Vested right

Under Article 130 of the Family Code, the conjugal partnership property shall be liquidated upon termination of marriage by the death of a spouse. If the surviving spouse sells a portion of the conjugal property without prior liquidation, the sale is void. But in this case of the heirs of the spouses Primo and Malou this rule was not applied. Let us find out why.

On February 22, 1976, Primo, who was then already married to Malou, acquired two parcels of land with a total area of 17,140 square meters. In the Deed of Sale however it appeared that the name of the buyer was his son Primo Jr. Nevertheless Primo did not see the immediate need to correct this typographical error. Meanwhile, on November 25, 1987 Malou already died. But their conjugal properties were not yet liquidated and partitioned particularly the 17,140 square meters of land acquired by Primo and erroneously placed in the name of his son Primo Jr. 

It was only on March 29, 1999 or 23 years after Primo acquired the said property, when Primo Jr. finally executed an Affidavit of Renunciation and Waiver wherein he affirmed under oath that it was his father Primo Sr., not he, who had purchased the two parcels of land. Then nine months later, or on December 28, 1999, Primo Sr. and one of his other sons, Roy together with the latter’s wife Rita sold a portion of said property with an area of 5,560 square meters to Emily for the price of P5,686,768.

On March 2, 2001, after Primo Sr had also died, the ten other heirs of Primo and Malou sued Emily and their brother Roy demanding the return of said portion of the property sold and annulment of the sale. They averred that following Primo Jr.’s execution of the Affidavit of Renunciation and Waiver, the property turned out to be really a conjugal partnership property of Primo and Malou, so its sale to Emily without its prior liquidation was null and void pursuant to Article 130 of the Family Code. Were they correct?  

No. While it is true that the Family Code shall also apply to conjugal partnership of gains already established between spouses before its effectivity on August 3, 1988, it shall however be without prejudice to vested rights already acquired in accordance with the Civil Code or other laws (Article 105).

In this case, Primo and Malou were married prior to the effectivity of the Family Code. In fact when Malou died in 1987, the Family Code was also not yet in effect. So their property relation under conjugal partnership of gains was still governed by the Civil Code. Pursuant to Article 175 (1) of the Civil Code, their conjugal partnership was dissolved upon Malou’s death and an implied ordinary co-ownership ensued among Primo and the other heirs of Malou with respect to Malou’s share in the assets of the conjugal partnership pending its liquidation. The ensuing ordinary co-ownership was governed by Article 493 of the Civil Code where each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto and therefore may alienate, assign or mortgage it, and even substitute another person in its enjoyment. But the effect of the alienation with respect to the other co-owners shall be limited to the portion which may be allotted to him in the division upon termination of the co-ownership.

Hence the sale by Primo Sr. and his son Roy as co-owners was not necessarily void for their rights were thereby effectively transferred, making the buyer, Emily, the co-owner substituting for them in Malou’s share of the conjugal property together with the other children. Emily had already acquired a vested right as co-owner which may not be prejudiced by the rules on dissolution of conjugal partnership under the Family Code, particularly Article 130.

So the proper action is not for the nullification of the sale to Emily and the recovery of the 5,560 square meters of land sold by Primo and Roy. The proper recourse of the heirs is an action for Partition under Rule 69 of the Revised Rules of Court. In the meanwhile Emily would only be a trustee for the benefit of the co-heirs of her vendors Primo and Roy in respect of any portion that might not be validly sold to her which can be determined only when the liquidation or partition is over. If it turns out upon liquidation that the 5,568 square meters sold to her is more that the portions allotted to Primo and Roy, then Emily should return the excess. The heirs shall not be barred by prescription or laches. This is the ruling in the case of “The heirs of Protacio Go Sr. and Marta Barola vs. Servacio, G.R. 157537, September 7, 2011, 657 SCRA, 10).

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