G.R. No.

L-6706 March 29, 1953

ALFREDO JAVIER, petitioner,

vs.
HON. ANTONIO G. LUCERO, Judge of the Court of First Instance of Cavite; SALUD R. ARCA
and ALFREDO JAVIER, JR., respondents.

David F. Barrera for petitioner.

Jacinto, Santillan and Roxas for respondents.

BENGZON, J.:

In an action for alimony (Civil Case No. 5150, Cavite), the respondent judge, after hearing the
parties and their evidence, ordered Alfredo Javier to give a monthly allowance of P60 to his wife
Salud R. Arca and their son Alfredo Javier, Jr.

On April 14, 1953 the husband filed a notice of appeal, and on May 6, 1953, he submitted the appeal
bond and the record on appeal. Meanwhile the wife and the son presented on April 30, 1953 a
motion for "support pendente lite" even pending the final determination of the case on appeal".
Whereupon on May 8, 1953, the judge directed Alfredo Javier to pay the monthly pensions
notwithstanding the pendency of his appeal.

Here comes Alfredo Javier with a petition for certiorari challenging such directive and arguing, in his
own words:

"1. The status of Salud R. Arca as wife of the petitioner is being contested;

"2. Alfredo Javier Jr. is over 21 years old on March 31, 1953 and no longer entitled to be supported;
and

"3. Even granting that Alfredo Javier, Jr. is entitled to support even if over 21 years of age to
complete his education or training for some profession, trade or vocation, the support could not be
paid because the decision is vague or silent on that point.

The facts, as found in the action for support, are these:

On November 19, 1937, plaintiff Salud R. Arca and defendant Alfredo Javier had their
marriage solemnized by Judge Mariano Nable of the Municipal Court of Manila. At the time
of their marriage, they had already begotten a son named Alfredo Javier Junior who was
born on December 2, 1931. Sometime in 1938, defendant Alfredo Javier left for the United
States on board a ship of the United States navy, for it appears that he had joined the United
States Navy since 1927, such at the time of his marriage with plaintiff Salud R. Arca,
defendant Alfredo Javier was already a enlisted man in the United States Navy. Because of
defendant Alfredo Javier's departure for the United States in 1938, his wife Salud R. Arca,
who is from Tanza, Cavite, chose to live with defendant's parents at Naic, Cavite. But for
certain incompatibility of character (frictions having occurred between plaintiff Salud R. Arca
and defendant's folks) plaintiff Salud R. Arca had found it necessary to leave defendant's
parents' abode and transfer her residence to Tanza, Cavite — her native place. Since then
the relation between plaintiff Salud R. Arca and defendant Alfredo Javier become strained
such that on August 13, 1940 defendant Alfredo Javier brought an action for divorce against
plaintiff Salud R. Arca before the Circuit Court of Mobile County, State of Alabama, USA,
docketed as Civil Case No. 14313 of that Court and marked as Exhibit 2 (c) in this case.
Having received a copy of the complaint for divorce on September 23, 1940, plaintiff Salud
R. Arca — answering the complaint — alleged in her answer that she received a copy of the
complaint on September 23, 1940 although she was directed to file her answer thereto on or
before September 13, 1940. In that answer she filed, plaintiff Salud R. Arca averred among
other things that defendant Alfredo Javier was not a resident of Mobile County, State of
Alabama, for the period of twelve months preceding the institution of the complaint, but that
he was a resident of Naic, Cavite, Philippines. Another avernment of interest, which is
essential to relate here, is that under paragraph 5 of her answer to the complaint for divorce,
Salud R. Arca alleged that it was not true that the cause of their separation was desertion on
her part but that if the defendant Alfredo Javier was in the United States at that time and she
was not with him then it was because he was in active duty as an enlisted man of the United
States Navy, as a consequence of which he had to leave for the United States without her.
She further alleged that since his departure from the Philippines for the United States, he
had always supported her and her co-plaintiff Alfredo Javier Junior through allotments made
by the Navy Department of the United States Government. She denied, furthermore, the
allegation that she had abandoned defendant's home at Naic, Cavite, and their separation
was due to physical impossibility for they were separated by about 10,000 miles from each
other. At this juncture, under the Old civil Code, the wife is not bound to live with her
husband if the latter has gone to ultra-marine colonies. Plaintiff Salud R. Arca, in her answer
to the complaint for divorce by defendant Alfredo Javier, prayed that the complaint for
divorce be dismissed. However, notwithstanding Salud R. Arca's averments in her answer,
contesting the jurisdiction of the Circuit Court of Mobile County, State of Alabama, to take
cognizance of the divorce proceeding filed by defendant Alfredo Javier, as shown by her
answer marked Exhibit 2 (d), nevertheless the Circuit Court of Mobile County rendered
judgment decreeing dissolution of the marriage of Salud R. Arca and Alfredo Javier, and
granting the latter a decree of divorce dated April 9, 1941, a certified copy of which is marked
Exhibit 2(f). Thereupon, the evidence discloses that some time in 1946 defendant Alfredo
Javier returned to the Philippines but went back to the United States.

