G.R. No.

L-28394 November 26, 1970

PEDRO GAYON, plaintiff-appellant,

vs.
SILVESTRE GAYON and GENOVEVA DE GAYON, defendants-appellees.

German M. Lopez for plaintiff-appellant.

Pedro R. Davila for defendants-appellees.

CONCEPCION, C.J.:

Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of First Instance of Iloilo dismissing his complaint in
Civil Case No. 7334 thereof.

The records show that on July 31, 1967, Pedro Gayon filed said complaint against the spouses Silvestre Gayon and
Genoveva de Gayon, alleging substantially that, on October 1, 1952, said spouses executed a deed copy of which was
attached to the complaint, as Annex "A" whereby they sold to Pedro Gelera, for the sum of P500.00, a parcel of
unregistered land therein described, and located in the barrio of Cabubugan, municipality of Guimbal, province of Iloilo,
including the improvements thereon, subject to redemption within five (5) years or not later than October 1, 1957; that
said right of redemption had not been exercised by Silvestre Gayon, Genoveva de Gayon, or any of their heirs or
successors, despite the expiration of the period therefor; that said Pedro Gelera and his wife Estelita Damaso had, by
virtue of a deed of sale copy of which was attached to the complaint, as Annex "B" dated March 21, 1961, sold the
aforementioned land to plaintiff Pedro Gayon for the sum of P614.00; that plaintiff had, since 1961, introduced thereon
improvements worth P1,000; that he had, moreover, fully paid the taxes on said property up to 1967; and that Articles
1606 and 1616 of our Civil Code require a judicial decree for the consolidation of the title in and to a land acquired
through a conditional sale, and, accordingly, praying that an order be issued in plaintiff's favor for the consolidation of
ownership in and to the aforementioned property.

In her answer to the complaint, Mrs. Gayon alleged that her husband, Silvestre Gayon, died on January 6, 1954, long
before the institution of this case; that Annex "A" to the complaint is fictitious, for the signature thereon purporting to
be her signature is not hers; that neither she nor her deceased husband had ever executed "any document of whatever
nature in plaintiff's favor"; that the complaint is malicious and had embarrassed her and her children; that the heirs of
Silvestre Gayon had to "employ the services of counsel for a fee of P500.00 and incurred expenses of at least P200.00";
and that being a brother of the deceased Silvestre Gayon, plaintiff "did not exert efforts for the amicable settlement of
the case" before filing his complaint. She prayed, therefore, that the same be dismissed and that plaintiff be sentenced
to pay damages.

Soon later, she filed a motion to dismiss, reproducing substantially the averments made in her answer and stressing
that, in view of the death of Silvestre Gayon, there is a "necessity of amending the complaint to suit the genuine facts on
record." Presently, or on September 16, 1967, the lower court issued the order appealed from, reading:

Considering the motion to dismiss and it appearing from Exhibit "A" annexed to the complaint that Silvestre Gayon is the
absolute owner of the land in question, and considering the fact that Silvestre Gayon is now dead and his wife Genoveva
de Gayon has nothing to do with the land subject of plaintiff's complaint, as prayed for, this case is hereby dismissed,
without pronouncement as to costs.1

A reconsideration of this order having been denied, plaintiff interposed the present appeal, which is well taken.
Said order is manifestly erroneous and must be set aside. To begin with, it is not true that Mrs. Gayon "has nothing to do
with the land subject of plaintiff's complaint." As the widow of Silvestre Gayon, she is one of his compulsory heirs 2and
has, accordingly, an interest in the property in question. Moreover, her own motion to dismiss indicated merely "a
necessity of amending the complaint," to the end that the other successors in interest of Silvestre Gayon, instead of the
latter, be made parties in this case. In her opposition to the aforesaid motion for reconsideration of the plaintiff, Mrs.
Gayon alleged, inter alia, that the "heirs cannot represent the dead defendant, unless there is a declaration of heirship."
Inasmuch, however, as succession takes place, by operation of law, "from the moment of the death of the
decedent" 3and "(t)he inheritance includes all the property, rights and obligations of a person which are not extinguished
by his death," 4it follows that if his heirs were included as defendants in this case, they would be sued, not as
"representatives" of the decedent, but as owners of an aliquot interest in the property in question, even if the precise
extent of their interest may still be undetermined and they have derived it from the decent. Hence, they may be sued
without a previous declaration of heirship, provided there is no pending special proceeding for the settlement of the
estate of the decedent. 5

As regards plaintiff's failure to seek a compromise, as an alleged obstacle to the present case, Art. 222 of our Civil Code
provides:

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.

It is noteworthy that the impediment arising from this provision applies to suits "filed or maintained between members
of the same family." This phrase, "members of the same family," should, however, be construed in the light of Art. 217
of the same Code, pursuant to which:

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.

Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews and/or nieces. Inasmuch as none of them is
included in the enumeration contained in said Art. 217 which should be construed strictly, it being an exception to the
general rule and Silvestre Gayon must necessarily be excluded as party in the case at bar, it follows that the same
does not come within the purview of Art. 222, and plaintiff's failure to seek a compromise before filing the complaint
does not bar the same.

WHEREFORE, the order appealed from is hereby set aside and the case remanded to the lower court for the inclusion, as
defendant or defendants therein, of the administrator or executor of the estate of Silvestre Gayon, if any, in lieu of the
decedent, or, in the absence of such administrator or executor, of the heirs of the deceased Silvestre Gayon, and for
further proceedings, not inconsistent with this decision, with the costs of this instance against defendant-appellee,
Genoveva de Gayon. It is so ordered.
GR No. L-28394, November 26, 1970

FACTS: The records show that on July 31, 1967, Pedro Gayon filed said complaint against the spouses Silvestre Gayon
and Genoveva de Gayon, alleging substantially that, on October 1, 1952, said spouses executed a deed copy of which
was attached to the complaint, as Annex A whereby they sold to Pedro Gelera, for the sum of P500.00, a parcel of
unregistered land therein described, and located in the barrio of Cabubugan, municipality of Guimbal, province of Iloilo,
including the improvements thereon, subject to redemption within five (5) years or not later than October 1, 1957; that
said right of redemption had not been exercised by Silvestre Gayon, Genoveva de Gayon, or any of their heirs or
successors, despite the expiration of the period therefor; that said Pedro Gelera and his wife Estelita Damaso had, by
virtue of a deed of sale copy of which was attached to the complaint, as Annex B dated March 21, 1961, sold the
aforementioned land to plaintiff Pedro Gayon for the sum of P614.00; that plaintiff had, since 1961, introduced thereon
improvements worth P1,000; that he had, moreover, fully paid the taxes on said property up to 1967; and that Articles
1606 and 1616 of our Civil Code require a judicial decree for the consolidation of the title in and to a land acquired
through a conditional sale, and, accordingly, praying that an order be issued in plaintiffs favor for the consolidation of
ownership in and to the aforementioned property. In her answer to the complaint, Mrs. Gayon alleged that her
husband, Silvestre Gayon, died on January 6, 1954, long before the institution of this case; that Annex A to the
complaint is fictitious, for the signature thereon purporting to be her signature is not hers; that neither she nor her
deceased husband had ever executed any document of whatever nature in plaintiffs favor; that the complaint is
malicious and had embarrassed her and her children; that the heirs of Silvestre Gayon had to employ the services of
counsel for a fee of P500.00 and incurred expenses of at least P200.00; and that being a brother of the deceased
Silvestre Gayon, plaintiff did not exert efforts for the amicable settlement of the case before filing his complaint. She
prayed, therefore, that the same be dismissed and that plaintiff be sentenced to pay damages.

ISSUE : Whether or not the contention of the Mr.Gayon that an earnest effort toward a compromise before the filing of
the suit is tenable.

HELD: As regards plaintiffs failure to seek a compromise, as an alleged obstacle to the present case, Art. 222 of our Civil
Code provides: 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. It is noteworthy that the impediment arising from this provision applies to suits filed or maintained between
members of the same family. This phrase, members of the same family, should, however, be construed in the light of
Art. 217 of the same Code, pursuant to which:
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.

Mrs. Gayon is plaintiffs sister-in-law, whereas her children are his nephews and/or nieces. Inasmuch as none of them is
included in the enumeration contained in said Art. 217 which should be construed strictly, it being an exception to the
general rule and Silvestre Gayon must necessarily be excluded as party in the case at bar, it follows that the same
does not come within the purview of Art. 222, and plaintiffs failure to seek a compromise before filing the complaint
does not bar the same.

WHEREFORE, the order appealed from is hereby set aside and the case remanded to the lower court for the inclusion, as
defendant or defendants therein, of the administrator or executor of the estate of Silvestre Gayon, if any, in lieu of the
decedent, or, in the absence of such administrator or executor, of the heirs of the deceased Silvestre Gayon, and for
further proceedings, not inconsistent with this decision, with the costs of this instance against defendant-appellee,
Genoveva de Gayon. It is so ordered.
[G.R. No. 129242. January 16, 2001]

PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S. MANALO, and ISABELITA MANALO, petitioners,
vs. HON. COURT OF APPEALS, HON. REGIONAL TRIAL COURT OF MANILA (BRANCH 35), PURITA S. JAYME, MILAGROS
M. TERRE, BELEN M. ORILLANO, ROSALINA M. ACUIN, ROMEO S. MANALO, ROBERTO S. MANALO, AMALIA MANALO
and IMELDA MANALO, respondents.

