PARTITION, GENERALLY

> Partition is the separation, division, and assignment of a thing held in common among those to whom it may belong

> Every act which is intended to put an end to an indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, exchange, a compromise or any other transaction

> The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated

> When the title comprises of two or more pieces of land which has been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more coheirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title.

> In an action for partition, there should be simultaneous presentment of two issues—
o There is the issue of whether the plaintiff is indeed a co-owner of the property sought to be partitioned
o Assuming that the plaintiff successfully hurdles the first issue, there is the secondary issue of how the property is to be divided between the plaintiff and the defendants.

JUDICIAL PARTITION

> An action for partition for real property is a judicial controversy between persons who being co-owners seek to secure division or partition among them of the common property, giving to each one the part corresponding to him

> A person having the right to compel the partition of real estate may do so by setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property

> If the court after trial finds that the plaintiff has a right thereto, it shall order the partition of the real estate among all the parties in interest.

> Thereupon, the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed by all of the parties, and such partition, together with the orde3r of the court confirming the same, shall be recorded in the RD of the place in which the property is situated

> If actual partition is made, the judgment shall state definitely by metes and bounds and adequate description, the particular portion of the real assigned to each party, and the effect of the judgment shall be to vest in each party and the severalty the portion of the real estate assigned to him

EXTRAJUDICIAL PARTITION

> The parties may without having letters of authorization, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the RD and should they disagree, they may do so in an ordinary action for partition

> If there be only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed with the office of the Register of Deeds

> Filing of a bond is a condition precedent to the filing of the public instrument

ORAL PARTITION

> This practice has been found to be not only convenient and inexpensive, but even advisable, and is accepted by people and we find no good reason for disturbing said good practice

> Now, when valuable properties especially those covered by certificates of title, perhaps strict compliance with the law may be advisable even necessary

STATUTE OF FRAUDS INAPPLICABLE

> Partition among heirs or renunciation of an inheritance by any of them is not covered by the Statute of Frauds

EXCEPTION THE GENERAL RULE OF INPRESCRIPTIBILITY OF AN ACTION FOR PARTITION

> Imprescriptibility cannot be invoked when one of the co-owners of a property has possessed the property as exclusive owner and for a period sufficient to acquire it by prescription

STAGES IN PARTITION

> Determination of whether or not a co-ownership in fact exists and a partition is proper, that is, it is not otherwise legally proscribed and may be made by voluntary agreement of all the parties interested in the property

> Second stage is when the parties are unable to agree upon the partition ordered by the court. In that event, the partition shall be effected for the parties by the court with the assistance of not more than 3 commissioners. The second stage may also deal with the rendition of the accounting itself and its approval by the Court after the parties have been accorded the opportunity to be heard thereon, and the award for the recovery by the parties entitled of
their just shares in the rents and profits of the real estate in question. Such an order is to be sure also final and appealable.

PROOF OF PARTITION

> Partition may be inferred from circumstances sufficiently strong to support the presumption

> Recitals in deeds, possession and occupation of the land, improvements made thereon for a long series of years, and acquiescence of 60 years, furnish sufficient evidence that there was an actual partition of land either by deed or by proceedings in the probate court, which has been lost and not recorded.

> And where a tract of land has long been known and called by the name of one of the tenants in common, and there is no evidence of any subsequent claim of tenancy in common, it may be fairly inferred that there has been a partition and that such lot was set-off to him whose name it bears

FINALITY OF JUDGMENT; EXECUTION

> Judgment ordering partition with damages is final and duly appeallable, notwithstanding the fact that further proceedings will still have to take place in the trial court.

> Execution thereof becomes a matter of right on the part of the plaintiffs and is a mandatory and ministerial duty on the part of the court

> Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the judgment debtor need not be given advance notice of the application for execution nor be afforded prior hearings thereon

> Failure to serve a copy for the motion for execution is not a fatal defect. In fact, there is no necessity for such service.

PURPOSE OF REGISTRATION

> Notify and protect the interests of strangers to a given transaction, who may be ignorant thereof, but the nonregistration of the deed evidencing such transaction doesn’t relieve the parties thereto of their obligations thereunder.

> As originally conceived, registration is merely a species of notice. The act of registering a document is never necessary in order to give it legal effect as between the parties.

> Requirements for the recording of an instruments are designed to prevent frauds and to permit and require the public to act with the presumption that recorded instruments exist and are genuine

Section 81. Judgment of partition. In proceedings for partition of registered land, after the entry of the final judgment of partition, a copy of such final judgment, certified by the clerk of the court rendering the same, shall be filed and registered; thereupon, if the land is set of to the owners in severalty, each owner shall be entitled to have his certificate entered showing the share set off to him in severalty, and to receive an owner's duplicate thereof. If the land is ordered by the court to be sold, the purchaser or his assigns shall be entitled to certificate of title entered in his or their favor upon presenting a certified copy of the judgment confirming the sale.

In case the land is ordered by the court to be assigned to one of the parties upon payment to the others of the sum ordered by the court, the party to whom the land is thus assigned shall be entitled to have a certificate of title entered in his favor upon presenting a certified copy of the judgment: Provided, however, that any new certificate entered in pursuance of partition proceedings, whether by way of set-off or of assignment or of sale, shall contain a reference memorandum to the final judgment of partition, and shall be conclusive as to the title to the same extent and against the same persons as such judgment is made conclusive by the laws applicable thereto: and provided, further, that any person holding such certificate of title or a transfer thereof shall have the right to petition the court at any time to cancel the memorandum relating to such judgment or order and the court, after notice and hearing, may grant the petition. Such certificate shall thereafter be conclusive in the same manner and to the same extent as other certificates of title.