Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 104875 November 13, 1992
FLORANTE
F.
MANACOP, petitioner,
vs.
COURT OF APPEALS and F.F. CRUZ &
CO., INC., respondents.
MELO, J.:
Following the dismissal of his petition
for certiorari in C.A.-G.R. SP No. 23651 by the
Thirteenth Division of respondent Court
(Justice Buena (P), Gonzaga-Reyes and Abad
Santos, Jr., JJ.; Page 60, Rollo), petitioner airs
his concern over the propriety thereof by
claiming in the petition at hand that the
disposition, in practical effect, allows a writ
of preliminary attachment issued by the
court of origin against his corporation to be
implemented on his family home which is
ordinarily exempt from the mesne process.
Owing to the failure to pay the sub-contract
cost pursuant to a deed of assignment
signed between petitioner's corporation and
private respondent herein, the latter filed on
July 3, 1989, a complaint for a sum of money,
with a prayer for preliminary attachment,
against the former. As a consequence of the
order on July 28, 1989, the corresponding
writ for the provisional remedy was issued on
August 11, 1989 which triggered the
attachment of a parcel of land in Quezon City
owned by Manacop Construction President
Florante F. Manacop, herein petitioner.
In lieu of the original complaint, private
respondent
submitted
an
amended
complaint on August 18, 1989 intended to
substitute
Manacop
Construction
with
Florante F. Manacop as defendant who is
"doing business under the name and style of
F.F. Manacop Construction Co., Inc.". After the
motion for issuance of summons to the
substituted defendant below was granted,
petitioner filed his answer to the amended
complaint on November 20, 1989.
Petitioner's
Omnibus
Motion
filed
on
September 5, 1990 grounded on (1)
irregularity that attended the issuance of the
disputed writ inspite the absence of an
affidavit therefor; (2) the feasibility of
utilizing the writ prior to his submission as
party-defendant, and (3) exemption from
attachment of his family home (page 3,
Petition; page 8,Rollo), did not merit the

serious consideration of the court of origin.

This
nonchalant
response
constrained
petitioner to elevate the matter to
respondent court which, as aforesaid, agreed
with the trial court on the strength of the
ensuing observations:
Anent the petitioner's claim that the
writ of attachment was issued without
jurisdiction because of the lack of
supporting affidavit, We subscribe to
the recent ruling of the Highest
Tribunal that a verified statement
incorporated in the complaint without
a separate affidavit is sufficient and
valid to obtain the attachment (Nasser
vs. Court of Appeals, 191 SCRA 783).
In the case at bar, the original as well
as the amended complaint filed by
herein
private
respondent
were
verified, in substantial compliance
with the requirements of the law.
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 (Mondequillo 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
(Mondequillo
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
1

Memorandum of Authorities, p. 78).

(pp. 5-6, Decision; pp. 64-65, Rollo).

applied to the present inquiry is quite

enlightening:

The attempt to reconsider respondent court's

stance was to no avail (page 75, Rollo);
hence, the petition at bar.

It is incorrect to theorize that after an

action or proceeding has been
commenced and jurisdiction over the
person of the plaintiff has been vested
in the court, but before the acquisition
of jurisdiction over the person of the
defendant (either by service of
summons or his voluntary submission
to the court's authority), nothing can
be validly done by the plaintiff or the
court. It is wrong to assume that the
validity of acts done during this period
should be dependent on, or held in
suspension until, the actual obtention
of jurisdiction over the defendant's
person. The obtention by the court of
jurisdiction over the person of the
defendant is one thing; quite another
is the acquisition of jurisdiction over
the person of the plaintiff or over the
subject-matter or nature of the action,
or the res or object thereof.

Did respondent court err in dismissing the

challenge posed by petitioner against the
denial of his omnibus motion?
We are not ready to accept the negative
aspersions put forward by petitioner against
respondent court in the petition before Us.
Petitioner harps on the supposition that the
appellate court should not have pierced the
veil of corporate fiction because he is distinct
from the personality of his corporation and,
therefore, the writ of attachment issued
against the corporation cannot be used to
place his own family home in custodia legis.
This puerile argument must suffer rejection
since the doctrine in commercial law
adverted to and employed in exculpation by
petitioner, during the pendency of his
petition for certiorari in the appellate court
and even at this stage, may not be permitted
to simply sprout from nowhere for such
subtle experiment is prescribed by the
omnibus motion rule under Section 8, Rule
15 of the Revised Rules of Court, thus:
A motion attacking a pleading
or a proceeding shall include all
objections then available, and
all objections not so included
shall be deemed waived.
The spirit that surrounds the foregoing
statutory norm is to require the movant to
raise all available exceptions for relief during
a single opportunity so that multiple and
piece-meal objections may be avoided
(Rafanan, et al. vs. Rafanan, 98 Phil. 162
[1955]; 1 Martin, Rules of Court with Notes
and Comments, 1989 Rev. Edition, p. 492;
Savit vs. Rodas, 73 Phil. 310 [1941]).
Another mistaken notion entertained by
petitioner concerns the impropriety of issuing
the writ of attachment on August 11, 1989
when he "was not yet a defendant in this
case." This erroneous perception seems to
suggest that jurisdiction over the person of
petitioner, as defendant below, must initially
attach before the provisional remedy
involved herein can be requested by a
plaintiff. A contrario, Chief Justice Narvasa
obliterated
this
unfounded
assertion
in Davao Light and Power Co., Inc. vs. Court
of Appeals (204 SCRA [1991]) whose
dissertation on the subject as related and

An action or proceeding is commenced

by the filing of the complaint or other
initiatory pleading. By that act, the
jurisdiction of the court over the
subject matter or nature of the action
or proceeding is invoked or called into
activity, and it thus that the court
acquires over said subject matter or
nature of the action. And it is by that
self-same act of the plaintiff (or
petitioner) of filing the complaint (or
other appropriate pleading) by
which he signifies his submission to
the court's power and authority that
jurisdiction is acquired by the court
over his person. On the other hand,
jurisdiction over the person of the
defendant is obtained, as above
stated, by the service of summons or
other coercive process upon him or by
his voluntary submission to the
authority of the court.
The events that follow the filing of the
complaint as a matter of routine are
well known. After the complaint is
filed,
summons
issues
to
the
defendant, the summons is then
transmitted to the sheriff, and finally,
service of the summons is effected on
the defendant in any of the ways
authorized by the Rules of Court.
There
is
thus
ordinarily
some
appreciable interval of time between
the day of filing of the complaint and
the day of service of summons of the
defendant.
During
this
period,
different acts may be done by the
2