In July, 1941, — that is after securing a divorce from plaintiff Salud R. Arca on April 9, 1941
— defendant Alfredo Javier married Thelma Francis, an American citizen and bought a
house and lot at 248 Brooklyn, New York City. In 1949, Thelma Francis, defendant's
American wife, obtained a divorce from him for reasons not disclosed by the evidence, and
later on, having retired from the United States Navy, defendant Alfredo Javier returned to the
Philippines, armed with two decrees of divorce — one against his first wife Salud R. Arca
and the other against him by his second wife Thelma Francis — issued by the Circuit Court
of Mobile County, State of Alabama, USA, defendant Alfredo Javier married Maria Odvina
before Judge Natividad Almeda-Lopez of the Municipal Court of Manila on April 19, 1950,
marked Exhibit 2 (b).

At the instance of plaintiff Salud R. Arca an information for bigamy was filed by the City fiscal
of manila on July 25, 1950 against defendant Alfredo Javier with the Court of First Instance
of Manila, docketed as Criminal Case No. 13310 and marked Exhibit 2 (a). However,
defendant Alfredo Javier with the Court of First Instance of Manila was acquitted of the
charge of bigamy in a decision rendered by the Court of First Instance of Manila through
Judge Alejandro J. Panlilio, dated August 10, 1951, predicated on the proposition that the
marriage of defendant Alfredo Javier with Maria Odvina was made in all good faith and in the
honest belief that his marriage with plaintiff Salud R. Arca had been legally dissolved by the
decree of divorce obtained by him from the Circuit Court of Mobile County, State of Alabama,
USA, which had the legal effect of dissolving the marital ties between defendant Alfredo
Javier and plaintiff Salud R. Arca. At this juncture, again, it is this Court's opinion that
defendant Alfredo Javier's acquittal in that Criminal Case No. 13310 of the Court of First
 Instance of Manila by Judge Panlilio was due to the fact that the accused had no criminal
intent in contracting a second or subsequent marriage while his first marriage was still
subsisting.

Turning now to the petition for certiorari, we perceive that, as to its first ground the respondent judge
declared in his decision that Alfredo Javier and Salud Arca were married on November 19, 1937
when they had already a natural son named Alfredo Javier Junior, born December 2, 1931, and that,
notwithstanding a decree of divorce which the husband Alfredo obtained in the United States in
1941, their marriage still subsists. Such being the situation, the principle in Francisco vs. Zandueta,
61 Phil., 752 on which petitioner entirely relies is not controlling, inasmuch as the existence of the
married relation and the paternity had been established at least prima facie (cf. Sanchez vs.Zulueta,
68 Phil., 112.) Besides, as respondents point out, this is strictly not alimony pendente lite, under
Rule 63, but execution of judgment pending appeal, under Rule 39. 1

In connection with the second ground of the petition, respondents observe that under the new Civil
Code, article 290 support also includes the education of the person to be supported "until he
complete his education or training for some profession, trade or vocation even beyond the age of
majority" and on the basis of this article support was granted to Alfredo Javier Junior. Said the Court,
"while it is true that plaintiff Alfredo Javier Junior, who was born on December 2, 1931, has reached
the age of majority on December 2, 1952, yet, under the last part of article 290 of the new Civil
Code, support may be given him even beyond the age of majority in order to enable him to complete
his education, for some trade or profession."

Now then, was the order issued in excess of jurisdiction or with grave abuse of discretion? The court
undoubtedly has jurisdiction, inasmuch as it was issued before the record on appeal was submitted.
(Sumulong vs. Imperial, 51 Phil., 251; Syquia vs. Concepcion, 60 Phil., 186). Did the judge abuse his
discretion?

