ORIGINAL COPY FOR

COURT OF APPEALS

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Mindanao Station
Cagayan de Oro City

LYDIA SERRANO AGUANA,

Plaintiff-appellant,

CA-G.R.CV-NO. 04302
-versus-
For: Annulment Documents
and Titles

HEIRS OF ENRIQUE SERRANO,

namely: ROSELA B. SERRANO,
TERESITA SERRANO, ET AL.,
Defendants-appellees.
x------------------------------------x

APPELLANT’S BRIEF

APPELLANT, through counsel and unto this Honorable

Court, most respectfully files this brief in compliance with the
Order received on June 8, 2016 giving appellant forty-five (45)
days from receipt or until July 23, 2016 (Saturday) to do so,
by averring that:

SUBJECT INDEX

I. Assignment of Errors - - - - p. 1
II. Statement of the Case & Material Dates - - - pp. 2-4
III. Statement of Facts - - - - - pp. 4 -10
IV. Issues - - - - - p. 11
V. Arguments - - - - pp. 11-34
VI. Prayer - - - - p. 34

Digest of the arguments:

A. On the first issue: Appellant is entitled to the remedies

prayed for because she was able to establish her
heirship and right to the estate of Tomas Serrano. This
1
 fact was already established in the lower court and
remained undisputed or undisturbed. Her claims were
duly supported by documents on the record.

B. On the second issue: The lower court erred in holding

that prescription had set in already. Appellant learned of
the fraud for the first time only on November 14, 2012.
The remedies of partition and subrogation have not yet
prescribed as well because the requirements of the law
are not yet met. An action to annul a void document or
contract does not prescribe.

C. On the third issue: The lower court erred in

appreciating the alleged Deed of Sale because it was not
presented or offered in court. Appellant has denied its
execution as well.

List of Cases and Laws cited:

Case/Law Page
Intestate Estate of Petra V. Rosales, et. al. vs.
Fortunato Rosales, et.al., G.R. No. L-40789, February
27, 1987.
13
Article 970, NCC
Article 971, NCC
Article 979, Civil Code
Article 982, Civil Code

Article 982, Civil Code 14

Sta. Ana vs. Lourdes Panlasigue, G.R. No. 152652,

August 31, 2006.
17
Verdad vs. Court of Appeals, G.R. No. 109972. April
29, 1996.

Vda. De Cangco vs. Escubido, 54 O.G. 1401 18

2
Napoleon D. Neri, et al. vs. Heirs of Uy, et al., G.R. No. 19
194366, October 10, 2012.
Tiburcio Samonte vs. Court of Appeals, et al., G.R. No.
104223, July 12, 2001. 23

Carantes vs. Court of Appeals, 76 SCRA 514,

Rustico Adille vs. Court of Appeals, et al., G.R. No. 25
44546, January 29, 1988
Carolina Vda. De Figuracion et al. vs. Emilia Figuracion- 29
Gerilla, GR No. 151334 February 13, 2013,
Sta. Ana vs. Lourdes Panlasigue, G.R. No. 152652, 32
August 31, 2006.

Westmont Investment Corporation vs. Amos P. Franca, 34

Jr. et. al GR No. 194128, December 7, 2011.

Heirs of Pedro Pasig vs. Parocha, GR No. 155483, April

27, 2007

ASSIGNMENT OF ERRORS

The court a quo erred in ruling that appellant’s

right to enforce and claim her share in the
inheritance has been barred by inaction or
prescription.

The court a quo erred in giving weight to the

Deed of Sale dated October 28, 1968 which was
not presented or offered in court in view of
defendants’ default.

STATEMENT OF THE CASE

AND MATERIAL DATES

This case was filed on November 21, 2012 against

appellees for the annulment of documents, titles, partition,
reconveyance and subrogation/redemption. On the same date,
appellant also filed an Ex Parte Urgent Motion to be allowed to

3
consign or deposit the redemption amount of P40,000.00
before the Office of the Clerk of Court to comply with the
requirement on legal tender of the redemption price. The court
a quo denied the motion in its Order dated December 21, 2012
since appellant’s right had yet to be determined.

Meanwhile, appellant was allowed to serve

summons on appellee Ederlina Catito by publication in a
newspaper of general circulation per Order dated April 5, 2013.

The court a quo declared appellees in default on

June 28, 2013 for their failure to appear during the pre-trial
hearing despite notice and failure to file their pre-trial brief on
time. Their motion for reconsideration was denied for lack of
merit on September 27, 2013.

Ex parte hearing followed. After all the witnesses

had testified, appellant formally offered her documentary
evidences. Thereafter, the case was submitted for decision. On
January 12, 2015, plaintiff-appellant filed her Memorandum.

The court a quo, in its Decision dated September 28,

2015, dismissed the complaint on the ground of prescription.
The dispositive portion partly states:

“Plaintiff has at her disposal several remedies to get

her share in the inheritance left by her grandfather.
For one reason or another, she however failed to
avail of these at the opportune time….”

“WHEREFORE, for reasons cited and explained

above, the complaint is DISMISSED.”

4
 The Decision was received on October 7, 2015. Appellant
filed her Motion for Reconsideration only with respect to the
ruling of the lower court that the action had prescribed already
since heirship was duly established. The motion was denied.
In its Order dated January 14, 2016, the court a quo ruled
that:

“All told, reconsideration is not warranted pursuant

to the authorities cited due to plaintiff’s failure to
present preponderant evidence showing that fraud
attended the execution of the Affidavit of Self-
Adjudication. And assuming that its execution was
fraudulent, the circumstances obtaining failed to
quell lingering doubts that she knew of this only on
14 November 2012.

WHEREFORE, all things considered and addressed,

plaintiff’s Motion for Reconsideration dated October
21, 2015 is DENIED.”

Appellant received the Order denying the Motion for

Reconsideration on January 21, 2016. The latter filed a Notice
of Appeal on February 3, 2016 and paid all the filing and other
fees.

