Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5691 December 27, 1910

S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees,

vs.
WILLIAM VAN BUSKIRK, defendant-appellant.

Lionel D. Hargis for appellant.

Sanz and Oppisso for appellee.

MORELAND, J.:

The facts found by the trial court are undisputed by either party in this case. They are —

That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a carromata on
Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of the street as she was going, when a
delivery wagon belonging to the defendant used for the purpose of transportation of fodder by the defendant,
and to which was attached a pair of horses, came along the street in the opposite direction to that the in
which said plaintiff was proceeding, and that thereupon the driver of the said plaintiff's carromata, observing
that the delivery wagon of the defendant was coming at great speed, crowded close to the sidewalk on the
left-hand side of the street and stopped, in order to give defendant's delivery wagon an opportunity to pass by,
but that instead of passing by the defendant's wagon and horses ran into the carromata occupied by said
plaintiff with her child and overturned it, severely wounding said plaintiff by making a serious cut upon her
head, and also injuring the carromata itself and the harness upon the horse which was drawing it.

xxx xxx xxx

These facts are not dispute, but the defendant presented evidence to the effect that the cochero, who was
driving his delivery wagon at the time the accident occurred, was a good servant and was considered a safe
and reliable cochero; that the delivery wagon had sent to deliver some forage at Paco Livery Stable on Calle
Herran, and that for the purpose of delivery thereof the cochero driving the team as defendant's employee
tied the driving lines of the horses to the front end of the delivery wagon and then went back inside of the
wagon for the purpose of unloading the forage to be delivered; that while unloading the forage and in the act
of carrying some of it out, another vehicle drove by, the driver of which cracked a whip and made some other
noises, which frightened the horses attached to the delivery wagon and they ran away, and the driver was
thrown from the inside of the wagon out through the rear upon the ground and was unable to stop the horses;
that the horses then ran up and on which street they came into collision with the carromata in which the
plaintiff, Carmen Ong de Martinez, was riding.

The defendant himself was not with the vehicle on the day in question.

Upon these facts the court below found the defendant guilty of negligence and gave judgment against him for P442.50,
with interest thereon at the rate of 6 per cent per annum from the 17th day of October, 1908, and for the costs of the
action. The case is before us on an appeal from that judgment.

There is no general law of negligence in the Philippine Islands except that embodied in the Civil Code. The provisions of
that code pertinent to this case are —

Art. 1902. A person who by an act or omission causes damage to another when there is fault or negligence
shall be obliged to repair the damage so done.
 Art. 1903. The obligation imposed by preceding article is demandable, not only for personal acts and omissions,
but also for those of the persons for whom they should be responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live
with them.

Guardians are liable for the damages caused by minors or incapacitated persons who are under their authority
and live with them.

Owners of directors of an establishment or enterprise are equally liable for the damages caused by the
employees in the service of the branches in which the latter may be employed or on account of their duties.

The State is liable in this sense when it acts through a special agent, but not when the damages should have
been caused by the official to whom properly it pertained to do the act performed, in which case the
provisions of the preceding article shall be applicable.

Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or apprentices
while they are under their custody.

The liability referred to in this article shall cease when the persons mentioned therein prove that they employed
all the diligence of a good father of a family to avoid the damage.

Passing the question whether or not an employer who has furnished a gentle and tractable team and a trusty and
capable driver is, under the last paragraph of the above provisions, liable for the negligence of such driver in handling
the team, we are of the opinion that the judgment must be reversed upon the ground that the evidence does not
disclose that the cochero was negligent.

While the law relating to negligence in this jurisdiction may possibly be some what different from that in Anglo-Saxon
countries, a question we do not now discuss, the rules under which the fact of negligence is determined are,
nevertheless, generally the same. That is to say, while the law designating the person responsible for a negligent act may
not be the same here as in many jurisdictions, the law determining what is a negligent act is the same here, generally
speaking, as elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14 March,
1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7 March, 1902; 12 June, 1900; 2 March,
1907; 18 March, 1898; 3 June, 1901.)

It appears from the undisputed evidence that the horses which caused the damage were gentle and tractable; that the
cochero was experienced and capable; that he had driven one of the horses several years and the other five or six
months; that he had been in the habit, during all that time, of leaving them in the condition in which they were left on
the day of the accident; that they had never run away up to that time and there had been, therefore, no accident due
to such practice; that to leave the horses and assist in unloading the merchandise in the manner described on the day
of the accident was the custom of all cochero who delivered merchandise of the character of that which was being
delivered by the cochero of the defendant on the day in question, which custom was sanctioned by their employers.

In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner described by the
evidence in this case, either under Spanish or American jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson,
58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D.
L. & W. R. R. Co., 80 N. Y., 212.) lawphi1.net

In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:

He was performing his duty while removing the goods into the house, and, if every person who suffered a cart
to remain in the street while he took goods out of it was obliged to employ another to look after the horses, it
would be impossible for the business of the metropolis to go on.

In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:

The degree of care required of the plaintiff, or those in charged of his horse, at the time of the injury, is that
which would be exercised by a person of ordinary care and prudence under like circumstances. It can not be
said that the fact of leaving the horse unhitched is in itself negligence. Whether it is negligence to leave a horse
unhitched must be depend upon the disposition of the horse; whether he was under the observation and
 control of some person all the time, and many other circumstances; and is a question to be determined by the
jury from the facts of each case.

In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial court to refuse to
charge that "it is not negligence for the driver of a quite, gentle horse to leave him unhitched and otherwise unattended
on the side of a public highways while the driver is upon the sidewalk loading goods on the wagon." The said court
closed its opinion with these words:

There was evidence which could have fully justified the jury in finding that the horse was quite and gentle, and
that the driver was upon the sidewalk loading goods on the wagon, at time of the alleged injury, and that the
horse had been used for years in that way without accident. The refusal of the trial court to charge as
requested left the jury free to find was verdict against the defendant, although the jury was convinced that
these facts were proven.lawphil.net

In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:

That evidence that a servant, whom traders employed to deliver goods, upon stopping with his horse and
wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad crossing, left the horse
unfastened for four or five minutes while he was in the house, knowing that it was not afraid of cars, and having
used it for three or four months without ever hitching it or knowing it to start, is not conclusive, as a matter of
law, of a want of due care on his part.

The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise reasonable care and
prudence. Where reasonable care is employed in doing an act not itself illegal or inherently likely to produce damage to
others, there will be no liability, although damage in fact ensues. (Milwaukee Ry. Co. vs. Arms, 91 U. S., 489;
Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292; Jackson Architectural Iron Works vs.Hurlbut, 158 N. Y., 34
Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry, 117 Cal., 257.)

The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or imprudent. Acts the
performance of which has not proved destructive or injurious and which have, therefore, been acquiesced in by society
for so long a time that they have ripened into custom, can not be held to be themselves unreasonable or imprudent.
Indeed the very reason why they have been permitted by society is that they beneficial rather than prejudicial.itc-
alf Accidents sometimes happen and injuries result from the most ordinary acts of life. But such are not their natural or
customary results. To hold that, because such an act once resulted in accident or injury, the actor is necessarily
negligent, is to go far. The fact that the doctrine of res ipsa loquitur is sometimes successfully invoked in such a case,
does not in any sense militate against the reasoning presented. That maxim at most only creates aprima facie case, and
that only in the absence of proof of the circumstances under which the act complained of was performed. It is
something invoked in favor of the plaintiff before defendant's case showing the conditions and circumstances under
which the injury occurred, the creative reason for the doctrine of res ipsa loquitur disappears. This is demonstrated by the
case of Inland and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court said (p. 554):

. . . The whole effect of the instruction in question, as applied to the case before the jury, was that if the
steamboat, on a calm day and in smooth water, was thrown with such force against a wharf properly built, as
to tear up some of the planks of the flooring, this would be prima facie evidence of negligence on the part of
the defendant's agent in making the landing, unless upon the whole evidence in the case this prima
facie evidence was rebutted. As such damage to a wharf is not ordinarily done by a steamboat under control
of her officers and carefully managed by them, evidence that such damage was done in this case was prima
facie, and, if unexplained, sufficient evidence of negligence on their part, and the jury might properly be so
instructed.

There was presented in this case, and by the plaintiffs themselves, not only the fact of the runway and the accident
resulting therefrom, but also the conditions under which the runaway occurred. Those conditions showing of themselves
that the defendant's cochero was not negligent in the management of the horse, the prima facie case in plaintiffs'
favor, if any, was destroyed as soon as made.

It is a matter of common knowledge as well as proof that it is the universal practice of merchants to deliver merchandise
of the kind of that being delivered at the time of the injury, in the manner in which that was then being delivered; and
that it is the universal practice to leave the horses in the manner in which they were left at the time of the accident. This
is the custom in all cities. It has not been productive of accidents or injuries. The public, finding itself unprejudiced by
such practice, has acquiesced for years without objection. Ought the public now, through the courts, without prior
objection or notice, to be permitted to reverse the practice of decades and thereby make culpable and guilty one who
had every reason and assurance to believe that he was acting under the sanction of the strongest of all civil forces, the
custom of a people? We think not.

The judgement is reversed, without special finding as to costs. So ordered.

Arellano, C. J., Mapa, Johnson, Carson and Trent, JJ., concur.

Separate Opinions

TORRES, J., dissenting:

I am of the opinion that the judgment should be affirmed.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-50654 November 6, 1989

RUDY GLEO ARMIGOS, petitioner,

vs.
COURT OF APPEALS, CRISTITO MATA, and JUDGE L. D. CARPIO, in his capacity as Judge of the Court of First Instance of
Davao del Sur, Branch V, respondents.

David W. Natividad for petitioner.

Calamba, Garcia, Geralde & Calamba Law Offices for respondents.

PADILLA, J.:

Review on certiorari of the decisio * of the Court of Appeals, which dismissed the petition filed and docketed therein as
CA-G.R. No. SP-07192-R, entitled: "Rudy Gleo Armigos, petitioner, versus Judge L.D. Carpio, respondent," and the
resolution denying the motion for reconsideration of said decision.

The undisputed facts are as follows:

The private respondent, Cristito Mata, filed a complaint against the herein petitioner with the Municipal Court of Digos,
Davao del Sur, docketed as Civil Case No. 971, for the collection of damages and attorney's fees. After trial, judgment
was rendered in favor of the private respondent and against the herein petitioner. A copy of the decision was received
by the petitioner on 8 June 1977, and the following day, 9 June 1977, he filed a notice of appeal with the said municipal
court, and on 24 June 1977, he completed the other requirements for the perfection of an appeal, including the filing of
an appeal bond and the payment of the appellate court docket fee. However, when the case was elevated to the
Court of First Instance of Davao del Sur (Branch V) for the consideration of the appeal, the presiding judge thereof ruled
that the appeal was filed beyond the reglementary period; consequently, he dismissed the appeal.

Whereupon, the petitioner filed a petition for certiorari, mandamus with preliminary injunction with the Court of Appeals,
claiming that from 8 June 1977, when he received a copy of the decision of the municipal court, to 24 June 1977, when
he perfected his appeal, only fifteen (15) days had elapsed so that the decision of the Court of First Instance of Davao
del Sur, dismissing his appeal for having been filed beyond the reglementary period, is erroneous and contrary to law.
The petitioner contended that the computation of the period to appeal should commence on the hour he received
copy of the decision, so that the first of the 1 5-day period comprising 24 hours is from 4:00 o'clock p.m. of 9 June 1977 to
4:00 o'clock p.m. of 10 June 1977 and the last day, from 4:00 o'clock p.m. of 23 June 1977 to 4:00 o'clock p.m. of 24 June
1977.

The Court of Appeals, however, rejected the novel interpretation suggested as it would result in many confusing
situations and many unreliable testimonies as to the time a copy of a decision, order or pleading is received, and cited
the case of Republic of the Philippines vs. Encarnacion, 1 where this Court held that when a law was to be effective
upon approval by the President and the President signed the same on 16 June 1950, the law should be considered to
have taken effect not on the exact hour when the President signed the same on 16 June 1950 but from the very first
minute or hour of said day of 16 June 1950.

The petitioner filed a motion for reconsideration of the appellate court's decision, but his motion was denied in a
resolution promulgated on 7 December 1978.

Hence, the present recourse.

We find no merit in the petition. The rule stated in Article 13 of the Civil Code to the effect that "In computing a period,
the first day shall be excluded, and the last day included" is similar, but not Identical to Section 4 of the Code of Civil
Procedure which provided that "Unless otherwise specially provided, the time within which an act is required by law to
be done shall be computed by excluding the first day and including the last; and if the last be Sunday or a legal holiday
it shall be excluded", as well as the old Rule 28 of the Rules of Court which stated that "In computing any period of time
prescribed or allowed by the Rules of Court, by order of a court, or by any other applicable statute, the day of the act,
event or default after which the designated period of time begins to run is not to be included. The last day of the period
so computed is to be included, unless it is a Sunday or a legal holiday, in which event the time shall run until the end of
the next day which is neither a Sunday or a legal holiday." In applying this rule, the Court considered the day as
synonymous with the date and we find no cogent reason to adopt a different view.

Besides, human memory on dates or days is frail and unless the day is an extraordinary one for a person, there is no
reasonable certainty of its correctness. What more for the exact hour when a pleading, order or decision is received by
a party?

Petitioner's suggestion, however, may find application in appeals in habeas corpus cases where the law requires that
such appeals should be made within 48 hours from notice of judgment. 2

While it is true that rules of procedure are to be interpreted liberally so that the real matter in dispute may be submitted
to the judgment of the court, and that the trial court is vested with discretion to allow or admit an appeal filed out of
time, this discretion is not unconditional. There must be justifiable reason to warrant such action, since the perfection of
an appeal in the manner and within the period laid down by law is not only mandatory but jurisdictional, and in the
absence of any justifying circumstance, the court has no jurisdiction to approve or admit an appeal filed out of time. 3 In
the instant case, the petitioner failed to prove, or even claim, that his failure to appeal on time was due to fraud,
accident, mistake or excusable negligence.

WHEREFORE, the petition is DENIED. With costs against the petitioner.

SO ORDERED.

Melencio-Herrera (Chairperson), Sarmiento and Regalado, JJ., concur.

Paras, J., took no part.

Footnotes

* Penned by Justice Edgardo L. Paras, with Justices Ramon G. Gaviola Jr., and B.S. de la Fuente,
concurring.

1 87 Phil. 845.

2 Rule 41, Sec. 18, Rules of Court.

 3 Trans-Philippines, Inc. vs. Court of Appeals, G.R. No. L-42184, July 28, 1977 SCRA 154, 161.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-29131 August 27, 1969

NATIONAL MARKETING CORPORATION, plaintiff-appellant,

vs.
MIGUEL D. TECSON, ET AL., defendants,
MIGUEL D. TECSON, defendant-appellee,
THE INSURANCE COMMISSIONER, petitioner.

Government Corporate Counsel Leopoldo M. Abellera and Trial Atty. Antonio M. Brillantes for plaintiff-appellant.
Antonio T. Lacdan for defendant-appellee.
Office of the Solicitor General for petitioner.

CONCEPCION, C.J.:

This appeal has been certified to us by the Court of Appeals only one question of law being involved therein.

On November 14, 1955, the Court of First Instance of Manila rendered judgment, in Civil Case No. 20520 thereof, entitled
"Price Stabilization Corporation vs. Miguel D. Tecson and Alto Surety and Insurance Co., Inc.," the dispositive part of which
reads as follows:

For the foregoing consideration, the Court decides this case:

(a) Ordering the defendants Miguel D. Tecson and Alto Surety Insurance Co., Inc. to pay jointly and severally
plaintiff PRATRA the sum of P7,200.00 plus 7% interest from May 25, 1960 until the amount is fully paid, plus
P500.00 for attorney's fees, and plus costs;

(b) ordering defendant Miguel D. Tecson to indemnify his co-defendant Alto Surety & Insurance Co., Inc. on the
cross-claim for all the amounts it would be made to pay in this decision, in case defendant Alto Surety &
Insurance Co., Inc. pay the amount adjudged to plaintiff in this decision. From the date of such payment
defendant Miguel D. Tecson would pay the Alto Surety & Insurance Co., Inc., interest at 12% per annum until
Miguel D. Tecson has fully reimbursed plaintiff of the said amount.

Copy of this decision was, on November 21, 1955, served upon the defendants in said case. On December 21, 1965, the
National Marketing Corporation, as successor to all the properties, assets, rights, and choses in action of the Price
Stabilization Corporation, as plaintiff in that case and judgment creditor therein, filed, with the same court, a complaint,
docketed as Civil Case No. 63701 thereof, against the same defendants, for the revival of the judgment rendered in said
Case No. 20520. Defendant Miguel D. Tecson moved to dismiss said complaint, upon the ground of lack of jurisdiction
over the subject matter thereof and prescription of action. Acting upon the motion and plaintiff's opposition thereto, said
Court issued, on February 14, 1966, an order reading:

Defendant Miguel Tecson seeks the dismissal of the complaint on the ground of lack of jurisdiction and
prescription. As for lack of jurisdiction, as the amount involved is less than P10,000 as actually these proceedings
are a revival of a decision issued by this same court, the matter of jurisdiction must be admitted. But as for
prescription. Plaintiffs admit the decision of this Court became final on December 21, 1955. This case was filed
exactly on December 21, 1965 — but more than ten years have passed a year is a period of 365 days (Art. 13,
CCP). Plaintiff forgot that 1960, 1964 were both leap years so that when this present case was filed it was filed
two days too late.

The complaint insofar as Miguel Tecson is concerned is, therefore, dismissed as having prescribed.1äwphï1.ñët
The National Marketing Corporation appealed from such order to the Court of Appeals, which, on March 20, 1969t
certified the case to this Court, upon the ground that the only question therein raised is one of law, namely, whether or
not the present action for the revival of a judgment is barred by the statute of limitations.

Pursuant to Art. 1144(3) of our Civil Code, an action upon a judgment "must be brought within ten years from the time
the right of action accrues," which, in the language of Art. 1152 of the same Code, "commences from the time the
judgment sought to be revived has become final." This, in turn, took place on December 21, 1955, or thirty (30) days from
notice of the judgment — which was received by the defendants herein on November 21, 1955 — no appeal having
been taken therefrom. 1 The issue is thus confined to the date on which ten (10) years from December 21, 1955 expired.

Plaintiff-appellant alleges that it was December 21, 1965, but appellee Tecson maintains otherwise, because "when the
laws speak of years ... it shall be understood that years are of three hundred sixty-five days each" — according to Art. 13
of our Civil Code — and, 1960 and 1964 being leap years, the month of February in both had 29 days, so that ten (10)
years of 365 days each, or an aggregate of 3,650 days, from December 21, 1955, expired on December 19, 1965. The
lower court accepted this view in its appealed order of dismissal.

Plaintiff-appellant insists that the same "is erroneous, because a year means a calendar year (Statutory Construction,
Interpretation of Laws, by Crawford, p. 383) and since what is being computed here is the number of years, a calendar
year should be used as the basis of computation. There is no question that when it is not a leap year, December 21 to
December 21 of the following year is one year. If the extra day in a leap year is not a day of the year, because it is the
366th day, then to what year does it belong? Certainly, it must belong to the year where it falls and, therefore, that the
366 days constitute one year." 2

The very conclusion thus reached by appellant shows that its theory contravenes the explicit provision of Art. 13 of the
Civil Code of the Philippines, limiting the connotation of each "year" — as the term is used in our laws — to 365 days.
Indeed, prior to the approval of the Civil Code of Spain, the Supreme Court thereof had held, on March 30, 1887, that,
when the law spoke of months, it meant a "natural" month or "solar" month, in the absence of express provision to the
contrary. Such provision was incorporated into the Civil Code of Spain, subsequently promulgated. Hence, the same
Supreme Court declared 3 that, pursuant to Art. 7 of said Code, "whenever months ... are referred to in the law, it shall be
understood that the months are of 30 days," not the "natural," or "solar" or "calendar" months, unless they are "designated
by name," in which case "they shall be computed by the actual number of days they have. This concept was
later, modified in the Philippines, by Section 13 of the Revised Administrative Code, Pursuant to which, "month shall be
understood to refer to a calendar month." 4 In the language of this Court, in People vs. Del Rosario, 5 with the approval of
the Civil Code of the Philippines (Republic Act 386) ... we have reverted to the provisions of the Spanish Civil Code in
accordance with which a month is to be considered as the regular 30-day month ... and not the solar or civil month,"
with the particularity that, whereas the Spanish Code merely mentioned "months, days or nights," ours has added thereto
the term "years" and explicitly ordains that "it shall be understood that years are of three hundred sixty-five days."

Although some members of the Court are inclined to think that this legislation is not realistic, for failure to conform with
ordinary experience or practice, the theory of plaintiff-appellant herein cannot be upheld without ignoring, if not
nullifying, Art. 13 of our Civil Code, and reviving Section 13 of the Revised Administrative Code, thereby engaging in
judicial legislation, and, in effect, repealing an act of Congress. If public interest demands a reversion to the policy
embodied in the Revised Administrative Code, this may be done through legislative process, not by judicial decree.

WHEREFORE, the order appealed from should be as it is hereby affirmed, without costs. It is so ordered.

Dizon, Makalintal, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur.
Reyes, J.B.L., and Zaldivar, JJ., are on leave.

Footnotes

1Sec. 1, Rule 39, in relation to Sec. 3, Rule 31, Rules of Court.

2Emphasis ours.

3Decision of April 6, 1895.

4Guzman v. Lichauco, 42 Phil. 292; Gutierrez v. Carpio, 53 Phil. 334, 335-336.

597 Phil. 70-71.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-37048 March 7, 1933

MANUELA BARRETTO GONZALEZ, plaintiff-appellee,

vs.
AUGUSTO C. GONZALEZ, defendant-appellant.
AUGUSTO C. GONZALEZ, Jr., ET AL., intervenors-appellees.

Quintin Paredes and Barrera and Reyes for appellant.

DeWitt, Perkins and Brady for plaintiff-appellee.
Camus and Delgado for intervenors-appellees.

HULL, J.:

Plaintiff and defendant are citizens of the Philippine Islands and at present residents of the City of Manila. They were
married in the City of Manila on January 19, 1919, and lived together as man and wife in the Philippine Islands until the
spring of 1926. They voluntarily separated and since that time have not lived together as man and wife. Of this union four
children were born who are now 11, 10, 8 and 6 years of age. Negotiations between the parties, both being represented
by attorneys, continued for several months, whereupon it was mutually agreed to allow the plaintiff for her support and
that of her children, five hundred pesos (P500) monthly; this amount to be increased in case of illness or necessity, and
the title of certain properties to be put in her name. Shortly after this agreement the husband left the Islands, betook
himself to Reno, Nevada, and secured in that jurisdiction an absolute divorce on the ground of desertion, which decree
was dated November 28, 1927. Shortly thereafter the defendant moved to California and returned to these Islands in
August 1928, where he has since remained. On the same date that he secured a divorce in Nevada he went through
the forms of marriage with another citizen of these Islands and now has three children as a result of that marriage.
Defendant, after his departure from these Islands, reduced the amount he had agreed to pay monthly for the support of
his wife and four minor children and has not made the payments fixed in the Reno divorce as alimony.

Shortly after his return his wife brought action in the Court of First Instance of Manila requesting that the courts of the
Philippine Islands confirm and ratify the decree of divorce issued by the courts of the State of Nevada; that section 9 of
Act No. 2710, which reads as follows:

The decree of divorce shall dissolve the community of property as soon as such decree becomes final, but shall
not dissolve the bonds of matrimony until one year thereafter.

The bonds of matrimony shall not be considered as dissolved with regard to the spouse who, having legitimate
children, has not delivered to each of them or to the guardian appointed by the court, within said period of
one year, the equivalent of what would have been due to them as their legal portion if said spouse had died
intestate immediately after the dissolution of the community of property.

be enforced, and that she and the defendant deliver to the guardian ad litem the equivalent of what would have been
due to their children as their legal portion from the respective estates had their parents did intestate on November 28,
1927. It is also prayed that the community existing between plaintiff and defendant be declared dissolved and the
defendant be ordered to render an accounting and to deliver to the plaintiff her share of the community property, that
the defendant be ordered to pay the plaintiff alimony at the rate of five hundred pesos (P500) per month, that the
defendant be ordered to pay the plaintiff, as counsel fees, the sum of five thousand pesos (P5000), and that the
defendant be ordered to pay plaintiff the expenses incurred in educating the three minor sons.

A guardian ad litem was appointed for the minor children, and they appear as intervenors and join their mother in these
proceedings. The Court of First Instance, after hearing, found against the defendant and granted judgment as prayed
for by the plaintiff and intervenors, with the exception of reducing attorneys fees to three thousand, and also granted
costs of the action against the defendant. From this judgment defendant appeals and makes the following assignment
of errors:
 I. The lower court erred in not declaring that paragraph 2 of section 9 of the Philippine Divorce Law, is
unconstitutional, null and void.

II. The lower court erred in holding that section 9 of Act No. 2710 (Divorce Law) applies to the Nevada decree
of divorce issued in favor of appellant Augusto C. Gonzalez, said decree being entitled to confirmation and
recognition.

III. The lower court erred in not dismissing the complaint in intervention for lack of cause of action against
appellant and appellee.

IV. The lower court erred in not declaring the notice of lis pendens filed by intervenors to be null and void.

V. The lower court erred in ordering the appellant to pay the sum of P500 per month for the support not only of
his children but also of his ex-wife, appellee herein, Manuela Barretto.

VI. The lower court erred in not holding that plaintiff- appellee, Manuela Barretto, is not entitled to support from
her ex-husband, herein appellant, over and beyond the alimony fixed by the divorce decree in Exhibit A.

VII. The lower court erred in condemning defendant appellant to pay to plaintiff-appellee P3,000 attorney's
fees.

VIII. The lower court erred in denying appellant's motion for new trial.

While the parties in this action are in dispute over financial matters they are in unity in trying to secure the courts of this
jurisdiction to recognize and approve of the Reno divorce. On the record here presented this can not be done. The
public policy in this jurisdiction on the question of divorce is clearly set forth in Act No. 2710, and the decisions of this
court: Goitia vs. Campos Rueda (35 Phil., 252); Garcia Valdez vs. Soteraña Tuason (40 Phil., 943-952); Ramirez vs. Gmur (42
Phil., 855); Chereau vs. Fuentebella (43 Phil., 216); Fernandez vs. De Castro (48 Phil., 123); Gorayeb vs. Hashim (50 Phil.,
22); Francisco vs. Tayao (50 Phil., 42); Alkuino Lim Pang vs. Uy Pian Ng Shun and Lim Tingco (52 Phil., 571); and the late
case of Cousins Hix vs. Fluemer, decided March 21, 1931, and reported in 55 Phil., 851.

The entire conduct of the parties from the time of their separation until the case was submitted to this court, in which
they all prayed that the Reno divorce be ratified and confirmed, clearly indicates a purpose to circumvent the laws of
the Philippine Islands regarding divorce and to secure for themselves a change of status for reasons and under
conditions not authorized by our law. At all times the matrimonial domicile of this couple has been within the Philippine
Islands and the residence acquired in the State of Nevada by the husband of the purpose of securing a divorce was not
a bona fide residence and did not confer jurisdiction upon the Court of that State to dissolve the bonds if matrimony in
which he had entered in 1919. While the decisions of this court heretofore in refusing to recognize the validity of foreign
divorce has usually been expressed in the negative and have been based upon lack of matrimonial domicile or fraud or
collusion, we have not overlooked the provisions of the Civil Code now in force in these Islands. Article 9 thereof reads as
follows:

The laws relating to family rights and duties, or to the status, condition and legal capacity or persons, are
binding upon Spaniards even though they reside in a foreign country.

And article 11, the last part of which reads:

. . . the prohibitive laws concerning persons, their acts and their property, and those intended to promote
public order and good morals, shall nor be rendered without effect by any foreign laws or judgments or by
anything done or any agreements entered into a foreign country.

It is therefore a serious question whether any foreign divorce relating to citizens of the Philippine Islands, will be
recognized in this jurisdiction, except it be for a cause, and under conditions for which the courts of Philippine Islands
would grant a divorce. The lower court in granting relief as prayed for frankly stated that the securing of the divorce, the
contracting of another marriage and the bringing into the world of innocent children brings about such a condition that
the court must grant relief. The hardships of the existing divorce laws of the Philippine Islands are well known to the
members of the Legislature. It is of no moment in this litigation what he personal views of the writer on the subject of
divorce may be. It is the duty of the courts to enforce the laws of divorce as written by the Legislature if they are
constitutional. Courts have no right to say that such laws are too strict or too liberal.
Litigants by mutual agreement can not compel the courts to approve of their own actions or permit the personal
relations of the citizens of these Islands to be affected by decrees of foreign courts in a manner which our Government
believes is contrary to public order and good morals. Holding the above views it becomes unnecessary to discuss the
serious constitutional question presented by appellant in his first assignment of error.

The judgment of the Court of First Instance of the City of Manila must therefore be reversed and defendant absolved
from the demands made against him in this action. This, however, without prejudice to any right of maintenance that
plaintiff and the intervenors may have against defendant. No special pronouncement as to costs. So ordered.

Avanceña, C.J., Street, Villamor Ostrand, Abad Santos, Vickers, Imperial and Butte JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,

vs.
VICENTA F. ESCAÑO, ET AL., defendants-appellees.

I. V. Binamira & F. B. Barria for plaintiff-appellant.

Jalandoni & Jarnir for defendants-appellees.

REYES, J.B.L., J.:

Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its Civil Case
No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one million pesos in
damages against his wife and parents-in-law, the defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed
"Escaño," respectively.2

The facts, supported by the evidence of record, are the following:

Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she was then
enrolled as a second year student of commerce, Vicenta Escaño, 27 years of age (scion of a well-to-do and socially
prominent Filipino family of Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with Pastor
Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock, without the knowledge of her
parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage
was the culmination of a previous love affair and was duly registered with the local civil register.

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together
with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their marital future whereby Pacita
would be the governess of their first-born; they started saving money in a piggy bank. A few weeks before their secret
marriage, their engagement was broken; Vicenta returned the engagement ring and accepted another suitor, Joseling
Lao. Her love for Pastor beckoned; she pleaded for his return, and they reconciled. This time they planned to get married
and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita Noel in St.
Mary's Hall, which was their usual trysting place.

Although planned for the midnight following their marriage, the elopement did not, however, materialize because when
Vicente went back to her classes after the marriage, her mother, who got wind of the intended nuptials, was already
waiting for her at the college. Vicenta was taken home where she admitted that she had already married Pastor.
Mamerto and Mena Escaño were surprised, because Pastor never asked for the hand of Vicente, and were disgusted
because of the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following
morning, the Escaño spouses sought priestly advice. Father Reynes suggested a recelebration to validate what he
believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the Archbishop
or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place, because
on 26 February 1948 Mamerto Escaño was handed by a maid, whose name he claims he does not remember, a letter
purportedly coming from San Carlos college students and disclosing an amorous relationship between Pastor Tenchavez
and Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree to a new marriage. Vicenta
and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while
Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare,
was not as endearing as her previous letters when their love was aflame.

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted her
being called a "jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1-Escaño"), but
her letters became less frequent as the days passed. As of June, 1948 the newlyweds were already estranged (Exh. "2-
Escaño"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage stirred in
Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage.
She did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-appearance at
the hearing (Exh. "B-4").

On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that she was
single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to return after two
years. The application was approved, and she left for the United States. On 22 August 1950, she filed a verified complaint
for divorce against the herein plaintiff in the Second Judicial District Court of the State of Nevada in and for the County
of Washoe, on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of divorce,
"final and absolute", was issued in open court by the said tribunal.

In 1951 Mamerto and Mena Escaño filed a petition with the Archbishop of Cebu to annul their daughter's marriage to
Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. "D"-2).

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in California,
and, by him, has begotten children. She acquired American citizenship on 8 August 1958.

But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance of
Cebu, and amended on 31 May 1956, against Vicenta F. Escaño, her parents, Mamerto and Mena Escaño, whom he
charged with having dissuaded and discouraged Vicenta from joining her husband, and alienating her affections, and
against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the annulment of the marriage,
and asked for legal separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an
equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that they had in any way
influenced their daughter's acts, and counterclaimed for moral damages.

The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to
acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escaño and Mena Escaño for
moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the extent of P45,000.00, and
plaintiff resorted directly to this Court.

The appellant ascribes, as errors of the trial court, the following:

1. In not declaring legal separation; in not holding defendant Vicenta F. Escaño liable for damages and in
dismissing the complaint;.

2. In not holding the defendant parents Mamerto Escano and the heirs of Doña Mena Escaño liable for
damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their
counterclaims; and.

4. In dismissing the complaint and in denying the relief sought by the plaintiff.

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escaño, were
validly married to each other, from the standpoint of our civil law, is clearly established by the record before us. Both
parties were then above the age of majority, and otherwise qualified; and both consented to the marriage, which was
performed by a Catholic priest (army chaplain Lavares) in the presence of competent witnesses. It is nowhere shown
that said priest was not duly authorized under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by Canon
law, is irrelevant in our civil law, not only because of the separation of Church and State but also because Act 3613 of
the Philippine Legislature (which was the marriage law in force at the time) expressly provided that —

SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting parties and
consent. (Emphasis supplied)

The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential to give
the marriage civil effects,3 and this is emphasized by section 27 of said marriage act, which provided the following:

SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the
absence of one or several of the formal requirements of this Act if, when it was performed, the spouses or one
of them believed in good faith that the person who solemnized the marriage was actually empowered to do
so, and that the marriage was perfectly legal.

The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until the
contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here
that in the case at bar, doubts as to the authority of the solemnizing priest arose only after the marriage, when Vicenta's
parents consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her
original action for annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was
valid and binding.

Defendant Vicenta Escaño argues that when she contracted the marriage she was under the undue influence of Pacita
Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even granting, for argument's sake, the
truth of that contention, and assuming that Vicenta's consent was vitiated by fraud and undue influence, such vices did
not render her marriage ab initio void, but merely voidable, and the marriage remained valid until annulled by a
competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of
Misamis was dismissed for non-prosecution.

It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escaño remained
subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought
and obtained on 21 October 1950 from the Second Judicial District Court of Washoe County, State of Nevada, on
grounds of "extreme cruelty, entirely mental in character." At the time the divorce decree was issued, Vicenta Escaño,
like her husband, was still a Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of the
Philippines (Rep. Act No. 386), already in force at the time, expressly provided:

Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding
upon the citizens of the Philippines, even though living abroad.

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in fact
does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding
legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710).
Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in
that case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce betiveen
Filipino citizens could be a patent violation of the declared public policy of the state, specially in view of the third
paragraph of Article 17 of the Civil Code that prescribes the following:

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order,
policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an
irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity
whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines.

From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada divorce
court. Primarily because the policy of our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.);
and additionally, because the mere appearance of a non-resident consort cannot confer jurisdiction where the court
originally had none (Area vs. Javier, 95 Phil. 579).

From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction Vicenta
Escaño's divorce and second marriage are not entitled to recognition as valid; for her previous union to plaintiff
Tenchavez must be declared to be existent and undissolved. It follows, likewise, that her refusal to perform her wifely
duties, and her denial of consortium and her desertion of her husband constitute in law a wrong caused through her
fault, for which the husband is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated
charge of deceit nor an anonymous letter charging immorality against the husband constitute, contrary to her claim,
adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically "intercourse with a
person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree of
"legal separation under our law, on the basis of adultery" (Revised Penal Code, Art. 333).

The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the
previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws prior to
the approval of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal history, our statutes
did not recognize divorces a vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the
Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing before
Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully
applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case:

As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and Leona
Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that they
afterwards passed for husband and wife in Switzerland until her death is wholly without legal significance. The
claims of the very children to participate in the estate of Samuel Bishop must therefore be rejected. The right to
inherit is limited to legitimate, legitimated and acknowledged natural children. The children of adulterous
relations are wholly excluded. The word "descendants" as used in Article 941 of the Civil Code cannot be
interpreted to include illegitimates born of adulterous relations. (Emphasis supplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moran after the
invalid divorce, are not involved in the case at bar, the Gmur case is authority for the proposition that such union is
adulterous in this jurisdiction, and, therefore, justifies an action for legal separation on the part of the innocent consort of
the first marriage, that stands undissolved in Philippine law. In not so declaring, the trial court committed error.

True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not) would
depend on the territory where the question arises. Anomalies of this kind are not new in the Philippines, and the answer
to them was given in Barretto vs. Gonzales, 58 Phil. 667:

The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the
Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they are
constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72)

The appellant's first assignment of error is, therefore, sustained.

However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escaño and his wife, the late Doña Mena
Escaño, alienated the affections of their daughter and influenced her conduct toward her husband are not supported
by credible evidence. The testimony of Pastor Tenchavez about the Escaño's animosity toward him strikes us to be merely
conjecture and exaggeration, and are belied by Pastor's own letters written before this suit was begun (Exh. "2-Escaño"
and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants for "misjudging
them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and audacity"
[sic]. Plaintiff was admitted to the Escaño house to visit and court Vicenta, and the record shows nothing to prove that
he would not have been accepted to marry Vicente had he openly asked for her hand, as good manners and
breeding demanded. Even after learning of the clandestine marriage, and despite their shock at such unexpected
event, the parents of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the
canons of their religion upon advice that the previous one was canonically defective. If no recelebration of the
marriage ceremony was had it was not due to defendants Mamerto Escaño and his wife, but to the refusal of Vicenta to
proceed with it. That the spouses Escaño did not seek to compel or induce their daughter to assent to the recelebration
but respected her decision, or that they abided by her resolve, does not constitute in law an alienation of affections.
Neither does the fact that Vicenta's parents sent her money while she was in the United States; for it was natural that
they should not wish their daughter to live in penury even if they did not concur in her decision to divorce Tenchavez (27
Am. Jur. 130-132).
There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for
annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was entitled to
judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly cannot be
charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown, good
faith being always presumed until the contrary is proved.

SEC. 529. Liability of Parents, Guardians or Kin. — The law distinguishes between the right of a parent to interest
himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in such affairs.
However, such distinction between the liability of parents and that of strangers is only in regard to what will
justify interference. A parent isliable for alienation of affections resulting from his own malicious conduct, as
where he wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless he acts
maliciously, without justification and from unworthy motives. He is not liable where he acts and advises his child
in good faith with respect to his child's marital relations in the interest of his child as he sees it, the marriage of his
child not terminating his right and liberty to interest himself in, and be extremely solicitous for, his child's welfare
and happiness, even where his conduct and advice suggest or result in the separation of the spouses or the
obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or where his advice or
interference are indiscreet or unfortunate, although it has been held that the parent is liable for consequences
resulting from recklessness. He may in good faith take his child into his home and afford him or her protection
and support, so long as he has not maliciously enticed his child away, or does not maliciously entice or cause
him or her to stay away, from his or her spouse. This rule has more frequently been applied in the case of advice
given to a married daughter, but it is equally applicable in the case of advice given to a son.

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with having exerted
efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and anxiety, entitling
them to recover damages. While this suit may not have been impelled by actual malice, the charges were certainly
reckless in the face of the proven facts and circumstances. Court actions are not established for parties to give vent to
their prejudices or spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente Escaño, it
is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that (a) the
marriage was celebrated in secret, and its failure was not characterized by publicity or undue humiliation on appellant's
part; (b) that the parties never lived together; and (c) that there is evidence that appellant had originally agreed to the
annulment of the marriage, although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ.
Code). While appellant is unable to remarry under our law, this fact is a consequence of the indissoluble character of
the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her second
marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral damages and
attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escaño and Mena Escaño, by the court
below, we opine that the same are excessive. While the filing of this unfounded suit must have wounded said
defendants' feelings and caused them anxiety, the same could in no way have seriously injured their reputation, or
otherwise prejudiced them, lawsuits having become a common occurrence in present society. What is important, and
has been correctly established in the decision of the court below, is that said defendants were not guilty of any improper
conduct in the whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only.

Summing up, the Court rules:

(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code
(Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with
another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country;

(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful husband entitle the
latter to a decree of legal separation conformably to Philippine law;

(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages;

(4) That an action for alienation of affections against the parents of one consort does not lie in the absence of proof of
malice or unworthy motives on their part.

WHEREFORE, the decision under appeal is hereby modified as follows;

(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F.
Escaño;

(2) Sentencing defendant-appellee Vicenta Escaño to pay plaintiff-appellant Tenchavez the amount of P25,000 for
damages and attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escaño and the estate of his wife, the
deceased Mena Escaño, P5,000 by way of damages and attorneys' fees.

Neither party to recover costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

Footnotes

1 The latter was substituted by her heirs when she died during the pendency of the case in the trial court.

2The original complaint included the Roman Catholic Church as a defendant, sought to be enjoined from
acting on a petition for the ecclesiastical annulment of the marriage between Pastor Tenchavez and Vicenta
Escaño; the case against the defendant Church was dismissed on a joint motion.

3 In the present Civil Code the contrary rule obtains (Art. 53).

4 She was naturalized as an American citizen only on 8 August 1958.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,

vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region
Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated
September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion
to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of the
United States; that they were married in Hongkong in 1972; that, after the marriage, they established their residence in
the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975, respectively; that the parties
were divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore
Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial Court,
Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for short), is conjugal
property of the parties, and asking that petitioner be ordered to render an accounting of that business, and that private
respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the
ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court
wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11, 1982. The
Court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is located in
the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari
proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari and
Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court. However, when
a grave abuse of discretion was patently committed, or the lower Court acted capriciously and whimsically, then it
devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and to correct the error
committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be useless
and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this case within the exception,
and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the
representation he made in the divorce proceedings before the American Court that they had no community of
property; that the Galleon Shop was not established through conjugal funds, and that respondent's claim is barred by
prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the prohibitive
laws of the Philippines and its declared national policy; that the acts and declaration of a foreign Court cannot,
especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters within its
jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and
private respondent, after their marriage, were upon absolute or relative community property, upon complete separation
of property, or upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in
person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving his
address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt Ltd.,
to agree to the divorce on the ground of incompatibility in the understanding that there were neither community
property nor community obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the law firm of
KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:

xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf
and do an things necessary and proper to represent me, without further contesting, subject to the
following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is
binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this
jurisdiction, the same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine nationals are
covered by the policy against absolute divorces the same being considered contrary to our concept of public police
and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law. 6 In this case, the divorce in Nevada released private respondent from the
marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent
jurisdiction are to change the existing status or domestic relation of husband and wife, and to free
them both from the bond. The marriage tie when thus severed as to one party, ceases to bind either.
A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides,
in the nature of a penalty. that the guilty party shall not marry again, that party, as well as the other, is
still absolutely freed from the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing
to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the
Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal
property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner
should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The
latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in Civil Case
No. 1075-P of his Court.

Without costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

Footnotes

1 Sanchez vs. Zosa, 68 SCRA 171 (1975); Malit vs. People, 114 SCRA 348 (1982).

2 U.S.T. vs. Hon. Villanueva, et al., 106 Phil. 439 (1959).

3 Annex "Y", Petition for Certiorari.

4 p. 98, Rollo.

5 "Art. 15. Laws relating to family rights and duties or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad.

6 cf. Recto vs. Harden, 100 Phil. 427 [1956]; Paras, Civil Code, 1971 ed., Vol. I, p. 52; Salonga, Private
International Law, 1979 ed., p. 231."

Republic of the Philippines

SUPREME COURT
Manila
 SECOND DIVISION

G.R. No. 80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner,

vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila, Branch XXVI;
HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a
criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what
hitherto appears to be an unresolved jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard
Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the
Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in
Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto
between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private respondent initiating a
divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983. He claimed that
there was failure of their marriage and that they had been living apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the
Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 83-
15866. 3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of
divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The
records show that under German law said court was locally and internationally competent for the divorce proceeding
and that the dissolution of said marriage was legally founded on and authorized by the applicable law of that foreign
jurisdiction. 4

On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two
complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner
"had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus Chua sometime in
1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of
the cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a
resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the petitioner. 6 The
complaints were accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The
case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was
assigned to Branch XXVI presided by the respondent judge; while the other case, "People of the Philippines vs. Imelda
Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV,
of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of
respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua, her
co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due
course to both petitions and directed the respondent city fiscal to inform the Department of Justice "if the accused have
already been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire
records of both cases to his office for review. 9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings
thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-52434. On the
other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987.
Before such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension of
proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before
the Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of
jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8, 1987. The same order
also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter entered a plea of
not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by respondent
judge as direct contempt, she and her counsel were fined and the former was ordered detained until she submitted
herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary
restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petition is
anchored on the main ground that the court is without jurisdiction "to try and decide the charge of adultery, which is a
private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not
qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the
criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing the
aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435. Subsequently, on
March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez acted on the aforesaid petitions for review and, upholding
petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the
complaints against the petitioner. 16

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity,
cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been
established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal,
requirement. 18 While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law,
the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the
prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the
complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts
of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the
first four offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State,
as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal
action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of
lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of
adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the
action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such
initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This
is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in
civil cases, is determined as of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same
requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal
actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended
party being merely the complaining witness therein. However, in the so-called "private crimes" or those which cannot be
prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more
predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power
and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence
rather than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article 344 of the
Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the
criminal action for, adultery. This is a logical consequence since the raison d'etre of said provision of law would be absent
where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the
criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action
be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he
initiates the action. It would be absurd if his capacity to bring the action would be determined by his
status beforeor subsequent to the commencement thereof, where such capacity or status existed prior to but ceased
before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby
have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely
the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by
one who in law can be categorized as possessed of such status. Stated differently and with reference to the present
case, the inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery that the
marital bonds between the complainant and the accused be unsevered and existing at the time of the institution of the
action by the former against the latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule
that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the
offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for
adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no
legal effect on the prosecution of the criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of Iowa held that —

'No prosecution for adultery can be commenced except on the complaint of the husband or wife.'
Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have been
committed, he had ceased to be such when the prosecution was begun; and appellant insists that his
status was not such as to entitle him to make the complaint. We have repeatedly said that the offense
is against the unoffending spouse, as well as the state, in explaining the reason for this provision in the
statute; and we are of the opinion that the unoffending spouse must be such when the prosecution is
commenced. (Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our
statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the
complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who
initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused
spouse, at the time of the filing of the complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of
Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private
respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court
between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here alleging
that her business concern was conjugal property and praying that she be ordered to render an accounting and that the
plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated
the error of such stance, thus:

There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of the Union. ...

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to
our concept of public policy and morality. However, aliens may obtain divorces abroad, which may
be recognized in the Philippines, provided they are valid according to their national law. ...

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would
have no standing to sue in the case below as petitioner's husband entitled to exercise control over
conjugal assets. ... 25
Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no
legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he
filed suit.

The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of
knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a
dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family,
which is said to be one of the reasons for the particular formulation of our law on adultery, 26 since there would
thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the
former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other.

The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying
Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished
adultery "although the marriage be afterwards declared void", the Court merely stated that "the lawmakers intended to
declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that
she is entitled to have her marriage contract declared null and void, until and unless she actually secures a formal
judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the complaint can still be filed
after the declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating that it
never existed. There being no marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated and within the purview
of the decision in said case is the situation where the criminal action for adultery was filed beforethe termination of the
marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the
termination of the marriage was effected, as in this case, by a valid foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate of
inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a
complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the
complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the
controversy herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one
entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining order
issued in this case on October 21, 1987 is hereby made permanent.

SO ORDERED.

Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the
Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in
Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge with
another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A
contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the
same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the
American husband and his American wife as valid and binding in the Philippines on the theory that their status and
capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme Court
regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two
(2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of the National
law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar
as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still
married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the
opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still
one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign
law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute
divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be
still valid under her national law, it would seem that under our law existing before the new Family Code (which took
effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the
Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an
American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned
was NEVER put in issue.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the
Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in
Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge with
another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A
contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the
same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the
American husband and his American wife as valid and binding in the Philippines on the theory that their status and
capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme Court
regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two
(2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of the National
law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar
as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still
married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the
opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still
one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign
law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute
divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be
still valid under her national law, it would seem that under our law existing before the new Family Code (which took
effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the
Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an
American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned
was NEVER put in issue.

Footnotes

1 Rollo, 5, 29.

2 Ibid., 6, 29.
3 Ibid., 7.

4 Ibid., 7, 29-30; Annexes A and A-1, Petition.

5 Ibid., 7, 178.

6 Ibid., 8; Annexes B, B-1 and B-2, id.

7 Ibid., 8-9, 178.

8 Ibid., 9, 178; Annex C, id.

9 Ibid., 9-10, 178; Annex D, id.

10 Ibid., 9; Annexes E and E-1, id.

11 Ibid., 10; Annex F, id.

12 Ibid., 9, 179; Annex G, id.

13 Ibid., 10 Annex H, id.

14 Ibid, 105.

15 Ibid., 11.

16 Ibid., 311-313.

17 Cf. Sec. 5, Rule 110, Rules of Court.

18 People vs. Mandia, 60 Phil. 372, 375 (1934); People vs. Zurbano, 37 SCRA 565, 569 (1971); People vs.
Lingayen, G.R. No. 64556, June 10, 1988.

19 Valdepeñas vs. People, 16 SCRA 871 (1966); People vs. Babasa, 97 SCRA 672 (1980).

20 Samilin vs. Court of First Instance of Pangasinan, 57 Phil. 298 (1932); Donio-Teves, et al. vs. Vamenta,
et al., 133 SCRA 616 (1984).

21 Rollo, 289.

22 2 Am. Jur. 2d., 973 citing State vs. Loftus, 104 NW 906, 907; Re Smith, 2 Okla. 153, 37 p. 1099; State vs.
Russell, 90 Iowa 569, 58 NW 915.

23 Recto vs. Harden, 100 Phil. 427 (1956).

24 139 SCRA 139,140 (1985).

25 The said pronouncements foreshadowed and are adopted in the Family Code of the Philippines
(Executive Order No. 209, as amended by Executive Order No. 227, effective on August 3, 1988),
Article 26 whereof provides that "(w)here marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall likewise have capacity to re under Philippine law.

26 U.S. vs. Mata, 18 Phil. 490 (1911).

 27 Footnote 20, ante.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 88582 March 5, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HEINRICH S. RITTER, accused-appellant,

The Solicitor General for plaintiff-appellee.

Esteban B. Bautista for accused-appellant.

GUTIERREZ, JR., J.:

The appellant challenges his conviction of the crime involving a young girl of about 12 years old who had been
allegedly raped and who later died because of a foreign object left inside her vaginal canal.

Heinrich Stefan Ritter was charged with the crime of rape with homicide under an information which reads:

That on or about the tenth (10th day of October, 1986 in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused with lewd design and with intent to kill one
Rosario Baluyot, a woman under twelve (12) years of age, did then and there wilfully, unlawfully and feloniously
have carnal knowledge of said Rosario Baluyot and inserted a foreign object into the vaginal canal of said
Rosario Baluyot which caused her death shortly thereafter, to the damage and prejudice of her relatives. (66)

When arraigned, the accused pleaded "Not Guilty". Thereafter, the case was set for trial on the merits.

To prove the guilt of the accused, the prosecutor presented the following witnesses, namely: (1) Jessie Ramirez, (2) Maria
Burgos y Turla, (3) P/Cpl. Mariano Victoria, (4) Policarpio Baluyot, (5) Dr. Reino Rosete, (6) Sumulong Daniel, (7) Jessica
Herrera, (8) Sister Eva Palencia, (9) Conrado Salonga, (10) Dr. Devonne Loop, (11) Dr. Leo Cruz, (12) Paul Maclor, (13)
Aida Sarmiento, (14) Patricia Prollamanta (15) Mel Santos, (16) Lorna Limos, (17) Eduard Lee Bungarner, (18) Ronaldo
Marquez, (19) Tom Bonte, (20) 2nd Asst. City Fiscal Nini Alcala, (21) lst Asst. City Fiscal Dorentino Z. Floresta, (22) Corazon
Caber, (23) Rodolfo Mercurio and (24) Fe Israel.

On the other hand, the defense offered in evidence Exhibits "1" to "24" and the testimonies of (1) Heinrich S. Ritter, (2)
Father Roque Villanueva, (3) Angelita Amulong (4) Gaspar Alcantara, (5) Dr. Val Barcinal and (6) Dr. Pedro C. Solis.

The facts of the case upon which the lower court based its finding of guilt beyond reasonable doubt are summarized in
its decision, as follows:

The people's evidence show that on October 10, 1986 about midnight, accused Heinrich Stefan Ritter brought
a boy and girl namely: Jessie Ramirez and Rosario Baluyot inside his hotel room at MGM Hotel along Magsaysay
Drive, Olongapo City. These two (2) children were chosen from among a bunch of street children. Once inside
the hotel room accused told them to take a bath. Jessie Ramirez, alias "Egan", was the first to take a bath and
when he came out Rosario Baluyot went to the bathroom to do the same. While Rosario Baluyot was inside the
bathroom, accused Ritter took out some pictures depicting dressed up young boys, and put them on top of
the table. Other things which were taken out and placed on top of a table were three (3) other objects which
he described as like that of a vicks inhaler. One of these objects the accused played with his hands and
placed it on his palms. The color of which is grayish blue which turned out later to be the foreign object which
was inserted inside the vagina of Rosario Baluyot. The other objects were later established to be anti-nasal
inhalers against pollution purchased by the accused in Bangkok when he went there as a tourist. While Rosario
was in the bathroom, accused told Ramirez to lay down on bed, and so did the accused. He then started
masturbating the young boy and also guided the boy's hand for him to be masturbated, so that they
masturbated each other, while they were both naked, and he gave Jessie Ramirez an erection. When Rosario
Baluyot came out of the bathroom, she was told to remove her clothes by accused and to join him in bed. The
accused then placed himself between the two (2) children and accused started fingering Rosario.

At this time, Ramirez was already sleepy, but Rosario touched him to call his attention. He looked, and he saw
accused placing his penis against the vagina of Rosario and that he was trying to penetrate the vagina but it
would not fit. After what he saw, Ramirez did not anymore bother to look because he was sleepy and fell
asleep.

The following morning, the accused, whom the juveniles described as an "American, paid Ramirez alias"Egan"
P200.00 and Rosario P300.00. He then left them in the hotel. After the American left, they went downstairs, and
Rosario told Egan that the American inserted something in her vagina. But they could not do anything
anymore, because the American had already left, and neither did they report the matter to the police.
Sometime the following day, Jessie saw Rosario and he asked her whether the object was already removed
from her body and Rosario said "Yes". However, Jessie Ramirez claimed that on the evening of that same date,
he saw Rosario and she was complaining of pain in her vagina and when Egan asked her, she said that the
foreign object was not yet removed. Then there was another occasion wherein Jessie was summoned and
when he came he saw Rosario writhing in pain and when he tried to talk to Rosario she scolded him with
defamatory remarks. Thereafter, he did not see Rosario anymore because he already went home to his aunt's
house who resided at Barrio Barretto and resumed his studies in the primary grades.

On May 14, 1987, Gaspar Alcantara, a defense witness, while garbage scavenging at Lot 21, near the gate of
the U.S. Naval Base saw Rosario at Magsaysay Drive near the Happy Bake Shop near Lot 21, being ogled by
people because Rosario's skirt was bloodied and she was unconscious and foul smelling. Since nobody helped
Rosario, he took pity on her condition and brought her to the Olongapo City General Hospital in an
unconscious condition, via jeepney. He went to the Information desk and he was the one who gave the
personal circumstances of Rosario as to her name, age, her residence as Nagbakulaw, Lower Kalaklan, and
Gaspar Alcantara signed as "guardian" of Rosario, while Rosario was already in the emergency room. Although
Gaspar Alcantara denied that he did not know the name of Rosario Baluyot when he brought her to the
hospital, this is belied by the testimony of the Information clerk Lorna Limos, who was then on duty. Limos
testified that it was Alcantara who supplied the personal circumstances of Rosario. The Court gives more
credence to the testimony of Miss Limos as against Gaspar Alcantara who became a defense witness, for the
reason that through his own testimony, Gaspar Alcantara claimed that even prior to May 14, 1987, he had
already known Rosario Baluyot for more than one (1) year, because he has seen the said girl go to the house of
his twin brother, Melchor Alcantara, who is his immediate neighbor. Rosario used to visit a girl by the name of
"Nora" who was then in the custody of his brother. His brother Melchor was also living with their mother, brother
and sister-in-law and their two (2) children in his house. Rosario as per Gaspar's testimony even stays for one
week or a few days at his brother's house when she visits Nora. So the Court can safely assume that of all the
more than one (1) year that he had regularly seen Rosario at his brother's house, he must have already did
come to know the name of Rosario Baluyot including her age. In his testimony in Court he stated that he even
asked Rosario for movie and softdrinks money which can safely be concluded that he knows her very well. It is
against normal behavior especially to a Filipino who have a characteristic of curiosity not to have found out the
real name of the girl he claims to know only as "Tomboy".

