G.R. No. L-19565. January 30, 1968.
they acquired seven parcels of land of the Bacolod Cadastre, all assessed at P45,429, and three
ESTRELLA DE LA CRUZ, plaintiff-appellee, vs.SEVERINO DE LA CRUZ, defendant-appellant.
Civil Law; Separation of property; Abandonment of spouse;Concept of abandonment as
ground for separation of property.—The word "abandonment", when referring to the act of
one consort of leaving the other, is "the act of the husband or the wife who leaves his or her
consort wilfully, and with an intention of causing perpetual separation" (Gay v. State, 31 S.E.
569). Giving to the word "abandoned", as used in article 178 of the new Civil Code, the meaning
drawn from the definition above reproduced, it seems rather clear that to constitute
abandonment of the wife by the husband, there must be absolute cessation of marital relations
and duties and rights, with the intention of perpetual separation. Therefore, if there is only
physical separation between the spouses (and nothing more), engendered by the husband's
leaving the conjugal abode, but the husband continues to manage the conjugal properties with
the same zeal, industry, and efficiency as he did prior to the separation, and religiously gives
support to his wife and children, the wife's petition for separation of property can not be
granted.
Same; Attorney's fee; Award therefore proper where husband has given cause for his
wife to seek redress in courts.—Where the husband, by leaving the conjugal abode, has given
cause for the wife to seek redress in the courts, and ask for adequate support, an award of
attorney's fee to the wife must be made. Ample authority for such award is found in
paragraphs 6 and 11 of article 2208 of the new Civil Code which empower courts to grant
counsel's fee "in actions for legal support," and in cases "where the court deems it just and
equitable that attorney's fees x x x" should be recovered.
APPEAL from a judgment of the Court of First Instance of Negros Occidental.
The facts are stated in the opinion of the Court.
Estacion & Paltriguer a f or plaintiff-appell
Manuel O. Soriano and Pio G. Villoso for defendantappellant.
CASTRO, J.:
The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First Instance
of Negros Occidental, alleging in essence that her husband, the defendant Severino de la Cruz,
had not only abandoned her but as well was mismanaging their conjugal partnership
properties, and praying for (1) separation of property, (2) monthly support of P2,500 during
the pendency of the action, and (3) payment of P20,000 as attorney's fees, and costs.
The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as
alimony pendente lite,which however, upon defendant's motion, was reduced to P2,000.
On June 1, 1961 the trial court rendered judgment ordering separation and division of the
conjugal assets, and directing the defendant to pay to the plaintiff the sum of P20,000 as
attorney's fees, with legal interest from the date of the original complaint, that is, from July
22, 1958, until fully paid, plus costs. From this judgment the defendant appealed to the Court
of Appeals, which certified the case to us, "it appearing that the total value of the conjugal
assets is over P500,000".
The basic facts are not controverted. The plaintiff and the defendant were married in
Bacolod City on February 1, 1938. Six children were born to them, namely, Zenia (1939), Ronnie
(1942), Victoria (1944), Jessie 1945), Bella (1946), and Felipe (1948). During their coverture
parcels of the Silay Cadastre, all assessed at P43,580. All these parcels are registered in their
names. The hacienda in Silay yielded for the year 1957 a net profit of P3,390.49.
They are also engaged in varied business ventures with fixed assets valued as of December
31, 1956 at P496,006.92, from which they obtained for that year a net profit of P75,655.78.
The net gain of the Philippine Texboard Factory, the principal business of the spouses, was
P90,454.48 for the year 1957. As of December 31, 1959, the total assets of the various
enterprises of the conjugal partnership were valued- at Pl,021,407.68, not including those of
the Top Service Inc., of which firm the defendant has been the president since its organization
in 1959 in Manila with a paid-up capital of P50,000, P10,000 of which was contributed by him
This corpora-
335
VOL. 22, JANUARY 30, 1968 335
De la Cruz vs. De la Cruz
tion was the Beverly Hills Subdivision in Antipolo, Rizal, the Golden Acres Subdivision and the
Green Valley Subdivision in Las Piñas, Rizal, and a lot and building located at M. H. del Pilar,
Manila purchased for P285,000, an amount borrowed from the Manufacturer's Bank and Trust
Company.
The spouses are indebted to the Philippine National Bank and the Development Bank of
the Philippines for loans obtained, to secure which they mortgaged the Philippine Texboard
Factory, the Silay hacienda, their conjugal house, and all their parcels of land located in
Bacolod City.
The essential issues of fact may be gleaned from the nine errors the defendant imputes to
the court a quo, namely,
1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made
by the defendant to the conjugal abode to see his wife was on June 15, 1955;
2.In finding that.the letter exh. 3 was written by one Nenita Hernandez and that she and
the defendant are living as husband and wife;
3.In finding that since 1951 the relations between the plaintiff and the defendant were
far from cordial, and that it was from 1948 that the former has been receiving an
allowance from the latter;
4.In finding that the defendant has abandoned the plaintiff;
5.In finding that the defendant since 1956 has not discussed with his wife the business
activities of the partnership, and that this silence constituted "abuse of administration
of the conjugal partnership";
6.In declaring that the defendant mortgaged the conjugal assets without the knowledge
of the plaintiff and thru false pretences to which the latter was prey;
7.In allowing the plaintiff, on the one hand, to testify on facts not actually known by her,
and, on the other hand, in not allowing the defendant to establish his special defenses;
 8.In ordering separation of the conjugal partnership properties; and
9.In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of
P20,000, with interest at the legal rate.
Two issues of law as well emerge, requiring resolution: (1) Did the separation of the defendant
from the
336
336 SUPREME COURT REPORTS ANNOTATED
De la Cruz vs. De la Cruz
plaintiff constitute abandonment in law that would justify a separation of the conjugal
partnership properties? (2) Was the defendant's failure and/or refusal to inform the plaintiff
of the state of their business enterprises such an abuse of his powers of administration of the
conjugal partnership as to warrant a division of the matrimonial assets?
The plaintiff's evidence may be summarized briefly. The defendant started living in Manila
in 1955, although he occasionally returned to Bacolod City, sleeping in his office at the
Philippine Texboard Factory in Mandalagan, instead of in the conjugal home at 2nd Street,
Bacolod City. Since 1955 the defendant had not slept in the conjugal dwelling, although in the
said year he paid short visits during which they engaged in brief conversations. After 1955 up
to the time of the trial, the defendant had never visited the conjugal abode, and when he was
in Bacolod, she was denied communication with him. He has abandoned her and their children,
to live in Manila with his concubine, Nenita Hernandez. In 1949 she began to suspect the
existence of illicit relations between her husband and Nenita. This suspicion was confirmed in
1951 when she found an unsigned note in a pocket of one of her husband's polo shirts, which
was written by Nenita and in which she asked "Bering" to meet her near the church. She
confronted her husband who forthwith tore the note even as he admitted his amorous liaison
with Nenita. He then allayed her fears by vowing to forsake his mistress. Subsequently, in
November 1951, she found in the iron safe of her husband a letter, exh. C, also written by
Nenita. In this letter the sender (who signed as "D") apologized for her conduct, and expressed
the hope that the addressee ("Darling") could join her in Baguio as she was alone in the Patria
Inn and lonely in "a place for honeymooners". Immediately after her husband departed for
Manila the following morning , t he plaint iff enpl ane d for B aguio , w learned that Nenita had
actually stayed at the Patria Inn, but had already left for Manila before her arrival. Later she
met her husband in the house of a relative in Manila from whence they proceeded to the Avevu
e Hote
337
VOL. 22, JANUARY 30, 1968 337
De la Cruz vs. De la Cruz
where she again confronted him about Nenita. He denied having further relations with this
woman.
Celia Bañez, testifying for the plaintiff, declared that she was employed as a cook in the
home of the spouses from May 15, 1955 to August 15, 1958, and that during the entire period
of her employment she saw the defendant in the place only once. This declaration is
contradicted, however, by the plaintiff herself who testified that in 1955 the defendant "used
to have a short visit there," which statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife and children, but admitted
that in 1957, or a year before the filing of the action, he started to live separately from his wife.
When he transferred his living quarters to his office in Mandalagan, Bacolod City, his intention
was not, as it never has been, to abandon his wife and children, but only to teach her a lesson
as she was quarrelsome and extremely jealous of every woman. He decided to live apart from
his wife temporarily because at home he could not concentrate on his work as she always
quarreled with him, while in Mandalagan he could pass the nights in peace. Since 1953 he
stayed in Manila for some duration of time to manage their expanding business and look for
market outlets for their texboard products. Even the plaintiff admitted in both her original and
amended complaints that "sometime in 1953, because of the expanding business of the herein
parties, the defendant established an office in the City of Manila, wherein some of the goods,
effects and merchandise manufactured or produced in the business enterprises of the parties
were sold or disposed of". From the time he started living separately in Mandalagan up to the
filing of the complaint, the plaintiff herself furnished him food and took care of his laundry.
This latter declaration was not rebutted by the plaintiff.
The defendant, with vehemence, denied that he has abandoned his wife and family,
averring that he has never failed, even for a single month, to give them financial support, as
witnessed by the plaintiff's admission in her original and amended complaints as well as in
open court that during the entire period of their estrange-
338
338 SUPREME COURT REPORTS ANNOTATED
De la Cruz vs. De la Cruz
ment, he was giving her around P500 a month for support. In point of fact, his wife and children
continued to draw allowances from his office of a total ranging from P1,200 to P1,500 a month.
He financed the education of their children, two of whom were studying in Manila at the time
of the trial and were not living with the plaintiff. While in Bacolod City, he never failed to visit
his family, particularly the children. His wife was always in bad need of money because she
played mahjong, an accusation which she did not traverse, explaining that she
played mahjong to entertain herself and forget the infidelities of her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the
testimony of the defendant on the matter of the support the latter gave to his family, by
declaring in court that since the start of his employment in 1950 as assistant general manager,
the plaintiff has been drawing an allowance of P1,000 to P1,500 monthly, which amount was
given personally by the defendant or, in his absence, by the witness himself.
The defendant denied that he ever maintained a mistress in Manila. He came to know
Nenita Hernandez when she was barely 12 years old, but had lost track of her thereafter. His
constant presence in Manila was required by the pressing demands of an expanding business.
He denied having destroyed the alleged note which the plaintiff claimed to have come from
Nenita, nor having seen, previous to the trial, the letter exh. C. The allegation of his wife that
he had a concubine is based on mere suspicion. He had always been faithful to his wife, and
not for a single instance had he been caught or surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his powers of administration of
the conjugal partnership, the plaintiff declared that the defendant refused and failed to inform
her of the progress of their various business concerns. Although she did not allege, much less
prove, that her husband had dissipated the conjugal properties, she averred nevertheless that
her husband might squander and dispose of the conjugal assets in
339
VOL. 22, JANUARY 30, 1968 339
De la Cruz vs. De la Cruz
favor of his concubine. Hence, the urgency of separation of property.
The defendant's answer to the charge of mismanagement is that he has applied his
industry, channeled his ingenuity, and devoted his time, to the management, maintenance and
expansion of their business concerns, even as his wife threw money away at
the mahjong tables. Tangible proof of his endeavors is that from a single cargo truck which he
himself drove at the time of their marriage, he had built up one business after another, the
Speedway Trucking Service, the Negros Shipping Service, the Bacolod Press, the Philippine
Texboard Factory, and miscellaneous other business enterprises worth over a million pesos;
that all that the spouses now own have been acquired through his diligence, intelligence and
industry; that he has steadily expanded the income and assets of said business enterprises
from year to year, contrary to the allegations of the complainant, as proved by his balance
sheet and profit and loss statements for the year 1958 and 1959 (exhibits 1 and 2); and that
out of the income of their enterprises he had purchased additional equipment and machineries
and has partially paid their indebtedness to the Philippine National Bank and the Development
Bank of the Philippines.
It will be noted that the plaintiff does not ask for legal separation. The evidence presented
by her to prove concubinage on the part of the defendant, while pertinent and material in the
determination of the merits of a petition for legal separation, must in this case be regarded
merely as an attempt to bolster her claim that the defendant had abandoned her, which
abandonment, if it constitutes abandonment in law, would justify separation of the conjugal
assets under the applicable provisions of article 178 of the new Civil Code which read: "The
separation in fact between husband and wife without judicial approval, shall not affect the
conjugal partnership, except that x x x if the husband has abandoned the wife without just
cause for at least one year, she may petition the court for a receivership, or administration by
her of the conjugal partnership property, or separation of property". In addition to
abandonment as
340
340 SUPREME COURT REPORTS ANNOTATED
De la Cruz vs. De la Cruz
a ground, the plaintiff also invokes article 167 of the new Civil Code in support of her prayer
for division of the matrimonial assets. This article provides that "In case of abuse of powers of
administration of the conjugal partnership property by the husband, the courts, on the petition
of the wife, may provide for a receivership, or administration by the wife, or separation of
property". It behooves us, therefore, to inquire, in the case at bar, whether there has been
abandonment, in the legal sense, by the defendant of the plaintiff, and/or whether the
defendant has abused his powers of administration of the conjugal partnership property, so as
to justify the plaintiff's plea for separation of property.
We have made a searching scrutiny of the record, and it is our considered view that the
defendant is not guilty of abandonment of his wife, nor of such abuse of his powers of
administration of the conjugal partnership, as to warrant division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when she has been
abandoned by the husband for at least one year are the same as those granted to her by article
167 in case of abuse of the powers of administration by the husband. To entitle her to any of
these remedies, under article 178, there must be real abandonment, and not mere
separation. 1 T he abandonm ent not only be physical estrangement but also amount to
financial and moral desertion.
Although an all-embracing definition of the term "abandonment " is yet to be spelled out
in explicit words, we nevertheless can determine its meaning from the context of the Law as
well as from its ordinary usage. The concept of abandonment in article 178 may be established
in relation to the alternative remedies granted to the wife when she has been abandoned by
the husband, namely, receivership, administration by her, or separation of property, all of
which are designed to protect the conjugal assets from waste and dissipation rendered
imminent by the husband's continued absence from the conjugal abode, and to assure the wife
of a ready and
_____________
1Tolentino, Civil Code of the Philippines, Vol. I, p. 436.
341
VOL. 22, JANUARY 30, 1968 341
De la Cruz vs. De la Cruz
steady source of support. Therefore, physical separation alone is not the full meaning of the
term "abandonment", if the husband, despite his voluntary departure from the society of his
spouse, neither neglects the management of the conjugal partnership nor ceases to give
support to his wife.
The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or
renounce utterly.2 The dictionaries trace this word to the root idea of "putting under a bar".
The emphasis is on the finality and the publicity with which some thing or body is thus put in
the control of another, and hence the meaning of giving up absolutely, with intent never again
to resume or claim one's rights or interests.3 When referring to desertion of a wife by a
husband, the word has been defined as "the act of a husband in voluntarily leaving his wife
with intention to forsake her entirely, never to return to her, and never to resume his marital
duties towards her, or to claim his marital rights; such neglect as either leaves the wife
destitute of the common necessaries of life, or would leave her destitute but for the charity of
others."4 The word "abandonment", when referring to the act of one consort of leaving the
other, is "the act of the husband or the wife who leaves his or her consort wilfully, and with an
intention of causing perpetual separation."5 Giving to the word "abandoned", as used in article
178, the meaning drawn from the definitions above reproduced, it seems rather clear that to
constitute abandonment of the wife by the husband, there must be absolute cessation of
marital relations and duties and rights, with the intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not intend to leave his
wife and children permanently. The record conclusively shows that he continued to give
support to his family despite his absence from the conjugal home. This fact is admitted by the
______________
2 See Webster's International and standard dictionaries.
3 In re Hoss' Estate, 257 NYS 278.
4 Gay vs. State, 31 S.L. 569.
5 Note 4, supra.
342
342 SUPREME COURT REPORTS ANNOTATED
De la Cruz vs. De la Cruz
complainant, although she minimized the amount of support given, saying that it was only
P500 monthly. There is good reason to believe, however, that she and the children received
more than this amount, as the defendant's claim that his wife and children continued to draw
from his office more than P500 monthly was substantially corroborated by Marcos Ganaban,
whose declarations were not rebutted by the plaintiff. And then there is at all no showing that
the plaintiff and the children were living in want. On the contrary, the plaintiff admitted, albeit
reluctantly, that she frequently played mahjong, from which we can infer that she had money;
to spare.
The fact that the defendant never ceased to give support to his wife and children negatives
any intent on his part not to return to the conjugal abode and resume his marital duties and
rights. In People v. Schelske,6 it was held that where a husband, after leaving his wife,
continued to make small contributions at intervals to her support and that of their minor child,
he was not guilty of their "abandonment", which is an act of separation with intent that it shall
be perpetual, since contributing to their support negatived such intent. In In re Hoss' Estate,
supra, it was ruled that a father did not abandon his family where the evidence disclosed that
he almost always did give his wife part of his earnings during the period of their separation and
that he gradually paid some old rental and grocery bills.
With respect to the allegation that the defendant maintained a concubine, we believe,
contrary to the findings of the court a quo, that the evidence on record fails to preponderate
in favor of the plaintiff s thesis. The proof that Nenita Hernandez was the concubine of the
defendant and that they were living as husband and wife in Manila, is altogether too indefinite.
Aside from the uncorroborated statement of the plaintiff that she knew that Nenita Hernandez
was her husband's concubine, without demonstrating by credible evidence the existence of
illicit relations between Nenita and the defendant, the
____________
6154 N.W. 781, 783.
343
VOL. 22, JANUARY 30, 1968 343
De la Cruz vs. De la Cruz
only evidence on record offered to link the defendant to his alleged mistress is exh. C. The
plaintiff however failed to connect authorship of the said letter with Nenita, on the face
whereof the sender merely signed as "D" and the addressee was one unidentified "Darling".
The plaintiffs testimony on cross-examination, hereunder quoted, underscores such failure:
Q You personally never received any letter from Nenita?
A No.
Q Neither have you received on any time until today from 1949 from Nenita?
A No.
Q Neither have you written to her any letter yourself until now?
A Why should I write a letter to her.
Q In that case, Mrs. De la Cruz, you are not familiar with the handwriting of
Nenita. Is that right?
A I can say that Nenita writes very well.
Q I am not asking you whether she writes very well or not but, my question is
this: In view of the fact that you have never received a letter from Nenita,
you have not sent any letter to her, you are not familiar with her handw
riting?
A Yes,
Q You have not seen her writing anybody?
A Yes.
Anent the allegation that the defendant had mismanaged the conjugal partnership property,
the record presents a different picture. There is absolutely no evidence to show that he has
squandered the conjugal assets. Upon the contrary, he proved that through his industry and
zeal, the conjugal assets at the time of the trial had increased to a value of over a million pesos.
The lower court likewise erred in holding that mere refusal or failure of the husband as
administrator of the conjugal partnership to inform the wife of the progress of the family
businesses constitutes abuse of administration. For "abuse" to exist, it is not enough that the
husband perform an -act or acts prejudicial to the wife. Nor is it sufficient that he commits acts
injurious to the partnership, for these may be the result of mere inef-
344
344 SUPREME COURT REPORTS ANNOTATED
De la Cruz vs. De la Cruz
ficient or negligent administration. Abuse connotes willful and utter disregard of the interests
of the partnership, evidenced by a repetition of deliberate acts and/or omissions prejudicial to
the latter.7
If there is only physical separation between the spouses (and nothing more), engendered
by the husband's leaving the conjugal abode, but the husband continues to manage the
conjugal properties with the same zeal, industry, and efficiency as he did prior to the
separation, and religiously gives support to his wife and children, as in the case at bar, we are
not disposed to grant the wife's petition for separation of property. This decision may appear
to condone the husband's separation from his wife; however, the remedies granted to the wife
by articles 167 and 178 are not to be construed as condonation of the husband's act but are
designed to protect the conjugal partnership from waste and shield the wife from want.
Therefore, a denial of the wife's prayer does not imply a condonation of the husband's act but
merely points up the insufficiency or absence of a cause of action.
Courts must need exercise judicial restraint and reasoned hesitance in ordering a
separation of conjugal properties because the basic policy of the law is homiletic, to promote
healthy family life and to preserve the union of the spouses, in person, in spirit and in property.
"Consistent with its policy of discouraging a regime of separation as not in harmony with the
unity of the family and the mutual affection and help expected of the spouses, the Civil Code
(both old and new) requires that separation of property shall not prevail unless expressly
stipulated in marriage settlements before the union is solemnized or by formal judicial decree
during the existence of the marriage (Article 190, new Civil Code, Article 1432, old Civil Code):
and in the latter case, it may only be ordered by the court for causes specified in Article 191 of
the new Civil Code."8
Furthermore, a judgment ordering the division of conjugal assets where there has been no real
abandonment, the separation not being wanton and absolute, may al-
______________
7Tolentino, supra, p. 418.
8Garcia vs. Manzano, 103 Phil. 798.
345
VOL. 22, JANUARY 30, 1968 345
 De la, Cruz vs. De la Cruz
together slam shut the door for possible reconciliation. The estranged spouses may drift
irreversibly further apart; the already broken family solidarity may be irretrievably shattered;
and any flickering hope for a new life together may be completely and finally extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long
before the devaluation of the Philippine peso in 1962, should be increased to P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving the
conjugal abode, has given cause for the plaintiff to seek redress in the courts, -and ask
for adequate support, an award of attorney's fees to the plaintiff must be made. Ample
authority for such award is found in paragraphs 6 and 11 of article 2208 of the new Civil Code
which empower courts to grant counsel's fees "in actions for legal support" and in cases
"where the court deems it just and equitable that attorney's fees x x x should be recovered."
However, an award of P10,000, in our opinion, is, under the environmental circumstances,
sufficient.
This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that
the law enjoins husband and wife to live together, and, secondly, exhort them to avail of—
mutually, earnestly and steadfastly—all opportunities for reconciliation to the end that their
marital differences may be happily resolved, and conjugal harmony may return and, on the
basis of mutual respect and understanding, endure.
ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal
properties, is reversed and set aside. Conformably to our observations, however, the
defendant is ordered to pay to the plaintiff, in the concept of support, the amount of P3,000
per month, until he shall have rejoined her in the conjugal home, which amount may, in the
meantime, be reduced or increased in the discretion of the court a quo as circumstances
warrant. The award of attorney's fees to the plaintiff is reduced to P10,000, without interest.
No pronouncement as to costs.
 G.R. No. 82606. December 18, 1992.*
PRIMA PARTOSA-JO, petitioner, vs. THE HONORABLE COURT OF APPEALS and HO HANG (WITH
ALIASES JOSE JO AND CONSING), respondents.
Judgments; Omission or mistake in dispositive portion of decision; Failure of petitioner’s
counsel to seek rectification; Technicality should not prevail over considerations of substantive
justice.—The dispositive portion of the decision in question was incomplete insofar as it carried
no ruling on the complaint for judicial separation of conjugal property although it was
extensively discussed in the body of the decision. The drafting of the decision was indeed not
exactly careful. The petitioner’s counsel, noting this, should have taken immediate steps for
the rectification of the omission so that the ruling expressed in the text of the decision could
have been embodied in the decretal portion. Such alertness could have avoided this litigation
on a purely technical issue. Nevertheless, the technicality invoked in this case should not be
allowed to prevail over considerations of substantive justice. After all, the technical defect is
not insuperable.We have said time and again that where there is an ambiguity caused by an
omission or mistake in the dispositive portion of the decision, this Court may clarify such
ambiguity by an amendment even after the judgment has become final. In doing so, the Court
may resort to the pleadings filed by the parties and the findings of fact and the conclusions of
law expressed in the text or body of the decision.
Domestic relations; Judicial separation of conjugal property;Family Code; Abandonment
and failure to comply with family obligations.—Abandonment implies a departure by one
spouse with the avowed intent never to return, followed by prolonged absence without just
cause, and without in the meantime providing in the least for one’s family although able to do
so. There must be absolute cessation of marital relations, duties and rights, with the intention
of perpetual separation. This idea is clearly expressed in the above-quoted provision, which
states that “a spouse is deemed to have abandoned the other when he or she has left the
conjugal dwelling without any intention of returning.” The record shows that as early as 1942,
the private respondent had already rejected the petitioner, whom he denied admission to their
conjugal home in Dumaguete City when she returned from Zamboanguita. The fact that she
was not accepted by Jo demonstrates all too clearly that he had no intention of resuming their
conjugal relationship. Moreover, beginning 1968 until the final determination by this Court of
the action for support in 1988, the private respondent refused to give financial support to the
petitioner. The physical separation of the parties, coupled with the refusal by the private
respondent to give support to the petitioner, sufficed to constitute abandonment as a ground
for the judicial separation of their conjugal property. In addition, the petitioner may also invoke
the second ground allowed by Article 128, for the fact is that he has failed without just cause
to comply with his obligations to the family as husband or parent. Apart from refusing to admit
his lawful wife to their conjugal home in Dumaguete City, Jo has freely admitted to cohabiting
with other women and siring many children by them. It was his refusal to provide for the
petitioner and their daughter that prompted her to file the actions against him for support and
later for separation of the conjugal property, in which actions, significantly, he even denied
being married to her. The private respondent has not established any just cause for his refusal
to comply with his obligations to his wife as a dutiful husband.
Same; Same; Same.—The amendments introduced in the Family Code are applicable to
the case before us although they became effective only on August 3, 1988. As we held in
Ramirez vs. Court of Appeals: The greater weight of authority is inclined to the view that an
appellate court, in reviewing a judgment on appeal, will dispose of a question according to the
law prevailing at the time of such disposition, and not according to the law prevailing at the
time of rendition of the appealed judgment. The court will therefore reverse a judgment which
was correct at the time it was originally rendered where, by statute, there has been an
intermediate change in the law which renders such judgment erroneous at the time the case
was finally disposed of on appeal. The order of judicial separation of the properties in question
is based on the finding of both the trial and respondent courts that the private respondent is
indeed their real owner. It is these properties that should now be divided between him and
the petitioner, on the assumption that they were acquired during coverture and so belong to
the spouses half and half. As the private respondent is a Chinese citizen, the division must
include such properties properly belonging to the conjugal partnership as may have been
registered in the name of other persons in violation of the AntiDummy Law.
PETITION to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Leo B. Diocos for petitioner.
Antonio Ramas-Uypitching for private respondent.
CRUZ, J.:
The herein private respondent, Jose Jo, admits to having cohabited with three women and
fathered fifteen children. The first of these women, the herein petitioner, claims to be his legal
wife by whom he begot a daughter, Monina Jo. The other two women and their respective
offspring are not parties to this case.
In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal
property, docketed as Civil Case No. 51, in addition to an earlier action for support, also against
him and docketed asCivil Case No. 36, in the Regional Trial Court of Negros Oriental, Branch
35.
The two cases were consolidated and tried jointly. OnNovember 29, 1983, Judge German
G. Lee, Jr. rendered an extensive decision, the dispositive portion of which read:
695
VOL. 216, DECEMBER 18, 1992 695
Partosa-Jo vs. Court of Appeals
WHEREFORE, in view of all the foregoing arguments and considerations, this court hereby
holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho Hang, alias Consing,
and, therefore, is entitled to support as the lawfully wedded wife and the defendant is hereby
ordered to give a monthly support of P500.00 to the plaintiff Prima Partosa, to be paid on or
before the 5th day of every month, and to give to the plaintiff the amount of P40.000.00 for
the construction of the house in Zambeanguita, Negros Oriental where she may live separately
from the defendant being entitled under the law to separate maintenance being the innocent
spouse and to pay the amount of P19,200.00 to the plaintiff by way of support in-arrears and
to pay the plaintiff the amount of P3,000.00 in the concept of attorney’s fees.
As will be noticed, there was a definite disposition of the complaint for support but none of
the complaint for judicial separation of conjugal property.
Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial court
in the complaint for support.1 The complaint for judicial separation of conjugal property was
dismissed for lack of a cause of action and on the ground that separation by agreement was
not covered by Article 178 of the Civil Code.
 When their motions for reconsideration were denied, both parties came to this Court for
relief. The private respondents’s petition for review on certiorari was dismissed for tardiness
in our resolution dated February 17, 1988, where we also affirmed the legality of the marriage
between Jose and Prima and the obligation of the former to support her and her daughter.
This petition deals only with the complaint for judicial separation of conjugal property.
It is here submitted that the Court of Appeals erred in holding that: a) the judicial
separation of conjugal property sought was not allowed under Articles 175, 178 and 191 of the
Civil Code; and b) no such separation was decreed by the trial court in the dispositive portion
of its decision.
_______________
1 Chua, Segundino G., J., ponente, Coquia, Jorge R. and De Pano, Nathanael, Jr.,
P. JJ., concurring, promulgated on January 28, 1987.
696
696 SUPREME COURT REPORTS ANNOTATED
Partosa-Jo vs. Court of Appeals
The private respondent contends that the decision of the trial court can no longer be reviewed
at this time because it has long since become final and executory. As the decretal portion
clearly made no disposition of Civil Case No. 51, that case should be considered impliedly
dismissed. The petitioner should have called the attention of the trial court to the omission so
that the proper rectification could be made on time. Not having done so, she is now concluded
by the said decision, which can no longer be corrected at this late hour.
We deal first with the second ground.
While admitting that no mention was made of Civil Case No. 51 in the dispositive portion
of the decision of the trial court, the petitioner argues that a disposition of that case was
nonetheless made in the penultimate paragraph of the decision reading as follows:
It is, therefore, hereby ordered that all properties in question are considered properties of Jose
Jo, the defendant in this case, subject to separation of property under Article 178, third
paragraph of the Civil Code, which is subject of separate proceedings as enunciated herein.
The petitioner says she believed this to be disposition enough and so did not feel it was
necessary for her to appeal, particularly since the order embodied in that paragraph was in her
favor. It was only when the respondent court observed that there was no dispositive portion
regarding that case and so ordered its dismissal that she found it necessary to come to this
Court for relief.
The petitioner has a point.
The dispositive portion of the decision in question was incomplete insofar as it carried no
ruling on the complaint for judicial separation of conjugal property although it was extensively
discussed in the body of the decision. The drafting of the decision was indeed not exactly
careful. The petitioner’s counsel, noting this, should have taken immediate steps for the
rectification of the omission so that the ruling expressed in the text of the decision could have
been embodied in the decretal portion. Such alertness could have avoided this litigation on a
purely technical issue.
697
VOL. 216, DECEMBER 18, 1992 697
Partosa-Jo vs. Court of Appeals
Nevertheless, the technicality invoked in this case should not be allowed to prevail over
considerations of substantive justice. After all, the technical defect is not insuperable. We have
said time and again that where there is an ambiguity caused by an omission or mistake in the
dispositive portion of the decision, this Court may clarify such ambiguity by an amendment
even after the judgment has become final.2 In doing so, the Court may resort to the pleadings
filed by the parties and the findings of fact and the conclusions of law expressed in the text or
body of the decision.3
The trial court made definite findings on the complaint for judicial separation of conjugal
property, holding that the petitioner and the private respondent were legally married and that
the properties mentioned by the petitioner were acquired by Jo during their marriage although
they were registered in the name of an apparent dummy.
There is no question therefore that the penultimate paragraph of the decision of the trial
court was a ruling based upon such findings and so should have been embodied in the
dispositive portion. The respondent court should have made the necessary modification
instead of dismissing Civil Case No. 51 and thus upholding mere form over substance.
In the interest of substantive justice, and to expedite these proceedings, we hereby make
such modification. And now to the merits of Civil Case No. 51.
The Court of Appeals dismissed the complaint on the ground that the separation of the
parties was due to their agreement and not because of abandonment. The respondent court
relied mainly on the testimony of the petitioner, who declared under oath that she left
Dumaguete City, where she and Jo were living together “because that was our agreement.” It
held that an agreement to live separately without just cause was void under Article 221 of the
Civil Code and could not sustain any claim of abandonment by the aggrieved spouse. Its
conclusion was that the only remedy available to the petitioner was legal separation under
Article 175 of the Civil Code,4 by virtue of which the conjugal partnership of property would be
terminated.
The petitioner contends that the respondent court has misinterpreted Articles 175, 178
and 191 of the Civil Code. She submits that the agreement between her and the private
respondent was for her to temporarily live with her parents during the initial period of her
pregnancy and for him to visit and support her. They never agreed to separate permanently.
And even if they did, this arrangement was repudiated and ended in 1942, when she returned
to him at Dumaguete City and he refused to accept her.
The petitioner invokes Article 178 (3) of the Civil Code, which reads:
Art. 178. The separation in fact between husband and wife without judicial approval, shall not
affect the conjugal partnership, except that:
x x x
(3) If the husband has abandoned the wife without just cause for at least one year, she
may petition the court for a receivership, or administration by her of the conjugal partnership
property or separation of property.
The above-quoted provision has been superseded by Article 128 of the Family Code, which
states:
Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her
obligations to the family, the aggrieved spouse may petition the court for receivership, for
judicial separation of property, or for authority to be the sole administrator of the conjugal
partnership properly, subject to such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital,
parental or property relations.
A spouse is deemed to have abandoned the other when he or she has left the conjugal
dwelling without any intention of returning. The spouse who has left the conjugal dwelling for
a period of three months or has failed within the same period to give any information as to his
or her whereabouts shall be prima facie presumed to have no intention of returning to the it was originally rendered where, by statute, there has been an intermediate change in the law
conjugal dwelling. which renders such judgment erroneous at the time the case was finally disposed of on appeal.
Under this provision, the aggrieved spouse may petition for judicial separation on either of The order of judicial separation of the properties in question is based on the finding of both
these grounds: the trial and respondent courts that the private respondent is indeed their real owner. It is
these properties that should now be divided between him and the petitioner, on the
1. 1.Abandonment by a spouse of the other without just cause; and assumption that they were acquired during coverture and so belong to the spouses half and
2. 2.Failure of one spouse to comply with his or her obligations to the family without half. As the private respondent is a Chinese Citizen, the division must include such properties
just cause, even if said spouse does not leave the other spouse. properly belonging to the conjugal partnership as may have been registered in the name of
other persons in violation of the Anti-Dummy Law.
The past has caught up with the private respondent. After his extramarital flings and a
Abandonment implies a departure by one spouse with the avowed intent never to return,
succession of illegitimate children, he must now make an accounting to his lawful wife of the
followed by prolonged absence without just cause, and without in the meantime providing in
properties he denied her despite his promise to her of his eternal love and care.
the least for one’s family although able to do so.5 There must be absolute cessation of marital
WHEREFORE, the petition is GRANTED and the assailed decision of the respondent court
relations, duties and rights, with the intention of perpetual separation. 6 This idea is clearly
is MODIFIED. Civil Case No. 51 is hereby decided in favor of the plaintiff, the petitioner herein,
expressed in the above-quoted provision, which states that “a spouse is deemed to have
and the conjugal property of the petitioner and the private respondent is hereby ordered
abandoned the other when he or she has left the conjugal dwelling without any intention of
divided between them, share and share alike. This division shall be implemented by the trial
returning.”
court after determination of all the properties pertaining to the said conjugal partnership,
The record shows that as early as 1942, the private respondent had already rejected the
including those that may have been illegally registered in the name of other persons.
petitioner, whom he denied admission to their conjugal home in Dumaguete City when she
SO ORDERED.
returned from Zamboanguita.The fact that she was not accepted by Jo demonstrates all too
clearly that he had no intention of resuming their conjugal relationship. Moreover, beginning
1968 until the final determination by this Court of the action for support in 1988, the private
respondent refused to give financial support to the petitioner. The physical separation of the
parties, coupled with the refusal by the private respondent to give support to the petitioner,
sufficed to constitute abandonment as a ground for the judicial separation of their conjugal
property.
In addition, the petitioner may also invoke the second ground allowed by Article 128, for
the fact is that he has failed without just cause to comply with his obligations to the family as
husband or parent. Apart from refusing to admit his lawful wife to their conjugal home in
Dumaguete City, Jo has freely admitted to cohabiting with other women and siring many
children by them. It was his refusal to provide for the petitioner and their daughter that
prompted her to file the actions against him for support and later for separation of the conjugal
property, in which actions, significantly, he even denied being married to her. The private
respondent has not established any just cause for his refusal to comply with his obligations to
his wife as a dutiful husband.
Their separation thus falls also squarely under Article 135 of the Family Code, providing as
follows:
Art. 135. Any of the following shall be considered sufficient cause for judicial separation of
property:
xxx
(6) That at the time of the petition, the spouses have been separated in fact for at least
one year and reconciliation is highly improbable.
The amendments introduced in the Family Code are applicable to the case before us although
they became effective only on August 3, 1988. As we held in Ramirez vs. Court of Appeals:7
The greater weight of authority is inclined to the view that an appellate court, in reviewing a
judgment on appeal, will dispose of a question according to the law prevailing at the time of
such disposition, and not according to the law prevailing at the time of rendition of the
appealed judgment. The court will therefore reverse a judgment which was correct at the time
 G.R. No. 147978. January 23, 2002.*
THELMA A. JADER-MANALO, petitioner, vs. NORMA FERNANDEZ C. CAMAISA and EDILBERTO
CAMAISA, respondents.
Actions; Summary Judgment; A summary judgment is one granted by the court upon
motion by a party for an expeditious settlement of a case, there appearing from the pleadings,
depositions, admissions and affidavits that there are no important questions or issues of fact
involved, and that therefore, the moving party is entitled to judgment as a matter of law.—
Petitioner alleges that the trial court erred when it entered a summary judgment in favor of
respondent spouses there being a genuine issue of fact. Petitioner maintains that the issue of
whether the contracts to sell between petitioner and respondent spouses was perfected is a
question of fact necessitating a trial on the merits. The Court does not agree. A summary
judgment is one granted by the court upon motion by a party for an expeditious settlement of
a case, there appearing from the pleadings, depositions, admissions and affidavits that there
are no important questions or issues of fact involved, and that therefore, the moving party is
entitled to judgment as a matter of law. A perusal of the pleadings submit-
______________
*FIRST DIVISION.