On June 8, 2016, appellant received a copy of the

order of this Honorable Court requiring the latter to file her
Appellant’s Brief within 45 days from receipt. Hence, appellant
has until July 23, 2016 to comply. This brief is therefore
timely filed.

STATEMENT OF FACTS

1. Appellant’s grandfather, Tomas Serrano, bore two

children with his first wife, Sufia Serrano, namely: Fernando
Serrano (Fernando for brevity) and Mercedes Serrano

5
(Mercedes for brevity). Fernando was born on October 1, 1904
while Mercedes was born on January 30, 1903. Their
respective Certificate of Live Birth could not be found and this
fact is attested to by the National Statistics Office Certifications
marked as Exhibit “S” and Exhibit “V” respectively. The best
secondary evidence available to prove their birth and the fact
that they were the legitimate children of Tomas and Sufia
Serrano is their Certificate of Baptism issued by the San Pedro
Cathedral Parish, Davao City marked as Exhibit “C” and Exhibit
“C-1”. Such certificates are in Spanish language but an English
translation was provided by appellant’s expert witness Rudelyn
F. Demerin who executed a Judicial Affidavit marked as
Exhibits “E to E-1”. The latter’s expertise to be able to read,
speak, write, understand and translate Spanish to English was
duly established during her testimony sometime on February
4, 2014. It is also supported by documents marked as Exhibits
“A”, “A-1”, “A-2”, “B” and “B-1”. The English translations are
marked as Exhibits “D and D-1”.

2. When Sufia Serrano died, Tomas Serrano got married

again to Clara A. Serrano and they begot one child, Enrique
Serrano (Enrique for brevity), the father of the appellees per
Certificate of Baptism marked as Exhibit “C-2”. Tomas Serrano
died on March 3, 1963 as evidenced by a Certification marked
as Exhibit “G”.

3. On the other hand, appellant’s father, Fernando, died

on March 21, 1960 per NSO Certification marked as Exhibit “R-
1”. A perusal of Exhibit “R-1” shows that Fernando’s father was
Tomas Serrano and the fact of death was reported by
Fernando’s brother, Enrique (Exhibit “R-1”), the father of the
appellees. Appellant is the sole child of Fernando. Appellant’s
6
birth and paternity are supported by Exhibit “F”. At the time of
Fernado’s death, appellant was about twenty-five (25) years
old since she was born on April 23, 1935.

4. Enrique, who died on December 15, 1991, had ten

children. They are the appellees in this case and referred to as
“appellees Serrano”. Mercedes Serrano, who died on October
11, 1992, had no child. At the time of Enrique’s death,
appellant was about fifty-six (56) years old. In her Judicial
Affidavit marked as Exhibit “T” (Q & A No.: 55), appellant
testified that Enrique knew her as the child of Fernando. They
knew each other.

5. Tomas Serrano died intestate and he left a parcel of

land at Camudmud, Babak, IGACOS, Davao del Norte
consisting of 82,935 square meters, more or less, particularly
described under Original Certificate of Title No. B-040 marked
as Exhibit “H” (Enlarged copy, Exhibit “J”) as follows:

“Beginning at D-Psd – Block 1, on Plan H-500, L-H-

3044, 39 m. more or less from B.L.B.M. No. 1, Bo.
Of Penaplata, Mlp. Dist. Of Samal, thence H-43
deg. 15’W, 284.42 m. to point 2; N.58 deg. 00’E,
256.35 m. to point 3; NE. 79 deg. 13’E, 77.28 m.
to point 4; S. 24 deg. 46’E., 287.15 m. to point 5;
S. 66 deg. 03’E., 238.27 m. to point 1, point of
beginning, points 1, 2 and 3 and 5, P.L.S./B.L.
conrete monuments; point 3, G.I.S. in tree; points
2, 3, and 4, on shore of Davao Gulf. Bounded on
the north by Davao Gulf and property claimed by
Alad (Samal); on the east, by property claimed by
Alad (Samal) and public land; on the south by
public land; and property cliamed by Gutom
(Samal) and Gulf of Davao. Bearings True.
Declination 1 deg. 44’E. Points referred to marked
on plan H-5007. Surveyed under Authority of
Sections 12-22, Act 2874 in accordance to the
regulations of the Bureau of Lands, by Antonio B.

7
 Hernandez, Jr., Surveyor, under the supervision of
Manuel Carreon, Public Land Surveyor, on
November 12-13, 1923 and approved on July 27,
1925.”

6. Appellant knew and had seen Tomas Serrano as stated

in her Judicial Affidavit. She lived with or near the house of
Tomas Serrano in Samal Island before, and when the latter
died she was about twenty-seven (27) years old (c.f. Exhibit
“T”, Q & A Nos. 36 and 37). Appellant also knew where the
subject property is located and she had been there (c.f. Q & A
Nos. 36 and 37, id.). Being uneducated and a lumad, appellant
knew nothing about her rights to the property. Enrique simply
told her that she had no rights because Fernando died already.
She had not signed, thumbmarked or consented to any
document waiving or selling her rights or accepting her share
in the estate. Appellees Serrano also did not inform her of her
rights (c.f. Q & A Nos. 55 and 56, id.) despite the fact that
they know appellant.

7. However, a relative and friend was able to advise

appellant that she has a rightful share in the property as the
child of Fernando, who in turn was the child of Tomas Serrano.
She asked help from her relative for the gathering of
documents, filing of the case and related expenses (c.f. Q & A
Nos. 47, 49 and 57, Exhibit “T”). Appellant inquired from the
Register of Deeds, Davao del Norte and was able to secure
receive on November 14, 2012 certified documents from the
Register of Deeds dated November 13, 2012 as a result of her
inquiry. She discovered for the first time that Enrique
adjudicated solely unto himself the above-described property
by executing an Affidavit of Self-Adjudication marked as
Exhibit “I” dated March 17, 1984. Enrique intentionally

8
committed fraud and deceived appellant by misrepresenting
and concealing a material fact that Enrique was the “only sole
heir of the deceased” Tomas Serrano despite actual knowledge
that appellant was alive at the time of the execution.