While Rosario Baluyot was confined at the Olongapo City General Hospital, nobody was attending to her since
she is a street child, having stowed away from the custody of her grandmother. Three (3) good samaritans who
belong to religious and civic organizations, in the persons of Jessica Herrera, Fe Israel and Sr. Eva Palencia, in
one of their missions in the hospital chanced upon Rosario Baluyot who was all alone with no relatives attending
to her and after finding out that she was only 12 years old decided to help her. After a short interview with
Rosario, regarding her name and age only because she clamped up about her residence and her relatives,
they decided to help her by providing her the medicine she needed during her confinement in readiness for an
operation. It was Fe Israel who was able to get the name and age of Rosario Baluyot from Rosario Baluyot
herself when she saw her for the first time. For Fe Israel, the age of Rosario Baluyot was an important factor
because their program assisted only indigent patients from infants up to 13 years old.

Rosario's first ailment at the Olongapo City General Hospital was loose bowel movement and vomiting, which
was first suspected as gastro-enteritis, but which came out later as symptoms of peritonitis due to a massive
infection in the abdominal cavity. Subsequently, on May 17, 1987, after she was examined by the physicians at
the hospital, it was found out that there was a foreign object lodged in her vaginal canal and she had vaginal
discharge tinged with blood and foul smelling odor emanating from her body. One of the doctors who
attended to her was Dr. Barcinal, an OB-GYNE. Dr. Barcinal tried to extract the foreign object by means of a
forceps, but several attempts proved futile because said object was deeply embedded in the vaginal canal
and was covered by tissues. Her abdomen was enlarged, tender and distended, symptoms of peritonitis. The
patient was feverish and incoherent when she was scheduled for operation on May 19, 1987, after the first
attempt for an operation on May 17 was aborted allegedly because the consent of Dr. Reino Rosete, the
hospital director was not obtained. The surgeon who operated on her was Dr. Rosete himself. He testified that
Rosario had to be operated even in that condition in order to save her life. Her condition was guarded. This was
corroborated by Dr. Leo Cruz, the anesthesiologist during Rosario's operation. It was in the evening of May 19 at
about 7:00 p.m. when Dr. Rosete opened her abdomen by making a 5 inch incision on her stomach. He found
out that the fallopian tubes were congested with pus and so with the peritonieum, and the pelvic cavity, and
patches of pus in the liver, although the gallbladder and kidney appeared to have septicemia, poisoning of
the blood. The peritonitis and septicemia were traced to have been caused through infection by the foreign
object which has been lodged in the intra-vaginal canal of Rosario. The foreign object which was already
agreed upon by both parties that it is a portion of a sexual vibrator was extracted from the vagina of Rosario
while under anesthesia. Said object was coated with tissues, pus and blood. Dr. Rosete gave it to the assisting
surgical nurse for safekeeping and gave instructions to release it to the authorized person. This object was
shown by the nurse to Dr. Leo Cruz. Dr. Rosete considered the operation successful and the patient was alive
when he left her under Dr. Cruz. Dr. Cruz stayed with said patient in the ward for about 30 minutes and
thereafter he left. The following day, Rosario got serious and it was Dr. Leo Cruz who pronounced her death at
2:00 to 2:15 in the afternoon of May 20, 1987.

Thereafter, a death certificate was prepared under the direction of Dr. Cruz which was indicated therein that
the cause of death was cardio-respiratory arrest, secondary to septicemia caused by the foreign object
lodged in the intra uteral vaginal canal of Rosario Baluyot.

The foreign object was washed by nurse Obedina, then placed it in a transparent small jar and labelled
"Rosario Baluyot". Jessica Herrera asked the nurse for the foreign object, and it was given to her under proper
receipt. Herrera then showed the same to the persons who helped financially Rosario's case, and afterwards
she gave it to Sister Eva Palencia. Sis. Palencia was in custody of the said object until Mr. Salonga came and
asked her for the object.

After Rosario Baluyot died, Sis. Palencia and a companion went to Gaspar Alcantara to ask him in locating the
relatives of Rosario. They were able to trace Rosario's grandmother, Mrs. Maria Burgos Turla, and informed her
that her granddaughter was already dead and lying in state at St. Martin Funeral Parlor. Mrs. Turla went there
with her son, who shouldered all the burial expenses for Rosario.

Subsequently, Sis. Palencia, Fr. Cullens and Mr. Salonga came to her residence at Sta. Rita and asked her if she
was interested in filing a case against the person who caused the death of her granddaughter. Of course she
agreed. Hence, she was brought to the Fiscal's (City) Office to file the same.

After the case was filed against the herein accused, Atty. Edmundo Legaspi with his messenger came to her
house and told her that the accused was willing to settle the case, but that accused Ritter had only P15,000.00.
The old woman did not accept it because she knows that the accused is liable to pay damages anyway. After
that, she received a letter from Atty. Legaspi telling her to get a lawyer for her case. By this time, Mrs. Turla, who
wanted to have the case settled once and for all giving the reason that she can no longer bear the situation,
sent her nephew, Conrado Marcelo to Atty. Legaspi. Her nephew obliged and told her that she will be paid at
the office of Atty. Legaspi. On a date not clear in the records, she went with her nephew Conrado Marcelo,
and Roberto Sundiam, an assistant barangay tanod of Sta. Rita, and while they were there, she saw Ritter arrive
at the law office. Ritter and Atty. Legaspi talked at the office near the bathroom, and thereafter Ritter left. After
he left, Atty. Legaspi told Rosario's grandmother that they are willing to settle for P20,000.00, but that Ritter left
only P15,000.00, so she received the money with the understanding that there was a balance of P5,000.00 yet.
She was made to sign a statement, and she was asked to change the age of her granddaughter Rosario. With
the document prepared, she and the lawyer's messenger went to the Fiscal's office to have it subscribed, and
was subscribed before an assistant city fiscal. But the balance of P5,000.00 was not paid, because later on Atty.
Legaspi became the OIC of Olongapo City and he could no longer attend to it. Atty. Legaspi, during one of
the hearings before the Court even apologized to her.

As to the case, P/Cpl. Marino Victoria, as criminal investigator of Station "A", was directed by Col. Daos, Station
Commander of the Olongapo Police Department to make a follow up of the case of Rosario Baluyot. On the
other hand, since the suspect who inserted the foreign object inside Rosario's vagina was said to be an
American, the NISRA Subic Naval Base also conducted its investigation headed by criminal investigator Agent
Conrado Salonga. Coordinating with the local police and with Sister Eva Palencia, since Rosario was a street
child at Magsaysay Drive, they rounded up about 43 street children and from some of them they learned that
Rosario Baluyot was with Jessie Ramirez with an American at the MGM Hotel when the foreign object was
inserted in her vagina. After finding Jessie Ramirez, they asked him about Rosario Baluyot. They found out that
indeed he was with Rosario Baluyot sometime before Christmas of 1986 with an American, who brought them
to the said hotel. Jessie Ramirez was taken inside the U.S. Naval Base, Olongapo City and took his statement.
 Then he was brought to Mr. Edward Lee Bungarner, a cartographer, and out of the description supplied by
Ramirez, a composite drawing was photocopied and copies thereof were distributed to the local police and to
the sentries at the gate of the U.S. Naval Base. Some American servicemen who had resemblance to the
composite drawing were photographed and these were shown to Jessie Ramirez, but the result was negative.
Aside from the physical description by Ramirez about the appearance of the suspect, he also described him as
having the mannerisms of a homo-sexual.

After obtaining information that foreign homo-sexuals frequented Ermita, Manila, and thinking that the so-
called American may be European or Australian national, the team composed of Agent Salonga, Mr. Heinsell,
P/Cpl. Marino Victoria and P/Cpl. Andres Montaon, Jessie Ramirez and Michael Johnson, another juvenile,
proceeded to Manila. They first went to the Manila NISRA Office, and thereafter checked in a hotel. That was
on September 23, 1987. On the first night, they went to Luneta Park where foreign homo-sexuals were said to be
frequenting, but the result was negative. Then on September 25, at about 11:00 p.m., while they were standing
at the corner of A. Mabini and M.H. del Pilar Street, a male caucasian who looked like a homo-sexual stopped
by admiringly infront of the two (2) juveniles, Ramirez and Johnson. Jessie Ramirez then reported to Mr. Salonga
that this foreigner had a similarity with the American suspect, so the two minors were instructed to follow the
foreigner and to strike a conversation. They did, and when they returned, Jessie Ramirez told them that indeed
the said foreigner was the one who brought him and Rosario Baluyot to the MGM Hotel. Bobby Salonga told
Ramirez that this foreigner had no beard while the one previously described by Ramirez had a beard. Jessie
Ramirez told them that maybe he have just shaved it off. The said caucasian then entered a bar, and after
several minutes he came out, and Jessie Ramirez upon his signal with his thumbs up, as a signal to confirm that
the said foreigner is the suspect, arrested Ritter and brought him to the Manila Western Police District. It could
be mentioned at this stage that in this operation they were accompanied by two (2) policemen from the
Western Police District. The foreigner was hand cuffed and was told that he was a suspect for Rape with
Homicide. After the arrest, they first went to the pension house of the suspect in Ermita, Manila to get his
shoulder bag which contained his personal belongings, and from there they brought him to the Western Police
Department. At the said police headquarters, they were allowed a permissive search by the foreigner of his
clutch bag and his small shoulder bag and confiscated his passport, I.D., 3 inhalers, money in the form of dollars
and travellers checks amounting about $1,500.00 and about P100.00, all duly receipted for. From the passport
they learned that the suspect's name was Heinrich Stefan Ritter, an Austrian national. During the questioning of
Hitter, Salonga and his team already left the headquarters and went to their hotel, because at this time Jessie
Ramirez was already shaking with fear after he identified the accused.

The following day, they brought the accused to Olongapo and was detained at the Olongapo City Jail. The
case for Rape with Homicide was filed against him at the City Fiscal of Olongapo. At the preliminary
investigation, accused was assisted by his own counsel. The private complainant was Maria Burgos Turla
because it was she who had custody of Rosario Baluyot after her mother Anita Burgos died on January 12,
1982, and their father Policarpio Baluyot had left them under her custody. When this case was filed, the father's
whereabouts was unknown, and he only appeared when the trial of this case before the Court was already in
progress. And upon his (Policarpio Baluyot) own admission, he only learned about the death of his daughter
Rosario Baluyot from the newspaper, long after Rosario was already gone.

The defense tried to dislodge the case by claiming that there could be no crime of Rape with Homicide
because the suspect was described as an American while Ritter is an Austrian. Also advanced by the defense
is that, it is a case of mistaken identity. That Rosario Baluyot was at the time of the commission of the offense,
already more than 13 years old, she having been born on December 26, 1973 as per baptismal certificate,
wherein it appears that Rosario Baluyot was baptized on December 25, 1974 and was born on December 26,
1973 as testified to by Fr. Roque Villanueva of St. James Parish Church who issued the Baptismal Certificate,
having custody and possession of the book of baptism for the year 1975, but admitted that he had no personal
knowledge about the matters or entries entered therein. Likewise, the defense's stand is that the accused
cannot be liable for Homicide because a vibrator is not a weapon of death but it is a thing for the purpose of
giving sexual pleasure, and that the death of Rosario Baluyot was due to the incompetence of Dr. Rosete, the
surgeon and Director of the Olongapo City General Hospital, who operated on her. (Rollo, pp. 109-116)

On March 29, 1989, the trial court rendered its decision. The dispositive portion of the decision reads as follows:

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court holds, that the prosecution has established the GUILT
of the accused beyond reasonable doubt for the crime of Rape with Homicide as defined and penalized in
Art. 335 No. 3 of the Revised Penal Code, and hereby sentences HEINRICH STEFAN RITTER to a penalty
of RECLUSION PERPETUA, to indemnify the heirs of the deceased in the sum of SIXTY THOUSAND PESOS
(P60,000.00) Philippine Currency, and TEN THOUSAND PESOS (Pl0,000.00) by way of attorney's fees to the private
prosecutors and to pay the costs. (Rollo, p. 126)
The accused now comes to this Court on the following assigned errors allegedly committed by the court:

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THAT THE ALLEGED OFFENSE WAS
COMMITTED ON OCTOBER 10, 1986 AND THAT IT WAS ACCUSED-APPELLANT WHO COMMITTED IT.

II

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THAT ROSARIO BALUYOT WAS LESS
THAN TWELVE (12) YEARS OLD WHEN THE ALLEGED OFFENSE WAS COMMITTED AND IN HOLDING THAT THERE WAS
RAPE WITH HOMICIDE.

III

THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN GIVING CREDENCE TO AND NOT REJECTING
THE PROSECUTION'S EVIDENCE AND IN NOT UPHOLDING THAT OF THE DEFENSE AND ACQUITTING THE ACCUSED.

Inasmuch as it is the bounden duty of this Court to affirm a judgment of conviction only if the guilt of the accused has
been proved beyond reasonable doubt, it behooves us to exert the most painstaking effort to examine the records in
the light of the arguments of both parties if only to satisfy judicial conscience that the appellant indeed committed the
criminal act (See People v. Villapaña, 161 SCRA 73 [1988]).

The appellant was convicted by the trial court of the crime of rape with homicide of a young girl who died after the
rape because of a foreign object, believed to be a sexual vibrator, left inside her vagina.

As stated by the trial court one crucial issue in this case is the age of the victim—whether or not Rosario Baluyot was less
than twelve (12) years old at the time the alleged incident happened on October 10, 1986. The age is important in
determining whether or not there was statutory rape, Article 335 of the Revised Penal Code defines the third type of rape
as having carnal knowledge of a woman under 12 years of age, in which case force, intimidation, deprivation of reason
or unconscious state do not have to be present.

The trial court found that Rosario was below 12 years old when she was sexually abused by the accused and, therefore,
rape was committed inspite of the absence of force or intimidation.

In resolving the issue, the trial court put great weight on the testimonies of the victim's grandmother and father who
testified that she was born on December 22, 1975. These oral declarations were admitted pursuant to then Rule 130,
Section 33 of the Rules of Court where, in the absence of a birth certificate, the act or declaration about pedigree may
be received in evidence on any notable fact in the life of a member of the family. Since birth is a matter of pedigree
within the rule which permits the admission of hearsay evidence, oral declarations are therefore admissible as proof of
birth (Decision, p. 54).

The grandmother, Maria Burgos Turla, testified that she remembered Rosario's birth date because her brother died in
Pampanga and her daughter, Anita (Rosario's mother) was the only one who failed to attend the funeral because the
latter has just given birth allegedly to Rosario (T.S.N. p. 8, Jan. 13, 1988).

The father likewise testified that as far as he could remember, Rosario was born on December 22, 1975 (T.S.N., p. 4, Jan.
27, 1988) and he was certain that Rosario was more than one (1) year old when she was baptized (T.S.N., p. 45, Jan. 27,
1988).

The trial court further added that their testimony is supported by the clinical record and the death certificate indicating
that she was 12 years old when she was admitted at the Olongapo City General Hospital for treatment. The age was
supplied by Rosario's alleged guardian, Gaspar Alcantara to the hospital's clinical record clerk, Lorna Limos. Fe Israel, a
social worker who interviewed Rosario Baluyot also testified that she was told by Rosario that she was 12 years old. The
trial court accepted this as adequate evidence of the truth. Moreover, Jessie Ramirez, the principal witness in this case
declared that he was born on September 5, 1973 and that he was older than Rosario Baluyot. Therefore, since he was 13
years old in 1986, Rosario must have been less than 12 yeas old in 1986. (Decision, p. 55)
The trial court concluded that the oral declarations of the grandmother and father supported by other independent
evidence such as the clinical record, death certificate and the testimonies of Fe Israel and Jessie Ramirez, rendered the
baptismal certificate presented by the defense without any probative or evidentiary value. (Decision, p. 55)

The findings of the trial court with respect to Rosario Baluyot's age cannot stand the application of evidentiary rules.

The trial court relied on Section 33, Rule 130 (now Section 40 of Rule 130 of the 1989 Revised Rules of Court).

For oral evidence to be admissible under this Rule, the requisites are:

(1) That the declarant must be dead or outside of the Philippines or unable to testify;

(2) That pedigree is in issue;

(3) That the person whose pedigree is in question must be related to the declarant by birth or marriage;

(4) That the declaration must be made before the controversy occurred or ante litem motam; and

(5) That the relationship between the declarant and the person whose pedigree is in question must as a
general rule be shown by evidence other than such act or declaration.

These requirements were not satisfied by the evidence for the prosecution nor do the declarations fall within the purview
of the rule.

The victim's grandmother and father whose declarations regarding Rosario's age were admitted by the trial court are
both alive, in the Philippines and able to testify as they both did testify in court. Their declarations were made at the trial
which is certainly not before the controversy arose. The other witnesses who testified on Rosario's age are not members
of the victim's family. The testimonies of Rosario's relatives must be weighed according to their own personal knowledge
of what happened and not as hearsay evidence on matters of family history.

At this point, we find the evidence regarding Rosario's age of doubtful value.

The trial court justified the admissibility of the grandmother's testimony pursuant to the ruling laid down in U.S. v.
Bergantino, (3 Phil., 118 [1903]) where the Court accepted the testimony of the mother that her daughter was 14 years
old and 4 months old. The mother stated that she knew the age because the child was born about the time of the
cholera epidemic of 1889. This was not hearsay, but came from one who had direct knowledge of the child's birth.

It is however, equally true that human memory on dates or days is frail and unless the day is an extraordinary or unusual
one for the witness, there is no reasonable assurance of its correctness. (People v. Dasig 93 Phil. 618, 632 [1953])

With respect to the grandmother's testimony, the date of the brother's death or funeral was never established, which
indicates that the day was rather insignificant to be remembered. The father's declaration is likewise not entirely reliable.
His testimony in court does not at all show that he had direct knowledge of his daughter's birth. He was certain though
that she was more than one (1) year old at the time she was baptized.

The other witnesses are not at all competent to testify on the victim's age, nor was there any basis shown to establish
their competence for the purpose. The clinical records were based on Gaspar Alcantara's incompetent information
given when he brought the victim to the hospital. Alcantara came to know her only about a year before her death. He
had absolutely no knowledge about the circumstances of Rosario's birth. The death certificate relied upon by the trial
court was merely based on the clinical records. It is even less reliable as a record of birth.

All the evidence presented by the prosecution showing that Rosario Baluyot was less than 12 years old at the time of the
alleged incident are not adequate to establish the exact date of birth, much less offset a documentary record showing
a different date.

The defense presented Rosario Baluyot's baptismal certificate which the trial court rejected as being hearsay and of no
value. As against the oral declarations made by interested witnesses establishing Rosario's age to be less than 12 years
old, the evidence on record is more convincing and worthy of belief. (See Filinvest Land, Inc. v. Court of Appeals, 183
SCRA 664, 673 [1990]).

By virtue of a subpoena duces tecum and ad testificandum, issued by the lower court to the St. James Parish Church,
Subic, Zambales, Fr. Roque Villanueva a Roman Catholic priest testified and stated that he is the head of said parish. He
brought with him Baptismal Register No. 9 entitled "Liber Baptisnorum", a latin term for baptismal book or record. On
page 151, No. 3 of the said Registry Book, there appears the name of Rosario Baluyot who was baptized on December
25, 1974, and born on December 26, 1973. Parents are Policarpio Baluyot and Anita Burgos, residents of Subic, Zambales.
Edita R. Milan appears as the only sponsor with Olongapo City as her address.

In the case of Macadangdang v. Court of appeals (100 SCRA 73 [1980]), we held that:

xxx xxx xxx

In our jurisprudence, this Court has been more definite in its pronouncements on the value of baptismal
certificates. It thus ruled that while baptismal and marriage certificates may be considered public documents,
they are evidence only to prove the administration of the sacraments on the dates therein specified—but not
the veracity of the status or declarations made therein with respect to his kinsfolk and/or citizenship (Paa v.
Chan, L-25945, Oct. 31, 1967). Again, in the case of Fortus v. Novero (L-22378, 23 SCRA 1331 [1968]), this Court
held that a baptismal certificate is conclusive proof only of the baptism administered, in conformity with the
rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the
declarations and statements contained in the certificate that concern the relationship of the person baptized.
Such declarations and statements, in order that their truth may be admitted, must indispensably be shown by
proof recognized by law. (At pp. 84-85)

In the same light, the entries made in the Registry Book may be considered as entries made in the course of business
under Section 43 of Rule 130, which is an exception to the hearsay rule. The baptisms administered by the church are
one of its transactions in the exercise of ecclesiastical duties and recorded in a book of the church during the course of
its business. (U.S. v. de Vera, 28 Phil. 105 [1914] Hence, the certificate (Exhibit "22") presented by the defense that Rosario
Baluyot was baptized on December 25, 1974 may be admitted in evidence as proof of baptism. Policarpio Baluyot, the
victim's father testified that he had in his possession a baptismal certificate different from the one presented in court.
However, no other baptismal record was ever presented to prove a date different from that brought by the official
custodian. Since the baptismal certificate states that Rosario was baptized on December 25, 1974, it is therefore highly
improbable that Rosario could have been born on December 22, 1975. She could not have been baptized before she
was born. Exhibit "22" may be proof only of baptism but it puts a lie to the declaration that Rosario was born in 1975. With
the father's assertion that Rosario was more than one (1) year old when she was baptized, we are then more inclined to
agree that Rosario was born in 1973 as stated in the Baptismal Registry.

In the case of People v. Rebancos (172 SCRA 425 [1989]), the Court stated:

xxx xxx xxx

. . . Although no birth certificate was presented because her birth had allegedly not been registered, her
baptismal certificate, coupled by her mother's testimony, was sufficient to establish that Mary Rose was below
twelve years old when she was violated by Rebancos. (At. p. 426)

Unfortunately, in the instant case, nobody could corroborate the date on a more reliable document as to Rosario's birth
which could serve as sufficient proof that she was born on December 26, 1973. Therefore, she was more than 12 years
old at the time of the alleged incident on October 10, 1986.

Moreover, it is not incumbent upon the defense to prove Rosario's age. The burden of proof lies on the prosecution to
prove that Rosario was less than 12 years old at the time of the alleged incident in a charge of statutory rape. The
prosecution failed in this respect.

Since Rosario was not established to have been under 12 years of age at the time of the alleged sexual violation, it was
necessary to prove that the usual elements of rape were present; i.e. that there was force of intimidation or that she was
deprived of reason or otherwise unconscious in accordance with Article 335 of the Revised Penal Code.

We agree with the defense that there was no proof of such facts. On the contrary, the evidence shows that Rosario
submitted herself to the sexual advances of the appellant. In fact, she appears to have consented to the act as she was
paid P300.00 the next morning while her companion, Jessie Ramirez was paid P200.00 (T.S.N. p. 50, January 6, 1988). The
environmental circumstances coupled with the testimonies and evidence presented in court clearly give the impression
that Rosario Baluyot, a poor street child, was a prostitute inspite of her tender age. Circumstances in life may have
forced her to submit to sex at such a young age but the circumstances do not come under the purview of force or
intimidation needed to convict for rape.

In view of these clear facts which the prosecution failed to refute, no rape was committed. But was Ritter guilty of
homicide?

The trial court justified its ruling by saying that the death of the victim was a consequence of the insertion of the foreign
object into the victim's vagina by the appellant.

We now ask "Was the appellant responsible for the sexual vibrator left inside Rosario's vagina which led to her death?

The trial court convicted the accused based on circumstantial evidence. Unfortunately, the circumstances are capable
of varying interpretations and are not enough to justify conviction.

Jessie Ramirez, the principal witness did not actually see the object inserted in Rosario's vagina. Neither could he identify
the object (Exhibit "C-2") taken from Rosario as the same object which the appellant was holding at that time of the
alleged incident.

In his sworn statement given to the police investigator on September 4, 1987, he answered that:

xxx xxx xxx

T Habang kayo ay nasa loob ng kuwarto ng otel, mayroon ka bang napansin na inilabas ng kano sa kanyang
daladalahan kung mayroon man?

S Ang Amerikano ay may dala-dalang shoulder bag na kulay itim, at napansin ko na may inilabas siya sa
kanyang bag na parang vicks inhaler, na kanyang inamoy-amoy habang nasa otel kami at pagkatapos niya
ay inilapag niya sa lamiseta.

T Ilarawan mo nga sa akin ang bagay na nakita mong inilabas ng Amerikano?

S Ito ay may habang tatlong pulgada at ang takip nito ay may habang dalawang pulgada. Iyong takip ay
bilog na patulis at may tabang mga kalahating pulgada. Hindi ko napansin ang hugis ng dulo ng bagay na
may takip dahil natatakpan ng kamay at ilong ng Amerikano.

T Ipinakikita ko sa iyo ang isang larawan. Tignan mong mabuti ang larawang ito at sabihin mo nga sa akin kung
makikilala mo ang mga bagay na nasa larawang ito, na may kinalaman sa nakita mong kinuha ng Amerikano
sa kanyang bag?

S Napansin ko na ang kulay asul na bagay sa larawan ay katulad na katulad noong takip ng bagay na
inilabas ng Amerikano sa kanyang bag. Kaya lang ay bakit naging kulay asul gayong ng makita ko ito ay kulay
puti? (Exhibit "A", p. 2; Emphasis Supplied)

Presumably, what Jessie Ramirez saw was merely the Vicks inhaler which the appellant does not deny having possessed
at that time. He was certain that the object was white. (T.S.N. p. 91, January 6, 1988)

Later, Ramirez retracted and corrected himself. He said that it was grayish in color with color blue (Medyo kulay abo na
may kulay na parang blue). (T.S.N. p. 92, January 6, 1988) The inconsistency of the witness' testimony casts doubt as to
the veracity of the statements made especially when he answered on additional cross-examination that the reason why
he concluded that Exhibit "C-2" was the same object being held by Ritter was because it was the only one shown to him
by the prosecution (T.S.N. pp. 109-110, January 6, 1988). Jessie Ramirez was not all certain about the sexual vibrator
because he did not actually see it in the possession of the appellant.

What he merely remembers is the revelation made by Rosario the next morning that the foreigner inserted something
inside her vagina. The trial court admitted such statement as part of the res gestae. In a strained effort to accept such
statement as part of res gestae, the trial court focused the test of admissibility on the lapse of time between the event
and the utterance. For the average 13 years old, the insertion of a mechanical device or anything for that matter into
the vagina of a young girl is undoubtedly startling. For Rosario and Jessie, however, there must be more evidence to
show that the statement, given after a night's sleep had intervened, was given instinctively because the event was so
startling Res gestae does not apply. (Section 42, Rule 130, Rules of Court)

Even if it were established that the appellant did insert something inside Rosario's vagina, the evidence is still not
adequate to impute the death of Rosario to the appellant's alleged act.

Jessie Ramirez testified that Rosario was able to remove the object inserted in her vagina. We quote:

Q Now, you also stated on direct examination that later on Rosario even categorically admitted to you that
she was already able to remove the object allegedly inserted inside her vagina, is that correct?

A Yes, sir.

xxx xxx xxx

ATTY. CARAAN:

Q Will you kindly tell to this Honorable Court the exact words used by Rosario Baluyot later on when you met her
when you asked her and when she told you that she was already able to remove that object from her vagina?

A "Oy, Jessie, natanggal na, "she told me that. I asked her, "Was it already removed?" And she answered, "Yes,
it was removed." But the same night, she again complained of pain of her stomach. She sent one of her friends
to call for me. And as a matter of fact, Tomboy was uttering defamatory words against me as she was
groaning in pain. (TSN, Jan. 6,1988, pp. 72-73)

This encounter happened on the night of the day following the day after both children were invited by the foreigner to
the hotel. (T.S.N. p. 73, January 6, 1988). Rosario was said to be groaning in pain so we can just imagine the distress she
was undergoing at this point in time. If the device inserted by the appellant caused the pain, it is highly inconceivable
how she was able to endure the pain and discomfort until May, 1987, seven (7) months after the alleged incident.
Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the
common experience and observation of mankind can approve as probable under the circumstances. (People vs.
Patog, 144 SCRA 429 [1986]).

At this juncture, we find Dr. Pedro Solis' testimony rather significant. Dr. Pedro Solis, a witness for the defense is considered
an expert witness. (A Doctor of Medicine and a graduate of the State University in 1940, a degree of Bachelor of Laws
and member of the Bar 1949, and a graduate of the Institute of Criminology University. He was awarded Post Graduate
Diploma in Criminology in 1963, and also a graduate of United Nations Asia and Far East Asia Institute on the Prevention
of Crimes in Tokyo Japan 1965. He was appointed Medico Legal Officer of the National Bureau of Investigation in 1940
until 1944. He became Chief Medico Legal Officer in 1970 and became the Deputy Director of the NBI up to 1984. He is
at present a Professorial Lecturer on Legal Medicine at the UP, FEU, UE, and Fatima College of Medicine; a Medico Legal
Consultant of the PGH Medical Center, Makati Medical Center, UERM Medical Center, MCU Medical Center. He has
been with the NBI for 43 years. He has attended no less than 13 conferences abroad. He is the author of the textbooks
entitled "Legal Medicine" and "Medical Jurisprudence".) With his impressive legal and medical background, his testimony
is too authoritative to ignore. We quote the pertinent portions of his testimony:

Q Now Dr. Solis, would you kindly go over this object marked as Exh. "C-2" which object was described as a part
of a sexual vibrator battery operated. Now, given this kind of object, would you kindly tell us what would be the
probable effect upon a 12 years old girl when it is inserted into her vagina?

A Well, this vibrator must be considered a foreign body placed into a human being and as such be considered
a foreign object. As a foreign object, the tendency of the body may be: No. 1—expel the foreign body—No.
2.—The tendency of the body is to react to that foreign body. One of the reactions that maybe manifested by
the person wherein such foreign body is concerned is to cover the foreign body with human tissue, in a way to
avoid its further injury to the body.

Now, the second reaction is irritation thereby producing certain manifest symptoms and changes in the area
where the foreign body is located.
 In severe cases, the symptoms manifestation might not only be localized but may be felt all over the body, we
call it systemic reaction. Now, considering the fact that this foreign body as shown to me is already not
complete, this shows exposure of its different parts for the body to react. If there is mechanism to cause the
foreign body to vibrate, there must be some sort of power from within and that power must be a dry cell
battery. [The] composition of the battery are, manganese dioxide ammonium, salts, water and any substance
that will cause current flow. All of these substances are irritants including areas of the container and as such,
the primary reaction of the body is to cause irritation on the tissues, thereby inflammatory changes develop
and in all likelihood, aside from those inflammatory changes would be a supervening infection in a way that
the whole generative organ of the woman will suffer from diseased process causing her the systemic reaction
like fever, swelling of the area, and other systemic symptoms. . . . . (TSN., pp. 13-15, October 19,1988)

xxx xxx xxx

Q Now, given this object, how long would it take, Doctor before any reaction such as an infection would set in,
how many days after the insertion of this object in the vagina of a 12 year old girl?

A In the example given to me, considering that one of the ends is exposed, in a way that vaginal secretion has
more chance to get in, well, liberation of this irritant chemicals would be enhanced and therefore in a shorter
period of time, there being this vaginal reaction.

Q How many days or weeks would you say would that follow after the insertion?

A As I said, with my experience at the NBI, insertion of any foreign body in the vaginal canal usually developed
within, a period of two (2) weeks . . .

xxx xxx xxx

Q . . . [T]he subject in this case was allegedly raped, and a sexual vibrator was inserted in her vagina on
October 10, 1986 and she was operated on, on May 19, 1987 the following year, so it took more than 7 months
before this was extracted, would you say that it will take that long before any adverse infection could set in
inside the vagina?

A Infection and inflamatory changes will develop in a shorter time. (TSN., Oct. 19,1988, p. 18)

xxx xxx xxx

Q When you said shorter, how long would that be, Doctor?

A As I said, in my personal experience, hair pins, cottonballs and even this lipstick of women usually, there are
only about two (2) weeks time that the patient suffer some abnormal symptoms.

Q Now, considering that this is a bigger object to the object that you mentioned, this object has a shorter time?

A Yes, Sir shorter time. (TSN., Oct. 19. 1988, p. 20)

The trial court, however, ruled that "there is no hard and fast rule as to the time frame wherein infection sets in upon
insertion of a foreign body in the vagina canal. For Dr. Solis, the time frame is not more than 10 months, and this case is
still within the said time frame."

A more generous time interval may be allowed in non-criminal cases. But where an accused is facing a penalty
of reclusion perpetua, the evidence against him cannot be based on probabilities which are less likely than those
probabilities which favor him.

It should be clarified that the time frame depends upon the kind of foreign body lodged inside the body. An
examination of the object gave the following results:

(1) Color: Blue

Size: (a) Circumference—3.031
 inches (b) Length—approximately
2.179 inches.
Composition: Showed the general
characteristics of a styrene-butadiene plastic.

(2) The specimen can be electrically operated by means of a battery as per certification dated 01 June 1988,
signed by Mr. Rodolfo D. Mercuric, Shipboard Electrical Systems Mechanics, Foreman II, SRF Shop 51, Subic
(see attached certification).

(3) No comparative examination was made on specimen #1 and vibrator depicted in the catalog because no
actual physical dimensions and/or mechanical characteristics were shown in the catalog. (Exhibit "LL")

The vibrator end was further subjected to a macro-photographic examination on the open end portion which revealed
the following:

Result of Examination

Macro-photographic examination on the open end portion of specimen #1 shows the following inscription:

MABUCHI MOTOR JAPAN RE 14 PAT (Exhibit "MM")

From the above results, the subject object is certainly not considered as inert and based on Dr. Solis' testimony, it is more
likely that infection should set in much earlier. Considering also that the object was inserted inside the vagina which is
part of the generative organ of a woman, an organ which is lined with a very thin layer of membrane with plenty of
blood supply, this part of the body is more susceptible to infection. (T.S.N. p. 34, October 19, 1988)

The truth of Dr. Solis' testimony is more probable under the circumstances of the case. We see no reason why his opinions
qualified by training and experience should not be controlling and binding upon the Court in the determination of guilt
beyond reasonable doubt. (People v. Tolentino, 166 SCRA 469 [1988]).

Dr. Barcinal, another witness for the defense also testified that he examined Rosario Baluyot on May 17, 1986 as a referral
patient from the Department of Surgery to give an OB-GYN clearance to the patient prior to operation. (T.S.N. p. 6,
September 28, 1988)

Q And how many times did you examine this patient Rosario Baluyot on that day?

A I examined her twice on that day.

Q The first time that you examined her, what is the result of your findings, if any?

A My first examination, I examined the patient inside the delivery room. The patient was brought to the delivery
room wheel-chaired then from the wheel chair, the patient was ambigatory (sic). She was able to walk from
the door to the examining table. On examination, the patient is conscious, she was fairly nourished, fairly
developed, she had fever, she was uncooperative at that time and examination deals more on the abdomen
which shows slightly distended abdomen with muscle guarding with tenderness all over, with maximum
tenderness over the hypogastric area. (T.S.N. p. 5, September 28, 1988)

xxx xxx xxx

Q What about your second examination to the patient, what was your findings, if any?

A In my second examination, I repeated the internal examination wherein I placed my index finger and middle
finger inside the vagina of the patient and was able to palpate a hard object. After which, I made a speculum
examination wherein I was able to visualize the inner portion of the vaginal canal, there I saw purulent foul
smelling, blood tints, discharge in the vaginal canal and a foreign body invaded on the posterior part of the
vaginal canal.

xxx xxx xxx

 A I referred back to Dr. Fernandez about my findings and he asked me to try to remove the said foreign object
by the use of forceps which I tried to do so also but I failed to extract the same.

Q All this time that you were examining the patient Rosario Baluyot both in the first and second instance,
Rosario Baluyot was conscious and were you able to talk to her when you were examining her?

A Yes, sir.

Q And did you ask her why there is a foreign object lodge inside her vagina?

A Yes, Sir I asked her.

Q And what did she tell you, if any?

A She said in her own words that "GINAMIT AKO NG NEGRO AT SIYA ANG NAGLAGAY NITO."

Q Did she also tell you when, this Negro who used her and who inserted and placed the foreign object on her
vagina?

A Yes, Sir I asked her and she said he used me three (3) months ago from the time I examined her.

Q Now, you said that you referred the patient to the ward, what happened next with your patient?

A To my knowledge, the patient is already scheduled on operation on that date.

Q Meaning, May 17, 1987?

A Yes, Sir I was presuming that the patient would undergo surgery after that?

(TSN, Sept. 28,1988, pp. 8-9; Emphasis supplied)

The trial court debunked Dr. Barcinals testimony considering Rosario's condition at that time. It ruled that it is
inconceivable that she would be striking a normal conversation with the doctors and would be sitting on the
examination table since Gaspar Alcantara stated that when he brought Rosario Baluyot to the hospital, she was
unconscious and writhing in pain.

It was not improbable for Rosario Baluyot to still be conscious and ambulant at that time because there were several
instances testified to by different witnesses that she was still able to talk prior to her operation:

(1) Fe Israel, a witness for the prosecution and a member of the Olongapo Catholic Charismatic Renewal Movement
testified that as a member of this group she visits indigent children in the hospital every Saturday and after office hours
on working days.

On the Saturday prior to Rosario's death which was May 17, she was still able to talk to Rosario Baluyot. In fact, one of her
groupmates helped Rosario go to the comfort room to urinate. (T.S.N., pp. 16-19, May 25, 1988)

(2) Angelita Amulong, a witness for the defense is another para social worker who worked at Pope John 23rd Community
Center under Sister Eva Palencia. In one of her hospital visits, she encountered Rosario Baluyot in the month of May, 1987.
She actually saw a child who happened to be Rosario Baluyot seated on the cement floor and when she asked why she
was seated there, she was told that it was too hot in the bed. She saw Rosario Baluyot for about 2 or 3 days successively.
(T.S.N. pp. 10-13, September 7, 1988)

(3) Gaspar Alcantara, the person who brought Rosario to the hospital actually testified that she was conscious (T.S.N. p.
36, September 14, 1988) but writhing in pain. He took pity on her so he brought her to the hospital (T.S.N. p. 12,
September 14, 1988)
From the above testimonies, it is clear that Rosario was still conscious and could still answer questions asked of her
although she was complaining of stomach pains. Unfortunately, the medical attention given to her failed to halt the
aggravation of her condition. The operation on May 19 was too late.

Rosario died because of septicemia, which in layman's language is blood poisoning, and peritonitis, which is massive
infection, in the abdominal cavity caused by the foreign object or the cut sexual vibrator lodged in the vagina of the
victim. This led to the infection from the uterus to the fallopian tubes and into the peritoneum and the abdominal cavity.

The trial court convicted the accused citing the rationale of Article 4 of the RPC

He who is the cause of the cause is the cause of the evil caused.

But before the conviction is affirmed, we must first follow the rule as stated in the case of Urbano vs. Intermediate
Appellate Court (157 SCRA 1 [1988]) to wit:

The rule is that the death of the victim must be the direct, natural and logical consequence of the wounds
inflicted upon him by the accused. And since we are dealing with a criminal conviction, the proof that the
accused caused the victim's death must convince a rational mind beyond reasonable doubt. (Emphasis
supplied)

In People v. Tempongko, Jr., (144 SCRA 583, 592 [1986]), we explained that:

xxx xxx xxx

The basic principle in every criminal prosecution is that accusation is not synonymous with guilt. The accused is
presumed innocent until the contrary is proved by the prosecution. If the prosecution fails, it fails utterly, even if
the defense is weak or, indeed, even if there is no defense at all. The defendant faces the full panoply of state
authority with all "The People of the Philippines" arrayed against him. In a manner of speaking, he goes to bat
with all the bases loaded. The odds are heavily against him. It is important, therefore, to equalize the positions
of the prosecution and the defense by presuming the innocence of the accused until the state is able to refute
the presumption by proof of guilt beyond reasonable doubt. (At. p. 592)

The evidence for the accused maybe numerically less as against the number of witnesses and preponderance of
evidence presented by the prosecution but there is no direct and convincing proof that the accused was responsible for
the vibrator left inside the victim's vagina which caused her death seven (7) months after its insertion. What the
prosecution managed to establish were mere circumstances which were not sufficient to overcome the constitutional
presumption of innocence. While circumstantial evidence may suffice to support a conviction it is imperative, though,
that the following requisites should concur:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
(Rule 133, Sec. 4 Revised Rules of Court)

For the well-entrenched rule in evidence is that "before conviction can be had upon circumstantial evidence, the
circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing
to the defendant, to the exclusion of all others, as the author of the crime (People v. Subano, 73 Phil. 692 [1942];
Emphasis supplied). It must fairly exclude every reasonable hypothesis of innocence (Dorado v. Court of Appeals, 153
SCRA 420, 433 [1987]). In this case the circumstantial evidence presented by the prosecution does not conclusively point
to the liability of the appellant for the crime charged. (People v. Tolentino, supra)

We are aware of the wide publicity given to the plight of Rosario Baluyot and how her death exemplified starkly the daily
terrors that most street children encounter as they sell their bodies in order to survive. At an age when innocence and
youthful joys should preponderate in their lives, they experience life in its most heartless and inhuman form. Instead of
nothing more than gentle disappointments occupying their young minds, they daily cope with tragedies that even
adults should never be made to carry.
It is with distressing reluctance that we have to seemingly set back the efforts of Government to dramatize the death of
Rosario Baluyot as a means of galvanizing the nation to care for its street children. It would have meant a lot to social
workers and prosecutors alike if one pedophile-killer could be brought to justice so that his example would arouse public
concern, sufficient for the formulation and implementation of meaningful remedies. However, we cannot convict on
anything less than proof beyond reasonable doubt. The protections of the Bill of Rights and our criminal justice system are
as much, if not more so, for the perverts and outcasts of society as they are for normal, decent, and law-abiding people.

The requirement of proof which produces in an unprejudiced mind moral certainty or conviction that the accused did
commit the offense has not been satisfied.

By way of emphasis, we reiterate some of the factors arousing reasonable doubt:

1. The evidence on Rosario Baluyot's baptism creates reasonable doubt about her being less than 12 years old
when the carnal knowledge took place. If the evidence for the prosecution is to be believed, she was not yet
born on the date she was baptized.

2. Since the proof of Rosario's being under 12 years of age is not satisfactory, the prosecution has to prove
force, intimidation, or deprivation of reason in order to convict for rape. There is no such proof. In fact, the
evidence shows a willingness to submit to the sexual act for monetary considerations.

3. The only witness to the fact of Ritter's placing a vibrator inside the vagina of Rosario was Jessie Ramirez. This
witness did not see Ritter insert the vibrator. The morning after the insertion, he was only told by Rosario about it.
Two days later, he allegedly met Rosario who informed him that she was able to remove the object. And yet,
Ramirez testified that on the night of that second encounter, he saw Rosario groaning because of pain in her
stomach. She was even hurling invectives. Ramirez' testimony is not only hearsay, it is also contradictory.

4. It was improbable, according to expert medical testimony, for a foreign object with active properties to
cause pain, discomfort, and serious infection only after seven months inside a young girl's vaginal canal.
Infection would have set in much earlier. Jessie Ramirez recalled that the incident happened in December of
1986. (TSN., January 6, 1988, pp. 15-17) The evidence, however shows that the appellant was not here in the
Philippines that December. As per the Commission on Immigration Arrival and Departure Report, Heinrich Ritter
arrived in the Philippines on October 7, 1986 and left on October 12, 1986. He never returned until September
23, 1987 (Exhibits "DD" and "EE") The incident could have happened only in October, but then it would have
been highly improbable for the sexual vibrator to stay inside the vagina for seven (7) months with the kind of
serious complications it creates.

5. The gynecologist who attended to Rosario during her hospital confinement testified that she told him
"Ginamit ako ng Negro at siya ang naglagay nito." The accused is not a black.

Noteworthy is the fact that nothing was mentioned about Rosario's activities after the hotel incident. Considering Dr.
Barcinal's testimony indicating that she was "used" by a "Negro" three (3) months prior to admission in the hospital and
Rosario's unfortunate profession, there is always the possibility that she could have allowed herself to be violated by this
perverse kind of sexual behavior where a vibrator or vibrators were inserted into her vagina between October, 1986 and
May, 1987.

Moreover, the long delay of seven (7) months after the incident in reporting the alleged crime renders the evidence for
the prosecution insufficient to establish appellant's guilty connection with the requisite moral certainty. (SeePeople v.
Mula Cruz, 129 SCRA 156 [1984]).

The established facts do not entirely rule out the possibility that the appellant could have inserted a foreign object inside
Rosario's vagina. This object may have caused her death. It is possible that the appellant could be the guilty person.
However, the Court cannot base an affirmance of conviction upon mere possibilities. Suspicions and possibilities are not
evidence and therefore should not be taken against the accused. (People v. Tolentino, supra)

Well-established is the rule that every circumstance favorable to the accused should be duly taken into account. This
rule applies even to hardened criminals or those whose bizarre behaviour violates the mores of civilized society. The
evidence against the accused must survive the test of reason. The strongest suspicion must not be allowed to sway
judgment. (See Sacay v. Sandiganbayan, 142 SCRA 593 [1986]). As stated in the case of People v. Ng (142 SCRA 615
[1986]):
 . . . [F]rom the earliest years of this Court, it has emphasized the rule that reasonable doubt in criminal cases
must be resolved in favor of the accused. The requirement of proof beyond reasonable doubt calls for moral
certainty of guilt. It has been defined as meaning such proof "to the satisfaction of the court, keeping in mind
the presumption of innocence, as precludes every reasonable hypothesis except that which it is given to
support. It is not sufficient for the proof to establish a probability, even though strong, that the fact charged is
more likely to be true than the contrary. It must establish the truth of the fact to a reasonable and moral
certainty—a certainty that convinces and satisfies the reason and the conscience of those who are to act
upon it. (Moreno, Philippine Law Dictionary, 1972 Edition, p. 379, citing U.S. v. Reyes, 3 Phil. 3). . . .

In the instant case, since there are circumstances which prevent our being morally certain of the guilt of the appellant,
he is, therefore, entitled to an acquittal.

This notwithstanding, the Court can not ignore the acts of the appellant on the children, Jessie Ramirez and Rosario
Baluyot in October, 1986 at the MGM Hotel. Inspite of his flat denials, we are convinced that he comes to this country not
to look at historical sights, enrich his intellect or indulge in legitimate pleasures but in order to satisfy the urgings of a sick
mind.

With the positive Identification and testimony by Jessie Ramirez that it was the appellant who picked him and Rosario
from among the children and invited them to the hotel; and that in the hotel he was shown pictures of young boys like
him and the two masturbated each other, such actuations clearly show that the appellant is a pedophile. When
apprehended in Ermita, he was sizing up young children. Dr. Solis defined pedophilia in his book entitled Legal Medicine,
1987 edition, as follows:

Pedophilia—A form of sexual perversion wherein a person has the compulsive desire to have sexual intercourse
with a child of either sex. Children of various ages participate in sexual activities, like fellatio, cunnilingus,
fondling with sex organs, or anal sexual intercourse. Usually committed by a homosexual between a man and a
boy the latter being a passive partner.

Ritter was prosecuted for rape with homicide and not pedophilia, assuming this is a crime by itself. Pedophilia is clearly a
behavior offensive to public morals and violative of the declared policy of the state to promote and protect the
physical, moral, spiritual and social well-being of our youth. (Article II, Section 13, 1987 Constitution) (Harvey v. Defensor
Santiago, 162 SCRA 840, 848 [1989]). Pedophiles, especially thrill seeking aliens have no place in our country.

In this case, there is reasonable ground to believe that the appellant committed acts injurious not only to Rosario Baluyot
but also to the public good and domestic tranquility of the people. The state has expressly committed itself to defend
the right of children to assistance and special protection from all forms of neglect, abuse, cruelty, exploitation and other
conditions prejudicial to their development. (Art. XV, Section 3 [2] . . . (Harvey v. Santiago, supra). The appellant has
abused Filipino children, enticing them with money. The appellant should be expelled from the country.

Furthermore, it does not necessarily follow that the appellant is also free from civil liability which is impliedly instituted with
the criminal action. (Rule III, Section 1) The well-settled doctrine is that a person while not criminally liable, may still be
civilly liable. We reiterate what has been stated in Urbano v. IAC, supra.

. . . While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only
a preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment
of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from
which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559).

The reason for the provisions of Article 29 of the Civil Code, which provides that the acquittal of the accused on
the ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from
civil liability for the same act or omission, has been explained by the Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is
one of the most serious flaws in the Philippine legal system. It has given rise to numberless instances of
miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as
to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived
from the criminal offense, when the latter is not proved, civil liability cannot be demanded.

This is one of those causes where confused thinking leads to unfortunate and deplorable
consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and
civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate
 and distinct from each other. One affects the social order and the other, private rights. One is for the
punishment or correction of the offender while the other is for the reparation of damages suffered by
the aggrieved party. The two responsibilities are so different from each other that article 1813 of the
present (Spanish) Civil Code reads thus: "There may be a compromise upon the civil action arising
from a crime; but the public action for the imposition of the legal penalty shall not thereby be
extinguished." It is just and proper that, for the purposes of the imprisonment of or fine upon the
accused, the offense should be proved beyond reasonable doubt. But for the purpose of
indemnifying the complaining party, why should the offense also be proved beyond reasonable
doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of
evidence? Is the right of the aggrieved person any less private because the wrongful act is also
punishable by the criminal law?

For these reasons, the Commission recommends the adoption of the reform under discussion. It will
correct a serious defect in our law. It will close up an inexhaustible source of injustice—a cause for
disillusionment on the part of the innumerable persons injured or wronged.

Rosario Baluyot is a street child who ran away from her grandmother's house.1âwphi1 Circumstances forced her to
succumb and enter this unfortunate profession. Nonetheless, she has left behind heirs who have certainly suffered
mental anguish, anxiety and moral shock by her sudden and incredulous death as reflected in the records of the case.
Though we are acquitting the appellant for the crime of rape with homicide, we emphasize that we are not ruling that
he is innocent or blameless. It is only the constitutional presumption of innocence and the failure of the prosecution to
build an airtight case for conviction which saved him, not that the facts of unlawful conduct do not exist. As earlier
stated, there is the likelihood that he did insert the vibrator whose end was left inside Rosario's vaginal canal and that the
vibrator may have caused her death. True, we cannot convict on probabilities or possibilities but civil liability does not
require proof beyond reasonable doubt. The Court can order the payment of indemnity on the facts found in the
records of this case.

The appellant certainly committed acts contrary to morals, good customs, public order or public policy (see Article 21
Civil Code). As earlier mentioned, the appellant has abused Filipino children, enticing them with money. We can not
overstress the responsibility for proper behavior of all adults in the Philippines, including the appellant towards young
children. The sexual exploitation committed by the appellant should not and can not be condoned. Thus, considering
the circumstances of the case, we are awarding damages to the heirs of Rosario Baluyot in the amount of P30,000.00.

And finally, the Court deplores the lack of criminal laws which will adequately protect street children from exploitation by
pedophiles, pimps, and, perhaps, their own parents or guardians who profit from the sale of young bodies. The provisions
on statutory rape and other related offenses were never intended for the relatively recent influx of pedophiles taking
advantage of rampant poverty among the forgotten segments of our society. Newspaper and magazine articles, media
exposes, college dissertations, and other studies deal at length with this serious social problem but pedophiles like the
appellant will continue to enter the Philippines and foreign publications catering to them will continue to advertise the
availability of Filipino street children unless the Government acts and acts soon. We have to acquit the appellant
because the Bill of Rights commands us to do so. We, however, express the Court's concern about the problem of street
children and the evils committed against them. Something must be done about it.

WHEREFORE, the appealed judgment is REVERSED and SET ASIDE. Appellant HEINRICH STEFAN RITTER is ACQUITTED on
grounds of reasonable doubt. The appellant is ordered to pay the amount of P30,000.00 by way of moral and exemplary
damages to the heirs of Rosario Baluyot. The Commissioner of Immigration and Deportation is hereby directed to institute
proper deportation proceedings against the appellant and to immediately expel him thereafter with prejudice to re-
entry into the country.

SO ORDERED.

Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ, concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 161921 July 17, 2013

JOYCE V. ARDIENTE, PETITIONER,
vs.
SPOUSES JAVIER AND MA. THERESA PASTORFIDE, CAGAYAN DE ORO WATER DISTRICT AND GASPAR
GONZALEZ,* JR., RESPONDENTS.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and set aside
the Decision1 and Resolution2 of the Court of Appeals (CA), dated August 28, 2003 and December 17, 2003, respectively,
in CA-G.R. CV No. 73000. The CA Decision affirmed with modification the August 15, 2001 Decision3of the Regional Trial
Court (RTC) of Cagayan de Oro City, Branch 24, while the CA Resolution denied petitioner's Motion for Reconsideration.

The facts, as summarized by the CA, are as follows:

[Herein petitioner] Joyce V. Ardiente and her husband Dr. Roberto S. Ardiente are owners of a housing unit at Emily
Homes, Balulang, Cagayan de Oro City with a lot area of one hundred fifty-three (153) square meters and covered by
Transfer Certificate of Title No. 69905.

On June 2, 1994, Joyce Ardiente entered into a Memorandum of Agreement (Exh. "B", pp. 470-473, Records) selling,
transferring and conveying in favor of [respondent] Ma. Theresa Pastorfide all their rights and interests in the housing unit
at Emily Homes in consideration of ₱70,000.00. The Memorandum of Agreement carries a stipulation:

"4. That the water and power bill of the subject property shall be for the account of the Second Party (Ma. Theresa
Pastorfide) effective June 1, 1994." (Records, p. 47)

vis-a-vis Ma. Theresa Pastorfide's assumption of the payment of the mortgage loan secured by Joyce Ardiente from the
National Home Mortgage (Records, Exh. "A", pp. 468-469)

For four (4) years, Ma. Theresa's use of the water connection in the name of Joyce Ardiente was never questioned nor
perturbed (T.S.N., October 31, 2000, pp. 7-8) until on March 12, 1999, without notice, the water connection of Ma.
Theresa was cut off. Proceeding to the office of the Cagayan de Oro Water District (COWD) to complain, a certain Mrs.
Madjos told Ma. Theresa that she was delinquent for three (3) months corresponding to the months of December 1998,
January 1999, and February 1999. Ma. Theresa argued that the due date of her payment was March 18, 1999 yet (T.S.N.,
October 31, 2000, pp. 11-12). Mrs. Madjos later told her that it was at the instance of Joyce Ardiente that the water line
was cut off (T.S.N., February 5, 2001, p. 31).

On March 15, 1999, Ma. Theresa paid the delinquent bills (T.S.N., October 31, 2000, p. 12). On the same date, through her
lawyer, Ma. Theresa wrote a letter to the COWD to explain who authorized the cutting of the water line (Records, p. 160).

On March 18, 1999, COWD, through the general manager, [respondent] Gaspar Gonzalez, Jr., answered the letter
dated March 15, 1999 and reiterated that it was at the instance of Joyce Ardiente that the water line was cut off
(Records, p. 161).

Aggrieved, on April 14, 1999, Ma. Theresa Pastorfide [and her husband] filed [a] complaint for damages [against
petitioner, COWD and its manager Gaspar Gonzalez] (Records, pp. 2-6).

In the meantime, Ma. Theresa Pastorfide's water line was only restored and reconnected when the [trial] court issued a
writ of preliminary mandatory injunction on December 14, 1999 (Records, p. 237).4

After trial, the RTC rendered judgment holding as follows:

xxxx

In the exercise of their rights and performance of their duties, defendants did not act with justice, gave plaintiffs their due
and observe honesty and good faith. Before disconnecting the water supply, defendants COWD and Engr. Gaspar
Gonzales did not even send a disconnection notice to plaintiffs as testified to by Engr. Bienvenido Batar, in-charge of the
Commercial Department of defendant COWD. There was one though, but only three (3) days after the actual
disconnection on March 12, 1999. The due date for payment was yet on March 15. Clearly, they did not act with justice.
Neither did they observe honesty.

They should not have been swayed by the prodding of Joyce V. Ardiente. They should have investigated first as to the
present ownership of the house. For doing the act because Ardiente told them, they were negligent. Defendant Joyce
Ardiente should have requested before the cutting off of the water supply, plaintiffs to pay. While she attempted to tell
plaintiffs but she did not have the patience of seeing them. She knew that it was plaintiffs who had been using the water
four (4) years ago and not hers. She should have been very careful. x x x5

The dispositive portion of the trial court's Decision reads, thus:

WHEREFORE, premises considered, judgment is hereby rendered ordering defendants [Ardiente, COWD and Gonzalez]
to pay jointly and severally plaintiffs, the following sums:

(a) ₱200,000.00 for moral damages;

(b) 200,000.00 for exemplary damages; and

(c) 50,000.00 for attorney's fee.