499
VOL. 374, JANUARY 23, 2002 499
Jader-Manalo vs. Camaisa
ted by both parties show that there is no genuine controversy as to the facts involved
therein.
Husband and Wife; Conjugal Property; The disposition of a conjugal property by the
husband as administrator in appropriate cases must be with the written consent of the wife,
otherwise, the disposition is void.—The law requires that the disposition of a conjugal property
by the husband as administrator in appropriate cases requires the written consent of the wife,
otherwise, the disposition is void. Thus, Article 124 of the Family Code provides: Art. 124. The
administration and enjoyment of the conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to
recourse to the court by the wife for a proper remedy, which must be availed of within five
years from the date of the contract implementing such decision. In the event that one spouse
is incapacitated or otherwise unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of administration. These powers do not
include the powers of disposition or encumbrance which must have the authority of the court
or the written consent of the other spouse. In the absence of such authority or consent the
disposition or encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by the other spouse or authorization by
the court before the offer is withdrawn by either or both offerers. (Italics ours.)
Same; Same; Even granting that the wife actively participated in negotiating for the sale
of the properties, her written consent to the sale is required by law for its validity; Being merely
aware of a transaction is not consent.—Respondent Norma Camaisa admittedly did not give
her written consent to the sale. Even granting that respondent Norma actively participated in
negotiating for the sale of the subject properties, which she denied, her written consent to the
sale is required by law for its validity. Significantly, petitioner herself admits that Norma
refused to sign the contracts to sell. Respondent Norma may have been aware of the
negotiations for the sale of their conjugal properties. However, being merely aware of a
transaction is not consent.
Same; Same; The court authorization under Article 124 of the Family Code is only
resorted to in cases where the spouse who does not give consent is incapacitated.—Petitioner
argues that since respondent Norma unjustly refuses to affix her signatures to the contracts to
sell, court authorization under Article 124 of the Family Code is warranted. The argument is
bereft
500
500 SUPREME COURT REPORTS ANNOTATED
Jader-Manalo vs. Camaisa
of merit. Petitioner is correct insofar as she alleges that if the written consent of the
other spouse cannot be obtained or is being withheld, the matter may be brought to court
which will give such authority if the same is warranted by the circumstances. However, it
should be stressed that court authorization under Art. 124 is only resorted to in cases where
the spouse who does not give consent is incapacitated. In this case, petitioner failed to allege
and prove that respondent Norma was incapacitated to give her consent to the contracts. In
the absence of such showing of the wife’s incapacity, court authorization cannot be sought.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Thelma A. Jader-Manalo for and in her own behalf.
Jose R. Ebro, Jr., for private respondents.
KAPUNAN, J.:
The issue raised in this case is whether or not the husband may validly dispose of a conjugal
property without the wife’s written consent.
The present controversy had its beginning when petitioner Thelma A. Jader-Manalo
allegedly came across an advertisement placed by respondents, the Spouses Norma Fernandez
C. Camaisa and Edilberto Camaisa, in the Classified Ads Section of the newspaper BULLETIN
TODAY in its April, 1992 issue, for the sale of their ten-door apartment in Makati, as well as
that in Taytay, Rizal.
As narrated by petitioner in her complaint filed with the Regional Trial Court of Makati,
Metro Manila, she was interested in buying the two properties so she negotiated for the
purchase through a real estate broker, Mr. Proceso Ereno, authorized by respondent
spouses.1 Petitioner made a visual inspection of the said lots with the real estate broker and
was shown the tax declarations, real property tax payment receipts, location plans, and
______________
1Paragraph IV of Complaint; Rollo, p. 61.
501
VOL. 374, JANUARY 23, 2002 501
Jader-Manalo vs. Camaisa
vicinity maps relating to the properties.2 Thereafter, petitioner met with the vendors who
turned out to be respondent spouses. She made a definite offer to buy the properties to
respondent Edilberto Camaisa with the knowledge and conformity of his wife, respondent
Norma Camaisa in the presence of the real estate broker.3 After some bargaining, petitioner
and Edilberto agreed upon the purchase price of P1,500,000.00 for the Taytay property and
P2,100,000.00 for the Makati property4 to be paid on installment basis with downpayments of
P100,000.00 and P200,000.00, respectively, on April 15, 1992. The balance thereof was to be
paid as follows:5
Taytay Property Makati Property
6th month P 200,000.00 P 300,000.00
12th month 700,000.00 1,600,000.00
18th month 500,000.00
This agreement was handwritten by petitioner and signed by Ediberto.6 When petitioner
pointed out the conjugal nature of the properties, Edilberto assured her of his wife’s
conformity and consent to the sale.7 The formal typewritten Contracts to Sell were thereafter
prepared by petitioner. The following day, petitioner, the real estate broker and Edilberto met
in the latter’s office for the formal signing of the typewritten Contracts to Sell.8 After Edilberto
signed the contracts, petitioner delivered to him two checks, namely, UCPB Check No. 62807
dated April 15, 1992 for P200,000.00 and UCPB Check No. 62808 also dated April 15, 1992 for
P100,000.00 in the presence of the real estate broker and an
______________
2 wife Norma Camaisa.16 Thereafter, when Norma refused to give her consent to the sale, her
Paragraph V of Complaint; id.
3 refusal was duly communicated by Edilberto to petitioner.17 The checks issued by petitioner
Paragraph VI of Complaint; id.
4 Paragraph VII of Complaint, id., at p. 62.
5 Id.
6 The handwritten agreement was attached as Annex “E” to the Complaint; Rollo, pp. 80-
83.
7 sale of the subject properties and that she gave her consent and conformity to the same.20
Supra, Note 4.
8 On October 20, 1992, respondent Norma F. Camaisa filed a Motion for Summary
Paragraph IX of Complaint; Rollo, p. 63.
502
502 SUPREME COURT REPORTS ANNOTATED
Jader-Manalo vs. Camaisa
employee in Edilberto’s office.9 The contracts were given to Edilberto for the formal affixing of
his wife’s signature.
The following day, petitioner received a call from respondent Norma requesting a meeting
to clarify some provisions of the contracts.10 To accommodate her queries, petitioner,
accompanied by her lawyer, met with Edilberto and Norma and the real estate broker at Cafe
Rizal in Makati.11During the meeting, handwritten notations were made on the contracts to
sell, so they arranged to incorporate the notations and to meet again for the formal signing of
the contracts.12
When petitioner met again with respondent spouses and the real estate broker at
Edilberto’s office for the formal affixing of Norma’s signature, she was surprised when
respondent spouses informed her that they were backing out of the agreement because they
needed “spot cash” for the full amount of the consideration.13 Petitioner reminded respondent
spouses that the contracts to sell had already been duly perfected and Norma’s refusal to sign
the same would unduly prejudice petitioner. Still, Norma refused to sign the contracts
prompting petitioner to file a complaint for specific performance and damages against
respondent spouses before the Regional Trial Court of Makati, Branch 136 on April 29, 1992,
to compel respondent Norma Camaisa to sign the contracts to sell.
A Motion to Dismiss14 was filed by respondents which was denied by the trial court in its
Resolution of July 21, 1992.15
Respondents then filed their Answer with Compulsory Counterclaim, alleging that it was
an agreement between herein petitioner and respondent Edilberto Camaisa that the sale of
the subject properties was still subject to the approval and conformity of his
______________
9 Photocopies of these checks were attached as Annex “H” to the Complaint; Rollo, pp. 90-
92.
10 Paragraph XI of Complaint; Rollo, pp. 63-64.
11 Paragraph XII of Complaint; id.
12 Paragraph XIII of Complaint; id.
13 Paragraph XIX; id., pp. 64-65.
14 Rollo, pp. 107-110.
15 Id., at p. 143.
503
VOL. 374, JANUARY 23, 2002 503
Jader-Manalo vs. Camaisa
were returned to her by Edilberto and she accepted the same without any
objection.18 Respondent further claimed that the acceptance of the checks returned to
petitioner signified her assent to the cancellation of the sale of the subject
properties.19 Respondent Norma denied that she ever participated in the negotiations for the
Judgment21 asserting that there is no genuine issue as to any material fact on the basis of the
pleadings and admission of the parties considering that the wife’s written consent was not
obtained in the contract to sell, the subject conjugal properties belonging to respondents;
hence, the contract was null and void.
On April 14, 1993, the trial court rendered a summary judgment dismissing the complaint
on the ground that under Art. 124 of the Family Code, the court cannot intervene to authorize
the transaction in the absence of the consent of the wife since said wife who refused to give
consent had not been shown to be incapacitated. The dispositive portion of the trial court’s
decision reads:
WHEREFORE, considering these premises, judgment is hereby rendered:
1.Dismissing the complaint and ordering the cancellation of the Notice of Lis Pendens
by reason of its filing on TCT Nos. (464860) S-8724 and (464861) S-8725 of the Registry
of Deeds at Makati and on TCT Nos. 295976 and 295971 of the Registry of Rizal.
2.Ordering plaintiff Thelma A. Jader to pay defendant spouses Norma and Edilberto
Camaisa, FIFTY THOUSAND (P50,000.00) as Moral Damages and FIFTY THOUSAND
(P50,000.00) as Attorney’s Fees.
Costs against plaintiff.22
Petitioner, thus, elevated the case to the Court of Appeals. On November 29, 2000, the Court
of Appeals affirmed the dismissal by the trial court but deleted the award of P50,000.00 as
damages and P50,000.00 as attorney’s fees.
The Court of Appeals explained that the properties subject of the contracts were conjugal
properties and as such, the consent of both spouses is necessary to give effect to the sale.
Since private respondent Norma Camaisa refused to sign the contracts, the sale was never
perfected. In fact, the downpayment was returned by respondent spouses and was accepted
by petitioner. The Court of Appeals also stressed that authority of the court to allow sale or
encumbrance of a conjugal property without the consent of the other spouse is applicable only
in cases where the said spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal property.
Hence, the present recourse assigning the following errors:
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED IN RENDERING SUMMARY
JUDGMENT IN DISMISSING THE COMPLAINT ENTIRELY AND ORDERING THE CANCELLATION OF
NOTICE OF LIS PENDENS ON THE TITLES OF THE SUBJECT REAL PROPERTIES;
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED IN FAILING TO CONSIDER THAT
THE SALE OF REAL PROPERTIES BY RESPONDENTS TO PETITIONER HAVE ALREADY BEEN
PERFECTED, FOR AFTER THE LATTER PAID P300,000.00 DOWNPAYMENT, RESPONDENT MRS.
CAMAISA NEVER OBJECTED TO STIPULATIONS WITH RESPECT TO PRICE, OBJECT AND TERMS
OF PAYMENT IN THE CONTRACT TO SELL ALREADY SIGNED BY THE PETITIONER, RESPONDENT
MR. CAMAISA AND WITNESSES MARKED AS ANNEX “G” IN THE COMPLAINT EXCEPT, FOR
MINOR PROVISIONS ALREADY IMPLIED BY LAW, LIKE EJECTMENT OF TENANTS, SUBDIVISION
OF TITLE AND RESCISSION IN CASE OF NONPAYMENT, WHICH PETITIONER READILY AGREED
AND ACCEDED TO THEIR INCLUSION;
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED WHEN IT FAILED TO CONSIDER
THAT CONTRACT OF SALE IS CONSENSUAL AND IT IS PERFECTED BY THE MERE CONSENT OF
THE PARTIES AND THE APPLICABLE PROVISIONS ARE ARTICLES 1157, 1356, 1357, 1358, 1403,
1405 AND 1475 OF THE CIVIL CODE OF THE PHILIPPINES AND GOVERNED BY THE STATUTE OF
FRAUD.23
The Court does not find error in the decisions of both the trial court and the Court of Appeals.
Petitioner alleges that the trial court erred when it entered a summary judgment in favor
of respondent spouses there being a genuine issue of fact. Petitioner maintains that the issue
of whether the contracts to sell between petitioner and respondent spouses was perfected is
a question of fact necessitating a trial on the merits.
The Court does not agree. A summary judgment is one granted by the court upon motion
by a party for an expeditious settlement of a case, there appearing from the pleadings,
depositions, admissions and affidavits that there are no important questions or issues of fact
involved, and that therefore the moving party is entitled to judgment as a matter of law. 24 A
perusal of the pleadings submitted by both parties show that there is no genuine controversy
as to the facts involved therein.
Both parties admit that there were negotiations for the sale of four parcels of land
between petitioner and respondent spouses; that petitioner and respondent Edilberto
Camaisa came to an agreement as to the price and the terms of payment, and a downpayment
was paid by petitioner to the latter; and that respondent Norma refused to sign the contracts
to sell. The issue thus posed for resolution in the trial court was whether or not the contracts
to sell between petitioner and respondent spouses were already perfected such that the latter
could no longer back out of the agreement.
The law requires that the disposition of a conjugal property by the husband as
administrator in appropriate cases requires the written consent of the wife, otherwise, the
disposition is void. Thus, Article 124 of the Family Code provides:
Art. 124. The administration and enjoyment of the conjugal partnership property shall belong
to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject
to recourse to the court by the wife for a proper remedy, which must be availed of within five
years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition or encumbrance which
must have the authority of the court or the written consent of the other spouse. In the absence
of such authority or consent the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the consenting spouse and
the third person, and may be perfected as a binding contract upon the acceptance by the other
spouse or authorization by the court before the offer is withdrawn by either or both offerers.
(Italics ours.)
The properties subject of the contracts in this case were conjugal; hence, for the contracts to
sell to be effective, the consent of both husband and wife must concur.
Respondent Norma Camaisa admittedly did not give her written consent to the sale. Even
granting that respondent Norma actively participated in negotiating for the sale of the subject
properties, which she denied, her written consent to the sale is required by law for its validity.
Significantly, petitioner herself admits that Norma refused to sign the contracts to sell.
Respondent Norma may have been aware of the negotiations for the sale of their conjugal
properties. However, being merely aware of a transaction is not consent.25
Finally, petitioner argues that since respondent Norma unjustly refuses to affix her
signatures to the contracts to sell, court authorization under Article 124 of the Family Code is
warranted.
The argument is bereft of merit. Petitioner is correct insofar as she alleges that if the
written consent of the other spouse cannot be obtained or is being withheld, the matter may
be brought to court which will give such authority if the same is warranted by the
circumstances. However, it should be stressed that court authorization under Art. 124 is only
resorted to in cases where the spouse who does not give consent is incapacitated.26
In this case, petitioner failed to allege and prove that respondent Norma was incapacitated
to give her consent to the contracts. In the absence of such showing of the wife’s incapacity,
court authorization cannot be sought.
Under the foregoing facts, the motion for summary judgment was proper considering that
there was no genuine issue as to any material fact. The only issue to be resolved by the trial
court was whether the contract to sell involving conjugal properties was valid without the
written consent of the wife.
WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals dated
November 29, 2000 in CA-G.R. CV No. 43421 is AFFIRMED.
SO ORDERED.
 G.R. No. 166496. November 29, 2006.*
JOSEFA BAUTISTA FERRER, petitioner, vs. SPS. MANUEL M. FERRER & VIRGINIA FERRER and
SPS. ISMAEL M. FERRER and FLORA FERRER, respondents.
Actions; Causes of Action; Elements; Failure to make a sufficient allegation of a cause of
action in the complaint warrants the dismissal thereof.—Section 1(g) Rule 16 of the 1997 Rules
of Civil Procedure makes it clear that failure to make a sufficient allegation of a cause of action
in the complaint warrants the dismissal thereof. Section 2, Rule 2 of the 1997 Rules of Civil
Procedure defines a cause of action as the act or omission by which a party violates the right
of another. It is the delict or the wrongful act or omission committed by the defendant in
violation of the primary right of the plaintiff. A cause of action has the following essential
elements, viz.: (1) A right in favor of the plaintiff by whatever means and under whatever law
it arises or is created; (2) An obligation on the part of the named defendant to respect or not
to violate such right; and (3) Act or omission on the part of such defendant in violation of the
right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff
for which the latter may maintain an action for recovery of damages or other appropriate
relief.
Husband and Wife; Conjugal Partnerships; Sales; The obligation to reimburse for the
cost of improvements, under Article 120 of the Family Code, rests on the spouse upon whom
ownership of the
_______________
*FIRST DIVISION.
571
VOL. 508, NOVEMBER 29, 2006 571
Ferrer vs. Ferrer
entire property is vested—there is no obligation on the part of the purchaser of the
property, in case the property is sold by the ownerspouse; When the cost of the improvement
and any resulting increase in value are more than the value of the property at the time of the
improvement, the entire property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the property of the owner-spouse at the
time of the improvement, otherwise, said property shall be retained in ownership by the
ownerspouse.—Petitioner was not able to show that there is an obligation on the part of the
respondents to respect or not to violate her right. While we could concede that Civil Case No.
61327 made a reference to the right of the spouse as contemplated in Article 120 of the Family
Code to be reimbursed for the cost of the improvements, the obligation to reimburse rests on
the spouse upon whom ownership of the entire property is vested. There is no obligation on
the part of the purchaser of the property, in case the property is sold by the ownerspouse.
Indeed, Article 120 provides the solution in determining the ownership of the improvements
that are made on the separate property of the spouses at the expense of the partnership or
through the acts or efforts of either or both spouses. Thus, when the cost of the improvement
and any resulting increase in value are more than the value of the property at the time of the
improvement, the entire property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the property of the owner-spouse at the
time of the improvement; otherwise, said property shall be retained in ownership by the
owner-spouse, likewise subject to reimbursement of the cost of the improvement. The subject
property was precisely declared as the exclusive property of Alfredo on the basis of Article 120
of the Family Code.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Romualdo M. Jubay for petitioner.
Tambio Law Office for private respondents.
572
572 SUPREME COURT REPORTS ANNOTATED
Ferrer vs. Ferrer
CHICO-NAZARIO, J.:
Before this Court is an Appeal by Certiorari which assails the Decision1 of the Court of Appeals
dated 16 August 2004 in CA-G.R. SP No. 78525, reversing and setting aside the Order2dated 16
December 2002 of the Regional Trial Court (RTC), Mandaluyong City, Branch 212 in Civil Case
No. MC02–1780. The Court of Appeals ordered the dismissal of the Complaint3 filed by
petitioner Josefa Bautista Ferrer against respondents Sps. Manuel M. Ferrer and Virginia
Ferrer, and Sps. Ismael M. Ferrer and Flora Ferrer in the aforesaid Civil Case No. MC02–1780.
In her Complaint for payment of conjugal improvements, sum of money, and accounting
with prayer for injunction and damages, petitioner alleged that she is the widow of Alfredo
Ferrer (Alfredo), a half-brother of respondents Manuel M. Ferrer (Manuel) and Ismael M.
Ferrer (Ismael). Before her marriage to Alfredo, the latter acquired a piece of lot, covered by
Transfer Certificate of Title (TCT) No. 67927.4 He applied for a loan with the Social Security
System (SSS) to build improvements thereon, including a residential house and a twodoor
apartment building. However, it was during their marriage that payment of the loan was made
using the couple’s conjugal funds. From their conjugal funds, petitioner posited, they
constructed a warehouse on the lot. Moreover, petitioner averred that respondent Manuel
occupied one door of the apartment building, as well as the warehouse; however, in
September 1991, he stopped paying rentals thereon, alleging that he had acquired ownership
over the property by virtue of a Deed of Sale executed by Alfredo in favor of respondents,
_______________
1 Penned by Associate Justice Delilah Vidallon-Magtolis with Associate Justices Eliezer R.
De Los Santos and Arturo D. Brion, concurring; Rollo, pp. 27–35.
2 Id., at pp. 40–41.
3 Records, pp. 1–9.
4 Id., at pp. 11–12.
573
VOL. 508, NOVEMBER 29, 2006 573
Ferrer vs. Ferrer
Manuel and Ismael and their spouses. TCT No. 67927 was cancelled, and TCT. No. 2728 was
issued and registered in the names of respondents.
It is petitioner’s contention that on 2 October 1989, when her husband was already
bedridden, respondents Ismael and Flora Ferrer made him sign a document, purported to be
his last will and testament. The document, however, was a Deed of Sale covering Alfredo’s lot
and the improvements thereon. Learning of this development, Alfredo filed with the RTC of
Pasig, a Complaint for Annulment of the said sale against respondents, docketed as Civil Case
No. 61327.5 On 22 June 1993, the RTC dismissed the same.6 The RTC found that the terms and
conditions of the Deed of Sale are not contrary to law, morals, good customs, and public policy,
and should be complied with by the parties in good faith, there being no compelling reason
under the law to do otherwise. The dismissal was affirmed by the Court of Appeals.
Subsequently, on 7 November 1994, this Court, in G.R. No. L-117067, finding no reversible
error committed by the appellate court in affirming the dismissal of the RTC, affirmed the
Decision of the Court of Appeals.7
Further, in support of her Complaint, petitioner alluded to a portion of the Decision dated
22 June 1993 of the RTC in Civil Case No. 61327, which stated, to wit:
“In determining which property is the principal and which is the accessory, the property of
greater value shall be considered the principal. In this case, the lot is the principal and the
improvements the accessories. Since Article 120 of the Family Code provides the rule that the
ownership of accessory follows the ownership of the principal, then the subject lot with all its
improvements became an exclusive and capital property of Alfredo with an obligation to reim
_______________
5 Entitled, Sps. Alfredo S. Ferrer and Josefa Jimenez Ferrer v. Sps. Ismael R. Ferrer and Flora
C. Ferrer and Sps. Manuel M. Ferrer and Virginia Ferrer.
6 Penned by Jose H. Hernandez; Records, pp. 17–22.
7 Id., at p. 3.
574
574 SUPREME COURT REPORTS ANNOTATED
Ferrer vs. Ferrer
burse the conjugal partnership of the cost of improvements at the time of liquidation of [the]
conjugal partnership. Clearly, Alfredo has all the rights to sell the subject property by himself
without need of Josefa’s consent.”8
According to petitioner, the ruling of the RTC shows that, when Alfredo died on 29 September
1999, or at the time of the liquidation of the conjugal partnership, she had the right to be
reimbursed for the cost of the improvements on Alfredo’s lot. She alleged that the cost of the
improvements amounted to P500,000.00; hence, one-half thereof should be reimbursed and
paid by respondents as they are now the registered owners of Alfredo’s lot. She averred that
respondents cannot claim lack of knowledge about the fact that the improvements were
constructed using conjugal funds as they had occupied one of the apartment buildings on
Alfredo’s lot, and even paid rentals to petitioner. In addition, petitioner prayed that
respondents be ordered to render an accounting from September, 1991, on the income of the
boarding house constructed thereon which they had appropriated for themselves, and to remit
one-half thereof as her share. Finally, petitioner sought from respondents moral and
exemplary damages, litigation and incidental expenses.
For their part, respondents filed a Motion to Dismiss,9contending that petitioner had no
cause of action against them, and that the cause of action was barred by prior judgment.
On 16 December 2002, the RTC rendered an Order,10denying the Motion to Dismiss.
According to the RTC, no pronouncement as to the improvements constructed on Alfredo’s lot
has been made in Civil Case No. 61327, and the payment of petitioner’s share in the conjugal
partnership constitutes a separate cause of action. A subsequent Order11dated 17 January
2003 was issued by the RTC, denying respondents’ Motion for Reconsideration.
Aggrieved, respondents elevated the case to the Court of Appeals by way of a Petition
for Certiorari, alleging grave abuse of discretion amounting to lack or excess of jurisdiction on
the RTC in denying the dismissal.
On 16 August 2004, the Court of Appeals rendered a Decision granting the Petition. It held
that petitioner’s Complaint failed to state a cause of action. The appellate court rationalized as
follows:
“[W]e believe that the instant complaint is not the proper action for the respondent to enforce
her right of reimbursement of the cost of the improvement[s] on the subject property. As
correctly pointed out by the petitioners, the same should be made and directed in the
settlement of estate of her deceased husband Alfredo Ferrer pursuant to Article 12912 of the
Family Code. Such being the case, it appears that the complaint herein fails to state a cause of
action against the petitioners, the latter not being the proper parties against whom the subject
action for reimbursement must be directed to. A complaint states a cause of action where it
contains three essential elements of a cause of action, namely: (1) the legal right of the
plaintiff; (2) the correlative obligation of the defendant, and (3) the act or omission of the
defendant in violation of said legal right. If these elements are absent, the complaint becomes
vulnerable to a motion to dismiss on the ground of failure to state a cause of action. Albeit the
respondent herein has the legal right to be reimbursed of the cost of the improvements of the
subject property, it is not the petitioners but the estate of her deceased husband which has
the obligation to pay the same. The complaint herein is therefore dismissible for failure to state
a cause of action against the petitioners. Needless to say, the respondent is not without any
further recourse as she may file her claim against the estate of her deceased husband.
In light of the foregoing, we find that the public respondent committed grave abuse
of discretion in denying the petitioners’ motion to dismiss for failure to state a cause of
action.”13
Aggrieved, petitioner filed a Motion for Reconsideration thereon. However, on 17 December
2004, the Court of Appeals rendered a Resolution14 denying the motion.
Hence, the present recourse.
Petitioner submits the following grounds for the allowance of the instant Petition, to wit:
A.THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PETITIONER’S
COMPLAINT FAILS TO STATE A CAUSE OF ACTION AGAINST THE RESPONDENTS, THE
LATTER NOT BEING THE PROPER PARTIES AGAINST WHOM THE SUBJECT ACTION FOR
REIMBURSEMENT MUST BE DIRECTED TO.
B.THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE PUBLIC
RESPONDENT, HON. RIZALINA T. CAPCO-UMALI, COMMITTED GRAVE ABUSE OF
DISCRETION IN DENYING THE [RESPONDENTS’] MOTION TO DISMISS FOR FAILURE TO
STATE A CAUSE OF ACTION.15
Both arguments raise the sole issue of whether the Court of Appeals erred in dismissing
petitioner’s Complaint for failure to state a cause of action.
Section 1(g) Rule 1616 of the 1997 Rules of Civil Procedure makes it clear that failure to
make a sufficient allegation of a cause of action in the complaint warrants the dismissal
thereof. Section 2, Rule 2 of the 1997 Rules of Civil Procedure defines a cause of action as the
act or omission by which a party violates the right of another. It is the delict or the wrongful
act or omission committed by the defendant in violation of the primary right of the plaintiff.17
A cause of action has the following essential elements, viz.:
 (1)A right in favor of the plaintiff by whatever means and under whatever law it arises What is incontrovertible is that the respondents, despite the allegations contained in the
or is created; Complaint that they are the buyers of the subject premises, are not petitioner’s spouse nor
can they ever be deemed as the owner-spouse upon whom the obligation to reimburse
(2)An obligation on the part of the named defendant to respect or not to violate such petitioner for her costs rested. It is the owner-spouse who has the obligation to reimburse the
right; and conjugal partnership or the spouse who expended the acts or efforts, as the case may be.
Otherwise stated, respondents do not have the obligation to respect petitioner’s right to be
reimbursed.
(3)Act or omission on the part of such defendant in violation of the right of the plaintiff
On this matter, we do not find an act or omission on the part of respondents in violation
or constituting a breach of the obligation of the defendant to the plaintiff for which the
of petitioner’s rights. The right of the respondents to acquire as buyers the subject premises
latter may maintain an action for recovery of damages or other appropriate relief. 18
from Alfredo under the assailed Deed of Sale in Civil Case No. 61327 had been laid to rest. This
is because the validity of the Deed of Sale had already been determined and upheld with
A complaint states a cause of action only when it has the three indispensable elements.19 finality. The same had been similarly admitted by petitioner in her Complaint. It can be said,
In the determination of the presence of these elements, inquiry is confined to the four thus, that respondents’ act of acquiring the subject property by sale was not in violation of
corners of the complaint. Only the statements in the Complaint may be properly petitioner’s rights. The same can also be said of the respondents’ objection to reimburse
considered.20The absence of any of these elements makes a complaint vulnerable to a Motion petitioner. Simply, no correlative obligation exists on the part of the respondents to reimburse
to Dismiss on the ground of a failure to state a cause of action.21 the petitioner. Corollary thereto, neither can it be said that their refusal to reimburse
After a reading of the allegations contained in petitioner’s Complaint, we are convinced constituted a violation of petitioner’s rights. As has been shown in the foregoing, no obligation
that the same failed to state a cause of action. by the respondents under the law exists. Petitioner’s Complaint failed to state a cause of action
In the case at bar, petitioner asserts a legal right in her favor by relying on the Decision of against the respondents, and for this reason, the Court of Appeals was not in error in dismissing
the RTC in Civil Case No. 61327. It can be recalled that the aforesaid case is an action for the same.
Annulment filed by Alfredo and petitioner against the respondents to seek annulment of the WHEREFORE, the Petition is DENIED. The Decision dated 16 August 2004 and the
Deed of Sale, executed by Alfredo in respondents’ favor and covering the herein subject Resolution dated 17 December 2004 of the Court of Appeals in CA-G.R. SP. No. 78525 are
premises. The Complaint was dismissed by the RTC, and subsequently affirmed by the Court of AFFIRMED. Costs de oficio.
Appeals and by this Court in G.R. No. L-117067. SO ORDERED.
According to petitioner, while the RTC in Civil Case No. 61327 recognized that the
improvements constructed on Alfredo’s lots were deemed as Alfredo’s exclusive and capital
property, the court also held that petitioner, as Alfredo’s spouse, has the right to claim
reimbursement from the estate of Alfredo. It is argued by petitioner that her husband had no
other property, and his only property had been sold to the respondents; hence, she has the
legal right to claim for reimbursement from the respondents who are now the owners of the
lot and the improvements thereon. In fine, petitioner asseverates that the Complaint cannot
be dismissed on the ground of failure to state a cause of action because the respondents have
the correlative obligation to pay the value of the improvements.
Petitioner was not able to show that there is an obligation on the part of the respondents
to respect or not to violate her right. While we could concede that Civil Case No. 61327made
a reference to the right of the spouse as contemplated in Article 12022 of the Family Code to
be reimbursed for the cost of the improvements, the obligation to reimburse rests on the
spouse upon whom ownership of the entire property is vested. There is no obligation on the
part of the purchaser of the property, in case the property is sold by the owner-spouse.
Indeed, Article 120 provides the solution in determining the ownership of the
improvements that are made on the separate property of the spouses at the expense of the
partnership or through the acts or efforts of either or both spouses. Thus, when the cost of the
improvement and any resulting increase in value are more than the value of the property at
the time of the improvement, the entire property of one of the spouses shall belong to the
conjugal partnership, subject to reimbursement of the value of the property of the owner-
spouse at the time of the improvement; otherwise, said property shall be retained in
ownership by the owner-spouse, likewise subject to reimbursement of the cost of the
improvement. The subject property was precisely declared as the exclusive property of Alfredo
on the basis of Article 120 of the Family Code.
 G.R. No. 153828. October 24, 2003.*
LINCOLN L. YAO, petitioner, vs. HONORABLE NORMA C. PERELLO, in her capacity as Presiding
Judge of the Regional Trial Court, Branch 276, Muntinlupa City, THE EX-OFICIO SHERIFF,
REGIONAL TRIAL COURT, MUNTINLUPA CITY and BERNADINE D. VILLARIN, respondents.
Courts; Judgments; Writs of Execution; It is a basic precept that the power of the court
in the execution of judgments extends only to properties unquestionably belonging to the
judgment debtor.—It is a basic precept that the power of the court in the execution of
judgments extends only to properties unquestionably belonging to the judgment debtor. The
levy by the sheriff on property by virtue of a writ of attachment may be considered as made
under the authority of the court only vis-à-vis property belonging to the defendant. For indeed,
“one man’s goods shall not be sold for another man’s debts.” In the case at bar, the property
levied on by the sheriff was clearly not exclusively owned by Pablito Villarin. It was co-owned
by herein private respondent who was a stranger in the HLURB case. The property relation of
spouses Villarin was governed by the regime of complete separation of property as decreed in
the order dated November 10, 1998 of the Regional Trial Court, Branch 27, Parañaque City.
_______________
*THIRD DIVISION.
475
VOL. 414, OCTOBER 24, 2003 475
Yao vs. Perello
Actions; Prohibition; Parties; Intervention; Requisites; Nothing in Section 2, Rule 65 of
the Rules of Court requires the inclusion of a private party as respondent in petitions for
prohibition.—Consequently, petitioner’s claim that he had the right to intervene is without
basis. Nothing in the said provision requires the inclusion of a private party as respondent in
petitions for prohibition. On the other hand, to allow intervention, it must be shown that (a)
the movant has a legal interest in the matter in litigation or otherwise qualified, and (b)
consideration must be given as to whether the adjudication of the rights of the original parties
may be delayed or prejudiced, or whether the intervenor’s rights may be protected in a
separate proceeding or not. Both requirements must concur as the first is not more important
than the second.
Same; Intervention; The motion for intervention may be filed at any time before
rendition of judgment by the trial court.—As provided in the Rules of Court, the motion for
intervention may be filed at any time before rendition of judgment by the trial court. Petitioner
filed his motion only on April 25, 2002, way beyond the period set forth in the rules. The court
resolution granting private respondent’s petition for prohibition and lifting the levy on the
subject property was issued on March 22, 2002. By April 6, 2002, after the lapse of 15 days,
the said resolution had already become final and executory.
Same; Certiorari; Motions for Reconsideration; Certiorari as a special civil action will not
lie unless a motion for reconsideration is first filed before the respondent court to allow it an
opportunity to correct its errors, if any.—Besides, the mere fact that petitioner failed to move
for the reconsideration of the trial court’s resolution is sufficient cause for the outright
dismissal of the instant petition. Certiorari as a special civil action will not lie unless a motion
for reconsideration is first filed before the respondent court to allow it an opportunity to
correct its errors, if any.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Cortez & Associates for petitioner.
Cerilles, De Grano, Mendoza, Carandang & Mayuga Law Offices for private respondent.
CORONA, J.:
Before us is a petition for certiorari filed by Lincoln L. Yao, assailing the resolution dated March
22, 2002 and Order dated May 10, 2002, of the Regional Trial Court of Parañaque City, Branch
476
476 SUPREME COURT REPORTS ANNOTATED
Yao vs. Perello
274,1 which respectively granted private respondent Bernadine D. Villarin’s petition for
prohibition and denied petitioner’s motion for intervention.
The present controversy stemmed from a complaint filed by petitioner before the Housing
and Land Use Regulatory Board (HLURB) against a certain corporation, PR Builders, Inc. and its
managers, Enrico Baluyot and Pablito Villarin, private respondent’s husband.
On September 17, 1999, the HLURB rendered a decision rescinding the contract to sell
between petitioner and PR Builders, and ordering PR Builders to refund petitioner the amount
of P2,116,103.31, as well as to pay damages in the amount of P250,000.
Thereafter, the HLURB issued a writ of execution against PR Builders and its managers, and
referred the writ to the office of the Clerk of Court of Muntinlupa for enforcement. Pursuant
to the writ, the deputy sheriff levied on a parcel of land in Canlubang, Calamba, Laguna,
registered in the names of spouses Pablito Villarin and private respondent, Bernadine Villarin.
The property was scheduled for public auction on March 20, 2002.
On March 19, 2002, private respondent filed before the RTC of Parañaque City, a petition
for prohibition with prayer for temporary restraining order and/or writ of preliminary
injunction, seeking to enjoin Sheriff Melvin T. Bagabaldo from proceeding with the public
auction. Private respondent alleged that she co-owned the property subject of the execution
sale; that the property regime between private respondent and her husband was complete
separation of property, and that she was not a party in the HLURB case, hence, the subject
property could not be levied on to answer for the separate liability of her husband.
On even date, public respondent Judge Norma C. Perrello issued a 72-hour temporary
restraining order and set the case for raffle and conference on March 22, 2002.
The case was eventually raffled to RTC, Branch 276, presided by public respondent judge.
A conference was then conducted, after which public respondent judge issued the assailed
resolution of
_______________
1Presided by Judge Norma C. Perello.
477
VOL. 414, OCTOBER 24, 2003 477
Yao vs. Perello
March 22, 2002 granting private respondent’s petition for prohibition and declaring the subject
property exempt from execution. Hence, the scheduled auction sale did not materialize.
 On April 25, 2002, or more than a month after public respondent judge issued the
resolution of March 22, 2002, petitioner filed a motion for intervention. However, public
respondent judge denied the motion in her assailed order of May 10, 2002:
ORDER
“The MOTION FOR INTERVENTION is denied, considering that this case has long been decided,
hence the intervention is too late. There is no case for them to intervene.
Let the decision be executed to satisfy the judgment debt.
SO ORDERED in open Court.”2
Aggrieved, petitioner filed the instant petition for certiorari imputing grave abuse of discretion
to public respondent judge in: (a) declaring the subject property exempt from execution and
therefore could not be sold to satisfy the obligation of private respondent’s husband, and (b)
denying petitioner’s motion for intervention on the ground that the same was filed late.
It is a basic precept that the power of the court in the execution of judgments extends only
to properties unquestionably belonging to the judgment debtor. The levy by the sheriff on
property by virtue of a writ of attachment may be considered as made under the authority of
the court only vis-à-vis property belonging to the defendant. For indeed, “one man’s goods
shall not be sold for another man’s debts.”3 In the case at bar, the property levied on by the
sheriff was clearly not exclusively owned by Pablito Villarin. It was co-owned by herein private
respondent who was a stranger in the HLURB case. The property relation of spouses Villarin
was governed by the regime of complete separation of property as decreed in the order4 dated
November 10, 1998 of the Regional Trial Court, Branch 27, Parañaque City.
Articles 145 and 146 of the Family Code governing the regime of complete separation of
property provide:
Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own
separate estate, without need of the consent of the other. To each spouse shall belong all
earnings from his or her profession, business or industry and all fruits, natural, industrial or
civil, due or received during his marriage from his or her separate property. (214a)
Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in
case of insufficiency or default thereof, to the current market value of their separate
properties.
