Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license.  According to her, its absence is proof that respondent did not have legal capacity to remarry.

We clarify.  To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned.  The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.^[50]

As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry petitioner.  A review of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit "A" - Complaint;^[51] (b) Exhibit "B" - Certificate of Marriage Between Rederick A. Recio (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;^[52] (c) Exhibit "C" - Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;^[53] (d) Exhibit "D" - Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A. Recio and Editha D. Samson was in its records;^[54] and (e) Exhibit "E" - Certificate of Australian Citizenship of Rederick A. Recio;^[55] (2) for respondent: (a) Exhibit "1" -- Amended Answer;^[56] (b) Exhibit "2" - Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;^[57] (c) Exhibit "3" - Certificate of Australian Citizenship of Rederick A. Recio;^[58] (d) Exhibit "4" - Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;^[59] and Exhibit "5" -- Statutory Declaration of the Legal Separation Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.^[60]

GRACE J. GARCIA, A.K.A. GRACE J. GARCIA-RECIO, PETITIONER,VS. REDERICK A. RECIO, RESPONDENT. THIRD DIVISION[ G.R. No. 138322, October 02, 2001 ]

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven.  Our courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence.

 

certificate of legal capacity to marry

In People v. Jansen,^[124] this Court held that:

…the solemnizing officer is not duty-bound to investigate whether or not a marriage license has been duly and regularly issued by the local civil registrar. All the solemnizing officer needs to know is that the license has been issued by the competent official, and it may be presumed from the issuance of the license that said official has fulfilled the duty to ascertain whether the contracting parties had fulfilled the requirements of law.

However, this Court also said in Sevilla v. Cardenas,^[125] that “the presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty.” The visible superimpositions on the marriage licenses should have alerted the solemnizing judges to the irregularity of the issuance.

It follows also that although Article 21 of the Family Code requires the submission of the certificate from the embassy of the foreign party to the local registrar for acquiring a marriage license, the judges should have been more diligent in reviewing the parties’ documents and qualifications. As noted by the OCA, the absence of the required certificates coupled with the presence of mere affidavits should have aroused suspicion as to the regularity of the marriage license issuance.

The judges’ gross ignorance of the law is also evident when they solemnized marriages under Article 34 of the Family Code without the required qualifications and with the existence of legal impediments such as minority of a party. Marriages of exceptional character such as those made under Article 34 are, doubtless, the exceptions to the rule on the indispensability of the formal requisite of a marriage license.^[126] Under the rules of statutory construction, exceptions as a general rule should be strictly but reasonably construed.^[127]  The affidavits of cohabitation should not be issued and accepted pro forma particularly in view of the settled rulings of the Court on this matter. The five-year period of cohabitation should be one of a perfect union valid under the law but rendered imperfect only by the absence of the marriage contract.^[128] The parties should have been capacitated to marry each other during the entire period and not only at the time of the marriage.^[129]

To elaborate further on the gravity of the acts and omissions of the respondents, the Family Code provides the requisites for a valid marriage:

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a)

Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).

A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)

The absence of a marriage license will clearly render a marriage void ab initio.^[130] The actions of the judges have raised a very alarming issue regarding the validity of the marriages they solemnized since they did not follow the proper procedure or check the required documents and qualifications. In Aranes v. Judge Salvador Occiano,^[131] the Court said that a marriage solemnized without a marriage license is void and the subsequent issuance of the license cannot render valid or add even an iota of validity to the marriage. It is the marriage license that gives the solemnizing officer the authority to solemnize a marriage and the act of solemnizing the marriage without a license constitutes gross ignorance of the law.

As held by this Court in Navarro v. Domagtoy:

The judiciary should be composed of persons who, if not experts are at least proficient in the law they are sworn to apply, more than the ordinary layman. They should be skilled and competent in understanding and applying the law. It is imperative that they be conversant with basic legal principles like the ones involved in the instant case. It is not too much to expect them to know and apply the law intelligently.

 x x x

WHEREFORE, the Court finds respondents:

1. Judge Anatalio S. Necessario, Presiding Judge, Municipal Trial Court in Cities, Branch 2, Cebu City, GUILTY of gross inefficiency or neglect of duty and of gross ignorance of the law and that he be DISMISSED FROM THE SERVICE with forfeiture of his retirement benefits, except leave credits, if any, and that he be disqualified from reinstatement or appointment to any public office, including government-owned or -controlled corporation;
   