8. Consequently, and because of such surreptitious and

fraudulent acts, Enrique had more than one-half of the
property titled in his name as evidenced by Transfer Certificate
of Title No. T-72823 containing 42,329 square meters, more or
less, marked as Exhibit “M to M-3”. On July 9, 1984, Enrique
also sold to appellee Ederlina the remaining portion of the
mother lot consisting 40,606 square meters, more or less, as
evidenced by the Deed of Absolute Sale marked as Exhibits “K
to K-2”. Such portion had been registered in the name of
appellee Ederlina as evidenced by Transfer Certificate of Title
No. T-72822 marked as Exhibit “L”. Had appellant not inquired
from the Register of Deeds, she would not have known such
fraudulent transactions.

9. The land covered by TCT No. T-72823 was made the

subject of an Extrajudicial Partition Among Heirs marked as
Exhibits “N to N-2” executed by and between appellees
Serrano. This was executed without the knowledge of appellant
or without appellant being informed about it. Because of such
fraudulent acts, appellant has not received her rightful
inheritance and therefore she was unlawfully deprived of her
share and legitime. Appellant got angry when she learned
about this. She confronted appellees Serrano but she was told
that it was too late and they had nothing more to give to her.
The latter also looked for appellee Ederlina but she could not
be found at that time. Thus, a letter was sent to her by
personal service marked as Exhibit “O” because appellant

9
wanted to redeem or buy-back the property sold by Enrique to
Ederlina, a stranger under the law.

10. Eventually, appellant filed this case praying for the

annulment of documents and titles, partition, reconveyance
and subrogation/redemption. Appellees Serrano were declared
in default for miserably failing to appear during the pre-trial
hearings and for failure to file their Pre-trial brief. Appellee
Ederlina also failed to file her Answer despite publication of the
summons with answer in a newspaper of general circulation
marked as Exhibits “P, Q, and R”. Appellant moved to deposit
with the Office of the Clerk of Court the redemption money of
P40,000.00 but it was denied on the ground of prematurity.
Upon the filing of appellant’s formal offer, this case was
submitted for resolution. In an Order dated November 24,
2014, this Honorable Court directed appellant to file her
memorandum.

11. The court a quo, in its assailed Decision dated

September 28, 2015, dismissed the complaint on the ground
of prescription. The dispositive portion partly states:

“Plaintiff has at her disposal several remedies to get

her share in the inheritance left by her grandfather.
For one reason or another, she however failed to
avail of these at the opportune time….”

“WHEREFORE, for reasons cited and explained

above, the complaint is DISMISSED.”

12. The Decision was received on October 7, 2015.

Appellant filed her Motion for Reconsideration only with respect
to the ruling of the lower court that the action had prescribed
already since heirship was duly established. The motion was

10
denied. In its Order dated January 14, 2016, the court a quo
ruled that:

“All told, reconsideration is not warranted pursuant

to the authorities cited due to plaintiff’s failure to
present preponderant evidence showing that fraud
attended the execution of the Affidavit of Self-
Adjudication. And assuming that its execution was
fraudulent, the circumstances obtaining failed to
quell lingering doubts that she knew of this only on
14 November 2012.

WHEREFORE, all things considered and addressed,

plaintiff’s Motion for Reconsideration dated October
21, 2015 is DENIED.”

13. The assailed Order denying the motion for

reconsideration gave weight or considered appellee Serrano’s’
attachment to their Answer, particularly the Deed of Sale
dated October 28, 1968, which was not presented or offered in
evidence. Appellant allegedly thumbmarked the Deed of Sale.
The latter have denied having entered into such a contract.

14. The Order denying the Motion for Reconsideration was

received by appellant on January 21, 2016. The latter filed a
Notice of Appeal on February 3, 2016 and paid all the filing
and other fees.

15. On June 8, 2016, appellant received a copy of the

order of this Honorable Court requiring the latter to file her
Appellant’s Brief within 45 days from receipt. Hence, appellant
has until July 23, 2016 to comply.

11
 ISSUES

I. Whether or not appellant is entitled to the

remedies prayed for.

II. Whether or not the court a quo erred in ruling

that appellant’s right to enforce and claim her
share in the inheritance has been barred by
inaction or prescription.

III. Whether the court a quo erred in giving weight

or consideration to the Deed of Sale dated
October 28, 1968 which was not presented or
offered in court in view of appellees’ default.

ARGUMENTS

ON THE FIRST ISSUE: Yes,

appellant is entitled to the remedies
prayed for.

16. It is clear from the foregoing facts that appellant’s

father, Fernando, pre-deceased Tomas Serrano. Fernando died
on March 21, 1960 while Tomas Serrano died on March 3,
1963.

17. It is undisputed that Tomas Serrano died intestate.

“Intestate or legal heirs are classified into two (2) groups,
namely, those who inherit by their own right and those who
inherit by the right of representation. Restated, an intestate
heir can only inherit either by his own right, as in the order of
intestate succession provided for in the Civil Code, or by the
right of representation provided for in Article 981 of the same
law.”1 Representation is a right created by fiction of law, by
virtue of which the representative is raised to the place and
degree of the person represented, and acquires the rights
1 Intestate Estate of Petra V. Rosales, et. al. vs. Fortunato Rosales, et.al., G.R. No. L-40789,
February 27, 1987.

