The widower’s right

In 1951, spouses Tacio and Flor bought a real property, consisting of a one-half undivided portion over an 18,164-sqm parcel of land. The sale was annotated on the Original Certificate of Title 123 covering the subject property.

During his lifetime, Tacio borrowed money from spouses Gene and Elen. In 1978 or 10 years after Flor’s death, Tacio sold his interest over the land to the spouses Gene and Elen to answer for his debts. The sale to Gene and Elen was annotated at the OCT of the subject property. In 1986, Tacio died.

In 1995, the sale of Tacio’s interest was registered under Transfer Certificate of Title (TCT) No. 678 and transferred the entire one-half undivided portion of the land to the spouses Gene and Elen.

Mel, one of the children of Tacio and Flor, learned of the transfer and filed a Complaint for Annulment of Title and Recovery of Ownership (Complaint) against the spouses Gene and Elen. Mel claims that Tacio gave the subject property to Gene and Elen to serve only as collateral for the money that Tacio borrowed. Tacio could not have validly sold the interest over the subject property without Flor’s consent, as Flor was already dead at the time of the sale.

Q: What was the property regime that governed the property relations of Tacio and Flor?

A: There is no dispute that Tacio and Flor married before the Family Code’s effectivity on August 3, 1988 and their property relation is a conjugal partnership. However, the conjugal partnership of Tacio and Flor was dissolved when Flor died in 1968, pursuant to Article 175 (1) of the Civil Code (now Article 126 (1) of the Family Code).

Article 130 of the Family Code requires the liquidation of the conjugal partnership upon death of a spouse and prohibits any disposition or encumbrance of the conjugal property prior to the conjugal partnership liquidation. Thus, Article 130 provides that “(u)pon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.”

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extrajudicially within one year from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.

While Article 130 of the Family Code provides that any disposition involving the conjugal property without prior liquidation of the partnership shall be void, this rule does not apply since the provisions of the Family Code shall be “without prejudice to vested rights already acquired in accordance with the Civil Code or other laws.”

Q: What is the effect of the death of Flor on the said property regime, if any?

A: The properties of a dissolved conjugal partnership fall under the regime of co-ownership among the surviving spouse and the heirs of the deceased spouse until final liquidation and partition. The surviving spouse, however, has an actual and vested one-half undivided share of the properties, which does not consist of determinate and segregated properties until liquidation and partition of the conjugal partnership.

Thus, an implied ordinary co-ownership ensued among Flor’s surviving heirs, including Tacio, with respect to Flor’s share of the conjugal partnership until final liquidation and partition. Tacio, on the other hand, owns one-half of the original conjugal partnership properties as his share, but this is an undivided interest.

Article 493 of the Civil Code on co-ownership provides that “(e)ach co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.”

Thus, Tacio, as co-owner, cannot claim title to any specific portion of the conjugal properties without an actual partition being first done either by agreement or by judicial decree. Nonetheless, Tacio had the right to freely sell and dispose of his undivided interest in the subject property.

Q: Did Tacio have the right to sell his undivided interest?

A: Yes. Tacio, as a co-owner, had the right to freely sell and dispose of his undivided interest, but not the interest of his co-owners. Consequently, Tacio’s sale to the spouses Gene and Elen without the consent of the other co-owners was not totally void, for Tacio’s rights or a portion thereof were thereby effectively transferred, making Gene and Elen a co-owner of the subject property to the extent of Tacio’s interest. This result conforms with the well-established principle that the binding force of a contract must be recognized as far as it is legally possible to do.

Gene and Elen would be a trustee for the benefit of the co-heirs of Tacio in respect of any portion that might belong to the co-heirs after liquidation and partition. Thus, it has been held that if it turns out that the property alienated or mortgaged really would pertain to the share of the surviving spouse, then said transaction is valid. If it turns out that there really would be, after liquidation, no more conjugal assets then the whole transaction is null and void.

But if it turns out that half of the property thus alienated or mortgaged belongs to the husband as his share in the conjugal partnership, and half should go to the estate of the wife, then that corresponding to the husband is valid, and that corresponding to the other is not. Since all these can be determined only at the time the liquidation is over, it follows logically that a disposal made by the surviving spouse is not void ab initio.

Thus, it has been held that the sale of conjugal properties cannot be made by the surviving spouse without the legal requirements. The sale is void as to the share of the deceased spouse (except of course as to that portion of the husband’s share inherited by her as the surviving spouse). The buyers of the property that could not be validly sold become trustees of said portion for the benefit of the husband’s other heirs, the cestui que trust. Said heirs shall not be barred by prescription or by laches.

Q: What is the recourse of Mel as co-owner?

A: Mel’s recourse where his consent, as a co-owner, was not secured in a sale of the entire property as well as in a sale merely of the undivided shares of some of the co-owners is an action for partition under Rule 69 of the Revised Rules of Court. (Source: Domingo vs. Molina, G.R. No. 200274, April 20, 2016)Ma. Soledad Deriquito-Mawis is Dean, College of Law at the Lyceum of the Philippines University; Trustee at Large of Philippine Association of Law Schools; and founder of Mawis Law Office