Vous êtes sur la page 1sur 41

AGAPAY vs.

PALANG
1949 - Miguel Palang contracted his first
marriage when he took private respondent
Carlina (or Cornelia) Vallesterol as a wife. A few
months after the wedding, he left to work in
Hawaii. Miguel and Carlinas 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. 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. 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. The parties therein agreed to
donate their conjugal property consisting of six
parcels of land to their only child, Herminia
Palang.
Miguel and Erlindas cohabitation produced a son,
Kristopher A. Palang, born on December 6, 1977.
In 1979, Miguel and Erlinda were convicted of
Concubinage upon Carlinas complaint. 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,
Miguels illegitimate son.
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 quitclaim 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;
On appeal, respondent court reversed the trial
courts decision. The Court of Appeals rendered
its decision on July 22, 1994 with the following
dispositive portion:
WHEREFORE, PREMISES CONSIDERED, the
appealed decision is 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.
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
Palangs illegitimate son and thus entitled to
inherit from Miguels estate. Third, respondent
court erred, according to petitioner, in not
finding that there is sufficient pleading and
evidence that Kristoffer A. Palang or Christopher
A. Palang should be considered as partydefendant in Civil Case No. U-4625 before the
trial court and in CA-G.R. No. 24199.
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.
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 transfers 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 susbsisting and
unaffected by the latters 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 coownership and no presumption of equal shares.
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
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, 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. 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.
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 Erlindas name alone be placed as
the vendee.
The transaction was properly a donation made
by Miguel to Erlinda, but one which was clearly
void and inexistent by express provision of law
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, 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, for
otherwise, the condition of those who incurred
guilt would turn out to be better than those in
legal union.
The second issue concerning Kristopher Palangs
status and claim as an illegitimate son and heir
to Miguels estate is here resolved in favor of
respondent courts correct assessment that the
trial court erred in making pronouncements
regarding Kristophers 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.
As regards the third issue, petitioner contends
that Kristopher Palang should be considered as
party-defendant in the case at bar following the
trial courts decision which expressly found that
Kristopher had not been impleaded as party
defendant but theorized that he had submitted
to the courts jurisdiction through his
mother/guardian ad litem. The trial court erred
gravely. Kristopher, not having been impleaded,
was, therefore, not 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 the illegitimate son of Miguel, in order to avoid
multiplicity of suits. Petitioners grave error has
been discussed in the preceeding paragraph
where the need for probate proceedings to
resolve the settlement of Miguels estate and
Kristophers successional rights has been pointed
out.
WHEREFORE, the instant petition is hereby
DENIED. The questioned decision of the Court of
Appeals is AFFIRMED. Costs against petitioner.

GUILLERMA TUMLOS, petitioner,


vs.
SPOUSES MARIO FERNANDEZ and LOURDES
FERNANDEZ, respondents.
Under Article 148 of the Family Code, a man and
a woman who are not legally capacitated to
marry each other, but who nonetheless live
together conjugally, may be deemed co-owners
of a property acquired during the cohabitation
only upon proof that each made an actual
contribution to its acquisition. Hence, mere
cohabitation without proof of contribution will
not result in a co-ownership.
The Facts
The Court of Appeals narrates the facts as
follows:
[Herein respondents] were the plaintiffs
in Civil Case No. 6756, an action for
ejectment filed before Branch 82 of the
MTC of Valenzuela, Metro Manila against
[herein Petitioner] Guillerma Tumlos,
Toto Tumlos, and Gina Tumlos. In their
complaint dated July 5, 1996, the said
spouses alleged that they are the
absolute owners of an apartment
building located at ARTE SUBDIVISION
III, Lawang Bato, Valenzuela, Metro
Manila; that through tolerance they had
allowed the defendants-private
respondents to occupy the apartment
building for the last seven (7) years,
since 1989, without the payment of any
rent; that it was agreed upon that after
a few months, defendant Guillerma
Tumlos will pay P1,600.00 a month
while the other defendants promised to
pay P1,000.00 a month, both as rental,
which agreement was not complied
with by the said defendants; that they
have demanded several times [that]
the defendants . . . vacate the
premises, as they are in need of the
property for the construction of a new
building; and that they have also
demanded payment of P84,000.00 from
Toto and Gina Tumlos representing
rentals for seven (7) years and payment
of P143,600.00 from Guillerma Tumlos
as unpaid rentals for seven (7) years,
but the said demands went unheeded.
They then prayed that the defendants
be ordered to vacate the property in
question and to pay the stated unpaid
rentals, as well as to jointly pay
P30,000.00 in attorneys fees.

[Petitioner] Guillerma Tumlos was the


only one who filed an answer to the
complaint. She averred therein that the
Fernandez spouses had no cause of
action against her, since she is a coowner of the subject premises as
evidenced by a Contract to Sell wherein
it was stated that she is a co-vendee of
the property in question together with
[Respondent] Mario Fernandez. She
then asked for the dismissal of the
complaint.
After an unfruitful preliminary
conference on November 15, 1996, the
MTC required the parties to submit their
affidavits and other evidence on the
factual issues defined in their pleadings
within ten (10) days from receipt of
such order, pursuant to section 9 of the
Revised Rule on Summary Procedure.
[Petitioner] Guillerma Tumlos submitted
her affidavit/position paper on
November 29, 1996, while the
[respondents] filed their position paper
on December 5, 1996, attaching thereto
their marriage contract, letters of
demand to the defendants, and the
Contract to Sell over the disputed
property. The MTC thereafter
promulgated its judgment on January
22, 1997[.]
xxx

xxx

xxx

Upon appeal to the [RTC], [petitioner


and the two other] defendants alleged
in their memorandum on appeal that
[Respondent] Mario Fernandez and
[Petitioner] Guillerma had an amorous
relationship, and that they acquired the
property in question as their "love
nest." It was further alleged that they
lived together in the said apartment
building with their two (2) children for
around ten (10) years, and that
Guillerma administered the property by
collecting rentals from the lessees of
the other apartments, until she
discovered that [Respondent Mario]
deceived her as to the annulment of his
marriage. It was also during the early
part of 1996 when [Respondent Mario]
accused her of being unfaithful and
demonstrated his baseless [jealousy].
In the same memorandum, [petitioner
and the two other] defendants further
averred that it was only recently that

Toto Tumlos was temporarily


accommodated in one of the rooms of
the subject premises while Gina Tumlos
acted as a nanny for the children. In
short, their presence there [was] only
transient and they [were] not tenants of
the Fernandez spouses.
On June 5, 1997, the [RTC] rendered a
decision affirming in toto the judgment
of the MTC.
The [petitioner and the two other
defendants] seasonably filed a motion
for reconsideration on July 3, 1997,
alleging that the decision of affirmance
by the RTC was constitutionally flawed
for failing to point out distinctly and
clearly the findings of facts and law on
which it was based vis--vis the
statements of issues they have raised
in their memorandum on appeal. They
also averred that the Contract to Sell
presented by the plaintiffs which named
the buyer as "Mario P. Fernandez, of
legal age, married to Lourdes P.
Fernandez," should not be given
credence as it was falsified to appear
that way. According to them, the
Contract to Sell originally named
"Guillerma Fernandez" as the spouse of
[Respondent Mario]. As found by the
[RTC] in its judgment, a new Contract to
Sell was issued by the sellers naming
the [respondents] as the buyers after
the latter presented their marriage
contract and requested a change in the
name of the vendee-wife. Such facts
necessitate the conclusion that
Guillerma was really a co-owner
thereof, and that the [respondents]
manipulated the evidence in order to
deprive her of her rights to enjoy and
use the property as recognized by law.
xxx

xxx

xxx

The [RTC], in determining the question


of ownership in order to resolve the
issue of possession, ruled therein that
the Contract to Sell submitted by the
Fernandez spouses appeared not to be
authentic, as there was an alteration in
the name of the wife of [Respondent]
Mario Fernandez. Hence, the contract
presented by the [respondents] cannot
be given any weight. The court further
ruled that Guillerma and [Respondent
Mario] acquired the property during

their cohabitation as husband and wife,


although without the benefit of
marriage. From such findings, the court
concluded that [Petitioner] Guillerma
Tumlos was a co-owner of the subject
property and could not be ejected
therefrom.
The [respondents] then filed a motion
for reconsideration of the order of
reversal, but the same was denied by
the [RTC]. 5
As earlier stated, the CA reversed the RTC.
Hence, this Petition filed by Guillerma Tumlos
only. 6
Ruling of the Court of Appeals
The CA rejected petitioner's claim that she and
Respondent Mario Fernandez were co-owners of
the disputed property. The CA ruled:
From the inception of the instant case, the only
defense presented by private respondent
Guillerma is her right as a co-owner of the
subject property[.]
xxx

xxx

xxx

This claim of co-ownership was not satisfactorily


proven by Guillerma, as correctly held by the
trial court. No other evidence was presented to
validate such claim, except for the said
affidavit/position paper. As previously stated, it
was only on appeal that Guillerma alleged that
she cohabited with the petitioner-husband
without the benefit of marriage, and that she
bore him two (2) children. Attached to her
memorandum on appeal are the birth
certificates of the said children. Such
contentions and documents should not have
been considered by the . . . (RTC), as they were
not presented in her affidavit/position paper
before the trial court (MTC).
xxx

xxx

xxx

However, even if the said allegations and


documents could be considered, the claim of coownership must still fail. As [herein Respondent]
Mario Fernandez is validly married to
[Respondent] Lourdes Fernandez (as per
Marriage Contract dated April 27, 1968, p. 45,
Original Record), Guillerma and Mario are not
capacitated to marry each other. Thus, the
property relations governing their supposed

cohabitation is that found in Article 148 of


Executive Order No. 209, as amended, otherwise
known as the Family Code of the Philippines[.]
xxx

xxx

xxx

It is clear that actual contribution is required by


this provision, in contrast to Article 147 of the
Family Code 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 (Agapay v. Palang,
276 SCRA 340). The care given by one party [to]
the home, children, and household, or spiritual
or moral inspiration provided to the other, is not
included in Article 148 (Handbook on the Family
Code of the Philippines by Alicia V. Sempio-Diy,
1988 ed., p. 209). Hence, if actual contribution
of the party is not proved, there will be no coownership and no presumption of equal shares
(Agapay, supra at p. 348, citing Commentaries
and Jurisprudence on the Civil Code of the
Philippines Volume I by Arturo M. Tolentino, 1990
ed., p. 500).
In the instant case, no proof of actual
contribution by Guillerma Tumlos in the purchase
of the subject property was presented. Her only
evidence was her being named in the Contract
to Sell as the wife of [Respondent] Mario
Fernandez. Since she failed to prove that she
contributed money to the purchase price of the
subject apartment building, We find no basis to
justify her co-ownership with [Respondent
Mario]. The said property is thus presumed to
belong to the conjugal partnership property of
Mario and Lourdes Fernandez, it being acquired
during the subsistence of their marriage and
there being no other proof to the contrary
(please see Article 116 of the Family Code).
The court a quo (RTC) also found that
[Respondent Mario] has two (2) children with
Guillerma who are in her custody, and that to
eject them from the apartment building would
be to run counter with the obligation of the
former to give support to his minor illegitimate
children, which indispensably includes dwelling.
As previously discussed, such finding has no leg
to stand on, it being based on evidence
presented for the first time on appeal.
xxx

xxx

xxx

Even assuming arguendo that the said evidence


was validly presented, the RTC failed to consider
that the need for support cannot be presumed.

Article 203 of the Family Code expressly provides


that the obligation to give support shall be
demandable from the time the person who has a
right to receive the same needs it for
maintenance, but it shall not be paid except
from the date of judicial or extrajudicial demand.
. . .1wphi1.nt
In contrast to the clear pronouncement of the
Supreme Court, the RTC instead presumed that
Guillerma and her children needed support from
[Respondent Mario]. Worse, it relied on evidence
not properly presented before the trial court
(MTC).
With regard to the other [defendants], Gina and
Toto Tumlos, a close perusal of the records shows
that they did not file any responsive pleading.
Hence, judgment may be rendered against them
as may be warranted by the facts alleged in the
complaint and limited to what is prayed for
therein, as provided for in Section 6 of the
Revised Rules on Summary Procedure. There was
no basis for the public respondent to dismiss the
complaint against them. 7 (emphasis in the
original)

In her Memorandum, petitioner submits the


following issues for the consideration of the
Court:
I. The Court of Appeals gravely erred
and abused its discretion in not
outrightly dismissing the petition for
review filed by respondents.
II. The Court of Appeals erred in finding
that petitioner is not the co-owner of
the property in litis.
III. Corollary thereto, the Court of
Appeals erred in applying Art. 148 of
the Family Code in the case at bar.

The Courts Ruling


The Petition has no merit.
Preliminary Matters

1. The CA considered the respondents


Petition for Review 9 despite their failure
to attach several pleadings as well as
the explanation for the proof of service,
despite the clear mandate of Section 11
10
of Rule 13 of the Revised Rules of
Court and despite the ruling in Solar
Team Entertainment, Inc. v. Ricafort. 11
2. It allowed respondents to submit the
pleadings that were not attached.
3. It considered respondents' Reply
dated May 20, 1998, which had
allegedly been filed out of time.
4. It declared that the case was
submitted for decision without first
determining whether to give due course
to the Petition, pursuant to Section 6,
Rule 42 of the Rules of Court. 12
The CA, for its part, succinctly dismissed these
arguments in this wise:

The Issues

IV. The Court of Appeals erred in


disregarding the substantive right of
support vis--vis the remedy of
ejectment resorted to by respondents.

Petitioner submits that the CA exhibited


partiality in favor of herein respondents. This
bias, she argues, is manifest in the following:

It is too late in the day now to question


the alleged procedural error after we
have rendered the decision. More
importantly, when the private
respondent filed their comment to the
petition on April 26, 1998, they failed to
question such alleged procedural error.
Neither have they questioned all the
resolutions issued by the Court after
their filing of such comment. They
should, therefore, be now considered in
estoppel to question the same. 13
We agree with the appellate court. Petitioner
never raised these matters before the CA. She
cannot be allowed now to challenge its Decision
on grounds of alleged technicalities being
belatedly raised as an afterthought. In this light,
she cannot invoke Solar 14 because she never
raised this issue before the CA.