12
which the latter would have if he were living or if he could
have inherited.2 The representative is called to the succession
by the law and not by the person represented. The
representative does not succeed the person represented but
the one whom the person represented would have succeeded. 3

18. Appellant, as the only child of Fernando, is entitled to

succeed Tomas Serrano by way of representation. She suffers
none of the disqualifications. She belongs to the direct
descending line as required under Article 972 of the Civil Code.
She is also capable of succeeding the decedent in accordance
with Article 973 of the Civil Code. Legitimate children and their
descendants (like appellant herein) succeeds from the parents
and other ascendants (like Tomas Serrano herein) without
distinction as to sex or age, and even if they should come from
different marriages.4 The grandchildren and other descendants
shall inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion pertaining
to him shall be divided among the latter in equal portions. 5 It
is therefore settled that appellant is entitled to inherit from
Tomas Serrano. Her bloodline has been established and
undisputed already.

19. Appellant’s right to inherit by representation is

reckoned from the death of Tomas Serrano on March 3, 1963.
At this point, only three (3) heirs would inherit the original
82,935 square meters land described under Original Certificate
of Title No. B-040 because it is submitted that such property is
exclusive property of Tomas Serrano. It must be noted that

2 Article 970, NCC.

3 Article 971, NCC.
4 Article 979, Civil Code.
5 Article 982, Civil Code.

13
the latter died in 1963 and the prevailing law on property
relations between spouses at that time was the Civil Code. The
Family Code took effect only on August 3, 1988. Article 148 of
the Civil Code states:

“The following shall be the exclusive property of

each spouse:

(1) That which is brought to the marriage as his or

her own;
(2) That which each acquires, during the marriage,
by lucrative title;
(3) That which is acquired by redemption or by
exchange with other property belonging to only
one of the spouses;
(4) That which is purchased with exclusive money
of the wife or of the husband.”

20. It is noteworthy that the original title did not indicate

either the name of Tomas Serrano’s spouses. It can therefore
be presumed that the whole undivided property was brought
by Tomas Serrano to either marriage as his own or purchased
with his exclusive money. Having said so, the three heirs that
would inherit from Tomas Serrano at the time of his death –
Mercedes, Fernando (by way of representation) and Enrique –
who would share the property equally or 27,645 square meters
each. Thus, appellant is entitled to 27,645 square meters,
more or less.

21. However, Enrique appropriated fraudulently and

surreptitiously the entire property unto himself as evidenced
by the Affidavit of Self-Adjudication. This fact was discovered
by appellant for the first time only on November 14, 2012.
Enrique intentionally committed fraud and deception by
misrepresenting and concealing a material fact that he was the
“only sole heir of the deceased” of Tomas Serrano despite
14
actual knowledge that appellant was (and still is) alive. In fact,
at the time of the execution of the Affidavit of Self-
Adjudication, Mercedes was still living as well since she died
sometime in 1992. Thus, the Affidavit of Self-Adjudication,
Deed of Sale in favor of appellee Catito, the title issued in her
favor, the Extrajudicial Partition Among Heirs and the titles
issued in the name of defendants Serrano should be annulled,
and that appellant’s share be conveyed to her. Otherwise, her
rights would be greatly prejudiced. Moreover, since Mercedes
died without any issue, appellant is also entitled to inherit from
her also by way of representation as provided under the
second paragraph of Article 972 of the Civil Code. Appellant’s
share is up to one-half of the subject property.

22. The Affidavit of Sole Adjudication executed by Enrique

is null and void with respect to the appellant’s share. Her share
in the estate was transferred to her by operation of law upon
the death of Tomas Serrano. As such, she immediately became
a co-owner of the estate. Article 1078 of the Civil code states:
“Where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such
heirs, subject to the payment of debts.” The Affidavit of Sole
Adjudication, in so far as it affects appellant’s share, is null and
void because her consent was not given. The adjudication was
effective only with respect to Enrique’s share. The latter
cannot adjudicate unto himself the entire estate because
appellant is the owner of a portion of it. Thus, for lack of
appellant’s consent the adjudication is null and void with
respect to her share. Being null and void, the action against it
does not prescribe as provided under Article 1410 of the Civil
Code.

15
 23. Being a co-owner and co-heir, appellant has the right
to partition the estate of Tomas Serrano as provided under
Article 1083 of the Civil Code which is applicable both to
intestate and testate succession. Partition is proper inorder
that the share of the appellant would be satisfied. The share
due to appellant should be reconveyed and delivered to her by
the appellees.

24. Moreover, appellant seeks to be subrogated to the

rights of appellee Ederlina, the purchaser of 40,606 square
meters of the estate now covered by TCT No. T-72822 and
reimburse the latter with the purchase price of Php40,000.00.
Article 1088 of the Civil Code states: “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.”

25. As co-owner, appellant is also entitled to legal

redemption under Article 1620 of the Civil Code which partly
states: “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.” In this case,
defendant Ederlina is a stranger and a third person. Appellant
was never notified in writing by Enrique of the sale to appellee
Ederlina.

26. The sale was also made before the partition of the
estate. What happened was only an adjudication and not
partition as defined by Article 1079 of the Civil Code which
states: “Partition, in general, is the separation, division and
16
assignment of a thing held in common among those to whom it
may belong. The thing itself may be divided, or its value.”
There was no separation, division and assignment of the estate
between appellant and the late Enrique. Thus, there was no
partition yet. Partition is imprescriptible and cannot be barred
by laches.6

27. Moreover, the condition has not taken place yet since
no written notice was sent to appellant. The written notice is
mandatory.7 The person having the right to redeem, appellant
in this case, is entitled to the written notice. If the notice is not
given, the 30-day period has not even begun to run. 8

28. In fact, the deed of sale in favor of appellee Ederlina

should not have been registered with defendant ROD in
accordance with Article 1623 of the Civil Code which states:
“The right of legal pre-emption or redemption shall not be
exercised except within thirty days from the notice in writing
by the prospective vendor, or by the vendor, as the case may
be. The deed of sale shall not be recorded in the Registry of
Property, unless accompanied by an affidavit of the vendor
that he has given written notice thereof to all possible
redemptioners. The right of redemption of co-owners excludes
that of adjoining owners.” No such affidavit was submitted to
the Register of Deeds. Thus, subrogation has not yet
prescribed and is still proper under the circumstances. The
registration of the titles will not suffice to replace the written
notice required by law.

