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Republic of the Philippines



G.R. No. L-39110 November 28, 1933

ANTONIA L. DE JESUS, ET AL., plaintiff-appellant,

CESAR SYQUIA, defendant-appellant.

Jose Sotelo for plaintiffs-appellants.

Vicente J. Francisco for defendant-appellant.


This action was instituted in the Court of First Instance of Manila by Antonia Loanco de Jesus in her own right and by her mother, Pilar
Marquez, as next friend and representative of Ismael and Pacita Loanco, infants, children of the first-named plaintiff, for the purpose of
recovering from the defendant, Cesar Syquia, the sum of thirty thousand pesos as damages resulting to the first-named plaintiff from
breach of a marriage promise, to compel the defendant to recognize Ismael and Pacita as natural children begotten by him with Antonia,
and to pay for the maintenance of the three the amount of five hundred pesos per month, together with costs. Upon hearing the cause,
after answer of the defendant, the trial court erred a decree requiring the defendant to recognize Ismael Loanco as his natural child and
to pay maintenance for him at the rate of fifty pesos per month, with costs, dismissing the action in other respects. From this judgment
both parties appealed, the plaintiffs from so much of the decision as denied part of the relief sought by them, and the defendant from that
feature of the decision which required him to recognize Ismael Loanco and to pay for his maintenance.

At the time with which we are here concerned, the defendant, Cesar Syquia was of the age of twenty-three years, and an unmarried scion
of the prominent family in Manila, being possessed of a considerable property in his own right. His brother-in-law, Vicente Mendoza is
the owner of a barber shop in Tondo, where the defendant was accustomed to go for tonsorial attention. In the month of June Antonia
Loanco, a likely unmarried girl of the age of twenty years, was taken on as cashier in this barber shop. Syquia was not long in making her
acquaintance and amorous relations resulted, as a consequence of which Antonia was gotten with child and a baby boy was born on
June 17, 1931. The defendant was a constant visitor at the home of Antonia in the early months of her pregnancy, and in February, 1931,
he wrote and placed in her hands a note directed to the padre who has expected to christen the baby. This note was as follows:

Saturday, 1:30 p. m.
February 14, 1931


The baby due in June is mine and I should like for my name to be given to it.


The occasion for writing this note was that the defendant was on the eve of his departure on a trip to China and Japan; and while he was
abroad on this visit he wrote several letters to Antonia showing a paternal interest in the situation that had developed with her, and
cautioning her to keep in good condition in order that "junior" (meaning the baby to be, "Syquia, Jr.") might be strong, and promising to
return to them soon. The baby arrived at the time expected, and all necessary anticipatory preparations were made by the defendant. To
this he employed his friend Dr. Crescenciano Talavera to attend at the birth, and made arrangements for the hospitalization of the mother
in Saint Joseph's Hospital of the City of Manila, where she was cared for during confinement.

When Antonio was able to leave the hospital, Syquia took her, with her mother and the baby, to a house at No. 551 Camarines Street,
Manila, where they lived together for about a year in regular family style, all household expenses, including gas and electric light, being
defrayed by Syquia. In course of time, however, the defendant's ardor abated and, when Antonia began to show signs of a second
pregnancy the defendant decamped, and he is now married to another woman. A point that should here be noted is that when the time
came for christening the child, the defendant, who had charge of the arrangement for this ceremony, caused the name Ismael Loanco to
be given to him, instead of Cesar Syquia, Jr., as was at first planned.

The first question that is presented in the case is whether the note to the padre, quoted above, in connection with the letters written by
the defendant to the mother during pregnancy, proves an acknowledgment of paternity, within the meaning of subsection 1 of article 135
of the Civil Code. Upon this point we have no hesitancy in holding that the acknowledgment thus shown is sufficient. It is a universal rule
of jurisprudence that a child, upon being conceived, becomes a bearer of legal rights and capable of being dealt with as a living person.
The fact that it is yet unborn is no impediment to the acquisition of rights. The problem here presented of the recognition of unborn child
is really not different from that presented in the ordinary case of the recognition of a child already born and bearing a specific name. Only
the means and resources of identification are different. Even a bequest to a living child requires oral evidence to connect the particular
individual intended with the name used.

It is contended however, in the present case that the words of description used in the writings before us are not legally sufficient to
indemnify the child now suing as Ismael Loanco. This contention is not, in our opinion, well founded. The words of recognition contained
in the note to the padre are not capable of two constructions. They refer to a baby then conceived which was expected to be born in June
and which would thereafter be presented for christening. The baby came, and though it was in the end given the name of Ismael Loanco
instead of Cesar Syquia, Jr., its identity as the child which the defendant intended to acknowledge is clear. Any doubt that might arise on
this point is removed by the letters Exhibit F, G, H, and J. In these letters the defendant makes repeated reference to junior as the baby
which Antonia, to whom the letters were addressed, was then carrying in her womb, and the writer urged Antonia to eat with good appetite
in order that junior might be vigorous. In the last letter (Exhibit J) written only a few days before the birth of the child, the defendant urged
her to take good care of herself and ofjunior also.