DECISION

DE LEON, JR., J.:

This is a petition for review on certiorari filed by petitioners Pilar S. Vda. De Manalo, et. al., seeking to annul the
Resolution[1] of the Court of Appeals[2] affirming the Orders[3] of the Regional Trial Court and the Resolution[4]which
denied petitioners motion for reconsideration.

The antecedent facts[5] are as follows:

Troadio Manalo, a resident of 1966 Maria Clara Street, Sampaloc, Manila died intestate on February 14, 1992. He was
survived by his wife, Pilar S. Manalo, and his eleven (11) children, namely: Purita M. Jayme, Antonio Manalo, Milagros M.
Terre, Belen M. Orillano, Isabelita Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo, Orlando
Manalo, and Imelda Manalo, who are all of legal age.

At the time of his death on February 14, 1992, Troadio Manalo left several real properties located in Manila and in the
province of Tarlac including a business under the name and style Manalos Machine Shop with offices at No. 19 Calavite
Street, La Loma, Quezon City and at No. 45 Gen. Tinio Street, Arty Subdivision, Valenzuela, Metro Manila.

On November 26, 1992, herein respondents, who are eight (8) of the surviving children of the late Troadio Manalo,
namely: Purita, Milagros, Belen, Rosalina, Romeo, Roberto, Amalia, and Imelda filed a petition[6] with the respondent
Regional Trial Court of Manila[7] for the judicial settlement of the estate of their late father, Troadio Manalo, and for the
appointment of their brother, Romeo Manalo, as administrator thereof.

On December 15, 1992, the trial court issued an order setting the said petition for hearing on February 11, 1993 and
directing the publication of the order for three (3) consecutive weeks in a newspaper of general circulation in Metro
Manila, and further directing service by registered mail of the said order upon the heirs named in the petition at their
respective addresses mentioned therein.

On February 11, 1993, the date set for hearing of the petition, the trial court issued an order declaring the whole world
in default, except the government, and set the reception of evidence of the petitioners therein on March 16,
1993.However, this order of general default was set aside by the trial court upon motion of herein petitioners
(oppositors therein) namely: Pilar S. Vda. De Manalo, Antonio, Isabelita and Orlando who were granted ten (10) days
within which to file their opposition to the petition.

Several pleadings were subsequently filed by herein petitioners, through counsel, culminating in the filing of an Omnibus
Motion[8] on July 23, 1993 seeking: (1) to set aside and reconsider the Order of the trial court dated July 9, 1993 which
denied the motion for additional extension of time to file opposition; (2) to set for preliminary hearing their affirmative
defenses as grounds for dismissal of the case; (3) to declare that the trial court did not acquire jurisdiction over the
persons of the oppositors; and (4) for the immediate inhibition of the presiding judge.

On July 30, 1993, the trial court issued an order[9] which resolved, thus:
A. To admit the so-called Opposition filed by counsel for the oppositors on July 20, 1993, only for the purpose of
considering the merits thereof;

B. To deny the prayer of the oppositors for a preliminary hearing of their affirmative defenses as ground for the
dismissal of this proceeding, said affirmative defenses being irrelevant and immaterial to the purpose and issue of the
present proceeding;

C. To declare that this court has acquired jurisdiction over the persons of the oppositors;

D. To deny the motion of the oppositors for the inhibition of this Presiding Judge;

E. To set the application of Romeo Manalo for appointment as regular administrator in the intestate estate of the
deceased Troadio Manalo for hearing on September 9, 1993 at 2:00 oclock in the afternoon.

Herein petitioners filed a petition for certiorari under Rule 65 of the Rules of Court with the Court of Appeals, docketed
as CA-G.R. SP. No. 39851, after their motion for reconsideration of the Order dated July 30, 1993 was denied by the trial
court in its Order[10] dated September 15, 1993. In their petition for certiorari with the appellate court, they contend
that: (1) the venue was improperly laid in SP. PROC. No. 92-63626; (2) the trial court did not acquire jurisdiction over
their persons; (3) the share of the surviving spouse was included in the intestate proceedings; (4) there was absence of
earnest efforts toward compromise among members of the same family; and (5) no certification of non-forum shopping
was attached to the petition.

Finding the contentions untenable, the Court of Appeals dismissed the petition for certiorari in its
Resolution[11] promulgated on September 30, 1996. On May 6, 1997 the motion for reconsideration of the said
resolution was likewise dismissed.[12]

The only issue raised by herein petitioners in the instant petition for review is whether or not the respondent Court of
Appeals erred in upholding the questioned orders of the respondent trial court which denied their motion for the
outright dismissal of the petition for judicial settlement of estate despite the failure of the petitioners therein to aver
that earnest efforts toward a compromise involving members of the same family have been made prior to the filing of
the petition but that the same have failed.