Unquestionably, Alfredo Javier, Jr. is the son of petitioner Alfredo Javier, and if financial assistance
is to be rendered only at the termination of the appeal his education, or the completion thereof,
would be unduly delayed. That is good reason for immediate execution. Petitioner claims that
according to the records Alfredo Javier Jr. "is no longer studying". Yet probably he stopped going to
school due to lack of means, since the petitioner himself admits that his son is just a pre-law
graduate.

But the real grievance of petitioner is contained in the last portion of his pleading, which says, "What
Alfredo Javier now tries to avoid is to support a woman who has desperately tried to put him in jail,
when she accused him of bigamy." Such disgust is easily understandable. But compliance with legal
and contractual duties is not always pleasant.

Under the New Civil Code articles 303 and 921 the wife forfeits her husband's support after "she has
accused (him) of a crime for which the law prescribes imprisonment for six years or more, and the
accusation has been found to be false." Admittedly, he married a third time without the first marriage
having been dissolved; but he was cleared of the bigamy charge for lack of criminal intent, inasmuch
as he believed his divorce obtained in the U.S., had already ended his first marriage to Salud r. Arca.
Such acquittal is no different from an acquittal on reasonable doubt, which in our opinion, and in the
opinion of a member of the code Commission that framed the New Civil code, would not be ground
to forfeit her right to support.2

Of course, the question whether Alfredo Javier's prosecution for bigamy and subsequent acquittal
extinguished his obligation to maintain his complaining spouse will definitely be decided when the
main case (No. 5150) is reviewed on appeal. Other aspects of the issue could then undoubtedly be
the subject of research and elucidation. Nevertheless, we briefly explain our first impressions or
provisional conclusion in the task of examining the alleged misuse by respondent judge of his
prerogatives. It is markworthy that the son has not forfeited his right to support.

As the issues are presently framed, petitioner has failed to sustain the burden of demonstrating the
judge's clear error or grievous mistake in ordering execution of his judgment pending appeal. Costs
against petitioner.
G.R. No. 170829 November 20, 2006

PERLA G. PATRICIO, Petitioner,

vs.
MARCELINO G. DARIO III and THE HONORABLE COURT OF APPEALS, Second
Division, Respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and set aside
the Resolution of the Court of Appeals dated December 9, 20051 in CA-G.R. CV No. 80680, which
dismissed the complaint for partition filed by petitioner for being contrary to law and evidence.

On July 5, 1987, Marcelino V. Dario died intestate. He was survived by his wife, petitioner Perla G.
Patricio and their two sons, Marcelino Marc Dario and private respondent Marcelino G. Dario III.
Among the properties he left was a parcel of land with a residential house and a pre-school building
built thereon situated at 91 Oxford corner Ermin Garcia Streets in Cubao, Quezon City, as evidenced
by Transfer Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City Registry of Deeds,
covering an area of seven hundred fifty five (755) square meters, more or less. 2

On August 10, 1987, petitioner, Marcelino Marc and private respondent, extrajudicially settled the
estate of Marcelino V. Dario. Accordingly, TCT No. RT-30731 (175992) was cancelled and TCT No.
R-213963 was issued in the names of petitioner, private respondent and Marcelino Marc.

Thereafter, petitioner and Marcelino Marc formally advised private respondent of their intention to
partition the subject property and terminate the co-ownership. Private respondent refused to partition
the property hence petitioner and Marcelino Marc instituted an action for partition before the
Regional Trial Court of Quezon City which was docketed as Civil Case No. Q-01-44038 and raffled
to Branch 78.

On October 3, 2002,3 the trial court ordered the partition of the subject property in the following
manner: Perla G. Patricio, 4/6; Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III, 1/6. The
trial court also ordered the sale of the property by public auction wherein all parties concerned may
put up their bids. In case of failure, the subject property should be distributed accordingly in the
aforestated manner.4

Private respondent filed a motion for reconsideration which was denied by the trial court on August
11, 2003, 5hence he appealed before the Court of Appeals, which denied the same on October 19,
2005. However, upon a motion for reconsideration filed by private respondent on December 9, 2005,
the appellate court partially reconsidered the October 19, 2005 Decision. In the now assailed
Resolution, the Court of Appeals dismissed the complaint for partition filed by petitioner and
Marcelino Marc for lack of merit. It held that the family home should continue despite the death of
one or both spouses as long as there is a minor beneficiary thereof. The heirs could not partition the
property unless the court found compelling reasons to rule otherwise. The appellate court also held
that the minor son of private respondent, who is a grandson of spouses Marcelino V. Dario and Perla
G. Patricio, was a minor beneficiary of the family home.6

Hence, the instant petition on the following issues:

 I.

THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN REVERSING ITS

EARLIER DECISION OF OCTOBER 19, 2005 WHICH AFFIRMED IN TOTO THE
DECISION OF THE TRIAL COURT DATED 03 OCTOBER 2002 GRANTING THE
PARTITION AND SALE BY PUBLIC AUCTION OF THE SUBJECT PROPERTY.

II.

COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN

APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154 OF THE FAMILY CODE ON
FAMILY HOME INSTEAD OF ARTICLE 494 IN RELATION TO ARTICLES 495 AND 498 OF
THE NEW CIVIL CODE ON CO-OWNERSHIP.7

The sole issue is whether partition of the family home is proper where one of the co-owners refuse to
accede to such partition on the ground that a minor beneficiary still resides in the said home.

Private respondent claims that the subject property which is the family home duly constituted by
spouses Marcelino and Perla Dario cannot be partitioned while a minor beneficiary is still living
therein namely, his 12-year-old son, who is the grandson of the decedent. He argues that as long as
the minor is living in the family home, the same continues as such until the beneficiary becomes of
age. Private respondent insists that even after the expiration of ten years from the date of death of
Marcelino on July 5, 1987, i.e., even after July 1997, the subject property continues to be considered
as the family home considering that his minor son, Marcelino Lorenzo R. Dario IV, who is a
beneficiary of the said family home, still resides in the premises.

On the other hand, petitioner alleges that the subject property remained as a family home of the
surviving heirs of the late Marcelino V. Dario only up to July 5, 1997, which was the 10th year from
the date of death of the decedent. Petitioner argues that the brothers Marcelino Marc and private
respondent Marcelino III were already of age at the time of the death of their father,8 hence there is
no more minor beneficiary to speak of.

The family home is a sacred symbol of family love and is the repository of cherished memories that
last during one’s lifetime.9 It is the dwelling house where husband and wife, or by an unmarried head
of a family, reside, including the land on which it is situated.10 It is constituted jointly by the husband
and the wife or by an unmarried head of a family.11 The family home is deemed constituted from the
time it is occupied as a family residence. From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues to be such and is exempt from
execution, forced sale or attachment except as hereinafter provided and to the extent of the value
allowed by law.12

The law explicitly provides that occupancy of the family home either by the owner thereof or by "any
of its beneficiaries" must be actual. That which is "actual" is something real, or actually existing, as
opposed to something merely possible, or to something which is presumptive or constructive. Actual
occupancy, however, need not be by the owner of the house specifically. Rather, the property may
be occupied by the "beneficiaries" enumerated in Article 154 of the Family Code, which may include
the in-laws where the family home is constituted jointly by the husband and wife. But the law
definitely excludes maids and overseers. They are not the beneficiaries contemplated by the Code. 13

Article 154 of the Family Code enumerates who are the beneficiaries of a family home: (1) The
husband and wife, or an unmarried person who is the head of a family; and (2) Their parents,
ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate,
who are living in the family home and who depend upon the head of the family for legal support.

To be a beneficiary of the family home, three requisites must concur: (1) they must be among the
relationships enumerated in Art. 154 of the Family Code; (2) they live in the family home; and (3)
they are dependent for legal support upon the head of the family.

Moreover, Article 159 of the Family Code provides that the family home shall continue despite the
death of one or both spouses or of the unmarried head of the family for a period of 10 years or for as
long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds
compelling reasons therefor. This rule shall apply regardless of whoever owns the property or
constituted the family home.

Article 159 of the Family Code applies in situations where death occurs to persons who constituted
the family home. Dr. Arturo M. Tolentino comments on the effect of death of one or both spouses or
1 âwphi1

the unmarried head of a family on the continuing existence of the family home:

Upon the death of the spouses or the unmarried family head who constituted the family home, or of
the spouse who consented to the constitution of his or her separate property as family home, the
property will remain as family home for ten years or for as long as there is a minor beneficiary living
in it. If there is no more beneficiary left at the time of death, we believe the family home will be
dissolved or cease, because there is no more reason for its existence. If there are
beneficiaries who survive living in the family home, it will continue for ten years, unless at the
expiration of the ten years, there is still a minor beneficiary, in which case the family home
continues until that beneficiary becomes of age.