The liability of the spouses to creditors for family expenses shall, however, be solidary.
(215a)
It is clear from the foregoing that the only time the separate properties of the spouses can be
made to answer for liabilities to creditors is when those liabilities are incurred for family
expenses. This has not been shown in the case at bar.
Accordingly, private respondent acted well within her rights in filing a petition for
prohibition against the deputy sheriff because the latter went beyond his authority in attaching
the subject property. This right is specifically reserved by Section 17, Rule 39 of the Rules of
Court.
Petitioner insists that, in a petition for prohibition, it is essential that the party who is
interested in sustaining the act or acts sought to be prohibited or enjoined be impleaded as
private respondent. Thus, as the judgment creditor in the HLURB case, petitioner claims that
he was an indispensable party in the petition for prohibition and should have been allowed to
intervene in the said case. He was not allowed to do so.
Section 2, Rule 65 of the Rules of Court provides:
SEC. 2. Petition for prohibition.—When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a certified true copy of the judgment, order
or resolution subject thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as provided in the last paragraph of
Section 3, Rule 46. (2a)
Consequently, petitioner’s claim that he had the right to intervene is without basis. Nothing in
the said provision requires the inclusion of a private party as respondent in petitions for
prohibition. On the other hand, to allow intervention, it must be shown that (a) the movant
has a legal interest in the matter in litigation or otherwise qualified, and (b) consideration must
be given as to whether the adjudication of the rights of the original parties may be delayed or
prejudiced, or whether the intervenor’s rights may be protected in a separate proceeding or
not. Both requirements must concur as the first is not more important than the second.5
In the case at bar, it cannot be said that petitioner’s right as a judgment creditor was
adversely affected by the lifting of the levy on the subject real property. Records reveal that
there are other pieces of property exclusively owned by the defendants in the HLURB case that
can be levied upon.
Moreover, even granting for the sake of argument that petitioner indeed had the right to
intervene, he must exercise said right in accordance with the rules and within the period
prescribed therefor.
As provided in the Rules of Court, the motion for intervention may be filed at any time
before rendition of judgment by the trial court.6 Petitioner filed his motion only on April 25,
2002, way beyond the period set forth in the rules. The court resolution granting private
respondent’s petition for prohibition and lifting the levy on the subject property was issued on
March 22, 2002. By April 6, 2002, after the lapse of 15 days, the said resolution had already
become final and executory.
Besides, the mere fact that petitioner failed to move for the reconsideration of the trial
court’s resolution is sufficient cause for the outright dismissal of the instant petition. Certiorari
as a special civil action will not lie unless a motion for reconsideration is first filed before the
respondent court to allow it an opportunity to correct its errors, if any.
Finally, grave abuse of discretion is committed when the power is exercised in an arbitrary
or despotic manner by reason of passion or personal hostility. The Court fails to find grave
abuse of discretion committed by public respondent judge in rendering the assailed resolution
and order.
WHEREFORE, the petition is hereby dismissed for lack of merit.
SO ORDERED.
 No. L-45870. May 11, 1984.*
MARGARET MAXEY assisted by Santiago Magbanua; FLORENCE MAXEY assisted by Ofrecinio
Santos; and LUCILLE MAXEY, petitioners, vs. THE HONORABLE COURT OF APPEALS AND THE
SPOUSES BEATO C. MACAYRA and ALACOPUE MONDAY, respondents.
Marriages; Husband and Wife; Military Law; The marriage law of 1903, Gen. Order No.
70, does not recognize validity of marriage in the “military fashion;” Lower Courts correctly
ruled that couple got married only on February 16, 1919 after living as common-law spouses
before that.—The Court of First Instance and the Court of
_______________
*FIRST DIVISION.
188
188 SUPREME COURT REPORTS ANNOTATED
Maxey vs. Court of Appeals
Appeals correctly rejected the argument that Act No. 3613, the Revised Marriage Law,
recognized “military fashion” marriages as legal. Maxey and Morales were legally married at a
church wedding solemnized on February 16, 1919. Since Act No. 3613 was approved on
December 4, 1929 and took effect six months thereafter, it could not have applied to a
relationship commenced in 1903 and legitimized in 1919 through a marriage performed
according to law. The marriage law in 1903 was General Order No. 70. There is no provision in
General Order No. 68 as amended nor in Act No. 3613 which would recognize as an exception
to the general rule on valid marriages, a socalled “military fashion” ceremony or arrangement.
Same; Same; Property; Formation of an informal civil partnership between a man and
wife living together but not legally married was already recognized by the courts even prior to
effectivity of new Civil Code in 1950.—Prior to the effectivity of the present Civil Code on
August 30, 1950, the formation of an informal civil partnership between a man and wife not
legally married and their corresponding right to an equal share in properties acquired through
their joint efforts and industry during cohabitation was recognized through decisions of this
Court. (Aznar et al. v. Garcia, 102 Phil. 1055; Flores v. Rehabilitation Finance Corporation, 94
Phil. 451; Marata v. Dionio, L-24449, December 31, 1925; Lesaca v. Lesaca, 91 Phil. 135.)
Same; Same; Same; Statutes; Under Art. 144 of the new Civil Code co-ownership arises
even if common-law wife does not work or is not gainfully employed.—This new article in the
Civil Code recognizes that it would be unjust and abnormal if a woman who is a wife in all
aspects of the relationship except for the requirement of a valid marriage must abandon her
home and children, neglect her traditional household duties, and go out to earn a living or
engage in business before the rules on co-ownership would apply. This article is particularly
relevant in this case where the “common-law” relationship was legitimated through a valid
marriage 34 years before the properties were sold.
Same; Same; Same; Customs and Usages; The Filipino woman traditionally runs the
household and holds the family purse even if she does not contribute thereto.—The provisions
of the Civil Code are premised on the traditional and existing, the normal and customary
gender roles of Filipino men and women. No matter how large the income of a working wife
compared to that of her husband, the major, if not the full responsibility of running the
household remains with the woman. She is the administrator of the household. The fact that
the two involved in this case were not legally married at the time does not change the nature
of their respective roles. It is the woman who traditionally holds the family purse even if she
does not contribute to filling that purse with funds. As pointed out by Dean Irene R. Cortes of
the University of the Philippines, “in the Filipino family, the wife holds the purse, husbands
hand over their pay checks and get an allowance in return and the wife manages the affairs of
the household. x x x And the famous statement attributed to Governor General Leonard Wood
is repeated: In the Philippines, the best man is the woman.” (Cortes, “Womens Rights Under
the New Constitution”. WOMAN AND THE LAW, U.P. Law Center, p. 10).
Same; Same; Same; Words and Phrases; “Vested rights” defined.—A vested right is
defined by this Court as property which has become fixed and established, and is no longer
open to doubt or controversy; an immediately fixed right of present or future enjoyment as
distinguished from an expectant or contingent right (Benguet Consolidated Mining Co. v.
Pineda, 98 Phil. 711; Balbao v. Farrales, 51 Phil. 498).
Same; Same; Same; Where a man and a woman lived as common-law partners in 1903,
got married in 1919, and after the death of the woman in 1919, the surviving spouse in 1953
sold a parcel of land acquired before they got legally married, Art. 144 of the new Civil Code
applies and their children entitled to recover 1/2 thereof from vendee.—This cannot be said of
the “exclusive” right of Melbourne Maxey over the properties in question when the present
Civil Code became effective for standing against it was the concurrent right of Regina Morales
or her heirs to a share thereof. The properties were sold in 1953 when the new Civil Code was
already in full force and effect. Neither can this be said of the rights of the private respondents
as vendees insofar as one half of the questioned properties are concerned as this was still open
to controversy on account of the legitimate claim of Regina Morales to a share under the
applicable law. The disputed properties were owned in common by Melbourne Maxey and the
estate of his late wife, Regina Morales, when they were sold. Technically speaking, the
petitioners should return one-half of the P1,300.00 purchase price of the land while the private
respondents should pay some form of rentals for their use of one-half of the properties.
Equitable considerations, however, lead us to rule out rentals on one hand and return of
P650.00 on the other.
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Jose B. Guyo for petitioners.
Epifanio Estrellado for private respondents.
GUTIERREZ, JR., J.:
This petition for review involves the rights of a woman over properties acquired in 1912
principally through the efforts of the man she was living with and at a time when the two were
not yet legally married.
The facts of the case are briefly stated in the decision of the Court of Appeals as follows:
The record reveals that Melbourne Maxey and Regina Morales (both deceased) lived together
as husband and wife in Banganga, Davao; that out of said union were born six (6) children,
among them are the herein plaintiffs, namely: John or Carlos, Lucille, Margaret, Florence, Fred
and George, all surnamed Maxey; that during the period of their (Melbourne and Regina)
cohabitation, or in 1911 and 1912, respectively, the late Melbourne Maxey acquired the
parcels of land described under Par. 4 of the complaint as evidenced by the documents of sale
marked as Exhibits 4-a and 5-1 (same as Exhibits C & D); that after the death of Regina Morales
(Par. 4, Stipulation of Facts), Melbourne Maxey, through his attorney-in-fact Julia Pamatluan
Maxey, sold in favor of the defendants-spouses in 1953 the parcels of land under litigation
which fact of sale was not controverted by the parties (Par. 1, Stipulation of Facts); that since
then, the defendants-spouses have taken immediate possession thereof continuously up to
the present.
Plaintiffs instituted the present case on January 26, 1962, before the Court of First Instance
of Davao, praying for the annulment of the documents of sale covering the subject parcels of
land and to recover possession thereof with damages from the herein defendants-spouses,
alleging, among others, that the aforesaid realties were common properties of their parents,
having been acquired during their lifetime and through their joint effort and capital; and that
the sales of the said lands in favor of the defendants-spouses in 1953, after the death of their
mother, Regina Morales, was executed by their father, Melbourne Maxey, without their
knowledge
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Maxey vs. Court of Appeals
and consent; and that they came to know of the above mentioned sales only in 1961.
On the other hand, defendants-spouses deny the material allegations of the complaint and
assert by way of affirmative defenses that they are the true and lawful owners and possessors
of the properties in question having purchased the same in good faith and for value from
Melbourne Maxey during his lifetime in 1953, based upon the reasonable belief that the latter
is the real and exclusive owner of the said parcels of land and that since then, they have been
in possession thereof openly, exclusively and continuously in concept of owners. Defendants-
spouses further counterclaimed for damages and attorney’s fees and in the alternative, for the
value of the improvements they have introduced in the premises.
Melbourne Maxey and Regina Morales started living together in 1903. Their children claim that
their parents were united in 1903 in a marriage performed “in the military fashion”. Both the
trial court and the appellate court rejected this claim of a “military fashion” marriage.
The couple had several children. John Carlos was born in 1903, followed by Lucille,
Margaret, Florence, Fred, and George. Except for the youngest son, all the children were born
before the disputed properties were acquired. The father, Melbourne Maxey, was a member
of the 1899 American occupation forces who afterwards held high positions in the provincial
government and in the Philippine public schools system.
As earlier mentioned in the cited statement of facts, the disputed properties were
acquired in 1911 and 1912 before the 1919 church marriage. Regina Morales Maxey died in
1919 sometime after the church wedding. The husband remarried and in 1953, his second wife
Julia Pamatluan Maxey, using a power of attorney, sold the properties to the respondent
spouses, Mr. and Mrs. Beato C. Macayra.
The trial court applied Article 144 of the Civil Code which provides:
When a man and a woman live together as husband and wife, but they are not married, or
their marriage is void from the beginning, the property acquired by either or both of them
through
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192 SUPREME COURT REPORTS ANNOTATED
Maxey vs. Court of Appeals
their work or industry or their wages and salaries shall be governed by the rules on co-
ownership.
The court stated that “when a man and a woman lived together as husband and wife, justice
demands that the woman should be entitled to the share of the property. Certainly she cannot
be considered mere adornment or only for man’s comfort and passion.” The dispositive
portion of the decision reads:
Evidence, testimonial and documentary considered the Court hereby rendered judgment in
favor of the plaintiffs and against defendant declaring that:
1. 1.Declaring the abovementioned sales as null and void;
2. 2.Ordering defendant-spouses to return the said lands, and to pay for the value of
the use of the same at the rate of P1,000.00 a year from 1953 until delivered,
together with interests corresponding thereto at the legal rate;
3. 3.Ordering defendant-spouses to pay to plaintiff actual damages in the sum of
P500.00 and attorney fees in the sum of P3,000.00.
Defendants counterclaim is hereby ordered dismissed.
The Court of Appeals, however, found the parcels of land to be exclusive properties of the late
Melbourne Maxey. It set aside the decision of the trial court, declared valid the deeds of sale,
and ruled that the appellants are the absolute owners of the properties in question.
The appellate decision sustained the following arguments of the respondent spouses:
Plaintiffs’ evidence is completely devoid of any showing that these properties in question were
acquired through the joint efforts of Melbourne Maxey and Regina Morales. Indeed, if at all,
plaintiffs’ evidence tend to establish the fact that Melbourne Maxey by virtue of his positions
as Deputy Governor of Zamboanga (p. 36, t.s.n, de la Victoria) School Supervisor in the East
Coast of Davao (p. 36, t.s.n., id.) was more than in a position to purchase these properties by
his own efforts, his own earnings and without the help of Regina Morales. On the other hand,
we have the declaration of Juana A. Morales, a widow of 68 years of age when she testified,
the sister-in-
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Maxey vs. Court of Appeals
law of Regina Morales—Juana A. Morales confirmed the fact that Melbourne Maxey held the
positions of teacher, provincial treasurer, deputy governor, district supervisor and lastly
superintendent of schools, respectively (p. 203, t.s.n., de la Victoria). But more important is
her declaration that her sister-in-law Regina Morales had no property of her own whence she
could have derived any income nor was Regina gainfully employed. (pp. 203-204, t.s.n., id.) It
must be remembered that the showing must be CLEAR that Regina Morales contributed to the
acquisition of these properties. Here the evidence is not only NOT CLEAR, indeed, there is no
evidence at all that Regina Morales contributed to the acquisition of the properties in question.
In the case of Aznar, et al. vs. Garcia, et al., supra, the Supreme Court had before it the
common-law wife’s own testimony—claiming that the properties in controversy were the
product of their joint industry. Her assertions however, were completely brushed aside
because aside from her claim that she took a hand in the management and/or acquisition of
the same, “there appears no evidence to prove her alleged contribution or participation in the
acquisition of the properties involved therein.” (Id. p. 1069). In the case at bar, besides the
absence of any evidence showing that Regina Morales contributed by her efforts to the
acquisition of these properties in controversy, both plaintiffs and defendants’ evidence show
that it was through Melbourne Maxey’s efforts alone that these properties were acquired.
Indeed, that Regina Morales had no means at all to have contributed in any manner to all its
acquisition.”
The petitioners raise the following issues in this petition:
1.THE COURT OF APPEALS ERRED IN DECLARING THAT THE LATE SPOUSES MELBOURNE
MAXEY AND REGINA MORALES WERE MARRIED ONLY IN 1919, BECAUSE THE TRUTH IS
THAT THEY MARRIED AS EARLY AS 1903.
2. THE COURT OF APPEALS, LIKEWISE, ERRED IN DECLARING THE PROPERTIES IN
QUESTION AS THE EXCLUSIVE PROPERTIES OF THE LATE MELBOURNE MAXEY, TO THE
EXCLUSION OF HIS WIFE REGINA MORALES, BECAUSE THE MENTIONED PROPERTIES
WERE ACTUALLY ACQUIRED BY THE JOINT EFFORTS AND INDUSTRY OF BOTH OF THEM
AND THEREFORE, THESE PROPERTIES ARE COMMON PROPERTIES.
3.THE COURT OF APPEALS FINALLY ERRED IN UNREASONABLY GIVING THE TERM “JOINT
EFFORTS” NOT ONLY A VERY, VERY LIMITED MEANING BUT A CONCEPT WHICH IS
ENTIRELY ABSURD AND UNREALISTIC BECAUSE IN CONSTRUING THE TERM, THE COURT
OF APPEALS HAS REFUSED TO ACCEPT AN INTERPRETATION WHICH IS MOST CONSISTENT
WITH COMMON PRACTICE AND CUSTOMS AS WELL AS IN ACCORD WITH THE BEST
TRADITION OF THE FILIPINO WAY OF LIFE.
The Court of First Instance and the Court of Appeals correctly rejected the argument that Act
No. 3613, the Revised Marriage Law, recognized “military fashion” marriages as legal. Maxey
and Morales were legally married at a church wedding solemnized on February 16, 1919. Since
Act No. 3613 was approved on December 4, 1929 and took effect six months thereafter, it
could not have applied to a relationship commenced in 1903 and legitimized in 1919 through
a marriage performed according to law. The marriage law in 1903 was General Order No. 70.
There is no provision in General Order No. 68 as amended nor in Act No. 3613 which would
recognize as an exception to the general rule on valid marriages, a so-called “military fashion”
ceremony or arrangement.
The Court of First Instance and the Court of Appeals both ruled that Melbourne Maxey and
Regina Morales were married only in 1919. This is a finding of fact which we do not disturb at
this stage of the case. There is no showing that this factual finding is totally devoid of or
unsupported by evidentiary basis or that it is inconsistent with the evidence of record.
The other issue raised in this petition questions the Court of Appeals’ finding that the
parcels of land in question were exclusive properties of the late Melbourne Maxey.
The petitioners argue that even assuming that the marriage of Melbourne Maxey and
Regina Morales took place only in February 17, 1919, still the properties legally and rightfully
belonged in equal share to the two because the acquisition of the said properties was through
their joint efforts and industry. The second and third errors mentioned by the
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Maxey vs. Court of Appeals
petitioners are grounded on the alleged wrong interpretation given by the Court of Appeals to
the phrase “joint efforts”. The petitioners suggest that their mother’s efforts in performing her
role as mother to them and as wife to their father were more than sufficient contribution to
constitute the parcels of land in question as common properties acquired through the joint
efforts to their parents.
The Court of Appeals, however, was of the opinion that Article 144 of the Civil Code is not
applicable to the properties in question citing the case of Aznar et al. v. Garcia(102 Phil. 1055)
on non-retroactivity of codal provisions where vested rights may be prejudiced or impaired.
And, assuming that Article 144 of the Civil Code is applicable, the Court of Appeals held that
the disputed properties were exclusively those of the petitioner’s father because these were
not acquired through the joint efforts of their parents. This conclusion stems from the
interpretation given by the Court of Appeals to the phrase “joint efforts” to mean “monetary
contribution” According to the Court
“x x x This view with which this ponente personally wholeheartedly agrees for some time now
has been advocated by sympathizers of equal rights for women, notably in the Commission on
the Status of Women of the United Nations. In our very own country there is strong advocacy
for the passage of a presidential decree providing that ‘the labors of a spouse in managing the
affairs of the household shall be credited with compensation.’ Unfortunately, until the happy
day when such a proposal shall have materialized into law, Courts are bound by existing
statutes and jurisprudence, which rigidly interpret the phrase ‘joint efforts’ as monetary
contributions of the man and woman living together without benefit of marriage, and to date,
the drudgery of a woman’s lifetime dedication to the management of the household
goes unremunerated, and has no monetary value. Thus, in the case of Aznar vs. Garcia (supra)
the Supreme Court held that the man and the woman have an equal interest in the properties
acquired during the union and each would be entitled to participate therein if said properties
were the product of their joint effort. In the same case it was stated that ‘aside from the
observation of the trial court that the appellee was an illiterate woman, there appears no
evidence to prove appellee’s contribution (in terms of pesos and centavos) or
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196 SUPREME COURT REPORTS ANNOTATED
Maxey vs. Court of Appeals
participation in the acquisition of the properties involved; therefore, following the aforecited
ruling of the Court, appellee’s claim for one-half (1/2) of the properties cannot be granted”.
In so concluding, the respondent Court of Appeals accepted the private respondents’ argument
that it was unlikely for the petitioners’ mother to have materially contributed in the acquisition
of the questioned properties since she had no property of her own nor was she gainfully
engaged in any business or profession from which she could derive income unlike their father
who held the positions of teacher, deputy governor, district supervisor, and superintendent of
schools.
We are constrained to adopt a contrary view. Considerations of justice dictate the
retroactive application of Article 144 of the Civil Code to the case at bar. Commenting on Article
2252 of the Civil Code which provides that changes made and new provisions and rules laid
down by the Code which may prejudice or impair vested or acquired rights in accordance with
the old legislation shall have no retroactive effect, the Code Commission stated:
“Laws shall have no retroactive effect, unless the contrary is provided. The question of how far
the new Civil Code should be made applicable to past acts and events is attended with the
utmost difficulty. It is easy enough to understand the abstract principle that laws
have no retroactive effect because vested or acquired rights should be respected. But what are
vested or acquired rights? The Commission did not venture to formulate a definition of a
vested or acquired right seeing that the problem is extremely complicated.
 What constitutes a vested or acquired right will be determined by the courts as each
particular issue is submitted to them, by applying the transitional provisions set forth, and in
case of doubt, by observing Art. 9 governing the silence or obscurity of the law. In this manner,
the Commission is confident that the judiciary with its enlightenment and high sense of justice
will be able to decide in what cases the old Civil Code would apply and in what cases the new
one should be binding. This course has been preferred by the Commission, which
did not presume to be able to foresee and adequately provide for each and every question that
may arise.” (Report of the Code Commission, pp. 165-166).
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Maxey vs. Court of Appeals
Similarly, with respect to Article 2253 which provides inter alia that if a right should be declared
for the first time in the Code, it shall be effective at once, even though the act or event which
gives rise thereto may have been done or may have occurred under the prior legislation,
provided said new right does not prejudice or impair any vested or acquired right, of the same
origin, the Code Commission commented:
“x x x But the second sentence gives a retroactive effect to newly created rights provided they
do not prejudice or impair any vested or acquired right. The retroactive character of the new
right is the result of the exercise of the sovereign power of legislation, when the lawmaking
body is persuaded that the new right is called for by considerations of justice and public policy.
But such new right must not encroach upon a vested right.” (Report of the Code Commission,
p. 167).
The requirement of non-impairment of vested rights is clear. It is the opinion of the Court of
Appeals that vested rights were prejudiced. We do not think so.
Prior to the effectivity of the present Civil Code on August 30, 1950, the formation of an
informal civil partnership between a man and wife not legally married and their corresponding
right to an equal share in properties acquired through their joint efforts and industry during
cohabitation was recognized through decisions of this Court. (Aznar et al. vs. Garcia, 102 Phil.
1055; Flores v. Rehabilitation Finance Corporation, 94 Phil. 451; Marata v. Dionio, L-24449,
December 31, 1925; Lesaca v. Lesaca, 91 Phil. 135.)
With the enactment of the new Civil Code, Article 144 codified the law established through
judicial precedents but with the modification that the property governed by the rules on co-
ownership may be acquired by either or both of themthrough their work or industry. Even if it
is only the man who works, the property acquired during the man and wife relationship
belongs through a fifty-fifty sharing to the two of them.
This new article in the Civil Code recognizes that it would be unjust and abnormal if a
woman who is a wife in all aspects of the relationship except for the requirement of a valid
marriage
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198 SUPREME COURT REPORTS ANNOTATED
Maxey vs. Court of Appeals
must abandon her home and children, neglect her traditional household duties, and go out to
earn a living or engage in business before the rules on co-ownership would apply. This article
is particularly relevant in this case where the “common-law” relationship was legitimated
through a valid marriage 34 years before the properties were sold.
The provisions of the Civil Code are premised on the traditional and existing, the normal
and customary gender roles of Filipino men and women. No matter how large the income of a
working wife compared to that of her husband, the major, if not the full responsibility of
running the household remains with the woman. She is the administrator of the household.
The fact that the two involved in this case were not legally married at the time does not change
the nature of their respective roles. It is the woman who traditionally holds the family purse
even if she does not contribute to filling that purse with funds. As pointed out by Dean Irene
R. Cortes of the University of the Philippines, “in the Filipino family, the wife holds the purse,
husbands hand over their pay checks and get an allowance in return and the wife manages the
affairs of the household. x x x And the famous statement attributed to Governor General
Leonard Wood is repeated: In the Philippines, the best man is the woman.” (Cortes, “Womens
Rights Under the New Constitution”. WOMAN AND THE LAW, U.P. Law Center, p. 10.)
The “real contribution” to the acquisition of property mentioned in Yaptinchay v.
Torres (28 SCRA 489) must include not only the earnings of a woman from a profession,
occupation, or business but also her contribution to the family’s material and spiritual goods
through caring for the children, administering the household, husbanding scarce resources,
freeing her husband from household tasks, and otherwise performing the traditional duties of
a housewife.
Should Article 144 of the Civil Code be applied in this case? Our answer is “Yes” because
there is no showing that vested rights would be impaired or prejudiced through its application.
A vested right is defined by this Court as property which has become fixed and established,
and is no longer open to doubt or controversy; an immediately fixed right of present or future
enjoyment as distinguished from an expectant or contingent right (Benguet Consolidated
Mining Co. v. Pineda, 98 Phil. 711; Balbao v. Farrales, 51 Phil. 498). This cannot be said of the
“exclusive” right of Melbourne Maxey over the properties in question when the present Civil
Code became effective for standing against it was the concurrent right of Regina Morales or
her heirs to a share thereof. The properties were sold in 1953 when the new Civil Code was
already in full force and effect. Neither can this be said of the rights of the private respondents
as vendees insofar as one half of the questioned properties are concerned as this was still open
to controversy on account of the legitimate claim of Regina Morales to a share under the
applicable law.
The disputed properties were owned in common by Melbourne Maxey and the estate of
his late wife, Regina Morales, when they were sold. Technically speaking, the petitioners
should return one-half of the P1,300.00 purchase price of the land while the private
respondents should pay some form of rentals for their use of one-half of the properties.
Equitable considerations, however, lead us to rule out rentals on one hand and return of
P650.00 on the other.
WHEREFORE, the petition for review on certiorari is hereby granted. The judgment of the
Court of Appeals is reversed and set aside insofar as one half of the disputed properties are
concerned. The private respondents are ordered to return one-half of said properties to the
heirs of Regina Morales. No costs.
SO ORDERED.
 G.R. No. 104818. September 17, 1993.*
ROBERTO DOMINGO, petitioner, vs. COURT OF APPEALS and DELIA SOLEDAD AVERA
represented by her Attorney-in-Fact MOISES R. AVERA, respondents.
Marriages; A marriage though void still needs a judicial declaration of such fact under
the. Family Code even for purposes other than remarriage.—Came the Family Code which
settled once and for all the conflicting jurisprudence on the matter. A declaration of the
absolute nullity of a marriage is now explicitly required either as a cause of action or a ground
for defense. Where the absolute nullity of a previous marriage is sought to be invoked for
purposes of contracting a second
_______________
*
THIRD DIVISION.
573
VOL. 226, SEPTEMBER 17, 1993 573
Domingo vs. Court of Appeals
marriage, the sole basis acceptable in law for said projected marriage to be free from
legal infirmity is a final judgment declaring the previous marriage void.
Same; Same.—In fact, the requirement for a declaration of absolute nullity of a marriage
is also for the protection of the spouse who, believing that his or her marriage is illegal and
void, marries again. With the judicial declaration of the nullity of his or her first marriage, the
person who marries again cannot be charged with bigamy.
Same; Same.—That Article 40 as finally formulated included the significant clause
denotes that such final judgment declaring the previous marriage void need not be obtained
only for purposes of remarriage. Undoubtedly, one can conceive of other instances where a
party might well invoke the absolute nullity of a previous marriage for purposes other than
remarriage, such as in case of an action for liquidation, partition, distribution and separation
of property between the erstwhile spouses, as well as an action for the custody and support
of their common children and the delivery of the latters’ presumptive legitimes. In such cases,
evidence needs must be adduced, testimonial or documentary, to prove the existence of
grounds rendering such a previous marriage an absolute nullity. These need not be limited
solely to an earlier final judgment of a court declaring such previous marriage void. Hence, in
the instance where a party who has previously contracted a marriage which remains subsisting
desires to enter into another marriage which is legally unassailable, he is required by law to
prove that the previous one was an absolute nullity. But this he may do on the basis solely of
a final judgment declaring such previous marriage void.
Same; Actions; Declaration of nullity of marriage carries ipso facto a judgment for the
liquidation of property, custody and support of children, etc. There is no need of filing a separate
civil action for such purposes.—Based on the foregoing provisions, private respondent’s
ultimate prayer for separation of property will simply be one of the necessary consequences
of the judicial declaration of absolute nullity of their marriage. Thus, petitioner’s suggestion
that in order for their properties to be separated, an ordinary civil action has to be instituted
for that purpose is baseless. The Family Code has clearly provided the effects of the declaration
of nullity of marriage, one of which is the separation of property according to the regime of
property relations governing them. It stands to reason that the lower court before whom the
issue of nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the
incidental questions regarding the couple’s properties. Accordingly, the respondent court
committed no reversible
574
574 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
error in finding that the lower court committed no grave abuse of discretion in denying
petitioner’s motion to dismiss SP No. 1989-J.
VITUG, J., Concurring:
Marriages; Certain effects of a valid marriage can flow out of a void marriage.—A void
marriage, even without its being judicially declared a nullity, albeit the preferability for, and
justiciability (fully discussed in the majority opinion) of, such a declaration, will not give it the
status or the consequences of a valid marriage, saving only specific instances where certain
effects of a valid marriage can still flow from the void marriage. Examples of these cases are
children of void marriages under Article 36 (due to psychological incapacity) and Article 53, in
relation to Article 52 (due to failure of partition, delivery of presumptive legitimes of children
and recording thereof following the annulment or declaration of nullity of a prior marriage),
conceived or born before the judicial declaration of nullity of such void marriages, who the law
deems as legitimate (Article 54, Family Code).
PETITION for review of the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Jose P.O. Aliling IV for petitioner.
De Guzman, Meneses & Associates for private respondent.
ROMERO, J.:
The instant petition seeks the reversal of respondent court’s ruling finding no grave abuse of
discretion in the lower court’s order denying petitioner’s motion to dismiss the petition for
declaration of nullity of marriage and separation of property.
On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the
Regional Trial Court of Pasig entitled “Declaration of Nullity of Marriage and Separation of
Property” against petitioner Roberto Domingo. The petition which was docketed as Special
Proceedings No. 1989-J alleged among others that: they were married on November 29, 1976
at the YMCA Youth Center Bldg., as evidenced by a Marriage Contract Registry No. 1277K-76
with Marriage License No. 4999036 issued at Carmona, Cavite; unknown to her, he had a
previous marriage with one Emerlina dela Paz on April 25, 1969 which marriage is valid and
still existing; she came to know of the prior marriage
575
VOL. 226, SEPTEMBER 17, 1993 575
Domingo vs. Court of Appeals
only sometime in 1983 when Emerlina dela Paz sued them for bigamy; from January 23, 1979
up to the present, she has been working in Saudi Arabia and she used to come to the
Philippines only when she would avail of the one-month annual vacation leave granted by her
foreign employer; since 1983 up to the present, he has been unemployed and completely
dependent upon her for support and subsistence; out of her personal earnings, she purchased
real and personal properties with a total amount of approximately P350,000.00, which are
under the possession and administration of Roberto; sometime in June 1989, while on her one-
month vacation, she discovered that he was cohabiting with another woman; she further
discovered that he had been disposing of some of her properties without her knowledge or
consent; she confronted him about this and thereafter appointed her brother Moises R. Avera
as her attorney-in-fact to take care of her properties; he failed and refused to turn over the
possession and administration of said properties to her brother/attorney-in-fact; and he is not
authorized to administer and possess the same on account of the nullity of their marriage. The
petition prayed that a temporary restraining order or a writ of preliminary injunction be issued
enjoining Roberto from exercising any act of administration and ownership over said
properties; their marriage be declared null and void and of no force and effect; and Delia
Soledad be declared the sole and exclusive owner of all properties acquired at the time of their
void marriage and such properties be placed under the proper management and
administration of the attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of
action. The marriage being void ab initio, the petition for the declaration of its nullity is,
therefore, superfluous and unnecessary. It added that private respondent has no property
which is in his possession.
On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motion to
dismiss for lack of merit. She explained:
“Movant argues that a second marriage contracted after a first marriage by a man with another
woman is illegal and void (citing the case of Yap v. Court of Appeals, 145 SCRA 229) and no
judicial decree is necessary to establish the invalidity of a void marriage (citing the cases
576
576 SUPREME COURT REPORTS ANNOTATED
Domingo vs. Court of Appeals
of People v. Aragon, 100 Phil. 1033; People v. Mendoza, 95 Phil. 845). Indeed, under the Yap
case there is no dispute that the second marriage contracted by respondent with herein
petitioner after a first marriage with another woman is illegal and void. However, as to whether
or not the second marriage should first be judicially declared a nullity is not an issue in said
case. In the case of Vda. de Consuegra v. GSIS, the Supreme Court ruled in explicit terms, thus:
And with respect to the right of the second wife, this Court observed that although the second
marriage can be presumed to be void ab initio as it was celebrated while the first marriage was
still subsisting, still there is need for judicial declaration of its nullity. (37 SCRA 316, 326)
The above ruling which is of later vintage deviated from the previous rulings of the
Supreme Court in the aforecited cases of Aragon and Mendoza.
Finally, the contention of respondent movant that petitioner has no property in his
possession is an issue that may be determined only after trial on the merits.”1
A motion for reconsideration was filed stressing the erroneous application of Vda. de
Consuegra v. GSIS2 and the absence of justiciable controversy as to the nullity of the marriage.
On September 11, 1991, Judge Austria denied the motion for reconsideration and gave
petitioner fifteen (15) days from receipt within which to file his answer.
Instead of filing the required answer, petitioner filed a special civil action of certiorari and
mandamus on the ground that the lower court acted with grave abuse of discretion amounting
to lack of jurisdiction in denying the motion to dismiss.
On February 7, 1992, the Court of Appeals3 dismissed the petition. It explained that the
case of Yap v. CA4 cited by petitioner and that of Consuegra v. GSIS relied upon by the lower
court do not have relevance in the case at bar, there being no identity of facts because these
cases dealt with the successional rights of the second wife while the instant case prays for
separa-
_______________
1
Annex “C,” Rollo, pp. 28-29.
2
L-28093, January 30, 1971, 37 SCRA 315.
3 Annex “J,” Rollo, pp. 62-67, Justice Jorge S. Imperial, ponente and Justices Luis A.
Javellana and Serafin V.C. Guingona, concurring.
4 L-40003, October 28, 1986, 145 SCRA 229.
577
VOL. 226, SEPTEMBER 17, 1993 577
Domingo vs. Court of Appeals
tion of property corollary with the declaration of nullity of marriage. It observed that the
separation and subsequent distribution of the properties acquired during the union can be had
only upon proper determination of the status of the marital relationship between said parties,
whether or not the validity of the first marriage is denied by petitioner. Furthermore, in order
to avoid duplication and multiplicity of suits, the declaration of nullity of marriage may be
invoked in this proceeding together with the partition and distribution of the properties
involved. Citing Articles 48, 50 and 52 of the Family Code, it held that private respondent’s
prayer for declaration of absolute nullity of their marriage may be raised together with other
incidents of their marriage such as the separation of their properties. Lastly, it noted that since
the Court has jurisdiction, the alleged error in refusing to grant the motion to dismiss is merely
one of law for which the remedy ordinarily would have been to file an answer, proceed with
the trial and in case of an adverse decision, reiterate the issue on appeal. The motion for
reconsideration was subsequently denied for lack of merit.5
Hence, this petition.
The two basic issues confronting the Court in the instant case are the following.
First, whether or not a petition for judicial declaration of a void marriage is necessary. If in
the affirmative, whether the same should be filed only for purposes of remarriage.
Second, whether or not SP N6. 1989-J is the proper remedy of private respondent to
recover certain real and personal properties allegedly belonging to her exclusively.
Petitioner, invoking the ruling in People v. Aragon6 and People v. Mendoza,7 contends that
SP. No. 1989-J for Declaration of Nullity of Marriage and Separation of Property filed by private
respondent must be dismissed for being unnecessary and superfluous. Furthermore, under his
own interpretation of Article 40 of the Family Code, he submits that a petition for declaration
of absolute nullity of marriage is required only for purposes of remarriage. Since the petition
in SP No. 1989-J contains no
_______________
5 Annex “M,” Rollo, p. 80.
6 100 Phil. 1033 (1957).
7 95 Phil. 845 (1954).
578
578 SUPREME COURT REPORTS ANNOTATED
 Domingo vs. Court of Appeals
allegation of private respondent’s intention to remarry, said petition should, therefore, be
dismissed.
On the other hand, private respondent insists on the necessity of a judicial declaration of
the nullity of their marriage, not for purposes of remarriage, but in order to provide a basis for
the separation and distribution of the properties acquired during coverture.
There is no question that the marriage of petitioner and private respondent celebrated
while the former’s previous marriage with one Emerlina de la Paz was still subsisting, is
bigamous. As such, it is void from the beginning.8 Petitioner himself does not dispute the
absolute nullity of their marriage.9
The cases of People v. Aragon and People v. Mendozarelied upon by petitioner are cases
where the Court had earlier ruled that no judicial decree is necessary to establish the invalidity
of a void, bigamous marriage. It is noteworthy to observe that Justice Alex Reyes, however,
dissented on these occasions stating that:
“Though the logician may say that where the former marriage was void there would be nothing
to dissolve, still it is not for the spouses to judge whether that marriage was void or not. That
judgment is reserved to the courts. x x x”10
This dissenting opinion was adopted as the majority position in subsequent cases involving the
same issue. Thus, in Gomez v. Lipana,11 the Court abandoned its earlier ruling in
the Aragon and Mendoza cases. In reversing the lower court’s order forfeiting the husband’s
share of the disputed property acquired during the second marriage, the Court stated that “if
the nullity, or annulment of the marriage is the basis for the application of Article 1417, there
is need for a judicial declaration thereof, which of course contemplates an action for that
purpose.”
Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v. Government
Service Insurance System, that
_______________
8
CIVIL CODE, art. 80, par. 4; FAMILY CODE, arts. 35, par. 4 and 41.
9
Rollo, pp. 102 and 106.
10 See: Note 6 at p. 1036; Note 7 at p. 848.
11 L-23214, June 30, 1970, 33 SCRA 615, 620-621.
579
VOL. 226, SEPTEMBER 17, 1993 579
Domingo vs. Court of Appeals
“although the second marriage can be presumed to be void ab initio as it was celebrated while
the first marriage was still subsisting, still there is need for judicial declaration of such nullity.”
In Tolentino v. Paras,12 however, the Court turned around and applied
the Aragon and Mendoza ruling once again. In granting the prayer of the first wife asking for a
declaration as the lawful surviving spouse and the correction of the death certificate of her
deceased husband, it explained that “(t)he second marriage that he contracted with private
respondent during the lifetime of his first spouse is null and void from the beginning and of no
force and effect. No judicial decree is necessary to establish the invalidity of a void marriage.”
However, in the more recent case of Wiegel v. Sempio-Diy13the Court reverted to
the Consuegra case and held that there was “no need of introducing evidence about the
existing prior marriage of her first husband at the time they married each other, for then such
a marriage though void still needs according to this Court a judicial declaration of such fact and
for all legal intents and purposes she would still be regarded as a married woman at the time
she contracted her marriage with respondent Karl Heinz Wiegel.”
Came the Family Code which settled once and for all the conflicting jurisprudence on the
matter. A declaration of the absolute nullity of a marriage is now explicitly required either as
a cause of action or a ground for defense.14 Where the absolute nullity of a previous marriage
is sought to be invoked for purposes of contracting a second marriage, the sole basis
acceptable in law for said projected marriage to be free from legal infirmity is a final judgment
declaring the previous marriage void.15
The Family Law Revision Committee and the Civil Code Revision Committee16 which
drafted what is now the Family Code of the Philippines took the position that parties to a
marriage should not be allowed to assume that their marriage is void even if such be the fact
but must first secure a judicial declaration of the nullity of their marriage before they can be
allowed to marry again. This is borne out by the following minutes of the 152nd Joint Meeting
of the Civil Code and Family Law Committees where the present Article 40, then Art. 39, was
discussed.
“B. Article 39.—
The absolute nullity of a marriage may be invoked only on the basis of a final judgment
declaring the marriage void, except as provided in Article 41.
Justice Caguioa remarked that the above provision should include not only void but also
voidable marriages. He then suggested that the above provision be modified as follows:
The validity of a marriage may be invoked only . . . Justice Reyes (J.B.L. Reyes), however,
proposed that they say:
The validity or invalidity of a marriage may be invoked only. . .
On the other hand. Justice Puno suggested that they say:
The invalidity of a marriage may be invoked only . . . Justice Caguioa explained that his idea is
that one cannot determine for himself whether or not his marriage is valid and that a court
action is needed. Justice Puno accordingly proposed that the provision be modified to read:
The invalidity of a marriage may be invoked only on the basis of a final judgment annulling
the marriage or declaring the marriage void, except as provided in Article 41.
Justice Caguioa remarked that in annulment, there is no question. Justice Puno, however,
pointed out that, even if it is a judgment of annulment, they still have to produce the judgment.
Justice Caguioa suggested that they say.
The invalidity of a marriage may be invoked only on the basis of a final judgment declaring
the marriage invalid, except as provided in Article 41.
Justice Puno raised the question: When a marriage is declared invalid, does it include the
annulment of a marriage and the declaration that the marriage is void? Justice Caguioa replied
in the affirmative. Dean Gupit added that in some judgments, even if the marriage is annulled,
it is declared void. Justice Puno suggested that this matter be made clear in the provision.
Prof. Baviera remarked that the original idea in the provision is to require first a judicial
declaration of a void marriage and not annullable marriages, with which the other members
concurred. Judge Diy added that annullable marriages are presumed valid until a direct action
is filed to annul it, which the other members affirmed. Justice Puno remarked that if this is so,
then the phrase ‘absolute nullity’ can stand since it might result in confusion if they change the
phrase to ‘invalidity’ if what they are referring to in the provision is the declaration that the
marriage is void.
Prof. Bautista commented that they will be doing away with collateral defense as well as
collateral attack. Justice Caguioa explained that the idea in the provision is that there should
be a final judgment declaring the marriage void and a party should not declare for himself
whether or not the marriage is void, which the other members affirmed. Justice Caguioa added
that they are, therefore, trying to avoid a collateral attack on that point. Prof. Bautista stated
that there are actions which are brought on the assumption that the marriage is valid. He then
asked: Are they depriving one of the right to raise the defense that he has no liability because
the basis of the liability is void? Prof. Bautista added that they cannot say that there will be no
judgment on the validity or invalidity of the marriage because it will be taken up in the same
proceeding. It will not be a unilateral declaration that it is a void marriage. Justice Caguioa saw
the point of Prof. Bautista and suggested that they limit the provision to remarriage. He then
proposed that Article 39 be reworded as follows:
The absolute nullity of a marriage for purposes of remarriage may be invoked only on the basis
of final judgment . . . Justice Puno suggested that the above be modified as follows:
The absolute nullity of a previous marriage may be invoked for purposes of establishing
the validity of a subsequent marriage only on the basis of a final judgment declaring such
previous marriage void, except as provided in Article 41. Justice Puno later modified the above
as follows:
For the purpose of establishing the validity of a subsequent marriage, the absolute nullity
of a previous marriage may only be invoked on the basis of a final judgment declaring such
nullity, except as provided in Article 41.
Justice Caguioa commented that the above provision is too broad and will not solve the
objection of Prof. Bautista. He proposed that they say:
For the purpose of entering into a subsequent marriage, the absolute nullity of a previous
marriage may only be invoked on the basis of a final judgment declaring such nullity, except as
provided in Article 41.
Justice Caguioa explained that the idea in the above provision is that if one enters into a
subsequent marriage without obtaining a final judgment declaring the nullity of a previous
marriage, said subsequent marriage is void ab initio.
After further deliberation, Justice Puno suggested that they go back to the original wording
of the provision as follows:
The absolute nullity of a previous marriage may be invoked for purposes of remarriage only on
the basis of a final judgment declaring such previous marriage void, except as provided in
Article 41.”17
In fact, the requirement for a declaration of absolute nullity of a marriage is also for the
protection of the spouse who, believing that his or her marriage is illegal and void, marries
again. With the judicial declaration of the nullity of his or her first marriage, the person who
marries again cannot be charged with bigamy.18
Just over a year ago, the Court made the pronouncement that there is a necessity for a
judicial declaration of absolute nullity of a prior subsisting marriage before contracting another
in the recent case of Terre v. Terre.19 The Court, in turning down the defense of respondent
Terre who was charged with grossly immoral conduct consisting of contracting a second
marriage and living with another woman other than complainant while his prior marriage with
the latter remained subsisting, said that “for purposes of determining whether a person is
legally free to contract a second marriage, a judicial declaration that the first marriage was null
and void ab initio is essential.”
As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner
submits that the same can be maintained only if it is for the purpose of remarriage. Failure to
allege this purpose, according to petitioner’s theory, will warrant dismissal of the same.
Article 40 of the Family Code provides:
“ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage void.” (n)
Crucial to the proper interpretation of Article 40 is the position in the provision of the word
“solely.” As it is placed, the same shows that it is meant to qualify “final judgment declaring
such previous marriage void.” Realizing the need for careful craftsmanship in conveying the
precise intent of the Committee members, the provision in question, as it finally emerged, did
not state “The absolute nullity of a previous marriage may be invoked solely for purposes of
remarriage . . .,” in which case “solely” would clearly qualify the phrase “for purposes of
remarriage.” Had the phraseology been such, the interpretation of petitioner would have been
correct and, that is, that the absolute nullity of a previous marriage may be invoked solely for
purposes of remarriage, thus rendering irrelevant the clause “on the basis solely of a final
judgment declaring such previous marriage void.”
That Article 40 as finally formulated included the significant clause denotes that such final
judgment declaring the previous marriage void need not be obtained only for purposes of
remarriage. Undoubtedly, one can conceive of other instances where a party might well invoke
the absolute nullity of a previous marriage for purposes other than remarriage, such as in case
of an action for liquidation, partition, distribution and separation of property between the
erstwhile spouses, as well as an action for the custody and support of their common children
and the delivery of the latters’ presumptive legitimes. In such cases, evidence needs must be
adduced, testimonial or documentary, to prove the existence of grounds rendering such a
previous marriage an absolute nullity. These need not be limited solely to an earlier final
judgment of a court declaring such previous marriage void. Hence, in the instance where a
party who has previously contracted a marriage which remains subsisting desires to enter into
another marriage which is legally unassailable, he is required by law to prove that the previous
one was an absolute nullity. But this he may do on the basis solely of a final judgment declaring
such previous marriage void.
This leads us to the question: Why the distinction? In other words, for purposes of
remarriage, why should the only legally acceptable basis for declaring a previous marriage an
absolute nullity be a final judgment declaring such previous marriage void? Whereas, for
purposes other than remarriage, other evidence is acceptable?
Marriage, a sacrosanct institution, declared by the Constitution as an “inviolable social
institution, is the foundation of the family;” as such, it “shall be protected by the State.” 20 In
more explicit terms, the Family Code characterizes it as a “special contract of permanent union
between a man and a woman entered into in accordance with law for the establishment of
conjugal and family life.”21 So crucial are marriage and the family to the stability and peace of
the nation that their “nature, consequences, and incidents are governed by law and not subject
to stipulation . . .,”22 As a matter of policy, therefore, the nullification of a marriage for the
purpose of contracting another cannot be accomplished merely on the basis of the perception
of both parties or of one that their union is so defective with respect to the essential requisites
of a contract of marriage as to render it void ipso jure and with no legal effect—and nothing
more. Were this so, this inviolable social institution would be reduced to a mockery and would
rest on very shaky foundations indeed. And the grounds for nullifying marriage would be as
diverse and farranging as human ingenuity and fancy could conceive. For such a socially
significant institution, an official state pronouncement through the courts, and nothing less,
will satisfy the exacting norms of society. Not only would such an open and public declaration
by the courts definitively confirm the nullity of the contract of marriage, but the same would
be easily verifiable through records accessible to everyone.
That the law seeks to ensure that a prior marriage is no impediment to a second sought to
be contracted by one of the parties may be gleaned from new information required in the
Family Code to be included in the application for a marriage license, viz, “If previously married,
how, when and where the previous marriage was dissolved and annulled.”23
 Reverting to the case before us, petitioner’s interpretation of Art. 40 of the Family Code
is, undoubtedly, quite restrictive. Thus, his position that private respondent’s failure to state
in the petition that the same is filed to enable her to remarry will result in the dismissal of SP
No. 1989-J is untenable. His misconstruction of Art. 40 resulting from the misplaced emphasis
on the term “solely” was in fact anticipated by the members of the Committee.
“Dean Gupit commented that the word “only” may be misconstrued to refer to “for purposes
of remarriage.” Judge Diy stated that “only” refers to “final judgment.” Justice Puno suggested
that they say “on the basis only of a final judgment.” Prof. Baviera suggested that they use the
legal term “solely” instead of “only,” which the Committee approved.”24 (Italics supplied)
Pursuing his previous argument that the declaration for absolute nullity of marriage is
unnecessary, petitioner suggests that private respondent should have filed an ordinary civil
action for the recovery of the properties alleged to have been acquired during their union. In
such an eventuality, the lower court would not be acting as a mere special court but would be
clothed with jurisdiction to rule on the issues of possession and ownership. In addition, he
pointed out that there is actually nothing to separate or partition as the petition admits that
all the properties were acquired with private respondent’s money.
The Court of Appeals disregarded this argument and concluded that “the prayer for
declaration of absolute nullity of marriage may be raised together with the other incident of
their marriage such as the separation of their properties.”
When a marriage is declared void ab initio, the law states that the final judgment therein
shall provide for “the liquidation, partition and distribution of the properties of the spouses,
the custody and support of the common children, and the delivery of their presumptive
legitimes, unless such matters had been adjudicated in previous judicial proceedings.”25 Other
specific effects flowing therefrom, in proper cases, are the following:
“Art. 43. x x x x x x x x x
(2)The absolute community of property or the conjugal partnership, as the case may be,
shall be dissolved and liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common children or, if there are
none, the children of the guilty spouse by a previous marriage or, in default of children,
the innocent spouse;
(3)Donations by reason of marriage shall remain valid, except that if the donee
contracted the marriage in bad faith, such donations made to said donee are revoked
by operation of law;
(4)The innocent spouse may revoke the designation of the other spouse who acted in
bad faith as a beneficiary in any insurance policy, even if such designation be stipulated
as irrevocable; and
(5)The spouse who contracted the subsequent marriage in bad faith shall be disqualified
to inherit from the innocent spouse by testate and intestate succession. (n)
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall
be void ab initio and all donations by reason of marriage and testamentary disposition made
by one in favor of the other are revoked by operation of law. (n)”26
Based on the foregoing provisions, private respondent’s ultimate prayer for separation of
property will simply be one of the necessary consequences of the judicial declaration of
absolute nullity of their marriage. Thus, petitioner’s suggestion that in order for their
properties to be separated, an ordinary civil action has to be instituted for that purpose is
baseless. The Family Code has clearly provided the effects of the declaration of nullity of
marriage, one of which is the separation of property according to the regime of property
relations governing them. It stands to reason that the lower court before whom the issue of
nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the incidental
questions regarding the couple’s properties. Accordingly, the respondent court committed no
reversible error in finding that the lower court committed no grave abuse of discretion in
denying petitioner’s motion to dismiss SP No. 1989-J.
WHEREFORE, the instant petition is hereby DENIED. The decision of respondent Court
dated February 7, 1992 and the Resolution dated March 20, 1992 are AFFIRMED.
SO ORDERED.
G.R. No. 122749. July 31, 1996.*
ANTONIO A.S. VALDES, petitioner, vs. REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY,
and CONSUELO M. GOMEZ-VALDES, respondents.
Civil Law; Family Code; In a void marriage, regardless of the cause thereof, the property
relations of the parties during the period of cohabitation is governed by the provisions of Article
147 or Article 148 of the Family Code.—The trial court correctly applied the law. In a void
marriage, regardless of the cause thereof, the property relations of the parties during the
period of cohabitation is governed by the provisions of Article 147 or Article 148, such as the
case may be, of the Family Code.
Same; Same; Property acquired by both spouses through their work and industry shall
be governed by the rules on equal co-ownership.—Under this property regime, property
acquired by both spouses through their work and industry shall be governed by the rules
on equal co-ownership. Any property acquired during the union
_______________
*FIRST DIVISION.
222
222 SUPREME COURT REPORTS ANNOTATED
Valdes vs. Regional Trial Court, Br. 102, Quezon City
is prima facie presumed to have been obtained through their joint efforts. A party who
did not participate in the acquisition of the property shall still be considered as having
contributed thereto jointly if said party’s “efforts consisted in the care and maintenance of the
family household.” Unlike the conjugal partnership of gains, the fruits of the couple’s separate
property are not included in the co-ownership.
Same; Same; When the common-law spouses suffer from a legal impediment to marry
or when they do not live exclusively with each other, only the property acquired by both of them
through their actual joint contribution of money, property or industry shall be owned in
common and in proportion to their respective contributions.—When the common-law spouses
suffer from a legal impediment to marry or when they do not live exclusively with each other
(as husband and wife), only the property acquired by both of them through their actual
joint contribution of money, property or industry shall be owned in common and in proportion
to their respective contributions.Such contributions and corresponding shares, however,
are prima facie presumed to be equal. The share of any party who is married to another shall
accrue to the absolute community or conjugal partnership, as the case may be, if so existing
under a valid marriage. If the party who has acted in bad faith is not validly married to another,
his or her share shall be forfeited in the manner already heretofore expressed.
Same; Same; The first paragraph of Article 50 of the Family Code, applying paragraphs
(2), (3), (4) and (5) of Article 43 relates only by its explicit terms, to voidable marriages and
exceptionally, to void marriages under Article 40 of the Code.—The rules set up to govern the
liquidation of either the absolute community or the conjugal partnership of gains, the property
regimes recognized for valid and voidable marriages (in the latter case until the contract is
annulled), are irrelevant to the liquidation of the co-ownership that exists between common-
law spouses. The first paragraph of Article 50 of the Family Code, applying paragraphs (2), (3),
(4) and (5)of Article 43, relates only, by its explicit terms, to voidable marriages and,
exceptionally, to void marriages under Article 40 of the Code, i.e., the declaration of nullity of
a subsequent marriage contracted by a spouse of a prior void marriage before the latter is
judicially declared void. The latter is a special rule that somehow recognizes the philosophy
and an old doctrine that void marriages are inexistent from the very beginning and no judicial
decree is necessary to establish their nullity.
PETITION for review of a decision of the Regional Trial Court of Quezon City, Br. 102.
The facts are stated in the opinion of the Court.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for petitioner.
Roco, Buñag, Kapunan & Migallos for private respondent.
VITUG, J.:
The petition for review bewails, purely on a question of law, an alleged error committed by the
Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the court a quo has
failed to apply the correct law that should govern the disposition of a family dwelling in a
situation where a marriage is declared void ab initio because of psychological incapacity on the
part of either or both of the parties to the contract.
The pertinent facts giving rise to this incident are, by and large, not in dispute.
Antonio Valdes and Consuelo Gomez were married on 05 January 1971. Begotten during
the marriage were five children. In a petition, dated 22 June 1992, Valdes sought the
declaration of nullity of the marriage pursuant to Article 36 of the Family Code (docketed Civil
Case No. Q-92-12539, Regional Trial Court of Quezon City, Branch 102). After hearing the
parties following the joinder of issues, the trial court,1 in its decision of 29 July 1994, granted
the petition; viz:
“WHEREFORE, judgment is hereby rendered as follows:
“(1) The marriage of petitioner Antonio Valdez and respondent Consuelo Gomez-Valdes is
hereby declared null and void under Article 36 of the Family Code on the ground of their mutual
psychological incapacity to comply with their essential marital obligations;
“(2) The three older children, Carlos Enrique III, Antonio Quintin and Angela Rosario shall
choose which parent they would want to stay with.
“Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother, herein
respondent Consuelo Gomez-Valdes.
“The petitioner and respondent shall have visitation rights over the children who are in
the custody of the other.
“(3) The petitioner and respondent are directed to start proceedings on the liquidation of
their common properties as defined by Article 147 of the Family Code, and to comply with the
provisions of Articles 50, 51 and 52 of the same code, within thirty (30) days from notice of this
decision.
“Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong, Metro
Manila, for proper recording in the registry of marriages.”2 (Italics ours.)
Consuelo Gomez sought a clarification of that portion of the decision directing compliance with
Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no
provisions on the procedure for the liquidation of common property in “unions without
marriage.” Parenthetically, during the hearing on the motion, the children filed a joint affidavit
expressing their desire to remain with their father, Antonio Valdes, herein petitioner.
In an Order, dated 05 May 1995, the trial court made the following clarification:
“Consequently, considering that Article 147 of the Family Code explicitly provides that the
property acquired by both parties during their union, in the absence of proof to the contrary,
are presumed to have been obtained through the joint efforts of the parties and will be owned
by them in equal shares, plaintiff and defendant will own their ‘family home’ and all their other
properties for that matter in equal shares.
“In the liquidation and partition of the properties owned in common by the plaintiff and
defendant, the provisions on co-ownership found in the Civil Code shall apply.”3 (Emphasis
supplied.)
In addressing specifically the issue regarding the disposition of the family dwelling, the trial
court said:
“Considering that this Court has already declared the marriage between petitioner and
respondent as null and void ab initio, pursuant to Art. 147, the property regime of petitioner
and respondent shall be governed by the rules on co-ownership.
“The provisions of Articles 102 and 129 of the Family Code finds no application since Article
102 refers to the procedure for the liquidation of the conjugal partnership property and Article
129 refers to the procedure for the liquidation of the absolute community of property.”4
Petitioner moved for a reconsideration of the order. The motion was denied on 30 October
1995.
In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the Family
Code should be held controlling; he argues that:
“I
“Article 147 of the Family Code does not apply to cases where the parties are psychologically
incapacitated.
“II
“Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern the
disposition of the family dwelling in cases where a marriage is declared void ab initio, including
a marriage declared void by reason of the psychological incapacity of the spouses.
“III
 “Assuming arguendo that Article 147 applies to marriages declared void ab initio on the
ground of the psychological incapacity of a spouse, the same may be read consistently with
Article 129.
“IV
“It is necessary to determine the parent with whom majority of the children wish to stay.”5
The trial court correctly applied the law. In a void marriage, regardless of the cause thereof,
the property relations of the parties during the period of cohabitation is governed by the
provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article
147 is a remake of Article 144 of the Civil Code as interpreted and so applied in previous
cases;6 it provides:
“ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively
with each other as husband and wife without the benefit of marriage or under a void marriage,
their wages and salaries shall be owned by them in equal shares and the property acquired by
both of them through their work or industry shall be governed by the rules on co-ownership.
“In the absence of proof to the contrary, properties acquired while they lived together
shall be presumed to have been obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this Article, a party who did not participate in
the acquisition by the other party of any property shall be deemed to have contributed jointly
in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the
family and of the household.
“Neither party can encumber or dispose by acts inter vivos of his or her share in the
property acquired during cohabitation and owned in common, without the consent of the
other, until after the termination of their cohabitation.
“When only one of the parties to a void marriage is in good faith, the share of the party in
bad faith in the co-ownership shall be forfeited in favor of their common children. In case of
default of or waiver by any or all of the common children or their descendants, each vacant
share shall belong to the respective surviving descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases, the forfeiture shall take place upon
termination of the cohabitation.”
This peculiar kind of co-ownership applies when a man and a woman, suffering no legal
impediment to marry each other, so exclusively live together as husband and wife under a void
marriage or without the benefit of marriage. The term “capacitated” in the provision (in the
first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any
“male or female of the age of eighteen years or upwards not under any of the impediments
mentioned in Articles 37 and 38”7 of the Code.
Under this property regime, property acquired by both spouses through
their work and industry shall be governed by the rules on equal co-ownership. Any property
acquired during the union is prima facie presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition of the property shall still be
considered as having contributed thereto jointly if said party’s “efforts consisted in the care
and maintenance of the family household.”8 Unlike the conjugal partnership of gains, the fruits
of the couple’s separate property are not included in the co-ownership.
Article 147 of the Family Code, in substance and to the above extent, has clarified Article
144 of the Civil Code; in addition, the law now expressly provides that—
(a) Neither party can dispose or encumber by act inter vivos his or her share in co-
ownership property, without the consent of the other, during the period of cohabitation; and
(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the
co-ownership in favor of their common children; in default thereof or waiver by any or all of
the common children, each vacant share shall belong to the respective surviving descendants,
or still in default thereof, to the innocent party. The forfeiture shall take place upon the
termination of the cohabitation9 or declaration of nullity of the marriage.10
When the common-law spouses suffer from a legal impediment to marry or when they do
not live exclusively with each other (as husband and wife), only the property acquired by both
of them through their actual joint contribution of money, property or industry shall be owned
in common and in proportion to their respective contributions. Such contributions and
corresponding shares, however, are prima facie presumed to be equal. The share of any party
who is married to another shall accrue to the absolute community or conjugal partnership, as
the case may be, if so existing under a valid marriage. If the party who has acted in bad faith is
not validly married to another, his or her share shall be forfeited in the manner already
heretofore expressed.11
In deciding to take further cognizance of the issue on the settlement of the parties’
common property, the trial court acted neither imprudently nor precipitately; a court which
had jurisdiction to declare the marriage a nullity must be deemed likewise clothed with
authority to resolve incidental and consequential matters. Nor did it commit a reversible error
in ruling that petitioner and private respondent own the “family home” and all their common
property in equal shares, as well as in concluding that, in the liquidation and partition of the
property owned in common by them, the provisions on co-ownership under the Civil Code, not
Articles 50, 51 and 52, in relation to Articles 102 and 129,12 of the Family Code, should aptly
prevail. The rules set up to govern the liquidation of either the absolute community or the
conjugal partnership of gains, the property regimes recognized for valid and voidable
marriages (in the latter case until the contract is annulled), are irrelevant to the liquidation of
the co-ownership that exists between common-law spouses. The first paragraph of Article 50
of the Family Code, applying paragraphs (2), (3), (4) and (5) of Article 43, 13 relates only, by its
explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 4014 of
the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a
prior void marriage before the latter is judicially declared void. The latter is a special rule that
somehow recognizes the philosophy and an old doctrine that void marriages are inexistent
from the very beginning and no judicial decree is necessary to establish their nullity. In now
requiring for purposes of remarriage, the declaration of nullity by final judgment of the
previously contracted void marriage, the present law aims to do away with any continuing
uncertainty on the status of the second marriage. It is not then illogical for the provisions of
Article 43, in relation to Articles 4115 and 42,16 of the Family Code, on the effects of the
termination of a subsequent marriage contracted during the subsistence of a previous
marriage to be made applicable pro hac vice. In all other cases, it is not to be assumed that the
law has also meant to have coincident property relations, on the one hand, between spouses
in valid and voidable marriages (before annulment) and, on the other, between common-law
spouses or spouses of void marriages, leaving to ordain, in the latter case, the ordinary rules
on co-ownership subject to the provision of Article 147 and Article 148 of the Family Code. It
must be stressed, nevertheless, even as it may merely state the obvious, that the provisions of
the Family Code on the “family home,” i.e., the provisions found in Title V, Chapter 2, of the
Family Code, remain in force and effect regardless of the property regime of the spouses.
WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of the trial
court are AFFIRMED. No costs.
SO ORDERED.
 G.R. No. 151967. February 16, 2005.*
JOSEFINA C. FRANCISCO, petitioner, vs. MASTER IRON WORKS & CONSTRUCTION
CORPORATION and ROBERTO V. ALEJO, Sheriff IV, Regional Trial Court of Makati City, Branch
142, respondents.
Appeals; Pleadings and Practice; The Supreme Court may determine and resolve
questions of facts in cases where the findings of facts of the trial court and those of the Court
of Appeals are inconsistent, where highly meritorious circumstances are present, and where it
is necessary to give substantial justice to the parties.—We note that the only questions raised
in this case are questions of facts. Under Rule 45 of the Rules of Court, only questions of law
may be raised in and resolved by the Court. The Court may, however, determine and resolve
questions of facts in cases where the findings of facts of the trial court and those of the CA are
inconsistent, where highly meritorious circumstances are present, and where it is necessary to
give substantial justice to the parties. In the present action, the findings of facts and the
conclusions of the trial court and those of the CA are opposite. There is thus an imperative
need for the Court to delve into and resolve the factual issues, in tandem with the questions
of law raised by the parties.
Husband and Wife; Marriages; Co-Ownership; Article 144 of the New Civil Code applies
only to a relationship between a man and a woman who are not incapacitated to marry each
other, or to one in which the marriage of the parties is void from the very beginning—it does
not apply to a cohabitation that is adulterous or amounts to concubinage, for it would be
absurd to create a co-ownership where there exists a prior conjugal partnership or absolute
community between the man and his lawful wife.—We agree with the petitioner that Article
144 of the New Civil Code does not apply in the present case. This Court in Tumlos v.
Fernandez held that Article 144 of the New Civil Code applies only to a relationship between a
man and a woman who are not incapacitated to marry each other, or to one in which the
marriage of the parties is void from the very beginning. It does not apply to a cohabitation that
is adulterous or amounts to concubinage, for it would be absurd to create a co-ownership
where there exists a prior conjugal partnership or absolute community between the man and
his lawful wife. In this case, the petitioner admitted that when she and Eduardo cohabited, the
latter was incapacitated to marry her.
Same; Same; Same; Family Code; Family Code has filled the hiatus in Article 144 of the
New Civil Code by expressly regulating in Article 148 the property relations of couples living in
a state of adultery or concubinage; The Family Code, can be applied retroactively if it does not
prejudice vested or acquired rights.—The Family Code has filled the hiatus in Article 144 of the
New Civil Code by expressly regulating in Article 148 the property relations of couples living in
a state of adultery or concubinage. Under Article 256 of the Family Code, the law can be applied
retroactively if it does not prejudice vested or acquired rights. The petitioner failed to prove
that she had any vested right over the property in question.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Trieste & Mendoza Law Offices for petitioner.
Chavez, Hechanova & Lim Law Offices for respondent.
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the Deci-sion1 of the Court of Appeals (CA)
in CA-G.R. No. CV No. 59045, which reversed and set aside the Decision2 of the Regional Trial
Court (RTC) of Parañaque, Metro Manila, Branch 260, in Civil Case No. 94-2260 and the
Resolution of the CA denying the petitioner’s motion for reconsideration of the said decision.
Josefina Castillo was only 24 years old when she and Eduardo G. Francisco were married
on January 15, 1983.3 Eduardo was then employed as the vice president in a private
corporation. A little more than a year and seven months thereafter, or on August 31, 1984, the
Imus Rural Bank, Inc. (Imus Bank) executed a deed of absolute sale for P320,000.00 in favor of
Josefina Castillo Francisco, married to Eduardo Francisco, covering two parcels of residential
land with a house thereon located at St. Martin de Porres Street, San Antonio Valley I, Sucat,
Parañaque, Metro Manila. One of the lots was covered by Transfer Certificate of Title (TCT) No.
36519, with an area of 342 square meters, while the other lot, with an area of 360 square
meters, was covered by TCT No. 36518.4 The purchase price of the property was paid to the
Bank via Check No. 002334 in the amount of P320,000.00 drawn and issued by the Commercial
Bank of Manila, for which the Imus Bank issued Official Receipt No. 121408 on August 31,
1984.5 On the basis of the said deed of sale, TCT Nos. 36518 and 36519 were cancelled and, on
September 4, 1984, the Register of Deeds issued TCT Nos. 87976 (60550) and 87977 (60551)
in the name of “Josefina Castillo Francisco married to Eduardo G. Francisco.”6
On February 15, 1985, the Register of Deeds made of record Entry No. 85-18003 at the
dorsal portion of the said titles. This referred to an Affidavit of Waiver executed by Eduardo
where he declared that before his marriage to Josefina, the latter purchased two parcels of
land, including the house constructed thereon, with her own savings, and that he was waiving
whatever claims he had over the property.7 On January 13, 1986, Josefina mortgaged the said
property to Leonila Cando for a loan of P157,000.00.8 It appears that Eduardo affixed his
marital conformity to the deed.9
On June 11, 1990, Eduardo, who was then the General Manager and President of Reach
Out Trading International, bought 7,500 bags of cement worth P768,750.00 from Master Iron
Works & Construction Corporation (MIWCC) but failed to pay for the same. On November 27,
1990, MIWCC filed a complaint against him in the RTC of Makati City for the return of the said
commodities, or the value thereof in the amount of P768,750.00. The case was docketed
as Civil Case No. 90-3251. On January 8, 1992, the trial court rendered judgment in favor of
MIWCC and against Eduardo. The fallo of the decision reads:
“Accordingly, the Court renders judgment in favor of the plaintiff Master Iron Works And
Construction Corporation against the defendant [Eduardo] Francisco ordering the latter as
follows:
1. 1.To replace to plaintiff 7,500 bags at 50 kilos/bag of Portland cement or, in the
alternative, to pay the plaintiff the amount of P768,750.00;
2. 2.In either case, to pay liquidated damages by way of interest at 12% per
annum from June 21, 1990 until fully paid;
3. 3.To pay P50,000.00 as actual damages; and
4. 4.To pay attorney’s fees of P153,750.00 and litigation expenses of P20,000.00.
SO ORDERED.”10
The decision in Civil Case No. 90-3251 became final and executory and, on June 7, 1994, the
court issued a writ of execution.11 On June 14, 1994, Sheriff Roberto Alejo sold at a public
auction one stainless, owner-type jeep for P10,000.00 to MIWCC.12 Sheriff Alejo issued a
Notice of Levy on Execution/Attachment over the lots covered by TCT No. 87976 (60550) and
87977 (60551) for the recovery of the balance of the amount due under the decision of the
trial court in Civil Case No. 90-3251.13 On June 24, 1994, the sale of the property at a public
auction was set to August 5, 1994.14
On July 3, 1994, Josefina executed an Affidavit of Third Party Claim15 over the two parcels
of land in which she claimed that they were her paraphernal property, and that her husband
Eduardo had no proprietary right or interest over them as evidenced by his affidavit of waiver,
a copy of which she attached to her affidavit. She, likewise, requested Sheriff Alejo to cause
the cancellation of the notice of levy on execution/attachment earlier issued by him.
On July 7, 1994, Josefina filed the said Affidavit of Third Party Claim in the trial court and
served a copy thereof to the sheriff. MIWCC then submitted an indemnity bond 16 in the
amount of P1,361,500.00 issued by the Prudential Guarantee and Assurance, Inc. The sale at
public auction proceeded. MIWCC made a bid for the property for the price of P1,350,000.00.17
On July 28, 1994, Josefina filed a Complaint against MIWCC and Sheriff Alejo in the RTC of
Parañaque for damages with a prayer for a writ of preliminary injunction or temporary
restraining order, docketed as Civil Case No. 94-2260. She alleged then that she was the sole
owner of the property levied on execution by Sheriff Alejo in Civil Case No. 90-3251; hence,
the levy on execution of the property was null and void. She reiterated that her husband, the
defendant in Civil Case No. 90-3251, had no right or proprietary interest over the said property
as evidenced by his affidavit of waiver annotated at the dorsal portion of the said title. Josefina
prayed that the court issue a temporary restraining order/writ of preliminary injunction to
enjoin MIWCC from causing the sale of the said property at public auction. Considering that no
temporary restraining order had as yet been issued by the trial court, the sheriff sold the
subject property at public auction to MIWCC for P1,350,000.00 on August 5, 1994.18 However,
upon the failure of MIWCC to remit the sheriff’s commission on the sale, the latter did not
execute a sheriff’s certificate of sale over the property. The RTC of Parañaque, thereafter,
issued a temporary restraining order19 on August 16, 1994.
When Josefina learned of the said sale at public auction, she filed an amended complaint
impleading MIWCC, with the following prayer:
“WHEREFORE, premises considered, it is most respectfully prayed to this Honorable Court that,
after hearing, judgment be rendered in favor of the plaintiff and against the defendants and
the same be in the following tenor:
1.Ordering the defendants, jointly and severally, to pay the plaintiff the following
amounts:
A.The sum of P50,000.00 representing as actual damages;
B.The sum of P200,000.00 representing as moral damages;
C.The sum of P50,000.00 or such amount which this Honorable Court deems just as
exemplary damages;
D.The sum of P60,000.00 as and for attorney’s fees.
2.Declaring the levying and sale at public auction of the plaintiff’s properties null and
void;
3.To issue writ of preliminary injunction and makes it permanent;
4.Order the cancellation of whatever entries appearing at the titles as a result of the
enforcement of the writ of execution issued in Civil Case No. 90-3251.
Plaintiff further prays for such other reliefs as may be just under the premises.”20
In its answer to the complaint, MIWCC cited Article 116 of the Family Code of the Philippines
and averred that the property was the conjugal property of Josefina and her husband Eduardo,
who purchased the same on August 31, 1984 after their marriage on January 14, 1983. MIWCC
asserted that Eduardo executed the affidavit of waiver to evade the satisfaction of the decision
in Civil Case No. 90-3251 and to place the property beyond the reach of creditors; hence, the
said affidavit was null and void.
Before she could commence presenting her evidence, Josefina filed a petition to annul her
marriage to Eduardo in the RTC of Parañaque, Metro Manila, on the ground that when they
were married on January 15, 1983, Eduardo was already married to one Carmelita Carpio. The
case was docketed as Civil Case No. 95-0169.
Josefina and Carmelita testified in Civil Case No. 95-0169. Josefina declared that during her
marriage to Eduardo, she acquired the property covered by TCT Nos. 87976 (60550) and 87977
(60551), through the help of her sisters and brother, and that Eduardo had no participation
whatsoever in the said acquisition. She added that Eduardo had five children, namely, Mary
Jane, Dianne, Mary Grace Jo, Mark Joseph and Mary Cecille, all surnamed Francisco.
On September 9, 1996, the RTC of Parañaque rendered judgment21 in Civil Case No. 95-
0169, declaring the marriage between Josefina and Eduardo as null and void for being
bigamous.
In the meantime, Josefina testified in Civil Case No. 94-2260, declaring, inter alia, that she
was able to purchase the property from the Bank when she was still single with her mother’s
financial assistance; she was then engaged in recruitment when Eduardo executed an affidavit
of waiver; she learned that he was previously married when they already had two children;
nevertheless, she continued cohabiting with him and had three more children by him; and
because of Eduardo’s first marriage, she decided to have him execute the affidavit of waiver.
Eduardo testified that when his wife bought the property in 1984, he was in Davao City
and had no knowledge of the said purchases; he came to know of the purchase only when
Josefina informed him a week after his arrival from Davao;22Josefina’s sister, Lolita Castillo,
told him that she would collect from him the money his wife borrowed from her and their
mother to buy the property;23 when he told Lolita that he had no money, she said that she
would no longer collect from him, on the condition that he would have no participation over
the property,24 which angered Eduardo;25 when Josefina purchased the property, he had a
gross monthly income of P10,000.00 and gave P5,000.00 to Josefina for the support of his
family;26 Josefina decided that he execute the affidavit of waiver because her mother and sister
gave the property to her.27
On December 20, 1997, the trial court rendered judgment finding the levy on the subject
property and the sale thereof at public auction to be null and void. The fallo of the decision
reads:
“WHEREFORE, PREMISES CONSIDERED, THIS COURT finds the Levying and sale at public
auction of the plaintiff’s properties null and void.
