Rights and obligations between husband and wife

SECOND DIVISION [G.R. No. 127406. November 27, 2000] FELIA P. TY, petitioner, vs. THE COURT OF APPEALS, and EDGARDO M. REYES, respondents. DECISION QUISUMBING, J.: This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of Appeals in C.A. G.R. CV 37897, which affirmed the decision of the Regional Trial Court of Pasig, Branch 160, declaring the marriage contract between private respondent Edgardo M. Reyes and petitioner Ofelia P. Ty null and void ab initio. It also ordered private respondent to pay P15,000.00 as monthly support for their children Faye Eloise Reyes and Rachel Anne Reyes. As shown in the records of the case, private respondent married Anna Maria Regina Villanueva in a civil ceremony on March 29, 1977, in Manila. Then they had a church wedding on August 27, 1977. However, on August 4, 1980, the Juvenile and Domestic Relations Court of Quezon City declared their marriage null and void ab initio for lack of a valid marriage license. The church wedding on August 27, 1977, was also declared null and void ab initio for lack of consent of the parties. Even before the decree was issued nullifying his marriage to Anna Maria, private respondent wed Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated by the judge of the City Court of Pasay. On April 4, 1982, they also had a church wedding in Makati, Metro Manila. On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of Pasig, Branch 160, praying that his marriage to petitioner be declared null and void. He alleged that they had no marriage license when they got married. He also averred that at the time he married petitioner, he was still married to Anna Maria. He stated that at the time he married petitioner the decree of nullity of his marriage to Anna Maria had not been issued. The decree of nullity of his marriage to Anna Maria was rendered only on August 4, 1980, while his civil marriage to petitioner took place on April 4, 1979. Petitioner, in defending her marriage to private respondent, pointed out that his claim that their marriage was contracted without a valid license is untrue. She submitted their Marriage License No. 5739990 issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He did not question this document when it was submitted in evidence. Petitioner also submitted the decision of the Juvenile and Domestic Relations Court of Quezon City dated August 4, 1980, which declared null and void his civil marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977, and his church marriage to said Anna Maria on August 27, 1977. These documents were submitted as evidence during trial and, according to petitioner, are therefore deemed sufficient proof of the facts therein. The fact that the civil marriage of private respondent and petitioner took place on April 4, 1979, before the judgment declaring his prior marriage as null andvoid is undisputed. It also appears indisputable that private respondent and petitioner had a church wedding ceremony on April 4, 1982.[1] The Pasig RTC sustained private respondents civil suit and declared his marriage to herein petitioner null and void ab initio in its decision dated November 4, 1991. Both parties appealed to respondent Court of Appeals. On July 24, 1996, the appellate court affirmed the trial courts decision. It ruled that a judicial declaration of nullity of the first marriage (to Anna Maria) must first be secured before a subsequent marriage could be validly contracted. Said the appellate court: We can accept, without difficulty, the doctrine cited by defendants counsel that no judicial decree is necessary to establish the invalidity of void marriages. It does not say, however, that a second marriage may proceed even without a judicial decree. While it is true that if a marriage is null and void, ab initio, there is in fact no subsisting marriage, we are unwilling to rule that the matter of whether a marriage is valid or not is for each married spouse to determine for himself for this would be the consequence of allowing a spouse to proceed to a second marriage even before a competent court issues a judicial decree of nullity of his first marriage. The results would be disquieting, to say the least, and could not have been the intendment of even the now-repealed provisions of the Civil Code on marriage. xxx WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision in this wise: 1. The marriage contracted by plaintiff-appellant [herein private respondent] Eduardo M. Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is declared null and void ab initio; 2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the amount of P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes from November 4, 1991; and 3. Cost against plaintiff-appellant Eduardo M. Reyes. SO ORDERED.[2] Petitioners motion for reconsideration was denied. Hence, this instant petition asserting that the Court of Appeals erred: I. BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE VALIDITY OF PETITIONERS MARRIAGE TO RESPONDENT, A JUDICIAL DECREE NOT REQUIRED BY LAW. II IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF APPEALS. III IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE SAME MARRIAGE LICENSE.

IV IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO THE DEFENDANT-APPELLANT. The principal issue in this case is whether the decree of nullity of the first marriage is required before a subsequent marriage can be entered into validly? To resolve this question, we shall go over applicable laws and pertinent cases to shed light on the assigned errors, particularly the first and the second which we shall discuss jointly. In sustaining the trial court, the Court of Appeals declared the marriage of petitioner to private respondent null and void for lack of a prior judicial decree of nullity of the marriage between private respondent and Villanueva. The appellate court rejected petitioners claim that People v. Mendoza[3] and People v. Aragon[4] are applicable in this case. For these cases held that where a marriage is void from its performance, no judicial decree is necessary to establish its invalidity. But the appellate court said these cases, decided before the enactment of the Family Code (E.O. No. 209 as amended by E.O No. 227), no longer control. A binding decree is now needed and must be read into the provisions of law previously obtaining.[5] In refusing to consider petitioners appeal favorably, the appellate court also said: Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent for this case. Although decided by the High Court in 1992, the facts situate it within the regime of the now-repealed provisions of the Civil Code, as in the instant case. xxx For purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. . . .[6] At the outset, we must note that private respondents first and second marriages contracted in 1977 and 1979, respectively, are governed by the provisions of the Civil Code. The present case differs significantly from the recent cases of Bobis v. Bobis[7] and Mercado v. Tan,[8] both involving a criminal case for bigamy where the bigamous marriage was contracted during the effectivity of the Family Code,[9] under which a judicial declaration of nullity of marriage is clearly required. Pertinent to the present controversy, Article 83 of the Civil Code provides that: Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) The first marriage was annulled or dissolved; or (2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and before any person believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code contains no express provision to that effect. Jurisprudence on the matter, however, appears to be conflicting. Originally, in People v. Mendoza,[10] and People v. Aragon,[11] this Court held that no judicial decree is necessary to establish the nullity of a void marriage. Both cases involved the same factual milieu. Accused contracted a second marriage during the subsistence of his first marriage. After the death of his first wife, accused contracted a third marriage during the subsistence of the second marriage. The second wife initiated a complaint for bigamy. The Court acquitted accused on the ground that the second marriage is void, having been contracted during the existence of the first marriage. There is no need for a judicial declaration that said second marriage is void. Since the second marriage is void, and the first one terminated by the death of his wife, there are no two subsisting valid marriages. Hence, there can be no bigamy. Justice Alex Reyes dissented in both cases, saying that it is not for the spouses but the court to judge whether a marriage is void or not. In Gomez v. Lipana,[12] and Consuegra v. Consuegra,[13] however, we recognized the right of the second wife who entered into the marriage in good faith, to share in their acquired estate and in proceeds of the retirement insurance of the husband. The Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there was a need for judicial declaration of such nullity (of the second marriage). And since the death of the husband supervened before such declaration, we upheld the right of the second wife to share in the estate they acquired, on grounds of justice and equity.[14] But in Odayat v. Amante (1977),[15] the Court adverted to Aragon and Mendoza as precedents. We exonerated a clerk of court of the charge of immorality on the ground that his marriage to Filomena Abella in October of 1948 was void, since she was already previously married to one Eliseo Portales in February of the same year. The Court held that no judicial decree is necessary to establish the invalidity of void marriages. This ruling was affirmed in Tolentino v. Paras.[16] Yet again in Wiegel v. Sempio-Diy (1986),[17] the Court held that there is a need for a judicial declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In 1978, she married another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court to declare his marriage to Lilia as void on the ground of her previous valid marriage. The Court, expressly relying on Consuegra, concluded that:[18] There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to this Court a judicial declaration

(citing Consuegra) of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; accordingly, the marriage of petitioner and respondent would be regarded VOID under the law. (Emphasis supplied). In Yap v. Court of Appeals,[19] however, the Court found the second marriage void without need of judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings. At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our rulings in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family Code. [20] Article 40 of said Code expressly required a judicial declaration of nullity of marriage Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. In Terre v. Terre (1992)[21] the Court, applying Gomez, Consuegra and Wiegel, categorically stated that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a lawyer for contracting a bigamous marriage during the subsistence of his first marriage. He claimed that his first marriage in 1977 was void since his first wife was already married in 1968. We held that Atty. Terre should have known that the prevailing case law is that for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. The Court applied this ruling in subsequent cases. In Domingo v. Court of Appeals (1993),[22] the Court held: Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of absolute nullity of marriage is now explicitly required either as a cause of action or a ground for defense. (Art. 39 of the Family Code). Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147, 148).[23] However, a recent case applied the old rule because of the peculiar circumstances of the case. In Apiag v. Cantero, (1997)[24] the first wife charged a municipal trial judge of immorality for entering into a second marriage. The judge claimed that his first marriage was void since he was merely forced into marrying his first wife whom he got pregnant. On the issue of nullity of the first marriage, we applied Odayat, Mendoza and Aragon. We held that since the second marriage took place and all the children thereunder were born before the promulgation of Wiegel and the effectivity of the Family Code, there is no need for a judicial declaration of nullity of the first marriage pursuant to prevailing jurisprudence at that time. Similarly, in the present case, the second marriage of private respondent was entered into in 1979, before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza andAragon. The first marriage of private respondent being void for lack of license and consent, there was no need for judicial declaration of its nullity before he could contract a second marriage. In this case, therefore, we conclude that private respondents second marriage to petitioner is valid. Moreover, we find that the provisions of the Family Code cannot be retroactively applied to the present case, for to do so would prejudice the vested rights of petitioner and of her children. As held in Jison v. Court of Appeals, [25] the Family Code has retroactive effect unless there be impairment of vested rights. In the present case, that impairment of vested rights of petitioner and the children is patent. Additionally, we are not quite prepared to give assent to the appellate courts finding that despite private respondents deceit and perfidy in contracting marriage with petitioner, he could benefit from her silence on the issue. Thus, coming now to the civil effects of the church ceremony wherein petitioner married private respondent using the marriage license used three years earlier in the civil ceremony, we find that petitioner now has raised this matter properly. Earlier petitioner claimed as untruthful private respondents allegation that he wed petitioner but they lacked a marriage license. Indeed we find there was a marriage license, though it was the same license issued on April 3, 1979 and used in both the civil and the church rites. Obviously, the church ceremony was confirmatory of their civil marriage. As petitioner contends, the appellate court erred when it refused to recognize the validity and salutary effects of said canonical marriage on a technicality, i.e. that petitioner had failed to raise this matter as affirmative defense during trial. She argues that such failure does not prevent the appellate court from giving her defense due consideration and weight. She adds that the interest of the State in protecting the inviolability of marriage, as a legal and social institution, outweighs such technicality. In our view, petitioner and private respondent had complied with all the essential and formal requisites for a valid marriage, including the requirement of a valid license in the first of the two ceremonies. That this license was used legally in the celebration of the civil ceremony does not detract from the ceremonial use thereof in the church wedding of the same parties to the marriage, for we hold that the latter rites served not only to ratify but also to fortify the first. The appellate court might have its reasons for brushing aside this possible defense of the defendant below which undoubtedly could have tendered a valid issue, but which was not timely interposed by her before the trial court. But we are now persuaded we cannot play blind to the absurdity, if not inequity, of letting the wrongdoer profit from what the CA calls his own deceit and perfidy. On the matter of petitioners counterclaim for damages and attorneys fees. Although the appellate court admitted that they found private respondent acted duplicitously and craftily in marrying petitioner, it did not award moral damages because the latter did not adduce evidence to support her claim. [26] Like the lower courts, we are also of the view that no damages should be awarded in the present case, but for another reason. Petitioner wants her marriage to private respondent held valid and subsisting. She is suing to maintain her

status as legitimate wife. In the same breath, she asks for damages from her husband for filing a baseless complaint for annulment of their marriage which caused her mental anguish, anxiety, besmirched reputation, social humiliation and alienation from her parents. Should we grant her prayer, we would have a situation where the husband pays the wife damages from conjugal or common funds. To do so, would make the application of the law absurd. Logic, if not common sense, militates against such incongruity. Moreover, our laws do not comprehend an action for damages between husband and wife merely because of breach of a marital obligation.[27] There are other remedies.[28] WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 24, 1996 and its Resolution dated November 7, 1996, are reversed partially, so that the marriage of petitioner Ofelia P. Ty and private respondent Edgardo M. Reyes is hereby DECLARED VALID AND SUBSISTING; and the award of the amount of P15,000.00 is RATIFIED and MAINTAINED as monthly support to their two children, Faye Eloise Reyes and Rachel Anne Reyes, for as long as they are of minor age or otherwise legally entitled thereto. Costs against private respondent. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-39587 March 24, 1934 ALEKO E. LILIUS, ET AL., plaintiffs-appellants, vs. THE MANILA RAILROAD COMPANY, defendant-appellant. Harvey and O'Brien for plaintiffs-appellants. Jose C. Abreu for defendant-appellant. VILLA-REAL, J.: This case involves two appeals, one by the defendant the Manila Railroad Company, and the other by the plaintiffs Aleko E. Lilius et al., from the judgment rendered by the Court of First Instance of Manila, the dispositive part of which reads as follows: Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for the purposes above stated, the total amount of P30,865, with the costs of the suit. And although the suit brought by the plaintiffs has the nature of a joint action, it must be understood that of the amount adjudicated to the said plaintiffs in this judgment, the sum of P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the sum of P5,000, to the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the Calauan Hospital, Province of Laguna, and the balance to the plaintiff Aleko E. Lilius. In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors committed by the trial court in its said judgment, which will be discussed in the course of this decision. As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as committed by the same court a quo in its judgment in question, which will be discussed later. This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein alleged, that the Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity for material and moral damages suffered by them through the fault and negligence of the said defendant entity's employees, the sum of P50,000 plus legal interest thereon from the date of the filing of the complaint, with costs. The defendant the Manila Railroad Company, answering the complaint, denies each and every allegation thereof and, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the cooperation of his wife and coplaintiff, negligently and recklessly drove his car, and prays that it be absolved from the complaint. The following facts have been proven at the trial, some without question and the others by a preponderance of evidence, to wit: The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author and photographer. At the time of the collision in question, he was a staff correspondent in the Far East of the magazines The American Weekly of New York and The Sphere of London. Some of his works have been translated into various languages. He had others in preparation when the accident occurred. According to him, his writings netted him a monthly income of P1,500. He utilized the linguistic ability of his wife Sonja Maria Lilius, who translated his articles and books into English, German, and Swedish. Furthermore, she acted as his secretary. At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his 4-year old daughter Brita Marianne Lilius, left Manila in their Studebaker car driven by the said plaintiff Aleko E. Lilius for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the first time that he made said trip although he had already been to many places, driving his own car, in and outside the Philippines. Where the road was clear and unobstructed, the plaintiff drove at the rate of from 19 to 25 miles an hour. Prior thereto, he had made the trip as far as Calauan, but never from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted with the conditions of the road at said points and had no knowledge of the existence of a railroad crossing at Dayap. Before reaching the crossing in question, there was nothing to indicate its existence and inasmuch as there were many houses, shrubs and trees along the road, it was impossible to see an approaching train. At about seven or eight meters from the crossing, coming from Calauan, the plaintiff saw an autotruck parked on the left side of the road. Several people, who seemed to have alighted from the said truck, were walking on the opposite side. He slowed down to about 12 miles an hour and sounded his horn for the people to get out of the way. With his attention thus occupied, he did not see the crossing but he heard two short

whistles. Immediately afterwards, he saw a huge black mass fling itself upon him, which turned out to be locomotive No. 713 of the defendant company's train coming eastward from Bay to Dayap station. The locomotive struck the plaintiff's car right in the center. After dragging the said car a distance of about ten meters, the locomotive threw it upon a siding. The force of the impact was so great that the plaintiff's wife and daughter were thrown from the car and were picked up from the ground unconscious and seriously hurt. In spite of the efforts of engineer Andres Basilio, he was unable to stop the locomotive until after it had gone about seventy meters from the crossing. On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila where they were treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured nose, a contusion above the left eye and a lacerated wound on the right leg, in addition to multiple contusions and scratches on various parts of the body. As a result of the accident, the said plaintiff was highly nervous and very easily irritated, and for several months he had great difficulty in concentrating his attention on any matter and could not write articles nor short stories for the newspapers and magazines to which he was a contributor, thus losing for some time his only means of livelihood. The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the right leg, below the knee, and received a large lacerated wound on the forehead. She underwent two surgical operations on the left leg for the purpose of joining the fractured bones but said operations notwithstanding, the leg in question still continues deformed. In the opinion of Dr. Waterous, the deformity is permanent in character and as a result the plaintiff will have some difficulty in walking. The lacerated wound, which she received on her forehead, has left a disfiguring scar. The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other on the left side of the face, in addition to fractures of both legs, above and below the knees. Her condition was serious and, for several days, she was hovering between life and death. Due to a timely and successful surgical operation, she survived her wounds. The lacerations received by the child have left deep scars which will permanently disfigure her face, and because of the fractures of both legs, although now completely cured, she will be forced to walk with some difficulty and continuous extreme care in order to keep her balance. Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was there anybody to warn the public of approaching trains. The flagman or switchman arrived after the collision, coming from the station with a red flag in one hand and a green one in the other, both of which were wound on their respective sticks. The said flagman and switchman had many times absented himself from his post at the crossing upon the arrival of a train. The train left Bay station a little late and therefore traveled at great speed. Upon examination of the oral as well as of the documentary evidence which the parties presented at the trial in support of their respective contentions, and after taking into consideration all the circumstances of the case, this court is of the opinion that the accident was due to negligence on the part of the defendantappellant company, for not having had on that occasion any semaphore at the crossing at Dayap, to serve as a warning to passers-by of its existence in order that they might take the necessary precautions before crossing the railroad; and, on the part of its employees the flagman and switchman, for not having remained at his post at the crossing in question to warn passers-by of the approaching train; the stationmaster, for failure to send the said flagman and switchman to his post on time; and the engineer, for not having taken the necessary precautions to avoid an accident, in view of the absence of said flagman and switchman, by slackening his speed and continuously ringing the bell and blowing the whistle before arriving at the crossing. Although it is probable that the defendant-appellant entity employed the diligence of a good father of a family in selecting its aforesaid employees, however, it did not employ such diligence in supervising their work and the discharge of their duties because, otherwise, it would have had a semaphore or sign at the crossing and, on previous occasions as well as on the night in question, the flagman and switchman would have always been at his post at the crossing upon the arrival of a train. The diligence of a good father of a family, which the law requires in order to avoid damage, is not confined to the careful and prudent selection of subordinates or employees but includes inspection of their work and supervision of the discharge of their duties. However, in order that a victim of an accident may recover indemnity for damages from the person liable therefor, it is not enough that the latter has been guilty of negligence, but it is also necessary that the said victim has not, through his own negligence, contributed to the accident, inasmuch as nobody is a guarantor of his neighbor's personal safety and property, but everybody should look after them, employing the care and diligence that a good father of a family should apply to his own person, to the members of his family and to his property, in order to avoid any damage. It appears that the herein plaintiff-appellant Aleko E. Lilius took all precautions which his skill and the presence of his wife and child suggested to him in order that his pleasure trip might be enjoyable and have a happy ending, driving his car at a speed which prudence demanded according to the circumstances and conditions of the road, slackening his speed in the face of an obstacle and blowing his horn upon seeing persons on the road, in order to warn them of his approach and request them to get out of the way, as he did when he came upon the truck parked on the left hand side of the road seven or eight meters from the place where the accident occurred, and upon the persons who appeared to have alighted from the said truck. If he failed to stop, look and listen before going over the crossing, in spite of the fact that he was driving at 12 miles per hour after having been free from obstacles, it was because, his attention having been occupied in attempting to go ahead, he did not see the crossing in question, nor anything, nor anybody indicating its existence, as he knew nothing about it beforehand. The first and only warning, which he received of the impending danger, was two short blows from the whistle of the locomotive immediately preceding the collision and when the accident had already become inevitable.

In view of the foregoing considerations, this court is of the opinion that the defendant the Manila Railroad Company alone is liable for the accident by reason of its own negligence and that of its employees, for not having employed the diligence of a good father of a family in the supervision of the said employees in the discharge of their duties. The next question to be decided refers to the sums of money fixed by the court a quo as indemnities for damages which the defendant company should pay to the plaintiffs-appellants. With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net income of P1,500 a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated to him by the trial court as indemnity for damages, is reasonable. As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages, the different items thereof representing doctor's fees, hospital and nursing services, loss of personal effects and torn clothing, have duly been proven at the trial and the sum in question is not excessive, taking into consideration the circumstances in which the said expenses have been incurred. Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E. Lilius is in the language of the court, which saw her at the trial "young and beautiful and the big scar, which she has on her forehead caused by the lacerated wound received by her from the accident, disfigures her face and that the fracture of her left leg has caused a permanent deformity which renders it very difficult for her to walk", and taking into further consideration her social standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way of indemnity for patrimonial and moral damages, excessive. In the case of Gutierrez vs. Gutierrez (56 Phil., 177), the right leg of the plaintiff Narciso Gutierrez was fractured as a result of a collision between the autobus in which he was riding and the defendant's car, which fractured required medical attendance for a considerable period of time. On the day of the trial the fracture had not yet completely healed but it might cause him permanent lameness. The trial court sentenced the defendants to indemnify him in the sum of P10,000 which this court reduced to P5,000, in spite of the fact that the said plaintiff therein was neither young nor good-looking, nor had he suffered any facial deformity, nor did he have the social standing that the herein plaintiff-appellant Sonja Maria Lilius enjoys.1vvphi1.ne+ As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria Lilius, neither is the same excessive, taking into consideration the fact that the lacerations received by her have left deep scars that permanently disfigure her face and that the fractures of both her legs permanently render it difficult for her to walk freely, continuous extreme care being necessary in order to keep her balance in addition to the fact that all of this unfavorably and to a great extent affect her matrimonial future. With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff Aleko E. Lilius relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to him by way of indemnity for damages consisting in the loss of his income as journalist and author as a result of his illness. This question has impliedly been decided in the negative when the defendant-appellant entity's petition for the reduction of said indemnity was denied, declaring it to be reasonable. As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his wife's services in his business as journalist and author, which services consisted in going over his writings, translating them into English, German and Swedish, and acting as his secretary, in addition to the fact that such services formed part of the work whereby he realized a net monthly income of P1,500, there is no sufficient evidence of the true value of said services nor to the effect that he needed them during her illness and had to employ a translator to act in her stead. The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called Anglo-Saxon common law "consortium" of his wife, that is, "her services, society and conjugal companionship", as a result of personal injuries which she had received from the accident now under consideration. In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the provisions of the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual rights and obligations of the spouses, contained in articles 44-48 thereof, said as follows: The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence, except when he removes to a foreign country. . . . Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his wife's assistance. This assistance comprises the management of the home and the performance of household duties, including the care and education of the children and attention to the husband upon whom primarily devolves the duty of supporting the family of which he is the head. When the wife's mission was circumscribed to the home, it was not difficult to assume, by virtue of the marriage alone, that she performed all the said tasks and her physical incapacity always redounded to the husband's prejudice inasmuch as it deprived him of her assistance. However, nowadays when women, in their desire to be more useful to society and to the nation, are demanding greater civil rights and are aspiring to become man's equal in all the activities of life, commercial and industrial, professional and political, many of them spending their time outside the home, engaged in their businesses, industry, profession and within a short time, in politics, and entrusting the care of their home to a housekeeper, and their children, if not to a nursemaid, to public or private institutions which take charge of young children while their mothers are at work, marriage has ceased to create the presumption that a woman complies with the duties to her husband and children, which the law imposes upon her, and he who seeks to collect indemnity for damages resulting from deprivation of her domestic services must prove such services. In the case under consideration, apart from the services of his wife Sonja

Maria Lilius as translator and secretary, the value of which has not been proven, the plaintiff Aleko E. Lilius has not presented any evidence showing the existence of domestic services and their nature, rendered by her prior to the accident, in order that it may serve as a basis in estimating their value. Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely personal and voluntary acts which neither of the spouses may be compelled to render (Arroyo vs. Vazquez de Arroyo, 42 Phil., 54), it is necessary for the party claiming indemnity for the loss of such services to prove that the person obliged to render them had done so before he was injured and that he would be willing to continue rendering them had he not been prevented from so doing. In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad company which has not installed a semaphore at a crossing an does not see to it that its flagman and switchman faithfully complies with his duty of remaining at the crossing when a train arrives, is guilty of negligence and is civilly liable for damages suffered by a motorist and his family who cross its line without negligence on their part; (2) that an indemnity of P10,000 for a permanent deformity on the face and on the left leg, suffered by a young and beautiful society woman, is not excessive; (3) that an indemnity of P5,000 for a permanent deformity on the face and legs of a four-year old girl belonging to a well-to-do family, is not excessive; and (4) that in order that a husband may recover damages for deprivation of his wife's assistance during her illness from an accident, it is necessary for him to prove the existence of such assistance and his wife's willingness to continue rendering it had she not been prevented from so doing by her illness. The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the indemnities adjudicated to them, from the date of the appealed judgment until this judgment becomes final, in accordance with the provisions of section 510 of Act No. 190. Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the sole modification that interest of 6 per cent per annum from the date of the appealed judgment until this judgment becomes final will be added to the indemnities granted, with the costs of both instances against the appellant. So ordered. Malcolm, Hull, Imperial, and Goddard, JJ., concur.

