A seller cannot sell what he does not own

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Persida Acosta

Dear PAO,
My parents are already dead and they left a one-hectare rice land in our province. My brother, King, is tilling the land and he only gives me my share in the harvest every after three months of cropping. Somebody disclosed to me that King had already sold the land to Mr. Ed. I immediately went home to verify the information and I discovered that King executed an affidavit of self-adjudication and sold the entire land to Mr. Ed. Mr. Ed is now occupying the property and he is preventing anybody from entering the land. Can I recover the land sold by King to Mr. Ed? Please help me on this matter.
Arthur

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Dear Arthur,
When your parents died, you and King became the co-owners of the one-hectare rice land left by them. Basic is the rule under Article 493 of the New Civil Code of the Philippines:

“Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.”

In your situation, legally, King alienated only his proportionate share of the land based on succession, not the entire property, as he does not own the whole property. No one can sell what he does not own. King is only entitled to one half (½) share in the property, thus, this is the only portion that he can validly sell to Mr. Ed.

The affidavit of self-adjudication executed by King is considered void because you are a living co-heir. In the case entitled Heirs of Gregorio Lopez vs. Development Bank of the Philippines (G.R. No. 193551, November 19, 2014), the Associate Justice Marvic Mario Victor Leonen stated:

“This is despite Enrique’s execution of the affidavit of self-adjudication wherein he declared himself to be the only surviving heir of Gregoria Lopez. The affidavit of self-adjudication is invalid for the simple reason that it was false. At the time of its execution, Enrique’s siblings were still alive and entitled to the three-fourth undivided share of the property. The affidavit of self-adjudication did not have the effect of vesting upon Enrique ownership or rights to the property.”

Applying the decision in your case, the affidavit of self-adjudication executed by King is false and it did not vest upon him the ownership of the whole property. You can recover your proportionate share in the property sold by King to Mr. Ed by filing the appropriate petition for recovery of property and nullification of self-adjudication, including the contract of sale entered by King and Mr. Ed to the extent that you were deprived.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

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