G.R. No. 182839 June 2, 2014 The marriage of Jose Sr.
The marriage of Jose Sr. and Ligaya produced the following children: Nora,
PHILIPPINE NATIONAL BANK, Petitioner,
vs.
JOSE GARCIA and CHILDREN NORA GARCIA, JOSE GARCIA, JR., BOBBY
GARCIA and JIMMY GARCIA and HEIRS OF ROGELIO GARCIA NAMELY:
CELEDONIO GARCIA, DANILO GARCIA, ELSA GARCIA, FERMIN GARCIA,
HEHERSON GARCIA, GREGORIO GARCIA, IMELDA GARCIA and JANE
GARCIA, Respondents.
DECISION
BRION, J.:
We resolve this petition for review on certiorari1 assailing the decision2
dated September 26, 2007 and the resolution3 dated May 6, 2008 of the
Court of Appeals (CA) in CA-G.R. CV No. 71356.
These challenged CA rulings reversed and set aside the decision of the
Regional Trial Court (RTC), Branch 23, Roxas, Isabela, dismissing Civil Case
No. Branch 23-500-96 for lack of cause of action.
The Factual Background
The facts of the case, gathered from the records, are briefly summarized
below.
The subject of the present case is a parcel of residential land with all its
improvements (subject property) located in Barrio Olango, Mallig, Isabela.
The land is covered by Transfer Certificate of Title (TCT) No. T-44422 under
the name of Jose Garcia Sr. (Jose Sr.) who acquired the subject property
during his marriage with Ligaya Garcia. Ligaya died on January 21, 1987.
Jose Jr., Bobby and Jimmy, all surnamed Garcia, who are the respondents
in the present case.
Sometime in 1989, the spouses Rogelio and Celedonia Garcia (Spouses
Garcia) obtained a loan facility from the petitioner, Philippine National
Bank (petitioner bank), initially for P150,000.00. The loan was secured by a
Real Estate Mortgage over their property covered by TCT No. 177585. The
spouses Garcia increased their loan to P220,000.00 and eventually to
P600,000.00. As security for the increased loan, they offered their property
covered by TCT No. 75324 and the subject property covered by TCT No. T-
44422.
Jose Sr. agreed to accommodate the spouses Garcia by offering the subject
property as additional collateral security for the latters increased loan. For
this purpose, Jose Sr. executed Special Powers of Attorney (SPAs) dated
April 14, 1992 and October 6, 1993, respectively, expressly authorizing the
Spouses Garcia to apply for, borrow, or secure any loan from the petitioner
bank, and to convey and transfer the subject property by way of mortgage.
Jose Sr. also executed an Amendment of Real Estate Mortgage in favor of
the petitioner bank. The SPAs and the Amendment of Real Estate
Mortgage are both inscribed on TCT No. T-44422. All of these transactions,
however, were without the knowledge and consent of Jose Sr.s children.
On maturity of the loan on April 20,1994, the spouses Garcia failed to pay
their loan to the petitioner bank despite repeated demands.
On January 12, 1996, the respondents filed before the RTC a Complaint for
Nullity of the Amendment of Real Estate Mortgage, Damages with
Preliminary Injunction against the spouses Garcia and the petitioner bank.
They claimed that the Amendment of Real Estate Mortgage was null and
void as to respondents Nora, Jose Jr., Bobby and Jimmy as they were not
parties to the contract.
The respondents alleged that the subject property was a conjugal property
of Jose Sr. and his deceased spouse, Ligaya, as they acquired the subject
property during their marriage; that upon Ligayas death, Jose Sr., together
with his children Nora, Jose Jr., Bobby and Jimmy, by law, became owners
pro indiviso of the subject property; that the petitioner bank was at fault
for not including Jose Sr. as payee to the check representing the loan
despite its knowledge that Jose Sr. was a signatory to the real estate
mortgage; that the real estate mortgage executed by Jose Sr. could not
bind his children as they did not give their consent or approval to the
encumbrance; and that the real estate mortgage was also void as to Jose
Sr. since he never benefitted from the loan.
In their answer, the Spouses Garcia alleged that Jose Sr. was indebted to
them in the amount of P133,800.00. To settle this indebtedness, Jose Sr.
volunteered to give the subject property as additional security for their
(the Garcias) loan to the petitioner bank.
The petitioner bank, on the other hand, claimed that the mortgage was
made in good faith and for value, and maintained that the respondents
complaint stated no cause of action against it. It alleged that the real
estate mortgage over the properties was duly registered and inscribed on
their titles and was thus binding on the whole world.
In the course of the proceedings, Nora, Jose Jr., Bobby and Jimmy executed
an SPA dated May 31, 1996 authorizing Jose Sr. to act as their attorney-in-
fact during the pretrial of the case.
The Ruling of the RTC
The RTC dismissed the complaint for lack of cause of action. The court held
that the subject property was a conjugal property since it was acquired by
Jose Sr. during his marriage with his now deceased wife. As a conjugal
property, it is presumed that upon the death of his spouse, one-half of the
property passed on to Jose Sr., while the other half went to Jose and his
children as co-owners and as forced heirs of his deceased spouse. Without
the consent of the children, the trial court ruled that the conjugal property
could only be transferred or encumbered to the extent of Jose Sr.s share
in the conjugal partnership, plus his share as an heir in the other half
pertaining to the estate of his deceased spouse.
The RTC nevertheless declared that by virtue of the SPA executed by Nora,
Jose Jr., Bobby and Jimmy in this suit, they are already estopped from
questioning the mortgage and from alleging lack of consent or knowledge
in the transaction. It held Jose Sr. liable as an accommodation party and
upheld the petitioner banks right to collect the debt.
The respondents disagreed with the RTC ruling and elevated the case to
the CA via an ordinary appeal.
The Ruling of the CA
On September 26, 2007, the CA upheld the trial courts finding that the
subject property was conjugal, but reversed and set aside its ruling in so far
as it declared valid and binding the Amendment of Real Estate Mortgage
between the petitioner bank, on one hand, and the spouses Garcia and
Jose Sr., on the other hand, with respect to respondents Nora, Jose Jr.,
Bobby and Jimmy. Relying on the Courts ruling in Nufable v. Nufable,4 the
CA ruled that the encumbrance Jose Sr. made over the entire conjugal
property, without his childrens conformity, was null and void because a
mere part owner could not alienate the shares of the other co-owners.
The CA also declared that the conjugal property could only be liable to the
extent of Jose Sr.s shares; Jose Sr.s acts could not affect his childrens pro-
indiviso shares in the subject property. It disagreed with the trial courts
estoppel theory and held that their execution of the SPA should not be
construed as acquiescence to the mortgage transaction. Lastly, it ruled that
Jose Sr. could not escape liability from the mortgage since he voluntarily
bound himself as the Spouses Garcias accommodation mortgagor.
The petition

The petitioner bank disputes the CAs finding that the subject property was
conjugal in nature. It argues that, as can be gleaned from TCT No. T-44422,
the subject property was registered in the name of Jose Sr. alone, who was
described in the title as "widower" and not "married." The petitioner bank
posits that as a mortgagee in good faith, it had the right to rely on the
mortgagors certificate of title; in the absence of any indication that could
arouse suspicion, it had no obligation to undertake further investigation
and verify whether the property was conjugal or was acquired during
marriage or thereafter.
Since the subject property belonged to Jose Sr., insofar as petitioner bank
as mortgagee was concerned, Jose Sr. had the right under Article 428 of
the Civil Code to mortgage it without the consent of his children.
Accordingly, the mortgage in its entirety should be declared valid.
The Comment
The respondents state that the issues raised by petitioner bank are
essentially factual; hence, they are beyond the competence of this Court in
a petition for review. They submit that in a certiorari petition under Rule
45 of the Rules of Court, only questions of law may be entertained because
the Court is not a trier of facts.
The Courts Ruling
We deny the petition for lack of merit.
The petition before us raises both questions of fact and of law. Whether
petitioner bank is a mortgagee in good faith and for value and whether the
subject property was conjugal, are factual issues that this Court cannot
look into as our examination would entail going into factual matters and
records of the case. In Rule 45 petitions, only questions of law may be put
into issue. Questions of fact cannot be entertained.5
Although there are exceptions to the rule that only questions of law may
be raised in a petition for certiorari, the petitioner bank failed to show that
this case falls under any of the established exceptions. Too, since the CA
partially affirmed the findings of the trial court and absent any indication
that these courts committed a serious error in its findings, this Court is
bound by these courts findings.6
Moreover, even if we were to review the factual issues raised by the
petitioner bank, we still find no reason to depart from the CAs ruling.
The Subject Property is Conjugal
a. All property acquired during marriage is presumed conjugal
Since Jose Sr. and Ligaya were married prior to the effectivity of the Family
Code, their property relations were governed by the conjugal partnership
of gains as provided under Article 119 of the Civil Code. Under Article 160
of the Civil Code, "all property of the marriage is presumed to belong to
the conjugal partnership, unless it can be proven that it pertains exclusively
to the husband or to the wife."
In his testimony, Jose Sr. admitted that at the time he acquired the land
through sale, he was already married. The material portion of his
testimony is as follows:
Q: Upon the death of your wife did you and your wife ever own a piece of
land?
A: Yes, sir.
Q: Where is that land situated?
A: In Centro, District 2, Mallig[,] Isabela.
Q: Is that land titled in your names?

A:Yes, sir.
xxxx
Q: You and your wife acquired that piece of land?
A: Yes, sir.
xxxx
Q: May we know from you[,] Mr. Witness, how did you acquire this parcel
of land presently embraced and covered by TCT No. T-44422?
A: I purchased that piece of land from the Baniqued Family during my
incumbency as Municipal Mayor, sir.
Q: What was your civil status at the time you purchased that piece of land?
A: I was already married, sir.(Emphasis ours, TSN, July 24, 1997, Jose Garcia
Sr.)7
Because of the petitioner banks failure to rebut the allegation that the
subject property was acquired during the formers marriage to Ligaya, the
legal presumption of the conjugal nature of the property, in line with
Article 160 of the Civil Code, applies to this property. Proof of the subject
propertys acquisition during the subsistence of marriage suffices to render
the statutory presumption operative.8
b. Registration of the subject property in the name of one spouse does not
destroy the presumption that the property is conjugal
The petitioner bank claims that the CA failed to consider that the subject
property was registered in the name of Jose Sr. alone.1a\^/phi1 Likewise, it
raises the argument that Jose Sr.s change of status in the subject
propertys title from "married" to "widower" prior to the constitution of
the real estate mortgage showed that the property was no longer conjugal.
We do not consider this argument persuasive.
Registration of a property alone in the name of one spouse does not
destroy its conjugal nature. What is material is the time when the property
was acquired.9 The registration of the property is not conclusive evidence
of the exclusive ownership of the husband or the wife. Although the
property appears to be registered in the name of the husband, it has the
inherent character of conjugal property if it was acquired for valuable
consideration during marriage.10
It retains its conjugal nature.
In order to rebut the presumptive conjugal nature of the property, the
petitioner must present strong, clear and convincing evidence of exclusive
ownership of one of the spouses.11 The burden of proving that the
property belongs exclusively to the wife or to the husband rests upon the
party asserting it.
In the present case, aside from its allegation that the subject property is no
longer conjugal and its assertion that it is a mortgagee in good faith, the
petitioner bank offered no evidence, convincing to this Court, that the
subject property exclusively belonged to Jose Sr. As stated earlier, the
petitioner bank failed to overcome the legal presumption that the disputed
property was conjugal.1wphi1 Thus, the conclusion of both lower courts
that the subject property was conjugal property holds. Factual findings of
the CA affirming those of the trial court are binding on this Court unless
there is a clear showing that such findings are tainted with arbitrariness,
capriciousness or palpable error.12
The conjugal partnership was converted into an implied ordinary co-
ownership upon the death of Ligaya
Upon the death of Ligaya on January 21, 1987, the conjugal partnership
was automatically dissolved and terminated pursuant to Article 175(1) of
the Civil Code,13 and the successional rights of her heirs vest, as provided
under Article 777 of the Civil Code, which states that"[t]he rights to the
succession are transmitted from the moment of the death of the
decedent."
Consequently, the conjugal partnership was converted into an implied
ordinary co-ownership between the surviving spouse, on the one hand,
and the heirs of the deceased, on the other.14 This resulting ordinary co-
ownership among the heirs is governed by Article 493 of the Civil Code
which reads:
Art. 493. Each co-owner shall have the full ownership of his part and of the
fruits and benefits pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another person in its enjoyment,
except when personal rights are involved. But the effect of the alienation
of the mortgage, with respect to the co-owners shall be limited to the
portion which may be allotted to him in the division upon the termination
of the co-ownership." (Emphasis supplied)
Under this provision, each co-owner has the full ownership of his part or
share in the co-ownership and may, therefore, alienate, assign or mortgage
it except when personal rights are involved. Should a co-owner alienate or
mortgage the co-owned property itself, the alienation or mortgage shall
remain valid but only to the extent of the portion which may be allotted to
him in the division upon the termination of the co-ownership.15 In Carvajal
v. Court of Appeals,16 the Court said:
While under Article 493 of the New Civil Code, each co-owner shall have
the full ownership of his part and of the fruits and benefits pertaining
thereto and he may alienate, assign or mortgage it, and even substitute
another person in its enjoyment, the effect of the alienation or the
mortgage with respect to the co-owners, shall be limited, by mandate of
the same article, to the portion which may be allotted to him in the
division upon the termination of the co-ownership. He has no right to sell
or alienate a concrete, specific, or determinate part of the thing in
common to the exclusion of the other co-owners because his right over the
thing is represented by an abstract or Ideal portion without any physical
adjudication.3 An individual co- owner cannot adjudicate to himself or
claim title to any definite portion of the land or thing owned in common
until its actual partition by agreement or judicial decree. Prior to that time
all that the co-owner has is an Ideal or abstract quota or proportionate
share in the entire thing owned in common by all the co-owners.4 What a
co owner may dispose of is only his undivided aliquot share, which shall be
limited to the portion that may be allotted to him upon partition.
[emphasis supplied].
In the present case, Jose Sr. constituted the mortgage over the entire
subject property after the death of Ligaya, but before the liquidation of the
conjugal partnership. While under Article 493 of the Civil Code, even if he
had the right to freely mortgage or even sell his undivided interest in the
disputed property, he could not dispose of or mortgage the entire property
without his childrens consent. As correctly emphasized by the trial court,
Jose Sr.s right in the subject property is limited only to his share in the
conjugal partnership as well as his share as an heir on the other half of the
estate which is his deceased spouses share. Accordingly, the mortgage
contract is void insofar as it extends to the undivided shares of his children
(Nora, Jose Jr., Bobby and Jimmy) because they did not give their consent
to the transaction.17
Accordingly, the Amendment of Real Estate Mortgage constituted by Jose
Sr. over the entire property without his co-owners' consent is not
necessarily void in its entirety. The right of the petitioner bank as
mortgagee is limited though only to the portion which may be allotted to
Jose Sr. in the event of a division and liquidation of the subject property.
WHEREFORE, in view of the foregoing, we hereby AFFIRM the Decision
dated September 26, 2007of the Court of Appeals in CA-G.R. CV No. 71356.
Costs against petitioner Philippine National Bank.
G.R. No. 171904 August 7, 2013
BOBBY TAN, PETITIONER,
vs.
GRACE ANDRADE, PROCESO ANDRADE, JR., CHARITY A. SANTIAGO, HENRY
ANDRADE, ANDREW ANDRADE, JASMIN BLAZA, GLORY ANDRADE, MIRIAM
ROSE ANDRADE, AND JOSEPH ANDRADE, RESPONDENTS.
x-----------------------x
G.R. No. 172017
GRACE ANDRADE, CHARITY A. SANTIAGO, HENRY ANDRADE, ANDREW
ANDRADE, JASMIN BLAZA, MIRIAM ROSE ANDRADE, AND JOSEPH
ANDRADE, PETITIONERS,
vs.
BOBBY TAN, RESPONDENT.
DECISION
PERLAS-BERNABE, J.:
Before the Court are consolidated petitions for review on certiorari1
assailing the Decision2 dated July 26, 2005 and Resolution3 dated March 3,
2006 of the Court of Appeals (CA) in CA-G.R. CV No. 71987 which affirmed
with modification the Judgment[4] dated April 6, 2001 of the Regional Trial
Court of Cebu City, Branch 19 (RTC) in Civil Case No. CEB 20969.
The Facts
Rosario Vda. De Andrade (Rosario) was the registered owner of four
parcels of land known as Lots 17, 18, 19, and 205 situated in Cebu City
(subject properties) which she mortgaged to and subsequently foreclosed
by one Simon6 Diu (Simon).7 When the redemption period was about to
expire, Rosario sought the assistance of Bobby Tan (Bobby) who agreed to
redeem the subject properties.8 Thereafter, Rosario sold the same to
Bobby and her son, Proceso Andrade, Jr. (Proceso, Jr.), for P100,000.00 as
evidenced by a Deed of Absolute Sale9 dated April 29, 1983 (subject deed
of sale). On July 26, 1983, Proceso, Jr. executed a Deed of Assignment,10
ceding unto Bobby his rights and interests over the subject properties in
consideration of P50,000.00. The Deed of Assignment was signed by,
among others, Henry Andrade (Henry), one of Rosarios sons, as
instrumental witness. Notwithstanding the aforementioned Deed of
Assignment, Bobby extended an Option to Buy11 the subject properties in
favor of Proceso, Jr., giving the latter until 7:00 in the evening of July 31,
1984 to purchase the same for the sum of P310,000.00. When Proceso, Jr.
failed to do so, Bobby consolidated his ownership over the subject
properties, and the TCTs12 therefor were issued in his name.
On October 7, 1997, Rosarios children, namely, Grace, Proceso, Jr., Henry,
Andrew, Glory, Miriam Rose, Joseph (all surnamed Andrade), Jasmin Blaza,
and Charity A. Santiago (Andrades), filed a complaint13 for reconveyance
and annulment of deeds of conveyance and damages against Bobby before
the RTC, docketed as Civil Case No. CEB 20969. In their complaint, they
alleged that the transaction between Rosario and Bobby (subject
transaction) was not one of sale but was actually an equitable mortgage
which was entered into to secure Rosarios indebtedness with Bobby. They
also claimed that since the subject properties were inherited by them from
their father, Proceso Andrade, Sr. (Proceso, Sr.), the subject properties
were conjugal in nature, and thus, Rosario had no right to dispose of their
respective shares therein. In this light, they argued that they remained as
co-owners of the subject properties together with Bobby, despite the
issuance of the TCTs in his name.
In his defense, Bobby contended that the subject properties were solely
owned by Rosario per the TCTs issued in her name14 and that he had
validly acquired the same upon Proceso, Jr.s failure to exercise his option
to buy back the subject properties.15 He also interposed the defenses of
prescription and laches against the Andrades.16
The RTC Ruling
On April 6, 2001, the RTC rendered a Judgment17 dismissing the Andrades
complaint.
It ruled that the subject transaction was a bona fide sale and not an
equitable mortgage as can be gleaned from its terms and conditions,
noting further that the subject deed of sale was not even questioned by
the Andrades at the time of its execution. As Proceso, Jr. failed to exercise
his option to buy back the subject properties, the titles thereto were
validly consolidated in Bobbys favor, resulting to the issuance of TCTs in
his name which are deemed to be conclusive proof of his ownership
thereto.18 As regards the nature of the subject properties, the RTC found
that they "appeared to be the exclusive properties of Rosario."19 Finally, it
found that the Andrades claim over the subject properties had already
prescribed and that laches had already set in.20
Dissatisfied, the Andrades elevated the matter on appeal.
The CA Ruling
On July 26, 2005, the CA rendered the assailed Decision21 upholding in
part the RTCs ruling.
It found that the subject deed of sale was indeed what it purports to be,
i.e., a bona fide contract of sale. In this accord, it denied the Andrades
claim that the subject transaction was an equitable mortgage since their
allegation that the purchase price was unusually low was left unsupported
by any evidence. Also, their averment that they have been in continuous
possession of the subject properties was belied by the testimony of
Andrew Andrade (Andrew) who stated that Bobby was already in
possession of the same. 22
Nevertheless, the CA ruled that the subject properties belong to the
conjugal partnership of Rosario and her late husband, Proceso, Sr., and
thus, she co-owned the same together with her children, the Andrades.23
In this respect, the sale was valid only with respect to Rosarios pro-indiviso
share in the subject properties and it cannot prejudice the share of the
Andrades since they did not consent to the sale.24 In effect, a resulting
trust was created between Bobby and the Andrades25 and, as such,
prescription and/or laches has yet to set in so as to bar them from
instituting the instant case.26 Accordingly, the CA ordered Bobby to
reconvey to the Andrades their share in the subject properties.27
In view of the CAs pronouncement, the parties filed their respective
motions for reconsideration. For the Andrades part, they sought the
reconsideration of the CAs finding as to its characterization of the subject
transaction as one of sale, insisting that it is actually an equitable
mortgage.28 As for Bobbys part, he maintained that the sale should have
covered the entirety of the subject properties and not only Rosarios pro-
indiviso share.29 Both motions for reconsideration were, however, denied
by the CA in a Resolution30 dated March 3, 2006.
Hence, the present consolidated petitions.
Issues Before the Court
The present controversy revolves around the CAs characterization of the
subject properties as well as of the subject transaction between Rosario
and Bobby.
In G.R. No. 172017, the Andrades submit that the CA erred in ruling that
the subject transaction is in the nature of a sale, while in G.R. No. 171904,
Bobby contends that the CA erred in ruling that the subject properties are
conjugal in nature.
The Courts Ruling
A. Characterization of the subject transaction.
Settled is the rule that when the trial court's factual findings have been
affirmed by the CA, said findings are generally conclusive and binding upon
the Court, and may no longer be reviewed on Rule 45 petitions.31 While
there exists exceptions to this rule such as when the CAs and RTCs exclusively to the husband or to the wife." For this presumption to apply,
findings are in conflict with each other32 the Court observes that none
applies with respect to the ruling that the subject transaction was one of
sale and not an equitable mortgage. Records readily reveal that both the
RTC and the CA observed that there is no clear and convincing evidence to
show that the parties agreed upon a mortgage. Hence, absent any glaring
error therein or any other compelling reason to hold otherwise, this finding
should now be deemed as conclusive and perforce must stand. As echoed
in the case of Ampo v. CA:33
x x x Factual findings of the Court of Appeals are conclusive on the parties
and not reviewable by this Court and they carry even more weight when
the Court of Appeals affirms the factual findings of the trial court, and in
the absence of any showing that the findings complained of are totally
devoid of support in the evidence on record, or that they are so glaringly
erroneous as to constitute serious abuse of discretion, such findings must
stand.34
Consequently, the Andrades petition in G.R. No. 172017 must therefore be
denied.
B. Characterization of the subject properties.
With respect to the nature of the subject properties, the courts a quo were
at variance such that the RTC, on the one hand, ruled that the said
properties were exclusive properties of Rosario,35 while the CA, on the
other hand, pronounced that they are conjugal in nature.36 In this regard,
the consequent course of action would be for the Court to conduct a re-
examination of the evidence if only to determine which among the two is
correct, 37 as an exception to the proscription in Rule 45 petitions.
Pertinent to the resolution of this second issue is Article 160 of the Civil
Code38 which states that "[a]ll property of the marriage is presumed to
belong to the conjugal partnership, unless it be proved that it pertains
the party invoking the same must, however, preliminarily prove that the
property was indeed acquired during the marriage. As held in Go v.
Yamane:39
x x x As a condition sine qua non for the operation of [Article 160] in favor
of the conjugal partnership, the party who invokes the presumption must
first prove that the property was acquired during the marriage.
In other words, the presumption in favor of conjugality does not operate if
there is no showing of when the property alleged to be conjugal was
acquired. Moreover, the presumption may be rebutted only with strong,
clear, categorical and convincing evidence. There must be strict proof of
the exclusive ownership of one of the spouses, and the burden of proof
rests upon the party asserting it.40 (Citations omitted)
Corollarily, as decreed in Valdez v. CA,41 the presumption under Article
160 cannot be made to apply where there is no showing as to when the
property alleged to be conjugal was acquired:
x x x The issuance of the title in the name solely of one spouse is not
determinative of the conjugal nature of the property, since there is no
showing that it was acquired during the marriage of the Spouses Carlos
Valdez, Sr. and Josefina L. Valdez. The presumption under Article 160 of
the New Civil Code, that property acquired during marriage is conjugal,
does not apply where there is no showing as to when the property alleged
to be conjugal was acquired. The presumption cannot prevail when the
title is in the name of only one spouse and the rights of innocent third
parties are involved. Moreover, when the property is registered in the
name of only one spouse and there is no showing as to when the property
was acquired by same spouse, this is an indication that the property
belongs exclusively to the said spouse.

In this case, there is no evidence to indicate when the property was
acquired by petitioner Josefina.1wphi1 Thus, we agree with petitioner
Josefinas declaration in the deed of absolute sale she executed in favor of
the respondent that she was the absolute and sole owner of the property.
x x x.42
only lead to the conclusion that they were well-aware of the subject
transaction and yet only pursued their claim 14 years after the sale was
executed.
Due to the above-stated reasons, Bobbys petition in G.R. No. 171904 is
hereby granted.

In this case, records reveal that the conjugal partnership of Rosario and her
husband was terminated upon the latters death on August 7, 197843
while the transfer certificates of title over the subject properties were
issued on September 28, 1979 and solely in the name of "Rosario Vda. de
Andrade, of legal age, widow, Filipino."44 Other than their bare allegation,
no evidence was adduced by the Andrades to establish that the subject
properties were procured during the coverture of their parents or that the
same were bought with conjugal funds. Moreover, Rosarios declaration
that she is the absolute owner of the disputed parcels of land in the
subject deed of sale45 was not disputed by her son Proceso, Jr., who was a
party to the same. Hence, by virtue of these incidents, the Court upholds
the RTCs finding46 that the subject properties were exclusive or sole
properties of Rosario.
WHEREFORE, the Court hereby (a) GRANTS the petition of Bobby Tan in
G.R. No. 171904; and (b) DENIES the petition of Grace Andrade, Charity A.
Santiago, Henry Andrade, Andrew Andrade, Jasmin Blaza, Miriam Rose
Andrade, and Joseph Andrade in G.R. No. 172017. Accordingly, the
Decision dated July 26, 2005 and Resolution dated March 3, 2006 of the
Court of Appeals in CA-G.R. CV No. 71987 are hereby REVERSED and SET
ASIDE, and the April 6, 2001 Decision of the Regional Trial Court of Cebu
City, Branch 19 in Civil Case No. CEB 20969 is REINSTATED.
SO ORDERED.