The cross-claim of Cagayan de Oro Water District and Engr. Gaspar Gonzales is hereby dismissed. The Court is not
swayed that the cutting off of the water supply of plaintiffs was because they were influenced by defendant Joyce
Ardiente. They were negligent too for which they should be liable.

SO ORDERED.6

Petitioner, COWD and Gonzalez filed an appeal with the CA.

On August 28, 2003, the CA promulgated its assailed Decision disposing as follows:

IN VIEW OF ALL THE FOREGOING, the appealed decision is AFFIRMED, with the modification that the awarded damages
is reduced to ₱100,000.00 each for moral and exemplary damages, while attorney's fees is lowered to ₱25,000.00. Costs
against appellants.

SO ORDERED.7

The CA ruled, with respect to petitioner, that she has a "legal duty to honor the possession and use of water line by Ma.
Theresa Pastorfide pursuant to their Memorandum of Agreement" and "that when [petitioner] applied for its
disconnection, she acted in bad faith causing prejudice and [injury to] Ma. Theresa Pastorfide."8

As to COWD and Gonzalez, the CA held that they "failed to give a notice of disconnection and derelicted in
reconnecting the water line despite payment of the unpaid bills by the [respondent spouses Pastorfide]."9

Petitioner, COWD and Gonzalez filed their respective Motions for Reconsideration, but these were denied by the CA in its
Resolution dated December 17, 2003.

COWD and Gonzalez filed a petition for review on certiorari with this Court, which was docketed as G.R. No. 161802.
However, based on technical grounds and on the finding that the CA did not commit any reversible error in its assailed
Decision, the petition was denied via a Resolution10 issued by this Court on March 24, 2004. COWD and Gonzalez filed a
motion for reconsideration, but the same was denied with finality through this Court's Resolution11 dated June 28, 2004.

Petitioner, on the other hand, timely filed the instant petition with the following Assignment of Errors:

7.1 HONORABLE COURT OF APPEALS (ALTHOUGH IT HAS REDUCED THE LIABILITY INTO HALF) HAS STILL COMMITTED
GRAVE AND SERIOUS ERROR WHEN IT UPHELD THE JOINT AND SOLIDARY LIABILITY OF PETITIONER JOYCE V.
ARDIENTE WITH CAGAYAN DE ORO WATER DISTRICT (COWD) AND ENGR. GASPAR D. GONZALES FOR THE
LATTER'S FAILURE TO SERVE NOTICE UPON RESPONDENTS SPOUSES PASTORFIDE PRIOR TO THE ACTUAL
DISCONNECTION DESPITE EVIDENCE ADDUCED DURING TRIAL THAT EVEN WITHOUT PETITIONER'S REQUEST, COWD
 WAS ALREADY SET TO EFFECT DISCONNECTION OF RESPONDENTS' WATER SUPPLY DUE TO NON-PAYMENT OF
ACCOUNT FOR THREE (3) MONTHS.

7.2 THE HONORABLE COURT OF APPEALS COMMITTED GRAVE AND SERIOUS ERROR WHEN IT RULED TOTALLY
AGAINST PETITIONER AND FAILED TO FIND THAT RESPONDENTS ARE GUILTY OF CONTRIBUTORY NEGLIGENCE
WHEN THEY FAILED TO PAY THEIR WATER BILLS FOR THREE MONTHS AND TO MOVE FOR THE TRANSFER OF THE
COWD ACCOUNT IN THEIR NAME, WHICH WAS A VIOLATION OF THEIR MEMORANDUM OF AGREEMENT WITH
PETITIONER JOYCE V. ARDIENTE. RESPONDENTS LIKEWISE DELIBERATELY FAILED TO EXERCISE DILIGENCE OF A
GOOD FATHER OF THE FAMILY TO MINIMIZE THE DAMAGE UNDER ART. 2203 OF THE NEW CIVIL CODE.

7.3 THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT DISREGARDED THE FACT THAT RESPONDENT
SPOUSES PASTORFIDE ARE LIKEWISE BOUND TO OBSERVE ARTICLE 19 OF THE NEW CIVIL CODE, i.e., IN THE
EXERCISE OF THEIR RIGHTS AND IN THE PERFORMANCE OF THEIR DUTIES TO ACT WITH JUSTICE, GIVE EVERYONE HIS
DUE AND OBSERVE HONESTY AND GOOD FAITH.

7.4 THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT GRANTED AN AWARD OF MORAL AND
EXEMPLARY DAMAGES AND ATTORNEY'S FEES AS AGAINST PETITIONER ARDIENTE.12

At the outset, the Court noticed that COWD and Gonzalez, who were petitioner's co-defendants before the RTC and her
co-appellants in the CA, were impleaded as respondents in the instant petition. This cannot be done. Being her co-
parties before the RTC and the CA, petitioner cannot, in the instant petition for review on certiorari, make COWD and
Gonzalez, adversary parties. It is a grave mistake on the part of petitioner's counsel to treat COWD and Gonzalez as
respondents. There is no basis to do so, considering that, in the first place, there is no showing that petitioner filed a cross-
claim against COWD and Gonzalez. Under Section 2, Rule 9 of the Rules of Court, a cross-claim which is not set up shall
be barred. Thus, for failing to set up a cross-claim against COWD and Gonzalez before the RTC, petitioner is already
barred from doing so in the present petition.

More importantly, as shown above, COWD and Gonzalez's petition for review on certiorari filed with this Court was
already denied with finality on June 28, 2004, making the presently assailed CA Decision final and executory insofar as
COWD and Gonzalez are concerned. Thus, COWD and Gonzalez are already precluded from participating in the
present petition. They cannot resurrect their lost cause by filing pleadings this time as respondents but, nonetheless,
reiterating the same prayer in their previous pleadings filed with the RTC and the CA.

As to the merits of the instant petition, the Court likewise noticed that the main issues raised by petitioner are factual and
it is settled that the resolution of factual issues is the function of lower courts, whose findings on these matters are
received with respect and considered binding by the Supreme Court subject only to certain exceptions, none of which is
present in this instant petition.13 This is especially true when the findings of the RTC have been affirmed by the CA as in this
case.14

In any case, a perusal of the records at hand would readily show that the instant petition lacks merit.

Petitioner insists that she should not be held liable for the disconnection of respondent spouses' water supply, because
she had no participation in the actual disconnection. However, she admitted in the present petition that it was she who
requested COWD to disconnect the Spouses Pastorfide's water supply. This was confirmed by COWD and Gonzalez in
their cross-claim against petitioner. While it was COWD which actually discontinued respondent spouses' water supply, it
cannot be denied that it was through the instance of petitioner that the Spouses Pastorfide's water supply was
disconnected in the first place.

It is true that it is within petitioner's right to ask and even require the Spouses Pastorfide to cause the transfer of the
former's account with COWD to the latter's name pursuant to their Memorandum of Agreement. However, the remedy
to enforce such right is not to cause the disconnection of the respondent spouses' water supply. The exercise of a right
must be in accordance with the purpose for which it was established and must not be excessive or unduly harsh; there
must be no intention to harm another.15 Otherwise, liability for damages to the injured party will attach.16 In the present
case, intention to harm was evident on the part of petitioner when she requested for the disconnection of respondent
spouses’ water supply without warning or informing the latter of such request. Petitioner claims that her request for
disconnection was based on the advise of COWD personnel and that her intention was just to compel the Spouses
Pastorfide to comply with their agreement that petitioner's account with COWD be transferred in respondent spouses'
name. If such was petitioner's only intention, then she should have advised respondent spouses before or immediately
after submitting her request for disconnection, telling them that her request was simply to force them to comply with their
obligation under their Memorandum of Agreement. But she did not. What made matters worse is the fact that COWD
undertook the disconnection also without prior notice and even failed to reconnect the Spouses Pastorfide’s water
supply despite payment of their arrears. There was clearly an abuse of right on the part of petitioner, COWD and
Gonzalez. They are guilty of bad faith.

The principle of abuse of rights as enshrined in Article 19 of the Civil Code provides that every person must, in the
exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty
and good faith.

In this regard, the Court's ruling in Yuchengco v. The Manila Chronicle Publishing Corporation17 is instructive, to wit:

xxxx

This provision of law sets standards which must be observed in the exercise of one’s rights as well as in the performance
of its duties, to wit: to act with justice; give everyone his due; and observe honesty and good faith.

In Globe Mackay Cable and Radio Corporation v. Court of Appeals, it was elucidated that while Article 19 "lays down a
rule of conduct for the government of human relations and for the maintenance of social order, it does not provide a
remedy for its violation. Generally, an action for damages under either Article 20 or Article 21 would be proper." The
Court said:

One of the more notable innovations of the New Civil Code is the codification of "some basic principles that are to be
observed for the rightful relationship between human beings and for the stability of the social order." [REPORT ON THE
CODE COMMISSION ON THE PROPOSED CIVIL CODE OF THE PHILIPPINES, p. 39]. The framers of the Code, seeking to
remedy the defect of the old Code which merely stated the effects of the law, but failed to draw out its spirit,
incorporated certain fundamental precepts which were "designed to indicate certain norms that spring from the
fountain of good conscience" and which were also meant to serve as "guides for human conduct [that] should run as
golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance
of justice." (Id.) Foremost among these principles is that pronounced in Article 19 x x x.

xxxx

This article, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards
which must be observed not only in the exercise of one's rights, but also in the performance of one's duties. These
standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The
law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the norms of human conduct set forth
in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may
nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with
the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be held responsible. But while Article 19 lays down a rule of conduct for the government of human
relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally, an action for
damages under either Article 20 or Article 21 would be proper.

Corollarilly, Article 20 provides that "every person who, contrary to law, willfully or negligently causes damage to another
shall indemnify the latter for the same." It speaks of the general sanctions of all other provisions of law which do not
especially provide for its own sanction. When a right is exercised in a manner which does not conform to the standards
set forth in the said provision and results in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be responsible. Thus, if the provision does not provide a remedy for its violation, an action for damages
under either Article 20 or Article 21 of the Civil Code would be proper.

The question of whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or
other applicable provision of law, depends on the circumstances of each case. x x x18

To recapitulate, petitioner's acts which violated the abovementioned provisions of law is her unjustifiable act of having
the respondent spouses' water supply disconnected, coupled with her failure to warn or at least notify respondent
spouses of such intention. On the part of COWD and Gonzalez, it is their failure to give prior notice of the impending
disconnection and their subsequent neglect to reconnect respondent spouses' water supply despite the latter's
settlement of their delinquent account.

On the basis of the foregoing, the Court finds no cogent reason to depart from the ruling of both the RTC and the CA
that petitioner, COWD and Gonzalez are solidarily liable.
The Spouses Pastorfide are entitled to moral damages based on the provisions of Article 2219,19 in connection with
Articles 2020 and 2121 of the Civil Code.

As for exemplary damages, Article 2229 provides that exemplary damages may be imposed by way of example or
correction for the public good. Nonetheless, exemplary damages are imposed not to enrich one party or impoverish
another, but to serve as a deterrent against or as a negative incentive to curb socially deleterious actions.22 In the instant
case, the Court agrees with the CA in sustaining the award of exemplary damages, although it reduced the amount
granted, considering that respondent spouses were deprived of their water supply for more than nine (9) months, and
such deprivation would have continued were it not for the relief granted by the RTC.

With respect to the award of attorney's fees, Article 2208 of the Civil Code provides, among others, that such fees may
be recovered when exemplary damages are awarded, when the defendant's act or omission has compelled the
plaintiff to litigate with third persons or to incur expenses to protect his interest, and where the defendant acted in gross
and evident bad faith in refusing to satisfy the plaintiffs’ plainly valid, just and demandable claim.

WHEREFORE, instant petition for review on certiorari is DENIED. The Decision and Resolution of the Court of Appeals,
dated August 28, 2003 and December 17, 2003, respectively, in CA-G.R. CV No. 73000 are AFFIRMED.

SO ORDERED.

Velasco, Jr., (Chairperson), Abad, Mendoza, and Leonen, JJ., concur.

July 24, 2013

N O T I C E OF J U D G M E N T

Sirs/Mesdames:

Please take notice that on ___July 17, 2013___ a Decision, copy attached herewith, was rendered by the Supreme Court
in the above-entitled case, the original of which was received by this Office on July 19, 2013 at 2:25 p.m.

Very truly yours,

(SGD)
LUCITA ABJELINA SORIANO
Division Clerk of Court

Footnotes

* Spelled as Gonzales in other parts of the rollo and records.

1 Penned by Associate Justice Conrado M. Vasquez, Jr., with Associate Justices Edgardo P. Cruz and Noel G.
Tijam, concurring; rollo, pp. 60-67.

2 Id. at 68.

3 Penned by Judge Leonardo N. Demecillo, id. at 27-37.

4 Rollo, pp. 60-62.

5 Id. at 35-36.

6 Id. at 37.
 7 Id. at 67. (Emphasis in the original)

8 Id. at 65.

9 Id. at 64.

10 Id. at 219.

11 Id. at 220.

12 Id. at 14.

13 Philippine National Bank v. DKS International, Inc., G.R. No. 179161, January 22, 2010, 610 SCRA 603, 621.

14 Id.

15 Uypitching v. Quiamco, G.R. No. 146322, December 6, 2006, 510 SCRA 172, 179.

16 Id.

17 G.R. No. 184315, November 28, 2011, 661 SCRA 392.

18 Id. at 402-404. (Emphasis supplied)

19 Art. 2219. Moral damages may be recovered in the following and analogous cases:

xxxx

(10) Acts and actions referred to in Articles 21, 26, 27, 28. 29, 30, 32, 34 and 35.

xxxx

20Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the
latter for the same.

21Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.

22 Yuchengco v. The Manila Chronicle Publishing Corporation, supra note 17, at 405.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-53642 April 15, 1988

LEONILO C. DONATO, petitioners,

vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF MANIIA, BRANCH XXXII HON. JOSE
FLAMINIANO, CITY FISCAL OF MANILA; PAZ B. ABAYAN, respondents.
Leopoldo P. Dela Rosa for petitioner.

Emiterio C. Manibog for private respondent.

City Fiscal of Manila for public respondent.

GANCAYCO, J.:

In this petition for certiorari and prohibition with preliminary injunction, the question for the resolution of the Court is
whether or not a criminal case for bigamy pending before the Court of First Itance of Manila should be suspended in
view of a civil case for annulment of marriage pending before the Juvenile and Domestic Relations Court on the ground
that the latter constitutes a prejudicial question. The respondent judge ruled in the negative. We sustain him.

The pertinent facts as set forth in the records follow. On January 23, 1979, the City Fiscal of Manila acting thru Assistant
City Fiscal Amado N. Cantor filed an information for bigamy against herein petitioner, Leonilo C. Donato with the Court
of First Instance of Manila, docketed as Criminal Case No. 43554 and assigned to Branch XXXII of said court. The
information was filed based on the complaint of private respondent Paz B. Abayan.

On September 28, 1979, before the petitioner's arraignment, private respondent filed with the Juvenile and Domestic
Relations Court of Manila a civil action for declaration of nullity of her marriage with petitioner contracted on September
26, 1978, which action was docketed as Civil Case No. E-02627. Said civil case was based on the ground that private
respondent consented to entering into the marriage, which was petitioner Donato's second one, since she had no
previous knowledge that petitioner was already married to a certain Rosalinda R. Maluping on June 30, 1978. Petitioner
Donato's answer in the civil case for nullity interposed the defense that his second marriage was void since it was
solemnized without a marriage license and that force, violence, intimidation and undue influence were employed by
private respondent to obtain petitioner's consent to the marriage. Prior to the solemnization of the subsequent or second
marriage, petitioner and private respondent had lived together and deported themselves as husband and wife without
the benefit of wedlock for a period of at least five years as evidenced by a joint affidavit executed by them on
September 26, 1978, for which reason, the requisite marriage license was dispensed with pursuant to Article 76 of the
New Civil Code pertaining to marriages of exceptional character.

Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed a motion to suspend the
proceedings of said case contending that Civil Case No. E-02627 seeking the annulment of his second marriage filed by
private respondent raises a prejudicial question which must first be determined or decided before the criminal case can
proceed.

In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the proceedings in Criminal Case
No. 43554 for bigamy. Respondent judge's basis for denial is the ruling laid down in the case of Landicho vs. Relova. 1 The
order further directed that the proceedings in the criminal case can proceed as scheduled.

A motion for reconsideration was flied by herein petitioner thru counsel citing as one of his grounds for suspension of
proceedings the ruling laid down by this Court in the case of De la Cruz vs. Ejercito 2 which was a much later case than
that cited by respondent judge in his order of denial.

The motion for reconsideration of the said order was likewise denied in an order dated April 14, 1980, for lack of merit.
Hence, the present petition for certiorari and prohibition with preliminary injunction.

A prejudicial question has been defined to be one which arises in a case, the resolution of which question is a logical
antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal.3 It is one based
on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the
issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. 4A
prejudicial question usually comes into play in a situation where a civil action and a criminal action may proceed,
because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or
innocence of the accused in a criminal case.5
The requisites of a prejudicial question do not obtain in the case at bar. It must be noted that the issue before the
Juvenile and Domestic Relations Court touching upon the nullity of the second marriage is not determinative of
petitioner Donato's guilt or innocence in the crime of bigamy. Furthermore, it was petitioner's second wife, the herein
private respondent Paz B. Abayan who filed the complaint for annulment of the second marriage on the ground that her
consent was obtained through deceit.

Petitioner Donato raised the argument that the second marriage should have been declared null and void on the
ground of force, threats and intimidation allegedly employed against him by private respondent only sometime later
when he was required to answer the civil action for anulment of the second marriage. The doctrine elucidated upon by
the case of Landicho vs. Relova 6 may be applied to the present case. Said case states that:

The mere fact that there are actions to annul the marriages entered into by the accused in a bigamy
case does not mean that "prejudicial questions" are automatically raised in civil actions as to warrant
the suspension of the case. In order that the case of annulment of marriage be considered a
prejudicial question to the bigamy case against the accused, it must be shown that the petitioner's
consent to such marriage must be the one that was obtained by means of duress, force and
intimidation to show that his act in the second marriage must be involuntary and cannot be the basis
of his conviction for the crime of bigamy. The situation in the present case is markedly different. At the
time the petitioner was indicted for bigamy on February 27, 1963, the fact that two marriage
ceremonies had been contracted appeared to be indisputable. And it was the second spouse, not
the petitioner who filed the action for nullity on the ground of force, threats and intimidation. And it
was only on June 15, 1963, that petitioner, as defendant in the civil action, filed a third-party
complaint against the first spouse alleging that his marriage with her should be declared null and void
on the ground of force, threats and intimidation. Assuming that the first marriage was null and void on
the ground alleged by petitioner, the fact would not be material to the outcome of the case. Parties
to the marriage should not be permitted to judge for themselves its nullity, for the same must be
submitted to the judgment of the competent courts and only when the nullity of the marriage is so
declared can it be held as void, and so long as there is no such declaration the presumption is that
the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of
nullity of the first marriage assumes the risk of being prosecuted for bigamy. The lower court therefore,
has not abused much less gravely abused, its discretion in failing to suspend the hearing as sought by
petitioner.

In the case at bar, petitioner has not even sufficiently shown that his consent to the second marriage has been obtained
by the use of threats, force and intimidation.

Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is a later case and as such it
should be the one applied to the case at bar. We cannot agree. The situation in the case at bar is markedly different. In
the aforecited case it was accused Milagros dela Cruz who was charged with bigamy for having contracted a second
marriage while a previous one existed. Likewise, Milagros dela Cruz was also the one who filed an action for annulment
on the ground of duress, as contra-distinguished from the present case wherein it was private respondent Paz B. Abayan,
petitioner's second wife, who filed a complaint for annulment of the second marriage on the ground that her consent
was obtained through deceit since she was not aware that petitioner's marriage was still subsisting. Moreover, in De la
Cruz, a judgment was already rendered in the civil case that the second marriage of De la Cruz was null and void, thus
determinative of the guilt or innocence of the accused in the criminal case. In the present case, there is as yet no such
judgment in the civil case.

Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot apply the rule on prejudicial
questions since a case for annulment of marriage can be considered as a prejudicial question to the bigamy case
against the accused only if it is proved that the petitioner's consent to such marriage was obtained by means of duress,
violence and intimidation in order to establish that his act in the subsequent marriage was an involuntary one and as
such the same cannot be the basis for conviction. The preceding elements do not exist in the case at bar.

Obviously, petitioner merely raised the issue of prejudicial question to evade the prosecution of the criminal case. The
records reveal that prior to petitioner's second marriage on September 26, 1978, he had been living with private
respondent Paz B. Abayan as husband and wife for more than five years without the benefit of marriage. Thus,
petitioner's averments that his consent was obtained by private respondent through force, violence, intimidation and
undue influence in entering a subsequent marriage is belled by the fact that both petitioner and private respondent
executed an affidavit which stated that they had lived together as husband and wife without benefit of marriage for
five years, one month and one day until their marital union was formally ratified by the second marriage and that it was
private respondent who eventually filed the civil action for nullity.
Another event which militates against petitioner's contentions is the fact hat it was only when Civil Case No. E-02627 was
filed on September 28, 1979, or more than the lapse of one year from the solemnization of the second marriage that
petitioner came up with the story that his consent to the marriage was secured through the use of force, violence,
intimidation and undue influence. Petitioner also continued to live with private respondent until November 1978, when
the latter left their abode upon learning that Leonilo Donato was already previously married.

In the light of the preceding factual circumstances, it can be seen that the respondent Judge did not err in his earlier
order. There is no pivotal issue that must be pre-emptively resolved in Civil Case No. E-02627 before proceedings in the
criminal action for bigamy can be undertaken.

Accordingly, there being no prejudicial question shown to exit the order of denial issued by the respondent judge dated
April 14, 1980 should be sustained.

WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of merit. We make no
pronouncement as to costs.

SO ORDERED.

Teehankee, C.J., Narvasa, Cruz and Griño-Aquino, JJ., concur.

Footnotes

1 22 SCRA 731.

2 68 SCRA 1.

3 People va. Aragon, 94 Phil. 357; Isip vs. Gonzales, 39 SCRA 255; Rojas vs. People, 57 SCRA 243.

4 Libra va. Coscolluela, Jr., 116 SCRA 303.

5 Ibid.

6 22 SCRA 73.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-22579 February 23, 1968

ROLANDO LANDICHO, petitioner,

vs.
HON. LORENZO RELOVA, in his capacity as Judge of the Court of First Instance of Batangas, Branch I, and PEOPLE OF THE
PHILIPPINES, respondents.

Jose W. Diokno for petitioner.

Office of the Solicitor General for respondents.

FERNANDO, J.:
 In this petition for certiorari and prohibition with preliminary injunction, the question before the Court is whether or
not the existence of a civil suit for the annulment of marriage at the instance of the second wife against petitioner, with
the latter in turn filing a third party complaint against the first spouse for the annulment of the first marriage, constitutes a
prejudicial question in a pending suit for bigamy against him. Respondent, Judge Relova answered in the negative. We
sustain him.

The pertinent facts as set forth in the petition follow. On February 27, 1963, petitioner was charged before the Court
of First Instance of Batangas, Branch I, presided over by respondent Judge, with the offense, of bigamy. It was alleged in
the information that petitioner "being then lawfully married to Elvira Makatangay, which marriage has not been legally
dissolved, did then and there wilfully, unlawfully and feloniously contract a second marriage with Fe Lourdes Pasia." On
March 15, 1963, an action was filed before the Court of First Instance ofBatangas, likewise presided plaintiff respondent
Judge Fe Lourdes Pasia, seeking to declare her marriage to petitioner as null and void ab initio because of the alleged
use of force, threats and intimidation allegedly employed by petitioner and because of its allegedly bigamous
character. On June 15, 1963, petitioner as defendant in said case, filed a third-party complaint, against the third-party
defendant Elvira Makatangay, the first spouse, praying that his marriage with the said third-party defendant be declared
null and void, on the ground that by means of threats, force and intimidation, she compelled him to appear and
contract marriage with her before the Justice of the Peace of Makati, Rizal.

Thereafter, on October 7, 1963, petitioner moved to suspend the hearing of the criminal case pending the decision
on the question of the validity of the two marriages involved in the pending civil suit. Respondent Judge on November
19, 1963 denied the motion for lack of merit. Then came a motion for reconsideration to set aside the above order,
which was likewise denied on March 2, 1964. Hence this petition, filed on March 13, 1964.

In a resolution of this Court of March 17, 1964, respondent Judge was required to answer within ten (10) days, with
a preliminary injunction being issued to restrain him from further proceeding with the prosecution of the bigamy case. In
the meanwhile, before the answer was filed there was an amended petition for certiorari, the amendment consisting
solely in the inclusion of the People of the Philippines as another respondent. This Court admitted such amended petition
in a resolution of April 3, 1964.

Then came the answer to the amended petition on May 14 of that year where the statement of facts as above
detailed was admitted, with the qualifications that the bigamy charge was filed upon the complaint of the first spouse
Elvira Makatangay. It alleged as one of its special and affirmative defenses that the mere fact that "there are actions to
annul the marriages entered into by the accused in a bigamy case does not mean that 'prejudicial questions are
automatically raised in said civil actions as to warrant the suspension of the criminal case for bigamy." 1 The answer
stressed that even on the assumption that the first marriage was null and void on the ground alleged by petitioner, the
fact would not be material to the outcome of the criminal case. It continued, referring to Viada, that "parties to the
marriage should not be permitted to judge for themselves its nullity, for this must be submitted to the judgment of
competent courts and only when the nullity of a marriage is so declared can it be held as void, and so long as there is
no such declaration the presumption is that the marriage exists. Therefore, according to Viada, he who contracts a
second marriage before the judicial declaration of nullity of the first marriage incurs the penalty provided for in this
Article. . . ." 2

This defense is in accordance with the principle implicit in authoritative decisions of this Court. In Merced v.
Diez, 3 what was in issue was the validity of the second marriage, "which must be determined before hand in the civil
action before the criminal action can proceed." According to the opinion of Justice Labrador: "We have a situation
where the issue of the validity of the second marriage can be determined or must first be determined in the civil action
before the criminal action for bigamy can be prosecuted. The question of the validity of the second marriage is,
therefore, a prejudicial question because determination of the validity of the second marriage is determinable in the civil
action and must precede the criminal action for bigamy." It was the conclusion of this Court then that for petitioner
Merced to be found guilty of bigamy, the second marriage which he contracted "must first be declared valid." Its validity
having been questioned in the civil action, there must be a decision in such a case "before the prosecution for bigamy
can proceed."

To the same effect is the doctrine announced in Zapanta v. Mendoza. 4 As explained in the opinion of Justice
Dizon: "We have heretofore defined a prejudicial question as that which arises in a case, the resolution of which is a
logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. . . . The
prejudicial question — we further said — must be determinative of the case before the court, and jurisdiction to try the
same must be lodged in another court. . . . These requisites are present in the case at bar. Should the question for
annulment of the second marriage pending in the Court of First Instance of Pampanga prosper on the ground that,
according to the evidence, petitioner's consent thereto was obtained by means of duress, force and intimidation, it is
obvious that his act was involuntary and can not be the basis of his conviction for the crime of bigamy with which he
was charged in the Court of First Instance of Bulacan. Thus the issue involved in the action for the annulment of the
second marriage is determinative of petitioner's guilt or innocence of the crime of bigamy. . . ."
 The situation in this case is markedly different. At the time the petitioner was indicted for bigamy on February 27,
1963, the fact that two marriage ceremonies had been contracted appeared to be indisputable. Then on March 15,
1963, it was the second spouse, not petitioner who filed an action for nullity on the ground of force, threats and
intimidation. It was sometime later, on June 15, 1963, to be precise, when petitioner, as defendant in the civil action, filed
a third-party complaint against the first spouse alleging that his marriage with her should be declared null and void on
the ground of force, threats and intimidation. As was correctly stressed in the answer of respondent Judge relying on
Viada, parties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having
such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who
contracts a second marriage then assumes the risk of being prosecuted for bigamy.

Such was the situation of petitioner. There is no occasion to indulge in the probability that the third-party complaint
against the first wife brought almost five months after the prosecution for bigamy was started could have been inspired
by the thought that he could thus give color to a defense based on an alleged prejudicial question. The above judicial
decisions as well as the opinion of Viada preclude a finding that respondent Judge abused, much less gravely abused,
his discretion in failing to suspend the hearing as sought by petitioner.

WHEREFORE, the petition for certiorari is denied and the writ of preliminary injunction issued dissolved. With
costs.1äwphï1.ñët

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.

Footnotes

1Special and Affirmative Defenses, Answer, par. 1.

2Idem, citing 3 Viada, Penal Code, p. 275.

3L-15315, August 26, 1960.

4L-14534, February 28, 1962.

United States Supreme Court

ROE v. WADE(1973)
No. 70-18
Argued: December 13, 1971 Decided: January 22, 1973
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion
laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the
mother's life. A licensed physician (Hallford), who had two state abortion prosecutions pending against him, was
permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the
laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for
parenthood, and impairment of the wife's health. A three-judge District Court, which consolidated the actions, held that
Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. Ruling that
declaratory, though not injunctive, relief was warranted, the court declared the abortion statutes void as vague and
overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does' complaint not
justiciable. Appellants directly appealed to this Court on the injunctive rulings, and appellee cross-appealed from the
District Court's grant of declaratory relief to Roe and Hallford. Held:

1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the grant or denial of declaratory relief alone,
review is not foreclosed when the case is properly before the Court on appeal from specific denial of injunctive relief
and the arguments as to both injunctive and declaratory relief are necessarily identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did not moot her suit. Litigation
involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that
an actual controversy [410 U.S. 113, 114] must exist at review stages and not simply when the action is initiated. Pp. 124-
125.
(b) The District Court correctly refused injunctive, but erred in granting declaratory, relief to Hallford, who alleged no
federally protected right not assertable as a defense against the good-faith state prosecutions pending against him.
Samuels v. Mackell, 401 U.S. 66 . Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of which may not occur, is too speculative to
present an actual case or controversy. Pp. 127-129.
3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the
mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process
Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's
qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in
protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and
reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be
left to the medical judgment of the pregnant woman's attending physician. Pp. 163, 164.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the
health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to
maternal health. Pp. 163, 164.
(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it
chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother. Pp. 163-164; 164-165.
4. The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe
any abortion by a person who is not a physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue since the Texas authorities will doubtless fully recognize the Court's
ruling [410 U.S. 113, 115] that the Texas criminal abortion statutes are unconstitutional. P. 166.
314 F. Supp. 1217, affirmed in part and reversed in part.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, BRENNAN, STEWART,
MARSHALL, and POWELL, JJ., joined. BURGER, C. J., post, p. 207, DOUGLAS, J., post, p. 209, and STEWART, J., post, p. 167,
filed concurring opinions. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 221. REHNQUIST, J.,
filed a dissenting opinion, post, p. 171.

Sarah Weddington reargued the cause for appellants. With her on the briefs were Roy Lucas, Fred Bruner, Roy L. Merrill,
Jr., and Norman Dorsen.

Robert C. Flowers, Assistant Attorney General of Texas, argued the cause for appellee on the reargument. Jay Floyd,
Assistant Attorney General, argued the cause for appellee on the original argument. With them on the brief were
Crawford C. Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred Walker, Executive Assistant
Attorney General, Henry Wade, and John B. Tolle. * [410 U.S. 113, 116]

[ Footnote * ] Briefs of amici curiae were filed by Gary K. Nelson, Attorney General of Arizona, Robert K. Killian, Attorney
General of Connecticut, Ed W. Hancock, Attorney General of Kentucky, Clarence A. H. Meyer, Attorney General of
Nebraska, and Vernon B. Romney, Attorney General of Utah; by Joseph P. Witherspoon, Jr., for the Association of Texas
Diocesan Attorneys; by Charles E. Rice for Americans United for Life; by Eugene J. McMahon for Women for the Unborn
et al.; by Carol Ryan for the American College of Obstetricians and Gynecologists et al.; by Dennis J. Horan, Jerome A.
Frazel, Jr., Thomas M. Crisham, and Dolores V. Horan for Certain Physicians, Professors and Fellows of the American
College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. Wechsler, and Frederic S. Nathan for Planned
Parenthood Federation of America, Inc., et al.; by Alan F. Charles for the National Legal Program on Health Problems of
the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by [410 U.S. 113, 116] Alfred L. Scanlan, Martin J.
Flynn, and Robert M. Byrn for the National Right to Life Committee; by Helen L. Buttenwieser for the American Ethical
Union et al.; by Norma G. Zarky for the American Association of University Women et al.; by Nancy Stearns for New
Women Lawyers et al.; by the California Committee to Legalize Abortion et al.; and by Robert E. Dunne for Robert L.
Sassone.

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to
state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in
many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative
product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical
knowledge and techniques, and of new thinking about an old issue.

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the
vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject
inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious
training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to
observe, are all likely to influence and to color one's thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the
problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek
earnestly to do this, and, because we do, we [410 U.S. 113, 117] have inquired into, and in this opinion place some
emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the
abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated
dissent in Lochner v. New York, 198 U.S. 45, 76 (1905):

"[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions
natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether
statutes embodying them conflict with the Constitution of the United States."
I
The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. 1 These make it a crime
to "procure an abortion," as therein [410 U.S. 113, 118] defined, or to attempt one, except with respect to "an abortion
procured or attempted by medical advice for the purpose of saving the life of the mother." Similar statutes are in
existence in a majority of the States. 2 [410 U.S. 113, 119]

Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, 1, set forth in 3 H. Gammel, Laws of Texas
1502 (1898). This was soon modified into language that has remained substantially unchanged to the present time. See
Texas Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197 (1866); Texas Rev. Stat., c. 8, Arts.
536-541 (1879); Texas Rev. Crim. Stat., Arts. 1071-1076 (1911). The final article in each of these compilations provided the
same exception, as does the present Article 1196, for an abortion by "medical advice for the purpose of saving the life of
the mother." 3 [410 U.S. 113, 120]

II
Jane Roe, 4 a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against
the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were
unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.

Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion
"performed by a competent, licensed physician, under safe, clinical conditions"; that she was unable to get a "legal"
abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she
could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed
that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by
the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint Roe purported to sue "on
behalf of herself and all other women" similarly situated.

James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint
he alleged that he had been arrested previously for violations of the Texas abortion statutes and [410 U.S. 113, 121] that
two such prosecutions were pending against him. He described conditions of patients who came to him seeking
abortions, and he claimed that for many cases he, as a physician, was unable to determine whether they fell within or
outside the exception recognized by Article 1196. He alleged that, as a consequence, the statutes were vague and
uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients' rights to privacy in
the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments.

John and Mary Doe, 5 a married couple, filed a companion complaint to that of Roe. They also named the District
Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does
alleged that they were a childless couple; that Mrs. Doe was suffering from a "neural-chemical" disorder; that her
physician had "advised her to avoid pregnancy until such time as her condition has materially improved" (although a
pregnancy at the present time would not present "a serious risk" to her life); that, pursuant to medical advice, she had
discontinued use of birth control pills; and that if she should become pregnant, she would want to terminate the
pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an
amendment to their complaint, the Does purported to sue "on behalf of themselves and all couples similarly situated."

The two actions were consolidated and heard together by a duly convened three-judge district court. The suits thus
presented the situations of the pregnant single woman, the childless couple, with the wife not pregnant, [410 U.S. 113,
122] and the licensed practicing physician, all joining in the attack on the Texas criminal abortion statutes. Upon the
filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of
her class, and Dr. Hallford, had standing to sue and presented justiciable controversies, but that the Does had failed to
allege facts sufficient to state a present controversy and did not have standing. It concluded that, with respect to the
requests for a declaratory judgment, abstention was not warranted. On the merits, the District Court held that the
"fundamental right of single women and married persons to choose whether to have children is protected by the Ninth
Amendment, through the Fourteenth Amendment," and that the Texas criminal abortion statutes were void on their face
because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs' Ninth
Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It
therefore dismissed the Does' complaint, declared the abortion statutes void, and dismissed the application for
injunctive relief. 314 F. Supp. 1217, 1225 (ND Tex. 1970).

The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. 1253, have appealed to this Court from that
part of the District Court's judgment denying the injunction. The defendant District Attorney has purported to cross-
appeal, pursuant to the same statute, from the court's grant of declaratory relief to Roe and Hallford. Both sides also
have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals
held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S.
941 (1971). [410 U.S. 113, 123]

III
It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari
before judgment in the Court of Appeals with respect to the granting of the plaintiffs' prayer for declaratory relief. Our
decisions in Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn v. University Committee, 399 U.S. 383 (1970), are to the
effect that 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We
conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory
aspects of a case of this kind when it is properly here, as this one is, on appeal under 1253 from specific denial of
injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320
(1970); Florida Lime Growers v. Jacobsen, 362 U.S. 73, 80 -81 (1960). It would be destructive of time and energy for all
concerned were we to rule otherwise. Cf. Doe v. Bolton, post, p. 179.

IV
We are next confronted with issues of justiciability, standing, and abstention. Have Roe and the Does established that
"personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204 (1962), that insures that "the dispute
sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of
judicial resolution," Flast v. Cohen, 392 U.S. 83, 101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732 (1972)? And what
effect did the pendency of criminal abortion charges against Dr. Hallford in state court have upon the propriety of the
federal court's granting relief to him as a plaintiff-intervenor? [410 U.S. 113, 124]

A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her
case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March
1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain
a legal abortion in Texas.

Viewing Roe's case as of the time of its filing and thereafter until as late as May, there can be little dispute that it then
presented a case or controversy and that, wholly apart from the class aspects, she, as a pregnant single woman
thwarted by the Texas criminal abortion laws, had standing to challenge those statutes. Abele v. Markle, 452 F.2d 1121,
1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839 (CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991
(Kan. 1972). See Truax v. Raich, 239 U.S. 33 (1915). Indeed, we do not read the appellee's brief as really asserting anything
to the contrary. The "logical nexus between the status asserted and the claim sought to be adjudicated," Flast v. Cohen,
392 U.S., at 102 , and the necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103 (1969), are both present.

The appellee notes, however, that the record does not disclose that Roe was pregnant at the time of the District Court
hearing on May 22, 1970, 6 or on the following June 17 when the court's opinion and judgment were filed. And he
suggests that Roe's case must now be moot because she and all other members of her class are no longer subject to
any 1970 pregnancy. [410 U.S. 113, 125]

The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not
simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Golden v. Zwickler, supra;
SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972).

But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short
that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case
moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively
denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the
general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion
of nonmootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219
U.S. 498, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175, 178 -179 (1968);
United States v. W. T. Grant Co., 345 U.S. 629, 632 -633 (1953).

We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a
justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a plaintiff-intervenor, alleging in his
complaint that he:

"[I]n the past has been arrested for violating the Texas Abortion Laws and at the present time stands charged by
indictment with violating said laws in the Criminal District Court of Dallas County, Texas to-wit: (1) The State of Texas
vs. [410 U.S. 113, 126] James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs. James H. Hallford, No. C-69-
2524-H. In both cases the defendant is charged with abortion . . . ."
In his application for leave to intervene, the doctor made like representations as to the abortion charges pending in the
state court. These representations were also repeated in the affidavit he executed and filed in support of his motion for
summary judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory and injunctive relief with respect to the
same statutes under which he stands charged in criminal prosecutions simultaneously pending in state court. Although
he stated that he has been arrested in the past for violating the State's abortion laws, he makes no allegation of any
substantial and immediate threat to any federally protected right that cannot be asserted in his defense against the
state prosecutions. Neither is there any allegation of harassment or bad-faith prosecution. In order to escape the rule
articulated in the cases cited in the next paragraph of this opinion that, absent harassment and bad faith, a defendant
in a pending state criminal case cannot affirmatively challenge in federal court the statutes under which the State is
prosecuting him, Dr. Hallford seeks to distinguish his status as a present state defendant from his status as a "potential
future defendant" and to assert only the latter for standing purposes here.

We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S. 66 (1971), compels the conclusion that the
District Court erred when it granted declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of
course, was correct in refusing to grant injunctive relief to the doctor. The reasons supportive of that action, however, are
those expressed in Samuels v. Mackell, supra, and in Younger v. [410 U.S. 113, 127] Harris, 401 U.S. 37 (1971); Boyle v.
Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); and Byrne v. Karalexis, 401 U.S. 216 (1971). See also
Dombrowski v. Pfister, 380 U.S. 479 (1965). We note, in passing, that Younger and its companion cases were decided after
the three-judge District Court decision in this case.

Dr. Hallford's complaint in intervention, therefore, is to be dismissed. 7 He is remitted to his defenses in the state criminal
proceedings against him. We reverse the judgment of the District Court insofar as it granted Dr. Hallford relief and failed
to dismiss his complaint in intervention.

C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the Does' standing in their case has little
significance. The claims they assert are essentially the same as those of Roe, and they attack the same statutes.
Nevertheless, we briefly note the Does' posture.

Their pleadings present them as a childless married couple, the woman not being pregnant, who have no desire to have
children at this time because of their having received medical advice that Mrs. Doe should avoid pregnancy, and for
"other highly personal reasons." But they "fear . . . they may face the prospect of becoming [410 U.S. 113, 128] parents."
And if pregnancy ensues, they "would want to terminate" it by an abortion. They assert an inability to obtain an abortion
legally in Texas and, consequently, the prospect of obtaining an illegal abortion there or of going outside Texas to some
place where the procedure could be obtained legally and competently.

We thus have as plaintiffs a married couple who have, as their asserted immediate and present injury, only an alleged
"detrimental effect upon [their] marital happiness" because they are forced to "the choice of refraining from normal
sexual relations or of endangering Mary Doe's health through a possible pregnancy." Their claim is that sometime in the
future Mrs. Doe might become pregnant because of possible failure of contraceptive measures, and at that time in the
future she might want an abortion that might then be illegal under the Texas statutes.

This very phrasing of the Does' position reveals its speculative character. Their alleged injury rests on possible future
contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future
impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the
Does' estimation, these possibilities might have some real or imagined impact upon their marital happiness. But we are
not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy.
Younger v. Harris, 401 U.S., at 41 -42; Golden v. Zwickler, 394 U.S., at 109 -110; Abele v. Markle, 452 F.2d, at 1124-1125;
Crossen v. Breckenridge, 446 F.2d, at 839. The Does' claim falls far short of those resolved otherwise in the cases that the
Does urge upon us, namely, Investment Co. Institute v. Camp, 401 U.S. 617 (1971); Data Processing Service v. Camp, 397
U.S. 150 (1970); [410 U.S. 113, 129] and Epperson v. Arkansas, 393 U.S. 97 (1968). See also Truax v. Raich, 239 U.S. 33
(1915).

The Does therefore are not appropriate plaintiffs in this litigation. Their complaint was properly dismissed by the District
Court, and we affirm that dismissal.

V
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed
by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of
personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and
sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965);
Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in result); or among those rights reserved to the
people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486 (Goldberg, J., concurring). Before addressing
this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history
may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.

VI
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today
are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy
except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin.
Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century. [410 U.S. 113,
130]

1. Ancient attitudes. These are not capable of precise determination. We are told that at the time of the Persian Empire
abortifacients were known and that criminal abortions were severely punished. 8 We are also told, however, that
abortion was practiced in Greek times as well as in the Roman Era, 9 and that "it was resorted to without scruple." 10 The
Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally
opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he
resorted to abortion when, upon this standard, he felt the procedure advisable. 11 Greek and Roman law afforded little
protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a
violation of the father's right to his offspring. Ancient religion did not bar abortion. 12

2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical
profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described [410 U.S. 113,
131] as the Father of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most
complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum of
the medical knowledge of the past? 13 The Oath varies somewhat according to the particular translation, but in any
translation the content is clear: "I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in
like manner I will not give to a woman a pessary to produce abortion," 14 or "I will neither give a deadly drug to anybody
if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy." 15

Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, post, p. 179, it represents
the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not
the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us
with a theory: 16 The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers
frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to
viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of
dogma. For them the embryo was animate from the moment of conception, and abortion meant destruction of a living
being. The abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," [410 U.S. 113, 132] and "[i]n no other
stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity." 17

Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion
and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A.
D. 130-200) "give evidence of the violation of almost every one of its injunctions." 18 But with the end of antiquity a
decided change took place. Resistance against suicide and against abortion became common. The Oath came to be
popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath "became the
nucleus of all medical ethics" and "was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a
Pythagorean manifesto and not the expression of an absolute standard of medical conduct." 19

This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oath's apparent rigidity. It enables us
to understand, in historical context, a long-accepted and revered statement of medical ethics.

3. The common law. It is undisputed that at common law, abortion performed before "quickening" - the first recognizable
movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy 20- was not an
indictable offense. 21 The absence [410 U.S. 113, 133] of a common-law crime for pre-quickening abortion appears to
have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life
begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became
"formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or
"animated." A loose consensus evolved in early English law that these events occurred at some point between
conception and live birth. 22 This was "mediate animation." Although [410 U.S. 113, 134] Christian theology and the
canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until
the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was
agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction,
therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the
lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas' definition of movement as one of the two first
principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by
later common-law scholars and found its way into the received common law in this country.

Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing
early in the 13th century, thought it homicide. 23 But the later and predominant view, following the great common-law
scholars, has been that it was, at most, a lesser offense. In a frequently cited [410 U.S. 113, 135] passage, Coke took the
position that abortion of a woman "quick with childe" is "a great misprision, and no murder." 24 Blackstone followed,
saying that while abortion after quickening had once been considered manslaughter (though not murder), "modern
law" took a less severe view. 25 A recent review of the common-law precedents argues, however, that those precedents
contradict Coke and that even post-quickening abortion was never established as a common-law crime. 26 This is of
some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened
fetus was not criminal under their received common law, 27 others followed Coke in stating that abortion [410 U.S. 113,
136] of a quick fetus was a "misprision," a term they translated to mean "misdemeanor." 28 That their reliance on Coke
on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of
common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly
established as a common-law crime even with respect to the destruction of a quick fetus.

4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in
1803. It made abortion of a quick fetus, 1, a capital crime, but in 2 it provided lesser penalties for the felony of abortion
before quickening, and thus preserved the "quickening" distinction. This contrast was continued in the general revision of
1828, 9 Geo. 4, c. 31, 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. 6,
and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, 59, that formed the core of
English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c.
34, came into being. Its emphasis was upon the destruction of "the life of a child capable of being born alive." It made a
willful act performed with the necessary intent a felony. It contained a proviso that one was not to be [410 U.S. 113,
137] found guilty of the offense "unless it is proved that the act which caused the death of the child was not done in
good faith for the purpose only of preserving the life of the mother."

A seemingly notable development in the English law was the case of Rex v. Bourne, 1939. 1 K. B. 687. This case
apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant
woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten
referred to the 1929 Act, and observed that that Act related to "the case where a child is killed by a wilful act at the time
when it is being delivered in the ordinary course of nature." Id., at 691. He concluded that the 1861 Act's use of the word
"unlawfully," imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no
mention of preserving the mother's life in the 1861 Act. He then construed the phrase "preserving the life of the mother"
broadly, that is, "in a reasonable sense," to include a serious and permanent threat to the mother's health, and instructed
the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this
purpose. Id., at 693-694. The jury did acquit.

Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a
licensed physician to perform an abortion where two other licensed physicians agree (a) "that the continuance of the
pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the
pregnant woman or any existing children of her family, greater than if the pregnancy were terminated," or (b) "that there
is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as [410 U.S. 113,
138] to be seriously handicapped." The Act also provides that, in making this determination, "account may be taken of
the pregnant woman's actual or reasonably foreseeable environment." It also permits a physician, without the
concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion "is immediately
necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant
woman."

5. The American law. In this country, the law in effect in all but a few States until mid-19th century was the pre-existing
English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord
Ellenborough's Act that related to a woman "quick with child." 29 The death penalty was not imposed. Abortion before
quickening was made a crime in that State only in 1860. 30 In 1828, New York enacted legislation 31 that, in two respects,
was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickened fetus as well as
a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it
incorporated a concept of therapeutic abortion by providing that an abortion was excused if it "shall have been
necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such
purpose." By 1840, when Texas had received the common law, 32 only eight American States [410 U.S. 113, 139] had
statutes dealing with abortion. 33 It was not until after the War Between the States that legislation began generally to
replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with
it before quickening. Most punished attempts equally with completed abortions. While many statutes included the
exception for an abortion thought by one or more physicians to be necessary to save the mother's life, that provision
soon disappeared and the typical law required that the procedure actually be necessary for that purpose.

Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most
States and the degree of the offense and the penalties were increased. By the end of the 1950's, a large majority of the
jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the
mother. 34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother's
health. 35 Three States permitted abortions that were not "unlawfully" performed or that were not "without lawful
justification," leaving interpretation of those standards to the courts. 36 In [410 U.S. 113, 140] the past several years,
however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of
less stringent laws, most of them patterned after the ALI Model Penal Code, 230.3, 37 set forth as Appendix B to the
opinion in Doe v. Bolton, post, p. 205.

It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major
portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.
Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most
States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the
opportunity [410 U.S. 113, 141] to make this choice was present in this country well into the 19th century. Even later, the
law continued for some time to treat less punitively an abortion procured in early pregnancy.

6. The position of the American Medical Association. The anti-abortion mood prevalent in this country in the late 19th
century was shared by the medical profession. Indeed, the attitude of the profession may have played a significant role
in the enactment of stringent criminal abortion legislation during that period.

An AMA Committee on Criminal Abortion was appointed in May 1857. It presented its report, 12 Trans. of the Am. Med.
Assn. 73-78 (1859), to the Twelfth Annual Meeting. That report observed that the Committee had been appointed to
investigate criminal abortion "with a view to its general suppression." It deplored abortion and its frequency and it listed
three causes of "this general demoralization":

"The first of these causes is a wide-spread popular ignorance of the true character of the crime - a belief, even among
mothers themselves, that the foetus is not alive till after the period of quickening.
"The second of the agents alluded to is the fact that the profession themselves are frequently supposed careless of foetal
life . . . .
"The third reason of the frightful extent of this crime is found in the grave defects of our laws, both common and statute,
as regards the independent and actual existence of the child before birth, as a living being. These errors, which are
sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical
dogmas. With strange inconsistency, the law fully acknowledges the foetus in utero and its inherent rights, for civil
purposes; while personally and as criminally affected, it fails to recognize it, [410 U.S. 113, 142] and to its life as yet denies
all protection." Id., at 75-76.
The Committee then offered, and the Association adopted, resolutions protesting "against such unwarrantable
destruction of human life," calling upon state legislatures to revise their abortion laws, and requesting the cooperation of
state medical societies "in pressing the subject." Id., at 28, 78.
In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation,
"We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on
the bench would call things by their proper names. We could do no less." 22 Trans. of the Am. Med. Assn. 258 (1871). It
proffered resolutions, adopted by the Association, id., at 38-39, recommending, among other things, that it "be unlawful
and unprofessional for any physician to induce abortion or premature labor, without the concurrent opinion of at least
one respectable consulting physician, and then always with a view to the safety of the child - if that be possible," and
calling "the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of
females - aye, and men also, on this important question."

Except for periodic condemnation of the criminal abortionist, no further formal AMA action took place until 1967. In that
year, the Committee on Human Reproduction urged the adoption of a stated policy of opposition to induced abortion,
except when there is "documented medical evidence" of a threat to the health or life of the mother, or that the child
"may be born with incapacitating physical deformity or mental deficiency," or that a pregnancy "resulting from legally
established statutory or forcible rape or incest may constitute a threat to the mental or physical health of the [410 U.S.
113, 143] patient," two other physicians "chosen because of their recognized professional competence have examined
the patient and have concurred in writing," and the procedure "is performed in a hospital accredited by the Joint
Commission on Accreditation of Hospitals." The providing of medical information by physicians to state legislatures in their
consideration of legislation regarding therapeutic abortion was "to be considered consistent with the principles of ethics
of the American Medical Association." This recommendation was adopted by the House of Delegates. Proceedings of
the AMA House of Delegates 40-51 (June 1967).
In 1970, after the introduction of a variety of proposed resolutions, and of a report from its Board of Trustees, a reference
committee noted "polarization of the medical profession on this controversial issue"; division among those who had
testified; a difference of opinion among AMA councils and committees; "the remarkable shift in testimony" in six months,
felt to be influenced "by the rapid changes in state laws and by the judicial decisions which tend to make abortion more
freely available;" and a feeling "that this trend will continue." On June 25, 1970, the House of Delegates adopted
preambles and most of the resolutions proposed by the reference committee. The preambles emphasized "the best
interests of the patient," "sound clinical judgment," and "informed patient consent," in contrast to "mere acquiescence to
the patient's demand." The resolutions asserted that abortion is a medical procedure that should be performed by a
licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with
state law, and that no party to the procedure should be required to violate personally held moral
principles. 38 Proceedings [410 U.S. 113, 144] of the AMA House of Delegates 220 (June 1970). The AMA Judicial Council
rendered a complementary opinion. 39

7. The position of the American Public Health Association. In October 1970, the Executive Board of the APHA adopted
Standards for Abortion Services. These were five in number:

"a. Rapid and simple abortion referral must be readily available through state and local public [410 U.S. 113, 145] health
departments, medical societies, or other nonprofit organizations.
"b. An important function of counselling should be to simplify and expedite the provision of abortion services; it should
not delay the obtaining of these services.
"c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric
consultation should be sought for definite indications and not on a routine basis.
"d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify
as abortion counselors.
"e. Contraception and/or sterilization should be discussed with each abortion patient." Recommended Standards for
Abortion Services, 61 Am. J. Pub. Health 396 (1971).
Among factors pertinent to life and health risks associated with abortion were three that "are recognized as important":
"a. the skill of the physician,
"b. the environment in which the abortion is performed, and above all
"c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual history." Id., at 397.
It was said that "a well-equipped hospital" offers more protection "to cope with unforeseen difficulties than an office or
clinic without such resources. . . . The factor of gestational age is of overriding importance." Thus, it was recommended
that abortions in the second trimester and early abortions in the presence of existing medical complications be
performed in hospitals as inpatient procedures. For pregnancies in the first trimester, [410 U.S. 113, 146] abortion in the
hospital with or without overnight stay "is probably the safest practice." An abortion in an extramural facility, however, is
an acceptable alternative "provided arrangements exist in advance to admit patients promptly if unforeseen
complications develop." Standards for an abortion facility were listed. It was said that at present abortions should be
performed by physicians or osteopaths who are licensed to practice and who have "adequate training." Id., at 398.
8. The position of the American Bar Association. At its meeting in February 1972 the ABA House of Delegates approved,
with 17 opposing votes, the Uniform Abortion Act that had been drafted and approved the preceding August by the
Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 (1972). We set forth the Act in full in the
margin. 40 The [410 U.S. 113, 147] Conference has appended an enlightening Prefatory Note.41

VII
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century
and to justify their continued existence. [410 U.S. 113, 148]

It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit
sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or
commentator has taken the argument seriously. 42 The appellants and amici contend, moreover, that this is not a proper
state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to
distinguish between married and unwed mothers.

A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first
enacted, the procedure was a hazardous one for the woman. 43 This was particularly true prior to the [410 U.S. 113,
149] development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and
others first announced in 1867, but were not generally accepted and employed until about the turn of the century.
Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's,
standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been
argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to
restrain her from submitting to a procedure that placed her life in serious jeopardy.

Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating
that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively
safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or
lower than the rates for normal childbirth. 44 Consequently, any interest of the State in protecting the woman from an
inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared.
Of course, important state interests in the areas of health and medical standards do remain. [410 U.S. 113, 150] The
State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under
circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing
physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any
complication or emergency that might arise. The prevalence of high mortality rates at illegal "abortion mills" strengthens,
rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover,
the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the
woman's own health and safety when an abortion is proposed at a late stage of pregnancy.

The third reason is the State's interest - some phrase it in terms of duty - in protecting prenatal life. Some of the argument
for this justification rests on the theory that a new human life is present from the moment of conception. 45 The State's
interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the
pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or
fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the
belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition
may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond
the protection of the pregnant woman alone. [410 U.S. 113, 151]

Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these
laws, when enacted, was to protect prenatal life. 46 Pointing to the absence of legislative history to support the
contention, they claim that most state laws were designed solely to protect the woman. Because medical advances
have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such
abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original
purpose. 47 The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on
the State's interest in protecting the woman's health rather than in preserving the embryo and fetus. 48 Proponents of this
view point out that in many States, including Texas, 49 by statute or judicial interpretation, the pregnant woman herself
could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another. 50 They
claim that adoption of the "quickening" distinction through received common [410 U.S. 113, 152] law and state statutes
tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins
at conception.

It is with these interests, and the weight to be attached to them, that this case is concerned.