More important, we find it quite sanctimonious


indeed on petitioners part to rely, on the one
hand, on these procedural technicalities to
overcome the appealed Decision and, on the
other hand, assert that the RTC may consider the
new evidence she presented for the first time on
appeal. Such posturing only betrays the futility

of petitioner's assertion, if not its absence of


merit.
One other preliminary matter. Petitioner implies
that the court of origin, the Municipal Trial Court
(MTC), did not have jurisdiction over the "nature
of the case," alleging that the real question
involved is one of ownership. Since the issue of
possession cannot be settled without passing
upon that of ownership, she maintains that the
MTC should have dismissed the case.
This contention is erroneous. The issue of
ownership may be passed upon by the MTC to
settle the issue of possession. 15 Such
disposition, however, is not final insofar as the
issue of ownership is concerned, 16 which may be
the subject of another proceeding brought
specifically to settle that question.
Having resolved these preliminary matters, we
now move on to petitioners substantive
contentions.
First Issue:
Petitioner as Co-owner
Petitioners central theory and main defense
against respondents' action for ejectment is her
claim of co-ownership over the property with
Respondent Mario Fernandez. At the first
instance before the MTC, she presented a
Contract to Sell indicating that she was his
spouse. The MTC found this document
insufficient to support her claim. The RTC,
however, after considering her allegation that
she had been cohabiting with Mario Fernandez
as shown by evidence presented before it, 17
ruled in her favor.
On the other hand, the CA held that the pieces
of evidence adduced before the RTC could no
longer be considered because they had not been
submitted before the MTC. Hence, the appellate
court concluded that "[t]he claim of coownership was not satisfactorily proven . . ." 18
We agree with the petitioner that the RTC did not
err in considering the evidence presented before
it. Nonetheless, we reject her claim that she was
a co-owner of the disputed property.
Evidence Presented on
Appeal Before the RTC

In ruling that the RTC erred in considering on


appeal the evidence presented by petitioner, the
CA relied on the doctrine that issues not raised
during trial could not be considered for the first
time during appeal. 19
We disagree. In the first place, there were no
new matters or issues belatedly raised during
the appeal before the RTC. The defense invoked
by petitioner at the very start was that she was
a co-owner. To support her claim, she presented
a Contract to Sell dated November 14, 1986,
which stated that Mario Fernandez was legally
married to her. The allegation that she was
cohabiting with him was a mere elaboration of
her initial theory.
In the second place, procedural rules are
generally premised on considerations of fair play.
Respondents never objected when the assailed
evidence was presented before the RTC. Thus,
they cannot claim unfair surprise or prejudice.
Petitioner Not a Co-Owner Under
Article 144 of the Civil Code
Even considering the evidence presented before
the MTC and the RTC, we cannot accept
petitioner's submission that she is a co-owner of
the disputed property pursuant to Article 144 of
the Civil Code. 20 As correctly held by the CA, the
applicable law is not Article 144 of the Civil
Code, but Article 148 of the Family Code which
provides:
Art. 148. In cases of cohabitation not
falling under the preceding Article,21
only the properties acquired by both of
the parties through their actual joint
contribution of money, property, or
industry shall be owned by them in
common in proportion to their
respective contributions. In the absence
of proof to the contrary, their
contributions and corresponding shares
are presumed to be equal. The same
rule and presumption shall apply to
joint deposits of money and evidences
of credit.
If one of the parties is validly married to
another, his or her share in the coownership shall accrue to the absolute
community or conjugal partnership
existing in such valid marriage. If the
party who acted in bad faith is not
validly married to another, his or her
share shall be forfeited in the manner

provided in the last paragraph of the


preceding Article.
The foregoing rules on forfeiture shall
likewise apply even if both parties are
in bad faith.
Art. 144 of the Civil Code applies only to a
relationship between a man and a woman who
are not incapacitated to marry each other, 22 or
to one in which the marriage of the parties is
void 23 from the beginning. 24 It does not apply to
a cohabitation that amounts to adultery or
concubinage, for it would be absurd to create a
co-ownership where there exists a prior conjugal
partnership or absolute community between the
man and his lawful wife. 25
Based on evidence presented by respondents, as
well as those submitted by petitioner herself
before the RTC, it is clear that Mario Fernandez
was incapacitated to marry petitioner because
he was legally married to Lourdes Fernandez. It
is also clear that, as readily admitted by
petitioner, she cohabited with Mario in a state of
concubinage. Therefore, Article 144 of the Civil
Code is inapplicable.
As stated above, the relationship between
petitioner and Respondent Mario Fernandez is
governed by Article 148 of the Family Code.
Justice Alicia V. Sempio-Diy points out 26 that
"[t]he Family Code has filled the hiatus in Article
144 of the Civil Code by expressly regulating in
its Article 148 the property relations of couples
living in a state of adultery or concubinage.
Hence, petitioners argument that the Family
Code is inapplicable because the cohabitation
and the acquisition of the property occurred
before its effectivity deserves scant
consideration. Suffice it to say that the law itself
states that it can be applied retroactively if it
does not prejudice vested or acquired rights. 27
In this case, petitioner failed to show any vested
right over the property in question. Moreover, to
resolve similar issues, we have applied Article
148 of the Family Code retroactively. 28
No Evidence of Actual Joint
Contribution
Another consideration militates against
petitioners claim that she is a co-owner of the
property. In Agapay, 29 the Court ruled:

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 the 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 coownership and no presumption of equal
shares. (emphasis ours)
In this case, petitioner fails to present any
evidence that she had made an actual
contribution to purchase the subject property.
Indeed, she anchors her claim of co-ownership
merely on her cohabitation with Respondent
Mario Fernandez.
Likewise, her claim of having administered the
property during the cohabitation is
unsubstantiated. In any event, this fact by itself
does not justify her claim, for nothing in Article
148 of the Family Code provides that the
administration of the property amounts to a
contribution in its acquisition.
Clearly, there is no basis for petitioners claim of
co-ownership. The property in question belongs
to the conjugal partnership of respondents.
Hence, the MTC and the CA were correct in
ordering the ejectment of petitioner from the
premises.
Second Issue:
Support versus Ejectment
Petitioner contends that since Respondent Mario
Fernandez failed to repudiate her claim
regarding the filiation of his alleged sons, Mark
Gil and Michael Fernandez, his silence on the
matter amounts to an admission. Arguing that
Mario is liable for support, she advances the
theory that the childrens right to support, which
necessarily includes shelter, prevails over the
right of respondents to eject her.
We disagree. It should be emphasized that this is
an ejectment suit whereby respondents seek to
exercise their possessory right over their

property. It is summary in character and deals


solely with the issue of possession of the
property in dispute. Here, it has been shown that
they have a better right to possess it than does
the petitioner, whose right to possess is based
merely on their tolerance.1wphi1.nt
Moreover, Respondent Mario Fernandez' alleged
failure to repudiate petitioner's claim of filiation
is not relevant to the present case.1wphi1
Indeed, it would be highly improper for us to rule
on such issue. Besides, it was not properly taken
up below. 30 In any event, Article 298 31 of the
Civil Code requires that there should be an
extrajudicial demand. 32 None was made here.
The CA was correct when it said:
Even assuming arguendo that the said
evidence was validly presented, the RTC
failed to consider that the need for
support cannot be presumed. Article
[298] of the [New Civil Code] expressly
provides that the obligation to give
support shall be demandable from the
time the person who has a right to
receive the same need it for
maintenance, but it shall not be paid
except from the date of judicial and
extrajudicial demand.
EUSTAQUIO MALLILIN, JR., petitioner,
vs.
MA. ELVIRA CASTILLO, respondent.
FACTS:
On February 24, 1993, petitioner Eustaquio
Mallilin, Jr. filed a complaint2 for "Partition and/or
Payment of Co-Ownership Share, Accounting and
Damages" against respondent Ma. Elvira Castillo.
The complaint, docketed as Civil Case No. 93656 at the Regional Trial Court in Makati City,
alleged that petitioner and respondent, both
married and with children, but separated from
their respective spouses, cohabited after a brief
courtship sometime in 1979 while their
respective marriages still subsisted. During their
union, they set up the Superfreight Customs
Brokerage Corporation, with petitioner as
president and chairman of the board of directors,
and respondent as vice-president and treasurer.
The business flourished and petitioner and
respondent acquired real and personal
properties which were registered solely in
respondent's name. In 1992, due to
irreconcilable differences, the couple separated.
Petitioner demanded from respondent his share
in the subject properties, but respondent refused

alleging that said properties had been registered


solely in her name.
In her Amended Answer,3 respondent admitted
that she engaged in the customs brokerage
business with petitioner but alleged that the
Superfreight Customs Brokerage Corporation
was organized with other individuals and duly
registered with the Securities and Exchange
Commission in 1987. She denied that she and
petitioner lived as husband and wife because the
fact was that they were still legally married to
their respective spouses. She claimed to be the
exclusive owner of all real personal properties
involved in petitioner's action for partition on the
ground that they were acquired entirely out of
her own money and registered solely in her
name.
On November 25, 1994, respondent filed a
Motion for Summary Judgment,4 in accordance
with Rule 34 of the Rules of Court.5 She
contended that summary judgment was proper,
because the issues raised in the pleadings were
sham and not genuine, to wit:
A.
The main issue is Can plaintiff validly
claim the partition and/or payment of
co-ownership share, accounting and
damages, considering that plaintiff and
defendant are admittedly both married
to their respective spouses under still
valid and subsisting marriages, even
assuming as claimed by plaintiff, that
they lived together as husband and wife
without benefit of marriage? In other
words, can the parties be considered as
co-owners of the properties, under the
law, considering the present status of
the parties as both married and
incapable of marrying each other, even
assuming that they lived together as
husband and wife (?)
B.
As a collateral issue, can the plaintiff be
considered as an unregistered co-owner
of the real properties under the Transfer
Certificates of Title duly registered
solely in the name of defendant Ma.
Elvira Castillo? This issue is also true as
far as the motor vehicles in question
are concerned which are also registered
in the name of defendant.6

On the first point, respondent contended that


even if she and petitioner actually cohabited,
petitioner could not validly claim a part of the
subject real and personal properties because Art.
144 of the Civil Code, which provides that the
rules on co-ownership shall govern the
properties acquired by a man and a woman
living together as husband and wife but not
married, or under a marriage which is void ab
initio, applies only if the parties are not in any
way incapacitated to contract marriage. 7 In the
parties' case, their union suffered the legal
impediment of a prior subsisting marriage. Thus,
the question of fact being raised by petitioner,
i.e., whether they lived together as husband and
wife, was irrelevant as no co-ownership could
exist between them.
As to the second issue, respondent maintained
that petitioner cannot be considered an
unregistered co-owner of the subject properties
on the ground that, since titles to the land are
solely in her name, to grant petitioner's prayer
would be to allow a collateral attack on the
validity of such titles.
Petitioner opposed respondent's Motion for
Summary Judgment.8 He contended that the
case presented genuine factual issues and that
Art. 144 of the Civil Code had been repealed by
the Family Code which now allows, under Art.
148, a limited co-ownership even though a man
and a woman living together are not capacitated
to marry each other. Petitioner also asserted that
an implied trust was constituted when he and
respondent agreed to register the properties
solely in the latter's name although the same
were acquired out of the profits made from their
brokerage business. Petitioner invoked the
following provisions of the Civil Code:
Art. 1452. If two or more persons agree
to purchase property and by common
consent the legal title is taken in the
name of one of them for the benefit of
all, a trust is created by force of law in
favor of the others in proportion to the
interest of each.
Art. 1453. When the property is
conveyed to a person in reliance upon
his declared intention to hold it for, or
transfer it to another grantor, there is
an implied trust in favor of the person
whose benefit is contemplated.
On January 30, 1995, the trial court rendered its
decision9 granting respondent's motion for

summary judgment. It ruled that an examination


of the pleadings shows that the issues involved
were purely legal. The trial court also sustained
respondent's contention that petitioner's action
for partition amounted to a collateral attack on
the validity of the certificates of title covering
the subject properties. It held that even if the
parties really had cohabited, the action for
partition could not be allowed because an action
for partition among co-owners ceases to be so
and becomes one for title if the defendant, as in
the present case, alleges exclusive ownership of
the properties in question. For these reasons, the
trial court dismissed Civil Case No. 93-656.
On appeals, the Court of Appeals on November
7, 1996, ordered the case remanded to the court
of origin for trial on the merits. It cited the
decision in Roque v. Intermediate Appellate
Court 10 to the effect that an action for partition
is at once an action for declaration of coownership and for segregation and conveyance
of a determinate portion of the properties
involved. If the defendant asserts exclusive title
over the property, the action for partition should
not be dismissed. Rather, the court should
resolve the case and if the plaintiff is unable to
sustain his claimed status as a co-owner, the
court should dismiss the action, not because the
wrong remedy was availed of, but because no
basis exists for requiring the defendant to
submit to partition. Resolving the issue whether
petitioner's action for partition was a collateral
attack on the validity of the certificates of title,
the Court of Appeals held that since petitioner
sought to compel respondent to execute
documents necessary to effect transfer of what
he claimed was his share, petitioner was not
actually attacking the validity of the titles but in
fact, recognized their validity. Finally, the
appellate court upheld petitioner's position that
Art. 144 of the Civil Code had been repealed by
Art. 148 of the Family Code.
Respondent moved for reconsideration of the
decision of Court of Appeals. On May 7, 1998,
nearly two years after its first decision, the Court
of Appeals granted respondent's motion and
reconsidered its prior decision. In its decision
now challenged in the present petition, it held
Prefatorily, and to better clarify the controversy
on whether this suit is a collateral attack on the
titles in issue, it must be underscored that
plaintiff-appellant alleged in his complaint that
all the nine (9) titles are registered in the name
of defendant-appellee, Ma. Elvira T. Castillo,
except one which appears in the name of Eloisa
Castillo (see par. 9, Complaint). However, a

verification of the annexes of such initiatory


pleading shows some discrepancies.
In this action, plaintiff-appellant seeks to be
declared as 1/2 co-owner of the real properties
covered by the above listed titles and eventually
for their partition [par. (a), Prayer; p. 4 Records].
Notably, in order to achieve such prayer for a
joint co-ownership declaration, it is unavoidable
that the individual titles involved be altered,
changed, cancelled or modified to include
therein the name of the appellee as a registered
1/2 co-owner. Yet, no cause of action or even a
prayer is contained filed. Manifestly, absent any
cause or prayer for the alteration, cancellation,
modification or changing of the titles involved,
the desired declaration of co-ownership and
eventual partition will utterly be an indirect or
collateral attack on the subject titled in this suit.
It is here that We fell into error, such that, if not
rectified will surely lead to a procedural lapse
and a possible injustice. Well settled is the rules
that a certificate of title cannot be altered,
modified or cancelled except in a direct
proceeding in accordance with law.
In this jurisdiction, the remedy of the landowner
whose property has been wrongfully or
erroneously registered in another name is, after
one year from the date of the decree, not to set
aside the decree, but respecting it as
incontrovertible and no longer open to review, to
bring an action for reconveyance or, if the
property had passed into the hands of an
innocent purchaser for value, for damages.
Verily, plaintiff-appellant should have first
pursued such remedy or any other relief directly
attacking the subject titles before instituting the
present partition suit. Apropos, the case at
bench appears to have been prematurely filed.
Lastly, to grant the partition prayed for by the
appellant will in effect rule and decide against
the properties registered in the names of
Steelhouse Realty and Development Corporation
and Eloisa Castillo, who are not parties in the
case. To allow this to happen will surely result to
injustice and denial of due process of law. . . . 11
Petitioner moved for reconsideration but his
motion was denied by the Court of Appeals in its
resolution dated December 21, 1998. Hence this
petition.
Petitioner contends that: (1) the Court of
Appeals, in its first decision of November 7,
1996, was correct in applying the Roque ruling

and in rejecting respondent's claim that she was


the sole owner of the subject properties and that
the partition suit was a collateral attack on the
titles; (2) the Court of Appeals correctly rules in
its first decision that Art. 148 of the Family Code
governs the co-ownership between the parties,
hence, the complaint for partition is proper; (3)
with respect to the properties registered in the
name of Steelhouse Realty, respondent admitted
ownership thereof and, at the very least, these
properties could simply be excluded and the
partition limited to the remaining real and
personal properties; and (4) the Court of Appeals
erred in not holding that under the Civil Code,
there is an implied trust in his favor. 12
The issue in this case is really whether summary
judgment, in accordance with Rule 35 of the
Rules of Court, is proper. We rule in the negative.
First. Rule 35, 3 of the Rules of Court provides
that summary judgment is proper only when,
based on the pleadings, depositions, and
admissions on file, and after summary hearing, it
is shown that except as to the amount of
damages, there is no veritable issue regarding
any material fact in the action and the movant is
entitled to judgment as a matter of law. 1
Conversely, where the pleadings tender a
genuine issue, i.e., an issue of fact the resolution
of which calls for the presentation of evidence,
as distinguished from an issue which is sham,
fictitious, contrived, set-up in bad faith, or
patently unsubstantial, summary judgment is
not proper. 14
In the present case, we are convinced that
genuine issues exist. Petitioner anchors his claim
of co-ownership on two factual grounds: first,
that said properties were acquired by him and
respondent during their union from 1979 to 1992
from profits derived from their brokerage
business; and second, that said properties were
registered solely in respondent's name only
because they agreed to that arrangement,
thereby giving rise to an implied trust in
accordance with Art. 1452 and Art. 1453 of the
Civil Code. These allegations are denied by
respondent. She denies that she and petitioner
lived together as husband and wife. She also
claims that the properties in question were
acquired solely by her with her own money and
resources. With such conflicting positions, the
only way to ascertain the truth is obviously
through the presentation of evidence by the
parties.
The trial court ruled that it is immaterial whether
the parties actually lived together as husband

and wife because Art. 144 of the Civil Code can


not be made to apply to them as they were both
incapacitated to marry each other. Hence, it was
impossible for a co-ownership to exist between
them.
We disagree.
Art. 144 of the Civil Code provides:
When a man and a woman live together
as husband and wife, but they are not
married, or their marriage is void from
the beginning, the property acquired by
either or both of them through their
work or industry or their wages and
salaries shall be governed by the rules
on co-ownership.
This provision of the Civil Code, applies only to
cases in which a man and a woman live together
as husband and wife without the benefit of
marriage provided they are not incapacitated or
are without impediment to marry each other, 15
or in which the marriage is void ab initio,
provided it is not bigamous. Art. 144, therefore,
does not cover parties living in an adulterous
relationship. However, Art. 148 of the Family
Code now provides for a limited co-ownership in
cases where the parties in union are
incapacitated to marry each other. It states:
In cases of cohabitation not falling
under the preceding article, 16 only the
properties acquired by both of the
parties through their actual joint
contribution of money, property or
industry shall be owned by them in
common in proportion to their
respective contributions. In the absence
of proof to the contrary, their
contributions and corresponding shares
are presumed to be equal. The same
rule and presumption shall apply to
joint deposits of money and evidences
of credits.
If one of the parties is validly married to
another, his or her share in the coownership shall accrue to the absolute
community or conjugal partnership
existing in such valid marriage. If the
party who acted in bad faith is not
validly married to another, his or her
share shall be forfeited in the manner
provided in the last paragraph of the
preceding article.