Herein petitioners claim that the petition in SP. PROC No. 92-63626 is actually an ordinary civil action involving members
of the same family. They point out that it contains certain averments which, according to them, are indicative of its
adversarial nature, to wit:

xxx

Par. 7. One of the surviving sons, ANTONIO MANALO, since the death of his father, TROADIO MANALO, had not made
any settlement, judicial or extra-judicial of the properties of the deceased father, TROADIO MANALO.

Par. 8. xxx the said surviving son continued to manage and control the properties aforementioned, without proper
accounting, to his own benefit and advantage xxx.

xxx

Par. 12. That said ANTONIO MANALO is managing and controlling the estate of the deceased TROADIO MANALO to his
own advantage and to the damage and prejudice of the herein petitioners and their co-heirs xxx.

xxx
Par. 14. For the protection of their rights and interests, petitioners were compelled to bring this suit and were forced to
litigate and incur expenses and will continue to incur expenses of not less than, P250,000.00 and engaged the services of
herein counsel committing to pay P200,000.00 as and for attorneys fees plus honorarium of P2,500.00 per appearance
in court xxx.[13]

Consequently, according to herein petitioners, the same should be dismissed under Rule 16, Section 1(j) of the Revised
Rules of Court which provides that a motion to dismiss a complaint may be filed on the ground that a condition
precedent for filing the claim has not been complied with, that is, that the petitioners therein failed to aver in the
petition in SP. PROC. No. 92-63626, that earnest efforts toward a compromise have been made involving members of
the same family prior to the filing of the petition pursuant to Article 222[14] of the Civil Code of the Philippines.

The instant petition is not impressed with merit.

It is a fundamental rule that, in the determination of the nature of an action or proceeding, the averments[15] and the
character of the relief sought[16] in the complaint, or petition, as in the case at bar, shall be controlling. A careful scrutiny
of the Petition for Issuance of Letters of Administration, Settlement and Distribution of Estate in SP. PROC. No. 92-63626
belies herein petitioners claim that the same is in the nature of an ordinary civil action. The said petition contains
sufficient jurisdictional facts required in a petition for the settlement of estate of a deceased person such as the fact of
death of the late Troadio Manalo on February 14, 1992, as well as his residence in the City of Manila at the time of his
said death. The fact of death of the decedent and of his residence within the country are foundation facts upon which all
the subsequent proceedings in the administration of the estate rest.[17] The petition in SP. PROC. No. 92-63626 also
contains an enumeration of the names of his legal heirs including a tentative list of the properties left by the deceased
which are sought to be settled in the probate proceedings. In addition, the reliefs prayed for in the said petition leave no
room for doubt as regard the intention of the petitioners therein (private respondents herein) to seek judicial
settlement of the estate of their deceased father, Troadio Manalo, to wit:

PRAYER

WHEREFORE, premises considered, it is respectfully prayed for of this Honorable Court:

(a) That after due hearing, letters of administration be issued to petitioner ROMEO MANALO for the administration of
the estate of the deceased TORADIO MANALO upon the giving of a bond in such reasonable sum that this Honorable
Court may fix.

(b) That after all the properties of the deceased TROADIO MANALO have been inventoried and expenses and just debts,
if any, have been paid and the legal heirs of the deceased fully determined, that the said estate of TROADIO MANALO be
settled and distributed among the legal heirs all in accordance with law.

c) That the litigation expenses o these proceedings in the amount of P250,000.00 and attorneys fees in the amount of
P300,000.00 plus honorarium of P2,500.00 per appearance in court in the hearing and trial of this case and costs of suit
be taxed solely against ANTONIO MANALO.[18]

Concededly, the petition in SP. PROC. No. 92-63626 contains certain averments which may be typical of an ordinary civil
action. Herein petitioners, as oppositors therein, took advantage of the said defect in the petition and filed their so-
called Opposition thereto which, as observed by the trial court, is actually an Answer containing admissions and denials,
special and affirmative defenses and compulsory counterclaims for actual, moral and exemplary damages, plus
attorney's fees and costs[19] in an apparent effort to make out a case of an ordinary civil action an ultimately seek its
dismissal under Rule 16, Section 1(j) of the Rules of Court vis--vis, Article 222 of the Civil Code.
It is our view that herein petitioners may not be allowed to defeat the purpose of the essentially valid petition for the
settlement of the estate of the late Troadio Manalo by raising matters that are irrelevant and immaterial to the said
petition.It must be emphasized that the trial court, sitting, as a probate court, has limited and special jurisdiction[20] and
cannot hear and dispose of collateral matters and issues which may be properly threshed out only in an ordinary civil
action. In addition, the rule has always been to the effect that the jurisdiction of a court, as well as the concomitant
nature of an action, is determined by the averments in the complaint and not by the defenses contained in the
answer. If it were otherwise, it would not be too difficult to have a case either thrown out of court or its proceedings
unduly delayed by simple strategem.[21] So it should be in the instant petition for settlement of estate.