Besides, the Court observes that laches had already set in, thereby
precluding the Andrades from pursuing their claim. Case law defines laches
as the "failure to assert a right for an unreasonable and unexplained length
of time, warranting a presumption that the party entitled to assert it has
either abandoned or declined to assert it."47

Records disclose that the Andrades took 14 years before filing their
complaint for reconveyance in 1997. The argument that they did not know
about the subject transaction is clearly belied by the facts on record. It is
undisputed that Proceso, Jr. was a co-vendee in the subject deed of sale,48
while Henry was an instrumental witness to the Deed of Assignment49 and
Option to Buy50 both dated July 26, 1983. Likewise, Rosarios sons,
Proceso, Jr. and Andrew, did not question the execution of the subject
deed of sale made by their mother to Bobby.51 These incidents can but
ANTONIA R. DELA PEA and ALVIN JOHN B. DELA PEA, February 8, 2012
Petitioners, x--------------------------------------------------------
- - - -x

DECISION
- versus -

PEREZ, J.:

Filed pursuant to Rule 45 of the 1997 Rules of Civil Procedure, this petition
GEMMA REMILYN C. AVILA and FAR EAST BANK & TRUST CO., for review on certiorari seeks the reversal and setting aside of the
Respondents. Decision[1] dated 31 March 2009 rendered by the then Second Division of
the Court of Appeals in CA-G.R. CV No. 90485,[2] the dispositive portion of
which states:
G.R. No. 187490

WHEREFORE, premises considered, the appeal is GRANTED and the

Present: assailed Decision, dated December 18, 2007, of the Regional Trial Court of
Marikina City, Branch 272, is hereby REVERSED and SET ASIDE. The Deed of
CARPIO, J., Absolute Sale in favor of Gemma Avila dated November 4, 1997 and the
Chairperson, subsequent sale on auction of the subject property to FEBTC (now Bank of
BRION, the Philippine Islands) on March 15, 1999 are upheld as valid and binding.
PEREZ,
SERENO, and SO ORDERED.[3]
REYES, JJ.
The Facts

The suit concerns a 277 square meter parcel of residential land, together
Promulgated: with the improvements thereon, situated in Marikina City and previously
registered in the name of petitioner Antonia R. Dela Pea (Antonia), married
to Antegono A. Dela Pea (Antegono) under Transfer Certificate of Title Maturity
(TCT) No. N-32315 of the Registry of Deeds of Rizal.[4] On 7 May 1996,
Antonia obtained from A.C. Aguila & Sons, Co. (Aguila) a loan in the sum of BDS#970779
P250,000.00 which, pursuant to the Promissory Note the former executed
in favor of the latter, was payable on or before 7 July 1996, with interest 12/02/97
pegged at 5% per month.[5] On the very same day, Antonia also executed
in favor of Aguila a notarized Deed of Real Estate Mortgage over the P300,000.00
property, for the purpose of securing the payment of said loan obligation.
The deed provided, in part, that (t)his contract is for a period of Three (3) 04/30/98
months from the date of this instrument.[6]
BDS#970790

12/15/97
On 4 November 1997, Antonia executed a notarized Deed of Absolute Sale
over the property in favor of respondent Gemma Remilyn C. Avila P100,000.00
(Gemma), for the stated consideration of P600,000.00.[7] Utilizing the
document, Gemma caused the cancellation of TCT No. N-32315 as well as 04/14/98
the issuance of TCT No. 337834 of the Marikina City Registry of Deeds,
naming her as the owner of the subject realty.[8] On 26 November 1997, BDS#980800
Gemma also constituted a real estate mortgage over said parcel in favor of
respondent Far East Bank and Trust Company [now Bank of the Philippine 01/16/98
Islands] (FEBTC-BPI), to secure a loan facility with a credit limit of
P1,200,000.00.[9] As evidenced by the Promissory Notes she executed P100,000.00
from 12 December 1997 to 10 March 1998,[10] Gemma obtained the
following loans from Visayas Avenue Branch of the FEBTC-BPI, in the 04/30/98
aggregate sum of P1,200,000.00, to wit:
BDS#980805

02/06/98
Promissory Note
P100,000.00
Date
04/30/98
Amount
BDS#980817
02/27/98
P150,000.00
04/30/98
BDS#980821
03/10/98
P450,000.00
04/30/98
On 3 March 1998, in the meantime, Antonia filed with the Register of
Deeds of Marikina an Affidavit of Adverse Claim to the effect, among
others, that she was the true and lawful owner of the property which had
been titled in the name of Gemma under TCT No. 32315; and, that the
Deed of Absolute Sale Gemma utilized in procuring her title was
simulated.[11] As a consequence, Antonias Affidavit of Adverse Claim was
inscribed on TCT No. 337834 as Entry No. 501099 on 10 March 1998.[12] In
view of Gemmas failure to pay the principal as well as the accumulated
interest and penalties on the loans she obtained, on the other hand,
FEBTC-BPI caused the extrajudicial foreclosure of the real estate mortgage
constituted over the property. As the highest bidder at the public auction
conducted in the premises,[13] FEBTC-BPI later consolidated its ownership
over the realty and caused the same to be titled in its name under TCT No.
415392 of the Marikina registry.[14]
On 18 May 1998, Antonia and her son, petitioner Alvin John B. Dela Pea
(Alvin), filed against Gemma the complaint for annulment of deed of sale
docketed before Branch 272 of the Regional Trial Court (RTC) of Marikina
City as Civil Case No. 98-445-MK. Claiming that the subject realty was
conjugal property, the Dela Peas alleged, among other matters, that the 7
May 1996 Deed of Real Estate Mortgage Antonia executed in favor of
Aguila was not consented to by Antegono who had, by then, already died;
that despite its intended 1998 maturity date, the due date of the loan
secured by the mortgage was shortened by Gemma who, taking advantage
of her proximate relationship with Aguila, altered the same to 1997; and,
that the 4 November 1997 Deed of Absolute Sale in favor of Gemma was
executed by Antonia who was misled into believing that the transfer was
necessary for the loan the former promised to procure on her behalf from
FEBTC-BPI. In addition to the annulment of said Deed of Absolute Sale for
being simulated and derogatory of Alvins successional rights, the Dela Peas
sought the reconveyance of the property as well as the grant of their
claims for moral and exemplary damages, attorneys fees and the costs.[15]
Served with summons, Gemma specifically denied the material allegations
of the foregoing complaint in her 1 July 1998 answer. Maintaining that the
realty was the exclusive property of Antonia who misrepresented that her
husband was still alive, Gemma averred that the former failed to pay the
P250,000.00 loan she obtained from Aguila on its stipulated 7 July 1996
maturity; that approached to help prevent the extrajudicial foreclosure of
the mortgage constituted on the property, she agreed to settle the
outstanding obligation to Aguila and to extend Antonia a P50,000.00 loan,
with interest pegged at 10% per month; that to pay back the foregoing
accommodations, Antonia agreed to the use of the property as collateral
for a loan to be obtained by her from FEBTC-BPI, hence, the execution of
the impugned Deed of Absolute Sale; and, that conformably with the
foregoing agreement, she obtained loans in the total sum of P1,200,000.00
from FEBTC-BPI and applied the proceeds thereof to the sums owed by
Antonia. Together with the dismissal of the complaint, Gemma also prayed
for the grant of her counterclaims for moral and exemplary damages,
attorneys fees, litigation expenses and the costs.[16]
On 25 September 1999, the Dela Peas filed a supplemental complaint,
impleading FEBTC-BPI as additional defendant. Calling attention to
Antonias 3 March 1998 Affidavit of Adverse Claim and the Notice of Lis
Pendens they purportedly caused to be annotated on TCT No. 337834 on
10 December 1999, the Dela Peas alleged that FEBTC-BPI was in bad faith
when it purchased the property at public auction on 15 March 1999.[17] In
their 12 November 1999 answer, FEBTC-BPI, in turn, asserted that the
property was already titled in Gemmas name when she executed the 26
November 1997 real estate mortgage thereon, to secure the payment of
the loans she obtained in the sum of P1,200,000.00; and, that not being
privy to Antonias transaction with Gemma and unaware of any adverse
claim on the property, it was a mortgagee in good faith, entitled to
foreclose the mortgage upon Gemmas failure to pay the loans she
obtained. Seeking the dismissal of the complaint and the grant of its
counterclaims for damages against the Dela Peas, FEBTC-BPI alternatively
interposed cross-claims against Gemma for the payment of the subject
loans, the accumulated interests and penalties thereon as well as such
sums for which it may be held liable in the premises.[18]
On 14 April 2000, the RTC issued the order terminating the pre-trial stage
and declaring Gemma in default for failure to attend the pre-trial settings
and to engage the services of a new lawyer despite due notice and the
withdrawal of her counsel of record.[19] In support of their complaint,
Antonia[20] and Alvin[21] both took the witness stand and, by way of
corroborative evidence, presented the testimony of one Alessandro
Almoden[22] who claimed to have referred Antonia to Gemma for the
purpose of obtaining a loan. By way of defense evidence, on the other
hand, FEBTC-BPI adduced the oral evidence elicited from Eleanor Abellare,
its Account Officer who handled Gemmas loans,[23] and Zenaida Torres,
the National Bureau of Investigation (NBI) Document Examiner who, after
analyzing Antonias specimen signatures on the 7 May 1996 Deed of Real
Estate Mortgage and 4 November 1997 Deed of Absolute Sale,[24] issued
NBI Questioned Documents Report No. 482-802 to the effect, among
others, that said signatures were written by one and the same person.[25]
On 18 December 2007, the RTC went on to render a Decision finding that
the subject property was conjugal in nature and that the 4 November 1997
Deed of Absolute Sale Antonia executed in favor of Gemma was void as a
disposition without the liquidation required under Article 130 of the Family
Code. Brushing aside FEBTC-BPIs claim of good faith,[26] the RTC disposed
of the case in the following wise:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in
favor of the plaintiffs and against the defendants, as follows:
1). Declaring the Deed of Absolute dated November 04, 1997 in favor of
defendant, [Gemma] as null and void;
2). Ordering defendant [FEBTC-BPI] to execute a deed of reconveyance in
favor of the [Dela Peas] involving the subject property now covered by
Transfer Certificate of Title No. 415392 in the name of [FEBTC-BPI];
3). Ordering [Gemma] to pay the [Dela Peas] the following:
a). the amount of P200,000.00 as moral damages; and
b). the amount of P20,000.00 as and for attorneys fees; and
c). costs of the suit
On the cross-claim, [Gemma] is hereby ordered to pay [FEBTC-BPI] the
amount of P2,029,317.17 as of November 10, 1999, with twelve (12%)
percent interest per annum until fully paid.
SO ORDERED.[27]
Aggrieved, FEBTC-BPI perfected the appeal which was docketed before the
CA as CA-G.R. CV No. 90485. On 31 March 2009 the CAs Second Division
rendered the herein assailed decision, reversing the RTCs appealed
decision, upon the following findings and conclusions: (a) the property was
paraphernal in nature for failure of the Dela Peas to prove that the same
was acquired during Antonias marriage to Antegono; (b) having misled
Gemma into believing that the property was exclusively hers, Antonia is
barred from seeking the annulment of the 4 November 1997 Deed of
Absolute Sale; (c) Antonias claim that her signature was forged is belied by
her admission in the pleadings that she was misled by Gemma into
executing said Deed of Absolute Sale and by NBI Questioned Document
Report No. 482-802; and, (d) FEBTC-BPI is a mortgagee in good faith and
for value since Gemmas 26 November 1997 execution of the real estate
mortgage in its favor predated Antonias 3 March 1998 Affidavit of Adverse
Claim and the 10 December 1999 annotation of a Notice of Lis Pendens on
TCT No. 337834.[28]
The Issues
The Dela Peas seek the reversal of the assailed 31 March 2009 CA decision
upon the affirmative of following issues, to wit:
1) Whether or not the CA erred in reversing the RTC holding the house and
lot covered by TCT No. N-32315 conjugal property of the spouses
Antegono and Antonia Dela Pea;
2) Whether or not the CA erred in reversing the RTC declaring null and void
the Deed of Absolute Sale executed by Antonia to (Gemma); and
3. Whether or not the CA erred in reversing the RTC holding (FEBTC-BPI) a
mortgagee/purchaser in bad faith.[29]
The Courts Ruling
The petition is bereft of merit.
Pursuant to Article 160 of the Civil Code of the Philippines, all property of
the marriage is presumed to belong to the conjugal partnership, unless it
be proved that it pertains exclusively to the husband or to the wife.
Although it is not necessary to prove that the property was acquired with
funds of the partnership,[30] proof of acquisition during the marriage is an
essential condition for the operation of the presumption in favor of the
conjugal partnership.[31] In the case of Francisco vs. Court of Appeals,[32]
this Court categorically ruled as follows:
Article 160 of the New Civil Code provides that "all property of the
marriage is presumed to belong to the conjugal partnership, unless it be
proved that it pertains exclusively to the husband or to the wife."
However, the party who invokes this presumption must first prove that the
property in controversy was acquired during the marriage. Proof of
acquisition during the coverture is a condition sine qua non for the
operation of the presumption in favor of the conjugal partnership. The
party who asserts this presumption must first prove said time element.
Needless to say, the presumption refers only to the property acquired
during the marriage and does not operate when there is no showing as to
when property alleged to be conjugal was acquired. Moreover, this
presumption in favor of conjugality is rebuttable, but only with strong,
clear and convincing evidence; there must be a strict proof of exclusive
ownership of one of the spouses.[33]
As the parties invoking the presumption of conjugality under Article 160 of
the Civil Code, the Dela Peas did not even come close to proving that the
subject property was acquired during the marriage between Antonia and
Antegono. Beyond Antonias bare and uncorroborated assertion that the
property was purchased when she was already married,[34] the record is
bereft of any evidence from which the actual date of acquisition of the
realty can be ascertained. When queried about the matter during his cross-
examination, even Alvin admitted that his sole basis for saying that the
property was owned by his parents was Antonias unilateral
pronouncement to the effect.[35] Considering that the presumption of
conjugality does not operate if there is no showing of when the property
alleged to be conjugal was acquired,[36] we find that the CA cannot be
faulted for ruling that the realty in litigation was Antonias exclusive
property.
Not having established the time of acquisition of the property, the Dela
Peas insist that the registration thereof in the name of Antonia R. Dela Pea,
of legal age, Filipino, married to Antegono A. Dela Pea should have already
sufficiently established its conjugal nature. Confronted with the same issue
in the case Ruiz vs. Court of Appeals,[37] this Court ruled, however, that
the phrase married to is merely descriptive of the civil status of the wife
and cannot be interpreted to mean that the husband is also a registered
owner. Because it is likewise possible that the property was acquired by
the wife while she was still single and registered only after her marriage,
neither would registration thereof in said manner constitute proof that the
same was acquired during the marriage and, for said reason, to be
presumed conjugal in nature. Since there is no showing as to when the
property in question was acquired, the fact that the title is in the name of
the wife alone is determinative of its nature as paraphernal, i.e., belonging
exclusively to said spouse.[38]
Viewed in light of the paraphernal nature of the property, the CA correctly
ruled that the RTC reversibly erred in nullifying Antonias 4 November 1997
sale thereof in favor of Gemma, for lack of the liquidation required under
Article 130 of the Family Code.[39] That Antonia treated the realty as her
own exclusive property may, in fact, be readily gleaned from her utilization
thereof as security for the payment of the P250,000.00 loan she borrowed
from Aguila.[40] Despite Gemmas forfeiture of the right to present
evidence on her behalf, her alleged alteration of the 7 May 1996 Deed of
Real Estate Mortgage to shorten the maturity of the loan secured thereby
was also properly brushed aside by the CA. The double lie inherent in
Antonias assertion that the same deed was altered by Gemma to shorten
the maturity of the loan to 1997 instead of 1998 is instantly evident from
paragraph 1 of the document which, consistent with 7 July 1996 maturity
date provided in the Promissory Note she executed,[41] specifically stated
that (t)his contract is for a period of Three (3) months from the date of this
instrument.[42]
Antonias evident lack of credibility also impels us to uphold the CAs
rejection of her version of the circumstances surrounding the execution of
the 4 November 1997 Deed of Absolute Sale in favor of Gemma. In
disavowing authorship of the signature appearing on said deed,[43]
Antonia contradicted the allegation in the Dela Peas complaint that she
was misled by Gemma into signing the same document.[44] The rule is
well-settled that judicial admissions like those made in the pleadings are
binding and cannot be contradicted, absent any showing that the same
was made thru palpable mistake.[45] Alongside that appearing on the
Deed of Real Estate Mortgage she admitted executing in favor of Aguila,
Antonias signature on the Deed of Absolute Sale was, moreover, found to
have been written by one and the same person in Questioned Document
Report No. 482-802 prepared by Zenaida Torres, the NBI Document
Examiner to whom said specimen signatures were submitted for
analysis.[46] Parenthetically, this conclusion is borne out by our
comparison of the same signatures.
For all of Antonias denial of her receipt of any consideration for the sale of
the property in favor of Gemma,[47] the evidence on record also lend
credence to Gemmas version of the circumstances surrounding the
execution of the assailed 4 November 1997 Deed of Absolute Sale.
Consistent with Gemmas claim that said deed was executed to facilitate
the loans she obtained from FEBTC-BPI which were agreed to be used as
payment of the sums she expended to settle the outstanding obligation to
Aguila and the P50,000.00 she loaned Antonia,[48] the latter admitted
during her direct examination that she did not pay the loan she obtained
from Aguila.[49] Presented as witness of the Dela Peas, Alessandro
Almoden also admitted that Gemma had extended a loan in the sum of
P50,000.00 in favor of Antonia. Notably, Alessandro Almodens claim that
the title to the property had been delivered to Gemma as a consequence
of the transaction[50] is at odds with Antonias claim that she presented
said document to the Registry of Deeds when she verified the status of the
property prior to the filing of the complaint from which the instant suit
originated.[51]
With the material contradictions in the Dela Peas evidence, the CA cannot
be faulted for upholding the validity of the impugned 4 November 1997
Deed of Absolute Sale. Having been duly notarized, said deed is a public
document which carries the evidentiary weight conferred upon it with
respect to its due execution.[52] Regarded as evidence of the facts therein
expressed in a clear, unequivocal manner,[53] public documents enjoy a
presumption of regularity which may only be rebutted by evidence so
clear, strong and convincing as to exclude all controversy as to falsity.[54]
The burden of proof to overcome said presumptions lies with the party
contesting the notarial document[55] like the Dela Peas who,
unfortunately, failed to discharge said onus. Absent clear and convincing
evidence to contradict the same, we find that the CA correctly pronounced
the Deed of Absolute Sale was valid and binding between Antonia and
Gemma.
Since foreclosure of the mortgage is but the necessary consequence of
non-payment of the mortgage debt,[56] FEBTC-BPI was, likewise, acting
well within its rights as mortgagee when it foreclosed the real estate
mortgage on the property upon Gemmas failure to pay the loans secured
thereby. Executed on 26 November 1997, the mortgage predated Antonias
filing of an Affidavit of Adverse Claim with the Register of Deeds of
Marikina on 3 March 1998 and the annotation of a Notice of Lis Pendens
on TCT No. 337834 on 10 December 1999. The mortgage directly and
immediately subjects the property upon which it is imposed, whoever the
possessor may be, to the fulfilment of the obligation for whose security it
was constituted.[57] When the principal obligation is not paid when due,
the mortgagee consequently has the right to foreclose the mortgage, sell
the property, and apply the proceeds of the sale to the satisfaction of the
unpaid loan.[58]
Finally, the resolution of this case cannot be affected by the principles that
banks like FEBTC-BPI are expected to exercise more care and prudence
than private individuals in that their dealings because their business is
impressed with public interest[59] and their standard practice is to conduct
an ocular inspection of the property offered to be mortgaged and verify
the genuineness of the title to determine the real owner or owners
thereof, hence, the inapplicability of the general rule that a mortgagee
need not look beyond the title does not apply to them.[60] The validity of
the Deed of Absolute Sale executed by Antonia in favor of Gemma having
been upheld, FEBTC-BPIs supposed failure to ascertain the ownership of
the property has been rendered immaterial for the purpose of determining
the validity of the mortgage executed in its favor as well as the subsequent
extrajudicial foreclosure thereof.
WHEREFORE, premises considered, the petition is DENIED for lack of merit
and the assailed CA Decision dated 31 March 2009 is, accordingly,
AFFIRMED in toto.
SO ORDERED.
[G.R. No. 153802. March 11, 2005]
HOMEOWNERS SAVINGS & LOAN BANK, petitioner, vs. MIGUELA C. DAILO,
respondent.
DECISION
TINGA, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules
of Court, assailing the Decision[1] of the Court of Appeals in CA-G.R. CV No.
59986 rendered on June 3, 2002, which affirmed with modification the
October 18, 1997 Decision[2] of the Regional Trial Court, Branch 29, San
Pablo City, Laguna in Civil Case No. SP-4748 (97).
The following factual antecedents are undisputed.
Respondent Miguela C. Dailo and Marcelino Dailo, Jr. were married on
August 8, 1967. During their marriage, the spouses purchased a house and
lot situated at Barangay San Francisco, San Pablo City from a certain
Sandra Dalida. The subject property was declared for tax assessment
purposes under Assessment of Real Property No. 94-051-2802. The Deed
of Absolute Sale, however, was executed only in favor of the late
Marcelino Dailo, Jr. as vendee thereof to the exclusion of his wife.[3]
On December 1, 1993, Marcelino Dailo, Jr. executed a Special Power of
Attorney (SPA) in favor of one Lilibeth Gesmundo, authorizing the latter to
obtain a loan from petitioner Homeowners Savings and Loan Bank to be
secured by the spouses Dailos house and lot in San Pablo City. Pursuant to
the SPA, Gesmundo obtained a loan in the amount of P300,000.00 from
petitioner. As security therefor, Gesmundo executed on the same day a
Real Estate Mortgage constituted on the subject property in favor of
petitioner. The abovementioned transactions, including the execution of
the SPA in favor of Gesmundo, took place without the knowledge and
consent of respondent.[4]
Upon maturity, the loan remained outstanding. As a result, petitioner
instituted extrajudicial foreclosure proceedings on the mortgaged
property. After the extrajudicial sale thereof, a Certificate of Sale was
issued in favor of petitioner as the highest bidder. After the lapse of one
year without the property being redeemed, petitioner, through its vice-
president, consolidated the ownership thereof by executing on June 6,
1996 an Affidavit of Consolidation of Ownership and a Deed of Absolute
Sale.[5]
In the meantime, Marcelino Dailo, Jr. died on December 20, 1995. In one of
her visits to the subject property, respondent learned that petitioner had
already employed a certain Roldan Brion to clean its premises and that her
car, a Ford sedan, was razed because Brion allowed a boy to play with fire
within the premises.
Claiming that she had no knowledge of the mortgage constituted on the
subject property, which was conjugal in nature, respondent instituted with
the Regional Trial Court, Branch 29, San Pablo City, Civil Case No. SP-2222
(97) for Nullity of Real Estate Mortgage and Certificate of Sale, Affidavit of
Consolidation of Ownership, Deed of Sale, Reconveyance with Prayer for
Preliminary Injunction and Damages against petitioner. In the latters
Answer with Counterclaim, petitioner prayed for the dismissal of the
complaint on the ground that the property in question was the exclusive
property of the late Marcelino Dailo, Jr.
After trial on the merits, the trial court rendered a Decision on October 18,
1997. The dispositive portion thereof reads as follows:
WHEREFORE, the plaintiff having proved by the preponderance of evidence
the allegations of the Complaint, the Court finds for the plaintiff and
hereby orders:
ON THE FIRST CAUSE OF ACTION:
1. The declaration of the following documents as null and void:
(a) The Deed of Real Estate Mortgage dated December 1, 1993 executed
before Notary Public Romulo Urrea and his notarial register entered as
Doc. No. 212; Page No. 44, Book No. XXI, Series of 1993.
(b) The Certificate of Sale executed by Notary Public Reynaldo Alcantara on
April 20, 1995.
(c) The Affidavit of Consolidation of Ownership executed by the defendant
(c) The Affidavit of Consolidation of Ownership executed by the defendant
over the residential lot located at Brgy. San Francisco, San Pablo City,
covered by ARP No. 95-091-1236 entered as Doc. No. 406; Page No. 83,
Book No. III, Series of 1996 of Notary Public Octavio M. Zayas.
(d) The assessment of real property No. 95-051-1236.
2. The defendant is ordered to reconvey the property subject of this
complaint to the plaintiff.
ON THE SECOND CAUSE OF ACTION
1. The defendant to pay the plaintiff the sum of P40,000.00 representing
the value of the car which was burned.
ON BOTH CAUSES OF ACTION
1. The defendant to pay the plaintiff the sum of P25,000.00 as attorneys
fees;
2. The defendant to pay plaintiff P25,000.00 as moral damages;
3. The defendant to pay the plaintiff the sum of P10,000.00 as exemplary
damages;
4. To pay the cost of the suit.
The counterclaim is dismissed.
SO ORDERED.[6]
Upon elevation of the case to the Court of Appeals, the appellate court
affirmed the trial courts finding that the subject property was conjugal in
nature, in the absence of clear and convincing evidence to rebut the
presumption that the subject property acquired during the marriage of
spouses Dailo belongs to their conjugal partnership.[7] The appellate court
declared as void the mortgage on the subject property because it was
constituted without the knowledge and consent of respondent, in
accordance with Article 124 of the Family Code. Thus, it upheld the trial
courts order to reconvey the subject property to respondent.[8] With
respect to the damage to respondents car, the appellate court found
petitioner to be liable therefor because it is responsible for the
consequences of the acts or omissions of the person it hired to accomplish
the assigned task.[9] All told, the appellate court affirmed the trial courts
Decision, but deleted the award for damages and attorneys fees for lack of
basis.[10]
Hence, this petition, raising the following issues for this Courts
consideration:
1. WHETHER OR NOT THE MORTGAGE CONSTITUTED BY THE LATE
MARCELINO DAILO, JR. ON THE SUBJECT PROPERTY AS CO-OWNER
THEREOF IS VALID AS TO HIS UNDIVIDED SHARE.
2. WHETHER OR NOT THE CONJUGAL PARTNERSHIP IS LIABLE FOR THE
PAYMENT OF THE LOAN OBTAINED BY THE LATE MARCELINO DAILO, JR.
THE SAME HAVING REDOUNDED TO THE BENEFIT OF THE FAMILY.[11]
First, petitioner takes issue with the legal provision applicable to the
factual milieu of this case. It contends that Article 124 of the Family Code
should be construed in relation to Article 493 of the Civil Code, which
states:
ART. 493. Each co-owner shall have the full ownership of his part and of
the fruits and benefits pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another person in its enjoyment,
except when personal rights are involved. But the effect of the alienation
or the mortgage, with respect to the co-owners, shall be limited to the
portion which may be allotted to him in the division upon the termination
of the co-ownership.
Article 124 of the Family Code provides in part:
ART. 124. The administration and enjoyment of the conjugal partnership
property shall belong to both spouses jointly. . . .
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. . . .
Petitioner argues that although Article 124 of the Family Code requires the
consent of the other spouse to the mortgage of conjugal properties, the
framers of the law could not have intended to curtail the right of a spouse
from exercising full ownership over the portion of the conjugal property
pertaining to him under the concept of co-ownership.[12] Thus, petitioner
would have this Court uphold the validity of the mortgage to the extent of
the late Marcelino Dailo, Jr.s share in the conjugal partnership.
In Guiang v. Court of Appeals,[13] it was held that the sale of a conjugal
property requires the consent of both the husband and wife.[14] In
applying Article 124 of the Family Code, this Court declared that the
absence of the consent of one renders the entire sale null and void,
including the portion of the conjugal property pertaining to the husband
who contracted the sale. The same principle in Guiang squarely applies to
the instant case. As shall be discussed next, there is no legal basis to
construe Article 493 of the Civil Code as an exception to Article 124 of the
Family Code.
Respondent and the late Marcelino Dailo, Jr. were married on August 8,
1967. In the absence of a marriage settlement, the system of relative
community or conjugal partnership of gains governed the property
relations between respondent and her late husband.[15] With the
effectivity of the Family Code on August 3, 1988, Chapter 4 on Conjugal
Partnership of Gains in the Family Code was made applicable to conjugal
partnership of gains already established before its effectivity unless vested
rights have already been acquired under the Civil Code or other laws.[16]
The rules on co-ownership do not even apply to the property relations of
respondent and the late Marcelino Dailo, Jr. even in a suppletory manner.
The regime of conjugal partnership of gains is a special type of partnership,
where the husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and those
acquired by either or both spouses through their efforts or by chance.[17]
Unlike the absolute community of property wherein the rules on co-
ownership apply in a suppletory manner,[18] the conjugal partnership shall
be governed by the rules on contract of partnership in all that is not in
conflict with what is expressly determined in the chapter (on conjugal
partnership of gains) or by the spouses in their marriage settlements.[19]
Thus, the property relations of respondent and her late husband shall be
governed, foremost, by Chapter 4 on Conjugal Partnership of Gains of the
Family Code and, suppletorily, by the rules on partnership under the Civil
Code. In case of conflict, the former prevails because the Civil Code
provisions on partnership apply only when the Family Code is silent on the
matter.
The basic and established fact is that during his lifetime, without the
knowledge and consent of his wife, Marcelino Dailo, Jr. constituted a real
estate mortgage on the subject property, which formed part of their
conjugal partnership. By express provision of Article 124 of the Family
Code, in the absence of (court) authority or written consent of the other
spouse, any disposition or encumbrance of the conjugal property shall be
void.
The aforequoted provision does not qualify with respect to the share of the
spouse who makes the disposition or encumbrance in the same manner
that the rule on co-ownership under Article 493 of the Civil Code does.
Where the law does not distinguish, courts should not distinguish.[20]
Thus, both the trial court and the appellate court are correct in declaring
the nullity of the real estate mortgage on the subject property for lack of
respondents consent.
Second, petitioner imposes the liability for the payment of the principal
obligation obtained by the late Marcelino Dailo, Jr. on the conjugal
partnership to the extent that it redounded to the benefit of the
family.[21]
Under Article 121 of the Family Code, [T]he conjugal partnership shall be
liable for: . . . (3) Debts and obligations contracted by either spouse
without the consent of the other to the extent that the family may have
been benefited; . . . . For the subject property to be held liable, the
obligation contracted by the late Marcelino Dailo, Jr. must have redounded
to the benefit of the conjugal partnership. There must be the requisite
showing then of some advantage which clearly accrued to the welfare of
the spouses. Certainly, to make a conjugal partnership respond for a
liability that should appertain to the husband alone is to defeat and
frustrate the avowed objective of the new Civil Code to show the utmost
concern for the solidarity and well-being of the family as a unit.[22]
The burden of proof that the debt was contracted for the benefit of the
conjugal partnership of gains lies with the creditor-party litigant claiming as
such.[23] Ei incumbit probatio qui dicit, non qui negat (he who asserts, not
he who denies, must prove).[24] Petitioners sweeping conclusion that the
loan obtained by the late Marcelino Dailo, Jr. to finance the construction of
housing units without a doubt redounded to the benefit of his family,
without adducing adequate proof, does not persuade this Court. Other
than petitioners bare allegation, there is nothing from the records of the
case to compel a finding that, indeed, the loan obtained by the late
Marcelino Dailo, Jr. redounded to the benefit of the family. Consequently,
the conjugal partnership cannot be held liable for the payment of the
principal obligation.
In addition, a perusal of the records of the case reveals that during the
trial, petitioner vigorously asserted that the subject property was the
exclusive property of the late Marcelino Dailo, Jr. Nowhere in the answer
filed with the trial court was it alleged that the proceeds of the loan
redounded to the benefit of the family. Even on appeal, petitioner never
claimed that the family benefited from the proceeds of the loan. When a
party adopts a certain theory in the court below, he will not be permitted
to change his theory on appeal, for to permit him to do so would not only
be unfair to the other party but it would also be offensive to the basic rules
of fair play, justice and due process.[25] A party may change his legal
theory on appeal only when the factual bases thereof would not require
presentation of any further evidence by the adverse party in order to
enable it to properly meet the issue raised in the new theory.[26]
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DAVID V. PELAYO and LORENZA* B. PELAYO, June 8, 2005

G.R. No. 141323 x--------------------------------------------------------

Petitioners, ---x

Present:
DECISION

AUSTRIA-MARTINEZ, J.:

PUNO, Chairman,**
This resolves the petition for review on certiorari seeking the reversal of
the Decision[1] of the Court of Appeals (CA) promulgated on April 20, 1999
AUSTRIA-MARTINEZ,*** which reversed the Decision of the Regional Trial Court (RTC) of Panabo,
Davao, Branch 34, in Civil Case No. 91-46; and the CA Resolution dated
December 17, 1999 denying petitioners motion for reconsideration.
CALLEJO, SR.,
- versus - The antecedent facts as aptly narrated by the CA are as follows:

TINGA, and David Pelayo (Pelayo),by a Deed of Absolute Sale executed on January 11,
1988, conveyed to Melki Perez (Perez) two parcels of agricultural land (the
lots) situated in Panabo, Davao which are portions of Lot 4192, Cad. 276
CHICO-NAZARIO, JJ. covered by OCT P-16873.