The foregoing rules on forfeiture shall


likewise apply even if both parties are
in bad faith.
It was error for the trial court to rule that,
because the parties in this case were not
capacitated to marry each other at the time that
they were alleged to have been living together,
they could not have owned properties in
common. The Family Code, in addition to
providing that a co-ownership exists between a
man and a woman who live together as husband
and wife without the benefit of marriage,
likewise provides that, if the parties are
incapacitated to marry each other, properties
acquired by them through their joint contribution
of money, property or industry shall be owned
by them in common in proportion to their
contributions which, in the absence of proof to
the contrary, is presumed to be equal. There is
thus co-ownership eventhough the couple are
not capacitated to marry each other.
In this case, there may be a co-ownership
between the parties herein. Consequently,
whether petitioner and respondent cohabited
and whether the properties involved in the case
are part of the alleged co-ownership are genuine
and material. All but one of the properties
involved were alleged to have been acquired
after the Family Code took effect on August 3,
1988. With respect to the property acquired
before the Family Code took effect if it is shown
that it was really acquired under the regime of
the Civil Code, then it should be excluded.
Petitioner also alleged in paragraph 7 of his
complaint that:
Due to the effective management,
hardwork and enterprise of plaintiff
assisted by defendant, their customs
brokerage business grew and out of the
profits therefrom, the parties acquired
real and personal properties which
were, upon agreement of the parties,
listed and registered in defendant's
name with plaintiff as the unregistered
co-owner of all said properties. 17
On the basis of this, he contends that an implied
trust existed pursuant to Art. 1452 of the Civil
Code which provides that "(I)f two or more
persons agree to purchase property and by
common consent the legal title is taken in the
name of one of them for the benefit of all, a trust
is created by force of law in favor of the others in
proportion to the interest of each." We do not

think this is correct. The legal relation of the


parties is already specifically covered by Art. 148
of the Family Code under which all the properties
acquired by the parties out of their actual joint
contributions of money, property or industry
shall constitute a co-ownership. Co-ownership is
a form of trust and every co-owner is a trustee
for the other. 18 The provisions of Art. 1452 and
Art. 1453 of the Civil Code, then are no longer
material since a trust relation already inheres in
a co-ownership which is governed under Title III,
Book II of the Civil Code.
Second. The trial court likewise dismissed
petitioner's action on the ground that the same
amounted to a collateral attack on the
certificates of title involved. As already noted, at
first, the Court of Appeals ruled that petitioner's
action does not challenge the validity of
respondent's titles. However, on reconsideration,
it reversed itself and affirmed the trial court. It
noted that petitioner's complaint failed to
include a prayer for the alteration, cancellation,
modification, or changing of the titles involved.
Absent such prayer, the appellate court ruled
that a declaration of co-ownership and eventual
partition would involve an indirect or collateral
attack on the titles. We disagree.
A torrens title, as a rule, is conclusive and
indefeasible. Proceeding from this, P.D. No. 1529,
19
48 provides that a certificate of title shall not
be subject to collateral attack and can not be
altered, modified, or canceled except in a direct
proceeding. When is an action an attack on a
title? It is when the object of the action or
proceeding is to nullify the title, and thus
challenge the judgment pursuant to which the
title was decreed. The attack is direct when the
object of an action or proceeding is to annul or
set aside such judgment, or enjoin its
enforcement. On the other hand, the attack is
indirect or collateral when, in an action to obtain
a different relief, an attack on the judgment is
nevertheless made as an incident thereof. 20
In his complaint for partition, consistent with our
ruling in Roque regarding the nature of an action
for partition, petitioner seeks first, a declaration
that he is a co-owner of the subject properties;
and second, the conveyance of his lawful shares.
He does not attack respondent's titles. Petitioner
alleges no fraud, mistake, or any other
irregularity that would justify a review of the
registration decree in respondent's favor. His
theory is that although the subject properties
were registered solely in respondent's name, but
since by agreement between them as well as
under the Family Code, he is co-owner of these

properties and as such is entitled to the


conveyance of his shares. On the premise that
he is a co-owner, he can validly seek the
partition of the properties in co-ownership and
the conveyance to him of his share.
Thus, in Guevara v. Guevara, 21 in which a parcel
of land bequeathed in a last will and testament
was registered in the name of only one of the
heirs, with the understanding that he would
deliver to the others their shares after the debts
of the original owner had been paid, this Court
ruled that notwithstanding the registration of the
land in the name of only one of the heirs, the
other heirs can claim their shares in "such
action, judicial or extrajudicial, as may be
necessary to partition the estate of the testator."
22

Third. The Court of Appeals also reversed its first


decision on the ground that to order partition
will, in effect, rule and decide against Steelhouse
Realty Development Corporation and Eloisa
Castillo, both strangers to the present case, as to
the properties registered in their names. This
reasoning, however, ignores the fact that the
majority of the properties involved in the present
case are registered in respondent's name, over
which petitioner claims rights as a co-owner.
Besides, other than the real properties,
petitioner also seeks partition of a substantial
amount of personal properties consisting of
motor vehicles and several pieces of jewelry. By
dismissing petitioner's complaint for partition on
grounds of due process and equity, the appellate
court unwittingly denied petitioner his right to
prove ownership over the claimed real and
personal properties. The dismissal of petitioner's
complaint is unjustified since both ends may be
amply served by simply excluding from the
action for partition the properties registered in
the name of Steelhouse Realty and Eloisa
Castillo.
WHEREFORE, the amended decision of the Court
of Appeals, dated May 7, 1998, is REVERSED and
the case is REMANDED to the Regional Trial
Court, Branch 59, Makati City for further
proceedings on the merits.
ELNA MERCADO-FEHR, petitioner,
vs.
BRUNO FEHR, respondent.
DECISION
PUNO, J.:

This case arose from a petition for declaration of


nullity of marriage on the ground of
psychological incapacity to comply with the
essential marital obligations under Article 36 of
the Family Code filed by petitioner Elna MercadoFehr against respondent Bruno Fehr before the
Regional Trial Court of Makati in March 1997.1
After due proceedings, the trial court declared
the marriage between petitioner and respondent
void ab initio under Article 36 of the Family Code
and ordered the dissolution of their conjugal
partnership of property.2 The dispositive portion
of the Decision dated January 30, 1998 states:
WHEREFORE, in the light of the foregoing, the
marriage between Elna D. Mercado and Bruno F.
Fehr on March 14, 1985 is hereby declared null
and void on the ground of psychological
incapacity on the part of respondent to perform
the essential obligations of marriage under
Article 36 of the Family Code.
Accordingly, the conjugal partnership of property
existing between the parties is dissolved and in
lieu thereof, a regime of complete separation of
property between the said spouses is
established in accordance with the pertinent
provisions of the Family Code, without prejudice
to the rights previously acquired by
creditors.1vvphi1.nt

a) the Bacolod property covered by


Transfer Certificate of Title No. T137232, considering that the same is
owned by petitioners parents, Herminio
Mercado and Catalina D. Mercado xxx
and
b) Suite 204 of the LCG Condominium
covered by Condominium Certificate of
Title No. 14735, considering that the
same was purchased on installment
basis by respondent with his exclusive
funds prior to his marriage, as
evidenced by a Contract to Sell dated
July 26, 1983. xxx
Accordingly, the conjugal properties of the
petitioner and respondent shall be distributed in
the following manner:
TO PETITIONER ELNA MERCADO:
a. Ground Floor, LCG Condominium,
with an area of 671.84 sq. m., covered
by Condominium Certificate of Title No.
14734; and
b. Tamaraw FX (1995 model)
TO RESPONDENT BRUNO FRANZ FEHR:

Custody over the two minor children, MICHAEL


BRUNO MERCADO FEHR and PATRICK FRANZ
FEHR, is hereby awarded to petitioner, she being
the innocent spouse.

a. Upper Basement, LCG Condominium,


with an area of 180.81 sq. m. and
covered by Condominium Certificate of
Title No. 14733; and

Let a copy of this Decision be duly recorded in


the proper civil and property registries in
accordance with Article 52 of the Family Code.

b. Nissan Sentra with Plate No. FDJ-533


(1994 model)

SO ORDERED.3
On August 24, 1999, the trial court issued an
Order resolving the various motions4 filed by
respondent after the case had been decided. The
Order pertained to the properties held by the
parties, thus:
xxxxxxxxx
After a careful scrutiny of the inventory of
properties submitted by both parties, the Court
finds the following properties to be excluded
from the conjugal properties, namely:

Furthermore, Suite 204, LCG Condominium with


an area of 113.54 sq. m. and covered by
Condominium Certificate of Title NO. 14735 is
hereby declared the EXCLUSIVE PROPERTY of
respondent, BRUNO FRANZ FEHR. Accordingly,
petitioner is hereby directed to transfer
ownership of Suite 204 in the name of
respondent, covered by Condominium Certificate
of Title No. 14735, being respondents exclusive
property, acquired prior to his
marriage.1awphi1.nt
Anent the monthly rentals prior to the issuance
of this Order of the subject properties, namely
the Ground Floor Front (Fridays Club), Ground
Floor Rear Apartment and Upper Basement at
LGC Condominium, all leased by Bar 4
Corporation, the same shall be shared by the

parties in common, in proportion to one-half


each or share and share alike, after deducting all
expenses for Income Taxes, Business Permits,
Realty Taxes, Municipal License fees, clearances,
etc. Accordingly, petitioner is hereby directed to
deliver to respondent the following: a) the
balance of his share of the monthly rentals from
February 1998 to May 1998; and b) his one-half
share (1/2) of the monthly rentals of the
aforesaid properties from June 1998 up to this
date. Thereafter, the parties shall own and enjoy
their respective share of the monthly rentals
derived from the properties adjudicated to them
as stated above.
The Petitioner and Respondent are further
enjoined to jointly support their minor children,
Michael and Patrick Fehr, for their education,
uniforms, food and medical expenses.5
Petitioner filed a motion for reconsideration of
said Order with respect to the adjudication of
Suite 204, LCG Condominium and the support of
the children. Petitioner alleged that Suite 204
was purchased on installment basis at the time
when petitioner and respondent were living
exclusively with each other as husband and wife
without the benefit of marriage, hence the rules
on co-ownership should apply in accordance with
Article 147 of the Family Code. Petitioner further
claimed that it would not be in the best interests
of the children if she would be made to demand
periodically from respondent his share in the
support of the children. She instead proposed
that the Upper Basement and the Lower Ground
Floor of the LCG Condominium be adjudicated to
her so that she could use the income from the
lease of said premises for the support of the
children.6
Resolving said motion, the trial court held in an
Order dated October 5, 2000 that since the
marriage between petitioner and respondent
was declared void ab intio, the rules on coownership should apply in the liquidation and
partition of the properties they own in common
pursuant to Article 147 of the Family Code. The
court, however, noted that the parties have
already agreed in principle to divide the
properties and/or proceeds from the sale thereof
proportionately among them and their children
as follows: 1/3 for petitioner, 1/3 for respondent
and 1/3 for the children. It also affirmed its
previous ruling that Suite 204 of LCG
Condominium was acquired prior to the couples
cohabitation and therefore pertained solely to
respondent.71vvphi1.nt

On November 28, 2000, petitioner filed a notice


of appeal questioning the October 5, 2000 Order
of the trial court.8 Respondent filed an
Opposition to the Notice of Appeal.9 On January
12, 2001, petitioner withdrew the notice of
appeal10 and instead filed on the following day a
special civil action for certiorari and prohibition
with the Court of Appeals, questioning the
findings of the trial court in its Order dated
October 5, 2000.11
The Court of Appeals, in its Decision dated
October 26, 2001, dismissed the petition for
certiorari for lack of merit. The appellate court
stated that petitioner has not shown any reason
to warrant the issuance of a writ of certiorari as
the errors she raised were mere errors of
judgment which were the proper subject of an
ordinary appeal, not a petition for certiorari.12
Petitioner filed a motion for reconsideration of
said Decision, which was also denied by the
appellate court.13
Hence this petition. Petitioner raises the
following arguments:
1) Petitioner correctly filed a petition for
certiorari and prohibition against the
Regional Trial Court of Makati, Branch
149 in the Court of Appeals in view of
the fact that the questioned orders
were issued with grave abuse of
discretion amounting to excess of or
lack of jurisdiction.
We now go to the substantive issues. The crux of
the petition is the ownership of Suite 204 of LCG
Condominium and how the properties acquired
by petitioner and respondent should be
partitioned.
It appears from the facts, as found by the trial
court, that in March 1983, after two years of
long-distance courtship, petitioner left Cebu City
and moved in with respondent in the latters
residence in Metro Manila. Their relations bore
fruit and their first child, Michael Bruno Fehr, was
born on December 3, 1983. The couple got
married on March 14, 1985. In the meantime,
they purchased on installment a condominium
unit, Suite 204, at LCG Condominium, as
evidenced by a Contract to Sell dated July 26,
1983 executed by respondent as the buyer and
J.V. Santos Commercial Corporation as the seller.
Petitioner also signed the contract as witness,
using the name "Elna Mercado Fehr". Upon
completion of payment, the title to the

condominium unit was issued in the name of


petitioner.19
In light of these facts, we give more credence to
petitioners submission that Suite 204 was
acquired during the parties cohabitation.
Accordingly, under Article 147 of the Family
Code, said property should be governed by the
rules on co-ownership. The Family Code
provides:
Article 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 to
the acquisition thereof if the formers efforts
consisted in the care and maintenance of their
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. (emphasis supplied)
Article 147 applies to unions of parties who are
legally capacitated and not barred by any
impediment to contract marriage, but whose
marriage is nonetheless void,20 as in the case at
bar. This provision creates a co-ownership with
respect to the properties they acquire during
their cohabitation.
We held in Valdes vs. Regional Trial Court,
Br. 102, Quezon City:21