plaintiff or by the Court, which are of

unquestionable validity and propriety.
Among these, for example, are the
appointment
of
a
guardian ad
litem, the grant of authority to the
plaintiff to prosecute the suit as a
pauper litigant, the amendment of the
complaint by the plaintiff as a matter
of right without leave of court,
authorization by the Court of service
of summons by publication, the
dismissal of the action by the plaintiff
on mere notice.
This, too, is true with regard to the
provisional remedies of preliminary
attachment, preliminary injunction,
receivership or replevin. They may be
validly and properly applied for and
granted even before the defendant is
summoned or heard from.
A preliminary attachment may be
defined, paraphrasing the Rules of
Court, as the provisional remedy in
virtue of which a plaintiff or other
proper
party
may,
at
the
commencement of the action or at any
time thereafter, have the property of
the adverse party taken into the
custody of the court as security for the
satisfaction of any judgment that may
be recovered. It is a remedy which is
purely statutory in respect of which
the law requires a strict construction
of the provisions granting it. Withal no
principle, statutory or jurisprudential,
prohibits its issuance by any court
before acquisition of jurisdiction over
the person of the defendant.
Rule in fact speaks of the grant of the
remedy "at the commencement of the
action or at any time thereafter," The
phrase, "at the commencement of the
action," obviously refers to the date of
the filing of the complaint which, as
above pointed out, is the date that
marks "the commencement of the
action; and the reference plainly is to
a time before summons is served on
the defendant, or even before
summons issues. What the rule is
saying quite clearly is that after an
action is properly commenced by
the filing of the complaint and the
payment of all requisite docket and
other fees the plaintiff may apply
for and obtain a writ of preliminary
attachment upon fulfillment of the
pertinent requisites laid down by law,
and that he may do so at any time,
either before or after service of
summons on the defendant. And this

indeed, has been the immemorial

practice sanctioned by the courts: for
the plaintiff or other proper party to
incorporate
the
application
for
attachment in the complaint or other
appropriate pleading (counterclaim,
cross-claim, third-party claim) and for
the Trial Court to issue the writ exparte at
the
commencement
application otherwise sufficient in form
and substance. (at pp. 347-350.)
Petitioner seeks to capitalize on the legal
repercussion that ipso facto took place when
the complaint against him was amended. He
proffers the idea that the extinction of a
complaint via a superseding one carries with
it the cessation of the ancilliary writ of
preliminary attachment. We could have
agreed with petitioner along this line had he
expounded the adverse aftermath of an
amended complaint in his omnibus motion.
But the four corners of his motion in this
respect filed on September 5, 1990 are
circumscribed by other salient points set
forth by Us relative to the propriety of the
assailed writ itself. This being so, petitioner's
eleventh hour effort in pressing a crucial
factor for exculpation must be rendered
ineffective and barred by the omnibus
motion rule.
Lastly, petitioner is one of the belief that his
abode at Quezon City since 1972 is a family
home within the purview of the Family Code
and therefore should not have been
subjected to the vexatious writ. Yet,
petitioner must concede that respondent
court properly applied the discussion
conveyed by Justice Gancayco in this regard
when he spoke for the First Division of this
Court in Modequillo vs. Breva (185 SCRA 766
[1990]) that:
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 non-payment 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
3

rendered service for the construction

of the building.

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. (at pp. 771-772).

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 constituted as a
family home whether judicially
or extrajudicially under the Civil
Code. It became a family home
by operation of law 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

Verily, according to petitioner, his debt was

incurred in 1987 or prior to the effectivity on
August 3, 1988 of the Family Code (page 17,
petition; page 22, Rollo). This fact alone will
militate heavily against the so-called
exemption by sheer force of exclusion
embodied under paragraph 2, Article 155 of
the Family Code cited inModequillo.
WHEREFORE,
the
petition
is
hereby
DISMISSED, with costs against petitioner.
SO ORDERED.
Bidin, Davide and Romero, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 108366 February 16, 1994
JOHN
PAUL
E.
FERNANDEZ,
ET
AL., petitioners,
vs.
THE COURT OF APPEALS and CARLITO S.
FERNANDEZ, respondents.
Erlinda B. Espejo for petitioners.
C.B. Carbon
respondent.

&

Associates

for

private

PUNO, J.:
The legal dispute between the parties began
when the petitioners filed Civil Case No. Q45567 for support against the private
respondent before the RTC of Quezon City.
The complaint was dismissed on December
9, 1986 by Judge Antonio P. Solano, 1 who
found that "(t)here is nothing in the material
allegations in the complaint that seeks to
4

compel (private respondent) to recognize or

acknowledge (petitioners) as his illegitimate
children," and that there was no sufficient
and competent evidence to prove the
petitioners filiation. 2
Petitioners plodded on. On February 19,
1987, they file the case at bench, another
action for recognition and support against
the private respondent before another
branch of the RTC of Quezon City, Branch 87.
The case was docketed as Civil Case No. Q50111.
The evidence shows that VIOLETA P.
ESGUERRA, single, is the mother and
guardian ad litem of the two petitioners,
CLARO ANTONIO FERNANDEZ and JOHN PAUL
FERNANDEZ, met sometime in 1983, at the
Meralco Compound tennis courts. A Meralco
employee and a tennis enthusiast, Carlito
used to spend his week-ends regularly at
said courts, where Violeta's father served as
tennis instructor.
Violeta pointed to Carlito as the father of her
two sons. She claimed that they started their
illicit sexual relationship six (6) months after
their first meeting. The tryst resulted in the
birth of petitioner Claro Antonio on March 1,
1984, and of petitioner John Paul on not know
that Carlito was married until the birth of her
two children. She averred they were married
in civil rites in October, 1983. In March, 1985,
however, she discovered that the marriage
license which they used was spurious.
To bolster their case, petitioners presented
the following documentary evidence: their
certificates
of
live
birth,
identifying
respondent Carlito as their father; the
baptismal certificate of petitioner Claro
which also states that his father is
respondent Carlito; photographs of Carlito
taken during the baptism of petitioner Claro;
and pictures of respondent Carlito and Claro
taken at the home of Violeta Esguerra.
Petitioners likewise presented as witnesses,
Rosario
Cantoria, 3 Dr.
Milagros
4
5
Villanueva, Ruby Chua Cu, and Fr. Liberato
Fernandez. 6 The first three witnesses told
the trial court that Violeta Esguerra had, at
different times,7 introduced the private
respondent to them as her "husband". Fr.
Fernandez, on the other hand, testified that
Carlito was the one who presented himself as
the father of petitioner Claro during the
latter's baptism.
In defense, respondent Carlito denied
Violeta's allegations that he sired the two
petitioners. He averred he only served as one
of the sponsors in the baptism of petitioner

