60. Confesor vs.

Pelayo Petitioners interposed the defense that they were the absolute and
exclusive owners of the entire land and, consequently, objected to the
VOL. 1, MARCH 27, 1961 817 requested partition. After trial, the court rejected petitioners' claim of
Confesor vs. Pelayo exclusive ownership and, accordingly, ordered that the land be divided into
No. L-14352. March 27, 1961. two equal parts, one part to belong to respondents and the other part to
DOROTEA CONFESOR, ET AL., petitioners, vs. HON. PANTALEON petitioners. Since the order is interlocutory and not subject to appeal, the
PELAYO, ET AL., respondents. court proceeded forthwith to appoint a commissioner charged with the task of
Partition; Purpose;  Severance of the individual interest of each joint effecting the partition of the land. The commissioner submitted two plans
owner.—The purpose of partition is to put an end to the common tenancy of which he identified as Plan No. 1 and Plan No. 2. Plan No. 1 is the
the land or coownership. It seeks a severance of the individual interest of subdivision scheme proposed by respondents while Plan No. 2 is the plan
each joint owner vesting in each a sole estate in specif ic property and giving proposed by petitioners. Both plans would give respondents the same area
to each one the right to enjoy his estate without supervision or interference as petitioners, but the latter would want to give to respondents Lot No. 2 in
from the others. Plan No. 2, giving to themselves Lot No. 1. The trial court resolved the
Same;  Judgment; Execution;  Execution of judgment in partition case. dispute stating: "Lot No. 1 is hereby adjudicated to plaintiffs (re-
—It is in accordance with good sense and propriety that, even in the absence 819
of a special pronouncement as regards the delivery of the respective shares VOL. 1, MARCH 27, 1961 819
allotted to each coowner, an execution may be issued to effect such delivery Confesor vs. Pelayo
in order to carry into full effect the judgment of partition. It would be illusory spondents herein) who may in turn divide it by and among themselves. Lot
and absurd to have a partition if the same could not be carried out. The No. 2 is hereby adjudicated to defendants (petitioners herein) who may
delivery is a necessary and indispensable incident to carry into effect the likewise divide it by aM among themselves."
purpose of partition. Petitioners took the case to the Court of Appeals which in due time
Same;  Duty of commissioner effecting partition.—One of the duties of affirmed in toto the ruling of the trial court. This decision having become final,
the commissioner in effecting a partition is to take into account the cost or the trial court, upon petition of respondents, issued a writ of execution
value of the improvements on the property subject of the partition. It is ordering respondents to be placed in possession of the portion of land
presumed that the commis- adjudicated to them in the partition. To this order petitioners interposed a
818 vigorous objection contending that since in the dispositive part of the decision
  of both the trial court as well as of the Court of Appeals nothing is provided
818 SUPREME COURT REPORTS ANNOTATED that respondents were to be placed in possession of the lot adjudicated to
Confesor vs. Pelayo them the court could not amend the same by adding thereto a new matter as
sioner has done his duty in weighing the equities of both parties as was done by the trial court. Moreover, petitioners have a house of strong
prescribed in Section 4, Rule 71 (now Rule 69) of the Rules of Court. materials built on the lot adjudicated to respondents as well as other
Costs.—The payment of costs rests in the discretion of the court. In a improvements in the form of crops of which they cannot be deprived without
partition case, costs were properly awarded against the defeated party who the corresponding indemnity. The trial court having denied the petition for
had opposed the action for partition, which was sustained by the court. reconsideration, petitioners interposed the present petition for certiorari.
ORIGINAL ACTION in the Supreme Court. Certiorari and prohibition with In ordering respondents to be placed in possession of the lot adjudicated
preliminary injunction. to them even if the decision is silent in this respect, the trial court made the
The facts are stated in the opinion of the Court. following comment:
     Corazon Miraflores and Efrain B. Trinas for petitioners. "The court believes that the opposition is without merit. This action is a
     Pantaleon Pelayo and M. P. Zamora for respondents. special civil action for partition as prescribed by Rule 71 of the Rules of
BAUTISTA ANGELO, J.: Court. There is nothing in the said Rule from which we can infer that after the
On March 29, 1952, Deogracias Umadhay, et al., respondents herein, filed approval by the court of the report of the commissioner another action should
an action for partition in the Court of First Instance of Iloilo praying that a be maintained for the delivery to plaintiffs of the portion of the property that
parcel of land known as Lot No. 3570 of the Cadastral Survey of Sta. has been allotted to them. The case cited by defendants is not in point
Barbara, Iloilo, be partitioned between them and the heirs of Juan Hingco, because the same was not an action for partition. Apparently it was an action
petitioners herein, in the proportion of one-half each. for declaration of ownership. After the approval by the court of the partition
made by the commissioner, each party is entitled to the possession of the
portion assigned to him in the instrument of partition without the further carried out. The delivery Is a necessary and indispensable incident to carry
necessity of instituting another action for possession. When the partition was into effect the purpose of partition.