Loreza Pelayo (Loreza), wife of Pelayo, and another one whose signature is
illegible witnessed the execution of the deed.

Loreza, however, signed only on the third page in the space provided for
Promulgated: witnesses on account of which Perez application for registration of the
MELKI E. PEREZ, deed with the Office of the Register of Deeds in Tagum, Davao was denied.

Perez thereupon asked Loreza to sign on the first and second pages of the
Respondent. deed but she refused, hence, he instituted on August 8, 1991 the instant
complaint for specific performance against her and her husband Pelayo
(defendants).
The defendants moved to dismiss the complaint on the ground that it
stated no cause of action, citing Section 6 of RA 6656 otherwise known as
the Comprehensive Agrarian Reform Law which took effect on June 10,
1988 and which provides that contracts executed prior thereto shall be
valid only when registered with the Register of Deeds within a period of
three (3) months after the effectivity of this Act.
The questioned deed having been executed on January 10, 1988, the
defendants claimed that Perez had at least up to September 10, 1988
within which to register the same, but as they failed to, it is not valid and,
therefore, unenforceable.
The trial court thus dismissed the complaint. On appeal to this Court, the
dismissal was set aside and the case was remanded to the lower court for
further proceedings.
In their Answer, the defendants claimed that as the lots were occupied
illegally by some persons against whom they filed an ejectment case, they
and Perez who is their friend and known at the time as an activist/leftist,
hence feared by many, just made it appear in the deed that the lots were
sold to him in order to frighten said illegal occupants, with the intentional
omission of Lorezas signature so that the deed could not be registered; and
that the deed being simulated and bereft of consideration is
void/inexistent.
Perez countered that the lots were given to him by defendant Pelayo in
consideration of his services as his attorney-in-fact to make the necessary
representation and negotiation with the illegal occupants-defendants in
the ejectment suit; and that after his relationship with defendant Pelayo
became sour, the latter sent a letter to the Register of Deeds of Tagum
requesting him not to entertain any transaction concerning the lots title to
which was entrusted to Perez who misplaced and could [not] locate it.
Defendant Pelayo claimed in any event, in his Pre-trial brief filed on March
19, 1996, that the deed was without his wife Lorezas consent, hence, in
light of Art. 166 of the Civil Code which provides:
Article 166. Unless the wife has been declared a non compos mentis or a
spendthrift, or is under civil interdiction or is confined in a leprosarium, the
husband cannot alienate or encumber any real property of the conjugal
partnership without the wifes consent . . .
it is null and void.
The trial court, finding, among others, that Perez did not possess, nor pay
the taxes on the lots, that defendant Pelayo was indebted to Perez for
services rendered and, therefore, the deed could only be considered as
evidence of debt, and that in any event, there was no marital consent to
nor actual consideration for the deed, held that the deed was null and void
and accordingly rendered judgment the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered ordering and directing the
defendants to pay plaintiff Melki Perez the sum of TEN THOUSAND
(P10,000.00) Pesos as principal with 12% interest per annum starting from
the date of filing of the complaint on August 1, 1991 until plaintiff is fully
paid.
The defendants shall likewise pay to plaintiff the sum of THREE THOUSAND
(P3,000.00) as attorneys fees.
The court further orders that the Deed of Absolute Sale, (Annex A) of the
complaint and (Annex C) of the plaintiffs Motion for Summary Judgment is
declared null and void and without force and it is likewise removed as a
cloud over defendants title and property in suit. . . .[2]
The RTC Decision was appealed by herein respondent Perez to the CA.
Petitioners failed to file their appellees brief. The CA then promulgated its
Decision on April 20, 1999 whereby it ruled that by Lorenzas signing as
witness to the execution of the deed, she had knowledge of the
transaction and is deemed to have given her consent to the same; that
herein petitioners failed to adduce sufficient proof to overthrow the
presumption that there was consideration for the deed, and that petitioner
David Pelayo, being a lawyer, is presumed to have acted with due care and
to have signed the deed with full knowledge of its contents and import.
The CA reversed and set aside the RTC Decision, declaring as valid and
enforceable the questioned deed of sale and ordering herein petitioner
Lorenza Pelayo to affix her signature on all pages of said document.
Petitioners moved for reconsideration of the decision but the same was
denied per Resolution dated December 17, 1999. The CA found said
motion to have been filed out of time and ruled that even putting aside
technicality, petitioners failed to present any ground bearing on the merits
of the case to justify a reversal or setting aside of the decision.
Hence, this petition for review on certiorari on the following grounds:
1. The CA erred in ignoring the specific provision of Section 6, in relation to
Section 4 of R.A. No. 6657 otherwise known as the Comprehensive
Agrarian Reform Law of 1988 which took effect on June 15, 1988 and
which provides that contracts executed prior thereto shall be valid only
when registered with the Register of Deeds within a period of three (3)
months after the effectivity of this Act.
2. The CA erred in holding that the deed of sale was valid and considering
the P10,000.00 adjudged by the trial court as Perezs remuneration as the
consideration for the deed of sale, instead of declaring the same as null
and void for being fictitious or simulated and on the basis of Art. 491, Par.
2 of the New Civil Code which prohibits agents from acquiring by purchase
properties from his principal under his charge.
3. The CA made a novel ruling that there was implied marital consent of
the wife of petitioner David Pelayo.
4. Petitioners should have been allowed to file their appellees brief to
ventilate their side, considering the existence of peculiar circumstances
which prevented petitioners from filing said brief.
On the other hand, respondent points out that the CA, in resolving the first
appeal docketed as CA-G.R. SP No. 38700[3] brought by respondent
assailing the RTC Order granting herein petitioners motion to dismiss,
already ruled that under R.A. No. 6657, the sale or transfer of private
agricultural land is allowed only when the area of the land being conveyed
constitutes or is a part of, the landowner-seller retained area and when the
total landholding of the purchaser-transferee, including the property sold,
does not exceed five (5) hectares; that in this case, the land in dispute is
only 1.3 hectares and there is no proof that the transferees (herein
respondent) total landholding inclusive of the subject land will exceed 5
hectares, the landholding ceiling prescribed by R.A. No. 6657; that the
failure of respondent to register the instrument was not due to his fault or
negligence but can be attributed to Lorenzas unjustified refusal to sign two
pages of the deed despite several requests of respondent; and that
therefore, the CA ruled that the deed of sale subject of this case is valid
under R.A. No. 6657.
Respondent further maintains that the CA correctly held in its assailed
Decision that there was consideration for the contract and that Lorenza is
deemed to have given her consent to the deed of sale.
Respondent likewise opines that the CA was right in denying petitioners
motion for reconsideration where they prayed that they be allowed to file
their appellees brief as their counsel failed to file the same on account of
said counsels failing health due to cancer of the liver. Respondent
emphasized that in petitioners motion for reconsideration, they did not
even cite any errors made by the CA in its Decision.
The issues boil down to the question of whether or not the deed of sale
was null and void on the following grounds: (a) for not complying with the
provision in R.A. No. 6657 that such document must be registered with the
Register of Deeds within three months after the effectivity of said law; (b)
for lack of marital consent; (c) for being prohibited under Article 1491 (2)
of the Civil Code; and (d) for lack of consideration.
We rule against petitioners.
The issue of whether or not the deed of sale is null and void under R.A. No.
6657, for respondents failure to register said document with the Register
of Deeds within three months after the effectivity of R.A. No. 6657, had
been resolved with finality by the CA in its Decision dated November 24,
1994 in CA-G.R. SP No. 38700.[4] Herein petitioners no longer elevated said
CA Decision to this Court and the same became final and executory on
January 7, 1995.[5]
In said decision, the CA interpreted Section 4, in relation to Section 70 of
R.A. No. 6657, to mean thus:
. . . the proper interpretation of both sections is that under R.A. No. 6657,
the sale or transfer of a private agricultural land is allowed only when said
land area constitutes or is a part of the landowner-seller retained area and
only when the total landholdings of the purchaser-transferee, including the
property sold does not exceed five (5) hectares.
Aside from declaring that the failure of respondent to register the deed
was not of his own fault or negligence, the CA ruled that respondents
failure to register the deed of sale within three months after effectivity of
The Comprehensive Agrarian Reform Law did not invalidate the deed of
sale as the transaction over said property is not proscribed by R.A. No.
6657.
Thus, under the principle of law of the case, said ruling of the CA is now
binding on petitioners. Such principle was elucidated in Cucueco vs. Court
of Appeals,[6] to wit:
Law of the case has been defined as the opinion delivered on a former
appeal. It is a term applied to an established rule that when an appellate
court passes on a question and remands the case to the lower court for
further proceedings, the question there settled becomes the law of the
case upon subsequent appeal. It means that whatever is once irrevocably
established as the controlling legal rule or decision between the same
parties in the same case continues to be the law of the case, whether
correct on general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before the
court.
Petitioners not having questioned the Decision of the CA dated November
24, 1994 which then attained finality, the ruling that the deed of sale
subject of this case is not among the transactions deemed as invalid under
R.A. No. 6657, is now immutable.
We agree with the CA ruling that petitioner Lorenza, by affixing her
signature to the Deed of Sale on the space provided for witnesses, is
deemed to have given her implied consent to the contract of sale.
Sale is a consensual contract that is perfected by mere consent, which may
either be express or implied.[7] A wifes consent to the husbands
disposition of conjugal property does not always have to be explicit or set
forth in any particular document, so long as it is shown by acts of the wife
that such consent or approval was indeed given.[8] In the present case,
although it appears on the face of the deed of sale that Lorenza signed only
as an instrumental witness, circumstances leading to the execution of said
document point to the fact that Lorenza was fully aware of the sale of their
conjugal property and consented to the sale.
In their Pre-Trial Brief,[9] petitioners admitted that even prior to 1988,
they have been having serious problems, including threats to the life of
petitioner David Pelayo, due to conflicts with the illegal occupants of the
property in question, so that respondent, whom many feared for being a
leftist/activist, offered his help in driving out said illegal occupants.
Human experience tells us that a wife would surely be aware of serious
problems such as threats to her husbands life and the reasons for such
threats. As they themselves stated, petitioners problems over the subject
property had been going on for quite some time, so it is highly improbable
for Lorenza not to be aware of what her husband was doing to remedy
such problems. Petitioners do not deny that Lorenza Pelayo was present
during the execution of the deed of sale as her signature appears thereon.
Neither do they claim that Lorenza Pelayo had no knowledge whatsoever
about the contents of the subject document. Thus, it is quite
certain that she knew of the sale of their conjugal property between her
husband and respondent.
Under the rules of evidence, it is presumed that a person takes ordinary
care of his concerns.[10] Petitioners did not even attempt to overcome the
aforementioned presumption as no evidence was ever presented to show
that Lorenza was in any way lacking in her mental faculties and, hence,
could not have fully understood the ramifications of signing the deed of
sale. Neither did petitioners present any evidence that Lorenza had been
defrauded, forced, intimidated or threatened either by her own husband
or by respondent into affixing her signature on the subject document. If
Lorenza had any objections over the conveyance of the disputed property,
she could have totally refrained from having any part in the execution of
the deed of sale. Instead, Lorenza even affixed her signature thereto.
Moreover, under Article 173, in relation to Article 166, both of the New
Civil Code, which was still in effect on January 11, 1988 when the deed in
question was executed, the lack of marital consent to the disposition of
conjugal property does not make the contract void ab initio but merely
voidable. Said provisions of law provide:
Art. 166. Unless the wife has been declared a non compos mentis or a
spendthrift, or is under civil interdiction or is confined in a leprosarium, the
husband cannot alienate or encumber any real property of the conjugal
property without the wifes consent. If she refuses unreasonably to give her
consent, the court may compel her to grant the same.
...
Art. 173. The wife may, during the marriage, and within ten years from the
transaction questioned, ask the courts for the annulment of any contract
of the husband entered into without her consent, when such consent is
required, or any act or contract of the husband which tends to defraud her
or impair her interest in the conjugal partnership property. Should the wife
fail to exercise this right, she or her heirs, after the dissolution of the
marriage, may demand the value of property fraudulently alienated by the
husband.
Hence, it has been held that the contract is valid until the court annuls the
same and only upon an action brought by the wife whose consent was not
obtained.[11] In the present case, despite respondents repeated demands
for Lorenza to affix her signature on all the pages of the deed of sale,
showing respondents insistence on enforcing said contract, Lorenza still did
not file a case for annulment of the deed of sale. It was only when
respondent filed a complaint for specific performance on August 8, 1991
when petitioners brought up Lorenzas alleged lack of consent as an
affirmative defense. Thus, if the transaction was indeed entered into
without Lorenzas consent, we find it quite puzzling why for more than
three and a half years, Lorenza did absolutely nothing to seek the
nullification of the assailed contract.
The foregoing circumstances lead the Court to believe that Lorenza knew
of the full import of the transaction between respondent and her
husband; and, by affixing her signature on the deed of sale, she, in effect,
signified her consent to the disposition of their conjugal property.
With regard to petitioners asseveration that the deed of sale is invalid
under Article 1491, paragraph 2 of the New Civil Code, we find such
argument unmeritorious. Article 1491 (2) provides:
Art. 1491. The following persons cannot acquire by purchase, even at a
public or judicial auction, either in person or through the mediation of
another:
...
(2) Agents, the property whose administration or sale may have been
entrusted to them, unless the consent of the principal has been given;
...
In Distajo vs. Court of Appeals,[12] a landowner, Iluminada Abiertas,
designated one of her sons as the administrator of several parcels of her
land. The landowner subsequently executed a Deed of Certification of Sale
of Unregistered Land, conveying some of said land to her
son/administrator. Therein, we held that:
Under paragraph (2) of the above article, the prohibition against agents
purchasing property in their hands for sale or management is not absolute.
It does not apply if the principal consents to the sale of the property in the
hands of the agent or administrator. In this case, the deeds of sale signed
by Iluminada Abiertas shows that she gave consent to the sale of the
properties in favor of her son, Rufo, who was the administrator of the
properties. Thus, the consent of the principal Iluminada Abiertas removes
the transaction out of the prohibition contained in Article 1491(2).[13]
The above-quoted ruling is exactly in point with this case before us.
Petitioners, by signing the Deed of Sale in favor of respondent, are also
deemed to have given their consent to the sale of the subject property in
favor of respondent, thereby making the transaction an exception to the
general rule that agents are prohibited from purchasing the property of
their principals.
Petitioners also argue that the CA erred in ruling that there was
consideration for the sale. We find no error in said appellate courts ruling.
The element of consideration for the sale is indeed present. Petitioners, in
adopting the trial courts narration of antecedent facts in their petition,[14]
thereby admitted that they authorized respondent to represent them in
negotiations with the squatters occupying the disputed property and, in
consideration of respondents services, they executed the subject deed of
sale. Aside from such services rendered by respondent, petitioners also
acknowledged in the deed of sale that they received in full the amount of
Ten Thousand Pesos. Evidently, the consideration for the sale is
respondents services plus the aforementioned cash money.
Petitioners contend that the consideration stated in the deed of sale is
excessively inadequate, indicating that the deed of sale was merely
simulated. We are not persuaded. Our ruling in Buenaventura vs. Court of
Appeals[15] is pertinent, to wit:
. . . Indeed, there is no requirement that the price be equal to the exact
value of the subject matter of sale. . . . As we stated in Vales vs. Villa:
Courts cannot follow one every step of his life and extricate him from bad
bargains, protect him from unwise investments, relieve him from one-
sided contracts, or annul the effects of foolish acts. Courts cannot
constitute themselves guardians of persons who are not legally
incompetent. Courts operate not because one person has been defeated
or overcome by another, but because he has been defeated or overcome
illegally. Men may do foolish things, make ridiculous contracts, use
miserable judgment, and lose money by them indeed, all they have in the
world; but not for that alone can the law intervene and restore. There
must be, in addition, a violation of the law, the commission of what the law
knows as an actionable wrong, before the courts are authorized to lay hold
of the situation and remedy it.[16]
Verily, in the present case, petitioners have not presented proof that there
has been fraud, mistake or undue influence exercised upon them by
respondent. It is highly unlikely and contrary to human experience that a
layman like respondent would be able to defraud, exert undue influence,
or in any way vitiate the consent of a lawyer like petitioner David Pelayo
who is expected to be more knowledgeable in the ways of drafting
contracts and other legal transactions.
Furthermore, in their Reply to Respondents Memorandum,[17] petitioners
adopted the CAs narration of fact that petitioners stated in a letter they
sent to the Register of Deeds of Tagum that they have entrusted the titles
over subject lots to herein respondent. Such act is a clear indication that
they intended to convey the subject property to herein respondent and the
deed of sale was not merely simulated or fictitious.
Lastly, petitioners claim that they were not able to fully ventilate their
defense before the CA as their lawyer, who was then suffering from cancer
of the liver, failed to file their appellees brief. Thus, in their motion for
reconsideration of the CA Decision, they prayed that they be allowed to
submit such appellees brief. The CA, in its Resolution dated December 17,
1999, stated thus:
By movant-defendant-appellees own information, his counsel received a
copy of the decision on May 5, 1999. He, therefore, had fifteen (15) days
from said date or up to May 20, 1999 to file the motion. The motion,
however, was sent through a private courier and, therefore, considered to
have been filed on the date of actual receipt on June 17, 1999 by the
addressee Court of Appeals, was filed beyond the reglementary period.
Technicality aside, movant has not proffered any ground bearing on the
merits of the case why the decision should be set aside.
Petitioners never denied the CA finding that their motion for
reconsideration was filed beyond the fifteen-day reglementary period. On
that point alone, the CA is correct in denying due course to said motion.
The motion having been belatedly filed, the CA Decision had then attained
finality. Thus, in Abalos vs. Philex Mining Corporation,[18] we held that:
. . . Nothing is more settled in law than that once a judgment attains
finality it thereby becomes immutable and unalterable. It may no longer be
modified in any respect, even if the modification is meant to correct what
is perceived to be an erroneous conclusion of fact or law, and regardless of
whether the modification is attempted to be made by the court rendering
it or by the highest court of the land.
Moreover, it is pointed out by the CA that said motion did not present any
defense or argument on the merits of the case that could have convinced
the CA to reverse or modify its Decision.
We have consistently held that a petitioners right to due process is not
violated where he was able to move for reconsideration of the order or
decision in question.[19] In this case, petitioners had the opportunity to
fully expound on their defenses through a motion for reconsideration.
Petitioners did file such motion but they wasted such opportunity by failing
to present therein whatever errors they believed the CA had committed in
its Decision. Definitely, therefore, the denial of petitioners motion for
reconsideration, praying that they be allowed to file appellees brief, did
not infringe petitioners right to due process as any issue that petitioners
wanted to raise could and should have been contained in said motion for
reconsideration.

IN VIEW OF THE FOREGOING, the petition is DENIED and the Decision of

the Court of Appeals dated April 20, 1999 and its Resolution dated
December 17, 1999 are hereby AFFIRMED.

SO ORDERED.
G.R. No. 116668 July 28, 1997
ERLINDA A. AGAPAY, petitioner,
vs.
CARLINA (CORNELIA) V. PALANG and HERMINIA P. DELA CRUZ,
respondents.
ROMERO, J.:
Before us is a petition for review of the decision of the Court of Appeals in
CA-G.R. CV No. 24199 entitled "Erlinda Agapay v. Carlina (Cornelia) Palang
and Herminia P. Dela Cruz" dated June 22, 1994 involving the ownership of
two parcels of land acquired during the cohabitation of petitioner and
private respondent's legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he took
private respondent Carlina (or Cornelia) Vallesterol as a wife at the
Pozorrubio Roman Catholic Church in Pangasinan. A few months after the
wedding, in October 1949, he left to work in Hawaii. Miguel and Carlina's
only child, Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was in
1964 and during the entire duration of his year-long sojourn he stayed in
Zambales with his brother, not in Pangasinan with his wife and child. The
trial court found evidence that as early as 1957, Miguel had attempted to
divorce Carlina in Hawaii. 1 When he returned for good in 1972, he refused
to live with private respondents, but stayed alone in a house in Pozorrubio,
Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his
second marriage with nineteen-year-old Erlinda Agapay, herein petitioner.
2 Two months earlier, on May 17, 1973, Miguel and Erlinda, as evidenced
by the Deed of Sale, jointly purchased a parcel of agricultural land located
at San Felipe, Binalonan, Pangasinan with an area of 10,080 square meters.
Consequently, Transfer Certificate of Title No. 101736 covering said rice
land was issued in their names.
A house and lot in Binalonan, Pangasinan was likewise purchased on
September 23, 1975, allegedly by Erlinda as the sole vendee. TCT No.
143120 covering said property was later issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed of
Donation as a form of compromise agreement to settle and end a case
filed by the latter. 3 The parties therein agreed to donate their conjugal
property consisting of six parcels of land to their only child, Herminia
Palang. 4
Miguel and Erlinda's cohabitation produced a son, Kristopher A. Palang,
born on December 6, 1977. In 1979, Miguel and Erlinda were convicted of
Concubinage upon Carlina's complaint. 5 Two years later, on February 15,
1981, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la
Cruz, herein private respondents, instituted the case at bar, an action for
recovery of ownership and possession with damages against petitioner
before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case No. U-
4265). Private respondents sought to get back the riceland and the house
and lot both located at Binalonan, Pangasinan allegedly purchased by
Miguel during his cohabitation with petitioner.
Petitioner, as defendant below, contended that while the riceland covered
by TCT No. 101736 is registered in their names (Miguel and Erlinda), she
had already given her half of the property to their son Kristopher Palang.
She added that the house and lot covered by TCT No. 143120 is her sole
property, having bought the same with her own money. Erlinda added that
Carlina is precluded from claiming aforesaid properties since the latter had
already donated their conjugal estate to Herminia.
After trial on the merits, the lower court rendered its decision on June 30,
1989 dismissing the complaint after declaring that there was little evidence
to prove that the subject properties pertained to the conjugal property of
Carlina and Miguel Palang. The lower court went on to provide for the
intestate shares of the parties, particularly of Kristopher Palang, Miguel's
illegitimate son. The dispositive portion of the decision reads.
WHEREFORE, premises considered, judgment is hereby
rendered
1) Dismissing the complaint, with costs against plaintiffs;
2) Confirming the ownership of defendant Erlinda Agapay of the
residential lot located at Poblacion, Binalonan, Pangasinan, as evidenced
by TCT No. 143120, Lot 290-B including the old house standing therein;
3) Confirming the ownership of one-half (1/2) portion of that piece
of agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan,
consisting of 10,080 square meters and as evidenced by TCT No. 101736,
Lot 1123-A to Erlinda Agapay;
4. Adjudicating to Kristopher Palang as his inheritance from his
deceased father, Miguel Palang, the one-half (1/2) of the agricultural land
situated at Balisa, San Felipe, Binalonan, Pangasinan, under TCT No.
101736 in the name of Miguel Palang, provided that the former
(Kristopher) executes, within 15 days after this decision becomes final and
executory, a quit-claim forever renouncing any claims to annul/reduce the
donation to Herminia Palang de la Cruz of all conjugal properties of her
parents, Miguel Palang and Carlina Vallesterol Palang, dated October 30,
1975, otherwise, the estate of deceased Miguel Palang will have to be
settled in another separate action;
5) No pronouncement as to damages and attorney's fees.
SO ORDERED. 6
On appeal, respondent court reversed the trial court's decision. The Court
of Appeals rendered its decision on July 22, 1994 with the following
dispositive portion;
WHEREFORE, PREMISES CONSIDERED, the appealed decision in hereby
REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owners of the properties in
question;
2. Ordering defendant-appellee to vacate and deliver the properties
in question to herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to cancel Transfer
Certificate of Title Nos. 143120 and 101736 and to issue in lieu thereof
another certificate of title in the name of plaintiffs-appellants.
No pronouncement as to costs. 7
Hence, this petition.
Petitioner claims that the Court of Appeals erred in not sustaining the
validity of two deeds of absolute sale covering the riceland and the house
and lot, the first in favor of Miguel Palang and Erlinda Agapay and the
second, in favor of Erlinda Agapay alone. Second, petitioner contends that
respondent appellate court erred in not declaring Kristopher A. Palang as
Miguel Palang's illegitimate son and thus entitled to inherit from Miguel's
estate. Third, respondent court erred, according to petitioner, "in not
finding that there is sufficient pleading and evidence that Kristopher A.
Palang or Christopher A. Palang should be considered as party-defendant
in Civil Case No. U-4625 before the trial court and in CA-G.R. No. 24199. 8
After studying the merits of the instant case, as well as the pertinent
provisions of law and jurisprudence, the Court denies the petition and
affirms the questioned decision of the Court of Appeals.
The first and principal issue is the ownership of the two pieces of property
subject of this action. Petitioner assails the validity of the deeds of
conveyance over the same parcels of land. There is no dispute that the
transfer of ownership from the original owners of the riceland and the
house and lot, Corazon Ilomin and the spouses Cespedes, respectively,
were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel and
Erlinda. The provision of law applicable here is Article 148 of the Family
Code providing for cases of cohabitation when a man and a woman who
are not capacitated to marry each other live exclusively with each other as
husband and wife without the benefit of marriage or under a void
marriage. While Miguel and Erlinda contracted marriage on July 15, 1973,
said union was patently void because the earlier marriage of Miguel and
Carlina was still subsisting and unaffected by the latter's de facto
separation.
Under Article 148, 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. It must be stressed that actual contribution is required by
this provision, in contrast to Article 147 which states that efforts in the
care and maintenance of the family and household, are regarded as
contributions to the acquisition of common property by one who has no
salary or income or work or industry. If the actual contribution of the party
is not proved, there will be no co-ownership and no presumption of equal
shares. 9
In the case at bar, Erlinda tried to establish by her testimony that she is
engaged in the business of buy and sell and had a sari-sari store 10 but
failed to persuade us that she actually contributed money to buy the
subject riceland. Worth noting is the fact that on the date of conveyance,
May 17, 1973, petitioner was only around twenty years of age and Miguel
Palang was already sixty-four and a pensioner of the U.S. Government.
Considering her youthfulness, it is unrealistic to conclude that in 1973 she
contributed P3,750.00 as her share in the purchase price of subject
property, 11 there being no proof of the same.
Petitioner now claims that the riceland was bought two months before
Miguel and Erlinda actually cohabited. In the nature of an afterthought,
said added assertion was intended to exclude their case from the
operation of Article 148 of the Family Code. Proof of the precise date when
they commenced their adulterous cohabitation not having been adduced,
we cannot state definitively that the riceland was purchased even before
they started living together. In any case, even assuming that the subject
property was bought before cohabitation, the rules of co-ownership would
still apply and proof of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the
purchase price of the riceland in Binalonan, Pangasinan, we find no basis to
justify her co-ownership with Miguel over the same. Consequently, the
riceland should, as correctly held by the Court of Appeals, revert to the
conjugal partnership property of the deceased Miguel and private
respondent Carlina Palang.
Furthermore, it is immaterial that Miguel and Carlina previously agreed to
donate their conjugal property in favor of their daughter Herminia in 1975.
The trial court erred in holding that the decision adopting their
compromise agreement "in effect partakes the nature of judicial
confirmation of the separation of property between spouses and the
termination of the conjugal partnership." 12 Separation of property
between spouses during the marriage shall not take place except by
judicial order or without judicial conferment when there is an express
stipulation in the marriage settlements. 13 The judgment which resulted
from the parties' compromise was not specifically and expressly for
separation of property and should not be so inferred.