Claro. This claim was corroborated by the

testimony of Rodante Pagtakhan, an
officemate of respondent Carlito who also
stood as a sponsor of petitioner Claro during
his baptism. The Private respondent also
presented as witness, Fidel Arcagua, a waiter
of the Lighthouse Restaurant. He disputed
Violeta's allegation that she and respondent
Carlito frequented the said restaurant during
their affair. Arcagua stated he never saw
Violeta Esguerra and respondent Carlito
together at the said restaurant. Private
respondent also declared he only learned he
was named in the birth certificates of both
petitioners as their father after he was sued
for
support
in
Civil
Case
No.
Q-45567.
Based on the evidence adduced by the
parties, the trial court ruled in favor of
petitioners, viz.:
In view of the above, the Court
concludes and so holds that the
plaintiffs minors (petitioners herein)
are entitled to the relief's prayed for in
the complaint. The defendant (herein
private respondent) is hereby ordered
to recognize Claro Antonio Carlito
Fernandez, now aged 6, and John Paul
Fernandez, now aged 41/2 as his sons.
As the defendant has admitted that he
has a supervisory job at the Meralco,
he shall give the plaintiffs support in
the amount of P2,000 each a month,
payment to be delivered to Violeta
Esguerra, the children's mother and
natural
guardian,
with
arrears
reckoned as of the filing of the
complaint on February 19, 1987.
SO ORDERED.
On appeal, the decision was set aside and
petitioners complaint dismissed by the
respondent Court of Appeals 8in its impugned
decision, dated October 20, 1992. It found
that the "proof relied upon by the (trial) court
(is) inadequate to prove the (private
respondent's) paternity and filiation of
(petitioners)." It further held that the
doctrine of res judicata applied because of
the dismissal of the petitioners complaint in
Civil Case No. Q-45567. Petitioners' motion
for reconsideration was denied on December
22, 1992.
Petitioners now contend that the respondent
appellate court erred in: (1) not giving full
faith and credit to the testimony in of Violeta
Esguerra; (2) not giving weight and value to
the testimony of Father Liberato Fernandez;
(3) not giving probative value to the
numerous pictures of respondent Carlito
5

Fernandez taken during the baptismal

ceremony and inside the bedroom of Violeta
Esguerra; (4) not giving probative value to
the birth certificates of petitioners; (5) giving
so much credence to the self-serving and
incredible testimony of respondent Carlito
Fernandez; and (6) holding that the principle
of res judicata is applicable in the case at
bar.
We find no merit in the petition.
The rule is well-settled that findings of facts
of the Court of Appeals may be reviewed by
this
court
only
under
exceptional
circumstances. One such situation is when
the findings of the appellate court clash with
those of the trial court as in the case at
bench. It behooves us therefore to exercise
our extraordinary power, and settle the issue
of whether the ruling of the appellate court
that private respondent is not the father of
the petitioners is substantiated by the
evidence on record.
We shall first examine the documentary
evidence offered by the petitioners which the
respondent court rejected as insufficient to
prove their filiation. Firstly, we hold that
petitioners cannot rely on the photographs
showing the presence of the private
respondent in the baptism of petitioner Claro
(Exh. "B-8", Exh. "B-12", Exh. "H" and Exh.
"I"). These photographs are far from proofs
that private respondent is the father of
petitioner Claro. As explained by the private
respondent, he was in the baptism as one of
the sponsors of petitioner Claro. His
testimony was corroborated by Rodante
Pagtakhan.
Secondly, the pictures taken in the house of
Violeta
showing
private
respondent
showering affection to Claro fall short of the
evidence required to prove paternity
(Exhibits "B", "B-1", "B-2", "B-7", "B-14" and
"B-15"). As we held in Tan vs. Trocio, 192
SCRA 764, viz:
. . . The testimonies of complainant
and witness Marilou Pangandaman,
another maid, to show unusual
closeness between Respondent and
Jewel, like playing with him and giving
him paternity. The same must be said
of . . . (the) pictures of Jewels and
Respondent showing allegedly their
physical likeness to each other. Said
evidence is inconclusive to prove
paternity and much less would prove
violation of complaint's person and
honor. (Emphasis supplied)

Thirdly, the baptismal certificates (Exh. "D")

of
petitioner
Claro
naming
private
respondent as his father has scant
evidentiary value. There is no showing that
private respondent participated in its
preparation. On this score, we held
in Berciles vs. Systems, et al. 128 SCRA 53
(1984):
As to the baptismal certificates, Exh.
"7-A", the rule is that although the
baptismal record of a natural child
describes her as a child of the record
the decedent had no intervening, the
baptismal record cannot be held to be
a voluntary recognition of parentage. .
. . The reason for this rule that
canonical records do not constitute the
authentic document prescribed by
Arts. 115 and 117 to prove the
legitimate filiation of a child is that
such canonical record is simply proof
of the only act to which the priest may
certify by reason of his personal
knowledge, an act done by himself or
in his presence, like the administration
of the sacrament upon a day stated; it
is no proof of the declarations in the
record with respect to the parentage
of the child baptized, or of prior and
distinct facts which require separate
and concrete evidence.
In Macandang vs. Court of Appeals, 100
SCRA 73 (1980), we also ruled that while
baptismal certificates may be considered
public documents, they can only serve as
evidence of the administration of the
sacraments on the dates so specified. They
are not necessarily competent evidence of
the veracity of entries therein with respect to
the child's paternity.
Fourth, the certificates of live birth (Exh. "A";
Exh. "B") of the petitioners identifying
private respondent as their father are not
also competent evidence on the issue of
their paternity. Again, the records do no show
that private respondent had a hand in the
preparation of said certificates. In rejecting
these certificates, the ruling of the
respondent court is in accord with our
pronouncement in Roces vs. Local Civil
Registrar, 102 Phil. 1050 (1958),viz:
. . . Section 5 of Act No. 3793 and
Article 280 of the Civil Code of the
Philippines explicity prohibited, not
only the naming of the father or the
child born outside wedlock, when the
birth certificates, or the recognition, is
not filed or made by him, but, also, the
statement of any information or
circumstances by which he could be
6

identified. Accordingly, the Local Civil

Registrar had no authority to make or
record the paternity of an illegitimate
child upon the information of a third
person and the certificate of birth of
an illegitimate child, when signed only
by the mother of the latter, is
incompetent evidence of fathership of
said child. (Emphasis supplied)
We reiterated this rule in Berciles, op.
cit., when we held that "a birth
certificate no signed by the alleged
father therein
indicated
is not
competent evidence of paternity."
We have also reviewed the relevant
testimonies of the witnesses for the
petitioners and we are satisfied that the
respondent
appellate
court
properly
calibrated their weight. Petitioners capitalize
on the testimony of Father Liberato
Fernandez who solemnized the baptismal
ceremony of petitioner Claro. He declared on
the witness stand:
Q Do you recall Father, whether on
that occasion when you called for the
father and the mother of the child,
that both father and mother were
present?
A Yes.
Q Would you able to recognized the
father and the mother who were
present at that time?

Q Please point to the court?

the

you

Q What was the answer of Fernandez?