The court orders the defendants to, jointly and severally, pay plaintiff the following
amounts:
 a.The sum of P50,000.00 as actual damages;
b.The sum of P50,000.00 representing as moral damages;
c.The sum of P50,000.00 as exemplary damages;
d.The sum of P60,000.00 as and for attorney’s fees.
The court orders the cancellation of whatever entries appearing at the Titles as a result of
the enforcement of the writ of execu-tion issued in Civil Case No. 90-3251.
SO ORDERED.”28
The trial court held that the property levied by Sheriff Alejo was the sole and exclusive property
of Josefina, applying Articles 144, 160, 175 and 485 of the New Civil Code. The trial court also
held that MIWCC failed to prove that Eduardo Francisco contributed to the acquisition of the
property.
MIWCC appealed the decision to the CA in which it alleged that:
I.THE TRIAL COURT ERRED IN RULING THAT THE REAL ESTATE PROPERTIES SUBJECT OF
THE AUCTION SALE ARE PARAPHERNAL PROPERTIES OWNED BY PLAINTIFF-APPELLEE
JOSEFINA FRANCISCO;
II.THE TRIAL COURT ERRED IN ALLOWING THE RECEPTION OF REBUTTAL EVIDENCE WITH
REGARD TO THE ANNULMENT OF PLAINTIFF-APPELLEE’S MARRIAGE WITH EDUARDO
FRANCISCO;
III.THE TRIAL COURT ERRED IN RULING THAT THE LEVY ON EXECUTION OF PLAINTIFF-
APPELLEE’S PROPERTIES SUBJECT OF THE PRESENT CONTROVERSY IS NULL AND VOID;
IV.THE TRIAL COURT ERRED IN ORDERING DEFENDANT-APPELLANT TO PAY DAMAGES
TO PLAINTIFF-APPELLEE FOR ALLEGED IMPROPER LEVY ON EXECUTION.29
The CA rendered judgment setting aside and reversing the decision of the RTC on September
20, 2001. The fallo of the decision reads:
“WHEREFORE, premises considered, the Decision, dated 20 December 1997, of the Regional
Trial Court of Parañaque, Branch 260, is hereby REVERSED and SET ASIDE and a new one
entered dismissing Civil Case No. 94-0126.
SO ORDERED.”30
The CA ruled that the property was presumed to be the conjugal property of Eduardo and
Josefina, and that the latter failed to rebut such presumption. It also held that the affidavit of
waiver executed by Eduardo was contrary to Article 146 of the New Civil Code and, as such,
had no force and effect. Josefina filed a motion for reconsideration of the decision, which was,
likewise, denied by the CA.
Josefina, now the petitioner, filed the present petition for review, alleging that:
1. A.THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THERE EXISTS A
CONJUGAL PARTNERSHIP BETWEEN PETITIONER AND EDUARDO FRANCISCO;
2. B.THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE SUBJECT
PROPERTIES WERE NOT PARAPHERNAL PROPERTIES OF PETITIONER;
3. C.THE HONORABLE COURT OF APPEALS ERRED IN DISTURBING THE FINDINGS OF
FACTS AND CONCLUSION BY THE TRIAL COURT IN ITS DECISION OF DECEMBER 20,
1997, THE SAME BEING IN ACCORDANCE WITH LAW AND JURISPRUDENCE.”31
The threshold issues for resolution are as follows: (a) whether or not the subject property
is the conjugal property of Josefina Castillo and Eduardo Francisco; and (b) whether or not the
subject properties may be held to answer for the personal obligations of Eduardo.
We shall deal with the issues simultaneously as they are closely related.
The petitioner asserts that inasmuch as her marriage to Eduardo is void ab initio, there is
no occasion that would give rise to a regime of conjugal partnership of gains. The petitioner
adds that to rule otherwise would render moot and irrelevant the provisions on the regime of
special co-ownership under Articles 147 and 148 of the Family Code of the Philippines, in
relation to Article 144 of the New Civil Code.
The petitioner avers that since Article 148 of the Family Code governs their property
relationship, the respondents must adduce evidence to show that Eduardo actually
contributed to the acquisition of the subject properties. The petitioner asserts that she
purchased the property before her marriage to Eduardo with her own money without any
contribution from him; hence, the subject property is her paraphernal property. Consequently,
such property is not liable for the debts of Eduardo to private respondent MIWCC.
The respondents, on the other hand, contend that the appellate court was correct in ruling
that the properties are conjugal in nature because there is nothing in the records to support
the petitioner’s uncorroborated claim that the funds she used to purchase the subject
properties were her personal funds or came from her mother and sister. The respondents point
out that if, as claimed by the petitioner, the subject properties were, indeed, not conjugal in
nature, then, there was no need for her to obtain marital (Eduardo’s) consent when she
mortgaged the properties to two different parties sometime in the first quarter of 1986, or
after Eduardo executed the affidavit of waiver.
We note that the only questions raised in this case are questions of facts. Under Rule 45
of the Rules of Court, only questions of law may be raised in and resolved by the Court. The
Court may, however, determine and resolve questions of facts in cases where the findings of
facts of the trial court and those of the CA are inconsistent, where highly meritorious
circumstances are present, and where it is necessary to give substantial justice to the parties.
In the present action, the findings of facts and the conclusions of the trial court and those of
the CA are opposite. There is thus an imperative need for the Court to delve into and resolve
the factual issues, in tandem with the questions of law raised by the parties.
The petition has no merit.
The petitioner failed to prove that she acquired the property with her personal funds
before her cohabitation with Eduardo and that she is the sole owner of the property. The
evidence on record shows that the Imus Bank executed a deed of absolute sale over the
property to the petitioner on August 31, 1984 and titles over the property were, thereafter,
issued to the latter as vendee on September 4, 1984 after her marriage to Eduardo on January
15, 1983.
We agree with the petitioner that Article 144 of the New Civil Code does not apply in the
present case. This Court in Tumlos v. Fernandez32 held that Article 144 of the New Civil Code
applies only to a relationship between a man and a woman who are not incapacitated to marry
each other, or to one in which the marriage of the parties is void from the very beginning. It
does not apply to a cohabitation that is adulterous or amounts to concubinage, for it would be
absurd to create a co-ownership where there exists a prior conjugal partnership or absolute
community between the man and his lawful wife. In this case, the petitioner admitted that
when she and Eduardo cohabited, the latter was incapacitated to marry her.
Article 148 of the Family Code of the Philippines, on which the petitioner anchors her
claims, provides as follows:
Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties
acquired by both of the parties through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to their respective contributions. In
the absence of proof to the contrary, their contributions and corresponding shares are
presumed to be equal. The same rule and presumption shall apply to joint deposits of money
and evidences of credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall
accrue to the absolute community or conjugal partnership existing in such valid marriage. If
the party who acted in bad faith is not validly married to another, his or her share shall be
forfeited in the manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall, likewise, apply even if both parties are in bad faith.
Indeed, the Family Code has filled the hiatus in Article 144 of the New Civil Code by expressly
regulating in Article 148 the property relations of couples living in a state of adultery or
concubinage. Under Article 256 of the Family Code, the law can be applied retroactively if it
does not prejudice vested or acquired rights. The petitioner failed to prove that she had any
vested right over the property in question.33
Since the subject property was acquired during the subsistence of the marriage of Eduardo
and Carmelita, under normal circumstances, the same should be presumed to be conjugal
property.34 Article 105 of the Family Code of the Philippines provides that the Code shall apply
to conjugal partnership established before the code took effect, without prejudice to vested
rights already acquired under the New Civil Code or other laws.35 Thus, even if Eduardo and
Carmelita were married before the effectivity of the Family Code of the Philippines, the
property still cannot be considered conjugal property because there can only be but one valid
existing marriage at any given time.36 Article 148 of the Family Code also debilitates against
the petitioner’s claim since, according to the said article, a co-ownership may ensue in case of
cohabitation where, for instance, one party has a pre-existing valid marriage provided that the
parties prove their actual joint contribution of money, property or industry and only to the
extent of their proportionate interest thereon.37
We agree with the findings of the appellate court that the petitioner failed to adduce
preponderance of evidence that she contributed money, property or industry in the acquisition
of the subject property and, hence, is not a co-owner of the property:
First of all, other than plaintiff-appellee’s bare testimony, there is nothing in the record to
support her claim that the funds she used to purchase the subject properties came from her
mother and sister. She did not, for instance, present the testimonies of her mother and sister
who could have corroborated her claim. Furthermore, in her Affidavit of Third-Party Claim
(Exh. “C”), she stated that the subject properties “are my own paraphernal properties,
including the improvements thereon, as such are the fruits of my own exclusive efforts . . .,”
clearly implying that she used her own money and contradicting her later claim that the funds
were provided by her mother and sister. She also stated in her affidavit that she acquired the
subject properties before her marriage to Eduardo Francisco on 15 January 1983, a claim later
belied by the presentation of the Deed of Absolute Sale clearly indicating that she bought the
properties from Imus Rural Bank on 31 August 1984, or one year and seven months after her
marriage (Exh. “D”). In the face of all these contradictions, plaintiff-appellee’s uncorroborated
testimony that she acquired the subject properties with funds provided by her mother and
sister should not have been given any weight by the lower court.
It is to be noted that plaintiff-appellee got married at the age of 23. At that age, it is
doubtful if she had enough funds of her own to purchase the subject properties as she claimed
in her Affidavit of Third Party Claim. Confronted with this reality, she later claimed that the
funds were provided by her mother and sister, clearly an afterthought in a desperate effort to
shield the subject properties from appellant Master Iron as judgment creditor.38
Aside from her bare claims, the petitioner offered nothing to prove her allegation that she
borrowed the amount of P320,000.00 from her mother and her sister, which she paid to the
Imus Bank on August 31, 1984 to purchase the subject property. The petitioner even failed to
divulge the name of her mother and the sources of her income, if any, and that of her sister.
When she testified in Civil Case No. 95-0169, the petitioner declared that she borrowed part
of the purchase price of the property from her brother,39 but failed to divulge the latter’s
name, let alone reveal how much money she borrowed and when. The petitioner even failed
to adduce any evidence to prove that her mother and sister had P320,000.00 in 1984, which,
considering the times, was then quite a substantial amount. Moreover, the petitioner’s third-
party-claim affidavit stating that the properties “are the fruits of my own exclusive effort
before I married Eduardo Francisco” belies her testimony in the trial court and in Civil Case No.
95-0169.
We note that, as gleaned from the receipt issued by the Imus Bank, the payment for the
subject property was drawn via Check No. 002334 and issued by the Commercial Bank of
Manila in the amount of P320,000.00.40 The petitioner failed to testify against whose account
the check was drawn and issued, and whether the said account was owned by her and/or
Eduardo Francisco or her mother, sister or brother. She even failed to testify whether the check
was a manager’s check and, if so, whose money was used to purchase the same.
We also agree with the findings of the CA that the affidavit of waiver executed by Eduardo
on February 15, 1985, stating that the property is owned by the petitioner, is barren of
probative weight. We are convinced that he executed the said affidavit in anticipation of claims
by third parties against him and hold the property liable for the said claims. First, the petitioner
failed to prove that she had any savings before her cohabitation with Eduardo. Second, despite
Eduardo’s affidavit of waiver, he nevertheless affixed his marital conformity to the real estate
mortgage executed by the petitioner over the property in favor of Leonila on January 13,
1986.41 Third, the petitioner testified that she borrowed the funds for the purchase of the
property from her mother and sister.42 Fourth, the petitioner testified that Eduardo executed
the affidavit of waiver because she discovered that he had a first marriage.43 Lastly, Eduardo
belied the petitioner’s testimony when he testified that he executed the affidavit of waiver
because his mother-in-law and sister-in-law had given the property to the petitioner.44
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the
Court of Appeals reversing the decision of the Regional Trial Court is AFFIRMED. No
pronouncement as to costs.
SO ORDERED.
 G.R. No. 86355. May 31, 1990.*
JOSE MODEQUILLO, petitioner, vs. HON. AUGUSTO V. BREVA, FRANCISCO SALINAS, FLORIPER
ABELLAN-SALI-NAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF FERNANDO PLATA,
respondents.
Civil Law; Family Code; Execution; Under the Family Code, a family home is deemed
constituted on a house and lot from the time it is occupied as a family residence.—Under the
Family Code, a family home is deemed constituted on a house and lot from the time it is
occupied as a family residence. There is no need to constitute the same judicially or
extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is,
therefore, a family home as contemplated by law. Thus, the creditors should take the
necessary precautions to protect their interest before extending credit to the spouses or head
of the family who owns the home.
Same; Same; Same; Same; Exemption is effective from the time of the constitution of the
family home as such and lasts so long as any of its beneficiaries actually resides therein.—The
exemption provided as aforestated is effective from the time of the constitution of the family
home as such, and lasts so long as any of its beneficiaries actually resides therein.
Same; Same; Same; Same; The residential house and lot of petitioner was not
constituted as a family home whether judicially or extrajudicially under the Civil Code.—In the
present case, the residential house and lot of petitioner was not constituted as a family home
whether judicially or extrajudicially under the Civil Code. It became a family home by operation
of law only under Article 153 of the Family Code. It is deemed constituted as a family home
upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its
publication in the Manila Chronicle on August 4, 1987.
Same; Same; Same; Same; Contention that it should be considered a family home from
the time it was occupied by petitioner and his family in 1969 not well-taken.—The contention
of petitioner that it should be considered a family home from the time it was occupied by
petitioner and his family in 1969 is not well-taken. Under Article 162 of the Family Code, it is
provided that “the provision of this Chapter shall also govern existing family residences insofar
as said provisions are applicable.” It does not mean that Articles 152 and 153 of said Code have
a retroactive effect such that all existing family residences are deemed to have been
constituted as family homes at the time of their occupation prior to the effectivity of the Family
Code and are exempt from execution for the payment of obligations incurred before the
effectivity of the Family Code. Article 162 simply means that all existing family residences at
the time of the effectivity of the Family Code, are considered family homes and are
prospectively entitled to the benefits accorded to a family home under the Family Code. Article
162 does not state that the provisions of Chapter 2, Title V have a retroactive effect.
Same; Same; Same; Same; Case does not fall under the exemptions from execution
provided in the Family Code.—Is the family home of petitioner exempt from execution of the
money judgment aforecited? No. The debt or liability which was the basis of the judgment
arose or was incurred at the time of the vehicular accident on March 16, 1976 and the money
judgment arising therefrom was rendered by the appellate court on January 29, 1988. Both
preceded the effectivity of the Family Code on August 3, 1988. This case does not fall under
the exemptions from execution provided in the Family Code.
PETITION to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court. Josefina Brandares-Almazan for
petitioner.
ABC Law Offices for private respondents.
GANCAYCO, J.:
The issue in this petition is whether or not a final judgment of the Court of Appeals in an action
for damages may be satisfied by way of execution of a family home constituted under the
Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV No.
09218 entitled “Francisco Salinas, et al. vs. Jose Modequillo, et al.,” the dispositive part of
which read as follows:
“WHEREFORE, the decision under appeal should be, as it is hereby, reversed and set aside.
Judgment is hereby rendered finding the defendants-appellees Jose Modequillo and Benito
Malubay jointly and severally liable to plaintiffs-appellants as hereinbelow set forth.
Accordingly, defendants-appellees are ordered to pay jointly and severally to:
1. 1.Plaintiffs-appellants, the Salinas spouses:
1. a.the amount of P30,000.00 by way of compensation for the death of their son Audie
Salinas;
2. b.P10,000.00 for the loss of earnings by reason of the death of said Audie Salinas;
3. c.the sum of P5,000.00 as burial expenses of Audie Salinas; and
4. d.the sum of P5,000.00 by way of moral damages.
1. 2.Plaintiffs-appellants Culan-Culan:
1. a.the sum of P5,000.00 for hospitalization expenses of Renato Culan-Culan; and
2. b.P5,000.00 for moral damages.
1. 3.Both plaintiffs-appellants Salinas and Culan-Culan, P7,000.00 for attorney’s fees
and litigation expenses.
All counterclaims and other claims are hereby dismissed.”1
The said judgment having become final and executory, a writ of execution was issued by the
Regional Trial Court of Davao City to satisfy the said judgment on the goods and chattels of the
defendants Jose Modequillo and Benito Malubay at Malalag, Davao del Sur.
On July 7, 1988, the sheriff levied on a parcel of residential land located at Poblacion
Malalag, Davao del Sur containing an area of 600 square meters with a market value of
P34,550.00 and assessed value of P7,570.00 per Tax Declaration No. 87-008-01359, registered
in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur; and a
parcel of agricultural land located at Dalagbong, Bulacan, Malalag, Davao del Sur containing an
area of 3 hectares with a market value of P24,130.00 and assessed value of P9,650.00 per Tax
Declaration No. 87-08-01848 registered in the name of Jose Modequillo in the office of the
Provincial Assessor of Davao del Sur.2
A motion to quash and/or to set aside levy of execution was filed by defendant Jose
Modequillo alleging therein that the residential land located at Poblacion Malalag is where the
family home is built since 1969 prior to the commencement of this case and as such is exempt
from execution, forced sale or attachment under Articles 152 and 153 of the Family Code
except for liabilities mentioned in Article 155 thereof; and that the judgment debt sought to
be enforced against the family home of defendant is not one of those enumerated under
Article 155 of the Family Code. As to the agricultural land although it is declared in the name
of defendant it is alleged to be still part of the public land and the transfer in his favor by the
original possessor and applicant who was a member of a cultural minority was not approved
by the proper government agency. An opposition thereto was filed by the plaintiffs.
In an order dated August 26, 1988, the trial court denied the motion. A motion for
reconsideration thereof was filed by defendant and this was denied for lack of merit on
September 2, 1988.
Hence, the herein petition for review on certiorari wherein it is alleged that the trial court
erred and acted in excess of its concurred in by Justices Antonio M. Martinez and Cecilio L. Pe.
jurisdiction in denying petitioner’s motion to quash and/or to set aside levy on the properties
and in denying petitioner’s motion for reconsideration of the order dated August 26, 1988.
Petitioner contends that only a question of law is involved in this petition. He asserts that the
residential house and lot was first occupied as his family residence in 1969 and was duly
constituted as a family home under the Family Code which took effect on August 4, 1988. Thus,
petitioner argues that the said residential house and lot is exempt from payment of the
obligation enumerated in Article 155 of the Family Code; and that the decision in this case
pertaining to damages arising from a vehicular accident took place on March 16, 1976 and
which became final in 1988 is not one of those instances enumerated under Article 155 of the
Family Code when the family home may be levied upon and sold on execution. It is further
alleged that the trial court erred in holding that the said house and lot became a family home
only on August 4, 1988 when the Family Code became effective, and that the Family Code
cannot be interpreted in such a way that all family residences are deemed to have been
constituted as family homes at the time of their occupancy prior to the effectivity of the said
Code and that they are exempt from execution for the payment of obligations incurred before
the effectivity of said Code; and that it also erred when it declared that Article 162 of the Family
Code does not state that the provisions of Chapter 2, Title V have a retroactive effect.
Articles 152 and 153 of the Family Code provide as follows:
“Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried
head of a family, is the dwelling house where they and their family reside, and the land on
which it is situated.”
“Art. 153. The family home is deemed constituted on a house and lot from the time it is
occupied as a family residence. From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues to be such and is exempt from
execution, forced sale or attachment except as hereinafter provided and to the extent of the
value allowed by law.”
Under the Family Code, a family home is deemed constituted on a house and lot from the time
it is occupied as a family residence. There is no need to constitute the same judicially or
extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is,
therefore, a family home as contemplated by law. Thus, the creditors should take the
necessary precautions to protect their interest before extending credit to the spouses or head
of the family who owns the home.
Article 155 of the Family Code also provides as follows:
“Art. 155. The family home shall be exempt from execution, forced sale or attachment except:
(1)For nonpayment of taxes;
(2)For debts incurred prior to the constitution of the family home;
(3)For debts secured by mortgages on the premises before or after such constitution;
and
(4)For debts due to laborers, mechanics, architects, builders, materialmen and others
who have rendered service or furnished material for the construction of the building.”
The exemption provided as aforestated is effective from the time of the constitution of the
family home as such, and lasts so long as any of its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not constituted as a
family home whether judicially or extrajudicially under the Civil Code. It became a family home
by operation of law only under Article 153 of the Family Code. It is deemed constituted as a
family home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year
after its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year).
The contention of petitioner that it should be considered a family home from the time it
was occupied by petitioner and his family in 1969 is not well-taken. Under Article 162 of the
Family Code, it is provided that “the provisions of this Chapter shall also govern existing family
residences insofar as said provisions are applicable.” It does not mean that Articles 152 and
153 of said Code have a retroactive effect such that all existing family residences are deemed
to have been constituted as family homes at the time of their occupation prior to the effectivity
of the Family Code and are exempt from execution for the payment of obligations incurred
before the effectivity of the Family Code. Article 162 simply means that all existing family
residences at the time of the effectivity of the Family Code, are considered family homes and
are prospectively entitled to the benefits accorded to a family home under the Family Code.
Article 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the money judgment
aforecited? No. The debt or liability which was the basis of the judgment arose or was incurred
at the time of the vehicular accident on March 16, 1976 and the money judgment arising
therefrom was rendered by the appellate court on January 29, 1988. Both preceded the
effectivity of the Family Code on August 3, 1988. This case does not fall under the exemptions
from execution provided in the Family Code.
As to the agricultural land subject of the execution, the trial court correctly ruled that the
levy to be made by the sheriff shall be on whatever rights the petitioner may have on the land.
WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs.
SO ORDERED.
 No. L-25609. November 27, 1968.
MARGARET ANN WAINRIGHT VERSOZA, JOSE MA. VERSOZA, JR., CHARLES JOHN VERSOZA and
VIRGINIA FELICE VERSOZA, plaintiffs-appellants, vs.JOSE MA. VERSOZA, defendant-appellee.
Civil law; Suit between members of the same family; Article 222, Civil Code, construed in
relation to Section 1(j), Rule 16, Rules of Court; Meaning of "no suit shall be filed or
maintained;" Future support; The attempt to compromise and inability to arrive thereat is a
condition precedent to the filing of the suit; General rule; Exception.—The text of Article 222 of
the Civil Code is this: "No suit shall be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a compromise have been made, but that
the same have failed, subject to the limitations in Article 2035" (See Art. 217, Civil Code,
regarding the scope of "family relations"). The requirement in Article 222 has been given more
teeth by Section 1(j), Rule 16 of the Rules of Court, which states as ground for a motion to
dismiss that "(t)he suit is between members of the same family and no -earnest efforts towards
a compromise has been made."
The cumulative impact of the 'statute and the rule just adverted to is that earnest efforts
to reach a compromise and failure thereof must—ordinarily—be alleged in the complaint. The
Civil Code provision that "(n)o suit shall be filed or maintained" simply means that the attempt
to compromise and inability to arrive thereat is a condition precedent to the filing of the suit.
As such it is a part of plaintiffs' cause of action. Justice J.B.L. Reyes and Judge Puno bolstered
this view with their statement that "(t)he terms of Article 222 require express allegation of an
attempt to compromise and its failure; otherwise there is no cause of action stated" (Outline
of Philippine Civil Law, 1956 ed., Vol. I, p. 222).
The foregoing, however, is but a statement of the general rule.Future support operates
outside the ambit thereof.
Same; Support; Concept and scope; Right to support is not susceptible of future
transaction but support in arrears is a different thing altogether.—Support is, amongst others,
everything
79
VOL. 26, NOVEMBER 27, 1968 79
Versoza vs. Versoza
that is indispensable for sustenance (Art. 290, Civil Code). The right to support cannot
be: (1) renounced; (2) transmitted to third persons; nor (3) compensated with what the
recipient owes the obligor (Art. 301, Civil Code). Compensation may not even be set up against
a creditor who has a claim for support due by gratuitous title (Par. 2, Art. 1287, Civil Code). Of
course, support in arrears is a different thing altogether. It may be compensated, renounced
and transmitted by onerous or gratui-tous title (Par. 2, Art. 301, Civil Code). In Coral v. Gallego,
the Court of Appeals has had occasion to declare that the right to support is not susceptible of
f uture transactions under Article 1814 of the old Civil Code (38 O.G. 3158).
Because compromise on future support is proscribed (Advincula v. Advincula, L-19065,
Jan. 31, 1964; Velayo v. Velayo, L-23528, July 21, 1967; Velayo v. Velayo, L-14541, March 30,
1960), the conclusion is irresistible that an attempt at compromise of future support and
failure thereof is not a condition precedent to the filing of a suit therefor and it need not be
alleged in the complaint. In other words, since no valid compromise is possible on the issue of
future support, a showing of previous efforts to compromise future support would be
superflous (Mendoza v. Court of Appeals, 1967B Phild. 82).
Same; Questions or issues not susceptible of compromise;Article 222 and Article 2035,
Civil Code, compared and differentiated.—Article 2035 of the Civil Code provides that no
compromise upon the following questions shall be valid: "(1) The civil status of persons; (2)
The validity of a marriage or a legal separation; (3) Any ground for legal separation; (4) Future
support; (5) The jurisdiction of courts; and (6) Future legitime."
It thus appears that Article 2035 has roots deeper than Article 222. For, whereas Article
222 is inserted as a new concept in the present Code in a laudable effort to obviate a sad and
tragic spectacle occasioned by a litigation between members of the same family, Article 2035
firmly maintains the ancient injunction against compromise on matters involving future
support. And this is as it should be. For, even as Article 222 requires earnest efforts at a
compromise and inability to reach one as a condition precedent to the f iling and maintenance
of a suit "between the members of the same family", that same Article took good care to
add: "subject to the limitations in article 2035"
Pleading and practice; Complaint; Cause of action; Amendment of complaint after
responsive pleading has been served; When it may be refused; An amendment in a complaint
to the effect that the requirements of Article 222 have been complied with (thereby alleging
therein a cause of action) may be allowed.—After a responsive pleading has been served,
amendments may
80
80 SUPREME COURT REPORTS ANNOTATED
Versoza vs. Versoza
be made only upon leave of court (Secs. 2 and 3, Rule 10, Rules of Court). A proposed
amendment may be refused when it confers jurisdiction on the court in which it is filed, if the
cause of action originally set forth was not within that court's jurisdiction
(Rosario v.Carandang, 96 Phil. 845; Campos Rueda Corp. v. Bautista, L-18453, Sept. 29,
1962, cited in Tamayo v. San Miguel Brewery, Inc., L-17749, Jan. 31, 1964). An amendment
may also be refused when the cause of action is substantially altered (Sec. 3, Rule 10, Rules of
Court; Arches v. Villaruz, 102 Phil. 661. See also Guirao v. Ver, 16 SCRA 638; and
Shaffer v. Palma, 1968A Phild. 767).
The alleged defect (in the case at bar) is that the complaint does not state a cause of
action. The proposed amendment seeks to complete it. An amendment to the effect that the
requirements of Article 222 have been complied with does not confer jurisdiction upon the
lower court. With or without this amendment, the subject-matter of the action remains as one
for support, custody of children, and damages, cognizable by the court below. It follows,
therefore, that the lower court, in the interest of justice, should have allowed the plaintiffs to
amend their complaint instead of granting the motion to dismiss. This it could have done under
Section 3 of Rule 16 of the Rules of Court. For, the defect in the complaint is curable.
APPEAL from certain orders of the Court of First Instance of Rizal.
The facts are stated in the opinion of the Court.
William H. Quasha & Associates for plaintiffs-appellants.
Deogracias T. Reyes & Associates and Jose M. Luisonfor defendant-appellee.
SANCHEZ, J.:
The question before us, framed in legal setting, is the correctness of the lower court's order
dismissing, without prejudice, the complaint seeking, inter alia, future support upon the
ground that there is no allegation therein that earnest efforts toward a compromise were
made but that the same have failed, in infringement of Article 222 of the Civil Code.
 With this problem in mind, we turn to the pivotal facts. On March 4, 1964, a verified
complaint, later amended, for P1,500.00 monthly support, support in arrears, and damages,
and custody of children, with a petition for sup-
81
VOL. 26, NOVEMBER 27, 1968 81
Versoza vs. Versoza
port pendente lite1 was lodged against Jose Ma. Versoza by his wife, Margaret Ann Wainright
Versoza, and their three minor children, Jose Ma. Versoza, Jr., Charles John Versoza and
Virginia Felice Versoza. Reasons given are that defendant has abandoned plaintiffs without
providing for their support and maintains illicit relations with another woman.
Defendant's answer attacked the complaint on the claim that it is premature and/or that
it states no cause of action. Because, the complaint which involves members of the same
family2 does allege earnest efforts toward a compromise before the complaint was filed as set
forth in the statute mentioned at the start of this opinion. Then followed defendant's motion
for preliminary hearing on jurisdiction. Defendant there argued that compliance with Article
222 of the Civil Code aforesaid was a condition precedent and should have been alleged in the
complaint.
On February 22, 1965, following appropriate proceedings, the lower court came out with
its first appealed order. It there resolved to dismiss the complaint without prejudice, upon the
ground that there was no showing that efforts have been exerted to settle the case amicably
before suit was started.
Plaintiffs moved to reconsider. Annexed to its motion was an affidavit of their counsel to
the effect that before court action was taken efforts were made to settle the case amicably,
but which were fruitless. On March 30, 1965, the lower court brushed aside this motion.
In an effort to conform to the position taken by the lower court, plaintiffs filed a second
motion for the reconsideration of the orders of February 22, and March 30,
________________
1Civil Case No. Q-7870, Court of First Instance of Rizal, Quezon City, Branch IX, entitled
"Margaret Ann Wainright Versoza, et al., Plantiffs, versus Jose Ma. Versoza, Defendant", for
support and damages.
2 Article 217 of the Civil Code provides that family relations shall include those (1) between
husband and wife; (2) between parent and child; (3) among other ascendants and their
descendants; and (4) among brothers and sisters. Francisco, Comments on the Revised Rules
of Court, Vol. I, 1956 ed., pp. 694-695.
82
82 SUPREME COURT REPORTS ANNOTATED
Versoza vs. Versoza
1965. Plaintiffs at the same time sought admission of their second amended complaint in which
the required averment was made to obviate the objection to their com-plaint. They there
alleged that before starting the present suit, they sought amicable settlement but were
unsuccessful.
On June 22, 1965, the second motion for reconsideration was likewise denied by the lower
court "(f)or lack of merit."
The dismissal orders are now the subject of appeal.
1. Plaintiffs argue that the Civil Code requirement of attempt to reach a compromise and
of its failure need not be alleged in the complaint. They claim that some such fact may be
proved either at the main hearing or at the preliminary hearing on the motion to dismiss.
The text of Article 222 of the Civil Code is this: "No suit shall be filed or maintained between
members of the same family unless it should appear that earnest efforts toward a compromise
have been made, but that the same have failed, subject to the limitations in article 2035."3 The
requirement in Article 222 has been given more teeth by Section 1(j), Rule 16 of the Rules of
Court, which states as ground for a motion to dismiss that "(t)he suit is between members of
the same f amily and no earnest efforts towards a compromise have been made/'
The cumulative impact of the statute and the rule just adverted to is that earnest efforts
to reach a compromise and failure thereof must—ordinarily—be alleged in the complaint. The
Civil Code provision that "(n)o suit shall be filed or maintained" simply means that the attempt
to compromise and inability to arrive thereat is a condition precedent to the filing of the suit.
As such it is a part of plaintiffs' cause of action. Justice J.B.L. Reyes and Judge Puno4 bolstered
this view with their statement that "(t)he terms of article 222 require expressallegation of an
attempt to compromise and its failure; otherwise there is no cause of action stated,"
2. The foregoing, however, is but a statement of the general rule. Future support operates
outside the ambit
________________
3Italics supplied.
4Outline of Philippine Civil Law, 1956 ed., Vol. 1, p. 222.
83
VOL. 26, NOVEMBER 27, 1968 83
Versoza vs. Versoza
thereof. Mucius Scaevola5 expresses the view that no objection can be made to a compromise
"cuando el derecho es renunciable, eminentemente privado." Scaevola, however, emphasizes:
"(P)ero el derecho a la vida no lo es." This brings us to the legal provision Scaevola commented
upon, namely, Article 1814 of the Spanish Civil Code of 1889, which reads:
"Art. 1814. No puede transigir sobre el estado civil de las personas, ni sobre las cuestiones
matrimoniales, ni sobre alimentos futuros."6
So it is, that Colin y Capitant7 observed: "Una cosa es que la transacción sea en principio
un acto licito, con exclusion de aquellas materias a que se refiere el art. 1814 del Código civil."
The philosophy behind the rule is best expressed by Manresa8in the following terms:
"Aunque el Código no lo diga expresamente, desde luego se comprende que, por regla general,
pueden ser objeto de transaccion todas las cosas que estan en el comercio de los hombres,
siempre que no se halle prohibido por la ley. Esta es la regla general; pero hay casos en que,
por razones de moralidad o por otras consideraciones no menos atendibles, no puede
admitirse la transacción, como sucede, por ejemplo, -en materia de estado civil de las
personas, de cuestiones matrimoniales y de alimentos, y otros que tampoco son susceptibles
de transacción por afectar al interés público o social yno estar en el dominio o en la potestad
de los particulares el sustraerlos, a los efectos rigurosos de la ley, según ocurre con los delitos
y demás transgresiones punibles del derecho.
x x x
Réstanos ocuparnos de otra prohibición impuesta también por el art. 1814 en su última
parte. Nos referimos a la establecida por el mismo respecto de la transacción sobre
los alimentos futuros;prohibición que se funda en poderosas razones de moralidad que no
pueden ocultarse, ni pasar desapercibidas para nadie que detenidamente medite sobre ello.
 En efecto, en rigor de principios, la ley concede los alimentos en razón a la necesidad que
de ellos tiene el alimentista pora vivir, y es evidente que transigir sobre ellos, equivaldria a
renunciar en parte a la vida, como ha dicho un autor ('Colección de las Instituciones juridicas
políticas de los, pueblos modernos,' Tomo 13, pág. 792); y si no le fueran necesarios pudiendo
por tal motivo renunciarlos, no cabria tampoco transacción, porque no tendría derecho a
percibirlos."
The foregoing but emphasizes the concept of support. For, support is, amongst others,
everything that is indispensable for sustenance.9 The right to support cannot be: (1)
renounced; (2) transmitted to third persons; nor (3) compensated with what the recipient
owes the obligor.10 Compensation may not even be set up against a creditor who has a claim
for support due by gratuitous title.11 Of course, support in arrears is a different thing
altogether. It may be compensated, renounced and transmitted by onerous or gratuitous
title.12 In Coral vs. Gallego,13 the Court of Appeals has had occasion to declare that the right to
support is not susceptible of future transactions under Article 1814 of the old Civil Code.
Article 1814 of the Spanish Civil Code was reproduced in Article 2035 of the new Civil
Code—in an expanded f orm—as f ollows:
"ART. 2035. No compromise upon the following questions shall be valid:
(1)The civil status of persons;
(2)The validity of a marriage or a legal separation;
(3)Any ground for legal separation;
(4)Future support;
(5)The jurisdiction of courts;
(6)Future legitime."
It thus appears that Article 2035 has roots deeper than Article 222. For, whereas Article 222 is
inserted as a new concept in the present Code in a laudable effort to obviate a sad and tragic
spectacle occasioned by a litigation between members of the same family. Article 2035 firmly
maintains the ancient injunction against compro-
_______________
9 Article 290, Civil Code.
10 Article 301, Civil Code.
11 Par. 2, Article 1287, Civil Code.
12 Par. 2, Article 301, Civil Code.
13 38 O.G. 3158, cited in Padilla, Civil Code Anno., 1956 ed., Vol. IV, pp. 648-649.
85
VOL. 26, NOVEMBER 27, 1968 85
Versoza vs. Versoza
mise on matters involving future support. And this is as it should be. For, even as Article 222
requires earnest efforts at a compromise and inability to reach one as a condition precedent
to the filing and maintenance of a suit between the members of the same family", that same
article took good care to add: "subject to the limitations in article 2035."
Plaintiffs ask for support past, present and future. There is also the prayer for
alimony pendente lite. Since the present action also revolves on the right to future support and
because compromise on future support is proscribed,14 then the conclusion is irresistible that
an attempt at compromise of future support and failure thereof is not a condition precedent
to the filing of the present suit. It need not be alleged in the complaint. The very opening
statement in Article 2035 unmistakably confirms our view. It says that "(n)o compromiseupon
the following questions shall be valid: x x x (4) Future support."15 We cannot afford to give a
loose view to this controlling statute. We may not disregard it. To do so is to misread the law,
to write off an explicit congressional will, to cross the line which circumscribes courts of justice
and step into legislative area.
Mendoza vs. Court of Appeals, 1967B Phild. 82, is to be read as controlling here. In that
case, the wife filed in the Court of First Instance of Nueva Ecija an action for support against
her husband who was then employed in a hospital in the United States. Defendant, by counsel,
moved to dismiss, for the reason that the complaint failed to state a cause of action "because
it contained no allegation that earnest efforts toward a compromise have been made before
the filing of the suit, and invoking the provisions of Article 222 of the Civil Code of the
Philippines." The Court of First Instance refused to entertain the motion to dismiss. Defendant
petitioned the Court of Appeals for a writ of prohibition. The appellate court denied the writ
prayed for. Defendant petitioned this Court for review. We affirmed. In that first judicial test,
this Court,speaking thru Mr. Justice J.B.L. Reyes, held:
"While we agree that petitioner's position represents a correct statement of the general rule
on the matter, we are nevertheless constrained to hold that the Court of Appeals and the Court
of First Instance committed no error in refusing to dismiss the complaint, for on its face, the
same involved a claim for future support that under Article 2035 of the Civil Code of the
Philippines can not be subject of a valid compromise, and is, therefore, outside the sphere of
application of Article 222 of the Code upon which petitioner relies, This appears from the last
proviso of said Article 222, already quoted. x x x.
xxx
Since no valid compromise is possible on these issues, a showing of previous efforts to
compromise them would be superfluous.