With respect to the house and lot, Erlinda allegedly bought the same for
P20,000.00 on September 23, 1975 when she was only 22 years old. The
testimony of the notary public who prepared the deed of conveyance for
the property reveals the falsehood of this claim. Atty. Constantino Sagun
testified that Miguel Palang provided the money for the purchase price and
directed that Erlinda's name alone be placed as the vendee. 14
a party to the case at bar. His mother, Erlinda cannot be called his guardian
ad litem for he was not involved in the case at bar. Petitioner adds that
there is no need for Kristopher to file another action to prove that he is
illegitimate son of Miguel, in order to avoid multiplicity of suits. 19
Petitioner's grave error has been discussed in the preceding paragraph
where the need for probate proceedings to resolve the settlement of
Miguel's estate and Kristopher's successional rights has been pointed out.

The transaction was properly a donation made by Miguel to Erlinda, but WHEREFORE, the instant petition is hereby DENIED. The questioned
one which was clearly void and inexistent by express provision of law decision of the Court of Appeals is AFFIRMED. Costs against petitioner.
because it was made between persons guilty of adultery or concubinage at
the time of the donation, under Article 739 of the Civil Code. Moreover, SO ORDERED.
Article 87 of the Family Code expressly provides that the prohibition
against donations between spouses now applies to donations between
persons living together as husband and wife without a valid marriage, 15
for otherwise, the condition of those who incurred guilt would turn out to
be better than those in legal union. 16

The second issue concerning Kristopher Palang's status and claim as an

illegitimate son and heir to Miguel's estate is here resolved in favor of
respondent court's correct assessment that the trial court erred in making
pronouncements regarding Kristopher's heirship and filiation "inasmuch as
questions as to who are the heirs of the decedent, proof of filiation of
illegitimate children and the determination of the estate of the latter and
claims thereto should be ventilated in the proper probate court or in a
special proceeding instituted for the purpose and cannot be adjudicated in
the instant ordinary civil action which is for recovery of ownership and
possession." 17

As regards the third issue, petitioner contends that Kristopher Palang

should be considered as party-defendant in the case at bar following the
trial court's decision which expressly found that Kristopher had not been
impleaded as party defendant but theorized that he had submitted to the
court's jurisdiction through his mother/guardian ad litem. 18 The trial court
erred gravely. Kristopher, not having been impleaded, was, therefore, not
G.R. No. 202370 September 23, 2013
JUAN SEVILLA SALAS, JR., Petitioner,
vs.
EDEN VILLENA AGUILA, Respondent.
DECISION
CARPIO, J.:
The Case
This petition for review on certiorari1 assails the 16 March 2012 Decision2
and the 28 June 2012 Resolution3 of the Court of Appeals (CA) in CA-G.R.
CV No. 95322. The CA affirmed the 26 September 2008 Order4 of the
Regional Trial Court of Nasugbu, Batangas, Branch 14 (RTC), in Civil Case
No. 787.
The Facts
On 7 September 1985, petitioner Juan Sevilla Salas, Jr. (Salas) and
respondent Eden Villena Aguila (Aguila) were married. On 7 June 1986,
Aguila gave birth to their daughter, Joan Jiselle. Five months later, Salas left
their conjugal dwelling. Since then, he no longer communicated with
Aguila or their daughter.
On 7 October 2003, Aguila filed a Petition for Declaration of Nullity of
Marriage (petition) citing psychological incapacity under Article 36 of the
Family Code. The petition states that they "have no conjugal properties
whatsoever."5 In the Return of Summons dated 13 October 2003, the
sheriff narrated that Salas instructed his mother Luisa Salas to receive the
copy of summons and the petition.6
On 7 May 2007, the RTC rendered a Decision7 declaring the nullity of the
marriage of Salas and Aguila (RTC Decision). The RTC Decision further
provides for the "dissolution of their conjugal partnership of gains, if any."8
On 10 September 2007, Aguila filed a Manifestation and Motion9 stating
that she discovered: (a) two 200-square-meter parcels of land with
improvements located in San Bartolome, Quezon City, covered by Transfer
Certificate of Title (TCT) No. N-259299-A and TCT No. N-255497; and (b) a
108-square-meter parcel of land with improvement located in Tondo,
Manila, covered by TCT No. 243373 (collectively, "Discovered Properties").
The registered owner of the Discovered Properties is "Juan S.Salas, married
to Rubina C. Salas." The manifestation was set for hearing on 21
September 2007. However, Salas notice of hearing was returned unserved
with the remark, "RTS Refused To Receive."
On 19 September 2007, Salas filed a Manifestation with Entry of
Appearance10 requesting for an Entry of Judgment of the RTC Decision
since no motion for reconsideration or appeal was filed and no conjugal
property was involved.
On 21 September 2007, the hearing for Aguilas manifestation ensued,
with Aguila, her counsel and the state prosecutor present. During the
hearing, Aguila testified that on 17 April 2007 someone informed her of
the existence of the Discovered Properties. Thereafter, she verified the
information and secured copies of TCTs of the Discovered Properties.
When asked to clarify, Aguila testified that Rubina C. Salas (Rubina) is Salas
common-law wife.11
On 8 February 2008, Salas filed an Opposition to the Manifestation12
alleging that there is no conjugal property to be partitioned based on
Aguilas petition. According to Salas, Aguilas statement was a judicial
admission and was not made through palpable mistake. Salas claimed that
Aguila waived her right to the Discovered Properties. Salas likewise
enumerated properties he allegedly waived in favor of Aguila, to wit:(1)
parcels of land with improvements located in Sugar Landing Subdivision,
Alangilan, Batangas City; No. 176 Brias Street, Nasugbu, Batangas; P.
Samaniego Street, Silangan, Nasugbu, Batangas; and Batangas City,
financed by Filinvest; (2) cash amounting to P200,000.00; and (3) motor
vehicles, specifically Honda City and Toyota Tamaraw FX(collectively,
"Waived Properties"). Thus, Salas contended that the conjugal properties
were deemed partitioned.
The Ruling of the Regional Trial Court
In its 26 September 2008 Order, the RTC ruled in favor of Aguila. The
dispositive portion of the Order reads:
WHEREFORE, foregoing premises being considered, the petitioner and the
respondent are hereby directed to partition between themselves by
proper instruments of conveyance, the following properties, without
prejudice to the legitime of their legitimate child, Joan Jisselle Aguila Salas:
(1) A parcel of land registered in the name of Juan S. Salas married to
Rubina C. Salas located in San Bartolome, Quezon City and covered by TCT
No. N-259299-A marked as Exhibit "A" and its improvements;
(2) A parcel of land registered in the name of Juan S.Salas married to
Rubina C. Salas located in San Bartolome, Quezon City and covered by TCT
No. N-255497 marked as Exhibit "B" and its improvements;
(3) A parcel of land registered in the name of Juan S.Salas married to
Rubina Cortez Salas located in Tondo and covered by TCT No. 243373-Ind.
marked as Exhibit "D" and its improvements.
Thereafter, the Court shall confirm the partition so agreed upon bythe
parties, and such partition, together with the Order of the Court
confirming the same, shall be recorded in the Registry of Deeds of the
place in which the property is situated.
SO ORDERED.13
The RTC held that pursuant to the Rules,14 even upon entry of judgment
granting the annulment of marriage, the court can proceed with the
liquidation, partition and distribution of the conjugal partnership of gains if
it has not been judicially adjudicated upon, as in this case. The RTC found
that the Discovered Properties are among the conjugal properties to be
partitioned and distributed between Salas and Aguila. However, the RTC
held that Salas failed to prove the existence of the Waived Properties.
On 11 November 2008, Rubina filed a Complaint-in-Intervention, claiming
that: (1) she is Rubina Cortez, a widow and unmarried to Salas; (2) the
Discovered Properties are her paraphernal properties; (3) Salas did not
contribute money to purchase the Discovered Properties as he had no
permanent job in Japan; (4) the RTC did not acquire jurisdiction over her as
she was not a party in the case; and (5) she authorized her brother to
purchase the Discovered Properties but because he was not well-versed
with legal documentation, he registered the properties in the name of
"Juan S. Salas, married to Rubina C. Salas."
In its 16 December 2009 Order, the RTC denied the Motion for
Reconsideration filed by Salas. The RTC found that Salas failed to prove his
allegation that Aguila transferred the Waived Properties to third persons.
The RTC emphasized that it cannot go beyond the TCTs, which state that
Salas is the registered owner of the Discovered Properties. The RTC further
held that Salas and Rubina were at fault for failing to correct the TCTs, if
they were not married as they claimed.
Hence, Salas filed an appeal with the CA.
The Ruling of the Court of Appeals
On 16 March 2012, the CA affirmed the order of the RTC.15 The CA ruled
that Aguilas statement in her petition is not a judicial admission. The CA
pointed out that the petition was filed on 7 October 2003, but Aguila found
the Discovered Properties only on 17 April 2007 or before the
promulgation of the RTC decision. Thus, the CA concluded that Aguila was
palpably mistaken in her petition and it would be unfair to punish her over
a matter that she had no knowledge of at the time she made the
admission. The CA also ruled that Salas was not deprived of the
opportunity to refute Aguilas allegations in her manifestation, even
though he was not present in its hearing. The CA likewise held that Rubina
cannot collaterally attack a certificate of title.
In a Resolution dated 28 June 2012,16 the CA denied the Motion for
Reconsideration17 filed by Salas. Hence, this petition.
The Issues
Salas seeks a reversal and raises the following issues for resolution:
1. The Court of Appeals erred in affirming the trial courts decision ordering
the partition of the parcels of land covered by TCT Nos. N-259299-A and N-
255497 in Quezon City and as well as the property in Manila covered by
TCT No. 243373 between petitioner and respondent.
2. The Court of Appeals erred in affirming the trial courts decision in not
allowing Rubina C. Cortez to intervene in this case18
The Ruling of the Court
The petition lacks merit.
Since the original manifestation was an action for partition, this Court
cannot order a division of the property, unless it first makes a
determination as to the existence of a co-ownership.19 Thus, the
settlement of the issue of ownership is the first stage in this action.20
Basic is the rule that the party making an allegation in a civil case has the
burden of proving it by a preponderance of evidence.21 Salas alleged that
contrary to Aguilas petition stating that they had no conjugal property,
they actually acquired the Waived Properties during their marriage.
However, the RTC found, and the CA affirmed, that Salas failed to prove
the existence and acquisition of the Waived Properties during their
marriage:
A perusal of the record shows that the documents submitted by [Salas] as
the properties allegedly registered in the name of [Aguila] are merely
photocopies and not certified true copies, hence, this Court cannot admit
the same as part of the records of this case. These are the following:
(1) TCT No. T-65876 a parcel of land located at Poblacion, Nasugbu,
Batangas, registered in the name of Eden A. Salas, married to Juan Salas Jr.
which is cancelled by TCT No. T-105443 in the name of Joan Jiselle A. Salas,
single;
(2) TCT No. T-68066 a parcel of land situated in the Barrio of Landing,
Nasugbu, Batangas, registered in the name of Eden A. Salas, married to
Juan S. Salas Jr.
Moreover, [Aguila] submitted original copy of Certification issued by Ms.
Erlinda A. Dasal, Municipal Assessor of Nasugbu, Batangas, certifying that
[Aguila] has no real property (land and improvement) listed in the
Assessment Roll for taxation purposes, as of September 17, 2008.
Such evidence, in the absence of proof to the contrary, has the
presumption of regularity. x x x.
Suffice it to say that such real properties are existing and registered in the
name of [Aguila], certified true copies thereof should have been the ones
submitted to this Court. Moreover, there is also a presumption that
properties registered in the Registry of Deeds are also declared in the
Assessment Roll for taxation purposes.22
On the other hand, Aguila proved that the Discovered Properties were
acquired by Salas during their marriage.1wphi1 Both the RTC and the CA
agreed that the Discovered Properties registered in Salas name were
acquired during his marriage with Aguila. The TCTs of the Discovered
Properties were entered on 2 July 1999 and 29 September 2003, or during
the validity of Salas and Aguilas marriage. In Villanueva v. Court of
Appeals,23 we held that the question of whether the properties were
acquired during the marriage is a factual issue. Factual findings of the RTC,
particularly if affirmed by the CA, are binding on us, except under
compelling circumstances not present in this case.24
On Salas allegation that he was not accorded due process for failing to
attend the hearing of Aguilas manifestation, we find the allegation
untenable. The essence of due process is opportunity to be heard. We hold
that Salas was given such opportunity when he filed his opposition to the
manifestation, submitted evidence and filed his appeal.
On both Salas and Rubinas contention that Rubina owns the Discovered
Properties, we likewise find the contention unmeritorious. The TCTs state
that "Juan S. Salas, married to Rubina C. Salas" is the registered owner of
the Discovered Properties. A Torrens title is generally a conclusive evidence
of the ownership of the land referred to, because there is a strong
presumption that it is valid and regularly issued.25 The phrase "married to"
is merely descriptive of the civil status of the registered owner.26
Furthermore, Salas did not initially dispute the ownership of the
Discovered Properties in his opposition to the manifestation. It was only
when Rubina intervened that Salas supported Rubinas statement that she
owns the Discovered Properties.
Considering that Rubina failed to prove her title or her legal interest in the
Discovered Properties, she has no right to intervene in this case. The Rules
of Court provide that only "a person who has a legal interest in the matter
in litigation, or in the success of either of the parties, or an interest against
both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof
may, with leave of court, be allowed to intervene in the action."27
In Dio v. Dio,28 we held that Article 147 of the Family Code applies to
the union of parties who are legally capacitated and not barred by any
impediment to contract marriage, but whose marriage is nonetheless
declared void under Article 36 of the Family Code, as in this case.
Article147 of the Family Code 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 formers 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. (Emphasis supplied)
Under this property regime, property acquired during the marriage is
prima facie presumed to have been obtained through the couples joint
efforts and governed by the rules on co-ownership.29 In the present case,
Salas did not rebut this presumption. In a similar case where the ground
for nullity of marriage was also psychological incapacity, we held that the
properties acquired during the union of the parties, as found by both the
RTC and the CA, would be governed by co-ownership.30 Accordingly, the
partition of the Discovered Properties as ordered by the RTC and the CA
should be sustained, but on the basis of co-ownership and not on the
regime of conjugal partnership of gains.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated16

March 2012 and the Resolution dated 28 June 2012 of the Court of Appeals
in CA-G.R. CV No. 95322.

SO ORDERED.

G.R. No. 176492 October 20, 2014
MARIETTA N. BARRIDO, Petitioner,
vs.
LEONARDO V. NONATO, Respondent.
DECISION
PERALTA, J.:
For the Court's resolution is a Petition for Review filed by petitioner
Marietta N. Barrido questioning the Decision1 of the Court of Appeals (CA),
dated November 16, 2006, and its Resolution2 dated January 24, 2007 in
CA-G.R. SP No. 00235. The CA affirmed the Decision3 of the Regional Trial
Court (RTC) ofBacolod City, Branch 53, dated July 21, 2004, in Civil Case No.
03-12123, which ordered the partition of the subject property.
The facts, as culled from the records, are as follows: In the course of the
marriage of respondent Leonardo V. Nonato and petitioner Marietta N.
Barrido,they were able to acquire a property situated in Eroreco, Bacolod
City, consisting ofa house and lot, covered by Transfer Certificate of Title
(TCT) No. T-140361. On March 15, 1996, their marriage was declared void
on the ground of psychological incapacity. Since there was no more reason
to maintain their co-ownership over the property, Nonato asked Barrido
for partition, but the latter refused. Thus, on January 29, 2003, Nonato
filed a Complaint for partition before the Municipal Trial Court in Cities
(MTCC) of Bacolod City, Branch 3.
Barrido claimed, by way of affirmative defense, that the subject property
had already been sold to their children, Joseph Raymund and Joseph Leo.
She likewise moved for the dismissal of the complaint because the MTCC
lacked jurisdiction, the partition case being an action incapable of
pecuniary estimation.
The Bacolod MTCC rendered a Decision dated September 17, 2003,
applying Article 129 of the Family Code. It ruled in this wise:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered,
ordering the conjugal property of the former Spouses Leonardo and
Marietta Nonato, a house and lot covered by TCT No. T-140361 located at
Eroreco, Bacolod City, which was their conjugal dwelling, adjudicated to
the defendant Marietta Nonato, the spouse with whom the majority of the
common children choose to remain.
Furthermore, defendants counterclaim is hereby granted, ordering
plaintiff to pay defendant P10,000.00 as moral damages for the mental
anguish and unnecessary inconvenience brought about by this suit; and an
additional P10,000.00 as exemplary damages to deter others from
following suit; and attorneys fees of P2,000.00 and litigation expenses of
P575.00.
SO ORDERED.4
Nonato appealed the MTCC Decision before the RTC. On July 21, 2004, the
Bacolod RTC reversed the ruling of the MTCC. It found that even though
the MTCC aptly applied Article 129 of the Family Code, it nevertheless
made a reversible error in adjudicating the subject property to Barrido. Its
dispositive portion reads:
WHEREFORE, premises considered, the decision dated September 17, 2003
is hereby REVERSED and SET ASIDE and a new judgment is hereby rendered
ordering the parties:
(1) to equitably partition the house and lot covered by TCT No. T-140361;
(2) to reimburse Joseph Raymund and Joseph Leo Nonato of the amount
advanced by them in payment of the debts and obligation of TCT No. T-
140361 with Philippine National Bank;
(3) to deliver the presumptive legitimes of Joseph Raymund and Joseph
Leo Nonato pursuant to Article 51 of the Family Code.
SO ORDERED.5
Upon appeal, the CA affirmed the RTC Decision on November 16, 2006. It
held that since the propertys assessed value was only P8,080.00, it clearly
fell within the MTCCs jurisdiction. Also, although the RTC erred in relying
on Article 129 of the FamilyCode, instead of Article 147, the dispositive
portion of its decision still correctly ordered the equitable partition of the
property. Barrido filed a Motion for Reconsideration, which was, however,
denied for lack of merit.
Hence, Barrido brought the case to the Court via a Petition for Review. She
assigned the following errors in the CA Decision:
I.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MTCC
HAD JURISDICTION TO TRY THE PRESENT CASE.
II.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE LOT
COVERED BY TCT NO. T-140361 IS CONJUGAL AFTER BEING SOLD TO THE
CHILDREN, JOSEPH LEO NONATO AND JOSEPH RAYMUND NONATO.
III.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT ARTICLE
129 OF THE FAMILY CODE HAS NO APPLICATION IN THE PRESENT CASE, ON
THE ASSUMPTION
THAT THE TRIAL COURT HAD JURISDICTION OVER THE CASE.6
The petition lacks merit.
Contrary to Barridos contention, the MTCC has jurisdiction to take
cognizance of real actions or those affecting title to real property, or for
the recovery of possession, or for the partition or condemnation of, or
foreclosure of a mortgage on real property.7 Section 33 of Batas Pambansa
Bilang 1298 provides:
Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts in civil cases. Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit
Trial Courts shall exercise:
xxxx
(3) Exclusive original jurisdiction in all civil actions which involve title to, or
possession of, real property, or any interest therein where the assessed
value of the propertyor interest therein does not exceed Twenty thousand
pesos (P20,000.00)or, in civil actions in Metro Manila, where such assessed
value does not exceed Fifty thousand pesos (P50,000.00) exclusive of
interest, damages of whatever kind, attorney's fees, litigation expenses
and costs: Provided, That value of such property shall be determined by
the assessed value of the adjacent lots. (as amended by R.A. No. 7691)9
Here, the subject propertys assessed value was merely P8,080.00, an
amount which certainly does not exceed the required limit of P20,000.00
for civil actions outside Metro Manila tofall within the jurisdiction of the
MTCC. Therefore, the lower court correctly took cognizance of the instant
case.
The records reveal that Nonatoand Barridos marriage had been declared
void for psychological incapacity under Article 3610 of the Family Code.
During their marriage, however, the conjugal partnership regime governed
their property relations. Although Article 12911 provides for the

procedure in case of dissolution of the conjugal partnership regime, Article
147 specifically covers the effects of void marriages on the spouses
property relations. Article 147 reads:
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 tohave been obtained by their joint
efforts, work or industry, and shall beowned 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.1wphi1 In all cases, the forfeiture
shall take place upon termination of the cohabitation.
This particular kind of co-ownership applies when a man and a woman,
suffering no illegal impedimentto marry each other, exclusively live
together as husband and wife under a void marriage or without the benefit
of marriage.12 It is clear, therefore, that for Article 147 to operate, the
man and the woman: (1) must be capacitated to marry each other; (2) live
exclusively with each other as husband and wife; and (3) their union is
without the benefit of marriage or their marriage is void. Here, all these
elements are present.13 The term "capacitated" inthe first paragraph of
the provision pertains to the legal capacity of a party to contract
marriage.14 Any impediment to marry has not been shown to have existed
on the part of either Nonato or Barrido. They lived exclusively with each
other as husband and wife. However, their marriage was found to be void
under Article 36 of the Family Code on the ground of psychological
incapacity.15
Under this property regime, property acquired by both spouses through
their work and industry shall be governed by the rules on equal
coownership. Any property acquired during the union is prima
faciepresumed to have been obtained through their joint efforts. A party
who did not participate in the acquisition of the property shall be
considered as having contributed to the same jointly if said party's efforts
consisted in the care and maintenance of the family household.16 Efforts
in the care and maintenance of the family and household are regarded as
contributions to the acquisition of common property by one who has no
salary or income or work or industry.17
In the analogous case of Valdez,18 it was likewise averred that the trial
court 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
initiobecause of psychological incapacity on the part of either or both
parties in the contract of marriage.The Court held that the court a quodid
not commit a reversible error in utilizing Article 147 of the Family Code and
in ruling that the former spouses 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 that they owned in common, the
provisions on coownership under the Civil Code should aptly prevail.19 The
rules which are 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, are irrelevant to the
liquidation of the co-ownership that exists between common-law
spousesor spouses of void marriages.20

Here, the former spouses both agree that they acquired the subject
property during the subsistence of their marriage. Thus, it shall be
presumed to have been obtained by their joint efforts, work or industry,
and shall be jointly owned by them in equal shares. Barrido, however,
claims that the ownership over the property in question is already vested
on their children, by virtue of a Deed of Sale. But aside from the title to the
property still being registered in the names of the former spouses, said
document of safe does not bear a notarization of a notary public. It must
be noted that without the notarial seal, a document remains to be private
and cannot be converted into a public document,21 making it inadmissible
in evidence unless properly authenticated.22 Unfortunately, Barrido failed
to prove its due execution and authenticity. In fact, she merely annexed
said Deed of Sale to her position paper. Therefore, the subject property
remains to be owned in common by Nonato and Barrido, which should be
divided in accordance with the rules on co-ownership.

WHEREFORE, premises considered, the petition is DENIED. The Decision of

the Court of Appeals, dated November 16, 2006, as well as its Resolution
dated January 24, 2007 in CA-G.R. SP No. 00235, are hereby AFFIRMED.

SO ORDERED.
MAXIMO ALVAREZ,
Petitioner, Before us is a petition for review on certiorari[1] assailing the Decision[2]
of the Court of Appeals dated May 31, 2000 in CA-G.R. SP No. 56154,
entitled SUSAN RAMIREZ, petitioner, versus, HON. BENJAMIN M. AQUINO,
JR., as JUDGE RTC, MALABON, MM, BR. 72, and MAXIMO ALVAREZ,
respondents.
- versus -
Susan Ramirez, herein respondent, is the complaining witness in Criminal
Case No. 19933-MN for arson[3] pending before the Regional Trial Court,
Branch 72, Malabon City. The accused is Maximo Alvarez, herein
petitioner. He is the husband of Esperanza G. Alvarez, sister of respondent.
SUSAN RAMIREZ,
Respondent. On June 21, 1999, the private prosecutor called Esperanza Alvarez to the
witness stand as the first witness against petitioner, her husband.
G.R. No. 143439 Petitioner and his counsel raised no objection.

Present: Esperanza testified as follows:

PANGANIBAN, J., Chairman, ATTY. ALCANTARA:

SANDOVAL-GUTIERREZ,
CORONA, We are calling Mrs. Esperanza Alvarez, the wife of the accused, Your
CARPIO MORALES, and Honor.
GARCIA, JJ.
COURT:

Promulgated: Swear in the witness.