2. Judge Gil R. Acosta, Presiding Judge, Municipal Trial Court in Cities, Branch 3, Cebu City, GUILTY of gross inefficiency or neglect of duty and of gross ignorance of the law and that he be DISMISSED FROM THE SERVICE with forfeiture of his retirement benefits, except leave credits, if any, and that he be disqualified from reinstatement or appointment to any public office, including government-owned or -controlled corporation;
   
3. Judge Rosabella M. Tormis, Presiding Judge, Municipal Trial Court in Cities, Branch 4, Cebu City, GUILTY of gross inefficiency or neglect of duty and of gross ignorance of the law and that she would have been DISMISSED FROM THE SERVICE with forfeiture of her retirement benefits, except leave credits, if any, and disqualified from reinstatement or appointment to any public office, including government-owned or -controlled corporation, had she not been previously dismissed from service in A.M. No. MTJ-12-1817 (Formerly A.M. No. 09-2-30-MTCC);
   
4. Judge Edgemelo C. Rosales, Presiding Judge, Municipal Trial Court in Cities, Branch 8, Cebu City, GUILTY of gross inefficiency or neglect of duty and of gross ignorance of the law and that he be DISMISSED FROM THE SERVICE with forfeiture of his retirement benefits, except leave credits, if any, and that he be disqualified from reinstatement or appointment to any public office, including government-owned or -controlled corporation;
   
5. Helen Mongaya, Court Interpreter, Municipal Trial Court in Cities, Branch 4, Cebu City, GUILTY of violating Section 2, Canon I of the Code of Conduct for Court Personnel and that she be DISMISSED FROM THE SERVICE with forfeiture of her retirement benefits, except leave credits, if any, and that she be disqualified from reinstatement or appointment to any public office, including government-owned or -controlled corporation;
   
6. Rhona F. Rodriguez, Administrative Officer I, Office of the Clerk of Court, Regional Trial Court, Cebu City, GUILTY of gross misconduct for Section 2, Canon I of the Code of Conduct for Court Personnel and for inducing Maricel Albater to falsify the application for marriage and that she be DISMISSED FROM THE SERVICE with forfeiture of her retirement benefits, except leave credits, if any, and that she be disqualified from reinstatement or appointment to any public office, including government-owned or -controlled corporation;
   
7. Desiderio S. Aranas, Process Server, Municipal Trial Court in Cities, Branch 3, Cebu City, GUILTY of conduct prejudicial to the best interest of the service and that he be SUSPENDED without pay for a period of six (6) months with a warning that a similar offense shall be dealt with more severely;
   
8. Rebecca Alesna, Court Interpreter, Municipal Trial Court in Cities, Branch 1, Cebu City, GUILTY of conduct prejudicial to the best interest of the service and of violating Section 2(b), Canon III of the Code of Conduct for Court Personnel and that she be SUSPENDED without pay for a period of six (6) months with a warning that a similar offense shall be dealt with more severely;
   
9. Celeste Retuya, Clerk III, Municipal Trial Court in Cities, Branch 6, Cebu City, and Emma Valencia, Stenographer III, Regional Trial Court, Branch 18, Cebu City, GUILTY of conduct prejudicial to the best interest of the service and of violating Section 2(b), Canon III of the Code of Conduct for Court Personnel and that they be ADMONISHED with a warning that a similar offense shall be dealt with more severely;

The complaints against Judge Geraldine Faith A. Econg, Presiding Judge, Regional Trial Court, Branch 9, Cebu City; Corazon P. Retuya, Court Stenographer, Municipal Trial Court in Cities, Branch 6, Cebu City; and Marilou Cabañez, Court Stenographer, Municipal Trial Court in Cities, are DISMISSED for lack of merit.

The case against Judge Rosabella M. Tormis, including the sworn statements of Celerina Plaza and Crisanto dela Cerna, should be REFERRED to the Office of the Bar Confidant for the purpose of initiating disbarment proceedings against the judge.

The Honorable Mayors of Barili, Cebu and Liloan, Cebu, are to be furnished copies of the Supplemental Report dated 14 August 2007 and are ADVISED to conduct an investigation with respect to the statements of Filomena C. Lopez, Civil Registrar of Barili, Cebu, and Bonita I. Pilones, Civil Registrar of Liloan, Cebu, regarding the processing of marriage licenses and to take the necessary action as the findings of the investigation may warrant.

Let a copy of this Decision be included in the respondents’ files that are with the Office of the Bar Confidant and distributed to all courts and to the Integrated Bar of the Philippines.

SO ORDERED.