It seems to us that the only legal question that can here arise as to the sufficiency of acknowledgment is whether the acknowledgment
contemplated in subsection 1 of article 135 of the Civil Code must be made in a single document or may be made in more than one
document, of indubitable authenticity, written by the recognizing father. Upon this point we are of the opinion that the recognition can be
made out by putting together the admissions of more than one document, supplementing the admission made in one letter by an
admission or admissions made in another. In the case before us the admission of paternity is contained in the note to the padre and the
other letters suffice to connect that admission with the child then being carried by Antonia L. de Jesus. There is no requirement in the law
that the writing shall be addressed to one, or any particular individual. It is merely required that the writing shall be indubitable.

The second question that presents itself in this case is whether the trial court erred in holding that Ismael Loanco had been in the
uninterrupted possession of the status of a natural child, justified by the conduct of the father himself, and that as a consequence, the
defendant in this case should be compelled to acknowledge the said Ismael Loanco, under No. 2 of article 135 of the Civil Cod e. The
facts already stated are sufficient, in our opinion, to justify the conclusion of the trial court on this point, and we may add here that our
conclusion upon the first branch of the case that the defendant had acknowledged this child in writings above referred to must be taken
in connection with the facts found by the court upon the second point. It is undeniable that from the birth of this child the defendant
supplied a home for it and the mother, in which they lived together with the defendant. This situation continued for about a year, and until
Antonia became enciente a second time, when the idea entered the defendant's head of abandoning her. The law fixes no period during
which a child must be in the continuous possession of the status of a natural child; and the period in this case was long enough to evince
the father's resolution to concede the status. The circumstance that he abandoned the mother and child shortly before this action was
started is unimportant. The word "continuous" in subsection 2 of article 135 of the Civil Code does not mean that the concession of status
shall continue forever, but only that it shall not be of an intermittent character while it continues.

What has been said disposes of the principal feature of the defendant's appeal. With respect to the appeal of the plaintiffs, we are of the
opinion that the trial court was right in refusing to give damages to the plaintiff, Antonia Loanco, for supposed breach of promise to marry.
Such promise is not satisfactorily proved, and we may add that the action for breach of promise to marry has no standing in the civil law,
apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. This case exhibits none of the
features necessary to maintain such an action. Furthermore, there is no proof upon which a judgment could be based requiring the
defendant to recognize the second baby, Pacita Loanco.

Finally, we see no necessity or propriety in modifying the judgment as to the amount of the maintenance which the trial court allowed to
Ismael Loanco. And in this connection we merely point out that, as conditions change, the Court of First Instance will have jurisdiction to
modify the order as to the amount of the pension as circumstances will require.

The judgment appealed from is in all respects affirmed, without costs. So ordered.

Malcolm, Abad Santos, Hull, Vickers, and butte, JJ., concur.

Separate Opinions

VILLA-REAL, J., dissenting:

The majority opinion is predicated on two grounds: First, that the defendant-appellant Cesar Syquia has expressly acknowledged his
paternity of the child Ismael Loanco in an indubitable writing of his; and secondly, that said child has enjoyed the uninterrupted possession
of the status of a natural son of said defendant-appellant Cesar Syquia, justified by his acts, as required by article 135 of the Civil Code.

The first conclusion is drawn from Exhibits C, F, G, H, and J.

Exhibit C, which is in the handwriting of any signed by the defendant-appellant Cesar Syquia, reads as follows:

Sabado, 1.30 p. m. — 14 febrero, 1931


La criatura que vendra el junio es mio y que yo quisiera mi nombre que se de a la criatura.


Exhibit F, G, H, and j, which are letters written by the said defendant-appellant Cesar Syquia to plaintiff-appellee Antonia L. de Jesus
prior to the birth of the child contain the following expressions:

Exhibit F, Feb. 18, 1931: "No hagas nada malo; ni manches mi nombre y el de junior tambien no lo manches. A cuerdate muy bien Toni
que es por ti y por junior volvere alli pronto. ..."

Exhibit G. Feb. 24, 1931: "Toni por favor cuida bien a junior eh? . ..."

Exhibit H, March 25, 1931: "Toni, cuida tu bien a junior y cuidate bien, y come tu mucho. ... ."

Exhibit J, June 1, 1931: "Cuidate bien y junior tambien . ..."