VIII
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as
far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy,
or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or
individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S.
557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S.
347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth
Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the
Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal
rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S.
319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some
extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316
U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113,
153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child
rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions
upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to
the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The
detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.
Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional
offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and
physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted
child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care
for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be
involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she
is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.
With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion
decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive.
The [410 U.S. 113, 154] Court's decisions recognizing a right of privacy also acknowledge that some state regulation in
areas protected by that right is appropriate. As noted above, a State may properly assert important interests in
safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy,
these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion
decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim
asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship
to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right
of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927)
(sterilization).

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not
unqualified and must be considered against important state interests in regulation.

We note that those federal and state courts that have recently considered abortion law challenges have reached the
same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at
least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F. Supp.
800 (Conn. 1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-
730; Doe v. Bolton, 319 F. Supp. 1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F. Supp. 1385
(ND Ill. 1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F. Supp. 986 (Kan. 1972); YWCA v. Kugler, 342 F. Supp.
1048 (NJ 1972); Babbitz v. McCann, [410 U.S. 113, 155] 310 F. Supp. 293 (ED Wis. 1970), appeal dismissed, 400 U.S. 1
(1970); People v. Belous, 71 Cal. 2d 954, 458 P.2d 194 (1969), cert. denied, 397 U.S. 915 (1970); State v. Barquet, 262 So.2d
431 (Fla. 1972).

Others have sustained state statutes. Crossen v. Attorney General, 344 F. Supp. 587 (ED Ky. 1972), appeal docketed, No.
72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217 (ED La. 1970), appeal docketed, No. 70-
42; Corkey v. Edwards, 322 F. Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F. Supp. 741
(ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State, ___ Ind. ___, 285 N. E. 2d
265 (1972); Spears v. State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86 S. D. 663, 201 N. W. 2d 123 (1972), appeal
docketed, No. 72-631.

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad
enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and
that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.
We agree with this approach.

Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified
only by a "compelling state interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson,
394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly
drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485 ; Aptheker v.
Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307 -308 (1940); see [410 U.S. 113,
156] Eisenstadt v. Baird, 405 U.S., at 460 , 463-464 (WHITE, J., concurring in result).

In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have
generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest
justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should
have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations
to protect health or prenatal life are dominant and constitutionally justifiable.

IX
The District Court held that the appellee failed to meet his burden of demonstrating that the Texas statute's infringement
upon Roe's rights was necessary to support a compelling state interest, and that, although the appellee presented
"several compelling justifications for state presence in the area of abortions," the statutes outstripped these justifications
and swept "far beyond any areas of compelling state interest." 314 F. Supp., at 1222-1223. Appellant and appellee both
contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal
penalties in the area. Appellee argues that the State's determination to recognize and protect prenatal life from and
after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.

A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth
Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this
suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus' right
to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on
reargument. 51 On the other hand, the appellee conceded on reargument 52that no case could be cited that holds
that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three
references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word
also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the
Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the
Apportionment Clause, Art. I, 2, cl. 3; 53 in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument
Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining
qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded
Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the Fourteenth
Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None
indicates, with any assurance, that it has any possible pre-natal application. 54 [410 U.S. 113, 158]

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal
abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth
Amendment, does not include the unborn. 55 This is in accord with the results reached in those few cases where the issue
has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New York
City Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351
F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, ___ Ind., at ___, 285 N. E. 2d, at 270;
Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308 (1961); Keeler v.
Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); State v. Dickinson, 28 [410 U.S. 113, 159] Ohio St. 2d 65, 275 N. E. 2d 599
(1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the same effect, for we there
would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary
consequence was the termination of life entitled to Fourteenth Amendment protection.

This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other
considerations.

B. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the
medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479,
547 (24th ed. 1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of
obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving,
Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and
appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of
potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she
possesses must be measured accordingly.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout
pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We
need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine,
philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's
knowledge, is not in a position to speculate as to the answer. [410 U.S. 113, 160]

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There
has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. 56 It
appears to be the predominant, though not the unanimous, attitude of the Jewish faith. 57 It may be taken to represent
also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups
that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the
conscience of the individual and her family. 58 As we have noted, the common law found greater significance in
quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to
focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is,
potentially able to live outside the mother's womb, albeit with artificial aid. 59 Viability is usually placed at about seven
months (28 weeks) but may occur earlier, even at 24 weeks. 60 The Aristotelian theory of "mediate animation," that held
sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until
the 19th century, despite opposition to this "ensoulment" theory from those in the Church who would recognize the
existence of life from [410 U.S. 113, 161] the moment of conception. 61 The latter is now, of course, the official belief of
the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by
many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data
that purport to indicate that conception is a "process" over time, rather than an event, and by new medical techniques
such as menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even artificial
wombs. 62
In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it,
begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when
the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries
even though the child was born alive. 63 That rule has been changed in almost every jurisdiction. In most States,
recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though
few [410 U.S. 113, 162] courts have squarely so held. 64In a recent development, generally opposed by the
commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of
prenatal injuries. 65 Such an action, however, would appear to be one to vindicate the parents' interest and is thus
consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have
been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been
represented by guardians ad litem. 66 Perfection of the interests involved, again, has generally been contingent upon
live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.

X
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant
woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in
preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident
who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in
protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the
woman approaches [410 U.S. 113, 163] term and, at a point during pregnancy, each becomes "compelling."

With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the
light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-
established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be
less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion
procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.
Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to
perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that
is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of
the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician,
in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the
patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion
free of interference by the State.

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so
because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation
protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in
protecting fetal life after viability, it may go so far as to proscribe abortion [410 U.S. 113, 164] during that period, except
when it is necessary to preserve the life or health of the mother.

Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or
attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes
no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single
reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the
constitutional attack made upon it here.

This conclusion makes it unnecessary for us to consider the additional challenge to the Texas statute asserted on grounds
of vagueness. See United States v. Vuitch, 402 U.S., at 67 -72.

XI
To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on
behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is
violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be
left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the
health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to
maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113,
165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother.

2. The State may define the term "physician," as it has been employed in the preceding paragraphs of this Part XI of this
opinion, to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is
not a physician as so defined.

In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the modern abortion statutes are considered.
That opinion and this one, of course, are to be read together. 67

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and
examples of medical and legal history, with the lenity of the common law, and with the demands of the profound
problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period
of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision
vindicates the right of the physician to administer medical treatment according to his professional judgment up to the
points where important [410 U.S. 113, 166] state interests provide compelling justifications for intervention. Up to those
points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it
must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the
usual remedies, judicial and intra-professional, are available.

XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The
exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all
abortion procedures no matter how medically urgent the case.

Although the District Court granted appellant Roe declaratory relief, it stopped short of issuing an injunction against
enforcement of the Texas statutes. The Court has recognized that different considerations enter into a federal court's
decision as to declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v. Koota, 389 U.S. 241, 252 -
255 (1967); Dombrowski v. Pfister, 380 U.S. 479 (1965). We are not dealing with a statute that, on its face, appears to
abridge free expression, an area of particular concern under Dombrowski and refined in Younger v. Harris, 401 U.S., at 50
.

We find it unnecessary to decide whether the District Court erred in withholding injunctive relief, for we assume the Texas
prosecutorial authorities will give full credence to this decision that the present criminal abortion statutes of that State are
unconstitutional.

The judgment of the District Court as to intervenor Hallford is reversed, and Dr. Hallford's complaint in intervention is
dismissed. In all other respects, the judgment [410 U.S. 113, 167] of the District Court is affirmed. Costs are allowed to the
appellee.

It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]

[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]

Footnotes
[ Footnote 1 ] "Article 1191. Abortion
"If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her
consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied,
and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it
be done without her consent, the punishment shall be doubled. By `abortion' is meant that the life of the fetus or embryo
shall be destroyed in the woman's womb or that a premature birth thereof be caused.
"Art. 1192. Furnishing the means
"Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
"Art. 1193. Attempt at abortion
"If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce
abortion, provided [410 U.S. 113, 118] it be shown that such means were calculated to produce that result, and shall be
fined not less than one hundred nor more than one thousand dollars.
"Art. 1194. Murder in producing abortion
"If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder."
"Art. 1196. By medical advice
"Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the
life of the mother."
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of the Penal Code. Article 1195, not
attacked here, reads:
"Art. 1195. Destroying unborn child
"Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before
actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less
than five years."
[ Footnote 2 ] Ariz. Rev. Stat. Ann. 13-211 (1956); Conn. Pub. Act No. 1 (May 1972 special session) (in 4 Conn. Leg. Serv.
677 (1972)), and Conn. Gen. Stat. Rev. 53-29, 53-30 (1968) (or unborn child); Idaho Code 18-601 (1948); Ill. Rev. Stat., c. 38,
23-1 (1971); Ind. Code 35-1-58-1 (1971); Iowa Code 701.1 (1971); Ky. Rev. Stat. 436.020 (1962); La. Rev. Stat. 37:1285 (6)
(1964) (loss of medical license) (but see 14:87 (Supp. 1972) containing no exception for the life of the mother under the
criminal statute); Me. Rev. Stat. Ann., Tit. 17, 51 (1964); Mass. Gen. Laws Ann., c. 272, 19 (1970) (using the term "unlawfully,"
construed to exclude an abortion to save the mother's life, Kudish v. Bd. of Registration, 356 Mass. 98, 248 N. E. 2d 264
(1969)); Mich. Comp. Laws 750.14 (1948); Minn. Stat. 617.18 (1971); Mo. Rev. Stat. 559.100 (1969); Mont. Rev. Codes Ann.
94-401 (1969); Neb. Rev. Stat. 28-405 (1964); Nev. Rev. Stat. 200.220 (1967); N. H. Rev. Stat. Ann. 585:13 (1955); N. J. Stat.
Ann. 2A:87-1 (1969) ("without lawful justification"); N. D. Cent. Code 12-25-01, 12-25-02 (1960); Ohio Rev. Code Ann.
2901.16 (1953); Okla. Stat. Ann., Tit. 21, 861 (1972-1973 Supp.); Pa. Stat. Ann., Tit. 18, [410 U.S. 113, 119] 4718, 4719 (1963)
("unlawful"); R. I. Gen. Laws Ann. 11-3-1 (1969); S. D. Comp. Laws Ann. 22-17-1 (1967); Tenn. Code Ann. 39-301, 39-302
(1956); Utah Code Ann. 76-2-1, 76-2-2 (1953); Vt. Stat. Ann., Tit. 13, 101 (1958); W. Va. Code Ann. 61-2-8 (1966); Wis. Stat.
940.04 (1969); Wyo. Stat. Ann. 6-77, 6-78 (1957).

[ Footnote 3 ] Long ago, a suggestion was made that the Texas statutes were unconstitutionally vague because of
definitional deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion peremptorily, saying only,

"It is also insisted in the motion in arrest of judgment that the statute is unconstitutional and void in that it does not
sufficiently define or describe the offense of abortion. We do not concur in respect to this question." Jackson v. State, 55
Tex. Cr. R. 79, 89, 115 S. W. 262, 268 (1908).
The same court recently has held again that the State's abortion statutes are not unconstitutionally vague or overbroad.
Thompson v. State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200. The court held that "the State of Texas has
a compelling interest to protect fetal life"; that Art. 1191 "is designed to protect fetal life"; that the Texas homicide
statutes, particularly Art. 1205 of the Penal Code, are intended to protect a person "in existence by actual birth" and
thereby implicitly recognize other human life that is not "in existence by actual birth"; that the definition of human life is
for the legislature and not the courts; that Art. 1196 "is more definite than the District of Columbia statute upheld in
[United States v.] Vuitch" ( 402 U.S. 62 ); and that the Texas statute "is [410 U.S. 113, 120] not vague and indefinite or
overbroad." A physician's abortion conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of proof under the exemption of Art. 1196 "is not
before us." But see Veevers v. State, 172 Tex. Cr. R. 162, 168-169, 354 S. W. 2d 161, 166-167 (1962). Cf. United States v.
Vuitch, 402 U.S. 62, 69 -71 (1971).

[ Footnote 4 ] The name is a pseudonym.

[ Footnote 5 ] These names are pseudonyms.

[ Footnote 6 ] The appellee twice states in his brief that the hearing before the District Court was held on July 22, 1970.
Brief for Appellee 13. The docket entries, App. 2, and the transcript, App. 76, reveal this to be an error. The July date
appears to be the time of the reporter's transcription. See App. 77.

[ Footnote 7 ] We need not consider what different result, if any, would follow if Dr. Hallford's intervention were on behalf
of a class. His complaint in intervention does not purport to assert a class suit and makes no reference to any class apart
from an allegation that he "and others similarly situated" must necessarily guess at the meaning of Art. 1196. His
application for leave to intervene goes somewhat further, for it asserts that plaintiff Roe does not adequately protect the
interest of the doctor "and the class of people who are physicians . . . [and] the class of people who are . . . patients . . . ."
The leave application, however, is not the complaint. Despite the District Court's statement to the contrary, 314 F. Supp.,
at 1225, we fail to perceive the essentials of a class suit in the Hallford complaint.

[ Footnote 8 ] A. Castiglioni, A History of Medicine 84 (2d ed. 1947), E. Krumbhaar, translator and editor (hereinafter
Castiglioni).
[ Footnote 9 ] J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed. 1950) (hereinafter Ricci); L. Lader, Abortion
75-77 (1966) (hereinafter Lader); K. Niswander, Medical Abortion Practices in the United States, in Abortion and the Law
37, 38-40 (D. Smith ed. 1967); G. Williams, The Sanctity of Life and the Criminal Law 148 (1957) (hereinafter Williams); J.
Noonan, An Almost Absolute Value in History, in The Morality of Abortion 1, 3-7 (J. Noonan ed. 1970) (hereinafter
Noonan); Quay, Justifiable Abortion - Medical and Legal Foundations (pt. 2), 49 Geo. L. J. 395, 406-422 (1961)
(hereinafter Quay).

[ Footnote 10 ] L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein). But see Castiglioni 227.

[ Footnote 11 ] Edelstein 12; Ricci 113-114, 118-119; Noonan 5.

[ Footnote 12 ] Edelstein 13-14.

[ Footnote 13 ] Castiglioni 148.

[ Footnote 14 ] Id., at 154.

[ Footnote 15 ] Edelstein 3.

[ Footnote 16 ] Id., at 12, 15-18.

[ Footnote 17 ] Id., at 18; Lader 76.

[ Footnote 18 ] Edelstein 63.

[ Footnote 19 ] Id., at 64.

[ Footnote 20 ] Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).

[ Footnote 21 ] E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c. 31, 16 (4th ed. 1762); 1 W. Blackstone,
Commentaries *129-130; M. Hale, Pleas of the Crown 433 (1st Amer. ed. 1847). For discussions of the role of the
quickening concept in English common law, see Lader 78; Noonan 223-226; Means, The Law of New [410 U.S. 113,
133] York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality (pt. 1),
14 N. Y. L. F. 411, 418-428 (1968) (hereinafter Means I); Stern, Abortion: Reform and the Law, 59 J. Crim. L. C. & P. S. 84
(1968) (hereinafter Stern); Quay 430-432; Williams 152.

[ Footnote 22 ] Early philosophers believed that the embryo or fetus did not become formed and begin to live until at
least 40 days after conception for a male, and 80 to 90 days for a female. See, for example, Aristotle, Hist. Anim.
7.3.583b; Gen. Anim. 2.3.736, 2.5.741; Hippocrates, Lib. de Nat. Puer., No. 10. Aristotle's thinking derived from his three-
stage theory of life: vegetable, animal, rational. The vegetable stage was reached at conception, the animal at
"animation," and the rational soon after live birth. This theory, together with the 40/80 day view, came to be accepted
by early Christian thinkers.

The theological debate was reflected in the writings of St. Augustine, who made a distinction between embryo
inanimatus, not yet endowed with a soul, and embryo animatus. He may have drawn upon Exodus 21:22. At one point,
however, he expressed the view that human powers cannot determine the point during fetal development at which the
critical change occurs. See Augustine, De Origine Animae 4.4 (Pub. Law 44.527). See also W. Reany, The Creation of the
Human Soul, c. 2 and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ. of America, Canon Law
Studies No. 162, Washington, D.C., 1942).

Galen, in three treatises related to embryology, accepted the thinking of Aristotle and his followers. Quay 426-427. Later,
Augustine on abortion was incorporated by Gratian into the Decretum, published about 1140. Decretum Magistri
Gratiani 2.32.2.7 to 2.32.2.10, [410 U.S. 113, 134] in 1 Corpus Juris Canonici 1122, 1123 (A. Friedburg, 2d ed. 1879). This
Decretal and the Decretals that followed were recognized as the definitive body of canon law until the new Code of
1917.

For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan 20-26; Quay 426-430; see also J. Noonan,
Contraception: A History of Its Treatment by the Catholic Theologians and Canonists 18-29 (1965).

[ Footnote 23 ] Bracton took the position that abortion by blow or poison was homicide "if the foetus be already formed
and animated, and particularly if it be animated." 2 H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed.
1879), or, as a later translation puts it, "if the foetus is already formed or quickened, especially if it is quickened," 2 H.
Bracton, On the Laws and Customs of England 341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta 60-61 (Book 1, c.
23) (Selden Society ed. 1955).

[ Footnote 24 ] E. Coke, Institutes III *50.

[ Footnote 25 ] 1 W. Blackstone, Commentaries *129-130.

[ Footnote 26 ] Means, The Phoenix of Abortional Freedom: Is a Penumbral or Ninth-Amendment Right About to Arise
from the Nineteenth-Century Legislative Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N. Y. L. F. 335 (1971)
(hereinafter Means II). The author examines the two principal precedents cited marginally by Coke, both contrary to his
dictum, and traces the treatment of these and other cases by earlier commentators. He concludes that Coke, who
himself participated as an advocate in an abortion case in 1601, may have intentionally misstated the law. The author
even suggests a reason: Coke's strong feelings against abortion, coupled with his determination to assert common-law
(secular) jurisdiction to assess penalties for an offense that traditionally had been an exclusively ecclesiastical or canon-
law crime. See also Lader 78-79, who notes that some scholars doubt that the common law ever was applied to
abortion; that the English ecclesiastical courts seem to have lost interest in the problem after 1527; and that the
preamble to the English legislation of 1803, 43 Geo. 3, c. 58, 1, referred to in the text, infra, at 136, states that "no
adequate means have been hitherto provided for the prevention and punishment of such offenses."

[ Footnote 27 ] Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth v. Parker, 50 Mass. (9 Metc.) 263, 265-
266 (1845); State v. Cooper, 22 N. J. L. 52, 58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31
Ala. 45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State, 40 Fla. [410 U.S. 113, 136] 527, 532,
25 So. 144, 145 (1898); State v. Alcorn, 7 Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N.
W. 611, 612 (1907); Gray v. State, 77 Tex. Cr. R. 221, 224, 178 S. W. 337, 338 (1915); Miller v. Bennett, 190 Va. 162, 169, 56 S.
E. 2d 217, 221 (1949). Contra, Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N.C. 630, 632 (1880).

[ Footnote 28 ] See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N. Y. 86, 88 (1872); Lamb v. State, 67 Md. 524,
533, 10 A. 208 (1887).

[ Footnote 29 ] Conn. Stat., Tit. 20, 14 (1821).

[ Footnote 30 ] Conn. Pub. Acts, c. 71, 1 (1860).

[ Footnote 31 ] N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, 9, p. 661, and Tit. 6, 21, p. 694 (1829).

[ Footnote 32 ] Act of Jan. 20, 1840, 1, set forth in 2 H. Gammel, Laws of Texas 177-178 (1898); see Grigsby v. Reib, 105 Tex.
597, 600, 153 S. W. 1124, 1125 (1913).

[ Footnote 33 ] The early statutes are discussed in Quay 435-438. See also Lader 85-88; Stern 85-86; and Means II 375-376.

[ Footnote 34 ] Criminal abortion statutes in effect in the States as of 1961, together with historical statutory development
and important judicial interpretations of the state statutes, are cited and quoted in Quay 447-520. See Comment, A
Survey of the Present Statutory and Case Law on Abortion: The Contradictions and the Problems, 1972 U. Ill. L. F. 177, 179,
classifying the abortion statutes and listing 25 States as permitting abortion only if necessary to save or preserve the
mother's life.

[ Footnote 35 ] Ala. Code, Tit. 14, 9 (1958); D.C. Code Ann. 22-201 (1967).

[ Footnote 36 ] Mass. Gen. Laws Ann., c. 272, 19 (1970); N. J. Stat. Ann. 2A:87-1 (1969); Pa. Stat. Ann., Tit. 18, 4718, 4719
(1963).

[ Footnote 37 ] Fourteen States have adopted some form of the ALI statute. See Ark. Stat. Ann. 41-303 to 41-310 (Supp.
1971); Calif. Health & Safety Code 25950-25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. 40-2-50 to 40-2-53 (Cum. Supp. 1967);
Del. Code Ann., Tit. 24, 1790-1793 (Supp. 1972); Florida Law of Apr. 13, 1972, c. 72-196, 1972 Fla. Sess. Law Serv., pp. 380-
382; Ga. Code 26-1201 to 26-1203 (1972); Kan. Stat. Ann. 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43, 137-139 (1971);
Miss. Code Ann. 2223 (Supp. 1972); N. M. Stat. Ann. 40A-5-1 to 40A-5-3 (1972); N.C. Gen. Stat. 14-45.1 (Supp. 1971); Ore.
Rev. Stat. 435.405 to 435.495 (1971); S. C. Code Ann. 16-82 to 16-89 (1962 and Supp. 1971); Va. Code Ann. 18.1-62 to 18.1-
62.3 (Supp. 1972). Mr. Justice Clark described some of these States as having "led the way." Religion, Morality, and
Abortion: A Constitutional Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 11 (1969).

By the end of 1970, four other States had repealed criminal penalties for abortions performed in early pregnancy by a
licensed physician, subject to stated procedural and health requirements. Alaska Stat. 11.15.060 (1970); Haw. Rev. Stat.
453-16 (Supp. 1971); N. Y. Penal Code 125.05, subd. 3 (Supp. 1972-1973); Wash. Rev. Code 9.02.060 to 9.02.080 (Supp.
1972). The precise status of criminal abortion laws in some States is made unclear by recent decisions in state and federal
courts striking down existing state laws, in whole or in part.

[ Footnote 38 ] "Whereas, Abortion, like any other medical procedure, should not be performed when contrary to the
best interests of the patient [410 U.S. 113, 144] since good medical practice requires due consideration for the patient's
welfare and not mere acquiescence to the patient's demand; and

"Whereas, The standards of sound clinical judgment, which, together with informed patient consent should be
determinative according to the merits of each individual case; therefore be it
"RESOLVED, That abortion is a medical procedure and should be performed only by a duly licensed physician and
surgeon in an accredited hospital acting only after consultation with two other physicians chosen because of their
professional competency and in conformance with standards of good medical practice and the Medical Practice Act
of his State; and be it further
"RESOLVED, That no physician or other professional personnel shall be compelled to perform any act which violates his
good medical judgment. Neither physician, hospital, nor hospital personnel shall be required to perform any act violative
of personally-held moral principles. In these circumstances good medical practice requires only that the physician or
other professional personnel withdraw from the case so long as the withdrawal is consistent with good medical practice."
Proceedings of the AMA House of Delegates 220 (June 1970).
[ Footnote 39 ] "The Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion that
is performed in accordance with good medical practice and under circumstances that do not violate the laws of the
community in which he practices.

"In the matter of abortions, as of any other medical procedure, the Judicial Council becomes involved whenever there is
alleged violation of the Principles of Medical Ethics as established by the House of Delegates."
[ Footnote 40 ] "UNIFORM ABORTION ACT

"SECTION 1. [Abortion Defined; When Authorized.]

"(a) `Abortion' means the termination of human pregnancy with an intention other than to produce a live birth or to
remove a dead fetus.
"(b) An abortion may be performed in this state only if it is performed:
"(1) by a physician licensed to practice medicine [or osteopathy] in this state or by a physician practicing medicine [or
osteopathy] in the employ of the government of the United States or of this state, [and the abortion is performed [in the
physician's office or in a medical clinic, or] in a hospital approved by the [Department of Health] or operated by the
United States, this state, or any department, agency, or political subdivision of either;] or by a female upon herself upon
the advice of the physician; and
"(2) within 20. weeks after the commencement of the pregnancy [or after 20. weeks only if the physician has reasonable
cause to believe (i) there is a substantial risk that continuance of the pregnancy would endanger the life of the mother
or would gravely impair the physical or mental health of the mother, (ii) that the child would be born with grave physical
or mental defect, or (iii) that [410 U.S. 113, 147] the pregnancy resulted from rape or incest, or illicit intercourse with a girl
under the age of 16 years].
"SECTION 2. [Penalty.] Any person who performs or procures an abortion other than authorized by this Act is guilty of a
[felony] and, upon conviction thereof, may be sentenced to pay a fine not exceeding [$1,000] or to imprisonment [in
the state penitentiary] not exceeding [5 years], or both.
"SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to effectuate its general purpose to make uniform
the law with respect to the subject of this Act among those states which enact it.
"SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act.
"SECTION 5. [Severability.] If any provision of this Act or the application thereof to any person or circumstance is held
invalid, the invalidity does not affect other provisions or applications of this Act which can be given effect without the
invalid provision or application, and to this end the provisions of this Act are severable.
"SECTION 6. [Repeal.] The following acts and parts of acts are repealed: "(1) "(2) "(3)
"SECTION 7. [Time of Taking Effect.] This Act shall take effect ________________."
[ Footnote 41 ] "This Act is based largely upon the New York abortion act following a review of the more recent laws on
abortion in several states and upon recognition of a more liberal trend in laws on this subject. Recognition was given also
to the several decisions in state and federal courts which show a further trend toward liberalization of abortion laws,
especially during the first trimester of pregnancy.

"Recognizing that a number of problems appeared in New York, a shorter time period for `unlimited' abortions was
advisable. The [410 U.S. 113, 148] time period was bracketed to permit the various states to insert a figure more in
keeping with the different conditions that might exist among the states. Likewise, the language limiting the place or
places in which abortions may be performed was also bracketed to account for different conditions among the states.
In addition, limitations on abortions after the initial `unlimited' period were placed in brackets so that individual states
may adopt all or any of these reasons, or place further restrictions upon abortions after the initial period.
"This Act does not contain any provision relating to medical review committees or prohibitions against sanctions imposed
upon medical personnel refusing to participate in abortions because of religious or other similar reasons, or the like. Such
provisions, while related, do not directly pertain to when, where, or by whom abortions may be performed; however, the
Act is not drafted to exclude such a provision by a state wishing to enact the same."
[ Footnote 42 ] See, for example, YWCA v. Kugler, 342 F. Supp. 1048, 1074 (N. J. 1972); Abele v. Markle, 342 F. Supp. 800,
805-806 (Conn. 1972) (Newman, J., concurring in result), appeal docketed, No. 72-56; Walsingham v. State, 250 So.2d
857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N. J. L. 86, 90 (1881); Means II 381-382.

[ Footnote 43 ] See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19 (1943).

[ Footnote 44 ] Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O. 957, 967 (1970) (England and Wales); Abortion
Mortality, 20 Morbidity and Mortality 208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public Health Service) (New York City);
Tietze, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family Planning 5, 7 (1970); Tietze, Mortality with
Contraception and Induced Abortion, 45 Studies in Family Planning 6 (1969) (Japan, Czechoslovakia, Hungary); Tietze &
Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149, 1152 (April 1961). Other sources are discussed in Lader 17-
23.

[ Footnote 45 ] See Brief of Amicus National Right to Life Committee; R. Drinan, The Inviolability of the Right to be Born, in
Abortion and the Law 107 (D. Smith ed. 1967); Louisell, Abortion, The Practice of Medicine and the Due Process of Law,
16 U. C. L. A. L. Rev. 233 (1969); Noonan 1.

[ Footnote 46 ] See, e. g., Abele v. Markle, 342 F. Supp. 800 (Conn. 1972), appeal docketed, No. 72-56.

[ Footnote 47 ] See discussions in Means I and Means II.

[ Footnote 48 ] See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858).

[ Footnote 49 ] Watson v. State, 9 Tex. App. 237, 244-245 (1880); Moore v. State, 37 Tex. Cr. R. 552, 561, 40 S. W. 287, 290
(1897); Shaw v. State, 73 Tex. Cr. R. 337, 339, 165 S. W. 930, 931 (1914); Fondren v. State, 74 Tex. Cr. R. 552, 557, 169 S. W.
411, 414 (1914); Gray v. State, 77 Tex. Cr. R. 221, 229, 178 S. W. 337, 341 (1915). There is no immunity in Texas for the father
who is not married to the mother. Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W. 661 (1919); Thompson v. State (Ct. Crim.
App. Tex. 1971), appeal docketed, No. 71-1200.

[ Footnote 50 ] See Smith v. State, 33 Me., at 55; In re Vince, 2 N. J. 443, 450, 67 A. 2d 141, 144 (1949). A short discussion of
the modern law on this issue is contained in the Comment to the ALI's Model Penal Code 207.11, at 158 and nn. 35-37
(Tent. Draft No. 9, 1959).

[ Footnote 51 ] Tr. of Oral Rearg. 20-21.

[ Footnote 52 ] Tr. of Oral Rearg. 24.

[ Footnote 53 ] We are not aware that in the taking of any census under this clause, a fetus has ever been counted.

[ Footnote 54 ] When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a
dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception
always exists. The exception contained [410 U.S. 113, 158] in Art. 1196, for an abortion procured or attempted by
medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be
deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas
exception appear to be out of line with the Amendment's command?

There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already
been pointed out, n. 49, supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion
upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal
abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the
Texas Penal Code. If the fetus is a person, may the penalties be different?

[ Footnote 55 ] Cf. the Wisconsin abortion statute, defining "unborn child" to mean "a human being from the time of
conception until it is born alive," Wis. Stat. 940.04 (6) (1969), and the new Connecticut Statute, Pub. Act No. 1 (May 1972
special session), declaring it to be the public policy of the State and the legislative intent "to protect and preserve
human life from the moment of conception."

[ Footnote 56 ] Edelstein 16.

[ Footnote 57 ] Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294 (1968). For a stricter view, see I. Jakobovits,
Jewish Views on Abortion, in Abortion and the Law 124 (D. Smith ed. 1967).
[ Footnote 58 ] Amicus Brief for the American Ethical Union et al. For the position of the National Council of Churches and
of other denominations, see Lader 99-101.

[ Footnote 59 ] L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971); Dorland's Illustrated Medical Dictionary
1689 (24th ed. 1965).

[ Footnote 60 ] Hellman & Pritchard, supra, n. 59, at 493.

[ Footnote 61 ] For discussions of the development of the Roman Catholic position, see D. Callahan, Abortion: Law,
Choice, and Morality 409-447 (1970); Noonan 1.

[ Footnote 62 ] See Brodie, The New Biology and the Prenatal Child, 9 J. Family L. 391, 397 (1970); Gorney, The New
Biology and the Future of Man, 15 U. C. L. A. L. Rev. 273 (1968); Note, Criminal Law - Abortion - The "Morning-After Pill" and
Other Pre-Implantation Birth-Control Methods and the Law, 46 Ore. L. Rev. 211 (1967); G. Taylor, The Biological Time Bomb
32 (1968); A. Rosenfeld, The Second Genesis 138-139 (1969); Smith, Through a Test Tube Darkly: Artificial Insemination and
the Law, 67 Mich. L. Rev. 127 (1968): Note, Artificial Insemination and the Law, 1968 U. Ill. L. F. 203.

[ Footnote 63 ] W. Prosser, The Law of Torts 335-338 (4th ed. 1971); 2 F. Harper & F. James, The Law of Torts 1028-1031
(1956); Note, 63 Harv. L. Rev. 173 (1949).

[ Footnote 64 ] See cases cited in Prosser, supra, n. 63, at 336-338; Annotation, Action for Death of Unborn Child, 15 A. L.
R. 3d 992 (1967).

[ Footnote 65 ] Prosser, supra, n. 63, at 338; Note, The Law and the Unborn Child: The Legal and Logical Inconsistencies,
46 Notre Dame Law. 349, 354-360 (1971).

[ Footnote 66 ] Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 U. C. L. A. L. Rev. 233, 235-238
(1969); Note, 56 Iowa L. Rev. 994, 999-1000 (1971); Note, The Law and the Unborn Child, 46 Notre Dame Law. 349, 351-354
(1971).

[ Footnote 67 ] Neither in this opinion nor in Doe v. Bolton, post, p. 179, do we discuss the father's rights, if any exist in the
constitutional context, in the abortion decision. No paternal right has been asserted in either of the cases, and the Texas
and the Georgia statutes on their face take no cognizance of the father. We are aware that some statutes recognize
the father under certain circumstances. North Carolina, for example, N.C. Gen. Stat. 14-45.1 (Supp. 1971), requires written
permission for the abortion from the husband when the woman is a married minor, that is, when she is less than 18 years
of age, 41 N.C. A. G. 489 (1971); if the woman is an unmarried minor, written permission from the parents is required. We
need not now decide whether provisions of this kind are constitutional.

MR. JUSTICE STEWART, concurring.

In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726 , purported to sound the death knell for the doctrine of substantive
due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment.
As Mr. Justice Black's opinion for the Court in Skrupa put it: "We have returned to the original constitutional proposition
that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to
pass laws." Id., at 730. 1

Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a Connecticut birth control law
unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did
its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the
Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. 2 So
it was clear [410 U.S. 113, 168] to me then, and it is equally clear to me now, that the Griswold decision can be rationally
understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the
Due Process Clause of the Fourteenth Amendment.3 As so understood, Griswold stands as one in a long line of pre-
Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.

"In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of
Regents v. Roth, 408 U.S. 564, 572 . The Constitution nowhere mentions a specific right of personal choice in matters of
marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers
more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238 -
239; Pierce v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v. Nebraska, 262 U.S. 390, 399 -400. Cf. Shapiro v. Thompson,
394 U.S. 618, 629 -630; United States v. Guest, 383 U.S. 745, 757 -758; Carrington v. Rash, 380 U.S. 89, 96 ; Aptheker v.
Secretary of State, 378 U.S. 500, 505 ; Kent v. Dulles, 357 U.S. 116, 127 ; Bolling v. Sharpe, 347 U.S. 497, 499 -500; Truax v.
Raich, 239 U.S. 33, 41 . [410 U.S. 113, 169]
As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found
in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a
series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the
right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum
which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and
which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful
scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from
dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were
purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact,
and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National
Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of
the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ;
Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v.
Massachusetts, 321 U.S. 158, 166 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . As recently as last Term, in Eisenstadt v. Baird,
405 U.S. 438, 453 , we recognized "the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person [410 U.S. 113, 170] as the decision whether to
bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her
pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the
interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of
significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of
Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923)."
Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).

Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the
personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete
abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas. The
question then becomes whether the state interests advanced to justify this abridgment can survive the "particularly
careful scrutiny" that the Fourteenth Amendment here requires.

The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the
potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate
abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more
stringently or even to prohibit them in the late stages of pregnancy. But such legislation is not before us, and I think the
Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad
abridgment of personal [410 U.S. 113, 171] liberty worked by the existing Texas law. Accordingly, I join the Court's opinion
holding that that law is invalid under the Due Process Clause of the Fourteenth Amendment.

[ Footnote 1 ] Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at 733 .

[ Footnote 2 ] There is no constitutional right of privacy, as such. "[The Fourth] Amendment protects individual privacy
against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy
at all. Other provisions of [410 U.S. 113, 168] the Constitution protect personal privacy from other forms of governmental
invasion. But the protection of a person's general right to privacy - his right to be let alone by other people - is, like the
protection of his property and of his very life, left largely to the law of the individual States." Katz v. United States, 389 U.S.
347, 350 -351 (footnotes omitted).

[ Footnote 3 ] This was also clear to Mr. Justice Black, 381 U.S., at 507 (dissenting opinion); to Mr. Justice Harlan, 381 U.S.,
at 499 (opinion concurring in the judgment); and to MR. JUSTICE WHITE, 381 U.S., at 502 (opinion concurring in the
judgment). See also Mr. Justice Harlan's thorough and thoughtful opinion dissenting from dismissal of the appeal in Poe v.
Ullman, 367 U.S. 497, 522 .

MR. JUSTICE REHNQUIST, dissenting.

The Court's opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal
scholarship. While the opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with
those parts of it that invalidate the Texas statute in question, and therefore dissent.

I
The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the
first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff
who was in her first trimester of pregnancy at some time during the pendency of her law-suit. While a party may
vindicate his own constitutional rights, he may not seek vindication for the rights of others. Moose Lodge v. Irvis, 407 U.S.
163 (1972); Sierra Club v. Morton, 405 U.S. 727 (1972). The Court's statement of facts in this case makes clear, however,
that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the time of filing
her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of
pregnancy as of the date the complaint was filed.

Nothing in the Court's opinion indicates that Texas might not constitutionally apply its proscription of abortion as written
to a woman in that stage of pregnancy. Nonetheless, the Court uses her complaint against the Texas statute as a
fulcrum for deciding that States may [410 U.S. 113, 172] impose virtually no restrictions on medical abortions performed
during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding
admonition that it should never "formulate a rule of constitutional law broader than is required by the precise facts to
which it is to be applied." Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39
(1885). See also Ashwander v. TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring).

II
Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a
conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of
"privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a
licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the
ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from
searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as
embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).

If the Court means by the term "privacy" no more than that the claim of a person to be free from unwanted state
regulation of consensual transactions may be a form of "liberty" protected by the Fourteenth Amendment, there is no
doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement
of MR. JUSTICE STEWART in his concurring opinion that the "liberty," against deprivation of which without due process the
Fourteenth [410 U.S. 113, 173] Amendment protects, embraces more than the rights found in the Bill of Rights. But that
liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test
traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a
rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). The Due Process Clause
of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws
such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt
that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But
the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that
standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the
established test is far more appropriate to a legislative judgment than to a judicial one.

The Court eschews the history of the Fourteenth Amendment in its reliance on the "compelling state interest" test. See
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 179 (1972) (dissenting opinion). But the Court adds a new wrinkle to
this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth
Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the
consequences of this transplanting of the "compelling state interest test," the Court's opinion will accomplish the
seemingly impossible feat of leaving this area of the law more confused than it found it. [410 U.S. 113, 174]

While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner v. New York, 198 U.S. 45, 74 (1905), the
result it reaches is more closely attuned to the majority opinion of Mr. Justice Peckham in that case. As in Lochner and
similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the
compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the
wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not
be "compelling." The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions
the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of
the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on
abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so
rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291
U.S. 97, 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is
evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was
apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly
with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the
Fourteenth [410 U.S. 113, 175] Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures
limiting abortion. 1 While many States have amended or updated [410 U.S. 113, 176] their laws, 21 of the laws on the
books in 1868 remain in effect today. 2 Indeed, the Texas statute struck down today was, as the majority notes, first
enacted in 1857 [410 U.S. 113, 177] and "has remained substantially unchanged to the present time." Ante, at 119.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the
Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to
have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

III
Even if one were to agree that the case that the Court decides were here, and that the enunciation of the substantive
constitutional law in the Court's opinion were proper, the actual disposition of the case by the Court is still difficult to
justify. The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of
pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that
a statute found [410 U.S. 113, 178] to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is
not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court. Yick
Wo v. Hopkins, 118 U.S. 356 (1886); Street v. New York, 394 U.S. 576 (1969).

For all of the foregoing reasons, I respectfully dissent.

[ Footnote 1 ] Jurisdictions having enacted abortion laws prior to the adoption of the Fourteenth Amendment in 1868:

1. Alabama - Ala. Acts, c. 6, 2 (1840).

2. Arizona - Howell Code, c. 10, 45 (1865).

3. Arkansas - Ark. Rev. Stat., c. 44, div. III, Art. II, 6 (1838).

4. California - Cal. Sess. Laws, c. 99, 45, p. 233 (1849-1850).

5. Colorado (Terr.) - Colo. Gen. Laws of Terr. of Colo., 1st Sess., 42, pp. 296-297 (1861).

6. Connecticut - Conn. Stat., Tit. 20, 14, 16 (1821). By 1868, this statute had been replaced by another abortion law.
Conn. Pub. Acts, c. 71, 1, 2, p. 65 (1860).

7. Florida - Fla. Acts 1st Sess., c. 1637, subc. 3, 10, 11, subc. 8, 9, 10, 11 (1868), as amended, now Fla. Stat. Ann. 782.09,
782.10, 797.01, 797.02, 782.16 (1965).

8. Georgia - Ga. Pen. Code, 4th Div., 20 (1833).

9. Kingdom of Hawaii - Hawaii Pen. Code, c. 12, 1, 2, 3 (1850).

10. Idaho (Terr.) - Idaho (Terr.) Laws, Crimes and Punishments 33, 34, 42, pp. 441, 443 (1863).

11. Illinois - Ill. Rev. Criminal Code 40, 41, 46, pp. 130, 131 (1827). By 1868, this statute had been replaced by a subsequent
enactment. Ill. Pub. Laws 1, 2, 3, p. 89 (1867).

12. Indiana - Ind. Rev. Stat. 1, 3, p. 224 (1838). By 1868 this statute had been superseded by a subsequent enactment.
Ind. Laws, c. LXXXI, 2 (1859).

13. Iowa (Terr.) - Iowa (Terr.) Stat., 1st Legis., 1st Sess., 18, p. 145 (1838). By 1868, this statute had been superseded by a
subsequent enactment. Iowa (Terr.) Rev. Stat., c. 49, 10, 13 (1843).

14. Kansas (Terr.) - Kan. (Terr.) Stat., c. 48, 9, 10, 39 (1855). By 1868, this statute had been superseded by a subsequent
enactment. Kan. (Terr.) Laws, c. 28, 9, 10, 37 (1859).

15. Louisiana - La. Rev. Stat., Crimes and Offenses 24, p. 138 (1856).

16. Maine - Me. Rev. Stat., c. 160, 11, 12, 13, 14 (1840).

17. Maryland - Md. Laws, c. 179, 2, p. 315 (1868).

18. Massachusetts - Mass. Acts & Resolves, c. 27 (1845).

19. Michigan - Mich. Rev. Stat., c. 153, 32, 33, 34, p. 662 (1846). [410 U.S. 113, 176] 20. Minnesota (Terr.) - Minn. (Terr.) Rev.
Stat., c. 100, 10, 11, p. 493 (1851).

21. Mississippi - Miss. Code, c. 64, 8, 9, p. 958 (1848).

22. Missouri - Mo. Rev. Stat., Art. II, 9, 10, 36, pp. 168, 172 (1835).

23. Montana (Terr.) - Mont. (Terr.) Laws, Criminal Practice Acts 41, p. 184 (1864).

24. Nevada (Terr.) - Nev. (Terr.) Laws, c. 28, 42, p. 63 (1861).

25. New Hampshire - N. H. Laws, c. 743, 1, p. 708 (1848).

26. New Jersey - N. J. Laws, p. 266 (1849).

27. New York - N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, 8, 9, pp. 12-13 (1828). By 1868, this statute had been superseded. N. Y.
Laws, c. 260, 1-6, pp. 285-286 (1845); N. Y. Laws, c. 22, 1, p. 19 (1846).

28. Ohio - Ohio Gen. Stat. 111 (1), 112 (2), p. 252 (1841).

29. Oregon - Ore. Gen. Laws, Crim. Code, c. 43, 509, p. 528 (1845-1864).

30. Pennsylvania - Pa. Laws No. 374, 87, 88, 89 (1860).

31. Texas - Tex. Gen. Stat. Dig., c. VII, Arts. 531-536, p. 524 (Oldham & White 1859).

32. Vermont - Vt. Acts No. 33, 1 (1846). By 1868, this statute had been amended. Vt. Acts No. 57, 1, 3 (1867).

33. Virginia - Va. Acts, Tit. II, c. 3, 9, p. 96 (1848).

34. Washington (Terr.) - Wash. (Terr.) Stats., c. II, 37, 38, p. 81 (1854).

35. West Virginia - See Va. Acts., Tit. II, c. 3, 9, p. 96 (1848); W. Va. Const., Art. XI, par. 8 (1863).

36. Wisconsin - Wis. Rev. Stat., c. 133, 10, 11 (1849). By 1868, this statute had been superseded. Wis. Rev. Stat., c. 164, 10,
11; c. 169, 58, 59 (1858).

[ Footnote 2 ] Abortion laws in effect in 1868 and still applicable as of August 1970:

1. Arizona (1865). 2. Connecticut (1860). 3. Florida (1868). 4. Idaho (1863). 5. Indiana (1838). [410 U.S. 113, 177] 6. Iowa
(1843). 7. Maine (1840). 8. Massachusetts (1845). 9. Michigan (1846). 10. Minnesota (1851). 11. Missouri (1835). 12.
Montana (1864). 13. Nevada (1861). 14. New Hampshire (1848). 15. New Jersey (1849). 16. Ohio (1841). 17. Pennsylvania
(1860). 18. Texas (1859). 19. Vermont (1867). 20. West Virginia (1863). 21. Wisconsin (1858). [410 U.S. 113, 179]

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-16439 July 20, 1961

ANTONIO GELUZ, petitioner,

vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Mariano H. de Joya for petitioner.

A.P. Salvador for respondents.
REYES, J.B.L., J.:

This petition for certiorari brings up for review question whether the husband of a woman, who voluntarily procured her
abortion, could recover damages from physician who caused the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of Nita Villanueva,
against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the evidence adduced,
the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering the latter to pay
P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special
division of five, sustained the award by a majority vote of three justices as against two, who rendered a separate
dissenting opinion.

The facts are set forth in the majority opinion as follows:

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 — through her aunt Paula
Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to
conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the
defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the
Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the
defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955,
accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's
clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was
again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The
plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he
did not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. Upon
application of the defendant Geluz we granted certiorari.

The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06 upon the provisions
of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe to be error, for the said article,
in fixing a minimum award of P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not
endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona
natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho
Privado", Vol. 1, p. 49), being incapable of having rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is
easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the
injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of
action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission
to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished from capacity
to act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under
Article 40 of the Civil Code, because that same article expressly limits such provisional personality by imposing the
condition that the child should be subsequently born alive: "provided it be born later with the condition specified in the
following article". In the present case, there is no dispute that the child was dead when separated from its mother's
womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can not had for the
death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242;
and numerous cases collated in the editorial note, 10 ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those
inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life and
physical integrity. Because the parents can not expect either help, support or services from an unborn child, they would
normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that was the
foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental
expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art.
2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis for an award of
moral damages, evidently because the appellee's indifference to the previous abortions of his wife, also caused by the
appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections.
The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that the appellee
was aware of the second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the
suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof,
and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the appellee does
not seem to have taken interest in the administrative and criminal cases against the appellant. His only concern appears
to have been directed at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages
and P3,000.00 attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which his
wife has deliberately sought at the hands of a physician would be highminded rather than mercenary; and
that his primary concern would be to see to it that the medical profession was purged of an unworthy member
rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either the
administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action
for damages of which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to
warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of
the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award
of damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners for their
information and such investigation and action against the appellee Antonio Geluz as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 26795 July 31, 1970

CARMEN QUIMIGUING, Suing through her parents, ANTONIO QUIMIGUING and JACOBA CABILIN, plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.

Torcuato L. Galon for plaintiffs-appellants.

Godardo Jacinto for defendant-appellee.

REYES, J.B.L., J.:

Appeal on points of law from an order of the Court of First Instance of Zamboanga del Norte (Judge Onofre Sison
Abalos, presiding), in its Civil Case No. 1590, dismissing a complaint for support and damages, and another order
denying amendment of the same pleading.

The events in the court of origin can be summarized as follows:

Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the court below. In her complaint it was
averred that the parties were neighbors in Dapitan City, and had close and confidential relations; that defendant Icao,
although married, succeeded in having carnal intercourse with plaintiff several times by force and intimidation, and
without her consent; that as a result she became pregnant, despite efforts and drugs supplied by defendant, and
plaintiff had to stop studying. Hence, she claimed support at P120.00 per month, damages and attorney's fees.

Duly summoned, defendant Icao moved to dismiss for lack of cause of action since the complaint did not allege that
the child had been born; and after hearing arguments, the trial judge sustained defendant's motion and dismissed the
complaint.

Thereafter, plaintiff moved to amend the complaint to allege that as a result of the intercourse, plaintiff had later given
birth to a baby girl; but the court, sustaining defendant's objection, ruled that no amendment was allowable, since the
original complaint averred no cause of action. Wherefore, the plaintiff appealed directly to this Court.

We find the appealed orders of the court below to be untenable. A conceived child, although as yet unborn, is given by
law a provisional personality of its own for all purposes favorable to it, as explicitly provided in Article 40 of the Civil Code
of the Philippines. The unborn child, therefore, has a right to support from its progenitors, particularly of the defendant-
appellee (whose paternity is deemed admitted for the purpose of the motion to dismiss), even if the said child is only "en
ventre de sa mere;" just as a conceived child, even if as yet unborn, may receive donations as prescribed by Article 742
of the same Code, and its being ignored by the parent in his testament may result in preterition of a forced heir that
annuls the institution of the testamentary heir, even if such child should be born after the death of the testator Article 854,
Civil Code).

ART. 742. Donations made to conceived and unborn children may be accepted by those persons
who would legally represent them if they were already born.

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devises and legacies shall be valid insofar as they are not
inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without
prejudice to the right of 'representation.

It is thus clear that the lower court's theory that Article 291 of the Civil Code declaring that support is an obligation of
parents and illegitimate children "does not contemplate support to children as yet unborn," violates Article 40 aforesaid,
besides imposing a condition that nowhere appears in the text of Article 291. It is true that Article 40 prescribing that "the
conceived child shall be considered born for all purposes that are favorable to it" adds further "provided it be born later
with the conditions specified in the following article" (i.e., that the foetus be alive at the time it is completely delivered
from the mother's womb). This proviso, however, is not a condition precedent to the right of the conceived child; for if it
were, the first part of Article 40 would become entirely useless and ineffective. Manresa, in his Commentaries (5th Ed.) to
the corresponding Article 29 of the Spanish Civil Code, clearly points this out:

Los derechos atribuidos al nasciturus no son simples expectativas, ni aun en el sentido tecnico que la
moderna doctrina da a esta figura juridica sino que constituyen un caso de los propiamente
Ilamados 'derechos en estado de pendenci'; el nacimiento del sujeto en las condiciones previstas por
el art. 30, no determina el nacimiento de aquellos derechos (que ya existian de antemano), sino que
se trata de un hecho que tiene efectos declarativos. (1 Manresa, Op. cit., page 271)

A second reason for reversing the orders appealed from is that for a married man to force a woman not his wife to yield
to his lust (as averred in the original complaint in this case) constitutes a clear violation of the rights of his victim that
entitles her to claim compensation for the damage caused. Says Article 21 of the Civil Code of the Philippines:

ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage.

The rule of Article 21 is supported by Article 2219 of the same Code:

ART 2219. Moral damages may be recovered in the following and analogous cases:

(3) Seduction, abduction, rape or other lascivious acts:

xxx xxx xxx

 (10) Acts and actions referred to in Articles 21, 26, 27, 28 ....

Thus, independently of the right to Support of the child she was carrying, plaintiff herself had a cause of action for
damages under the terms of the complaint; and the order dismissing it for failure to state a cause of action was doubly in
error.

WHEREFORE, the orders under appeal are reversed and set aside. Let the case be remanded to the court of origin for
further proceedings conformable to this decision. Costs against appellee Felix Icao. So ordered.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

EN BANC

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

ANTONIA L. DE JESUS, ET AL., Plaintiff-Appellant, vs. CESAR SYQUIA,Defendant-Appellant.

Jose Sotelo for plaintiffs-appellants.

Vicente J. Francisco for defendant-appellant.

STREET, J.:

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 chanrobles virtual law library

Rev. FATHER,chanrobles virtual law library

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

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles
virtual law library

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 of junior also.chanroblesvirtualawlibrary chanrobles
virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 Code. 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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

The judgment appealed from is in all respects affirmed, without costs. So ordered.chanroblesvirtualawlibrary chanrobles
virtual law library

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

Separate Opinions

chanrobles virtual law library

VILLA-REAL, J., dissenting:chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

The first conclusion is drawn from Exhibits C, F, G, H, and J.chanroblesvirtualawlibrary chanrobles virtual law library

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 chanrobles virtual law library

Rev. PADRE:chanrobles virtual law library

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

(Fdo.) CESAR SYQUIA

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:chanrobles virtual law library

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. ..."chanrobles virtual law library

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

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

Exhibit J, June 1, 1931: "Cuidate bien y junior tambien . ..."chanrobles virtual law library

Article 135, number 1, provides as follows:

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

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 paternidad.

xxx xxx x x xchanrobles virtual law library

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.

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 x x xchanrobles virtual law library

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 E.chanroblesvirtualawlibrary chanrobles virtual law library

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 casa.

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).chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 authorities:chanrobles virtual law library

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 x x xchanrobles virtual law library

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
expreso.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library

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

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

EN BANC

G.R. No. L-770 April 27, 1948

ANGEL T. LIMJOCO, Petitioner, vs. INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, Respondent.

Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner.

Bienvenido A. Tan for respondent.

HILADO, J.:

Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibañez, rendered its
decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain
and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the
public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and
maintenance of another ice plant of two and one-half (2- ) tons in the municipality of San Juan; that the original
applicant Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is financially
capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and
ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of public
convenience be issued to the Intestate Estate of the deceased Pedro Fragante, authorizing said Intestate Estate through
its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate
an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan and to sell
the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and
in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 33-
34).chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner makes four assignments of error in his brief as follows:

1. The decision of the Public Service Commission is not in accordance with law.chanroblesvirtualawlibrary chanrobles
virtual law library
2. The decision of the Public Service Commission is not reasonably supported by
evidence.chanroblesvirtualawlibrary chanrobles virtual law library

3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines,
Inc., as existing operators, a reasonable opportunity to meet the increased
demand.chanroblesvirtualawlibrary chanrobles virtual law library

4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to
the establishment and operation of ice plant. (Pp. 1-2, petitioner's brief.)

In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal
representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the
commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention
of law.chanroblesvirtualawlibrary chanrobles virtual law library

If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his
application before the commission to its final conclusion. No one would have denied him that right. As declared by the
commission in its decision, he had invested in the ice plant in question P 35,000, and from what the commission said
regarding his other properties and business, he would certainly have been financially able to maintain and operate said
plant had he not died. His transportation business alone was netting him about P1,440 a month. He was a Filipino citizen
and continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that
his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to
prosecute said application to its conclusion was one which by its nature did not lapse through his death. Hence, it
constitutes a part of the assets of his estate, for which a right was property despite the possibility that in the end the
commission might have denied application, although under the facts of the case, the commission granted the
application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his
memorandum of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule,
should descend to his estate as an asset". Such certificate would certainly be property, and the right to acquire such a
certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his
estate and judicial administrator after his death.chanroblesvirtualawlibrary chanrobles virtual law library

If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life of the option he
died, if the option had been given him in the ordinary course of business and not out of special consideration for his
person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal
representatives. In such a case there would also be the possibility of failure to acquire the property should he or his
estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's
undoubted right to apply for and acquire the desired certificate of public convenience - the evidence established that
the public needed the ice plant - was under the law conditioned only upon the requisite citizenship and economic
ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public
convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation
here is no different from the legal standpoint from that of the option in the illustration just
given.chanroblesvirtualawlibrary chanrobles virtual law library

Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the
protection of the property or rights of the deceased which survive, and it says that such actions may be brought or
defended "in the right of the deceased".chanroblesvirtualawlibrary chanrobles virtual law library

Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an
inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or
knowledge, or to the possession of any other person for him.chanroblesvirtualawlibrary chanrobles virtual law library

In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief Justice of this Court
draws the following conclusion from the decisions cited by him:

Therefore, unless otherwise expressly provided by law, any action affecting the property or rights (emphasis supplied) of
a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted
by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very
nature, it cannot survive, because death extinguishes the right . . . .

It is true that a proceeding upon the application for a certificate of public convenience before the Public Service
Commission is not an "action". But the foregoing provisions and citations go to prove that the decedent's rights which by
their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being
placed under the control and management of the executor or administrator, can not be exercised but by him in
representation of the estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent.
And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a
certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal
representative be empowered and entitled in behalf of the estate to make the right effective in that
proceeding.chanroblesvirtualawlibrary chanrobles virtual law library

Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code, respectively, consider
as immovable and movable thingsrights which are not material. The same eminent commentator says in the cited
volume (p. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all
incorporeal rights which are also property for juridical purposes.chanroblesvirtualawlibrary chanrobles virtual law library

Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among other things, "an
option", and "the certificate of the railroad commission permitting the operation of a bus line", and on page 748 of the
same volume we read:

However, these terms (real property, as estate or interest) have also been declared to include every species of
title, inchoate or complete, and embrace rights which lie in contract, whether executory or executed. (Emphasis
supplied.)

Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a "person" within the
meaning of the Public Service Act.chanroblesvirtualawlibrary chanrobles virtual law library

Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of the State of Indiana:

As the estate of the decedent is in law regarded as a person, a forgery committed after the death of the man whose
name purports to be signed to the instrument may be prosecuted as with the intent to defraud the estate. Billings vs.
State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77.

The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of
one Morgan for the purpose of defrauding his estate. The objection was urged that the information did not aver that the
forgery was committed with the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as
follows:

. . . The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a
person. This intention (contention) cannot prevail. The estate of the decedent is a person in legal contemplation. "The
word "person" says Mr. Abbot, "in its legal signification, is a generic term, and includes artificial as well as natural persons,"
2 Abb. Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in
another work that 'persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons
include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the
law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized only to a limited
extent in our law. "Examples are the estate of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own
cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they
declare that it is sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the estate of
the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would
be a failure of justice in cases where, as here, the forgery is committed after the death of a person whose name is
forged; and this is a result to be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding
such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial
person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made, and,
although natural persons as heirs, devises, or creditors, have an interest in the property, the artificial creature is a distinct
legal entity. The interest which natural persons have in it is not complete until there has been a due administration; and
one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as
having intended to defraud the estate of the decedent, and not the natural persons having diverse interests in it, since
ha cannot be presumed to have known who those persons were, or what was the nature of their respective interest. The
fraudulent intent is against the artificial person, - the estate - and not the natural persons who have direct or contingent
interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.)

In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is considered a
"person", for quashing of the proceedings for no other reason than his death would entail prejudicial results to his
investment amounting to P35,000.00 as found by the commission, not counting the expenses and disbursements which
the proceeding can be presumed to have occasioned him during his lifetime, let alone those defrayed by the estate
thereafter. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also
considered as having legal personality independent of their heirs. Among the most recent cases may be mentioned that
of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was the estate of the deceased
Lazaro Mota, and this Court gave judgment in favor of said estate along with the other plaintiffs in these words:

. . . the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are
indebted to he plaintiffs in the amount of P245,804.69 . . . .

Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the heirs of a deceased
person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article
661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his
death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil
Procedure, article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13, 22. In that
case, as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in
the matter of estates of deceased persons, it has been the constant doctrine that it is the estate or the mass of property,
rights and assets left by the decedent, instead of the heirs directly, that becomes vested and charged with his rights and
obligations which survive after his demise.chanroblesvirtualawlibrary chanrobles virtual law library

The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction, for they
might not have been flesh and blood - the reason was one in the nature of a legal exigency derived from the principle
that the heirs succeeded to the rights and obligations of the decedent. Under the present legal system, such rights and
obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased. And if the same
legal fiction were not indulged, there would be no juridical basis for the estate, represented by the executor or
administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason and purpose for
indulging the fiction is identical and the same in both cases. This is why according to the Supreme Court of Indiana in
Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a
collection of property to which the law attributes the capacity of having rights and duties", as for instance, the estate of
a bankrupt or deceased person.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be considered a "citizen of
the Philippines" within the meaning of section 16 of the Public Service Act, as amended, particularly the proviso thereof
expressly and categorically limiting the power of the commission to issue certificates of public convenience or
certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to
corporations, copartnerships, associations, or joint-stock companies constituted and organized under the laws of the
Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong
entirely to citizens of the Philippines or of the United States.chanroblesvirtualawlibrary chanrobles virtual law library

Within the Philosophy of the present legal system, the underlying reason for the legal fiction by which, for certain
purposes, the estate of the deceased person is considered a "person" is the avoidance of injustice or prejudice resulting
from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after
his death unless the fiction is indulged. Substantially the same reason is assigned to support the same rule in the
jurisdiction of the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said State said:

. . . It seems reasonable that the estate of a decedent should be regarded as an artificial person. it is the creation of law
for the purpose of enabling a disposition of the assets to be properly made . . . .

Within the framework and principles of the constitution itself, to cite just one example, under the bill of rights it seems
clear that while the civil rights guaranteed therein in the majority of cases relate to natural persons, the term "person"
used in section 1 (1) and (2) must be deemed to include artificial or juridical persons, for otherwise these latter would be
without the constitutional guarantee against being deprived of property without due process of law, or the immunity
from unreasonable searches and seizures. We take it that it was the intendment of the framers to include artificial or
juridical, no less than natural, persons in these constitutional immunities and in others of similar nature. Among these
artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the framework of the
Constitution, the estate of Pedro O. Fragrante should be considered an artificial or juridical person for the purposes of the
settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of
those rights and the fulfillment of those obligations of his which survived after his death. One of those rights was the one
involved in his pending application before the Public Service Commission in the instant case, consisting in the
prosecution of said application to its final conclusion. As stated above, an injustice would ensue from the opposite
course.chanroblesvirtualawlibrary chanrobles virtual law library

How about the point of citizenship? If by legal fiction his personality is considered extended so that any debts or
obligations left by, and surviving, him may be paid, and any surviving rights may be exercised for the benefit of his
creditors and heirs, respectively, we find no sound and cogent reason for denying the application of the same fiction to
his citizenship, and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding
before the Public Service Commission. The outcome of said proceeding, if successful, would in the end inure to the
benefit of the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the legal
sense, any more than he could have done if Fragrante had lived longer and obtained the desired certificate. The fiction
of such extension of his citizenship is grounded upon the same principle, and motivated by the same reason, as the
fiction of the extension of personality. The fiction is made necessary to avoid the injustice of subjecting his estate,
creditors and heirs, solely by reason of his death to the loss of the investment amounting to P35,000, which he has
already made in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the Public
Service Commission of this Court.chanroblesvirtualawlibrary chanrobles virtual law library

We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its provisions on
Philippine citizenship exclude the legal principle of extension above adverted to. If for reasons already stated our law
indulges the fiction of extension of personality, if for such reasons the estate of Pedro O. Fragrante should be considered
an artificial or juridical person herein, we can find no justification for refusing to declare a like fiction as to the extension
of his citizenship for the purposes of this proceeding.chanroblesvirtualawlibrary chanrobles virtual law library

Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of record, he would have
obtained from the commission the certificate for which he was applying. The situation has suffered but one change, and
that is, his death. His estate was that of a Filipino citizen. And its economic ability to appropriately and adequately
operate and maintain the service of an ice plant was the same that it received from the decedent himself. In the
absence of a contrary showing, which does not exist here, his heirs may be assumed to be also Filipino citizens; and if
they are not, there is the simple expedient of revoking the certificate or enjoining them from inheriting
it.chanroblesvirtualawlibrary chanrobles virtual law library

Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572 of the Public
Service Commission to its final conclusion, both the personality and citizenship of Pedro O. Fragrante must be deemed
extended, within the meaning and intent of the Public Service Act, as amended, in harmony with the constitution: it is so
adjudged and decreed.chanroblesvirtualawlibrary chanrobles virtual law library

Decision affirmed, without costs. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.

Separate Opinions chanrobles virtual law library

PERFECTO, J., dissenting:chanrobles virtual law library

Commonwealth Act No. 146 reserves to Filipino citizens the right to obtain a certificate of public convenience to operate
an ice plant in San Juan, Rizal. The limitation is in accordance with section 8 of Article XIV of the Constitution which
provides

No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to
citizens of the Philippines or to corporations or other entities organized under the laws of the Philippines, sixty per centum
of the capital of which is owned by citizens of the Philippines, nor such franchise, certificate or authorization be exclusive
in character or for a longer period than fifty years. No franchise granted to any individual, firm or corporation, except
under the condition that it shall be subject to amendment, alteration, or repeal by Congress when the public interest so
requires.

The main question in this case is whether the estate of Pedro O. Fragrante fulfills the citizenship requirement. To our mind,
the question can be restated by asking whether the heirs of Pedro O. Fragrante fulfill the citizenship requirement of the
law.chanroblesvirtualawlibrary chanrobles virtual law library

The estate is an abstract entity. As such, its legal value depends on what it represents. It is a device by which the law
gives a kind of personality and unity to undetermined tangible persons, the heirs. They inherit and replace the deceased
at the very moment of his death. As there are procedural requisites for their identification and determination that need
time for their compliance, a legal fiction has been devised to represent them. That legal fiction is the estate, a liquid
condition in process of solidification.chanroblesvirtualawlibrary chanrobles virtual law library

The estate, therefore, has only a representative value. What the law calls estate is, a matter of fact, intended to
designate the heirs of the deceased. The question, therefore, in this case, boils down to the citizenship of the heirs of
Fragrante.chanroblesvirtualawlibrary chanrobles virtual law library

There is nothing in the record to show conclusively the citizenship of the heirs of Fragrante. If they are Filipino citizens, the
action taken by the Public Service Commission should be affirmed. If they are not, it should be
reversed.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner alleges that the estate is just a front or dummy for aliens to go around the citizenship constitutional provision. It
is alleged that Gaw Suy, the special administrator of the estate, is an alien.chanroblesvirtualawlibrary chanrobles virtual
law library

We are of the opinion that the citizenship of the heirs of Fragrante should be determined by the Commission upon
evidence that the party should be present. It should also determine the dummy question raised by the
petitioner.chanroblesvirtualawlibrary chanrobles virtual law library

We are of opinion and so vote that the decision of the Public Service Commission of May 21, 1946, be set aside and that
the Commission be instructed to receive evidence of the above factual questions and render a new decision
accordingly.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-27956 April 30, 1976

DIONISIO DUMLAO, in his own behalf and in his capacity as Administrator of the Testate Estate of the late Pedro Oria;
FAUSTA DUMLAO, AMADO DUMLAO, and BENJAMIN DUMLAO, plaintiffs-appellants,
vs.
QUALITY PLASTIC PRODUCTS, INC., defendant-appellee.

Castillo & Castillo for appellants.

Eugenio T. Estavillo for appellee.

AQUINO, J.:p

On February 28, 1962 the Court of First Instance of Pangasinan in Civil Case No.
T-662 rendered a judgment ordering defendants Vicente Soliven, Pedro Oria, Santiago Laurencio, Marcelino Sumalbag
and Juana Darang to pay solidarity Quality Plastic Products, Inc. the sum of P3,667.03 plus the legal rate of interest from
November, 1958. The lower court directed that in case the defendants failed to pay the said amount before its decision
became final, then Quality Plastic Products, Inc. "is hereby authorized to foreclose the bond, Exhibit A, in accordance
with law, for the satisfaction of the judgment". (Under that bond the four sureties bound themselves to answer solidarity
for the obligations of the principal, Vicente Soliven and certain real properties of the sureties were "given as security for"
their undertaking).

Upon defendants' failure to pay the amount of the judgment and after the decision had become final, the lower court,
on motion of Quality Plastic Products, Inc., ordered the "foreclosure" of the surety bond and the sale at public auction of
the land of Pedro Oria which he had given as security under the bond. Oria's land, which was covered by Original
Certificate of Title No. 28732 and has an area of nine and six-tenths hectares, was levied upon and sold by the sheriff at
public auction on September 24, 1962. The sale was confirmed by the lower court in its order of November 20, 1962.
It turned out that Oria died on April 23, 1959 or long before June 13, 1960 when the action was filed. Oria's death was not
known to Quality Plastic Products, Inc. Nor were the representatives of Quality Plastic Products, Inc. aware that in the
same Tayug court Special Proceeding No. T-212, Testate Estate of the deceased Pedro Oria, was pending.

The summons and copies of the complaint for the five defendants in Civil Case No.
T-662 had been personally served on June 24, 1960 by a deputy sheriff on Soliven, the principal in the bond, who
acknowledged such service by signing on the back of the original summons in his own behalf and again signing for his
co-defendants.

On March 1, 1963 Dionisio, Fausta, Amado and Benjamin, all surnamed Dumlao and all testamentary heirs in Oria's duly
probated will, sued Quality Plastic Products, Inc., also in the Tayug court for the annulment of the judgment against Oria
and the execution against his land. (Dionisio Dumlao also sued in his capacity as administrator of Oria's testate estate).

The ground for annulment was lack of jurisdiction over the person of the deceased Oria (Civil Case No. T- 873). It was
only when Quality Plastic Products, Inc. received the summons in Civil Case No. T-873 that it learned that Oria was
already dead at the time the prior case, Civil Case No. T-662, was filed.

Quality Plastic Products, Inc. in its answer alleged that Oria's heirs were aware of the suit against Soliven and his sureties
and that the said heirs were estopped to question the court's jurisdiction over Oria.

After hearing the lower court held that it acquired jurisdiction over Soliven and the other defendants in Civil Case No. T-
662 by reason of their voluntary appearance. It reasoned out that Soliven acted in bad faith because he did not apprise
the court that Oria was dead. It specifically ruled that "it had acquired jurisdiction over the person" of Oria and that the
judgment was valid as to him. From that decision the plaintiffs appealed.

The four assignments of error of appellants Dumlao may be boiled down to the issue as to the validity of the lower court's
judgment against the deceased Pedro Oria who, being already in the other world, was never served with summons.

There is no difficulty in resolving that issue. Since no jurisdiction was acquired over Oria, the judgment against him is a
patent nullity (Ang Lam vs. Rosillosa and Santiago, 86 Phil. 447; Asuncion vs. Nieto, 4 Phil. 97; Gorostiaga vs. Sarte, 68 Phil.
4).

As far as Oria was concerned, the lower court's judgment against him in Civil Case No. T-662 is void for lack of jurisdiction
over his person. He was not, and he could not have been, validly served with summons. He had no more civil personality.
His juridical capacity, which is the fitness to be the subject of legal relations, was lost through death. (Arts. 37 and 42, Civil
Code).

The lower court erred in ruling that since Soliven's counsel also appeared as counsel for Oria, there was a voluntary
appearance which enabled the court to acquire jurisdiction over Oria, as contemplated in section 23, Rule 14 of the
Revised Rules of Court. Soliven's counsel could not have validly appeared for a dead co-defendant. Estoppel has no
application to this case.

But from the fact that appellants Dumlao had to sue Quality Plastic Products, Inc. in order to annul the judgment against
Oria, it does not follow that they are entitled to claim attorney's fees against that corporation. The parties herein agreed
in their stipulation of facts that Quality Plastic Products, Inc. was unaware of Oria's death. Appellants Dumlao in effect
conceded that the appellee acted in good faith in joining Oria as a co-defendant.

WHEREFORE, the lower court's decision is reversed and set aside. Its judgment in Civil Case No. T-662 against Pedro Oria is
declared void for lack of jurisdiction. The execution sale of Oria's land covered by OCT No. 28732 is also void. No costs.

SO ORDERED.

Fernando, Barredo, Antonio and Concepcion, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. 85140 May 17, 1990

TOMAS EUGENIO, SR., petitioner,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, DEPUTY SHERIFF
JOHNSON TAN, JR., Deputy Sheriff of Branch 20, Regional Trial Court, Cagayan de Oro City, and the Private Respondents,
the petitioners in Sp. Proc. No. 88-55, for "Habeas Corpus", namely: CRISANTA VARGAS-SANCHEZ, SANTOS and NARCISA
VARGAS-BENTULAN, respondents.

G.R. No. 86470 May 17, 1990.

TOMAS EUGENIO, petitioner-appellant,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, CRISANTA VARGAS-
SANCHEZ, FELIX VARGAS, ERNESTO VARGAS, NATIVIDAD VARGAS-CAGAPE, NENITA VARGAS-CADENAS, LUDIVINA
VARGAS-DE LOS SANTOS and NARCISA VARGAS-BENTULAN, respondents-appellees.

Maximo G. Rodriguez for petitioner.

Erasmo B. Damasing and Oliver Asis Improso for respondents.

PADILLA, J.:

On 5 October 1988, petitioner came to this Court with a petition for certiorari and prohibition with application for
restraining order and/or injunction (docketed as G.R. No. 85140) seeking to enjoin respondent Judge from proceeding
with the Habeas Corpus case (Sp. Proc. No. 88- 55, RTC, Branch 20, Cagayan de Oro City), * the respondent Sheriff from
enforcing and implementing the writ and orders of the respondent Judge dated 28, 29, and 30 September 1988, and to
declare said writ and orders as null and void. In a resolution issued on 11 October 1988, this Court required comment
from the respondents on the petition but denied the application for a temporary restraining order.

The records disclose the following:

Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her full blood brothers and sisters,
herein private respondents (Vargases', for brevity) filed on 27 September 1988, a petition for habeas corpusbefore the
RTC of Misamis Oriental (Branch 20, Cagayan de Oro City) alleging that Vitaliana was forcibly taken from her residence
sometime in 1987 and confined by herein petitioner in his palacial residence in Jasaan, Misamis Oriental. Despite her
desire to escape, Vitaliana was allegedly deprived of her liberty without any legal authority. At the time the petition was
filed, it was alleged that Vitaliana was 25 years of age, single, and living with petitioner Tomas Eugenio.

The respondent court in an order dated 28 September 1988 issued the writ of habeas corpus, but the writ was returned
unsatisfied. Petitioner refused to surrender the body of Vitaliana (who had died on 28 August 1988) to the respondent
sheriff, reasoning that a corpse cannot be the subject of habeas corpus proceedings; besides, according to petitioner,
he had already obtained a burial permit from the Undersecretary of the Department of Health, authorizing the burial at
the palace quadrangle of the Philippine Benevolent Christian Missionary, Inc. (PBCM), a registered religious sect, of
which he (petitioner) is the Supreme President and Founder.

Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his residence on 28 August
1988. As her common law husband, petitioner claimed legal custody of her body. These reasons were incorporated in an
explanation filed before the respondent court. Two (2) orders dated 29 and 30 September 1988 were then issued by
respondent court, directing delivery of the deceased's body to a funeral parlor in Cagayan de Oro City and its autopsy.

Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to dismiss the petition therein,
claiming lack of jurisdiction of the court over the nature of the action under sec. 1(b) of Rule 16 in relation to sec. 2, Rule
72 of the Rules of Court.1 A special proceeding for habeas corpus, petitioner argued, is not applicable to a dead person
but extends only to all cases of illegal confinement or detention of a live person.

Before resolving the motion to dismiss, private respondents (as petitioners below) were granted leave to amend their
petition. 2 Claiming to have knowledge of the death of Vitaliana only on 28 September 1988 (or after the filing of
the habeas corpus petition), private respondents (Vargases') alleged that petitioner Tomas Eugenia who is not in any
way related to Vitaliana was wrongfully interfering with their (Vargases') duty to bury her. Invoking Arts. 305 and 308 of
the Civil Code, 3 the Vargases contended that, as the next of kin in the Philippines, they are the legal custodians of the
dead body of their sister Vitaliana. An exchange of pleadings followed. The motion to dismiss was finally submitted for
resolution on 21 October 1988.

In the absence of a restraining order from this Court, proceedings continued before the respondent court; the body was
placed in a coffin, transferred to the Greenhills Memorial Homes in Cagayan de Oro City, viewed by the presiding Judge
of respondent court, and examined by a duly authorized government pathologist. 4

Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated 17 November 1988, that:

It should be noted from the original petition, to the first amended petition, up to the second amended
petition that the ultimate facts show that if the person of Vitaliana Vargas turns out to be dead then
this Court is being prayed to declare the petitioners as the persons entitled to the custody, interment
and/or burial of the body of said deceased. The Court, considering the circumstance that Vitaliana
Vargas was already dead on August 28, 1988 but only revealed to the Court on September 29, 1988
by respondent's counsel, did not lose jurisdiction over the nature and subject matter of this case
because it may entertain this case thru the allegations in the body of the petition on the
determination as to who is entitled to the custody of the dead body of the late Vitaliana Vargas as
well as the burial or interment thereof, for the reason that under the provisions of Sec. 19 of Batas
Pambansa Blg. 129, which reads as follows:

Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive original jurisdiction:

(1) In all civil actions in which the subject of the litigation is incapable of pecuniary
estimation;

xxx xxx xxx

(5) In all actions involving the contract of marriage and marital relations;

(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or
body exercising judicial or quasi-judicial functions:

xxx xxx xxx

it so provides that the Regional Trial Court has exclusive original jurisdiction to try this case. The
authority to try the issue of custody and burial of a dead person is within the lawful jurisdiction of this
Court because of Batas Pambansa Blg. 129 and because of the allegations of the pleadings in this
case, which are enumerated in Sec. 19, pars. 1, 5 and 6 of Batas Pambansa Blg. 129.

Thereafter, the court a quo proceeded as in or civil cases and, in due course, rendered a decision on 17 January
1989, 6 resolving the main issue of whether or not said court acquired jurisdiction over the case by treating it as an action
for custody of a dead body, without the petitioners having to file a separate civil action for such relief, and without the
Court first dismissing the original petition for habeas corpus.

Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the Judiciary Reorganization Act of 1981), 7 Sections 5 and 6 of
Rule 135 of the Rules of Court8 Articles 305 and 308 in relation to Article 294 of the Civil Code and Section 1104 of the
Revised Administrative Code, 9 the decision stated:

. . . . By a mere reading of the petition the court observed that the allegations in the original petition
as well as in the two amended petitions show that Vitaliana Vargas has been restrained of her liberty
and if she were dead then relief was prayed for the custody and burial of said dead person. The
amendments to the petition were but elaborations but the ultimate facts remained the same, hence,
 this court strongly finds that this court has ample jurisdiction to entertain and sit on this case as an
action for custody and burial of the dead body because the body of the petition controls and is
binding and since this case was raffled to this court to the exclusion of all other courts, it is the primary
duty of this court to decide and dispose of this case. . . . . 10

Satisfied with its jurisdiction, the respondent court then proceeded to the matter of rightful custody over the dead body,
(for purposes of burial thereof). The order of preference to give support under Art. 294 was used as the basis of the
award. Since there was no surviving spouse, ascendants or descendants, the brothers and sisters were preferred over
petitioner who was merely a common law spouse, the latter being himself legally married to another woman. 11

On 23 January 1989, a new petition for review with application for a temporary restraining order and/or preliminary
injunction was filed with this Court (G.R. No. 86470). Raised therein were pure questions of law, basically Identical to those
raised in the earlier petition (G.R. No. 85140); hence, the consolidation of both cases. 12 On 7 February 1989, petitioner
filed an urgent motion for the issuance of an injunction to maintain status quo pending appeal, which this Court denied
in a resolution dated 23 February 1989 stating that "Tomas Eugenio has so far failed to sufficiently establish a clear legal
right to the custody of the dead body of Vitaliana Vargas, which now needs a decent burial." The petitions were then
submitted for decision without further pleadings.

Between the two (2) consolidated petitions, the following issues are raised:

1. propriety of a habeas corpus proceeding under Rule 102 of the Rules of Court to recover custody of
the dead body of a 25 year old female, single, whose nearest surviving claimants are full blood
brothers and sisters and a common law husband.

2. jurisdiction of the RTC over such proceedings and/or its authority to treat the action as one for
custody/possession/authority to bury the deceased/recovery of the dead.

3. interpretation of par. 1, Art. 294 of the Civil Code (Art. 199 of the new Family
Code) which states:

Art. 294. The claim for support, when proper and two or more persons are obliged
to give it, shall be made in the following order:

(1) From the spouse;

xxx xxx xxx

Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of the Regional Trial Courts over civil
cases. Under Sec. 2, Rule 102 of the Rules of Court, the writ of habeas corpus may be granted by a Court of First Instance
(now Regional Trial Court). It is an elementary rule of procedure that what controls is not the caption of the complaint or
petition; but the allegations therein determine the nature of the action, and even without the prayer for a specific
remedy, proper relief may nevertheless be granted by the court if the facts alleged in the complaint and the evidence
introduced so warrant. 13

When the petition for habeas corpus was filed before the court a quo, it was not certain whether Vitaliana was dead or
alive. While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfimetory operation on
the filing of the petition. Judicial discretion is exercised in its issuance, and such facts must be made to appear to the
judge to whom the petition is presented as, in his judgment, prima facie entitle the petitioner to the writ. 14 While the
court may refuse to grant the writ if the petition is insufficient in form and substance, the writ should issue if the petition
complies with the legal requirements and its averments make a prima facie case for relief. However, a judge who is
asked to issue a writ of habeas corpus need not be very critical in looking into the petition for very clear grounds for the
exercise of this jurisdiction. The latter's power to make full inquiry into the cause of commitment or detention will enable
him to correct any errors or defects in the petition. 15

In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the dismissal of a habeas corpus petition filed by a brother
to obtain custody of a minor sister, stating:

All these circumstances notwithstanding, we believe that the case should not have been dismissed.
The court below should not have overlooked that by dismissing the petition, it was virtually sanctioning
the continuance of an adulterous and scandalous relation between the minor and her married
 employer, respondent Benildo Nunez against all principles of law and morality. It is no excuse that the
minor has expressed preference for remaining with said respondent, because the minor may not
chose to continue an illicit relation that morals and law repudiate.

xxx xxx xxx

The minor's welfare being the paramount consideration, the court below should not allow the
technicality, that Teofilo Macazo was not originally made a party, to stand in the way of its giving the
child full protection. Even in a habeas corpus proceeding the court had power to award temporary
custody to the petitioner herein, or some other suitable person, after summoning and hearing all
parties concerned. What matters is that the immoral situation disclosed by the records be not allowed
to continue. 17

After the fact of Vitaliana's death was made known to the petitioners in the habeas corpus proceedings, amendment of
the petition for habeas corpus, not dismissal, was proper to avoid multiplicity of suits. Amendments to pleadings are
generally favored and should be liberally allowed in furtherance of justice in order that every case may so far as possible
be determined on its real facts and in order to expedite the trial of cases or prevent circuity of action and unnecessary
expense, unless there are circumstances such as inexcusable delay or the taking of the adverse party by surprise or the
like, which justify a refusal of permission to amend. 18 As correctly alleged by respondents, the writ of habeas corpus as a
remedy became moot and academic due to the death of the person allegedly restrained of liberty, but the issue of
custody remained, which the court a quo had to resolve.

Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the term spouse used therein not being
preceded by any qualification; hence, in the absence of such qualification, he is the rightful custodian of Vitaliana's
body. Vitaliana's brothers and sisters contend otherwise. Indeed, Philippine Law does not recognize common law
marriages. A man and woman not legally married who cohabit for many years as husband and wife, who represent
themselves to the public as husband and wife, and who are reputed to be husband and wife in the community where
they live may be considered legally mauled in common law jurisdictions but not in the Philippines. 19

While it is true that our laws do not just brush aside the fact that such relationships are present in our society, and that
they produce a community of properties and interests which is governed by law, 20 authority exists in case law to the
effect that such form of co-ownership requires that the man and woman living together must not in any way be
incapacitated to contract marriage. 21 In any case, herein petitioner has a subsisting marriage with another woman, a
legal impediment which disqualified him from even legally marrying Vitaliana. In Santero vs. CFI of Cavite, 22 ,the Court,
thru Mr. Justice Paras, interpreting Art. 188 of the Civil Code (Support of Surviving Spouse and Children During Liquidation
of Inventoried Property) stated: "Be it noted however that with respect to 'spouse', the same must be the legitimate
'spouse' (not common-law spouses)."

There is a view that under Article 332 of the Revised Penal Code, the term "spouse" embraces common law relation for
purposes of exemption from criminal liability in cases of theft, swindling and malicious mischief committed or caused
mutually by spouses. The Penal Code article, it is said, makes no distinction between a couple whose cohabitation is
sanctioned by a sacrament or legal tie and another who are husband and wife de facto.23 But this view cannot even
apply to the facts of the case at bar. We hold that the provisions of the Civil Code, unless expressly providing to the
contrary as in Article 144, when referring to a "spouse" contemplate a lawfully wedded spouse. Petitioner vis-a-vis
Vitaliana was not a lawfully-wedded spouse to her; in fact, he was not legally capacitated to marry her in her lifetime.

Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers and sisters (the Vargases).
Section 1103 of the Revised Administrative Code provides:

Sec. 1103. Persons charged with duty of burial. — The immediate duty of burying the body of a
deceased person, regardless of the ultimate liability for the expense thereof, shall devolve upon the
persons hereinbelow specified:

xxx xxx xxx

(b) If the deceased was an unmarried man or woman, or a child, and left any kin,
the duty of burial shall devolve upon the nearest of kin of the deceased, if they be
adults and within the Philippines and in possession of sufficient means to defray the
necessary expenses.

WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby DISMISSED. No Costs.
SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Sarmiento, Cortes, Medialdea and
Regalado, JJ., concur.

Gancayco and Grino-Aquino, JJ., are on leave.

Footnotes

* Hon. Alejandro Velez, presiding.

1 Rule 16 (Motion to Dismiss):

Sec. 1. Grounds. — Within the time for pleading a motion to dismiss the action may be made on any
of the following grounds:

(a) . . .

(b) That the court has no jurisdiction over the nature of the action or suit;

Rule 72 (Subject Matter and Applicability of General Rules)

xxx xxx xxx

Sec. 2. Applicability of rules of civil actions. — In the absence of special provisions, the rules provided
for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

2 3 and 11 October 1988 orders, Record of Regional Trial Court Proceedings, pp. 74, 75 & 102.

3 Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be in
accordance with the order established for support, under article 294. In case of descendants of the
same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the
paternal shall have a better right.

Art. 308. No human remains shall be retained, interred disposed of or exhumed without the consent of
the persons mentioned in Articles 294 and 305.

4 Record of RTC Proceedings, pp. 296-297.

5 Ibid., p. 338.

6 Record of RTC Proceedings, p. 577.

7 Supra.

8 Sec. 5 — Inherent power of courts; Sec. 6 — means to carry jurisdiction into effect.

9 Sec. 1104. Right of custody to body — Any person charged by law with the duty of burying the body
of a deceased person is entitled to the custody of such body for the purpose of burying it, except
when an inquest is required by law for the purpose of determining the cause of death; and, in case of
death due to or accompanied by a dangerous communicable disease, such body shall until buried
remain in the custody of the local board of health or local health officer, or if there be no such, then in
the custody of the municipal council.
 10 G.R. No. 86470, Rollo at 34.

11 Annexes 7 & 8, Petition, G.R. No. 85140, Rollo at 85 and 86.

12 Resolution of 26 January 1989, G.R. No. 85140, Rollo at 114.

13 Ras v. Sua, G.R. No. L-23302, September 25, 1968, 25 SCRA 158-159; Nactor v. IAC, G.R. No. 74122,
March 15, 1988, 158 SCRA 635.

14 39 Am. Jur., 2d, Habeas corpus §129.

15 Ibid., §130.

16 G.R. No. L-12772, 24 January 1959, 105 Phil. 55.

17 Ibid.

18 PNB vs. CA, G.R. No. L-45770, 30 March 1988, 159 SCRA 933.

19 Fiel vs. Banawa, No. 56284-R, March 26, 1979, 76 OG 619.

20 Article 144 of the Civil Code provides:

When a man and a woman live together as husband and wife, but they are not married, or their
marriage is void from the beginning, the property acquired by either or both of them through their
work or industry or their wages and salaries shall be governed by the rules on co-ownership.

21 Aznar, et al. vs. Garcia, et al., G.R. Nos. L-11483-84, 14 February 1958, 102 Phil. 1055.

22 G.R. Nos. 61700-03, September 24, 1987, 153 SCRA 728.

23 People vs. Constantino, No. 01897-CR, September 6, 1963, 60 O.G. 3603.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5426 May 29, 1953

RAMON JOAQUIN, petitioner,

vs.
ANTONIO C. NAVARRO, respondent.

Agrava, Peralta & Agrava for petitioner.

Leonardo Abola for respondent.

TUASON, J.:

This three proceedings was instituted in the Court of First Instance of Manila in the summary settlement of states of
Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin Navarro, Jr., and Pilar Navarro, deceased. All of them
having been heard jointly, Judge Rafael Amparo handed down a single decision which was appealed to the Court of
Appeals, whose decision, modifying that the Court of First Instance, in turn was elevated to the Supreme Court for
review.

The main question represented in the first two courts related to the sequence of the deaths of Joaquin Navarro, Sr., his
wife, and their children, all of whom were killed in the massacre of civilians by Japanese troops in Manila in February
1945. The trial court found the deaths of this persons to have accurred in this order: 1st. The Navarro girls, named Pilar,
Concepcion and Natividad; 2nd. Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin Navarro, Sr.
The Court of Appeals concurred with the trial court except that, with regard to Angela Joaquin de Navarro and Joaquin
Navarro, Jr., the latter was declared to have survived his mother.

It is this modification of the lower court's finding which is now being contested by the petitioner. The importance of the
question whether Angela Joaquin de Navarro died before Joaquin Navarro, Jr., or vice versa, lies in the fact that it
radically affects the rights of succession of Ramon Joaquin, the present petitioner who was an acknowledged natural
child of Angela Joaquin and adopted child of the deceased spouses, and Antonio C. Navarro, respondent, son of
Joaquin Navarro, Sr. by first marriage.

The facts, which is not disputed, are outlined in the statement in the decision of the Court of Appeals as follows:

"On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses Joaquin Navarro, Sr. and
Angela Joaquin, together with their three daughters, Pilar, Concepcion, and Natividad, and their son Joaquin Navarro,
Jr., and the latter's wife, Adela Conde, sought refuge in the ground floor of the building known as the German Club, at
the corner of San Marcelino and San Luis Streets of this City. During their stay, the building was packed with refugees,
shells were exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting at the people
inside the building, especially those who were trying to escape. The three daughters were hit and fell of the ground near
the entrance; and Joaquin Navarro, Sr., and his son decided to abandon the premises to seek a safer heaven. They
could not convince Angela Joaquin who refused to join them; and son Joaquin Navarro, Sr., his son, Joaquin Navarro,
Jr., and the latter's wife, Angela Conde, and a friend and former neighbor, Francisco Lopez, dashed out of the burning
edifice. As they came out, Joaquin Navarro, Jr. was shot in the head by a Japanese soldier and immediately dropped.
The others lay flat on the ground in front of the Club premises to avoid the bullets. Minutes later, the German Club,
already on fire, collapsed, trapping many people inside, presumably including Angela Joaquin.

"Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an air raid shelter nearby, the
stayed there about three days, until February 10, 1915, when they were forced to leave the shelter be- cause the shelling
tore it open. They flied toward the St. Theresa Academy in San Marcelino Street, but unfortunately met Japanese Patrols,
who fired at the refugees, killing Joaquin Navarro, Sr., and his daughter-in-law.

"At the time of the masaccre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was about 67 years old;
Joaquin Navarro, Jr., about 30; Pilar Navarro was two or three years older than her brother; while the other sisters,
Concepcion and Natividad Navarro y Joaquin, were between 23 and 25."

The Court of Appeals' finding were all taken from the testimony of Francisco Lopez, who miraculously survived the
holocaust, and upon them the Court of Appeals opined that, "as between the mother Angela Joaquin and the son
Joaquin Navarro, Jr., the evidence of the survivorship is uncertain and insufficient" and the statutory presumption must be
applied. The appellate Court's reasoning for its conclusion is thus stated:

"It does not require argument to show that survivorship cannot be established by proof of the death of only one of the
parties; but that there must be adequate proof that one was alive when the other had already died. Now in this case
before us, the testimony of the sole witness Lopez is to the effect that Joaquin Navarro, Jr. was shot and died shortly after
the living the German Club in the company of his father and the witness, and that the burning edified entirely collapsed
minutes after the shooting of the son; but there is not a scintilla of evidence, direct or circumstantial, from which we may
infer the condition of the mother, Angela Joaquin, during the appreciable interval from the instant his son turned his
back to her, to dash out to the Club, until he died. All we can glean from the evidence is that Angela Joaquin was
unhurt when her son left her to escape from the German Club; but she could have died almost immediately after, from a
variety of causes. She might have been shot by the Japanese, like her daughters, killed by falling beams from the
burning edifice, overcome by the fumes, or fatally struck by splinters from the exploding shells. We cannot say for certain.
No evidence is available on the point. All we can decide is that no one saw her alive after her son left her aside, and
that there is no proof when she died. Clearly, this circumstance alone cannot support a finding that she died latter than
her son, and we are thus compelled to fall back upon the statutory presumption. In deed, it could be said that the
purpose of the presumption of survivorship would be precisely to afford a solution to uncertainties like these. Hence the
son Joaquin Navarro, Jr. aged 30, must be deemed to have survived his mother, Angela Joaquin, who was admittedly
above 60 years of age (Rule 123, sec. 69, subsec. (ii), Rules of Court).
"The total lack of evidence on how Angela Joaquin died likewise disposes of the question whether she and her
deceased children perished in the same calamity. There being no evidence to the contrary, the only guide is the
occasion of the deaths, which is identical for all of them; that battle for the liberation of Manila. A second reason is that
the law, in declaring that those fallen in the same battle are to be regarded as perishing in the same calamity, could not
overlooked that a variety of cause of death can ( and usually do) operate in the source of combats. During the same
battle, some may die from wounds, other from gages, fire, or drowning. It is clear that the law disregards episodic details,
and treats the battle as an overall cause of death in applying the presumption of survivorship.

"We are thus led the conclusion that the order in which the members of the Navarro-Joaquin family met their end is as
follows: first, the three daughters Pilar, Concepcion, and Natividad; then the mother Angela Joaquin; then the son
Joaquin Navarro, Jr., and days later (of which there is no doubt), the father Joaquin Navarro, Sr."

Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. 129, now section 69 (ii) of Rule 123
of the Rules of Court, has repealed article 33 of the civil code of 1889, now article 43 of the New Civil Code. It is the
contention of the petitioner that it did not, and that on the assumption that there is total lack of evidence, as the Court
of Appeals said, then Angela Joaquin and Joaquin Navarro, Jr. should, under article 33, be held to have died at the
same time.

The point is not of much if any relevancy and will be left open for the consideration when obsolute necessity there for
arises. We say irrelevant because our opinion is that neither of the two provisions is applicable for the reasons to be
presently set forth.

Rule 123, section 69 (ii) of the Revised Rules of Court, reads:

When two person perish in the same calamity, such as wreck, battle or conflagration, and it is not (1) shown
who died first, and there are no (2) particular circumstances from when it can be inferred, the survivorship is
presumed from the probabilities resulting from the strength and ages of the sexes, according to the following
rules:

xxx xxx xxx

Article 33 of the Civil Code of 1889 of the following tenor:

Whenever a doubt arises as to which was the first to die to the two or more persons who would inherent one
from the other, the persons who alleges the prior death of either must prove the allegation; in the absence of
proof the presumption shall be that they died at the same time, and no transmission of rights from one to the
other shall take place.

Most provisions, as their language plainly implies, are intended as a substitute for lacks and so are not to be available
when there are facts. With particular reference to section 69 (ii) of Rule 123, "the situation which it present is one in which
the facts are not only unknown but unknowable. By hypothesis, there is no specific evidence as to the time of death . . .
." . . . it is assumed that no evidence can be produced. . . . Since the facts are unknown and unknowable, the law may
apply the law of fairness appropriate to the different legal situation that arises." (IX Wigmore on Evidence, 1940 ed., 483.)

In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals cited the applied with the respect to the deaths of the
Navarro girls, pointing out that "our rule is taken from the Fourth Division of sec. 1936 of the California Code of Civil
Procedure," the Supreme Court of California said:

When the statue speaks of "particular circumstances from which it can be inferred" that one died before the
other it means that there are circumstances from which the fact of death by one before the other may be
inferred as a relation conclusion from the facts proven. The statue does not mean circumstances which would
shown, or which would tend to show, probably that one died before the other. Grand Lodge A.O.W.W. vs.
Miller, 8 Cal. App. 28, 96 Pac. 22. When by circumstantial evidence alone, a party seeks to prove a survivorship
contrary to the statutory presumption, the circumstances by which it is sought to prove the survivorship must be
such as are competent and sufficient when tested by the general rules of evidence in civil cases. The inference
of survivorship cannot rest upon mere surmise, speculation, or conjecture. As was said in Grand
Lodge vs. Miller, supra, "if the matter is left to probably, then the statue of the presumption."

It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing decision that the evidence of
the survivorship need not be direct; it may be indirect, circumstantial, or inferential. Where there are facts, known or
knowable, from which a rational conclusion can be made, the presumption does not step in, and the rule of
preponderance of evidence controls.

Are there particular circumstances on record from which reasonable inference of survivorship between Angela Joaquin
and her son can be drawn? Is Francisco Lopez' testimony competent and sufficient for this purpose? For a better
appreciation of this issue, it is convenient and necessary to detail the testimony, which was described by the trial court as
"disinterested and trustworthy" and by the Court of Appeals as "entitled to credence."

Lopez testified:

Q. You said you were also heat at that time as you leave the German Club with Joaquin Navarro, Sr., Joaquin
Navarro, Jr. and the latter's wife?- A. Yes, sir.

Q. Did you fall? — A. I fell down.

Q. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir.

Q. When the German Club collapsed where were you? — A. We were out 15 meters away from the building
but I could see what was going on.

xxx xxx xxx

Q. Could there have been an interval of fifteen minutes between the two events, that is the shooting of
Joaquin Navarro, Jr. and the collapse of the German Club? — A. Yes, sir, I could not say exactly, Occasions like
that, you know, you are confused.

Q. Could there (have) been an interval of an hour instead of fifteen minutes? — A. Possible, but not probable.

Q. Could it have been 40 minutes? — A. Yes, sir, about 40 minutes.

xxx xxx xxx

Q. You also know that Angela Joaquin is already dead? — A. Yes, sir.

Q. Can you tell the Honorable Court when did Angela Joaquin die? — A. Well, a few minutes after we have
dashed out, the German Club, which was burning, collapsed over them, including Mrs. Joaquin Navarro, Sr.

xxx xxx xxx

Q. From your testimony it would appear that while you can give positive evidence to the fact that Pilar,
Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you can not give the same positive
evidence to the fact that Angela Joaquin also died? — A. Yes, sir, in the sense that I did not see her actually
die, but when the building collapsed over her I saw and I am positive and I did not see her come out of that
building so I presumed she died there.

xxx xxx xxx

Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and Mr. Joaquin Navarro
Jr. and the latter's wife? — A. Because the Japanese had set fire to the Club and they were shooting people
outside, so we thought of running away rather than be roasted.

xxx xxx xxx

Q. You mean to say that before you jumped out of the German Club all the Navarro girls, Pilar, Concepcion,
and Natividad, were already wounded? — A. to my knowledge, yes.

Q. They were wounded? — A. Yes, sir.

 Q. Were they lying on the ground or not? — A. On the ground near the entrance, because most of the people
who were shot by the Japanese were those who were trying to escape, and as far as I can remember they
were among those killed.

xxx xxx xxx

Q. So you noticed that they were killed or shot by the Japanese a few minutes before you left the place? — A.
That is what I think, because those Japanese soldiers were shooting the people inside especially those trying to
escape.

xxx xxx xxx

Q. And none of them was not except the girls, is that what you mean? A — . There were many people shot
because they were trying to escape.

xxx xxx xxx

Q. How come that these girls were shot when they were inside the building, can you explain that? — A. They
were trying to escape probably.

It is our opinion that the preceding testimony contains facts quite adequate to solve the problem of survivorship
between Angela Joaquin and Joaquin Navarro, Jr. and keep the statutory presumption out of the case. It is believed
that in the light of the conditions painted by Lopez, a fair and reasonable inference can be arrived at, namely: that
Joaquin Navarro, Jr. died before his mother.

While the possibility that the mother died before the son can not be ruled out, it must be noted that this possibility is
entirely speculative and must yield to the more rational deduction from proven facts that it was the other way around.
Joaquin Navarro, Jr., it will be recalled, was killed, while running, in front of, and 15 meters from, the German Club. Still in
the prime of life, 30, he must have negotiated that distance in five seconds or less, and so died within that interval from
the time he dashed out of the building. Now, when Joaquin Navarro, Jr. with his father and wife started to flee from the
clubhouse, the old lady was alive and unhurt, so much so that the Navarro father and son tried hard to have her come
along. She could have perished within those five or fewer seconds, as stated, but the probabilities that she did seem very
remote. True, people in the building were also killed but these, according to Lopez, were mostly refugees who had tried
to slip away from it and were shot by Japanese troops. It was not very likely that Mrs. Joaquin Navarro, Sr. made an
attempt to escape. She even made frantic efforts to dissuade her husband and son from leaving the place and
exposing themselves to gun fire.

This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the same time, of a condition
of relative safety in the clubhouse at the moment her husband, son, and daughter-in-law left her. It strongly tends to
prove that, as the situation looked to her, the perils of death from staying were not so imminent. And it lends credence to
Mr. Lopez' statement that the collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro the son was
shot in the head and dropped dead, and that it was the collapse that killed Mrs. Angela Navarro. The Court of Appeals
said the interval between Joaquin Navarro's death and the breaking down of the edifice was "minutes". Even so, it was
much longer than five seconds, long enough to warrant the inference that Mrs. Angela Joaquin was sill alive when her
son expired

The Court of Appeals mentioned several causes, besides the collapse of the building, by which Mrs. Navarro could have
been killed. All these are speculative , and the probabilities, in the light of the known facts, are against them. Dreading
Japanese sharpshooters outside as evidenced by her refusal to follow the only remaining living members of her family,
she could not have kept away form protective walls. Besides, the building had been set on fire trap the refugees inside,
and there was no necessity for the Japanese to was their ammunition except upon those who tried to leave the
premises. Nor was Angela Joaquin likely to have been killed by falling beams because the building was made of
concrete and its collapse, more likely than not, was sudden. As to fumes, these do not cause instantaneous death;
certainly not within the brief space of five seconds between her son's departure and his death.

It will be said that all this is indulging in inferences that are not conclusive. Section 69(ii) of Rule 123 does not require that
the inference necessary to exclude the presumption therein provided be certain. It is the "particular circumstances from
which it (survivorship) can be inferred" that are required to be certain as tested by the rules of evidence. In speaking of
inference the rule can not mean beyond doubt, for "inference is never certainty, but if may be plain enough to justify a
finding of fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York, 269 N.Y. 199 N.E. 44; Hart vs.
Hudson River Bridge Co., 80 N.Y.). 622.) As the California courts have said, it is enough that "the circumstances by which it
is sought to prove the survivorship must be such as are competent and sufficient when tested by the general rules of
evidence in civil cases." (In re Wallace's Estate, supra.) "Juries must often reason," says one author, "according
to probabilities, drawing an inference that the main fact in issue existed from collateral facts not directly proving, but
strongly tending to prove, its existence. The vital question in such cases is the cogency of the proof afforded by the
secondary facts. How likely, according to experience, is the existence of the primary fact if certain secondary facts
exist?" (1 Moore on Facts, Sec. 596.) The same author tells us of a case where "a jury was justified in drawing the inference
that the person who was caught firing a shot at an animal trespassing on his land was the person who fired a shot about
an hour before at the same animal also trespassing." That conclusion was not airtight, but rational. In fact, the
circumstances in the illustration leave greater room for another possibility than do the facts of the case at hand.

In conclusion the presumption that Angela Joaquin de Navarro died before her son is based purely on surmises,
speculations, or conjectures without any sure foundation in the evidence. the opposite theory — that the mother
outlived her son — is deduced from established facts which, weighed by common experience, engender the inference
as a very strong probability. Gauged by the doctrine of preponderance of evidence by, which civil cases are decided,
this inference ought to prevail. It can not be defeated as in an instance, cited by Lord Chief Justice Kenyon, "bordering
on the ridiculous, where in an action on the game laws it was suggested that the gun with which the defendant fired
was not charged with shot, but that the bird might have died in consequence of the fright." (1 Moore on Facts, 63, citing
Wilkinson vs. Payne, 4 T. R. 468.)

It is said that part of the decision of the Court of Appeals which the appellant impugns, and which has been discussed,
involves findings of fact which can not be disturbed. The point is not, in our judgment, well considered. The particular
circumstances from which the parties and the Court of Appeals drew conclusions are, as above seen, undisputed, and
this being the case, the correctness or incorrectness of those conclusions raises a question of law, not of fact, which the
Supreme Court has jurisdiction to look into. As was said in 1 Moran Commentaries on the Rules of ?Court, 3rd Ed. 856, 857,
"Undisputed evidence is one thing, and contradicted evidence is another. An incredible witness does not cease to be
such because he is not impeached or contradicted. But when the evidence is purely documentary, the authenticity of
which is not questioned and the only issue is the construction to be placed thereon, or where a case is submitted upon
an agreement of facts, or where all the facts are stated in the judgment and the issue is the correctness of the
conclusions drawn therefrom, the question is one of law which may be reviewed by the Supreme Court."

The question of whether upon given facts the operation of the statutory presumption is to be invoked is a question of
law.

The prohibition against intermeddling with decisions on questions of evidence refers to decisions supported by substantial
evidence. By substantial evidence is meant real evidence or at least evidence about which reasonable men may
disagree. Findings grounded entirely on speculations, surmises, or conjectures come within the exception to the general
rule.

We are constrained to reverse the decision under review, and hold that the distribution of the decedents' estates should
be made in accordance with the decision of the trial court. This result precludes the necessity of passing upon the
question of "reserva troncal" which was put forward on the hypothetical theory that Mrs. Joaquin Navarro's death
preceded that of her son. Without costs.

Feria, Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

FIRST DIVISION

[G.R. Nos. L-49315 and 60966. February 20, 1984.]

BERNARDA S. CANONIZADO, Petitioner, v. THE HONORABLE JUDGE REGINA G. ORDONEZ BENITEZ — Presiding Judge of the
Juvenile and Domestic Relations Court — Manila, and ATTY. CESAR R. CANONIZADO, Respondents.

Bernarda S. Canonizado for in her own behalf.

 Cesar R. Canonizado for and in his own behalf.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTION; MANDAMUS; REQUISITE BEFORE ISSUANCE OF WRIT. — It is essential to the
issuance of the writ of mandamus that the plaintiff should have a clear right to the thing demanded and it must be the
imperative duty of the defendant to perform the act required.

2. ID.; JUDGMENTS; JUDGMENT FOR SUPPORT; ENFORCEABLE BY MOTION EVEN AFTER FIVE YEARS; CASE AT BAR. — In the
case at bar, although petitioner obtained the favorable judgment on January 21, 1969, she can still enforce the same by
a motion for a writ of execution, notwithstanding the lapse of the five-year period provided for in Rule 39, Section 6 of the
Rules of Court because a judgment for support does not become dormant and the five-year period for executing it by
motion does not apply thereto. (Gumba v. Juvenile and Domestic Relations Court, 108 SCRA 93; citing Velayo v. Velayo,
L-23538, July 21, 1967, 20 SCRA 734, 65 O.G. 2096). Furthermore, since the obligation is a continuing one, the court never
loses jurisdiction to enforce the same.

3. ID.; ID.; JUDICIAL COMPROMISE; ENFORCEABLE BY WRIT OF EXECUTION. — A judicial compromise may be enforced by
a writ of execution. If a party fails or refuses to abide by the compromise, the other party may either enforce the
compromise or regard it as rescinded and insist upon his original demand. (Mabale v. Apalisok, 88 SCRA 234; citing Arts.
2037, 2038 and 2041, Civil Code). Therefore, petitioner was just enforcing a vested right when she asked for a writ of
execution and subsequently, an alias writ of execution to enforce the original judgment on her and her daughter’s favor
insisted of enforcing the said compromise agreements. Parenthetically, the agreements were only for deferment but
never for a waiver or giving up of the respondent’s obligations to the petitioner.

4. ID.; ID.; JUDGMENT FOR SUPPORT; RIGHT TO SUPPORT SUBSISTS DURING MARRIAGE BUT ACTION TO MAKE IT
DEMANDABLE MAY BE SUSPENDED; CASE AT BAR. — With regard to the issue of payment of current support, Article 303 of
the New Civil Code provides that the obligation to give support shall also cease "when the recipient may engage in a
trade, profession, or industry, or has obtained work, or has improved his fortune in such a way that he no longer needs
the allowance for his subsistence;" When any of the above circumstances occurs, the support stops since the recipient
no longer needs it for subsistence. It does not mean, however, that the obligation to give or the right to ask for support
also ceases permanently because the lack of a need for it may only be temporary. In other words, the above
circumstances do not affect the right to support between spouses but only the action to make it demandable, such
right being born from the law and created as such by the marriage tie. It subsists throughout the period that the
marriage subsists.

5. ID.; ID.; ID.; TRIAL COURT TO DETERMINE NEED FOR SUPPORT SUBJECT TO PRESENTATION OF EVIDENCE IN THE SAME CASE.
— It is not necessary to file a separate action for a suspension of current support. The matter of determining whether or
not petitioner is entitled to support up to the present is subject to the presentation of evidence both by the petitioner
and the respondent and is for the lower court to decide. The respondent judge, therefore, cannot be compelled by
mandamus to order respondent to pay current support when the latter alleges that a ground exists for the suspension of
such obligation.

6. ID.; ID.; ID.; NEVER ATTAINS FINALITY. — A judgment for support is never final in the sense that not only can its amount
be subject to increase or decrease but its demandability may also be suspended or re-enforced when appropriate
circumstances exist.

DECISION

GUTIERREZ, JR., J.:

Two petitions are before us, seeking to compel the respondent Juvenile and Domestic Relations Court to order the
issuance of an alias writ of execution for the enforcement of a decision ordering the payment of past support and to
order the payment of current support in favor of the petitioner.

On September 27, 1968, the Court of Appeals rendered a decision, the dispositive portion of which reads as
follows:jgc:chanrobles.com.ph

"WHEREFORE, the appealed judgment is hereby modified by ordering defendant to give plaintiff a monthly support of
P100.00 beginning with October, 1964, payable in advance within the first five (5) days of each month, and the
appealed judgment is hereby affirmed in all other respects, without costs."cralaw virtua1aw library
This decision became final and executory on January 21, 1969.

On October 24, 1969, an order of execution was issued for P27,900.00 followed by the writ itself on October 28, 1969.
However, the writ was recalled and set aside to enable the plaintiff, petitioner herein, to correct the amount therein
stated. Earlier on October 6, 1967, Christina, daughter of petitioner and respondent, became of age but since she was
still studying then, her support was formally terminated only in April, 1969. The total amount due her as of this latter date
was determined at P16,150.00, for the period from October, 1964 to April, 1969. Writs of execution were again issued on
February 10 and March 30, 1970 in favor of petitioner and Christina respectively. Said writs were both returned
unsatisfied.

On July 11, 1973, the petitioner and the respondent entered into an agreement with the following
stipulations:jgc:chanrobles.com.ph

"1. . . .

"2. The total arrears in support payable to Mrs. Bernarda Canonizado as of December, 1972 is determined at SEVENTEEN
THOUSAND TWO HUNDRED PESOS (P17,200.00). A moratorium of payment will be observed on this amount.

"3. On or before July 31, 1973, Mr. Canonizado will deposit the amount of SEVEN HUNDRED PESOS (P700.00) covering
support from January to July, 1973. Henceforth, current support of ONE HUNDRED PESOS (P100.00) will be deposited
within the first ten (10) days of every month punctually.

"4. At any time that Mr. Canonizado will receive a sizeable income, payment on the arrears in support of P17,200.00 will
be made partially or in full, depending on the income received.

"5. At any time that Mr. Canonizado should fail to remit current support for four (4) consecutive months then the total
arrears in support will be immediately due and demandable.

"6. Mr. Canonizado also agrees that upon receipt of an income, he will liquidate the unpaid support due their daughter
Christina, the same to be given to Bernarda Canonizado."cralaw virtua1aw library

On February 16, 1976, the petitioner filed a motion for execution and contempt of court, praying that a writ of execution
be issued for P17,200.00 in her favor and P16,150.00 in favor of Christina. On February 23, 1976, an order was issued by the
lower court stating that after submission by petitioner of a verified statement of the total arrears in support and
application to the Clerk of Court, a writ of execution shall be issued. On March 15, 1976, the petitioner filed the required
verified statement but since the respondent on the same date was granted a period of time within which to liquidate
the arrears in support, the application of the petitioner for a writ of execution was deferred until April 14, 1976. On said
date, the petitioner filed a motion for the issuance of a warrant of arrest and for an alias writ of execution. These motions,
however, were temporarily denied after the respondent was granted a last extension to pay the arrears in support on
May 14, 1976.chanrobles.com : virtual law library

On July 14, 1976, the lower court ordered the issuance of a writ of execution for the collection of the amounts of
P16,150.00 and P17,200.00 and for the calling of the case on August 2, 1976 for respondent to show cause why he should
not be found in contempt of court for failure to pay the arrears in support. On July 22, 1976, a writ of execution was
issued. Enforcement of this writ, however, was not pressed by the petitioner because on August 3, 1976, she and the
respondent entered into an agreement which provided for the following:jgc:chanrobles.com.ph

"Accommodating defendant’s shortcomings, plaintiff agreed to accept the P200.00 to be deposited and to defer
further action as long as defendant shall fulfill the following commitments which he made:jgc:chanrobles.com.ph

"Amount to be paid as per Order of

August 3, 1976 P2,000.00

"LESS: Deposit, September 1, 1976 200.00

————

Balance P1,800.00

"PLUS: Support for September, 1976 200.00

————

Total P2,000.00
"Defendant promised to pay on:jgc:chanrobles.com.ph

"September 17, 1976 P1,000.00

"October 4, 1976 P1,000.00

———— —————

P2,000.00

On April 14, 1977, petitioner filed a motion for an alias writ of execution based on the original writ issued on July 22, 1976.

