Doctrine
A co-owner has the right to alienate his pro indiviso share in the co-owned property even without the consent of the other co-owners. But such alienation is limited only to the portion which may be allotted to him in the division upon the termination of the co-ownership under the principle of nemo dat quod non habet (No one can give what he does not have).
Facts
Julian and Marcela died, leaving nine children, including Isidoro. The heirs executed a “Partihan at Bilihan nang Kalahating Bahagi ng Lupang Tirahan sa Labas ng Hukuman,” and sold half of the subject property to Anastacio. The remaining quarter was occupied by Vitaliano’s children, namely, the petitioner and Fermin, while the other quarter was sold by Isidoro to respondent Spouses Garcia. Thereafter, respondent Spouses Garcia filed an ejectment case against Fermin for the ¼ of the subject property. Petitioner filed a complaint for recovery of ownership, quieting of title and annulment of deed of sale against the spouses Garcia alleging that the Deed of Sale is void since Isidoro is not the true and real owner of the subject property which originally belongs to Julian’s estate. On the other hand, Spouses Garcia argued that the heirs had already agreed to divide the property among themselves when they allowed a portion of the property to be occupied by the heirs of Vitaliano.
ISSUE: Whether or not Isidoro, as co-heir, can alienate his pro indiviso share of the co-owned property.
Ruling
Yes. It is undisputed that the subject property belongs to Julian and that upon the demise of Julian and his wife Marcela, the heirs executed a Partihan at Bilihan nang Kalahating Bahagi ng Lupang Tirahan sa Labas ng Hukuman, which sold half of the subject property to their co-heir Anastacio. As to the remaining half of the subject property, the same remains in the estate of Julian and Marcela.
Nonetheless, a co-owner may alienate an inchoate portion of the subject property that belongs to him or her. Article 493 of the Civil Code provides for the rights of co-owners over co-owned property. Thus, Isidoro, as one of Julian and Marcela’s heirs, has the right to alienate his pro indiviso share in the co-owned property even without the consent of the other co-heirs.
However, as a mere part owner, he cannot alienate the shares of the other co-owners. Nemo dat quod non habet. No one can give what he does not have. Hence, as correctly ruled by the courts a quo, Isidoro’s sale of the remaining half of the subject property will only affect his own share but not those of the other co-owners who did not consent to the sale. The spouses Garcia will only get Isidoro’s undivided share in the subject property.
However, Reynaldo Reyes’ recourse should have been a division of the common property. To demand a partition or division of the common property is in accord with Article 494 of the Civil Code, that is, no co-owner shall be obliged to remain in the co-ownership and that each co-owner may demand at any time partition of the thing owned in common insofar as his or her share is concerned. The spouses Garcia, as co-owners of the 231.5 sqm subject property by virtue of the deed of sale dated August 16, 1989, executed by Isidoro in their favor, cannot claim a specific portion of the subject property before its partition. With the subsistence of co-ownership, the spouses Garcia only own Isidoro’s undivided aliquot share of the subject property. The spouses Garcia and all the co-owners cannot adjudicate to himself or herself title to any definite portion of the subject property until its actual partition by agreement or judicial decree.