ON THE SECOND ISSUE: Yes, the

6 Sta. Ana vs. Lourdes Panlasigue, G.R. No. 152652, August 31, 2006.
7 Verdad vs. Court of Appeals, G.R. No. 109972. April 29, 1996.
8 Vda. De Cangco vs. Escubido, 54 O.G. 1401

17
court a quo erred in ruling that the
action already prescribed.

29. The Affidavit of Self-Adjudication (referred as Affidavit)

dated March 17, 1984 was executed by Enrique Serrano
despite knowledge of appellant’s existence and right to inherit.
The evidences indisputably show that Enrique was not the sole
heir of Tomas Serrano. Hence, the existence of fraud is clear.

30. Indeed, Article 1391 of the Civil Code provides that

the action for annulment in case of mistake or fraud shall be
brought within four years counted “from the time of the
discovery of the same.” The lower court ruled that the four-
year period should be counted from the execution of the
Affidavit on March 17, 1984, and as such, the period to bring
the action lapsed on March 17, 1988. To the mind of the lower
court, March 17, 1984 was the reckoning day from which the
action may be brought in accordance with Article 1150 of the
Civil Code and the ruling in Espanol vs. Phil. Veterans
Administration, 137 SCRA 314.

31. Appellant respectfully disagrees. The law is clear that

in case of fraud, the four-year period should be counted from
the time of the “discovery”. By its nature, fraud is concealed,
and the victim cannot be expected to discover it immediately.
Appellant could not have been reasonably expected to acquire
knowledge regarding the execution of the Affidavit. This is
made more reasonable considering that appellant is lumad and
uneducated. Actual discovery of the fraud on November 14,
20129 should be the reckoning point, and it would lapse on

9 There was a clerical error in the Judicial Affidavit of the plaintiff particularly on question number
48 stating that she first discovered it on or about November 13, 2013. The complaint and
memorandum clearly states that plaintiff discovered the fraud and her rights sometime on
November 14, 2012 after she received certified copy of the Affidavit of Self-Adjudication dated

18
November 14, 2016. That was the first time that plaintiff
actually discovered the fraud when she received a certified
copy of the Affidavit from the Register of Deeds, Davao del
Norte. Thus, when the case was filed on November 21, 2012,
the four-year period had barely begun to run. The case was
filed on time.

32. Sections 1 and 4 of Rule 74, Rules of Court are

likewise not applicable as held in the case of Napoleon D. Neri,
et al. vs. Heirs of Uy, et al., G.R. No. 194366, October 10,
2012. This case involves a parcel of land consisting of 299,555
square meters located in Samal Island, Davao del Norte
embraced by several original certificates of title in the names
of spouses Enrique and Anunciacion Neri. When Anunciacion
died, Enrique, in his personal capacity and as natural guardian
of his minor children Rosa and Douglas, together with
Napoleon, Alicia, and Visminda executed an Extra-Judicial
Settlement of the Estate with Deed of Absolute Sale on July 7,
1979 in favor of spouses Hadji and Julpha Uy.

33. On June 11, 1996 or after the lapse of about 17 years

from the execution, the children of Enrique who were excluded
in the extra-judicial settlement filed a complaint in the
Regional Trial Court of Panabo City. The Heirs of Uy, who were
substituted in the case, invoked the defenses of prescription
and laches, among others. On October 25, 2004, the Regional
Trial Court of Panabo rendered a decision ordering, among
others, the annulment of the Extra-Judicial Settlement of the
Estate with Absolute Deed of Sale. It ruled that:

November 13, 2012. The clerical error should be corrected accordingly.

19
 “xxxx while the sale occurred beyond the 5-year
prohibitory period, the sale is still void because
Eutropia and Victoria were deprived of their
hereditary rights and that Enrique had no judicial
authority to sell the shares of his minor children,
Rosa and Douglas. Consequently, it rejected the
defenses of laches and prescription raised by
spouses Uy, who claimed possession of the subject
properties for 17 years, holding that co-ownership
rights are imprescriptible.”

34. On appeal, the Court of Appeals reversed the ruling of

the Regional Trial Court. Thus, the case was elevated to the
Supreme Court. It was held that “the settlement was not valid
and binding upon them and consequently, a total nullity.” The
Supreme Court also ruled on the applicability of Section 1,
Rule 74 of the Rules of Court. It held that:

“The effect of excluding the heirs in the settlement

of estate was further elucidated in Segura v.
Segura, thus:

It is clear that Section 1 of Rule 74 does not apply

to the partition in question which was null and void
as far as the plaintiffs were concerned. The rule
covers only valid partitions. The partition in
the present case was invalid because it
excluded six of the nine heirs who were
entitled to equal shares in the partitioned
property. Under the rule "no extrajudicial
settlement shall be binding upon any person who

20
has not participated therein or had no notice
thereof." As the partition was a total nullity and did
not affect the excluded heirs, it was not correct for
the trial court to hold that their right to challenge
the partition had prescribed after two years from its
execution…

However, while the settlement of the estate is null

and void, the subsequent sale of the subject
properties made by Enrique and his children,
Napoleon, Alicia and Visminda, in favor of the
respondents is valid but only with respect to
their proportionate shares therein. It cannot be
denied that these heirs have acquired their
respective shares in the properties of Anunciacion
from the moment of her death and that, as owners
thereof, they can very well sell their undivided share
in the estate.

On the issue of prescription, the Court agrees with

petitioners that the present action has not
prescribed in so far as it seeks to annul the
extrajudicial settlement of the estate. Contrary to
the ruling of the CA, the prescriptive period of 2
years provided in Section 1 Rule 74 of the Rules of
Court reckoned from the execution of the
extrajudicial settlement finds no application to
petitioners Eutropia, Victoria and Douglas, who were
deprived of their lawful participation in the subject
estate. Besides, an "action or defense for the
declaration of the inexistence of a contract does not

21
 prescribe" in accordance with Article 1410 of the
Civil Code.” (Emphasis supplied.)