This peculiar kind of co-ownership applies when


a man and a woman, suffering no legal
impediment to marry each other, so exclusively
live together as husband and wife under a void
marriage or without the benefit of marriage. The
term "capacitated" in the provision (in the first
paragraph of the law) refers to the legal capacity
of a party to contract marriage, i.e., any "male or
female of the age of eighteen years or upwards
not under any of the impediments mentioned in
Article 37 and 38" of the Code.
Under this property regime, property acquired by
both spouses through their work and industry
shall be governed by the rules on equal coownership. Any property acquired during the
union is prima facie presumed to have been
obtained through their joint efforts. A party who
did not participate in the acquisition of the
property shall still be considered as having
contributed thereto jointly if said partys "efforts
consisted in the care and maintenance of the
family household."
Thus, 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.
All these elements are present in the case at bar.
It has not been shown that petitioner and
respondent suffered any impediment to marry
each other. They lived exclusively with each
other as husband and wife when petitioner
moved in with respondent in his residence and
were later united in marriage. Their marriage,
however, was found to be void under Article 36
of the Family Code because of respondents
psychological incapacity to comply with essential
marital obligations.
The disputed property, Suite 204 of LCG
Condominium, was purchased on installment
basis on July 26, 1983, at the time when
petitioner and respondent were already living
together. Hence, it should be considered as
common property of petitioner and respondent.
As regards the settlement of the common
properties of petitioner and respondent, we hold
that the Civil Code provisions on co-ownership
should apply. There is nothing in the records that
support the pronouncement of the trial court
that the parties have agreed to divide the
properties into three1/3 share each to the
petitioner, the respondent and their children.
Petitioner, in fact, alleges in her petition before
this Court that the parties have agreed on a fourway division of the properties1/4 share each to

the petitioner and the respondent, and 1/4 share


each to their two children. Moreover,
respondents argument that the three-way
partition is in accordance with Articles 50 and 51
of the Family Code does not hold water as said
provisions relate only to voidable marriages and
exceptionally to void marriages under Article 40
of the Family Code, i.e., the declaration of nullity
of a subsequent marriage contracted by a
spouse of a prior void marriage before the latter
is judicially declared void.22
In sum, we rule in favor of the petitioner. We
hold that Suite 204 of LCG Condominium is a
common property of petitioner and respondent
and the property regime of the parties should be
divided in accordance with the law on coownership.
IN VIEW WHEREOF, the petition is GRANTED. The
case is hereby REMANDED to the Regional Trial
Court of Makati, Branch 149 for liquidation of the
properties of petitioner and respondent in
accordance with this Courts ruling.
JACINTO SAGUID, petitioner,
vs.
HON. COURT OF APPEALS, THE REGIONAL
TRIAL COURT, BRANCH 94, BOAC,
MARINDUQUE AND GINA S. REY,
respondents.
YNARES-SANTIAGO, J.:
The regime of limited co-ownership of property
governing the union of parties who are not
legally capacitated to marry each other, but who
nonetheless live together as husband and wife,
applies to properties acquired during said
cohabitation in proportion to their respective
contributions. Co-ownership will only be up to
the extent of the proven actual contribution of
money, property or industry. Absent proof of the
extent thereof, their contributions and
corresponding shares shall be presumed to be
equal.1
Seventeen-year old Gina S. Rey was married,2
but separated de facto from her husband, when
she met petitioner Jacinto Saguid in Marinduque,
sometime in July 1987.3 After a brief courtship,
the two decided to cohabit as husband and wife
in a house built on a lot owned by Jacintos
father.4 Their cohabitation was not blessed with
any children. Jacinto made a living as the patron
of their fishing vessel "Saguid Brothers." 5 Gina,
on the other hand, worked as a fish dealer, but
decided to work as an entertainer in Japan from

1992 to 1994 when her relationship with


Jacintos relatives turned sour. Her periodic
absence, however, did not ebb away the conflict
with petitioners relatives. In 1996, the couple
decided to separate and end up their 9-year
cohabitation.6
On January 9, 1997, private respondent filed a
complaint for Partition and Recovery of Personal
Property with Receivership against the petitioner
with the Regional Trial Court of Boac,
Marinduque. She alleged that from her salary of
$1,500.00 a month as entertainer in Japan, she
was able to contribute P70,000.00 in the
completion of their unfinished house. Also, from
her own earnings as an entertainer and fish
dealer, she was able to acquire and accumulate
appliances, pieces of furniture and household
effects, with a total value of P111,375.00. She
prayed that she be declared the sole owner of
these personal properties and that the amount
of P70,000.00, representing her contribution to
the construction of their house, be reimbursed to
her.
Private respondent testified that she deposited
part of her earnings in her savings account with
First Allied Development Bank.7 Her Pass Book
shows that as of May 23, 1995, she had a
balance of P21,046.08.8 She further stated that
she had a total of P35,465.009 share in the joint
account deposit which she and the petitioner
maintained with the same bank.10 Gina declared
that said deposits were spent for the purchase of
construction materials, appliances and other
personal properties.11
In his answer12 to the complaint, petitioner
claimed that the expenses for the construction
of their house were defrayed solely from his
income as a captain of their fishing vessel. He
averred that private respondents meager
income as fish dealer rendered her unable to
contribute in the construction of said house.
Besides, selling fish was a mere pastime to her;
as such, she was contented with the small
quantity of fish allotted to her from his fishing
trips. Petitioner further contended that Gina did
not work continuously in Japan from 1992 to
1994, but only for a 6-month duration each year.
When their house was repaired and improved
sometime in 1995-1996, private respondent did
not share in the expenses because her earnings
as entertainer were spent on the daily needs and
business of her parents. From his income in the
fishing business, he claimed to have saved a
total of P130,000.00, P75,000.00 of which was
placed in a joint account deposit with private
respondent. This savings, according to petitioner

was spent in purchasing the disputed personal


properties.
On May 21, 1997, the trial court declared the
petitioner as in default for failure to file a pretrial brief as required by Supreme Court Circular
No. 1-89.13
On May 26, 1997, petitioner filed a motion for
reconsideration14 of the May 21, 1997 order,
which was denied on June 2, 1997, and private
respondent was allowed to present evidence ex
parte.15 Petitioner filed another motion for
reconsideration but the same was also denied on
October 8, 1997.
On July 15, 1998, a decision16 was rendered in
favor of private respondent, the dispositive
portion of which reads:
WHEREFORE, in view of all the
foregoing, judgment is hereby rendered
in favor of the plaintiff Gina S. Rey
against defendant Jacinto Saguid:
a) Ordering the partition of the house
identified as plaintiffs Exhibit C and D
and directing the defendant to return
and/or reimburse to the plaintiff the
amount of seventy thousand pesos
(P70,000,00) which the latter actually
contributed to its construction and
completion;
b) Declaring the plaintiff as the
exclusive owner of the personal
properties listed on Exhibit M;
c) Ordering the defendant, and/or
anyone in possession of the aforesaid
personal properties, to return and/or
deliver the same to the plaintiff; and
d) Ordering the defendant to pay the
plaintiff moral damages in the sum of
fifty thousand pesos (P50,000.00) plus
the costs of suit.
SO ORDERED.17
On appeal, said decision was affirmed by the
Court of Appeals; however, the award of
P50,000.00 as moral damages was deleted for
lack of basis.18 The appellate court ruled that the
propriety of the order which declared the
petitioner as in default became moot and
academic in view of the effectivity of the 1997

Rules of Civil Procedure. It explained that the


new rules now require the filing of a pre-trial
brief and the defendants non-compliance
therewith entitles the plaintiff to present
evidence ex parte.
Both parties filed motions for reconsideration
which were denied; hence, petitioner filed the
instant petition based on the following assigned
errors:
A.
THE HONORABLE COURT OF APPEALS
COMMIT[TED] A REVERSIBLE ERROR IN
APPLYING RETROACTIVELY THE 1997
RULES OF CIVIL PROCEDURE IN THE
PRESENT CASE AND HOLDING THE
FIRST ASSIGNED ERROR THEREIN MOOT
AND ACADEMIC THUS, FAILED TO RULE
ON THE PROPRIETY OF THE TRIAL
COURTS REFUSAL TO SET ASIDE THE
ORDER OF DEFAULT DUE TO MISTAKE
AND/OR EXCUSABLE NEGLIGENCE
COMMITTED BY PETITIONER.
B.
THE HONORABLE COURT OF APPEALS
COMMIT[TED] A REVERSIBLE ERROR IN
RELYING ON THE FACTUAL FINDINGS OF
THE TRIAL COURT WHICH RECEIVED
THE EVIDENCE OF HEREIN
RESPONDENT ONLY EX PARTE.19
The issues for resolution are: (1) whether or not
the trial court erred in allowing private
respondent to present evidence ex parte; and
(2) whether or not the trial courts decision is
supported by evidence.
Under Section 6, Rule 18 of the 1997 Rules of
Civil Procedure, the failure of the defendant to
file a pre-trial brief shall have the same effect as
failure to appear at the pre-trial, i.e., the plaintiff
may present his evidence ex parte and the court
shall render judgment on the basis thereof.20 The
remedy of the defendant is to file a motion for
reconsideration21 showing that his failure to file a
pre-trial brief was due to fraud, accident,
mistake or excusable neglect.22 The motion need
not really stress the fact that the defendant has
a valid and meritorious defense because his
answer which contains his defenses is already on
record.23

In the case at bar, petitioner insists that his


failure to file a pre-trial brief is justified because
he was not represented by counsel. This
justification is not, however, sufficient to set
aside the order directing private respondent to
present evidence ex parte, inasmuch as the
petitioner chose at his own risk not to be
represented by counsel. Even without the
assistance of a lawyer, petitioner was able to file
a motion for extension to file answer,24 the
required answer stating therein the special and
affirmative defenses,25 and several other
motions.26 If it were true that petitioner did not
understand the import of the April 23, 1997
order directing him to file a pre-trial brief, he
could have inquired from the court or filed a
motion for extension of time to file the brief.
Instead, he waited until May 26, 1997, or 14
days from his alleged receipt of the April 23,
1997 order before he filed a motion asking the
court to excuse his failure to file a brief. Pre-trial
rules are not to be belittled or dismissed
because their non-observance may result in
prejudice to a partys substantive rights. Like all
rules, they should be followed except only for
the most persuasive of reasons when they may
be relaxed to relieve a litigant of an injustice not
commensurate with the degree of his
thoughtlessness in not complying with the
procedure prescribed.27
In the instant case, the fact that petitioner was
not assisted by a lawyer is not a persuasive
reason to relax the application of the rules.
There is nothing in the Constitution which
mandates that a party in a non-criminal
proceeding be represented by counsel and that
the absence of such representation amounts to a
denial of due process. The assistance of lawyers,
while desirable, is not indispensable. The legal
profession is not engrafted in the due process
clause such that without the participation of its
members the safeguard is deemed ignored or
violated.28
However, the Court of Appeals erred in ruling
that the effectivity of the 1997 Rules of Civil
Procedure, specifically, Section 6, Rule 18
thereof, rendered moot and academic the issue
of whether or not the plaintiff may be allowed to
present evidence ex parte for failure of the
defendant to file a pre-trial brief. While the rules
may indeed be applied retroactively, the same is
not called for in the case at bar. Even before the
1997 Rules of Civil Procedure took effect on July
1, 1997, the filing of a pre-trial brief was required
under Circular No. 1-89 which became effective
on February 1, 1989. Pursuant to the said
circular, "[f]ailure to file pre-trial briefs may be

given the same effect as the failure to appear at


the pre-trial," that is, the party may be declared
non-suited or considered as in default.29
Coming now to the substantive issue, it is not
disputed that Gina and Jacinto were not
capacitated to marry each other because the
former was validly married to another man at
the time of her cohabitation with the latter. Their
property regime therefore is governed by Article
14830 of the Family Code, which applies to
bigamous marriages, adulterous relationships,
relationships in a state of concubinage,
relationships where both man and woman are
married to other persons, and multiple alliances
of the same married man. Under this regime, "
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 ..." 31 Proof of actual
contribution is required.32
In the case at bar, although the adulterous
cohabitation of the parties commenced in 1987,
which is before the date of the effectivity of the
Family Code on August 3, 1998, Article 148
thereof applies because this provision was
intended precisely to fill up the hiatus in Article
144 of the Civil Code.33 Before Article 148 of the
Family Code was enacted, there was no provision
governing property relations of couples living in
a state of adultery or concubinage. Hence, even
if the cohabitation or the acquisition of the
property occurred before the Family Code took
effect, Article 148 governs.34
In the cases of Agapay v. Palang,35 and Tumlos v.
Fernandez,36 which involved the issue of coownership of properties acquired by the parties
to a bigamous marriage and an adulterous
relationship, respectively, we ruled that proof of
actual contribution in the acquisition of the
property is essential. The claim of co-ownership
of the petitioners therein who were parties to the
bigamous and adulterous union is without basis
because they failed to substantiate their
allegation that they contributed money in the
purchase of the disputed properties. Also in
Adriano v. Court of Appeals,37 we ruled that the
fact that the controverted property was titled in
the name of the parties to an adulterous
relationship is not sufficient proof of coownership absent evidence of actual
contribution in the acquisition of the property.
As in other civil cases, the burden of proof rests
upon the party who, as determined by the
pleadings or the nature of the case, asserts an

affirmative issue. Contentions must be proved by


competent evidence and reliance must be had
on the strength of the partys own evidence and
not upon the weakness of the opponents
defense.38 This applies with more vigor where, as
in the instant case, the plaintiff was allowed to
present evidence ex parte. The plaintiff is not
automatically entitled to the relief prayed for.
The law gives the defendant some measure of
protection as the plaintiff must still prove the
allegations in the complaint. Favorable relief can
be granted only after the court is convinced that
the facts proven by the plaintiff warrant such
relief.39 Indeed, the party alleging a fact has the
burden of proving it and a mere allegation is not
evidence.40

Private respondent Gina S. Rey is declared coowner of petitioner Jacinto Saguid in the
controverted house to the extent of P11,413.00
and personal properties to the extent of
P55,687.50. Petitioner is ordered to reimburse
the amount of P67,100.50 to private respondent,
failing which the house shall be sold at public
auction to satisfy private respondents claim.
G.R. No. 169698

November 29, 2006

LUPO ATIENZA, Petitioner,


vs.
YOLANDA DE CASTRO, Respondent.
DECISION

In the case at bar, the controversy centers on


the house and personal properties of the parties.
Private respondent alleged in her complaint that
she contributed P70,000.00 for the completion of
their house. However, nowhere in her testimony
did she specify the extent of her contribution.
What appears in the record are receipts41 in her
name for the purchase of construction materials
on November 17, 1995 and December 23, 1995,
in the total amount of P11,413.00.
On the other hand, both parties claim that the
money used to purchase the disputed personal
properties came partly from their joint account
with First Allied Development Bank. While there
is no question that both parties contributed in
their joint account deposit, there is, however, no
sufficient proof of the exact amount of their
respective shares therein. Pursuant to Article
148 of the Family Code, in the absence of proof
of extent of the parties respective contribution,
their share shall be presumed to be equal. Here,
the disputed personal properties were valued at
P111,375.00, the existence and value of which
were not questioned by the petitioner. Hence,
their share therein is equivalent to one-half, i.e.,
P55,687.50 each.
The Court of Appeals thus erred in affirming the
decision of the trial court which granted the
reliefs prayed for by private respondent. On the
basis of the evidence established, the extent of
private respondents co-ownership over the
disputed house is only up to the amount of
P11,413.00, her proven contribution in the
construction thereof. Anent the personal
properties, her participation therein should be
limited only to the amount of P55,687.50.
As regards the trial courts award of P50,000.00
as moral damages, the Court of Appeals
correctly deleted the same for lack of basis.