It may be that the complaint asks for both future support and support in arrears, as
petitioner contends. But, the possibility of compromise on the latter does not negate the
existence of a valid cause of action for future support, to which Article 222 can not apply."16
Although the complaint herein seeks custody of minor children and damages as well, the prime
object is support. And, of importance, of course, is future support. The reliefs sought are
intimately related to each other. They all spring from the fact that husband and wife are
separated from each other. So it is, that expediency dictates that they be, as they are now,
placed together in one complaint. For, multiplicity of suits is not favored in law. Since one of
the causes of action, that for future support, may be lodged in court without the compromise
requisite in Article 222 of the Civil Code, the complaint herein, as we have ruled
in Mendoza, may not be dismissed.
We, accordingly, hold that the lower court erred in dismissing the complaint.
3. But even on the assumption that it was error on the part of plaintiffs to have failed to
so allege, plaintiffs should not be barred from making an amendment to correct it.
Parenthetically, after a responsive pleading has been served, amendments may be made
only upon leave of court.17 But, in the furtherance of justice, the court "should be liberal in
allowing amendments to pleadings to avoid multiplicity of suits and in order that the real
controversies between the parties are presented, their rights determined and the case decided
on the merits without un-necessary delay."18
Thus, the instances wherein this Court considered allowance of an amendment not
justified are limited. As def endant correctly points out, a proposed amendment may be
refused when it confers jurisdiction on the court in which it is filed, if the cause of action
originally set forth was not within that court's jurisdiction.19 An amendment may also be ref
used when the cause of action is substantially altered.20
A typical case which merited refusal of an amendment is Rosario vs. Carandang,
supra. There, the original complaint was one for forcible entry and detainer over which the
Court of First Instance, where the complaint was filed, had no jurisdiction, The amendment
sought by plaintiff was the inclusion of an allegation that the defendants were claiming
ownership over the land in dispute. The proposed amendment would thus convert the case
from one of forcible entry and detainer into one of recovery of possession, which is within the
jurisdiction of the Court of First Instance. The court properly denied the amendment,
The alleged defect is that the present complaint does not state a cause of action. The
proposed amendment seeks to complete it. An amendment to the effect that the requirements
of Article 222 have been complied with does not confer jurisdiction upon the lower court. With
or without this amendment, the subject-matter of the action remains as one f or support,
custody of children, and damages, cognizable by the court below.
To illustrate, Tamayo vs. San Miguel Brewery, Inc.,21 allowed an amendment which
"merely corrected a defect in the allegation of plaintiff-appellant's cause of action, because as
it then stood, the original complaint stated no cause of action."We there ruled out as
inapplicable the holding in Campos Rueda Corporation vs. Bautista, supra, that an amendment
cannot be made so as to confer jurisdition on the court.
The lower court, in the interest of justice, should have allowed plaintiffs to amend their
complaint instead of granting the motion to dismiss. This it could have done under Section 3
of Rule 16 of the Rules of Court. For, the defect in the complaint is curable.
For the reasons given—

(1)the orders of the lower court of February 22, 1965, March 30, 1965, and June 22,
1965 are hereby set aside; and

(2)the record of this case is hereby remanded to the Court of First Instance of Rizal,
Quezon City, Branch IX, with instructions to admit the second amended complaint and
to conduct further proceedings not inconsistent with the opinion herein. Costs against
defendant. So ordered.
 G.R. No. 58010. March 31, 1993.*
EMILIA O'LACO and HUGO LUNA, petitioners, vs.VALENTIN CO CHO CHIT, O LAY KIA and COURT
OF APPEALS, respondents.
Civil Law; Family; Civil Procedure; Motion to Dismiss; Earnest efforts towards a
compromise is a condition precedent to filing of suits between members of same family, non-
compliance of which, complaint assailable at any stage of the proceedings for lack of cause of
action.—Admittedly; the present action is between members of the same family since
petitioner Emilia O'Laco and respondent O Lay Kia are half-sisters. Consequently, there should
be an averment in the complaint that earnest efforts toward a compromise have been made,
pursuant to Art. 222 of the New Civil Code, or a motion to dismiss could have been filed under
Sec. 1, par. (j), Rule 16, of the Rules of Court. For, it is well-settled that the attempt to
compromise as well as the inability to succeed is a condition precedent to the filing of a suit
between members of the same family. Hence, the defect in the complaint is assailable at any
stage of the proceedings, even on appeal, for lack of cause of action.
Same; Same; Same; Amendments to Pleadings; Where the plaintiff is allowed to
introduce evidence to correct perceived defect in the complaint, said complaint is deemed
accordingly amended to conform to the evidence; Case at bar.—Plaintiff may be allowed to
amend his complaint to correct the defect if the amendment does not actually confer
jurisdiction on the court in which the action is filed, i.e., if the cause of action was originally
within that court's jurisdiction. In such case, the amendment is only to cure the perceived
defect in the complaint, thus may be allowed. In the case before Us, while respondent-spouses
did not formally amend their complaint, they were nonetheless allowed to introduce evidence
purporting to show that earnest efforts toward a compromise had been made. xxx. Hence, the
complaint was deemed accordingly amended to conform to the evidence, pursuant to Sec. 5,
Rule 10.
Same; Same; Same; Same; Introduction of evidence supplying necessary allegations of a
defective complaint, without objection on the part of the defendant, ipso facto cures
insufficiency of allegations
_______________
*FIRST DIVISION.
657
VOL. 220, MARCH 31, 1993 657
O'Lao vs. Co Cho Chit
thereof.—Indeed, if the defendant permits evidence to be introduced without objection
and which supplies the necessary allegations of a defective complaint, then the evidence is
deemed to have the effect of curing the defects of the complaint. The insufficiency of the
allegations in the complaint is deemed ipso facto rectified.
Same; Trusts; Classifications.—By definition, trust relations between parties may either
be express or implied. Express trusts are those which are created by the direct and positive
acts of the parties, by some writing or deed, or will, or by words evincing an intention to create
a trust. Implied trusts are those which, without being express, are deducible from the nature
of the transaction as matters of intent, or which are superinduced on the transaction by
operation of law as matters of equity, independently of the particular intention of the parties.
Implied trusts may either be resulting or constructive trusts, both coming into being by
operation of law.
Same; Same; Implied trust; Kinds.—Resulting trusts are based on the equitable doctrine
that valuable consideration and not legal title determines the equitable title or interest and
are presumed always to have been contemplated by the parties. They arise from the nature or
circumstances of the consideration involved in a transaction whereby one person thereby
becomes invested with legal title but is obligated in equity to hold his legal title for the benefit
of another. On the other hand, constructive trusts are created by the construction of equity in
order to satisfy the demands of justice and prevent unjust enrichment. They arise contrary to
intention against one who, by fraud, duress or abuse of confidence, obtains or holds the legal
right to property which he ought not, in equity and good conscience, to hold.
Same; Same; Same; Implied trust in real property may be established by parol evidence;
Proof required.—Unlike express trusts concerning immovables or any interest therein which
cannot be proved by parol evidence, implied trusts may be established by oral evidence.
However, in order to establish an implied trust in real property by parol evidence, the proof
should be as fully convincing as if the acts giving rise to the trust obligation were proven by an
authentic document. It cannot be established upon vague and inconclusive proof.
Same; Same; Resulting Trust; A party's continued possession of documents of ownership
suggests that property is held by another in trust for him.—Indeed, there can be no persuasive
rationalization for the possession of these documents of ownership by respondent-spouses for
seventeen (17) years after the Oroquieta property was purchased in
658
658 SUPREME COURT REPORTS ANNOTATED
O'Laco vs. Co Cho Chit
1943 than that of precluding its possible sale, alienation or conveyance by Emilia O'Laco,
absent any machination or fraud. This continued possession of the documents, together with
other corroborating evidence spread on record, strongly suggests that Emilia O'Laco merely
held the Oroquieta property in trust for respondent-spouses.
Same; Same; Same; Resulting trust is subject to rule on imprescriptibility unless
repudiated.—As differentiated from constructive trusts, where the settled rule is that
prescription may supervene, in resulting trust, the rule of imprescriptibility may apply for as
long as the trustee has not repudiated the trust. Once the resulting trust is repudiated,
however, it is converted into a constructive trust and is subject to prescription.
Same; Same; Same; Requisites for repudiation thereof.—A resulting trust is repudiated
if the following requisites concur: (a) the trustee has performed unequivocal acts of
repudiation amounting to an ouster of the cestui qui trust; (b) such positive acts of repudiation
have been made known to the cestui qui trust; and, (c) the evidence thereon is clear and
convincing.
Same; Same; Same; Same; Absence of any act showing repudiation of resulting trust,
prescription of action for reconveyance shall not commence to run.—As late as 1959, or just
before she got married, Emilia continued to recognize the ownership of respondent-spouses
over the Oroquieta property. Thus, until that point, respondent-spouses were not aware of
any act of Emilia which would convey to them the idea that she was repudiating the resulting
trust. The second requisite is therefore absent. Hence, prescription did not begin to run until
the sale of the Oroquieta property, which was clearly an act of repudiation. xxx After all, so
long as the trustee recognizes the trust, the beneficiary may rely upon the recognition, and
ordinarily will not be in fault for omitting to bring an action to enforce his rights. There is no
running of the prescriptive period if the trustee expressly recognizes the resulting trust.
PETITION for review on certiorari of the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
 Sergio L. Guadiz for petitioners.
Norberto J. Quisumbing & Associates for private respondents.
659
VOL. 220, MARCH 31, 1993 659
O'Laco vs. Co Cho Chit
BELLOSILLO, J.:
History is replete with cases of erstwhile close family relations put asunder by property
disputes. This is one of them. It involves half-sisters each claiming ownership over a parcel of
land. While petitioner Emilia O'Laco asserts that she merely left the certificate of title covering
the property with private respondent O Lay Kia for safekeeping, the latter who is the former's
older sister insists that the title was in her possession because she and her husband bought
the property from their conjugal funds. To be resolved therefore is the issue of whether a
resulting trust was intended by them in the acquisition of the property. The trial court declared
that there was no trust relation of any sort between the sisters. 1 The Court of Appeals ruled
otherwise.2 Hence, the instant petition for review on certiorari of the decision of the appellate
court together with its resolution denying reconsideration.3
It appears that on 31 May 1943, the Philippine Sugar Estate Development Company, Ltd.,
sold a parcel of land, Lot No. 5, Block No. 10, Plan Psu-10038, situated at Oroquieta St., Sta.
Cruz, Manila, with the Deed of Absolute Sale naming Emilia O'Laco as vendee; thereafter,
Transfer Certificate of Title No. 66456 was issued in her name.
On 17 May 1960, private respondent-spouses Valentin Co Cho Chit and O Lay Kia learned
from the newspapers that Emilia O'Laco sold the same property to the Roman Catholic
Archbishop of Manila for P230,000.00, with assumption of the real estate mortgage
constituted thereon.4
On 22 June 1960, respondent-spouses Valentin Co Cho Chit and O Lay Kia sued petitioner-
spouses Emilia O'Laco and Hugo Luna to recover the purchase price of the land before the then
Court of First Instance of Rizal, respondent-spouses asserting that petitioner Emilia O'Laco
knew that they were the real vendees of the Oroquieta property sold in 1943 by Philippine
Sugar Estate Development Company, Ltd., and that the legal title thereto was merely placed in
her name. They contend that Emilia O'Laco breached the trust when she sold the land to the
Roman Catholic Archbishop of Manila. Meanwhile, they asked the trial court to garnish all the
amounts still due and payable to petitioner-spouses arising from the sale, which was granted
on 30 June 1960.5
Petitioner-spouses deny the existence of any form of trust relation. They aver that Emilia
O'Laco actually bought the property with her own money; that she left the Deed of Absolute
Sale and the corresponding title with respondent-spouses merely for safekeeping; that when
she asked for the return of the documents evidencing her ownership, respondent-spouses told
her that these were misplaced or lost; and, that in view of the loss, she filed a petition for
issuance of a new title, and on 18 August 1944 the then Court of First Instance of Manila
granted her petition.
On 20 September 1976, finding no trust relation between the parties, the trial court
dismissed the complaint together with the counterclaim. Petitioners and respondents
appealed.
On 9 April 1981, the Court of Appeals set aside the decision of the trial court thus—
"x x x x We set aside the decision of the lower court dated September 20, 1976 and the order
of January 5, 1977 and another one is hereby entered ordering the defendants-appellees to
pay plaintiffsappellants jointly and severally the sum of P230,000.00 representing the value of
the property subject of the sale with assumption of mortgage to the Roman Catholic
Archbishop of Manila with legal interest from the filing of the complaint until fully paid, the
sum of P10,000.00 as attorney's fees, plus costs."
On 7 August 1981, the Court of Appeals denied reconsideration of its decision, prompting
petitioners to come to this Court for relief.
Petitioners contend that the present action should have been dismissed. They argue that
the complaint fails to allege that earnest efforts toward a compromise were exerted
considering that the suit is between members of the same family, and no trust relation exists
between them. Even assuming ex argumenti that there is such a relation, petitioners further
argue, respondents are already barred by laches.
We are not persuaded. Admittedly, the present action is between members of the same
family since petitioner Emilia O'Laco and respondent O Lay Kia are half-sisters. Consequently,
there should be an averment in the complaint that earnest efforts toward a compromise have
been made, pursuant to Art. 222 of the New Civil Code,6 or a motion to dismiss could have
been filed under Sec. 1, par. (j), Rule 16, of the Rules of Court.7 For, it is well-settled that the
attempt to compromise as well as the inability to succeed is a condition precedent to the filing
of a suit between members of the same family.8 Hence, the defect in the complaint is assailable
at any stage of the proceedings, even on appeal, for lack of cause of action.9
But, plaintiff may be allowed to amend his complaint to correct the defect if the
amendment does not actually confer jurisdiction on the court in which the action is filed, i.e.,
if the cause of action was originally within that court's jurisdiction.10In such case, the
amendment is only to cure the perceived defect in the complaint, thus may be allowed.
In the case before Us, while respondent-spouses did not for-
_______________
6 Art. 222. No suit shall be filed or maintained between members of the same family unless
it should appear that earnest efforts toward a compromise have been made, but that the same
have failed, subject to the limitations in article 2035.
7 The Family Code took effect on 4 August 1988 and does not apply to the present petition.
Nonetheless, Art. 151 of the Family Code provides that suits between members of the same
family must be dismissed if it is not shown that earnest efforts toward a compromise have
been made.
8 Mendoza v. Court of Appeals, No. L-23102, 24 April 1967, 19 SCRA 756.
9 Id., p. 759.
10 Versoza v. Versoza, No. L-25609, 27 November 1968, 26 SCRA 78.
662
662 SUPREME COURT REPORTS ANNOTATED
O'Lao vs. Co Cho Chit
mally amend their complaint, they were nonetheless allowed to introduce evidence purporting
to show that earnest efforts toward a compromise had been made, that is, respondent O Lay
Kia importuned Emilia O'Laco and pressed her for the transfer of the title of the Oroquieta
property in the name of spouses O Lay Kia and Valentin Co Cho Chit, just before Emilia's
marriage to Hugo Luna.11 But, instead of transferring the title as requested, Emilia sold the
property to the Roman Catholic Archbishop of Manila. This testimony was not objected to by
petitioner-spouses. Hence, the complaint was deemed accordingly amended to conform to the
evidence,12pursuant to Sec. 5, Rule 10 of the Rules of Court which reads—
"Sec. 5. Amendment to conform to or authorize presentation of evidence.—When issues not
raised by the pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects, as if they had been raised in the pleadings x x x x" (italics supplied).
Indeed, if the defendant permits evidence to be introduced without objection and which
supplies the necessary allegations of a defective complaint, then the evidence is deemed to
have the effect of curing the defects of the complaint.13 The insufficiency of the allegations in
the complaint is deemed ipso facto rectified.14
But the more crucial issue before Us is whether there is a trust relation between the
parties in contemplation of law.
We find that there is. By definition, trust relations between parties may either be express
or implied.15 Express trusts are those which are created by the direct and positive acts of the
parties, by some writing or deed, or will, or by words evincing an intention to create a
trust.16 Implied trusts are those which,
_______________
11TSN, 15 January 1968, pp. 12-14.
12Metropolitan Waterworks and Sewerage System v. Court of Appeals, No. L-54526, 26
August 1986, 143 SCRA 623.
13 Pascua v. Court of Appeals, G.R. No. 76851, 19 March 1990, 183 SCRA 262.
14 See City of Manila v. Bucay, Nos. L-19358-60, 31 March 1964, 10 SCRA 629.
15 Art. 1441, New Civil Code.
16 Ramos v. Ramos, No. L-19872, 3 December 1974, 61 SCRA 284,
663
VOL. 220, MARCH 31, 1993 663
O'Lao vs. Co Cho Chit
without being express, are deducible from the nature of the transaction as matters of intent,
or which are superinduced on the transaction by operation of law as matters of equity,
independently of the particular intention of the parties.17Implied trusts may either be resulting
or constructive trusts, both coming into being by operation of law.18
Resulting trusts are based on the equitable doctrine that valuable consideration and not
legal title determines the equitable title or interest19 and are presumed always to have been
contemplated by the parties. They arise from the nature or circumstances of the consideration
involved in a transaction whereby one person thereby becomes invested with legal title but is
obligated in equity to hold his legal title for the benefit of another.20 On the other hand,
constructive trusts are created by the construction of equity in order to satisfy the demands of
justice21 and prevent unjust enrichment. They arise contrary to intention against one who, by
fraud, duress or abuse of confidence, obtains or holds the legal right to property which he
ought not, in equity and good conscience, to hold. 22
Specific examples of resulting trusts may be found in the Civil Code, particularly Arts. 1448,
1449, 1451, 1452 and 1453,23 while constructive trusts are illustrated in Arts. 1450, 1454, 1455
and 1456.24
Unlike express trusts concerning immovables or any interest therein which cannot be
proved by parol evidence,25implied trusts may be established by oral evidence.26 However, in
order to establish an implied trust in real property by parol evidence, the proof should be as
fully convincing as if the acts giving rise to the trust obligation were proven by an authentic
document.27 It cannot be established upon vague and inconclusive proof.28
After a thorough review of the evidence on record, We hold that a resulting trust was
indeed intended by the parties under Art. 1448 of the New Civil Code which states—
"Art. 1448. There is an implied trust when property is sold, and the legal estate is granted to
one party but the price is paid by another for the purpose of having the beneficial interest of
the property. The former is the trustee, while the latter is the beneficiary x x x x" (italics
supplied).
First. As stipulated by the parties, the document of sale, the owner's duplicate copy of the
certificate of title, insurance policies, receipt of initial premium of insurance coverage and real
estate tax receipts were all in the possession of respondent spouses which they offered in
evidence. As emphatically asserted by respondent O Lay Kia, the reason why these documents
of ownership remained with her is that the land in question belonged to her.29
Indeed, there can be no persuasive rationalization for the possession of these documents
of ownership by respondent-spouses for seventeen (17) years after the Oroquieta property
was purchased in 1943 than that of precluding its possible sale, alienation or conveyance by
Emilia O'Laco, absent any machination or fraud. This continued possession of the documents,
together with other corroborating evidence spread on record, strongly suggests that Emilia
O'Laco merely held the Oroquieta property in trust for respondent-spouses.
Second. It may be worth to mention that before buying the Oroquieta property,
respondent-spouses purchased another property situated in Kusang-Loob, Sta. Cruz, Manila,
where the certificate of title was placed in the name of Ambrosio O'Laco, older brother of
Emilia, under similar or identical circumstances. The testimony of former counsel for
respondent-spouses, then Associate Justice Antonio G. Lucero of the Court of Appeals, is
enlightening—
"Q— In the same conversation he told you how he would buy the property
(referring to the Oroquieta property), he and his wife?
"A— Yes, Sir, he did.
"Q— What did he say?
xxxx
"A— He said he and his wife has (sic) already acquired by purc hase a certain
property located at Kusang-Loob, Sta. Cruz, Manila. He told me he would
like to place the Oroquieta Maternity Hospital in case the negotiation
materialize(s) in the name of a sister of his wife (O'Laco)"(italics
supplied).30
On the part of respondent-spouses, they explained that the reason why they did not place
these Oroquieta and Kusang-Loob properties in their name was that being Chinese nationals
at the time of the purchase they did not want to execute the required affidavit to the effect
that they were allies of the Japanese.31 Since O Lay Kia took care of Emilia who was still young
when her mother died,32 respondent-spouses did not hesitate to place the title of the
Oroquieta property in Emilia's name.
Quite significantly, respondent-spouses also instituted an action for reconveyance against
Ambrosio O'Laco when the latter claimed the Kusang-Loob property as his own. A similar
stipulation of facts was likewise entered, i.e., respondent-spouses had in their possession
documents showing ownership of the KusangLoob property which they offered in evidence. In
that case, the decision of the trial court, now final and executory, declared respondent-spouses
as owners of the Kusang-Loob property and ordered Ambrosio O'Laco to reconvey it to them.33
Incidentally, Ambrosio O'Laco thus charged respondent spouses Valentin Co Cho Cit and
O Lay Kia before the Anti-Dummy Board, docketed as Case No. 2424, for their acquisition of
the Kusang-Loob and Oroquieta properties.34 He claimed that respondent-spouses utilized his
name in buying the Kusang-Loob property while that of petitioner O'Laco was used in the original may be made the basis for the commencement of the prescriptive period. For, the
purchase of the Oroquieta property. In effect, there was an implied admission by Ambrosio issuance of the Torrens title in the name of Emilia O'Laco could not be considered adverse,
that his sister Emilia, like him, was merely used as a dummy. However, the Anti-Dummy Board much less fraudulent. Precisely, although the property was bought by respondentspouses, the
exonerated respondent-spouses since the purchases were made in 1943, or during World War legal title was placed in the name of Emilia O'Laco. The transfer of the Torrens title in her name
II, when the Anti-Dummy Law was not enforceable. was only in consonance with the deed of sale in her favor. Consequently, there was no cause
Third. The circumstances by which Emilia O'Laco obtained a new title by reason of the for any alarm on the part of respondentspouses. As late as 1959, or just before she got married,
alleged loss of the old title then in the possession of respondent-spouses cast serious doubt on Emilia continued to recognize the ownership of respondent-spouses over the Oroquieta
the veracity of her ownership. The petitions respectively filed by Emilia O'Laco and Ambrosio property. Thus, until that point, respondent-spouses were not aware of any act of Emilia which
O'Laco for the Oroquieta and the KusangLoob properties were both granted on the same day, would convey to them the idea that she was repudiating the resulting trust. The second
18 August 1944, by the then Court of First Instance of Manila. These orders were recorded in requisite is therefore absent. Hence, prescription did not begin to run until the sale of the
the Primary Entry Book of the Register of Deeds of Manila at the same time, 2:35 o'clock in the Oroquieta property, which was clearly an act of repudiation.
afternoon of 1 September 1944, in consecutive entries, Entries Nos. 24611718.35 This But immediately after Emilia sold the Oroquieta property which is obviously a disavowal
coincidence lends credence to the position of respondent-spouses that there was in fact a of the resulting trust, respondentspouses instituted the present suit for breach of trust.
conspiracy between the siblings Ambrosio and Emilia to defraud and deprive respondents of Correspondingly, laches cannot lie against them.
their title to the Oroquieta and Kusang-Loob properties. After all, so long as the trustee recognizes the trust, the beneficiary may rely upon the
Fourth. Until the sale of the Oroquieta property to the Roman Catholic Archbishop of recognition, and ordinarily will not be in fault for omitting to bring an action to enforce his
Manila, petitioner Emilia O'Laco actually recognized the trust. Specifically, when rights.44 There is no running of the prescriptive period if the trustee expressly recognizes the
respondentspouses learned that Emilia was getting married to Hugo, O Lay Kia asked her to resulting trust.45 Since the complaint for breach of trust was filed by respondent-spouses two
have the title to the property already transferred to her and her husband Valentin, and Emilia (2) months after acquiring knowledge of the sale, the action therefore has not yet prescribed.
assured her that "would be arranged (maaayos na)" after her wedding.36 Her answer was an WHEREFORE, the Petition for Review on Certiorari is DENIED. The Decision of the Court of
express recognition of the trust, otherwise, she would have refused the request outright. Appeals of 9 April 1981, which reversed the trial court, is AFFIRMED. Costs against petitioners.
Petitioners never objected to this evidence; nor did they attempt to controvert it.
Fifth. The trial court itself determined that "Valentin Co Cho Chit and O Lay Kia had some SO ORDERED.
money with which they could buy the property."37 In fact, Valentin was the Chief Mechanic of
the Paniqui Sugar Mills, was engaged in the buy and sell business, operated a gasoline station,
and owned an auto supply store as well as a ten-door apartment in Caloocan City.38 In contrast,
Emilia O'Laco failed to convince the Court that she was financially capable of purchasing the
Oroquieta property. In fact, she opened a bank account only in 1946 and likewise began filing
income tax returns that same year,39while the property in question was bought in 1943.
Respondent-spouses even helped Emilia and her brothers in their expenses and livelihood.
Emilia could only give a vague account on how she raised the money for the purchase of the
property. Her narration of the transaction of sale abounds with "I don't know" and "I don't
remember."40
Having established a resulting trust between the parties, the next question is whether
prescription has set in.
As differentiated from constructive trusts, where the settled rule is that prescription may
supervene, in resulting trust, the rule of imprescriptibility may apply for as long as the trustee
has not repudiated the trust.41 Once the resulting trust is repudiated, however, it is converted
into a constructive trust and is subject to prescription.
A resulting trust is repudiated if the following requisites concur: (a) the trustee has
performed unequivocal acts of repudiation amounting to an ouster of the cestui qui trust; (b)
such positive acts of repudiation have been made known to the cestui qui trust; and, (c) the
evidence thereon is clear and convincing.42
In Tale v. Court of Appeals43 the Court categorically ruled that an action for reconveyance
based on an implied or constructive trust must perforce prescribe in ten (10) years, and not
otherwise, thereby modifying previous decisions holding that the prescriptive period was four
(4) years.
Neither the registration of the Oroquieta property in the name of petitioner Emilia O'Laco
nor the issuance of a new Torrens title in 1944 in her name in lieu of the alleged loss of the
 G.R. No. 125465. June 29, 1999.*
SPOUSES AUGUSTO HONTIVEROS and MARIA HONTIVEROS, petitioners, vs. REGIONAL TRIAL
COURT, Branch 25, Iloilo City and SPOUSES GREGORIO HONTIVEROS and TEODORA AYSON,
respondents.
Appeals; Petitions for Review; Pleadings and Practice; Direct appeals to the Supreme
Court from the trial court on questions of law have to be through the filing of a petition for
review on certiorari.—The petition in this case was filed pursuant to Rule 45 of the Rules of
Court. As explained in Atlas Consolidated Mining and Development Corporation v. Court of
Appeals: Under Section 5, subparagraph (2)(e), Article VIII of the 1987 Constitution, the
Supreme Court is vested with the power to review, revise, reverse, modify, or affirm on appeal
or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower
courts in all cases in
___________________
*SECOND DIVISION.
341
VOL. 309, JUNE 29, 1999 341
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
which only an error or question of law is involved. A similar provision is contained in
Section 17, fourth paragraph, subparagraph (4) of the Judiciary Act of 1948, as amended by
Republic Act No. 5440. And, in such cases where only questions of law are involved, Section 25
of the Interim Rules and Guidelines implementing Batas Pambansa Blg. 129, in conjunction
with Section 3 of Republic Act No. 5440, provides that the appeal to the Supreme Court shall
be taken by petition for certiorari which shall be governed by Rule 45 of the Rules of Court.
The rule, therefore, is that direct appeals to this Court from the trial court on questions of law
have to be through the filing of a petition for review on certiorari.
Actions; Dismissals of Actions; The court cannot dismiss a case motu proprio without
violating the plaintiff’s right to be heard; Exceptions.—There are instances when the trial court
may order the dismissal of the case even without a motion to that effect filed by any of the
parties. In Baja v. Macandog, this Court mentioned these cases, to wit: The court cannot
dismiss a case motu proprio without violating the plaintiff’s right to be heard, except in the
following instances: if the plaintiff fails to appear at the time of the trial; if he fails to prosecute
his action for an unreasonable length of time; or if he fails to comply with the rules or any order
of the court; or if the court finds that it has no jurisdiction over the subject matter of the suit.
Same; Judgment on the Pleadings; Where there are actual issues raised in the answer,
such as one involving damages, which require the presentation of evidence and assessment
thereof by the trial court, it is improper for the judge to render judgment based on the pleadings
alone.—Under the rules, if there is no controverted matter in the case after the answer is filed,
the trial court has the discretion to grant a motion for judgment on the pleadings filed by a
party. Where there are actual issues raised in the answer, such as one involving damages,
which require the presentation of evidence and assessment thereof by the trial court, it is
improper for the judge to render judgment based on the pleadings alone. In this case, aside
from the amount of damages, the following factual issues have to be resolved, namely, (1)
private respondent Teodora Ayson’s participation and/or liability, if any, to petitioners and (2)
the nature, extent, and duration of private respondents’ possession of the subject property.
The trial court, therefore, correctly denied petitioners’ motion for judgment on the pleadings.
342
342 SUPREME COURT REPORTS ANNOTATED
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
Same; Verifications; Jurisdiction; The absence of the verification required in Article 151
of the Family Code does not affect the jurisdiction of the court over the subject matter of the
complaint; If the court doubts the veracity of the allegations regarding efforts made to settle
the case among members of the same family, it could simply order the petitioners to verify
them.—The trial court erred in dismissing petitioners’ complaint on the ground that, although
it alleged that earnest efforts had been made toward the settlement of the case but they
proved futile, the complaint was not verified for which reason the trial court could not believe
the veracity of the allegation. The absence of the verification required in Art. 151 does not
affect the jurisdiction of the court over the subject matter of the complaint. The verification is
merely a formal requirement intended to secure an assurance that matters which are alleged
are true and correct. If the court doubted the veracity of the allegations regarding efforts made
to settle the case among members of the same family, it could simply have ordered petitioners
to verify them. As this Court has already ruled, the court may simply order the correction of
unverified pleadings or act on it and waive strict compliance with the rules in order that the
ends of justice may be served. Otherwise, mere suspicion or doubt on the part of the trial court
as to the truth of the allegation that earnest efforts had been made toward a compromise but
the parties’ efforts proved unsuccessful is not a ground for the dismissal of an action. Only if it
is later shown that such efforts had not really been exerted would the court be justified in
dismissing the action.
Same; Pleadings and Practice; Persons and Family Relations;Words and Phrases; The
inclusion of parties who are not members of the same family takes the case out of the ambit of
Article 151 of the Family Code; The phrase “members of the same family” refers to the husband
and wife, parents and children, ascendants and descendants, and brothers and sisters, whether
full or half-blood, but does not include “brothers-in-law” and “sisters-in-law.”—The inclusion
of private respondent Ayson as defendant and petitioner Maria Hontiveros as plaintiff takes
the case out of the ambit of Art. 151 of the Family Code. Under this provision, the phrase
“members of the same family” refers to the husband and wife, parents and children,
ascendants and descendants, and brothers and sisters, whether full or half-blood. As this Court
held in Guerrero v. RTC, Ilocos Norte, Br. XVI: As early as two decades ago, we already ruled
in Gayon v. Gayon that the enumeration of “brothers and sisters” as members of the same
family does not comprehend “sisters-in-law.” In that case,
343
VOL. 309, JUNE 29, 1999 343
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
then Chief Justice Concepcion emphasized that “sisters-in-law” (hence, also “brothers-
in-law”) are not listed under Art. 217 of the New Civil Code as members of the same family.
Since Art. 150 of the Family Code repeats essentially the same enumeration of “members of
the family,” we find no reason to alter existing jurisprudence on the matter. Consequently, the
court a quo erred in ruling that petitioner Guerrero, being a brother-in-law of private
respondent Hernando, was required to exert earnest efforts towards a compromise before
filing the present suit.
Same; Same; Same; Religious relationship and relationship by affinity are not given any
legal effect in this jurisdiction.—Religious relationship and relationship by affinity are not given
any legal effect in this jurisdiction. Consequently, private respondent Ayson, who is described
in the complaint as the spouse of respondent Hontiveros, and petitioner Maria Hontiveros,
who is admittedly the spouse of petitioner Augusto Hontiveros, are considered strangers to
the Hontiveros family, for purposes of Art. 151.
Judicial Review; Courts do not pass upon constitutional questions unless they are the
very lis mota of the case.—Petitioners finally question the constitutionality of Art. 151 of the
Family Code on the ground that it in effect amends the Rules of Court. This, according to them,
cannot be done since the Constitution reserves in favor of the Supreme Court the power to
promulgate rules of pleadings and procedure. Considering the conclusion we have reached in
this case, however, it is unnecessary for present purposes to pass upon this question. Courts
do not pass upon constitutional questions unless they are the very lis mota of the case.
PETITION for review on certiorari of a decision of the Regional Trial Court of Iloilo City, Br. 25.
The facts are stated in the opinion of the Court.
Ramon A. Gonzales for petitioners.
Resurreccion S. Salvilla for private respondents.
MENDOZA, J.:
On December 3, 1990, petitioners, the spouses Augusto and Maria Hontiveros, filed a
complaint for damages against pri-
344
344 SUPREME COURT REPORTS ANNOTATED
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
vate respondents Gregorio Hontiveros and Teodora Ayson before the Regional Trial Court of
Iloilo City, Branch 25, where it was docketed as Civil Case No. 19504. In said complaint,
petitioners alleged that they are the owners of a parcel of land, in the town of Jamindan,
Province of Capiz, as shown by OCT No. 0-2124, issued pursuant to the decision of the
Intermediate Appellate Court, dated April 12, 1984, which modified the decision of the Court
of First Instance of Capiz, dated January 23, 1975, in a land registration case1 filed by private
respondent Gregorio Hontiveros; that petitioners were deprived of income from the land as a
result of the filing of the land registration case; that such income consisted of rentals from
tenants of the land in the amount of P66,000.00 per year from 1968 to 1987, and P595,000.00
per year thereafter; and that private respondents filed the land registration case and withheld
possession of the land from petitioners in bad faith.2
In their answer, private respondents denied that they were married and alleged that
private respondent Hontiveros was a widower while private respondent Ayson was single.
They denied that they had deprived petitioners of possession of and income from the land. On
the contrary, they alleged that possession of the property in question had already been
transferred to petitioners on August 7, 1985, by virtue of a writ of possession, dated July 18,
1985, issued by the clerk of court of the Regional Trial Court of Capiz, Mambusao, the return
thereof having been received by petitioners’ counsel; that since then, petitioners have been
directly receiving rentals from the tenants of the land; that the complaint failed to state a cause
of action since it did not allege that earnest efforts towards a compromise had been made,
considering that petitioner Augusto Hontiveros and private respondent Gregorio Hontiveros
are brothers; that the decision of the Intermediate Appellate Court in Land Registration Case
No. N-581-25 was
_________________
1Docketed as Land Registration Case No. N-581-25, LRC Rec. No. 288.
2See Amended Complaint; Petition, Annex A; Rollo, pp. 28-30.
345
VOL. 309, JUNE 29, 1999 345
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
null and void since it was based upon a ground which was not passed upon by the trial court;
that petitioners’ claim for damages was barred by prescription with respect to claims before
1984; that there were no rentals due since private respondent Hontiveros was a possessor in
good faith and for value; and that private respondent Ayson had nothing to do with the case
as she was not married to private respondent Gregorio Hontiveros and did not have any
proprietary interest in the subject property. Private respondents prayed for the dismissal of
the complaint and for an order against petitioners to pay damages to private respondents by
way of counterclaim, as well as reconveyance of the subject land to private respondents. 3
On May 16, 1991, petitioners filed an Amended Complaint to insert therein an allegation
that “earnest efforts towards a compromise have been made between the parties but the
same were unsuccessful.”
In due time, private respondents filed an Answer to Amended Complaint with
Counterclaim, in which they denied, among other things, that earnest efforts had been made
to reach a compromise but the parties were unsuccessful. On July 19, 1995, petitioners moved
for a judgment on the pleadings on the ground that private respondents’ answer did not tender
an issue or that it otherwise admitted the material allegations of the complaint. 4 Private
respondents opposed the motion alleging that they had denied petitioners’ claims and thus
tendered certain issues of fact which could only be resolved after trial.5
On November 23, 1995, the trial court denied petitioners’ motion. At the same time,
however, it dismissed the case on the ground that the complaint was not verified as required
by Art. 151 of the Family Code and, therefore, it did not believe
_________________
3 See Amended Answer; Petition, Annex B; Rollo, pp. 31-35.
4 Petition, Annex C; Rollo, pp. 36-46.
5 Petition, Annex H.
346
346 SUPREME COURT REPORTS ANNOTATED
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
that earnest efforts had been made to arrive at a compromise. The order of the trial court
reads:6
The Court, after an assessment of the diverging views and arguments presented by both
parties, is of the opinion and so holds that judgment on the pleadings is inappropriate not only
for the fact that the defendants in their answer, particularly in its paragraph 3 to the amended
complaint, specifically denied the claim of damages against them, but also because of the
ruling in De la Cruz vs. Cruz, G.R. No. 27759, April 17, 1970 (32 SCRA 307), citing Rili vs.
Chunaco, 98 Phil. 505, which ruled that the party claiming damages must satisfactorily prove
the amount thereof and that though the rule is that failure to specifically deny the allegations
in the complaint or counter-claim is deemed an admission of said allegations, there is however
an exception to it, that is, that when the allegations refer to the amount of damages, the
allegations must still be proved. This ruling is in accord with the provision of Section 1, Rule 9
of the Rules of Court.