Herein petitioners argue that even if the petition in SP. PROC. No. 92-63626 were to be considered as a special
proceeding for the settlement of estate of a deceased person, Rule 16, Section 1(j) of the Rules of Court vis-a-vis Article
222 of the Civil Code of the Philippines would nevertheless apply as a ground for the dismissal of the same by virtue of
Rule 1, Section 2 of the Rules of Court which provides that the rules shall be liberally construed in order to promote their
object and to assist the parties in obtaining just, speedy and inexpensive determination of every action and proceeding.
Petitioners contend that the term proceeding is so broad that it must necessarily include special proceedings.

The argument is misplaced. Herein petitioners may not validly take refuge under the provisions of Rule 1, Section 2, of
the Rules of Court to justify the invocation of Article 222 of the Civil Code of the Philippines for the dismissal of the
petition for settlement of the estate of the deceased Troadio Manalo inasmuch as the latter provision is clear enough, to
wit:

Art. 222. No suit shall be filed or maintained between members of the same family unless it should appear that earnest
efforts toward a compromise have been made, but that the same have failed, subject to the limitations in Article 2035
(underscoring supplied).[22]

The above-quoted provision of the law is applicable only to ordinary civil actions. This is clear from the term suit that it
refers to an action by one person or persons against another or others in a court of justice in which the plaintiff pursues
the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in
equity.[23] A civil action is thus an action filed in a court of justice, whereby a party sues another for the enforcement of a
right, or the prevention or redress of a wrong.[24] Besides, an excerpt from the Report of the Code Commission
unmistakably reveals the intention of the Code Commission to make that legal provision applicable only to civil actions
which are essentially adversarial and involve members of the same family, thus:

It is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the same family. It is
necessary that every effort should be made toward a compromise before a litigation is allowed to breed hate and
passion in the family. It is known that lawsuit between close relatives generates deeper bitterness than strangers.[25]

It must be emphasized that the oppositors (herein petitioners) are not being sued in SP. PROC. No. 92-63626 for any
cause of action as in fact no defendant was impleaded therein. The Petition for Issuance of Letters of Administration,
Settlement and Distribution of Estate in SP. PROC. No. 92-63626 is a special proceeding and, as such, it is a remedy
whereby the petitioners therein seek to establish a status, a right, or a particular fact.[26] The petitioners therein (private
respondents herein) merely seek to establish the fact of death of their father and subsequently to be duly recognized as
among the heirs of the said deceased so that they can validly exercise their right to participate in the settlement and
liquidation of the estate of the decedent consistent with the limited and special jurisdiction of the probate court.

WHEREFORE, the petition in the above-entitled case, is DENIED for lack of merit. Costs against petitioners.

SO ORDERED.
G.R. No. 129242, January 16, 2001

FACTS:
Troadio Manalo died on February 14, 1992. He was survived by his wife, Pilar, and his eleven children: Purita M. Jayme,
Antonio Manalo, Milagros M. Terre, Belen M. Orillano, Isabelita Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto
Manalo, Amalia Manalo, Orlando Manalo and Imelda Manalo, who are all of legal age.
At the time of his death, Troadio left several properties located in Manila and in the province of Tarlac.
On November 26, 1992, eight of the surviving children filed a petition with the RTC of Manila for the judicial settlement
of the estate of their late father and for the appointment of their brother, Romeo Manalo, as administrator thereof.
Hearing was set on February 11, 1993 and the herein petitioners were granted 10 days within which to file their
opposition to the petition.

ISSUE: WON the case at bar is covered under Article 151 where earnest efforts toward compromise should first be made
prior the filing of the petition.

HELD:

It is a fundamental rule that in the determination of the nature of an action or proceeding, the averments and the
character of the relief were sought in the complaint or petition, shall be controlling. The careful scrutiny of the petition
for the issuance of letters of administration, settlement and distribution of the estate belies herein petitioners claim
that the same is in the nature of an ordinary civil action. The provision of Article 151 is applicable only to ordinary civil
actions. It is clear from the term suit that it refers to an action by one person or persons against another or other in a
court of justice in which the plaintiff pursues the remedy which the law affords him for the redress of an injury or
enforcement of a right. It is also the intention of the Code Commission as revealed in the Report of the Code
Commission to make the provision be applicable only to civil actions. The petition for issuance of letters of
administration, settlement, and distribution of estate is a special proceeding and as such a remedy whereby the
petitioners therein seek to establish a status, a right, or a particular fact. Hence, it must be emphasized that herein
petitioners are not being sued in such case for any cause of action as in fact no defendant was pronounced therein.