35. Just like in that case, appellant was excluded and

deprived of her lawful participation in the estate. Section 1 and
Section 4 of Rule 74, therefore, do not militate against her
rights since they are not applicable. The Affidavit was null and
void in the first place.

36. The lower court also ruled that prescription had long
set in because the registration of the affidavit and deed of
conveyance that paved the way to the cancellation of the
mother title and the issuance of new ones operated as
constructive notice to the whole world. Further, it was held
that prescription cannot be reckoned from discovery of the
documents but from the registration in 1984.

37. Appellant respectfully disagrees with this observation

based on the ruling of the Supreme Court in the case of
Tiburcio Samonte vs. Court of Appeals, et al., G.R. No.
104223, July 12, 2001. In this case, a certain Ignacio Atupan
caused the fraudulent cancellation of OCT No. RO-238 (555)
by virtue of his Affidavit of Extrajudicial Settlement and
Confirmation of Sale dated August 7, 1957 wherein he
adjudicated unto himself one-half of Lot 216 by
misrepresenting himself as the sole heir of Apolonia Abao
when in fact he was not even the latter’s child. It paved the
way to the registration and issuance of TCT No. RT-476 on
August 8, 1957. The respondents in this case filed the
action in the lower court of Butuan City only in 1975 or
after a lapse of 18 years.

22
 38. Petitioner therein invoked prescription and the doctrine
that discovery of fraud is deemed to have taken place at the
time of the registration as held in Carantes vs. Court of
Appeals, 76 SCRA 514, among other cases. On such issue, the
Supreme Court held:

“Petitioner's defense of prescription is untenable.

The general rule that the discovery of fraud is
deemed to have taken place upon the registration of
real property because it is considered a constructive
notice to all persons" does not apply in this case.
Instead, the CA correctly applied the ruling in Adille
vs. Court of Appeals which is substantially on all
fours with the present case.

In Adille, petitioner therein executed a deed of

extrajudicial partition misrepresenting himself to be
the sole heir of his mother when in fact she had
other children. As a consequence, petitioner therein
was able to secure title to the land in his name
alone. His siblings then filed a case for partition on
the ground that said petitioner was only a trustee on
an implied trust of the property. Among the issues
resolved by the Court in that case was prescription.
Said petitioner registered the property in 1955 and
the claim of private respondents therein was
presented in 1974.

The Court's resolution of whether prescription had

set in therein is quite apropos to the instant case:

23
 It is true that registration under the Torrens system
is constructive notice of title, but it has likewise
been our holding that the Torrens title does
not furnish a shield for fraud. It is therefore no
argument to say that the act of registration is
equivalent to notice of repudiation, assuming
there was one, notwithstanding the long-
standing rule that registration operates as a
universal notice of title.

In this case, the CA reckoned the prescriptive period

from the time respondents had actually discovered
the fraudulent act of Atupan which was, as borne
out by the records, only during the trial of Civil Case
No. 1672. Citing Adille, the CA rightfully ruled that
respondents' action for reconveyance had not yet
prescribed.” (Emphasis supplied.)

39. In the case of Rustico Adille vs. Court of Appeals, et

al., G.R. No. 44546, January 29, 1988 cited above, 19 years
had lapsed between the execution of the self-adjudication
and the filing. But the Supreme Court dismissed the defenses
of prescription and the doctrine that registration is a
constructive notice to the whole world. The rulings in Adille
and Samonte cases apply in this case. Appellant even deserves
a consideration or liberal application of the laws because she is
an uneducated lumad.

40. Moreover, appellant has maintained her rights as co-

owner of the subject land. Such co-ownership was created by
operation of law upon the death of Tomas Serrano. When

24
Enrique executed the Affidavit, he unlawfully acquired
appellant’s share through fraud. And because of that, an
implied constructive trust was created. Article 1456 of the Civil
Code states:

“If property is acquired through mistake or fraud,

the person obtaining it is, by force of law,
considered a trustee of an implied trust for the
benefit of the person from whom the property
comes.”

41. Appellant is the beneficiary of this trust. Enrique’s

pretension that he was the sole heir to the land in the Affidavit
he executed preliminary to the registration thereof betrays a
clear effort on his part to defraud appellant as co-heir and to
exercise sole dominion over the property. Therefore, there was
fraud, and Article 1456 applies.

42. Now, has prescription or laches set in? Still, the

answer is in the negative. In the case of Adille cited above
wherein 19 years had lapsed when the case was filed, the
Supreme Court held that:

“This Court is not unaware of the well-established

principle that prescription bars any demand on
property (owned in common) held by another (co-
owner) following the required number of years. In
that event, the party in possession acquires title to
the property and the state of co-ownership is
ended. In the case at bar, the property was
registered in 1955 by the petitioner, solely in his
name, while the claim of the private respondents

25
was presented in 1974. Has prescription then, set
in?

We hold in the negative. Prescription, as a mode of

terminating a relation of co-ownership, must have
been preceded by repudiation (of the co-ownership).
The act of repudiation, in turn is subject to certain
conditions: (1) a co-owner repudiates the co-
ownership; (2) such an act of repudiation is
clearly made known to the other co-owners;
(3) the evidence thereon is clear and conclusive,
and (4) he has been in possession through open,
continuous, exclusive, and notorious possession of
the property for the period required by law.

The instant case shows that the petitioner had not

complied with these requisites. We are not
convinced that he had repudiated the co-ownership;
on the contrary, he had deliberately kept the private
respondents in the dark by feigning sole heirship
over the estate under dispute. He cannot therefore
be said to have "made known" his efforts to deny
the co-ownership. Moreover, one of the private
respondents, Emeteria Asejo, is occupying a portion
of the land up to the present, yet, the petitioner has
not taken pains to eject her therefrom. As a matter
of fact, he sought to recover possession of that
portion Emeteria is occupying only as a
counterclaim, and only after the private respondents
had first sought judicial relief.