Article 135, number 1, provides as follows:

ART. 135. The father may be compelled to acknowledge his natural child in the following cases:

1. When an indisputable paper written by him, expressly acknowledging his paternity, is in existence.

Maresa (Codigo Civil, Vol. 1, page 596, 4th ed.) commenting on said article, says:

Con arreglo al articulo que comentamos, no puede haber cuestion acerca de si es posible admitir por otro medio la prueba de
la paternidad natural. Entendemos que no, porquel el articulo es terminante y la intencion de la ley mas terminante aun. Se
establecio en la base 5.a que "no se admitira investigacion de la paternidad sino en los casos de delito, o cuando exista escrito
del padre en el que conste su voluntad indubitada de reconocer por suyo al hijo, deliberadamente expresada con ese fin, o
cuando medie posesion de estado", y esto mismo es lo que se ordena en el presente articulo.

No puede, pues, prosperar la demanda para obligar al padre al reconocimiento de un hijo natural, aunque solo se limite a pedir
alimentos, si no se funda en el reconocimiento expreso del padre hecho por escrito, en la posesion constante de estado de hijo
natural o en sentencia firme recaida en causa por de delito violacin, estupro o rapto. El escrito y la sentencia habran de
acompañarse a la demandada, y no puede admitirse otra prueba que la conducente a justificar que el escrito es indubitadamente
del padre que en el reconozca su paternidad, o la relativa a los actos directos del mismo padre o de su familia, que demuestren
la posesion continua de dicho estado. Para la prueba de estos dos hechos podran utilizarse todos los medios que permite la
Ley de Enjuiciamiento Civil, debiendo el juez rechazar la que por cualquier otro concepto se dirija a la investigacion de la

xxx xxx xxx

En cuanto al otro requisito de ser expreso el reconocimiento, tengase presente que no basta hacerlo por incidencia; es
indespensable que se consigne en el escrito la voluntad indubitada, clara y terminante del padre, de reconocer por suyo al
hijo, deliberadamente expresada con este fin, como se ordena an la base 5.a antes citada, de las aprobadas por la Ley de 11
de mayo de 1888; de suerte que el escrito, aunque contenga otros particulares, como sucede en los testamentos, ha de tener
por objecto el reconocimiento deliberado y expreso del hijo natural. No llena, pues, ese objecto la manifestacion que
incidentalmente haga el padre de ser hijo natural suyo la persona a quien se refiera, y mucho menos el dar a una persona el
titulo y tratamiento de hijo en cartas familiares. Sin embrago, en cada caso decidiran los un modo suficientemente expresivo la
paternidad, servira de base para acreditar, en union con otros datos, la posesion contante del estado del hijo a los efectos de
este articulo, y con arreglo a su numero 2.º
Let it first be noted that the law prohibits the investigation of paternity (Borres and Barza vs. Municipality of Panay, 42 Phil., 643;
Donado vs. Menendez Donado, 55 Phil., 861). The only exceptions to this rule are those established in article 135 of the Civil Code
quoted above, the first of which is that the father may be compelled to acknowledge his paternity, "When an indubitable writing of his
exists in which he expressly acknowledge his paternity." The writing that is required by said provision must be complete in itself and by
itself, and must contain all the statements that are necessary to constitute a full and clear acknowledgment by a father of his paternity of
a child, in order that it may serve as a basis for compelling him to acknowledge said child should be afterwards deny his paternity. If
several writings put together, each not being complete in itself, should be necessary in order to obtain a full and complete expression of
acknowledgment by a father of his paternity of a child, the general prohibition to investigate paternity would be violated.

By the mere reading of all said letters, the one addressed to a priest and the others to the herein plaintiff-appellee, Antonia L. de Jesus,
the reader cannot ascertain which is the "creature that is coming on June", which the defendant- appellant, Cesar Syquia, says in the
said letter addressed to the priest is his, nor who is the "junior" that he recommends to said Antonia L. de Jesus to take good care of, as
there is nothing in anyone of said letters from which it may be inferred that Antonia L. de Jesus was enciente at the time, that
the "junior" was the being she was carrying in her womb, and that it was the "creature that is coming in June." To connect all these facts
it was necessary to prove that Cesar Syquia had had illicit relations with Antonia L. de Jesus, that as a result of such relations the woman
became pregnant, and that she gave birth to a boy in June 1931. All this certainly constitutes an investigation of the paternity of Cesar
Syquia of said child outside of the documents, which is prohibited by law.

Either taken alone therefore, or in connection with Exhibits F, G, H, and J, Exhibit C is insufficient to constitute a "indubitable writing of
Cesar Syquia, in which he expressly acknowledges his paternity of the child Ismael Loanco," as required by number 1 of article 135 of
the Civil Code.

As to the second ground of the decision of the majority, number 2 of article 135 of the Civil Code provides:

ART. 135. The father may be compelled to acknowledge his natural child in the following cases:

xxx xxx xxx

2. When the child has been in the uninterrupted possession of the status of a natural child of the defendant father, justified by
the conduct of the father himself or that of his family.

