co-ownership existed among the heirs during the period given by law to
redeem the foreclosed property. Redemption of the whole property by a co-
owner does not vest in him sole ownership over said property but will inure
to the benefit of all co-owners. In other words, it will not put an end to the
existing state of co-ownership. Redemption is not a mode of terminating a
co-ownership.
x x x
“In the case at bar, it is undisputed and supported by records, that third-
party defendant Amparo G. Ibarra redeemed the property in

_______________

4 Decision, pp. 2-4; Rollo, pp. 71-73.

5 Rollo, pp. 67-68.

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740 SUPREME COURT REPORTS ANNOTATED
Mariano vs. Court of Appeals

dispute within the one year redemption period. Her redemption of the
property, even granting that the money used was from her own personal
funds did not make her the exclusive owner of the mortgaged property
owned in common but inured to the benefit of all co-owners. It would have
been otherwise if third-party defendant Amparo G. Ibarra purchased the said
property from the mortgagee bank (highest bidder in the foreclosure sale)
after the redemption period had already expired and after the mortgagee
bank had consolidated it title
6
in which case there would no longer be any
co-ownership to speak of.”

The decision of the Court of Appeals is supported by a long line of

case law which states that a redemption by a co-owner within the
period prescribed
7
by law inures to the benefit of all the other co-
owners.
The main argument of petitioners in the case at bar is that the
Court of Appeals incorrectly applied Article 1620 of the Civil Code,
instead of Article 1088 of the same code which governs legal
redemption by co-heirs since the lot in question, which forms part of
the intestate estate of the late Francisco Gosiengfiao, was never the
subject of partition or distribution among the heirs, thus, private
respondents and third-party defendants had not ceased to be co-
heirs.
On that premise, petitioners further contend that the right of legal
redemption was not timely exercised by the private respondents,
since Article 1088 prescribes that the same must be done within the
period of one month from the time they were notified in writing of
the sale by the vendor.
According to Tolentino, the fine distinction between Article 1088
and Article 1620 is that when the sale consists of an interest in some
particular property or properties of the inheritance, the right of
redemption that arises in favor of the other co-heirs is that
recognized in Article 1620. On the other hand, if the sale is the
hereditary right itself, fully or in part, in the abstract sense, without
specifying
8
any particular object, the right recognized in Article 1088
exists.

_______________

6 Decision, pp. 5-6; Rollo, pp. 74-75.

7 Annie Tan v. C.A., G.R. No. 79899, 172 SCRA 660 (1989); Adille v. C.A., G.R.
No. 44546, 157 SCRA 455 (1988); De Guzman v. C.A., G.R. No. 47378, 148 SCRA
75 (1987).
8 Tolentino, Arturo M., Commentaries and Jurisprudence on the

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 VOL. 222, MAY 28, 1993 741
Mariano vs. Court of Appeals

Petitioners allege that upon the facts and circumstances of the

present case, respondents failed to exercise their right of legal
redemption during the period provided by law, citing as9 authority the
case of Conejero, et al., v. Court of Appeals, et al. wherein the
Court adopted the principle that the giving of a copy of a deed is
equivalent to the notice as required by law in legal redemption.
We do not dispute the principle laid down in the Conejero case.
However, the facts in the said case are not four square with the facts
of the present case. In Conejero, redemptioner Enrique Conejero
was shown and given a copy of the deed of sale of the subject
property. The Court in that case stated that the furnishing of a copy
of the deed
10
was equivalent to the giving of a written notice required
by law.
The records of the present petition, however, show no written
notice of the sale being given whatsoever to private respondents.
Although, petitioners allege that sometime on October 31, 1982
private respondent, Grace Gosiengfiao was given a copy of the
questioned deed of sale and shown a copy of the document at the
Office of the Barangay Captain sometime November 18, 1982, this
was not supported by the evidence presented. On the contrary,
respondent, Grace Gosiengfiao, in her testimony, declared as
follows:

Q When you went back to the residence of Atty. Pedro Laggui were
you able to see him?
A Yes, I did.
Q When you saw him, what did you tell?
A I asked him about the Deed of Sale which Mrs. Aquino had told
me and he also showed me a Deed of Sale. I went over the Deed
of Sale and I asked Atty. Laggui about this and he mentioned
here about the names of the legal heirs. I asked why my name is
not included and I was never informed in writing because I
would like to claim and he told me to better consult my own
attorney.
A And did you go?

_______________

Civil Code of the Philippines, Vol. III, pp. 607-608, citing Manresa at p. 777.
9 16 SCRA 775 (1966).
10 Id., pp. 779-780.

742
742 SUPREME COURT REPORTS ANNOTATED
Mariano vs. Court of Appeals

A Yes, I did.
Q What kind of copy or document is that?
A It is a deed of sale signed by my mother, sister Amparo and my
brothers.
Q If shown to you the copy of the Deed of Sale will you be able to
identify it?
A Yes, sir.11

Thereafter, Grace Gosiengfiao explicitly stated that she was never

given a copy of the said Deed of Sale.