October 14, 2005 xxx

x---------------------------------------------------------------------------------------------x
ATTY. MESIAH: (sic)
DECISION
Your Honor, we are offering the testimony of this witness for the purpose
of proving that the accused Maximo Alvarez committed all the elements of
SANDOVAL-GUTIERREZ, J.: the crime being charged particularly that accused Maximo Alvarez pour on
May 29, 1998 gasoline in the house located at Blk. 5, Lot 9, Phase 1-C,
Dagat-dagatan, Navotas, Metro Manila, the house owned by his sister-in-
law Susan Ramirez; that accused Maximo Alvarez after pouring the
gasoline on the door of the house of Susan Ramirez ignited and set it on
fire; that the accused at the time he successfully set the house on fire (sic)
of Susan Ramirez knew that it was occupied by Susan Ramirez, the
members of the family as well as Esperanza Alvarez, the estranged wife of
the accused; that as a consequence of the accused in successfully setting
the fire to the house of Susan Ramirez, the door of said house was burned
and together with several articles of the house, including shoes, chairs and
others.
COURT:
You may proceed.
xxx
DIRECT EXAMINATION
ATTY. ALCANTARA:
xxx
Q: When you were able to find the source, incidentally what was the
source of that scent?
A: When I stand by the window, sir, I saw a man pouring the gasoline in the
house of my sister (and witness pointing to the person of the accused
inside the court room).
Q: For the record, Mrs. Witness, can you state the name of that person, if
you know?
A: He is my husband, sir, Maximo Alvarez.
Q: If that Maximo Alvarez you were able to see, can you identify him?
A: Yes, sir.
Q: If you can see him inside the Court room, can you please point him?
A: Witness pointing to a person and when asked to stand and asked his
name, he gave his name as Maximo Alvarez.[4]
In the course of Esperanzas direct testimony against petitioner, the latter
showed uncontrolled emotions, prompting the trial judge to suspend the
proceedings.
On June 30, 1999, petitioner, through counsel, filed a motion[5] to
disqualify Esperanza from testifying against him pursuant to Rule 130 of
the Revised Rules of Court on marital disqualification.
Respondent filed an opposition[6] to the motion. Pending resolution of the
motion, the trial court directed the prosecution to proceed with the
presentation of the other witnesses.
On September 2, 1999, the trial court issued the questioned Order
disqualifying Esperanza Alvarez from further testifying and deleting her
testimony from the records.[7] The prosecution filed a motion for
reconsideration but was denied in the other assailed Order dated October
19, 1999.[8]
This prompted respondent Susan Ramirez, the complaining witness in
Criminal Case No. 19933-MN, to file with the Court of Appeals a petition
for certiorari[9] with application for preliminary injunction and temporary
restraining order.[10]
On May 31, 2000, the Appellate Court rendered a Decision nullifying and
setting aside the assailed Orders issued by the trial court.
Hence, this petition for review on certiorari.
The issue for our resolution is whether Esperanza Alvarez can testify
against her husband in Criminal Case No. 19933-MN.
Section 22, Rule 130 of the Revised Rules of Court provides:
Sec. 22. Disqualification by reason of marriage. During their marriage,
neither the husband nor the wife may testify for or against the other
without the consent of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime committed by one
against the other or the latters direct descendants or ascendants.
The reasons given for the rule are:
1. There is identity of interests between husband and wife;
2. If one were to testify for or against the other, there is consequent
danger of perjury;
3. The policy of the law is to guard the security and confidences of
private life, even at the risk of an occasional failure of justice, and to
prevent domestic disunion and unhappiness; and
4. Where there is want of domestic tranquility there is danger of
punishing one spouse through the hostile testimony of the other.[11]
But like all other general rules, the marital disqualification rule has its own
exceptions, both in civil actions between the spouses and in criminal cases
for offenses committed by one against the other. Like the rule itself, the
exceptions are backed by sound reasons which, in the excepted cases,
outweigh those in support of the general rule. For instance, where the
marital and domestic relations are so strained that there is no more
harmony to be preserved nor peace and tranquility which may be
disturbed, the reason based upon such harmony and tranquility fails. In
such a case, identity of interests disappears and the consequent danger of
perjury based on that identity is non-existent. Likewise, in such a situation,
the security and confidences of private life, which the law aims at
protecting, will be nothing but ideals, which through their absence, merely
leave a void in the unhappy home.[12]
In Ordoo vs. Daquigan,[13] this Court held:
We think that the correct rule, which may be adopted in this jurisdiction, is
that laid down in Cargil vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314,
wherein the court said:
The rule that the injury must amount to a physical wrong upon the person
is too narrow; and the rule that any offense remotely or indirectly affecting
domestic harmony comes within the exception is too broad. The better
rule is that, when an offense directly attacks, or directly and vitally impairs,
the conjugal relation, it comes within the exception to the statute that one
shall not be a witness against the other except in a criminal prosecution for
a crime committee (by) one against the other.
Obviously, the offense of arson attributed to petitioner, directly impairs
the conjugal relation between him and his wife Esperanza. His act, as
embodied in the Information for arson filed against him, eradicates all the
major aspects of marital life such as trust, confidence, respect and love by
which virtues the conjugal relationship survives and flourishes.
As correctly observed by the Court of Appeals:
The act of private respondent in setting fire to the house of his sister-in-
law Susan Ramirez, knowing fully well that his wife was there, and in fact
with the alleged intent of injuring the latter, is an act totally alien to the
harmony and confidences of marital relation which the disqualification
primarily seeks to protect. The criminal act complained of had the effect of
directly and vitally impairing the conjugal relation. It underscored the fact
that the marital and domestic relations between her and the accused-
husband have become so strained that there is no more harmony, peace or
tranquility to be preserved. The Supreme Court has held that in such a
case, identity is non-existent. In such a situation, the security and
confidences of private life which the law aims to protect are nothing but
ideals which through their absence, merely leave a void in the unhappy
home. (People v. Castaeda, 271 SCRA 504). Thus, there is no longer any
reason to apply the Marital Disqualification Rule.

It should be stressed that as shown by the records, prior to the commission

of the offense, the relationship between petitioner and his wife was
already strained. In fact, they were separated de facto almost six months
before the incident. Indeed, the evidence and facts presented reveal that
the preservation of the marriage between petitioner and Esperanza is no
longer an interest the State aims to protect.

At this point, it bears emphasis that the State, being interested in laying
the truth before the courts so that the guilty may be punished and the
innocent exonerated, must have the right to offer the direct testimony of
Esperanza, even against the objection of the accused, because (as stated
by this Court in Francisco[14]), it was the latter himself who gave rise to its
necessity.

WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial

court, RTC, Branch 72, Malabon City, is ordered to allow Esperanza Alvarez
to testify against petitioner, her husband, in Criminal Case No. 19933-MN.
Costs against petitioner.

SO ORDERED.
HIYAS SAVINGS and LOAN G.R. NO. 154132 Inc. (petitioner), his wife Remedios, the spouses Felipe and Maria Owe and
BANK, INC. the Register of Deeds of Caloocan City for cancellation of mortgage
Petitioner, contending that he did not secure any loan from petitioner, nor did he sign
Present: 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
PANGANIBAN, C.J. benefited from the loan, made it appear that he signed the contract of
(Chairperson) mortgage; that he could not have executed the said contract because he
YNARES-SANTIAGO, was then working abroad.[4]
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and On May 17, 2001, petitioner filed a Motion to Dismiss on the ground that
CHICO-NAZARIO, JJ. 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
HON. EDMUNDO T. ACUA, shall prosper unless it should appear from the verified complaint or
in his capacity as Pairing Judge petition that earnest efforts toward a compromise have been made, but
of Regional Trial Court, Branch that the same have failed. Petitioner contends that since the complaint
122, Caloocan City, and ALBERTO does not contain any fact or averment that earnest efforts toward a
MORENO, Promulgated: compromise had been made prior to its institution, then the complaint
Respondent. August 31, 2006 should be dismissed for lack of cause of action.[5]
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
Private respondent filed his Comment on the Motion to Dismiss with
Motion to Strike Out and to Declare Defendants in Default. He argues that
DECISION 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
AUSTRIA-MARTINEZ, J.: 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
Before the Court is a petition for certiorari under Rule 65 of the Rules of members of his family the ground relied upon by Hiyas in its Motion to
Court seeking to nullify the Orders[1] of the Regional Trial Court (RTC) of Dismiss is inapplicable and unavailable. Alberto also prayed that
Caloocan City, Branch 122, dated November 8, 2001[2] and May 7, 2002[3] defendants be declared in default for their failure to file their answer on
denying herein petitioners Motion to Dismiss and Motion for Partial time.[6]
Reconsideration, respectively.
The antecedent facts are as follows: Petitioner filed its Reply to the Comment with Opposition to the Motion to
Strike and to Declare Defendants in Default.[7] Private respondent, in turn,
On November 24, 2000, Alberto Moreno (private respondent) filed with filed his Rejoinder.[8]
the RTC of Caloocan City a complaint against Hiyas Savings and Loan Bank,
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 plaintiffs 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
petitioners 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. Melicor[16] 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 Courts 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
Courts time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-crowding of
the Courts docket.
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.
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 Courts decision in
De Guzman v. Genato[18] 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 Commision 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,[25] and 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.
TEOFISTO I. VERCELES, This petition for review seeks the reversal of the Decision[1] dated May 30,
Petitioner, 2003 and the Resolution[2] dated August 27, 2003 of the Court of Appeals
in CA-G.R. CV No. 50557. The appellate court had affirmed with
modification the Judgment[3] dated January 4, 1995 of the Regional Trial
Court (RTC) of Virac, Catanduanes, Branch 42, in Civil Case No. 1401. The
- versus - RTC held petitioner liable to pay monthly support to Verna Aiza Posada
since her birth on September 23, 1987 as well as moral and exemplary
damages, attorneys fees and costs of suit.

The facts in this case as found by the lower courts are as follows:
MARIA CLARISSA POSADA, in her own behalf, and as mother of minor
VERNA AIZA POSADA, CONSTANTINO POSADA and FRANCISCA POSADA, Respondent Maria Clarissa Posada (Clarissa), a young lass from the barrio
Respondents. of Pandan, Catanduanes, sometime in 1986 met a close family friend,
G.R. No. 159785 petitioner Teofisto I. Verceles, mayor of Pandan. He then called on the
Posadas and at the end of the visit, offered Clarissa a job.
Present:
Clarissa accepted petitioners offer and worked as a casual employee in the
QUISUMBING, J., Chairperson, mayors office starting on September 1, 1986. From November 10 to 15 in
CARPIO, 1986, with companions Aster de Quiros, Pat del Valle, Jaime and Jocelyn
CARPIO MORALES, Vargas, she accompanied petitioner to Legaspi City to attend a seminar on
TINGA, and town planning. They stayed at the Mayon Hotel.
VELASCO, JR., JJ.
On November 11, 1986, at around 11:00 a.m., petitioner fetched Clarissa
from My Brothers Place where the seminar was being held. Clarissa avers
that he told her that they would have lunch at Mayon Hotel with their
companions who had gone ahead. When they reached the place her
Promulgated: companions were nowhere. After petitioner ordered food, he started
making amorous advances on her. She panicked, ran and closeted herself
April 27, 2007 inside a comfort room where she stayed until someone knocked. She said
she hurriedly exited and left the hotel. Afraid of the mayor, she kept the
x--------------------------------------------------x incident to herself. She went on as casual employee. One of her tasks was
DECISION following-up barangay road and maintenance projects.

QUISUMBING, J.: On December 22, 1986, on orders of petitioner, she went to Virac,
Catanduanes, to follow up funds for barangay projects. At around 11:00
a.m. the same day, she went to Catanduanes Hotel on instructions of
petitioner who asked to be briefed on the progress of her mission. They
met at the lobby and he led her upstairs because he said he wanted the
briefing done at the restaurant at the upper floor.
Instead, however, petitioner opened a hotel room door, led her in, and
suddenly embraced her, as he told her that he was unhappy with his wife
and would divorce her anytime. He also claimed he could appoint her as a
municipal development coordinator. She succumbed to his advances. But
again she kept the incident to herself.
Sometime in January 1987, when she missed her menstruation, she said
she wrote petitioner that she feared she was pregnant. In another letter in
February 1987, she told him she was pregnant. In a handwritten letter
dated February 4, 1987, he replied:
My darling Chris,
Should you become pregnant even unexpectedly, I should have no regret,
because I love you and you love me.
Let us rejoice a common responsibility you and I shall take care of it and let
him/her see the light of this beautiful world.
We know what to do to protect our honor and integrity.
Just relax and be happy, if true.
With all my love,
Ninoy
2/4/87[4]
Clarissa explained petitioner used an alias Ninoy and addressed her as
Chris, probably because of their twenty-five (25)-year age gap. In court, she
identified petitioners penmanship which she claims she was familiar with
as an employee in his office.
Clarissa presented three other handwritten letters[5] sent to her by
petitioner, two of which were in his letterhead as mayor of Pandan. She
also presented the pictures[6] petitioner gave her of his youth and as a
public servant, all bearing his handwritten notations at the back.
Clarissa avers that on March 3, 1987, petitioner, aware of her pregnancy,
handed her a letter and P2,000 pocket money to go to Manila and to tell
her parents that she would enroll in a CPA review course or look for a job.
In June 1987, petitioner went to see her in Manila and gave her another
P2,000 for her delivery. When her parents learned of her pregnancy,
sometime in July, her father fetched her and brought her back to Pandan.
On September 23, 1987,[7] she gave birth to a baby girl, Verna Aiza
Posada.
Clarissas mother, Francisca, corroborated Clarissas story. She said they
learned of their daughters pregnancy through her husbands cousin. She
added that she felt betrayed by petitioner and shamed by her daughters
pregnancy.
The Posadas filed a Complaint for Damages coupled with Support
Pendente Lite before the RTC, Virac, Catanduanes against petitioner on
October 23, 1987.[8]
On January 4, 1995, the trial court issued a judgment in their favor, the
dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in
favor of the [respondents] and against the [petitioner] and ordering the
latter:
1. to pay a monthly support of P2,000.00 to Verna Aiza Posada since her
birth on September 23, 1987 as he was proved to be the natural father of
the above-named minor as shown by the exhibits and testimonies of the
[respondents];
2. to pay the amount of P30,000.00 as moral damages;
3. to pay the amount of P30,000.00 as exemplary damages;
4. to pay the sum of P10,000.00 as attorneys fees; and
5. to pay the costs of the suit.
SO ORDERED.[9]
Verceles appealed to the Court of Appeals which affirmed the judgment
with modification, specifying the party to whom the damages was
awarded. The dispositive portion of the Court of Appeals decision reads:
WHEREFORE, the appealed judgment is AFFIRMED with modification by
ordering [petitioner] Teofisto I. Verceles:
1. To pay a monthly support of P2,000.00 to Verna Aiza Posada from her
birth on September 23, 1987.
2. To pay [respondent] Maria Clarissa Posada the sum of P15,000.00 as
moral damages and [P]15,000.00 as exemplary damages.
3. To pay [respondents] spouses Constantino and Francisca Posada the
sum of P15,000.00 as moral damages and P15,000.00 as exemplary
damages.
4. To pay each of the said three [respondents] P10,000.00 as attorneys
fees; and
5. To pay the costs of suit.
SO ORDERED.[10]
Hence, this petition.
Petitioner now presents the following issues for resolution:
I.
WAS THERE ANY EVIDENCE ON RECORD TO PROVE THAT APPELLANT
VERCELES WAS THE FATHER OF THE CHILD?
II.
WOULD THIS ACTION FOR DAMAGES PROSPER?
III.
WOULD THE RTC COURT HAVE ACQUIRED JURISDICTION OVER THIS ISSUE
OF APPELLANTS PATERNITY OF THE CHILD, WHICH IS MADE COLLATERAL
TO THIS ACTION FOR DAMAGES?[11]
In sum, the pertinent issues in this case are: (1) whether or not paternity
and filiation can be resolved in an action for damages with support
pendente lite; (2) whether or not the filiation of Verna Aiza Posada as the
illegitimate child of petitioner was proven; and (3) whether or not
respondents are entitled to damages.
In his Memorandum, petitioner asserts that the fact of paternity and
filiation of Verna Aiza Posada has not been duly established or proved in
the proceedings; that the award for damages and attorneys fees has no
basis; and that the issue of filiation should be resolved in a direct and not a
collateral action.
Petitioner argues he never signed the birth certificate of Verna Aiza Posada
as father and that it was respondent Clarissa who placed his name on the
birth certificate as father without his consent. He further contends the
alleged love letters he sent to Clarissa are not admissions of paternity but
mere expressions of concern and advice.[12] As to the award for damages,
petitioner argues Clarissa could not have suffered moral damages because
she was in pari delicto, being a willing participant in the consensual carnal
act between them.[13] In support of his argument that the issue on
filiation should have been resolved in a separate action, petitioner cited
the case of Rosales v. Castillo Rosales[14] where we held that the
legitimacy of a child which is controversial can only be resolved in a direct
action.[15]
On the other hand, respondents in their Memorandum maintain that the
Court of Appeals committed no error in its decision. They reiterate that
Clarissas clear narration of the circumstances on how she was deflowered
by petitioner, the love letters and pictures given by petitioner to Clarissa,
the corroborating testimony of Clarissas mother, the fact that petitioner
proffered no countervailing evidence, are preponderant evidence of
paternity. They cited the case of De Jesus v. Syquia[16] where we held that
a conceived child can be acknowledged because this is an act favorable to
the child.[17] They also argue that damages should be awarded because
petitioner inveigled Clarissa to succumb to his sexual advances.[18]
Could paternity and filiation be resolved in an action for damages? On this
score, we find petitioners stance unmeritorious. The caption is not
determinative of the nature of a pleading. In a string of cases we made the
following rulings. It is not the caption but the facts alleged which give
meaning to a pleading. Courts are called upon to pierce the form and go
into the substance thereof.[19] In determining the nature of an action, it is
not the caption, but the averments in the petition and the character of the
relief sought, that are controlling.[20]
A perusal of the Complaint before the RTC shows that although its caption
states Damages coupled with Support Pendente Lite, Clarissas averments
therein, her meeting with petitioner, his offer of a job, his amorous
advances, her seduction, their trysts, her pregnancy, birth of her child, his
letters, her demand for support for her child, all clearly establish a case for
recognition of paternity. We have held that the due recognition of an
illegitimate child in a record of birth, a will, a statement before a court of
record, or in any authentic writing is, in itself, a consummated act of
acknowledgement of the child, and no further court action is required. In
fact, any authentic writing is treated not just a ground for compulsory
recognition; it is in itself a voluntary recognition that does not require a
separate action for judicial approval.[21]
The letters of petitioner marked as Exhibits A to D are declarations that
lead nowhere but to the conclusion that he sired Verna Aiza. Although
petitioner used an alias in these letters, the similarity of the penmanship in
these letters vis the annotation at the back of petitioners fading
photograph as a youth is unmistakable. Even an inexperienced eye will
come to the conclusion that they were all written by one and the same
person, petitioner, as found by the courts a quo.
We also note that in his Memorandum, petitioner admitted his affair with
Clarissa, the exchange of love letters between them, and his giving her
money during her pregnancy. [22]
Articles 172 and 175 of the Family Code are the rules for establishing
filiation. They are as follows:
Art. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged
parent.
The letters, one of which is quoted above, are private handwritten
instruments of petitioner which establish Verna Aizas filiation under Article
172 (2) of the Family Code. In addition, the array of evidence presented by
respondents, the dates, letters, pictures and testimonies, to us, are
convincing, and irrefutable evidence that Verna Aiza is, indeed, petitioners
illegitimate child.
Petitioner not only failed to rebut the evidence presented, he himself
presented no evidence of his own. His bare denials are telling. Well-settled
is the rule that denials, if unsubstantiated by clear and convincing
evidence, are negative and self-serving which merit no weight in law and
cannot be given greater evidentiary value over the testimony of credible
witnesses who testify on affirmative matters.[23]
We, however, cannot rule that respondents are entitled to damages.
Article 2219[24]of the Civil Code which states moral damages may be
recovered in cases of seduction is inapplicable in this case because Clarissa
was already an adult at the time she had an affair with petitioner.
Neither can her parents be entitled to damages. Besides, there is nothing
in law or jurisprudence that entitles the parents of a consenting adult who
begets a love child to damages. Respondents Constantino and Francisca
Posada have not cited any law or jurisprudence to justify awarding
damages to them.

We, however, affirm the grant of attorneys fees in consonance with Article
2208 (2)[25] and (11)[26] of the New Civil Code.

WHEREFORE, the assailed Decision dated May 30, 2003 and the Resolution
dated August 27, 2003 of the Court of Appeals in CA-G.R. CV No. 50557 are
AFFIRMED, with the MODIFICATION that the award of moral damages and
exemplary damages be DELETED.

SO ORDERED.
VILMA G. ARRIOLA and Respondent.

G.R. No. 177703 January 28, 2008

ANTHONY RONALD G. x------------------------------------------------x

ARRIOLA,
DECISION
Present:
Petitioners,
AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, assailing the November 30, 2006 Decision[1] and April 30,
YNARES-SANTIAGO, J., 2007 Resolution[2] of the Court of Appeals in CA-G.R. SP No. 93570.

The relevant facts are culled from the records.

Chairperson,
John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010
AUSTRIA-MARTINEZ, with the Regional Trial Court, Branch 254, Las Pias City (RTC) against Vilma
- versus - G. Arriola and Anthony Ronald G. Arriola (petitioners) for judicial partition
of the properties of decedent Fidel Arriola (the decedent Fidel).
CORONA,* Respondent is the son of decedent Fidel with his first wife Victoria C.
Calabia, while petitioner Anthony is the son of decedent Fidel with his
second wife, petitioner Vilma.
NACHURA, and
On February 16, 2004, the RTC rendered a Decision, the dispositive portion
of which reads:
REYES, JJ.
WHEREFORE, premises considered, judgment is hereby rendered:

1. Ordering the partition of the parcel of land covered by Transfer

JOHN NABOR C. ARRIOLA, Certificate of Title No. 383714 (84191) left by the decedent Fidel S. Arriola
by and among his heirs John Nabor C. Arriola, Vilma G. Arriola and Anthony
Promulgated:
Ronald G. Arriola in equal shares of one-third (1/3) each without prejudice
to the rights of creditors or mortgagees thereon, if any;
2. Attorney's fees in the amount of TEN THOUSAND (P10,000.00) PESOS is
hereby awarded to be reimbursed by the defendants to the plaintiff;
3. Costs against the defendants.
SO ORDERED.[3]
The decision became final on March 15, 2004.[4]
As the parties failed to agree on how to partition among them the land
covered by TCT No. 383714 (subject land), respondent sought its sale
through public auction, and petitioners acceded to it.[5] Accordingly, the
RTC ordered the public auction of the subject land.[6] The public auction
sale was scheduled on May 31, 2003 but it had to be reset when
petitioners refused to include in the auction the house (subject house)
standing on the subject land.[7] This prompted respondent to file with the
RTC an Urgent Manifestation and Motion for Contempt of Court,[8]
praying that petitioners be declared in contempt.
The RTC denied the motion in an Order[9] dated August 30, 2005, for the
reason that petitioners were justified in refusing to have the subject house
included in the auction, thus:
The defendants [petitioners] are correct in holding that the house or
improvement erected on the property should not be included in the
auction sale.
A cursory reading of the aforementioned Decision and of the evidence
adduced during the ex-parte hearing clearly show that nothing was
mentioned about the house existing on the land subject matter of the
case. In fact, even plaintiff's [respondent's] initiatory Complaint likewise
did not mention anything about the house. Undoubtedly therefore, the
Court did not include the house in its adjudication of the subject land
because it was plaintiff himself who failed to allege the same. It is a well-
settled rule that the court can not give a relief to that which is not alleged
and prayed for in the complaint.
To hold, as plaintiff argued, that the house is considered accessory to the
land on which it is built is in effect to add to plaintiff's [a] right which has
never been considered or passed upon during the trial on the merits.
In the absence of any other declaration, obvious or otherwise, only the
land should be partitioned in accordance to[sic] the aforementioned
Decision as the house can not be said to have been necessarily adjudicated
therein. Thus, plaintiff can not be declared as a co-owner of the same
house without evidence thereof and due hearing thereon.
The Decision of the Court having attained its finality, as correctly pointed
out, judgment must stand even at the risk that it might be erroneous.
WHEREFORE, the Urgent Manifestation and Motion for Contempt of Court
filed by plaintiff is hereby DENIED for lack of merit.
SO ORDERED.[10]
The RTC, in its Order dated January 3, 2006, denied respondent's Motion
for Reconsideration.[11]
Respondent filed with the CA a Petition for Certiorari[12] where he sought
to have the RTC Orders set aside, and prayed that he be allowed to
proceed with the auction of the subject land including the subject house.
In its November 30, 2006 Decision, the CA granted the Petition for
Certiorari, to wit:
WHEREFORE, the petition is GRANTED. The assailed orders dated August
30, 2005 and January 3, 2006 issued by the RTC, in Civil Case No. SCA 03-
0010, are REVERSED and SET ASIDE, and the sheriff is ordered to proceed
with the public auction sale of the subject lot covered by TCT No. 383714,
including the house constructed thereon.
SO ORDERED.[13] (Emphasis supplied.)
Petitioners filed a motion for reconsideration but the CA denied the same
in its Resolution[14] of April 30, 2007.
Hence, the present petition on the sole ground that the CA erred in holding
that the RTC committed grave abuse of discretion in denying the motion
for contempt of court.
The assailed CA Decision and Resolution must be modified for reasons
other than those advanced by petitioners.
The contempt proceeding initiated by respondent was one for indirect
contempt. Section 4, Rule 71 of the Rules of Court prescribes the
procedure for the institution of proceedings for indirect contempt, viz:
Sec. 4. How proceedings commenced. Proceedings for indirect contempt
may be initiated motu proprio by the court against which the contempt
was committed by an order or any other formal charge requiring the
respondent to show cause why he should not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a
verified petition with supporting particulars and certified true copies of
documents or papers involved therein, and upon full compliance with the
requirements for filing initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of or are related to a
principal action pending in the court, the petition for contempt shall allege
that fact but said petition shall be docketed, heard and decided separately,
unless the court in its discretion orders the consolidation of the contempt
charge and the principal action for joint hearing and decision. (Emphases
supplied.)
Under the aforecited second paragraph of the Rules, the requirements for
initiating an indirect contempt proceeding are a) that it be initiated by way
of a verified petition and b) that it should fully comply with the
requirements for filing initiatory pleadings for civil actions. In Regalado v.
Go,[15] we held:
As explained by Justice Florenz Regalado, the filing of a verified petition
that has complied with the requirements for the filing of initiatory
pleading, is mandatory x x x:
This new provision clarifies with a regularity norm the proper procedure
for commencing contempt proceedings. While such proceeding has been
classified as special civil action under the former Rules, the heterogenous
practice tolerated by the courts, has been for any party to file a motion
without paying any docket or lawful fees therefore and without complying
with the requirements for initiatory pleadings, which is now required in the
second paragraph of this amended section.
xxxx
Henceforth, except for indirect contempt proceedings initiated motu
propio by order of or a formal charge by the offended court, all charges
shall be commenced by a verified petition with full compliance with the
requirements therefore and shall be disposed in accordance with the
second paragraph of this section.
xxxx
Even if the contempt proceedings stemmed from the main case over which
the court already acquired jurisdiction, the rules direct that the petition for
contempt be treated independently of the principal action. Consequently,
the necessary prerequisites for the filing of initiatory pleadings, such as the
filing of a verified petition, attachment of a certification on non-forum
shopping, and the payment of the necessary docket fees, must be faithfully
observed.

