Heirs of Cesar Marasigan vs. Marasigan

When real estate held in common cannot be divided without prejudice to the interests of the parties, assignment to one heir willing to take the same upon payment of amounts deemed equitable by commissioners, or sale at public auction if so requested, is proper under Section 5, Rule 69 of the Rules of Court. Physical impossibility and impracticality arising from scattered location, differing contours, conditions and use fall within such prejudice, the determination of which lies in the discretion of the commissioners and trial court.

Alicia Marasigan died intestate and without issue, survived by siblings Cesar, Apolonio, Lilia and Benito Marasigan, a sister-in-law Marissa, and nephews representing predeceased brothers Francisco, Horacio and Octavio. Her estate included a 2/21 pro-indiviso share in Hacienda Sta. Rita, a 496-hectare aggregation of 13 parcels in Pili and Minalabac, Camarines Sur held in common with her siblings. Partition of real estate held in common is governed by Rule 69 of the Rules of Court, which provides a two-phase proceeding through an order of partition followed by implementation with the assistance of commissioners when the parties fail to agree.

Alicia Marasigan died intestate and without issue on 21 January 1995, leaving as heirs her brothers Cesar, Apolonio, Lilia and Benito, her sister-in-law Marissa, and the children of predeceased brothers Francisco, Horacio and Octavio. According to private respondents, Alicia owned in common with her siblings 13 parcels known as Hacienda Sta. Rita in Pili and Minalabac, Camarines Sur, with an aggregate area of 4,960,963 square meters, in which she held a 2/21 pro-indiviso share. On 17 December 1997 private respondents filed a complaint for judicial partition of Alicia's estate against Cesar before the Regional Trial Court of Pili, Camarines Sur. In his answer Cesar sought inclusion of eight additional Batangas, Sipocot and rural bank properties, which private respondents opposed on the ground that those properties had already been partitioned and distributed.

On 4 February 2000 the trial court ordered partition of Alicia's 422,422.65 square meters in Hacienda Sta. Rita among her surviving siblings per capita and her nephews per stirpes and by representation, each heir-group receiving 1/7 equivalent to 67,496.09 square meters, while declaring valid the prior partition of San Juan, Batangas properties and ordering partition of properties shown in Exhibits 1 to 10 in the same proportion. Thereafter the parties failed to agree on physical division, prompting private respondents to move for appointment of commissioners under Rule 69. The trial court appointed Myrna V. Badiong as chairman and Sandie B. Dacara as second commissioner after Cesar failed to nominate despite notice. On 26 October 2000 the two commissioners conducted an ocular inspection with assessor, agrarian and caretaker personnel, without Cesar who claimed lack of notice.

On 17 November 2000 the commissioners reported that physical division of the 2/21 share could not be done because of different locations and conditions, and recommended assignment of 1/7 shares to a willing buyer at ₱700,000.00 per hectare or ₱4,724,726.30 per 6.749609 hectares, pursuant to Section 5, Rule 69. Cesar opposed, asserting the estate was divisible without prejudice since remaining lands would stay serviceable for rice, corn and sugarcane, and that he had not expected to be forced to buy or sell. Private respondents countered that division was impossible because the shares were unsegregated portions of 13 titled parcels in different barangays and municipalities. On 22 June 2001 the trial court approved the report in toto and directed supplemental proceedings for Batangas properties; Cesar's reconsideration was denied. Cesar died on 25 October 2001 and was substituted by fifteen heirs. Pending review, the trial court granted partial execution, and petitioners' 1/7 share was sold at public auction on 26 February 2003 to Apolonio Marasigan at ₱701,000.00 per hectare for ₱3,777,689.00, lower than the commissioners' valuation allegedly due to compulsory acquisition of 100 hectares by the Department of Agrarian Reform, with Apolonio indicating willingness to pay the deficiency as sustained in the 5 May 2003 Omnibus Order.

