Mercado v. CA,
240 SCRA 616
Facts:
Plaintiff Aurea A. Mercado seeks the partition and reconveyance to her of one-half of a real property registered in the name of defendant Nilo A. Mercado.
Her brother Nilo sent through their mother an affidavit wherein Nilo admitted the existence of co-ownership over the property.
Atty. Nilo Mercado contended that the co-ownership had already extinguished when the property had been foreclosured by SSS and he alone redeemed the property.
Issue:
Whether or not the mortgage of the subject property to the SSS, its foreclosure and subsequent redemption by the petitioner extinguished private respondent’s co-ownership.
Held:
No.
Ratio:
"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 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." (Emphasis ours)
Pursuant to this law, a co-owner has the right to alienate his pro-indiviso share in the co-owned property even without the consent of the other co-owners. Nevertheless, as a mere part owner, he cannot alienate the shares of the other co-owners. The prohibition is premised on the elementary rule that "no one can give what he does not have" (Nemo dat quod non habet).
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