26
It is true that registration under the Torrens system
is constructive notice of title, but it has likewise
been our holding that the Torrens title does not
furnish a shield for fraud. It is therefore no
argument to say that the act of registration is
equivalent to notice of repudiation, assuming there
was one, notwithstanding the long-standing rule
that registration operates as a universal notice of
title.

For the same reason, we cannot dismiss the private

respondents' claims commenced in 1974 over the
estate registered in 1955. While actions to enforce a
constructive trust prescribes in ten years, reckoned
from the date of the registration of the
property, we, as we said, are not prepared to count
the period from such a date in this case. We note
the petitioner's sub rosa efforts to get hold of the
property exclusively for himself beginning with his
fraudulent misrepresentation in his unilateral
affidavit of extrajudicial settlement that he is "the
only heir and child of his mother Feliza with the
consequence that he was able to secure title in his
name also." Accordingly, we hold that the right of
the private respondents commenced from the time
they actually discovered the petitioner's act of
defraudation. According to the respondent Court of
Appeals, they "came to know [of it] apparently only
during the progress of the litigation." Hence,
prescription is not a bar.” (Emphasis supplied.)

27
 43. As in this case, appellant was kept in the dark. Hence,
the cause of action accrues from the time she actually
discovered the fraud on November 14, 2012, and not from the
time of registration. Moreover, defendants were not able to
present evidence on their defenses because they were
declared in default.

44. In the case of Carolina Vda. De Figuracion et al. vs.

Emilia Figuracion-Gerilla, GR No. 151334 February 13, 2013,
the Supreme Court ruled that when Hilaria and Felipa
registered the lot in their names to the exclusion of Emilia, an
implied trust was created by force of law and the two of them
were considered a trustee of the respondent’s undivided share.
As trustees, they cannot be permitted to repudiate the trust by
relying on the registration. In Ringor v. Ringor (480 Phil. 141
(2004), the Court had the occasion to explain the reason for
this rule:

“A trustee who obtains a Torrens title over a

property held in trust for him by another cannot
repudiate the trust by relying on the
registration. A Torrens Certificate of Title in Jose’s
name did not vest ownership of the land upon him.
The Torrens system does not create or vest title. It
only confirms and records title already existing and
vested. It does not protect a usurper from the true
owner. The Torrens system was not intended to
foment betrayal in the performance of a trust. It does
not permit one to enrich himself at the expense of
another. Where one does not have a rightful claim to
the property, the Torrens system of registration can

28
 confirm or record nothing. Petitioners cannot rely on
the registration of the lands in Jose’s name nor in the
name of the Heirs of Jose M. Ringor, Inc., for the
wrong result they seek.

45. Because of the foregoing decisions of the Supreme

Court, the transfers to appellee Ederlina Catito and the
appellees Serrano were null and void insofar as it affects the
right or share of the appellant. This is because appellant did
not consent to the transfer of her share. In the case of Felix
Gochan, et al. vs. Heirs of Raymundo Baba, G.R. No. 138945,
August 19, 2003, the Supreme Court held that:

“In Heirs of Romana Ingjug-Tiro v. Casals, the

Court, applying Article 1410 of the Civil Code
declared that a claim of prescription is unavailing
where the assailed conveyance is void ab initio with
respect to those who had no knowledge of the
transaction. The case involved a fraudulent sale and
extrajudicial settlement of a lot executed without
the knowledge and consent of some of the co-
owners. It was held that the sale of the realty is
void in so far as it prejudiced the shares of said co-
owners and that the issuance of a certificate of title
over the whole property in favor of the vendee does
not divest the other co-owners of the shares that
rightfully belonged to them. The nullity of the said
sale proceeds from the absence of legal capacity
and consent to dispose of the property. Thus -Article
1458 of the New Civil Code provides: "By the
contract of sale one of the contracting parties

29
 obligates himself to transfer the ownership of and to
deliver a determinate thing, and the other to pay
therefor a price certain in money or its equivalent."
It is essential that the vendors be the owners of the
property sold otherwise they cannot dispose that
which does not belong to them. As the Romans put
it: “Nemo dat quod non habet” No one can give
more than what he has. The sale of the realty to
respondents is null and void insofar as it prejudiced
petitioners' interests and participation therein. At
best, only the ownership of the shares of Luisa,
Maria and Guillerma in the disputed property could
have been transferred to respondents.

Consequently, respondents could not have acquired

ownership over the land to the extent of the shares of
petitioners. The issuance of a certificate of title in
their favor could not vest upon them ownership of the
entire property; neither could it validate the purchase
thereof which is null and void. Registration does not
vest title; it is merely the evidence of such title. Our
land registration laws do not give the holder any
better title than what he actually has. Being null and
void, the sale to respondents of petitioners' shares
produced no legal effects whatsoever.” (Emphasis
supplied.)

46. On the other hand, appellant has the right to be

subrogated to the rights of appellee Ederlina, the purchaser of
40,606 square meters of the estate now covered by TCT No. T-
72822 and reimburse the latter with the purchase price of

30
Php40,000.00. Article 1088 of the Civil Code states: “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.”

47. As co-owner, appellant is also entitled to legal

redemption under Article 1620 of the Civil Code which partly
states: “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.” In this case, appellee
Ederlina is a stranger and a third person. Appellant was also
never notified in writing by Enrique Serrano of the sale to
appellee Ederlina.