EN BANC [A.C. No. 3405. June 29, 1998] ULIETA B. NARAG, complainant, vs. ATTY. DOMINADOR M. NARAG, respondent. DECISION PER CURIAM: Good moral character is a continuing qualification required of every member of the bar. Thus, when a lawyer fails to meet the exacting standard of moral integrity, the Supreme Court may withdraw his or her privilege to practice law. On November 13, 1989, Mrs. Julieta B. Narag filed an administrative complaint[1] for disbarment against her husband, Atty. Dominador M. Narag, whom she accused of having violated Canons 1 and 6, Rule 1.01 of the Code of Ethics for Lawyers.[2] The complainant narrated: The St. Louis College of Tuguegarao engaged the services of Atty. Dominador M. Narag in the early seventies as a full-time college instructor in the College of Arts and Sciences and as a professor in the Graduate School. In 1984, Ms. Gina Espita, 17 years old and a first year college student, enrolled in subjects handled by Atty. Narag. Exerting his influence as her teacher, and as a prominent member of the legal profession and then member of the Sangguniang Bayan of Tuguegarao, Atty. Narag courted Ms. Espita, gradually lessening her resistance until the student acceded to his wishes. They then maintained an illicit relationship known in various circles in the community, but which they managed to keep from me. It therefore came as a terrible embar[r]assment to me, with unspeakable grief and pain when my husband abandoned us, his family, to live with Ms. Espita, in utterly scandalous circumstances. It appears that Atty. Narag used his power and influence as a member of the Sangguniang Panlalawigan of Cagayan to cause the employment of Ms. Espita at the Department of Trade and Industry Central Office at Makati, Metro Manila. Out of gratitude perhaps, for this gesture, Ms. Espita agreed to live with Atty. Narag, her sense of right[e]ousness and morals completely corrupted by a member of the Bar. It is now a common knowledge in the community that Atty. Dominador M. Narag has abandoned us, his family, to live with a 22-year-old woman, who was his former student in the tertiary level[.][3] This Court, in a Resolution dated December 18, 1989, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[4] On June 26, 1990, the office of then Chief Justice Marcelo B. Fernan received from complainant another letter seeking the dismissal of the administrative complaint. She alleged therein that (1) she fabricated the allegations in her complaint to humiliate and spite her husband; (2) all the love letters between the respondent and Gina Espita were forgeries; and (3) she was suffering from emotional confusion arising from extreme jealousy. The truth, she stated, was that her husband had remained a faithful and responsible family man. She further asserted that he had neither entered into an amorous relationship with one Gina Espita nor abandoned his family. [5] Supporting her letter were an Affidavit of Desistance[6] and a Motion to Dismiss,[7] attached as Annexes A and B, which she filed before the IBP commission on bar

discipline.[8] In a Decision dated October 8, 1991, the IBP Board of Governors [9] dismissed the complaint of Mrs. Narag for failure to prosecute.[10] The case took an unexpected turn when, on November 25, 1991, this Court[11] received another letter[12] from the complainant, with her seven children[13] as co-signatories, again appealing for the disbarment of her husband. She explained that she had earlier dropped the case against him because of his continuous threats against her.[14] In his Comment on the complainants letter of November 11, 1991, filed in compliance with this Courts Resolution issued on July 6, 1992,[15] respondent prayed that the decision of the Board of Governors be affirmed. Denying that he had threatened, harassed or intimidated his wife, he alleged that she had voluntarily executed her Affidavit of Desistance [16] and Motion to Dismiss,[17]even appearing before the investigating officer, Commissioner Racela, to testify under oath that she prepared the Motion to Dismiss and Affidavit of Desistance on her own free will and affirmed the contents thereof. In addition, he professed his love for his wife and his children and denied abandoning his family to live with his paramour. However, he described his wife as a person emotionally disturbed,viz.: What is pitiable here is the fact that Complainant is an incurably jealous and possessive woman, and every time the streak of jealousy rears its head, she fires off letters or complaints against her husband in every conceivable forum, all without basis, and purely on impulse, just to satisfy the consuming demands of her loving jealousy. Then, as is her nature, a few hours afterwards, when her jealousy cools off, she repents and feels sorry for her acts against the Respondent. Thus, when she wrote the Letter of November 11, 1991, she was then in the grips of one of her bouts of jealousy.[18] On August 24, 1992, this Court issued another Resolution referring the Comment of respondent to the IBP.[19] In the hearing before IBP Commissioner Plaridel C. Jose, respondent alleged the following:[20] 2. Your Respondent comes from very poor parents who have left him not even a square meter of land, but gave him the best legacy in life: a purposeful and meaningful education. Complainant comes from what she claims to be very rich parents who value material possession more than education and the higher and nobler aspirations in life. Complainant abhors the poor. 3. Your Respondent has a loving upbringing, nurtured in the gentle ways of love, forgiveness, humility, and concern for the poor. Complainant was reared and raised in an entirely different environment. Her value system is the very opposite. 4. Your Respondent loves his family very dearly, and has done all he could in thirty-eight (38) years of marriage to protect and preserve his family. He gave his family sustenance, a comfortable home, love, education, companionship, and most of all, a good and respected name. He was always gentle and compassionate to his wife and children. Even in the most trying times, he remained calm and never inflicted violence on them. His children are all now full-fledged professionals, mature, and gainfully employed. x x x xxx xxx xxx Your Respondent subscribes to the sanctity of marriage as a social institution. On the other hand, consumed by insane and unbearable jealousy, Complainant has been systematically and unceasingly destroying the very foundations of their marriage and their family. Their marriage has become a torture chamber in which Your Respondent has been incessantly BEATEN, BATTERED, BRUTALIZED, TORTURED, ABUSED, and HUMILIATED, physically, mentally, and emotionally, by the Complainant, in public and at home. Their marriage has become a nightmare. For thirty-eight years, your Respondent suffered in silence and bore the pain of his misfortune with dignity and with almost infinite patience, if only to preserve their family and their marriage. But this is not to be. The Complainant never mellowed and never became gentl[e], loving, and understanding. In fact, she became more fierce and predatory. Hence, at this point in time, the light at the tunnel for Your Respondent does not seem in sight. The darkness continues to shroud the marital and familial landscape. Your Respondent has to undergo a catharsis, a liberation from enslavement. Paraphrasing Dorfman in Death and the Maiden, can the torturer and the tortured co-exist and live together? Hence, faced with an absolutely uncomprehending and uncompromising mind whose only obsession now is to destroy, destroy, and destroy, Your Respondent, with perpetual regret and with great sorrow, filed a Petition for Annulment of Marriage, Spl. Proc. No. 566, RTC, Branch III, Tuguegarao, Cagayan. x x x. 5. Complainant is a violent husband-beater, vitriolic and unbending. But your Respondent never revealed these destructive qualities to other people. He preserved the good name and dignity of his wife. This is in compliance with the marital vow to love, honor or obey your spouse, for better or for worse, in sickness and in health. . . Even in this case, Your Respondent never revealed anything derogatory to his wife. It is only now that he is constrained to reveal all these things to defend himself. On the other hand, for no reason at all, except a jealous rage, Complainant tells everyone, everywhere, that her husband is worthless, good-for-nothing, evil and immoral. She goes to colleges and universities, professional organizations, religious societies, and all other sectors of the community to tell them how evil, bad and immoral her husband is. She tells them not to hire him as professor, as Counsel, or any other capacity because her husband is evil, bad, and immoral. Is this love? Since when did love become an instrument to destroy a mans dearest possession in life - his good name, reputation and dignity? Because of Complainants virulent disinformation campaign against her husband, employing every unethical and immoral means to attain his ends, Your Respondent has been irreparably and irreversibly disgraced, shamed, and humiliated. Your Respondent is not a scandalous man. It is he who has been mercilessly scandalized and crucified by the Complainant.[21]

3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9

To prove the alleged propensity of his wife to file false charges, In its Resolution[26] issued on August 23, 1997, the IBP adopted and respondent presented as evidence the following list of the complaints she had approved the investigating commissioners recommendation for the indefinite filed against him and Gina Espita: suspension of the respondent.[27]Subsequently, the complainant sought the Complaint for Immorality/Neglect of Duty x x x disbarment of her husband in a Manifestation/Comment she filed on October 20, Complaint for Immorality/Neglect of Duty, DILG, Adm. Case No. P-5-90. x x x 1997. The IBP granted this stiffer penalty and, in its Resolution dated November Complaint for Concubinage. Provincial Prosecutors Office of Cagayan. I.S No. 30, 1997, denied respondents Motion for Reconsideration. 89-114. x x x After a careful scrutiny of the records of the proceedings and the evidence Complaint for Anti-Graft and Corrupt Practices and concubinage. OMBUDSMAN presented by the parties, we find that the conduct of respondent warrants the Case No. 1-92-0083. x x x imposition of the penalty of disbarment. Complaint for Civil Support. RTC, Tuguegarao, Civil Case No. The Code of Professional Responsibility provides: 4061. DISMISSED. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Complaint for Concubinage. Provincial Prosecutors Office of Cagayan. I.S. No. A lawyer shall at all times uphold the integrity and dignity of the legal profession, and 92-109. DISMISSED. (x x x). Complainant filed Motion for support the activities of the Integrated Bar. Reconsideration. DENIED. (x x x). A lawyer shall not engage in conduct that adversely reflects on his fitness to practice Complaint for Disbarment (x x x) with S[upreme] C[ourt]. Withdrawn (x x law, nor should he, whether in public or private life, behave in a scandalous x). DISMISSED by IBP Board of Governors (x x x). Re-instituted (x x x). manner to the discredit of the legal profession. Complaint for Disbarment, again (x x x). Adm. Case No. 3405. Pending. Thus, good moral character is not only a condition precedent [28] to Complaint for Concubinage, again (x x x). Third MCTC, Tumauini, the practice of law, but a continuing qualification for all members of the Isabela. Pending. x x x[22] bar. Hence, when a lawyer is found guilty of gross immoral conduct, he may be In his desperate effort to exculpate himself, he averred: suspended or disbarred.[29] I. That all the alleged love letters and envelopes (x x x), picture (x x x) are Immoral conduct has been defined as that conduct which is so willful, inadmissible in evidence as enunciated by the Supreme Court in Cecilia Zulueta flagrant, or shameless as to show indifference to the opinion of good and vs. Court of Appeals, et. al., G.R. No. 107383, February 20, 1996. (x x x). respectable members of the community.[30]Furthermore, such conduct must not xxx xxx xxx only be immoral, but grossly immoral. That is, it must be so corrupt as to II. That respondent is totally innocent of the charges: He never courted Gina constitute a criminal act or so unprincipled as to be reprehensible to a high Espita in the Saint Louis College of Tuguegarao. He never caused the degree[31] or committed under such scandalous or revolting circumstances as to employment of said woman in the DTI. He never had or is having any illicit shock the common sense of decency.[32] relationship with her anywhere, at any time. He never lived with her as husband We explained in Barrientos vs. Daarol[33] that, as officers of the court, and wife anywhere at any time, be it in Centro Tumauini or any of its barangays, lawyers must not only in fact be of good moral character but must also be seen to or in any other place. He never begot a child or children with her. Finally, be of good moral character and leading lives in accordance with the highest moral respondent submits that all the other allegations of Mrs. Narag are false and standards of the community. More specifically, a member of the Bar and officer fabricated, x x x of the court is not only required to refrain from adulterous relationships or the xxx xxx xxx keeping of mistresses but must also so behave himself as to avoid scandalizing III. Respondent never abandoned his family[.] Mrs. Narag and her two sons the public by creating the belief that he is flouting those moral standards. forcibly drove respondent Narag out of the conjugal home. After that, Atty. Narag Respondent Narag is accused of gross immorality for abandoning his tried to return to the conjugal home many times with the help of mutual friends to family in order to live with Gina Espita. The burden of proof rests upon the save the marriage and the family from collapse. He tried several times to complainant, and the Court will exercise its disciplinary power only if she reconcile with Mrs. Narag. In fact, in one of the hearings of the disbarment case, establishes her case by clear, convincing and satisfactory evidence.[34] he offered to return home and to reconcile with Mrs. Narag. But Mrs. Narag Presented by complainant as witnesses, aside from herself, [35] were: Charlie refused all these efforts of respondent Narag. x x x Espita,[36] Magdalena Bautista,[37] Bienvenido Eugenio,[38] Alice Carag,[39] Dr. IV. Complainant Julieta B. Narag is an unbearably jealous, violent, vindictive, Jervis B. Narag,[40] Dominador Narag, Jr.,[41] and Nieves F. Reyes.[42] scandalous, virulent and merciless wife since the beginning of the marriage, who Charlie Espita, brother of the alleged paramour Gina Espita, corroborated incessantly beat, battered, brutalized, tortured, abuse[d], scandalized, and complainants charge against respondent in these categorical statements he gave humiliated respondent Atty. Narag, physically, mentally, emotionally, and to the investigating officer: psychologically, x x x. Q Mr. Witness, do you know Atty. Narag? V. Complainant Julieta Narags claim in her counter-manifestation dated Yes, Your Honor, he is the live-in partner of my sister, Gina Espita. March 28, 1996, to the effect that the affidavit of Dominador B. Narag, Jr., dated If Atty. Narag is here, can you point [to] him? February 27, 1996 was obtained through force and intimidation, is not Yes, sir. true. Dominador, Jr., executed his affidavit freely, voluntarily, and absolutely (Witness pointed to the respondent, Atty. Dominador Narag) without force or intimidation, as shown by the transcript of stenographic notes of Why do you know Atty. Narag? the testimonies of Respondent Atty. Narag and Tuguegarao MTC Judge ATTY. NARAG: Dominador Garcia during the trial of Criminal Case No. 12439, People vs. Already answered. He said I am the live-in partner. Dominador M. Narag, et. al., before the Tuguegarao MTC on May 3, 1996. x xCONTINUATION OF THE DIRECT x. Because he is the live-in partner of my sister and that they are now living together xxx xxx xxx as husband and wife and that they already have two children, Aurelle Dominic VI. Respondent Atty. Narag is now an old man - a senior citizen of 63 years and Kyle Dominador. sickly, abandoned, disgraced, weakened and debilitated by progressively xxx xxx x x x [43] degenerative gout and arthritis, and hardly able to earn his own keep. His very During cross-examination conducted by the respondent himself, Charlie physical, medical, psychological, and economic conditions render him unfit and Espita repeated his account that his sister Gina was living with the respondent, unable to do the things attributed to him by the complainant. Please see the with whom she had two children: attached medical certificates, x x x, among many other similar certificates Q Mr. Espita, you claim that Atty. Narag is now living with your sister as husband touching on the same ailments. Respondent is also suffering from and wife. You claim that? hypertension.[23] Yes, sir. On July 18, 1997, the investigating officer submitted his report, Why do you say that? [24] recommending the indefinite suspension of Atty. Narag from the practice of Because at present you are living together as husband and wife and you have law. The material portions of said report read as follows: already two children and I know that that is really an immoral act which you Culled from the voluminous documentary and testimonial evidence submitted by cannot just allow me to follow since my moral values dont allow me that my the contending parties, two (2) issues are relevant for the disposition of the case, sister is living with a married man like you. namely: How do you know that Atty. Narag is living with your sister? Did you see them in a) Whether there was indeed a commission of alleged abandonment of the house? respondents own family and [whether he was] living with his paramour, Gina Yes, si[r]. Espita; xxx xxx xxx b) Whether the denial under oath that his illegitimate children with Gina You said also that Atty. Narag and your sister have two children, Aurelle Dominic Espita (Aurelle Dominic and Kyle Dominador) as appearing on paragraph 1(g) of and Kyle Dominador, is it not? respondents Comment vis-a-vis his handwritten love letters, the due execution Yes, sir. and contents of which, although he objected to their admissibility for being How do you know that they are the children of Atty. Narag? allegedly forgeries, were never denied by him on the witness stand much less Because you are staying together in that house and you have left your family.[44] presented and offered proof to support otherwise. In addition, Charlie Espita admitted (1) that it was he who handed to Mrs. Except for the testimonies of respondents witnesses whose testimonies tend to Narag the love letters respondent had sent to his sister, and (2) that Atty. Narag depict the complaining wife, Mrs. Narag, as an incurably jealous wife and tried to dissuade him from appearing at the disbarment proceedings.[45] possessive woman suffering everytime with streaks of jealousy, respondent did Witness Bienvenido Eugenio strengthened the testimony of Charlie Espita not present himself on the witness stand to testify and be cross-examined on his in this wise: sworn comment; much less did he present his alleged paramour, Gina Espita, to Q Mr. Witness, do you know the respondent in this case? disprove the adulterous relationship between him and their having begotten their I know him very well, sir. illegitimate children, namely: Aurelle Dominic N. Espita and Kyle Dominador N. Could you please tell us why do you know him? Espita. Worse, respondents denial that he is the father of the two is a ground for Because he was always going to the house of my son-in-law by the name of disciplinary sanction (Morcayda v. Naz, 125 SCRA 467). Charlie Espita. Viewed from all the evidence presented, we find the respondent subject to xxx xxx xxx disciplinary action as a member of the legal profession.[25] Mr. Eugenio, do you know the residence of Atty. Dominador M. Narag? At that time, he [was] residing in the house of Reynaldo Angubong, sir.

Q A Q

And this is located where? Centro Tamauini, Isabela, sir. And you specifically, categorically state under oath that this is the residence of Atty. Narag? A Yes, sir. xxx xxx xxx Q And under oath this is where Atty. Narag and Gina Espita are allegedly living as husband and wife, is it not? A Yes, sir.[46] Witness Nieves Reyes, a neighbor and friend of the estranged couple, testified that she learned from the Narag children -- Randy, Bong and Rowena -that their father left his family, that she and her husband prodded the complainant to accept the respondent back, that the Narag couple again separated when the respondent went back to his woman, and that Atty. Narag had maltreated his wife.[47] On the strength of the testimony of her witnesses, the complainant was able to establish that respondent abandoned his family and lived with another woman. Absent any evidence showing that these witnesses had an ill motive to testify falsely against the respondent, their testimonies are deemed worthy of belief. Further, the complainant presented as evidence the love letters that respondent had sent to Gina. In these letters, respondent clearly manifested his love for Gina and her two children, whom he acknowledged as his own. In addition, complainant also submitted as evidence the cards that she herself had received from him. Guided by the rule that handwriting may be proved through a comparison of one set of writings with those admitted or treated by the respondent as genuine, we affirm that the two sets of evidence were written by one and the same person.[48] Besides, respondent did not present any evidence to prove that the love letters were not really written by him; he merely denied that he wrote them. While the burden of proof is upon the complainant, respondent has the duty not only to himself but also to the court to show that he is morally fit to remain a member of the bar. Mere denial does not suffice. Thus, when his moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, he must meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to have his name in the Roll of Attorneys.[49] This he failed to do. Respondent adamantly denies abandoning his family to live with Gina Espita. At the same time, he depicts his wife as a violent husband-beater, vitriolic and unbending, and as an insanely and pathologically jealous woman, whose only obsession was to destroy, destroy and destroy him as shown by her filing of a series of allegedly unfounded charges against him (and Gina Espita). To prove his allegation, he presented ninety-eight (98) pieces of documentary evidence[50] and ten (10) witnesses.[51] We note, however, that the testimonies of the witnesses of respondent did not establish the fact that he maintained that moral integrity required by the profession that would render him fit to continue practicing law. Neither did their testimonies destroy the fact, as proven by the complainant, that he had abandoned his family and lived with Gina Espita, with whom he had two children. Some of them testified on matters which they had no actual knowledge of, but merely relied on information from either respondent himself or other people, while others were presented to impeach the good character of his wife. Respondent may have provided well for his family -- they enjoyed a comfortable life and his children finished their education. He may have also established himself as a successful lawyer and a seasoned politician. But these accomplishments are not sufficient to show his moral fitness to continue being a member of the noble profession of law. We remind respondent that parents have not only rights but also duties e.g., to support, educate and instruct their children according to right precepts and good example; and to give them love, companionship and understanding, as well as moral and spiritual guidance.[52] As a husband, he is also obliged to live with his wife; to observe mutual love, respect and fidelity; and to render help and support.[53] Respondent himself admitted that his work required him to be often away from home. But the evidence shows that he was away not only because of his work; instead, he abandoned his family to live with his paramour, who bore him two children. It would appear, then, that he was hardly in a position to be a good husband or a good father. His children, who grew up mostly under the care of their mother, must have scarcely felt the warmth of their fathers love. Respondents son, Jervis B. Narag, showed his resentment towards his fathers moral frailties in his testimony: Q My question is this, is there any sin so grievous that it cannot be forgiven, is there a fault that is so serious that it is incapable of forgiveness? A That depends upon the sin or fault, sir, but if the sin or fault is with the emotional part of myself, I suppose I cannot forgive a person although I am a God-fearing person, but I h[av]e to give the person a lesson in order for him or her to at least realize his mistakes, sir. xxx xxx xxx COMR. JOSE: I think it sounds like this. Assuming for the sake of argument that your father is the worst, hardened criminal on earth, would you send him to jail and have him disbarred? That is the question. CONTINUATION. A With the reputation that he had removed from us, I suppose he has to be given a lesson. At this point in time, I might just forgive him if he will have to experience all the pains that we have also suffered for quite sometime. Q Dr. Narag, your father gave you life, his blood runs in your veins, his flesh is your flesh, his bones are your bones and you now disown him because he is the worst man on earth, is that what you are saying. A Sort of, sir.

You are now telling that as far [as] you are concerned because your father has sinned, you have no more father, am I correct? Long before, sir, I did not feel much from my father even when I was still a kid because my father is not always staying with us at home. So, how can you say that? Yes, he gave me life, why not? But for sure, sir, you did not give me love.[54] Another son, Dominador Narag, Jr., narrated before the investigating officer the trauma he went through: In connection with that affidavit, Mr. Witness, which contains the fact that your father is maintaining a paramour, could you please tell this Honorable Commission the effect on you? This has a very strong effect on me and this includes my brothers and sisters, especially my married life, sir. And it also affected my children so much, that I and my wife ha[ve] parted ways. It hurts to say that I and my wife parted ways. This is one reason that affected us. Will you please tell us specifically why you and your wife parted ways? Because my wife wa[s] ashamed of what happened to my family and that she could not face the people, our community, especially because my wife belongs to a well-known family in our community. How about the effect on your brothers and sisters? Please tell us what are those. Well, sir, this has also affected the health of my elder sister because she knows so well that my mother suffered so much and she kept on thinking about my mother. xxx xxx xxx Why did your wife leave you? The truth is because of the things that had happened in our family, Your Honor. In your wifes family? In our family, sir. And what do you mean by that? What I meant by that is my father had an illicit relationship and that my father went to the extent of scolding my wife and calling my wife a puta in provincial government, which my mother-in-law hated him so much for this, which really affected us. And then my wife knew for a fact that my father has an illicit relationship with Gina Espita, whom he bore two children by the name of Aurelle Dominic and Kyle Dominador, which I could prove and I stand firm to this, Your Honor.[55] Although respondent piously claims adherence to the sanctity of marriage, his acts prove otherwise. A husband is not merely a man who has contracted marriage. Rather, he is a partner who has solemnly sworn to love and respect his wife and remain faithful to her until death. We reiterate our ruling in Cordova vs. Cordova[56] The moral delinquency that affects the fitness of a member of the bar to continue as such includes conduct that outrages the generally accepted moral standards of the community, conduct for instance, which makes a mockery of the inviolable social institution of marriage. In Toledo vs. Toledo,[57] the respondent was disbarred from the practice of law, when he abandoned his lawful wife and cohabited with another woman who had borne him a child. Likewise, in Obusan vs. Obusan,[58] the respondent was disbarred after the complainant proved that he had abandoned her and maintained an adulterous relationship with a married woman. This Court declared that respondent failed to maintain the highest degree of morality expected and required of a member of the bar. In the present case, the complainant was able to establish, by clear and convincing evidence, that respondent had breached the high and exacting moral standards set for members of the law profession. As held in Maligsa vs. Cabanting,[59] a lawyer may be disbarred for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court. WHEREFORE, Dominador M. Narag is hereby DISBARRED and his name is ORDERED STRICKEN from the Roll of Attorneys. Let copies of this Decision be in the personal record of Respondent Narag; and furnished to all courts of the land, the Integrated Bar of the Philippines, and the Office of the Bar Confidant. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-29959 December 3, 1929 AURELIA DADIVAS DE VILLANUEVA, plaintiff-appellant, vs. RAFAEL VILLANUEVA, defendant-appellee. Harvey and O'Brien for appellant. Jose G. Generoso for appellee. STREET, J.: This action was instituted on May 27, 1927, in the Court of First Instance of the City of Manila by Aurelia Dadivas de Villanueva against her husband, Rafael Villanueva, for the purpose of obtaining separate maintenance and custody of the two younger minor children, Guillermo and Sergio Villanueva, as well as a proper allowance for professional legal services rendered by the plaintiff's attorneys in this action, as well as costs. Upon hearing the cause the trial court absolved the defendant from the complaint and abrogated a prior order of the

court for maintenance pendente lite, with costs against the plaintiff. From this judgment the plaintiff appealed. The plaintiff, Aurelia Dadivas de Villanueva, was married to the defendant, Rafael Villanueva, on July 16, 1905, in the City of Manila, where the pair have since resided. To them have been born three children, namely, Antonio, Guillermo, and Sergio, who were, at the time of the trial of this case in the lower court, aged respectively 18, 10 and 9 years. The grounds on which separate maintenance is sought infidelity and cruelty. With respect to the first of these charges the proof shows that during the period of about ten years prior to the institution of the action, the defendant was guilty of repeated acts of infidelity with four different women, and even after the action was begun, he is shown to have had illicit relations with still another, an incident which is incorporated in the case by means of the amended complaint. Thought at all times protesting against these irregularities in her husband's conduct, the plaintiff appears to have exhibited forbearance; and she long continued in marital relations with him with a view to keeping the family intact as well as with hope of retrieving him from his erring course. In the end, however, the incorrigible nature of the defendant in his relations with other women, coupled with a lack of consideration and even brutality towards the plaintiff, caused her to withdraw from the domestic hearth and to establish a separate abode for herself and two younger children. This final separation occurred on April 20, 1927, about one month before the present action was begun. The proof with respect to the charge of cruelty shows that the defendant has not infrequently treated the plaintiff roughly and that he has at times directed abusive words to her and challenged her to carry her troubles into court. The proof in support of this charge does not in our opinion establish a case for separate maintenance, without relation to the graver charge of conjugal infidelity; and if the case depended, for its solution, upon cruelty alone, the case could doubtless be affirmed, in conformity with the doctrine stated in Arroyo vs. Vazquez de Arroyo (42 Phil. 54), where the charges of cruelty were found to be unproved or insufficient. In that case, however, we were able to record the fact that neither of the spouses had at any time been guilty of conjugal infidelity, and that neither had, so far as the proof showed, even given just cause to the other to suspect illicit relations with any person. In the case before us repeated acts of conjugal infidelity on the part of the husband are proved, and he appears to be a recurrent, if not an incurable offender against the sanctity of the marriage tie. This give the wife an undeniable right to relief. The law is not so unreasonable as to require a wife to live in marital relations with a husband whose incurable propensity towards other women makes common habitation with him unbearable. Deeply rooted instincts of human nature sanction the separation in such case, and the law is not so unreasonable as to require as acquiescence on the part of the injured party which is beyond the capacity of nature. In order to entitle a wife to maintain a separate home and to require separate maintenance from her husband it is not necessary that the husband should bring a concubine into the marital domicile. Perverse and illicit relations with women outside of the marital establishment are enough. As was said by Justice Moreland in Goitia vs. Campos Rueda (35 Phil., 252, 262), a husband cannot, by his own wrongful acts, relieve himself from the duty to support his wife imposed by law; and where a husband by wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he cannot take advantage of her departure to abrogate the law applicable to the marital relations and repudiate his duties thereunder. In her complaint the plaintiff asks for an allowance of P750 per month, but we are of the opinion that the sum of P500 per month will suffice, this being in addition to the use which she makes for living quarters of a modest property belonging to the conjugal estate. During their marital life the spouses have acquired real estate which, at the time of the trial, was assessed at more than P85,000, and which at the same time was reasonably valued at more than P125,000. In addition to this the defendant appears to be now earning a substantial salary in commercial activities. The plaintiff is also entitled to an allowance for attorney's fees which we fix at P1,000 for services rendered in the trial court and the same amount for services rendered in this court. It appears that the two younger children are now living with the plaintiff, and her right to their custody will not be disturbed. While this litigation was pending in the lower court the defendant was required to pay the amount of P500 per month for maintenance of the plaintiff, under an interlocutory order of June 15, 1927. But these payments ceased when the appealed decision was promulgated on or about the end of March, 1928. The plaintiff in this case is therefore entitled to judgment at the rate of P500 per month beginning April 1, 1928, until judgment shall be promulgated in this case, and from that date the defendant will be required to pay P500 per month for maintenance as already suggested. The plaintiff will also be awarded the sum of P720 in satisfaction of the amount paid out for the transcript necessary to this appeal. The judgment is therefore reversed, and it is ordered that the plaintiff have and recover of the defendant the sum of P2,000 for attorney's fees, the sum of P720 for expenses of procuring transcript, and the sum of P500 per month, beginning April 1, 1928, until the promulgation of this decision, after which the date the defendant is ordered to pay to the plaintiff by way of maintenance, on or before the 10th day of each month, the sum of P500. So ordered, with costs against appellee. Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur. PILAR ATILANO, plaintiff-appellee, vs. CHUA CHING BENG, defendant-appellant. Quisumbing, Sycip & Associates for appellant. Jose G. Bermas, Jr. for appellee. FELIX, J.: The facts of this case as appearing on record and in the stipulation submitted by the parties and approved by the lower court, are as follows:

Chua Ching Beng and Pilar Atilano were joined in lawful wedlock in Zamboanga City in May of 1951, after which marriage, the couple sailed for Manila and established their residence with the parents of the husband. In October of the same year, at the husband's initiative, they went to Zamboanga City to pay the parents of the wife a visit, and it seems that he was prevailed upon by the wife's parents to return to Manila leaving her behind, with the understanding that she would follow him later, which apparently she failed to do. On September 30, 1953, Pilar Atilano filed with the Court of First Instance of Zamboanga a complaint for support against her husband, alleging that they had been estranged and living separately since October, 1952, by reason of incessant marital bickerings and quarrels brought about by incompatibility of temperament and above all, by defendant's inability to provide for themselves a home separate from the latter's parents; that she was staying with her parents in Zamboanga City, without employment nor had she any property of her own. She therefore, prayed that as defendant was under legal obligation to support her, he be ordered to give her a monthly allowance, P200.00 from the date of the filing of the complaint. Defendant husband filed his answer contending that when they were still residing in Manila, their married life was characterized by harmony and understanding; that when they visited plaintiffs parents in Zamboanga in October 1952, he was prevailed upon by the latter to allow his wife to stay with them a while with the understanding that she would follow him later to Manila; that through insidious machinations, plaintiff's parents caused her to be alienated from him resulting in her refusal to return to Manila and live with her husband again; that defendant went back to Zamboanga City to fetch her, but through force and intimidation she was prevented by her parents from going with him; and that her parents also exerted undue pressure and influence upon his wife to file the complaint. Defendant further averred that while he was not evading his obligation to support his, he preferred to fulfill said duty by receiving and maintaining her in Manila; that as the husband, defendant had the right to fix the residence of his family, and he would even be willing to establish a conjugal dwelling in Manila separate from that of his parents if that was the plaintiff's desire. Thus, it was prayed that the complaint be dismissed. In the meantime, plaintiff filed a petition for alimony pendente lite premised on the same facts as, stated in her complaint, which was duly opposed by the defendant, and on May 3, 1954, based on stipulation of facts agreed upon by the parties, the court rendered judgment granting the wife a monthly allowance of P75 after finding that the wife's refusal to return to Manila was caused by her aversion to stay with the parents of her husband after she had experienced some previous in-law troubles; that her demand that they establish their home in Zamboanga could not be met by the husband because of the latter's job in Manila and due also to the husband's fear that his wife would always be under the influence and pressure of the latter's parents. No evidence was, however, adduced to support her allegation of incompatibility of temperament and marital quarrels, and upon receipt of the decision, defendant filed a petition electing to fulfill his; obligation as thus fixed by the trial court by receiving and maintaining plaintiff at his residence at Pasay City, which was, apart, from that of his parents, with the prayer that in the event, plaintiff would refuse to receive support under that setup, that he be declared under, no compulsion to remit the allowance to her at Zamboanga City. As it was denied, defendant brought the matter to the Court of Appeals, but this Tribunal certified the case to Us for adjudication pursuant to the provisions of Section 17-6 of Republic Act No. 296. The only question presented for, our consideration by this appeal is whether a wife is entitled to received support from his husband where she refused to live with him on account of some misunderstanding she had with the husband's immediate relatives. It is clear to Us, and this is borne out by the findings, of the court a quo, that plaintiff wife, then 19 yeas of age, had the unfortunate experience of finding herself in some sort of domestic controversy, with her husband's immediate relatives in the opposite camp, which made her feel that living with them would already be intolerable and unbearable. Most likely, therefore, when they visited her parents, she recounted her plight to them and as the usual reaction of parents in matters of this nature, they picked up and championed the cause of their daughter which resulted in the estrangement of the young couple. Indeed disagreement among in-laws is a problem as old as the world itself, but despite this discouraging facet of married life there would always be in-laws as long there are marriages and the same vicious cycle would be repeated. In the case at bar, which is a clear illustration of this perennial domestic problem, We find that while the wife remains adamant on her stand to effect a separation in fact between her and her husband, the latter, has adopted a more conciliatory attitude by acknowledging his obligation to support her and even going to the extent of expressing his willingness to abide by her wish to have a conjugal dwelling apart from his parents, although it, appears that he may find it hard to make adequate provisions for their family, for he is allegedly receiving a salary of only 170 a month as salesman in a commercial firm. Defendant does not dispute that our civil Code imposes on the husband the responsibility of maintaining and supporting, his wife and the rest of the family (Art. 111). He insists, however, that under the, Civil Code, which provides: ART. 299. The person obliged to give support may, at his option, fulfill his obligation either by paying the allowance fixed, or by receiving and maintaining in his house the person who has a right to receive support. The latter alternative cannot be availed of in this case there is a moral or legal obstacle thereto; he is given the option to fulfill the said duty either by paying the allowance as fixed by the Court or receiving and maintaining the person entitled thereto in his house; and that he elects to perform his obligation by the second means allowed him by law. The aforeqouted provision of the law is clear enough to require any further elucidation. In giving the obligor the option to fulfill his duty, it provides for only one occasion when the second alternative could not be availed of i.e., when there is a moral or legal obstacle thereto. It is true that plaintiff wife charged that they were estranged because of marital troubles and incessant bickering. While

physical ill-treatment may be ground to compel a husband to provide a separate maintenance for his wife ( Arroyo vs. Vasquez de Arroyo, 42 Phil., 54 ) said allegation was not proved during the trial. Instead, the lower court found that the root-cause of all their differences could be traced to disagreements common among relatives by affinity. Certainly, We do not think that misunderstanding with in-laws, who may be considered third parties to the marriage, is the moral or legal obstacle that the lawmakers contemplated in the drafting of said provision. The law, in giving the husband authority to fix the conjugal residence (Art. 110), does not prohibit him from establishing the same at the patriarchal home, nor is it against any recognized norm of morality, especially if he is not fully capable of meeting his obligation as such head of a family without the aid of his elders. But even granting arguendo that it might be "illegal" for him to persist on living with his parents over the objection of his wife, this argument becomes moot in view of defendant's manifestation that he is willing to establish a residence, separate from his parents, if plaintiff so desires. We are aware are that although the husband and the wife are, obliged to live together, observe mutual respect and fidelity and render mutual help and assistance ( Art. 109), and that the wife is entitled to be supported, our laws contain no provision compelling the wife to live with her husband where even without legal justification she establishes her residence apart from that provided for by the former, yet and in such event We would see no plausible reason why she should be allowed any support from the husband. It appearing that defendant husband availed of the option granted him by Article 299 of the Civil Code and there being no legal or moral hindrance to the exercise of the second alternative as elected by him, the answer to the question presented by this appeal is certainly obvious. Wherefore, the decision appealed from is hereby modified by giving the defendant husband Chua Ching Beng the option of supporting his wife at their conjugal dwelling apart from the home of the parents of the husband. Should plaintiff wife refuse to abide by the terms of this decision, then the defendantappellant shall be considered relieved from the obligation of giving any support to his wife. Without pronouncement as to costs. It is so ordered. Paras, C.J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur. SECOND DIVISION [G.R. No. 134433. May 28, 2004] PS. WILFREDO DEL ROSARIO and FE LUMOTAN DEL ROSARIO, petitioners, vs. VIRGILIO MONTAA and GENEROSO CARLOBOS, respondents. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a petition for certiorari under Rule 65 of the Rules of Court assailing the decision dated February 9, 1998 rendered by the Regional Trial Court of Caloocan City (Branch 121) dismissing petitioners complaint for quieting of title with recovery of possession de jure. The facts of this case are undisputed. On September 14, 1973, then President Ferdinand E. Marcos issued Presidential Decree No. 293, canceling certain sales certificates and/or transfer certificates of title in the name of Carmel Farms, Inc. which cover the Tala Estate in Caloocan City, and declaring these properties open for disposition to the Malacaang Homeowners Association, Inc. (MHAI). Consequently, on October 25, 1983, petitioner Fe Lumotan***, a member of the MHAI, filed an application to purchase Lot No. 18, Blk-19, Pangarap Village, Caloocan City, which is part of the Tala Estate.[1]Meanwhile, respondent Virgilio Montaas father, Margarito Montaa, filed a claim against the application of petitioner but was rejected by the Bureau of Lands in its Order dated November 2, 1983. [2] Eventually, the property was awarded to petitioner per Bureau of Lands Decision dated December 10, 1984[3] and TCT No. 120788 was issued in the name of petitioner. [4] Although not in actual possession of the disputed property, petitioner has been paying the taxes thereon.[5] Four years after, or on January 29, 1988, this Court in Tuason vs. Register of Deeds, Caloocan City,[6] declared P.D. No. 293 unconstitutional. The decretal portion of the decision reads: WHEREFORE, Presidential Decree No. 293 is declared to be unconstitutional and void ab initio in all its parts. The public respondents are commanded to cancel the inscription on the titles of the petitioners and the petitioners in intervention of the memorandum declaring their titles null and void and declaring the property therein respectively described open for disposition and sale to the members of the Malacaang Homeowners Association, Inc.; to do whatever else is needful to restore the titles to full effect and efficacy; and henceforth to refrain, cease and desist from implementing any provision or part of said Presidential Decree No. 293. No pronouncement as to costs.[7] Thus, on September 23, 1988, the Register of Deeds of Caloocan City inscribed Entry No. 218192 on petitioners title, invalidating the certificate of title pursuant to the pronouncement of the Court in the above-entitled case.[8] Petitioner then visited the property some time in 1995 and discovered that respondent Montaa had already constructed a house thereon. Respondent claimed that petitioner Fe had already lost her rights over the property. Consequently, on January 17, 1997, petitioner, joined by her husband Wilfredo del Rosario, filed a complaint for Quieting of Title with Recovery of Possession de jure.[9] Respondent filed his Answer alleging that he is the true and lawful owner of the property as his father bought the property from the Bureau of Lands, and TCT No. T-120788 in the name of petitioner had already been invalidated. [10] During pre-trial, the parties agreed on the following stipulation of facts: 2. Both parties admit that the defendants are in actual possession of the property in question; ... 5. Both parties admit that the annotation at the dorsal portion of TCT No. 127088 was the result of the declaration of the Supreme Court citing PD 293 as unconstitutional.[11]

Thereafter, the trial court, in its decision dated February 9, 1998, dismissed the complaint finding that, inasmuch as petitioners title to the property was included in those covered by P.D. No. 293, she cannot assert any right thereon because her title springs from a null and void source.[12] Hence, the petition for certiorari filed by spouses del Rosario. Petitioners believe that their title to the property is indefeasible for the reason that prior to the declaration of nullity of P.D. No. 293, its actual existence was an operative fact that may have consequences that cannot be ignored. Petitioners also cite Clarita Aben vs. Sps. Wilfredo Abella, et al. (CAG.R. CV No. 31544) decided by the Court of Appeals in February 19, 1993 upholding Abens ownership of Lot 21, Block 80 of the Tala Estate which was awarded to her by the Bureau of Lands pursuant to P.D. No. 293, to wit: While it is true that P.D. 293 had been declared null and void by the Supreme Court, it did not declare herein plaintiff-appellees title null and void. Instead, said court commanded the Register of Deeds, Kalookan City, the then Ministry of Justice and the National Treasurer to do whatever else is needful to restore the titles to full effect and efficacy of the Tuasons and the members of the Consuelo Homeowners Association who were also divested of their lands by the same P.D. 293. But as the evidence reveal, plaintiff-appellees title has not yet been cancelled (Exhibit L).[13] On the other hand, respondents contend that the petition was filed out of time as petitioners received a copy of the RTCs Decision on May 25, 1998, and the petition was filed only on July 22, 1998 which is beyond the 15-day reglementary period provided for in Section 2, Rule 45 of the Rules of Court. Thus, the Court is now confronted with two issues: First, the procedural issue of whether or not the instant petition was timely filed; and Second, whether or not petitioners title to the property is deemed invalidated when this Court declared P.D. No. 293 unconstitutional in Tuason vs. Register of Deeds, Caloocan City. As regards the procedural issue, petitioners refute respondents allegation that the petition was filed out of time, asserting that the present action is one for certiorari under Rule 65 of the Rules of Court, hence, the sixty-day reglementary period is applicable.[14] What is being assailed in the present petition is the decision of the Regional Trial Court dismissing their complaint for Quieting of Title with Recovery of Possession de jure, which is a final order. An order is deemed final when it finally disposes of the pending action so that nothing more can be done with it in the lower court (Mejia v. Alimorong, 4 Phil. 572; Insular Government v. Roman Catholic Bishop of Nueva Segovia, 17 Phil. 487; People v. Macaraig, 54 Phil. 904). In other words, a final order is that which gives an end to the litigation (Olsen & Co. v. Olsen, 48 Phil. 238). The test to ascertain whether an order is interlocutory or final is: does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final (Moran, Comments on the Rules of Court, Vol. 1, 3rd ed. pp. 806-807). A final order is that which disposes of the whole subject-matter or terminates the particular proceedings or action, leaving nothing to be done but to enforce by execution what has been determined (2 Am. Jur., section 22, pp. 861-862). (Reyes v. De Leon, G.R. No. L-3720, June 24, 1952). [15] Therefore, the proper mode of appeal should be a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, and not a special civil action for certiorariunder Rule 65. As such, it should have been filed within the 15-day reglementary period. [16] Clearly, on the basis of such ground alone, the petition should be dismissed. Moreover, petitioners clearly disregarded the doctrine of hierarchy of courts which serves as a general determinant of the proper forum for the availment of the extraordinary remedies of certiorari, prohibition, mandamus, quo warranto, and habeas corpus.[17] As held in People vs. Court of Appeals: There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (inferior) courts should be filled with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that us necessary to prevent inordinate demands upon the Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Courts docket.[18] While the doctrine admits of certain exceptions, i.e., special and important reasons or for exceptional and compelling circumstances, [19] the circumstances of this case do not permit the application of such exceptions. Considering, therefore, that the present special civil action of certiorari under Rule 65 is within the concurrent original jurisdiction of the Supreme Court and the Court of Appeals, the petition should have been initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts. However, the Court may brush aside the procedural barrier and take cognizance of the petition as it raises an issue of paramount importance and constitutional significance.[20] Thus, in order to set matters at rest, the Court shall resolve the second issue or the merits for future guidance of the bench and bar. In the Tuason case, the Court declared P.D. No. 239 as unconstitutional and void ab initio in all its parts.[21] It becomes imperative to determine the effect of such declaration on Torrens titles that have been issued to persons who in good faith, had availed of the benefits under P.D. No. 239 before it was declared void ab initio for being unconstitutional. We have consistently held that the Torrens system is not a means of acquiring titles to lands; it is merely a system of registration of titles to lands.[22]

At this point, a brief discourse on the decision of the Court in Tuason vs. Register of Deeds, Caloocan City is in order. In 1965, petitioners Tuason spouses bought from Carmel Farms, Inc. (Carmel for brevity) a parcel of land in the subdivision of Carmel by virtue of which Carmels Torrens title over said lot was cancelled and a new title issued in the name of the Tuason spouses. Eight years thereafter, or in September 14, 1973, the then President Ferdinand E. Marcos issued Presidential Decree No. 293, portions of which read as follows: . . . according to the records of the Bureau of Lands, neither the original purchasers nor their subsequent transferees have made full payment of all installments of the purchase money and interest on the lots claimed by the Carmel Farms, Inc., including those on which the dwellings of the members of said Association stand. Hence, title to said land has remained with the Government, and the land now occupied by the members of said association has never ceased to form part of the property of the Republic of the Philippines, any and all acts affecting said land and purporting to segregate it from the said property of the Republic of the Philippines being therefore null and void ab initio as against the law and public policy. ... NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-chief of all the Armed Forces of the Philippines, and pursuant to Proclamation 1081, dated September 21, 1972, and General Order No. 1, dated September 22, 1972, do hereby order and decree that any and all sales contracts between the government and the original purchasers, are hereby cancelled, and those between the latter and the subsequent transferees, and any and all transfers thereafter, covering lots 979, 981, 982, 985, 988, 989, 990, 991-new, 1226, 1228, 1230, and 980-C-2 (LRC PSD-1730), all of Tala Estate, Caloocan City, are hereby declared invalid and null and void ab initio as against the Government; that Transfer Certificates of Title Nos. 62603, 62604, 62605, covering lots 1, 2 and 3, PCS-4383, all in the name of Carmel Farms, Inc., which are a consolidation and subdivision survey of the lots hereinbefore enumerated, are declared invalid and considered cancelled as against the Government; and that said lots are declared open for disposition and sale to the members of the Malacanang Homeowners Association, Inc., the present bona fide occupants thereof, pursuant to Commonwealth Act No. 32, as amended.[23] Thereupon, the Register of Deeds of Caloocan City inscribed the following in TCT No. 8314 of the Tuason spouses: MEMORANDUM. Pursuant to Presidential Decree No. 293, this certificate of title is declared invalid and null and void ab initio and considered cancelled as against the Government and the property described herein is declared open for disposition and sale to the members of the Malacaang Homeowners Association, Inc.[24] Aggrieved, the Tuason spouses filed with this Court a petition for certiorari assailing P.D. No. 293 as arbitrary, depriving them of their property in favor of a selected group and violating constitutional provisions on due process and eminent domain as well as the Land Registration Act on the indefeasibility of Torrens titles. The Solicitor General opposed the petition. The Court en banc resolved: The procedural issue is quite easily disposed of. It is true that the extrodinary writ of certiorari may properly issue to nullify only judicial or quasi-judicial acts, unlike the writ of prohibition which may be directed againstacts either judicial or ministerial. Section 1, Rule 65 of the Rules of Court deals with the writ of certiorari in relation to any tribunal, board or officer exercising judicial functions, while Section 2 of the same Rule treats of the writ of prohibition in relation to proceedings of any tribunal, corporation, board, or person x x exercising functions judicial or ministerial. But the petition will be shown upon analysis to be in reality directed against an unlawful exercise of judicial power. The decree reveals that Mr. Marcos exercised an obviously judicial function. He made a determination of facts, and applied the law to those facts, declaring what the legal rights of the parties were in the premises. These acts essentially constitute a judicial function, or an exercise of jurisdiction which is the power and authority to hear or try and decide or determine a cause. He adjudged it to be an established fact that neither the original purchasers nor their subsequent transferees have made full payment of all installments of the purchase money and interest on the lots claimed by Carmel Farms, Inc., including those on which the dwellings of the members of x x (the) Association (of homeowners) stand. And applying the law to that situation, he made the adjudication that title of said land has remained with the Government, and the land now occupied by the members of said association has never ceased to form part of the property of the Republic of the Philippines, and that any and all acts affecting said land and purporting to segregate it from the said property of the Republic x x (were) null and void ab initio as against the law and public policy. These acts may thus be properly struck down by the writ of certiorari, because done by an officer in the performance of what in essence is a judicial function, if it be shown that the acts were done without or in excess of jurisdiction, or with grave abuse of discretion. Since Mr. Marcos was never vested with judicial power such power, as everyone knows, being vested in the Supreme Court and such inferior courts as my be established by law the judicial acts done by him were in the circumstances indisputably perpetrated without jurisdiction. The acts were completely alien to his office as chief executive, and utterly beyond the permissible scope of the legislative power that he had assumed as head of the martial law regime. Moreover, he had assumed to exercise power i.e., determined the relevant facts and applied the law thereto without a trial at which all interested parties were accorded the opportunity to adduce evidence to furnish the basis for a determination of the facts material to the controversy. He made the finding ostensibly on the basis of the records of the Bureau of Lands. Prescinding from the fact that there is no indication whatever the nature and reliability of these records and that they are in no sense conclusive, it is undeniable that the petitioners Tuasons (and the petitioners in intervention) were never confronted

with those records and afforded a chance to dispute their trustworthiness and present countervailing evidence. This is yet another fatal defect. The adjudication was patently and grossly violative of the right to due process to which the petitioners are entitled in virtue of the Constitution. Mr. Marcos, in other words, not only arrogated unto himself a power never granted to him by the Constitution or the laws but had in addition exercised it unconstitutionally. In any event, this Court has it in its power to treat the petition for certiorari as one for prohibition if the averments of the former sufficiently made out a case for the latter. Considered in this wise, it will also appear that an executive officer had acted without jurisdiction exercised judicial power not granted to him by the Constitution or the laws and had furthermore performed the act in violation of the constitutional rights of the parties thereby affected. The Court will grant such relief as may be proper and efficacious in the premises even if not specifically sought or set out in the prayer of the appropriate pleading, the permissible relief being determined after all not by the prayer but by the basic averments of the parties pleadings. There is no dispute about the fact that title to the land purchased by Carmel was actually issued to it by the Government. This of course gives rise to the strong presumption that official duty has been regularly performed, that official duty being in this case the ascertainment by the Chief of the Bureau of Public Lands of the fulfillment of the condition prescribed by law for such issuance, i.e., the payment in full of the price, together with all accrued interest. Against this presumption there is no evidence. It must hence be accorded full sway in these proceedings. Furthermore, the title having been duly issued to Carmel, it became effective in the manner provided in section one hundred and twenty-two of the Land Registration Act. It may well be the fact that Carmel really did fail to make full payment of the price of the land purchased by it from the Government pursuant to the provisions of Act 1120. This is a possibility that cannot be totally discounted. If this be the fact, the Government may bring suit to recover the unpaid installments and interest, invalidate any sale or encumbrance involving the land subject of the sale, and enforce the lien of the Government against the land by selling the same in the manner provided by Act Numbered One Hundred and Ninety for the foreclosure of mortgages. This it can do despite the lapse of considerable period of time. Prescription does not lie against the Government. But until and unless such a suit is brought and results in a judgment favorable to the Government, the acquisition of title by Carmel and the purchases by the petitioners and the petitioners-intervenors from it of portions of the land covered by its original title must be respected. At any rate, the eventuation of that contingency will not and cannot in any manner affect this Courts conclusion, herein affirmed, of the unconstitutionality and invalidity of Presidential Decree No. 293, and the absolute lack of any right to the land or any portion thereof on the part of the members of the so-called Malacaang Homeowners Association, Inc. The decree was not as claimed a licit instance of the application of social justice principles or the exercise of police power. It was in truth a disguised, vile stratagem deliberately resorted to favor a few individuals, in callous and disdainful disregard of the rights of others. It was in reality a taking of private property without due process and without compensation whatever, from persons relying on the indefeasibility of their titles in accordance with and as explicitly guaranteed by law.[25] Nevertheless, certain factors must likewise be taken into account. One is that the Register of Deeds of Caloocan City has already invalidated petitioners title over the property, TCT No. 120788, [26] pursuant to the decree of this Court in Tuason vs. Register of Deeds, Caloocan City, and as it stands now, petitioners are holders of a canceled transfer certificate of title. Another is that petitioners, while paying the real estate taxes due on the property, are not in actual physical possession thereof.[27] These circumstances work against petitioners interest and confirm their lack of cause of action. The court a quo, therefore, did not err in dismissing petitioners complaint. Petitioners cannot rely on the ruling of the Court of Appeals in the Aben case. Unlike in the present case, the certificate of title of the plaintiff in the Aben case was not canceled by the Register of Deeds.[28] Also, the defendants therein admitted that the plaintiff was in actual possession of the property even prior to the issuance of the certificate of title.[29] In fine, the Court finds the petition to be without merit. WHEREFORE, the petition is dismissed for lack of merit and the decision of the Regional Trial Court of Caloocan City (Branch 121) in Civil Case No. C-489 is AFFIRMED. SO ORDERED. Quisumbing, Callejo, Sr., and Tinga, JJ., concur. Puno, (Chairman), on official leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13114 August 29, 1961 ELENITA LEDESMA SILVA, ET AL., plaintiffs-appellants, vs. ESTHER PERALTA, defendant-appellee. E.B. Garcia Law Offices and Ledesma, Puno Guytingco and Antonio & Associates for plaintiffs-appellants. Quijano, Abellera, Santos Corrales & Nitrorreda for defendant-appellee. RESOLUTION REYES, J.B.L., J.: Appellants spouses Saturnino Silva and Elenita LedesmaSilva pray for reconsideration of this Court's decision of November 25, 1960, claiming that