A Yes, I do.
Q I just want to be sure, Father, will
you please look at the defendant
again. I want to be sure if he is the
person who appeared before you on
that occasion?
A I am sure.

Q When was the, approximately, when

you were first shown this picture by
Violeta Esguerra?
A I cannot recall.
Q At least the month and the year?
A It must be in 1986.
Q What month in 1986.
A It is difficult. . .
Q When was the first time you know
you are going to testify here?
A Let us see, you came there two
times and first one was you want to
get a baptismal certificate and then
the second time was I asked you for
what is this? And you said it is for the
court.
Q On the second time that Ms. Violeta
Esguerra went to your place, you were
already informed that you will testify
here before this Honorable Court?

Q And you were informed by this Ms.

Violeta Esguerra that this man wearing
the blue T-shirt is the father?
A Yes, sir.

Q For instance, just give us more

specifically what question do you
remember having asked him?
A Yes, like for example, do
renounce Satan and his works?

However, on cross examination, Father

Fernandez admitted that he has to be
shown a picture of the private
respondent by Violeta Esguerra to
recognize the private respondent, viz:

A Yes.

A Yes.

A There (witness pointing to

defendant, Carlito Fernandez).

(TSN, May 23, 1986, pp. 14-16)

Q So, it was Violeta Esguerra who. . .

A Yes.
(TSN, May 23, 1986, pp. 18 to 22)
Indeed, there is no proof that Father
Fernandez is a close friend of Violeta
Esguerra and the private respondent which
should
render
unquestionable
his
identification of the private respondent
during petitioner Claro's baptism. In the
absence of this proof, we are not prepared to
concede that Father Fernandez who officiates
numerous baptismal ceremonies day in and
day out can remember the parents of the
children he has baptized.
7

We cannot also disturb the findings of the

respondent court on the credibility of Violeta
Esguerra. Her testimony is highly suspect as
it is self-serving and by itself, is insufficient
to prove the paternity of the petitioners.
We shall not pass upon the correctness of the
ruling of the respondent appellate court
applying the doctrine of res judicata as
additional reason in dismissing petitioners
action for recognition and support. It is
unnecessary considering our findings that
petitioners evidence failed to substantiate
their cause of action.
IN
VIEW
WHEREOF,
the
petition
is
DISMISSED and
the
Decision
of
the
respondent court in CA-G.R. CV No. 29182 is
AFFIRMED. Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 143256

August 28, 2001

RODOLFO FERNANDEZ and MERCEDES

CARANTO FERNANDEZ, HUSBAND and
WIFE, EDDIE C. FERNANDEZ and LUZ
FERNANDEZ,
SPOUSES, petitioners,
vs.
ROMEO
FERNANDEZ,
POTENCIANO
FERNANDEZ, FRANCISCO FERNANDEZ,
JULITA
FERNANDEZ,
WILLIAM
FERNANDEZ,
MARY
FERNANDEZ,
ALEJANDRO
FERNANDEZ,
GERARDO
FERNANDEZ, RODOLFO FERNANDEZ and
GREGORIO FERNANDEZ, respondents.
GONZAGA-REYES, J.:
Before Us is a petition for review on certiorari
assailing the decision1 of the respondent
Court of Appeals dated December 22, 1999
affirming the decision2 of the Regional Trial
Court Branch 40, Dagupan City in an action
for nullity of contracts, partition, recovery of
possession and damages in favor of
plaintiffs-appellees, herein respondents.
The facts as found by the respondent Court
of Appeals, are as follows:3
"The late Spouses Dr. Jose K.
Fernandez, and Generosa A. de
Venecia were the registered owners of

a parcel of land located at Dagupan

City covered by TCT No. T-9267 (525)
consisting of 194 sq. meters, and the
two-storey
building
constructed
thereon covered by Tax Declaration
22-592-1. It is undisputed that
Generosa gave birth to a baby boy
named Rogelio who died when he was
only twelve (12) years old as paralytic.
In the testimony of Romeo Fernandez
(TSN, Aug. 31, 1994, pp. 9-14) it was
revealed that the late Spouses being
childless by the death of their son,
purchased from a certain Miliang for
P20.00 a one (1) month baby boy. The
boy being referred to was later on
identified as Rodolfo Fernandez, the
herein appellant. Appellant was taken
care of by the couple and was sent to
school
and
became
a
dental
technician. He lived with the couple
until they became old and disabled.
On July 20, 1982, Jose K. Fernandez
died thereby leaving his wife Generosa
A. de Venecia and Rodolfo Fernandez
and an estate consisting of the
following:
(a) "A parcel of land (Lot 9132,
before Lot No. 444-C, of the
Cadastral Survey of Dagupan,
Cadastral Case No. 41, G.L.R.O.
Cadastral Record No. 925),
situated in the Barrio of Pantal,
City of Dagupan. Bounded on
the NE. by Lot No. 447; on the
SE. by Lot No. 9134; on the SW.
by the Arellano Street; and on
the NW. by Lot No. 9131.
Containing an area of One
Hundred Ninety Four (194)
square meters, more or less.
Covered by Transfer Certificate
of Title No. 525 (T-9267)
Pangasinan Registry of Deeds."
(b) "A two (2) storey residential
building made of concrete and
wood, G. I. roofing with a floor
area of 154 square meters and
126 square meters of the first
and second floor, respectively.
Declared under Tax Decl. No.
22- 592-1 and assessed therein
at P26,000.00."
On August 31, 1989, appellant and Generosa
de Venecia executed a Deed of Extra-judicial
Partition
dividing
and
allocating
to
themselves the following:
To: Generosa de Venecia Vda. De
Fernandez
8

(a) 119.5 sq. m. located on

southwestern portion of the land;

the

(b) Whole residential house abovementioned;

To: Rodolfo V. Fernandez
74.5 square meters to be taken on the
northeastern portion of the land.
On the same day, Generosa de
Venecia executed a Deed of Absolute
Sale in favor of Eddie Fernandez,
appellant's son over the following:
"A portion of One Hundred
Nineteen and One-Half (119.5)
Square meters including the
building and/or all existing
thereon to be taken from the
southwestern portion of the
parcel of land described as
follows, to wit:
'A parcel of land (Lot No. 9132,
before Lot No. 444-C, of the
Cadastral Survey of Dagupan,
Cadastral Case No. 41, G.L.R.O.
Cadastral Record No. 925),
situated in the Barrio of Pantal,
City of Dagupan. Bounded on
the NE. by Lot No. 447; on the
SE by Lot No. 9134; on the SW.
by the Arellano Street; and on
the NW. by Lot No. 9131.
Containing an area of One
Hundred and Ninety-Four (194),
Square Meters, more or less,
covered
by
TRANSFER
CERTIFICATE OF TITLE NO. 525
(T-9267) Pangasinan Registry
of Deeds" (Exh. "8", Exhibits for
the Defendants)
After learning the transaction, Romeo,
Potenciano, Francisco, Julita, William,
Mary, Alejandro, Gerardo, Rodolfo and
Gregorio, all surnamed Fernandez,
being nephews and nieces of the
deceased Jose K. Fernandez, their
father Genaro being a brother of Jose,
filed on September 21, 1994, an action
to declare the Extra-Judicial Partition
of Estate and Deed of Sale void ab
initio (docketed as Civil Case No. 9400016-D).
The complaint alleged that defendants
(herein appellants), motivated by
unmitigated greed, deliberate and
malicious acts of depriving the plaintiff
and other heirs (herein appellees) of