GARCIA, J.:
Assailed and sought to be set aside in this
petition for review on certiorari is the Decision1
dated April 29, 2005 of the Court of Appeals (CA)
in CA-G.R. CV No. 69797, as reiterated in its
Resolution2 of September 16, 2005, reversing an
earlier decision of the Regional Trial Court (RTC)
of Makati City, Branch 61, in an action for Judicial
Partition of Real Property thereat commenced by
the herein petitioner Lupo Atienza against
respondent Yolanda de Castro.
The facts:
Sometime in 1983, petitioner Lupo Atienza, then
the President and General Manager of Enrico
Shipping Corporation and Eurasian Maritime
Corporation, hired the services of respondent
Yolanda U. De Castro as accountant for the two
corporations.
In the course of time, the relationship between
Lupo and Yolanda became intimate. Despite
Lupo being a married man, he and Yolanda
eventually lived together in consortium
beginning the later part of 1983. Out of their
union, two children were born. However, after
the birth of their second child, their relationship
turned sour until they parted ways.
On May 28, 1992, Lupo filed in the RTC of Makati
City a complaint against Yolanda for the judicial
partition between them of a parcel of land with
improvements located in Bel-Air Subdivision,
Makati City and covered by Transfer Certificate
of Title No. 147828 of the Registry of Deeds of
Makati City. In his complaint, docketed in said
court as Civil Case No. 92-1423, Lupo alleged
that the subject property was acquired during

his union with Yolanda as common-law husband


and wife, hence the property is co-owned by
them.
Elaborating, Lupo averred in his complaint that
the property in question was acquired by
Yolanda sometime in 1987 using his exclusive
funds and that the title thereto was transferred
by the seller in Yolandas name without his
knowledge and consent. He did not interpose
any objection thereto because at the time, their
affair was still thriving. It was only after their
separation and his receipt of information that
Yolanda allowed her new live-in partner to live in
the disputed property, when he demanded his
share thereat as a co-owner.
In her answer, Yolanda denied Lupos allegations.
According to her, she acquired the same
property for Two Million Six Hundred Thousand
Pesos (P2,600,000.00) using her exclusive funds.
She insisted having bought it thru her own
savings and earnings as a businesswoman.
In a decision3 dated December 11, 2000, the trial
court rendered judgment for Lupo by declaring
the contested property as owned in common by
him and Yolanda and ordering its partition
between the two in equal shares, thus:
WHEREFORE, judgment is hereby rendered
declaring the property covered by Transfer
Certificate of Title No. 147828 of the Registry of
Deeds of Makati City to be owned in common by
plaintiff LUPO ATIENZA and the defendant
YOLANDA U. DE CASTRO share-and-share alike
and ordering the partition of said property
between them. Upon the finality of this Decision,
the parties are hereby directed to submit for the
confirmation of the Court a mutually agreed
project of partition of said property or, in case
the physical partition of said property is not
feasible because of its nature, that either the
same be assigned to one of the parties who shall
pay the value corresponding to the share of the
other or that the property to be sold and the
proceeds thereof be divided equally between the
parties after deducting the expenses incident to
said sale.

From the decision of the trial court, Yolanda went


on appeal to the CA in CA-G.R. CV No. 69797,
therein arguing that the evidence on record
preponderate that she purchased the disputed
property in her own name with her own money.
She maintained that the documents appertaining
to her acquisition thereof are the best evidence
to prove who actually bought it, and refuted the
findings of the trial court, as well as Lupos
assertions casting doubt as to her financial
capacity to acquire the disputed property.
As stated at the threshold hereof, the appellate
court, in its decision4 of April 29, 2005, reversed
and set aside that of the trial court and adjudged
the litigated property as exclusively owned by
Yolanda, to wit:
WHEREFORE, the foregoing considered, the
assailed decision is hereby REVERSED and SET
ASIDE . The subject property is hereby declared
to be exclusively owned by defendant-appellant
Yolanda U. De Castro. No costs.
SO ORDERED.
In decreeing the disputed property as exclusively
owned by Yolanda, the CA ruled that under the
provisions of Article 148 of the Family Code vis-vis the evidence on record and attending
circumstances, Yolandas claim of sole ownership
is meritorious, as it has been substantiated by
competent evidence. To the CA, Lupo failed to
overcome the burden of proving his allegation
that the subject property was purchased by
Yolanda thru his exclusive funds.

The parties shall bear their own attorneys fees


and expenses of litigation.

With his motion for reconsideration having been


denied by the CA in its Resolution of September
16, 2005,5 Lupo is now with this Court via the
present recourse arguing that pursuant to Article
1446 of the Civil Code, he was in no way
burdened to prove that he contributed to the
acquisition of the subject property because with
or without the contribution by either partner, he
is deemed a co-owner thereof, adding that under
Article 4847 of Civil Code, as long as the property
was acquired by either or both of them during
their extramarital union, such property would be
legally owned by them in common and governed
by the rules on co-ownership, which apply in
default of contracts, or special provisions.

Costs against the defendant.

We DENY.

SO ORDERED.

It is not disputed that the parties herein were not


capacitated to marry each other because
petitioner Lupo Atienza was validly married to

another woman at the time of his cohabitation


with the respondent. Their property regime,
therefore, is governed by Article 1488 of the
Family Code, which applies to bigamous
marriages, adulterous relationships,
relationships in a state of concubinage,
relationships where both man and woman are
married to other persons, and multiple alliances
of the same married man. Under this regime,
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 ...9 Proof of actual
contribution is required.10
As it is, the regime of limited co-ownership of
property governing the union of parties who are
not legally capacitated to marry each other, but
who nonetheless live together as husband and
wife, applies to properties acquired during said
cohabitation in proportion to their respective
contributions. Co-ownership will only be up to
the extent of the proven actual contribution of
money, property or industry. Absent proof of the
extent thereof, their contributions and
corresponding shares shall be presumed to be
equal.11
Here, although the adulterous cohabitation of
the parties commenced in 1983, or way before
the effectivity of the Family Code on August 3,
1998, Article 148 thereof applies because this
provision was intended precisely to fill up the
hiatus in Article 144 of the Civil Code.12 Before
Article 148 of the Family Code was enacted,
there was no provision governing property
relations of couples living in a state of adultery
or concubinage. Hence, even if the cohabitation
or the acquisition of the property occurred
before the Family Code took effect, Article 148
governs.13
The applicable law being settled, we now remind
the petitioner that here, as in other civil cases,
the burden of proof rests upon the party who, as
determined by the pleadings or the nature of the
case, asserts an affirmative issue. Contentions
must be proved by competent evidence and
reliance must be had on the strength of the
partys own evidence and not upon the
weakness of the opponents defense. The
petitioner as plaintiff below is not automatically
entitled to the relief prayed for. The law gives
the defendant some measure of protection as
the plaintiff must still prove the allegations in the
complaint. Favorable relief can be granted only
after the court is convinced that the facts proven
by the plaintiff warrant such relief.14 Indeed, the

party alleging a fact has the burden of proving it


and a mere allegation is not evidence.15
It is the petitioners posture that the respondent,
having no financial capacity to acquire the
property in question, merely manipulated the
dollar bank accounts of his two (2) corporations
to raise the amount needed therefor.
Unfortunately for petitioner, his submissions are
burdened by the fact that his claim to the
property contradicts duly written instruments,
i.e., the Contract to Sell dated March 24, 1987,
the Deed of Assignment of Redemption dated
March 27, 1987 and the Deed of Transfer dated
April 27, 1987, all entered into by and between
the respondent and the vendor of said property,
to the exclusion of the petitioner. As aptly
pointed out by the CA:
Contrary to the disquisition of the trial court,
[Lupo] failed to overcome this burden. Perusing
the records of the case, it is evident that the trial
court committed errors of judgment in its
findings of fact and appreciation of evidence
with regard to the source of the funds used for
the purchase of the disputed property and
ultimately the rightful owner thereof. Factual
findings of the trial court are indeed entitled to
respect and shall not be disturbed, unless some
facts or circumstances of weight and substance
have been overlooked or misinterpreted that
would otherwise materially affect the disposition
of the case.
In making proof of his case, it is paramount that
the best and most complete evidence be
formally entered. Rather than presenting proof of
his actual contribution to the purchase money
used as consideration for the disputed property,
[Lupo] diverted the burden imposed upon him to
[Yolanda] by painting her as a shrewd and
scheming woman without the capacity to
purchase any property. Instead of proving his
ownership, or the extent thereof, over the
subject property, [Lupo] relegated his complaint
to a mere attack on the financial capacity of
[Yolanda]. He presented documents pertaining to
the ins and outs of the dollar accounts of ENRICO
and EURASIAN, which unfortunately failed to
prove his actual contribution in the purchase of
the said property. The fact that [Yolanda] had a
limited access to the funds of the said
corporations and had repeatedly withdrawn
money from their bank accounts for their behalf
do not prove that the money she used in buying
the disputed property, or any property for that
matter, came from said withdrawals.

As it is, the disquisition of the court a quo


heavily rested on the apparent financial capacity
of the parties.1wphi1 On one side, there is
[Lupo], a retired sea captain and the President
and General Manager of two corporations and on
the other is [Yolanda], a Certified Public
Accountant. Surmising that [Lupo] is financially
well heeled than [Yolanda], the court a quo
concluded, sans evidence, that [Yolanda] had
taken advantage of [Lupo]. Clearly, the court a
quo is in error. (Words in brackets supplied.)

All told, the Court finds and so holds that the CA


committed no reversible error in rendering the
herein challenged decision and resolution.

As we see it, petitioners claim of co-ownership


in the disputed property is without basis because
not only did he fail to substantiate his alleged
contribution in the purchase thereof but likewise
the very trail of documents pertaining to its
purchase as evidentiary proof redounds to the
benefit of the respondent. In contrast, aside from
his mere say so and voluminous records of bank
accounts, which sadly find no relevance in this
case, the petitioner failed to overcome his
burden of proof. Allegations must be proven by
sufficient evidence. Simply stated, he who
alleges a fact has the burden of proving it; mere
allegation is not evidence.

SPOUSES AUGUSTO HONTIVEROS and


MARIA HONTIVEROS
vs. REGIONAL TRIAL COURT, Branch 25,
Iloilo City and SPOUSES GREGORIO
HONTIVEROS and TEODORA AYSON

True, the mere issuance of a certificate of title in


the name of any person does not foreclose the
possibility that the real property covered thereby
may be under co-ownership with persons not
named in the certificate or that the registrant
may only be a trustee or that other parties may
have acquired interest subsequent to the
issuance of the certificate of title. However, as
already stated, petitioners evidence in support
of his claim is either insufficient or immaterial to
warrant the trial courts finding that the disputed
property falls under the purview of Article 148 of
the Family Code. In contrast to petitioners
dismal failure to prove his cause, herein
respondent was able to present preponderant
evidence of her sole ownership. There can
clearly be no co-ownership when, as here, the
respondent sufficiently established that she
derived the funds used to purchase the property
from her earnings, not only as an accountant but
also as a businesswoman engaged in foreign
currency trading, money lending and jewelry
retail. She presented her clientele and the
promissory notes evincing substantial dealings
with her clients. She also presented her bank
account statements and bank transactions,
which reflect that she had the financial capacity
to pay the purchase price of the subject
property.

WHEREFORE, the instant petition is DENIED and


the assailed issuances of the CA are AFFIRMED.

FACTS:
1990, petitioners filed a complaint for damages
against private respondents. Petitioners alleged
that they are the owners of a parcel of land, in
the town of Jamindan, Province of Capiz, issued
pursuant to the decision of the Intermediate
Appellate Courtin a land registration case 1 filed
by private respondent Gregorio Hontiveros; that
petitioners were deprived of income from the
land as a result of the filing of the land
registration case; that such income consisted of
rentals from tenants and that private
respondents filed the land registration case and
withheld possession of the land from petitioners
in bad faith. 2
Private respondents denied that they were
married and alleged that private respondent
Hontiveros was a widower while private
respondent Ayson was single. They denied that
they had deprived petitioners of possession of
and income from the land. On the contrary, they
alleged that possession of the property in
question had already been transferred to
petitioners on August 7, 1985, by virtue of a writ
of possession. that there were no rentals due
since private respondent Hontiveros was a
possessor in good faith and for value; and that
private respondent Ayson had nothing to do with
the case as she was not married to private
respondent Gregorio Hontiveros and did not
have any proprietary interest in the subject
property.
Trial court: dismissed the case on the ground
that the complaint was not verified as required
by Art. 151 of the Family Code.
Salient points:

a) Teodora Ayson, the alleged wife of


defendant Gregorio Hontiveros and
allegedly not a member of the
Hontiveros Family, is not shown to be
really the wife of Gregorio also denied
in their verified answer to the
amended complaint.

case out of the ambit of Art. 151 of the Family


Code. Under this provision, the phrase
"members of the same family" refers to the
husband and wife, parents and children,
ascendants and descendants, and brothers and
sisters, whether full or half-blood. 19 As this Court
held in Guerrero v. RTC, Ilocos Norte, Br. XVI: 20

b) Teodora Ayson has not been shown


to have acquired any proprietary right
or interest in the land that was
litigated by Gregorio and Augusto,
unlike the cited case of Magbaleta
where it was shown that a stranger to
the family acquired certain right;

As early as two decades ago, we already


ruled in Gayon v. Gayon that the
enumeration of "brothers and sisters" as
member of the same family does not
comprehend "sisters-in-law." In that case,
then Chief Justice Concepcion emphasized
that "sisters-in-law" (hence, also "brotherin-law") are not listed under Art. 217 of
the New Civil Code as members of the
same family. Since Art. 150 of the Family
Code repeats essentially the same
enumeration of "members of the family,"
we find no reason to alter existing
jurisprudence on the mater.
Consequently, the court a quo erred in
ruling that petitioner Guerrero, being a
brother-in-law of private respondent
Hernando, was required to exert earnest
efforts towards a compromise before filing
the present suit.

c) In the decision rendered by the


appellate court no mention was made
at all of the name of Teodora Ayson as
part-awardee of Lot 37 that was
adjudged to Gregorio other than
himself who was therein described as
a widower. Moreover, Teodora was
never mentioned in said decision, nor
in the amended complaint and in the
amended motion for judgment on the
pleadings that she ever took any part
in the act of transaction that gave rise
to the damages allegedly suffered by
the plaintiffs for which they now claim
some compensation.
Pet: Art. 151 of the Family Code does not apply
in this case since the suit is not exclusively
among the family members. Citing several cases
18
decided by this Court, petitioners claim that
whenever a stranger is a party in the case
involving the family members, the requisite
showing the earnest efforts to compromise is no
longer mandatory. They argue that since private
respondent Ayson is admittedly a stranger to the
Hontiveros family, the case is not covered by the
requirements of Art. 151 of the Family Code.
ISSUE: WON RTC ERRED IN DISMISSING THE
COMPLAINT ON THE GROUND THAT IT DOES NOT
ALLEGE UNDER OATH THAT EARNEST EFFORTS
TOWARD A COMPROMISE WERE MADE PRIOR TO
THE FILING THEREOF AS REQUIRED BY ARTICLE
151 OF THE FAMILY CODE.
WON Art. 151 applies in the case
HELD:
We agree with petitioners. The inclusion of
private respondent Ayson as defendant and
petitioner Maria Hontiveros as plaintiff takes the

