Short answer. No. Article 499 of the Civil Code says the partition of a co-owned thing does not prejudice third persons, who retain their rights of mortgage, servitude, or other real rights that existed before the division. A pre-existing mortgage survives the partition unaffected.
What the law says
The partition of a thing owned in common shall not prejudice third persons, who shall retain the rights of mortgage, servitude or any other real rights belonging to them before the division was made.
Civil Code, Article 499 — Partition and Third Persons. Read the full provision →
Partition among co-owners cannot undo a third party's rights
Article 499 states the protection directly: partition shall not prejudice third persons. Co-owners dividing property among themselves is an act between the co-owners; it does not have the legal effect of wiping out a real right a third party already held over the property before the division happened. A mortgage granted by a co-owner, or affecting the property, before the partition is not undone simply because the co-owners later agreed on how to split the land.
Mortgage is named, but it is not the only right protected
The article specifically names the rights of mortgage, servitude or any other real rights belonging to third persons before the division. Mortgage is the clearest fit for the situation described here, but the article's protection is broader than mortgages alone — any real right a third party held over the co-owned property before partition is preserved by this rule, not just a lien securing a loan.
Personal rights against the co-ownership survive too
The article goes further than real rights. It also states that personal rights pertaining to third persons against the co-ownership shall also remain in force, notwithstanding the partition. So it is not only rights attached directly to the property, like a mortgage, that survive — obligations the co-ownership itself owed to a third party continue to bind, even after the co-owners have divided the property among themselves.
What this means for the specific piece each co-owner ends up with
In practice, if a mortgage existed over the co-owned property before partition, it does not simply vanish when the land is divided — the mortgage right survives the division, and whoever the mortgage attaches to under its own terms remains bound by it after partition. Anyone receiving a share in a partition should check for pre-existing mortgages or other real rights against the property beforehand, since Article 499 means the partition itself offers no protection against them.
A related right to object before the partition is finished
Separately from a mortgagee's rights surviving partition, a co-owner's own creditors and assignees may take part in the division and object to it being carried out without their participation. But once a partition has actually been executed, that objection window narrows sharply: it generally cannot be challenged afterward, unless there was fraud or the partition went ahead despite a formal opposition already raised to prevent it beforehand.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Heirs of Panfilo F. Abalos vs. Aurora A. Bucal, et al, G.R. No. 156224, February 19, 2008 — read the decision on LawPhil →