• Due Notice and Due Process: Petitioner argued that the commissioners violated Section 4, Rule 69 because no notice was sent for the viewing and examination of the estate and petitioners were not heard on their preference, depriving them of due process, and that notice is indispensable whether the decision is to partition or to assign.
• Grounds for Assignment and Applicable Civil Code: Petitioner maintained that the commissioners' ground of different locations and conditions is not among those allowed under Section 5, Rule 69, that Article 492 of the New Civil Code is inapplicable, and that assignment will not terminate co-ownership, with physical division asserted to be feasible and without prejudice.
• Prejudice and Constitutionality: Petitioner argued that construing physical impossibility and impracticality as embraced in prejudice under Section 5, Rule 69 violates Articles 494 and 495 of the New Civil Code and exceeds the rule-making power by increasing, decreasing or modifying substantive rights.
• Jurisdiction, Cause of Action and Auction Sale: Petitioner maintained in the Memorandum that respondents had no cause of action because undivided shares cannot be partitioned, that the trial court had no jurisdiction over unidentified land and the entire 496 hectares for non-payment of docket fees, and that the partition judgment, subsequent proceedings and public auction sale are null and void ab initio.

• Prior Partition of Other Properties: Respondent countered that the Batangas and other properties Cesar sought to include had already been previously partitioned and distributed to the appropriate parties.
• Impossibility of Physical Division: Respondent argued that physical division is impossible because Alicia's estate is only a 2/21 pro-indiviso share spread over 13 parcels under different titles and tax declarations in different barangays and municipalities covering 496 hectares, with differing contours and water availability rendering only certain portions suitable for agriculture.

• New Issues in Memorandum: Whether new issues on jurisdiction and cause of action raised for the first time in the Memorandum may be entertained.
• Estoppel and Docket Fees: Whether jurisdiction may still be assailed for alleged non-payment of docket fees after active participation below.
• Due Notice and Due Process: Whether lack of notice to attend the commissioners' viewing and examination violated Section 4, Rule 69 and denied due process.
• Assignment for Prejudice: Whether assignment under Section 5, Rule 69 was proper on the ground that physical division cannot be made without prejudice, including physical impossibility and impracticality, in light of Articles 494, 495 and 498 of the New Civil Code.
• Constitutionality and Certiorari: Whether the construction of Section 5, Rule 69 violates the constitutional limitation on rule-making and whether alleged misapplication is correctible by certiorari.
• Auction Sale and Forum Shopping: Whether the validity of the public auction sale of petitioners' share remains open despite final denial in G.R. No. 164970 and parallel proceedings in CA-G.R. SP No. 78912.

• New Issues in Memorandum: No. Raising additional issues in the Memorandum is irregular, deemed beyond the reglementary petition, and offensive to fair play and due process.
• Estoppel and Docket Fees: No. Defenses not pleaded are waived, the subject is only the 47.2-hectare pro-indiviso share, and active participation with affirmative relief estops belated jurisdictional attack under National Steel Corporation vs. Court of Appeals and Tijam vs. Sibonghanoy.
• Due Notice and Due Process: No. Lack of notice was a procedural infirmity that did not deny due process, the essence of which is opportunity to be heard, afforded through opposition and reconsideration.
• Assignment for Prejudice: Yes. Assignment was proper, prejudice having been established from type, condition, location and use, with scattered 13 parcels rendering further subdivision value-diminishing.
• Constitutionality and Certiorari: No. The constitutional question need not be passed upon as the case is disposable on other grounds, and misapplication would be mere error of judgment not correctible by certiorari.
• Auction Sale and Forum Shopping: No. The 13 October 2004 denial in G.R. No. 164970 is final and bars relitigation, and simultaneous pursuit of the same auction issues constitutes forum shopping warranting admonition.