48. The sale was also made before the partition of the
estate. What happened was only an adjudication and not
partition as defined by Article 1079 of the Civil Code which
states: “Partition, in general, is the separation, division and
assignment of a thing held in common among those to whom it
may belong. The thing itself may be divided, or its value.”
There was no valid separation, division and assignment of the
estate between appellant and the late Enrique Serrano. Thus,
there was no partition yet. Partition is imprescriptible and
cannot be barred by laches.10 There should be lawful partition
of the estate left by Tomas Serrano. To reiterate, the transfer
to appellees was null and void insofar as the share of the

10 Sta. Ana vs. Lourdes Panlasigue, G.R. No. 152652, August 31, 2006.

31
appellant is concerned. The share belonging to the appellant
must be given to her in full.

49. Moreover, the condition sine qua non under Article

1088 of the Civil Code has not taken place since no written
notice was sent to the appellant. The written notice is
mandatory.11 The person having the right to redeem,
appellant, is entitled to the written notice. If the notice is not
given, the 30-day period has not even begun to run. 12 The
rulings of the Supreme Court are very clear.

50. In fact, the deed of sale in favor of appellee Ederlina

should not have been registered with the appellee ROD in
accordance with Article 1623 of the Civil Code which states:
“The right of legal pre-emption or redemption shall not be
exercised except within thirty days from the notice in writing
by the prospective vendor, or by the vendor, as the case may
be. The deed of sale shall not be recorded in the Registry of
Property, unless accompanied by an affidavit of the vendor
that he has given written notice thereof to all possible
redemptioners. The right of redemption of co-owners excludes
that of adjoining owners.” No such affidavit was submitted to
the Register of Deeds. Thus, subrogation has not yet
prescribed and is still proper under the circumstances. The
registration of the titles will not suffice to replace the written
notice required by law. It cannot be used to prosper fraud and
unjust enrichment.

ON THE THIRD ISSUE: Yes,

the lower court erred in
11 Verdad vs. Court of Appeals, G.R. No. 109972. April 29, 1996.
12 Vda. De Cangco vs. Escubido, 54 O.G. 1401

32
considering the Deed of Sale
allegedly executed by the
appellant.

51. Section 34, Rule 132 of the Rules on Evidence states

that: “The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered
must be specified.”

52. The offer of evidence is necessary because it is the

duty of the court to rest its findings of fact and its judgment
only and strictly upon the evidence offered by the parties.
Unless and until admitted by the court in evidence for the
purpose or purposes for which such document is offered, the
same is merely a scrap of paper barren of probative weight. 13

53. On the other hand, this allows opposing parties to

examine the evidence and object to its admissibility. Moreover,
it facilitates review as the appellate court will not be required
to review documents not previously scrutinized by the trial
court. Evidence not formally offered during the trial cannot be
used for or against a party litigant. Neither may it be taken
into account on appeal.14

54. It cannot be denied that the issue on the purported

Deed of Sale allegedly executed by the appellant in favor of
the late Enrique Serrano on October 28, 1968 wherein
appellant’s share in the subject estate was allegedly
transferred to Enrique Serrano was not brought up during the
trial. In fact, all the appellees did not present any evidence or

13 Westmont Investment Corporation vs. Amos P. Franca, Jr. et. al GR No. 194128, December
7, 2011.
14 Heirs of Pedro Pasig vs. Parocha, GR No. 155483, April 27, 2007

33
witnesses in court. That document was a matter of defense,
but was not identified or presented during trial in view of the
default.

55. However, in the Order of the lower court which

resolved appellant’s motion for reconsideration, the lower court
considered it or gave it weight. Appellant denied having
executed such document in her Reply. Although there was an
error in the computation of her age, but it did not change the
fact of the specific denial. The appellant categorically denied
the existence of the Deed of Sale and such document was not
proven and offered by the appellees Serrano. Hence, it should
not be considered or given weight because it is contrary to the
Rules of Evidence and constitutional rights of the appellant.

56. Moreover, it slipped the attention of the lower court

the strangeness of the circumstances. Allegedly, the Deed of
Sale was entered into on October 28, 1968. On the other
hand, the Affidavit of Self-Adjudication executed by the late
Enrique Serrano was made on March 17, 1984. In that self-
adjudication, he appropriated unto himself the entire 82,935
square meters particularly described under Original Certificate
of Title No. B-040. If appellant’s share was already sold to him
on October 28, 1968 per the alleged Deed of Sale, why would
he include plaintiff’s share in the adjudication? Why did it take
so long for him to title it in his name? If the sale was really
true, he need not include appellant’s share in the adjudication
because it was already his.

34
 57. The adjudication is based on Enrique’s being the sole
heir of Tomas Serrano. He did not even mention the sale way
back in 1968. The sale is clearly spurious.

PRAYER

WHEREFORE, PREMISES CONSIDERED, it is most

respectfully prayed of this Honorable Court of Appeals that the
assailed Decision and Order of the trial court dismissing this
case be REVERSED AND SET ASIDE and all the prayers of the
appellant in her complaint be granted to her accordingly.

Plaintiff-appellant and counsel pray for such other reliefs

consistent with justice and equity under the circumstances.

RESPECTFULLY SUBMITTED this July 23, 2016 in

Tagum City (for Cagayan de Oro City), Philippines.

By:
ATTY. NUMERIANO P. GALGO, JR.
For the Appellant
Notarial Public Until Dec. 31, 2016
Roll No. 53267; TIN: 266-299-414
IBP OR No. 957067; 1-04-16
PTR No. 1843497; 1-04-2016; Tagum City
MCLE Compliance No. V-0014464; valid until April 14, 2019;
Pasig City
[email protected]

Copy furnished:
35
Atty. Gerardo Braganza
Counsel for defendants Serrano RR No. ___________
Rm. 7-C, Casa Antonio Bldg. Date: ___________
Paseo dela Habana, No. 29
Rizal Street, Davao City

EXPLANATION ON FILING & SERVICE BY REGISTERED

MAIL: Copies of this appellant’s brief were filed and served by
registered mail. Personal filing and service could not be
resorted to due to distance constraints.

36