Spouses De Mesa vs Spouses Acero

G.R. No. 185064, January 16, 2012

FACTS:

Spouses De Mesa obtained a loan from Spouses Acero which was secured by a mortgage over the subject property.
When Spouses De Mesa failed to pay the loan, the property was sold at a public auction. Spouses Acero was the highest
bidder and the corresponding certificate of sale was issued to them. Thereafter, they leased the subject property to
Spouses De Mesa who then defaulted in the payment of the rent. Unable to collect the rentals due, Spouses Acero filed
a complaint for ejectment against Spouses De Mesa. In their defense, Spouses De Mesa claimed that Spouses Acero
have no right over the subject property. They deny that they are mere lessors, alleging that they are the lawful owners
of the subject property and, thus cannot be evicted therefrom. The MTC ruled in Spouses Aceros favor. Spouses De
Mesa appealed the Decision.

In the meantime, Spouses De Mesa filed a complaint with the Regional Trial Court (RTC), seeking to nullify the title of
Spouses Acero on the basis that the subject property is a family home which is exempt from execution under the Family
Code, and thus, could have not been validly levied upon for purposes of satisfying their unpaid loan. The RTC dismissed
their complaint. The Court of Appeals affirmed the Decision.
ISSUE:

Whether the subject property is exempt from execution

HELD:

It is without dispute that the family home, from the time of its constitution and so long as any of its beneficiaries actually
resides therein, is generally exempt from execution, forced sale or attachment. However, this right can be waived or be
barred by laches by the failure to set up and prove the status of the property as a family home at the time of the levy or
a reasonable time thereafter.

The settled rule is that the right to exemption or forced sale under Article 153 of the Family Code is a personal privilege
granted to the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself before the
sale of the property at public auction. It is not sufficient that the person claiming exemption merely alleges that such
property is a family home. This claim for exemption must be set up and proved to the Sheriff.

For all intents and purposes, the petitioners negligence or omission to assert their right within a reasonable time gives
rise to the presumption that they have abandoned, waived or declined to assert it. Since the exemption under Article
153 of the Family Code is a personal right, it is incumbent upon the petitioners to invoke and prove the same within the
prescribed period and it is not the sheriffs duty to presume or raise the status of the subject property as a family
home. (Spouses Araceli Oliva-De Mesa vs. Spouses Claudio F. Acero, Jr., G.R. No. 185064, 16 January 2012)

[G.R. No. 97898. August 11, 1997]

FLORANTE F. MANACOP, petitioner, vs. COURT OF APPEALS and E & L MERCANTILE, INC., respondents.

DECISION

PANGANIBAN, J.:

May a writ of execution of a final and executory judgment issued before the effectivity of the Family Code be executed
on a house and lot constituted as a family home under the provision of said Code?

Statement of the Case

This is the principal question posed by petitioner in assailing the Decision of Respondent Court of Appeals[1] in CA-G.R. SP
No. 18906 promulgated on February 21, 1990 and its Resolution promulgated on March 21, 1991, affirming the orders
issued by the trial court commanding the issuance of various writs of execution to enforce the latters decision in Civil
Case No. 53271.

The Facts

Petitioner Florante F. Manacop[2] and his wife Eulaceli purchased on March 10, 1972 a 446-square-meter residential lot
with a bungalow, in consideration of P75,000.00.[3] The property, located in Commonwealth Village, Commonwealth
Avenue, Quezon City, is covered by Transfer Certificate of Title No. 174180.

On March 17, 1986, Private Respondent E & L Mercantile, Inc. filed a complaint against petitioner and F.F. Manacop
Construction Co., Inc. before the Regional Trial Court of Pasig, Metro Manila to collect an indebtedness
of P3,359,218.45. Instead of filing an answer, petitioner and his company entered into a compromise agreement with
private respondent, the salient portion of which provides:
c. That defendants will undertake to pay the amount of P2,000,000.00 as and when their means permit, but
expeditiously as possible as their collectibles will be collected. (sic)

On April 20, 1986, the trial court rendered judgment approving the aforementioned compromise agreement. It enjoined
the parties to comply with the agreement in good faith. On July 15, 1986, private respondent filed a motion for
execution which the lower court granted on September 23, 1986. However, execution of the judgment was
delayed. Eventually, the sheriff levied on several vehicles and other personal properties of petitioner.In partial
satisfaction of the judgment debt, these chattels were sold at public auction for which certificates of sale were
correspondingly issued by the sheriff.