xxxx
The provisions of the Rules are worded in very clear and categorical
language. In case where the indirect contempt charge is not initiated by
the courts, the filing of a verified petition which fulfills the requirements on
initiatory pleadings is a prerequisite. Beyond question now is the
mandatory requirement of a verified petition in initiating an indirect
contempt proceeding. Truly, prior to the amendment of the 1997 Rules of
Civil Procedure, mere motion without complying with the requirements for
initiatory pleadings was tolerated by the courts. At the onset of the 1997
Revised Rules of Civil Procedure, however, such practice can no longer be
countenanced.[16] (Emphasis ours.)
The RTC erred in taking jurisdiction over the indirect contempt proceeding
initiated by respondent. The latter did not comply with any of the
mandatory requirements of Section 4, Rule 71. He filed a mere Urgent
Manifestation and Motion for Contempt of Court, and not a verified
petition. He likewise did not conform with the requirements for the filing
of initiatory pleadings such as the submission of a certification against
forum shopping and the payment of docket fees. Thus, his unverified
motion should have been dismissed outright by the RTC.
It is noted though that, while at first the RTC overlooked the infirmities in
respondent's unverified motion for contempt, in the end, it dismissed the
motion, albeit on substantive grounds. The trouble is that, in the CA
decision assailed herein, the appellate court committed the same oversight
by delving into the merits of respondent's unverified motion and granting
the relief sought therein. Thus, strictly speaking, the proper disposition of
the present petition ought to be the reversal of the CA decision and the
dismissal of respondent's unverified motion for contempt filed in the RTC
for being in contravention of Section 4, Rule 71.
However, such simplistic disposition will not put an end to the dispute
between the parties. A seed of litigation has already been sown that will
likely sprout into another case between them at a later time. We refer to
the question of whether the subject house should be included in the public
auction of the subject land. Until this question is finally resolved, there will
be no end to litigation between the parties. We must therefore deal with it
squarely, here and now.
The RTC and the CA differed in their views on whether the public auction
should include the subject house. The RTC excluded the subject house
because respondent never alleged its existence in his complaint for
partition or established his co-ownership thereof.[17] On the other hand,
citing Articles 440,[18] 445[19] and 446[20] of the Civil Code, the CA held
that as the deceased owned the subject land, he also owned the subject
house which is a mere accessory to the land. Both properties form part of
the estate of the deceased and are held in co-ownership by his heirs, the
parties herein. Hence, the CA concludes that any decision in the action for
partition of said estate should cover not just the subject land but also the
subject house.[21] The CA further pointed out that petitioners themselves
implicitly recognized the inclusion of the subject house in the partition of
the subject land when they proposed in their letter of August 5, 2004, the
following swapping-arrangement:
Sir:
Thank you very much for accommodating us even if we are only poor and
simple people. We are very much pleased with the decision of Presiding
Judge Manuel B. Fernandez, Jr., RTC Br. 254, Las Pias, on the sharing of
one-third (1/3) each of a land covered by Transfer Certificate of Title No.
383714 (84191) in Las Pias City.
However, to preserve the sanctity of our house which is our residence for
more than twenty (20) years, we wish to request that the 1/3 share of John
Nabor C. Arriola be paid by the defendants depending on the choice of the
plaintiff between item (1) or item (2), detailed as follows:
(1) Swap with a 500-square meters [sic] lot located at Baras Rizal x x x.
(2) Cash of P205,700.00 x x x.
x x x x.[22]
We agree that the subject house is covered by the judgment of partition
for reasons postulated by the CA. We qualify, however, that this ruling
does not necessarily countenance the immediate and actual partition of
the subject house by way of public auction in view of the suspensive
proscription imposed under Article 159 of The Family Code which will be
discussed forthwith.
It is true that the existence of the subject house was not specifically alleged
in the complaint for partition. Such omission notwithstanding, the subject
house is deemed part of the judgment of partition for two compelling
reasons.
First, as correctly held by the CA, under the provisions of the Civil Code, the
subject house is deemed part of the subject land. The Court quotes with
approval the ruling of the CA, to wit:
The RTC, in the assailed Order dated August 30, 2005 ratiocinated that
since the house constructed on the subject lot was not alleged in the
complaint and its ownership was not passed upon during the trial on the
merits, the court cannot include the house in its adjudication of the subject
lot. The court further stated that it cannot give a relief to[sic] which is not
alleged and prayed for in the complaint.
We are not persuaded.
To follow the foregoing reasoning of the RTC will in effect render
meaningless the pertinent rule on accession. In general, the right to
accession is automatic (ipso jure), requiring no prior act on the part of the
owner or the principal. So that even if the improvements including the
house were not alleged in the complaint for partition, they are deemed
included in the lot on which they stand, following the principle of
accession. Consequently, the lot subject of judicial partition in this case
includes the house which is permanently attached thereto, otherwise, it
would be absurd to divide the principal, i.e., the lot, without dividing the
house which is permanently attached thereto.[23] (Emphasis supplied)
Second, respondent has repeatedly claimed that the subject house was
built by the deceased.[24] Petitioners never controverted such claim.
There is then no dispute that the subject house is part of the estate of the
deceased; as such, it is owned in common by the latter's heirs, the parties
herein,[25] any one of whom, under Article 494[26] of the Civil Code, may,
at any time, demand the partition of the subject house.[27] Therefore,
respondent's recourse to the partition of the subject house cannot be
hindered, least of all by the mere technical omission of said common
property from the complaint for partition.
That said notwithstanding, we must emphasize that, while we treat the
subject house as part of the co-ownership of the parties, we stop short of
authorizing its actual partition by public auction at this time. It bears
emphasis that an action for partition involves two phases: first, the
declaration of the existence of a state of co-ownership; and second, the
actual termination of that state of co-ownership through the segregation
of the common property.[28] What is settled thus far is only the fact that
the subject house is under the co-ownership of the parties, and therefore
susceptible of partition among them.
Whether the subject house should be sold at public auction as ordered by
the RTC is an entirely different matter, depending on the exact nature of
the subject house.
Respondent claims that the subject house was built by decedent Fidel on
his exclusive property.[29] Petitioners add that said house has been their
residence for 20 years.[30] Taken together, these averments on record
establish that the subject house is a family home within the contemplation
of the provisions of The Family Code, particularly:
Article 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.

Article 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. (Emphasis supplied.)
One significant innovation introduced by The Family Code is the automatic
constitution of the family home from the time of its occupation as a family
residence, without need anymore for the judicial or extrajudicial processes
provided under the defunct Articles 224 to 251 of the Civil Code and Rule
106 of the Rules of Court. Furthermore, Articles 152 and 153 specifically
extend the scope of the family home not just to the dwelling structure in
which the family resides but also to the lot on which it stands. Thus,
applying these concepts, the subject house as well as the specific portion
of the subject land on which it stands are deemed constituted as a family
home by the deceased and petitioner Vilma from the moment they began
occupying the same as a family residence 20 years back.[31]
It being settled that the subject house (and the subject lot on which it
stands) is the family home of the deceased and his heirs, the same is
shielded from immediate partition under Article 159 of The Family Code,
viz:
Article 159. The family home shall continue despite the death of one or
both spouses or of the unmarried head of the family for a period of ten
years or for as long as there is a minor beneficiary, and the heirs cannot
partition the same unless the court finds compelling reasons therefor. This
rule shall apply regardless of whoever owns the property or constituted
the family home. (Emphasis supplied.)
The purpose of Article 159 is to avert the disintegration of the family unit
following the death of its head. To this end, it preserves the family home as
the physical symbol of family love, security and unity by imposing the
following restrictions on its partition: first, that the heirs cannot extra-
judicially partition it for a period of 10 years from the death of one or both
spouses or of the unmarried head of the family, or for a longer period, if
there is still a minor beneficiary residing therein; and second, that the heirs
cannot judicially partition it during the aforesaid periods unless the court
finds compelling reasons therefor. No compelling reason has been alleged
by the parties; nor has the RTC found any compelling reason to order the
partition of the family home, either by physical segregation or assignment
to any of the heirs or through auction sale as suggested by the parties.
More importantly, Article 159 imposes the proscription against the
immediate partition of the family home regardless of its ownership. This
signifies that even if the family home has passed by succession to the co-
ownership of the heirs, or has been willed to any one of them, this fact
alone cannot transform the family home into an ordinary property, much
less dispel the protection cast upon it by the law. The rights of the
individual co-owner or owner of the family home cannot subjugate the
rights granted under Article 159 to the beneficiaries of the family home.
Set against the foregoing rules, the family home -- consisting of the subject
house and lot on which it stands -- cannot be partitioned at this time, even
if it has passed to the co-ownership of his heirs, the parties herein.
Decedent Fidel died on March 10, 2003.[32] Thus, for 10 years from said
date or until March 10, 2013, or for a longer period, if there is still a minor
beneficiary residing therein, the family home he constituted cannot be
partitioned, much less when no compelling reason exists for the court to
otherwise set aside the restriction and order the partition of the property.
The Court ruled in Honrado v. Court of Appeals[33] that a claim for
exception from execution or forced sale under Article 153 should be set up
and proved to the Sheriff before the sale of the property at public auction.
Herein petitioners timely objected to the inclusion of the subject house
although for a different reason.
To recapitulate, the evidence of record sustain the CA ruling that the
subject house is part of the judgment of co-ownership and partition. The
same evidence also establishes that the subject house and the portion of
the subject land on which it is standing have been constituted as the family
home of decedent Fidel and his heirs. Consequently, its actual and
immediate partition cannot be sanctioned until the lapse of a period of 10
years from the death of Fidel Arriola, or until March 10, 2013.

It bears emphasis, however, that in the meantime, there is no obstacle to

the immediate public auction of the portion of the subject land covered by
TCT No. 383714, which falls outside the specific area of the family home.

WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006
Decision and April 30, 2007 Resolution of the Court of Appeals are
MODIFIED in that the house standing on the land covered by Transfer
Certificate of Title No. 383714 is DECLARED part of the co-ownership of the
parties John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G.
Arriola but EXEMPTED from partition by public auction within the period
provided for in Article 159 of the Family Code.

No costs.

SO ORDERED.
 Nature of the Petition
SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE MESA,
Petitioner, 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.
- versus - 79391 entitled Spouses Araceli Oliva-De Mesa and Ernesto De Mesa v.
Spouses Claudio Acero, Jr., et al.

The Antecedent Facts

SPOUSES CLAUDIO D. ACERO, JR. and MA. RUFINA D. ACERO,
SHERIFF FELIXBERTO L. SAMONTE and REGISTRAR ALFREDO SANTOS, This involves a parcel of land situated at No. 3 Forbes Street, Mount
Respondents. Carmel Homes Subdivision, Iba, Meycauayan, Bulacan, which was formerly
G.R. No. 185064 covered by Transfer Certificate of Title (TCT) No. T-76.725 (M) issued by
the Register of Deeds of Meycauayan, Bulacan and registered under
Aracelis name. The petitioners jointly purchased the subject property on
Present: April 17, 1984 while they were still merely cohabiting before their
marriage. A house was later constructed on the subject property, which
CARPIO, J., the petitioners thereafter occupied as their family home after they got
Chairperson, married sometime in January 1987.
PEREZ,
SERENO, Sometime in September 1988, Araceli obtained a loan from Claudio D.
REYES, and Acero, Jr. (Claudio) in the amount of P100,000.00, which was secured by a
BERNABE, JJ. mortgage over the subject property. As payment, Araceli issued a check
drawn against China Banking Corporation payable to Claudio.
Promulgated:
When the check was presented for payment, it was dishonored as the
account from which it was drawn had already been closed. The petitioners
January 16, 2012 failed to heed Claudios subsequent demand for payment.
x-----------------------------------------------------------------------------------------x
Thus, on April 26, 1990, Claudio filed with the Prosecutor's Office of
DECISION Malolos, Bulacan a complaint for violation of Batas Pambansa Blg. 22 (B.P.
22) against the petitioners. After preliminary investigation, an information
REYES, J.: 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 Decision3 acquitting 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 Aceros complaint and ordering the petitioners and Juanito to
vacate the subject property. Finding merit in Spouses Aceros 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 Claudios 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 Claudios Torrens title that was
resultantly issued.
The petitioners appealed the MTCs 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 review7 with the CA
assailing the RTCs November 22, 1999 Decision and January 31, 2000
Order. In a December 21, 2006 Decision,8 the CA denied the petitioners
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,11 which 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 RTCs September 3, 2002
Decision but this was denied in a Resolution12 dated January 14, 2003.
On appeal, the CA affirmed the RTCs disposition in its Decision13 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 petitioners failure to appeal the CAs 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 Claudios Torrens title TCT No. T-221755 (M)
over the subject property.
The Courts 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 Courts 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
courts 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.,22 we 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 homes 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 Courts 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 executionto 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 ones 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, Aracelis Torrens title was cancelled and a new one issued under
Claudios 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 sheriffs 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 Claudios 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.
EQUITABLE PCI BANK, INC., The factual antecedents:
Petitioner, Respondent-spouses Oscar and Evangeline Martinez obtained loans from
petitioner Equitable PCI Bank, Inc. in the aggregate amount of Four Million
Forty-Eight Thousand Eight Hundred Pesos (P4,048,800.00). As security for
the said amount, a Real Estate Mortgage (REM) was executed over a
- versus - condominium unit in San Miguel Court, Valle Verde 5, Pasig City, Metro
G.R. No. 165950 Manila where the spouses are residing. Respondent Oscar Martinez signed
the REM both as principal debtor and as President of the registered owner
Present: and third-party mortgagor, respondent OJ-Mark Trading, Inc. The REM was
annotated on Condominium Certificate of Title No. PT-21363 of the
CARPIO MORALES, J., Registry of Deeds of Pasig City.[2]
Chairperson, Respondent-spouses defaulted in the payment of their outstanding loan
BRION, obligation, which as of October 31, 2002 stood at P4,918,160.03.[3] In a
BERSAMIN, letter dated May 15, 2002, they offered to settle their indebtedness with
ABAD,* and the assignment to the Bank of a commercial lot of corresponding value and
VILLARAMA, JR., JJ. also requested for recomputation at a lower interest rate and condonation
of penalties.[4] While petitioners officers held a meeting with respondent
OJ-MARK TRADING, INC. and SPOUSES OSCAR AND EVANGELINE Oscar Martinez, the latter however failed to submit the required
MARTINEZ, documents such as certificates of title and tax declarations so that the
Respondents. bank can evaluate his proposal to pay the mortgage debt via dacion en
pago.[5] Consequently, petitioner initiated the extrajudicial foreclosure of
Promulgated: the real estate mortgage by filing an ex parte petition before the Office of
the Executive Judge, Regional Trial Court (RTC) of Pasig City.[6]
August 11, 2010 On January 23, 2003, respondents filed Civil Case No. 69294 for Temporary
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Restraining Order (TRO), Injunction and Annulment of Extrajudicial
Foreclosure Sale in the RTC of Pasig City. On January 27, 2003, the trial
DECISION court granted a TRO effective for twenty (20) days.
In their Complaint With Application for Temporary Restraining Order,[7]
VILLARAMA, JR., J.: respondents sought to enjoin the impending foreclosure sale alleging that
Before us is a petition for review on certiorari filed by petitioner under the same was hasty, premature, unreasonable and unwarranted, and also
Rule 45 of the 1997 Rules of Civil Procedure, as amended, praying for the claiming defects in the execution of the REM. Respondents imputed bad
reversal of the Decision[1] dated October 29, 2004 of the Court of Appeals faith on the part of petitioner who did not officially inform them of the
(CA) in CA-G.R. SP No. 77703, which denied its petition for certiorari denial or disapproval of their proposal to settle the loan obligation by
assailing the trial courts orders granting respondents application for a writ dacion via assignment of a commercial property. Respondents maintained
of preliminary injunction. that aside from the REM being illegally notarized, incomplete and
unenforceable, the obligation subject thereof had been extinguished by
the dacion proposal considering that the value of the property offered was
more than sufficient to pay for the mortgage debt. It was further averred
that the subject property is being used and occupied by respondent-
spouses as a family home.
In his Order dated February 17, 2003, Judge Mariano M. Singzon, Jr.
granted the application for a writ of preliminary injunction.[8] Petitioner
filed a motion for reconsideration which was denied under the Order dated
April 21, 2003.[9]
Petitioner questioned the issuance of preliminary injunction before the CA
arguing that the respondents are not entitled to injunctive relief after
having admitted that they were unable to settle their loan obligations. By
Decision dated October 29, 2004, the appellate court sustained the
assailed orders, holding that:
...respondent spouses have sufficiently shown that they have a right over
the condominium unit which is subject of the mortgage. This proprietary
right over the condominium is what they are trying to protect when they
applied for preliminary injunction. As respondent spouses have alleged in
their complaint, the issuance of notice of foreclosure sale is at most
premature as there are still several factual issues that need to be resolved
before a foreclosure can be effected. Such already constitute the
ostensible right which respondent spouses possess in order for the
foreclosure sale to be temporarily enjoined.[10]
Hence, this petition raising the following grounds:
I members or stockholders.[12]
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE
ERROR IN HOLDING THAT THE TRIAL COURT DID NOT COMMIT GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN ISSUING
THE ASSAILED WRIT OF PRELIMINARY INJUNCTION
II
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE
ERROR IN HOLDING THAT INDIVIDUAL RESPONDENTS SPS. MARTINEZ HAVE
PROPRIETARY RIGHT OVER THE MORTGAGED CONDOMINIUM UNIT
III
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE
ERROR IN HOLDING THAT SUCH PURPORTED PROPRIETARY RIGHT OF
RESPONDENTS SPS. MARTINEZ DESERVES THE PROTECTIVE MANTLE OF A
WRIT OF PRELIMINARY INJUNCTION DESPITE THEIR CLEAR AND
UNEQUIVOCAL ADMISSION OF THE OUTSTANDING LOANS AND THEIR
DELINQUENCY
IV
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THERE ARE
STILL SEVERAL FACTUAL ISSUES TO BE RESOLVED IN A FULL-BLOWN TRIAL
BEFORE PETITIONER EPCIB COULD EXERCISE ITS STATUTORY AND
EQUITABLE RIGHT TO FORECLOSE[11]
The sole issue to be resolved is whether or not the respondents have
shown a clear legal right to enjoin the foreclosure and public auction of the
third-party mortgagors property while the case for annulment of REM on
said property is being tried.
Petitioner argued that the appellate courts conclusion that respondents
possess proprietary right over the mortgaged property subject of
foreclosure is utterly baseless, for the following reasons: first, while the
condominium unit is supposedly a family home, it is admittedly owned by
respondent corporation and not by the conjugal partnership or absolute
community of respondent-spouses; and second, even assuming that OJ-
Mark Trading, Inc. is a family corporation, respondents stance contravenes
the established rule that properties registered in the name of the
corporation are owned by it as an entity separate and distinct from its
As to the alleged proposal of respondent Oscar Martinez to assign
commercial lots by dacion en pago to settle their loan obligations,
petitioner pointed out that the properties offered for dacion are not
owned, and much less to be owned by him, but purportedly owned by
another corporation (developer), the president of which supposedly owes
him a sum of money. Respondent Oscar Martinez likewise admitted during
the hearings before the trial court his unpaid loan with petitioner.
Moreover, with the filing of a petition for extrajudicial foreclosure of the
real estate mortgage by petitioner, it serves more than a formal rejection
of respondents dacion en pago offer.[13]
On their part, the respondents contended that the petition raises factual
issues not proper in an appeal by certiorari under Rule 45. They asserted
that the trial court correctly found sufficient legal basis to grant the writ of
preliminary injunction after conducting a summary hearing in which both
parties actively participated and submitted oral and documentary
evidence. Such evidence adduced by respondents, as well as the Affidavit
dated January 24, 2003 of Atty. Oscar Martinez (adopted in the February 7,
2003 hearing) fully supported their application and hence the trial court
did not act precipitately or arbitrarily in granting injunctive relief.[14]
Respondents argued that they appear to be entitled to the relief
demanded by their Complaint because petitioner was in bad faith when it
proceeded to foreclose while there was still a pending written proposal to
pay. They stand to lose a prime property, and thus made a serious and
sincere offer by way of dacion en pago. To show good faith and as required
by petitioner to continue the negotiations for dacion, respondent Atty.
Oscar Martinez even paid P100,000.00 in October 2002, which petitioner
accepted. But petitioner maliciously, fraudulently and hastily proceeded to
foreclose the renovated mortgaged property, apparently motivated by its
discovery after re-appraisal that the floor area of the townhouse and
number of its rooms had doubled (from 180.750 sq. m. with three [3]
bedrooms, it is now 350 sq. m. with six [6] bedrooms). Respondents
contended that as creditor, it was petitioners duty not to sit on
respondents dacion offer and should have informed them in writing that
said offer is rejected. By hanging on the dacion talks, petitioner thus
prevented the respondents repayment of the loan, in malicious haste to
acquire the condominium unit as asset.[15]
Respondents further claimed that the extrajudicial foreclosure will cause
grave injustice and irreparable injury to respondent-spouses and their four
(4) young children because their family home, in which they were residing
since 1997, at least insofar as the unencumbered area in excess of 180.750
sq. m., is exempt from forced sale or execution under Article 155 of the
Family Code. Petitioner, on the other hand, will not suffer any loss if the
foreclosure will not proceed.[16]
With respect to the commercial lots offered in dacion, respondents fault
the petitioner in deliberately ignoring the fact that the Blue Mountains
Subdivision located at Antipolo City was already approved by the Land
Registration Authority; although the subdivided lots have already been
applied, the individual titles had not yet been issued. It was therefore
impossible for respondents to deliver these titles to petitioner by October
21, 2002 considering the normal time it takes to secure land titles.
Respondents deplored the sudden filing of the petition for extrajudicial
foreclosure, which was unfair as the negotiations had already reached the
stage when petitioner scheduled an ocular inspection for the appraisal of
the lots. However, for unknown reasons, petitioner did not push through
with the inspection.[17]
We grant the petition.
Section 3, Rule 58 of the Rules of Court provides that:
SEC. 3. Grounds for issuance of preliminary injunction.A preliminary
injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or
part of such relief consists in restraining the commission or continuance of
the act or acts complained of, or in requiring the performance of an act or
acts, either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or
acts complained of during the litigation would probably work injustice to
the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is
attempting to do, or is procuring or suffering to be done, some act or acts
probably in violation of the rights of the applicant respecting the subject of
the action or proceeding, and tending to render the judgment ineffectual.
As such, a writ of preliminary injunction may be issued only upon clear
showing of an actual existing right to be protected during the pendency of
the principal action. The twin requirements of a valid injunction are the
existence of a right and its actual or threatened violations. Thus, to be
entitled to an injunctive writ, the right to be protected and the violation
against that right must be shown.[18] A writ of preliminary injunction may
be issued only upon clear showing of an actual existing right to be
protected during the pendency of the principal action.[19]
The issuance of a preliminary injunction rests entirely within the discretion
of the court taking cognizance of the case and is generally not interfered
with except in cases of manifest abuse.[20] For the issuance of the writ of
preliminary injunction to be proper, it must be shown that the invasion of
the right sought to be protected is material and substantial, that the right
of complainant is clear and unmistakable and that there is an urgent and
paramount necessity for the writ to prevent serious damage. In the
absence of a clear legal right, the issuance of a writ of injunction
constitutes grave abuse of discretion.[21]
The possibility of irreparable damage without proof of actual existing right
is no ground for an injunction.[22] Hence, it is not sufficient for the
respondents to simply harp on the serious damage they stand to suffer if
the foreclosure sale is not stayed. They must establish such clear and
unmistakable right to the injunction. In Duvaz Corporation v. Export and
Industry Bank,[23] we emphasized that it is necessary for the petitioner to
establish in the main case its rights on an alleged dacion en pago
agreement before those rights can be deemed actual and existing, which
would justify the injunctive writ. Thus:
In Almeida v. Court of Appeals, the Court stressed how important it is for
the applicant for an injunctive writ to establish his right thereto by
competent evidence:
Thus, the petitioner, as plaintiff, was burdened to adduce testimonial
and/or documentary evidence to establish her right to the injunctive writs.
It must be stressed that injunction is not designed to protect contingent or
future rights, and, as such, the possibility of irreparable damage without
proof of actual existing right is no ground for an injunction. A clear and
positive right especially calling for judicial protection must be established.
Injunction is not a remedy to protect or enforce contingent, abstract, or
future rights; it will not issue to protect a right not in esse and which may
never arise, or to restrain an action which did not give rise to a cause of
action. There must be an existence of an actual right. Hence, where the
plaintiffs right or title is doubtful or disputed, injunction is not proper.
An injunctive remedy may only be resorted to when there is a pressing
necessity to avoid injurious consequences which cannot be remedied
under any standard compensation. The possibility of irreparable damage
without proof of an actual existing right would not justify injunctive relief
in his favor.
xxxxxxxxx
x x x. In the absence of a clear legal right, the issuance of the injunctive writ
constitutes grave abuse of discretion. As the Court had the occasion to
state in Olalia v. Hizon, 196 SCRA 665 (1991):
It has been consistently held that there is no power the exercise of which is
more delicate, which requires greater caution, deliberation and sound
discretion, or more dangerous in a doubtful case, than the issuance of an
injunction. It is the strong arm of equity that should never be extended
unless to cases of great injury, where courts of law cannot afford an
adequate or commensurate remedy in damages.
Every court should remember that an injunction is a limitation upon the
freedom of action of the defendant and should not be granted lightly or
precipitately. It should be granted only when the court is fully satisfied
that the law permits it and the emergency demands it.
We are in full accord with the CA when it struck down, for having been
issued with grave abuse of discretion, the RTCs Order of September 25,
2002, granting petitioners prayer for a writ of preliminary injunction during
the pendency of the main case, Civil Case No. 02-1029. The reason therefor
is that the right sought to be protected by the petitioner in this case
through the writ of preliminary injunction is merely contingent and not in
esse. It bears stressing that the existing written contract between
petitioner and respondent was admittedly one of loan restructuring; there
is no mention whatsoever or even a slightest reference in that written
contract to a supposed agreement of dacion en pago. In fine, it is still
necessary for petitioner to establish in the main case its rights on the
alleged dacion en pago before those rights become in esse or actual and
existing. Only then can the injunctive writ be properly issued. It cannot be
the other way around. Otherwise, it will be like putting the cart before the
horse.[24] [EMPHASIS SUPPLIED.]
In the case at bar, respondents failed to show that they have a right to be
protected and that the acts against which the writ is to be directed are
violative of the said right. On the face of their clear admission that they
were unable to settle their obligations which were secured by the
mortgage, petitioner has a clear right to foreclose the mortgage.[25]
Foreclosure is but a necessary consequence of non-payment of a mortgage
indebtedness.[26] In a real estate mortgage when the principal obligation
is not paid when due, the mortgagee has the right to foreclose the
mortgage and to have the property seized and sold with the view of
applying the proceeds to the payment of the obligation.[27]
This Court has denied the application for a Writ of Preliminary Injunction
that would enjoin an extrajudicial foreclosure of a mortgage, and declared
that foreclosure is proper when the debtors are in default of the payment
of their obligation. Where the parties stipulated in their credit agreements,
mortgage contracts and promissory notes that the mortgagee is authorized
to foreclose the mortgaged properties in case of default by the
mortgagors, the mortgagee has a clear right to foreclosure in case of
default, making the issuance of a Writ of Preliminary Injunction
improper.[28] In these cases, unsubstantiated allegations of denial of due
process and prematurity of a loan are not sufficient to defeat the
mortgagees unmistakable right to an extrajudicial foreclosure.[29]
We cannot agree with respondents position that petitioners act of
initiating extrajudicial foreclosure proceeding while they negotiated for a
dacion en pago was illegal and done in bad faith. As respondent-spouses
themselves admitted, they failed to comply with the documentary
requirements imposed by the petitioner for proper evaluation of their
proposal. In any event, petitioner had found the subdivision lots offered
for dacion as unacceptable, not only because the lots were not owned by
respondents as in fact, the lots were not yet titled but also for the reason
that respondent Oscar Martinezs claimed right therein was doubtful or
inchoate, and hence not in esse.
Requests by debtors-mortgagors for extensions to pay and proposals for
restructuring of the loans, without acceptance by the creditor-mortgagee,
remain as that. Without more, those proposals neither novated the parties
mortgage contract nor suspended its execution.[30] In the same vein,
negotiations for settlement of the mortgage debt by dacion en pago do not
extinguish the same nor forestall the creditor-mortgagees exercise of its
right to foreclose as provided in the mortgage contract.
As we held in Tecnogas Philippines Manufacturing Corporation v.
Philippine National Bank[31] --
Dacion en pago is a special mode of payment whereby the debtor offers
another thing to the creditor who accepts it as equivalent of payment of an
outstanding obligation. The undertaking is really one of sale, that is, the
creditor is really buying the thing or property of the debtor, payment for
which is to be charged against the debtors debt. As such, the essential
elements of a contract of sale, namely, consent, object certain, and cause
or consideration must be present. It is only when the thing offered as an
equivalent is accepted by the creditor that novation takes place, thereby,
totally extinguishing the debt.
On the first issue, the Court of Appeals did not err in ruling that Tecnogas
has no clear legal right to an injunctive relief because its proposal to pay by
way of dacion en pago did not extinguish its obligation. Undeniably,
Tecnogas proposal to pay by way of dacion en pago was not accepted by
PNB. Thus, the unaccepted proposal neither novates the parties mortgage
contract nor suspends its execution as there was no meeting of the minds
between the parties on whether the loan will be extinguished by way of
dacion en pago. Necessarily, upon Tecnogas default in its obligations, the
foreclosure of the REM becomes a matter of right on the part of PNB, for
such is the purpose of requiring security for the loans. [EMPHASIS
SUPPLIED.]
Respondent-spouses alleged proprietary right in the mortgaged
condominium unit appears to be based merely on respondents averment
that respondent OJ-Mark Trading, Inc. is a family corporation. However,
there is neither allegation nor evidence to show prima facie that such
purported right, whether as majority stockholder or creditor, was superior
to that of petitioner as creditor-mortgagee. The rule requires that in order
for a preliminary injunction to issue, the application should clearly allege
facts and circumstances showing the existence of the requisites. It must be
emphasized that an application for injunctive relief is construed strictly
against the pleader.[32]
We note that the claim of exemption under Art. 153 of the Family Code,
thereby raising issue on the mortgaged condominium unit being a family
home and not corporate property, is entirely inconsistent with the clear
contractual agreement of the REM.[33] Assuming arguendo that the
mortgaged condominium unit constitutes respondents family home, the
same will not exempt it from foreclosure as Article 155 (3) of the same
Code allows the execution or forced sale of a family home for debts
secured by mortgages on the premises before or after such constitution.
Respondents thus failed to show an ostensible right that needs protection
of the injunctive writ. Clearly, the appellate court seriously erred in
sustaining the trial courts orders granting respondents application for
preliminary injunction.
Anent the grave and irreparable injury which respondents alleged they will
suffer if no preliminary injunction is issued, this Court has previously
declared that all is not lost for defaulting mortgagors whose properties
were foreclosed by creditors-mortgagees, viz:
In any case, petitioners will not be deprived outrightly of their property.
Pursuant to Section 47 of the General Banking Law of 2000, mortgagors
who have judicially or extrajudicially sold their real property for the full or
partial payment of their obligation have the right to redeem the property
within one year after the sale. They can redeem their real estate by paying
the amount due, with interest rate specified, under the mortgage deed; as
well as all the costs and expenses incurred by the bank.
Moreover, in extrajudicial foreclosures, petitioners have the right to
receive any surplus in the selling price. This right was recognized in Sulit v.
CA, in which the Court held that if the mortgagee is retaining more of the
proceeds of the sale than he is entitled to, this fact alone will not affect the
validity of the sale but simply gives the mortgagor a cause of action to
recover such surplus.[34]
WHEREFORE, the petition is GRANTED. The Decision dated October 29,
2004 of the Court of Appeals in CA-G.R. SP No. 77703 is hereby REVERSED
and SET ASIDE. Respondents application for a writ of preliminary injunction
is DENIED.
No costs.
SO ORDERED.
JUANITA TRINIDAD RAMOS, ALMA RAMOS WORAK, MANUEL T. RAMOS, patriarch of herein petitioners. By Decision[2] of April 15, 2005, the Labor
JOSEFINA R. ROTHMAN, SONIA R. POST, ELVIRA P. MUNAR, and OFELIA R. Arbiter ruled in favor of respondents and ordered Ramos and the company
LIM, to pay the aggregate amount of P1,661,490.30 representing their
Petitioners, backwages, separation pay, 13th month pay & service incentive leave pay.