The majority decision bases its connection on the second point on Exhibits C, F, G, H, and J and the following facts, as found by the
lower court in its decision:

Cuando la demandante Antonia L. de Jesus estaba para dar a luz, el demandado Cesar Syquia llamo a su comprovinciano Dr.
Crescenciano Talavera, medico que entonces ejercia su profesion en la Ciudad de Manila, para que asistiera a aquella en su
parto y a ese efecto llevo a la demandante Antonia L. de Jesus acompañado del Dr. Talavera al Hospital San Jose, de esta
Ciudad, donde ella dio a luz el 17 de junio de 1931 asistida por dicho Dr. Talavera, que firmo el certificado de necimiento Exhibit

Despues del nacimiento del demandante Ismael Loanco, el demandado estuvo viviendo con este y con la demandante Antonio
L. de Jesus en la casa No. 551 de la Calle Camarines, Manila, entregando a dicha demandante el dinero para los gastos de
casa y el pago del consumo de gas y luz electrica, habiendo firmado el contrato para el suministro del fluido electrico en dicha

Exhibit, C, F, G, H, and J, are inadmissible in evidence the purpose of showing that Ismael Loanco has enjoyed the continuous possession
of the status of a natural child, because being of prior date to the birth of said child they can not be considered as direct acts of Cesar
Syquia showing possession of the status of natural child, as no human being can enjoy such possession until he be born with legal
capacity for acquiring civil rights (Infante vs. Figueras, 4 Phil., 738; Granados vs. Leynes, G.R. No. 31224, promulgated September 9,
1929, not reported).

It must also be stated that Cesar Syquia refused to allow his name to be given to the child Ismael when it was baptized, so that the name
of its mother, Loanco, had to be given to it.

The facts which were found by the court below to have been proved by the testimony of the witnesses during the trial, are not sufficient
to constitute the uninterrupted possession of the status of Ismael Loanco as natural child of said Cesar Syquia, in the light of the following

In the case of Buenaventura vs. Urbano (5 Phil., 1, 9), this court said:

. . . Confining ourselves to the acts proved to have been performed by Don Telesforo, we find that he visited the mother of the
plaintiff; that he paid money for her support; that he paid money for the support of the plaintiff; that he hold one witness that the
plaintiff was his son; that the plaintiff called him "Papa," and that Don Telesforo answered to this designation; that when the
plaintiff visited Don Telesforo he kissed his hand; that Don Telesforo wrote letters to him; that he paid his fees for instruction in
school, and secured him a position in a commercial house.

xxx xxx xxx

All these facts taken together are not sufficient to show that plaintiff possesses continuously the status of a natural child. They
may have a tendency to show that Don Telesforo was the father of the child, but that it is not sufficient. It is not sufficient that
the father recognize the child as his. By the express terms of article 135 that recognition must appear either in writing, made by
the father, or it must appear in acts which show that the son has possessed continuously the status of a natural child. No
recognition by the father of the child which comes short of the requirements of these two paragraphs is sufficient. It must appear
that it was the intention of the father to recognize the child as to give him that status, and that the acts performed by him were
done with that intention.

Manresa (Codigo Civil, Vol. 1, page 602, 4th ed.) in citing some decisions of the Supreme Court of Spain says:

En la sentencia de 5 de junio de 1906 declarase que para justificar la posesion de estado de hijo natural se requiere que los
actos sean de tal naturaleza que revelen, a la vez que el convencimiento de la paternidad, la voluntad ostensible de tener y
tratar al hijo como tal en las relaciones sociales y de la vida, y esto no accidentalmente, sino continuedamente, porque en tal
supuesto los actos tiene el mismo valor que el reconocimiento

En el mismo criterio restrictivo se inspira la de 12 de octubre de 1907, que estima que el hecho de que dos nodrizas criaron a
otros tantos niños, sufragando el gasto el demandado, quien ademas iba a casa de la demandante, los besada, los llamaba
hijos y encargaba para los mismos el mayor cuidado; el de que subvenia a las necesidades de la madre y de los seis hijos que
la nacieron, el primero de los cuales se llamaba como el padre; y el de que los porteros de la casa donde vivio la actora sabian
que el finado visitaba a esta, se lamentaba de la mucha familia que tenia y era tenido en el concepto publico como padre de los
menores, no son suficientes para fundar la declaracion de paternidad, pues no es legal confundir actos que puedan revelar mas
o menos la presuncion o convencimiento en que una persona este de su paternidad con relacion a hijos naturales, con los que
demuestren su proposito de poner a estos hijos en la posesion de tal estado.

It will thus be seen from the foregoing discussion and authorities that the herein defendant-appellant Cesar Syquia cannot be compelled
to acknowledge the child Ismael Loanco as his natural son because there exists not an indubitable writing of his in which he expressly
acknowledges his paternity of said child, and because the said child has not enjoyed the uninterrupted possession of the status of a
natural child of the said
defendant-appellant, justified by his own conduct or that of his family, as required by article 135 of the Civil Code.