EN BANC

[ A.M. No. MTJ-07-1691 [Formerly A.M. No. 07-7-04-SC], April 02, 2013 ]

OFFICE OF THE COURT ADMINISTRATOR, PETITIONER, VS. JUDGE ANATALIO S. NECESSARIO, BRANCH 2; JUDGE GIL R. ACOSTA, BRANCH 3; JUDGE ROSABELLA M. TORMIS, BRANCH 4; AND JUDGE EDGEMELO C. ROSALES, BRANCH 8; ALL OF MTCC-CEBU CITY; CELESTE P. RETUYA, CLERK III, MTCC BRANCH 6, CEBU CITY; CORAZON P. RETUYA, COURT STENOGRAPHER, MTCC, BRANCH 6, CEBU CITY; RHONA F. RODRIGUEZ, ADMINISTRATIVE OFFICER I, OFFICE OF THE CLERK OF COURT, REGIONAL TRIAL COURT (RTC) CEBU CITY; EMMA D. VALENCIA, COURT STENOGRAPHER III, RTC, BRANCH 18, CEBU CITY; MARILOU CABANEZ, COURT STENOGRAPHER, MTCC, BRANCH 4, CEBU CITY; DESIDERIO S. ARANAS, PROCESS SERVER, MTCC, BRANCH 3, CEBU CITY; REBECCA ALESNA, COURT INTERPRETER, MTCC, BRANCH 1, CEBU CITY; AND HELEN MONGGAYA, COURT STENOGRAPHER, MTCC, BRANCH 4, CEBU CITY. RESPONDENTS.

not a prejudicial question

In the light of Article 40 of the Family Code, respondent, without first having obtained the judicial declaration of nullity of the first marriage, can not be said to have validly entered into the second marriage. Per current jurisprudence, a marriage though void still needs a judicial declaration of such fact before any party can marry again; otherwise the second marriage will also be void.¹⁹ The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner.²⁰ Against this legal backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. As stated above, respondent cannot be permitted to use his own malfeasance to defeat the criminal action against him.

G.R. No. 138509             July 31, 2000
IMELDA MARBELLA-BOBIS, petitioner,
vs.
ISAGANI D. BOBIS, respondent.

It is not enough that the respondent, alleged to be psychologically incapacitated, had difficulty in complying with his marital obligations, or was unwilling to perform these obligations. Proof of a natal or supervening disabling factor – an adverse integral element in the respondent’s personality structure that effectively incapacitated him from complying with his essential marital obligations – must be shown. Mere difficulty, refusal or neglect in the performance of marital obligations or ill will on the part of the spouse is different from incapacity rooted in some debilitating psychological condition or illness; irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility and the like, do not by themselves warrant a finding of psychological incapacity under Article 36, as the same may only be due to a person’s refusal or unwillingness to assume the essential obligations of marriage.

The only fact established here, which Catalina even admitted in her Answer, was her abandonment of the conjugal home to live with another man. Yet, abandonment was not one of the grounds for the nullity of marriage under the Family Code. It did not also constitute psychological incapacity, it being instead a ground for legal separation under Article 55(10) of the Family Code. On the other hand, her sexual infidelity was not a valid ground for the nullity of marriage under Article 36 of the Family Code, considering that there should be a showing that such marital infidelity was a manifestation of a disordered personality that made her completely unable to discharge the essential obligations of marriage.³³ Needless to state, Eduardo did not adduce such evidence, rendering even his claim of her infidelity bereft of factual and legal basis.

G.R. No. 159594               November 12, 2012
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs. THE HON. COURT OF APPEALS (NINTH DIVISION), AND EDUARDO C. DE QUINTOS, .JR., Respondents.

ELEMENTS OF PSYCHOLOGICAL INCAPACITY

Article 36 of the Family Code governs psychological incapacity as a ground for declaration of nullity of marriage. It provides that "a marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization."

In interpreting this provision, we have repeatedly stressed that psychological incapacity contemplates "downright incapacity or inability to take cognizance of and to assume the basic marital obligations";²¹ not merely the refusal, neglect or difficulty, much less ill will, on the part of the errant spouse.²² 

 The plaintiff bears the burden of proving the

1. juridical antecedence (i.e., the existence at the time of the celebration of marriage), 

2. gravity and 

3.incurability of the condition of the errant spouse.²³

distinction between a resulting trust and a constructive trust

resulting trust n. a trust implied by law (as determined by a court) that a person who holds title or possession was intended by agreement (implied by the circumstances) with the intended owner to hold the property for the intended owner. Thus, the holder is considered a trustee of a resulting trust for the proper owner as beneficiary. Although a legal fiction, the resulting trust forces the holder to honor the intention and prevents unjust enrichment. Example: Mahalia leaves $100,000 with her friend, Albert, while she is on a trip to Europe, asking him "to buy the old Barsallo place if it comes on the market." Albert buys the property, but has title put in his own name, which the court will find is held in a resulting trust for Mahalia.

