Non v. CA
G.R. No. 137287 February 15, 2000
Spouses Julian and Virginia Viado owned several pieces of property, among them was the disputed property. Virginia died on 20 October 1982. Julian C. Viado died three years later on 15 November 1985.
Petitioners and respondents shared, since 1977, a common residence at the Isarog property. However, tension would appear to have escalated between petitioner Rebecca Viado and respondent Alicia Viado (wife of Nilo Viado) after the former had asked that the property be equally divided between the two families. Respondents, forthwith, claimed absolute ownership over the entire property and demanded that petitioners vacate the portion occupied by the latter. Hence, petitioners, asserting co-ownership over the property in question, filed a case for partition before the RTC.
Respondents predicated their claim of absolute ownership over the subject property on two documents — a deed of donation executed by the late Julian covering his one-half conjugal share of the Isarog property in favor of Nilo and a deed of extrajudicial settlement in which Julian Viado, Leah Viado Jacobs and petitioner Rebecca waived in favor of Nilo their rights and interests over their share of the property inherited from Virginia. Both instruments were executed on 26 August 1983 and registered on 07 January 1988 by virtue of which TCT No.373646 was issued to the heirs of Nilo Viado.
Petitioners, in their action for partition, attacked the validity of the foregoing instruments, contending that the late Nilo employed forgery and undue influence to coerce Julian to execute the deed of donation. Petitioner Rebecca, in her particular case, averred that her brother Nilo employed fraud to procure her signature to the deed of extrajudicial settlement. She added that the exclusion of her retardate sister, Delia, in the extrajudicial settlement, resulted in the latter’s preterition that should warrant its annulment. Finally, petitioners asseverated that the assailed instruments, although executed on 23 August 1983, were registered only five years later, on 07 January 1988, when the three parties thereto, namely, Julian, Nilo and Leah had already died.
The RTC then found for respondents and adjudged Alicia Viado and her children as being the true owners of the disputed property. The CA affirmed with modification by ordering the remand of the records of the case to the court a quo for further proceedings to determine the value of the property and the amount respondents should pay to petitioner Delia for having been preterited in the deed of extrajudicial settlement.
ISSUE: WON the partition should be rescinded due to the preterition of Delia as an heir.
NO. The exclusion of petitioner Delia, alleged to be a retardate, from the deed of extrajudicial settlement verily has had the effect of preterition. This kind of preterition, however, in the absence of proof of fraud and bad faith, does not justify a collateral attack on TCT No. 373646. The relief, as so correctly pointed out by the CA, instead rests on Article 1104 of the Civil Code to the effect that where the preterition is not
attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her. The appellate court has thus acted properly in ordering the remand of the case for further proceedings to make the proper valuation of the Isarog property and ascertainment of the amount due petitioner Delia Viado.