The decision appealed from should, therefore, be reversed and the complaint dismissed.

Avanceña, C.J. and Imperial, J., concur.

Republic of the Philippines



G.R. No. L-8166 February 8, 1916

JORGE DOMALAGAN, plaintiff-appellee,

CARLOS BOLIFER, defendant-appellant.

M. Abejuela for appellant.

Troadio Galicano for appellee.


This action was commenced in the Court of First Instance of the Province of Misamis, on the 17th of December, 1910. It was not presented
to the Supreme Court until the 11th of January 1916. Its purpose was to recover of the defendant the sum of P516, together with damages
estimated in the sum of P350 and interest, and costs.
In support of his claim the plaintiff alleged that, in the month of November, 1909, he and the defendant entered into a contract by virtue
of the terms of which he was to pay to the defendant the sum of P500 upon the marriage of his son Cipriano Domalagan with the daughter
of the defendant, Bonifacia Bolifer, that later, in the month of August, 1910, he completed his obligation under said contract by paying to
the defendant the said sum of 500, together with the further sum of P16 "as hansel or token of future marriage," that, notwithstanding
said agreement, the said Bonifacio Bolifer, in the month of August, 1910, was joined in lawful wedlock to Laureano Sisi; that immediately
upon learning of the marriage of Bonifacia Bolifer he demanded of the defendant the return of the said sum of P516 together with the
interest and damages; that the damages which he suffered resulted from the fact that he, in order to raise said sum of P500, was obliged
to sell certain real property belonging to him, located in the Province of Bohol, at a great sacrifice.

To the complaint the defendant presented a general denial. He also alleged that the facts stated in the complaint do not constitute a
cause of action. Upon the issue presented the cause was brought on for trial. After hearing the evidence the Honorable Vicente
Nepomuceno, judge, in an extended opinion in which all of the evidence adduced during the trial of the cause is carefully analyzed
reached the conclusion "of fact that plaintiff delivered to defendant the sum of P516 sued for and that Carlos Bolifer and Laureana Loquero
received and did not return the said amount," and for the reason that the evidence did not sufficiently show that the plaintiff had suffered
any additional damages, rendered a judgment in favor of the plaintiff and against the defendant in said sum of P516 together with the
interest at the rate of 6 per cent from the 17th of December, 1910, and costs.

From that judgment the defendant appealed to this court and made the following assignments of error:

1. In holding to be proven the fact of the delivery by the plaintiff of the sum of P516 to the defendant, Carlos Bolifer; and

2. In holding to be valid and effective the verbal contract entered into by the plaintiff and the defendant in regard to the delivery
of the money by reason of a prospective marriage.

The first assignment of error presents a question of fact. The lower court found that a large preponderance of the evidence showed that
the plaintiff had delivered to the defendant the sum of P516 in substantially the manner alleged in the complaint. Taking into consideration
that the lower court saw and heard the witnesses, together with the further fact that there is an abundance of uncontradicted proof
supporting the findings of the lower court, we are not inclined to disturb its judgment for any of the reasons given by the appellant in
support of his first assignment of error.

With reference to the second assignment of error, the appellant calls our attention to the provisions of paragraph 3 of section 335 of the
Code of Procedure in Civil Action. The appellant argues that by virtue of the provisions of said paragraph and by virtue of the fact that the
agreement upon which the plaintiff relies and under which he paid to the defendant the sum of P516 had not been reduced to writing, he
could therefore not recover. The appellant contends that a contract, such as the one relied upon by the plaintiff, in order to be valid, must
be reduced to writing. We have examined the record in vain to find that the defendant during the trial of the cause objected to any proof
or any part thereof, presented by the plaintiff which showed or tended to show the existence of the alleged contract. That part of said
section 335 which the appellant relies upon for relief provides:

In the following cases an agreement hereafter made shall be unenforceable by action unless the same, or some note or
memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement
can not be received without the writing or secondary evidence of its contents:

1. . . .

2. . . .

3. An agreement made upon the consideration of marriage, other than a mutual promise to marry.

It will be noted, by reference to said section, that "evidence " of the agreement referred to "can not be received without the writing or
secondary evidence of its contents." As was said above all of the "evidence" relating to said "agreement" was admitted without the
slightest objection.