On September 14, 1977, the respondent judge denied the motion for issuance of an alias writ of execution on the ground
that "the decision of the Court of Appeals dated September 27, 1968 became final and executory on January 21, 1969,
or seven (7) years and five (5) months had elapsed prior to the filing of plaintiff’s motion for issuance of writ of execution
on July 1, 1976; that, that being the case, the judgment may no longer be executed by Motion (Sec. 6, Rule 39 of the
Rules of Court); and that Christina, having attained the age of majority on October 6, 1967 and who does not appear to
be suffering from any incapacity, may take the necessary action herself to collect the indebtedness of her father to
her."cralaw virtua1aw library

On October 13, 1978, the petitioner filed a motion for reconsideration of the above ruling but the same was denied.
Hence, on November 21, 1978, the petitioner filed a petition for mandamus with preliminary mandatory injunction
praying that an alias writ of execution be issued based on the writ of execution issued on July 22, 1976. The petition is the
case now docketed as G.R. No. L-49315.

Meanwhile, on January 12, 1982, the petitioner filed with the respondent court a motion to require the respondent to pay
current support beginning February, 1978 based on the decisions of September 27, 1968 and January 21, 1969. On March
1, 1982, the respondent filed an opposition to said motion on the ground that his obligation to support has terminated.
Subsequently, the respondent filed a motion to terminate support. Petitioner failed to appear at the hearings set for such
motion, the last of which was on August 28, 1982, on the presumption that termination of support can be pleaded only in
a separate and independent action, not by motion in the same proceeding.chanroblesvirtualawlibrary

On July 5, 1982, the petitioner filed another petition for mandamus with preliminary mandatory injunction praying that
the respondent judge be ordered to act on petitioner’s motion for current support and further, to be enjoined from
hearing the motion for termination of support. This case was docketed as G.R. No. 60966.

The Court resolved to give due course to the petition and to treat the respondent’s comment as answer to the petition.

The issues raised in these consolidated petitions center on whether or not the respondent judge can be compelled by
mandamus — 1) to issue an alias writ of execution for the payment of arrearages in support; and 2) to act on the
petitioner’s motion for payment of current support.

Petitioner maintains that the issuance of an alias writ of execution based on the writ of execution dated July 22, 1976 is a
purely ministerial act on the part of the respondent judge, petitioner’s right to such writ being predicated on the
decisions of the Court of Appeals dated September 27, 1968 and January 21, 1969. She cites the same decisions as her
reasons for compelling respondent judge to issue an order for the payment of current support.

The first contention is impressed with merit.

It is essential to the issuance of the writ of mandamus that the plaintiff should have a clear right to the thing demanded
and it must be the imperative duty of the defendant to perform the act required. (Provincial of Pangasinan v.
Reparations Commission, 80 SCRA 376; citing Gonzales v. Board of Pharmacy, 20 Phil. 367).

In the case at bar, although petitioner obtained the favorable judgment on January 21, 1969, she can still enforce the
same by a motion for a writ of execution, notwithstanding the lapse of the five-year period provided for in Rule 39,
Section 6 of the Rules of Court because a judgment for support does not become dormant and the five-year period for
executing it by motion does not apply thereto. (Gumba v. Juvenile and Domestic Relations Court, 108 SCRA 93; citing
Velayo v. Velayo, L-23538, July 21, 1967, 20 SCRA 734, 65 O.G. 2096). Furthermore, since the obligation is a continuing
one, the court never loses jurisdiction to enforce the same.

While the records show that a series of compromise agreements were entered into by and between petitioner and
respondent, the latter inspite of his solemn accord never made any effort to update his payment of arrears in support of
the petitioner which have long been overdue. He only complied with the payment of current support up to June, 1977. A
judicial compromise may be enforced by a writ of execution. If a party fails or refuses to abide by the compromise, the
other party may either enforce the compromise or regard it as rescinded and insist upon his original demand. (Mabale v.
Apalisok, 88 SCRA 234; citing Arts. 2037, 2038 and 2041, Civil Code). Therefore, petitioner was just enforcing a vested right
when she asked for a writ of execution and subsequently, an alias writ of execution to enforce the original judgment on
her and her daughter’s favor insisted of enforcing the said compromise agreements. Parenthetically, the agreements
were only for deferment but never for a waiver or giving up of the respondent’s obligations to the
petitioner.chanroblesvirtualawlibrary

With regard to the issue of payment of current support, Article 303 of the New Civil Code
provides:jgc:chanrobles.com.ph

"Art. 303. The obligation to give support shall also cease:chanrob1es virtual 1aw library

x x x

x x x

(3) When the recipient may engage in a trade, profession, or industry, or has obtained work, or has improved his fortune
in such a way that he no longer needs the allowance for his subsistence;"

x x x

x x x

When any of the above circumstances occurs, the support stops since the recipient no longer needs it for subsistence. It
does not mean, however, that the obligation to give or the right to ask for support also ceases permanently because the
lack of a need for it may only be temporary. In other words, the above circumstances do not affect the right to support
between spouses but only the action to make it demandable, such right being born from the law and created as such
by the marriage tie. It subsists throughout the period that the marriage subsists.

In the instant petition the respondent can rightfully file a motion to oppose the payment of current support or to
terminate the demandability of the same for the time being, since he alleges and it appears undisputed that herein
petitioner became a member of the bar sometime in 1967 and has long been in the employ of the Central Bank of the
Philippines, even before she became a lawyer. It is not necessary to file a separate action for a suspension of current
support. The matter of determining whether or not petitioner is entitled to support up to the present is subject to the
presentation of evidence both by the petitioner and the respondent and is for the lower court to decide. The
respondent judge, therefore, cannot be compelled by mandamus to order respondent to pay current support when the
latter alleges that a ground exists for the suspension of such obligation. A judgment for support is never final in the sense
that not only can its amount be subject to increase or decrease but its demandability may also be suspended or re-
enforced when appropriate circumstances exist.chanrobles law library : red

WHEREFORE, the petition in G.R. No. L-49315 is GRANTED, and the respondent court is hereby ordered to immediately
issue the alias writ of execution prayed for by herein petitioner. Respondent Cesar Canonizado is also ordered to pay the
sum of P3,000.00 as attorney’s fees and costs. The petition in G.R. No. 60966 is DISMISSED for lack of merit. The respondent
court is directed to set the case for hearings on whether or not there is a continuing need for current support.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana and Relova, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-64982 October 23, 1984

ALEJANDRO B. HONTIVEROS, JR., petitioner,

vs.
THE INTERMEDIATE APPELLATE COURT, Third Special Cases Division, HON. WILFREDO G. CAINGLET in his capacity as
Presiding Judge of Branch CLVIII, RTC and BRENDA M. HERNANDO, respondents.
MAKASIAR, J.:ñé+.£ªwph!1

This petition for certiorari seeks to review the decision of the respondent Intermediate Appellate Court (hereinafter
referred to as the respondent Court) dated August 5, 1983, which affirmed the order of respodent Judge Cainglet
(hereinafter referred to as the respondent Judge) dated May 30, 1983. The dispositive portion of the respondent court's
decision reads as follows: têñ.£îhqwâ£

WHEREFORE, the writ prayed for is denied and the petition dismissed for lack of merit. Accordingly, the
restraining order issued by this Court earlier is hereby lifted, without pronouncement as to costs (p. 97,
rec.).

The facts are as follows:

Petitioner Alejandro Hontiveros, Jr. and private respondent Brenda M. Hernando are the father and mother of an
acknowledged natural child born on November 27, 1981 and given the name Margaux H. Hontiveros.

For the period from November 1981 to June 1982, the child had been under the care and custody of the mother. The
father, petitioner herein, used to take the child out during Saturdays and return the child to private respondent's
residence on Saturday evenings (p. 29, rec.).

On June 21, 1982, Alejandro Hontiveros, Jr. passed by the house of Brenda Hernando to take the child to their house for
a visit, with the agreement that she will be returned by nightfall (p. 29, rec.). However, the child was never returned to
the mother.

To recover the custody of her child, private respondent filed on August 24, 1982 a petition for habeas corpus in the then
Court of First Instance of Rizal, Metro Manila, entitled "In the Matter of the Custody of the Minor Child Margaux H.
Hontiveros, Brenda M. Hernando, Petitioner, versus Alejandro Hontiveros, Jr. and Alejandro Hontiveros, Sr., respondents",
which petition was docketed as Special Proceedings No. 9784 of said court and assigned to Branch XIX thereof (p. 8,
rec.).

On August 26, 1982, the petitioner filed a petition for custody of minor Margaux H. Hontiveros with the then Court of First
Instance of Rizal, docketed as Special Proceedings No. 9788 with Branch XXIII of the said court. Private respondent filed a
motion to dismiss the petition in Special Proceedings No. 9788 on the ground of litis pendency, citing the pendency of
Special Proceedings No. 9784. The motion to dismiss was denied. Subsequently, however, petitioner Alejandro Hontiveros,
Jr. abandoned the prosecution of Special Proceedings No. 9788, for which reason the Hon. Judge Rizalina Bonifacio
Vera dismissed said petition on October 26, 1983.

On September 9, 1982, a hearing was conducted by the Hon. Judge Santiago Rañada in connection with Special
Proceedings No. 9784. The parties agreed that the minor child Margaux shall be under the custody of the petitioner for
seven (7) days every other week (p. 171, rec.). Accordingly, Judge Rafiada issued the following order: têñ.£îhqwâ£

As preliminarily agreed upon by petitioner and respondent Alejandro Hontiveros, Jr., the Court hereby
orders the minor child Margaux H. Hontiveros to be put under the custody of the petitioner, with the
understanding that respondent Alejandro Hontiveros, Jr. will be allowed to take said minor child into
his custody every other week for a period of seven (7) days with the obligation of taking said minor
child from the residence of petitioner every other Friday, at 9:00 A.M., and return said child on or
before the next Friday morning at 9:00 A.M. This arrangement is effective immediately, with the
condition that the custody of said child is now immediately given to petitioner and respondent
Alejandro Hontiveros, Jr. will be allowed to pick up said child on Friday, 17 September 1982, at about
9:00 A. M. (P. 37, rec.).

On May 24, 1983, the petitioner filed an urgent ex parte petition for issuance of a writ of preliminary injunction with the
Regional Trial Court of the National Capital Judicial Regions Branch CLVIII, to which the Court the aforesaid case was
reassigned following the reorganization of the inferior courts under BP 129 (p. 38, rec.). The object of the petition for
preliminary injunction is to prevent the private respondent from bringing the minor child outside the country, specifically
the United States of American where she was allegedly bound for.
The petition was set for hearing on May 30, 1983. On said date, the counsel for private respondent moved for the
withdrawal of the petition for habeas corpus on the ground that said petition has become moot and academic upon
the production of the body of Margaux Hontiveros before Judge Rafiada and in view of the order of September 9, 1982.
Respondent Judge Wilfredo Cainglet (presiding Judge of the Regional Trial Court of the National Capital Judicial Region,
Branch CLVIII) granted the motion for the withdrawal of the petition for habeas corpus. Since the petition for the
issuance of a writ of preliminary injunction is but an ancillary action, the same was denied by the respondent Judge in his
order dated May 30, 1983. Said order states: têñ.£îhqwâ£

xxx xxx xxx

As preliminarily agreed upon by petitioner and respondent Alejandro Hontiveros, Jr., the Court hereby
orders the minor child Margaux H. Hontiveros to be put under the custody of the petitioner, with the
understanding that respondents Alejandro Hontiveros, Jr. will be allowed to take said minor child into
his custody every other week for a period of seven (7) days with the obligation of taking said minor
child from the residence of petitioner every other Friday, at 9:00 A.M., and return said child on or
before the next Friday morning at 9:00 A.M. This arrangement is effective immediately, with the
condition that the custody of said child is now immediately given to petitioner and respondent
Alejandro Hontiveros, Jr. will be allowed to pick up said child on Friday, 17 September 1982, at about
9:00 A.M.

SO ORDERED.1äwphï1.ñët

When this petition was called for hearing today, petitioner's counsel, Atty. Wilfredo Chato moved for
the withdrawal this petition on the ground that the same has now become moot and academic in
view of the Order of this Court aforecited, to which motion for withdrawal residents' counsel, Atty.
Yolanda Q. Javellana interposed her objection. The said counsel for the respondents in open Court
today, admitted that the respondents have not filed a counterclaim anent the herein petition and
further admitted that there is a present case involving the same parties and same subject matter filed
with the Pasig Court of First Instance (now Regional Trial Court) and pending before Branch 162,
presided by the Executive Judge, the Hon. Rizalina Bonifacio Vera since August 26, 1982.

The Court believes that the matter of withdrawing a case is a prerogative of plaintiff or petitioner and
ordinarily could not be validly objected to by the defendant or respondent as in the present case.

IN VIEW OF THE FOREGOING, the Court, finding the petitioner's motion to withdraw the herein petition
to be justified grants the same and hereby orders the WITHDRAWAL of the present petition for Habeas
Corpus, subject to the mandate of this Court in its Order dated September 9, 1982, predicated upon
the agreement of the herein petitioner and respondents.

Anent the respondents' motion/petition for the issuance of a Writ of preliminary injunction praying for
the immediate issuance of a restraining Order against the herein petitioner, the same being merely
ancillar action and now moot and academic there being no principal or main action or petition upon
which respondents' motion/petition may be predicated upon for the issuance of the said restraining
Order, upon motion by petitioner's counsel with objection of respondents' counsel the same is hereby
DENIED for lack of factual and legal justification.

xxx xxx xxx

(pp. 48-49, rec.,emphasis supplied).

Petitioner moved for reconsideration which was likewise denied for lack of factual and legal justification (p. 50, rec.)

On June 3, 1983, the petitioner filed a petition for certiorari with application for preliminary injunction with the
Intermediate Appellate Court questioning the order of respondent Judge dated May 30, 1983 and the denial of the
motion for reconsideration.

The respondent Court dismissed the petition for lack of merit in its decision dated August 5, 1983. The petitioner moved
for reconsideration of the adverse ruling but the same was affirmed by respondent Court in its resolution dated August
17, 1983.
Hence, this petition.

The following issues are presented:

1. Whether or not the order of respondent Judge dated May 30,1983 was issued with grave abuse of discretion, and

2. Whether or not petitioner is entitled to the custody of his minor child Margaux H. Hontiveros.

The records reveal that the original action instituted by private respondent in the then Court of First Instance was a
petition for a writ of habeas corpus to recover custody of her acknowledged natural child Margaux without depriving
the father of his visitorial rights. The petition was filed against the father who allegedly took the child from her mother's
home and kept her indefinitely without the mother's consent.

At the hearing conducted on September 9, 1982, the minor child was "produced before the Court and a settlement was
reached upon agreement of the parties. Thus, the order of Judge Rañada was issued. Even if the order was termed
"preliminary ", WE take note of the fact that the private respondent's prayer in her pleading had been satisfied for her
evident purpose in filing the petition for habeas corpus was to get back the custody of her child.

Because of such settlement and considering that as noted in the questioned order of May 30, 1983, the petitioner's
counsel admitted that there was a pending case (Special Proceedings No. 9788) involving the same parties and same
subject matter filed with another branch of the same court and the petitioner herein did not file a counterclaim, the
respondent Judge allowed the withdrawal of the case for habeas corpus pending before him (pp. 48-49, rec.).

Section 2, Rule 17 of the Revised Rules of Court provides for the dismissal of an action by order of the court at plaintiff's
instance (private respondent herein) upon such terms and conditions as the court deems proper. WE agree with the
respondent Court that considering the circumstances obtaining in the case at bar, as earlier noted, and considering
further that no real injury would result if the urgent ex parte petition could not be acted upon since it could be threshed
out in the coordinate branch of the Pasig Regional Trial Court, the dismissed of the petition forhabeas corpus is
warranted. In the case of Duque vs. Vinarao (63 SCRA 206), WE held that a petition for habeas corpus can be dismissed
upon voluntary withdrawal of the petitioner and certification of the Judge Advocate General.

WE agree with the respondent Judge that the petition for habeas corpus has been rendered moot and academic with
the issuance of the order dated September 9, 1982, which was predicated upon the agreement of the parties. In
Pestrano vs. Corvista (81 Phil. 53), WE held that where the subject person had already been released from the custody
complained of, the petition for habeas corpus then still pending was considered already moot and academic and
should be dismissed. In the case at bar, the minor child Margaux H. Hontiveros was in fact produced in court. By virtue of
the order of Judge Ranada, she was released to the custody of her mother with the father having the right to take her in
his custody every other week.

WE believe that the respondent Judge merely exercised his sound discretion in allowing the withdrawal of the case in his
branch. "Grave abuse of discretion" means such capricious and arbitrary exercise of judgment as is equivalent, in the
eyes of the law, to lack of jurisdiction (Vda. de Bacaling vs. Laguda 54 SCRA 243). In the case at bar, there was no abuse
of discretion by the respondent Judge. He acted within the ambit of judicial discretion allotted to Judges of inferior
courts, to wit: têñ.£îhqwâ£

The court may, subject to the requirement of due process, give all such directions and orders as it may
deem necessary or expedient in the determination of the dispute before it. It may refrain from hearing
the dispute or part thereof, or dismiss any matter or part of any matter, where further proceedings are
not necessary or desirable. Certainly, it may also defer the hearing of any motion or hear one motion
in preference to others, when its judgment such is necessary ... The discretion granted by law is not
interfered with unless it is gravely abused (Maritime Company of the Philippines, et al. vs. Paredes, et
al., 19 SCRA 569, 580).

Petitioner is of the theory that he was deprived of due process because the respondent Judge dismissed his urgent ex
parte petition for preliminary injunction without hearing.

WE cannot sustain the stand of the petitioner.

It should be borne in mind that petitioner Med a petition for custody of minor Margaux H. Hontiveros with the then Court
of First Instance of Rizal docketed as Special Proceedings No. 9788. The respondent Judge knew of the existence of
Special Proceedings No. 9788 because this fact was admitted by the counsel of the petitioner himself. All that the
petitioner must do then is to file the petition for preliminary injunction in Branch XXIII of the then Court of First Instance of
Rizal where Special Proceedings No. 9788 is assigned. The issue as to whether he can be granted a preliminary injunction
could have properly been ventilated below. Unfortunately, petitioner chose to appeal by way of certiorari, a remedy
which WE cannot grant because the respondent Judge acted within the parameters of judicial discretion.

What is more, petitioner himself did not pursue his action for custody of the minor Margaux H. Hontiveros. Worse, he
abandoned the case and Special Proceedings No. 9788 was dismissed by Judge Vera on October 26, 1983 for lack of
interest on the part of the petitioner to prosecute (p. 208, rec.). If at all petitioner can only blame himself if he feels that
he was deprived of due process.

II

The second issue is whether or not petitioner is entitled to the custody of the minor child Margaux H. Hontiveros. Once
more, WE are asked to arbitrate between the rights and duties of parents and children.

Article 363 of the Civil Code provides: têñ.£îhqwâ£

In all questions on the care, custody, education and property of children, the latter's welfare shall be
paramount. No matter shall be separated from her child under seven years of age, unless the court
finds compelling reasons for such measure.

The Code Commission observed that the rule in Article 363 of the Civil Code is necessary "in order to avoid many a
tragedy when a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age (Report of the Code Commission, p. 12).

Finding the above rationale beyond question, Presidential Decree No. 603 (Child and Youth Welfare Code) provides the
following:

Article 17 — ...

In case of separation of his parents, no child under five years of age shall be separated from his mother, unless the court
finds compelling reasons to do so (P.D. 603, dated December 10, 1974, 70 O.G. 10774).

While the petitioner would have US believe in his reply that the private respondent is unfit to take care of his child, it is too
late in the day to do so because under Rule 45 of the Rules of Court, only questions of law may be raised in this Tribunal
What the petitioner should have done is to bring out the questions of fact in Special Proceedings Nos. 9788. It is just too
bad that the case for custody was dismissed for lack of interest on the part of the petitioner.

Clearly, the private respondent has a clear legal right under Article 17 of P.D. 603 to the custody of her minor child, there
being no compelling reason to the contrary.

WHEREFORE, THE PETITION IS HEREBY DENIED. WITH COSTS AGAINST PETITIONER.

SO ORDERED.1äwphï1.ñët

Aquino, Guerrero, Abad Santos and Cuevas, JJ., concur.

Concepcion, Jr. and Escolin, JJ., took no part.

 SECOND DIVISION

G.R. No. L-52242 November 17, 1980

MIGUEL R. UNSON III, Petitioner, vs. HON. PEDRO C. NAVARRO AND EDITA N. ARANETA, Respondents.

BARREDO, J.:

Petition for certiorari to have the order of respondent judge of December 28, 1979 ordering petitioner to produce the
child, Maria Teresa Unson, his daughter barely eight years of age, with private respondent Edita N. Araneta and return
her to the custody of the later, further obliging petitioner to "continue his support of said daughter by providing for her
education and medical needs," allegedly issued without a "hearing" and the reception of testimony in violation of
Section 6 of Rule 99.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner and private respondent were married on April 19, 1971 1 and out of that marriage the child in question, Teresa,
was born on December 1, 1971. However, as stated in a decision rendered on August 23, 1974 in Civil Case No. 7716 of
respondent judge himself, on July 13, 1974 they executed an agreement for the separation of their properties and to live
separately, as they have in fact been living separately since June 1972. The agreement was approved by the Court. The
parties are agreed that no specific provision was contained in said agreement about the custody of the child because
the husband and wife would have their own private arrangement in that respect. Thus, according to the affidavit of
petitioner attached to his supplement to petition, submitted in compliance with the directive of this Court during the
hearing of this case, he affirms that:chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

(8) That when Maria Teresa started pre-school in 1976 at the Early Learning Center in San Lorenzo, very near petitioner's
residence, and later, when she started school at Assumption College, Maria Teresa would stay with petitioner during
school days and spend weekends with her mother, but there were times when her mother would not even bother to pick
her up during non-school days; chanrobles virtual law library

(9) That during the early part of 1978 petitioner personally acquired knowledge that his wife Edita Araneta has been
living with her brother-in-law Agustin F. Reyes, in an apartment at C. Palma St., Makati, Metro Mla. and so petitioner
tightened his custody over his daughter, especially after:

a. he found out that Agustin F. Reyes was confined at the Makati Medical Center from October 13 up to December 3,
1977 for "Manic Depressive" disorder, under the care of Dr. Baltazar Reyes; chanrobles virtual law library

b. he found out that his wife Edita Araneta delivered a child fathered by Agustin F. Reyes on September 24, 1978, (Please
see Birth Certificate attached hereto as Annex "A-1");chanrobles virtual law library

c. he found out that Agustin F. Reyes had been confined again for the same ailment at the Makati Medical Center from
June 27 up to August 29, 1978 under the care of the same doctor .

(10) That on May 21, 1980 Edita Araneta delivered another child fathered by Agustin F. Reyes. (Please see Birth
Certificate attached hereto as Annex "A-2");chanrobles virtual law library

(11) That aside from the foregoing circumstances, the following militate against custody of Maria Teresa in favor of Edita
Araneta:

a. Agustin F. Reyes is the child's godfather/baptismal sponsor;chanrobles virtual law library

b. Agustin F. Reyes and Edita Araneta have left the Roman Catholic Church and have embraced a protestant sect
(Please see Annex "A-2" hereof, which lists the occupation of Agustin F. Reyes as a seminarian);

(12) That Maria Teresa is almost nine (9) years old, born and reared under the Roman Catholic faith, impressionable, and
should not be exposed to an environment alien to the Catholic way of life, which is the upbringing and training
petitioner, as her father is committed to;chanrobles virtual law library

(13) That petitioner is executing this affidavit for all legal purposes. (Pp. 81-82 of Record)

Upon the other hand, private respondent affirms in her affidavit Annex "A" aforementioned that:chanrobles virtual law
library

xxx xxx xxxchanrobles virtual law library

6. Since the birth of Maria Teresa, she has always lived with affiant, her mother, who has reared and brought up the child
to the best of her ability. Affiant has not in any way spoken ill of nor turned the child against her father, herein
petitioner; chanrobles virtual law library

7. In fact, it was affiant who was always insistent that petitioner have custody of Maria Teresa every week end and half of
summer and Christmas vacation so that the child could establish a healthy and viable relationship with her father, herein
petitioner; chanrobles virtual law library

8. This was especially so when affiant noticed that petitioner's parents showed more interest in the child than petitioner;
since it was petitioner's parents who would more often pick up Maria Teresa and bring her back to and from affiant's
home; chanrobles virtual law library

9. This fact was even noticed by the child; thus affiant immediately requested petitioner to spend more time with Maria
Teresa; chanrobles virtual law library

10. From 1972 to 1978, affiant had always exercised full custody of Maria Teresa. It was affiant who voluntarily gave
custody of the child to petitioner on weekends and half of the summer and Christmas vacations. In view of this amicable
arrangement, no specific terms were agreed and stipulated upon by affiant and petitioner regarding custody of the
child in their petition for separation of property before the lower court; chanrobles virtual law library

11. From 1972 to September, 1979, affiant and petitioner have always had a cordial and amicable relationship. Even
from 1973 when affiant started living with her brother-in-law, Agustin F. Reyes at San Lorenzo, Makati, affiant and
petitioner retained a cordial relationship. Petitioner, since 1973, always knew about affiant's relationship with Agustin F.
Reyes. In fact, petitioner would visit Maria Teresa at affiant's home. Petitioner was always welcome to pick up Maria
Teresa at any time.chanroblesvirtualawlibrary chanrobles virtual law library

12. When petitioner left for Australia in 1974 for a period of one year, petitioner left Maria Teresa to stay with affiant at San
Lorenzo. During this time, Maria Teresa was always allowed to visit with and to be picked up at any time by petitioner's
parents; chanrobles virtual law library

13. Petitioner, his family, affiants family (Mr. and Mrs. Teodoro Araneta), affiant's relatives and friends, since 1973, have
long known of and accepted the circumstances involving private respondent and Agustin F. Reyes;chanrobles virtual
law library

14. Affiant admits that her present circumstances at first impression might seem socially if not morally unacceptable; but
in reality this is not so. Maria Teresa has been reared and brought up in an atmosphere of Christian love, affection and
honesty to the import of the situation. Further, the quality and capacity of affiant of being a good mother has always
remained; (Pars. 6 to 14 of Annex "A" of Record)

It is axiomatic in Our jurisprudence that in controversies regarding the custody of minors the sole and foremost
consideration is the physical, education, social and moral welfare of the child concerned, taking into account the
respective resources and social and moral situations of the contending parents. Never has this Court diverted from that
criterion.chanroblesvirtualawlibrarychanrobles virtual law library
With this premise in view, the Court finds no difficulty in this case in seeing that it is in the best interest of the child Teresa
to be freed from the obviously unwholesome, not to say immoral influence, that the situation in which private respondent
has placed herself, as admitted by her, might create in the moral and social outlook of Teresa who is now in her
formative and most impressionable stage in her life. The fact, that petitioner might have been tolerant about her stay
with her mother in the past when she was still too young to distinguish between right and wrong and have her own
correct impressions or notions about the unusual and peculiar relationship of her mother with her own uncle-in-law, the
husband of her sister's mother, is hardly of any consequence now that she has reached a perilous stage in her life. No
respectable father, properly concerned with the moral well-being of his child, specially a girl, can be expected to have
a different attitude than petitioner's in this case. Under the circumstances thus shown in the record, the Court finds no
alternative than to grant private respondent no more than visitorial rights over the child in question. Anyway, decisions
even of this Supreme Court on the custody of minor children are always open to adjustment as the circumstances
relevant to the matter may demand in the light of the inflexible criterion We have mentioned above. We deem it a
grave abuse of discretion on the part of respondent judge to have acted precipitably in issuing his order of December
28, 1979 here in question.chanroblesvirtualawlibrarychanrobles virtual law library

As to the issue of jurisdiction, that is, whether or not, after the decision on separation of properties had become final, the
matter of the custody of the child should be the subject of a separate proceeding under Rule 99. We are inclined to
agree with respondents that, considering that in the decision on the separation of properties mention is made of support
for the child, to avoid multiplicity of proceedings, and since under Sec- tion 6 of Rule 99, the matter of the custody of
children of separated spouses may be brought before the Court of First Instance by petition or as an incident to any
other proceeding, the respondent court had jurisdiction to decide the question of custody here. And as regards the
petitioner's claim of denial of hearing and due process before the issuance by respondent judge of his order of
December 28, 1979, We find that-petitioner was given sufficient time and opportunity to be heard, as, in fact, he filed his
written opposition. With the facts in this case practically uncontroverted, We do not see the need for the calling of
witnesses and the hearing of testimony in open court.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the order of respondent judge is hereby set aside, the restraining order heretofore issued is made
permanent and the parties are ordered to submit to this Court within fifteen (15) days from notice hereof their own
agreement as to the visitorial rights of private respondent, otherwise, the Court will take it upon itself to fix the terms and
conditions thereof. No costs.

Aquino, Concepcion, Jr., Abad Santos and De Castro, JJ., concur

Endnotes:

1 In her affidavit attached as Annex "A" of comment on supplement to petition, private respondent states that there is a
"Roman Catholic Church annulment of the marriage" evidenced by Annex "A" of said decision rendered by Matrimonial
Tribunal of the Diocese of Bacolod on April 4, 1976, on the legal effect of which, for purposes of this case, the Court
prefers not to make any pronouncement as anyway, private respondent is not actually relying thereon.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10134 June 29, 1957

SABINA EXCONDE, plaintiff-appellant,

vs.
DELFIN CAPUNO and DANTE CAPUNO, defendants-appellees.

Magno T. Bueser for appellant.

Alver Law Offices and Edon B. Brion and Vencedor A. Alimario for appellees.

BAUTISTA ANGELO, J.:

Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless imprudence for the death of
Isidoro Caperina and Amado Ticzon on March 31, 1949 in the Court of First Instance of Laguna (Criminal Case No.
15001). During the trial, Sabina Exconde, as mother of the deceased Isidoro Caperina, reserved her right to bring a
separate civil action for damages against the accused. After trial, Dante Capuno was found guilty of the crime charged
and, on appeal, the Court Appeals affirmed the decision. Dante Capuno was only (15) years old when he committed
the crime.

In line with her reservation, Sabina Exconde filed the present action against Delfin Capuno and his son Dante Capuno
asking for damages in the aggregate amount of P2,959.00 for the death of her son Isidoro Caperiña. Defendants set up
the defense that if any one should be held liable for the death of Isidoro Caperina, he is Dante Capuno and not his
father Delfin because at the time of the accident, the former was not under the control, supervision and custody, of the
latter. This defense was sustained by the lower court and, as a consequence it only convicted Dante Capuno to pay the
damages claimed in the complaint. From decision, plaintiff appealed to the Court of Appeals but the case was certified
to us on the ground that the appeal only involves questions of law.

It appears that Dante Capuno was a member of the Boy Scouts Organization and a student of the Bilintawak
Elementary School situated in a barrio in the City of San Pablo and on March 31, 1949 he attended a parade in honor of
Dr. Jose Rizal in said city upon instruction of the city school's supervisor. From the school Dante, with other students,
boarded a jeep and when the same started to run, he took hold of the wheel and drove it while the driver sat on his left
side. They have not gone far when the jeep turned turtle and two of its passengers, Amado Ticzon and Isidore Caperiña,
died as a consequence. It further appears that Delfin Capuno, father of Dante, was not with his son at the time of the
accident, nor did he know that his son was going to attend a parade. He only came to know it when his son told him
after the accident that he attended the parade upon instruction of his teacher.

The only issue involved in this appeal is whether defendant Delfin Capuno can be held civilly liable, jointly and severally
with his son Dante, for damages resulting from the death of Isidoro Caperiña caused by the negligent act of minor
Dante Capuno.

The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which provides:

ART. 1903. The obligation impossed by the next preceding articles is enforceable not only for personal acts and
omissions, but also for those of persons for whom another is responsible.

The father, and, in case of his death or incapacity, the mother, are liable for any damages caused by the
minor children who live with them.

xxx xxx xxx

Finally, teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices
while they are under their custody.

Plaintiff contends that defendant Delfin Capuno is liable for the damages in question jointly and severally with his son
Dante because at the time the latter committed the negligent act which resulted in the death of the victim, he was a
minor and was then living with his father, and inasmuch as these facts are not disputed, the civil liability of the father is
evident. And so, plaintiff contends, the lower court erred in relieving the father from liability.

We find merit in this claim. It is true that under the law above quoted, "teachers or directors of arts and trades are liable
for any damages caused by their pupils or apprentices while they are under their custody", but this provision only applies
to an institution of arts and trades and not to any academic educational institution (Padilla, Civil Law, 1953, Ed., Vol. IV,
p. 841; See 12 Manresa, 4th Ed., p. 557). Here Dante capuno was then a student of the Balintawak Elementary School
and as part of his extra-curricular activity, he attended the parade in honor of Dr. Jose Rizal upon instruction of the city
school's supervisor. And it was in connection with that parade that Dante boarded a jeep with some companions and
while driving it, the accident occurred. In the circumstances, it is clear that neither the head of that school, nor the city
school's supervisor, could be held liable for the negligent act of Dante because he was not then a student of an institute
of arts and trades as provided by law.

The civil liability which the law impose upon the father, and, in case of his death or incapacity, the mother, for any
damages that may be caused by the minor children who live with them, is obvious. This is necessary consequence of the
parental authority they exercise over them which imposes upon the parents the "duty of supporting them, keeping them
in their company, educating them and instructing them in proportion to their means", while, on the other hand, gives
them the "right to correct and punish them in moderation" (Articles 154 and 155, Spanish Civil Code). The only way by
which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of
a family to prevent the damage(Article 1903, last paragraph, Spanish Civil Code). This defendants failed to prove.
WHEREFORE, the decision appealed from is modified in the sense that defendants Delfin Capuno and Dante Capuno
shall pay to plaintiff, jointly and severally, the sum of P2,959.00 as damages, and the costs of action.

Bengzon, Montemayor, Labrador and Endencia, JJ., concur.

Paras, C.J., concurs in the result.

Separate Opinions

REYES, J.B.L., J., dissenting:

After mature consideration I believe we should affirm the judgement relieving the father of liability. I can see no sound
reason for limiting Art. 1903 of the old Civil Code to teachers of arts and trades and not to academic ones. What
substantial difference is there between them in so far as, concerns the proper supervision and vigilance over their pupils?
It cannot be seriously contended that an academic teacher is exempt from the duty of watching do not commit a tort
to the detriment of third persons, so long as they are in a position to exercise authority and supervision over the pupil. In
my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of the old Civil Code,
the words "arts and trades" does not qualify "teachers" but only "heads of establishments". The phrase is only an updated
version of the equivalent terms "preceptors y artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in
vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem
clear that where the parent places the child under the effective authority of the teacher, the latter, and not the parent,
should be the one answerable for the torts committed while under his custody, for the very reason that the parent is not
supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the
child is under instruction. And if there is no authority, there can be no responsibility.

In the case before us, there is no question that the pupil, Dante Capuno, was instructed by the City School Supervisor to
attend the Rizal parade. His father could not properly refuse to allow the child to attend, in defiance of the school
authorities. The father had every reason to assume that in ordering a minor to attend a parade with other children, the
school authorities would provide adequate supervision over them. If a teacher or scout master was present, then he
should be the one responsible for allowing the minor to drive the jeep without being qualified to do so. On the other
hand, if no teacher or master was at hand to watch over the pupils, the school authorities are the ones answerable for
that negligence, and not the father.

At any rate, I submit that the father should not be held liable for a tort that he was in no way able to prevent, and which
he had every right to assume the school authorities would avoid. Having proved that he trusted his child to the custody
of school authorities that were competent to exercise vigilance over him, the father has rebutted the presumption of Art.
1903 and the burden of proof shifted to the claimant to show actual negligence on the part of the parent in order to
render him liable.

Padilla and Reyes, A., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-29025 October 4, 1971

Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants,

vs.
ANTONIO C. BRILLANTES and TEODOSIO V. VALENTON, owner and President, respectively, of a school of arts and trades,
known under the name and style of "Manila Technical Institute" (M.I.T.), VIRGILIO L. DAFFON and SANTIAGO M.
QUIBULUE, defendants-appellees.

Leovillo C. Agustin for plaintiffs-appellants. .

Honorato S. Reyes for appellee Brillantes, et al. .

Villareal, Almacen Navarra & Amores for appellee Daffon. .

TEEHANKEE, J.:

An appeal in forma pauperis on pure questions of law from a decision of the Court of First Instance of Manila. .

Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a student in automotive mechanics
at the Manila Technical Institute, Quezon Boulevard, Manila, had filed on May 19, 1966, the action below for damages
arising from the death on March 10, 1966 of their son at the hands of a fellow student, defendant Virgilio L. Daffon, at the
laboratory room of the said Institute. .

Defendants, per the trial court's decision, are: "(T)he defendant Antonio C. Brillantes, at the time when the incident which
gave rise to his action occurred was a member of the Board of Directors of the institute;1 the defendant Teodosio
Valenton, the president thereof; the defendant Santiago M. Quibulue, instructor of the class to which the deceased
belonged; and the defendant Virgilio L. Daffon, a fellow student of the deceased. At the beginning the Manila
Technical Institute was a single proprietorship, but lately on August 2, 1962, it was duly incorporated."

The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial court: "(T)he deceased Dominador
Palisoc and the defendant Virgilio L. Daffon were classmates, and on the afternoon of March 10, 1966, between two
and three o'clock, they, together with another classmate Desiderio Cruz were in the laboratory room located on the
ground floor. At that time the classes were in recess. Desiderio Cruz and Virgilio L. Daffon were working on a machine
while Dominador Palisoc was merely looking on at them. Daffon made a remark to the effect that Palisoc was acting like
a foreman. Because of this remark Palisoc slapped slightly Daffon on the face. Daffon, in retaliation, gave Palisoc a
strong flat blow on the face, which was followed by other fist blows on the stomach. Palisoc retreated apparently to
avoid the fist blows, but Daffon followed him and both exchanged blows until Palisoc stumbled on an engine block
which caused him to fall face downward. Palisoc became pale and fainted. First aid was administered to him but he
was not revived, so he was immediately taken to a hospital. He never regained consciousness; finally he died. The
foregoing is the substance of the testimony of Desiderio Cruz, the lone witness to the incident."

The trial court expressly gave credence to this version of the incident, as testified to by the lone eyewitness, Desiderio
Cruz, a classmate of the protagonists, as that of a disinterested witness who "has no motive or reason to testify one way
or another in favor of any party" and rejected the self-exculpatory version of defendant Daffon denying that he had
inflicted any fist blows on the deceased. .

With the postmortem findings of Dr. Angelo Singian of the Manila Police Department who performed the autopsy re
"Cause of death: shock due to traumatic fracture of theribs (6th and 7th, left, contusion of the pancreas and stomach
with intra-gastric hemorrhage and slight subarachnoid hemorrhage on the brain," and his testimony that these internal
injuries of the deceased were caused "probably by strong fist blows," the trial court found defendant Daffon liable for
the quasi delict under Article 2176 of the Civil Code.3 It held that "(T)he act, therefore, of the accused Daffon in giving
the deceased strong fistblows in the stomach which ruptured his internal organs and caused his death falls within the
purview of this article of the Code."4

The trial court, however, absolved from liability the three other defendants-officials of the Manila Technical Institute, in
this wise:

... Their liabilities are based on the provisions of Article 2180 of the New Civil Code which reads:

Art. 2180. ... .

 Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students and apprentices, so long as they
remain in their custody.

In the opinion of the Court, this article of the Code is not applicable to the case at bar, since this
contemplates the situation where the control or influence of the teachers and heads of school
establishments over the conduct and actions by the pupil supersedes those of the parents.

CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE CONSTRUED: — The clause "so
long as they remain in their custody" contained in Article 2180 of the new civil code
contemplated a situation where the pupil lives and boards with the teacher, such
that the control or influence on the pupil supersedes those of the parents. In those
circumstances the control or influence over the conduct and actions of the pupil
as well as the responsibilities for their sort would pass from the father and mother to
the teachers. (Ciriaco L. Mercado, Petitioner vs. the Court of Appeals, Manuel
Quisumbing, Jr., et al., respondents, G.R. No. L-14862, May 30, 1960).5

There is no evidence that the accused Daffon lived and boarded with his teacher or the other
defendant officials of the school. These defendants cannot therefore be made responsible for the tort
of the defendant Daffon.

Judgment was therefore rendered by the trial court as follows:

1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs of the deceased Dominador
Palisoc (a) P6,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and compensatory
expenses; (c) P5,000.00 for moral damages; (d) P10,000.00 for loss of earning power, considering that
the deceased was only between sixteen and seventeen years, and in good health when he died,
and (e) P2,000.00 for attorney's fee, plus the costs of this action. .

2. Absolving the other defendants. .

3. Dismissing the defendants' counterclaim for lack of merit.

Plaintiffs' appeal raises the principal legal question that under the factual findings of the trial court, which are now
beyond review, the trial court erred in absolving the defendants-school officials instead of holding them jointly and
severally liable as tortfeasors, with defendant Daffon, for the damages awarded them as a result of their son's death. The
Court finds the appeal, in the main, to be meritorious. .

1. The lower court absolved defendants-school officials on the ground that the provisions of Article 2180, Civil Code,
which expressly hold "teachers or heads of establishments of arts and trades ... liable for damages caused by their pupils
and students and apprentices, so long as they remain in their custody," are not applicable to to the case at bar, since
"there is no evidence that the accused Daffon [who inflicted the fatal fistblows]6 lived and boarded with his teacher or
the other defendants-officials of the school. These defendants cannot therefore be made responsible for the tort of the
defendant Daffon."

The lower court based its legal conclusion expressly on the Court's dictum in Mercado vs. Court of Appeals,7 that "(I)t
would seem that the clause "so long as they remain in their custody," contemplates a situation where the pupil lives and
boards with the teacher, such that the control, direction and influence on the pupil supersedes those of the parents. In
these circumstances the control or influence over the conduct and actions of the pupil would pass from the father and
mother to the teacher; and so would the responsibility for the torts of the pupil. Such a situation does not appear in the
case at bar; the pupils appear to go to school during school hours and go back to their homes with their parents after
school is over." This dictum had been made in rejecting therein petitioner father's contention that his minor son's school,
Lourdes Catholic School at Kanlaon, Quezon City [which was not a party to the case] should be held responsible, rather
than him as father, for the moral damages of P2,000.00 adjudged against him for the physical injury inflicted by his son on
a classmate. [A cut on the right cheek with a piece of razor which costs only P50.00 by way of medical expenses to treat
and cure, since the wound left no scar.] The moral damages award was after all set aside by the Court on the ground
that none of the specific cases provided in Article 2219, Civil Code, for awarding moral damages had been established,
petitioner's son being only nine years old and not having been shown to have "acted with discernment" in inflicting the
injuries on his classmate. .
The dictum in Mercado was based in turn on another dictum in the earlier case of Exconde vs. Capuno,8 where the only
issue involved as expressly stated in the decision, was whether the therein defendant-father could be civilly liable for
damages resulting from a death caused in a motor vehicle accident driven unauthorizedly and negligently by his minor
son, (which issue was resolved adversely against the father). Nevertheless, the dictum in such earlier case that "It is true
that under the law abovequoted, teachers or directors of arts and trades are liable for any damage caused by their
pupils or apprentices while they are under their custody, but this provision only applies to an institution of arts and trades
and not to any academic educational institution" was expressly cited and quoted in Mercado. .

2. The case at bar was instituted directly against the school officials and squarely raises the issue of liability of teachers
and heads of schools under Article 2180, Civil Code, for damages caused by their pupils and students against fellow
students on the school premises. Here, the parents of the student at fault, defendant Daffon, are not involved, since
Daffon was already of age at the time of the tragic incident. There is no question, either, that the school involved is a
non-academic school,9 the Manila Technical Institute being admittedly a technical vocational and industrial school. .

The Court holds that under the cited codal article, defendants head and teacher of the Manila Technical Institute
(defendants Valenton and Quibulue, respectively) are liable jointly and severally for damages to plaintiffs-appellants for
the death of the latter's minor son at the hands of defendant Daffon at the school's laboratory room. No liability attaches
to defendant Brillantes as a mere member of the school's board of directors. The school itself cannot be held similarly
liable, since it has not been properly impleaded as party defendant. While plaintiffs sought to so implead it, by
impleading improperly defendant Brillantes, its former single proprietor, the lower court found that it had been
incorporated since August 2, 1962, and therefore the school itself, as thus incorporated, should have been brought in as
party defendant. Plaintiffs failed to do so, notwithstanding that Brillantes and his co-defendants in their reply to plaintiffs'
request for admission had expressly manifested and made of record that "defendant Antonio C. Brillantes is not the
registered owner/head of the "Manila Technical Institute" which is now a corporation and is not owned by any individual
person."10

3. The rationale of such liability of school heads and teachers for the tortious acts of their pupils and students, so long as
they remain in their custody, is that they stand, to a certain extent, as to their pupils and students, in loco parentis and
are called upon to "exercise reasonable supervision over the conduct of the child."11 This is expressly provided for in
Articles 349, 350 and 352 of the Civil Code.12 In the law of torts, the governing principle is that the protective custody of
the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation
as well as that of the school itself to provide proper supervision of the students' activities during the whole time that they
are at attendance in the school, including recess time, as well as to take the necessary precautions to protect the
students in their custody from dangers and hazards that would reasonably be anticipated, including injuries that some
student themselves may inflict willfully or through negligence on their fellow students. .

4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion in Exconde, "the basis of the presumption of
negligence of Art. 1903 [now 2180] is some culpa in vigilando that the parents, teachers, etc. are supposed to have
incurred in the exercise of their authority" 13 and "where the parent places the child under the effective authority of the
teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody,
for the very reason that the parent is not supposed to interfere with the discipline of the school nor with the authority and
supervision of the teacher while the child is under instruction." The school itself, likewise, has to respond for the fault or
negligence of its school head and teachers under the same cited article.14

5. The lower court therefore erred in law in absolving defendants-school officials on the ground that they could be held
liable under Article 2180, Civil Code, only if the student who inflicted the fatal fistblows on his classmate and victim "lived
and boarded with his teacher or the other defendants officials of the school." As stated above, the phrase used in the
cited article — "so long as (the students) remain in their custody" means the protective and supervisory custody that the
school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the
school, including recess time. There is nothing in the law that requires that for such liability to attach the pupil or student
who commits the tortious act must live and board in the school, as erroneously held by the lower court, and the dicta
in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present
decision. .

6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school must therefore be held jointly
and severally liable for the quasi-delict of their co-defendant Daffon in the latter's having caused the death of his
classmate, the deceased Dominador Palisoc. The unfortunate death resulting from the fight between the protagonists-
students could have been avoided, had said defendants but complied with their duty of providing adequate
supervision over the activities of the students in the school premises to protect their students from harm, whether at the
hands of fellow students or other parties. At any rate, the law holds them liable unless they relieve themselves of such
liability, in compliance with the last paragraph of Article 2180, Civil Code, by "(proving) that they observed all the
diligence of a good father of a family to prevent damage." In the light of the factual findings of the lower court's
decision, said defendants failed to prove such exemption from liability. .
7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death of their son should be increased
to P12,000.00 as set by the Court in People vs. Pantoja,15 and observed in all death indemnity cases thereafter is well
taken. The Court, in Pantoja, after noting the decline in the purchasing power of the Philippine peso, had expressed its
"considered opinion that the amount of award of compensatory damages for death caused by a crime or quasi-
delict should now be P12,000.00." The Court thereby adjusted the minimum amount of "compensatory damages for
death caused by a crime or quasi-delict" as per Article 2206, Civil Code, from the old stated minimum of P3,000.00 to
P12,000.00, which amount is to be awarded "even though there may have been mitigating circumstances" pursuant to
the express provisions of said codal article. .

8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded exemplary damages and
imposed legal interest on the total damages awarded, besides increasing the award of attorney's fees all concern
matters that are left by law to the discretion of the trial court and the Court has not been shown any error or abuse in the
exercise of such discretion on the part of the trial court.16 Decisive here is the touchstone provision of Article 2231, Civil
Code, that "In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence." No
gross negligence on the part of defendants was found by the trial court to warrant the imposition of exemplary
damages, as well as of interest and increased attorney's fees, and the Court has not been shown in this appeal any
compelling reason to disturb such finding. .

ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .

1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton and Santiago M. Quibulue jointly and severallyto
pay plaintiffs as heirs of the deceased Dominador Palisoc (a) P12,000.00 for the death of Dominador Palisoc; (b)
P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for moral, damages; (d) P10,000.00 for loss of earning
power and (e) P2,000.00 for attorney's fee, plus the costs of this action in both instances; 2. absolving defendant Antonio
C. Brillantes from the complaint; and 3. dismissing defendants' counterclaims. .

Concepcion, C.J., Villamor and Makasiar, JJ., concur. .

Dizon, J., took no part. .

REYES, J.B.L., J., concurring: .

I concur with the opinion of Mr. Justice Teehankee but would like to clarify that the argument of the dissenting opinion of
the effect that the responsibility of teachers and school officers under Articles 2180 should be limited to pupils who are
minors (below the age of majority) is not in accord with the plain text of the law. Article 2180 of the Civil Code of the
Philippines is to the following effect: .

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but
also for those of persons for whom one is responsible. .

The father and, in case of his death or incapacity, the mother, are responsible for the damages
caused by the minor children who live in their company. .

Guardians are liable for damages caused by the minors or incapacitated persons who are under their
authority and live in their company. .

The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions. .

Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry. .

The State is responsible in like manner when it acts through a special agent; but not when the
damage has been caused by the official to whom the task done properly pertains, in which case
what is provided in article 2176 shall be applicable. .

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by
their pupils and students or apprentices, so long as they remain in their custody.
 The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observe all the diligence of a good father of a family to prevent damages.

Examination of the article shows that where the responsibility prescribed therein is limited to illegal acts during minority,
the article expressly so provides, as in the case of the parents and of the guardians. It is natural to expect that if the law
had intended to similarly restrict the civil responsibility of the other categories of persons enumerated in the article, it
would have expressly so stated. The fact that it has not done so indicates an intent that the liability be not restricted to
the case of persons under age. Further, it is not without significance that the teachers and heads of scholarly
establishments are not grouped with parents and guardians but ranged with owners and managers of enterprises,
employers and the state, as to whom no reason is discernible to imply that they should answer only for minors. .

Giorgi, in his well-known "Teoria de las Obligaciones en el Derecho Moderno", Volume 5, page 404, No. 272 (Sp. Ed.),
after noting the split among commentators on the point it issue, observes with considerable cogency that —

272. Ante esta variedad de opiniones, ninguna de las cuales se funds en argumentos merecedores
de seria ponderacion, no es facil tomar un partido. Esto no obstante, debiendo manisfestar nuestra
opinion, nos acercamos a la de los que no estiman necesaria la menor edad del discipulo o del
aprendiz; porque si el aforismo ubi voluit dixit, ubi noluit tacuit, no es siempre argumento seguro para
interpreter la ley, es infalible cuanto se refiere a una misma disposicion relative a varios casos. Y tal es
el art. 1.153. Lo que haya establecido important poco si, elevandones a los principios de razon,
puede dudarse de la oportunidad de semajante diferencia; porque la voluntad cierta del legislador
prevalece in iure condito a cualquier otra consideracion. Por otra parte, si bien se considera, no
puede parecer extrano o absurdo el suponer que un discipulo y un aprendiz, aunque mayores de
edad, acepten voluntariamente la entera vigilancia de su preceptor mientras dura la educacion. Ni
parece dudoso desde el momento que los artesanos y los preceptores deben, al par de los padres,
responder civilmente de los daños comitidos por sus discipulos, aun cuando estos esten faltos de
discernimiento.

Similarly, Planiol-Ripert, in their "Droit Civil Pratique," Volume VI, No. 635 (Spanish version), say that —

635. Personas de quien responde. — Si bien la responsibilidad del maestro es originalmente una
estension de la de los padres (1), el art. 1384 no especifica que los alumnos y aprendices han de ser
menores de edad, por lo que la presuncion de culpa funcionara aun cuando sean mayores (2); pero,
la vigilancia no tendra que ser ejercida en iguales terminos. Aun respecto a los menores variara
segun la edad, extremo que tendra que ternese en ceunta a los fines de apreciar si el maestro ha
podido impedir el acto nocivo o no. .

I submit, finally, that while in the case of parents and guardians, their authority and supervision over the children and
wards end by law upon the latter reaching majority age, the authority and custodial supervision over pupils exist
regardless of the age of the latter. A student over twenty-one, by enrolling and attending a school, places himself under
the custodial supervision and disciplinary authority of the school authorities, which is the basis of the latter's correlative
responsibility for his torts, committed while under such authority. Of course, the teachers' control is not as plenary as when
the student is a minor; but that circumstance can only affect the decree of the responsibility but cannot negate the
existence thereof. It is only a factor to be appreciated in determining whether or not the defendant has exercised due
diligence in endeavoring to prevent the injury, as prescribed in the last paragraph of Article 2180. .

Barredo, J., concurs.

Separate Opinions

MAKALINTAL, J., dissenting:

I vote to affirm the decision appealed from. I see no reason to depart from the doctrine laid down by this Court
in Mercado v. Court of Appeals, 108 Phil. 414, where the clause "so long as they remain in their custody" used in Article
2180 of the Civil Code was construed as referring to a "situation where the pupil lives and boards with the teacher, such
that the (latter's) control, direction and influence on the pupil supersedes those of the parents." I think it is highly
unrealistic and conducive to unjust results, considering the size of the enrollment in many of our educational institutions,
academic and non-academic, as well as the temper, attitudes and often destructive activism of the students, to hold
their teachers and/or the administrative heads of the schools directly liable for torts committed by them. When even the
school authorities find themselves besieged, beleaguered and attacked, and unable to impose the traditional
disciplinary measures formerly recognized as available to them, such as suspension or outright expulsion of the offending
students, it flies in the face of logic and reality to consider such students, merely from the fact of enrollment and class
attendance, as "in the custody" of the teachers or school heads within the meaning of the statute, and to hold the latter
liable unless they can prove that they have exercised "all the diligence of a good father of the family to prevent
damage." Article 2180, if applied as appellants construe it, would be bad law. It would demand responsibility without
commensurate authority, rendering teachers and school heads open to damage suits for causes beyond their power to
control. Present conditions being what they are, I believe the restrictive interpretation of the aforesaid provision
enunciated in Mercado should be maintained. .

With particular reference to the case at bar, one other factor constrains me to dissent. The opinion of the majority states:
"Here, the parents of the student at fault, defendant Daffon, are not involved, since Daffon was already of age at the
time of the tragic incident." This statement is of course in accordance with Article 2180, which says that "the father and,
in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in
their company." Note that for parental responsibility to arise the children must be minors who live in their company. If, as
stated also in the opinion of the majority, "the rationale of (the) liability of school heads and teachers for the tortious acts
of their pupils and students, so long as they remain in their custody, is that they stand, to a certain extent, as to their
pupils and students, in loco parentis and are called upon to exercise reasonable supervision over the conduct of the
child," then it stands to reason that (1) the clause "so long as they remain in their custody" as used in reference to
teachers and school heads should be equated with the phrase "who live in their company" as used in reference to
parents; and (2) that just as parents are not responsible for damages caused by their children who are no longer minors,
so should teachers and school heads be exempt from liability for the tortious acts of their students in the same age
category. I find no justification, either in the law itself or in justice and equity, to make a substitute parent liable where the
real parent would be free from liability. .

Zaldivar, Castro and Fernando, JJ., concur.