the deceased spouses, without basis

of heirship or any iota of rights to
succession or inheritance, taking
advantage of the total physical and
mental incapacity of the deceased
Generosa de Venecia aggravated by
unlawful
scheme
confederated,
colluded and conspired with each
other in causing the fake, simulated
grossly
inauthentic
contracts
purporting to be executed on August
31, 1989 and jointly on the same date,
caused the execution of the deed of
absolute sale purportedly signed by
Generosa de Venecia covering the
same property described in the deed
of extra-judicial partition and by virtue
of the said acts, appellants were able
to secure new land titles in their favor
(Records,
pp.
3-4,
Complaint).
Appellees thus prayed that the Deed
of Extra-judicial Partition, Deed of
Absolute Sale and Transfer Certificate
of Title No. 54641 be declared void
from the beginning.
Significantly,
in
defendants alleged:

their

answer,

"16. That the deceased Sps.

Jose K. Fernandez and Generosa
were husband and wife blessed
with one child the herein
defendant
Rodolfo
V.
Fernandez whom
they
acknowledged
during
their
lifetime. (italics supplied)
18.
That
the
Deed
of
Extrajudicial Partition and Deed
of Absolute Sale executed by
the late Generosa de Venecia
and
defendant
Rodolfo
V.
Fernandez which are now in
question were all made with the
full knowledge, consent and
approval of the parties thereto
and for value." (Records, pp. 2021, Answer)."
On May 10, 1996, the Regional Trial Court
rendered a decision in favor of the plaintiffs,
the dispositive portion reads: 4
"WHEREFORE, judgment is hereby
rendered in favor of plaintiffs and
against the defendants;
1. Declaring the Deed of Extra-Judicial
Partition dated August 31, 1989 (Exh.
"3 ), the Deed of Absolute Sale dated
August 31, 1989 (Exh. 8"), the TCT No.
54641, and the TCT No. 54693 null
and void;
9

2. Ordering
the
defendants
to
reconvey to, and to peacefully
surrender
to
the
plaintiffs
the
possession of the house and lot in
question;
3. Ordering the defendants, jointly and
severally to pay to plaintiffs the
following:
(a) P50,000.00 as compensatory
damages;
(b)
P100,000.00
damages;
(c) P20,000.00
fees; and

as

as

moral

attorney's

(d) P2,000.00 as litigation costs.

SO ORDERED."
In so ruling, the trial court found that
defendant Rodolfo Fernandez was not a
legitimate nor a legally adopted child of
spouses Dr. Jose Fernandez and Generosa de
Venecia Fernandez, hence Rodolfo could not
inherit from the spouses. Rodolfo's claim as a
son of the deceased spouses Fernandez was
negated by the fact that (1) he only reached
high school and was told to stop studying so
that he could help in the clinic of Dr.
Fernandez, (2) he failed to present any birth
certificate, (3) the book entitled Fercolla clan
which was compiled and edited by respected
people such as Ambassador Armando
Fernandez, Justice Jorge Coquia and Teresita
Coquia-Sison, showed the geneology of the
family of Dr. Jose and Generosa Fernandez
without a child; a pedigree may be admitted
in evidence to prove the facts of genealogy
and that entries in a family bible or other
family books or charts, engravings or rings,
family portraits and the like, may be received
as evidence of pedigree,5 (4) the certification
issued by the Records Management and
Archives Office that there was no available
information about the birth of petitioner
Rodolfo to the spouses Fernandez, (5) the
application of Dr. Jose Fernandez for backpay
certificate naming petitioner Rodolfo as his
son was doubtful considering that there were
blemishes or alteration in the original copy;
(6) that Rodolfo's baptismal certificate was
spurious and falsified since there were no
available records of baptism with the parish
from June 7, 1930 to August 8, 1936, while
Rodolfo's baptismal certificate which was
issued in 1989 showed that he was baptized
on November 24, 1934. The court found that
the extra-judicial partition and the deed of
absolute sale were prepared and executed

under abnormal, unusual and irregular

circumstances
which
rendered
the
documents null and void.
Defendants Rodolfo Fernandez
et. al
appealed to the respondent Court of Appeals
which affirmed the trial court's judgment in
its assailed decision dated December 22,
1999.
In resolving the appeal, the respondent court
delved into the legitimacy of defendantappellant Rodolfo Fernandez' filiation with
the deceased spouses. It found that
appellants' evidence which consisted of a
certificate of baptism stating that he was a
child of the spouses Fernandez and the
application for recognition of rights to back
pay under RA 897 filed by Dr. Jose Fernandez,
wherein the latter referred to Rodolfo as his
son, did not acquire evidentiary weight to
prove his filiation. The appellate court
concluded that while baptismal certificates
may be considered public documents, they
were
evidence
only
to
prove
the
administration of the sacraments on the
dates therein specified, but not the veracity
of the statements or declarations made
therein with respect to his kinsfolk; that while
the application for back pay was a public
document, it was not executed to admit the
filiation of Jose K. Fernandez with Rodolfo V.
Fernandez, the herein appellant; that the
public document contemplated in Article 172
of the Family Code referred to the written
admission of filiation embodied in a public
document purposely executed as an
admission of filiation and not as obtaining in
this case wherein the public document was
executed as an application for the
recognition of rights to back pay under
Republic Act No. 897.
Appellants Rodolfo Fernandez et al filed their
motion for reconsideration which was denied
in a resolution dated May 17, 2000.6
Rodolfo Fernandez et al filed the instant
petition for review with the following issues:
I
THE COURT OF APPEALS ERRED IN
AFFIRMING THE JUDGMENT OF THE
TRIAL
COURT
ORDERING
THE
DEFENDANTS, PETITIONERS HEREIN,
TO RECONVEY TO, AND PEACEFULLY
SURRENDER TO THE PLAINTIFFS,
RESPONDENTS
HEREIN,
THE
POSSESSION OF THE HOUSE AND LOT
IN QUESTION BECAUSE THE SAID
ORDER IS PALPABLY CONTRARY TO THE
ADMITTED FACTS THE LAW AND
10