Said section (335) does not render oral contracts invalid. A contract may be valid and yet, by virtue of said section, the parties will be
unable to prove it. Said section provides that the contract shall not be enforced by an action unless the same is evidence by some note
or memorandum. Said section simply provides the method by which the contract mentioned therein may be proved. It does not declare
that said contract are invalid, which have not been reduced to writing, except perhaps those mentioned in paragraph 5 of said section
(335). A contract may be a perfectly valid contract even though it is not clothed with the necessary form. If it is not made in confirmity with
said section of course it cannot be proved, if proper objection is made. But a failure to except to evidence presented in order to prove the
contract, because it does not conform to the statute, is a waiver of the provisions of the law. If the parties to an action, during the trial of
the cause, make no objection to the admissibility of oral evidence to support contracts like the one in question and permit the contract to
be proved, by evidence other than a writing, it will be just as binding upon the parties as if it had been reduced to writing. (Anson on
Contracts, p. 75; Conlu vs. Araneta and Guanko, 15 Phil. Rep., 387; Gallemit vs. Tabiliran, 20 Phil. Rep., 241, 246; Kuenzle and Streiff vs.
Joingco, 22 Phil. Rep., 110, 112; Gomez vs. Salcedo, 26 Phil. Rep., 485, 489.)
For the foregoing reasons we find nothing in the record justifying a reversal or modification of the judgment of the lower court based upon
either assignment of error. Therefore the judgment of the lower court is hereby affirmed, with costs. So ordered.

Arellano, C.J., Torres, Carson and Trent, JJ., concur.

Republic of the Philippines



G.R. No. 11263 November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,

JOSE CAMPOS RUEDA, defendant-appellee.

Eduardo Gutierrez Repide and Felix Socias for appellant.

Sanz, Opisso and Luzuriaga for appellee.


This is an action by the wife against her husband for support outside of the conjugal domicile. From a judgment sustaining the defendant's
demurrer upon the ground that the facts alleged in the complaint do not state a cause of action, followed by an order dismissing the case
after the plaintiff declined to amend, the latter appealed.

It was urged in the first instance, and the court so held, that the defendant cannot be compelled to support the plaintiff, except in his own
house, unless it be by virtue of a judicial decree granting her a divorce or separation from the defendant.

The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter established their residence at 115
Calle San Marcelino, where they lived together for about a month, when the plaintiff returned to the home of her parents. The pertinent
allegations of the complaint are as follows:

That the defendant, one month after he had contracted marriage with the plaintiff, demanded of her that she perform unchaste
and lascivious acts on his genital organs; that the plaintiff spurned the obscene demands of the defendant and refused to perform
any act other than legal and valid cohabitation; that the defendant, since that date had continually on other successive dates,
made similar lewd and indecorous demands on his wife, the plaintiff, who always spurned them, which just refusals of the plaintiff
exasperated the defendant and induce him to maltreat her by word and deed and inflict injuries upon her lips, her face and
different parts of her body; and that, as the plaintiff was unable by any means to induce the defendant to desist from his repugnant
desires and cease from maltreating her, she was obliged to leave the conjugal abode and take refuge in the home of her parents.

Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities established by General Orders No. 68, in so
far as its civil effects are concerned requiring the consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of
Civil Code.) Upon the termination of the marriage ceremony, a conjugal partnership is formed between the parties. (Sy Joc Lieng vs.
Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of an ordinary contract. But it is something more than
a mere contract. It is a new relation, the rights, duties, and obligations of which rest not upon the agreement of the parties but upon the
general law which defines and prescribes those rights, duties, and obligations .Marriage is an institution, in the maintenance of which in
its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any
contract they may make .The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time
to time, and none other. When the legal existence of the parties is merged into one by marriage, the new relation is regulated and
controlled by the state or government upon principles of public policy for the benefit of society as well as the parties. And when the object
of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the
community, relief in some way should be obtainable. With these principles to guide us, we will inquire into the status of the law touching
and governing the question under consideration.

Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to
78 of the Law of Civil Marriage of 1870, in force in the Peninsula, were extended to the Philippine Islands by royal decree on April 13,
1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law read:

ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other.
ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the management of the wife's

ART. 48. The wife must obey her husband, live with him, and follow him when he charges his domicile or residence.

Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve her from this duty when the
husband removes his residence to a foreign country.

And articles 143 and 149 of the Civil Code are as follows:

ART. 143. The following are obliged to support each other reciprocally to the whole extent specified in the preceding article.

1. The consorts.

xxx xxx xxx

ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying the pension that may be fixed
or by receiving and maintaining in his own home the person having the right to the same.

Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The failure of the wife to live with her
husband is not one of them.

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. But the husband who
is obliged to support his wife may, at his option, do so by paying her a fixed pension or by receiving and maintaining her in his own home.
May the husband, on account of his conduct toward his wife, lose this option and be compelled to pay the pension? Is the rule established
by article 149 of the Civil Code absolute? The supreme court of Spain in its decision of December 5, 1903, held:.

That in accordance with the ruling of the supreme court of Spain in its decisions dated May 11, 1897, November 25, 1899, and
July 5, 1901, the option which article 149 grants the person, obliged to furnish subsistence, between paying the pension fixed
or receiving and keeping in his own house the party who is entitled to the same, is not so absolute as to prevent cases being
considered wherein, either because this right would be opposed to the exercise of a preferential right or because of the existence
of some justifiable cause morally opposed to the removal of the party enjoying the maintenance, the right of selection must be
understood as being thereby restricted.

