Petition for review on certiorari of the decision^[1] dated July 14, 1970 of the then Court of First Instance of Cagayan-Branch II, in Civil Case No. 1486-A, entitled "Valentina G. Villanueva, et al., plaintiffs, versus Erlinda V. Vallangca, et al., defendants", the dispositive portion of which reads as follows:

"WHEREFORE, the Court hereby renders judgment

1.       Ordering the reformation and amendment of Exhibit '3' by deleting the phrase 'located at the western side of the lot which is five and one half (5-½) meters in width and fifteen (15) meters long';

2.       Declaring Erlinda Vallangca, married to Concepcion Villanueva absolute owners of an ideal and undivided share of one-half (½) of the land described in paragraph 2 of the complaint, which was conveyed to them by Exhibit '3';

3.       Ordering the partition of the land described in paragraph 2 of the complaint among the heirs of Basilia Garcia;

4.       Ordering the dismissal of the defendants' counterclaim; and

5.       Ordering the Clerk of Court to return to the plaintiffs the sum of P1,100.00 deposited by them with costs de oficio.

SO ORDERED."

Petitioners and respondent Concepcion Villanueva are the children of spouses Macario Villanueva (one of the respondents) and Basilia Garcia.  Said spouses owned a small parcel of land with an area of 165 square meters situated along Pres. Quezon St., in the Poblacion of Aparri, Cagayan.  Sometime in 1944, Basilia Garcia died intestate, leaving her husband, Macario Villanueva and children (herein petitioners) as her sole and only legitimate heirs.

On May 13, 1964, the surviving spouse, Macario, without the subject lot having been partitioned, sold in favor of Erlinda Vallangca, the wife of respondent Concepcion Villanueva, one-half or 82.5 square meters of the aforementioned lot, particularly the western portion thereof, measuring 15-½ meters by 15 meters, for P1,100.00, as evidenced by a Deed of Sale marked as Exhibit "3".^[2] Having been informed of the sale, petitioners signified their intention to redeem the lot in question but respondent vendee refused to allow such redemption contending that she is the wife of one of the legal heirs and therefore redemption will not lie against her because she is not the "third party" or "stranger" contemplated in the law.

Petitioners filed a complaint for rescission of sale and legal redemption of the portion sold to Vallangca.  The trial court, on July 14, 1970, rendered a decision ordering among other things, the reformation of the Deed of Sale and declaring the vendee the absolute owner of the subject lot.

Petitioners now submit^[3] that the lower court erred

(1)  in holding that the property sold to Erlinda Vallangca, married to Concepcion Villanueva, is a conjugal partnership property of the spouses, and therefore, the right of legal redemption will not lie against Erlinda Vallangca and Concepcion Villanueva, instead of holding that Erlinda V. Vallangca, being a "third person" or "stranger", the right of legal redemption contemplated under Art. 1620 and/or 1088 (NCC) can be exercised as against the vendee in the sale;

(2)  in ordering for the reformation and amendment of the document Exh. 3 by deletion of the phrase "located at the western side of the lot which is five and one-half meters in width and 15 meters long" instead of annulling and rescinding the sale as called for under the circumstances; and

(3)  in ordering the partition of the property described in par. 2 of the complaint among the heirs of Basilia Garcia, where partition is not warranted considering that there is still pending before the same court a separate action for partition of the same property filed by Concepcion Villanueva against plaintiff-petitioners.

Art. 1620 of the New Civil Code provides:

"A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person.  If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one."

"Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thing owned in common."

It is not disputed that co-ownership exists but the lower court disallowed redemption because it considered the vendee, Erlinda Vallangca, a co-heir, being married to Concepcion Villanueva, and the conveyance was held valid since it was in favor of the conjugal partnership of the spouses in the absence of any statement that it is paraphernal in character.  Within the meaning of Art. 1620, the term "third person" or "stranger" refers to all persons who are not heirs in succession, and by heirs are meant only those who are called either by will or the law to succeed the deceased and who actually succeeds.  In short, a third person is any one who is not a co-owner.^[4] The vendee is related by affinity to the deceased by reason of her marriage to one of the heirs and being married to Concepcion does not entitle the vendee to inherit or succeed in her own right.  She is not an heir of Basilia Garcia nor included in the "family relations" of spouses Macario and Basilia as envisioned in Art. 217 of the Civil Code

"Art. 217.  Family relations shall include those:

(1)   Between husband and wife;
(2)   Between parent and child;
(3)   Among other ascendants and their descendants;
(4)   Among brothers and sisters.

The co-owners should therefore be allowed to exercise their right to redeem the property sold to Erlinda Vallangca.  To deny petitioners the right of redemption recognized in Art. 1620 of the Civil Code is to defeat the purpose of minimizing co-ownership and to contravene the public policy in this regard.  Moreover, it would result in disallowing the petitioners a way out of what, in the words of Manresa, "might be a disagreeable or inconvenient association into which they have been thrust."^[5] Respondent seller Macario, as co-owner and before partition, has the right to freely sell and dispose of his undivided interest or his ideal share but not a divided part and one with boundaries as what was done in the case at bar.  It is an inherent and peculiar feature of co-ownership that although the co-owners may have unequal shares in the common property quantitatively speaking, each co-owner has the same right in a qualitative sense as any one of the other co-owners.  In other words, every co-owner is the owner of the whole and over the whole, he exercises the right of dominion, but he is at the same time the owner of a portion which is truly abstract because until division is effected, such portion is not correctly determined.

It appearing that a separate action for partition of the subject lot is still pending before the CFI of Cagayan, the trial court's order of partition is, therefore, uncalled for.

WHEREFORE, the petition is hereby GRANTED and the decision dated July 14, 1970 of the then CFI of Cagayan, Br. II, is accordingly REVERSED.  Costs against private respondents.

SO ORDERED.

Concepcion, Jr., Abad Santos, Escolin, and Alampay, JJ., concur.

Aquino, J., (Chairman), see dissenting opinion.

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^[1] pp. 58-65 Rollo

^[2] p. 56-A Rollo

^[3] p. 132 Rollo

^[4] Basa vs Aguilar, 117 SCRA 131

^[5] Basa vs Aguilar, supra


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