Separate Opinions

MAKALINTAL, J., dissenting:

I vote to affirm the decision appealed from. I see no reason to depart from the doctrine laid down by this Court
in Mercado v. Court of Appeals, 108 Phil. 414, where the clause "so long as they remain in their custody" used in Article
2180 of the Civil Code was construed as referring to a "situation where the pupil lives and boards with the teacher, such
that the (latter's) control, direction and influence on the pupil supersedes those of the parents." I think it is highly
unrealistic and conducive to unjust results, considering the size of the enrollment in many of our educational institutions,
academic and non-academic, as well as the temper, attitudes and often destructive activism of the students, to hold
their teachers and/or the administrative heads of the schools directly liable for torts committed by them. When even the
school authorities find themselves besieged, beleaguered and attacked, and unable to impose the traditional
disciplinary measures formerly recognized as available to them, such as suspension or outright expulsion of the offending
students, it flies in the face of logic and reality to consider such students, merely from the fact of enrollment and class
attendance, as "in the custody" of the teachers or school heads within the meaning of the statute, and to hold the latter
liable unless they can prove that they have exercised "all the diligence of a good father of the family to prevent
damage." Article 2180, if applied as appellants construe it, would be bad law. It would demand responsibility without
commensurate authority, rendering teachers and school heads open to damage suits for causes beyond their power to
control. Present conditions being what they are, I believe the restrictive interpretation of the aforesaid provision
enunciated in Mercado should be maintained. .
With particular reference to the case at bar, one other factor constrains me to dissent. The opinion of the majority states:
"Here, the parents of the student at fault, defendant Daffon, are not involved, since Daffon was already of age at the
time of the tragic incident." This statement is of course in accordance with Article 2180, which says that "the father and,
in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in
their company." Note that for parental responsibility to arise the children must be minors who live in their company. If, as
stated also in the opinion of the majority, "the rationale of (the) liability of school heads and teachers for the tortious acts
of their pupils and students, so long as they remain in their custody, is that they stand, to a certain extent, as to their
pupils and students, in loco parentis and are called upon to exercise reasonable supervision over the conduct of the
child," then it stands to reason that (1) the clause "so long as they remain in their custody" as used in reference to
teachers and school heads should be equated with the phrase "who live in their company" as used in reference to
parents; and (2) that just as parents are not responsible for damages caused by their children who are no longer minors,
so should teachers and school heads be exempt from liability for the tortious acts of their students in the same age
category. I find no justification, either in the law itself or in justice and equity, to make a substitute parent liable where the
real parent would be free from liability. .

Zaldivar, Castro and Fernando, JJ., concur.

Footnotes

1 Per allegations of the complaint and as indicated in the title of the case. Brillantes was made
defendant as "registered owner/head under Act No. 3883" of the Manila Technical Institute. .

2 Notes in parentheses supplied from other portions of autopsy report..

3 "ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.(1902a)."

4 Per the decision also, defendant Daffon had been charged for homicide for the death in Criminal
Case No. 82419 and was "acquitted on reasonable doubt."

5 Reported in 108 Phil. 414. .

6 Note in brackets supplied. .

7 108 PhiI. 414 (May 1960). .

8 101 Phil. 843 (June 29, 1957), a six-to-three decision. .

9 The writer concurs with the views expressed in the dissenting opinion of Mr. Justice J.B.L. Reyes
in Exconde [concurred in by Justices Padilla and A. Reyes] that "(I) can see no sound reason for
limiting Art. 1903 of the old Civil Code to teachers of arts and trades and not to academic ones. What
substantial difference is there between them in so far as concerns the proper supervision and
vigilance over their pupils. It cannot be seriously contended that an academic teacher is exempt
from the duty of watching that his pupils do not commit a tort to the detriment of third persons, so
long as they are in a position to exercise authority and supervision over the pupil." However, since the
school involved at bar is a non-academic school, the question as to the applicability of the cited
codal provision to academic institutions will have to await another case wherein it may properly be
raised. .

10 Rollo Page, 47. .

11 Art. 350, Civil Code. .

12 Art. 349, Civil Code enumerates: "(2) Teachers and professors" and "(4) directors of trade
establishments, with regard to apprentices" among those who "shall exercise substitute parental
 authority." Art. 352, Civil Code provides that "The relation between teacher and pupil, professor and
student, are fixed by government regulations and those of each school or institution. ..."

13 Tolentino expresses a similar opinion: "Teachers: — In order to be within this provision, a teacher
must not only be charged with teaching but also vigilance over their students or pupils. They include
teachers in educational institutions of all kinds, whether for the intellect, the spirit, or the body;
teachers who give instruction in classes or by individuals, even in their own homes; teachers in
institutions for deficient or abandoned children, and those in correctional institutions."

14 "ART. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible. ...

"Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry. .

"... ."

15 25 SCRA, 468, (Oct. 11, 1968). .

16 See Arts. 2231, 2211 and 2208, Civil Code.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-47745 April 15, 1988

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA PANTALEON A. AMADORA, JOSE A.
AMADORA III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA, VICENTE A.
AMADORA and MARIA TISCALINA A. AMADORA, petitioners
vs.
HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO P. DLMASO JR., CELESTINO
DICON, ANIANO ABELLANA, PABLITO DAFFON thru his parents and natural guardians, MR. and MRS. NICANOR GUMBAN,
and ROLANDO VALENCIA, thru his guardian, A. FRANCISCO ALONSO, respondents.

Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would
ascend the stage and in the presence of his relatives and friends receive his high school diploma. These ceremonies
were scheduled on April 16, 1972. As it turned out, though, fate would intervene and deny him that awaited experience.
On April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose-Recoletos, a classmate,
Pablito Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only
seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the victim's
parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos,
its rector the high school principal, the dean of boys, and the physics teacher, together with Daffon and two other
students, through their respective parents. The complaint against the students was later dropped. After trial, the Court of
First Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death
compensation, loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and
attorney's fees .3 On appeal to the respondent court, however, the decision was reversed and all the defendants were
completely absolved .4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the respondent
court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a school of arts and
trades but an academic institution of learning. It also held that the students were not in the custody of the school at the
time of the incident as the semester had already ended, that there was no clear identification of the fatal gun and that
in any event the defendant, had exercised the necessary diligence in preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and while in its
auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences of these facts, the
parties sharply disagree.

The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his
graduation; hence, he was then under the custody of the private respondents. The private respondents submit that
Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and that he was no longer
in their custody because the semester had already ended.

There is also the question of the identity of the gun used which the petitioners consider important because of an earlier
incident which they claim underscores the negligence of the school and at least one of the private respondents. It is not
denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated from Jose Gumban
an unlicensed pistol but later returned it to him without making a report to the principal or taking any further action .6 As
Gumban was one of the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners contend
that this was the same pistol that had been confiscated from Gumban and that their son would not have been killed if it
had not been returned by Damaso. The respondents say, however, that there is no proof that the gun was the same
firearm that killed Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is invoked by
both parties in support of their conflicting positions. The pertinent part of this article reads as follows:

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by
their pupils and students or apprentices so long as they remain in their custody.

Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit: Exconde v.
Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this opinion for a
better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended a Rizal
Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took over its wheel
and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was found guilty of
double homicide with reckless imprudence. In the separate civil action flied against them, his father was held solidarily
liable with him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year
old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter
dictum (as it was not a party to the case) on the ground that it was riot a school of arts and trades. Justice J.B.L. Reyes,
with whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school authorities who
should be held liable Liability under this rule, he said, was imposed on (1) teachers in general; and (2) heads of schools of
arts and trades in particular. The modifying clause "of establishments of arts and trades" should apply only to "heads" and
not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade
during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the culprits parents
for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself had also not been sued
that the school was not liable because it was not an establishment of arts and trades. Moreover, the custody
requirement had not been proved as this "contemplates a situation where the student lives and boards with the teacher,
such that the control, direction and influences on the pupil supersede those of the parents." Justice J.B.L. Reyes did not
take part but the other members of the court concurred in this decision promulgated on May 30, 1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist blows in the
laboratory of the Manila Technical Institute. Although the wrongdoer — who was already of age — was not boarding in
the school, the head thereof and the teacher in charge were held solidarily liable with him. The Court declared through
Justice Teehankee:

The phrase used in the cited article — "so long as (the students) remain in their custody" — means the
protective and supervisory custody that the school and its heads and teachers exercise over the
pupils and students for as long as they are at attendance in the school, including recess time. There is
nothing in the law that requires that for such liability to attach, the pupil or student who commits the
tortious act must live and board in the school, as erroneously held by the lower court, and the dicta in
Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by
the present decision.

This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in answer to the
dissenting opinion, that even students already of age were covered by the provision since they were equally in the
custody of the school and subject to its discipline. Dissenting with three others,11 Justice Makalintal was for retaining the
custody interpretation in Mercado and submitted that the rule should apply only to torts committed by students not yet
of age as the school would be acting only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that "since
the school involved at bar is a non-academic school, the question as to the applicability of the cited codal provision to
academic institutions will have to await another case wherein it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought to be
held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic institution of
learning. The parties herein have also directly raised the question of whether or not Article 2180 covers even
establishments which are technically not schools of arts and trades, and, if so, when the offending student is supposed to
be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question
should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or
vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such
student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is
the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in
general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the
head thereof who shall be answerable. Following the canon of reddendo singula singulis"teachers" should apply to the
words "pupils and students" and "heads of establishments of arts and trades" to the word "apprentices."

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades
and not to academic ones. What substantial difference is there between them insofar as concerns
the proper supervision and vice over their pupils? It cannot be seriously contended that an academic
teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of
third Persons, so long as they are in a position to exercise authority and Supervision over the pupil. In
my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of
the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of
establishments." The phrase is only an updated version of the equivalent terms "preceptores y
artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in
some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise
of their authority, it would seem clear that where the parent places the child under the effective
authority of the teacher, the latter, and not the parent, should be the one answerable for the torts
committed while under his custody, for the very reason/that the parent is not supposed to interfere
with the discipline of the school nor with the authority and supervision of the teacher while the child is
under instruction. And if there is no authority, there can be no responsibility.

There is really no substantial distinction between the academic and the non-academic schools insofar as torts
committed by their students are concerned. The same vigilance is expected from the teacher over the students under
his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the Exconde and
Mercado Cases is that the provision would make the teacher or even the head of the school of arts and trades liable for
an injury caused by any student in its custody but if that same tort were committed in an academic school, no liability
would attach to the teacher or the school head. All other circumstances being the same, the teacher or the head of the
academic school would be absolved whereas the teacher and the head of the non-academic school would be held
liable, and simply because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis only
of the nature of their respective schools. There does not seem to be any plausible reason for relaxing that vigilance
simply because the school is academic in nature and for increasing such vigilance where the school is non-academic.
Notably, the injury subject of liability is caused by the student and not by the school itself nor is it a result of the operations
of the school or its equipment. The injury contemplated may be caused by any student regardless of the school where
he is registered. The teacher certainly should not be able to excuse himself by simply showing that he is teaching in an
academic school where, on the other hand, the head would be held liable if the school were non-academic.

These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts
committed by his students, why is it the head of the school only who is held liable where the injury is caused in a school of
arts and trades? And in the case of the academic or non- technical school, why not apply the rule also to the head
thereof instead of imposing the liability only on the teacher?

The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades exercised
a closer tutelage over his pupils than the head of the academic school. The old schools of arts and trades were
engaged in the training of artisans apprenticed to their master who personally and directly instructed them on the
technique and secrets of their craft. The head of the school of arts and trades was such a master and so was personally
involved in the task of teaching his students, who usually even boarded with him and so came under his constant
control, supervision and influence. By contrast, the head of the academic school was not as involved with his students
and exercised only administrative duties over the teachers who were the persons directly dealing with the students. The
head of the academic school had then (as now) only a vicarious relationship with the students. Consequently, while he
could not be directly faulted for the acts of the students, the head of the school of arts and trades, because of his closer
ties with them, could be so blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and trades,
the consequent increase in their enrollment, and the corresponding diminution of the direct and personal contract of
their heads with the students. Article 2180, however, remains unchanged. In its present state, the provision must be
interpreted by the Court according to its clear and original mandate until the legislature, taking into account the
charges in the situation subject to be regulated, sees fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts and
trades over the students. Is such responsibility co-extensive with the period when the student is actually undergoing
studies during the school term, as contended by the respondents and impliedly admitted by the petitioners themselves?

From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v.
Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the student
should be within the control and under the influence of the school authorities at the time of the occurrence of the injury.
This does not necessarily mean that such, custody be co-terminous with the semester, beginning with the start of classes
and ending upon the close thereof, and excluding the time before or after such period, such as the period of
registration, and in the case of graduating students, the period before the commencement exercises. In the view of the
Court, the student is in the custody of the school authorities as long as he is under the control and influence of the school
and within its premises, whether the semester has not yet begun or has already ended.

It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes
notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither should
such discipline be deemed ended upon the last day of classes notwithstanding that there may still be certain requisites
to be satisfied for completion of the course, such as submission of reports, term papers, clearances and the like. During
such periods, the student is still subject to the disciplinary authority of the school and cannot consider himself released
altogether from observance of its rules.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in
the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the
enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues.
Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his classmates
and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the
discipline of the school authorities under the provisions of Article 2180.
During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts, in practically the
same way that the parents are responsible for the child when he is in their custody. The teacher-in-charge is the one
designated by the dean, principal, or other administrative superior to exercise supervision over the pupils in the specific
classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher be physically
present and in a position to prevent it. Custody does not connote immediate and actual physical control but refers more
to the influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for the injuries
caused by the student, the teacher and not the parent shag be held responsible if the tort was committed within the
premises of the school at any time when its authority could be validly exercised over him.

In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or the
head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may be held
to answer for the acts of its teachers or even of the head thereof under the general principle of respondeat superior, but
then it may exculpate itself from liability by proof that it had exercised the diligence of a bonus paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to
answer for the tort committed by the student. As long as the defendant can show that he had taken the necessary
precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180,
which also states that:

The responsibility treated of in this article shall cease when the Persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damages.

In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco
parentis for the law does not require that the offending student be of minority age. Unlike the parent, who wig be liable
only if his child is still a minor, the teacher is held answerable by the law for the act of the student under him regardless of
the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the head of the technical school
although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more favorably than the
teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc that
the school may be unduly exposed to liability under this article in view of the increasing activism among the students
that is likely to cause violence and resulting injuries in the school premises. That is a valid fear, to be sure. Nevertheless, it
should be repeated that, under the present ruling, it is not the school that will be held directly liable. Moreover, the
defense of due diligence is available to it in case it is sought to be held answerable as principal for the acts or omission
of its head or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate
supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the
maintenance of discipline among them. In almost all cases now, in fact, these measures are effected through the
assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms should
bolster the claim of the school that it has taken adequate steps to prevent any injury that may be committed by its
students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly answerable for
the damage caused by his students as long as they are in the school premises and presumably under his influence. In this
respect, the Court is disposed not to expect from the teacher the same measure of responsibility imposed on the parent
for their influence over the child is not equal in degree. Obviously, the parent can expect more obedience from the
child because the latter's dependence on him is greater than on the teacher. It need not be stressed that such
dependence includes the child's support and sustenance whereas submission to the teacher's influence, besides being
coterminous with the period of custody is usually enforced only because of the students' desire to pass the course. The
parent can instill more las discipline on the child than the teacher and so should be held to a greater accountability
than the teacher for the tort committed by the child.

And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades is
responsible for the damage caused by the student or apprentice even if he is already of age — and therefore less
tractable than the minor — then there should all the more be justification to require from the school authorities less
accountability as long as they can prove reasonable diligence in preventing the injury. After all, if the parent himself is no
longer liable for the student's acts because he has reached majority age and so is no longer under the former's control,
there is then all the more reason for leniency in assessing the teacher's responsibility for the acts of the student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:
1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-
Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school
auditorium to finish his physics experiment or merely to submit his physics report for what is important is that he was there
for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the premises of
the school is a legitimate purpose that would have also brought him in the custody of the school authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the
teacher-in-charge as previously defined. Each of them was exercising only a general authority over the student body
and not the direct control and influence exerted by the teacher placed in charge of particular classes or sections and
thus immediately involved in its discipline. The evidence of the parties does not disclose who the teacher-in-charge of
the offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his
physics report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of
Alfredo's killer.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in enforcing
discipline upon Daffon or that he had waived observance of the rules and regulations of the school or condoned their
non-observance. His absence when the tragedy happened cannot be considered against him because he was not
supposed or required to report to school on that day. And while it is true that the offending student was still in the
custody of the teacher-in-charge even if the latter was physically absent when the tort was committed, it has not been
established that it was caused by his laxness in enforcing discipline upon the student. On the contrary, the private
respondents have proved that they had exercised due diligence, through the enforcement of the school regulations, in
maintaining that discipline.

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable especially in view of
the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned the
same later to him without taking disciplinary action or reporting the matter to higher authorities. While this was clearly
negligence on his part, for which he deserves sanctions from the school, it does not necessarily link him to the shooting of
Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the article
because only the teacher or the head of the school of arts and trades is made responsible for the damage caused by
the student or apprentice. Neither can it be held to answer for the tort committed by any of the other private
respondents for none of them has been found to have been charged with the custody of the offending student or has
been remiss in the discharge of his duties in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that
none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in the latter's
death at the auditorium of the Colegio de San Jose-Recoletos on April 13, 1972. While we deeply sympathize with the
petitioners over the loss of their son under the tragic circumstances here related, we nevertheless are unable to extend
them the material relief they seek, as a balm to their grief, under the law they have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Fernan, Padilla and Teehankee, C.J., JJ, took no part.

Separate Opinions

MELENCIO-HERRERA, J., concurring and dissenting:

I concur, except with respect to the restricted meaning given the term "teacher" in Article 2180 of the Civil Code as
"teacher-in-charge." This would limit liability to occasions where there are classes under the immediate charge of a
teacher, which does not seem to be the intendment of the law.

As I understand it, the philosophy of the law is that whoever stands in loco parentis will have the same duties and
obligations as parents whenever in such a standing. Those persons are mandatorily held liable for the tortious acts of
pupils and students so long as the latter remain in their custody, meaning their protective and supervisory custody.

Thus Article 349 of the Civil Code enumerates the persons who stand in loco parentis and thereby exercise substitute
parental authority:

Art. 349 The following persons shall exercise substitute parental authority:

xxx xxx xxx

2) Teachers and professors

xxx xxx xxx

4) Directors of trade establishments, with regard to apprentices;'

Article 352 of the Civil Code further provides:

Art. 362. The relations between teacher and pupil, professor and student, are fixed by government
regulations and those of each school or institution....

But even such rules and regulations as may be fixed can not contravene the concept of substitute parental authority.

The rationale of liability of school heads and teachers for the tortious acts of their pupils was explained in Palisoc vs.
Brillantes (41 SCRA 548), thus:

The protective custody of the school heads and teachers is mandatorily substituted for that of the
parents, and hence, it becomes their obligation as well as that of the school itself to provide proper
supervision of the students' activities during the whole time that they are at attendance in the
school, including recess time, as well as to take the necessary precautions to protect the students in
their custody from dangers and hazards that would reasonably be anticipated, including injuries that
some students themselves may inflict wilfully or through negligence on their fellow students. (Emphasis
supplied)

Of course, as provided for in the same Article 2180, the responsibility treated of shall cease when the persons mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.

And while a school is, admittedly, not directly liable since Article 2180 speaks only of teachers and schools heads, yet, by
virtue of the same provision, the school, as their employer, may be held liable for the failure of its teachers or school
heads to perform their mandatory legal duties as substitute parents (Sangco, Philippine Law on Torts & Damages, 1978
ed., p. 201). Again, the school may exculpate itself from liability by proving that it had exercised the diligence of a good
father of the family.

Art. 2180. x x x

Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.

xxx xxx xxx

Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it is apparent that the Code Commission
had already segregated the classification of "teachers and professors" vis-a-vis their pupils, from "directors of trade
establishments, with regard to their apprentices."

GUTIERREZ, JR., J., concurring:

I concur in the Court's opinion so carefully analyzed and crafted by Justice Isagani A. Cruz. However, I would like to stress
the need for a major amendment to, if not a complete scrapping of, Article 2180 of the Civil Code insofar as it refers to
teachers or heads of establishments of arts and trades in relation to pupils and students or apprentices. The seventh
paragraph of Art. 2180 is a relic of the past and contemplates a situation long gone and out of date. In a Palisoc v.
Brillantes (41 SCRA 548) situation, it is bound to result in mischief and injustice.

First, we no longer have masters and apprentices toiling in schools of arts and trades. Students in "technological" colleges
and universities are no different from students in liberal arts or professional schools. Apprentices now work in regular shops
and factories and their relationship to the employer is covered by laws governing the employment relationship and not
by laws governing the teacher—student relationship.

Second, except for kindergarten, elementary, and perhaps early high school students, teachers are often no longer
objects of veneration who are given the respect due to substitute parents. Many students in their late teens or early adult
years view some teachers as part of a bourgeois or reactionary group whose advice on behaviour, deportment, and
other non-academic matters is not only resented but actively rejected. It ,seems most unfair to hold teachers liable on a
presumption juris tantum of negligence for acts of students even under circumstances where strictly speaking there
could be no in loco parentis relationship. Why do teachers have to prove the contrary of negligence to be freed from
solidary liability for the acts f bomb-throwing or pistol packing students who would just as soon hurt them as they would
other members of the so-called-establishment.

The ordinary rules on quasi-delicta should apply to teachers and schools of whatever nature insofar as grown up students
are concerned. The provision of Art. 2180 of the Civil Code involved in this case has outlived its purpose. The Court
cannot make law. It can only apply the law with its imperfections. However, the Court can suggest that such a law
should be amended or repealed.

Separate Opinions

MELENCIO-HERRERA, J., concurring and dissenting:

I concur, except with respect to the restricted meaning given the term "teacher" in Article 2180 of the Civil Code as
"teacher-in-charge." This would limit liability to occasions where there are classes under the immediate charge of a
teacher, which does not seem to be the intendment of the law.

As I understand it, the philosophy of the law is that whoever stands in loco parentis will have the same duties and
obligations as parents whenever in such a standing. Those persons are mandatorily held liable for the tortious acts of
pupils and students so long as the latter remain in their custody, meaning their protective and supervisory custody.

Thus Article 349 of the Civil Code enumerates the persons who stand in loco parentis and thereby exercise substitute
parental authority:

Art. 349 The following persons shall exercise substitute parental authority:

xxx xxx xxx

2) Teachers and professors

xxx xxx xxx

 4) Directors of trade establishments, with regard to apprentices;'

Article 352 of the Civil Code further provides:

Art. 362. The relations between teacher and pupil, professor and student, are fixed by government
regulations and those of each school or institution....

But even such rules and regulations as may be fixed can not contravene the concept of substitute parental authority.

The rationale of liability of school heads and teachers for the tortious acts of their pupils was explained in Palisoc vs.
Brillantes (41 SCRA 548), thus:

The protective custody of the school heads and teachers is mandatorily substituted for that of the
parents, and hence, it becomes their obligation as well as that of the school itself to provide proper
supervision of the students' activities during the whole time that they are at attendance in the
school, including recess time, as well as to take the necessary precautions to protect the students in
their custody from dangers and hazards that would reasonably be anticipated, including injuries that
some students themselves may inflict wilfully or through negligence on their fellow students. (Emphasis
supplied)

Of course, as provided for in the same Article 2180, the responsibility treated of shall cease when the persons mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.

And while a school is, admittedly, not directly liable since Article 2180 speaks only of teachers and schools heads, yet, by
virtue of the same provision, the school, as their employer, may be held liable for the failure of its teachers or school
heads to perform their mandatory legal duties as substitute parents (Sangco, Philippine Law on Torts & Damages, 1978
ed., p. 201). Again, the school may exculpate itself from liability by proving that it had exercised the diligence of a good
father of the family.

Art. 2180. x x x

Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.

xxx xxx xxx

Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it is apparent that the Code Commission
had already segregated the classification of "teachers and professors" vis-a-vis their pupils, from "directors of trade
establishments, with regard to their apprentices."

GUTIERREZ, JR., J., concurring:

I concur in the Court's opinion so carefully analyzed and crafted by Justice Isagani A. Cruz. However, I would like to stress
the need for a major amendment to, if not a complete scrapping of, Article 2180 of the Civil Code insofar as it refers to
teachers or heads of establishments of arts and trades in relation to pupils and students or apprentices. The seventh
paragraph of Art. 2180 is a relic of the past and contemplates a situation long gone and out of date. In a Palisoc v.
Brillantes (41 SCRA 548) situation, it is bound to result in mischief and injustice.

First, we no longer have masters and apprentices toiling in schools of arts and trades. Students in "technological" colleges
and universities are no different from students in liberal arts or professional schools. Apprentices now work in regular shops
and factories and their relationship to the employer is covered by laws governing the employment relationship and not
by laws governing the teacher—student relationship.

Second, except for kindergarten, elementary, and perhaps early high school students, teachers are often no longer
objects of veneration who are given the respect due to substitute parents. Many students in their late teens or early adult
years view some teachers as part of a bourgeois or reactionary group whose advice on behaviour, deportment, and
other non-academic matters is not only resented but actively rejected. It ,seems most unfair to hold teachers liable on a
presumption juris tantum of negligence for acts of students even under circumstances where strictly speaking there
could be no in loco parentis relationship. Why do teachers have to prove the contrary of negligence to be freed from
solidary liability for the acts f bomb-throwing or pistol packing students who would just as soon hurt them as they would
other members of the so-called-establishment.

The ordinary rules on quasi-delicta should apply to teachers and schools of whatever nature insofar as grown up students
are concerned. The provision of Art. 2180 of the Civil Code involved in this case has outlived its purpose. The Court
cannot make law. It can only apply the law with its imperfections. However, the Court can suggest that such a law
should be amended or repealed.

Footnotes

1 Rollo, pp. 63,157.

2 lbid., p. 38.

3 Id., p. 23.

4 Id p. 31. Climaco, J., ponente, with Pascual and Agcaoili, JJ.

5 Id., pp. 30-31,

6 Id., pp. 23, 272.

7 101 Phil, 843.

8 108 Phil, 414,

9 41 SCRA 548.

10 Concepcion, C.J., Reyes, Barredo, Villamor, and Makasiar, JJ.

11 Castro, Fernando, and Zaldivar, JJ.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 70458 October 5, 1988

BENJAMIN SALVOSA and BAGUIO COLLEGES FOUNDATION, petitioners,

vs.
THE INTERMEDIATE APPELLATE COURT, EDUARDO B. CASTRO, DIOMEDES B. CASTRO, VIRGINIA B. CASTRO and RODOLFO B.
CASTRO., respondents.

Edilberto B. Tenefrancia for petitioners.

Leonardo L. Cocjin Jr. for respondents.

PADILLA, J.:

In this petition for review on certiorari, petitioners seek the reversal of the
decision 1 of respondent Intermediate Appellate Court, dated 7 December 1984, in AC-G.R. No. CV 69876, in so far as it
affirmed the decision 2 of the Court of First Instance of Tarlac (hereinafter referred to as the Trial Court), which held,
among others, petitioners solidarily hable with Jimmy B. Abon, under Art. 2180 of the Civil Code.

The relevant facts, as found by the Trial Court and adopted by reference by the respondent Court, are:

... Baguio Colleges Foundation (BCF, hereafter) is an academic institution ... [However], it is also an institution of arts and
trade. It has so advertised itself, as its own evidence shows. Its brochure (Exh. 2) shows that BCF has a full-fledged
technical-vocational department offer Communication, Broadcast and Teletype Technician courses as well as
Electronics Serviceman and Automotive Mechanics courses... these courses divest BCF of the nature or character of
being purely or exclusively an academic institution. 3

Within the premises of the BCF is an ROTC Unit, the Baguio Colleges Foundation Reserve Officers Training Corps (ROTC)
Unit, which is under the fifth control of the Armed Forces of the Philippines. 4 The ROTC Unit, by way of accommodation
to the Armed Forces of the Philippines (AFP), pursuant to Department Order No. 14, Series of 1975 of the Department of
Education and Culture, 5 is provided by the BCF an office and an armory located at the basement of its main building. 6

The Baguio Colleges Foundation ROTC Unit had Jimmy B. Abon as its duly appointed armorer. 7 As armorer of the ROTC
Unit, Jimmy B. Abon received his appointment from the AFP. Not being an employee of the BCF, he also received his
salary from the AFP, 8 as well as orders from Captain Roberto C. Ungos, the Commandant of the Baguio Colleges
Foundation ROTC Unit, concurrent Commandant of other ROTC units in Baguio and an employee (officer) of the
AFP. 9 Jimmy B. Abon was also a commerce student of the BCF. 10

On 3 March 1977, at around 8:00 p.m., in the parking space of BCF, Jimmy B. Abon shot Napoleon Castro a student of
the University of Baguio with an unlicensed firearm which the former took from the armory of the ROTC Unit of the
BCF. 11 As a result, Napoleon Castro died and Jimmy B. Abon was prosecuted for, and convicted of the crime of
Homicide by Military Commission No. 30, AFP. 12

Subsequently, the heirs of Napoleon Castro sued for damages, impleading Jimmy B. Abon, Roberto C. Ungos (ROTC
Commandant Benjamin Salvosa (President and Chairman of the Board of BCF), Jesus Salvosa (Executive Vice President
of BCF), Libertad D. Quetolio (Dean of the College of Education and Executive Trustee of BCF) and the Baguio Colleges
Foundation Inc. as party defendants. After hearing, the Trial Court rendered a decision, (1) sentencing defendants
Jimmy B. Abon, Benjamin Salvosa and Baguio Colleges Foundation, Inc., jointly and severally, to pay private
respondents, as heirs of Napoleon Castro: a) P12,000.00 for the death of Napoleon Castro, (b) P316,000.00 as indemnity
for the loss of earning capacity of the deceased, (c) P5,000.00 as moral damages, (d) P6,000.00 as actual damages,
and (e) P5,000.00 as attorney's fees, plus costs; (2) absolving the other defendants; and (3) dismissing the defendants'
counterclaim for lack of merit. 13 On appeal by petitioners, the respondent Court affirmed with modification the decision
of the Trial Court. The modification consisted in reducing the award for loss of earning capacity of the deceased from
P316,000.00 to P30,000.00 by way of temperate damages, and increasing the indemnity for the death of Napoleon
Castro from P12,000.00 to P30,000.00.

Hence, this petition.

The central issue in this case is whether or not petitioners can be held solidarity hable with Jimmy B. Abon for damages
under Article 2180 of the Civil Code, as a consequence of the tortious act of Jimmy B. Abon.

Under the penultimate paragraph of Art. 2180 of the Civil Code, teachers or heads of establishments of arts and trades
are hable for "damages caused by their pupils and students or apprentices, so long as they remain in their custody." The
rationale of such liability is that so long as the student remains in the custody of a teacher, the latter "stands, to a certain
extent, in loco parentis [as to the student] and [is] called upon to exercise reasonable supervision over the conduct of
the [student]." 14 Likewise, "the phrase used in [Art. 2180 — 'so long as (the students) remain in their custody means the
protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for
as long as they are at attendance in the school, including recess time." 15

In the case at bar, in holding that Jimmy B. Abon was stin in the protective and supervisory custody of the Baguio
Colleges Foundation when he shot Napoleon Castro, the respondent Court ruled that:
 it is true that Abon was not attending any class or school function at the time of the shooting incident,
which was at about 8 o'clock in the evening; but considering that Abon was employed as an armorer
and property custodian of the BCF ROTC unit, he must have been attending night classes and
therefore that hour in the evening was just about dismissal time for him or soon thereafter. The time
interval is safely within the "recess time" that the trial court spoke of and envisioned by the Palisoc
case, supra. 16 (Emphasis supplied)

In line with the case of Palisoc, 17 a student not "at attendance in the school" cannot be in "recess" thereat. A "recess," as
the concept is embraced in the phrase "at attendance in the school," contemplates a situation of temporary
adjournment of school activities where the student still remains within call of his mentor and is not permitted to leave the
school premises, or the area within which the school activity is conducted. Recess by its nature does not include
dismissal. 18 Likewise, the mere fact of being enrolled or being in the premises of a school without more does not
constitute "attending school" or being in the "protective and supervisory custody' of the school, as contemplated in the
law.

Upon the foregoing considerations, we hold that Jimmy B. Abon cannot be considered to have been "at attendance in
the school," or in the custody of BCF, when he shot Napoleon Castro. Logically, therefore, petitioners cannot under Art.
2180 of the Civil Code be held solidarity liable with Jimmy B. Abon for damages resulting from his acts.

Besides, the record shows that before the shooting incident, Roberto B. Ungos ROTC Unit Commandant, AFP, had
instructed Jimmy B. Abon "not to leave the office and [to keep the armory] well guarded." 19 Apart from negating a
finding that Jimmy B. Abon was under the custody of the school when he committed the act for which the petitioners
are sought to be held liable, this circumstance shows that Jimmy B. Abon was supposed to be working in the armorywith
definite instructions from his superior, the ROTC Commandant, when he shot Napoleon Castro.

Petitioners also raise the issue that, under Art. 2180 of the Civil Code, a school which offers both academic and
technical/vocational courses cannot be held liable for a tort committed by a student enrolled only in its academic
program; however, considering that Jimmy B. Abon was not in the custody of BCF when he shot Napoleon Castro, the
Court deems it unnecessary to pass upon such other issue. 20

WHEREFORE, the decision appealed from is hereby REVERSED in so far as it holds petitioners solidarily liable with Jimmy B.
Abon for his tortious act in the killing of Napoleon Castro. No costs.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Sarmiento and Regalado, JJ., concur.

Footnotes

1 Penned by Justice Serafin E. Camilon and concurred in by Justices Crisolito Pascual and Desiderio P.
Jurado.

2 Penned by Judge Fernando S. Alcantara.

3 Rollo, p. 18.

4 Id., at 24; Record on Appeal, p. 41; As stated in the decision of the Trial Court and adopted by
reference by the respondent Court.

5 Exhibits p. 21.

6 See note 4, supra.

7 Ibid.

8 Ibid.
 9 Ibid.

10 Rollo, p. 24; Record on Appeal, p. 42; As stated in the decision of the Trial Court and adopted by
reference by the respondent Court.

11 Rello, p. 24; Record on Appeal, p. 40; As stated in the decision of the Trial Court and adopted by
reference by the respondent Court.

12 Ibid.

13 Rollo, p. 24; Record on Appeal, p. 46.

14 Palisoc v. Brillantes, 41 SCRA 548.

15 Ibid.

16 Rollo, p. 19.

17 Palisoc vs. Brillantes, et al., L-29025, Oct. 4, 1971, 41 SCRA 548.

18 Schedule of classes at BCF is from 7:30 a.m. to 8:00 p.m. TSN, 6 January 1981, p. 25.

20 The writer, however, like the ponente in the case of Palisoc former Mr. Chief Justice Claudio
Teehankee, also manifests his concurrence "with the views expressed in the dissenting opinion of Mr.
Justice J.B.L. Reyes in Exconde [concurred in by Justices S. Padilla and A. Reyes] that '(1) can see no
sound reason for limiting Art. 1903 of the old Civil Code to teachers of arts and trades and not to
academic ones. What substantial difference is there between them in so far as concerns the proper
supervision and vigilance over their pupils. It cannot be seriously contended that an academic
teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of
third persons, so long as they are in a position to exercise authority and supervision over the pupil."'

FIRST DIVISION

[G.R. No. 143363. February 6, 2002]

ST. MARYS ACADEMY, petitioner, vs. WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II,
JAMES DANIEL, SR., and VIVENCIO VILLANUEVA, respondents.

DECISION

PARDO, J.:

The Case

The case is an appeal via certiorari from the decision[1] of the Court of Appeals as well as the resolution denying
reconsideration, holding petitioner liable for damages arising from an accident that resulted in the death of a student who
had joined a campaign to visit the public schools in Dipolog City to solicit enrollment.

The Facts
 The facts, as found by the Court of Appeals, are as follows:

Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William Carpitanos and Lucia Carpitanos
filed on June 9, 1995 a case against James Daniel II and his parents, James Daniel Sr. and Guada Daniel, the vehicle
owner, Vivencio Villanueva and St. Marys Academy before the Regional Trial Court of Dipolog City.

On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its decision the dispositive portion of
which reads as follows:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the following manner:

1. Defendant St. Marys Academy of Dipolog City, is hereby ordered to pay plaintiffs William Carpitanos and Luisa
Carpitanos, the following sums of money:

a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of Sherwin S. Carpitanos;

b. FORTY THOUSAND PESOS (P40,000.00) actual damages incurred by plaintiffs for burial and
related expenses;

c. TEN THOUSAND PESOS (P10,000.00) for attorneys fees;

d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages; and to pay costs.

2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel are hereby ordered to pay herein
plaintiffs the amount of damages above-stated in the event of insolvency of principal obligor St. Marys Academy of
Dipolog City;

3. Defendant James Daniel II, being a minor at the time of the commission of the tort and who was under special
parental authority of defendant St. Marys Academy, is ABSOLVED from paying the above-stated damages, same being
adjudged against defendants St. Marys Academy, and subsidiarily, against his parents;

4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His counterclaim not being in order as earlier
discussed in this decision, is hereby DISMISSED.

IT IS SO ORDERED. (Decision, pp. 32-33; Records, pp. 205-206).

From the records it appears that from 13 to 20 February 1995, defendant-appellant St. Marys Academy of Dipolog City
conducted an enrollment drive for the school year 1995-1996. A facet of the enrollment campaign was the visitation of
schools from where prospective enrollees were studying. As a student of St. Marys Academy, Sherwin Carpitanos was
part of the campaigning group. Accordingly, on the fateful day, Sherwin, along with other high school students were
riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan Elementary School,
Larayan, Dapitan City. The jeep was driven by James Daniel II then 15 years old and a student of the same
school. Allegedly, the latter drove the jeep in a reckless manner and as a result the jeep turned turtle.

Sherwin Carpitanos died as a result of the injuries he sustained from the accident.[2]

In due time, petitioner St. Marys academy appealed the decision to the Court of Appeals.[3]

On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual damages to P25,000.00 but
otherwise affirming the decision a quo, in toto.[4]

On February 29, 2000, petitioner St. Marys Academy filed a motion for reconsideration of the decision. However,
on May 22, 2000, the Court of Appeals denied the motion.[5]

Hence, this appeal.[6]

The Issues
 1) Whether the Court of Appeals erred in holding the petitioner liable for damages for the death of Sherwin
Carpitanos.

2) Whether the Court of Appeals erred in affirming the award of moral damages against the petitioner.

The Courts Ruling

We reverse the decision of the Court of Appeals.

The Court of Appeals held petitioner St. Marys Academy liable for the death of Sherwin Carpitanos under Articles
218[7] and 219[8] of the Family Code, pointing out that petitioner was negligent in allowing a minor to drive and in not having
a teacher accompany the minor students in the jeep.

Under Article 218 of the Family Code, the following shall have special parental authority over a minor child while
under their supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual, entity or
institution engaged in child care. This special parental authority and responsibility applies to all authorized activities,
whether inside or outside the premises of the school, entity or institution. Thus, such authority and responsibility applies to
field trips, excursions and other affairs of the pupils and students outside the school premises whenever authorized by the
school or its teachers.[9]

Under Article 219 of the Family Code, if the person under custody is a minor, those exercising special parental
authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor
while under their supervision, instruction, or custody.[10]

However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the
proximate cause of the injury caused because the negligence must have a causal connection to the accident.[11]

In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery is sought
must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must
be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence
must be the proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a right of action
unless it is the proximate cause of the injury complained of. And the proximate cause of an injury is that cause, which, in
natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which
the result would not have occurred.[12]

In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death
of the victim.

Respondents Daniel spouses and Villanueva admitted that the immediate cause of the accident was not the
negligence of petitioner or the reckless driving of James Daniel II, but the detachment of the steering wheel guide of the
jeep.

In their comment to the petition, respondents Daniel spouses and Villanueva admitted the documentary exhibits
establishing that the cause of the accident was the detachment of the steering wheel guide of the jeep. Hence, the
cause of the accident was not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio
Villanueva. Respondents, including the spouses Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute
the report and testimony of the traffic investigator who stated that the cause of the accident was the detachment of the
steering wheel guide that caused the jeep to turn turtle.

Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the
negligence of the school authorities, or the reckless driving of James Daniel II.Hence, the respondents reliance on Article
219 of the Family Code that those given the authority and responsibility under the preceding Article shall be principally
and solidarily liable for damages caused by acts or omissions of the unemancipated minor was unfounded.

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of
respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had
possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep
at the time of the accident.

Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment
of the steering wheel guide of the jeep, must be pinned on the minors parents primarily. The negligence of petitioner St.
Marys Academy was only a remote cause of the accident. Between the remote cause and the injury, there intervened
the negligence of the minors parents or the detachment of the steering wheel guide of the jeep.
The proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have occurred.[13]

Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the jeep
owned by respondent Villanueva was an event over which petitioner St. Marys Academy had no control, and which was
the proximate cause of the accident, petitioner may not be held liable for the death resulting from such accident.

Consequently, we find that petitioner likewise cannot be held liable for moral damages in the amount of P500,000.00
awarded by the trial court and affirmed by the Court of Appeals.

Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of
the defendants wrongful act or omission.[14] In this case, the proximate cause of the accident was not attributable to
petitioner.

For the reason that petitioner was not directly liable for the accident, the decision of the Court of Appeals ordering
petitioner to pay death indemnity to respondent Carpitanos must be deleted.Moreover, the grant of attorneys fees as
part of damages is the exception rather than the rule.[15] The power of the court to award attorneys fees under Article 2208
of the Civil Code demands factual, legal and equitable justification.[16] Thus, the grant of attorneys fees against the
petitioner is likewise deleted.

Incidentally, there was no question that the registered owner of the vehicle was respondent Villanueva. He never
denied and in fact admitted this fact. We have held that the registered owner of any vehicle, even if not used for public
service, would primarily be responsible to the public or to third persons for injuries caused the latter while the vehicle was
being driven on the highways or streets.[17]Hence, with the overwhelming evidence presented by petitioner and the
respondent Daniel spouses that the accident occurred because of the detachment of the steering wheel guide of the
jeep, it is not the school, but the registered owner of the vehicle who shall be held responsible for damages for the death
of Sherwin Carpitanos.

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals[18] and that of the trial
court.[19] The Court remands the case to the trial court for determination of the liability of defendants, excluding petitioner
St. Marys Academy, Dipolog City.

No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.

Puno, J., in the result.

[1] In CA-G.R. CV No. 56728, promulgated on February 29, 2000, Reyes, Jr., J., ponente, Martin, Jr. and Brawner, JJ.,
concurring.
[2] Rollo, pp. 53-55.
[3] Docketed as CA-G.R. CV No. 56728.
[4] Petition, Annex A, Rollo, pp. 52-70.
[5] Petition, Annex B, Rollo, pp. 72-73.
[6] Petition filed on July 17, 2000, Rollo, pp. 9-48. On July 16, 2001, we gave due course to the petition, Rollo, pp. 202-203.
[7] Article 218. The School, its administrators and teachers, or the individual, entity or institution engaged in child care shall
have special parental authority and responsibility over the minor child while under their supervision, instruction or
custody.Authority and responsibility shall apply to all authorized activities whether inside or outside the premises
of the school, entity or institution.
[8] Article 219. Those given the authority and responsibility under the preceding Article shall be principally and solidarily
liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians
or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective
 liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the
proper diligence required under the particular circumstances.
[9] Handbook On the Family Code Of the Philippines, Alicia V. Sempio-Diy (1997), p. 344.
[10] The Family Code of the Philippines Annotated, Rufus B. Rodriguez (1990), p. 505.
[11] Sanitary Steam Laundry, Inc. v. Court of Appeals, 360 Phil. 199, 208 [1998].
[12] Cruz v. Court of Appeals, 346 Phil. 872, 886 [1997].
[13] Ford Philippines v. Citibank, G.R. No. 128604, January 29, 2001; Bank of the Philippine Islands v. Court of Appeals, 326
SCRA 641, 659 [2000]; Bataclan v. Medina, 102 Phil. 181, 186 [1957].
[14] Article 2217 of the Civil Code.
[15] Philtranco Service Enterprises, Inc. v. Court of Appeals, 340 Phil. 98, 111 [1997].
[16] Morales v. Court of Appeals, 340 Phil. 397, 422 [1997].
[17] Aguilar Sr. v. Commercial Savings Bank, G.R. No. 128705, June 29, 2001; Erezo v. Jepte, 102 Phil. 103, 107 [1957].
[18] CA-G.R. No. CV No. 56728.
[19] In Civil Case No. 4924.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-26953 March 28, 1969

ZENAIDA MEDINA, assisted by her husband, FELICIANO CASERO, petitioner-appellant,

vs.
DRA. VENANCIA L. MAKABALI, respondent-appellee.

Fausto D. Laquian for petitioner-appellant.

Maximino Q. Canlas for respondent-appellee.

REYES, J.B.L., J.:

Once more Courts are asked to arbitrate between rights and duties of parents and children, and between parent and
foster parent.

Appellant's claim for custody of a minor boy, Joseph Casero, was sought to be enforced by habeas
corpus proceedings in the Court of First Instance of Pampanga, in its Special Proceeding No. 1947. After hearing, the writ
was denied by the Court, and the case was appealed directly to this Supreme Court exclusively on points of law.

Uncontested facts found by the Court below are that on February 4, 1961, petitioner Zenaida Medina gave birth to a
baby boy named Joseph Casero in the Makabali Clinic in San Fernando, Pampanga, owned and operated by
respondent Dra. Venancia Makabali, single, who assisted at the delivery. The boy was Zenaida's third, had with a
married man, Feliciano Casero.

The mother left the child with Dra. Makabali from his birth. The latter took care and reared Joseph as her own son; had
him treated at her expense for poliomyelitis by Dra. Fe del Mundo, in Manila, until he recovered his health; and sent him
to school. From birth until August 1966, the real mother never visited her child, and never paid for his expenses.

The trial disclosed that petitioner Zenaida Medina lived with Feliciano Casero with her two other children apparently
with the tolerance, if not the acquiescence, of Caseros lawful wife who resides elsewhere, albeit the offspring of both
women are in good terms with each other; that Casero makes about P400.00 a month as a mechanic, and Zenaida
herself earns from 4 to 5 pesos a day.
 The Court, upon calling Joseph on the witness stand, observed that the boy is fairly intelligent as a witness. He
never knew his mother, Zenaida. He was calling the respondent his "Mammy". The Court informed him that his
real mother is Zenaida. He was asked with whom to stay with his real mother or the respondent. The boy
pointed to the respondent and said "Mammy!" The Court asked him, "Why do you choose to stay with your
"Mammy?" He answered, "She is the one rearing me." This confrontation was made in the presence of the two
women, Zenaida, the petitioner, and the respondent, Dra. Makabali, in open court. (C.F.I. Rollo, p. 39).

After extracting from Dra. Makabali a promise to allow the minor a free choice with whom to live when he reaches the
age of 14, the Court held that it was for the child's best interest to be left with his foster mother and denied the writ
prayed for. The real mother appealed, as already stated.

We see no reason to disturb the order appealed from. While our law recognizes the right of a parent to the custody of
her child, Courts must not lose sight of the basic principle that "in all questions on the care, custody, education and
property of children, the latter's welfare shall be paramount" (Civil Code of the Philippines, Art. 363), and that for
compelling reasons, even a child under seven may be ordered separated from the mother (Do.) This is as it should be, for
in the continual evolution of legal institutions, the patria potestas has been transformed from the jus vitae ac necis (right
of life and death) of the Roman law, under which the offspring was virtually a chattel of his parents, into a radically
different institution, due to the influence of Christian faith and doctrines. The obligational aspect is now supreme. As
pointed out by Puig Peña, now "there is no power, but a task; no complex of rights (of parents) but a sum of duties; no
sovereignty, but a sacred trust for the welfare of the minor." 1

As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of
parental duties to provide the children with adequate support, education, moral, intellectual and civic training and
development (Civil Code, Art. 356). As remarked by the Court below, petitioner Zenaida Medina proved remiss in these
sacred duties; she not only failed to provide the child with love and care but actually deserted him, with not even a visit,
in his tenderest years, when he needed his mother the most. It may well be doubted what advantage the child could
derive from being coerced to abandon respondent's care and love to be compelled to stay with his mother and witness
her irregular menage a trois with Casero and the latter's legitimate wife.lawphi1.ñet

It is hinted that respondent's motivation in refusing to surrender the boy is to coerce petitioner to pay for the rearing of
the child. This is not acceptable, for Dra. Makabali knew (at least at the trial) that any expectation on her part is illusory,
given Zenaida's meager resources, yet expressed willingness to care and educate him.

No abuse of discretion being shown, but on the contrary, the appealed order being justified in fact and law, we hold
that said order should be, and hereby is, affirmed. Costs against appellant.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ.,
concur.

Footnotes

1Puig Peña, Derecho Civil, Vol. 2, part II, p. 153

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-68374 June 18, 1985

HORACIO LUNA and LIBERTY HIZON-LUNA, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, HON ROQUE A. TAMAYO, as Presiding Judge of Regional Trial Court, NCR Branch CXXXI1
Makati, Metro Manila, MARIA LOURDES SANTOS, and SIXTO SALUMBIDES, respondents.
CONCEPCION, JR., J.:

Review on certiorari of the decision of the respondent appellate court in case CA-G. R. No. SP-01869, entitled: " Horacio
Luna, et al., petitioners, versus Hon. Roque A. Tamayo, etc., et al., respondents, " which affirmed an order denying a
motion to restrain the execution of a final judgment rendered in a habeas corpus case.

The records of the case show that the herein private respondent Maria Lourdes Santos is an illegitimate child of the
petitioner Horacio Luna who is married to his co-petitioner Liberty Hizon-Luna. Maria Lourdes Santos is married to her
correspondent Sixto Salumbides, and are the parents of Shirley Santos Salumbides, also known as Shirley Luna
Salumbides, who is the subject of this child custody case.

It appears that two or four months after the birth of the said Shirley Salumbides on April 7, 1975, her parents gave her to
the petitioners, a childless couple with considerable means, who thereafter showered her with love and affection and
brought her up as their very own. The couple doted upon Shirley who called them "Mama" and "Papa". She calls her
natural parents "Mommy" and "Daddy." When Shirley reached the age of four (4) years in 1979, she was enrolled at the
Maryknoll College in Quezon City, where she is now in Grade I I I.

A few months before September, 1980, her "Mama" and "Papa" decided to take Shirley abroad and show her Disneyland
and other places of interest in America. Shirley looked forward to this trip and was excited about it. However, when the
petitioners asked for the respondents' written consent to the child's application for a U.S. visa, the respondents refused to
give it, to the petitioners' surprise and chagrin Shirley was utterly disappointed. As a result, the petitioners had to leave
without Shirley whom they left with the private respondents, upon the latter's request. The petitioners, however, left
instructions with their chauffeur to take and fetch Shirley from Maryknoll College every school day.

When the petitioners returned on October 29, 1980, they learned that the respondents had transferred Shirley to the St.
Scholastica College. The private respondents also refused to return Shirley to them. Neither did the said respondents
allow Shirley to visit the petitioners. In view thereof, the petitioners filed a petition for habeas corpus with the Court of First
Instance of Rizal, Branch XV, against the private respondents to produce the person of Shirley and deliver her to their
care and custody. The case was docketed in court as Spec. Proc. No. 9417, and after the filing of an answer and due
hearing, a decision was rendered on March 9, 1981, declaring the petitioners entitled to the child's custody and forthwith
granted the writ prayed for.

The private respondents appealed to the then Court of Appeals where the case was docketed as CA-G.R. No. SP-12212,
and in a decision dated April 7, 1982, the appealed decision was reversed and set aside and another entered, ordering
the petitioners, among other things, to turn over Shirley to the private respondents. The herein petitioners filed a motion
for the reconsideration of the decision but their motion was denied.

Consequently, the petitioners filed a petition for review of the decision of the appellate court. The case was docketed
herein as G.R. No. 60860 and on November 10, 1982, this Court, in a minute resolution, denied the petition for lack of
merit.

Upon finality of the judgment, the case was remanded to the court of origin and assigned to Regional Trial Court, NCJR
Branch CXXXII Makati, Metro Manila, presided over by respondent Judge Roque A. Tamayo who, thereafter, issued an
order directing the issuance of a writ of execution to satisfy and enforce the resolution of the Supreme Court which
affirmed the decision of the Court of Appeals.

The execution of the judgment was vigorously opposed by the petitioners who filed a motion for the reconsideration of
the order and to set aside the writ of execution on the ground of supervening events and circumstances, more
particularly, the subsequent emotional, psychological, and physiological condition of the child Shirley which make the
enforcement of the judgment sought to be executed unduly prejudicial, unjust and unfair, and cause irreparable
damage to the welfare and interests of the child. By reason thereof, the respondent judge called a conference among
the parties and their counsels, and conducted hearings on the petitioners' motion for reconsideration and to set aside
the writ of execution. Shirley made manifest during the hearing that she would kill herself or run away from home if she
should ever be separated from her Mama and Papa, the petitioners herein, and forced to stay with the respondents. A
portion of her testimony is quoted hereunder:

ATTY. CASTRO:

xxx xxx xxx

 Q Would you want to have with your daddy and mommy, referring to Sixto
Salumbides and Maria Lourdes Salumbides

A No, sir.

Q Why not?

A Because they are cruel to me. They always spank me and they do not love me.
Whenever I am eating, they are not attending to me. It is up to me whether I like
the food or not.

xxx xxx xxx

Q Now, if you will be taken from your papa and mama (Luna spouses) and given to
your daddy and mommy (Salumbides spouses), what would you do if you will do
anything?

A I will either kill myself or I will escape. Even now they said they love me. I don't
believe them. I know they are not sincere. They are only saying that to me. And I
know those words were not coming from their hearts. If they will get me from my
papa and mama, they will be hurt because they know that my papa and mama
love me very much. 1

Dra. Cynthia Dulay Bruce, a child psychologist, affirmed her findings that —

... She (Shirley) has only grown more embittered, cautions, distrusting of her biological parents. She
threatens to kill herself or run away if given to her biological parents. She claims she would be very
unhappy with her biological parents since they do not understand her needs are selfish to her, and
don't know how to care for her. Presently, she is very difficult to encourage in seeing her biological
parents in a different light. 2

and that —

... I reviewed with them (Salumbides spouse) that at the present time, to get Shirley back in this
emotionally charged transaction, would hinder Shirley seeing them as truly loving and concerned
parents. She would more deeply distrust them if they uproot her from the home of the choice of Mr.
and Mrs. Luna. The biological parents wish to do what is also helpful to Shirley. I discussed with both
parties the recommendations of placement and follow up. 3

But, the respondent judge denied the petitioners' motion to set aside the writ of execution The petitioners filed a motion
for the reconsideration of the order and when it was denied, they filed a petition for certiorari and prohibition with
preliminary injunction and restraining order with the respondent Intermediate Appellate Court, which was docketed
therein as CA-G.R. No. SP-01869, to stop altogether the execution of the decision of the Court of Appeals rendered in
CA-G.R. No. SP-12212. The petition was duly heard, after which a decision was rendered on May 25, 1984, dismissing the
petition, Hence, the present recourse.

The issue is whether or not procedural rules more particularly the duty of lower courts to enforce a final decision of
appellate courts in child custody cases, should prevail over and above the desire and preference of the child, to stay
with her grandparents instead of her biological parents and who had signified her intention Up kill herself or run away
from home if she should be separated from her grandparents and forced to live with her biological parents.

It is a well-known doctrine that when a judgment of a higher court is returned to the lower court, the only function of the
latter court is the ministerial one of issuing the order of execution. The lower court cannot vary the mandate of the
superior court, or examine it, for any other purpose than execution; nor review it upon any matter decided on appeal or
error apparent; nor intermeddle with it further than to settle so much as has been demanded. However, it is also equally
well-known that a stay of execution of a final judgment may be authorized whenever it is necessary to accomplish the
ends of justice as when there had been a change in the situation of the parties which makes such execution inequitable;
or when it appears that the controversy had never been submitted to the judgment of the court; or when it appears that
the writ of execution has been improvidently issued; or that it is defective in substance; or is issued against the wrong
party; or that the judgement debt has been paid or otherwise satisfied; or when the writ has been issued without
authority.

In the instant case, the petitioners claim that the child's manifestation to the trial court that she would kill herself or run
away from home if she should be forced to live with the private respondents is a supervening event that would justify the
cancellation of the execution of the final decision rendered by the Court of Appeals in CA-G.R. No. SP-12212. The
respondents, upon the other hand, maintain that there are no supervening developments and circumstances since
these events are not new as the Court of Appeals had taken into account the physiological and emotional
consideration of the transfer of custody of Shirley when it reversed the decision of the trial court and gave to the private
respondents the custody of the child Shirley; and besides, the wishes and desires of the child is no hindrance to the
parents' right to her custody since the right of the parents to the custody of their children paramount.

We find merit in the petitioner. The manifestation of the child Shirley that she would kill herself or run away from home if
she should be taken away from the herein petitioners and forced to live with the private respondents, made during the
hearings on the petitioners' motion to set aside the writ of execution and reiterated in her letters to the members of the
Court dated September 19, 1984 4 and January 2, 1985, 5 and during the hearing of the case before this Court, is a
circumstance that would make the execution of the judgment rendered in Spec. Proc. No. 9417 of the Court of First
Instance of Rizal inequitable, unfair and unjust, if not illegal. Article 363 of the Civil Code provides that in all questions
relating to the care, custody, education and property of the children, the latter's welfare is paramount. This means that
the best interest of the minor can override procedural rules and even the rights of parents to the custody of their
children. Since, in this case, the very life and existence of the minor is at stake and the child is in an age when she can
exercise an intelligent choice, the courts can do no less than respect, enforce and give meaning and substance to that
choice and uphold her right to live in an atmosphere conducive to her physical, moral and intellectual
development. 6 The threat may be proven empty, but Shirley has a right to a wholesome family life that will provide her
with love, care and understanding, guidance and counseling. and moral and material security. 7 But what if the threat is
for real.?