(1) Appellant Elenita Silva should be awarded moral damages for Esther Peralta's unauthorized use of the designation of "Mrs. Esther Silva"; (2) The award of pecuniary damages against appellant Saturnino Silva is unwarranted by the facts and the law. It is contended that the prohibition imposed upon appellee Esther Peralta from representing herself, directly or indirectly, as the wife of Saturnino Silva should result in an award of moral damages in favor of appellant Elenita Ledesma, whose exclusive right to the appellation is recognized by the decision. This argument misapprehends the bias of the decision. Esther Peralta was forbidden from representing herself as Mrs. Saturnino Silva for the reason that it was proved in this case that she was not legally married to him, and because he is now lawfully married to Elenita Ledesma. But an award of damages in the latter's favor would require a further finding that the assumption of the disputed status by Esther Peralta was made in bad faith or through culpable negligence and no such finding has been made in the decision. The facts are that the Esther in good faith regarded herself as Saturnino's lawful wife, and that the man himself led her into this belief prior to his desertion. That later on, unknown to Esther, Silva should have married his co-appellant in the United States is not sufficient to impose upon Esther any liability for damages or to destroy her original good faith, there being no proof that the existence of a valid marriage between Saturnino and Elenita was adequately driven home to Esther before this case was instituted. That the two appellants Silva were living together as husband and wife was certainly not sufficient proof, considering Saturnino Silva's past history and conduct. How was appellee to know that Saturnino's connection with Elenita Ledesma was any more legitimate than his previous one with appellee herself? Moreover, the trial court found Elenita Silva's claim for damages not adequately proved, and we have not found in the record any justification to depart from that finding. II As to the award of damages against Saturnino Silva, it is to be noted that while the latter's liability was extra-contractual in origin, still, under the Civil Code of 1889, the damages resulting from a tort are measured in the same manner as those due from a contractual debtor in bad faith, since he must answer for such damages, whether he had foreseen them or not, just as he must indemnify not only for dumnum emergens but also forlucrum cessans, as required by Article 1106. Article 1902 of the 1889 Civil Code of Spain formulated no standard for measuring quasidelictual damages, the article merely prescribing that the guilty party "shall be liable for the damages so done". This indefiniteness led modern civil law writers to hold that the standards set in Articles 1106 and 1107, place in the general rules on obligations, "rigen por igual para las contractuales y las extra contractuales, las preestablecidas y las que broten ex-lege de actos ilicitos". (Roces, Notesto Fisher, "Los Daos Civiles y su Reparacion," (1927). Since liability for damages arises in either case from a breach of a pre-existing obligation (to behave without fault or negligence in case of quasi-delicts, and, in case of contracts, to observe the conduct required by the stipulation),it is logical to conclude with Planiol that "La responsabilidad contractual y la extra contractual tienen el mismo fundamento, por lo que se hallan sujetas en principio a identicas regalas" (6 Planiol-Ripert, Derecho Civil, p. 529,sec. 378). Giorgi is of the same opinion (5 Teoria de Obligaciones, pp. 133, 207-208). So is de Cossio y Corral("El Dolo en el Derecho Civil", pp. 132-133): Pero si ello es asi, resulta claro que la aproximacionentre esta clase de culpa y la contractual, es cada dia mayor,hasta el extremo de que, segun hemos antes indicado solamente se pueden sealar diferencias accessorias, y muchas veces aparentes entre una y otra. En primer termino, porque el conceptode culpa contractual se extiende no solo a las obligacionesnacidas ex contractu, sino, en general, a todas aquellas preexistentes entre las partes a la realidad del acto daoso (obligaciones legales). de otra parte, porque si bien consideramoslas cosas, la responsabilidad llamada extracontractual, deriva siempre del quebrantamiento de un deber general, implicitamentereconocido por la ley, cual es el de que todos deben actuar socialmente con la debida diligencia, evitando causar dano a los demas, y una dercho que todo ciudadano tine, correlativamente,a no ser da__ado en su patrimonio y bienes por la conducta dolosa o negligente de los demas. En tal sentido, habria siempre entre el autor del dao y la victima, una relacion juridica,constituida por este derecho y aquel deber. Este idea de unidad entre ambas instituciones se traduce en que las pretendidadas diferencias en order a la extension de la indemnizacion, en ambos casos, no puedan defenderse a la vista de los preceptos de nuestro Derecho positivo. En efectono contiene el Capitulo II del Titulo XVI del Libro IV de nuestroCodigo civil norma alguna referente a la extension de la indemnizacion que en cada caso haya de prestarse, lo que nosobliga forzosamente a acudir a las normas general contenidasen el Capitulo II, del Titulo I de dicho libro, IV, relativeo a los "efectos de los obligaciones", que ninguna razon peermite limitar.a naturaleza contractual, ya que el articulo 1.101 hable genericamente de obligaciones el 1.102, de "todas las obligaciones";el 1.103, de toda clase de obligaciones", y en ninguno de los articulos subsifuientes se hace referencia a una clase especial de obligaciones, sino a todas en general. Que las disposiciones de este Capitulo son aplicables en loscasos de culpa extracontractual, es doctrina constantemente reconocida, por la jurisprudencia del Tribunal Supremo. Asi,en la sentencia de 14 de diciembre de 1894, concretandose a losarticulos 1.101, 1.103 y 1.104, afirma que son de caracter generaly applicables a toda clase de obligaciones, no ofreciendocontradiccion con las especiales de los articulos 1.902 y 1.903; la sentencia de 15 de enero de 1902, permite interpretar los articulos1.902, t 1.903 por los 1.103 y 1.106, a los efectos de determinar los elementos que han de entrar en la indemnizacion.La misma doctrina se mantiene en la senencia de 2 de diciembrede 1946, y en otras muchas que puedieramos aducir. Whether or not the damages awarded to appellee are a natural and direct consequence of Silva's deceitful maneuvers in making love to appellee, and inducing her to yield to his advances and live with him as his wife (when Silva

knew all the time that he could not marry Esther Peralta because of his undissolved marriage to an Australian woman, a prior wedlock that he concealed from appellee), is a question of appreciation. It is clear that Esther Peralta would not have consented to the liaison had there been no concealment of Silva's previous marriage, or that the birth of the child was a direct result of this connection. That Esther had to support the child because Silva abandoned her before it was born is likewise patent upon the record, and we can not see how said appellant can be excused from liability therefor. Silva's seduction and subsequent abandonment of appellee and his illegitimate child were likewise the direct cause for the filling of the support case in Manila, and in order to prosecute the same, appellee had to quit her employment in Davao. While the case could have been filed in Davao, we do not believe that this error in selecting a more favorable venue (due to her unfamiliarity with the technicalities of the law) should be allowed to neutralized the appellant Silva's responsibility as the primary causative factor of the prejudice and damage suffered by appellee. It is argued that the maintenance of the child can not be considered as an element of damage because the child's case for support was dismissed. This contention fails to take into account the action there was for support as an acknowledged natural child, and that under the Civil Code of 1889 (the law in force when the child was born), the right of natural children to be supported by their father depended exclusively on the recognition by the father of his paternity; the rule being that the mere fact of birth gave no legal right to the child, and imposed no legal duty upon the father, except, perhaps, in cases arising under the criminal law.. . . The father was not, prior to the Civil Code, and is not now, bound to recognize his natural son by reason of the mere fact that he is the father. . . . But as to the father the question is, and always has been, Has he performed any acts which indicate his intention to recognize the child as his?" (Buenaventura vs. Urbano, 5 Phil., pp. 2-3). It follows that in said suit, the real issue was whether the child had been duly recognized, the support being a mere consequence of the recognition. Therefore, the failure of the child's action for support did not adjudge that he was not the defendant's child, but that the defendant never recognized him as such. That the decision of the Court of Appeal (CA-G.R. No. 24532-R) rejecting the child's action did not declare him without right to support under all circumstances can be seen from the following statement in the decision: The proofs so far found in the record may possibly warrant the filing of an action for compulsory recognition, under paragraphs 3 and 4 of Art. 283, but there was no action presented to that effect. Plainly, the issues and parties being different, the result of the child's action can not constitute res judicata with regard to the mother's claim for damages against the father on account of the amounts she was compelled to spend for the maintenance of their child. On the contrary, the very fact that the child was not allowed to collect support from the father (appellant therein) merely emphasizes the account of his birth and rearing, which, in turn, was a direct consequence of appellant's tortious conduct. Since Esther Peralta had expressly that she had to support the child (Record of Appeal, p. 27, in fine),and had prayed for such relief "as may be deemed just and equitable in the premises", there is no reason why her expenses for the child's maintenance should not be taken into account. Appellants submit that the damages allowed for maintenance of the son should be limited to P600.00 a year, because the income tax law allows only that much deduction for each child. We do not believe that income tax deductions constitute a reasonable basis for an award of damages, since they are fixed an entirely different purpose (to arrive at the net taxable income) and merely represent the amount that the state is willing to exempt from taxation. At that, it should be noted that the deductible amount has been lately increased to P1,000.00 per annum. But even at P600.00 per annum, the damage suffered by appellee on this count, from 1945 to 1960, already amount to around P9,000.00 a year, to which must be added the loss of appellee's salary as executive of the Girl Scouts in Davao; so that the P15,000.00 damages awarded by the court below is by no means excessive, as already held in our decision in chief. Appellants also contend that the claim for pecuniary damages has prescribed, because they date back to 1945. Suffice it to note that the defense of prescription was not invoked by appellants against the claim for pecuniary damages, and this defense must be regarded as waived in relation to the same. Appellant's reply to the appellee'sfirst counterclaim in her second amended answer (which was for actual or pecuniary damages) read as follows (Answer to Counterclaim, Rec. App. p. 33): 1. That plaintiff is without knowledge or information sufficient to to form a belief as to the truth of the allegations continued under paragraphs 6, 7, 8, 9, 10, 11 and 12 of the first counterclaim and, therefore, specifically denies the same. The defense of prescription was actually interposed only against the second counterclaim, in this wise: 1. That the cause of action alleged in the second counterclaim has already prescribed more than ten years having already elapsed. (Answer to Counterclaim, Rec. App., p. 34). The second counterclaim referred to was for damages due to "mental torture, anguish and hurt feelings, all to her damage in the amount of P250,000." (Rec. App. p. 28).Upon the other hand, our own award for moral damages was based, not on the deceit practiced by Silva in securing Esther's assent to live maritally with him, but on his subsequent harassment of her in 1945, by filing suit against her in different provinces and otherwise applying pressure to cause her to abandon her child's case. As this cause of action arose less than three years before the present action was filed, the defense of prescription is rendered untenable against it, for the limitation period had not yet expired when the suit was brought. WHEREFORE, the motion for reconsideration is denied. Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Paredes and Dizon, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-17014 August 11, 1921 MARIANO B. ARROYO, plaintiff-appellant, vs. DOLORES C. VASQUEZ DE ARROYO, defendant-appellee. Fisher & DeWitt for appellant. Powell & Hill for appellee. STREET, J.: Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the bonds of wedlock by marriage in the year 1910, and since that date, with a few short intervals of separation, they have lived together as man and wife in the city of Iloilo until July 4, 1920, when the wife went away from their common home with the intention of living thenceforth separate from her husband. After efforts had been made by the husband without avail to induce her to resume marital relations, this action was initiated by him to compel her to return to the matrimonial home and live with him as a dutiful wife. The defendant answered, admitting the fact of marriage, and that she had left her husband's home without his consent; but she averred by way of defense and cross-complaint that she had been compelled to leave by cruel treatment on the part of her husband. Accordingly she in turn prayed for affirmative relief, to consist of (1) a decree of separation; (2) a liquidation of the conjugal partnership; (3) and an allowance for counsel fees and permanent separate maintenance. Upon hearing the cause the lower court gave judgment in favor of the defendant, authorizing her to live apart from her husband, granting her alimony at the rate of P400 per month, and directing that the plaintiff should pay to the defendant's attorney the sum of P1,000 for his services to defendant in the trial of the case. The plaintiff thereupon removed the case with the usual formalities by appeal to this court. The trial judge, upon consideration of the evidence before him, reached the conclusion that the husband was more to blame than his wife and that his continued ill-treatment of her furnished sufficient justification for her abandonment of the conjugal home and the permanent breaking off of marital relations with him. We have carefully examined and weighed every line of the proof, and are of the opinion that the conclusion stated is wholly untenable. The evidence shows that the wife is afflicted with a disposition of jealousy towards her husband in an aggravated degree; and to his cause are chiefly traceable without a doubt the many miseries that have attended their married life. In view of the decision which we are to pronounce nothing will be said in this opinion which will make the resumption of married relations more difficult to them or serve as a reminder to either of the mistakes of the past; and we prefer to record the fact that so far as the proof in this record shows neither of the spouses has at any time been guilty of conjugal infidelity, or has given just cause to the other to suspect illicit relations with any person. The tales of cruelty on the part of the husband towards the wife, which are the basis of the cross-action, are in our opinion no more than highly colored versions of personal wrangles in which the spouses have allowed themselves from time to time to become involved and would have little significance apart from the morbid condition exhibited by the wife. The judgment must therefore be recorded that the abandonment by her of the marital home was without sufficient justification in fact. In examining the legal questions involved, it will be found convenient to dispose first of the defendant's cross-complaint. To begin with, the obligation which the law imposes on the husband to maintain the wife is a duty universally recognized in civil society and is clearly expressed in articles 142 and 143 of the Civil code. The enforcement of this obligation by the wife against the husband is not conditioned upon the procurance of a divorce by her, nor even upon the existence of a cause for divorce. Accordingly it had been determined that where the wife is forced to leave the matrimonial abode and to live apart from her husband, she can, in this jurisdiction, compel him to make provision for her separate maintenance (Goitia vs. Campos Rueda, 35 Phil., 252); and he may be required to pay the expenses, including attorney's fees, necessarily incurred in enforcing such obligation, (Mercado vs. Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the interests of both parties as well as of society at large require that the courts should move with caution in enforcing the duty to provide for the separate maintenance of the wife, for this step involves a recognition of the de facto separation of the spouses a state which is abnormal and fraught with grave danger to all concerned. From this consideration it follows that provision should not be made for separate maintenance in favor of the wife unless it appears that the continued cohabitation of the pair has become impossible and separation necessary from the fault of the husband. In Davidson vs Davidson, the Supreme Court of Michigan, speaking through the eminent jurist, Judge Thomas M. Cooley, held that an action for the support of the wife separate from the husband will only be sustained when the reasons for it are imperative (47 Mich., 151). That imperative necessity is the only ground on which such a proceeding can be maintained also appears from the decision in Schindel vs. Schindel (12 Md., 294). In the State of South Carolina, where judicial divorces have never been procurable on any ground, the Supreme court fully recognizes the right of the wife to have provision for separate maintenance, where it is impossible for her to continue safely to cohabit with her husband; but the same court has more than once rejected the petition of the wife for separate maintenance where it appeared that the husband's alleged cruelty or ill-treatment was provoked by the wife's own improper conduct. (Rhame vs. Rhame, 1 McCord's Chan. [S. Car.], 197; 16 Am. Dec., 597; Boydvs. Boyd, Har. Eq. [S. Car.], 144.) Upon one occasion Sir William Scott, pronouncing the judgment of the English Ecclesiastical Court in a case where cruelty on the part of the husband was relied upon to secure a divorce for the wife, made use of the following eloquent words, which are perhaps even more applicable in a proceeding for separate maintenance in a jurisdiction where, as here, a divorce cannot be obtained except

on the single ground of adultery and this, too, after the conviction of the guilty spouse in a criminal prosecution for that crime. Said he: That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but the question occurs, What is cruelty? . . . What merely wounds the mental feelings is in few cases to be admitted where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty: they are high moral offenses in the marriage-state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, for it may exist on the one side as well as on the other, the suffering party must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or by prudent conciliation; and if this cannot be done, both must suffer in silence. . . . The humanity of the court has been loudly and repeatedly invoked. Humanity is the second virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined its views merely to the happiness of the present parties, it would be a question easily decided upon first impressions. Every body must feel a wish to sever those who wish to live separate from each other, who cannot live together with any degree of harmony, and consequently with any degree of happiness; but my situation does not allow me to indulge the feelings, much less the first feelings of an individual. The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. . . . To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it would not be difficult to show that the law in this respect has acted with its usual wisdom and humanity with that true wisdom, and that real humanity, that regards the general interests of mankind. For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individual, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know cannot shake off; they become good husbands and good wives form the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes. . . . In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good. (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.) In the light of the considerations stated, it is obvious that the cross-complaint is not well founded and none of the relief sought therein can be granted. The same considerations that require the dismissal of the cross-complaint conclusively prove that the plaintiff, Mariano B. Arroyo, has done nothing to forfeit his right to the marital society of his wife and that she is under an obligation, both moral and legal, to return to the common home and cohabit with him. The only question which here arises is as to the character and extent of the relief which may be properly conceded to him by judicial decree. The action is one by which the plaintiff seeks the restitution of conjugal rights; and it is supposed in the petitory part of the complaint that he is entitled to a permanent mandatory injunction requiring the defendant to return to the conjugal home and live with him as a wife according to the precepts of law and morality. Of course if such a decree were entered, in unqualified terms, the defendant would be liable to attachment for contempt, in case she should refuse to obey it; and, so far as the present writer is aware, the question is raised for the first time in this jurisdiction whether it is competent for the court to make such an order. Upon examination of the authorities we are convinced that it is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the property rights of one of the pair are invaled, an action for restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an order, enforcible by process of contempt, may be entered to compel the restitution of the purely personal rights of consortium. At best such an order can be effective for no other purpose than to compel the spouses to live under the same roof; and the experience of these countries where the court of justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if the facts were found to warrant it that court would make a mandatory decree, enforcible by process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the English law on the subject was not the same as that which prevailed in Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an order for the periodical payment of a stipend in the character of alimony. In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted to make a peremptory order requiring one of the spouses to live with the other; and that was in a case where a wife was ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The decision referred to (Gahn vs. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently

has not been fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148.) In a decision of January 2, 1909, the supreme court of Spain appears to have affirmed an order of the Audencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make a particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11.) but it does not appear that this order for the return of the wife to the marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to the use and control of her property; and it does not appear that her disobedience to that order would necessarily have been followed by imprisonment for contempt. We are therefore unable to hold that Mariano B. Arroyo in this case is entitled to the unconditional and absolute order for the return of the wife to the marital domicile, which is sought in the petitory part of the complaint; though he is, without doubt, entitled to a judicial declaration that his wife has presented herself without sufficient cause and that it is her duty to return. Therefore, reversing the judgment appealed from, in respect both to the original complaint and the cross-bill, it is declared that Dolores Vasquez de Arroyo has absented herself from the marital home without sufficient cause; and she is admonished that it is her duty to return. The plaintiff is absolved from the crosscomplaint, without special pronouncement as to costs of either instance. So ordered. Mapa, C.J., Johnson, Araullo, Avancea and Villamor, JJ., concur.

PROPERTY RELATIONS DONATIONS Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12093 June 29, 1959 ESTANISLAO SERRANO, plaintiff-appellant, vs. MELCHOR SOLOMON, defendant-appellee. Constante Pimentel for appellant. Faustino B. Tobia, Eufrecino T. Tagayana, Pedro R. Arce and Emmanuel U. Ujano for appellee. MONTEMAYOR, J.: Estanislao Serrano is appealing the decision of the Court of First Instance of Ilocos Sur, Judge Jose G. Bautista presiding, declaring null and void the supposed donation propter nuptias on which his complaint was based and dismissing the later upon motion of the defendant. The motion for dismissal was filed before the hearing but the trial court deferred action upon it until after submission of evidence by the parties. Said parties entered into a stipulation of facts after which they declined to submit any other evidence except Exhibit "A", the supposed deed of donation propter nuptias, the translation of which, for purposes of reference, is reproduced below: That, I Melchor Solomon, single, Filipino, of legal age, native of the municipality of Sinait, province of Ilocos Sur and residing at present in Sinait, having decided to get married with the consent of my parents, brothers, or sisters and relatives, have announced and manifested my determination and desire to Mr. Estanislao Serrano to whose family the flower I intend to win belongs, namely Miss Alejandria Feliciano single, born in Hawaii but is actually residing in Cabugao, Ilocos Sur. This ardent desire favored by good luck and accepted by the noble lady the one concerned, is to be realized and complied with under agreement or stipulation which affirms, promotes and vivifies the union. This agreement donating all my exclusive properties in order that we shall have a basic capital for our conjugal life and in order that there will be ready maintenance and support of offsprings has come out voluntarily and expontaneously from me, I the very one concerned. These which I am donating my exclusive properties because I have honestly acquired the same with the sweat of my brows and I donate them gladly, to wit . . .; The referred to properties are donated in accordance with the existing laws of the Philippines and our children out of the wedlock will be the ones to inherit same inherit same with equal shares. But if God will not bless our union with any child one half of all my properties including the properties acquired our conjugal union will be given the (to) my brothers or sisters or their heirs if I, the husband will die before my wife and if my beloved wife will die before me, one half of all my properties and those acquired by us will be given to those who have reared my wife in token of my love to her. . . . (Emphasis supplied) Alejandria Feliciano, whose father went to Hawaii to seek his fortune and who until now resides there, had been left to her father's friend named Estanislao Serrano who took care of and raised her from the age 12 until she reached womanhood. On June 21, 1948, defendant Melchor Solomon married Alejandria. On the same day of the marriage but before the marriage ceremony he executed the alleged Deed of Donation, Exhibit "A" above reproduced. Less than nine months after marriage, or rather on March 2, 1949, Alejandria died without issue. Several months thereafter Estanislao Serrano commenced the present action to enforce and implement the terms of the alleged donation particularly that portion thereof to the effect that if Alejandria died before her husband Melchor and left no children, then one half of Melchor's properties and those acquired by him and

his wife would be given to those persons who had raised and taken care of her namely, Estanislao Serrano. Acting upon the motion for dismissal the trial court found that the donation could not be regarded as a donationpropter nuptias for the reason that though it was executed before the marriage, it was not made in consideration of the marriage and, what is more important, that the donation was not made to one or both of the (marriage) contracting parties, but to a third person. After a careful study of the case, we fully agree with the trial court. Article 1327 of the Old Civil Code reads: Art. 1327. Donations by reasons of marriage are those bestowed before its celebration in consideration of the same, upon one or both of the spouses. This article was reproduced in the Civil Code under Article 126. Whether we apply Article 1327 for the reason that the document Exhibit "A" was executed in 1948 before the promulgation of the New Civil Code in 1950 or whether we apply Article 126 of the New Civil Code the result would be the same. Was the donation made in considerations of the marriage between Melchor and Alejandria or was it made consideration of the death of either of them in the absence of any children? True, the Deed of Donation was executed on the occasion when they married. But, the marriage in itself was not the only consideration or condition under which terms of the donation would be carried out. The marriage would have to be childless and one of the spouses would have to die before the other before the donation would operate. So, strictly, speaking, the donation may not be regarded as one made in consideration of the marriage. But assuming for the moment that it was made in consideration of the marriage, still, we have the fact that the donation was being made not in favor of Alejandria, the wife, but rather in favor of those who acted as her parents and raised her from girlhood to womanhood in the absence of her father. That does not place it within the provisions of Article 1327 and Article 126 of the Old Civil Code and the New Civil Code, respectively. Manresa, in his commentary on Article 1327 of the Civil Code says the following: Donations excluded are those (1) made in favor of the spouses after the celebration of marriage; (2) executed in favor of the future spouses but not in consideration of the marriage; and (3) granted to persons other than the spouses even though they may be founded on the marriage (6 M. 232). Having come to the conclusion that the Deed of Donation does not fulfill the requirements of a donation propter nuptias and that it might be considered a donation inter vivos, can it be considered valid and effective? Hardly, because it was never accepted by the donee either in the same instrument or donation or in a separate document as required by law. Again, may the donation be regarded a donation mortis causa, and given effect? The answer has to be in the negative for the reason that this Tribunal has heretofore consistently held that a donation to take effect after the death of the donor, is equivalent to a disposition or bequest of property by last will, an it should be executed in accordance with the requisites and strict provisions governing the execution wills;1 and Exhibit "A" does not fulfill said requirements. Moreover, in the present case, the donor is still alive and naturally, even if the donation were otherwise valid, still, the time and occasion have not arrived for considering its operation and implementation. In view of the foregoing, the appealed decision is hereby affirmed, with costs. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Concepcion, Endencia and Barrera, JJ., concur. Footnote 1 Tuason and Tuason vs. Posadas, 54 Phil., 289; Cario vs. Abaya, 70 Phil., 182; and Tagala vs. Ibeas, 49 Off. Gaz., No. 1, p. 200 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-27939 October 30, 1928 FORTUNATA SOLIS, plaintiff-appellee, vs. MAXIMA BARROSO, ET AL., defendants-appellants. Mabanag and Primicias, Emiliano A. Ramos and Eugenio S. Estayo for appellants. Turner, Rheberg and Sanchez for appellee. AVANCEA, C. J.: The spouses Juan Lambino and Maria A. Barroso begot three children named Alejo, Eugenia and Marciana Lambino. On June 2, 1919 said spouses made a donation of propter nuptias of the lands described in the complaint in favor of their son Alejo Lambino and Fortunata Solis in a private document (Exhibit A) in consideration of the marriage which the latter were about to enter into. One of the conditions of this donation is that in case of the death of one of the donees, one-half of these lands thus donated would revert to the donors while the surviving donee would retain the other half. On the 8th of the said month of June 1919, Alejo Lambino and Fortunata Solis were married and immediately thereafter the donors delivered the possession of the donated lands to them. On August 3, 1919 donee Alejo Lambino died. In the same year donor Juan Lambino also died. After the latter's death, his wife, Maxima Barroso, recovered possession of the donated lands. The surviving donee Fortunata Solis filed the action, which is the subject matter of this appeal, against the surviving donor Maxima Barroso and Eugenia and Marcelina Lambino, heirs of the deceased donor Juan Lambino, with their respective husbands, demanding of the defendants the execution of the proper deed of donation according to law, transferring one-half of the donated property, and moreover, to proceed to the partition of the donated property and its fruits. The court rendered judgment based upon article 1279 of the Civil Code granting plaintiff's prayer and ordering the defendants to execute a deed of

donation in favor of the plaintiff, adequate in form and substance to transfer to the latter the legal title to the part of the donated lands assigned to her in the original donation. We are of the opinion that article 1279 of the Civil Code, relating to contracts, is not applicable to the present case. We are concerned with a donation propter nuptias, which, according to article 1328 of the Civil Code, must be governed by the rules established in Title II, Book III of this Code, on donations (articles 618 to 656), Article 633 provides that in order that a donation of real property may be valid, it must be made in a public instrument. This is the article applicable to donation propter nuptias in so far as its formal validity is concerned. The only exceptions to this rule are onerous and remuneratory donations, in so far as they do not exceed the value of the charge imposed, which are then governed by the rules on contracts (art. 622), and those which are to take effect upon the donor's death, which are governed by the rules established for testamentary successions (art. 620). We have, therefore, a donation propter nuptias which is not valid and did not create any right, since it was not made in a public instrument, and hence, article 1279 of the Civil Code which the lower court applied is not applicable thereto. The last named article provides that, should the law require the execution of an instrument or any other special form in order to make the obligations of a contract effective, the contracting parties may compel each other to comply with such formality from the moment that consent has been given, and the other requirements for the validity of the contract exist. Suffice it to state that this article refers to contracts and is inapplicable to the donation in question which must be governed by the rules on donations. It may further be noted, at first sight, that this article presupposes the existence of a valid contract and cannot possibly refer to the form required in order to make it valid, which it already has, but rather to that required simply to make it effective, and for this reason, it would, at all events, be inapplicable to the donation in question, wherein the form is required precisely to make it valid. 1awph!l.net But the lower court states in its judgment that the present donation is onerous, and pursuant to article 622 of the Civil Code must be governed by the rules on contracts. This opinion is not well founded. Donations for valuable consideration, as may be inferred from article 619 of the Civil Code, are such as compensate services which constitute debts recoverable from the donor, or which impose a charge equal to the amount of the donation upon the donee, neither of which is true of the present donation, which was made only in consideration of marriage. The lower court insists that, by the fact that this is a donation propter nuptias, it is based upon the marriage as a consideration, and must be considered onerous. Neither is this opinion well founded. In donationspropter nuptias, the marriage is really a consideration, but not in the sense of being necessary to give birth to the obligation. This may be clearly inferred from article 1333, which makes the fact that the marriage did not take place a cause for the revocation of such donations, thus taking it for granted that there may be a valid donationpropter nuptias, even without marriage, since that which has not existed cannot be revoked. And such a valid donation would be forever valid, even if the marriage never took place, if the proper action for revocation were not instituted, or if it were instituted after the lapse of the statutory period of prescription. This is, so because the marriage in a donation propter nuptias is rather a resolutory condition which, as such, presupposes the existence of the obligation which may be resolved or revoked, and it is not a condition necessary for the birth of the obligation. The judgment appealed from is reversed and the defendants are hereby absolved from the complaint, without special pronouncement of costs. So ordered. Johnson, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