Distinguish a resulting trust from a constructive trust

 A resulting trust differs from a "constructive trust" which comes about when someone comes into possession by accident, misunderstanding or dishonesty of property belonging to another

What is a resulting trust? Give an example

 Resulting Trust

An arrangement whereby one person holds property for the benefit of another, which is implied by a court in certain cases where a person transfers property to another and gives him or her legal title to it but does not intend him or her to have an equitable or beneficial interest in the property.

Since this beneficial interest is not given to anyone else, it is said to "result" to the person who transferred the property.

A resulting trust arises when an express trust fails. A settlor, one who creates a trust, transfers his property to a trustee, one appointed, or required by law, to execute a trust, to hold in trust for a beneficiary, one who profits from the act of another. If, without the settlor's knowledge, the beneficiary died before the trust was created, the express trust would fail for want of a beneficiary. The trustee holds the property in resulting trust for the settlor.

When an express trust does not use or exhaust all the trust property, a resulting trust arises. For example, the settlor transfers $200,000 in trust to pay the beneficiary during her lifetime $2,000 a month from principal, trust property, as opposed to income generated by investment of the principal. No other disposition is specified. The beneficiary dies after having received $20,000. The trustee holds the unexpended funds in a resulting trust for the settlor.

A purchase money resulting trust arises when one person purchases and pays for property and the name of another person is on the title. For example, a person purchases a farm for $100,000 and directs the seller to make the deed out to a third person. Nothing further appears concerning the purchaser's intention, and no relationship exists between the purchaser and the third person. In this situation, a resulting trust is created. The purchaser's intention is inferred from the absence of expressed intention that she intends the third person to have an interest in the farm. This occurs because a person usually does not intend to dispose of property without receiving something in return for it, unless she makes an express statement to the contrary, such as announcing an intention to make a gift or loan. If the purchaser is the spouse or parent of the third person, which is not the case here, it is presumed that a gift is intended. In this case, the third person holds a purchase money resulting trust for the purchaser.

A purchase money resulting trust does not arise, however, if the person who pays the purchase price manifests an intention that no resulting trust should arise. Purchase money resulting trusts have been abolished or restricted in a number of states.

The resulting trust attempts to dispose of the property in the manner the person who transferred it would have wanted if he had anticipated the situation. The court will order that the person with legal title to the trust property hold it in a resulting trust for the person who transferred it. When a charitable trust—a trust designed for the benefit of a class or the public generally—fails, a resulting trust will be invoked only if the doctrine of Cy Pres is deemed not to apply. This doctrine implements the intention of a person as nearly as possible when giving the intent literal effect would be illegal or impossible.

 WHAT IS A CONSTRUCTIVE TRUST?

 A constructive trust is an equitable remedy resembling a trust imposed by a court to benefit a party that has been wrongfully deprived of its rights due to either a person obtaining or holding legal right to property which they should not possess due to unjust enrichment or interference

In a constructive trust the defendant breaches a duty owed to the plaintiff. The most common such breach is a breach of fiduciary duty. A controversial example is the case of Attorney-General for Hong Kong v Reid,^[3] in which a senior prosecutor took bribes not to prosecute certain offenders. With the bribe money, he purchased property in New Zealand. His employer, the Attorney-General, sought a declaration that the property was held on constructive trust for it, on the basis of breach of fiduciary duty. The Privy Council awarded a constructive trust. The case is different from Regal (Hastings) because there was no interference with a profit-making opportunity that properly belonged to the prosecutor.