Religious relationship and relationship by


affinity are not given any legal effect in
this jurisdiction. 21 Consequently, private
respondent Ayson, who is described in the
complaint as the spouse of respondent
Hontiveros, and petitioner Maria
Hontiveros, who is admittedly the spouse
of petitioner Augusto Hontiveros, are
considered strangers to the Hontiveros
family, for purposes of Art. 151.
The absence of the verification required in Art.
151 does not affect the jurisdiction of the court
over the subject matter of the complaint. The
verification is merely a formal requirement
intended to secure an assurance that matters
which are alleged are true and correct. If the
court doubted the veracity of the allegations
regarding efforts made to settle the case among
members of the same family, it could simply
have ordered petitioners to verify them. As this
Court has already ruled, the court may simply
order the correction of unverified pleadings or
act on it and waive strict compliance with the
rules in order that the ends of justice may be
served. 17 Otherwise, mere suspicion or doubt on
the part of the trial court as to the truth of the
allegation that earnest efforts had been made
toward a compromise but the parties' efforts
proved unsuccessful is not a ground for the

dismissal of an action. Only if it is later shown


that such efforts had not really been exerted
would the court be justified in dismissing the
action. Thus, Art. 151 provides:
No suit between members of
the same family shall prosper
unless it should appear from
the verified complaint or
petition that earnest efforts
toward a compromise have
been made, but that the same
have failed. It if is shown that
no such efforts were in fact
made, the case must be
dismissed.
This rule shall not apply to
cases which may not be the
subject of compromise under
the Civil Code.
Petitioners finally question the constitutionality
of Art. 151 of the Family Code on the ground that
it in effect amends the Rules of Court. This,
according to them, cannot be done since the
Constitution reserves in favor of the Supreme
Court the power to promulgate rules of pleadings
and procedure. Considering the conclusion we
have reached in this case, however, it is
unnecessary for present purposes to pass upon
this question. Courts do not pass upon
constitutional questions unless they are the very
lis mota of the case.
GAUDENCIO GUERRERO, petitioner,
vs.
REGIONAL TRIAL COURT OF ILOCOS NORTE,
BR. XVI, JUDGE LUIS B. BELLO, JR.,
PRESIDING, and PEDRO G. HERNANDO,
FACTS:
Filed by petitioner as an accion publicana 1
against private respondent, this case assumed
another dimension when it was dismissed by
respondent Judge on the ground that the parties
being brother-in-law the complaint should have
alleged that earnest efforts were first exerted
towards a compromise.
Admittedly, the complaint does not allege that
the parties exerted earnest towards a
compromise and that the same failed. However,
private respondent Pedro G. Hernando
apparently overlooked this alleged defect since
he did not file any motion to dismiss nor attack
the complaint on this ground in his answer. Only

on 1992, at the pre-trial conference, that the


relationship of petitioner Gaudencio Guerrero
and respondent Hernando was noted by
respondent Judge Luis B. Bello, Jr., they being
married to half-sisters hence are brothers-in-law,
and on the basis thereof respondent Judge gave
petitioner five (5) days "to file his motion and
amended complaint" to allege that the parties
were very close relatives, their respective wives
being sisters, and that the complaint to be
maintained should allege that earnest efforts
towards a compromise were exerted but failed.
Apparently, respondent Judge considered this
deficiency a jurisdictional defect.
Guerrero moved to reconsider claiming that
since brothers by affinity are not members of the
same family, he was not required to exert efforts
towards a compromise.
Respondent Judge denied MR holding that
"[f]ailure to allege that earnest efforts towards a
compromise is jurisdictional such that for failure
to allege same the court would be deprived of its
jurisdiction to take cognizance of the case."
5-day period having expired without Guerrero
amending his complaint, respondent Judge
dismissed the case.
ISSUE: (a) whether brothers by affinity are
considered members of the same family
contemplated in Art. 217 (4), and Art. 222 of the
New Civil Code, as well as under Sec. 1, par. (j),
Rule 16, of the Rules of Court requiring earnest
efforts towards a compromise before a suit
between them may be instituted and
maintained; and, (b) whether the absence of an
allegation in the complaint that earnest efforts
towards a compromise were exerted, which
efforts failed, is a ground for dismissal for lack of
jurisdiction.
HELD: The Constitution protects the sanctity of
the family and endeavors to strengthen it as a
basic autonomous social institution. 2 This is also
embodied in Art. 149, 3 and given flesh in Art.
151, of the Family Code.
Considering that Art. 151 starts with the
negative word "No", the requirement is
mandatory 4 that the complaint or petition, which
must be verified, should allege that earnest
efforts towards a compromise have been made
but that the same failed, so that "[i]f it is shown
that no such efforts were in fact made, the case
must be dismissed."

Further, Art. 151 is contemplated by Sec. 1, par.


(j), Rule 16, of the Rules of Court which provides
as a ground for motion to dismiss "(t)hat the suit
is between members of the same family and no
earnest efforts towards a compromise have been
made."
But the instant case presents no occasion for the
application of the above-quoted provisions. As
early as two decades ago, we already ruled in
Gayon v. Gayon 6 that the enumeration of
"brothers and sisters" as members of the same
family does not comprehend "sisters-in-law". In
that case, then Chief Justice Concepcion
emphasized that "sisters-in-law" (hence, also
"brothers-in-law") are not listed under Art. 217 of
the New Civil Code as members of the same
family. Since Art. 150 of the Family Code repeats
essentially the same enumeration of "members
of the family", we find no reason to alter existing
jurisprudence on the matter.
Court a quo erred in ruling that petitioner
Guerrero, being a brother-in-law of private
respondent Hernando, was required to exert
earnest efforts towards a compromise before
filing the present suit.
Second issue: attempt to compromise as well as
the inability to succeed is a condition precedent
to the filing of a suit between members of the
same family, the absence of such allegation in
the complaint being assailable at any stage of
the proceeding, even on appeal, for lack of
cause of action.
It is not therefore correct, as petitioner contends,
that private respondent may be deemed to have
waived the aforesaid defect in failing to move or
dismiss or raise the same in the Answer. On the
other hand, we cannot sustain the proposition of
private respondent that the case was, after all,
also dismissed pursuant to Sec. 3, Rule 17, of
the Rules of Court 11 for failure of petitioner to
comply with the court's order to amend his
complaint.

HIYAS SAVINGS BANK VS MORENO


FACTS:

On 2000, Alberto Moreno (private


respondent) filed with the RTC of Caloocan City a
complaint against Hiyas Savings and Loan Bank,
Inc. (petitioner), his wife Remedios, the spouses
Felipe and Maria Owe and the Register of Deeds
of Caloocan City for cancellation of mortgage
contending that he did not secure any loan from
petitioner, nor did he sign or execute any
contract of mortgage in its favor; that his wife,
acting in conspiracy with Hiyas and the spouses
Owe, who were the ones that benefited from the
loan, made it appear that he signed the contract
of mortgage; that he could not have executed
the said contract because he was then working
abroad.

Petitioner filed a MTD on the ground


that private respondent failed to comply with
Article 151 of the Family Code wherein it is
provided that no suit between members of the
same family shall prosper unless it should
appear from the verified complaint or petition
that earnest efforts toward a compromise have
been made, but that the same have failed.
Petitioner contends that since the complaint
does not contain any fact or averment that
earnest efforts toward a compromise had been
made prior to its institution, then the complaint
should be dismissed for lack of cause of action.

Private respondent: argues that in


cases where one of the parties is not a member
of the same family as contemplated under
Article 150 of the Family Code, failure to allege
in the complaint that earnest efforts toward a
compromise had been made by the plaintiff
before filing the complaint is not a ground for a
motion to dismiss. Alberto asserts that since
three of the party-defendants are not members
of his family the ground relied upon by Hiyas in
its Motion to Dismiss is inapplicable and
unavailable.

RTC:
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.

On MR, RTC reiterates its order: 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.

ISSUE: WON 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.

HELD:

Petitioner argues that what is applicable


to the present case is the Courts decision in De
Guzman v. Genato and not in Magbaleta v.
Gonong, 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.

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. 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.

While De Guzman was decided after


Magbaleta, the principle enunciated in the
Magbaleta is the one that now prevails. Thus,
Article 151 of the Family Code applies to cover
when the suit is exclusively between or among
family members.

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)
wife;

Between husband and

(2)
children;

Between parents and

(3)
Among other
ascendants and descendants; and
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.

(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.

G.R. No. 185922

January 15, 2014

HEIRS OF DR. MARIANO FAVIS SR.


represented by their co-heirs and
Attorneys-in-Fact MERCEDES A. FAVIS and
NELLY FAVIS- VILLAFUERTE, Petitioners,
vs.
JUANA GONZALES, her son MARIANO G.
FAVIS, MA. THERESA JOANA D. FAVIS,
JAMES MARK D. FAVIS, all minors
represented herein by their parents SPS.
MARIANO FAVIS and LARCELITA D. FAVIS,
Respondents.
FACTS:
Dr. Mariano Favis, Sr. was married to Capitolina
Aguilar with whom he had seven children named
Purita A. Favis, Reynaldo Favis, Consolacion
Favis-Queliza, Mariano A. Favis, Jr., Esther F.
Filart, Mercedes A. Favis, and Nelly FavisVillafuerte. When Capitolina died in March 1944,

Dr. Favis took Juana Gonzales as his common-law


wife with whom he sired one child, Mariano G.
Favis (Mariano).
When Dr. Favis and Juana got married in 1974,
Dr. Favis executed an affidavit acknowledging
Mariano as one of his legitimate children.
Mariano is married to Larcelita D. Favis
(Larcelita), with whom he has four children,
named Ma. Theresa Joana D. Favis, Ma. Cristina
D. Favis, James Mark D. Favis and Ma. Thea D.
Favis.
(1995) Dr. Favis died intestate. He died of
"cardiopulmonary arrest secondary to multiorgan/system failure secondary to sepsis
secondary to pneumonia."
(1994) he allegedly executed a Deed of Donation
transferring and conveying some of the
properties in favor of his grandchildren with
Juana.
Claiming that said donation prejudiced their
legitime, Dr. Favis children with Capitolina,
petitioners herein, filed an action for annulment
of the Deed of Donation, inventory, liquidation
and partition of property against Juana, Spouses
Mariano and Larcelita and their grandchildren as
respondents.
Respondents assert that the properties donated
do not form part of the estate of the late Dr.
Favis because said donation was made inter
vivos, hence petitioners have no stake over said
properties.6
RTC nullified the Deed of Donation and cancelled
the corresponding tax declarations. Holding that
the subsequent marriage of Dr. Favis and Juana
legitimated the status of Mariano, the trial court
also declared Juana and Mariano as compulsory
heirs of Dr. Favis.
The Court of Appeals motu proprio ordered the
dismissal of the complaint for failure of
petitioners to make an averment that earnest
efforts toward a compromise have been made,
as mandated by Article 151 of the Family Code.
Petitioners filed a motion for reconsideration
contending that the case is not subject to
compromise as it involves future legitime.
The Court of Appeals rejected petitioners
contention when it ruled that the prohibited
compromise is that which is entered between

the decedent while alive and compulsory heirs.


In the instant case, the appellate court observed
that while the present action is between
members of the same family it does not involve
a testator and a compulsory heir. Moreover, the
appellate court pointed out that the subject
properties cannot be considered as "future
legitime" but are in fact, legitime, as the instant
complaint was filed after the death of the
decedent.
Respondents defended the ruling the Court of
Appeals that the complaint is dismissible for
failure of petitioners to allege in their complaint
that earnest efforts towards a compromise have
been exerted.
ISSUE: whether or not the appellate court may
dismiss the order of dismissal of the complaint
for failure to allege therein that earnest efforts
towards a compromise have been made. The
appellate courts decision hinged on Article 151
of the Family Code.
HELD: This rule shall not apply to cases which
may not be the subject of compromise under the
Civil Code.
The appellate court correlated this provision with
Section 1, par. (j), Rule 16 of the 1997 Rules of
Civil Procedure, which provides:
Section 1. Grounds. Within the time for but
before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss
may be made on any of the following grounds:
xxxx
(j) That a condition precedent for filing the claim
has not been complied with.
The appellate courts reliance on this provision is
misplaced.
That a condition precedent for filing the claim
has not been complied with, a ground for a
motion to dismiss emanating from the law that
no suit between members from the same family
shall prosper unless it should appear from the
verified complaint that earnest efforts toward a
compromise have been made but had failed, is,
as the Rule so words, a ground for a motion to
dismiss. Significantly, the Rule requires that such
a motion should be filed "within the time for but
before filing the answer to the complaint or
pleading asserting a claim." The time frame

indicates that thereafter, the motion to dismiss


based on the absence of the condition precedent
is barred. It is so inferable from the opening
sentence of Section 1 of Rule 9 stating that
defense and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived. There are, as just noted, only four
exceptions to this Rule, namely, lack of
jurisdiction over the subject matter; litis
pendentia ; res judicata ; and prescription of
action. Failure to allege in the complaint that
earnest efforts at a compromise has been made
but had failed is not one of the exceptions. Upon
such failure, the defense is deemed waived.
Second sentence of Section 1 of Rule 9 does not
only supply exceptions to the rule that defenses
not pleaded either in a motion to dismiss or in
the answer are deemed waived, it also allows
courts to dismiss cases motu propio on any of
the enumerated grounds.
Why the objection of failure to allege a failed
attempt at a compromise in a suit among
members of the same family is waivable was
earlier explained in the case of Versoza v.
Versoza,16 a case for future support which was
dismissed by the trial court upon the ground that
there was no such allegation of infringement of
Article 222 of the Civil Code, the origin of Article
151 of the Family Code. While the Court ruled
that a complaint for future support cannot be the
subject of a compromise and as such the
absence of the required allegation in the
complaint cannot be a ground for objection
against the suit, the decision went on to state
thus:
The alleged defect is that the present complaint
does not state a cause of action. The proposed
amendment seeks to complete it. An
amendment to the effect that the requirements
of Article 222 have been complied with does not
confer jurisdiction upon the lower court. With or
without this amendment, the subject-matter of
the action remains as one for support, custody of
children, and damages, cognizable by the court
below.
To illustrate, Tamayo v. San Miguel Brewery,
Inc.,17 allowed an amendment which " merely
corrected a defect in the allegation of plaintiffappellants cause of action, because as it then
stood, the original complaint stated no cause of
action." We there ruled out as inapplicable the
holding in Campos Rueda Corporation v.
Bautista,18 that an amendment cannot be made
so as to confer jurisdiction on the court x x x.
(Italics supplied).

Thus was it made clear that a failure to allege


earnest but failed efforts at a compromise in a
complaint among members of the same family,
is not a jurisdictional defect but merely a defect
in the statement of a cause of action. Versoza
was cited in a later case as an instance
analogous to one where the conciliation process
at the barangay level was not priorly resorted to.
Both were described as a "condition precedent
for the filing of a complaint in Court."19 In such
instances, the consequence is precisely what is
stated in the present Rule. Thus:
x x x The defect may however be waived by
failing to make seasonable objection, in a motion
to dismiss or answer, the defect being a mere
procedural imperfection which does not affect
the jurisdiction of the court.20 (Underscoring
supplied).
The rule on deemed waiver of the nonjurisdictional defense or objection is wholly
applicable to respondent.1wphi1 If the
respondents as parties-defendants could not,
and did not, after filing their answer to
petitioners complaint, invoke the objection of
absence of the required allegation on earnest
efforts at a compromise, the appellate court
unquestionably did not have any authority or
basis to motu propio order the dismissal of
petitioners complaint.
Indeed, even if we go by the reason behind
Article 151 of the Family Code, which provision
as then Article 222 of the New Civil Code was
described as "having been given more teeth"21
by Section 1(j), Rule 16 of the Rule of Court, it is
safe to say that the purpose of making sure that
there is no longer any possibility of a
compromise, has been served. As cited in
commentaries on Article 151 of the Family Code

It is necessary that every effort should be made


towards 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.22
The facts of the case show that compromise was
never an option insofar as the respondents were
concerned. The impossibility of compromise
instead of litigation was shown not alone by the
absence of a motion to dismiss but on the
respondents insistence on the validity of the
donation in their favor of the subject properties.
Nor could it have been otherwise because the

Pre-trial Order specifically limited the issues to


the validity of the deed and whether or not
respondent Juana and Mariano are compulsory
heirs of Dr. Favis. Respondents not only confined
their arguments within the pre-trial order; after
losing their case, their appeal was based on the
proposition that it was error for the trial court to
have relied on the ground of vitiated consent on
the part of Dr. Favis.
The Court of Appeals ignored the facts of the
case that clearly demonstrated the refusal by
the respondents to compromise. Instead it
ordered the dismissal of petitioners complaint
on the ground that it did not allege what in fact
was shown during the trial. The error of the
Court of Appeals is patent.
Unfortunately for respondents, they relied
completely on the erroneous ruling of the Court
of Appeals.
At the time of the execution of the Deed of
Donation, Dr. Mariano Favis, Sr. was already at
an advanced age of 92, afflicted with different
illnesses which illnesses had the effects of
impairing his brain or mental faculties and the
deed being executed only when Dra. Mercedes
Favis had already left his fathers residence
when Dr. Mariano Favis, Sr. could have done so
earlier or even in the presence of Dra. Mercedes
Favis, at the time he executed the Deed of
Donation was not in full control of his mental
faculties. That although age of senility varies
from one person to another, to reach the age of
92 with all those medications and treatment one
have received for those illnesses, yet claim that
his mind remains unimpaired, would be unusual.
The fact that the Deed of Donation was only
executed after Dra. Mercedes Favis left his
father's house necessarily indicates that they
don't want the same to be known by the first
family, which is an indicia of bad faith on the
part of the defendant, who at that time had
influence over the donor.23
The correctness of the finding was not touched
by the Court of Appeals. The respondents opted
to rely only on what the appellate court
considered, erroneously though, was a
procedural infirmity. The trial court's factual
finding, therefore, stands unreversed; and
respondents did not provide us with any
argument to have it reversed.
The issue of the validity of donation was fully
litigated and discussed by the trial court. Indeed,
the trial court's findings were placed at issue

before the Court of Appeals but the appellate


court chose to confine its review to the
procedural aspect. The judgment of the Court of
Appeals, even if it dealt only with procedure, is
deemed to have covered all issues including the
correctness of the factual findings of the trial
court. Moreover, remanding the case to the
Court of Appeals would only constitute
unwarranted delay in the final disposition of the
case.
WHEREFORE, the Decision of the Court of
Appeals is REVERSED and SET ASIDE and the
Judgment of the Regional Trial Court of Vigan,
Ilocos Sur, Branch 20 is AFFIRMED.