Separate Opinions STREET, J., dissenting: I am compelled to record my dissent. A donation made in consideration of a marriage contracted by the donee, or donees, on the faith of such donation, is, in my opinion, made for a valuable consideration within the meaning of article 622 of the Civil Code. The contrary view seems to me to be based upon a process of reasoning more congenial to the spirit of the schoolmen of the middle ages than to the jurisprudence of the present epoch. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-26270 October 30, 1969 BONIFACIA MATEO, ET AL., petitioners, vs. GERVASIO LAGUA, ET AL., respondents. Pedro P. Tuason for petitioners. Isaiah Asuncion for respondents. REYES, J.B.L., J.: This is a petition for review of the decision of the Court of Appeals (In CA-G.R. Nos. 30064-R and 30065-R), raising as only issue the correctness of the appellate court's reduction of a donation propter nuptias, for being inofficious. The established facts of this case are as follows: Cipriano Lagua was the original registered owner of 3 parcels of land situated in Asingan, Pangasinan, referred to as Lot No. 998, with an area of 11,080 sq.m., more or less and covered by O.C.T. No. 362; Lot No. 6541, with an area of 808 sq.m., more or less, covered by O.C.T. No. 6618; and Lot No. 5106, with an area of 3,303 sq.m., covered by O.C.T. No. 8137. Sometime in 1917, Lagua and his

wife Alejandra Dumlao, in a public instrument, donated Lots 998 and 6541 to their son Alejandro Lagua, in consideration of the latter's marriage to Bonifacia Mateo. The marriage was celebrated on 15 May 1917, and thereafter, the couple took possession of the properties, but the Certificates of Title remained in the donor's name. In 1923, the son, Alejandro, died. His widow, Bonifacia Mateo, and her infant daughter lived with her father-in-law, Cipriano Lagua, who then undertook the farming of the donated lots. It seems that at the start, Cipriano Lagua was giving to Bonifacia the owner's share of the harvest from the land. In 1926, however, Cipriano refused to deliver the said share, thus prompting Bonifacia to resort to the Justice of the Peace Court of Asingan, Pangasinan, from where she obtained a judgment awarding to her possession of the two lots plus damages. On 31 July 1941, Cipriano Lagua, executed a deed of sale of the same two parcels of land in favor of his younger son, Gervasio. This sale notwithstanding, Bonifacia Mateo was continuously given the owner's share of the harvest until 1956, when it was altogether stopped. It was only then that Bonifacia Mateo learned of the sale of the lots to her brother-in-law, who had the sale in his favor registered only on 22 September 1955. As a consequence, TCT Nos. 19152 and 19153 of the Register of Deeds of Pangasinan were issued to Gervasio. Bonifacia Mateo and her daughter, Anatalia, assisted by her husband, Luis Alcantara, went to the Court of First Instance of Pangasinan (Civil Case No. T339), seeking annulment of the deed of sale in favor of Gervasio Lagua and for recovery of possession of the properties. On 3 January 1957, judgment was rendered in the case ... declaring the sale executed by Cipriano Lagua in favor of the other defendants, Gervasio Lagua and Sotera Casimero, as null and void and non-existent; ordering the Register of Deeds for the Province of Pangasinan, to cancel Transfer Certificates of Title Nos. 19152 and 19153; condemning the defendants to pay jointly and severally to the plaintiffs the sum of P200.00; ordering the defendants Gervasio Lagua and Sotera Lagua to vacate and deliver the possession over the two parcels of land to the plaintiffs, and to pay the costs of this suit. The decision became final, and Bonifacia Mateo, and her daughter, Anatalia Lagua, were installed in possession of the land. On 18 August 1957, the spouses Gervasio Lagua and Sotera Casimero commenced in the Justice of the Peace Court of Asingan, Pangasinan, an action against Bonifacia Mateo and her daughter for reimbursement of the improvements allegedly made by them on Lots 998 and 6541, plus damages. Dismissed by the Justice of the Peace Court for being barred by the judgment in Civil Case No. T-339, therein plaintiffs appealed to the Court of First Instance of Pangasinan where the case was docketed as Civil Case No. T-433. At about the same time, another case was filed, this time by Gervasio Lagua and Cipriano Lagua, for annulment of the donation of the two lots, insofar as one-half portion thereof was concerned (civil Case No. T-442). It was their claim that in donating the two lots, which allegedly were all that plaintiff Cipriano Lagua owned, said plaintiff not only neglected leaving something for his own support but also prejudiced the legitime of his forced heir, plaintiff Gervasio Lagua. Being intimately related, the two cases were heard jointly. On November 12, 1958, while the cases were pending final resolution, plaintiff Cipriano Lagua died. On 23 December 1960, the court rendered a single decision dismissing Civil Case No. T-433 for lack of cause of action, plaintiffs spouses Gervasio Lagua and Sotera Casimero having been declared possessors in bad faith in Civil Case No. T-339 and, therefore, not entitled to any reimbursement of the expenses and improvements put up by them on the land. The other suit, Civil Case No. T-442, was, likewise, dismissed on the ground of prescription, the action to annul the donation having been brought only in 1958, or after the lapse of 41 years. Defendants' counterclaims were similarly dismissed although they were awarded attorneys' fees in the sum of P150.00. Plaintiffs appealed the decision to the Court of Appeals (CA-G.R. Nos. 30064 and 30065-R). Said tribunal, on 18 March 1966, affirmed the ruling of the trial court in Civil Case No. T-433 denying plaintiffs' claim for reimbursement of the improvements said to have been made on the land. In regard to the annulment case (C.F.I. No. T-442), however, the Court of Appeals held that the donation to Alejandro Lagua of the 2 lots with a combined area of 11,888 square meters execeeded by 494.75 square meters his (Alejandro's) legitime and the disposable portion that Cipriano Lagua could have freely given by will, and, to the same extent prejudiced the legitime of Cipriano's other heir, Gervasio Lagua. The donation was thus declared inofficious, and defendants-appellees were ordered to reconvey to plaintiff Gervasio Lagua a portion of 494.15 square meters to be taken from any convenient part of the lots. The award of attorneys' fees to the defendants was also eliminated for lack of proper basis. Bonifacia Mateo, et al., then resorted to this Court, assailing the decision of the Court of Appeals insofar as it ordered them to reconvey a portion of the lots to herein respondent Gervasio Lagua. It is petitioners' contention that (1) the validity of the donation proper nuptias having been finally determined in Civil Case No. T-339, any question in derogation of said validity is already barred; (2) that the action to annul the donation, filed in 1958, or 41 years after its execution, is abated by prescription; (3) that a donation proper nuptias is revocable only for any of the grounds enumerated in Article 132 of the new Civil Code, and inofficiousness is not one of thorn; and (4) that in determining the legitime of the Lagua brothers in the hereditary estate of Cipriano Lagua, the Court of Appeals should have applied the provisions of the Civil Code of 1889, and not Article 888 of the new Civil Code. Petitioners' first two assigned errors, it may be stated, are non-contentious issues that have no bearing in the actual controversy in this case. All of them refer to the validity of the donation a matter which was definitively settled in Civil Case No. T-339 and which, precisely, was declared by the Court of Appeals to be "beyond the realm of judicial inquiry." In reality, the only question this case presents is whether or not the Court of Appeals acted correctly in ordering the reduction of the donation for being inofficious and in ordering herein petitioners

to reconvey to respondent Gervasio Lagua an unidentified 494.75 square-meter portion of the donated lots. We are in accord with the Court of Appeals that Civil Case No. 442 is not one exclusively for annulment or revocation of the entire donation, but of merely that portion thereof allegedly trenching on the legitime of respondent Gervasio Lagua;1 that the cause of action to enforce Gervasio's legitime, having accrued only upon the death of his father on 12 November 1958, the dispute has to be governed by the pertinent provisions of the new Civil Code; and that a donation proper nuptias property may be reduced for being inofficious. Contrary to the views of appellants (petitioners), donations proper nuptias (by reason of marriage) are without onerous consideration, the marriage being merely the occasion or motive for the donation, not its causa. Being liberalities, they remain subject to reduction for inofficiousness upon the donor's death, if they should infringe the legitime of a forced heir.2 It is to be noted, however, that in rendering the judgment under review, the Court of Appeals acted on several unsupported assumptions: that the three (3) lots mentioned in the decision (Nos. 998, 5106 and 6541) were theonly properties composing the net hereditary estate of the deceased Cipriano Lagua; that Alejandro Lagua and Gervasio Lagua were his only legal heirs; that the deceased left no unpaid debts, charges, taxes, etc., for which the estate would be answerable.3 In the computation of the heirs' legitime, the Court of Appeals also considered only the area, not the value, of the properties. The infirmity in the above course of action lies in the fact that in its Article 908 the new Civil Code specifically provides as follows: ART. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts, and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. In other words, before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that certain steps be taken first. The net estate of the decedent must be ascertained, by deducting an payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. With the partible estate thus determined, the legitimes of the compulsory heir or heirs can be established; and only thereafter can it be ascertained whether or not a donation had prejudiced the legitimes. Certainly, in order that a donation may be reduced for being inofficious, there must be proof that the value of the donated property exceeds that of the disposable free portion plus the donee's share as legitime in the properties of the donor.4 In the present case, it can hardly be said that, with the evidence then before the court, it was in any position to rule on the inofficiousness of the donation involved here, and to order its reduction and reconveyance of the deducted portion to the respondents. FOR THE FOREGOING CONSIDERATIONS, the decision of the Court of Appeals, insofar as Civil Case No. 442 of the court a quo is concerned, is hereby set aside and the trial court's order of dismissal sustained, without prejudice to the parties' litigating the issue of inofficiousness in a proper proceeding, giving due notice to all persons interested in the estate of the late Cipriano Lagua. Without costs. Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Teehankee and Barredo, JJ., concur.

Footnotes 1 See Complaint, Civil Case No. 442, page 50, Record on Appeal: "That Plaintiff Gervasio Lagua is entitled for a protection of his rights over the one-half of each of said two parcels of land which (are) supposed to be reserved for the legitimes of forced heirs, and which plaintiff" (Cipriano) "could not donate ..." 2 21 Scaevola, Cod. Civ., 2d Ed., pages 328-329; 348-349; Vol. I, Reyes and Puno, An Outline of Philippine Civil Law, 1965 ed., page 166. 3 There is no evidence on these facts. 4 Ramos vs. Carino, L-17429 (October 31, 1962), 6 SCRA 482, 486. VOID DONATIONS SYLLABI/SYNOPSIS SECOND DIVISION [G.R. No. 106060. June 21, 1999] MILIE T. SUMBAD and BEATRICE B. TAIT, petitioners, vs. THE COURT OF APPEALS, EDUARD OKOREN, OLIVIA T. AKOKING, EVELYN W. SACLANGEN, assisted by her husband Julio Saclangen, MARY ATIWAG assisted by her husband Arthur Atiwag, JAIME T. FRONDA, BARBARA TALLONGEN, JULIA PIYES, assisted by her husband Edward Piyes, GLEN PAQUITO and FELICITAS ALINAO, respondents. DECISION MENDOZA J.: This is a petition for review of the decision [1] of the Court of Appeals, Fifth Division, dated May 28, 1992, in CA-G.R. CV No. 32711, affirming, with modification, the dismissal by the Regional Trial Court of Bontoc, Mountain Province, Branch 36, of a complaint for quieting of title, annulment of sale, and recovery of possession filed by petitioners against private respondents. The facts are as follows: After the death of his wife, Agata B. Tait, in 1936, George K. Tait, Sr. lived in common-law relationship with Maria F. Tait to whom on April 2, 1974 he donated a certain parcel of unregistered land in Sitio Sum-at, Bontoc, more particularly described as follows: One (1) parcel of unregistered agricultural land situated in sitio Sumat, Bontoc, Mt. Province, bounded on the North by Sumat Creek and the rice field of Inginga Limayog, East by the Hospital Reservation of Bontoc and the lots of Agustin Ututan and Inginga, South by a Foot Trail and West by the Roman Catholic Mission, Pakeopan and the rice fields of Narding and Pappi, previously declared under Tax Dec. No. 6000 of Bontoc, Mt. Province;[2]

George K. Tait, Sr. himself passed away on December 24, 1977. From 1982 to 1983, Maria F. Tait sold lots included within the Sum-at property in favor of private respondents Eduard Okoren, Gregorio Acoking, Evelyn Saclangan, Mary Atiwag, Jaime T. Fronda, Barbara Tallongen, Julia Piyes, Glen Paquito, and Felicitas Alinao. Private respondents purchased the lots on the strength of a Tax Declaration over the Sum-at property showing the seller, Maria F. Tait, to be the owner of the property in question and thereafter planted different kinds of fruit trees and plants on the lots purchased by them. On July 24, 1989, petitioners Emilie T. Sumbad and Beatrice B. Tait brought an action for quieting of title, nullification of deeds of sale, and recovery of possession with damages against private respondents. They alleged that they are the children and compulsory heirs of the spouses George K. Tait, Sr. and Agata B. Tait of Bondoc, Mountain Province; that said spouses died on December 24, 1977 and April 30, 1936, respectively; that said spouses owned real property in Otucan, Bauko, Mountain Province; and that after the death of their mother, their father George K. Tait, Sr. sold the Otucan property and used the proceeds thereof to purchase a residential lot in Sum-at, Bontoc, Mountain Province. Petitioners further alleged that from 1982 to 1983, Maria F. Tait, without their knowledge and consent, sold lots included within the Sum-at property to private respondents; that prior to the sales transactions, private respondents were warned that the Sum-at property did not belong to Maria F. Tait but to the heirs of George K. Tait, Sr.; that this notwithstanding, private respondents proceeded to purchase the lots in question from Maria F. Tait; that Maria F. Tait had no right to sell the Sum-at property; that the deeds of sale are null and void and did not transfer title to private respondents; that petitioners discovered the transactions only in 1988 but, as soon as they learned of the same, they lost no time in communicating with private respondents; and that private respondents refused petitioners request for a meeting, leaving the latter no other alternative but to file the case in court. Private respondents moved to dismiss the complaint, but their motion was denied by the trial court in its Order, dated September 26, 1989. [3] They then filed their answer in which they denied they had been informed of petitioners claim of ownership of the lots. They also denied that petitioners learned of the sales to them only in 1988. They alleged that the Sum-at property, covered by Tax Declaration No. 399, did not belong to the conjugal partnership of George K. Tait, Sr. and Agata B. Tait for the reason that the latter died more than thirty (30) years before the issuance of Tax Declaration No. 399 in 1973; that the late Maria F. Tait, second wife of George K. Tait, Sr., did not need the consent of petitioners to be able to sell the Sum-at property to private respondents; that private respondents were purchasers in good faith and for value; that the action was barred by laches; that they were in possession of the lots and had introduced improvements thereon; and that they had separate tax declarations covering their respective lots. As a compulsory counterclaim, private respondents prayed that petitioners be ordered to pay P10,000.00 as moral damages, P2,000 as attorneys fees to each private respondent, the appearance fees, and costs. On November 21, 1989, the trial court issued a pre-trial order stating the parties stipulation of facts, as well as the factual and legal issues, as follows: B. Stipulations or Admissions of the Parties: 1. Plaintiffs admit the following: a. That Agata Banagui Tait died on April 30, 1936; b. That the property in issue was bought by George Tait after the death of Agata Banagui Tait; c. That a deed of donation was executed by George Tait in favor of Maria with the land in dispute as the subject matter thereof; d. That deeds of sale of the property in question were executed in favor of the defendants by Maria Tait in 1984; e. That Maria Tait died in 1988. 2. . . . . C. Issues Involved: 1. Factual: a. Whether or not George Tait and Agata Banagui Tait owned and sold a lot at Otucan, Bauko, Mt. Province and the proceeds thereof used in buying the property in dispute; b. Whether or not Maria Tait sold the lot in issue to the defendants without the knowledge of the plaintiffs; c. Whether or not defendants before buying the land were forewarned of its controversial status; d. Whether or not plaintiffs only recently discovered the sale made by Maria Tait to the defendants. 1. Legal: a. Whether or not plaintiffs are the compulsory heirs of the deceased George Tait and Agata Banagui Tait; b. Whether or not the property covered by TD 399 and the subject hereof was owned by George Tait and Agata Banaga Tait; c. Whether or not the deed of donation executed by George Tait in favor of Maria Tait is valid and effective; d. Whether or not the sale made by Maria Tait to the defendants is valid and effective; e. Whether or not defendants are buyers in good faith; f. Whether or not laches barred the claim of the plaintiffs.[4] Realizing that the pre-trial order included their admission that a deed of donation was executed by George K. Tait, Sr. in favor of Maria F. Tait of the Sum-at property, petitioners subsequently moved for the inclusion as one of the factual issues the alleged forgery of the deed of donation. The Court did not act on petitioners motion. However, petitioners were allowed to present evidence on the alleged forgery without objection by the private respondents. On April 3, 1990, the trial court, on motion of petitioners, authorized the clerk of court of the Municipal Trial Court in Cities, Baguio City to take the deposition of one of petitioners witnesses, Shirley Eillinger.

During the trial, petitioners presented the following as witnesses: Beatrice B. Tait, Dalino Pio, Rosita Aclipen, and Atty. Angela D. Papa. Petitioner Beatrice B. Tait, a 60-year-old missionary nun and resident of Capangan, Benguet, testified that she and co-plaintiff Emilie T. Sumbad are sisters; that their parents are George K. Tait, Sr. and Agata B. Sumbad; that the late Maria F. Tait was their stepmother; that Maria F. Tait became their stepmother some time in 1941; that her parents had a property in Sum-at but it was sold; that her parents had a property in Otucan; and that she did not know what happened to the said property although she thought that her parents sold it in order to purchase the Sum-at property.[5] On cross-examination, petitioner Beatrice Tait testified that her mother, Agata B. Tait, died in 1936; that she lived with her parents in Otucan from 1940 to 1941; and that the house at Sum-at was occupied by her grandmother (her stepmothers mother).[6] Dalino Pio, a 60 year-old farmer and resident of Payag-eo, testified that Agata B. Tait was her sister and George K. Tait, Sr. was the latters husband; that George K. Tait, Sr. and Agata B. Tait lived in Otucan; that Agata B. Tait inherited the Otucan property from their father; that George K. Tait moved to Bontoc at a place near the market; and that the spouses sold the Otucan property and afterwards purchased the Sum-at property.[7] On cross-examination, Dalino Pio said that at the time that George K. Tait, Sr. sold the Otucan property, Agata B. Tait was already dead; that she does not know Maria F. Tait; that she did not personally see the Sum-at property; and that her sole basis for saying that George K. Tait, Sr. had used the proceeds of the sale of the Otucan property to purchase the property at Sum-at was what George K. Tait related to her.[8] Lanoy Takayeng, a farmer, testified that she knew the late George K. Tait, Sr.; that she also knew someone named Fani-is; that George K. Tait, Sr. gave money to Fani-is for the purchase of the Sum-at property; that she does not know the exact amount given by George K. Tait, Sr. to Fani-is; that also present during that meeting were three (3) other persons named Samoki, Amok, and Aclipen; and that George K. Tait, Sr. afterwards planted coffee and orange trees on the Sum-at property and built a house thereon.[9] On cross-examination, Lanoy Takayeng testified that George K. Tait, Sr. was her uncle; that when George K. Tait, Sr. acquired the Sum-at property, he was already married to Maria F. Tait; and that the money used to purchase the Sum-at property came from the proceeds of the sale of the house at Bauko. [10] She testified that George K. Tait, Sr. was an educated man and a former member of Congress.[11] Rosita Aclipen, a 48-year-old housewife and resident of Bontoc, testified that she knew the private respondents; that she sent a letter to private respondents on May 30, 1989; that she was instructed by petitioners to send the letter to private respondents; and that the letter was prepared and signed by petitioners lawyer.[12] Atty. Angela D. Papa testified that she had been the register of deeds of Bontoc since February 16, 1987; that as such, she was in charge of keeping records of all documents relating to the registration of real property, instruments, and mortgages; that she did not recall receiving a letter from Emilie T. Sumbad; and that she issued a certification, marked as Exhibit F, to the effect that no deeds of sale between Maria F. Tait and Acoking, Arthur Atiwag, Blanza, Glenn Paquito, Jaime Fronda, and Lolita Tolentino were registered in her office.[13] For their documentary evidence, petitioners presented tax declarations covering the Sum-at property in the name of George K. Tait, Sr.; a certification showing payment of real estate taxes made by George K. Tait, Sr. on the property; official receipts; a certification by the register of deeds of Bontoc that no deed of sale covering the Sum-at property was registered in her office; a copy of the deed of donation, dated April 2, 1974; a letter, dated May 30, 1989, addressed to private respondents; and the transcripts of the deposition of Shirley Eillenger.[14] In her deposition, Shirley Eillinger stated that she knew Beatrice B. Tait and Emilie T. Sumbad, daughters of the late George K. Tait, Sr.; that she personally knew George K. Tait, Sr.; that she also knew a person named Raquel Tait who had been her boardmate at the Perpetual Help Dormitory in Baguio City when the witness was in the third year of her college education; that Raquel Tait was George K. Tait, Sr.s ward; that she saw a Deed of Donation regarding the Sum-at property and other documents containing the signature of George K. Tait, Sr.; and that she was able to read the contents of the Deed of Donation. She identified Exhibit I as a carbon copy of the document she referred to. She further testified that in 1979 or 1980 she saw Raquel type the Deed of Donation at the Perpetual Help Dormitory; that George K. Tait, Sr. was already dead at that time, having died in 1976 when the witness was a third year high school student; that she saw Raquel Tait forge the signature of George K. Tait, Sr. on a piece of paper; that Raquel herself at first tried to copy the signature of George K. Tait, Sr. on the paper then asked other male boarders to copy the signature of George K. Tait, Sr.; that she told Raquel Tait that it was wrong to forge the signature of any person but Raquel Tait ignored her and told her to keep quiet; that Raquel Tait personally signed the Deed of Donation; that Raquel Tait also tried to forge the signature of Maria Tait; that she did not see Raquel Tait put Maria Taits signature on the document but only saw Raquel Tait forge Maria Taits signature on a piece of paper; and that the following day, Raquel Tait went to Bontoc bringing with her the Deed of Donation.[15] On cross-examination, this witness stated that it took Raquel about 20 to 30 minutes to type the Deed of Donation; that Raquel Tait had a form from which she copied the Deed of Donation; that Raquel Tait did not refer to a tax declaration in preparing the Deed of Donation; and that it took the male boarders the entire morning, from 8 oclock until 11 oclock, to copy the signature of George K. Tait, Sr.[16] On the other hand, private respondents presented the following witnesses: Felipa Piyes, Julio Saclangen, Glenn Paquito, and Edward Okoren.

Felipa Piyes, a 61-year old businesswoman and resident of Loc-ong, Bontoc, testified that her son is one of the lot purchasers of the Sum-at property; that Rosita Aclipen called for her and demanded additional payment for the lot purchased by her son; that she asked Rosita Aclipen why additional payment was being demanded when the price of the lot had already been fully paid to Maria F. Tait; that Emilie T. Sumbad was also present when Rosita Aclipen demanded money from her; and that Emilie T. Sumbad is the stepdaughter of Maria F. Tait.
[17]

On cross-examination, Felipa Piyes narrated that it was her son, Edward Piyes, who provided the money for the purchase of the Sum-at lot; that she received a letter some time in May or June, 1989 from Rosita Aclipen; that she affixed her signature on the letter; that during that time, Edward, who was in Saudi Arabia, told her to purchase the lot for as long as there was no controversy over the same; that Mrs. Tait had a tax declaration under her name and on the faith thereof, she purchased the lot from Maria F. Tait; that a deed of sale was executed between Maria F. Tait and Julia Piyes, her daughter-in-law, as purchaser; that as a resident of Bontoc, she knew George K. Tait, Sr. and Maria F. Tait; that George K. Tait, Sr. was formerly a congressman for the Mountain Province; that George K. Tait, Sr. and Maria F. Tait lived together as husband and wife but did not have any children; and that she knew that the petitioners are stepdaughters of Maria F. Tait.[18] Julio Saclangen, a resident of Omfeg, testified that a deed of sale was also executed between him and his wife Evelyn Saclangen, on the one hand, and Maria F. Tait, on the other; that from the records of the municipal office, they verified that Maria F. Tait was the owner of the Sum-at property; that they also verified from other lot purchasers that Maria F. Tait is the real owner of the property; that after purchasing the lot, they planted camote and banana on the lot; and that he and his wife caused the issuance of a tax declaration in their name.[19] Glenn Paquito, 48 years old and a resident of Chakchakan, Bontoc, claimed that upon learning that lots were being offered for sale in Sum-at, he verified from the municipal assessors office that the Sum-at property was owned by Maria F. Tait; that he had a tax declaration covering the lot purchased from Maria F. Tait; that he planted camote and papaya on the lot; that he had been paying real estate taxes on the lot from the time he purchased it; and that since acquiring the lot he had never been disturbed in his possession. [20] On crossexamination, he revealed that he also received a letter, dated May 30, 1989, from the petitioners representatives; that after receiving the letter, a conference was held between the parties at the house of Rosita Aclipen wherein the latter asked the purchasers for additional payment for the purchased lots; that aside from them, other lot purchasers were present at the conference; and that upon investigation in the municipal assessors office, he was only shown one tax declaration and did not ask to be shown previous tax declarations on the Sum-at property.[21] Edward Okoren, a 46-year-old teacher and resident of Guina-ang, Bontoc, testified that he purchased a lot from Maria F. Tait; that he had a tax declaration covering the lot in his name; that the deed of sale was registered with the Register of Deeds of Bontoc, Mountain Province; that after purchasing the lot, he planted camote and constructed a stone wall thereon; that he had never been disturbed in his possession until the present; that he paid real estate taxes on the lot; and that he was asked to attend a conference with petitioners but he declined because he was busy.[22] Private respondents presented copies of the deeds of sale executed in their favor by Maria F. Tait as documentary evidence. On April 8, 1991, the trial court rendered judgment dismissing the complaint. The dispositive portion provides as follows: WHEREFORE, decision is hereby rendered dismissing the instant action and ordering the plaintiffs to pay each of the defendants herein P500.00 by way of attorneys fees and litigation expenses. Costs against plaintiffs. SO ORDERED.[23] On appeal, the Court of Appeals affirmed the trial courts decision with the modification that the award of attorneys fees was set aside. [24] Hence, this petition. Petitioners assign the following errors as having been allegedly committed by the appellate court: 1. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING THE DEED OF DONATION INTER VIVOS IN FAVOR OF MARIA TAIT AS NULL AND VOID; 2. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING THE DEEDS OF SALE TO THE DEFENDANTS AS NULL AND VOID IT HAVING ORIGINATED FROM A VOID DOCUMENT AND TRANSACTION; 3. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN NOT APPLYING ART. 133, NEW CIVIL CODE, (NOW ART. 87, FAMILY CODE) AND ART. 749 OF THE NEW CIVIL CODE IN THE ABOVE-ENTITLED CASE; 4. THE HONORABLE COURT OF APPEALS ERRED IN NOT APPRECIATING THE STRAIGHTFORWARD AND CATEGORICAL DECLARATIONS OF SHIRLEY EILLENGER REGARDING THE FORGERY OF THE DONATION INTER VIVOS; 5. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE LATE MARIA FAS-ANG TAIT HAD THE AUTHORITY TO DISPOSE OF THE LAND IN CONTROVERSY, NOTWITHSTANDING THE FACT THAT IT DID NOT BELONG TO HER AND THE FACT THAT THE ALLEGED DEED OF DONATION IN HER FAVOR IS A FORGERY AND VOID AB INITIO; 6. THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE DEFENDANTS OWNERSHIP OF THE LOTS (UNLAWFULLY) SOLD TO THEM, NOTWITHSTANDING THE FACT THAT THE SELLER DID NOT HAVE THE RIGHT OR AUTHORITY TO DO SO;

7. THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT It was the carbon copy of the Deed of Donation that Raquel Tait typed in our THE DEFENDANTS HAVE THE BETTER RIGHT TO POSSESS THE boardinghouse. PREMISES IN QUESTION; By the way, Mrs. Witness, what year was that when you saw Raquel Tait 8. THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT typewriting the Deed of Donation, if you could still recall? THE PLAINTIFFS-PETITIONERS FAILED TO PROVE THEIR RIGHT OF As far as I can recall, it was in the year 1979 to 1980. SUCCESSION TO THE PROPERTY IN QUESTION; And, at that time, do you recall where George Tait, Sr. was? 9. THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT George Tait, Sr. is already dead during that time. PLAINTIFFS HAVE NO TITLE, LEGAL OWNERSHIP OR EQUITABLE, TO When did George Tait, Sr. die, if you could still recall? THE PROPERTY IN QUESTION; As far as I can recall, he died in the year 1976 when I was in 3rd year high school. 10. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED Going back to the Deed of Donation which you have just identified, what was the IN FINDING THAT THE ACTION IS BARRED BY LACHES.[25] condition of this document to that Deed you saw being typewritten by Raquel Petitioners contend that the deed of donation, dated April 2, 1974, is void Tait? for the following reasons: (1) it is a forgery; (2) it was made in violation of Art. ATTY. SOKOKEN: 133 of the Civil Code, now Art. 87 of the Family Code; and (3) it was notarized May we interpose an objection? The question maybe ambiguous insofar as to the by a person who had no authority to act as a notary public. They further contend condition of the document when it was typed. that Maria F. Tait had no authority to sell the Sum-at property and, therefore, the ATTY. LOCKEY: sales in favor of private respondents are null and void; that as heirs of George K. We will reform the question, your Honor. Tait, they are entitled to the Sum-at property; and that since they only learned of I noticed that in this Deed of Donation there are written entries as well as the sales transactions sometime in 1988 when Maria F. Tait became seriously ill, signatures. At the time you saw this Deed of Donation being typewritten by they are not barred from bringing the present action. Raquel Tait, were the written entries and signatures already there? The petition has no merit. It is settled that factual findings of the trial The signatures were not yet there when Raquel Tait typed this Deed of Donation. court will not be disturbed on appeal unless the court has overlooked or ignored However, the following day .... some fact or circumstance of sufficient weight or significance, which, ATTY. if SOKOKEN: considered, would alter the result of the case. [26] When there is no conflict May we request that the question be just answered. between the findings of the trial and appellate courts, a review of the facts found HEARING OFFICER: by the appellate court is unnecessary.[27] In the case at bar, even a review of the Make it of record that there is an objection of the defendants counsel, asking that the evidence fails to yield any reason for us to disregard the factual findings of the deponent will only answer the question asked. trial court and the appellate court. .... First. Petitioners fault both the trial and appellate courts for not giving ATTY. LOCKEY: credence to the testimony of Shirley Eillenger with respect to the forgery of the After seeing the document already marked as Exh. I being typewritten by Raquel deed of donation. As the Court of Appeals ruled, however: Tait, was there any occasion wherein you have seen again that document aside The plaintiffs assail the validity of the deed of donation in question on the ground from todays hearing? that it is a forgery. On this point, the plaintiffs presented a witness who testified WITNESS: in a deposition taken before the Clerk of Court of the Municipal Trial Court in Yes, sir. Baguio City on April 11, 1990 a certain Shirley Eillenger. When was that, if you can still recall? .... Last April. Remarking on this testimony of Shirley Eillenger, the trial court had said: ATTY. SOKOKEN: . . . Anent the deed of donation inter vivos the validity of which is put in issue by May I manifest, Mr. Hearing Officer, that the witness is taking time to remember the plaintiffs, the deposition of Shirley Eillenger to the effect that she personally saw answer. one Raquel Tait draft the document and forge the signature of George K. Tait HEARING OFFICER: now appearing therein is incredible and grossly unconvincing. For considerations Make that of record. difficult to pin down, the statements of the witness on the point somehow does WITNESS: not ring true and appear to have been rehearsed. It is too pat to be credible. April 6, 1990. We agree with the lower court when it said that this testimony of Eillenger is ATTY. LOCKEY: vague and incredible. We have studied with care the deed of donation in Whereat? question and find unworthy of credence the claim of Eillenger that Raquel Tait, At the office of Atty. Lockey. who must have been a young girl about 20 years of age in 1979 or 1980 (she gave And how come that you went there in the office of Atty. Lockey on April 6, 1990? her age as 30 on April 11, 1990), could have, in 20 to 30 minutes, prepared the Atty. Lockey asked for me to go there. document in all its legal form supposedly copying only from a format. It also Do you know for what purpose that you were asked to go there? taxes the mind to believe that Raquel Tait had called the boys in the boarding Yes, sir. house and, within the view of every one, asked them to forge the signature of Please tell the Court. George K. Tait, Sr. and, with the boys failing to accomplish the task, herself To inquire about that Deed of Donation. forged the signature not only of George K. Tait, Sr. but also of Maria Tait in that And was there really an inquiry about what was done or made in the Office of Atty. one sitting and in that short span of time. Lockey regarding that Deed of Donation? The alleged forgery could have been proven with more competent evidence, such Yes, sir. as by handwriting experts. This, the plaintiffs failed to do. As stated by the trial .... court, the validity of the public document cannot be impugned or overcome by ATTY. LOCKEY: the testimony of the witness Eillenger.[28] What else did Raquel Tait do, if any, after typewriting that Deed of Donation in Forgery should be proved by clear and convincing evidence, and whoever your boardinghouse at Perpetual Help? alleges it has the burden of proving the same. [29] Not only is Shirley Eillengers WITNESS: testimony difficult to believe, it shows it had been rehearsed as she anticipated I saw her forging the signature of George Tait, Sr. on a piece of bond paper. the questions of petitioners counsel, and sometimes said more than was called And how did you see her forging the signature of George Tait, sr. on that bond for by the question. This is illustrated by the following portions of her testimony: paper? Q When you were boardmates with Raquel Tait at Perpetual Help, along Gen. Luna, I saw her try to copy the signature of George Tait, Sr. and calling some boys, our Baguio City, do you recall if you have seen any document regarding that Sum-at boardmates, to copy the signature of George Tait, Sr. in that bond paper also. property of George Tait, Sr.? From where was Raquel Tait copying the signature of George Tait, Sr.? A Yes, sir, I saw it. In a separate document. Q And, what document is that if you could still recall? You said that Raquel Tait was also requiring the boys to copy. Did the boys accede A I saw a Deed of Donation... and other documents where the signature of George to the request of Raquel Tait? Tait, Sr. was written. Some boys tried to forge it, but they did not follow it. ATTY. SOKOKEN: Seeing this situation meaning Raquel Tait trying to forge the signature of George There was an Ilocano word. Tait, what step or steps did you take, if any? ATTY. LOCKEY: I warned her by saying that she is making kalokohan out of that Deed of May we put it in Ilocano? Donation. WITNESS: HEARING OFFICER: A Ania daguidiay nga documento tattayen? Make it of record also that the witness made use of the word kalokohan in Filipino ATTY. LOCKEY: language. Let that term be put on record. Q You mentioned about a Deed of Donation. Were you able to read or see that Deed ATTY. LOCKEY: of Donation? And, what did Raquel Tait tell you, if any, in connection with your comment? A Yes, sir. She said I will just keep quiet. Q I have here a duplicate original of a Deed of Donation Intervivos dated April 2, What else did Raquel Tait do in connection with the Deed of Donation you have 1974. Will you go over that document? earlier identified aside from what you have already stated, if any? HEARING OFFICER: She personally signed this one. Witness is going over the document handed to her by counsel. HEARING OFFICER: ATTY. LOCKEY: Witness pointing to the document earlier marked as Exh. I particularly to the signature Q Have you gone over the document? above the typewritten name George K. Tait, Donor. A Yes, sir. ATTY. LOCKEY: Q What relation has that document to the Deed of Donation which you claim to have Perhaps it would not be remiss for us to say that the signature pointed to by the witness been typewritten by Raquel Tait in your boardinghouse at Perpetual Help, along be encircled and be marked as Exh. I-1. Gen. Luna, Baguio City? HEARING OFFICER:

Mark it. ATTY. LOCKEY: Q Aside from that, what else did she do, if any? A She wants to try to forge the signature of Maria Tait. Q Was she able to do it? A Yes, sir.[30] Petitioners should have presented handwriting experts to support their claim that George K. Tait, Sr.s signature on the deed of donation was indeed a forgery. Second. Petitioners argue that the deed of donation is invalid under Art. 749 of the Civil Code, which requires a public instrument as a requisite for the validity of donations of immovable property. They contend that the person who notarized the deed had no authority to do so. However, petitioners have not shown this to be the case. The acknowledgment clause states that the person who notarized it was the deputy clerk of court, Gonzalo Reyes, who acted For and in the absence of the Clerk of Court. Sec. 21 of the Revised Administrative Code of 1917, as amended by C.A. Nos. 270 and 641, provides: SEC. 21. Officials authorized to administer oaths. The following officers have general authority to administer oaths, to wit: Notaries public; justices of the peace and auxiliary justices of the peace; clerks of court; the Secretary of the National Assembly; bureau directors; registers of deeds; provincial governors and lieutenant-governors; city mayors; municipal mayors, municipal district mayors; any other officer in the Philippine service whose appointment is vested in the President of the Philippines, Secretary of War, or President of the United States. A person who by authority of law shall act in the capacity of the officers mentioned above shall possess the same power. (Emphasis added).[31] In accordance with the presumption that official duty has been regularly performed, it is to be presumed that the deputy clerk of court who notarized the deed of donation in this case was duly authorized by the clerk of court. Third. Petitioners argue that the deed of donation contravenes Art. 133 of the Civil Code which provides: Art. 133. Every donation between the spouses during the marriage shall be void. This prohibition does not apply when the donation takes effect after the death of the donor. Neither does this prohibition apply to moderate gifts which the spouses may give each other on the occasion of any family rejoicing. in view of our ruling in Matabuena v. Cervantes[32] that the prohibition in Art. 133 extends to common-law relations. Indeed, it is now provided in Art. 87 of the Family Code: Art. 87. Every donation or grant of gratuitous advantage, direct or indirect between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall apply to persons living together as husband and wife without a valid marriage. (Emphasis added). This point is being raised for the first time in this Court. The records show that in the trial court, petitioners attack on the validity of the deed of donation centered solely on the allegation that George K. Tait, Sr.s signature had been forged and that the person who notarized the deed had no authority to do so. But petitioners never invoked Art. 133 of the Civil Code as a ground to invalidate the deed of donation. Time and again, this Court has ruled that litigants cannot raise an issue for the first time on appeal as this would contravene the basic rules of fair play and justice. Even assuming that they are not thus precluded, petitioners were unable to present evidence in support of such a claim. The evidence on record does not show whether George K. Tait, Sr. was married to Maria F. Tait and, if so, when the marriage took place. If, as petitioners claim, Maria F. Tait was not married to their father, evidence should have been presented to show that at the time the deed of donation was executed, their father and Maria F. Tait were still maintaining common-law relations. Beatrice Taits testimony is only to the effect that in 1941 Maria F. Tait became their stepmother. There is no evidence on record that George K. Tait, Sr. and Maria F. Tait continuously maintained common-law relations until April 2, 1974 when the donation was made. Fourth. Petitioners claim that they only learned of the sales to private respondents of lots included in the Sum-at property in 1988 when they visited Maria F. Tait in Bontoc because she was seriously ill. As admitted by petitioners, their mother, Agata B. Tait, died on April 30, 1936, while their father, George K. Tait, Sr., died on December 24, 1977.[33] Yet, petitioners waited for twelve (12) years before claiming their inheritance, having brought their present action only on July 24, 1989. Petitioners are thus guilty of laches which precludes them from assailing the donation made by their father in favor of Maria F. Tait. Laches is the failure or neglect for an unreasonable length of time to do that which, by exerting due diligence, could or should have been done earlier.[34] Finally, Lanoy Takayengs testimony that George K. Tait, Sr. gave Fani-is money to purchase the Sum-at property does not necessarily mean that the money came from the proceeds of the sale of the Otucan property. For one, Lanoy Takayeng could not state with certainty when the alleged meeting took place. Second, this witness could not even remember the amount of money allegedly given by George K. Tait, Sr. to Fani-is. Third, Takayeng did not state when the purchase supposedly took place or if the sale was consummated in accordance with George K. Tait, Sr.s instructions. It is anybodys guess whether George K. Taits orders were carried out by Fani-is and whether George K. Tait, Sr. tapped other funds to purchase the Sum-at property. In sum, petitioners have not sufficiently shown the nullity of private respondents title to the lots purchased by them. To the contrary, as the Court of Appeals well observed: The deed of donation in question was executed by their father in 1974. Assuming that the plaintiffs were not aware of the existence of said document, as they now claim, they could not have failed to notice that the land in question had been occupied by Maria F. Tait and later by defendants who bought portions thereof

and that said defendants, numbering nine (9), and their families, had built their respective houses and introduced other improvements on the portions they had purchased from Maria F. Tait and had resided therein since 1982 and 1983. As stated by the trial court, the plaintiffs offered no plausible excuse for their failure to assert their rights sooner. They apparently waited until Maria F. Tait died in 1988 before assailing the validity of the sales made by the latter in favor of the defendants. We believe that the defendants herein bought their respective portions they now possess in good faith. The land is not registered under the Torrens system and they checked with the Assessors Office and found that the same was declared in the name of Maria F. Tait. Further, it was the said Maria F. Tait and not the plaintiffs who was in possession thereof. The claim of the plaintiffs that the defendants were forewarned [prior to the sales transactions] that the property was not owned by Maria F. Tait but by the heirs of George K. Tait, Sr. was not proven in these proceedings. Indeed, the plaintiffs have failed in the duty to prove their allegations in their complaint as required by the Rules of Court. We find their evidence too inadequate to be considered as preponderantly in their favor. In fine, there is no reason for this Court to set aside the findings of the trial court, except insofar as it orders the plaintiffs to pay the defendants attorneys fees. As aptly pointed out by the plaintiffs-appellants there should be no premium on the right to litigate. We find that the plaintiffs filed this complaint in good faith and that the defendants claim for attorneys fees was not adequately established. WHEREFORE, the decision of the Court of Appeals is AFFIRMED. SO ORDERED. Bellosillo (Chairman), and Quisumbing, JJ., concur. Puno, J., no part. Involved in CA decision. Buena, J., no part. On leave.
[31]

Republic Act No. 6733, 1 and 2, provide: Section 1. Section 21 of the Revised Administrative Code is hereby amended to read as follows: Sec. 21. Officials authorized to administer oath. The following officers have general authority to administer oaths, to wit: President; Vice-President; Members and Secretaries of both Houses of the Congress; Members of the Judiciary; Secretaries of Departments; provincial governors and lieutenant-governors; city mayors; municipal mayors; bureau directors; regional directors; clerk of courts; registrars of deeds; and other civilian officers in the Philippine public service whose appointments are vested in the President of the Philippines and are subject to confirmation by the Commission on Appointments; all other constitutional officers; and notaries public. A person who by authority of law shall serve in the capacity of the officers mentioned above shall possess the same power. Sec. 2. Section 41 of the Administrative Code of 1987 is hereby to read as follows: Sec. 41. Officers Authorized to Administer Oath. The following officers have general authority to administer oaths: President; Vice-President; Members and Secretaries of both Houses of the Congress; Members of the Judiciary; Secretaries of Departments; Provincial governors and lieutenant-governors; city mayors; municipal mayors; bureau directors; regional directors; clerks of courts; registrars of deeds; other civilian officers in the public service of the government of the Philippines whose appointments are vested in the President and are subject to confirmation by the Commission on Appointments; all other constitutional officers; and notaries public. [32] 38 SCRA 284 (1971). [33] Records, p. 1; Complaint, p. 1. [34] Reyes v. Court of Appeals, 264 SCRA 35 (1996). ACP LIQUIDATION Republic of the Philippines SUPREME COURT Manila EN BANC DECISION March 20, 1934 G.R. No. L-39670 In the matter of the intestate estate of the deceased Crispulo Javillo. ROSARIO OAS, oppositor-appellant, vs. CONSOLACION JAVILLO, ET AL., petitioners-appellees. Pedro Malveda for appellant. Santiago Abella for appellees. Goddard, J.: This is an appeal from an order of the Court of First Instance of Capiz approving a project of partition of the property belonging to the estate of the deceased Crispulo Javillo valued at P16,000 more or less. Crispulo Javillo died intestate on the 18th of May, 1927, in the municipality of Sigma, Province of Capiz, Philippine Islands. On the 25th day of July, 1927, a petition was filed in the Court of First Instance of that province praying that an administrator of this estate be appointed, and after hearing Santiago Andrada was named administrator. He submitted two projects of partition. The first was disapproved by the lower court and from that order some of the heirs appealed to this court which appeal was dismissed.154 Phil. 602 The second project of partition dated September 9, 1931, is the one now on appeal in this case. Crispulo Javillo contracted two marriages. The first, with Ramona Levis. To this marriage five children were born, to wit, Consolacion, Mercedes, Caridad, Soledad and Jose Javillo, the appellees in this case. After the death of Ramona Levis, Crispulo Javillo married Rosario Oas. To this marriage four children were

born, to wit, Joaquin, Ana, Bernardo and Porillana. Rosario Oas the appellant in this case. The parties entered into the following agreement as to the property acquired during the first and second marriages: CONVENIO: Ambas partes convienen que 109 terrenos designados como parcelas 1., 2., 3., 4.., 5., 6., 7., 8., 9.., 10., 11. del inventario de los commisionados de avaluo y reclamaciones obrantes a folios 40 al 43 del expediente han sido encontrados durante la vida marital de Crispulo Javillo con su primera esposa, madre de Consolacion, Mercedes, Caridad, Soledad y Jose Javillo; y que las parcelas 12., 13., 14., 15., 16., 17., 18., 19., 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 y 31 de dicho inventario fueron comprados o encontrados durante la vida marital de Crispulo Javillo con Rosario Oas. Que durante el primer matrimonio fueron adquiridos cinco carabaos y el resto de los carabaos asi como los vacunos fueron encontrados durante el matrimonio de Crispulo Javillo con Rosario Oas. The appellant alleges that the lower court committed the following errors: I. The lower court erred in holding that all the properties acquired during the second marriage of Crispulo Javillo with Rosario Oas were acquired with the products of the properties of the first marriage of said Crispulo Javillo with Ramona Levis, and in approving the manner of distributing the estates among the heirs of the first and second marriages, as indicated in the project of partition now in question. II. The lower court erred in approving the second project of partition dated September 9, 1931, notwithstanding that the same did not include all the properties of the deceased Crispulo Javillo. The first assignment of error is well taken. Crispulo Javillo lived for about twenty years after his second marriage and during that marriage acquired twenty parcels of land. Only eleven parcels were acquired during the first marriage. It would take a person with a very vivid imagination to believe that the product of eleven parcels of land acquired during the first marriage supplied all of the capital used in acquiring the twenty parcels of the second marriage. Such a claim is preposterous. Some Spanish commentators have suggested that upon the death of the husband or wife, the community continues between the survivor and the heirs of the deceased until partition has actually taken place, and that the latter are entitled to share in its acquisitions during its continuance. . . . But this view was never generally accepted by the Spanish jurists, and an examination of the provisions of the Civil Code makes it clear that the authors of that body of laws did not contemplate any such extension of the life of the community. Gutierrez adopting the views of Matienzo says: The community partnership being as permanent as the state that produces it, there can be no doubt that the same causes influence it as marriage. The first of them is death. Some have believed that the community might continue to exist between the surviving spouse and the heirs of the deceased husband or wife; but, in the opinion of Matienzo, which appears to us to be well-founded, there are reasons for believing otherwise, to wit: (1) When the marriage is dissolved, the cause that brought about the community ceases, for the principles of an ordinary partnership are not applicable to this community, which is governed by special rules. (2) In the absence of the reasons that induced the legislator to establish it, the provisions of law governing the subject should cease to have any effect for the community of property is admissible and proper in so far as it conforms to unity of life, to the mutual affection between husband and wife, and serves as a recompense for the care of preserving and increasing the property; all of which terminates by the death of one of the partners. (3) The partnership having been created by law, it has no object and it is unsafe to extend it on pretext of tacit consent. (Gutierrez, 3rd ed., vol. 1. p. 579.) Manresa, discussing the status of the community (sociedad) after dissolution of the conjugal relations makes the following comment: . . . The community terminates when the marriage is dissolved or annulled, or when during the marriage, an agreement is entered into to divide the conjugal property. The conjugal partnership exists therefore so long as the spouses are legally united; the important thing is not exactly the bond, the tie formed by the marriage, but, the existence in the eyes of the law of the life in common. It is this life in common that creates common necessities and represents common efforts, the result of which should be that both partners should share in the profits. When, for any cause, the conjugal partnership established upon the basis of the system of community property is dissolved, all the provisions of articles 1401 to 1416, based upon the existence of that partnership, cease to apply. Consequently, whatever is acquired by the surviving spouse on the dissolution of the partnership by death or presumption of death, or by either of the spouse on termination of the partnership for other reasons and when this latter no longer exists, whether the acquisition be made by his or her labor or industry, or whether by onerous or by lucrative title, it forms a a part of his or her own capital, in which the other consort, or his or her heirs, can claim no share. The fruits, as an accessory, follow the property; the buildings, the soil; the plantings, the land all according to the general rules of accession. (Nable Jose vs. Nable Jose, 41 Phil. 713, 717-719.) . . . it may fairly be deduced that prior to the liquidation, the interest of the wife, and in case of her death, of her heirs, is an interest inchoate, a mere expectancy, which constitutes neither a legal nor an equitable estate, and does not ripen into title until it appears that there are assets in the community as a result of the liquidation and settlement. . . . Nable Jose vs. Nable Jose, supra.) In this case it does not appear that there was a liquidation of the partnership property of the first marriage nor does it appear that they asked for such a liquidation. The project of partition approved by the lower court is based on the abovementioned absurd claim and furthermore is not in conformity to law. One-half of all the conjugal property of both marriages corresponds to the deceased Crispulo Javillo and must be divided share and share alike among all the children of both

marriages. One-half of the conjugal property pertaining to the first marriage should be divided share and share alike among the five children of that marriage. One-half of the conjugal property of the second marriage must be adjudicated to the widow Rosario Oas and furthermore she has a right of usufruct over the property of her deceased husband equal to one-ninth of the two thirds of that property which constitutes the legitime of the children of both marriages which is two-twenty-sevenths of the property corresponding to her husband. This usufruct should be taken from the property pertaining to the second marriage. The property corresponding to the first marriage consists of parcels 1 to 11, inclusive, and 5 carabaos. The property of the second marriage consists of parcels 12 to 31, inclusive, and the remainder of the carabaos and large cattle mentioned in the agreement copied above. If it is true as alleged by the appellant that there are houses on any of these parcels of land, it is to be presumed that they were included in the valuation made by the committee on claims and appraisal and therefore they would belong to the person to whom the land, upon which they are built, is adjudicated. The judgment of the lower court is reversed and this case is remanded for further proceedings in conformity with this decision without pronouncements as to costs. Malcolm, Villa-Real, Hull, and Imperial, JJ., concur. ________________________________________ Republic of the Philippines SUPREME COURT Manila G.R. No. L-32820-21 January 30, 1976 DOROTEA DE OCAMPO VDA. DE DELIZO and her nine (9) children, named REGINO, CRISPINA, CARMEN, BASILIO, HILARIO, MACARIO, SENDON MARCIANO and HERMOGENES, all surnamed DELIZO y OCAMPO,petitioners-appellants, vs. URBANA DELIZO, assisted by her husband, AMBROCIO FLORA, SEVERINO DELIZO and the Heirs of FRANCISCO DELIZO, namely, RANCIVILLANO SOLTRIFILO, JOSEFINA, EUPROCINA, AUREA, EDITA and FE all surnamed DELIZO, and ROSENDA GENOVE VDA. DE DELIZO, respondents-appellees. Leandro C. Sevilla for petitioners-appellants. Romeo J. Callejo respondents-appellees. ANTONIO, J.: These two cases involve the partition of the conjugal partnership properties of two marriages contracted by Nicolas Delizo. The first, was with Rosa Villasfer, which lasted from April 20, 1891 until Rows death on December 7, 1909, or a period of eighteen (18) years; and the second, with Dorotea de Ocampo, which existed for a period of forty-six (46) years, or from October, 1911 until the death of Nicolas Delizo on May 3, 1957 at the age of ninety (90) years. The action for partition was instituted on April 15, 1957 by a daughter and a son of the first marriage, namely, Urbana Delizo and Severino Delizo, and the heirs of Francisco Delizo, another son, who died in 1943, specifically, Rancivillano Soltrifilo Josefina, Eufrocina, Aurea, Edita, and Fe, all surnamed Delizo (the last three being minors were represented by their mother, Rosenda Genove) all against their father, Nicolas Delizo, and his second wife, Dorotea de Ocampo, and their nine (9) children, the herein petitioners-appellants, namely Regino, Crispina, Carmen, Basilio, Hilario, Macario, Sendon, Marciano, and Hermogenes, all surnamed Delizo. The aforesaid defendants opposed the partition, claiming that the properties described in the complaint were those of the second marriage. On May 3, 1957, Nicolas Delizo died and was substituted by his children in the second m as party defendants. In the meantime, Special Proceedings No. 1058 (Intestate Estate of the late Nicolas Delizo) was filed by Dorotea de Ocampo on June 3, 1957. Thereafter, or on August 23, 1971, Severino De died intestate and is now represented by his children, namely, Federico, Severina, Angelina, Segundina and Brigida, all surnamed Delizo. Involved are the properties acquired by Nicolas Delizo, among which are sixty-six (66) hectares of agricultural lands in San Jose City, Nueva Ecija; fifty-eight (58) hectares of riceland in Muoz of the same province; and a square meter lot at 1056-M P. Campa, Sampaloc, Manila. The properties are specifically described as follows: (1) Lots Nos. 210, 211, 388, 389, 390, and 407 of the San Jose Cadastre situation in Rizal, San Jose with a combined area of about sixty-six (66) hectares covered by OCT No. 6176-N.E. issued in the name of Nicolas Delizo, married to Dorotea de Ocampo (Exh. F or 11); (2) Lot No. 1915 of the San Jose Cadastre with an area of about 1,056 square meters and covered by OCT No. 5783 in the name of Nicolas Delizo, married to Dorotea de Ocampo (Exh. G or 12); (3) Lot No. 498 of the San Jose Cadastre with an area of about 3,366 square meters and covered by OCT No. 5622, N.E. issued in the name of Nicolas Delizo, married to Dorotea de Ocampo (Exh. H. or 13); (4) A parcel of land in San Jose, Nueva Ecija containing an area of 13.2948 hectares and covered by TCT No. 2985-N.E. (Exh. I. or 13-A); (5) An agricultural land of about 17.4753 hectares situated in sitio Rangayan, Muoz and covered by TCT No. 5162 (Exh. J or 14); (6) A parcel of land in Barrio Caanawan, San Jose, with an area of about 14.0354 hectares and covered by TCT No. 11910 (Exh. K or 10); (7) A cornland in Barrio Rangayan, Muoz, Nueva Ecija, of about 1,500 square meters and covered by Tax Declaration No. 5476; (8) Riceland in Barrio San Andres, Muoz of about 5,083 square meters and covered by Tax Declaration No. 7083; (9) Riceland in Barrio Rangayan, Muoz, Nueva Ecija, containing an area of about 17.4755 hectares and covered by Tax Declaration No. 812;