On August 1, 1989, petitioner and his company filed a motion to quash the alias writs of execution and to stop the
sheriff from continuing to enforce them on the ground that the judgment was not yet executory. They alleged that the
compromise agreement had not yet matured as there was no showing that they had the means to pay the indebtedness
or that their receivables had in fact been collected. They buttressed their motion with supplements and other pleadings.

On August 11, 1989, private respondent opposed the motion on the following grounds: (a) it was too late to question
the September 23, 1986 Order considering that more than two years had elapsed; (b) the second alias writ of execution
had been partially implemented; and (c) petitioner and his company were in bad faith in refusing to pay their
indebtedness notwithstanding that from February 1984 to January 5, 1989, they had collected the total amount
of P41,664,895.56. On September 21, 1989, private respondent filed an opposition to petitioner and his companys
addendum to the motion to quash the writ of execution. It alleged that the property covered by TCT No. 174180 could
not be considered a family home on the grounds that petitioner was already living abroad and that the property, having
been acquired in 1972, should have been judiciallyconstituted as a family home to exempt it from execution.

On September 26, 1989, the lower court denied the motion to quash the writ of execution and the prayers in the
subsequent pleadings filed by petitioner and his company. Finding that petitioner and his company had not paid their
indebtedness even though they collected receivables amounting to P57,224,319.75, the lower court held that the case
had become final and executory. It also ruled that petitioners residence was not exempt from execution as it was not
duly constituted as a family home, pursuant to the Civil Code.

Hence, petitioner and his company filed with the Court of Appeals a petition for certiorari assailing the lower courts
Orders of September 23, 1986 and September 26, 1989. On February 21, 1990, Respondent Court of Appeals rendered
its now questioned Decision dismissing the petition for certiorari. The appellate court quoted with approval the findings
of the lower court that: (a) the judgment based on the compromise agreement had become final and executory,
stressing that petitioner and his company had collected the total amount of P57,224,319.75 but still failed to pay their
indebtedness and (b) there was no showing that petitioners residence had been duly constituted as a family home to
exempt it from execution. On the second finding, the Court of Appeals added that:

x x x. We agree with the respondent judge that there is no showing in evidence that petitioner Maacops residence under
TCT 174180 has been duly constituted as a family home in accordance with law. For one thing, it is the clear implication
of Article 153 that the family home continues to be so deemed constituted so long as any of its beneficiaries
enumerated in Article 154 actually resides therein. Conversely, it ceases to continue as such family home if none of its
beneficiaries actually occupies it. There is no showing in evidence that any of its beneficiaries is actually residing therein.
On the other hand, the unrefuted assertion of private respondent is that petitioner Florante Maacop had already left the
country and is now, together with all the members of his family, living in West Covina, Los Angeles, California, U.S.A.

Petitioner and his company filed a motion for reconsideration of this Decision on the ground that the property covered
by TCT No. 174180 was exempt from execution. On March 21, 1991, the Court of Appeals rendered the challenged
Resolution denying the motion. It anchored its ruling on Modequillo v. Breva,[4] which held 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.

Applying the foregoing pronouncements to this case, the Court of Appeals explained:

The record of the present case shows that petitioners incurred the debt of P3,468,000.00 from private respondent
corporation on February 18, 1982 (Annex `A, Petition). The judgment based upon the compromise agreement was
rendered by the court on April 18, 1986 (Annex `C, Ibid). Paraphrasing the aforecited Modequillo case, both the debt and
the judgment preceded the effectivity of the Family Code on August 3, 1988. Verily, the case at bar does not fall under
the exemptions from execution provided under Article 155 of the Family Code.

Undeterred, petitioner filed the instant petition for review on certiorari arguing that the Court of Appeals
misapplied Modequillo. He contends that there was no need for him to constitute his house and lot as a family home for
it to be treated as such since he was and still is a resident of the same property from the time it was levied upon and up
to this moment.

The Issue

As stated in the opening sentence of this Decision, the issue in this case boils down to whether a final and executory
decision promulgated and a writ of execution issued before the effectivity of the Family Code can be executed on a
family home constituted under the provisions of the said Code.

The Courts Ruling

We answer the question in the affirmative. The Court of Appeals committed no reversible error. On the contrary, its
Decision and Resolution are supported by law and applicable jurisprudence.