Whereas the only question discussed in the case which gave rise to this appeal was whether there was any reason to prevent
the exercise of the option granted by article 149 of the Civil Code to the person obliged to furnish subsistence, to receive and
maintain in his own house the one who is entitled to receive it; and inasmuch as nothing has been alleged or discussed with
regard to the parental authority of Pedro Alcantara Calvo, which he ha not exercised, and it having been set forth that the natural
father simply claims his child for the purpose of thus better attending to her maintenance, no action having been taken by him
toward providing the support until, owing to such negligence, the mother was obliged to demand it; it is seen that these
circumstances, together with the fact of the marriage of Pedro Alcantara, and that it would be difficult for the mother to maintain
relations with her daughter, all constitute an impediment of such a nature as to prevent the exercise of the option in the present
case, without prejudice to such decision as may be deemed proper with regard to the other questions previously cited in respect
to which no opinion should be expressed at this time.

The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576), wherein the court held that the rule laid
down in article 149 of the Civil Code "is not absolute." but it is insisted that there existed a preexisting or preferential right in each of these
cases which was opposed to the removal of the one entitled to support. It is true that in the first the person claiming the option was the
natural father of the child and had married a woman other than the child's mother, and in the second the right to support had already been
established by a final judgment in a criminal case. Notwithstanding these facts the two cases clearly established the proposition that the
option given by article 149 of the Civil Code may not be exercised in any and all cases.

Counsel for the defendant cite, in support of their contention, the decision of the supreme court of Spain, dated November 3, 1905. In this
case Don Berno Comas, as a result of certain business reverses and in order no to prejudice his wife, conferred upon her powers to
administer and dispose of her property. When she left him he gave her all the muniments of title, mortgage credits, notes, P10,000 in
accounts receivable, and the key to the safe in which he kept a large amount of jewels, thus depriving himself of all his possessions and
being reduced in consequence to want. Subsequently he instituted this civil action against his wife, who was then living in opulence, for
support and the revocation of the powers heretofore granted in reference to the administration and disposal of her property. In her answer
the wife claimed that the plaintiff (her husband) was not legally in a situation to claim support and that the powers voluntarily conferred
and accepted by her were bilateral and could not be canceled by the plaintiff. From a judgment in favor of the plaintiff the defendant wife
appealed to the Audencia Territorial wherein, after due trial, judgment was rendered in her favor dismissing the action upon the merits.
The plaintiff appealed to the supreme court and that high tribunal, in affirming the judgment of the Audencia Territorial, said:
Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually obliged to provide each other with
support, cannot but be subordinate to the other provisions of said Code which regulates the family organization and the duties
of spouses not legally separated, among which duties are those of their living together and mutually helping each other, as
provided in article 56 of the aforementioned code; and taking this for granted, the obligation of the spouse who has property to
furnish support to the one who has no property and is in need of it for subsistence, is to be understood as limited to the case
where, in accordance with law, their separation has been decreed, either temporarily or finally and this case, with respect to the
husband, cannot occur until a judgment of divorce is rendered, since, until then, if he is culpable, he is not deprived of the
management of his wife's property and of the product of the other property belonging to the conjugal partnership; and

Considering that, should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the marriage
bond and separate from each other of their own free will, thus establishing, contrary to the legal provision contained in said
article 56 of the Civil Code, a legal status entirely incompatible with the nature and effects of marriage in disregard of the duties
inherent therein and disturbing the unity of the family, in opposition to what the law, in conformity with good morals, has
established; and.

Considering that, as the spouses D. Ramon Benso and Doña Adela Galindo are not legally separated, it is their duty to live
together and afford each other help and support; and for this reason, it cannot be held that the former has need of support from
his wife so that he may live apart from her without the conjugal abode where it is his place to be, nor of her conferring power
upon him to dispose even of the fruits of her property in order therewith to pay the matrimonial expenses and, consequently,
those of his own support without need of going to his wife; wherefore the judgment appealed from, denying the petition of D.
Ramon Benso for support, has not violated the articles of the Civil Code and the doctrine invoked in the assignments of error 1
and 5 of the appeal.

From a careful reading of the case just cited and quoted from it appears quite clearly that the spouses separated voluntarily in accordance
with an agreement previously made. At least there are strong indications to this effect, for the court says, "should the doctrine maintained
in the appeal prevail, it would allow married persons to disregard the marriage bond and separate from each other of their own free will."
If this be the true basis upon which the supreme court of Spain rested its decision, then the doctrine therein enunciated would not be
controlling in cases where one of the spouses was compelled to leave the conjugal abode by the other or where the husband voluntarily
abandons such abode and the wife seeks to force him to furnish support. That this is true appears from the decision of the same high
tribunal, dated October 16, 1903. In this case the wife brought an action for support against her husband who had willfully and voluntarily
abandoned the conjugal abode without any cause whatever. The supreme court, reversing the judgment absolving the defendant upon
the ground that no action for divorce, etc., had been instituted, said:

In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal abode, although he claims, without
however proving his contention, that the person responsible for this situation was his wife, as she turned him out of the house.
From this state of affairs it results that it is the wife who is party abandoned, the husband not having prosecuted any action to
keep her in his company and he therefore finds himself, as long as he consents to the situation, under the ineluctable obligation
to support his wife in fulfillment of the natural duty sanctioned in article 56 of the Code in relation with paragraph 1 of article 143.
In not so holding, the trial court, on the mistaken ground that for the fulfillment of this duty the situation or relation of the spouses
should be regulated in the manner it indicates, has made the errors of law assigned in the first three grounds alleged, because
the nature of the duty of affording mutual support is compatible and enforcible in all situations, so long as the needy spouse
does not create any illicit situation of the court above

If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of November 3, 1905, and if the court did
hold, as contended by counsel for the defendant in the case under consideration, that neither spouse can be compelled to support the
other outside of the conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce or separation from the
other, still such doctrine or holding would not necessarily control in this jurisdiction for the reason that the substantive law is not in every
particular the same here as it is in Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula are not
in force in the Philippine Islands. The law governing the duties and obligations of husband and wife in this country are articles 44 to 78 of
the Law of Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the Civil Code, various causes for divorce,
such as adultery on the part of the wife in every case and on the part of the husband when public scandal or disgrace of the wife results
therefrom; personal violence actually inflicted or grave insults: violence exercised by the husband toward the wife in order to force her to
change her religion; the proposal of the husband to prostitute his wife; the attempts of the husband or wife to corrupt their sons or to
prostitute their daughters; the connivance in their corruption or prostitution; and the condemnation of a spouse to perpetual chains or hard
labor, while in this jurisdiction the only ground for a divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and
absolute doctrine was announced by this court in the case just cited after an exhaustive examination of the entire subject. Although the
case was appealed to the Supreme Court of the United States and the judgment rendered by this court was there reversed, the reversal
did not affect in any way or weaken the doctrine in reference to adultery being the only ground for a divorce. And since the decision was
promulgated by this court in that case in December, 1903, no change or modification of the rule has been announced. It is, therefore, the
well settled and accepted doctrine in this jurisdiction.

But it is argued that to grant support in an independent suit is equivalent to granting divorce or separation, as it necessitates a
determination of the question whether the wife has a good and sufficient cause for living separate from her husband; and, consequently,
if a court lacks power to decree a divorce, as in the instant case, power to grant a separate maintenance must also be lacking. The
weakness of this argument lies in the assumption that the power to grant support in a separate action is dependent upon a power to grant
a divorce. That the one is not dependent upon the other is apparent from the very nature of the marital obligations of the spouses. The
mere act of marriage creates an obligation on the part of the husband to support his wife. This obligation is founded not so much on the
express or implied terms of the contract of marriage as on the natural and legal duty of the husband; an obligation, the enfo rcement of
which is of such vital concern to the state itself that the laws will not permit him to terminate it by his own wrongful acts in driving his wife
to seek protection in the parental home. A judgment for separate maintenance is not due and payable either as damages or as a penalty;
nor is it a debt in the strict legal sense of the term, but rather a judgment calling for the performance of a duty made specific by the
mandate of the sovereign. This is done from necessity and with a view to preserve the public peace and the purity of the wife; as where
the husband makes so base demands upon his wife and indulges in the habit of assaulting her. The pro tanto separation resulting from
a decree for separate support is not an impeachment of that public policy by which marriage is regarded as so sacred and inviolable in
its nature; it is merely a stronger policy overruling a weaker one; and except in so far only as such separation is tolerated as a means of
preserving the public peace and morals may be considered, it does not in any respect whatever impair the marriage contract or for any
purpose place the wife in the situation of a feme sole.

The foregoing are the grounds upon which our short opinion and order for judgment, heretofore filed in this case, rest.

Torres, Johnson and Carson, JJ., concur.

Separate Opinions

MORELAND, J., concurring:

I based my vote in this case upon the ground that 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 relation and repudiate his duties thereunder.
In law and for all purposes within its purview, the wife still remains an inmate of the conjugal domicile; for I regard it as a principle of law
universally recognized that where a person by his wrongful and illegal acts creates a condition which under ordinary circumstances would
produce the loss of rights or status pertaining to another, the law will, whenever necessary to protect fully the rights or status of the person
affected by such acts, regard the condition by such acts created as not existing and will recur to and act upon the original situation of the
parties to determine their relative rights or the status of the person adversely affected.

I do not believe, therefore, that the case is properly conceived by defendant, when the consideration thereof proceeds solely on the theory
that the wife is outside the domicile fixed by the husband. Under the facts alleged in the complainant the wife is legally still within the
conjugal domicile.