(10) Lot No. 847-a riceland in Barrio Bayan, Muoz, with an area of about 13.0902 hectares and covered by TCT No. 3585 issued in the name of Nicolas Delizo, married to Dorotea de Ocampo on April 25,1929 (Exhs. L or 15 & 15-A); (11) A camarin of strong materials, with galvanized iron roofing in San Jose, Nueva Ecija, about eight (8) meters by twelve (12) meters; (12) A residential house and lot at Sanchez Street, San Jose, Nueva Ecija; (13) Lot No. 1790 of San Jose Cadastre of about 2,840 square meters and covered by Original Certificate of Title No. 8131 in the names of spouses Silvestre Batara and Maria Soriano issued on November 16, 1927 (Exh. M or 16), superseded by Transfer Certificate of Title No. NT-29524 issued in the name of Juan T. Gualberto on May 25,1959 (Exh. N or 17) claimed by the heirs of Nicolas Delizo and Dorotea de Ocampo pursuant to deed of sale (Exh. N1); (14) An urban lot and coconut plantation in San Fabian, Pangasinan; (15) A lot and residential house consisting Of a two-door accessoria at No. 105658 (formerly 562) P. Campa, Sampaloc, Manila; (16) A sawmill with accessories, bulldozers, etc. in San Jose, Nueva Ecija (bulldozer is now in Gordon, Isabels in the possession of Regino Delizo and Basilio Delizo); and (17) Several heads of carabaos. After trial, the lower court rendered judgment on April 27, 1964, distributing the aforesaid properties as follows: (a) onehalf () pro indiviso to the three (3) children of the first marriage, namely, Urbana Delizo, Severino Delizo, and the heirs of the deceased Francisco Delizo, viz.: Rancivillano Soltrifilo Josefina, Eufrocina, Aurea, Edita, and Fe (b) one-fourth () pro indiviso to the surviving spouse, Dorotea de Ocampo; and (c) one-fourth () pro in equal shares to the children of both marriages, nine (9) of whom were begotten during the second marriage, or into thirteen (13) parts. From said judgment. petitioners-appellants appealed to the Court of Appeals. On August 12, 1970, the Appellate Court rendered judgment, affirming with modifications the trial court's decision. The facts as found by the Appellate Court are as follows: As regards the Caanawan lands situated in Caanawan, San Jose, Nueva Ecija, comprising some 66 hectares, defendants capitalize on the undisputed fact that Original Certificate of Title No. 6176 (Exh. F or 11) issued on August 21, 1924, covering these lands is in the name of Nicolas Delizo, ma to Dorotea de Ocampo. Defendants further point out that the testimonies of defendant Dorotea de Ocampo and octogenarian Moises Patricio prove that these lands were acquired during the second marriage. However, the fact that the disputed lands situated in Caanawan were registered in the name of 'Nicolas Delizo, married to Dorotea de Ocampo's no proof that the property is owned by the second conjugal partnership. The phrase 'married to' is merely descriptive of the civil status of Nicolas Delizo (Gonzales vs. Miller, 69 Phil. 340; De Jesus vs. Padilla, CA-G.R. No. 12191-R, April 19, 1955; Muoz & Tan Go Inc. vs. Santos CA-G.R. No. "27759-R, October 3, 1963; Pratts vs. Sheriff of Rizal, 53 Phil. 51, 53). Neither is the testimony of Dorotea de Ocampo that the said lands were acquired by her and her spouse, altogether clear and persuasive. For while the admitted fact is that she and Nicolas Delizo were married in 1911, she declared on the witness stand that the aforesaid properties were given by Pedro Salvador to her and her spouse in 1908 (t.s.n., p. 288, March 8, 1963), thereby leading the trial court to infer an admission that these lands were acquired during the first marriage of Nicolas Delizo. It may likewise be noted that as per her testimony, she and her father arrived in Caanawan, San Jose, Nueva Ecija, when Rosa Villasfer was still alive. That would be sometime before 1911. But she admitted that her father then was not able to acquire lands from Pedro Salvador, their grantor, because he had no more lands to distribute to settlers. Accordingly, it is farfetched that after Rosa's death and the subsequent marriage of Nicolas Delizo to Dorotea de Ocampo, Pedro Salvador would still have those 67 hectares which defendants claimed were acquired by the spouses Nicolas Delizo and Dorotea de Ocampo by grant from Pedro Salvador (t.s.n., pp. 459-46, March 15, 1963). Moises Patricio tried to confirm the widow, declaring that Nicolas Delizo was married to defendant Dorotea de Ocampo, when he was given lands in Caanawan by Pedro Salvador (t.s.n., p. 493, June 7, 1963). However, he placed the acquisition sometime during the founding of Barrio Sto. Tomas, San Jose, Nueva Ecija (Id., p. 492) which took place some four years after the Spanish-Filipino revolution of 1896 (t.s.n., pp. 548-549, June 21, 1963), or approximately 1900. Therefore, it could not be Dorotea de Ocampo, but Rosa Villasfer, who was admittedly still alive and the wife of Nicolas Delizo at the time of the acquisition. Ranged against these unreliable testimonies for the defendants, is the testimony of Lorenzo Delizo, who being a brother of deceased Nicolas Delizo, stands in equal relationship to the plaintiffs, who were Nicolas' children by the first marriage, and the defendants, who were children of Nicolas in his second marriage. His testimony therefore carries great weight. This witness averred that 16 hectares were acquired as homestead by his deceased brother, Nicolas Delizo, from Pedro Salvador and Mauricio Salvador who were then 'cabecillas' distributing lands to homesteaders in 1905 (t.s.n., p. 12, January 20, 1961); that Nicolas acquired by sale the 16-hectare homestead of Nicolas Dacquel in 1906, another 16- hectare homestead of Mariano Antolin in 1907 and the 16-hectare homestead of Francisco Pascua in 1908 (id., pp. 14-15). Lorenzo's declarations are supported by the testimonies of (1) Urbana Delizo, a daughter of Nicolas by his first marriage and who was already 17 when her mother, Rosa Villasfer, died in 1909 (id., p. 19); (2) Sabiniano Villanueva, a son of one of Nicolas' tenants on the controverted Caanawan lands (id., pp. 93-168) and (3) Raymundo Eugenio, a former clerk in the municipal treasurer's office who u to collect taxes on the land belonging to Nicolas and later became municipal "president of San Jose, Nueva Ecija (t.s.n., pp. 367-368, Jan. 31, 1964), although these Caanawan lands cannot be traced back to TD 431, Exhibit P-9 issued in 1906, cited by appellants (see notations at bottom of reverse side of alleged succeeding TDs) aside from the fact that the notations on the reverse side thereof are suspicious (see years when tax

commenced and when issued) and the discrepancy between areas (8 Ha. in Exhibit P-9 and 57 Ha. for lots 210 and 211). Accordingly, we find with the trial court that the Caanawan lands, comprising lots Nos. 210, 211, 388, 390, 398 and 407.1-under Original Certificate of Title No. 6176 (Exh. F or 11) were acquired during the existence of the first marriage of Nicolas Delizo to Rosa Villasfer and there being no affirmative showing that they belonged exclusively to said Nicolas Delizo, should therefore correspond to the first conjugal partnership of Nicolas Delizo and Rosa Villasfer. So with the lot and house at 562 P. Campa St., Sampaloc, Manila, known as Lot 47, Block 83 covered by TCT No. 9616-Manila which was ceded during the second marriage in payment of, or substitution for, the Caanawan property, because the Asiatic Petroleum Company to which it had been mortgaged as bond for Juan Par as agent foreclosed the mortgage, when the agent defaulted in his obligation to the company, Exhibits 6, 7 & 19 (Art. 153 [formerly, 140], par. 1, new Civil Code). However, with regard to the other properties in question, like lot No. 498 of the San Jose Cadastre, under Original certificate of Title No. 5622, likewise issued in the name of Nicolas Delizo, married to Dorotea de Ocampo'; a parcel of land in San Jose, Nueva Ecija under TCT No. 2985 (Exh. I or 13)' and agricultural land of about 17.4753 hectares in Sitio Rangayan, Muoz Nueva Ecija under TCT No. 5162 (Exh. J or 14); another parcel of land in Caanawan, San Jose, with an area of about 14.0354 hectares under TCT No. 11910 (Exh. K or 10); a coin land in barrio Rangayan, Muoz, Nueva Ecija, of about 1,500 square me ' quarters under Tax Declaration No. 5476; a riceland in barrio San Andres, Muoz Nueva Ecija, of about 5,083 square meters under Tax Dec. 7083; another riceland in Rangayan, Muoz, of about 17.4755 hectares under Tax Dec. No. 812; a riceland, lot No. 847, of about 13.0902 hectares covered by TCT No. 3585 issued on April 29, 1929 in the name of 'Nicolas Delizo, married to Dorotea de Ocampo'(Exh. L or 1.5)-, a camarin of strong materials with galvanized iron roofing in San Jose, Nueva Ecija, about 8 meters by 12 meters; a residential lot at Sanches Street, San Jose, Nueva Ecija; lot No. 1790 of the San Jose Cadastre consisting of 2,840 square meters, more or less, under Original Certificate of Title No. 8131 in another name but claimed by the heirs under deed of sale, Exhibit N1 a sugar cane mill in San Jose, Nueva Ecija and several heads of carabaos (Exh. 0); Lots Nos. 495 and 496 of the San Jose Cadastre, possessed by defendants although adjudicated in the name of Marcelo Tomas and Guillermo Cabiso, respectively; lot No. 494-A, of the San Jose Cadastre, adjudicated in the name of Nicolas Delizo and Dorotea de Ocampo (RA, pp. 96-97),-there is no controversy that these were all acquired during the existence of the second marriage of Nicolas Delizo. On the basis of the foregoing facts, the Court of Appeals rendered judgment as follows: But the trial court held that because there was no liquidation of the conjugal partnership property of the first marriage, upon the death of the first wife, 'the conjugal partnership was converted into one of co-ownership between Nicolas Delizo and his children of the first marriage .... Hence, all the fruits or increase of the properties acquired thereafter shall belong to such co-ownership.' We cannot agree with this legal conclusion. One-half of the conjugal properties of the first marriage constituted the separate property of the husband at the formation of the second conjugal partnership upon his remarriage in October 1911 (Art. 145, NCC). Moreover, the fruits of the Caanawan property were acquired through the labor and industry of Nicolas Delizo and Dorotea Ocampo; and indeed, two witnesses for the plaintiffs admitted that at the time of the death of Rosa Villasfer, only about 20 hectares of the Caanawan property had been cleared and cultivated (pp. 22-23; 113, 117, 383-4, t.s.n.). This property was practically virgin land, and the rest thereof or about 47 hectares were therefore cleared and cultivated only during the marriage of Nicolas Delizo and Dorotea Ocampo. This is impliedly admitted in plaintiffs' complaint that 'from the time of death of the said Rosa Villasfer, the defendants ... have WORKED upon, TILLED and CULTIVATED, or otherwise offered in tenancy the whole of the agricultural lands described' (par. 2). The Caanawan property left to itself could not produce any fruits for they did not have any permanent improvements thereon. What was produced according to the evidence was palay, and the production of palay requires tilling, cultivation, seedlings, gathering, preservation and marketing. It was thru the labor and industry of Nicolas Delizo and Dorotea de Ocampo that the Caanawan property was able to produce fruits. Whatever it produced thru the labor and industry of the spouses belongs to their conjugal partnership. While it is true that to the owner of the land belongs the fruits, whether natural, industrial or civil (Art. 441, NCC formerly Art. 354, Spanish Civil Code), this does not mean that all that is produced belongs to the owner of the land. The owner, according to Art. 443, NCC (formerly Art. 356, Spanish Civil Code) who receives the fruits, has the obligation to pay the expenses made by a person in their production, gathering and preservation. When Dorotea Ocampo admitted that the Muoz property was purchased partly with the fruits of the Caanawan property, she was referring to the gross production, not deducting therefrom what could have pertained to the person who produced the fruits. So it seems "that if we are to determine with mathematical certainty what portion of the Muoz property and other properties acquired during the second marriage should pertain to the first marriage as corn spending to the value of its share in the fruits of the Caanawan property, and what should belong to the second marriage as corresponding to the value of the labor and industry of the spouses Delizo and Ocampo, we have to find how much was produced during the second marriage and determine what will be the share of the owner of the land what will correspond to the one who produced the fruits. The burden of proof lies upon the plaintiffs under the rules of evidence. But, of course, this is an impossibility. For no records have been kept and it is not in accordance with the Filipino customs for the surviving spouse-whether he remarries or not-to keep the record of the produce of the properties left by the deceased spouse. tradition thereto, according to Dorotea Ocampo, part of the price used in the purchase of Muoz property was the proceeds of a loan which, together with the properties purchased with it, belongs to the conjugal partnership of Nicolas Delizo and Dorotea Ocampo. Under these circumstances, it would be

impossible to determine with mathematical precision what portion of the properties acquired during the second marriage of Nicolas Delizo should belong to the second conjugal partnership and what portion should belong to the heirs of the first conjugal partnership, one half of which pertains to the husband. However, considering that 1. At the time of the dissolution of the first marriage or about five years after acquisition, according to plaintiffs' evidence, only about 20 hectares of the Caanawan property had been cultivated, the remaining 47 hectares were therefore cleared and improved during the second marriage thru the labor and industry of the spouses Nicolas Delizo and Dorotea Ocampo for 46 years (1911-1967). These improvements were made in good faith considering that Nicolas Delizo administered the properties of the first marriage. The second marriage is entitled to reimbursement for the increase in value of these 47 hectares (Art. 516, NCC Even the Muoz property acquired during the second marriage had to be improved by the spouses Nicolas Delizo and Dorotea Ocampo. 2. The one-half of the fruits of the Caanawan property which should pertain to the heirs of Rosa Villasfer refers only to one-half o f the net after deducting the expenses of clearing the land, cultivating, gathering and preservation. Forty-seven hectares of the Caanawan property were cleared and cultivated only during the second marriage. Even under a liberal apportionment of the produce, the heirs of the second marriage could not be entitled to more than 30% of the produce. 3. Part of the price used in the purchase of the properties acquired during the second marriage were the proceeds of a loan. This is conjugal property of the "second marriage (Palanca vs. Smith, Bell and Co., 9 Phil. 131,133; Castillo Jr. vs. Pasco, 11 SCRA 102, 106-7). 4. The improvements on 47 hectares of the Caanawan property and on the Muoz property were made at the expense of the second conjugal partnership of Nicolas Delizo and Dorotea Ocampo, and thru their labor and industry which lasted for 46 years, whereas the first conjugal partnership had the Caanawan property for less than 6 years. Taking into account all the foregoing circumstances and equities of the case, an adjudication of 20% of all the properties acquired during the second marriage, including the Muoz property, to the children of the first marriage, and 80% to the conjugal partnership of Nicolas Delizo and Dorotea Ocampo is fair and equitable. So the properties of the estate should be partitioned thus: One-half of the Caanawan property and the house and lot at 562 P. Campa Street, Manila, covered by TCT No. 9616 as the share of Rosa Villasfer in the first conjugal partnership of Nicolas Delizo and Rosa Villasfer or 1/6 thereof for each child of the first marriage; and 20% of all the other properties or 1/15 thereof for each such child. To Nicolas Delizo should be adjudicated one-half of the Caanawan property and the house and lot on P. Campa, but in view of the death of Nicolas Delizo his share descends to all the children, both of the first and second marriages and the surviving spouse, Dorotea Ocampo, and should therefore be divided by the number of children plus one or 1/26 thereof for each heir. tightly per cent of all the properties acquired during the marriage of Nicolas Delizo and Dorotea Ocampo constitute the conjugal partnership of Nicolas Delizo and Dorotea Ocampo; one-half thereof is the share of Nicolas Delizo, to be divided among his heirs in accordance with the preceding statement, or 2/65 thereof for each heir; the other half constitutes the share of Dorotea Ocampo in the conjugal partnership, or 2/5 thereof. WHEREFORE, paragraph 1 of the judgment appealed from is hereby modified as follows: 1. Declaring that (a) of the Caanawan property and the house and lot at 562 P. Campa Street, Manila covered by TCT No. 9616-8139 (1/6 + 1/26) thereof pro indiviso shall pertain to each of the children of Nicolas Delizo "of the first marriage, namely: Urbana, Severino and the late Francisco Delizo (the last represented by his children Rancivillano Soltrifilo Josefina, Eufrocina, Aurea, Edita and Fe and 1/26 thereof pro indiviso shall pertain to each of the children of the second marriage and their mother Dorotea Ocampo; (a) of all other properties required during the second marriage-19/195 thereof pro indiviso shall pertain to each of the three children by the first marriage, 2/65 thereof pro indiviso shall pertain to each of the nine children of the second marriage, while 28/65 thereof pro indiviso shall pertain to the widow Dorotea Ocampo. The rest of the judgment particularly paragraphs 2 and 3 are affirmed; without pronouncement as to costs in both instances. From this adverse judgment, petitioners-appellants interposed the present petition for review. The thrust of petitioners- appellants' petition is that the Appellate Court acted under a misapprehension of the facts or decided the legal issues in a way which is not in consonance with law and with the applicable decisions of this Court, (a) since, the 67-hectare Caanawan properties could not have been properties of the first marriage because they were then public lands being homesteads, and while the first conjugal partnership may have had possessory rights over said properties, it was only during the second marriage that the requirements of the public land law were complied with, resulting in the confirmation, registration and issuance of the Torrens Title over said properties to Nicolas Delizo and his second wife, Dorotea de Ocampo; (b) apart from the fact that the legal presumption that all properties of the marriage belong to the conjugal partnership of Nicolas Delizo and Dorotea de Ocampo were not sufficiently rebutted, these properties were actually. In the adverse possession under claim of title of petitioners-appellants continuously for a period of 47 years (1911 to 1957), and consequently, the claim of respondents-appellees for partition should have been considered barred by acquisitive and extinctive prescription, laches and estoppel; d (c) in any event, there being serious doubts as to whether. said properties belong to the first marriage, it would have been more equitable if the said partnership properties were divided between the different partnerships in proportion to the duration of each and the capital of the spouses,-pursuant to Article 189 of the Civil Code. From the findings of the Appellate Court that sixty-six (66) hectares of the Caanawan properties w ere acquired by Nicolas Delizo as homesteads during the period of the first marriage, thus: sixteen (16) hectares as a homestead from the

Government in 1905; and the 16-hectare homestead of Nicolas Dacquel, the 16hectare homestead of Mariano Antolin, and the 16-hectare homestead of Francisco Pascua by purchase in 1%6, .1907 and 1908, respectively, it does not necessarily follow that they should be considered as properties of the first marriage, considering that being homesteads they were part of the public domain, and it was not shown that all the requirements of the Homestead Law to warrant the grant of a patent to the homesteader have been complied with prior to the death in 1909 of Delizo's first wife, Rosa Villasfer. Under Act 926, 1 which was then the applicable law, the right of the homesteader to the patent does not become absolute until after he has complied with all the requirements of the law. One of the most important requirements is that the "person filing the application shall prove by two credible witnesses that he has resided upon and cultivated the land for the term of five years immediately succeeding the time of filing the application aforesaid, and shall make affidavit that no part of said land has been alienated or encumbered ... (Section 3 of Act 926, italics supplied). Prior to the fulfillment of such requirement, the- applicant has no complete equitable estate over the homestead which he can sell and convey, mortgage for lease. 2 Until a homestead right is established and registered under Section 3 of Act 926, there is only an inchoate right to the property and it has not ceased to be a part of the public domain and, therefore, not susceptible to alienation as such. 3 Conversely, when a "homesteader has complied with all the terms and conditions which entitled him to a patent for a particular tract of public land, he acquires a vested interest therein and has to be regarded an equitable owner thereof." 4 The decisive factor, therefore, in the determination of whether a parcel of land acquired by way of homestead is conjugal property of the first or the second marriage, is not necessarily the time of the issuance of the homestead patent but the time of the fulfillment of the requirements of the public land law for the acquisition of such right to the patent. 5 As testified to by Lorenzo Delizo, his brother, Nicolas Delizo, and the latter's wife, Rosa Villasfer, arrived in Barrio Caanawan, San Jose, Nueva Ecija, from Barrio Ungag, Cuyapo, Nueva Ecija, during the year 1905. It was during that same year that Pedro Salvador and Mauricio Salvador, who were then the cabecillas were distributing lands to homesteaders in Barrio Caanawan. Nicolas Dacquel, Mariano Antolin and Francisco Pascua must have received their respective homesteads from the same officers of the government that same year, considering that their respective homesteads are all adjacent to the homestead of Nicolas Delizo and according to the evidence, this was the time when the homesteads in that barrio were parceled out to the new settlers. Indeed, the Homestead Act was then of recent vintage, having been enacted by the Philippine Commission by authority of the United States Government, only on October 7, 1903. Considering that Nicolas Dacquel must have been in possession of his homestead for barely a year when he transferred his rights in 1906, Mariano Antolin for about two years with respect to his homestead in 1907, and Francisco Pascua for about three years in 1908 as regards to his homestead, at the time of their respective conveyances to Nicolas Delizo, it is, therefore, obvious that not one of them could have complied with the requirements of Act No. 926 to entitle any one of them to the issuance of a homestead patent before they sold or assigned their rights to Nicolas Delizo. The law was quite specific, that "No certificate shall be given or patent issued for the land applied for until the motion of five year. From the date of the filing of the application and if, at the expiration of such time or at any time within three years thereafter, the person filing such application shall prove by two credible witnesses that he has resided upon and cultivate the land for the term of five years immediately succeeding the time of filing the application aforesaid, and shall make affidavit that no part of said land has been I alienated or encumbered, and that he has borne true allegiance to the Government of the United States and that of the Philippine Islands, then, upon payment of a fee of ten pesos, Philippine currency to such officer as may be designated by law as local land officer, or in case there be no such officer then to the Chief of the Bureau of Lands, he shall be entitled to a patent." (Section 3, Act No. 926, italics supplied). Having neither legal nor equitable title thereon, what was transferred by them to Nicolas Delizo were, therefore, not rights of ownership, but inchoate rights as applicants for homesteads over portions of the public domain. Similarly, having received the homestead only in 1905, Nicolas Delizo could not have perfected his rights thereon by the completion of the fiveyear occupancy and cultivation requirement of the law, in 1909. Buttressing the conclusion that Nicolas Delizo could not have perfected his rights to the four homesteads before 1909 is the specific limitation imposed by section 3 of Act No. 926 which provides that "No person who is the owner of more than sixteen hectares of land in said Islands or who has had the benefits of any gratuitous allotment of sixteen hectares of land since the acquisition of the Islands by the United States, shall be entitled to the benefits of this chapter." The foregoing sufficiently show that the Appellate Court erred in, holding that the entire Caanawan properties belong to the conjugal partnership of Nicolas Delizo and Rosa Villasfer. Considering, however, that about twenty (20) hectares were cultivated and rendered productive during the period from 1905 to 1909, judgment and equity demand that the rights to said properties be apportioned to the parties in proportion to the extent to which the requirements of the public land laws had been complied with during the existence of each conjugal partnership. II In connection with the other properties, such as Lot No. 498 of the San Jose Cadastre, under Original Certificate of Title No. 5622; a parcel of land in San Jose, Nueva Ecija, under Transfer Certificate of Title No. 2985 (Exh. I or 13), and agricultural land of about 17.4753 hectares in Sitio Rangayan, Muoz Nueva Ecija, under Transfer Certificate of Title No. 5162 (Exh. J or 14); a parcel of land in Caanawan, San Jose, with an area of about 14.0354 hectares, under Transfer Certificate of Title No. 11910 (Exh. K or 10); a cornland in Barrio Rangayan, Muoz, Nueva Ecija, of about 1,500 square meters under Tax Declaration No. 5476; a riceland in Rangayan, Muoz of about 17.4755 hectares, under Tax

Declaration No. 812; a riceland, Lot No. 847, of about 13.0902 hectares covered by Transfer Certificate of Title No. 3585, issued on April 29, 1929 in the name of "Nicolas Delizo, married to Dorotea de Ocampo" (Exh. L or 15); a camarin of strong materials with galvanized iron roofing in San Jose, Nueva Ecija; a residential lot at Sanchez Street, San Jose, Nueva Ecija; Lot No. 1790 of the San Jose Cadastre, consisting of about 2,840 square meters, more or less, under Original Certificate of Title No. 8131 "in another name but claimed by the heirs under deed of sale, Exhibit N1 a sugar mill in San Jose, Nueva Ecija and several heads of carabaos (Exh. 0); Lots Nos. 495 and 496 of the San Jose Cadastre, possessed by defendants although adjudicated in the name of Marcelo Tomas and Guillermo Cabiso respectively; and another lot, Lot No. 494A of the San Jose Cadastre adjudicated in the ' C, name of Nicolas Delizo, married to Dorotea de Ocampo, the Appellate Court decision penned by Justice Arsenio Solidum held that "there is no controversy that these were all acquired during the existence of the second marriage of Nicolas Delizo" The same opinion, however, held that since these properties were acquired from the produce of the Caanawan properties although such produce is the result of the labor and industry of the spouses Nicolas Delizo and Dorotea de Ocampo, only eighty per cent (80%) of said properties acquired during the second marriage should appertain to the second conjugal partnership, while twenty per cent (20%) thereof adjudicated to the children of the first marriage. The two concurring Appellate Justices, although of the view that the legal presumption that those properties acquired during the regime of the second conjugal partnership belong to said partnership has not been rebutted by respondents-appellees and, therefore, would hold that such after-acquired properties should belong to the second conjugal partnership, concurred nevertheless in the result aforesaid, in order to reach a judgment in the case. It would have been facile to hold that those afteracquired properties belong to the second conjugal partnership in view of the statutory presumption enunciated in Article 1407 of the old Civil Code (now Article 160, New Civil Code). 6 There are, however, important considerations which preclude Us from doing so. There is the established fact that the produce of the Caanawan lands contributed considerably to the acquisition of these properties, and We have held that the children of the first marriage, as a matter of equity, should share in the Caanawan properties. To deny the respondentsappellees a share in such properties would have exacerbated discord instead of enhancing family solidarity and understanding. Considering these circumstances and since the capital of either marriage or the contribution of each spouse cannot be determined with mathematical precision, the total mass of these properties should be divided between the two conjugal partnerships in proportion to the duration of each partnership. 7 Under this criterion, the second conjugal partnership should be entitled to 46/64 or 23/32 of the total mass of properties, and the first conjugal partnership. to 18/64 or 9/32 thereof pro indivision. The share of the estate of Nicolas Delizo is one-half (1/2) pro indiviso of the net remainder 8 of the conjugal partnership of gains of the first and second marriages, which would amount to 32/64 or 1/2 of the whole estate. This should be distributed in equal shares to his children of both marriages, 9 with the widow having the same share as that of legitimate child. 10 The widow. Dorotea de Ocampo, is entitled to one-half () of the net remainder of the second conjugal partnership and to her share as heir of her deceased husband which amounts to 23/64 of said properties, plus 1/13 of 32/64 pro indivision. The share of the heirs of Rosa Villasfer would be 9/64 thereof. The foregoing is recapitulated as follows: Share of Rosa Villasfer, lst wife 9/64 of whole estate to be divided among three (3) children Share of Dorotea de Ocampo, 23/64 of whole estate plus her 2nd wife share in Nicolas Delizo s estate. Share of Nicolas Delizo, husband 32/64 of whole estate to be divided into thirteen (13) equal parts. Whole Estate 64/64 Computation of Sharing 3/64 + 1/26 = 142/1664] 3/64 + 1/26 = 142/1664] - Share of each child of 3/64 + 1/26 = 142/1664] lst marriage 1/26 = 64/1664] 1/26 = 64/1664] 1/26 = 64/1664] 1/26 = 64/1664] - Share of each child of 1/26 = 64/1664] 2nd marriage 1/26 = 64/1664] 1/26 = 64/1664] 1/26 = 64/1664] 1/26 = 64/1664] 23/64 + 1/26 = 662/1664 - Share of Dorotea Ocampo. 32/64 + 13/26= 1664/1664 - Whole Estate In the partition of the properties, the probate court should take into account the fact that the respondents-appellees are in possession of the Muoz lands, while the petitioners-appellants have been in possession of the Caanawan properties as well as the house and lot at 562 P. Campa Street. Sampaloc, Manila, as directed in the trial court's order of April 23, 1958 record on Appeal, pp. 76-77). Should it be convenient for the parties, their respective shares should be taken from the properties presently under their custody. Having reached the foregoing conclusions. it is unnecessary to resolve the other legal questions raised in the appeal. WHEREFORE, the appealed decision of the Court of Appeals is hereby modified as herein indicated. The records of these cases should be, as they are hereby, remanded to the trial court for further proceedings in accordance with this judgment. No costs.

