The sister’s revenge

Upeng breathed her last beside the tall and beautiful sunflowers.

Soon thereafter, a notarized Extra Judicial Settlement Among Heirs was executed by and among Upeng’s daughters—Spes, Joy, Eva, and Priscilla—partitioning and adjudicating unto themselves the lot that their mother had left behind.

Though the name of Priscilla appeared on the document, her signature was nowhere affixed.

The Extra Judicial Settlement Among Heirs was published in a newspaper of general circulation for three consecutive weeks.

A year after, an Extra Judicial Settlement Among Heirs with Sale was again executed by and among Spes, Joy, Eva.

Spes, Joy and Eva signed the document and sold their respective shares to May Ann. Once more, Priscilla, whose name appeared on the said document, did not sign the same.

According to Priscilla, she came to know of the Extra Judicial Settlement Among Heirs with Sale only when their family ancestral house built on the subject lot was being demolished. She further claimed that she was totally left in the dark as regards the execution of the first Extra Judicial Settlement Among Heirs.

After knowing of the sale to May Ann, Priscilla sent a letter to the former. Priscilla, in the said letter, informed May Ann that she is exercising her right of legal redemption over the shares her sister sold.

May Ann was simply appalled by the demand. She refused to even talk to Priscilla.

Q: Was Priscilla deemed constructively notified and bound, regardless of her failure to participate therein, by the extrajudicial settlement and partition of estate when the extrajudicial settlement and partition has been duly published?

A: No. The publication of the settlement does not constitute constructive notice to heirs who had no knowledge or did not take part in it because the same was notice after the fact of execution.

The requirement of publication is geared for the protection of creditors and was never intended to deprive heirs of their lawful participation in the decedent’s estate.

In this connection, Priscilla never signed either of the settlement documents, having discovered their existence after their execution and implementation. Following Rule 74 of the Rules of Court, these extrajudicial settlements do not bind Priscilla, and the partition made without their knowledge and consent is invalid insofar as she is concerned.

Q: Will the extrajudicial settlement bind Spes, Joy and Eva?

A: Yes. Spes, Joy and Eva, the heirs who actually participated in the execution of the extrajudicial settlements, which included the sale to May Ann of their pro indiviso shares in the subject property, are bound by the same.

Q: Does Priscilla have the right to redeem the pro indivo shares her sisters sold to May Ann?

A: Yes, Priscilla has the right to redeem said shares pursuant to Article 1088 of the Civil Code.

The right to redeem was never lost because Priscilla was never notified in writing of the actual sale by her co-heirs, Spes, Joy and Eva. Based on the provision, there is a need for written notice to start the period of redemption, thus:

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.

It bears emphasis that the period of one month shall be reckoned from the time that a co-heir is notified in writing by the vendor of the actual sale.

Written notice is indispensable and mandatory, actual knowledge of the sale acquired in some other manner by the redemptioner notwithstanding.

It cannot be counted from the time advance notice is given of an impending or contemplated sale. The law gives the co-heir thirty days from the time written notice of the actual sale within which to make up his or her mind and decide to repurchase or effect the redemption.

Q: What is the purpose of the above-discussed notice?

A: The very purpose of Article 1088 is to keep strangers to the family out of a joint ownership, if, as is often the case, the presence of outsiders be undesirable and the other heir or heirs be willing and in a position to repurchase the share sold.

Q: Who has the responsibility to serve the required written notice?

A: The obligation to serve written notice devolves upon the vendor co-heirs because the latter are in the best position to know the other co-owners who, under the law, must be notified of the sale.

This will remove all uncertainty as to the fact of the sale, its terms and its perfection and validity, and quiet any doubt that the alienation is not definitive. As a result, the party notified need not entertain doubt that the seller may still contest the alienation.

Q: Assuming that May Ann built a structure on the said property, can she recover her expenses on the ground that she is a builder in good faith?

A: No. Good faith consists in the belief of the builder that the land the latter is building on is one’s own without knowledge of any defect or flaw in one’s title.

May Ann derived her title from the Extra Judicial Settlement Among Heirs With Sale.

She was very much aware that not all of the heirs participated therein as it was evident on the face of the document itself. Because the property had not yet been partitioned in accordance with the Rules of Court, no particular portion of the property could have been identified as yet and delineated as the object of the sale.

This is because the alienation made by Spes, Joy and Eva was limited to the portion which may be allotted to them in the division upon the termination of the co-ownership.

Despite this glaring fact, and over the protests of Priscilla, May Ann still constructed improvements on the property. For this reason, her claim of good faith will lack credence. (Source: Cua vs. Vargas, G.R. No. 156536, October 31, 2006)

Ma. Soledad Deriquito-Mawis is currently the Dean for the Lyceum of the Philippines University; president of the Philippines Association of Law Schools; and Senior Partner, Gatchalian Castro & Mawis Law Office