No Novel Issue

At the outset, the Court notes that the issue submitted for resolution in the instant case is not entirely new. In
Manacop v. Court of Appeals,[5] petitioner himself as a party therein raised a similar question of whether this very same
property was exempt from preliminary attachment for the same excuse that it was his family home. In said case, F.F.
Cruz & Co., Inc. filed a complaint for a sum of money. As an incident in the proceedings before it, the trial court issued a
writ of attachment on the said house and lot. In upholding the trial court (and the Court of Appeals) in that case, we
ruled that petitioner incurred the indebtedness in 1987 or prior to the effectivity of the Family Code on August 3,
1988. Hence, petitioners family home was not exempt from attachment by sheer force of exclusion embodied in
paragraph 2, Article 155 of the Family Code cited in Modequillo,where the Court categorically ruled:

Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family
residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family
actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take
the necessary precautions to protect their interest before extending credit to the spouses or head of the family who
owns the home.

Article 155 of the Family Code also provides as follows:

Art. 155. The family home shall be exempt from execution, forced sale or attachment except:

(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or
furnished material for the construction of the building.

The exemption provided as aforestated is effective from the time of the constitution of the family home as such, and
lasts so long as any of its beneficiaries actually resides therein.

In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially
or extrajudicially under the Civil Code. It became a family home by operation of law only under Article 153 of the Family
Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988 not August 4,
one year after its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year).

The contention of petitioner that it should be considered a family home from the time it was occupied by petitioner and
his family in 1960 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.[6]6 (Underscoring supplied.)

Article 153 of the Family Code Has No Retroactive Effect

Petitioner contends that the trial court erred in holding that his residence was not exempt from execution in view of his
failure to show that the property involved has been duly constituted as a family home in accordance with law. He asserts
that the Family Code and Modequillo require simply the occupancy of the property by the petitioner, without need for
its judicial or extrajudicial constitution as a family home.[7]

Petitioner is only partly correct. True, under the Family Code which took effect on August 3, 1988,[8] the subject property
became his family home under the simplified process embodied in Article 153 of said
Code.However, Modequillo explicitly ruled that said provision of the Family Code does not have retroactive effect. In
other words, prior to August 3, 1988, the procedure mandated by the Civil Code[9] had to be followed for a family home
to be constituted as such. There being absolutely no proof that the subject property was judicially or extrajudicially
constituted as a family home, it follows that the laws protective mantle cannot be availed of by petitioner. Since the
debt involved herein was incurred and the assailed orders of the trial court issued prior to August 3, 1988, the petitioner
cannot be shielded by the benevolent provisions of the Family Code.

List of Beneficiary-Occupants Restricted to Those Enumerated in the Code

In view of the foregoing discussion, there is no reason to address the other arguments of petitioner other than to correct
his misconception of the law. Petitioner contends that he should be deemed residing in the family home because his
stay in the United States is merely temporary. He asserts that the person staying in the house is his overseer and that
whenever his wife visited this country, she stayed in the family home. This contention lacks merit.

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.[10] Actual occupancy, however, need not be by the owner of the
house specifically. Rather, the property may be occupied by the beneficiaries enumerated by Article 154 of the Family
Code.

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of the 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 lead support.

This enumeration may include the in-laws where the family home is constituted jointly by the husband and wife.[11] But
the law definitely excludes maids and overseers. They are not the beneficiaries contemplated by the Code.
Consequently, occupancy of a family home by an overseer like Carmencita V. Abat in this case [12] is insufficient
compliance with the law.

WHEREFORE, the petition is hereby DENIED for utter lack of merit. This Decision is immediately executory. Double costs
against petitioner.

SO ORDERED.

MANACOP VS. CAFACTS:

Owing to the failure to pay the sub-contract cost pursuant to

adeed of assignment signed between petitioner's corporation andprivate respondent herein, the latter filed on July 3,
1989, a complaint for a sum of money, with a prayer for preliminary attachment,
againstthe former. As a consequence of the order on July 28, 1989, thecorresponding writ for the provisional remedy
was issued on August11, 1989 which triggered the attachment of a parcel of land in Quezon City owned by Manacop
Construction President Florante F. Manacop, herein
petitioner. The petitioner insists that the attached property is a familyhome, having been occupied by him and his family
since 1972, and is therefore exempt from attachment.

ISSUE:

That the parcel of land is a Family Home and cannot be subject for attachment.

HELD: Petitioner 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 familyhome;(3) For debts secured by mortgages on the
premises before orafter such constitution; and (4) For debts due to laborers, mechanics, architects,
builders,materialmen and others who have rendered service for theconstruction of the building. The exemption
provided as a forestated 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, 1988not 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 in1969 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 a forecited? No. The debt or liability which was the basis
of the judgment arose or was incurred at the time of the vehicularaccident on March 16, 1976 and the money judgment
arisingtherefrom 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 againstthe so-called
exemption by sheer force of exclusion embodied underparagraph 2, Article 155 of the Family Code cited in Modequillo

WHEREFORE, the petition is hereby DISMISSED, with costs againstpetitioner.SO ORDERED.