made by the commissioner as ordered by the court and pursuant to Section True it is that, as petitioners now contend, there are
3, Rule 71 of the Rules of Court, said commissioner had taken into account 821
the improvements existing on the prop VOL. 1, MARCH 27, 1961 821
820 Confesor vs. Pelayo
820 SUPREME COURT REPORTS ANNOTATED some improvements on the lot allotted in the partition to respondents
Confesor vs. Pelayo consisting of a house of strong materials and some standing crop belonging
erty to be partitioned. Before making the partition, the commissioner .had to petitioners, but their costs or value must have already been taken into
complied with the provisions of Section 4, Rule 71 of the Rules of Court account by the commissioner in effecting the partition. In fact this is one of
which says that: the duties of the commissioner. Thus, the rule provides that "In making the
'x x x In making the partition, the commissioners shall view and -examine the partition, the commissioners shall view and examine the real estate, after due
real estate, after due notice to the parties to attend at such view and notice to the parties to attend at such view and examination, and shall hear
examination, and shall hear tbE parties -as to their preference in the portion the parties as to their preference in the portion of the property to be set apart
of the property to be set apart to them and the comparative value thereof, to them and the comparative value thereof, and shall set apart the same to
and shall set apart the same to the several parties in such lots or parcels as the several parties in such lots or parcels as will be most advantageous and
will be most advantageous and equitable, having due regard to the equitable, have due regard to the improvements, situation and quality of the
improvements, situation and quality of the different parts thereof.' " different parts thereof" It is presumed that the commissioner has done his
We find the foregoing comment correct. The original action of this case is duty in weighing the equities of both parties as prescribed in this rule. As
one of partition. It is the purpose of partition to put an end to the common properly observed by the Court of Appeals with regard to the improvements
tenancy of the land or co-ownership. It seeks a severance of the individual claimed by petitioners: "The latter plan is more in consonance with. equity
interest of each joint owners vesting in each a sole estate in specific property and justice, calculated to give both lots equal values and utilities.
and giving to each one the right to enjoy his estate without sHpervisicm or Furthermore, three houses claimed by the appellants (now petitioners) are
interference from the other. The judgment of the trial court ordering the located in Lot No. 2, Plan No. 1 which was adjudicated by the court below to
partition of the property, as affirmed by the Court of Appeals, seeks to the appellants."
accomplish this very purpose. Said judgment effects to convey to and vest in With regard to the costs included in the writ of execution, we find nothing
each party to the action the portion of the estate assigned to him. This Is in improper it appearing that the decision awards costs to respondents. The
accord with Section 11, Rule 71, of the Rules of Court, which provides: payment of costs rests upon the discretion of the court, and here the same
"If actual partition of the property is made, the judgment shall state definitely, was properly awarded considering that the defeated party had opposed the
by metes and bounds and adequate description, the particular portion of the action for partition.
real estate assigned to each party, and the effect of the judgment shall be to In conclusion, we find that the trial court did not abuse its discretion in
vest in each party to the action in severalty the portion of the real estate to issuing the order now disputed by petitioners.
him. x x x" (It alics supplied) WHEREFORE, petition is denied, with costs against petitioners.
It would, therefore, be in accordance wife good sense and propriety that even      Bengzon, Actg. C.J.,  Concepcion, Reyes,
in the absence of a special pronouncement as regards the delivery of the J.B.L., Barrera,  Paredes and Dizon, JJ., concur.
respective shares allotted to each co-owner an execution be issued to effect      Padilla, J., concurs in the result.
such delivery in order to carry into fall effect the judgment of partition. Indeed,      Labrador, J., reserves his vote.
it would be illusory and absurd to have a partition if the same could not be Petition denied.