After these periods lapse, the property may be partitioned by the heirs. May the heirs who are
beneficiaries of the family home keep it intact by not partitioning the property after the period
provided by this article? We believe that although the heirs will continue in ownership by not
partitioning the property, it will cease to be a family home.14 (Emphasis supplied)

Prof. Ernesto L. Pineda further explains the import of Art. 159 in this manner:

The family home shall continue to exist despite the death of one or both spouses or of the unmarried
head of the family. Thereafter, the length of its continued existence is dependent upon whether
there is still a minor-beneficiary residing therein. For as long as there is one beneficiary even
if the head of the family or both spouses are already dead, the family home will continue to
exist (Arts. 153, 159). If there is no minor-beneficiary, it will subsist until 10 years and within
this period, the heirs cannot partition the same except when there are compelling reasons
which will justify the partition. This rule applies regardless of whoever owns the property or who
constituted the family home.15 (Emphasis supplied)

The rule in Article 159 of the Family Code may thus be expressed in this wise: If there are
beneficiaries who survive and are living in the family home, it will continue for 10 years, unless at the
expiration of 10 years, there is still a minor beneficiary, in which case the family home continues until
that beneficiary becomes of age.

It may be deduced from the view of Dr. Tolentino that as a general rule, the family home may be
preserved for a minimum of 10 years following the death of the spouses or the unmarried family
head who constituted the family home, or of the spouse who consented to the constitution of his or
her separate property as family home. After 10 years and a minor beneficiary still lives therein, the
family home shall be preserved only until that minor beneficiary reaches the age of majority. The
intention of the law is to safeguard and protect the interests of the minor beneficiary until he reaches
legal age and would now be capable of supporting himself. However, three requisites must concur
before a minor beneficiary is entitled to the benefits of Art. 159: (1) the relationship enumerated in
Art. 154 of the Family Code; (2) they live in the family home, and (3) they are dependent for legal
support upon the head of the family.

Thus, the issue for resolution now is whether Marcelino Lorenzo R. Dario IV, the minor son of private
respondent, can be considered as a beneficiary under Article 154 of the Family Code.

As to the first requisite, the beneficiaries of the family home are: (1) The husband and wife, or an
unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants,
brothers and sisters, whether the relationship be legitimate or illegitimate. The term "descendants"
contemplates all descendants of the person or persons who constituted the family home without
distinction; hence, it must necessarily include the grandchildren and great grandchildren of the
spouses who constitute a family home. Ubi lex non distinguit nec nos distinguire debemos. Where
the law does not distinguish, we should not distinguish. Thus, private respondent’s minor son, who is
also the grandchild of deceased Marcelino V. Dario satisfies the first requisite.

As to the second requisite, minor beneficiaries must be actually living in the family home to avail of
the benefits derived from Art. 159. Marcelino Lorenzo R. Dario IV, also known as Ino, the son of
private respondent and grandson of the decedent Marcelino V. Dario, has been living in the family
home since 1994, or within 10 years from the death of the decedent, hence, he satisfies the second
requisite.

However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot demand support from his
paternal grandmother if he has parents who are capable of supporting him. The liability for legal
support falls primarily on Marcelino Lorenzo R. Dario IV’s parents, especially his father, herein
private respondent who is the head of his immediate family. The law first imposes the obligation of
legal support upon the shoulders of the parents, especially the father, and only in their default is the
obligation imposed on the grandparents.

Marcelino Lorenzo R. Dario IV is dependent on legal support not from his grandmother, but from his
father. Thus, despite residing in the family home and his being a descendant of Marcelino V. Dario,
1âwphi1

Marcelino Lorenzo R. Dario IV cannot be considered as beneficiary contemplated under Article 154
because he did not fulfill the third requisite of being dependent on his grandmother for legal support.
It is his father whom he is dependent on legal support, and who must now establish his own family
home separate and distinct from that of his parents, being of legal age.