 That while the plaintiffs in their amended complaint allege that earnest efforts towards a
compromise with the defendants were made, the fact is that their complaint was not verified
as provided in Article 151 of the Family Code. Besides, it is not believed that there were indeed
earnest efforts made to patch up and/or reconcile the two feuding brothers, Gregorio and
Augusto, both surnamed Hontiveros.
The submission of the plaintiffs that, assuming no such earnest efforts were made, the
same is not necessary or jurisdictional in the light of the ruling in Rufino Magbaleta, et al.,
petitioners, vs. Hon. Arsenio M. Gonong, et al., respondents, No. L-44903, April 22, 1977, is, to
the mind of this Court, not applicable to the case at bar for the fact is the rationale in that case
is not present in the instant case considering these salient points:
a)Teodora Ayson, the alleged wife of defendant Gregorio Hontiveros and allegedly not
a member of the Hontiveros Family, is not shown to be really the wife of Gregorio, a fact
which Gregorio also denied in their verified answer to the amended complaint;
b)Teodora Ayson has not been shown to have acquired any proprietary right or interest
in the land that was litigated by Gregorio and Augusto, unlike in the cited case of
Magbaleta where it was shown that a stranger to the family acquired certain right;
c)In the decision rendered by the appellate court no mention was made at all of the
name of Teodora Ayson as part-awardee of Lot 37 that was adjudged to Gregorio other
than himself who was therein described as a widower. Moreover, Teodora was never
mentioned in said decision, nor in the amended complaint and in the amended motion
for judgment on the pleadings that she ever took any part in the act or transaction that
gave rise to the damages allegedly suffered by the plaintiffs for which they now claim
some compensation.
WHEREFORE, in the light of all the foregoing premises, the Court orders, as it hereby orders,
the dismissal of this case with cost against the plaintiffs.
SO ORDERED.
Petitioners moved for a reconsideration of the order of dismissal, but their motion was
denied.7 Hence, this petition for review on certiorari. Petitioners contend:
1. I.THE REGIONAL TRIAL COURT PALPABLY ERRED IN DISMISSING THE COMPLAINT ON
THE GROUND THAT IT DOES NOT ALLEGE UNDER OATH THAT EARNEST EFFORTS
TOWARD A COMPROMISE WERE MADE PRIOR TO THE FILING THEREOF AS
REQUIRED BY ARTICLE 151 OF THE FAMILY CODE.
2. II.THE REGIONAL TRIAL COURT PALPABLY ERRED IN NOT DENYING THE MOTION FOR
JUDGMENT ON THE PLEADINGS AND ORDERING A TRIAL ON THE MERITS.
Private respondents raise a preliminary question. They argue that petitioners should have
brought this case on appeal to the Court of Appeals since the order of the trial court judge was
actually a decision on the merits. On the other hand, even if petition for certiorari were the
proper remedy, they contend that the petition is defective because the judge of the trial court
has not been impleaded as a respondent.8
Private respondents’ contention is without merit. The petition in this case was filed
pursuant to Rule 45 of the Rules of Court. As explained in Atlas Consolidated Mining and
Development Corporation v. Court of Appeals:9
Under Section 5, subparagraph (2)(e), Article VIII of the 1987 Constitution, the Supreme Court
is vested with the power to review, revise, reverse, modify, or affirm on appeal or certiorari as
the law or the Rules of Court may provide, final judgments and orders of lower courts in all
cases in which only an error or question of law is involved. A similar provision is contained in
Section 17, fourth paragraph, subaragraph (4) of the Judiciary Act of 1948, as amended by
Republic Act No. 5440. And, in such cases where only questions of law are involved, Section 25
of the Interim Rules and Guidelines implementing Batas Pambansa Blg. 129, in conjunction
with Section 3 of Republic Act No. 5440, provides that the appeal to the Supreme Court shall
be taken by petition for certiorari which shall be governed by Rule 45 of the Rules of Court.
The rule, therefore, is that direct appeals to this Court from the trial court on questions of
law have to be through the filing of a petition for review on certiorari. It has been held that:
x x x when a CFI (RTC) adjudicates a case in the exercise of its original jurisdiction, the correct
mode of elevating the judgment to the Court of Appeals is by ordinary appeal, or appeal by
writ of error, involving merely the filing of a notice of appeal—except only if the appeal is taken
in special proceedings and other cases wherein multiple appeals are allowed under the law, in
which even the filing of a record on appeal is additionally required. Of course, when the appeal
would involve purely questions of law or any of the other cases (except criminal cases as stated
hereunder) specified in Section 5(2), Article X of the Constitution, it should be taken to the
Supreme Court by petition for review on certiorari in accordance with Rules 42 and 45 of the
Rules of Court.
By way of implementation of the aforestated provisions of law, this Court issued on March
9, 1990 Circular No. 2-90, paragraph 2 of which provides:
_________________
9201 SCRA 51, 58-59 (1991).
349
VOL. 309, JUNE 29, 1999 349
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
2. Appeals from Regional Courts to the Supreme Court.—Except in criminal cases where the
penalty imposed is life imprisonment or reclusion perpetua, judgments of regional trial courts
may be appealed to the Supreme Court only by petition for review on certiorari in accordance
with Rule 45 of the Rules of Court in relation to Section 17 of the Judiciary Act of 1948, as
amended, this being the clear intendment of the provision of the Interim Rules that (a)ppeals
to the Supreme Court shall be taken by petition for certiorari which shall be governed by Rule
45 of the Rules of Court.
Under the foregoing considerations, therefore, the inescapable conclusion is that herein
petitioner adopted the correct mode of appeal in G.R. No. 88354 by filing with this Court a
petition to review on certiorari the decision of the Regional Trial Court of Pasig in Civil Case No.
25528 and raising therein purely questions of law.
In Meneses v. Court of Appeals, it was held:10
It must also be stressed that the trial court’s order of 5 June 1992 dismissing the petitioner’s
complaint was, whether it was right or wrong, a final order because it had put an end to the
particular matter resolved, or settled definitely the matter therein disposed of and left nothing
more to be done by the trial court except the execution of the order. It is a firmly settled rule
that the remedy against such order is the remedy of appeal and not certiorari. That appeal may
be solely on questions of law, in which case it may be taken only to this Court; or on questions
of fact and law, in which case the appeal should be brought to the Court of Appeals. Pursuant
to Murillo v. Consul, the appeal to this Court should be by petition for review on certiorari in
accordance with Rule 45 of the Rules of Court.
As private respondents themselves admit, the order of November 23, 1995 is a final order from
which an appeal can be taken. It is final in the sense that it disposes of the pending action
before the court and puts an end to the litigation so that nothing more was left for the trial
court to do.11 Further-
__________________
10237 SCRA 484, 491-492 (1994).
11Allied Free Workers Union v. Judge Estipona, 113 Phil. 748 (1961).
350
350 SUPREME COURT REPORTS ANNOTATED
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
more, as the questions raised are questions of law, petition for review on certiorari is the
proper mode of appeal. These questions are: (1) whether after denying petitioners’ motion for
judgment on the pleadings, the trial court could dismiss their complaint motu proprio for
failure to comply with Art. 151 of the Family Code which provides that no suit between
members of the same family shall prosper unless it appears from the complaint, which must
be verified, that earnest efforts towards a compromise have been made but the same have
failed; and (2) whether Art. 151 applies to this case. These questions do not require an
examination of the probative value of evidence presented and the truth or falsehood of facts
asserted which questions of fact would entail.12
On the other hand, petitioners contend that the trial court erred in dismissing the
complaint when no motion to that effect was made by any of the parties. They point out that,
in opposing the motion for judgment on the pleadings, private respondents did not seek the
dismissal of the case but only the denial of petitioners’ motion. Indeed, what private
respondents asked was that trial be held on the merits.
Of course, there are instances when the trial court may order the dismissal of the case
even without a motion to that effect filed by any of the parties. In Baja v. Macandog,13 this
Court mentioned these cases, to wit:
The court cannot dismiss a case motu proprio without violating the plaintiff’s right to be heard,
except in the following instances: if the plaintiff fails to appear at the time of the trial; if he fails
to prosecute his action for an unreasonable length of time; or if he fails to comply with the
rules or any order of the court; or if the court finds that it has no jurisdiction over the subject
matter of the suit.
However, none of these exceptions appears in this case.
__________________
12See Roman Catholic Archbishop of Manila v. Court of Appeals, 258 SCRA 195, 199 (1996).
13158 SCRA 391, 396-397 (1986).
351
VOL. 309, JUNE 29, 1999 351
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
Moreover, the trial court itself found that “judgment on the pleadings is inappropriate not only
for the fact that [private respondents] in their answer . . . specifically denied the claim of
damages against them, but also because of the [rule] . . . that the party claiming damages must
satisfactorily prove the amount thereof . . . .” Necessarily, a trial must be held.
Rule 19 of the Rules of Court provides:14
SECTION 1. Judgment on the pleadings.—Where an answer fails to tender an issue, or
otherwise admits the material allegation of the adverse party’s pleading, the court may, on
motion of the party, direct judgment on such pleading. But in actions for annulment of
marriage or for legal separation the material facts alleged in the complaint shall always be
proved.
Under the rules, if there is no controverted matter in the case after the answer is filed, the trial
court has the discretion to grant a motion for judgment on the pleadings filed by a
party.15Where there are actual issues raised in the answer, such as one involving damages,
which require the presentation of evidence and assessment thereof by the trial court, it is
improper for the judge to render judgment based on the pleadings alone. 16 In this case, aside
from the amount of damages, the following factual issues have to be resolved, namely, (1)
private respondent Teodora Ayson’s participation and/or liability, if any, to petitioners and (2)
the nature, extent, and duration of private respondents’ possession of the subject property.
The trial court, therefore, correctly denied petitioners’ motion for judgment on the pleadings.
However, the trial court erred in dismissing petitioners’ complaint on the ground that,
although it alleged that earnest efforts had been made toward the settlement of the case but
they proved futile, the complaint was not verified for which
____________________
14
Now Rule 34 of the 1997 Rules of Civil Procedure.
15
1 V.J. Francisco, The Revised Rules of Court in the Philippines 1033 (1973).
16 Rocamora v. RTC, Cebu (Branch VIII), 167 SCRA 615 (1988); 1 M. V. Moran, Comment on
the Rules of Court 538 (1967).
352
352 SUPREME COURT REPORTS ANNOTATED
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
reason the trial court could not believe the veracity of the allegation.
The absence of the verification required in Art. 151 does not affect the jurisdiction of the
court over the subject matter of the complaint. The verification is merely a formal requirement
intended to secure an assurance that matters which are alleged are true and correct. If the
court doubted the veracity of the allegations regarding efforts made to settle the case among
members of the same family, it could simply have ordered petitioners to verify them. As this
Court has already ruled, the court may simply order the correction of unverified pleadings or
act on it and waive strict compliance with the rules in order that the ends of justice may be
served.17Otherwise, mere suspicion or doubt on the part of the trial court as to the truth of the
allegation that earnest efforts had been made toward a compromise but the parties’ efforts
proved unsuccessful is not a ground for the dismissal of an action. Only if it is later shown that
such efforts had not really been exerted would the court be justified in dismissing the action.
Thus, Art. 151 provides:
No suit between members of the same family shall prosper unless it should appear from the
verified complaint or petition that earnest efforts toward a compromise have been made, but
that the same have failed. It if is shown that no such efforts were in fact made, the case must
be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under the
Civil Code.
Moreover, as petitioners contend, Art. 151 of the Family Code does not apply in this case since
the suit is not exclusively among family members. Citing several cases18 decided
_________________

17 See Vda. de Gabriel v. Court of Appeals, 264 SCRA 137 (1996); Sy v. Habicon-
Garayblas, 228 SCRA 644 (1993); Buenaventura v. Halili, 149 SCRA 22 (1987).
18 Magbaleta v. Gonong, 76 SCRA 511 (1977); Gayon v. Gayon, 36 SCRA
104 (1970); Mendez v. Eugenia, 80 SCRA 82 (1977); Gon
353
VOL. 309, JUNE 29, 1999 353
Hontiveros vs. Regional Trial Court, Br. 25, Iloilo City
by this Court, petitioners claim that whenever a stranger is a party in a case involving family
members, the requisite showing of earnest efforts to compromise is no longer mandatory.
They argue that since private respondent Ayson is admittedly a stranger to the Hontiveros
family, the case is not covered by the requirements of Art. 151 of the Family Code.
We agree with petitioners. The inclusion of private respondent Ayson as defendant and
petitioner Maria Hontiveros as plaintiff takes the case out of the ambit of Art. 151 of the Family
Code. Under this provision, the phrase “members of the same family” refers to the husband
and wife, parents and children, ascendants and descendants, and brothers and sisters,
whether full or half-blood.19 As this Court held in Guerrero v. RTC, Ilocos Norte, Br. XVI:20
As early as two decades ago, we already ruled in Gayon v. Gayon that the enumeration of
“brothers and sisters” as members of the same family does not comprehend “sisters-in-law.”
In that case, then Chief Justice Concepcion emphasized that “sisters-in-law” (hence, also
“brothers-in-law”) are not listed under Art. 217 of the New Civil Code as members of the same
family. Since Art. 150 of the Family Code repeats essentially the same enumeration of
“members of the family,” we find no reason to alter existing jurisprudence on the matter.
Consequently, the court a quo erred in ruling that petitioner Guerrero, being a brother-in-law
of private respondent Hernando, was required to exert earnest efforts towards a compromise
before filing the present suit.
Religious relationship and relationship by affinity are not given any legal effect in this
jurisdiction.21 Consequently, private respondent Ayson, who is described in the complaint as
the spouse of respondent Hontiveros, and petitioner Maria Hontiveros, who is admittedly the
spouse of petitioner Augusto Hontiveros, are considered strangers to the Hontiveros family,
for purposes of Art. 151.
Petitioners finally question the constitutionality of Art. 151 of the Family Code on the
ground that it in effect amends the Rules of Court. This, according to them, cannot be done
since the Constitution reserves in favor of the Supreme Court the power to promulgate rules
of pleadings and procedure. Considering the conclusion we have reached in this case, however,
it is unnecessary for present purposes to pass upon this question. Courts do not pass upon
constitutional questions unless they are the very lis mota of the case.
WHEREFORE, the petition is GRANTED and the Order, dated November 23, 1995 of the
Regional Trial Court of Iloilo City, Branch 25 is SET ASIDE and the case is remanded to the trial
court for further proceedings not inconsistent with this decision.
SO ORDERED.
 G.R. No. 154132. August 31, 2006.*
HIYAS SAVINGS and LOAN BANK, INC., petitioner, vs. HON. EDMUNDO T. ACUÑA, in his
capacity as Pairing Judge of Regional Trial Court, Branch 122, Caloocan City, and ALBERTO
MORENO, respondent.
Certiorari; At the outset, the Court notes that the instant Petition for Certiorari should
have been filed with the Court of Appeals (CA) and not with this Court pursuant to the doctrine
of hierarchy of courts.—The Court notes that the instant Petition for Certiorari should have
been filed with the Court of Appeals (CA) and not with this Court pursuant to the doctrine of
hierarchy of courts. Reiterating the established policy for the strict observance of this doctrine,
this Court held in Heirs of Bertuldo Hinog v. Melicor, 455 SCRA 460 (2005), that: Although the
Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to
issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction,
such concurrence does not give the petitioner unrestricted freedom of choice of court forum.
_______________
*FIRST DIVISION.
515
VOL. 500, AUGUST 31, 2006 515
Hiyas Savings and Loan Bank, Inc. vs. Acuña
Same; The rationale for this rule is two-fold.—The rationale for this rule is two-fold: (a)
it would be an imposition upon the precious time of this Court; and (b) it would cause an
inevitable and resultant delay, intended or otherwise, in the adjudication of cases, which in
some instances had to be remanded or referred to the lower court as the proper forum under
the rules of procedure, or as better equipped to resolve the issues because this Court is not a
trier of facts.
Same; Exceptional and compelling circumstances were held present in the following
cases.—This Court will not entertain direct resort to it unless the redress desired cannot be
obtained in the appropriate courts, and exceptional and compelling circumstances, such as
cases of national interest and of serious implications, justify the availment of the extraordinary
remedy of writ of certiorari, calling for the exercise of its primary jurisdiction. Exceptional and
compelling circumstances were held present in the following cases: (a) Chavez vs. Romulo on
citizens’ right to bear arms; (b) Government of the United States of America vs. Purganan on
bail in extradition proceedings; (c) Commission on Elections vs. Quijano-Padilla on government
contract involving modernization and computerization of voters’ registration list; (d) Buklod ng
Kawaning EIIB vs. Zamora on status and existence of a public office; and (e) Fortich vs.
Corona on the so-called “Win-Win Resolution” of the Office of the President which modified
the approval of the conversion to agro-industrial area.
Actions; Earnest Efforts; Once a stranger becomes a party to a suit involving members of
the same family, the law no longer makes it a condition precedent that earnest efforts be made
towards a compromise before the action can prosper.—In Magbaleta, the case involved
brothers and a stranger to the family, the alleged owner of the subject property. The Court,
taking into consideration the explanation made by the Code Commission in its report, ruled
that: [T]hese considerations do not, however, weigh enough to make it imperative that such
efforts to compromise should be a jurisdictional pre-requisite for the maintenance of an action
whenever a stranger to the family is a party thereto, whether as a necessary or indispensable
one. It is not always that one who is alien to the family would be willing to suffer the
inconvenience of, much less relish, the delay and the complications that wranglings between
or among relatives more often than not entail. Besides, it is neither practical nor fair
516
516 SUPREME COURT REPORTS ANNOTATED
Hiyas Savings and Loan Bank, Inc. vs. Acuña
that the determination of the rights of a stranger to the family who just happened to
have innocently acquired some kind of interest in any right or property disputed among its
members should be made to depend on the way the latter would settle their differences
among themselves. x x x. Hence, once a stranger becomes a party to a suit involving members
of the same family, the law no longer makes it a condition precedent that earnest efforts be
made towards a compromise before the action can prosper.
Earnest Efforts; While De Guzman was decided after Magbaleta, the principle
enunciated in the Magbaleta is the one that now prevails.—While De Guzman was decided
after Magbaleta, the principle enunciated in the Magbaleta is the one that now prevails
because it is reiterated in the subsequent cases of Gonzales v. Lopez, Esquivias v. Court of
Appeals, Spouses Hontiveros v. Regional Trial Court, Branch 25, Iloilo City, and the most recent
case of Martinez v. Martinez. Thus, Article 151 of the Family Code applies to cover when the
suit is exclusively between or among family members. The Court finds no cogent reason why
the ruling in Magbaleta as well as in all of the aforementioned cases should not equally apply
to suits involving husband and wife.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Maria Norma G. Co for petitioner.
Abigail Azcarraga-Portugal for private respondent.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court seeking to nullify
the Orders1 of the Regional Trial Court (RTC) of Caloocan City, Branch 122, dated November 8,
20012 and May 7, 20023 denying herein petitioner’s Motion to Dismiss and Motion for Partial
Reconsideration, respectively.
The antecedent facts are as follows:
On November 24, 2000, Alberto Moreno (private respondent) filed with the RTC of
Caloocan City a complaint against Hiyas Savings and Loan Bank, Inc. (petitioner), his wife
Remedios, the spouses Felipe and Maria Owe and the Register of Deeds of Caloocan City for
cancellation of mortgage contending that he did not secure any loan from petitioner, nor did
he sign or execute any contract of mortgage in its favor; that his wife, acting in conspiracy with
Hiyas and the spouses Owe, who were the ones that benefited from the loan, made it appear
that he signed the contract of mortgage; that he could not have executed the said contract
because he was then working abroad.4
On May 17, 2001, petitioner filed a Motion to Dismiss on the ground that private
respondent failed to comply with Article 151 of the Family Code wherein it is provided that no
suit between members of the same family shall prosper unless it should appear from the
verified complaint or petition that earnest efforts toward a compromise have been made, but
that the same have failed. Petitioner contends that since the complaint does not contain any
fact or averment that earnest efforts toward a compromise had been made prior to its
institution, then the complaint should be dismissed for lack of cause of action.5
Private respondent filed his Comment on the Motion to Dismiss with Motion to Strike Out
and to Declare Defendants in Default. He argues that in cases where one of the parties is not
a member of the same family as contemplated under Article 150 of the Family Code, failure to
allege in the complaint that earnest efforts toward a compromise had been made by the
plaintiff before filing the complaint is not a ground for a motion to dismiss. Alberto asserts that
since three of the party-defendants are not members of his family the ground relied upon by
Hiyas in its Motion to Dismiss is inapplicable and unavailable. Alberto also prayed that
defendants be declared in default for their failure to file their answer on time.6
Petitioner filed its Reply to the Comment with Opposition to the Motion to Strike and to
Declare Defendants in Default.7Private respondent, in turn, filed his Rejoinder.8
On November 8, 2001, the RTC issued the first of its assailed Orders denying the Motion
to Dismiss, thus:
“The court agrees with plaintiff that earnest efforts towards a compromise is not required
before the filing of the instant case considering that the above-entitled case involves parties
who are strangers to the family. As aptly pointed out in the cases cited by plaintiff, Magbaleta
v. G[o]nong, L-44903, April 25, 1977 and Mendez v. [B]iangon, L-32159, October 28, 1977, if
one of the parties is a stranger, failure to allege in the complaint that earnest efforts towards
a compromise had been made by plaintiff before filing the complaint, is not a ground for
motion to dismiss.
Insofar as plaintiff’s prayer for declaration of default against defendants, the same is
meritorious only with respect to defendants Remedios Moreno and the Register of Deeds of
Kaloocan City. A declaration of default against defendant bank is not proper considering that
the filing of the Motion to Dismiss by said defendant operates to stop the running of the period
within which to file the required Answer.”9
Petitioner filed a Motion for Partial Reconsideration.10 Private respondent filed his
Comment,11 after which petitioner filed its Reply.12 Thereafter, private respondent filed his
Rejoinder.13
On May 7, 2002, the RTC issued the second assailed Order denying petitioner’s Motion for
Partial Reconsideration. The trial court ruled:
“Reiterating the resolution of the court, dated November 8, 2001, considering that the above-
entitled case involves parties who are strangers to the family, failure to allege in the complaint
that earnest efforts towards a compromise were made by plaintiff, is not a ground for a Motion
to Dismiss.
Additionally, the court agrees with plaintiff that inasmuch as it is defendant Remedios
Moreno who stands to be benefited by Art. 151 of the Family Code, being a member of the
same family as that of plaintiff, only she may invoke said Art. 151.”14
xxx
Hence, the instant Petition for Certiorari on the following grounds:
I.Public respondent committed grave abuse of discretion amounting to lack or in excess
of jurisdiction when he ruled that lack of earnest efforts toward a compromise is not a
ground for a motion to dismiss in suits between husband and wife when other parties
who are strangers to the family are involved in the suit. Corollarily, public respondent
committed grave abuse of discretion amounting to lack or in excess of jurisdiction when
he applied the decision in the case of Magbaleta v. Gonong instead of the ruling in the
case of De Guzman v. Genato.
II.Public respondent committed grave abuse of discretion amounting to lack or in excess
of jurisdiction when he ruled that a party who is a stranger to the family of the litigants
could not invoke lack of earnest efforts toward a compromise as a ground for the
dismissal of the complaint.15
At the outset, the Court notes that the instant Petition for Certiorari should have been filed
with the Court of Appeals (CA) and not with this Court pursuant to the doctrine of hierarchy of
courts. Reiterating the established policy for the strict observance of this doctrine, this Court
held in Heirs of Bertuldo Hinog v. Melicor16 that:
“Although the Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent
jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of
choice of court forum. As we stated in People v. Cuaresma:
‘This Court’s original jurisdiction to issue writs of certiorari is not exclusive. It is shared by this
Court with Regional Trial Courts and with the Court of Appeals. This concurrence of jurisdiction
is not, however, to be taken as according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which application therefor will be directed.
There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals,
and also serves as a general determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level (“inferior”) courts should be
filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A
direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be
allowed only when there are special and important reasons therefor, clearly and specifically
set out in the petition. This is [an] established policy. It is a policy necessary to prevent
inordinate demands upon the Court’s time and attention which are better devoted to those
matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court’s
docket.’
“The rationale for this rule is twofold: (a) it would be an imposition upon the precious time
of this Court; and (b) it would cause an inevitable and resultant delay, intended or otherwise,
in the adjudication of cases, which in some instances had to be remanded or referred to the
lower court as the proper forum under the rules of procedure, or as better equipped to resolve
the issues because this Court is not a trier of facts.
“Thus, this Court will not entertain direct resort to it unless the redress desired cannot be
obtained in the appropriate courts, and exceptional and compelling circumstances, such as
cases of national interest and of serious implications, justify the availment of the extraordinary
remedy of writ of certiorari, calling for the exercise of its primary jurisdiction. Exceptional and
compelling circumstances were held present in the following cases: (a) Chavez vs. Romulo on
citizens’ right to bear arms; (b) Government of the United States of America vs. Purganan on
bail in extradition proceedings; (c) Commission on Elections vs. Quijano-Padilla on government
contract involving modernization and computerization of voters’ registration list; (d) Buklod ng
Kawaning EIIB vs. Zamora on status and existence of a public office; and (e) Fortich vs.
Corona on the so-called “Win-Win Resolution” of the Office of the President which modified
the approval of the conversion to agro-industrial area.”17
In the present case, petitioner failed to advance a satisfactory explanation as to its failure to
comply with the principle of judicial hierarchy. There is no reason why the instant petition
could not have been brought before the CA. On this basis, the instant petition should be
dismissed.
 And even if this Court passes upon the substantial issues raised by petitioner, the instant
petition likewise fails for lack of merit.
Restating its arguments in its Motion for Partial Reconsideration, petitioner argues that
what is applicable to the present case is the Court’s decision in De Guzman v. Genato18 and not
in Magbaleta v. Gonong,19 the former being a case involving a husband and wife while the
latter is between brothers.
The Court is not persuaded.
Article 151 of the Family Code provides as follows:
“No suit between members of the same family shall prosper unless it should appear from the
verified complaint or petition that earnest efforts toward a compromise have been made, but
that the same have failed. If it is shown that no such efforts were in fact made, the case must
be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under the
Civil Code.”
Article 222 of the Civil Code from which Article 151 of the Family Code was taken, essentially
contains the same provisions, to wit:
“No suit shall be filed or maintained between members of the same family unless it should
appear that earnest efforts toward a compromise have been made, but that the same have
failed, subject to the limitations in Article 2035.”20
The Code Commission that drafted Article 222 of the Civil Code from which Article 151 of the
Family Code was taken explains:
“[I]t is difficult to imagine a sadder and more tragic spectacle than a litigation between
members of the same family. It is necessary that every effort should be made toward a
compromise before a litigation is allowed to breed hate and passion in the family. It is known
that a lawsuit between close relatives generates deeper bitterness than between strangers.”21
In Magbaleta, the case involved brothers and a stranger to the family, the alleged owner of
the subject property. The Court, taking into consideration the explanation made by the Code
Commission in its report, ruled that:
“[T]hese considerations do not, however, weigh enough to make it imperative that such efforts
to compromise should be a jurisdictional pre-requisite for the maintenance of an action
whenever a stranger to the family is a party thereto, whether as a necessary or indispensable
one. It is not always that one who is alien to the family would be willing to suffer the
inconvenience of, much less relish, the delay and the complications that wranglings between
or among relatives more often than not entail. Besides, it is neither practical nor fair that the
determination of the rights of a stranger to the family who just happened to have innocently
acquired some kind of interest in any right or property disputed among its members should be
made to depend on the way the latter would settle their differences among themselves.” 22 x x
x.
Hence, once a stranger becomes a party to a suit involving members of the same family, the
law no longer makes it a condition precedent that earnest efforts be made towards a
compromise before the action can prosper.
In the subsequent case of De Guzman, the case involved spouses and the alleged
paramour of the wife. The Court ruled that due to the efforts exerted by the husband, through
the Philippine Constabulary, to confront the wife, there was substantial compliance with the
law, thereby implying that even in the presence of a party who is not a family member, the
requirements that earnest efforts towards a compromise have been exerted must be complied
with, pursuant to Article 222 of the Civil Code, now Article 151 of the Family Code.
While De Guzman was decided after Magbaleta, the principle enunciated in
the Magbaleta is the one that now prevails because it is reiterated in the subsequent cases
of Gonzales v. Lopez,23 Esquivias v. Court of Appeals,24 Spouses Hontiveros v. Regional Trial
Court, Branch 25, Iloilo City,25and the most recent case of Martinez v. Martinez.26 Thus, Article
151 of the Family Code applies to cover when the suit is exclusively between or among family
members.
The Court finds no cogent reason why the ruling in Magbaleta as well as in all of the
aforementioned cases should not equally apply to suits involving husband and wife.
Petitioner makes much of the fact that the present case involves a husband and his wife
while Magbaleta is a case between brothers. However, the Court finds no specific, unique, or
special circumstance that would make the ruling in Magbaleta as well as in the
abovementioned cases inapplicable to suits involving a husband and his wife, as in the present
case. In the first place, Article 151 of the Family Code and Article 222 of the Civil Code are clear
that the provisions therein apply to suits involving “members of the same family” as
contemplated under Article 150 of the Family Code, to wit:
ART. 150. Family relations include those:
(1)Between husband and wife;
(2)Between parents and children;
(3)Among other ascendants and descendants; and
(4)Among brothers and sisters, whether of the full or half blood.
and Article 217 of the Civil Code, to wit:
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.
Petitioner also contends that the trial court committed grave abuse of discretion when it ruled
that petitioner, not being a member of the same family as respondent, may not invoke the
provisions of Article 151 of the Family Code.
Suffice it to say that since the Court has ruled that the requirement under Article 151 of
the Family Code is applicable only in cases which are exclusively between or among members
of the same family, it necessarily follows that the same may be invoked only by a party who is
a member of that same family.
WHEREFORE, the instant Petition for Certiorari is DISMISSED for lack of merit.
Costs against petitioner.
SO ORDERED.
 G.R. No. 108532. March 9, 1999.*
PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG and HUSBAND, CILIA T. MORING and
HUSBAND, petitioners, vs. COURT OF APPEALS and ABDON GILIG, respondents.
Civil Law; Property; Public Lands; Prohibition against alienation of lands acquired by
homestead or free patent commences on the date of the approval of the application for free
patent and the five-year period is counted from the issuance of the patent.—The prohibition
against alienation of lands acquired by homestead or free patent commences on the date of
the approval of the application for free patent and the five-year period is counted from the
issuance of the patent. The reckoning point is actually the date of approval of the application.
In Amper v. Presiding Judge, the Court held that: x x x The date when the prohibition against
the alienation of lands acquired by homesteads or free patents commences is “the date of the
approval of the application” and the prohibition embraces the entire five-year period “from
and after the date of issuance of the patent or grant.” As stated in Beniga v. Bugas, (35 SCRA
111), the provision would make no sense if the prohibition starting “from the date of the
approval of the application” would have no termination date. The specific period of five years
within which the alienation or encumbrance of a homestead is restricted starts to be computed
from the date of the issuance of the patent. But the prohibition of alienation commences from
the date the application is approved which comes earlier. (Italics ours.)
Same; Same; Same; Court agrees with the respondent court that the conveyance made
by way of the sheriff’s sale was not violative of the law.—Following this ruling, we agree with
the respondent court that the conveyance made by way of the sheriff’s sale was not violative
of the law. The judgment obligation of the petitioners against Abdon Gilig arose on June 24,
1964. The properties were levied and sold at public auction with Abdon Gilig as the highest
bidder on February 12, 1966. On February 9, 1968, the final deed of conveyance ceding the
subject property to Abdon Gilig was issued after the petitioners failed to redeem the property
after the reglementary period. Pablo Taneo’s application for free patent was approved only on
October 19, 1973.
Same; Same; Same; The prohibition does not apply since it is clear from the records that
the judgment debt and the execution sale took place prior to the approval of the application
for free patent.—The sequence of the events leads us to the inescapable conclusion that even
before the application for homestead had been approved, Pablo Taneo was no longer the
owner of the land. The deed of conveyance issued on February 9, 1968 finally transferred the
property to Abdon Gilig. As of that date, Pablo Taneo did not actually have anymore rights over
the land which he could have transferred to herein petitioners. The petitioners are not the
owners of the land and cannot claim to be such by invoking Commonwealth Act No. 141. The
prohibition does not apply since it is clear from the records that the judgment debt and the
execution sale took place prior to the approval of the application for free patent.
Same; Family Code; A family home is a real right, which is gratuitous, inalienable and
free from attachment, constituted over the dwelling place and the land on which it is situated; It
cannot be seized by creditors except in certain special cases.—A family home is the dwelling
place of a person and his family. It is said, however, that the family home is a real right, which
is gratuitous, inalienable and free from attachment, constituted over the dwelling place and
the land on which it is situated, which confers upon a particular family the right to enjoy such
properties, which must remain with the person constituting it and his heirs. It cannot be seized
by creditors except in certain special cases.
Same; Same; A family home may be constituted judicially and extrajudicially.—Under
the Civil Code (Articles 224 to 251), a family home may be constituted judicially and
extrajudicially, the former by the filing of the petition and with the approval of the proper
court, and the latter by the recording of a public instrument in the proper registry of property
declaring the establishment of the family home. The operative act then which created the
family home extrajudicially was the registration in the Registry of Property of the declaration
prescribed by Articles 240 and 241 of the Civil Code.
Same; Same; Article 153 of the Family Code provides that the family home is deemed
constituted on a house and lot from the time it is occupied as the family residence.—Under the
Family Code, however, registration was no longer necessary. Article 153 of the Family Code
provides that the family home is deemed constituted on a house and lot from the time it is
occupied as the family residence. It reads: The family home is deemed constituted on a house
and lot from the time it is occupied as family residence. From the time of its constitution and
so long as its beneficiaries actually resides therein, the family home continues to be such and
is exempt from execution, forced sale or attachment, except as hereinafter provided and to
the extent of the value allowed by law.
Same; Same; The article does not mean that it has a retroactive effect such that all
existing family residences are deemed to have been constituted as family homes at the time of
their occupation prior to the effectivity of the Family Code.—While Article 153 of the Family
Code provides that the family home is deemed constituted on a house and lot from the time it
is occupied as a family residence, it does not mean that said article has a retroactive effect such
that all existing family residences, petitioner’s included, are deemed to have been constituted
as family homes at the time of their occupation prior to the effectivity of the Family Code and
henceforth, are exempt from execution for the payment of obligations incurred before the
effectivity of the Family Code on August 3, 1988 (Modequillo vs. Breva, 185 SCRA 766). Neither
does Article 162 of said Code state that the provisions of Chapter 2, Title V thereof have
retroactive effect. It simply means that all existing family residences at the time of the
effectivity of the Family Code are considered family homes and are prospectively entitled to
the benefits accorded to a family home under the Family Code (Modequillo vs.
Breva, supra). Since petitioner’s debt was incurred as early as November 25, 1987, it preceded
the effectivity of the Family Code. His property is therefore not exempt from attachment.
Same; Same; Instances where the family home is not exempted from execution, forced
sale or attachment under the Civil Code.—Nonetheless, the law provides certain instances
where the family home is not exempted from execution, forced sale or attachment. Article 243
reads: The family home extrajudicially formed shall be exempt from execution, forced sale or
attachment, except: (1) For nonpayment of taxes; (2) For debts incurred before the declaration
was recorded in the Registry of Property; (3) For debts secured by mortgages on the premises
before or after such record of the declaration; (4) For debts due to laborers, mechanics,
architects, builders, material-men and others who have rendered service or furnished material
for the construction of the building.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Carlito P. Somido for petitioner.
Augusto G. Maderazo for private respondent.
KAPUNAN, J.:
The issues in this case are not novel: whether or not the conveyance made by way of the
sheriff’s sale pursuant to the writ of execution issued by the trial court in Civil Case No. 590 is
prohibited under Sec. 118 of Commonwealth Act No. 141; and whether or not the family home
is exempt from execution.
As a result of a judgment in Civil Case No. 590 (for recovery of property) in favor of private
respondent, two (2) of petitioners’ properties were levied to satisfy the judgment amount of
about P5,000.00: one was a parcel of land located in Barrio Igpit, Municipality of Opol, Misamis
Oriental with an area of about five (5) hectares, and the other was the family home also located
at Igpit, Opol, Misamis Oriental. The subject properties were sold at public auction on February
12, 1966 to the private respondent as the highest bidder. Consequently, after petitioners’
failure to redeem the same, a final deed of conveyance was executed on February 9, 1968,
definitely selling, transferring, and conveying said properties to the private respondent.
To forestall such conveyance, petitioners filed an action on November 5, 1985 (docketed
as Civil Case No. 10407) to declare the deed of conveyance void and to quiet title over the land
with a prayer for a writ of preliminary injunction. In their complaint, it was alleged that
petitioners are the children and heirs of Pablo Taneo and Narcisa Valaceras who died on
February 12, 1977 and September 12, 1984, respectively. Upon their death, they left the
subject property covered by OCT No. P-12820 and Free Patent No. 548906. Considering that
said property has been acquired through free patent, such property is therefore inalienable
and not subject to any encumbrance for the payment of debt, pursuant to Commonwealth Act
No. 141. Petitioners further alleged that they were in continuous, open and peaceful
possession of the land and that on February 9, 1968, Deputy Provincial Sheriff Jose V. Yasay
issued a Sheriff’s Deed of Conveyance in favor of the private respondent over the subject
property including their family home which was extrajudicially constituted in accordance with
law. As a result of the alleged illegal deed of conveyance, private respondent was able to obtain
in his name Tax Declaration No. 851920 over the land, thus casting a cloud of doubt over the
title and ownership of petitioners over said property.