JURISPRUDENCE, FOR THE FOLLOWING

REASONS:
(a) THE HOUSE AND LOT IN
QUESTION ARE ADMITTED BY
THE PARTIES TO BE CONJUGAL
PROPERTIES OF THE SPOUSES
DR. JOSE K. FERNANDEZ AND
GENEROSA DE VENECIA, AND
(b) RESPONDENTS, WHO ARE
NOT RELATED TO GENEROSA DE
VENECIA BY CONSANGUINITY,
ARE NOT HER INTESTATE HEIRS
AND CANNOT SUCCEED AB
INTESTATO TO HER INTESTATE
ESTATE.
II
THE COURT OF APPEALS ERRED IN
AFFIRMING THE JUDGMENT OF THE
TRIAL COURT DECLARING (1) THE
DEED OF EXTRA-JUDICIAL PARTITION
DATED AUGUST 31, 1989 (EXH. '3'),
THE DEED OF ABSOLUTE SALE ALSO
DATED AUGUST 31, 1989 (EXH. '8'),
TCT NO. 54641, AND TCT NO. 54693
NULL AND VOID FOR THE FOLLOWING
REASONS:
(a) IT HAS NO FACTUAL BASIS
DULY ESTABLISHED BY THE
EVIDENCE ON RECORD, AND
(b) RESPONDENTS, NOT BEING
PARTIES TO THE QUESTIONED
DEEDS, HAVE NO PERSONALITY
TO CONTEST THE VALIDITY OF
SAID DOCUMENTS.
III
THE COURT OF APPEALS ERRED IN
AFFIRMING
THE
TRIAL
COURT'S
FINDING
THAT
THE
PETITIONER
RODOLFO FERNANDEZ WAS NOT THE
CHILD OF SPOUSES DR. JOSE K.
FERNANDEZ AND GENEROSA DE
VENECIA BECAUSE
(a)
THE
FILIATION
OF
PETITIONER
RODOLFO
FERNANDEZ COULD NOT BE
COLLATERALLY ATTACKED IN AN
ACTION FOR DECLARATION OF
NULLITY
OF
DOCUMENTS,
PARTITION,
RECOVERY
OF
POSSESSION AND DAMAGES,
AND;
(b) THE DECISION AS AFFIRMED
BY THE COURT OF APPEALS DID

NOT
DECLARE
IN
THE
DISPOSITIVE PORTION THEREOF
THAT PETITIONER RODOLFO
FERNANDEZ IS NOT THE CHILD
OF
SPOUSES
DR.
JOSE
FERNANDEZ AND GENEROSA
FERNANDEZ.
IV
THE COURT OF APPEALS ERRED IN
AFFIRMING THE AWARD OF DAMAGES
AND ATTORNEY'S FEES TO THE
RESPONDENTS, THERE BEING NO
FACTUAL BASIS IN THE AFFIRMED
DECISION TO JUSTIFY SUCH AWARD.
The principal issue for resolution in this case
concerns the rights of the parties to the
conjugal property of the deceased spouses
Fernandez.
Petitioners allege that the respondent court
found the extra-judicial partition executed by
petitioner Rodolfo Fernandez and Generosa
Fernandez, widow of Dr. Jose Fernandez, null
and void because the former allegedly failed
to prove legitimate filiation to his putative
father, the late Dr. Jose Fernandez.
Petitioners, contend, however, that the
burden of proof lies with the respondents
because they were the ones contesting the
filiation of Rodolfo Fernandez. They insist
that both lower courts had no power to pass
upon the matter of filiation because it could
not be collaterally attacked in the present
action but in a separate and independent
action directly impugning such filiation.
We are not persuaded.
It must be noted that the respondents'
principal action was for the declaration of
absolute nullity of two documents, namely:
deed of extra-judicial partition and deed of
absolute sale, and not an action to impugn
one's legitimacy. The respondent court ruled
on the filiation of petitioner Rodolfo
Fernandez in order to determine Rodolfo's
right to the deed of extra-judicial partition as
the alleged legitimate heir of the spouses
Fernandez. While we are aware that one's
legitimacy can be questioned only in a direct
action seasonably filed by the proper party,
this doctrine has no application in the instant
case considering that respondents' claim was
that petitioner Rodolfo was not born to the
deceased spouses Jose and Generosa
Fernandez; we do not have a situation
wherein they (respondents) deny that
Rodolfo was a child of their uncle's wife. The
case
of Benitez-Badua
vs.
Court
of
Appeals,7 which has a similar factual
backdrop is instructive:
11

"A careful reading of the above

articles8 will show that they do not
contemplate a situation, like in the
instant case, where a child is alleged
not to be the child of nature or
biological child of a certain couple.
Rather, these articles govern a
situation where a husband (or his
heirs) denies as his own a child of his
wife. Thus, under Article 166, it is the
husband
who
can
impugn
the
legitimacy of said child by proving: (1)
it was physically impossible for him to
have sexual intercourse, with his wife
within the first 120 days of the 300
days which immediately preceded the
birth of the child; (2) that for biological
or other scientific reasons, the child
could not have been his child; (3) that
in case of children conceived through
artificial insemination, the written
authorization or ratification by either
parent was obtained through mistake,
fraud, violence, intimidation or undue
influence. Articles 170 and 171
reinforce this reading as they speak of
the prescriptive period within which
the husband or any of his heirs should
file
the
action
impugning
the
legitimacy of said child. Doubtless
then, the appellate court did not err
when it refused to apply these articles
to the case at bench. For the case at
bench is not where the heirs of the
late Vicente are contending that
petitioner is not his child by Isabel.
Rather, their clear submission is that
petitioner was not born to Vicente and
Isabel. Our ruling in Cabatbat-Lim vs.
Intermediate Appellate Court, 166
SCRA 451, 457 cited in the impugned
decision is apropos, viz:
"Petitioners' recourse to Art.
263 of the New Civil Code (now
Art. 170 of the Family Code) is
not well taken. This legal
provision refers to an action to
impugn
legitimacy.
It
is
inapplicable
to
this
case
because this is not an action to
impugn the legitimacy of a
child, but an action of the
private respondents to claim
their inheritance as legal heirs
of their childless deceased aunt.
They
do
not
claim
that
petitioner Violeta Cabatbat Lim
is an illegitimate child of the
deceased, but that she is not
the decedent's child at all.
Being neither legally adopted
child, nor an acknowledged
natural child, nor a child by