Fernando, Barredo and Concepcion, Jr., JJ., concur. Castro, J., concurs in the result. Aquino, J., took no part. Footnotes 1 The pertinent provisions of Act No. 926, provide, as follows: "SECTION 1. Any citizen of the Philippine Islands ... over the age of twenty-one years, or the head of a family, may, , as hereinafter provided, enter a homestead of not ng sixteen hectares of unoccupied, unreserved, unappropriated cultural public land in the Philippine Islands ... but-no person who is the owner of more than sixteen hectares of land in said Islands or who has had the benefits of any gratuitous allotment of sixteen hectares of land since the acquisition of the Islands by the United States, shall be entitled to the benefits of this chapter. "SEC. 2. Any person applying to enter land under the provisions of this chapter shall file with such officer as may be designated by law as local land officer, or in ease there be no such officer then with the Chief of the Bureau of Public Lands, an application under oath showing that he has the qualifications required under section one of this chapter, and that he none of the disqualifications there mentioned; that such application is made for his exclusive use and benefit; that the same is the we of actual settle and cultivation, and not either directly or indirectly, in the use or benefit of any other person, persons, corporation, or assimilation of persons; that the land applied for ... is more valuable for agricultural than forestry purposes, and is not occupied by other person; and showing the location of the land by stating the province, municipality, and barrio in which the same is situated, and as accurate a description as may be given, showing the boundaries of the land, having reference to natural objects and permanent monuments, if any. Upon the filing of said application the Chief of the Bureau of Public Lands shall summarily determine, by inquiry of the Chief of the Bureau of Forestry and from the available land records, whether the land described is prima facie subject under the law to homestead settlement, and if he shall find nothing to the contrary, the applicant, upon the payment of ten pesos, Philippine currency, shall be permitted to enter the quantity of land specified. "SEC. 3. No certificate shall be given or patent issued for until the expiration of five years the date of the filing of the application; and if, at the expiration of such time or at any time within three years thereafter, the person filing such application shall prove by two credible witness that he has resided upon and cultivated the land for the term of five years immediately succeeding the time of filing the application aforesaid, and shall make affidavit that no part of said land has been alienated or encumbered, and that he has borne true allegiance to the Government of 'the United States and that of the Philippine Islands, then, upon payment of a fee of ten pesos, Philippine Currency, to such officer as may be designated by law as local land officer, or in case there be no such officer then to the Chief of the Bureau of Public Lands, he shall be entitled the a patent: Provided, however, That in the event of the death of an applicant prior to the issuance of a patent, his widow shall be entitled-to have a patent for the land applied for issue to her upon showing that she has consummated the requirements of law for homesteading the lands as above set out; and in case the applicant dies before the issuance of the patent and does not leave a widow, then the interest of the applicant in the land shall descend and patent shall issue to the persons who under the laws of the Philippine Islands would have taken had the title been perfected by patent before the death of the applicant, upon proof by the persons thus entitled of compliance with said requirements and conditions. "SEC. 4. No lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuance of patent therefor. "SEC. 5. If, at any time after the filing of the application as hereinabove provided and before the expiration of the period allowed by law for the making of final proof, it is proved to the satisfaction of the Chief of the Bureau of Public Lands, after due notice to the homesteader, that the land entered is not under the law subject to homestead entry, or that the homesteader has actually changed his. residence, voluntarily abandoned the land for more than six months at any one time during the five years of residence herein required, or has otherwise failed to comply with the requirements of law, then in that event the Chief of the Bureau of Public Lands may cancel the entry, subject to appeal under proper regulations to the Secretary of the Interior, and the land thereupon shall become subject to disposition as other public lands of like character. "SEC. 6. Not more than one homestead entry shall be allowed to any one person. "SEC. 7. Before final proof shall be submitted by any person claiming to have complied with the provisions of this chapter, due notice, as prescribed by the Chief of the Bureau of Public Lands with the approval of the Secretary of the Interior, shall be given to the public of his intention to make such proof, stating therein the time and place, and giving a description of the land and the names of the witnesses by whom it is expected that the necessary facts will be established. "SEC. 9. No patent shall issue under the provisions of this chapter until the land has been surveyed under the direction of the Chief of the Bureau of Public Lands and an accurate plat made thereof, the cost of which survey shall be borne by the Insular Government." (emphasis supplied. This law was later amended by Acts Nos. 1573, 1699, 1864, 1908, 2051, 2222, 2325, and repealed by Act No. 2874. This law was replaced completely by Commonwealth Act No. 141 on November 7, 1936.) 2 Juanico v. American Land Commercial Company, Inc., 97 Phil. 221, citing Simmons v. Wagner, 10 U.S. 260, 68 C.J.S., 875. 3 See Uy Un v. Perez and Villaplana, 71 Phil. 508, where the principle was applied to occupants of public lands who have not perfected their rights under Section 45 of Act No. 2874. 4 Balboa Farrales, 51 Phil. 498. 5 In Fiel et al Wagas et al 48 O.G., 195 (January 9, 1950), Justice Concepcion, citing various authorities, reiterated the doctrine that the decisive factor in order to determine whether a land is conjugal property or belongs to one only of the spouses, is not the date of the issuance of the homestead patent but the time of fulfillment of the requirements of the public land law. Although this was a Court

of Appeals decision, the same was sustained by the Supreme Court in its resolution of March 22, 1950. 6 Article 1407 provides: "ART. 1407. All the property of the spouses shall be deemed partnership property in the absence of proof that it belongs exclusively to the husband or to the wife." 7 Article 1431, now Article 189, Civil Code. 8 Articles 1392 and 1426, now Articles 142 and 185, Civil Code. 9 Article 932, now Article 980, Civil Code. 10 Article 999, Civil Code.

Republic of the Philippines Congress of the Philippines Metro Manila Twelfth Congress Third Regular Session Begun and held in Metro Manila, on Monday, the twenty-second day of July, two thousand three. Republic Act No. 9262 March 08, 2004 AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES THEREFORE, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Short Title.- This Act shall be known as the "Anti-Violence Against Women and Their Children Act of 2004". SECTION 2. Declaration of Policy.- It is hereby declared that the State values the dignity of women and children and guarantees full respect for human rights. The State also recognizes the need to protect the family and its members particularly women and children, from violence and threats to their personal safety and security. Towards this end, the State shall exert efforts to address violence committed against women and children in keeping with the fundamental freedoms guaranteed under the Constitution and the Provisions of the Universal Declaration of Human Rights, the convention on the Elimination of all forms of discrimination Against Women, Convention on the Rights of the Child and other international human rights instruments of which the Philippines is a party. SECTION 3. Definition of Terms.- As used in this Act, (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts: A. "Physical Violence" refers to acts that include bodily or physical harm; B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to: a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser; b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; c) Prostituting the woman or child. C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children. D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: 1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code; 2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common; 3. destroying household property; 4. controlling the victims' own money or properties or solely controlling the conjugal money or properties. (b) "Battery" refers to an act of inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress. (c) "Battered Woman Syndrome" refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. (d) "Stalking" refers to an intentional act committed by a person who, knowingly and without lawful justification follows the woman or her child or places the woman or her child under surveillance directly or indirectly or a combination thereof.

(e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. (f) "Sexual relations" refers to a single sexual act which may or may not result in the bearing of a common child. (g) "Safe place or shelter" refers to any home or institution maintained or managed by the Department of Social Welfare and Development (DSWD) or by any other agency or voluntary organization accredited by the DSWD for the purposes of this Act or any other suitable place the resident of which is willing temporarily to receive the victim. (h) "Children" refers to those below eighteen (18) years of age or older but are incapable of taking care of themselves as defined under Republic Act No. 7610. As used in this Act, it includes the biological children of the victim and other children under her care. SECTION 4. Construction.- This Act shall be liberally construed to promote the protection and safety of victims of violence against women and their children. SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: (a) Causing physical harm to the woman or her child; (b) Threatening to cause the woman or her child physical harm; (c) Attempting to cause the woman or her child physical harm; (d) Placing the woman or her child in fear of imminent physical harm; (e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: (1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family; (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; (3) Depriving or threatening to deprive the woman or her child of a legal right; (4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or common money, or properties; (f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; (g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and (5) Engaging in any form of harassment or violence; (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children. SECTION 6. Penalties.- The crime of violence against women and their children, under Section 5 hereof shall be punished according to the following rules: (a) Acts falling under Section 5(a) constituting attempted, frustrated or consummated parricide or murder or homicide shall be punished in accordance with the provisions of the Revised Penal Code. If these acts resulted in mutilation, it shall be punishable in accordance with the Revised Penal Code; those constituting serious physical injuries shall have the penalty of prison mayor; those constituting less serious physical injuries shall be punished by prision correccional; and those constituting slight physical injuries shall be punished by arresto mayor. Acts falling under Section 5(b) shall be punished by imprisonment of two degrees lower than the prescribed penalty for the consummated crime as specified in the preceding paragraph but shall in no case be lower than arresto mayor. (b) Acts falling under Section 5(c) and 5(d) shall be punished by arresto mayor; (c) Acts falling under Section 5(e) shall be punished by prision correccional; (d) Acts falling under Section 5(f) shall be punished by arresto mayor; (e) Acts falling under Section 5(g) shall be punished by prision mayor; (f) Acts falling under Section 5(h) and Section 5(i) shall be punished by prision mayor. If the acts are committed while the woman or child is pregnant or committed in the presence of her child, the penalty to be applied shall be the maximum period of penalty prescribed in the section. In addition to imprisonment, the perpetrator shall (a) pay a fine in the amount of not less than One hundred thousand pesos (P100,000.00) but not more than three hundred thousand pesos (300,000.00); (b) undergo mandatory psychological counseling or psychiatric treatment and shall report compliance to the court.

SECTION 7. Venue.- The Regional Trial Court designated as a Family Court shall have original and exclusive jurisdiction over cases of violence against women and their children under this law. In the absence of such court in the place where the offense was committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of the compliant. SECTION 8. Protection Orders.- A protection order is an order issued under this act for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of this Act and granting other necessary relief. The relief granted under a protection order serve the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. The protection orders that may be issued under this Act are the barangay protection order (BPO), temporary protection order (TPO) and permanent protection order (PPO). The protection orders that may be issued under this Act shall include any, some or all of the following reliefs: (a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act; (b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; (c) Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no property rights are violated, and if respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence; (d) Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member; (e) Directing lawful possession and use by petitioner of an automobile and other essential personal effects, regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner's or respondent's removal of personal belongings; (f) Granting a temporary or permanent custody of a child/children to the petitioner; (g) Directing the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; (h) Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on matter; (i) Restitution for actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expenses, childcare expenses and loss of income; (j) Directing the DSWD or any appropriate agency to provide petitioner may need; and (k) Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief. Any of the reliefs provided under this section shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage. The issuance of a BPO or the pendency of an application for BPO shall not preclude a petitioner from applying for, or the court from granting a TPO or PPO. SECTION 9. Who may file Petition for Protection Orders. A petition for protection order may be filed by any of the following: (a) the offended party; (b) parents or guardians of the offended party; (c) ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity or affinity; (d) officers or social workers of the DSWD or social workers of local government units (LGUs); (e) police officers, preferably those in charge of women and children's desks; (f) Punong Barangay or Barangay Kagawad; (g) lawyer, counselor, therapist or healthcare provider of the petitioner; (h) At least two (2) concerned responsible citizens of the city or municipality where the violence against women and their children occurred and who has personal knowledge of the offense committed. SECTION 10. Where to Apply for a Protection Order. Applications for BPOs shall follow the rules on venue under Section 409 of the Local Government Code of 1991 and its implementing rules and regulations. An application for a TPO or PPO may be filed in the regional trial court, metropolitan trial court, municipal trial court, municipal circuit trial court with territorial jurisdiction over the place of residence of the petitioner: Provided, however, That if a family court exists in the place of residence of the petitioner, the application shall be filed with that court.

SECTION 11. How to Apply for a Protection Order. The application for a protection order must be in writing, signed and verified under oath by the applicant. It may be filed as an independent action or as incidental relief in any civil or criminal case the subject matter or issues thereof partakes of a violence as described in this Act. A standard protection order application form, written in English with translation to the major local languages, shall be made available to facilitate applications for protections order, and shall contain, among other, the following information: (a) names and addresses of petitioner and respondent; (b) description of relationships between petitioner and respondent; (c) a statement of the circumstances of the abuse; (d) description of the reliefs requested by petitioner as specified in Section 8 herein; (e) request for counsel and reasons for such; (f) request for waiver of application fees until hearing; and (g) an attestation that there is no pending application for a protection order in another court. If the applicants is not the victim, the application must be accompanied by an affidavit of the applicant attesting to (a) the circumstances of the abuse suffered by the victim and (b) the circumstances of consent given by the victim for the filling of the application. When disclosure of the address of the victim will pose danger to her life, it shall be so stated in the application. In such a case, the applicant shall attest that the victim is residing in the municipality or city over which court has territorial jurisdiction, and shall provide a mailing address for purpose of service processing. An application for protection order filed with a court shall be considered an application for both a TPO and PPO. Barangay officials and court personnel shall assist applicants in the preparation of the application. Law enforcement agents shall also extend assistance in the application for protection orders in cases brought to their attention. SECTION 12. Enforceability of Protection Orders. All TPOs and PPOs issued under this Act shall be enforceable anywhere in the Philippines and a violation thereof shall be punishable with a fine ranging from Five Thousand Pesos (P5,000.00) to Fifty Thousand Pesos (P50,000.00) and/or imprisonment of six (6) months. SECTION 13. Legal Representation of Petitioners for Protection Order. If the woman or her child requests in the applications for a protection order for the appointment of counsel because of lack of economic means to hire a counsel de parte, the court shall immediately direct the Public Attorney's Office (PAO) to represent the petitioner in the hearing on the application. If the PAO determines that the applicant can afford to hire the services of a counsel de parte, it shall facilitate the legal representation of the petitioner by a counsel de parte. The lack of access to family or conjugal resources by the applicant, such as when the same are controlled by the perpetrator, shall qualify the petitioner to legal representation by the PAO. However, a private counsel offering free legal service is not barred from representing the petitioner. SECTION 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time for the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay official to effect is personal service. The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay. SECTION 15. Temporary Protection Orders. Temporary Protection Orders (TPOs) refers to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO. The court shall order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the date of the hearing on the merits of the issuance of a PPO. SECTION 16. Permanent Protection Orders. Permanent Protection Order (PPO) refers to protection order issued by the court after notice and hearing. Respondents non-appearance despite proper notice, or his lack of a lawyer, or the non-availability of his lawyer shall not be a ground for rescheduling or postponing the hearing on the merits of the issuance of a PPO. If the respondents appears without counsel on the date of the hearing on the PPO, the court shall appoint a lawyer for the respondent and immediately proceed with the hearing. In case the respondent fails to appear despite proper notice, the court shall allow ex parte presentation of the evidence by the applicant and render judgment on the basis of the evidence presented. The court shall allow the introduction of any history of abusive conduct of a respondent even if the same was not directed against the applicant or the person for whom the applicant is made. The court shall, to the extent possible, conduct the hearing on the merits of the issuance of a PPO in one (1) day. Where the court is unable to conduct the hearing within one (1) day and the TPO issued is due to expire, the court shall continuously extend or renew the TPO for a period of thirty (30) days at each particular time until final judgment is issued. The extended or renewed TPO may

be modified by the court as may be necessary or applicable to address the needs of the applicant. The court may grant any, some or all of the reliefs specified in Section 8 hereof in a PPO. A PPO shall be effective until revoked by a court upon application of the person in whose favor the order was issued. The court shall ensure immediate personal service of the PPO on respondent. The court shall not deny the issuance of protection order on the basis of the lapse of time between the act of violence and the filing of the application. Regardless of the conviction or acquittal of the respondent, the Court must determine whether or not the PPO shall become final. Even in a dismissal, a PPO shall be granted as long as there is no clear showing that the act from which the order might arise did not exist. SECTION 17. Notice of Sanction in Protection Orders. The following statement must be printed in bold-faced type or in capital letters on the protection order issued by the Punong Barangay or court: "VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW." SECTION 18. Mandatory Period For Acting on Applications For Protection Orders Failure to act on an application for a protection order within the reglementary period specified in the previous section without justifiable cause shall render the official or judge administratively liable. SECTION 19. Legal Separation Cases. In cases of legal separation, where violence as specified in this Act is alleged, Article 58 of the Family Code shall not apply. The court shall proceed on the main case and other incidents of the case as soon as possible. The hearing on any application for a protection order filed by the petitioner must be conducted within the mandatory period specified in this Act. SECTION 20. Priority of Application for a Protection Order. Ex parte and adversarial hearings to determine the basis of applications for a protection order under this Act shall have priority over all other proceedings. Barangay officials and the courts shall schedule and conduct hearings on applications for a protection order under this Act above all other business and, if necessary, suspend other proceedings in order to hear applications for a protection order. SECTION 21. Violation of Protection Orders. A complaint for a violation of a BPO issued under this Act must be filed directly with any municipal trial court, metropolitan trial court, or municipal circuit trial court that has territorial jurisdiction over the barangay that issued the BPO. Violation of a BPO shall be punishable by imprisonment of thirty (30) days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed. A judgement of violation of a BPO ma be appealed according to the Rules of Court. During trial and upon judgment, the trial court may motu proprio issue a protection order as it deems necessary without need of an application. Violation of any provision of a TPO or PPO issued under this Act shall constitute contempt of court punishable under Rule 71 of the Rules of Court, without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed. SECTION 22. Applicability of Protection Orders to Criminal Cases. The foregoing provisions on protection orders shall be applicable in impliedly instituted with the criminal actions involving violence against women and their children. SECTION 23. Bond to Keep the Peace. The Court may order any person against whom a protection order is issued to give a bond to keep the peace, to present two sufficient sureties who shall undertake that such person will not commit the violence sought to be prevented. Should the respondent fail to give the bond as required, he shall be detained for a period which shall in no case exceed six (6) months, if he shall have been prosecuted for acts punishable under Section 5(a) to 5(f) and not exceeding thirty (30) days, if for acts punishable under Section 5(g) to 5(I). The protection orders referred to in this section are the TPOs and the PPOs issued only by the courts. SECTION 24. Prescriptive Period. Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years. SECTION 25. Public Crime. Violence against women and their children shall be considered a public offense which may be prosecuted upon the filing of a complaint by any citizen having personal knowledge of the circumstances involving the commission of the crime. SECTION 26. Battered Woman Syndrome as a Defense. Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists. SECTION 27. Prohibited Defense. Being under the influence of alcohol, any illicit drug, or any other mind-altering substance shall not be a defense under this Act. SECTION 28. Custody of children. The woman victim of violence shall be entitled to the custody and support of her child/children. Children below seven (7) years old older but with mental or physical disabilities shall automatically be given to the mother, with right to support, unless the court finds compelling reasons to order otherwise. A victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the perpetrator of a woman who is suffering from Battered woman syndrome. SECTION 29. Duties of Prosecutors/Court Personnel. Prosecutors and court personnel should observe the following duties when dealing with victims under this Act:

a) communicate with the victim in a language understood by the woman or her child; and b) inform the victim of her/his rights including legal remedies available and procedure, and privileges for indigent litigants. SECTION 30. Duties of Barangay Officials and Law Enforcers. Barangay officials and law enforcers shall have the following duties: (a) respond immediately to a call for help or request for assistance or protection of the victim by entering the necessary whether or not a protection order has been issued and ensure the safety of the victim/s; (b) confiscate any deadly weapon in the possession of the perpetrator or within plain view; (c) transport or escort the victim/s to a safe place of their choice or to a clinic or hospital; (d) assist the victim in removing personal belongs from the house; (e) assist the barangay officials and other government officers and employees who respond to a call for help; (f) ensure the enforcement of the Protection Orders issued by the Punong Barangy or the courts; (g) arrest the suspected perpetrator wiithout a warrant when any of the acts of violence defined by this Act is occurring, or when he/she has personal knowledge that any act of abuse has just been committed, and there is imminent danger to the life or limb of the victim as defined in this Act; and (h) immediately report the call for assessment or assistance of the DSWD, social Welfare Department of LGUs or accredited non-government organizations (NGOs). Any barangay official or law enforcer who fails to report the incident shall be liable for a fine not exceeding Ten Thousand Pesos (P10,000.00) or whenever applicable criminal, civil or administrative liability. SECTION 31. Healthcare Provider Response to Abuse Any healthcare provider, including, but not limited to, an attending physician, nurse, clinician, barangay health worker, therapist or counselor who suspects abuse or has been informed by the victim of violence shall: (a) properly document any of the victim's physical, emotional or psychological injuries; (b) properly record any of victim's suspicions, observations and circumstances of the examination or visit; (c) automatically provide the victim free of charge a medical certificate concerning the examination or visit; (d) safeguard the records and make them available to the victim upon request at actual cost; and (e) provide the victim immediate and adequate notice of rights and remedies provided under this Act, and services available to them. SECTION 32. Duties of Other Government Agencies and LGUs Other government agencies and LGUs shall establish programs such as, but not limited to, education and information campaign and seminars or symposia on the nature, causes, incidence and consequences of such violence particularly towards educating the public on its social impacts. It shall be the duty of the concerned government agencies and LGU's to ensure the sustained education and training of their officers and personnel on the prevention of violence against women and their children under the Act. SECTION 33. Prohibited Acts. A Punong Barangay, Barangay Kagawad or the court hearing an application for a protection order shall not order, direct, force or in any way unduly influence he applicant for a protection order to compromise or abandon any of the reliefs sought in the application for protection under this Act. Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 shall not apply in proceedings where relief is sought under this Act. Failure to comply with this Section shall render the official or judge administratively liable. SECTION 34. Persons Intervening Exempt from Liability. In every case of violence against women and their children as herein defined, any person, private individual or police authority or barangay official who, acting in accordance with law, responds or intervenes without using violence or restraint greater than necessary to ensure the safety of the victim, shall not be liable for any criminal, civil or administrative liability resulting therefrom. SECTION 35. Rights of Victims. In addition to their rights under existing laws, victims of violence against women and their children shall have the following rights: (a) to be treated with respect and dignity; (b) to avail of legal assistance form the PAO of the Department of Justice (DOJ) or any public legal assistance office; (c) To be entitled to support services form the DSWD and LGUs' (d) To be entitled to all legal remedies and support as provided for under the Family Code; and (e) To be informed of their rights and the services available to them including their right to apply for a protection order. SECTION 36. Damages. Any victim of violence under this Act shall be entitled to actual, compensatory, moral and exemplary damages. SECTION 37. Hold Departure Order. The court shall expedite the process of issuance of a hold departure order in cases prosecuted under this Act. SECTION 38. Exemption from Payment of Docket Fee and Other Expenses. If the victim is an indigent or there is an immediate necessity due to imminent danger or threat of danger to act on an application for a protection order, the court shall accept the application without payment of the filing fee and other fees and of transcript of stenographic notes. SECTION 39. Inter-Agency Council on Violence Against Women and Their Children (IAC-VAWC). In pursuance of the abovementioned policy, there is hereby established an Inter-Agency Council on Violence Against Women and their children, hereinafter known as the Council, which shall be composed of the following agencies:

(a) Department of Social Welfare and Development (DSWD); (b) National Commission on the Role of Filipino Women (NCRFW); (c) Civil Service Commission (CSC); (d) Commission on Human rights (CHR) (e) Council for the Welfare of Children (CWC); (f) Department of Justice (DOJ); (g) Department of the Interior and Local Government (DILG); (h) Philippine National Police (PNP); (i) Department of Health (DOH); (j) Department of Education (DepEd); (k) Department of Labor and Employment (DOLE); and (l) National Bureau of Investigation (NBI). These agencies are tasked to formulate programs and projects to eliminate VAW based on their mandates as well as develop capability programs for their employees to become more sensitive to the needs of their clients. The Council will also serve as the monitoring body as regards to VAW initiatives. The Council members may designate their duly authorized representative who shall have a rank not lower than an assistant secretary or its equivalent. These representatives shall attend Council meetings in their behalf, and shall receive emoluments as may be determined by the Council in accordance with existing budget and accounting rules and regulations. SECTION 40. Mandatory Programs and Services for Victims. The DSWD, and LGU's shall provide the victims temporary shelters, provide counseling, psychosocial services and /or, recovery, rehabilitation programs and livelihood assistance. The DOH shall provide medical assistance to victims. SECTION 41. Counseling and Treatment of Offenders. The DSWD shall provide rehabilitative counseling and treatment to perpetrators towards learning constructive ways of coping with anger and emotional outbursts and reforming their ways. When necessary, the offender shall be ordered by the Court to submit to psychiatric treatment or confinement. SECTION 42. Training of Persons Involved in Responding to Violence Against Women and their Children Cases. All agencies involved in responding to violence against women and their children cases shall be required to undergo education and training to acquaint them with: a. the nature, extend and causes of violence against women and their children; b. the legal rights of, and remedies available to, victims of violence against women and their children; c. the services and facilities available to victims or survivors; d. the legal duties imposed on police officers to make arrest and to offer protection and assistance; and e. techniques for handling incidents of violence against women and their children that minimize the likelihood of injury to the officer and promote the safety of the victim or survivor. The PNP, in coordination with LGU's shall establish an education and training program for police officers and barangay officials to enable them to properly handle cases of violence against women and their children. SECTION 43. Entitled to Leave. Victims under this Act shall be entitled to take a paid leave of absence up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations, extendible when the necessity arises as specified in the protection order. Any employer who shall prejudice the right of the person under this section shall be penalized in accordance with the provisions of the Labor Code and Civil Service Rules and Regulations. Likewise, an employer who shall prejudice any person for assisting a co-employee who is a victim under this Act shall likewise be liable for discrimination. SECTION 44. Confidentiality. All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics to hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter's consent, shall be liable to the contempt power of the court. Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred Thousand pesos (P500,000.00). SECTION 45. Funding The amount necessary to implement the provisions of this Act shall be included in the annual General Appropriations Act (GAA). The Gender and Development (GAD) Budget of the mandated agencies and LGU's shall be used to implement services for victim of violence against women and their children. SECTION 46. Implementing Rules and Regulations. Within six (6) months from the approval of this Act, the DOJ, the NCRFW, the DSWD, the DILG, the DOH, and the PNP, and three (3) representatives from NGOs to be identified by the NCRFW, shall promulgate the Implementing Rules and Regulations (IRR) of this Act. SECTION 47. Suppletory Application For purposes of this Act, the Revised Penal Code and other applicable laws, shall have suppletory application. SECTION 48. Separability Clause. If any section or provision of this Act is held unconstitutional or invalid, the other sections or provisions shall not be affected. SECTION 49. Repealing Clause All laws, Presidential decrees, executive orders and rules and regulations, or parts thereof, inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SECTION 50. Effectivity This Act shall take effect fifteen (15) days from the date of its complete publication in at least two (2) newspapers of general circulation. Approved,

JOSE DE VENECIA JR. Speaker of the House of Representatives FRANKLIN DRILON President of the Senate This Act, which is a consolidation of Senate Bill No. 2723 and House Bill Nos. 5516 and 6054, was finally passed by the Senate and the House of Representatives on January 29, 2004 and February 2, 2004, respectively. ROBERTO P. NAZARENO Secretary General House of Represenatives OSCAR G. YABES Secretary of Senate Approved: March 08, 2004 GLORIA MACAPAGAL-ARROYO President of the Philippines