Private respondent refuted petitioners’ contentions alleging that he lawfully acquired the
subject properties described as Lot No. 5545, Cad. 237 which was a private land, by virtue of a
Sheriff’s Sale on February 12, 1966. Said sale has become final as no redemption was made
within one year from the registration of the Sheriff’s Certificate of Sale. The validity of the sale
in favor of Abdon Gilig was even confirmed by the Court of Appeals in a related case (CA No.
499965-R) entitled “Arriola v. Gilig,” where one Rufino Arriola also claimed ownership over the
subject property.
Private respondent averred that the subject land was originally owned by Lazaro Ba-a who
sold the land to Pablo Taneo on September 18, 1941, as evidenced by an Escritura de Venta.
Despite it being a private land, Pablo Taneo filed an application for free patent which was made
final only in 1979.
As counterclaim, private respondent alleged that since petitioners are still in possession
of the subject property, he has been deprived of acts of ownership and possession and
therefore, prayed for payment of rentals from February, 1968 until possession has been
restored to them.
In its decision of March 27, 1989, the RTC dismissed the complaint. The dispositive portion
thereof reads as follows:
Premises considered, Judgment is hereby rendered in favor of the defendant and against the
plaintiffs, ordering the dismissal of the complaint filed by the plaintiffs:
a)Declaring OCT No. P-12820 and Free Patent No. 548906 both in the name of Pablo
Taneo as null and void and directing the Register of Deeds to cancel the same, without
prejudice however on the part of the defendant to institute legal proceedings for the
transfer of the said title in the name of defendant Abdon Gilig;
b)Declaring Abdon Gilig as the absolute and legal owner of the land covered by OCT No.
P-12820, and covered by Tax Declaration No. 851920, and hence entitled to the
possession of the same and as a necessary concomitant, admonishing the plaintiffs to
refrain from disturbing the peaceful possession of the defendant over the land in
question;
c)Likewise declaring the defendant Abdon Gilig as the true and absolute owner of the
house in question formerly declared under Tax Declaration No. 4142 in the name of
Pablo Taneo and presently declared under Tax Declaration No. 851916 in the name of
Abdon Gilig; ordering the plaintiffs or any of their representatives to vacate and return
the possession of the same to defendant Abdon Gilig;
d)Ordering the plaintiffs, except the nominal parties herein, to pay to defendant Abdon
Gilig the amount of P500.00 a month as reasonable rental of the house in question to
be reckoned from February 9, 1968 until the possession of the same is returned to the
defendant;
e)To pay to defendant the amount of P5,000.00 as attorney’s fees and to pay the costs.
SO ORDERED.1
On appeal, the Court of Appeals affirmed in toto the decision of the RTC.
Hence, this petition.
The petition is devoid of merit.
In resolving the issues, the lower court made the following findings of fact which this Court
finds no cogent reason to disturb:
1.That the land in question originally belonged to Lazaro Baa who sold the same to the
late Pablito (sic) Taneo father of the herein plaintiff on September 18, 1941, by virtue of
an Escritura de Venta identified as Reg. Not. 50; page 53, Foleo Not. V, Series of 1941 of
the Notarial Register of Ernie Pelaez (Exh. 10);
2.That on July 19, 1951 Abdon Gilig with his wife filed a Civil Case No. 590 for recovery
of property against Pablo Taneo, et al., wherein Judgment was rendered on June 24,
1964, in favor of Abdon Gilig and against Pablo Taneo ordering the latter to pay damages
in the amount of P5,000.00 (Exh. 2);
3.That by virtue of said decision, a writ of Execution was issued on November 22, 1965
against the properties of Pablo Taneo and on December 1, 1965, a Notice of Levy was
executed by the Clerk of Court Pedro Perez wherein the properties in question were
among the properties levied by the Sheriff (Exh. 3);
 4.That the said properties were sold at public auction wherein the defendant Abdon
Gilig came out as the highest bidder and on February 12, 1965, a Sheriff’s Certificate of
Sale was executed by Ex-Officio Provincial Sheriff Pedro Perez (Exh. 1) ceding the said
properties in favor of Abdon Gilig and which Certificate of Sale was registered with the
Register of Deeds on March 2, 1966;
5.That for failure to redeem the said property within the reglementary period, a Sheriff’s
final Deed of Conveyance was executed by same Provincial Sheriff Jose V. Yasay on
February 1968, (Exhs. 4, 4-A) conveying the property definitely to Abdon Gilig;
6.That on April 20, 1966, after his third-party claim which he filed with the Sheriff in Civil
Case No. 590 was not given due course, Rufino Arriola filed Civil Case No. 2667 entitled
Arriola vs. Abdon Gilig, et al., for Recovery of Property and/or annulment of Sale with
Damages;
7.That Judgment was rendered by the Court thru Judge Bernardo Teves dismissing the
case with costs on February 21, 1969;
8.That said decision was appealed to the Court of Appeals which affirmed the decision
in toto on June 20, 1979; declaring the alleged Deed of Sale executed by Abdon Gilig in
favor of the plaintiff as null and void for being simulated or fictitious and executed in
fraud or (sic) creditors;
9.That on March 7, 1964, Pablo Taneo constituted the house in question erected on the
land of Plutarco Vacalares as a family home (Exh. F) but was however, notarized only on
May 2, 1965 and registered with the Register of Deeds on June 24, 1966;
10.That in the meanwhile, unknown to the defendant, Pablo Taneo applied for a free
patent on the land in question which was approved on October 13, 1973, (Exh. B) and
the Patent and Title issued on December 10, 1980 (OCT No. P-12820-Exh. 12);
11.On November 3, 1985, the plaintiff filed the present action.2
Petitioners contend that under Section 118 of Commonwealth Act No. 141, the subject land
which they inherited from their father under free patent cannot be alienated or encumbered
in violation of the law. Citing in particular the cases of Oliveros v. Porciongcola3 and Gonzaga
v. Court of Appeals,4 the execution or auction sale of the litigated land falls within the
prohibited period and is, likewise, a disavowal of the rationale of the law which is to give the
homesteader or patentee every chance to preserve for himself and his family the land which
the State had gratuitously given to him as a reward for his labor in cleaning and cultivating it.5
We are not unmindful of the intent of the law. In fact, in Republic v. Court of Appeals,6 the
Court elucidated, to wit:
It is well-known that the homestead laws were designed to distribute disposable agricultural
lots of the State to land-destitute citizens for their home and cultivation. Pursuant to such
benevolent intention the State prohibits the sale or encumbrance of the homestead (Section
116) within five years after the grant of the patent.
After that five-year period the law impliedly permits alienation of the homestead; but in line
with the primordial purpose to favor the homesteader and his family the statute provides that
such alienation or conveyance (Section 117) shall be subject to the right of repurchase by the
homesteader, his widow or heirs within five years. This Section 117 is undoubtedly a
complement of Section 116. It aims to preserve and keep in the family of the homesteader that
portion of public land which the State had gratuitously given to him. It would, therefore, be in
keeping with this fundamental idea to hold, as we hold, that the right to repurchase exists not
only when the original homesteader makes the conveyance, but also when it is made by his
widow or heirs. This construction is clearly deducible from the terms of the statute.
The intent of the law is undisputable but under the facts of the case, the prohibition invoked
by the petitioners under Section 118 does not apply to them.
Section 118 of Commonwealth Act No. 141 reads:
Except in favor of the Government or any of its branches, units or institutions, or legally
constituted banking corporations, lands acquired under free patent or homestead provisions
shall not be subject to encumbrance or alienation from the date of the approval of the
application and for a term of five years from and after the date of issuance of the patent or
grant, nor shall they become liable to the satisfaction of any debt contracted prior to the
expiration of said period, but the improvements or crops on the land may be mortgaged or
pledged to qualified persons, associations, or corporations.
x x x.
The prohibition against alienation of lands acquired by homestead or free patent commences
on the date of the approval of the application for free patent and the five-year period is
counted from the issuance of the patent. The reckoning point is actually the date of approval
of the application. In Amper v. Presiding Judge,7 the Court held that:
x x x The date when the prohibition against the alienation of lands acquired by homesteads or
free patents commences is “the date of the approval of the application” and the prohibition
embraces the entire five-year period “from and after the date of issuance of the patent or
grant.” As stated in Beniga v. Bugas, (35 SCRA 111), the provision would make no sense if the
prohibition starting “from the date of the approval of the application” would have no
termination date.
The specific period of five years within which the alienation or encumbrance of a
homestead is restricted starts to be computed from the date of the issuance of the patent. But
the prohibition of alienation commences from the date the application is approved which
comes earlier. (Italics ours.)
Following this ruling, we agree with the respondent court that the conveyance made by way
of the sheriff’s sale was not violative of the law. The judgment obligation of the petitioners
against Abdon Gilig arose on June 24, 1964. The properties were levied and sold at public
auction with Abdon Gilig as the highest bidder on February 12, 1966. On February 9, 1968, the
final deed of conveyance ceding the subject property to Abdon Gilig was issued after the
petitioners failed to redeem the property after the reglementary period. Pablo Taneo’s
application for free patent was approved only on October 19, 1973.
The sequence of the events leads us to the inescapable conclusion that even before the
application for homestead had been approved, Pablo Taneo was no longer the owner of the
land. The deed of conveyance issued on February 9, 1968 finally transferred the property to
Abdon Gilig. As of that date, Pablo Taneo did not actually have anymore rights over the land
which he could have transferred to herein petitioners. The petitioners are not the owners of
the land and cannot claim to be such by invoking Commonwealth Act No. 141. The prohibition
does not apply since it is clear from the records that the judgment debt and the execution sale
took place priorto the approval of the application for free patent. We quote with favor the
respondent court’s valid observation on the matter:
x x x the application of Pablo Taneo for a free patent was approved only on 19 October 1973
and Free Patent was issued on 10 December 1980. Under the aforecited provision, the subject
land could not be made liable for the satisfaction of any debt contracted from the time of the
application and during the 5-year period following 10 December 1980, or until 10 December
1985. However, debts contracted prior to the approval of the application for free patent, that
is prior to 18 October 1973, are not covered by the prohibition. This is because they do not fall
within the scope of the prohibited period. In this case, the judgment debt in favor of
defendant-appellee was rendered on 24 June 1964, the writ of execution issued on 22
November 1965, notice of levy made on 1 December 1965, the execution sale held on 12
February 1966, and the certificate of sale registered on 2 March 1966, all before Pablo Taneo’s
application for free patent was approved on 19 October 1973. The execution, therefore, was
not violative of the law.8
Anent the second issue, petitioners aver that the house which their father constituted as family
home is exempt from execution. In a last ditch effort to save their property, petitioners invoke
the benefits accorded to the family home under the Family Code.
A family home is the dwelling place of a person and his family. It is said, however, that the
family home is a real right, which is gratuitous, inalienable and free from attachment,
constituted over the dwelling place and the land on which it is situated, which confers upon a
particular family the right to enjoy such properties, which must remain with the person
constituting it and his heirs.9 It cannot be seized by creditors except in certain special cases.
Under the Civil Code (Articles 224 to 251), a family home may be constituted judicially and
extrajudicially, the former by the filing of the petition and with the approval of the proper
court, and the latter by the recording of a public instrument in the proper registry of property
declaring the establishment of the family home. The operative act then which created the
family home extrajudicially was the registration in the Registry of Property of the declaration
prescribed by Articles 240 and 241 of the Civil Code.10
Under the Family Code, however, registration was no longer necessary. Article 153 of the
Family Code provides that the family home is deemed constituted on a house and lot from the
time it is occupied in the family residence. It reads:
The family home is deemed constituted on a house and lot from the time it is occupied as
family residence. From the time of its constitution and so long as its beneficiaries actually
resides therein, the family home continues to be such and is exempt from execution, forced
sale or attachment, except as hereinafter provided and to the extent of the value allowed by
law.
It is under the foregoing provision which petitioners seek refuge to avert execution of the
family home arguing that as early as 1964, Pablo Taneo had already constituted the house in
question as their family home. However, the retroactive effect of the Family Code, particularly
on the provisions on the family home has been clearly laid down by the court as explained in
the case of Manacop v. Court of Appeals11 to wit:
Finally, the petitioner insists that the attached property is a family home, having been
occupied by him and his family since 1972, and is therefore exempt from attachment.
The contention is not well-taken.
While Article 153 of the Family Code provides that the family home is deemed constituted
on a house and lot from the time it is occupied as a family residence, it does not mean that
said article has a retroactive effect such that all existing family residences, petitioner’s included,
are deemed to have been constituted as family homes at the time of their occupation prior to
the effectivity of the Family Code and henceforth, are exempt from execution for the payment
of obligations incurred before the effectivity of the Family Code on August 3, 1988 (Modequillo
vs. Breva, 185 SCRA 766). Neither does Article 162 of said Code state that the provisions of
Chapter 2, Title V thereof have retroactive effect. It simply means that all existing family
residences at the time of the effectivity of the Family Code are considered family homes and
are prospectively entitled to the benefits accorded to a family home under the Family Code
(Modequillo vs. Breva, supra). Since petitioner’s debt was incurred as early as November 25,
1987, it preceded the effectivity of the Family Code. His property is therefore not exempt from
attachment (Annex “O,” Plaintiff’s Position Paper and Memorandum of Authorities, p. 78).”
(pp. 5-6, Decision; pp. 64-65, Rollo) (italics ours)
The applicable law, therefore, in the case at bar is still the Civil Code where registration of the
declaration of a family home is a prerequisite. Nonetheless, the law provides certain instances
where the family home is not exempted from execution, forced sale or attachment.
Article 243 reads:
The family home extrajudicially formed shall be exempt from execution, forced sale or
attachment, except:
(1)For nonpayment of taxes;
(2)For debts incurred before the declaration was recorded in the Registry of Property;
(3)For debts secured by mortgages on the premises before or after such record of the
declaration;
(4)For debts due to laborers, mechanics, architects, builders, material-men and others
who have rendered service or furnished material for the construction of the building.12
The trial court found that on March 7, 1964, Pablo Taneo constituted the house in question,
erected on the land of Plutarco Vacalares, as the family home. The instrument constituting the
family home was registered only on January 24, 1966. The money judgment against Pablo
Taneo was rendered on January 24, 1964. Thus, at that time when the “debt” was incurred,
the family home was not yet constituted or even registered. Clearly, petitioners’ alleged family
home, as constituted by their father is not exempt as it falls under the exception of Article
243(2).
Moreover, the constitution of the family home by Pablo Taneo is even doubtful
considering that such constitution did not comply with the requirements of the law. The trial
court found that the house was erected not on the land which the Taneos owned but on the
land of one Plutarco Vacalares. By the very definition of the law that the “family home is the
dwelling house where a person and his family resides and the land on which it is situated,”13 it
is understood that the house should be constructed on a land not belonging to another.
Apparently, the constitution of a family home by Pablo Taneo in the instant case was merely
an afterthought in order to escape execution of their property but to no avail.
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
 G.R. No. 185064. January 16, 2012.*
SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE MESA, petitioners, vs. SPOUSES
CLAUDIO D. ACERO, JR. and MA. RUFINA D. ACERO, SHERIFF FELIXBERTO L. SAMONTE and
REGISTRAR ALFREDO SANTOS, respondents.
Remedial Law; Civil Procedure; Forum-Shopping; Forum- shopping exists when two or
more actions involve the same transactions, essential facts, and circumstances; and raise
identical causes of action, subject matter, and issues.—There is forum-shopping when as a
result of an adverse decision in one forum, or in anticipation thereof, a party seeks a favorable
opinion in another forum through means other than an appeal or certiorari. Forum-shopping
exists when two or more actions involve the same transactions, essential facts, and
circumstances; and raise identical causes of action, subject matter, and issues. Forum shopping
exists where the elements of litis pendentia are present, and where a final judgment in one
case will amount to res judicata in the other. The elements of forum-shopping are: (a) identity
of parties, or at least such parties as would represent the same interest in both actions; (b)
identity of rights asserted and relief prayed for, the relief being founded on the same facts;
and (c) identity of the two preceding particulars such that any judgment rendered in the other
action will, regardless of which party is successful, amount to res judicata in the action under
consideration.
Same; Same; Ejectment; A decision in an ejectment case is not res judicata in an
annulment of title case and vice-versa given the provisional and inconclusive nature of the
determination of the issue of ownership in the former.—A judgment rendered in an ejectment
case is not a bar to action between the same parties respecting title to the land or building.
Neither shall it be conclusive as to the facts therein. This issue is far from being novel and there
is no reason to depart from this Court’s previous pronouncements. In Malabanan v. Rural Bank
of Cabuyao, Inc., 587 SCRA 442 (2009), this Court had previously clarified that a decision in an
ejectment case is not res judicata in an annulment of title case and vice-versa given the
provisional and inconclusive nature of the determination of the issue of ownership in the
former.
Civil Law; Family Home; A family residence that was neither judicially nor extrajudicially
constituted as a family home in accordance with the provisions of the Civil Code became a
family home by operation of law when the Family Code took effect on August 3, 1988, and was
thus prospectively exempt from execution.—The subject property became a family residence
sometime in January 1987. There was no showing, however, that the same was judicially or
extrajudicially constituted as a family home in accordance with the provisions of the Civil Code.
Still, when the Family Code took effect on August 3, 1988, the subject property became a family
home by operation of law and was thus prospectively exempt from execution. The petitioners
were thus correct in asserting that the subject property was a family home.
Same; Same; The fact that the subject property is a family home and, thus, should have
been exempt from execution, should have been asserted at the time it was levied or within a
reasonable time thereafter.—Despite the fact that the subject property is a family home and,
thus, should have been exempt from execution, we nevertheless rule that the CA did not err
in dismissing the petitioners’ complaint for nullification of TCT No. T-221755 (M). We agree
with the CA that the petitioners should have asserted the subject property being a family home
and its being exempted from execution at the time it was levied or within a reasonable time
thereafter.
Same; Same; The family home, from the time of its constitution and so long as any of its
beneficiaries actually resides therein, is generally exempt from execution, forced sale or
attachment. However, this right can be waived or be barred by laches by the failure to set up
and prove the status of the property as a family home at the time of the levy or a reasonable
time thereafter.—The family home is a sacred symbol of family love and is the repository of
cherished memories that last during one’s lifetime. It is likewise without dispute that the family
home, from the time of its constitution and so long as any of its beneficiaries actually resides
therein, is generally exempt from execution, forced sale or attachment. The family home is a
real right, which is gratuitous, inalienable and free from attachment. It cannot be seized by
creditors except in certain special cases. However, this right can be waived or be barred
by laches by the failure to set up and prove the status of the property as a family home at the
time of the levy or a reasonable time thereafter.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Rexie Efren A. Bugaring and Associates Law Offices for petitioners.
Vicente D. Bordador for respondents.
REYES, J.:
Nature of the Petition
This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by the
Spouses Araceli Oliva-De Mesa (Araceli) and Ernesto S. De Mesa (Ernesto), assailing the Court
of Appeals’ (CA) Decision1 dated June 6, 2008 and Resolution2 dated October 23, 2008 in CA-
G.R. CV No. 79391 entitled “Spouses Araceli Oliva-De Mesa and Ernesto De Mesa v. Spouses
Claudio Acero, Jr., et al.”
The Antecedent Facts
This involves a parcel of land situated at No. 3 Forbes Street, Mount Carmel Homes
Subdivision, Iba, Meycauayan, Bulacan, which was formerly covered by Transfer Certificate of
Title (TCT) No. T-76.725 (M) issued by the Register of Deeds of Meycauayan, Bulacan and
registered under Araceli’s name. The petitioners jointly purchased the subject property on
April 17, 1984 while they were still merely cohabiting before their marriage. A house was later
constructed on the subject property, which the petitioners thereafter occupied as their family
home after they got married sometime in January 1987.
Sometime in September 1988, Araceli obtained a loan from Claudio D. Acero, Jr. (Claudio)
in the amount of P100,000.00, which was secured by a mortgage over the subject property. As
payment, Araceli issued a check drawn against China Banking Corporation payable to Claudio.
When the check was presented for payment, it was dishonored as the account from which
it was drawn had already been closed. The petitioners failed to heed Claudio’s subsequent
demand for payment.
Thus, on April 26, 1990, Claudio filed with the Prosecutor’s Office of Malolos, Bulacan a
complaint for violation of Batas Pambansa Blg. 22 (B.P. 22) against the petitioners. After
preliminary investigation, an information for violation of B.P. 22 was filed against the
petitioners with the Regional Trial Court (RTC) of Malolos, Bulacan.
On October 21, 1992, the RTC rendered a Decision3acquitting the petitioners but ordering
them to pay Claudio the amount of P100,000.00 with legal interest from date of demand until
fully paid.
On March 15, 1993, a writ of execution was issued and Sheriff Felixberto L. Samonte
(Sheriff Samonte) levied upon the subject property. On March 9, 1994, the subject property
was sold on public auction; Claudio was the highest bidder and the corresponding certificate
of sale was issued to him.
Sometime in February 1995, Claudio leased the subject property to the petitioners and a
certain Juanito Oliva (Juanito) for a monthly rent of P5,500.00. However, the petitioners and
Juanito defaulted in the payment of the rent and as of October 3, 1998, their total
accountabilities to Claudio amounted to P170,500.00.
Meanwhile, on March 24, 1995, a Final Deed of Sale4 over the subject property was issued
to Claudio and on April 4, 1995, the Register of Deeds of Meycauayan, Bulacan cancelled TCT
No. T-76.725 (M) and issued TCT No. T-221755 (M)5 in his favor.
Unable to collect the aforementioned rentals due, Claudio and his wife Ma. Rufina Acero
(Rufina) (collectively referred to as Spouses Acero) filed a complaint for ejectment with the
Municipal Trial Court (MTC) of Meycauayan, Bulacan against the petitioners and Juanito. In
their defense, the petitioners claimed that Spouses Acero have no right over the subject
property. The petitioners deny that they are mere lessors; on the contrary, they are the lawful
owners of the subject property and, thus cannot be evicted therefrom.
On July 22, 1999, the MTC rendered a Decision,6 giving due course to Spouses Acero’s
complaint and ordering the petitioners and Juanito to vacate the subject property. Finding
merit in Spouses Acero’s claims, the MTC dismissed the petitioners’ claim of ownership over
the subject property. According to the MTC, title to the subject property belongs to Claudio as
shown by TCT No. T-221755 (M).
The MTC also stated that from the time a Torrens title over the subject property was issued
in Claudio’s name up to the time the complaint for ejectment was filed, the petitioners never
assailed the validity of the levy made by Sheriff Samonte, the regularity of the public sale that
was conducted thereafter and the legitimacy of Claudio’s Torrens title that was resultantly
issued.
The petitioners appealed the MTC’s July 22, 1999 Decision to the RTC. This appeal was,
however, dismissed in a Decision dated November 22, 1999 due to the petitioners’ failure to
submit their Memorandum. The petitioners sought reconsideration of the said decision but
the same was denied in an Order dated January 31, 2000.
Consequently, the petitioners filed a petition for review7with the CA assailing the RTC’s
November 22, 1999 Decision and January 31, 2000 Order. In a December 21, 2006
Decision,8 the CA denied the petitioner’s petition for review. This became final on July 25,
2007.9
In the interregnum, on October 29, 1999, the petitioners filed against the respondents a
complaint10 to nullify TCT No. T-221755 (M) and other documents with damages with the RTC
of Malolos, Bulacan. Therein, the petitioners asserted that the subject property is a family
home, which is exempt from execution under the Family Code and, thus, could not have been
validly levied upon for purposes of satisfying the March 15, 1993 writ of execution.
On September 3, 2002, the RTC rendered a Decision,11which dismissed the petitioners’
complaint. Citing Article 155(3) of the Family Code, the RTC ruled that even assuming that the
subject property is a family home, the exemption from execution does not apply. A mortgage
was constituted over the subject property to secure the loan Araceli obtained from Claudio
and it was levied upon as payment therefor.
The petitioners sought reconsideration of the RTC’s September 3, 2002 Decision but this
was denied in a Resolution12 dated January 14, 2003.
On appeal, the CA affirmed the RTC’s disposition in its Decision 13 dated June 6, 2008. The
CA ratiocinated that the exemption of a family home from execution, attachment or forced
sale under Article 153 of the Family Code is not automatic and should accordingly be raised
and proved to the Sheriff prior to the execution, forced sale or attachment. The appellate court
noted that at no time did the petitioners raise the supposed exemption of the subject property
from execution on account of the same being a family home.
The petitioners then sought reconsideration of the said June 6, 2008 Decision but the same
was denied by the CA in its Resolution14 dated October 23, 2008.
Aggrieved, the petitioners filed the instant petition for review, praying for the cancellation
of TCT No. T-221755 (M). They insist that the execution sale that was conducted is a nullity
considering that the subject property is a family home. The petitioners assert that, contrary to
the disposition of the CA, a prior demonstration that the subject property is a family home is
not required before it can be exempted from execution.
In their Comment,15 Spouses Acero claimed that this petition ought to be denied on the
ground of forum-shopping as the issues raised had already been determined by the MTC in its
July 22, 1999 Decision on the complaint for ejectment filed by them, which had already become
final and executory following the petitioner’s failure to appeal the CA’s December 21, 2006
Decision affirming it.
Issues
The threshold issues for resolution are the following: (a) whether the petitioners are guilty
of forum-shopping; and (b) whether the lower courts erred in refusing to cancel Claudio’s
Torrens title TCT No. T-221755 (M) over the subject property.
The Court’s Ruling
First Issue: Forum-Shopping
On the first issue, we find that the petitioners are not guilty of forum-shopping.
There is forum-shopping when as a result of an adverse decision in one forum, or in
anticipation thereof, a party seeks a favorable opinion in another forum through means other
than an appeal or certiorari. Forum-shopping exists when two or more actions involve the
same transactions, essential facts, and circumstances; and raise identical causes of action,
subject matter, and issues.16
Forum-shopping exists where the elements of litis pendentia are present, and where a
final judgment in one case will amount to res judicata in the other. The elements of forum-
shopping are: (a) identity of parties, or at least such parties as would represent the same
interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and (c) identity of the two preceding particulars such that any
judgment rendered in the other action will, regardless of which party is successful, amount
to res judicata in the action under consideration.17
There is no identity of issues and reliefs prayed for in the ejectment case and in the action
to cancel TCT No. T-221755 (M). Verily, the primordial issue in the ejectment case is who
among the contending parties has a better right of possession over the subject property while
ownership is the core issue in an action to cancel a Torrens title.
It is true that the petitioners raised the issue of ownership over the subject property in the
ejectment case. However, the resolution thereof is only provisional as the same is solely for
the purpose of determining who among the parties therein has a better right of possession
over the subject property.
Accordingly, a judgment rendered in an ejectment case is not a bar to action between the
same parties respecting title to the land or building. Neither shall it be conclusive as to the
facts therein. This issue is far from being novel and there is no reason to depart from this
Court’s previous pronouncements. In Malabanan v. Rural Bank of Cabuyao, Inc.,18 this Court
had previously clarified that a decision in an ejectment case is not res judicata in an annulment
of title case and vice-versa given the provisional and inconclusive nature of the determination
of the issue of ownership in the former.
“Forum-shopping exists where the elements of litis pendentia are present, namely: (a)
identity of parties or at least such as representing the same interests in both actions; (b)
identity of rights asserted and reliefs prayed for, the relief being founded on the same facts;
and (c) the identity in the two cases should be such that the judgment that may be rendered
in one would, regardless of which party is successful, amounts to res judicata in the other.
Petitioner and respondent are the same parties in the annulment and ejectment cases.
The issue of ownership was likewise being contended, with same set of evidence being
presented in both cases. However, it cannot be inferred that a judgment in the ejectment case
would amount to res judicata in the annulment case, and vice-versa.
This issue is hardly a novel one. It has been laid to rest by heaps of cases iterating the
principle that a judgment rendered in an ejectment case shall not bar an action between the
same parties respecting title to the land or building nor shall it be conclusive as to the facts
therein found in a case between the same parties upon a different cause of action involving
possession.
It bears emphasizing that in ejectment suits, the only issue for resolution is the physical or
material possession of the property involved, independent of any claim of ownership by any
of the party litigants. However, the issue of ownership may be provisionally ruled upon for the
sole purpose of determining who is entitled to possession de facto. Therefore, the provisional
determination of ownership in the ejectment case cannot be clothed with finality.
Corollarily, the incidental issue of whether a pending action for annulment would abate
an ejectment suit must be resolved in the negative.
A pending action involving ownership of the same property does not bar the filing or
consideration of an ejectment suit, nor suspend the proceedings. This is so because an
ejectment case is simply designed to summarily restore physical possession of a piece of land
or building to one who has been illegally or forcibly deprived thereof, without prejudice to the
settlement of the parties’ opposing claims of juridical possession in appropriate
proceedings.”19 (citations omitted)
Second Issue: Nullification of TCT No. T-221755 (M)
Anent the second issue, this Court finds that the CA did not err in dismissing the
petitioners’ complaint for nullification of TCT No. T-221755 (M).
The subject property is a family home.
The petitioners maintain that the subject property is a family home and, accordingly, the
sale thereof on execution was a nullity. In Ramos v. Pangilinan,20 this Court laid down the rules
relative to exemption of family homes from execution:
“For the family home to be exempt from execution, distinction must be made as to what
law applies based on when it was constituted and what requirements must be complied with
by the judgment debtor or his successors claiming such privilege. Hence, two sets of rules are
applicable.
If the family home was constructed before the effectivity of the Family Code or before
August 3, 1988, then it must have been constituted either judicially or extra-judicially as
provided under Articles 225, 229-231 and 233 of the Civil Code. Judicial constitution of the
family home requires the filing of a verified petition before the courts and the registration of
the court’s order with the Registry of Deeds of the area where the property is located.
Meanwhile, extrajudicial constitution is governed by Articles 240 to 242 of the Civil Code and
involves the execution of a public instrument which must also be registered with the Registry
of Property. Failure to comply with either one of these two modes of constitution will bar a
judgment debtor from availing of the privilege.
On the other hand, for family homes constructed after the effectivity of the Family Code
on August 3, 1988, there is no need to constitute extrajudicially or judicially, and the
exemption is effective from the time it was constituted and lasts as long as any of its
beneficiaries under Art. 154 actually resides therein. Moreover, the family home should belong
to the absolute community or conjugal partnership, or if exclusively by one spouse, its
constitution must have been with consent of the other, and its value must not exceed certain
amounts depending upon the area where it is located. Further, the debts incurred for which
the exemption does not apply as provided under Art. 155 for which the family home is made
answerable must have been incurred after August 3, 1988.”21(citations omitted)
In the earlier case of Kelley, Jr. v. Planters Products, Inc.,22we stressed that:
“Under the Family Code, there is no need to constitute the family home judicially or
extrajudicially. All family homes constructed after the effectivity of the Family Code (August 3,
1988) are constituted as such by operation of law. All existing family residences as of August
3, 1988 are considered family homes and are prospectively entitled to the benefits accorded
to a family home under the Family Code.”23 (emphasis supplied and citation omitted)
The foregoing rules on constitution of family homes, for purposes of exemption from
execution, could be summarized as follows:
First, family residences constructed before the effectivity of the Family Code or before
August 3, 1988 must be constituted as a family home either judicially or extrajudicially in
accordance with the provisions of the Civil Code in order to be exempt from execution;
Second, family residences constructed after the effectivity of the Family Code on August
3, 1988 are automatically deemed to be family homes and thus exempt from execution from
the time it was constituted and lasts as long as any of its beneficiaries actually resides therein;
Third, family residences which were not judicially or extrajudicially constituted as a family
home prior to the effectivity of the Family Code, but were existing thereafter, are considered
as family homes by operation of law and are prospectively entitled to the benefits accorded to
a family home under the Family Code.
Here, the subject property became a family residence sometime in January 1987. There
was no showing, however, that the same was judicially or extrajudicially constituted as a family
home in accordance with the provisions of the Civil Code. Still, when the Family Code took
effect on August 3, 1988, the subject property became a family home by operation of law and
was thus prospectively exempt from execution. The petitioners were thus correct in asserting
that the subject property was a family home.
The family home’s exemption from
execution must be set up and proved
to the Sheriff before the sale of the
property at public auction.
Despite the fact that the subject property is a family home and, thus, should have been
exempt from execution, we nevertheless rule that the CA did not err in dismissing the
petitioners’ complaint for nullification of TCT No. T-221755 (M). We agree with the CA that the
petitioners should have asserted the subject property being a family home and its being
exempted from execution at the time it was levied or within a reasonable time thereafter. As
the CA aptly pointed out:
“In the light of the facts above summarized, it is evident that appellants did not assert their
claim of exemption within a reasonable time. Certainly, reasonable time, for purposes of the
law on exemption, does not mean a time after the expiration of the one-year period provided
for in Section 30 of Rule 39 of the Rules of Court for judgment debtors to redeem the property
sold on execution, otherwise it would render nugatory final bills of sale on execution and
defeat the very purpose of execution—to put an end to litigation. x x x.”24
The foregoing disposition is in accord with the Court’s November 25, 2005 Decision
in Honrado v. Court of Appeals,25 where it was categorically stated that at no other time can
the status of a residential house as a family home can be set up and proved and its exemption
from execution be claimed but before the sale thereof at public auction:
“While it is true that the family home is constituted on a house and lot from the time it is
occupied as a family residence and is exempt from execution or forced sale under Article 153
of the Family Code, such claim for exemption should be set up and proved to the Sheriff before
the sale of the property at public auction. Failure to do so would estop the party from later
claiming the exemption. As this Court ruled in Gomez v. Gealone:
Although the Rules of Court does not prescribe the period within which to claim
the exemption, the rule is, nevertheless, well-settled that the right of exemption is a
personal privilege granted to the judgment debtor and as such, it must be claimed not
by the sheriff, but by the debtor himself at the time of the levy or within a reasonable
period thereafter;
“In the absence of express provision it has variously held that claim (for
exemption) must be made at the time of the levy if the debtor is present, that
it must be made within a reasonable time, or promptly, or before the creditor
has taken any step involving further costs, or before advertisement of sale, or
at any time before sale, or within a reasonable time before the sale, or before
the sale has commenced, but as to the last there is contrary authority.”
In the light of the facts above summarized, it is self-evident that appellants did not
assert their claim of exemption within a reasonable time. Certainly, reasonable time,
for purposes of the law on exemption, does not mean a time after the expiration of
the one-year period provided for in Section 30 of Rule 39 of the Rules of Court for
judgment debtors to redeem the property sold on execution, otherwise it would
render nugatory final bills of sale on execution and defeat the very purpose of
execution—to put an end to litigation. We said before, and We repeat it now, that
litigation must end and terminate sometime and somewhere, and it is essential to an
effective administration of justice that, once a judgment has become final, the winning
party be not, through a mere subterfuge, deprived of the fruits of the verdict. We now
rule that claims for exemption from execution of properties under Section 12 of Rule
39 of the Rules of Court must be presented before its sale on execution by the
sheriff.”26 (citations omitted)
Reiterating the foregoing in Spouses Versola v. Court of Appeals,27 this Court stated that:
“Under the cited provision, a family home is deemed constituted on a house and lot from
the time it is occupied as a family residence; there is no need to constitute the same judicially
or extrajudicially.
The settled rule is that the right to exemption or forced sale under Article 153 of the
Family Code is a personal privilege granted to the judgment debtor and as such, it must be
claimed not by the sheriff, but by the debtor himself before the sale of the property at public
auction. It is not sufficient that the person claiming exemption merely alleges that such
property is a family home. This claim for exemption must be set up and proved to the
Sheriff. x x x.”28 (emphasis supplied and citations omitted)
Having failed to set up and prove to the sheriff the supposed exemption of the subject
property before the sale thereof at public auction, the petitioners now are barred from raising
the same. Failure to do so estop them from later claiming the said exemption.
Indeed, the family home is a sacred symbol of family love and is the repository of cherished
memories that last during one’s lifetime.29 It is likewise without dispute that the family home,
from the time of its constitution and so long as any of its beneficiaries actually resides therein,
is generally exempt from execution, forced sale or attachment.30
The family home is a real right, which is gratuitous, inalienable and free from attachment.
It cannot be seized by creditors except in certain special cases.31 However, this right can be
waived or be barred by laches by the failure to set up and prove the status of the property as
a family home at the time of the levy or a reasonable time thereafter.
In this case, it is undisputed that the petitioners allowed a considerable time to lapse
before claiming that the subject property is a family home and its exemption from execution
and forced sale under the Family Code. The petitioners allowed the subject property to be
levied upon and the public sale to proceed. One (1) year lapsed from the time the subject
property was sold until a Final Deed of Sale was issued to Claudio and, later, Araceli’s Torrens
title was cancelled and a new one issued under Claudio’s name, still, the petitioner remained
silent. In fact, it was only after the respondents filed a complaint for unlawful detainer, or
approximately four (4) years from the time of the auction sale, that the petitioners claimed
that the subject property is a family home, thus, exempt from execution.
For all intents and purposes, the petitioners’ negligence or omission to assert their right
within a reasonable time gives rise to the presumption that they have abandoned, waived or
declined to assert it. Since the exemption under Article 153 of the Family Code is a personal
right, it is incumbent upon the petitioners to invoke and prove the same within the prescribed
period and it is not the sheriff’s duty to presume or raise the status of the subject property as
a family home.
The petitioners’ negligence or omission renders their present assertion doubtful; it
appears that it is a mere afterthought and artifice that cannot be countenanced without doing
the respondents injustice and depriving the fruits of the judgment award in their favor. Simple
justice and fairness and equitable considerations demand that Claudio’s title to the property
be respected. Equity dictates that the petitioners are made to suffer the consequences of their
unexplained negligence.
WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The
assailed Decision dated June 6, 2008 of the Court of Appeals in CA-G.R. CV No. 79391, which
affirmed the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, in Civil Case
No. 1058-M-99 and dismissed the complaint for declaration of nullity of TCT No. 221755 (M)
and other documents, and the October 23, 2008 Resolution denying reconsideration, are
AFFIRMED.
SO ORDERED.