legal
fiction
of
Esperanza
Cabatbat, Violeta is not a legal
heir of the deceased.""
Thus, it is necessary to pass upon the
relationship of petitioner Rodolfo Fernandez
to the deceased spouses Fernandez for the
purpose of determining what legal right
Rodolfo has in the property subject of the
extra-judicial partition. In fact, the issue of
whether or not Rodolfo Fernandez was the
son of the deceased spouses Jose Fernandez
and Generosa de Venecia was squarely
raised by petitioners in their pre-trial
brief9 filed before the trial court, hence they
are now estopped from assailing the trial
court's ruling on Rodolfo's status.
We agree with the respondent court when it
found that petitioner Rodolfo failed to prove
his filiation with the deceased spouses
Fernandez. Such is a factual issue which has
been thoroughly passed upon and settled
both by the trial court and the appellate
court. Factual findings of the Court of
Appeals are conclusive on the parties and
not reviewable by this Court and they carry
even more weight10 when the Court of
Appeals affirms the factual findings of the
trial court.11 We accordingly find no cogent
reason to disagree with the respondent
court's evaluation of the evidence presented,
thus:12
"The
Records
Management
and
Archives Office is bereft of any records
of the birth of appellant Rodolfo
Fernandez. On October 11, 1995, it
issued a certification worded as
follows:
"This is to certify that the
Register of Births for the
Municipality
of
Dagupan,
Pangasinan in the year 1984 is
not on file with the National
Archives, hence, there is no
available information about the
birth of Rodolfo V. Fernandez
alleged to have been born on
November 24, 1934 to the
spouses Jose K. Fernandez and
Generosa
de
Venecia
in
Dagupan,
Pangasinan"
(Records, p. 146)
Appellant nonetheless, contends that
the Application for Recognition of Back
Pay Rights Under Act No. 897 is a
public document and a conclusive
proof of the legitimate filiation
between him and the deceased
spouses (Rollo, p. 41, Appellants'
Brief). We do not agree.
12

It may be conceded that the

Application for Recognition of Back Pay
Rights Under Act No. 897 is a public
document nevertheless, it was not
executed to admit the filiation of Jose
K.
Fernandez
with
Rodolfo
V.
Fernandez, the herein appellant. The
public document contemplated in
Article 172 of the Family Code refer to
the written admission of filiation
embodied in a public document
purposely executed as an admission of
filiation and not as obtaining in this
case wherein the public document was
executed as an application for the
recognition of rights to back pay under
Republic Act No. 897. Section 23, Rule
132 of the Revised Rules on Evidence
provides:
"SECTION 32. Public documents
as
evidence
Documents
consisting of entries in public
records
made
in
the
performance of a duty by a
public officer are prima facie
evidence of the facts therein
stated.
All
other
public
documents are evidence, even
against a third person, of the
fact which gave rise to their
execution and of the date of the
latter."
The rule is not absolute in the sense
that the contents of a public document
are conclusive evidence against the
contracting
parties
as
to
the
truthfulness of the statements made
therein. They constitute only prima
facie evidence of the facts which give
rise to their execution and of the date
of the latter. Thus, a baptismal
certificate issued by a Spanish priest
under the Spanish regime constitutes
prima facie evidence of the facts
certified to by the parish priest from
his own knowledge such as the
administration of the sacrament on
the day and in the place and manner
set forth in the certificate; but it does
not constitute proof of the statements
made
therein
concerning
the
parentage of the person baptized
(Francisco, Evidence, 1994 ed., p. 516,
citing Garcia vs. Gajul, 53 Phil.
642; Adriano vs. de Jesus, 23 Phil.
350; Buan
vs.
Arquiza,
5
Phil.
193; Siguion vs. Siguion, 8 Phil. 7).
Public documents are perfect evidence
of the fact which give rise to their
execution and of the date of the latter
if the act which the officer witnessed
and certified to or the date written by

him are not shown to be false; but

they are not conclusive evidence with
respect to the truthfulness of the
statements made therein by the
interested parties (Martin, Rules of
Court in the Philippines with Note and
Comments, vol. 4, p. 577).
Corollarily,
the
Application
for
Recognition of Back Pay Rights Under
Act No. 897 is only a proof that Jose K.
Fernandez filed said application on
June 5, 1954 in Dagupan City but it
does not prove the veracity of the
declaration and statement contained
in the said application that concern
the relationship of the applicant with
herein appellant. In like manner, it is
not a conclusive proof of the filiation of
appellant with his alleged father, Jose
K. Fernandez the contents being, only
prima facie evidence of the facts
stated therein.
Additionally, appellant claims that he
enjoyed and possessed the status of
being a legitimate child of the spouses
openly and continuously until they
died (Rollo, p. 42; Appellants' Brief).
Open and continuous possession of
the status of a legitimate child is
meant the enjoyment by the child of
the position and privileges usually
attached to the status of a legitimate
child such as bearing the paternal
surname, treatment by the parents
and family of the child as legitimate,
constant attendance to the child's
support and education, and giving the
child the reputation of being a child of
his parents (Sempio-Diy, The Family
Code of the Philippines, pp. 245-246).
However, it must be noted that, as
was held in Quismundo vs. WCC, 132
SCRA 590, possession of status of a
child does not in itself constitute an
acknowledgment; it is only a ground
for a child to compel recognition by his
assumed parent.
Lastly, to substantiate his claim of
being a legitimate child appellant
presented a baptismal certificate
issued by Fr. Rene Mendoza of the St.
John
Metropolitan
Cathedral
of
Dagupan City on August 10, 1989
stating therein that appellant is a child
of the late spouses having been born
on November 15, 1934 and baptized
on November 24, 1934 (Exh. "1"
Exhibits for the Defendants). As
stated, while baptismal certificates
may be considered public documents,
they are evidence only to prove the
13

administration of the sacraments on

the dates therein specified, but not the
veracity
of
the
statements
or
declarations
made
therein
with
respect to his kinsfolk (Reyes vs. Court
of Appeals, 135 SCRA 439). It may be
argued that a baptismal certificate is
one of the other means allowed by the
Rules of Court and special laws of
proving filiation but in this case, the
authenticity
of
the
baptismal
certificate was doubtful when Fr.
Raymundo Q. de Guzman of St. John
the Evangelist Parish of LingayenDagupan, Dagupan City issued a
certification on October 16, 1995
attesting that the records of baptism
on June 7, 1930 to August 8, 1936
were all damaged (Records, p. 148,
Exh. "G"). Neither the family portrait
offered in evidence establishes a
sufficient proof of filiation Pictures do
not constitute proof of filiation (Reyes
vs. Court of Appeals) (supra). In fine,
the evidence presented by appellant
did not acquire evidentiary weight to
prove his filiation. Consequently the
Extra-Judicial Partition dated August
31, 1989 executed by appellant
Rodolfo Fernandez and Generosa de
Venecia is null and void."
Considering the foregoing findings, petitioner
Rodolfo is not a child by nature of the
spouses Fernandez and not a legal heir of Dr.
Jose Fernandez, thus the subject deed of
extra-judicial settlement of the estate of Dr.
Jose Fernandez between Generosa vda. de
Fernandez and Rodolfo is null and void
insofar as Rodolfo is concerned 13pursuant to
Art. 1105 of the New Civil Code which states:
"A partition which includes a person
believed to be an heir, but who is not,
shall be void only with respect to such
person."
Petitioners next contend that respondents
admitted that the property in question was
the conjugal property of the late spouses Dr.
Jose Fernandez and Generosa de Venecia,
thus when Dr. Jose Fernandez died intestate
in 1982, his estate consisted solely of pro
indiviso of the conjugal property and the
other half belonged to his wife Generosa de
Venecia; that granting Dr. Jose Fernandez
was only survived by his wife, the
respondents nephews and nieces of Dr. Jose
are entitled to inherit the share of the
decedent's estate while the share of the
conjugal property will still belong to
Generosa as the widow of Dr. Jose Fernandez,
hence the trial court's order reconveying the
possession of the subject lot and building to