- versus - The Decision having become final and executory and no settlement having
been forged by the parties, the Labor Arbiter issued on September 8, 2005
DANILO PANGILINAN, RODOLFO SUMANG, LUCRECIO BAUTISTA and a writ of execution[3] which the Deputy Sheriff of the National Labor
ROLANDO ANTENOR, Relations Commission (NLRC) implemented by levying a property in Ramos
Respondents. name covered by TCT No. 38978, situated in Pandacan, Manila (Pandacan
property).
G.R. No. 185920
Alleging that the Pandacan property was the family home, hence, exempt
from execution to satisfy the judgment award, Ramos and the company
Present: moved to quash the writ of execution.[4] Respondents, however, averred
that the Pandacan property is not the Ramos family home, as it has
CARPIO MORALES, J., Chairperson, another in Antipolo, and the Pandacan property in fact served as the
BRION, companys business address as borne by the companys letterhead.
BERSAMIN, Respondents added that, assuming that the Pandacan property was indeed
ABAD,* and the family home, only the value equivalent to P300,000 was exempt from
VILLARAMA, JR., JJ. execution.

By Order[5] of August 2, 2006, the Labor Arbiter denied the motion to

quash, hence, Ramos and the company appealed to the NLRC which
Promulgated: affirmed the Labor Arbiters Order.

July 20, 2010 Ramos and the company appealed to the Court of Appeals during the
pendency of which Ramos died and was substituted by herein petitioners.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Petitioners also filed before the NLRC, as third-party claimants, a
Manifestation questioning the Notice to Vacate issued by the Sheriff,
DECISION alleging that assuming that the Pandacan property may be levied upon, the
family home straddled two (2) lots, including the lot covered by TCT No.
CARPIO MORALES, J.: 38978, hence, they cannot be asked to vacate the house. The Labor Arbiter
Respondents filed in 2003 a complaint[1] for illegal dismissal against E.M. was later to deny, by Decision of May 7, 2009, the third-party claim,
Ramos Electric, Inc., a company owned by Ernesto M. Ramos (Ramos), the holding
that Ramos death and petitioners substitution as his compulsory heirs
would not nullify the sale at auction of the Pandacan property. And the
NLRC[6] would later affirm the Labor Arbiters ruling, noting that petitioners
failed to exercise their right to redeem the Pandacan property within the
one 1 year period or until January 16, 2009. The NLRC brushed aside
petitioners contention that they should have been given a fresh period of 1
year from the time of Ramos death on July 29, 2008 or until July 30, 2009
to redeem the property, holding that to do so would give petitioners, as
mere heirs, a better right than the Ramos.
As to petitioners claim that the property was covered by the regime of
conjugal partnership of gains and as such only Ramos share can be levied
upon, the NLRC ruled that petitioners failed to substantiate such claim and
that the phrase in the TCT indicating the registered owner as Ernesto
Ramos, married to Juanita Trinidad, Filipinos, did not mean that both
owned the property, the phrase having merely described Ramos civil
status.
Before the appellate court, petitioners alleged that the NLRC erred in ruling
that the market value of the property was P2,177,000 as assessed by the
City Assessor of Manila and appearing in the documents submitted before
the Labor Arbiter, claiming that at the time the Pandacan property was
constituted as the family home in 1944, its value was way below P300,000;
and that Art. 153 of the Family Code was applicable, hence, they no longer
had to resort to judicial or extrajudicial constitution.
In the assailed Decision[7] of September 24, 2008, the appellate court, in
denying petitioners appeal, held that the Pandacan property was not
exempted from execution, for while Article 153[8] 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] did not mean that
the article 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.
The appellate court went on to hold that what was applicable law were
Articles 224 to 251 of the Civil Code, hence, there was still a need to either
judicially or extrajudicially constitute the Pandacan property as petitioners
family home before it can be exempted; and as petitioners failed to comply
therewith, there was no error in denying the motion to quash the writ of
execution.
The only question raised in the present petition for review on certiorari is
the propriety of the Court of Appeals Decision holding that the levy upon
the Pandacan property was valid.
The petition is devoid of merit.
Indeed, the general rule is 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.[9]
Kelley, Jr. v. Planters Products, Inc.[10] lays down the rules relative to the
levy on execution over the family home, viz:
No doubt, a family home is generally exempt from execution provided it
was duly constituted as such. There must be proof that the alleged family
home was constituted jointly by the husband and wife or by an unmarried
head of a family. It must be the house where they and their family actually
reside and the lot on which it is situated. The family home must be part of
the properties of the absolute community or the conjugal partnership, or
of the exclusive properties of either spouse with the latters consent, or on
the property of the unmarried head of the family. The actual value of the
family home shall not exceed, at the time of its constitution, the amount of
P300,000 in urban areas and P200,000 in rural areas.

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.
The exemption is effective from the time of the constitution of the family
home as such and lasts as long as any of its beneficiaries actually resides
therein. Moreover, the debts for which the family home is made
answerable must have been incurred after August 3, 1988. Otherwise (that
is, if it was incurred prior to August 3, 1988), the alleged family home must
be shown to have been constituted either judicially or extrajudicially
pursuant to the Civil Code. (emphasis supplied)
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.[11] Judicial constitution of the family home requires
the filing of a verified petition before the courts and the registration of the
courts order with the Registry of Deeds of the area where the property is
located. Meanwhile, extrajudicial constitution is governed by Articles 240
to 242[12] 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[13] 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[14] for which the family home is made
answerable must have been incurred after August 3, 1988.
And in both cases, whether under the Civil Code or the Family Code, 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.[15]
In the present case, since petitioners claim that the family home was
constituted prior to August 3, 1988, or as early as 1944, they must comply
with the procedure mandated by the Civil Code. There being absolutely no
proof that the Pandacan property was judicially or extrajudicially
constituted as the Ramos family home, the laws protective mantle cannot
be availed of by petitioners. Parenthetically, the records show that the
sheriff exhausted all means to execute the judgment but failed because
Ramos bank accounts[16] were already closed while other properties in his
or the companys name had already been transferred,[17] and the only
property left was the Pandacan property.
WHEREFORE, the petition is DENIED.
SO ORDERED.
JENIE SAN JUAN DELA CRUZ and minor CHRISTIAN DELA CRUZ AQUINO,
represented by JENIE SAN JUAN DELA CRUZ, On September 4, 2005, Dominique died.[1] After almost two months, or on
Petitioners, November 2, 2005, Jenie, who continued to live with Dominiques parents,
gave birth to her herein co-petitioner minor child Christian Dela Cruz
Aquino at the Antipolo Doctors Hospital, Antipolo City.
versus
Jenie applied for registration of the childs birth, using Dominiques surname
Aquino, with the Office of the City Civil Registrar, Antipolo City, in support
RONALD PAUL S. GRACIA, in his capacity as City Civil Registrar of Antipolo of which she submitted the childs Certificate of Live Birth,[2] Affidavit to
City, Use the Surname of the Father[3] (AUSF) which she had executed and
Respondent. signed, and Affidavit of Acknowledgment executed by Dominiques father
G.R. No. 177728 Domingo Butch Aquino.[4] Both affidavits attested, inter alia, that during
the lifetime of Dominique, he had continuously acknowledged his yet
Present: unborn child, and that his paternity had never been questioned. Jenie
attached to the AUSF a document entitled AUTOBIOGRAPHY which
QUISUMBING, J., Chairperson, Dominique, during his lifetime, wrote in his own handwriting, the pertinent
CARPIO MORALES, portions of which read:
CHICO-NAZARIO,
LEONARDO-DE CASTRO, and AQUINO, CHRISTIAN DOMINIQUE S.T.
PERALTA,* JJ.
AUTOBIOGRAPHY

IM CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE

Promulgated:
July 31, 2009
x------------------------------------------------x
DECISION
CARPIO MORALES, J.:
For several months in 2005, then 21-year old petitioner Jenie San Juan Dela
Cruz (Jenie) and then 19-year old Christian Dominique Sto. Tomas Aquino
(Dominique) lived together as husband and wife without the benefit of
marriage. They resided in the house of Dominiques parents Domingo B.
Aquino and Raquel Sto. Tomas Aquino at Pulang-lupa, Dulumbayan,
Teresa, Rizal.
TURNING 20 THIS COMING OCTOBER 31, 2005.[5] I RESIDE AT PULANG-
LUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL. I AM THE YOUNGEST IN
OUR FAMILY. I HAVE ONE BROTHER NAMED JOSEPH BUTCH STO. TOMAS
AQUINO. MY FATHERS NAME IS DOMINGO BUTCH AQUINO AND MY
MOTHERS NAME IS RAQUEL STO. TOMAS AQUINO. x x x.
xxxx
AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH
OTHER IN OUR HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME GOOD
FRIENDS, THEN WE FELL IN LOVE WITH EACH OTHER, THEN WE BECAME
GOOD COUPLES. AND AS OF NOW SHE IS PREGNANT AND FOR THAT WE
LIVE TOGETHER IN OUR HOUSE NOW. THATS ALL.[6] (Emphasis and
underscoring supplied)
By letter dated November 11, 2005,[7] the City Civil Registrar of Antipolo
City, Ronald Paul S. Gracia (respondent), denied Jenies application for
registration of the childs name in this wise:
7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing
Rules and Regulations of Republic Act No. 9255 [An Act Allowing
Illegitimate Children to Use the Surname of their Father, Amending for the
Purpose, Article 176 of Executive Order No. 209, otherwise Known as the
Family Code of the Philippines]) provides that:
Rule 7. Requirements for the Child to Use the Surname of the Father
7.1 For Births Not Yet Registered
7.1.1 The illegitimate child shall use the surname of the father if a public
document is executed by the father, either at the back of the Certificate of
Live Birth or in a separate document.
7.1.2 If admission of paternity is made through a private handwritten
instrument, the child shall use the surname of the father, provided the
registration is supported by the following documents:
a. AUSF[8]
b. Consent of the child, if 18 years old and over at the time of the filing of
the document.
c. Any two of the following documents showing clearly the paternity
between the father and the child:
1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any organization
5. Statement of Assets and Liability
6. Income Tax Return (ITR)
In summary, the child cannot use the surname of his father because he was
born out of wedlock and the father unfortunately died prior to his birth
and has no more capacity to acknowledge his paternity to the child (either
through the back of Municipal Form No. 102 Affidavit of
Acknowledgment/Admission of Paternity or the Authority to Use the
Surname of the Father). (Underscoring supplied)
Jenie and the child promptly filed a complaint[9] for injunction/registration
of name against respondent before the Regional Trial Court of Antipolo
City, docketed as SCA Case No. 06-539, which was raffled to Branch 73
thereof. The complaint alleged that, inter alia, the denial of registration of
the childs name is a violation of his right to use the surname of his
deceased father under Article 176 of the Family Code, as amended by
Republic Act (R.A.) No. 9255,[10] which provides:
Article 176. Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to support in
conformity with this Code. However, illegitimate children may use the
surname of their father if their filiation has been expressly recognized by
the father through the record of birth appearing in the civil register, or
when an admission in a public document or private handwritten
instrument is made by the father. Provided, the father has the right to
institute an action before the regular courts to prove non-filiation during
his lifetime. The legitime of each illegitimate child shall consist of one-half
of the legitime of a legitimate child. (Emphasis and underscoring supplied)
They maintained that the Autobiography executed by Dominique
constitutes an admission of paternity in a private handwritten instrument
within the contemplation of the above-quoted provision of law.
For failure to file a responsive pleading or answer despite service of
summons, respondent was declared in default.
Jenie thereupon presented evidence ex-parte. She testified on the
circumstances of her common-law relationship with Dominique and
affirmed her declarations in her AUSF that during his lifetime, he had
acknowledged his yet unborn child.[11] She offered Dominiques
handwritten Autobiography (Exhibit A) as her documentary evidence-in-
chief.[12] Dominiques lone brother, Joseph Butch S.T. Aquino, also
testified, corroborating Jenies declarations.[13]
By Decision[14] of April 25, 2007, the trial court dismissed the complaint
for lack of cause of action as the Autobiography was unsigned, citing
paragraph 2.2, Rule 2 (Definition of Terms) of Administrative Order (A.O.)
No. 1, Series of 2004 (the Rules and Regulations Governing the
Implementation of R.A. 9255) which defines private handwritten document
through which a father may acknowledge an illegitimate child as follows:
2.2 Private handwritten instrument an instrument executed in the
handwriting of the father and duly signed by him where he expressly
recognizes paternity to the child. (Underscoring supplied)
The trial court held that even if Dominique was the author of the
handwritten Autobiography, the same does not contain any express
recognition of paternity.
Hence, this direct resort to the Court via Petition for Review on Certiorari
raising this purely legal issue of:
WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE
DECEASED FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE CONSIDERED
AS A RECOGNITION OF PATERNITY IN A PRIVATE HANDWRITTEN
INSTRUMENT WITHIN THE CONTEMPLATION OF ARTICLE 176 OF THE
FAMILY CODE, AS AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID
MINOR TO USE HIS FATHERS SURNAME.[15] (Underscoring supplied)
Petitioners contend that Article 176 of the Family Code, as amended, does
not expressly require that the private handwritten instrument containing
the putative fathers admission of paternity must be signed by him. They
add that the deceaseds handwritten Autobiography, though unsigned by
him, is sufficient, for the requirement in the above-quoted paragraph 2.2
of the Administrative Order that the admission/recognition must be duly
signed by the father is void as it unduly expanded the earlier-quoted
provision of Article 176 of the Family Code.[16]
Petitioners further contend that the trial court erred in not finding that
Dominiques handwritten Autobiography contains a clear and unmistakable
recognition of the childs paternity.[17]
In its Comment, the Office of the Solicitor General (OSG) submits that
respondents position, as affirmed by the trial court, is in consonance with
the law and thus prays for the dismissal of the petition. It further submits
that Dominiques Autobiography merely acknowledged Jenies pregnancy
but not [his] paternity of the child she was carrying in her womb.[18]
Article 176 of the Family Code, as amended by R.A. 9255, permits an
illegitimate child to use the surname of his/her father if the latter had
expressly recognized him/her as his offspring through the record of birth
appearing in the civil register, or through an admission made in a public or
private handwritten instrument. The recognition made in any of these
documents is, in itself, a consummated act of acknowledgment of the
childs paternity; hence, no separate action for judicial approval is
necessary.[19]
Article 176 of the Family Code, as amended, does not, indeed, explicitly
state that the private handwritten instrument acknowledging the childs
paternity must be signed by the putative father. This provision must,
however, be read in conjunction with related provisions of the Family Code
which require that recognition by the father must bear his signature, thus:
Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
xxxx
Art. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
x x x x (Emphasis and underscoring supplied)
That a father who acknowledges paternity of a child through a written
instrument must affix his signature thereon is clearly implied in Article 176
of the Family Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004,
merely articulated such requirement; it did not unduly expand the import
of Article 176 as claimed by petitioners.
In the present case, however, special circumstances exist to hold that
Dominiques Autobiography, though unsigned by him, substantially satisfies
the requirement of the law.
First, Dominique died about two months prior to the childs birth. Second,
the relevant matters in the Autobiography, unquestionably handwritten by
Dominique, correspond to the facts culled from the testimonial evidence
Jenie proffered.[20] Third, Jenies testimony is corroborated by the Affidavit
of Acknowledgment of Dominiques father Domingo Aquino and testimony
of his brother Joseph Butch Aquino whose hereditary rights could be
affected by the registration of the questioned recognition of the child.
These circumstances indicating Dominiques paternity of the child give life
to his statements in his Autobiography that JENIE DELA CRUZ is MY WIFE as
WE FELL IN LOVE WITH EACH OTHER and NOW SHE IS PREGNANT AND FOR
THAT WE LIVE TOGETHER.
In Herrera v. Alba,[21] the Court summarized the laws, rules, and
jurisprudence on establishing filiation, discoursing in relevant part:
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in
the same way and on the same evidence as legitimate children.
xxxx
ART. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant
sections of Rule 130 provide:
SEC. 39. Act or declaration about pedigree. The act or declaration of a
person deceased, or unable to testify, in respect to the pedigree of another
person related to him by birth or marriage, may be received in evidence
where it occurred before the controversy, and the relationship between
the two persons is shown by evidence other than such act or declaration.
The word "pedigree" includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these facts
occurred, and the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree. The reputation
or tradition existing in a family previous to the controversy, in respect to
the pedigree of any one of its members, may be received in evidence if the
witness testifying thereon be also a member of the family, either by
consanguinity or affinity. Entries in family bibles or other family books or
charts, engraving on rings, family portraits and the like, may be received as
evidence of pedigree.
This Court's rulings further specify what incriminating acts are acceptable
as evidence to establish filiation. In Pe Lim v. CA, a case petitioner often
cites, we stated that the issue of paternity still has to be resolved by such
conventional evidence as the relevant incriminating verbal and written acts
by the putative father. Under Article 278 of the New Civil Code, voluntary
recognition by a parent shall be made in the record of birth, a will, a
statement before a court of record, or in any authentic writing. To be
effective, the claim of filiation must be made by the putative father himself
and the writing must be the writing of the putative father. A notarial
agreement to support a child whose filiation is admitted by the putative
father was considered acceptable evidence. Letters to the mother vowing
to be a good father to the child and pictures of the putative father cuddling
the child on various occasions, together with the certificate of live birth,
proved filiation. However, a student permanent record, a written consent
to a father's operation, or a marriage contract where the putative father
gave consent, cannot be taken as authentic writing. Standing alone,
neither a certificate of baptism nor family pictures are sufficient to
establish filiation. (Emphasis and underscoring supplied.)
In the case at bar, there is no dispute that the earlier quoted statements in
Dominiques Autobiography have been made and written by him. Taken
together with the other relevant facts extant herein that Dominique,
during his lifetime, and Jenie were living together as common-law spouses
for several months in 2005 at his parents house in Pulang-lupa,
Dulumbayan, Teresa, Rizal; she was pregnant when Dominique died on
September 4, 2005; and about two months after his death, Jenie gave birth
to the child they sufficiently establish that the child of Jenie is Dominiques.
In view of the pronouncements herein made, the Court sees it fit to adopt
the following rules respecting the requirement of affixing the signature of
the acknowledging parent in any private handwritten instrument wherein
an admission of filiation of a legitimate or illegitimate child is made:
1) Where the private handwritten instrument is the lone piece of evidence
submitted to prove filiation, there should be strict compliance with the
requirement that the same must be signed by the acknowledging parent;
and
2) Where the private handwritten instrument is accompanied by other
relevant and competent evidence, it suffices that the claim of filiation
therein be shown to have been made and handwritten by the
acknowledging parent as it is merely corroborative of such other evidence.
Our laws instruct that the welfare of the child shall be the paramount
consideration in resolving questions affecting him.[22] Article 3(1) of the
United Nations Convention on the Rights of a Child of which the Philippines
is a signatory is similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be a primary
consideration.[23] (Underscoring supplied)
It is thus (t)he policy of the Family Code to liberalize the rule on the
investigation of the paternity and filiation of children, especially of
illegitimate children x x x.[24] Too, (t)he State as parens patriae affords
special protection to children from abuse, exploitation and other
conditions prejudicial to their development.[25]

In the eyes of society, a child with an unknown father bears the stigma of
dishonor. It is to petitioner minor childs best interests to allow him to bear
the surname of the now deceased Dominique and enter it in his birth
certificate.

WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo

City is DIRECTED to immediately enter the surname of the late Christian
Dominique Sto. Tomas Aquino as the surname of petitioner minor Christian
dela Cruz in his Certificate of Live Birth, and record the same in the Register
of Births.

SO ORDERED.
GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and MA.
THERESA ALMONTE, respondents.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity, needs special
safeguard and care, including appropriate legal protection before as well as
after birth.[1] In case of assault on his rights by those who take advantage
of his innocence and vulnerability, the law will rise in his defense with the
single-minded purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and private
respondent Ma. Theresa Almonte, and a child named Jose Gerardo.
Gerardo and Ma. Theresa were married on December 29, 1989.[2] After
their marriage, they lived with Ma. Theresas parents in Fairview, Quezon
City.[3] Almost a year later, on December 8, 1990, Ma. Theresa gave birth
to Jose Gerardo.[4]
Gerardo and Ma. Theresas relationship turned out to be short-lived,
however. On December 19, 1991, Gerardo filed a petition to have his
marriage to Ma. Theresa annulled on the ground of bigamy.[5] He alleged
that nine years before he married Ma. Theresa on December 10, 1980, she
had married one Mario Gopiao, which marriage was never annulled.[6]
Gerardo also found out that Mario was still alive and was residing in Loyola
Heights, Quezon City.[7]
Ma. Theresa did not deny marrying Mario when she was twenty years old.
She, however, averred that the marriage was a sham and that she never
lived with Mario at all.[8]
The trial court ruled that Ma. Theresas marriage to Mario was valid and
subsisting when she married Gerardo and annulled her marriage to the
latter for being bigamous. It declared Jose Gerardo to be an illegitimate
child as a result. The custody of the child was awarded to Ma. Theresa
while Gerardo was granted visitation rights.[9]
Ma. Theresa felt betrayed and humiliated when Gerardo had their
marriage annulled. She held him responsible for the bastardization of
Gerardo. She moved for the reconsideration of the above decision
INSOFAR ONLY as that portion of the decision which grant(ed) to the
petitioner so-called visitation rights between the hours of 8 in the morning
to 12:00 p.m. of any Sunday.[10] She argued that there was nothing in the
law granting visitation rights in favor of the putative father of an
illegitimate child.[11] She further maintained that Jose Gerardos surname
should be changed from Concepcion to Almonte, her maiden name,
following the rule that an illegitimate child shall use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation rights and the
retention of Concepcion as Jose Gerardos surname.
Applying the best interest of the child principle, the trial court denied Ma.
Theresas motion and made the following observations:
It is a pity that the parties herein seem to be using their son to get at or to
hurt the other, something they should never do if they want to assure the
normal development and well-being of the boy.
The Court allowed visitorial rights to the father knowing that the minor
needs a father, especially as he is a boy, who must have a father figure to
recognize something that the mother alone cannot give. Moreover, the
Court believes that the emotional and psychological well-being of the boy
would be better served if he were allowed to maintain relationships with
his father.
There being no law which compels the Court to act one way or the other
on this matter, the Court invokes the provision of Art. 8, PD 603 as
amended, otherwise known as the Child and Youth Welfare Code, to wit:
In all questions regarding the care, custody, education and property of the
child, his welfare shall be the paramount consideration.