Q Where did Don Mariano, Dr. Mariano and you see each other?
A In the house of Brgy. Captain Antonio Bassig.
Q What transpired in the house of the Brgy. Captain when you saw
each other there?
A Brgy. Captain Bassig informed my intention of claiming the lot
and I also informed him about the Deed of Sale that was not
signed by me since it is mine it is already sold and I was never
informed in writing about it. I am a legal heir and I have also the
right to claim.
Q And what was the reply of Don Mariano and Dr. Mariano to the
information given to them by Brgy. Captain Bassig regarding
your claim?
A He insisted that the lot is already his because of the Deed of Sale.
I asked for the exact copy so that I could show12
to him that I did
not sign and he said he does not have a copy.

The above testimony was never refuted by Dr. Mariano who was
present before Brgy. Captain Bassig.
The requirement of a written notice13 has long been settled as early
as in the case of Castillo v. Samonte, where this Court quoted the
ruling in Hernaez v. Hernaez, 32 Phil., 214, thus:

“ ‘Both the letter and spirit of the New Civil Code argue against any attempt
to widen the scope of the notice specified in Article 1088 by including
therein any other kind of notice, such as verbal or by registration. If the
intention of the law had been to include verbal notice or any

_______________

11 TSN, October 9, 1984, pp. 11-12.

12 Id., at pp. 14-15.
13 106 Phil. 1023 (1960).
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VOL. 222, MAY 28, 1993 743

Mariano vs. Court of Appeals

other means of information as sufficient to give the effect of this notice, then
there would have been no necessity or reasons to specify in Article 1088 of
the New Civil Code that the said notice be made in writing
14
for, under the old
law, a verbal notice or information was sufficient’ ”

Moreover, petitioners themselves adopted in their argument

respondents’ allegation in their complaint that sometime on October,
1982 they sought the redemption of the property from spouses
Leonardo Mariano and Avelina Tigue, by tendering15 the repurchase
money of P12,000.00, which the spouses rejected. Consequently,
private respondents exercised their right of redemption at the first
opportunity they have by tendering the repurchase price to
petitioners. The complaint they filed before the Barangay Captain
and then to the Regional Trial Court was necessary to assert their
rights. As we learned in the case of Castillo, supra:

“It would seem clear from the above that the reimbursement to the
purchaser within the period of one month from the notice in writing is a
requisite or condition precedent to the exercise of the right of legal
redemption; the bringing of an action in court is the remedy to enforce that
right in case the purchaser refuses the redemption. The first must be done
within the month-period; the16second within the prescriptive period provided
in the Statute of Limitation.”

The ruling in Castillo v. Samonte, supra, was reiterated in the case of

Garcia v. Calaliman, where We also discussed the reason for the
requirement of the written notice. We said:

“Consistent with aforesaid ruling, in the interpretation of a related provision

(Article 1623 of the New Civil Code) this Court has stressed that written
notice is indispensable, actual knowledge of the sale acquired in some other
manners by the redemptioner, notwithstanding. He or she is still entitled to
written notice, as exacted by the code to remove all uncertainty as to the
sale, its terms and its validity, and to quiet any doubt that the alienation is
not definitive. The law not having provided for any alternative, the method
of notifications re-

_______________

14 Id., at 1028.
15 Amended Complaint; par. 15-16, Rollo, p. 34.
16 Ibid, at 1029.

744
744 SUPREME COURT REPORTS ANNOTATED
Mariano vs. Court of Appeals

mains exclusive, though the Code does not prescribe any particular form of
written notice nor any distinctive method for written notification of
redemption (Conejero et al. v. Court of Appeals et al., 16 SCRA 775 [1966];
Etcuban v. Court of Appeals, 148 SCRA
17
507 [1987]; Cabrera v. Villanueva,
G.R. No. 75069, April 15, 1988).” (Italics, ours)

We likewise do not find merit in petitioners’ position that private

respondents could not have validly effected redemption due to their
failure to consign in court the full redemption price after the tender
thereof was rejected by the petitioners. Consignation is not
necessary, because the tender of payment was not made to discharge
an obligation, but to enforce or exercise a right. It has been
previously held that consignation is not required to preserve the right
of repurchase as a mere tender of payment is enough if made on
time as a basis for an action to compel the vendee a retro to resell
the property; no subsequent consignation18 was necessary to entitle
private respondents to such reconveyance.
Premises considered, respondents have not lost their right to
redeem, for in the absence of a written notification of the sale by the
vendors, the 30-day period has not even begun to run.
WHEREFORE, the decision of the Court of Appeals is hereby
AFFIRMED. Cost against petitioners.
SO ORDERED.

Narvasa (C.J., Chairman), Padilla and Regalado, JJ.,

concur.

Decision affirmed.

Note.—Reconveyance being real action over immovable

prescribes after thirty (30) years (Lindain vs. Court of Appeals, 212
SCRA 425).

——o0o——

_______________

17 Garcia v. Calaliman, G.R. No. 26855, 172 SCRA 201 (1989).

18 Francisco v. Bautista, G.R. No. 44167, 192 SCRA 388 (1991).

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