respondents was contrary to the admitted

facts and law since respondents are not
related by consanguinity to Generosa vda de
Fernandez.
We agree.
Article 1001 of the Civil Code provides:
"Should brothers and sisters or their
children survive with the widow or
widower, the latter shall be entitled to
one half of the inheritance and the
brothers and sisters or their children to
the other half."
Generosa was the widow of Dr. Jose
Fernandez and as provided in the abovequoted Article 1001, she is entitled to the
of the inheritance and the respondents to the
other . In effect, pro indiviso is the share
of Generosa as the surviving spouse, i.e.,
as her share of the conjugal property estate
and of the remaining as share as heir
from her husband's estate. Thus, we find well
taken the petitioners' assertion that the
annulment of the extra-judicial partition
between Generosa and petitioner Rodolfo
does not necessarily result in respondents'
having exclusive right to the conjugal
property, as erroneously found by the
respondent court. Generosa, during her
lifetime, had the right to enjoy and dispose
of her property without other limitations than
those established by law,14 which right she
exercised by executing a deed of sale in
favor of petitioner Eddie Fernandez.
Petitioners assails respondents' right, not
being heirs of Generosa, to question the
validity of the deed of sale since the action
for the annulment of contracts may only be
instituted by all who are thereby obliged
principally or subsidiarily.15
We disagree.
As a rule, a contract cannot be assailed by
one who is not a party obliged principally or
subsidiarily under a contract. However, when
a contract prejudices the rights of a third
person, he may exercise an action for nullity
of the contract if he is prejudiced in his rights
with respect to one of the contracting
parties, and can show detriment which would
positively result to him from the contract in
which he had no intervention. 16 As we have
discussed above, respondents are entitled to
the of the entire conjugal property, i.e., lot
and building; however considering that
widow Generosa, during her lifetime, sold the
entire building to petitioner Eddie Fernandez,
respondents had been deprived of their
14

share therein, thus the deed of sale was

prejudicial to the interest of respondents as
regards their share in the building.
Respondents therefore, have a cause of
action to seek the annulment of said deed of
sale.
Petitioners further allege that the respondent
court erred in declaring null and void the
deed of sale executed between Generosa
and petitioner Eddie Fernandez concluding
that the same was simulated or false and in
affirming the trial court's findings that the
deed was prepared and executed under
abnormal,
unusual
and
irregular
circumstances without however, particularly
stating the circumstances.
We agree.
Respondents allege that the deed of sale was
fictitious and simulated because there was
no consideration for the sale. However, this
assertion was controverted by vendee
petitioner Eddie Fernandez' declaration, that
the money he paid for the sale came from his
savings as overseas contract worker in Saudi
Arabia from 1982-1989 which respondents
failed to controvert by presenting evidence
to the contrary. The presumption that a
contract has sufficient consideration cannot
be overthrown by a mere assertion that it
has no consideration.17 Under Art. 1354 of
the Civil Code, consideration is presumed
unless the contrary is proven.
Respondents also claim that the signature
appearing in the deed of sale was not that of
Generosa
because
she
was
already
bedridden with both legs amputated before
she died. Forgery cannot be presumed; it
must be proved by clear, positive and
convincing evidence18 and whoever alleges it
has the burden of proving the same; 19 a
burden respondents failed to discharge. The
respondents
had
not
presented
any
convincing proof to override the evidentiary
value of the duly notarized deed of sale. A
notarial document is evidence of the facts in
the clear unequivocal manner therein
expressed. It has in its favor the presumption
of regularity. To contradict all these, there
must be evidence that is clear, convincing
and more than merely preponderant. 20
We note however, that Generosa sold the
entire 2 storey building to petitioner Eddie
Fernandez, i.e. she did not only sell her
undivided share in the building but also the
share of the respondents. We rule, that
such a sale of the entire building without the
consent of the respondents is not null and
void as only the rights of the co-owner seller
are transferred, thereby making the buyer,

petitioner Eddie, a co-owner of the share

of the building together with the respondents
who owned the share therein.21
Finally, anent the issue of actual and moral
damages and attorney's fees awarded by the
trial court, we find them to be bereft of
factual basis. A party is entitled to an
adequate compensation for such pecuniary
loss actually suffered by him as he has duly
proven.22 Such damages, to be recoverable,
must not only be capable of proof, but must
actually be proved with a reasonable degree
of certainty.23 Courts cannot simply rely on
speculation, conjecture or guesswork in
determining the fact and amount of
damages.24 The testimony of respondent
Romeo Fernandez that he suffered around
P100,000 actual damages was not supported
by any documentary or other admissible
evidence. We also agree with the petitioners
that the respondent court should not have
awarded moral damages in the amount of
P100,000 since they also failed to show proof
of moral suffering, mental anguish, serious
anxiety, besmirched reputation, wounded
feelings and social humiliation. Attorney's
fees should likewise be deleted for lack of
factual basis and legal justification. Both the
lower courts did not cite specific factual basis
to justify the award of attorney's fees, which
is in violation of the proscription against the
imposition of a penalty on the right to
litigate.25
WHEREFORE, premises considered, the
assailed judgment is hereby Affirmed with
Modification, as follows:
1. Respondents as legitimate heirs of Dr. Jose
Fernandez are entitled to the share of the
conjugal lot and building of the deceased
spouses Jose and Generosa Fernandez who
died childless and intestate;
2. The deed of extra-judicial partition is
nullified insofar as the share of petitioner
Rodolfo in the conjugal lot is concerned and
the title issued pursuant thereto in the name
of Rodolfo Fernandez;
3. Considering that the deed of sale is valid
insofar as the share of Generosa sold to
petitioner Eddie Fernandez, TCT No. 54693 is
cancelled and a new title should be issued in
the names of petitioner Eddie Fernandez and
respondents as co-owners of the and
shares respectively in the conjugal building.
4. The awards of actual and moral damages
and attorney's fees are deleted.
SO ORDERED.
15

Melo, Vitug, Panganiban

Gutierrez, JJ ., concur.

and

Sandoval-

16