WHEREFORE, the respondents Motion for Reconsideration has to be, as it
is hereby DENIED.[12]
Ma. Theresa elevated the case to the Court of Appeals, assigning as error
the ruling of the trial court granting visitation rights to Gerardo. She
likewise opposed the continued use of Gerardos surname (Concepcion)
despite the fact that Jose Gerardo had already been declared illegitimate
and should therefore use her surname (Almonte). The appellate court
denied the petition and affirmed in toto the decision of the trial court.[13]
On the issue raised by Ma. Theresa that there was nothing in the law that
granted a putative father visitation rights over his illegitimate child, the
appellate court affirmed the best interest of the child policy invoked by the
court a quo. It ruled that [a]t bottom, it (was) the childs welfare and not
the convenience of the parents which (was) the primary consideration in
granting visitation rights a few hours once a week.[14]
The appellate court likewise held that an illegitimate child cannot use the
mothers surname motu proprio. The child, represented by the mother,
should file a separate proceeding for a change of name under Rule 103 of
the Rules of Court to effect the correction in the civil registry.[15]
Undaunted, Ma. Theresa moved for the reconsideration of the adverse
decision of the appellate court. She also filed a motion to set the case for
oral arguments so that she could better ventilate the issues involved in the
controversy.
After hearing the oral arguments of the respective counsels of the parties,
the appellate court resolved the motion for reconsideration. It reversed its
earlier ruling and held that Jose Gerardo was not the son of Ma. Theresa by
Gerardo but by Mario during her first marriage:
It is, therefore, undeniable established by the evidence in this case that the
appellant [Ma. Theresa] was married to Mario Gopiao, and that she had
never entered into a lawful marriage with the appellee [Gerardo] since the
so-called marriage with the latter was void ab initio. It was [Gerardo]
himself who had established these facts. In other words, [Ma. Theresa] was
legitimately married to Mario Gopiao when the child Jose Gerardo was
born on December 8, 1990. Therefore, the child Jose Gerardo under the
law is the legitimate child of the legal and subsisting marriage between
[Ma. Theresa] and Mario Gopiao; he cannot be deemed to be the
illegitimate child of the void and non-existent marriage between [Ma.
Theresa] and [Gerardo], but is said by the law to be the child of the
legitimate and existing marriage between [Ma. Theresa] and Mario Gopiao
(Art. 164, Family Code). Consequently, [she] is right in firmly saying that
[Gerardo] can claim neither custody nor visitorial rights over the child Jose
Gerardo. Further, [Gerardo] cannot impose his name upon the child. Not
only is it without legal basis (even supposing the child to be his illegitimate
child [Art. 146, The Family Code]); it would tend to destroy the existing
marriage between [Ma. Theresa] and Gopiao, would prevent any possible
rapproachment between the married couple, and would mean a judicial
seal upon an illegitimate relationship.[16]
The appellate court brushed aside the common admission of Gerardo and
Ma. Theresa that Jose Gerardo was their son. It gave little weight to Jose
Gerardos birth certificate showing that he was born a little less than a year
after Gerardo and Ma. Theresa were married:
We are not unaware of the movants argument that various evidence exist
that appellee and the appellant have judicially admitted that the minor is
their natural child. But, in the same vein, We cannot overlook the fact that
Article 167 of the Family Code mandates:
The child shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an
adulteress. (underscoring ours)
Thus, implicit from the above provision is the fact that a minor cannot be
deprived of his/her legitimate status on the bare declaration of the mother
and/or even much less, the supposed father. In fine, the law and only the
law determines who are the legitimate or illegitimate children for ones
legitimacy or illegitimacy cannot ever be compromised. Not even the birth
certificate of the minor can change his status for the information contained
therein are merely supplied by the mother and/or the supposed father. It
should be what the law says and not what a parent says it is.[17] (Emphasis
supplied)
Shocked and stunned, Gerardo moved for a reconsideration of the above
decision but the same was denied.[18] Hence, this appeal.
The status and filiation of a child cannot be compromised.[19] Article 164
of the Family Code is clear. A child who is conceived or born during the
marriage of his parents is legitimate.[20]
As a guaranty in favor of the child[21] and to protect his status of
legitimacy, Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been sentenced as
an adulteress.
The law requires that every reasonable presumption be made in favor of
legitimacy.[22] We explained the rationale of this rule in the recent case of
Cabatania v. Court of Appeals[23]:
The presumption of legitimacy does not only flow out of a declaration in
the statute but is based on the broad principles of natural justice and the
supposed virtue of the mother. It is grounded on the policy to protect the
innocent offspring from the odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He cannot. He
has no standing in law to dispute the status of Jose Gerardo. Only Ma.
Theresas husband Mario or, in a proper case,[25] his heirs, who can
contest the legitimacy of the child Jose Gerardo born to his wife.[26]
Impugning the legitimacy of a child is a strictly personal right of the
husband or, in exceptional cases, his heirs.[27] Since the marriage of
Gerardo and Ma. Theresa was void from the very beginning, he never
became her husband and thus never acquired any right to impugn the
legitimacy of her child.
The presumption of legitimacy proceeds from the sexual union in marriage,
particularly during the period of conception.[28] To overthrow this
presumption on the basis of Article 166 (1)(b) of the Family Code, it must
be shown beyond reasonable doubt that there was no access that could
have enabled the husband to father the child.[29] Sexual intercourse is to
be presumed where personal access is not disproved, unless such
presumption is rebutted by evidence to the contrary.[30]
The presumption is quasi-conclusive and may be refuted only by the
evidence of physical impossibility of coitus between husband and wife
within the first 120 days of the 300 days which immediately preceded the
birth of the child.[31]
To rebut the presumption, the separation between the spouses must be
such as to make marital intimacy impossible.[32] This may take place, for
instance, when they reside in different countries or provinces and they
were never together during the period of conception.[33] Or, the husband
was in prison during the period of conception, unless it appears that sexual
union took place through the violation of prison regulations.[34]
Here, during the period that Gerardo and Ma. Theresa were living together
in Fairview, Quezon City, Mario was living in Loyola Heights which is also in
Quezon City. Fairview and Loyola Heights are only a scant four kilometers
apart.
Not only did both Ma. Theresa and Mario reside in the same city but also
that no evidence at all was presented to disprove personal access between
them. Considering these circumstances, the separation between Ma.
Theresa and her lawful husband, Mario, was certainly not such as to make
it physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to defeat
the assumption should be presented by him who asserts the contrary.
There is no such evidence here. Thus, the presumption of legitimacy in
favor of Jose Gerardo, as the issue of the marriage between Ma. Theresa
and Mario, stands.
Gerardo relies on Ma. Theresas statement in her answer[35] to the petition
for annulment of marriage[36] that she never lived with Mario. He claims
this was an admission that there was never any sexual relation between
her and Mario, an admission that was binding on her.
Gerardos argument is without merit.
First, the import of Ma. Theresas statement is that Jose Gerardo is not her
legitimate son with Mario but her illegitimate son with Gerardo. This
declaration an avowal by the mother that her child is illegitimate is
the very declaration that is proscribed by Article 167 of the Family Code.
The language of the law is unmistakable. An assertion by the mother
against the legitimacy of her child cannot affect the legitimacy of a child
born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not mean that
there was never an instance where Ma. Theresa could have been together
with Mario or that there occurred absolutely no intercourse between
them. All she said was that she never lived with Mario. She never claimed
that nothing ever happened between them.
Telling is the fact that both of them were living in Quezon City during the
time material to Jose Gerardos conception and birth. Far from foreclosing
the possibility of marital intimacy, their proximity to each other only serves
to reinforce such possibility. Thus, the impossibility of physical access was
never established beyond reasonable doubt.
Third, to give credence to Ma. Theresas statement is to allow her to
arrogate unto herself a right exclusively lodged in the husband, or in a
proper case, his heirs.[37] A mother has no right to disavow a child
because maternity is never uncertain.[38] Hence, Ma. Theresa is not
permitted by law to question Jose Gerardos legitimacy.
Finally, for reasons of public decency and morality, a married woman
cannot say that she had no intercourse with her husband and that her
offspring is illegitimate.[39] The proscription is in consonance with the
presumption in favor of family solidarity. It also promotes the intention of
the law to lean toward the legitimacy of children.[40]
Gerardos insistence that the filiation of Jose Gerardo was never an issue
both in the trial court and in the appellate court does not hold water. The
fact that both Ma. Theresa and Gerardo admitted and agreed that Jose
Gerardo was born to them was immaterial. That was, in effect, an
agreement that the child was illegitimate. If the Court were to validate that
stipulation, then it would be tantamount to allowing the mother to make a
declaration against the legitimacy of her child and consenting to the denial
of filiation of the child by persons other than her husband. These are the
very acts from which the law seeks to shield the child.
Public policy demands that there be no compromise on the status and
filiation of a child.[41] Otherwise, the child will be at the mercy of those
who may be so minded to exploit his defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It
has no evidentiary value in this case because it was not offered in evidence
before the trial court. The rule is that the court shall not consider any
evidence which has not been formally offered.[42]
Moreover, the law itself establishes the status of a child from the moment
of his birth.[43] Although a record of birth or birth certificate may be used
as primary evidence of the filiation of a child,[44] as the status of a child is
determined by the law itself, proof of filiation is necessary only when the
legitimacy of the child is being questioned, or when the status of a child
born after 300 days following the termination of marriage is sought to be
established.[45]
Here, the status of Jose Gerardo as a legitimate child was not under attack
as it could not be contested collaterally and, even then, only by the
husband or, in extraordinary cases, his heirs. Hence, the presentation of
proof of legitimacy in this case was improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of the facts
contained therein.[46] As prima facie evidence, the statements in the
record of birth may be rebutted by more preponderant evidence. It is not
conclusive evidence with respect to the truthfulness of the statements
made therein by the interested parties.[47] Between the certificate of birth
which is prima facie evidence of Jose Gerardos illegitimacy and the quasi-
conclusive presumption of law (rebuttable only by proof beyond
reasonable doubt) of his legitimacy, the latter shall prevail. Not only does it
bear more weight, it is also more conducive to the best interests of the
child and in consonance with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly press
for Jose Gerardos illegitimacy while claiming that they both had the childs
interests at heart. The law, reason and common sense dictate that a
legitimate status is more favorable to the child. In the eyes of the law, the
legitimate child enjoys a preferred and superior status. He is entitled to
bear the surnames of both his father and mother, full support and full
inheritance.[48] On the other hand, an illegitimate child is bound to use
the surname and be under the parental authority only of his mother. He
can claim support only from a more limited group and his legitime is only
half of that of his legitimate counterpart.[49] Moreover (without
unwittingly exacerbating the discrimination against him), in the eyes of
society, a bastard is usually regarded as bearing a stigma or mark of
dishonor. Needless to state, the legitimacy presumptively vested by law
upon Jose Gerardo favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter
squabble between the very persons who were passionately declaring their
concern for him. The paradox was that he was made to suffer supposedly
for his own sake. This madness should end.
This case has been pending for a very long time already. What is specially
tragic is that an innocent child is involved. Jose Gerardo was barely a year
old when these proceedings began. He is now almost fifteen and all this
time he has been a victim of incessant bickering. The law now comes to his
aid to write finis to the controversy which has unfairly hounded him since
his infancy.
Having only his best interests in mind, we uphold the presumption of his
legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the
surnames of his father Mario and mother Ma. Theresa, in conformity with
the provisions of the Civil Code on surnames.[50] A persons surname or
family name identifies the family to which he belongs and is passed on
from parent to child.[51] Hence, Gerardo cannot impose his surname on
Jose Gerardo who is, in the eyes of the law, not related to him in any way.
The matter of changing Jose Gerardos name and effecting the corrections
of the entries in the civil register regarding his paternity and filiation
should be threshed out in a separate proceeding.
In case of annulment or declaration of absolute nullity of marriage, Article
49 of the Family Code grants visitation rights to a parent who is deprived of
custody of his children. Such visitation rights flow from the natural right of
both parent and child to each others company. There being no such
parent-child relationship between them, Gerardo has no legally
demandable right to visit Jose Gerardo. SO ORDERED.

Our laws seek to promote the welfare of the child. Article 8 of PD 603,
otherwise known as the Child and Youth Welfare Code, is clear and
unequivocal:

Article 8. Childs Welfare Paramount. In all questions regarding the care,

custody, education and property of the child, his welfare shall be the
paramount consideration.

Article 3 (1) of the United Nations Convention on the Rights of a Child of

which the Philippines is a signatory is similarly emphatic:

Article 3

1. In all actions concerning children, whether undertaken by public or

private social welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be a primary
consideration.

The State as parens patriae affords special protection to children from

abuse, exploitation and other conditions prejudicial to their development.
It is mandated to provide protection to those of tender years.[52] Through
its laws, the State safeguards them from every one, even their own
parents, to the end that their eventual development as responsible citizens
and members of society shall not be impeded, distracted or impaired by
family acrimony. This is especially significant where, as in this case, the
issue concerns their filiation as it strikes at their very identity and lineage.

WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and
January 10, 1996 resolutions of the Court of Appeals in CA-G.R. CV No.
40651 are hereby AFFIRMED.

Costs against petitioner.

CHERRYL B. DOLINA, G.R. No. 182367 Vallecera opposed the petition. He claimed that Dolinas petition was
Petitioner, essentially one for financial support rather than for protection against
Present: woman and child abuses; that he was not the childs father; that the
CARPIO, J., Chairperson, signature appearing on the childs Certificate of Live Birth is not his; that
- versus - NACHURA, the petition is a harassment suit intended to force him to acknowledge the
PERALTA, child as his and give it financial support; and that Vallecera has never lived
ABAD, and nor has been living with Dolina, rendering unnecessary the issuance of a
MENDOZA, JJ. protection order against him.
GLENN D. VALLECERA,
Respondent. Promulgated: On March 13, 2008[4] the RTC dismissed the petition after hearing since no
prior judgment exists establishing the filiation of Dolinas son and granting
December 15, 2010 him the right to support as basis for an order to compel the giving of such
x --------------------------------------------------------------------------------------- x support. Dolina filed a motion for reconsideration but the RTC denied it in
its April 4, 2008 Order,[5] with an admonition that she first file a petition
DECISION for compulsory recognition of her child as a prerequisite for support.
Unsatisfied, Dolina filed the present petition for review directly with this
ABAD, J.: Court.

This case is about a mothers claim for temporary support of an
unacknowledged child, which she sought in an action for the issuance of a
temporary protection order that she brought against the supposed father.
The Facts and the Case
The Issue Presented
The sole issue presented in this case is whether or not the RTC correctly
dismissed Dolinas action for temporary protection and denied her
application for temporary support for her child.

In February 2008 petitioner Cherryl B. Dolina filed a petition with prayer
for the issuance of a temporary protection order against respondent Glenn
D. Vallecera before the Regional Trial Court (RTC) of Tacloban City in P.O.
2008-02-07[1] for alleged woman and child abuse under Republic Act (R.A.)
9262.[2] In filling out the blanks in the pro-forma complaint, Dolina added
a handwritten prayer for financial support[3] from Vallecera for their
supposed child. She based her prayer on the latters Certificate of Live Birth
which listed Vallecera as the childs father. The petition also asked the RTC
to order Philippine Airlines, Valleceras employer, to withhold from his pay
such amount of support as the RTC may deem appropriate.
The Courts Ruling
Dolina evidently filed the wrong action to obtain support for her child. The
object of R.A. 9262 under which she filed the case is the protection and
safety of women and children who are victims of abuse or violence.[6]
Although the issuance of a protection order against the respondent in the
case can include the grant of legal support for the wife and the child, this
assumes that both are entitled to a protection order and to legal support.
Dolina of course alleged that Vallecera had been abusing her and her child.
But it became apparent to the RTC upon hearing that this was not the case
since, contrary to her claim, neither she nor her child ever lived with having a hand in the preparation and signing of its certificate of birth. This
Vallecera. As it turned out, the true object of her action was to get financial issue has to be resolved in an appropriate case.
support from Vallecera for her child, her claim being that he is the father.
He of course vigorously denied this. ACCORDINGLY, the Court DENIES the petition and AFFIRMS the Regional
Trial Court of Tacloban Citys Order dated March 13, 2008 that dismissed
To be entitled to legal support, petitioner must, in proper action, first petitioner Cherryl B. Dolinas action in P.O. 2008-02-07, and Order dated
establish the filiation of the child, if the same is not admitted or April 4, 2008, denying her motion for reconsideration dated March 28,
acknowledged. Since Dolinas demand for support for her son is based on 2008.
her claim that he is Valleceras illegitimate child, the latter is not entitled to
such support if he had not acknowledged him, until Dolina shall have SO ORDERED.
proved his relation to him.[7] The childs remedy is to file through her
mother a judicial action against Vallecera for compulsory recognition.[8] If
filiation is beyond question, support follows as matter of obligation.[9] In
short, illegitimate children are entitled to support and successional rights
but their filiation must be duly proved.[10]

Dolinas remedy is to file for the benefit of her child an action against
Vallecera for compulsory recognition in order to establish filiation and then
demand support. Alternatively, she may directly file an action for support,
where the issue of compulsory recognition may be integrated and
resolved.[11]

It must be observed, however, that the RTC should not have dismissed the
entire case based solely on the lack of any judicial declaration of filiation
between Vallecera and Dolinas child since the main issue remains to be the
alleged violence committed by Vallecera against Dolina and her child and
whether they are entitled to protection. But of course, this matter is
already water under the bridge since Dolina failed to raise this error on
review. This omission lends credence to the conclusion of the RTC that the
real purpose of the petition is to obtain support from Vallecera.

While the Court is mindful of the best interests of the child in cases
involving paternity and filiation, it is just as aware of the disturbance that
unfounded paternity suits cause to the privacy and peace of the putative
fathers legitimate family.[12] Vallecera disowns Dolinas child and denies
 QUISUMBING, J.:

TEOFISTO I. VERCELES, This petition for review seeks the reversal of the Decision[1] dated May 30,
Petitioner, 2003 and the Resolution[2] dated August 27, 2003 of the Court of Appeals
in CA-G.R. CV No. 50557. The appellate court had affirmed with
modification the Judgment[3] dated January 4, 1995 of the Regional Trial
Court (RTC) of Virac, Catanduanes, Branch 42, in Civil Case No. 1401. The
- versus - RTC held petitioner liable to pay monthly support to Verna Aiza Posada
since her birth on September 23, 1987 as well as moral and exemplary
damages, attorneys fees and costs of suit.

The facts in this case as found by the lower courts are as follows:
MARIA CLARISSA POSADA, in her own behalf, and as mother of minor
VERNA AIZA POSADA, CONSTANTINO POSADA and FRANCISCA POSADA, Respondent Maria Clarissa Posada (Clarissa), a young lass from the barrio
Respondents. of Pandan, Catanduanes, sometime in 1986 met a close family friend,
G.R. No. 159785 petitioner Teofisto I. Verceles, mayor of Pandan. He then called on the
Posadas and at the end of the visit, offered Clarissa a job.
Present:
Clarissa accepted petitioners offer and worked as a casual employee in the
QUISUMBING, J., Chairperson, mayors office starting on September 1, 1986. From November 10 to 15 in
CARPIO, 1986, with companions Aster de Quiros, Pat del Valle, Jaime and Jocelyn
CARPIO MORALES, Vargas, she accompanied petitioner to Legaspi City to attend a seminar on
TINGA, and town planning. They stayed at the Mayon Hotel.
VELASCO, JR., JJ.
On November 11, 1986, at around 11:00 a.m., petitioner fetched Clarissa
from My Brothers Place where the seminar was being held. Clarissa avers
that he told her that they would have lunch at Mayon Hotel with their
companions who had gone ahead. When they reached the place her
Promulgated: companions were nowhere. After petitioner ordered food, he started
making amorous advances on her. She panicked, ran and closeted herself
April 27, 2007 inside a comfort room where she stayed until someone knocked. She said
she hurriedly exited and left the hotel. Afraid of the mayor, she kept the
x--------------------------------------------------x incident to herself. She went on as casual employee. One of her tasks was
DECISION following-up barangay road and maintenance projects.
On December 22, 1986, on orders of petitioner, she went to Virac,
Catanduanes, to follow up funds for barangay projects. At around 11:00
a.m. the same day, she went to Catanduanes Hotel on instructions of
petitioner who asked to be briefed on the progress of her mission. They
met at the lobby and he led her upstairs because he said he wanted the
briefing done at the restaurant at the upper floor.
Instead, however, petitioner opened a hotel room door, led her in, and
suddenly embraced her, as he told her that he was unhappy with his wife
and would divorce her anytime. He also claimed he could appoint her as a
municipal development coordinator. She succumbed to his advances. But
again she kept the incident to herself.
Sometime in January 1987, when she missed her menstruation, she said
she wrote petitioner that she feared she was pregnant. In another letter in
February 1987, she told him she was pregnant. In a handwritten letter
dated February 4, 1987, he replied:
My darling Chris,
Should you become pregnant even unexpectedly, I should have no regret,
because I love you and you love me.
Let us rejoice a common responsibility you and I shall take care of it and let
him/her see the light of this beautiful world.
We know what to do to protect our honor and integrity.
Just relax and be happy, if true.
With all my love,
Ninoy
2/4/87[4]
Clarissa explained petitioner used an alias Ninoy and addressed her as
Chris, probably because of their twenty-five (25)-year age gap. In court, she
identified petitioners penmanship which she claims she was familiar with
as an employee in his office.
Clarissa presented three other handwritten letters[5] sent to her by
petitioner, two of which were in his letterhead as mayor of Pandan. She
also presented the pictures[6] petitioner gave her of his youth and as a
public servant, all bearing his handwritten notations at the back.
Clarissa avers that on March 3, 1987, petitioner, aware of her pregnancy,
handed her a letter and P2,000 pocket money to go to Manila and to tell
her parents that she would enroll in a CPA review course or look for a job.
In June 1987, petitioner went to see her in Manila and gave her another
P2,000 for her delivery. When her parents learned of her pregnancy,
sometime in July, her father fetched her and brought her back to Pandan.
On September 23, 1987,[7] she gave birth to a baby girl, Verna Aiza
Posada.
Clarissas mother, Francisca, corroborated Clarissas story. She said they
learned of their daughters pregnancy through her husbands cousin. She
added that she felt betrayed by petitioner and shamed by her daughters
pregnancy.
The Posadas filed a Complaint for Damages coupled with Support
Pendente Lite before the RTC, Virac, Catanduanes against petitioner on
October 23, 1987.[8]
On January 4, 1995, the trial court issued a judgment in their favor, the
dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in
favor of the [respondents] and against the [petitioner] and ordering the
latter:
1. to pay a monthly support of P2,000.00 to Verna Aiza Posada since her
birth on September 23, 1987 as he was proved to be the natural father of
the above-named minor as shown by the exhibits and testimonies of the
[respondents];
2. to pay the amount of P30,000.00 as moral damages;
3. to pay the amount of P30,000.00 as exemplary damages;
4. to pay the sum of P10,000.00 as attorneys fees; and
5. to pay the costs of the suit.
SO ORDERED.[9]

Verceles appealed to the Court of Appeals which affirmed the judgment
with modification, specifying the party to whom the damages was
awarded. The dispositive portion of the Court of Appeals decision reads:
WHEREFORE, the appealed judgment is AFFIRMED with modification by
ordering [petitioner] Teofisto I. Verceles:
1. To pay a monthly support of P2,000.00 to Verna Aiza Posada from her
birth on September 23, 1987.
2. To pay [respondent] Maria Clarissa Posada the sum of P15,000.00 as
moral damages and [P]15,000.00 as exemplary damages.
3. To pay [respondents] spouses Constantino and Francisca Posada the
sum of P15,000.00 as moral damages and P15,000.00 as exemplary
damages.
4. To pay each of the said three [respondents] P10,000.00 as attorneys
fees; and
5. To pay the costs of suit.
SO ORDERED.[10]
Hence, this petition.
Petitioner now presents the following issues for resolution:
I.
WAS THERE ANY EVIDENCE ON RECORD TO PROVE THAT APPELLANT
VERCELES WAS THE FATHER OF THE CHILD?
II.
WOULD THIS ACTION FOR DAMAGES PROSPER?
III.
WOULD THE RTC COURT HAVE ACQUIRED JURISDICTION OVER THIS ISSUE
OF APPELLANTS PATERNITY OF THE CHILD, WHICH IS MADE COLLATERAL
TO THIS ACTION FOR DAMAGES?[11]
In sum, the pertinent issues in this case are: (1) whether or not paternity
and filiation can be resolved in an action for damages with support
pendente lite; (2) whether or not the filiation of Verna Aiza Posada as the
illegitimate child of petitioner was proven; and (3) whether or not
respondents are entitled to damages.
In his Memorandum, petitioner asserts that the fact of paternity and
filiation of Verna Aiza Posada has not been duly established or proved in
the proceedings; that the award for damages and attorneys fees has no
basis; and that the issue of filiation should be resolved in a direct and not a
collateral action.
Petitioner argues he never signed the birth certificate of Verna Aiza Posada
as father and that it was respondent Clarissa who placed his name on the
birth certificate as father without his consent. He further contends the
alleged love letters he sent to Clarissa are not admissions of paternity but
mere expressions of concern and advice.[12] As to the award for damages,
petitioner argues Clarissa could not have suffered moral damages because
she was in pari delicto, being a willing participant in the consensual carnal
act between them.[13] In support of his argument that the issue on
filiation should have been resolved in a separate action, petitioner cited
the case of Rosales v. Castillo Rosales[14] where we held that the
legitimacy of a child which is controversial can only be resolved in a direct
action.[15]
On the other hand, respondents in their Memorandum maintain that the
Court of Appeals committed no error in its decision. They reiterate that
Clarissas clear narration of the circumstances on how she was deflowered
by petitioner, the love letters and pictures given by petitioner to Clarissa,
the corroborating testimony of Clarissas mother, the fact that petitioner
proffered no countervailing evidence, are preponderant evidence of
paternity. They cited the case of De Jesus v. Syquia[16] where we held that
a conceived child can be acknowledged because this is an act favorable to
the child.[17] They also argue that damages should be awarded because
petitioner inveigled Clarissa to succumb to his sexual advances.[18]
Could paternity and filiation be resolved in an action for damages? On this
score, we find petitioners stance unmeritorious. The caption is not
determinative of the nature of a pleading. In a string of cases we made the
following rulings. It is not the caption but the facts alleged which give
meaning to a pleading. Courts are called upon to pierce the form and go
into the substance thereof.[19] In determining the nature of an action, it is
not the caption, but the averments in the petition and the character of the
relief sought, that are controlling.[20]
A perusal of the Complaint before the RTC shows that although its caption
states Damages coupled with Support Pendente Lite, Clarissas averments
therein, her meeting with petitioner, his offer of a job, his amorous
advances, her seduction, their trysts, her pregnancy, birth of her child, his
letters, her demand for support for her child, all clearly establish a case for
recognition of paternity. We have held that the due recognition of an
illegitimate child in a record of birth, a will, a statement before a court of
record, or in any authentic writing is, in itself, a consummated act of
acknowledgement of the child, and no further court action is required. In
fact, any authentic writing is treated not just a ground for compulsory
recognition; it is in itself a voluntary recognition that does not require a
separate action for judicial approval.[21]
The letters of petitioner marked as Exhibits A to D are declarations that
lead nowhere but to the conclusion that he sired Verna Aiza. Although
petitioner used an alias in these letters, the similarity of the penmanship in
these letters vis the annotation at the back of petitioners fading
photograph as a youth is unmistakable. Even an inexperienced eye will
come to the conclusion that they were all written by one and the same
person, petitioner, as found by the courts a quo.
We also note that in his Memorandum, petitioner admitted his affair with
Clarissa, the exchange of love letters between them, and his giving her
money during her pregnancy. [22]
Articles 172 and 175 of the Family Code are the rules for establishing
filiation. They are as follows:
Art. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged
parent.
The letters, one of which is quoted above, are private handwritten
instruments of petitioner which establish Verna Aizas filiation under Article
172 (2) of the Family Code. In addition, the array of evidence presented by
respondents, the dates, letters, pictures and testimonies, to us, are
convincing, and irrefutable evidence that Verna Aiza is, indeed, petitioners
illegitimate child.
Petitioner not only failed to rebut the evidence presented, he himself
presented no evidence of his own. His bare denials are telling. Well-settled
is the rule that denials, if unsubstantiated by clear and convincing
evidence, are negative and self-serving which merit no weight in law and
cannot be given greater evidentiary value over the testimony of credible
witnesses who testify on affirmative matters.[23]
We, however, cannot rule that respondents are entitled to damages.
Article 2219[24]of the Civil Code which states moral damages may be
recovered in cases of seduction is inapplicable in this case because Clarissa
was already an adult at the time she had an affair with petitioner.
Neither can her parents be entitled to damages. Besides, there is nothing
in law or jurisprudence that entitles the parents of a consenting adult who
begets a love child to damages. Respondents Constantino and Francisca
Posada have not cited any law or jurisprudence to justify awarding
damages to them.

We, however, affirm the grant of attorneys fees in consonance with Article
2208 (2)[25] and (11)[26] of the New Civil Code.

WHEREFORE, the assailed Decision dated May 30, 2003 and the Resolution
dated August 27, 2003 of the Court of Appeals in CA-G.R. CV No. 50557 are
AFFIRMED, with the MODIFICATION that the award of moral damages and
exemplary damages be DELETED.

SO ORDERED