VII. MATERIALES Y MÉTODOS
5. CONSTRUCCIÓN DE PLÁSMIDOS
5.2. Construcción de plásmidos para el ensamblaje del clon
JUDGMENT
Q: What are the instances when the courts cannot render deficiency judgment?
A: When the:
1. Case is covered by the Recto Law (Art. 1484, NCC);
2. Mortgagor is a non-resident and is not found in the Philippines, unless there is attachment;
3. Mortgagor dies, the mortgagee may file his claim with the probate court under Sec. 7, Rule 86; and
4. Mortgagee is a third person but not solidarily liable with the debtor.
If the mortgagee holds a chattel mortgage, he will have to foreclose it under the provisions of the Chattel Mortgage Law via an extra-judicial foreclosure of chattel mortgage. The problem of the mortgagee in a chattel mortgage is similar to that of a mortgagee in a real estate
mortgage. In mortgage
arrangements, the collateral is usually left to the possession of the mortgagor. In real estate mortgage, mortgagor continues to be in possession of the real property. In a chattel mortgage, chattel is retained by mortgagor.
(If mortgagor loses possession of the personal property, the contract will not remain a contract of mortgage, but one of pledge.) With respect to real estate mortgage, the possession of the collateral by debtor does not give much of a problem.
Mortgagee, if he is the highest bidder, can ask for writ of possession after the auction sale.
The problem by the mortgagee in a chattel mortgage is that the personal property must be in his possession before he can extra-judicially sell the chattel subject to the mortgage. Mortgagees in a chattel mortgage usually resort to court action by filing a complaint for replevin and avail of the provisional remedy of a warrant of seizure or a writ of replevin.
The court can grant the provisional remedy even before the mortgagor files an answer. Once the mortgagee gains possession of the chattel, he can proceed with the process of extra-judicial foreclosure of a chattel mortgage.
PARTITION
It is a special civil action which could involve both personal and real properties unlike judicial foreclosure.
A complaint for partition is predicated on the theory that plaintiff and defendant are co-owners of the properties subject of litigation. The basis of a complaint of partition is that the plaintiff is allegedly a co-owner of the property together with other co-owners who are impleaded as defendants. What is essential in the complaint is that ALL co-owners of the plaintiff must be impleaded in the case as defendants.
Q: What is partition?
A: It is a process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property. It presupposes the existence of a co-ownership over a property between two or more persons. The rule allowing partition originates from a well-known principle embodied in the Civil Code, that no co-owner shall be obliged to remain the co-ownership. Because of this rule, he may demand at any time the partition of the property owned in common (Art. 494).
Note: It is commenced by a complaint. (Sec.1, Rule 69) Q: What are the requisites of a valid partition?
A:
1. Right to compel the partition;
2. Complaint must state the nature and extent of plaintiff's title and a description of the real estate of which partition is demanded; and
3. All other persons interested in the property must be joined as defendants (Sec. 1, Rule 69) Who may file and who should be made defendants?
A: The action shall be brought by the person who has a right to compel the partition of real estate (Sec. 1, Rule 69) or of an estate composed of personal property, or both real and personal property (Sec. 13, Rule 69). The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to be partitioned. The defendants are all the co-owners.
SC said that all co-owners are indispensable parties. Even if one is left out, the judgment of partition will never become final and executory. So, all of the co-owners MUST be impleaded.
Q: What is the effect of non-inclusion of a co-owner in an action for partition?
A:
1. Before judgment – not a ground for a motion to dismiss.
The remedy is to file a motion to include the party.
2. After judgment – makes the judgment therein void because co-owners are indispensable parties.
Note: Creditors or assignees of co-owners may intervene and object to a partition affected without their concurrence. But they cannot impugn a partition already executed unless there has been fraud or in case it was made notwithstanding a formal opposition presented to prevent it. (Sec. 12, Rule 69)
Can co-owners agree among themselves to partition without going to court?
Yes. If they were able to agree among themselves, then they do not need to go to court anymore.
The only time they go to court is the time when they cannot agree in the partition. But even if they cannot agree at the start, and therefor there is now a complaint for partition now filed in court, during the pendency of the case, they can file agree voluntarily on how to partition that property.
And if they want, they can submit the agreement of partition to the court. If the court approves the agreement of partition, that will be a decision
on the merits by the court. It is a partition in the form of a compromise agreement duly approved by the court. So even during the pendency of the case, there nothing to prevent the plaintiff and the defendants from entering voluntarily into a voluntary partition. They may not allow the court to decide how the property will be divided.
But if the parties insist in partition to be done by the court, it will involve a 2-stage proceeding.
Partition is a two-stage proceeding.
First proceeding – the court will issue an order for partition, Second proceeding –the court may appoint commissioners to determine how the property will be divided among the co-owners.
There could be a third stage if there is no agreement on the system of accounting for the properties; the court will order the co-owner who has been managing the property to submit his accounting to the court for its approval, but he furnishes a copy to show how he has spent the income and how he has kept the income as a fund for the preservation of the property.
What are the two aspects of partition proceedings?
A:
1. Existence of co-ownership; and 2. Accounting or how to actually partition the property.
Note: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner and there is co-ownership and that partition is not legally proscribed, the court will issue an order of partition. It directs the parties to partition the property by proper instruments of conveyance, if they agree among themselves.