Legal support, also known as family support, is that which is provided by law, comprising everything
indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation,
in keeping with the financial capacity of the family.16 Legal support has the following characteristics:
(1) It is personal, based on family ties which bind the obligor and the obligee; (2) It is intransmissible;
(3) It cannot be renounced; (4) It cannot be compromised; (5) It is free from attachment or execution;
(6) It is reciprocal; (7) It is variable in amount.17

Professor Pineda is of the view that grandchildren cannot demand support directly from their
grandparents if they have parents (ascendants of nearest degree) who are capable of supporting
them. This is so because we have to follow the order of support under Art. 199.18 We agree with this
view.

The reasons behind Art. 199 as explained by Pineda and Tolentino: the closer the relationship of the
relatives, the stronger the tie that binds them. Thus, the obligation to support under Art. 199 which
outlines the order of liability for support is imposed first upon the shoulders of the closer relatives
and only in their default is the obligation moved to the next nearer relatives and so on.

There is no showing that private respondent is without means to support his son; neither is there any
evidence to prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for
her grandson’s legal support. On the contrary, herein petitioner filed for the partition of the property
which shows an intention to dissolve the family home, since there is no more reason for its existence
after the 10-year period ended in 1997.

With this finding, there is no legal impediment to partition the subject property.

The law does not encourage co-ownerships among individuals as oftentimes it results in inequitable
situations such as in the instant case. Co-owners should be afforded every available opportunity to
divide their co-owned property to prevent these situations from arising.

As we ruled in Santos v. Santos,19 no co-owner ought to be compelled to stay in a co-ownership

indefinitely, and may insist on partition on the common property at any time. An action to demand
partition is imprescriptible or cannot be barred by laches. Each co-owner may demand at any time
the partition of the common property.20

Since the parties were unable to agree on a partition, the court a quo should have ordered a partition
by commissioners pursuant to Section 3, Rule 69 of the Rules of Court. Not more than three
competent and disinterested persons should be appointed as commissioners to make the partition,
commanding them to set off to the plaintiff and to each party in interest such part and proportion of
the property as the court shall direct.

When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be
divided without great prejudice to the interest of the parties, the court may order it assigned to one of
the parties willing to take the same, provided he pays to the other parties such sum or sums of
money as the commissioners deem equitable, unless one of the parties interested ask that the
property be sold instead of being so assigned, in which case the court shall order the commissioners
to sell the real estate at public sale, and the commissioners shall sell the same accordingly. 21

The partition of the subject property should be made in accordance with the rule embodied in Art.
996 of the Civil Code.22 Under the law of intestate succession, if the widow and legitimate children
survive, the widow has the same share as that of each of the children. However, since only one-half
of the conjugal property which is owned by the decedent is to be allocated to the legal and
compulsory heirs (the other half to be given exclusively to the surviving spouse as her conjugal
share of the property), the widow will have the same share as each of her two surviving children.
Hence, the respective shares of the subject property, based on the law on intestate succession are:
(1) Perla Generosa Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6 and (3) Marcelino G. Dario III, 1/6.

In Vda. de Daffon v. Court of Appeals,23 we held that an action for partition is at once an action for
declaration of co-ownership and for segregation and conveyance of a determinate portion of the
properties involved. If the court after trial should find the existence of co-ownership among the
parties, the court may and should order the partition of the properties in the same action. 24

WHEREFORE, the petition is GRANTED. The Resolution of the Court of Appeals in CA-G.R. CV No.
80680 dated December 9, 2005, is REVERSED and SET ASIDE. The case is REMANDED to the
Regional Trial Court of Quezon City, Branch 78, who is directed to conduct a PARTITION BY
COMMISSIONERS and effect the actual physical partition of the subject property, as well as the
improvements that lie therein, in the following manner: Perla G. Dario, 4/6; Marcelino Marc G. Dario,
1/6 and Marcelino G. Dario III, 1/6. The trial court is DIRECTED to appoint not more than three (3)
competent and disinterested persons, who should determine the technical metes and bounds of the
property and the proper share appertaining to each heir, including the improvements, in accordance
with Rule 69 of the Rules of Court. When it is made to the commissioners that the real estate, or a
portion thereof, cannot be divided without great prejudice to the interest of the parties, the court a
quo may order it assigned to one of the parties willing to take the same, provided he pays to the
other parties such sum or sums of money as the commissioners deem equitable, unless one of the
parties interested ask that the property be sold instead of being so assigned, in which case the court
shall order the commissioners to sell the real estate at public sale, and the commissioners shall sell
the same accordingly, and thereafter distribute the proceeds of the sale appertaining to the just
share of each heir. No pronouncement as to costs.

SO ORDERED.