• New Issues in Memorandum: The first three memorandum issues alleging lack of jurisdiction and cause of action were raised for the first time therein and cannot be placed within the original assignment of errors. Under the 17 September 2003 resolution and Manila Railroad Company vs. Perez and Republic of the Philippines vs. Kalaw, issues in pleadings but not in the petition yet added in the memorandum are deemed waived or abandoned, with no new points of law permitted.
• Estoppel and Docket Fees: Cesar filed no motion to dismiss and pleaded no jurisdictional or cause-of-action defenses, hence waiver under Section 1, Rule 9 applied, with no apparent lack of subject-matter jurisdiction from pleadings or evidence. The objection pertained to venue and docket fees for the entire 496 hectares, whereas only the 47.2-hectare estate was partitioned, and belated objection after seeking inclusion of properties is barred by estoppel.
• Due Notice and Due Process: While absence of notice of viewing was procedurally infirm, no substantive right was violated because Cesar filed a Comment/Opposition to the report and a motion for reconsideration of the 22 June 2001 order, fully ventilating valuation and preference for physical subdivision. Mere allegation of prejudice without competent proof does not suffice, following Legarda vs. Court of Appeals and the rule that he who alleges must prove, with procedure construed to attain substantial justice.
• Assignment for Prejudice: Whether division would prejudice interests is a factual question delegated to commissioners, supported here by viewing, deliberation on classification, use, desirability and benefits, and Apolonio's testimony on unsuitability of portions for agriculture. Dividing an unidentified 2/21 share into seven 67,496.09-square-meter portions scattered across two municipalities would diminish value and use compared to keeping the estate intact, consistent with Articles 494, 495 and 498 on terminating co-ownership most beneficially.
• Constitutionality and Certiorari: Factual findings on prejudice carry great weight and are not reviewable by certiorari, which corrects only errors of jurisdiction or grave abuse of discretion, not error of judgment under Flores vs. Court of Appeals. Because partition could be resolved by statute and general law, the constitutional attack on Section 5, Rule 69 was not the very lis mota and need not be decided under Estrada vs. Desierto.
• Auction Sale and Forum Shopping: Petitioners omitted to disclose dismissal of CA-G.R. SP No. 78912 and final denial of G.R. No. 164970 on 13 October 2004, while re-raising auction validity and deficiency in the present memorandum. Such simultaneous remedies in different fora constitute forum shopping as defined in Wee vs. Galvez, degrading orderly procedure, with final judgments no longer disturbable however erroneous under Lapulapu Development and Housing Corporation vs. Group Management Corporation.

• Two Phases of Partition — An action for partition comprises first, determination of co-ownership and propriety of partition ending in an order for partition, and second, implementation when parties fail to agree, with assistance of not more than three commissioners, each phase ending in a final appealable order. Applied to hold that trouble arose in the second phase, governed by Sections 3 to 5, Rule 69, where commissioners determine feasibility and the court confirms the subdivision or assignment.
• Assignment or Sale When Division Prejudicial — When commissioners find real estate or a portion thereof cannot be divided without prejudice to parties' interests, the court may assign it to a willing party upon equitable payment, or order public sale if any interested party so asks, under Section 5, Rule 69, read with Articles 494, 495 and 498 on termination of co-ownership. Applied to sustain assignment at ₱700,000.00 per hectare where scattered parcels and differing conditions made physical division prejudicial.
• Due Process as Opportunity to be Heard — Due process is satisfied by opportunity to defend interests in due course, not by mere invocation as mantra, with prejudice meaning injury or damage requiring competent proof. Applied to reject denial of due process where, despite lack of viewing notice, opposition and reconsideration were fully heard and no proof of disregard of preference was shown.
• Waiver, Estoppel and Tijam vs. Sibonghanoy Exception — Defenses not pleaded are waived, yet lack of subject-matter jurisdiction is generally never waived; however, one who actively participates, seeks affirmative relief, and loses on merits is estopped to belatedly assail jurisdiction. Applied to bar petitioners' memorandum attacks on jurisdiction and docket fees after Cesar litigated and sought inclusion of properties.
• Certiorari Limited to Jurisdictional Error — Certiorari corrects only grave abuse of discretion amounting to lack or excess of jurisdiction, not errors of judgment nor factual questions on credibility and prejudice. Applied to hold that correctness of prejudice finding and application of Section 5, Rule 69 and Article 492 were beyond certiorari review.
• Constitutional Avoidance — A constitutional question will not be entertained unless essential to decision and the very lis mota, if the case can be disposed on statutory or general-law grounds. Applied to decline ruling on alleged violation of rule-making limits by Section 5, Rule 69.
• Forum Shopping — Forum shopping occurs when a party files multiple petitions involving the same issues before different tribunals hoping for favorable disposition or, after adverse decision, seeks another opinion other than by appeal or certiorari. Applied to admonish petitioners for pursuing auction issues simultaneously before the Court of Appeals and this Court without disclosure.