If they do agree, the court shall then confirm the partition so agreed and such is to be
recorded in the registry of deeds of the place in which the property is situated (Sec 2, Rule 69).
There always exists the possibility that the parties are unable to agree on the partition.
Thus, the next stage is the appointment of commissioners.
What are the stages in an action for partition which could be the subject of appeal?
A:
1. Order determining the propriety of the partition
2. Judgment as to the fruits and income of the property
3. Judgment of partition (Riano, Civil Procedure: A Restatement for the Bar, p. 596, 2009 ed.) ORDER OF PARTITION AND PARTITION BY AGREEMENT Q: What is an order of partition?
A: The order of partition is one that directs the parties or co-owners to partition the property Q: When does the court issue the order of partition?
A: During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the property, that there is indeed a co-ownership among the parties, and that a partition is not legally proscribed thus may be allowed. If the court so finds that the facts are such that a partition would be in order, and that the plaintiff has a right to demand partition, the court will issue an order of partition.
Note: The court shall order the partition of the property among all the parties in interest, if after trial it finds that the plaintiff has the right to partition (Sec. 2, Rule 69). It was held that this order of partition including an order directing an accounting is final and not interlocutory and hence, appealable; thus, revoking previous contrary rulings on the matter. A final order decreeing partition and accounting may be appealed by any party aggrieved thereby.
When is partition by agreement proper?
A: The parties may make the partition among themselves by
proper instruments of
conveyance, if they agree among themselves. If they do agree, the court shall then confirm the partition so agreed upon by all of the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated (Sec. 2, Rule 69).cc
If you happen to read the provisions in the NCC on co-ownership, it would seem that if there is a complaint for partition filed by one co-owner against the other co-owners, it seems the other co-owners cannot set up a very meritorious defense. When one of the co-owners wants to leave, that is a right given him by substantive law. Nobody can stop him from leaving the co-ownership.
In one recent case, the SC said that here could be a good defense in a complaint for partition. Even if the court finds property is co-owned, and one co-owner decides to leave, the court cannot simply issue a decision in favor of the plaintiff/co-owner that will lead to the dissolution of the co-ownership. SC cited the provision in the Family Code citing Article 159, which substantially says that if there are co-owners of a property by reason of their right to inheritance from a predecessor in interest, and one of them is a minor residing in the property, the court cannot subject the property to partition and the co-ownership cannot be dissolved until the minor shall be capacitated. That would be a good defense in a complaint for partition.
FC Art. 159. 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 ten 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.
I suggest that you read provisions of the NCC on the propriety of a partition among co-heirs if one of them is a minor who is residing in the property owned in common. It seems that the co-ownership shall continue to exist for 10 years if there is a minor residing in that property.
That property cannot be simply be ordered to be divided by the court, even if there is a complaint for partition.
NCC Articles related to partition among heirs Art.
238. Upon the death of the person who has set up the family home, the same shall continue, unless he desired otherwise in his will. The heirs cannot ask for its partition during the first ten years following the death of the person constituting the same, unless the court finds powerful reasons therefor.
Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership.
SECTION 6. - Partition and Distribution of the Estate
SUBSECTION 1. - Partition
Art. 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n)
Art. 1081. A person may, by an act inter vivos or mortis causa, entrust the mere power to make the partition after his death to any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or a person subject to guardianship;
but the mandatory, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees.
Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction.
Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not
exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs.
Art. 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled;
but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional.
FC Art. 159. 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 ten 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.
Note: Family Code is a subsequent law, hence the limit is 10 years.
Unlawful Detainer and Forcible Entry (Rule 70) Read NCC articles on lease (especially those relevant to UD) LEASE
Art. 1669. If the lease was made for a determinate time, it ceases upon the day fixed, without the need of a demand.
Art. 1670. If at the end of the contract the lessee should continue enjoying the thing
leased for fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by either party has previously been given, it is understood that there is an implied new lease, not for the period of the original contract, but for the time established in Articles 1682 and 1687. The other terms of the original contract shall be revived.
Art. 1671. If the lessee continues enjoying the thing after the expiration of the contract, over the lessor's objection, the former shall be subject to the responsibilities of a possessor in bad faith.
Art. 1672. In case of an implied new lease, the obligations contracted by a third person for the security of the principal contract shall cease with respect to the new lease.
Art. 1673. The lessor may judicially eject the lessee for any of the following causes:
(1) When the period agreed upon, or that which is fixed for the duration of leases under Articles 1682 and 1687, has expired;
(2) Lack of payment of the price stipulated;
(3) Violation of any of the conditions agreed upon in the contract;
(4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof;
or if he does not observe the requirement in No. 2 of Article 1657, as regards the use thereof.
The ejectment of tenants of agricultural lands is governed by special laws.
Art. 1674. In ejectment cases where an appeal is taken the remedy granted in Article 539, second paragraph, shall also apply, if the higher court is satisfied that the lessee's appeal is frivolous or dilatory, or that the lessor's appeal is prima facie meritorious. The period of ten
days referred to in said article shall be counted from the time the appeal is perfected.
Art. 1675. Except in cases stated in Article 1673, the lessee shall have a right to make use of the periods established in Articles 1682 and 1687.
Art. 1147. The following actions must be filed within one year:
(1) For forcible entry and detainer;
(2) For defamation.
Rule 70 FORCIBLE ENTRY (FE)