JOSE MODEQUILLO, petitioner,


vs.
HON. AUGUSTO V. BREVA FRANCISCO
SALINAS, FLORIPER ABELLAN-SALINAS,
JUANITO CULAN-CULAN and DEPUTY
SHERIFF FERNANDO PLATA respondents.
FACTS:
The issue in this petition is whether or not a final
judgment of the Court of Appeals in an action for
damages may be satisfied by way of execution
of a family home constituted under the Family
Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered
by the Court of Appeals in CA-G.R. CV No. 09218
entitled "Francisco Salinas, et al. vs. Jose
Modequillo, et al.," the dispositive part of which
read as follows:
WHEREFORE, the decision
under appeal should be, as it is
hereby, reversed and set
aside. Judgment is hereby
rendered finding the
defendants-appellees Jose
Modequillo and Benito Malubay
jointly and severally liable to

plaintiffs-appellants as
hereinbelow set forth.
Accordingly, defendantsappellees are ordered to pay
jointly and severally to:

Modequillo in the office of the Provincial


Assessor of Davao del Sur; and a parcel of
agricultural land located at Dalagbong Bulacan,
Malalag, Davao del Sur containing an area of 3
hectares with a market value of P24,130.00 and
assessed value of P9,650.00 per Tax Declaration
No. 87-08-01848 registered in the name of Jose
Modequillo in the office of the Provincial
Assessor of Davao del Sur. 2

1. Plaintiffs-appellants, the
Salinas spouses:
a. the amount of P30,000.00
by way of compensation for
the death of their son Audie
Salinas;

A motion to quash and/or to set aside levy of


execution was filed by defendant Jose Modequillo
alleging therein that the residential land located
at Poblacion Malalag is where the family home is
built since 1969 prior to the commencement of
this case and as such is exempt from execution,
forced sale or attachment under Articles 152 and
153 of the Family Code except for liabilities
mentioned in Article 155 thereof, and that the
judgment debt sought to be enforced against the
family home of defendant is not one of those
enumerated under Article 155 of the Family
Code. As to the agricultural land although it is
declared in the name of defendant it is alleged
to be still part of the public land and the transfer
in his favor by the original possessor and
applicant who was a member of a cultural
minority was not approved by the proper
government agency. An opposition thereto was
filed by the plaintiffs.

b. P10,000.00 for the loss of


earnings by reason of the
death of said Audie Salinas;
c. the sum of P5,000.00 as
burial expenses of Audie
Salinas; and
d. the sum of P5,000.00 by
way of moral damages.
2. Plaintiffs-appellants CulanCulan:
a. the sum of P5,000.00 for
hospitalization expenses of
Renato Culan- Culan; and

In an order dated August 26, 1988, the trial


court denied the motion. A motion for
reconsideration thereof was filed by defendant
and this was denied for lack of merit on
September 2, 1988.

b. P5,000.00 for moral


damages.
3. Both plaintiff-appellants
Salinas and Culan-Culan,
P7,000.00 for attorney's fees
and litigation expenses.
All counterclaims and other
claims are hereby dismissed.

The said judgment having become final and


executory, a writ of execution was issued by the
Regional Trial Court of Davao City to satisfy the
said judgment on the goods and chattels of the
defendants Jose Modequillo and Benito Malubay
at Malalag, Davao del Sur.
On July 7, 1988, the sheriff levied on a parcel of
residential land located at Poblacion Malalag,
Davao del Sur containing an area of 600 square
meters with a market value of P34,550.00 and
assessed value of P7,570.00 per Tax Declaration
No. 87008-01359, registered in the name of Jose

Hence, the herein petition for review on


certiorari wherein it is alleged that the trial court
erred and acted in excess of its jurisdiction in
denying petitioner's motion to quash and/or to
set aside levy on the properties and in denying
petitioner' motion for reconsideration of the
order dated August 26, 1988. Petitioner
contends that only a question of law is involved
in this petition. He asserts that the residential
house and lot was first occupied as his family
residence in 1969 and was duly constituted as a
family home under the Family Code which took
effect on August 4, 1988. Thus, petitioner argues
that the said residential house and lot is exempt
from payment of the obligation enumerated in
Article 155 of the Family Code; and that the
decision in this case pertaining to damages
arising from a vehicular accident took place on
March 16, 1976 and which became final in 1988
is not one of those instances enumerated under
Article 155 of the Family Code when the family
home may be levied upon and sold on execution.

It is further alleged that the trial court erred in


holding that the said house and lot became a
family home only on August 4, 1988 when the
Family Code became effective, and that the
Family Code cannot be interpreted in such a way
that all family residences are deemed to have
been constituted as family homes at the time of
their occupancy prior to the effectivity of the
said Code and that they are exempt from
execution for the payment of obligations
incurred before the effectivity of said Code; and
that it also erred when it declared that Article
162 of the Family Code does not state that the
provisions of Chapter 2, Title V have a
retroactive effect.
Articles 152 and 153 of the Family Code provide
as follows:
Art. 152. The family home,
constituted jointly by the
husband and the wife or by an
unmarried head of a family, is
the dwelling house where they
and their family reside, and
the land on which it is situated.
Art. 153. The family home is
deemed constituted on a
house and lot from the time it
is occupied as a family
residence. From the time of its
constitution and so long as any
of its beneficiaries actually
resides therein, the family
home continues to be such
and is exempt from execution,
forced sale or attachment
except as hereinafter provided
and to the extent of the value
allowed by law.
Under the Family Code, a family home is deemed
constituted on a house and lot from the time it is
occupied as a family residence. There is no need
to constitute the same judicially or extrajudicially
as required in the Civil Code. If the family
actually resides in the premises, it is, therefore,
a family home as contemplated by law. Thus, the
creditors should take the necessary precautions
to protect their interest before extending credit
to the spouses or head of the family who owns
the home.
Article 155 of the Family Code also provides as
follows:

Art. 155. The family home shall


be exempt from execution,
forced sale or attachment
except:
(1) For non-payment of taxes;
(2) For debts incurred prior to
the constitution of the family
home;
(3) For debts secured by
mortgages on the premises
before or after such
constitution; and
(4) For debts due to laborers,
mechanics, architects,
builders, material men and
others who have rendered
service or furnished material
for the construction of the
building.
The exemption provided as aforestated is
effective from the time of the constitution of the
family home as such, and lasts so long as any of
its beneficiaries actually resides therein.
In the present case, the residential house and lot
of petitioner was not constituted as a family
home whether judicially or extrajudicially under
the Civil Code. It became a family home by
operation of law only under Article 153 of the
Family Code. It is deemed constituted as a family
home upon the effectivity of the Family Code on
August 3, 1988 not August 4, one year after its
publication in the Manila Chronicle on August 4,
1987 (1988 being a leap year).
The contention of petitioner that it should be
considered a family home from the time it was
occupied by petitioner and his family in 1969 is
not well- taken. Under Article 162 of the Family
Code, it is provided that "the provisions of this
Chapter shall also govern existing family
residences insofar as said provisions are
applicable." It does not mean that Articles 152
and 153 of said Code have a retroactive effect
such that all existing family residences are
deemed to have been constituted as family
homes at the time of their occupation prior to
the effectivity of the Family Code and are
exempt from execution for the payment of
obligations incurred before the effectivity of the
Family Code. Article 162 simply means that all
existing family residences at the time of the
effectivity of the Family Code, are considered

family homes and are prospectively entitled to


the benefits accorded to a family home under
the Family Code. Article 162 does not state that
the provisions of Chapter 2, Title V have a
retroactive effect.
Is the family home of petitioner exempt from
execution of the money judgment aforecited No.
The debt or liability which was the basis of the
judgment arose or was incurred at the time of
the vehicular accident on March 16, 1976 and
the money judgment arising therefrom was
rendered by the appellate court on January 29,
1988. Both preceded the effectivity of the Family
Code on August 3, 1988. This case does not fall
under the exemptions from execution provided
in the Family Code.
As to the agricultural land subject of the
execution, the trial court correctly ruled that the
levy to be made by the sheriff shall be on
whatever rights the petitioner may have on the
land.
FLORANTE F. MANACOP, petitioner,
vs.
COURT OF APPEALS and F.F. CRUZ & CO.,
INC., respondents.
FACTS:
Following the dismissal of his petition for
certiorari in C.A.-G.R. SP No. 23651 by the
Thirteenth Division of respondent Court (Justice
Buena (P), Gonzaga-Reyes and Abad Santos, Jr.,
JJ.; Page 60, Rollo), petitioner airs his concern
over the propriety thereof by claiming in the
petition at hand that the disposition, in practical
effect, allows a writ of preliminary attachment
issued by the court of origin against his
corporation to be implemented on his family
home which is ordinarily exempt from the mesne
process.
Owing to the failure to pay the sub-contract cost
pursuant to a deed of assignment signed
between petitioner's corporation and private
respondent herein, the latter filed on July 3,
1989, a complaint for a sum of money, with a
prayer for preliminary attachment, against the
former. As a consequence of the order on July
28, 1989, the corresponding writ for the
provisional remedy was issued on August 11,
1989 which triggered the attachment of a parcel
of land in Quezon City owned by Manacop
Construction President Florante F. Manacop,
herein petitioner.

In lieu of the original complaint, private


respondent submitted an amended complaint on
August 18, 1989 intended to substitute Manacop
Construction with Florante F. Manacop as
defendant who is "doing business under the
name and style of F.F. Manacop Construction Co.,
Inc.". After the motion for issuance of summons
to the substituted defendant below was granted,
petitioner filed his answer to the amended
complaint on November 20, 1989.
Petitioner's Omnibus Motion filed on September
5, 1990 grounded on (1) irregularity that
attended the issuance of the disputed writ
inspite the absence of an affidavit therefor; (2)
the feasibility of utilizing the writ prior to his
submission as party-defendant, and (3)
exemption from attachment of his family home
(page 3, Petition; page 8, Rollo), did not merit
the serious consideration of the court of origin.
This nonchalant response constrained petitioner
to elevate the matter to respondent court which,
as aforesaid, agreed with the trial court on the
strength of the ensuing observations:
Anent the petitioner's claim that the
writ of attachment was issued without
jurisdiction because of the lack of
supporting affidavit, We subscribe to
the recent ruling of the Highest Tribunal
that a verified statement incorporated
in the complaint without a separate
affidavit is sufficient and valid to obtain
the attachment (Nasser vs. Court of
Appeals, 191 SCRA 783). In the case at
bar, the original as well as the amended
complaint filed by herein private
respondent were verified, in substantial
compliance with the requirements of
the law.
Finally, the petitioner insists that the
attached property is a family home,
having been occupied by him and his
family since 1972, and is therefore
exempt from attachment.
The contention is not well-taken.
While Article 153 of the Family Code
provides that the family home is
deemed constituted on a house and lot
from the time it is occupied as a family
residence, it does not mean that said
article has a retroactive effect such that
all existing family residences,
petitioner's included, are deemed to
have been constituted as family homes

at the time of their occupation prior to


the effectivity of the Family Code and
henceforth, are exempt from execution
for the payment of obligations incurred
before the effectivity of the Family Code
on August 3, 1988 (Mondequillo vs.
Breva, 185 SCRA 766). Neither does
Article 162 of said Code state that the
provisions of Chapter 2, Title V thereof
have retroactive effect. It simply means
that all existing family residences at the
time of the effectivity of the Family
Code are considered family homes and
are prospectively entitled to the
benefits accorded to a family home
under the Family Code (Mondequillo vs.
Breva, supra). Since petitioner's debt
was incurred as early as November 25,
1987, it preceded the effectivity of the
Family Code. His property is therefore
not exempt from attachment (Annex
"O", Plaintiff's Position Paper and
Memorandum of Authorities, p. 78). (pp.
5-6, Decision; pp. 64-65, Rollo).
The attempt to reconsider respondent court's
stance was to no avail (page 75, Rollo); hence,
the petition at bar.
Did respondent court err in dismissing the
challenge posed by petitioner against the denial
of his omnibus motion?
We are not ready to accept the negative
aspersions put forward by petitioner against
respondent court in the petition before Us.
Petitioner harps on the supposition that the
appellate court should not have pierced the veil
of corporate fiction because he is distinct from
the personality of his corporation and, therefore,
the writ of attachment issued against the
corporation cannot be used to place his own
family home in custodia legis. This puerile
argument must suffer rejection since the
doctrine in commercial law adverted to and
employed in exculpation by petitioner, during
the pendency of his petition for certiorari in the
appellate court and even at this stage, may not
be permitted to simply sprout from nowhere for
such subtle experiment is prescribed by the
omnibus motion rule under Section 8, Rule 15 of
the Revised Rules of Court, thus:

A motion attacking a pleading


or a proceeding shall include
all objections then available,
and all objections not so
included shall be deemed
waived.
The spirit that surrounds the foregoing statutory
norm is to require the movant to raise all
available exceptions for relief during a single
opportunity so that multiple and piece-meal
objections may be avoided (Rafanan, et al. vs.
Rafanan, 98 Phil. 162 [1955]; 1 Martin, Rules of
Court with Notes and Comments, 1989 Rev.
Edition, p. 492; Savit vs. Rodas, 73 Phil. 310
[1941]).
Another mistaken notion entertained by
petitioner concerns the impropriety of issuing
the writ of attachment on August 11, 1989 when
he "was not yet a defendant in this case." This
erroneous perception seems to suggest that
jurisdiction over the person of petitioner, as
defendant below, must initially attach before the
provisional remedy involved herein can be
requested by a plaintiff.
Petitioner seeks to capitalize on the legal
repercussion that ipso facto took place when the
complaint against him was amended. He proffers
the idea that the extinction of a complaint via a
superseding one carries with it the cessation of
the ancilliary writ of preliminary attachment. We
could have agreed with petitioner along this line
had he expounded the adverse aftermath of an
amended complaint in his omnibus motion. But
the four corners of his motion in this respect
filed on September 5, 1990 are circumscribed by
other salient points set forth by Us relative to the
propriety of the assailed writ itself. This being so,
petitioner's eleventh hour effort in pressing a
crucial factor for exculpation must be rendered
ineffective and barred by the omnibus motion
rule.
Lastly, petitioner is one of the belief that his
abode at Quezon City since 1972 is a family
home within the purview of the Family Code and
therefore should not have been subjected to the
vexatious writ. Yet, petitioner must concede that
respondent court properly applied the discussion
conveyed by Justice Gancayco in this regard
when he spoke for the First Division of this Court
in Modequillo vs. Breva (185 SCRA 766 [1990])
that:
Article 155 of the Family Code also
provides as follows:

Art. 155. The family home shall be


exempt from execution, forced sale
or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the
constitution of the family home;
(3) For debts secured by mortgages
on the premises before or after
such constitution; and
(4) For debts due to laborers,
mechanics, architects, builders,
materialmen and others who have
rendered service for the
construction of the building.
The exemption provided as
aforestated is effective from
the time of the constitution of
the family home as such, and
lasts so long as any of its
beneficiaries actually resides
therein.
In the present case, the
residential house and lot of
petitioner was constituted as a
family home whether judicially
or extrajudicially under the
Civil Code. It became a family
home by operation of law
under Article 153 of the Family
Code. It is deemed constituted
as a family home upon the
effectivity of the Family Code
on August 3, 1988 not August
4, one year after its publication
in the Manila Chronicle on
August 4, 1987 (1988 being a
leap year).
The contention of petitioner
that it should be considered a
family home from the time it
was occupied by petitioner and
his family in 1969 is not welltaken. Under Article 162 of the
Family Code, it is provided that
"the provisions of this Chapter
shall also govern existing
family residences insofar as
said provisions are applicable."
It does not mean that Articles
152 and 153 of said Code have
a retroactive effect such that

all existing family residences


are deemed to have been
constituted as family homes at
the time of their occupation
prior to the effectivity of the
Family Code and are exempt
from execution for the
payment of obligations
incurred before the effectivity
of the Family Code. Article 162
simply means that all existing
family residences at the time
of the effectivity of the Family
Code, are considered family
homes and are prospectively
entitled to the benefits
accorded to a family home
under the Family Code. Article
162 does not state that the
provisions of Chapter 2, Title V
have a retroactive effect.
Is the family home of
petitioner exempt from
execution of the money
judgment aforecited? No. The
debt or liability which was the
basis of the judgment arose or
was incurred at the time of the
vehicular accident on March
16, 1976 and the money
judgment arising therefrom
was rendered by the appellate
court on January 29, 1988.
Both preceded the effectivity
of the Family Code on August
3, 1988. This case does not fall
under the exemptions from
execution provided in the
Family Code. (at pp. 771-772).
Verily, according to petitioner, his debt was
incurred in 1987 or prior to the effectivity on
August 3, 1988 of the Family Code (page 17,
petition; page 22, Rollo). This fact alone will
militate heavily against the so-called exemption
by sheer force of exclusion embodied under
paragraph 2, Article 155 of the Family Code cited
in Modequillo.
PERLA G. PATRICIO, Petitioner,
vs.
MARCELINO G. DARIO III and THE
HONORABLE COURT OF APPEALS, Second
Division, Respondents.
On July 5, 1987, Marcelino V. Dario died
intestate. He was survived by his wife, petitioner
Perla G. Patricio and their two sons, Marcelino

Marc Dario and private respondent Marcelino G.


Dario III. Among the properties he left was a
parcel of land with a residential house and a preschool building built thereon situated at 91
Oxford corner Ermin Garcia Streets in Cubao,
Quezon City, as evidenced by Transfer Certificate
of Title (TCT) No. RT-30731 (175992) of the
Quezon City Registry of Deeds, covering an area
of seven hundred fifty five (755) square meters,
more or less.2
On August 10, 1987, petitioner, Marcelino Marc
and private respondent, extrajudicially settled
the estate of Marcelino V. Dario. Accordingly, TCT
No. RT-30731 (175992) was cancelled and TCT
No. R-213963 was issued in the names of
petitioner, private respondent and Marcelino
Marc.
Thereafter, petitioner and Marcelino Marc
formally advised private respondent of their
intention to partition the subject property and
terminate the co-ownership. Private respondent
refused to partition the property hence petitioner
and Marcelino Marc instituted an action for
partition before the Regional Trial Court of
Quezon City which was docketed as Civil Case
No. Q-01-44038 and raffled to Branch 78.
On October 3, 2002,3 the trial court ordered the
partition of the subject property in the following
manner: Perla G. Patricio, 4/6; Marcelino Marc G.
Dario, 1/6; and Marcelino G. Dario III, 1/6. The
trial court also ordered the sale of the property
by public auction wherein all parties concerned
may put up their bids. In case of failure, the
subject property should be distributed
accordingly in the aforestated manner.4
Private respondent filed a motion for
reconsideration which was denied by the trial
court on August 11, 2003,5 hence he appealed
before the Court of Appeals, which denied the
same on October 19, 2005. However, upon a
motion for reconsideration filed by private
respondent on December 9, 2005, the appellate
court partially reconsidered the October 19,
2005 Decision. In the now assailed Resolution,
the Court of Appeals dismissed the complaint for
partition filed by petitioner and Marcelino Marc
for lack of merit. It held that the family home
should continue despite the death of one or both
spouses as long as there is a minor beneficiary
thereof. The heirs could not partition the
property unless the court found compelling
reasons to rule otherwise. The appellate court
also held that the minor son of private
respondent, who is a grandson of spouses

Marcelino V. Dario and Perla G. Patricio, was a


minor beneficiary of the family home.6
ISSUE: whether partition of the family home is
proper where one of the co-owners refuse to
accede to such partition on the ground that a
minor beneficiary still resides in the said home.
Private respondent claims that the subject
property which is the family home duly
constituted by spouses Marcelino and Perla Dario
cannot be partitioned while a minor beneficiary
is still living therein namely, his 12-year-old son,
who is the grandson of the decedent. He argues
that as long as the minor is living in the family
home, the same continues as such until the
beneficiary becomes of age. Private respondent
insists that even after the expiration of ten years
from the date of death of Marcelino on July 5,
1987, i.e., even after July 1997, the subject
property continues to be considered as the
family home considering that his minor son,
Marcelino Lorenzo R. Dario IV, who is a
beneficiary of the said family home, still resides
in the premises.
On the other hand, petitioner alleges that the
subject property remained as a family home of
the surviving heirs of the late Marcelino V. Dario
only up to July 5, 1997, which was the 10th year
from the date of death of the decedent.
Petitioner argues that the brothers Marcelino
Marc and private respondent Marcelino III were
already of age at the time of the death of their
father,8 hence there is no more minor beneficiary
to speak of.
The family home is a sacred symbol of family
love and is the repository of cherished memories
that last during ones lifetime.9 It is the dwelling
house where husband and wife, or by an
unmarried head of a family, reside, including the
land on which it is situated.10 It is constituted
jointly by the husband and the wife or by an
unmarried head of a family.11 The family home is
deemed constituted 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.12
The law explicitly provides that occupancy of the
family home either by the owner thereof or by
"any of its beneficiaries" must be actual. That
which is "actual" is something real, or actually

existing, as opposed to something merely


possible, or to something which is presumptive
or constructive. Actual occupancy, however,
need not be by the owner of the house
specifically. Rather, the property may be
occupied by the "beneficiaries" enumerated in
Article 154 of the Family Code, which may
include the in-laws where the family home is
constituted jointly by the husband and wife. But
the law definitely excludes maids and overseers.
They are not the beneficiaries contemplated by
the Code.13
Article 154 of the Family Code enumerates who
are the beneficiaries of a family home: (1) The
husband and wife, or an unmarried person who
is the head of a family; and (2) Their parents,
ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or
illegitimate, who are living in the family home
and who depend upon the head of the family for
legal support.
To be a beneficiary of the family home, three
requisites must concur: (1) they must be among
the relationships enumerated in Art. 154 of the
Family Code; (2) they live in the family home;
and (3) they are dependent for legal support
upon the head of the family.
Moreover, Article 159 of the Family Code
provides that 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
10 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.
Article 159 of the Family Code applies in
situations where death occurs to persons who
constituted the family home.1wphi1 Dr. Arturo
M. Tolentino comments on the effect of death of
one or both spouses or the unmarried head of a
family on the continuing existence of the family
home:
Upon the death of the spouses or the unmarried
family head who constituted the family home, or
of the spouse who consented to the constitution
of his or her separate property as family home,
the property will remain as family home for ten
years or for as long as there is a minor
beneficiary living in it. If there is no more
beneficiary left at the time of death, we
believe the family home will be dissolved

or cease, because there is no more reason


for its existence. If there are beneficiaries
who survive living in the family home, it
will continue for ten years, unless at the
expiration of the ten years, there is still a
minor beneficiary, in which case the family
home continues until that beneficiary
becomes of age.
After these periods lapse, the property may be
partitioned by the heirs. May the heirs who are
beneficiaries of the family home keep it intact by
not partitioning the property after the period
provided by this article? We believe that
although the heirs will continue in
ownership by not partitioning the property,
it will cease to be a family home.14
(Emphasis supplied)
Prof. Ernesto L. Pineda further explains the
import of Art. 159 in this manner:
The family home shall continue to exist despite
the death of one or both spouses or of the
unmarried head of the family. Thereafter, the
length of its continued existence is dependent
upon whether there is still a minorbeneficiary residing therein. For as long as
there is one beneficiary even if the head of
the family or both spouses are already
dead, the family home will continue to
exist (Arts. 153, 159). If there is no minorbeneficiary, it will subsist until 10 years
and within this period, the heirs cannot
partition the same except when there are
compelling reasons which will justify the
partition. This rule applies regardless of
whoever owns the property or who constituted
the family home.15 (Emphasis supplied)
The rule in Article 159 of the Family Code may
thus be expressed in this wise: If there are
beneficiaries who survive and are living in the
family home, it will continue for 10 years, unless
at the expiration of 10 years, there is still a
minor beneficiary, in which case the family home
continues until that beneficiary becomes of age.
It may be deduced from the view of Dr. Tolentino
that as a general rule, the family home may be
preserved for a minimum of 10 years following
the death of the spouses or the unmarried family
head who constituted the family home, or of the
spouse who consented to the constitution of his
or her separate property as family home. After
10 years and a minor beneficiary still lives
therein, the family home shall be preserved only
until that minor beneficiary reaches the age of

majority. The intention of the law is to safeguard


and protect the interests of the minor
beneficiary until he reaches legal age and would
now be capable of supporting himself. However,
three requisites must concur before a minor
beneficiary is entitled to the benefits of Art. 159:
(1) the relationship enumerated in Art. 154 of
the Family Code; (2) they live in the family
home, and (3) they are dependent for legal
support upon the head of the family.
Thus, the issue for resolution now is whether
Marcelino Lorenzo R. Dario IV, the minor son of
private respondent, can be considered as a
beneficiary under Article 154 of the Family Code.
As to the first requisite, the beneficiaries of the
family home are: (1) The husband and wife, or
an unmarried person who is the head of a family;
and (2) Their parents, ascendants, descendants,
brothers and sisters, whether the relationship be
legitimate or illegitimate. The term
"descendants" contemplates all descendants of
the person or persons who constituted the family
home without distinction; hence, it must
necessarily include the grandchildren and great
grandchildren of the spouses who constitute a
family home. Ubi lex non distinguit nec nos
distinguire debemos. Where the law does not
distinguish, we should not distinguish. Thus,
private respondents minor son, who is also the
grandchild of deceased Marcelino V. Dario
satisfies the first requisite.
As to the second requisite, minor beneficiaries
must be actually living in the family home to
avail of the benefits derived from Art. 159.
Marcelino Lorenzo R. Dario IV, also known as Ino,
the son of private respondent and grandson of
the decedent Marcelino V. Dario, has been living
in the family home since 1994, or within 10
years from the death of the decedent, hence, he
satisfies the second requisite.
However, as to the third requisite, Marcelino
Lorenzo R. Dario IV cannot demand support from
his paternal grandmother if he has parents who
are capable of supporting him. The liability for
legal support falls primarily on Marcelino Lorenzo
R. Dario IVs parents, especially his father, herein
private respondent who is the head of his
immediate family. The law first imposes the
obligation of legal support upon the shoulders of
the parents, especially the father, and only in
their default is the obligation imposed on the
grandparents.

Marcelino Lorenzo R. Dario IV is dependent on


legal support not from his grandmother, but from
his father.1wphi1 Thus, despite residing in the
family home and his being a descendant of
Marcelino V. Dario, Marcelino Lorenzo R. Dario IV
cannot be considered as beneficiary
contemplated under Article 154 because he did
not fulfill the third requisite of being dependent
on his grandmother for legal support. It is his
father whom he is dependent on legal support,
and who must now establish his own family
home separate and distinct from that of his
parents, being of legal age.
Legal support, also known as family support, is
that which is provided by law, comprising
everything indispensable for sustenance,
dwelling, clothing, medical attendance,
education and transportation, in keeping with
the financial capacity of the family.16 Legal
support has the following characteristics: (1) It is
personal, based on family ties which bind the
obligor and the obligee; (2) It is intransmissible;
(3) It cannot be renounced; (4) It cannot be
compromised; (5) It is free from attachment or
execution; (6) It is reciprocal; (7) It is variable in
amount.17
Professor Pineda is of the view that
grandchildren cannot demand support directly
from their grandparents if they have parents
(ascendants of nearest degree) who are capable
of supporting them. This is so because we have
to follow the order of support under Art. 199.18
We agree with this view.
The reasons behind Art. 199 as explained by
Pineda and Tolentino: the closer the relationship
of the relatives, the stronger the tie that binds
them. Thus, the obligation to support under Art.
199 which outlines the order of liability for
support is imposed first upon the shoulders of
the closer relatives and only in their default is
the obligation moved to the next nearer relatives
and so on.
There is no showing that private respondent is
without means to support his son; neither is
there any evidence to prove that petitioner, as
the paternal grandmother, was willing to
voluntarily provide for her grandsons legal
support. On the contrary, herein petitioner filed
for the partition of the property which shows an
intention to dissolve the family home, since
there is no more reason for its existence after
the 10-year period ended in 1997.

With this finding, there is no legal impediment to


partition the subject property.
The law does not encourage co-ownerships
among individuals as oftentimes it results in
inequitable situations such as in the instant
case. Co-owners should be afforded every
available opportunity to divide their co-owned
property to prevent these situations from arising.
As we ruled in Santos v. Santos,19 no co-owner
ought to be compelled to stay in a co-ownership
indefinitely, and may insist on partition on the
common property at any time. An action to
demand partition is imprescriptible or cannot be
barred by laches. Each co-owner may demand at
any time the partition of the common property. 20
Since the parties were unable to agree on a
partition, the court a quo should have ordered a
partition by commissioners pursuant to Section
3, Rule 69 of the Rules of Court. Not more than
three competent and disinterested persons
should be appointed as commissioners to make
the partition, commanding them to set off to the
plaintiff and to each party in interest such part
and proportion of the property as the court shall
direct.
When it is made to appear to the commissioners
that the real estate, or a portion thereof, cannot
be divided without great prejudice to the interest
of the parties, the court may order it assigned to
one of the parties willing to take the same,
provided he pays to the other parties such sum
or sums of money as the commissioners deem

equitable, unless one of the parties interested


ask that the property be sold instead of being so
assigned, in which case the court shall order the
commissioners to sell the real estate at public
sale, and the commissioners shall sell the same
accordingly.21
The partition of the subject property should be
made in accordance with the rule embodied in
Art. 996 of the Civil Code.22 Under the law of
intestate succession, if the widow and legitimate
children survive, the widow has the same share
as that of each of the children. However, since
only one-half of the conjugal property which is
owned by the decedent is to be allocated to the
legal and compulsory heirs (the other half to be
given exclusively to the surviving spouse as her
conjugal share of the property), the widow will
have the same share as each of her two
surviving children. Hence, the respective shares
of the subject property, based on the law on
intestate succession are: (1) Perla Generosa
Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6 and
(3) Marcelino G. Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals,23 we held
that an action for partition is at once an action
for declaration of co-ownership and for
segregation and conveyance of a determinate
portion of the properties involved. If the court
after trial should find the existence of coownership among the parties, the court may and
should order the partition of the properties in the
same action.24

Vous aimerez peut-être aussi