• "The first phase of a partition and/or accounting suit is taken up with the determination of whether or not a co-ownership in fact exists, (i.e., not otherwise legally proscribed) and may be made by voluntary agreement of all the parties interested in the property." — Defines the first phase of partition and anchors the holding that the present controversy arose in the second, commissioner-assisted phase.
• "after voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court." — States the Tijam vs. Sibonghanoy estoppel rule applied to bar belated jurisdictional attack after active participation.
• "No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned." — Recites the substantive right under Article 494 construed together with Section 5, Rule 69 to justify termination of co-ownership by assignment.
• "partition, in general, is the separation, division, and ASSIGNMENT of a thing held in common by those to whom it may belong." — Rejects the argument that assignment to one heir fails to terminate co-ownership.

• Tijam vs. Sibonghanoy, 131 Phil. 556 (1968) — Controlling estoppel exception applied to preclude belated jurisdictional challenge after voluntary submission and adverse merits decision.
• Maglucot-aw vs. Maglucot, 385 Phil. 720 (2000) — Followed on the two phases of partition and finality of orders in each phase.
• Sepulveda, Sr. vs. Pelaez, G.R. No. 152195, 31 January 2005 — Cited on the two-phase framework and confirmation of commissioner-assisted partition.
• National Steel Corporation vs. Court of Appeals, G.R. No. 123215, 2 February 1999 — Followed to estop a party who actively participated from assailing jurisdiction for alleged docket-fee deficiency.
• Legarda vs. Court of Appeals, G.R. No. 94457, 16 October 1997 — Followed that opportunity to defend satisfies due process.
• Flores vs. Court of Appeals, 328 Phil. 992 (1996) — Followed that certiorari corrects only jurisdictional errors, not other legal purposes.
• Wee vs. Galvez, G.R. No. 147394, 11 August 2004 — Definition of forum shopping applied to admonish petitioners for multiple fora.
• Noceda vs. Court of Appeals, G.R. No. 119730, 2 September 1999 — Cited that mere allegation is not evidence and that partition includes assignment.
• Lapulapu Development and Housing Corporation vs. Group Management Corporation, 437 Phil. 297 (2002) — Applied to bar reopening of final order on auction sale however erroneous.

• Section 4, Rule 69, Rules of Court — Requires commissioners, before partition, to view and examine real estate after due notice and hear parties on preference and comparative value. Applied to find lack of viewing notice a procedural infirmity that did not violate substantive due process where opposition was heard.
• Section 5, Rule 69, Rules of Court — Authorizes assignment to a willing party upon equitable payment, or public sale if requested, when division would prejudice parties' interests. Applied to sustain assignment at commissioner-fixed price due to scattered parcels and differing conditions.
• Section 3, Rule 69, Rules of Court — Directs appointment of not more than three competent and disinterested commissioners when parties fail to agree. Applied to validate appointment of two commissioners after Cesar defaulted on nomination.
• Article 494, New Civil Code — Grants each co-owner the right to demand partition anytime, subject to limited agreements against partition. Applied together with Rule 69 to effect termination of co-ownership.
• Article 495, New Civil Code — Bars physical division when it would render the thing unserviceable for its intended use, referring to Article 498. Applied to support non-division where subdivision would diminish agricultural value and use.
• Article 498, New Civil Code — Provides sale and distribution of proceeds when the thing is essentially indivisible and allotment with indemnity is not agreed. Applied as substantive complement to assignment/sale mechanism.
• Section 1, Rule 9, Rules of Court — Deems unpleaded defenses waived except specified grounds apparent from pleadings or evidence. Applied to hold jurisdiction and cause-of-action objections waived.

Consuelo Ynares-Santiago, Chairperson, Ma. Alicia Austria-Martinez, Antonio Eduardo B. Nachura, and Ruben T. Reyes, Associate Justices, concurred. No separate concurring opinion with additional reasoning appears in the text.