This area is highly controversial and may not represent the law in England because of the previous Court of Appeal case of Lister v Stubbs^[4] which held the opposite, partially because a trust is a very strong remedy that gives proprietary rights to the claimant not enjoyed by the defendant's other creditors. In the event of the defendant's insolvency, the trust assets are untouchable by the general creditors. Supporters of Lister v Stubbs suggest that there is no good reason to put the victim of wrongdoing ahead of other creditors of the estate. However, being a Privy Council decision Reid's case did not overrule the decision in Lister v Stubbs, which is still good law in England and Wales, but not in some of its former colonies, such as Australia. There is a tension in English law between Lister and Reid which has been highlighted in the recent cases such as Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd.^[5]

Unjust enrichment

In Chase Manhattan Bank NA v Israel-British Bank (London) Ltd^[7] one bank paid another bank a large sum of money by mistake (note that the recipient Bank did not do anything wrong - it just received money not owed to it). Goulding J held that the money was held on (constructive) trust for the first bank. The reasoning in this case has been doubted, and in Westdeutsche Landesbank Girozentrale v Islington London Borough Council the House of Lords distanced itself from the idea that unjust enrichment raises trusts in the claimant's favour. This remains an area of intense controversy.

These type of trusts are called '"institutional" constructive trusts'. They arise the moment the relevant conduct (breach of duty, unjust enrichment etc.) occurs. They can be contrasted with '"remedial" constructive trusts', which arise on the date of judgment as a remedy awarded by the court to do justice in the particular case.

An example is the Australian case Muschinski v Dodds.^[8] A de facto couple lived in a house owned by the man. They agreed to make improvements to the property by building a pottery shed for the woman to do arts and crafts work in. The woman paid for part of this. They then broke up. The High Court held that the man held the property on constructive trust for himself and the woman in the proportions in which they had contributed to the improvements to the land. This trust did not arise the moment the woman commenced improvements - that conduct did not involve a breach of duty or an unjust enrichment etc. The trust arose at the date of judgment, to do justice in the case.

Remedial constructive trusts do not exist in England and Wales, and the High Court of Australia has also distanced itself from Muschinski v Dodds in the later case of Bathurst City Council v PWC Properties.^[9]

Usefulness of constructive trusts

For example, if the defendant steals $100,000 from the plaintiff and uses that money to buy a house, the court can trace the house back to the plaintiff's money and deem the house to be held in trust for the plaintiff. The defendant must then convey title to the house to the plaintiff, even if rising property values had appreciated the value of the house to $120,000 by the time the transaction occurred. If the value of the house had instead depreciated to $80,000, the plaintiff could demand a remedy at law (money damages equal to the amount stolen) instead of an equitable remedy.

The situation would be different if the defendant had mixed his own property with that of the plaintiff, for example, adding $50,000 of his own money to the $100,000 stolen from the plaintiff and buying a $150,000 house or using plaintiff's $100,000 to add a room to defendant's existing house. The constructive trust would still be available but in proportion to the contributions, not wholly in the claimant's favour. Alternatively, the claimant could elect for an equitable lien instead, which is like a mortgage over the asset to secure repayment.

Because a constructive trust is an equitable device, the defendant can raise all of the available equitable defenses against it, including unclean hands, laches, detrimental reliance, and undue hardship.

sale of whole property made by a co-owner

Petitioners herein filed a case for recovery of property and damages against the defendant and herein private respondent, Celestino Afable.

Rosalia Bailon and Gaudencio Bailon sold a portion of the said land consisting of 16,283 square meters to Donato Delgado. On May 13, 1949, Rosalia Bailon alone sold the remainder of the land consisting of 32,566 square meters to Ponciana V. Aresgado de Lanuza. On the same date, Lanuza acquired from Delgado the 16,283 square meters of land which the latter had earlier acquired from Rosalia and gaudencio. On December 3, 1975, John Lanuza, acting under a special power of attorney given by his wife, Ponciana V. Aresgado de Lanuza, sold the two parcels of land to Celestino Afable, Sr. In all these transfers, it was stated in the deeds of sale that the land was not registered.

Afable claimed that he had acquired the land in question through prescription and contended that the petitioners were guilty of laches.

Issue:

What is the effect of a sale by one or more co-owners of the entire property held in common without the consent of all the co-owners and of the appropriate remedy of the aggrieved co-owners?

Held:

The Court has ruled that even if a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other co-owners who did not consent to the sale. The sale or other disposition affects only what would correspond to his grantor in the partition of the thing owned in common. Consequently, by virtue of the sales made by Rosalia and Gaudencio Bailon which are valid with respect to their proportionate shares, and the subsequent transfers which culminated in the sale to private respondent Celestino Afable thereby became a co-owner of the disputed parcel of land as correctly held by the lower court since the sales produced the effect of substituting the buyers in the enjoyment thereof.

It may be deduced that since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owner is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.

The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property as if it continued to remain in the possession of the co-owners who possessed and administered it.

The action to demand partition is imprescriptible or cannot be barred by laches, absent a clear repudiation of the co-ownership by a co-owner clearly communicated to the other co-owners.