Besides, in her letters to the members of the Court, Shirley depicted her biological parents as selfish and cruel and who
beat her often; and that they do not love her. And, as pointed out by the child psychologist, Shirley has grown more
embitered cautious and dismissing of her biological parents. To return her to the custody of the private respondents to
face the same emotional environment which she is now complaining of would be indeed traumatic and cause
irreparable damage to the child. As requested by her, let us not destroy her future.

WHEREFORE, the petition should be, as it is hereby GRANTED and the writ prayed for issued, setting aside the judgment of
the respondent Intermediate Appellate Court in CA-G.R. No. SP-01869, and restraining the respondent judge and/or his
successors from enforcing the judgment rendered by the Court of Appeals in CA-G.R. No. SP-12212. entitled: "Horacio
Luna and Liberty Hizon-Luna, petitioners-appellees, versus Maria Lourdes Santos and Sixto Salumbides, respondents-
appellants." The decision rendered in Spec. Proc. No. 9417 of the Court of First Instance of Rizal granting the herein
petitioners custody of the child Shirley Salumbides should be maintained. Without costs. SO ORDERED.

Abad Santos, Escolin and Cuevas, JJ., concur.

Separate Opinions

AQUINO, J., concurring:

A judgment for the custody of the child, like a judgment for support is not final and irrevocable. The welfare of the child is
the paramount consideration. It would be for Shirley's welfare to remain in the custody of the petitioners.

MAKASIAR, J., dissenting:

The resolution of the issue on who should have custody over the nine-year old girl has been viewed from a limited
approach. The majority opinion has been focused more on the personal assessment of the child rather than on the
general and specific laws and jurisprudence that should govern this case. A nine-year old child, brainwashed by the
material luxury as well as constant attention showered on her by doting grandparents, cannot possibly appreciate the
incomparable love and solicitude her natural parents have for her always, in good or bad times.

The determination, therefore, as to whose custody the child belongs must necessarily and initially involve the question of
parental authority. it appears that the law on parental authority has been conveniently side tracked by petitioners.

Parental authority, known in Roman law as patria potestas, is defined as "the mass of rights and obligations which
parents have in relation to the person and property of their children until their majority age or emancipation, and even
after this under certain circumstances" (2 Manresa 8, cited in p. 657, Comments & Jurisprudence on the Civil Code,
Tolentino, Vol. 1, 1983 ed.).

The following Civil Code provisions thus provide:

Art. 311. The father and mother jointly exercise parental authority over their legitimate children. who
are not emancipated, In case of disagreement, the father's decision shall prevail, unless there

xxx xxx xxx

Art, 313. Parental authority cannot be renounced or transfer- red, except in cases of guardianship or
adoption approved by 'the courts, or emancipation by concession (par. 1).

Significantly, the stern pronouncements of this Court in the case of Celis vs. Cafuir (L-3352, June 12, 1950, 86 Phil. 554) are
very much in point. This Court thus declared:

The word "entrusted" cannot convey the Idea of definite and permanent renounciation of the
mother's custody of her child.

xxx xxx xxx

This Court should avert the tragedy in the years to come of having deprived mother and son of the
beautiful associations and tender, imperishable memories engendered by the relationship of parent
and child. We should not take away from a mother the opportunity of bringing up her own child even
at the cost of extreme sacrifice due to poverty and lack of means: so that afterwards, she may be
able to look back with pride and a sense of satisfaction and her efforts, however humble, to make her
dreams of her little boy come true. We should not forget that the relationship between a foster mother
and a child is not natural but artificial. If the child turn out to be a failure or forgetful of what its foster
parents had done for him, said parents might yet count and appraise all that they have done and
spent for him and with regret consider all of it as a dead loss, and even rue the day they committed
the blunder of taking the child into their hearts and their home. Not so with a real natural mother who
never counts, the cost and her sacrifices, ever treasuring memories of her associations with her child,
however unpleasant and disappointing. Flesh and blood count.

xxx xxx xxx

Whether a child should stay permanently with a kindly stranger or with his own mother, is not to be
determined alone by considerations of affluence or poverty, Poor youths who had to work their way
thru school and college, have, not infrequently, scaled the heights of success, as easily and swiftly as
their more favored companions, and done so with more, inner satisfaction, and credit to themselves
and their humble parents.

The guardianship or custody which parents exercise over -heir children is well-entrenched in this jurisdiction. Thus, in the
case of Reyes vs. Alvarez (8 Phil. 725), this Court declared:

The guardianship which parents exercise over their children by the virtue of the paternal authority
granted them by law has for its purpose their physical development, the cultivation of their
intelligence, and the development of their intellectual and sensitive faculties. For such purposes they
are entitled to control their children and to keep them in their company in order to properly comply
 with their paternal obligations, but it is also their duty to furnish them with a dwelling or a place where
they may live together.

This Court has long recognized that "the right attached to parental authority is a purely personal one, and it is
extinguished upon the death of the parent exercising it" (Abiera vs. Orin, 8 Phil. 193),

Custody embraces the sum of parental rights with respect to the rearing of a child, including his care. It includes the right
to the child's services and earnings, and the right to direct his activities and make decisions regarding his care and
control, education, health, and religion (p. 107, 59 Am. Jur. 2d.).

The right of the parents to the custody of their minor children is one of the natural rights incident to parenthood a right
supported by law and sound public policy. The right is an inherent one, which is not created by the state or by the
decision is of the courts, but derives from the nature of parental relationship. Since the rights of parents to the custody of
their minor children is both a natural and a legal right, the law could not disturb the parent-child relationship except for
the strongest reasons, and only upon a clear showing of a parent's gross misconduct or unfitness, or of other
extraordinary circumstances affecting the welfare of the child (pp. 107 & 108, 59 Am. Jur. 2d.)

Article 363 orders that 'No mother shall be separated from her child under seven years of age, unless
the court finds compelling reasons for such measure.' One of the cruelest acts in the world is to
separate a mother from her baby. This was often done in case of adultery by the mother, and the
court ordered that the custody of the child should be given to the father, but the new article provides
otherwise because the mother's maternal love-than which there is nothing greater in this life-should be
respected. Besides, she could not exert a bad influence on a baby. And lastly, perhaps the presence
of her child will often redeem her (p. 199, The Father of the First Brown Race Civil Code, Rivera, 1978
Ed.).

As long as the parents are living and they have not lost their parental authority, patria potestas is limited to them. Other
ascendants have no authority over the children, even if the parents of the latter are minors (2 Manresa 13, cited in p.
661, Comments and Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983 Ed.).

Parental authority is inalienable and every abdication of this authority by the parents is void Planiol and Ripert 324, p.
664, Ibid.).

Whatever agreement or arrangement there was between petitioners and respondents when the child Shirley was given
to the former, the same has not been validated nor legalized by the mere fact that the said girl had stayed with the
petitioners for a number of years, in view of the explicit provision of Article 313 mandating that parental authority cannot
be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by
concession.

Thus, the mother in case of separation, cannot by agreement vest the custody of a child in the maternal grandmother
as against the father (Mason vs. Williams, 165 Ky 331, 176 S.W. 1171, cited in p. 662, Comments and Jurisprudence on the
Civil Code, Tolentino, Vol. 1, 1983 Ed.).

Some United States courts have consistently ruled that since children cannot be bought and sold, and since the parent is
subject to obligations which he cannot throw off by any act of his own, agreements by which the parents, or one of
them, transfer custody of a child to a third person, with the provision or informal understanding that custody will not be
reclaimed, are not generally considered legally binding contracts, unless they amount to statutory indentures of
apprenticeship, or are supported by other express statutory provisions. This is especially true in the case of a parent who,
having been compelled by poverty or unfavorable circumstances to surrender the custody of his child, wishes to reclaim
it when circumstances are improved (p. 117, 59 Am. Jur. 2d.)

For this Court to award custody over Shirley to petitioners primarily on the basis of her reaction and choice would run
counter to existing law and jurisprudence as already aforestated.

A nine-year old girl, although already at the age of discernment, is not capable of knowing or defining varied feelings
like love, anger or cruelty when such a girl has been exposed to two contrasting conditions, the first for more than eight
years and he second, for barely four months. The child grew up amidst affluent surroundings the grandparents being
well-off. The lolo and lola, as most lolos and lolas are, doted over Shirley. In fact, she attended Maryknoll College, a
school for the elite and rode in a chauffeur-driven car. She grew up amidst a luxurious atmosphere. Perhaps, in their own
way of loving their granddaughter, they showered her with all material needs and pampered her. Thus, the child had not
been made to experience disappointments, much less hardships. Life with her lolo and lola meant having what she
wanted. In the process, Shirley moved about in a limited world, created by her Mama (Lola) and Papa (Lolo) world felt
and seen through rose-colored lenses. The child addresses her natural parents as "Daddy" and "Mommy".

Then all of a sudden, the scenario is changed and the girl finds herself in a very contrasting situation, Having been used
to the life style offered by her grandparents and having thus absorbed a set of values different from the average and
ordinary, she now finds life with her natural parents harsh and unbearable. With the luxurious life she had with petitioners
at the back of her mind, she would naturally look at things in the respondent's home differently and partially.

Four months is too insufficient a time for a nine-year old girl to comprehend and accept a home atmosphere striking
distinct from one where she had lived for more than eight years. Four months is a very short time for the child to be able
to understand, to absorb and to appreciate two vastly different home conditions. Whatever set of values the second
home has to offer, the same cannot settle in a child for only four months' exposure. To Shirley, therefore, any attempted
discipline imposed her natural parents means cruelty and lack of affection for her. Where before she could choose the
food she wanted, now she has to take whatever food is available within the limited means of her parents. She cannot
realize that in a middle-class family, the choice of food is restricted by the amount appropriated therefor. The gauge is
what and how much food could benefit all the members of the household and not just one member. Choice for
particular needs becomes secondary to what the family budget can afford for the entire family. This explains why Shirley
had a dislike for the conditions existing in respondents' house which did not cater to her tastes.

In her answers to the questions which are quite leading, one can clearly sense that Shirley, who was used to having all
the lavish care and attention from petitioners, reacted negatively to her natural parents whose ways are so different
from the former. It would take some more time and exposure for Shirley to be able to really say that respondents do not
love and care for her. She would have been given more time in respondent's home to allow whatever values such place
can offer to settle in her mind. It was unfair for petitioners to push Shirley into a choice — a decision which a nine-year
old girl could not have made intelligently without undue pressure and played-up emotionalism.

It must be noted with concern that Article 312 of the Civil Code clearly defines the specific and limited role of
grandparents when it states that "grandparents shall be consulted by all members of the family on all important family
questions." This has been interpreted to mean that as long as the parents are living, grandparents and other ascendants
have no authority over the children, even when the parents are minors. Grandparents, therefore, cannot question the
form of instruction or education chosen by the parents for the children. The grandparents can only advise and counsel
the children. But if the parents are dead or are absent, then the grandparents shall exercise parental authority over the
children (Article 354, p. 663, Comments and Jurisprudence on the Civil Code, Tolentino, 1983 Ed.).

Evidently, the present petition for custody of petitioners runs counter to the parental preference rule. Under the so-called
parental preference rule, a natural parent, father or mother, as the case may be, who is of good character and a
proper person to have the custody of the child and is reasonably able to provide for such child, ordinarily is entitled to
the custody as against all persons. Accordingly, such parents are entitled to the custody of their children as against foster
or prospective adoptive parents: and such entitlement applies also as against other, relatives of the child, including
grandparents, or as against an agency or institution (pp. 207 & 208, Vol. 67A C.J.S.).

It has been an established rule that the preference of a child is only one factor to be considered, and it is not controlling,
decisive, or determinative. Thus, notwithstanding the preference, the court has a discretion to determine the question of
custody, and it is not error for the court to refuse to discuss the custody issue with the child, The rights of a parent will not
be disregarded in order to gratify the mere wishes of a child where a parent is found to be a proper person to be
entrusted with the custody of a child (pp. 231-232, Vol. 67A C.J.S.).

In view of the foregoing, and considering that herein respondents have not been shown to be unfit or unsuitable or
financially incapable of keeping and caring for Shirley, the latter's custody should be awarded to said respondents.

Separate Opinions

AQUINO, J., concurring:

A judgment for the custody of the child, like a judgment for support is not final and irrevocable. The welfare of the child is
the paramount consideration. It would be for Shirley's welfare to remain in the custody of the petitioners.
MAKASIAR, J., dissenting:

The resolution of the issue on who should have custody over the nine-year old girl has been viewed from a limited
approach. The majority opinion has been focused more on the personal assessment of the child rather than on the
general and specific laws and jurisprudence that should govern this case. A nine-year old child, brainwashed by the
material luxury as well as constant attention showered on her by doting grandparents, cannot possibly appreciate the
incomparable love and solicitude her natural parents have for her always, in good or bad times.

The determination, therefore, as to whose custody the child belongs must necessarily and initially involve the question of
parental authority. it appears that the law on parental authority has been conveniently side tracked by petitioners.

Parental authority, known in Roman law as patria potestas, is defined as "the mass of rights and obligations which
parents have in relation to the person and property of their children until their majority age or emancipation, and even
after this under certain circumstances" (2 Manresa 8, cited in p. 657, Comments & Jurisprudence on the Civil Code,
Tolentino, Vol. 1, 1983 ed.).

The following Civil Code provisions thus provide:

Art. 311. The father and mother jointly exercise parental authority over their legitimate children. who
are not emancipated, In case of disagreement, the father's decision shall prevail, unless there

xxx xxx xxx

Art, 313. Parental authority cannot be renounced or transfer- red, except in cases of guardianship or
adoption approved by 'the courts, or emancipation by concession (par. 1).

Significantly, the stern pronouncements of this Court in the case of Celis vs. Cafuir (L-3352, June 12, 1950, 86 Phil. 554) are
very much in point. This Court thus declared:

The word "entrusted" cannot convey the Idea of definite and permanent renounciation of the
mother's custody of her child.

xxx xxx xxx

This Court should avert the tragedy in the years to come of having deprived mother and son of the
beautiful associations and tender, imperishable memories engendered by the relationship of parent
and child. We should not take away from a mother the opportunity of bringing up her own child even
at the cost of extreme sacrifice due to poverty and lack of means: so that afterwards, she may be
able to look back with pride and a sense of satisfaction and her efforts, however humble, to make her
dreams of her little boy come true. We should not forget that the relationship between a foster mother
and a child is not natural but artificial. If the child turn out to be a failure or forgetful of what its foster
parents had done for him, said parents might yet count and appraise all that they have done and
spent for him and with regret consider all of it as a dead loss, and even rue the day they committed
the blunder of taking the child into their hearts and their home. Not so with a real natural mother who
never counts, the cost and her sacrifices, ever treasuring memories of her associations with her child,
however unpleasant and disappointing. Flesh and blood count.

xxx xxx xxx

Whether a child should stay permanently with a kindly stranger or with his own mother, is not to be
determined alone by considerations of affluence or poverty, Poor youths who had to work their way
thru school and college, have, not infrequently, scaled the heights of success, as easily and swiftly as
their more favored companions, and done so with more, inner satisfaction, and credit to themselves
and their humble parents.

The guardianship or custody which parents exercise over -heir children is well-entrenched in this jurisdiction. Thus, in the
case of Reyes vs. Alvarez (8 Phil. 725), this Court declared:
 The guardianship which parents exercise over their children by the virtue of the paternal authority
granted them by law has for its purpose their physical development, the cultivation of their
intelligence, and the development of their intellectual and sensitive faculties. For such purposes they
are entitled to control their children and to keep them in their company in order to properly comply
with their paternal obligations, but it is also their duty to furnish them with a dwelling or a place where
they may live together.

This Court has long recognized that "the right attached to parental authority is a purely personal one, and it is
extinguished upon the death of the parent exercising it" (Abiera vs. Orin, 8 Phil. 193),

Custody embraces the sum of parental rights with respect to the rearing of a child, including his care. It includes the right
to the child's services and earnings, and the right to direct his activities and make decisions regarding his care and
control, education, health, and religion (p. 107, 59 Am. Jur. 2d.).

The right of the parents to the custody of their minor children is one of the natural rights incident to parenthood a right
supported by law and sound public policy. The right is an inherent one, which is not created by the state or by the
decision is of the courts, but derives from the nature of parental relationship. Since the rights of parents to the custody of
their minor children is both a natural and a legal right, the law could not disturb the parent-child relationship except for
the strongest reasons, and only upon a clear showing of a parent's gross misconduct or unfitness, or of other
extraordinary circumstances affecting the welfare of the child (pp. 107 & 108, 59 Am. Jur. 2d.)

Article 363 orders that 'No mother shall be separated from her child under seven years of age, unless
the court finds compelling reasons for such measure.' One of the cruelest acts in the world is to
separate a mother from her baby. This was often done in case of adultery by the mother, and the
court ordered that the custody of the child should be given to the father, but the new article provides
otherwise because the mother's maternal love-than which there is nothing greater in this life-should be
respected. Besides, she could not exert a bad influence on a baby. And lastly, perhaps the presence
of her child will often redeem her (p. 199, The Father of the First Brown Race Civil Code, Rivera, 1978
Ed.).

As long as the parents are living and they have not lost their parental authority, patria potestas is limited to them. Other
ascendants have no authority over the children, even if the parents of the latter are minors (2 Manresa 13, cited in p.
661, Comments and Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983 Ed.).

Parental authority is inalienable and every abdication of this authority by the parents is void Planiol and Ripert 324, p.
664, Ibid.).

Whatever agreement or arrangement there was between petitioners and respondents when the child Shirley was given
to the former, the same has not been validated nor legalized by the mere fact that the said girl had stayed with the
petitioners for a number of years, in view of the explicit provision of Article 313 mandating that parental authority cannot
be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by
concession.

Thus, the mother in case of separation, cannot by agreement vest the custody of a child in the maternal grandmother
as against the father (Mason vs. Williams, 165 Ky 331, 176 S.W. 1171, cited in p. 662, Comments and Jurisprudence on the
Civil Code, Tolentino, Vol. 1, 1983 Ed.).

Some United States courts have consistently ruled that since children cannot be bought and sold, and since the parent is
subject to obligations which he cannot throw off by any act of his own, agreements by which the parents, or one of
them, transfer custody of a child to a third person, with the provision or informal understanding that custody will not be
reclaimed, are not generally considered legally binding contracts, unless they amount to statutory indentures of
apprenticeship, or are supported by other express statutory provisions. This is especially true in the case of a parent who,
having been compelled by poverty or unfavorable circumstances to surrender the custody of his child, wishes to reclaim
it when circumstances are improved (p. 117, 59 Am. Jur. 2d.)

For this Court to award custody over Shirley to petitioners primarily on the basis of her reaction and choice would run
counter to existing law and jurisprudence as already aforestated.

A nine-year old girl, although already at the age of discernment, is not capable of knowing or defining varied feelings
like love, anger or cruelty when such a girl has been exposed to two contrasting conditions, the first for more than eight
years and he second, for barely four months. The child grew up amidst affluent surroundings the grandparents being
well-off. The lolo and lola, as most lolos and lolas are, doted over Shirley. In fact, she attended Maryknoll College, a
school for the elite and rode in a chauffeur-driven car. She grew up amidst a luxurious atmosphere. Perhaps, in their own
way of loving their granddaughter, they showered her with all material needs and pampered her. Thus, the child had not
been made to experience disappointments, much less hardships. Life with her lolo and lola meant having what she
wanted. In the process, Shirley moved about in a limited world, created by her Mama (Lola) and Papa (Lolo) world felt
and seen through rose-colored lenses. The child addresses her natural parents as "Daddy" and "Mommy".

Then all of a sudden, the scenario is changed and the girl finds herself in a very contrasting situation, Having been used
to the life style offered by her grandparents and having thus absorbed a set of values different from the average and
ordinary, she now finds life with her natural parents harsh and unbearable. With the luxurious life she had with petitioners
at the back of her mind, she would naturally look at things in the respondent's home differently and partially.

Four months is too insufficient a time for a nine-year old girl to comprehend and accept a home atmosphere striking
distinct from one where she had lived for more than eight years. Four months is a very short time for the child to be able
to understand, to absorb and to appreciate two vastly different home conditions. Whatever set of values the second
home has to offer, the same cannot settle in a child for only four months' exposure. To Shirley, therefore, any attempted
discipline imposed her natural parents means cruelty and lack of affection for her. Where before she could choose the
food she wanted, now she has to take whatever food is available within the limited means of her parents. She cannot
realize that in a middle-class family, the choice of food is restricted by the amount appropriated therefor. The gauge is
what and how much food could benefit all the members of the household and not just one member. Choice for
particular needs becomes secondary to what the family budget can afford for the entire family. This explains why Shirley
had a dislike for the conditions existing in respondents' house which did not cater to her tastes.

In her answers to the questions which are quite leading, one can clearly sense that Shirley, who was used to having all
the lavish care and attention from petitioners, reacted negatively to her natural parents whose ways are so different
from the former. It would take some more time and exposure for Shirley to be able to really say that respondents do not
love and care for her. She would have been given more time in respondent's home to allow whatever values such place
can offer to settle in her mind. It was unfair for petitioners to push Shirley into a choice — a decision which a nine-year
old girl could not have made intelligently without undue pressure and played-up emotionalism.

It must be noted with concern that Article 312 of the Civil Code clearly defines the specific and limited role of
grandparents when it states that "grandparents shall be consulted by all members of the family on all important family
questions." This has been interpreted to mean that as long as the parents are living, grandparents and other ascendants
have no authority over the children, even when the parents are minors. Grandparents, therefore, cannot question the
form of instruction or education chosen by the parents for the children. The grandparents can only advise and counsel
the children. But if the parents are dead or are absent, then the grandparents shall exercise parental authority over the
children (Article 354, p. 663, Comments and Jurisprudence on the Civil Code, Tolentino, 1983 Ed.).

Evidently, the present petition for custody of petitioners runs counter to the parental preference rule. Under the so-called
parental preference rule, a natural parent, father or mother, as the case may be, who is of good character and a
proper person to have the custody of the child and is reasonably able to provide for such child, ordinarily is entitled to
the custody as against all persons. Accordingly, such parents are entitled to the custody of their children as against foster
or prospective adoptive parents: and such entitlement applies also as against other, relatives of the child, including
grandparents, or as against an agency or institution (pp. 207 & 208, Vol. 67A C.J.S.).

It has been an established rule that the preference of a child is only one factor to be considered, and it is not controlling,
decisive, or determinative. Thus, notwithstanding the preference, the court has a discretion to determine the question of
custody, and it is not error for the court to refuse to discuss the custody issue with the child, The rights of a parent will not
be disregarded in order to gratify the mere wishes of a child where a parent is found to be a proper person to be
entrusted with the custody of a child (pp. 231-232, Vol. 67A C.J.S.).

In view of the foregoing, and considering that herein respondents have not been shown to be unfit or unsuitable or
financially incapable of keeping and caring for Shirley, the latter's custody should be awarded to said respondents.

Footnotes

1 Rollo, p. 20.

2 Id., p. 19.

3 Id., p. 20.
 4 Id p. 54.

5 Id., p. 75.

6 Art. 356 (4), Civil Code.

7 Art. 3(2), Child and Youth Wlfare Code (PD 603).

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 95305 August 20, 1992

ELENA, OSCAR, CELIA, TERESITA and VIRGILIO, all surnamed LINDAIN, petitioners,
vs.
THE HON. COURT OF APPEALS, SPOUSES APOLINIA VALIENTE and FEDERICO ILA, respondents.

Maria Rosario B. Ragasa and Oscar L. Lindain for petitioners.

Jose C. Felimon for private respondents.

GRIÑO-AQUINO, J.:

This is a petition for review on certiorari of the decision dated August 8, 1990 of the Court of Appeals which dismissed the
complaint for annulment of a sale of registered land, thereby reversing the decision of the Regional Trial Court of San
Jose City.

The facts of the case in a nutshell are as follows:

When the plaintiffs were still minors, they were already the registered owners of a parcel of land
covered by Transfer Certificate of Title No. NT-63540 (Exh. D-1). On November 7, 1966, their mother,
Dolores Luluquisin, then already a widow and acting as guardian of her minor children, sold the land
for P2,000 under a Deed of Absolute Sale of Registered Land (Exh. 2) to the defendants spouses
Apolonia Valiente and Federico Ila. The Deed of Absolute Sale was registered in the office of the
Register of Deeds for the Province of Nueva Ecija. TCT No. NT-66311 was issued to the vendees,
Apolonia Valiente and Federico Ila.

The defendants admitted that the property in question was sold to them by the mother of the minors
as evidenced by a Deed of Sale (Exh. B for the plaintiffs and Exh. 2 for the defendants) and although
at first they were reluctant to buy the property as the sale would not be legal, the registered owners
thereof being all minors, upon advice of their counsel, the late Atty. Arturo B. Pascual, and the counsel
of Dolores Luluquisin, Atty. Eustaquio Ramos, who notarized the documents, that the property could
be sold without the written authority of the court, considering that its value was less than P2,000, they
bought the property and had it registered in their names under Certificate of Title No. 66311 (Exhibit C
for the plaintiffs).

Plaintiffs contend, however, that the sale of the lot by their mother to the defendants is null and void
because it was made without judicial authority and/or court approval.
 The defendants, on the other hand, contend that the sale was valid, as the value of the property was
less than P2,000, and, considering the ages of plaintiffs now, the youngest being 31 years old at the
time of the filing of the complaint, their right to rescind the contract which should have been
exercised four (4) years after reaching the age of majority, has already prescribed.

On May 25, 1989, the Regional Trial Court of San Jose City rendered a decision for the plaintiffs (now petitioners), the
dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered ordering the following:

(1) Declaring the Deed of Sale executed by the guardian Dolores Luluquisin in favor of the defendants
spouses Apolonia Valiente and Federico Ila over the property of the minors covered by the TCT No.
NT-66311 to be null and void;

(2) Ordering defendants Spouses Apolonia Valiente and Federico Ila to surrender to the Register of
Deeds of San Jose City Transfer Certificate of Title No. 66311;

(3) Ordering the Register of Deeds of San Jose City to cancel Transfer Certificate of Title No. 66311 in
the names of Spouses Apolonia Valiente and Federico Ila;

(4) Ordering the Register of Deeds to issue a new Transfer Certificate of Title in lieu of what was
ordered cancelled in the names of plaintiffs, namely: Elena, Oscar, Celia, Teresita and Virgilio, all
surnamed Lindain;

(5) Ordering the defendants to vacate the lot covered by TCT No. NT-66311 and deliver the possession
of the same to the plaintiffs subject however to the rights of the defendants as buyers, possessors and
builders in good faith;

(6) Without cost. (pp. 41,42, Rollo.)

Upon appeal to the Court of Appeals, the decision was reversed and another one was entered dismissing the complaint
without pronouncement as to costs. The Court of Appeals applied the ruling of this Court in Ortañez vs. Dela Cruz, O.G.,
Vol. 60, No. 24, pp. 3434, 3438-3439, that:

A father or mother acting as legal administrator of the property of the child under parental
authority cannot, therefore, dispose of the child's property without judicial authority if it is worth more
than P2,000.00, notwithstanding the bond that he has filed for the protection of the child's
property. But when the value of such property is less than P2,000.00, the permission of the court for its
alienation or disposition may be dispensed with. The father or mother, as the case may be, is allowed
by law to alienate or dispose of the same freely, subject only to the restrictions imposed by the
scruples of conscience. (p. 64, Rollo.)

It upheld the sale and dismissed the complaint of the heirs who thereupon filed this petition for review alleging that the
Court of Appeals erred in reversing the decision of the Regional Trial Court and in ordering the dismissal of the petitioners'
complaint in total disregard of the findings of facts of the trial court and contrary to the provisions of law on contracts
and guardianship.

The principal issue before us is whether judicial approval was necessary for the sale of the minors' property by their
mother.

We find merit in the petition for review.

Art. 320 of the New Civil Code, which was already in force when the assailed transaction occurred, provides:

Art. 320.— The father, or in his absence the mother, is the legal administrator of the property pertaining
to the child under parental authority. If the property is worth more than two thousand pesos, the
father or mother shall give a bond subject to the approval of the Court of First Instance.
Under the law, a parent, acting merely as the legal (as distinguished from judicial) administrator of the property of his/her
minor children, does not have the power to dispose of, or alienate, the property of said children without judicial
approval. The powers and duties of the widow as legal administrator of her minor children's property as provided in Rule
84 by the Rules of Court entitled, "General Powers and Duties of Executors and Administrators" are only powers of
possession and management. Her power to sell, mortgage, encumber or otherwise dispose of the property of her minor
children must proceed from the court, as provided in Rule 89 which requires court authority and approval.

In the case of Visaya, et al. vs. Suguitan, et al., G.R. No. L-8300, November 18, 1955, we held that:

It is true that under Art. 320 of the new Civil Code the mother, Juana Visaya, was the legal
administrator of the property of her minor children. But as such legal administrator she had no power
to compromise their claims, for compromise has always been deemed equivalent to an alienation
(transigere est alienare), and is an act of strict ownership that goes beyond mere administration.
Hence, Art. 2032 of the new Civil Code provides:

The Court's approval is necessary in compromises entered into by

guardians, parents, absentee's representatives and administrators or executors of
decedent's estates. (Emphasis supplied.)

This restriction on the power of parents to compromise claims affecting their children is in contrast to
the terms of Art. 1810 of the old Civil Code that empowered parents to enter into such compromises,
without requiring court approval unless the amount involved was in excess of 2000 pesetas. At
present, the Court['s] approval is indispensable regardless of the amount involved. (Emphasis ours.)

In the recent case of Badillo vs. Ferrer, 152 SCRA 407, 409, this Court stated.

Surviving widow has no authority or has acted beyond her powers in conveying to the vendees the
undivided share of her minor children in the property, as her powers as the natural guardian covers
only matters of administration and cannot include the power of disposition, and she should have first
secured court approval before alienation of the property.

The above ruling was a reiteration of Inton vs. Quintana, 81 Phil. 97.

The private respondents' allegation that they are purchasers in good faith is not credible for they knew from the very
beginning that their vendor, the petitioners' mother, without court approval could not validly convey to them the
property of her minor children. Knowing her lack of judicial authority to enter into the transaction, the private
respondents acted in bad faith when they went ahead and bought the land from her anyway.

One who acquires or purchases real property with knowledge of a defect in the title of his vendor cannot claim that he
acquired title thereto in good faith as against the owner of the property or for an interest therein (Gatioan vs. Gaffud, 27
SCRA 706).

The minors' action for reconveyance has not yet prescribed for "real actions over immovables prescribe after thirty years"
(Art. 1141, Civil Code). Since the sale took place in 1966, the action to recover the property had not yet prescribed when
the petitioners sued in 1987.

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is set aside and that of the Regional Trial
Court of San Jose City dated May 25, 1989, being correct, is hereby REINSTATED. Costs against the private respondents.

SO ORDERED.

Cruz, Medialdea and Bellosillo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. L-23253 March 28, 1969

IN THE MATTER OF THE PETITION FOR BETTY CHUA SY ALIAS "GRACE CABANGBANG" FOR THE ISSUANCE OF A WRIT OF
HABEAS CORPUS. PACITA CHUA, petitioner-appellant,
vs.
MR. & MRS. BARTOLOME CABANGBANG ET AL., respondents-appellees.

Francisco R. Sotto and Associates for petitioner-appellant.

Teofilo F. Manalo for respondents-appellees Mr. & Mrs. Cabangbang.
Enrico R. Castro for respondent-appellee Victor T. Villareal.

CASTRO, J.:

This is an appeal direct to this Court from the decision of May 21, 1964 of the Court of First Instance of Rizal dismissing
Pacita Chua's petition for habeas corpus directed against Bartolome Cabangbang and his wife Flora Cabangbang.

Pacita Chua, when still in the prime of youth, supported herself by working in nightclubs as a hostess. And sexual liaison
she had with man after man without benefit of marriage. She first lived with a certain Chua Ben in 1950 by whom she
had a child who died in infancy. She afterwards cohabited with Sy Sia Lay by whom she had two children named Robert
and Betty Chua Sy. The latter child was born on December 15, 1957. Shortly after the birth of Betty, Pacita Chua and Sy
Sia Lay separated. Finding no one to fall back on after their separation, Pacita Chua lingered in and around nightclubs
and gambling joints, until she met Victor Tan Villareal. In due time she became the latter's mistress. In 1960 another child,
a girl, was born to her. In 1961 when this last child was still an infant, she and Villareal separated. Without means to
support the said child, Pacita Chua gave her away to a comadre in Cebu.

Sometime in May 1958 Bartolome Cabangbang and his wife, a childless couple, acquired the custody of the child Betty
who was then barely four months old. They have since brought her up as their own. They had her christened as Grace
Cabangbang on September 12, 1958. 1

There is some testimonial conflict on how the Cabangbang spouses acquired custody of the girl Betty (or Grace),
Pacita Chua avers that in October 1958, while she and Villareal were still living together, the latter surreptitiously took the
child away and gave her to the Cabangbangs, allegedly in recompense for favors received. She supposedly came to
know of the whereabouts of her daughter, only in 1960 when the girl, who was then about three years old, was brought
to her by Villareal, who shortly thereafter returned the child to the Cabangbangs allegedly thru threats intimidation,
fraud and deceit. The Cabangbang spouses assert in rebuttal that Mrs. Cabangbang found the child, wrapped in a
bundle, at the gate of their residence; that she reared her as her own and grew very fond of her; and that nobody ever
molested them until the child was 5-½ years of age.lâwphi1.ñet

At all events, it is the lower court's finding that the child was given to the Cabangbang spouses by Villareal with the
knowledge and consent of Pacita Chua.

By letter dated June 6, 1963 addressed to the Cabangbang spouses, with copy furnished to Villareal, Pacita Chua thru
counsel demanded the surrender to her of the custody of the child. Failing to secure such custody, Pacita Chua
(hereinafter referred to as the petitioner) filed on June 14, 1963 a petition for habeas corpus with the Court of First
Instance of Rizal, praying that the court grant her custody of and recognize her parental authority over the girl. Named
respondents in the petition were Villareal and the spouses Cabangbang.

On June 15, 1963 a writ was issued commanding the provincial sheriff of Rizal or any of his deputies to produce the
body of Betty Chua Sy or Grace Cabangbang before the court a quo on June 17, 1963, at 8:30 a.m. However, for
reasons not stated in the record, the child was not produced before the lower court as ordered.

On June 21, 1963 Villareal filed his answer to the petition. The Cabangbangs filed their answer the next day.

After due trial, the lower court on May 21, 1964 promulgated its decision, the dispositive portion of which reads as
follows:
 IN VIEW OF THE FOREGOING, the Court has come to the conclusion that it will be for the welfare of the child
Betty Chua Sy also known as Grace Cabangbang to be under the custody of respondents Mr. and Mrs.
Bartolome Cabangbang. Petition dismissed. No pronouncement as to costs.

In this appeal now before us, the petitioner tenders for resolution two issues of law which, by her own formulation, read
as follows: "The lower court erred when it awarded the custody of petitioner's daughter Betty Chua Sy or Grace
Cabangbang, who is less than seven (7) years old, in favor of respondents Mr. and Mrs. Bartolome Cabangbang, and [2]
illegally deprived petitioner of parental authority over her daughter."

We resolve both issues against the petitioner.

I.

Stated succinctly, the petitioner's thesis is that pursuant to the mandate contained in article 363 of the Civil Code she
cannot be separated from her child who was less, seven years of age, and that she cannot be deprived of her parental
authority over the child because not one of the grounds for the termination, loss, suspension or deprivation of parental
authority provided in article 332 of the same Code obtains in this case.

Whether the petitioner can be legally separated from her child, Betty Chua Sy or Grace Cabangbang, is an issue that is
now moot and academic. Having been born on December 15, 1957, the child is now 11 years of age. Consequently, the
second paragraph of art. 363 of the Civil Code, which prohibits the separation of a child under seven years of age from
her mother, "unless the court finds compelling reasons for such measure," has no immediate relevance. The petitioner
correctly argues, however, that the reasons relied upon by the lower court — i.e., "petitioner is not exactly an upright
woman" and "it will be for the welfare of the child" — are not strictly speaking, proper grounds in law to deprive a mother
of her inherent right to parental authority over her child. It must be conceded that minor children — be they legitimate,
recognized natural, adopted, natural by legal fiction or illegitimate, other than natural as specified in art. 269 of the Civil
Code — are by law under the parental authority of both the father and the mother, or either the father or the mother, as
the case may be. But we take the view that on the basis of the aforecited seemingly unpersuasive factual premises, the
petitioner can be deprived of her parental authority. For while in one breath art. 313 of the Civil Code lays down the rule
that "Parental authority cannot be renounced or transferred, except in cases of guardianship or adoption approved by
the courts, or emancipation by concession," it indicates in the next that "The courts may, in cases specified by law
deprive parents of their [parental] authority." And there are indeed valid reasons, as will presently be expounded, for
depriving the petitioner of parental authority over the minor Betty Chua Sy or Grace Cabangbang.

It is the lower court's finding that the child was given to the Cabangbangs by Villareal with the knowledge and consent
of the petitioner. In support of this finding, it cited the facts that the petitioner did not at all — not ever — report to the
authorities the alleged disappearance of her daughter, and had not taken any step to see the child when she allegedly
discovered that she was in the custody of the Cabangbangs. It discounted the petitioner's claim that she did not make
any move to recover the child because the Cabangbangs are powerful and influential. The petitioner is bound by the
foregoing findings of fact. Having taken her appeal directly to this Court, she is deemed to have waived the right to
dispute any finding of fact made by the trial court. 2

Art. 332 of the Civil Code provides, inter alia:

The courts may deprive the parents of their authority or suspend the exercise of the same if they should treat
their children with excessive harshness or should give them corrupting orders, counsels, or examples, or should
make them beg or abandon them. (emphasis supplied)

Abandonment is therefore one of the grounds for depriving parents of parental authority over their children.

Was the petitioner's acquiescence to the giving by Villareal of her child to the Cabangbangs tantamount to
abandonment of the child? To our mind, mere acquiescence — without more — is not sufficient to constitute
abandonment. But the record yields a host of circumstances which, in their totality, unmistakably betray the petitioner's
settled purpose and intention to completely forego all parental response possibilities and forever relinquish all parental
claim in respect to the child.

She surrendered the custody of her child to the Cabangbangs in 1958. She waited until 1963, or after the lapse of a
period of five long years, before she brought action to recover custody. Her claim that she did not take any step to
recover her child because the Cabangbangs were powerful and influential, does not deserve any modicum of
credence. A mother who really loves her child would go to any extent to be reunited with her. The natural and normal
reaction of the petitioner — once informed, as she alleged, and her child was in the custody of the Cabangbangs —
should have been to move heaven and earth, to use a worn-out but still respectable cliche, in order to recover her. Yet
she lifted not a finger.

It is a matter of record — being the gist of her own unadulterated testimony under oath — that she wants the child
back so that Sy Sia Lay, the alleged father, would resume providing the petitioner the support which he peremptorily
withheld and ceased to give when she gave the child away. A woman scorned, she desires to recover the child as a
means of embarrassing Villareal who retrieved the jeep he gave her and altogether stopped living with and supporting
her. But the record likewise reveals that at the pre-trial conducted by the court a quo, she expressed her willingness that
the child remain with the Cabangbangs provided the latter would in exchange give her a jeep and some money.

The petitioner's inconsistent demands in the course of the proceedings below, reveal that her motives do not flow from
the wellsprings of a loving mother's heart. Upon the contrary, they are unmistakably selfish — nay, mercenary. She needs
the child as a leverage to obtain concessions — financial and otherwise — either from the alleged father or the
Cabangbangs. If she gets the child back, support for her would be forthcoming so she thinks — from the alleged father,
Sy Sia Lay. On the other hand, if the Cabangbangs would keep the child, she would agree provided they gave her a
jeep and some money.

Indeed, the petitioner's attitude, to our mind, does nothing but confirm her intention to abandon the child — from the
very outset when she allowed Villareal to give her away to the Cabangbangs. It must be noted that the abandonment
took place when the child, barely four months old, was at the most fragile stage of life and needed the utmost care and
solicitude of her mother. And for five long years thereafter she did not once move to recover the child. She continuously
shunned the natural and legal obligations which she owed to the child; completely withheld her presence, her love, her
care, and the opportunity to display maternal affection; and totally denied her support and maintenance. Her silence
and inaction have been prolonged to such a point that her abandonment of the child and her total relinquishment of
parental claim over her, can and should be inferred as a matter of law. 3

Note that this was not the only instance when she gave away a child of her own flesh and blood. She gave up her
youngest child, named Betty Tan Villareal, to her comadre in Cebu because she could not support it.

Of incalculable significance is the fact that nowhere in the course of the petitioner's lengthy testimony did she ever
express a genuine desire to recover her child Betty Chua Sy or Grace Cabangbang — or, for that matter, her other child
Betty Tan Villareal — because she loves her, cares for her, and wants to smother her with motherly affection. Far from it.
She wants Betty Chua Sy or Grace Cabangbang back so that the alleged father would resume giving her (the
petitioner) support. She wants her back to humiliate and embarrass the respondent Villareal who, with her knowledge
and consent, gave the child to the Cabangbangs. But — "most unkindest cut of all"! — she nevertheless signified her
readiness to give up the child, in exchange for a jeep and some money.

We therefore affirm the lower court's decision, not on the grounds cited by it, but upon a ground which the court
overlooked — i.e., abandonment by the petitioner of her child. 4

Contrast the petitioner's attitude with that of the respondents Cabangbang — especially the respondent Flora
Cabangbang who, from the moment the child was given to them, took care of her as if she were her own flesh and
blood, had her baptized, and when she reached school age enrolled her in a reputable exclusive school, for girls.

Ironically enough, the real heart-rending tragedy in this case would consist not in taking the child away from the
Cabangbangs but in returning her to the custody of the petitioner.

For, by her own admission, the petitioner has no regular source of income, and it is doubtful, to say the very least, that
she can provide the child with the barest necessities of life, let alone send her to school. There is no insurance at all that
the alleged father, Sy Sia Lay — an unknown quantity, as far as the record goes — would resume giving the petitioner
support once she and the child are reunited. What would then prevent the petitioner from again doing that which she
did before, i.e., give her away? These are of course conjectures, but when the welfare of a helpless child is at stake, it is
the bounden duty of courts — which they cannot shirk — to respect, enforce, and give meaning and substance to a
child's natural and legal right to live and grow in the proper physical, moral and intellectual environment. 5

This is not to say that with the Cabangbang spouses, a bright and secure future is guaranteed for her. For life is beset at
every turn with snares and pitfalls. But the record indubitably pictures the Cabangbang spouses as a childless couple of
consequence in the community, who have given her their name and are rearing her as their very own child, and with
whom there is every reason to hope she will have a fair chance of normal growth and development into respectable
womanhood.
 Verily, to surrender the girl to the petitioner would be to assume — quite incorrectly — that only mothers are capable of
parental love and affection. Upon the contrary, this case precisely underscores the homiletic admonition that parental
love is not universal and immutable like a law of natural science.

II.

The petitioner assails as illegal and without basis the award of the custody of Grace Cabangbang or Betty Chua Sy to
the Cabangbang spouses upon the grounds, first, that the couple are not related by consanguinity or affinity to the
child, and second, because the answer of the spouses contains no prayer for the custody of the child.

The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the lower court from
awarding her custody to them. Indeed, the law provides that in certain cases the custody of a child may be awarded
even to strangers, as against either the father or the mother or against both. Thus, in proceedings involving a child whose
parents are separated — either legally or de facto — and where it appears that both parents are improper persons to
whom to entrust the care, custody and control of the child, "the court may either designate the paternal or maternal
grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such
child, or commit it to and suitable asylum, children's home, or benevolent society." 6

Parenthetically, sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioner's contention that the first sentence
of art. 363 of the Civil Code, which states that

In all questions on the care, custody, education and property of children, the latter's welfare shall be
paramount.....

applies only when the litigation involving a child is between the father and the mother. That the policy enunciated, in
the abovequoted legal provision is of general application, is evident from the use of the, adjective all — meaning, the
whole extent or quantity of, the entire number of, every one of. 7 It is, therefore, error to argue that if the suit involving a
child's custody is between a parent and a stranger, the law must necessarily award such custody to the parent. Sec 7,
Rule 99 of the Rules of Court, precisely contemplates, among others, a suit between a parent and a stranger who, in the
words of the provision, is "some reputable resident of the province." And under the authority of the said rule, the court —
if it is for the best interest of the child — may take the child away from its parents and commit it to, inter alia, a
benevolent person.

The petitioner's contention that the answer of the spouses Cabangbang contains no prayer for the retention by them of
the custody of the child, is equally devoid of merit. The several moves taken by them are clear and definitive enough.
First, they asked for her custody pendente lite. Second, they sought the dismissal of the petition below for lack of merit.
Finally, they added a general prayer for other reliefs just and equitable in the premises. Surely the above reliefs prayed
for are clearly indicative of the Cabangbangs' genuine desire to retain the custody of Betty Chua Sy or Grace
Cabangbang.

III.

Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly provided by law, the writ of habeas
corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the person entitled thereto." The petitioner has not proven that
she is entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon the contrary, by wantonly and
completely shunting aside her legal and moral obligations toward her child, she must be deemed as having forfeited all
legitimate legal and moral claim to her custody. The lower court acted correctly in dismissing her petition.

ACCORDINGLY, the judgment a quo is affirmed. No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano, Teehankee and Barredo, JJ.,
concur.

Footnotes

1Exhibit 5.

2Savellano vs. Diaz, et al.. L-17944, July 31, 1963; Cabrera vs. Tiano, L-17299, July 31, 1963.
 325A.L.R. 2d, p. 667, citing Re Bistany (1924) 239 NY 19, 145 NE 70; Re Anonymous (1942) 178 Misc 142, 33 NYS2d
793; Re Anonymous (1949) 195 Misc 6, 88 NYS2d 829; Re Greenfield (1952, Sur) 109 NYS2d 462; Re Asterbloom
(1946) 63 Nev 190, 165 P2d 157; Re MacLean (1919) 109 Misc 479, 179 NYS 182.

4Garcia Valdez vs. Soterana Tuason, 40 Phil. 943, 951; Relative vs. Castro, 76 Phil. 653; Carillo vs. De Paz, L-22601,
Oct. 28, 1966, 18 SCRA 467.

5See art. 356(4), Civil Code.

6See sec. 6, Rule 96, Rules of Court. See also sec. 7, id.

7Webster's New Word Dictionary of the American Language, College Edition, 1959 ed., p. 38.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-25659 October 31, 1969

LUZON SURETY CO., INC., petitioner,

vs.
JOSEFA AGUIRRE DE GARCIA, VICENTE GARCIA and the FOURTH DIVISION OF THE COURT OF APPEALS, respondents.

Tolentino and Garcia and D. R. Cruz for petitioner.

Rodolfo J. Herman for respondents.

FERNANDO, J.:

The crucial question in this petition for the review of a decision of the Court of Appeals, to be passed upon for the first
time, is whether or not a conjugal partnership, in the absence of any showing of benefits received, could be held liable
on an indemnity agreement executed by the husband to accommodate a third party in favor of a surety company. The
Court of Appeals held that it could not. Petitioner Luzon Surety Co., Inc., dissatisfied with such a judgment, which was an
affirmance of a lower court decision, would have us reverse. We do not see it that way. The Court of Appeals
adjudicated the matter in accordance with law. We affirm what it did.

As noted in the brief of petitioner Luzon Surety Co., Inc., on October 18, 1960, a suit for injunction was filed in the Court of
First Instance of Negros Occidental against its Provincial Sheriff by respondents-spouses, Josefa Aguirre de Garcia and
Vicente Garcia "to enjoin [such Sheriff] from selling the sugar allegedly owned by their conjugal partnership, pursuant to
a writ of garnishment issued by virtue of a writ of execution issued in Civil Case No. 3893 of the same Court of First
Instance ... against the respondent Vicente Garcia ... ."1

There was a stipulation of facts submitted. There is no question as to one Ladislao Chavez, as principal, and petitioner
Luzon Surety Co., Inc., executing a surety bond in favor of the Philippine National Bank, Victorias Branch, to guaranty a
crop loan granted by the latter to Ladislao Chavez in the sum of P9,000.00. On or about the same date, Vicente Garcia,
together with the said Ladislao Chavez and one Ramon B. Lacson, as guarantors, signed an indemnity agreement
wherein they bound themselves, jointly and severally, to indemnify now petitioner Luzon Surety Co., Inc. against any and
all damages, losses, costs, stamps, taxes, penalties, charges and expenses of whatsoever kind and nature which the
petitioner may at any time sustain or incur in consequence of having become guarantor upon said bond, to pay interest
at the rate of 12% per annum, computed and compounded quarterly until fully paid; and to pay 15% of the amount
involved in any litigation or other matters growing out of or connected therewith for attorney's fees.

It was likewise stipulated that on or about April 27, 1956, the Philippine National Bank filed a complaint before the Court
of First Instance of Negros Occidental, docketed as its Civil Case No. 3893, against Ladislao Chavez and Luzon Surety
Co., Inc. to recover the amount of P4,577.95, in interest, attorney's fees, and costs of the suit. On or about August 8, 1957,
in turn, a third-party complaint against Ladislao Chavez, Ramon B. Lacson and Vicente Garcia, based on the indemnity
agreement, was instituted by Luzon Surety Co., Inc.

Then, as set forth by the parties, on September 17, 1958, the lower court rendered a decision condemning Ladislao
Chavez and Luzon Surety Co., Inc., to pay the plaintiff jointly and severally the amount of P4,577.95 representing the
principal and accrued interest of the obligation at the rate of 6% per annum as of January 6, 1956, with a daily interest of
P0.7119 on P4,330.91 from January 6, 1956, until fully paid, plus the sum of P100.00 as attorney's fees, and to pay the costs.
The same decision likewise ordered the third party defendants, Ladislao Chavez, Vicente Garcia, and Ramon B. Lacson,
to pay Luzon Surety Co., Inc., the total amount to be paid by it to the plaintiff Philippine National Bank.

On July 30, 1960, pursuant to the aforesaid decision, the Court of First Instance of Negros Occidental issued a writ of
execution against Vicente Garcia for the satisfaction of the claim of petitioner in the sum of P8,839.97. Thereafter, a writ
of garnishment was issued by the Provincial Sheriff of Negros Occidental dated August 9, 1960, levying and garnishing
the sugar quedans of the now respondent-spouses, the Garcias, from their sugar plantation, registered in the names of
both of them.2 The suit for injunction filed by the Garcia spouses was the result.

As noted, the lower court found in their favor. In its decision of April 30, 1962, it declared that the garnishment in question
was contrary to Article 161 of the Civil Code and granted their petition, making the writ of preliminary injunction
permanent. Luzon Surety, Inc. elevated the matter to the Court of Appeals, which, as mentioned at the outset, likewise
reached the same result. Hence this petition for review.

We reiterate what was set forth at the opening of this opinion. There is no reason for a reversal of the judgment. The
decision sought to be reviewed is in accordance with law.

As explained in the decision now under review: "It is true that the husband is the administrator of the conjugal property
pursuant to the provisions of Art. 163 of the New Civil Code. However, as such administrator the only obligations incurred
by the husband that are chargeable against the conjugal property are those incurred in the legitimate pursuit of his
career, profession or business with the honest belief that he is doing right for the benefit of the family. This is not true in the
case at bar for we believe that the husband in acting as guarantor or surety for another in an indemnity agreement as
that involved in this case did not act for the benefit of the conjugal partnership. Such inference is more emphatic in this
case, when no proof is presented that Vicente Garcia in acting as surety or guarantor received consideration therefor,
which may redound to the benefit of the conjugal partnership."3

In the decision before us, the principal error assigned is the above holding of the Court of Appeals that under Article 161
of the Civil Code no liability was incurred by the conjugal partnership. While fully conscious of the express language of
Article 161 of the Civil Code, petitioner, in its well-written brief submitted by its counsel, would impress on us that in this
case it could not be said that no benefit was received by the conjugal partnership. It sought to lend some semblance of
plausibility to this view thus: "The present case involves a contract of suretyship entered into by the husband, the
respondent Vicente Garcia, in behalf of a third person. A transaction based on credit through which, by our given
definitions, respondent Vicente Garcia, by acting as guarantor and making good his guaranty, acquires the capacity of
being trusted, adds to his reputation or esteem, enhances his standing as a citizen in the community in which he lives,
and earns the confidence of the business community. He can thus secure money with which to carry on the purposes of
their conjugal partnership."4

While not entirely, without basis, such an argument does not carry conviction. Its acceptance would negate the plain
meaning of what is expressly provided for in Article 161. In the most categorical language, a conjugal partnership under
that provision is liable only for such "debts and obligations contracted by the husband for the benefit of the conjugal
partnership." There must be the requisite showing then of some advantage which clearly accrued to the welfare of the
spouses. There is none in this case. Nor could there be, considering that the benefit was clearly intended for a third party,
one Ladislao Chavez. While the husband by thus signing the indemnity agreement may be said to have added to his
reputation or esteem and to have earned the confidence of the business community, such benefit, even if
hypothetically accepted, is too remote and fanciful to come within the express terms of the provision.

Its language is clear; it does not admit of doubt. No process of interpretation or construction need be resorted to. It
peremptorily calls for application. Where a requirement is made in explicit and unambiguous terms, no discretion is left to
the judiciary. It must see to it that its mandate is obeyed. So it is in this case. That is how the Court of Appeals acted, and
what it did cannot be impugned for being contrary to law.5

Moreover, it would negate the plain object of the additional requirement in the present Civil Code that a debt
contracted by the husband to bind a conjugal partnership must redound to its benefit. That is still another provision
indicative of the solicitude and tender regard that the law manifests for the family as a unit. Its interest is paramount; its
welfare uppermost in the minds of the codifiers and legislators.
This particular codal provision in question rightfully emphasizes the responsibility of the husband as administrator.6He is
supposed to conserve and, if possible, augment the funds of the conjugal partnership, not dissipate them. If out of
friendship or misplaced generosity on his part the conjugal partnership would be saddled with financial burden, then the
family stands to suffer. No objection need arise if the obligation thus contracted by him could be shown to be for the
benefit of the wife and the progeny if any there be. That is but fair and just. Certainly, however, to make a conjugal
partnership respond for a liability that should appertain to the husband alone is to defeat and frustrate the avowed
objective of the new Civil Code to show the utmost concern for the solidarity and well-being of the family as a unit.7 The
husband, therefore, as is wisely thus made certain, is denied the power to assume unnecessary and unwarranted risks to
the financial stability of the conjugal partnership.

No useful purpose would be served by petitioner assigning as one of the errors the observation made by the Court of
Appeals as to the husband's interest in the conjugal property being merely inchoate or a mere expectancy in view of
the conclusion thus reached as to the absence of any liability on the part of the conjugal partnership. Nor was it error for
the Court of Appeals to refuse to consider a question raised for the first time on appeal. Now as to the question of
jurisdiction of the lower court to entertain this petition for injunction against the Provincial Sheriff, to which our attention is
invited, neither the Court of Appeals nor the lower court having been asked to pass upon it. Of course, if raised earlier, it
ought to have been seriously inquired into. We feel, however, that under all the circumstances of the case, substantial
justice would be served if petitioner be held as precluded from now attempting to interpose such a barrier. The
conclusion that thereby laches had intervened is not unreasonable. Such a response on our part can be predicated on
the authoritative holding in Tijam v. Sibonghanoy.8

WHEREFORE, the decision of the Court of Appeals of December 17, 1965, now under review, is affirmed with costs against
petitioner Luzon Surety Co., Inc.

Concepcion, C.J., Dizon, Makalintal, Zaldivar Sanchez, Castro, Teehankee and Barredo, JJ., concur.

Separate Opinions

REYES, J., concurring:

I concur in the result, but would like to make of record that, in my opinion, the words "all debts and obligations
contracted by the husband for the benefit of the conjugal partnership" used in Article 161 of the Civil Code of the
Philippines in describing the charges and obligations for which the conjugal partnership is liable, do not require that
actual profit or benefit must accrue to the conjugal partnership from the husband's transactions; but that it suffices that
the transaction should be one that normally would produce such benefit for the partnership. This is the ratio behind our
ruling in Javier vs. Osmeña, 34 Phil. 336, that obligations incurred by the husband in the practice of his profession are
collectible from the conjugal partnership.

Footnotes

1 Brief for Petitioner, p. 3.

2 Ibid., Appendix, pp. 39-42.

3 Ibid., pp. 46-47.

4 Ibid., pp. 24-25.

5Cf. People v. Mapa, 20 SCRA 1164 (1967); Pacific Oxygen & Acetylene Co. v. Central Bank, 22 SCRA 917
(1968); Dequito v. Lopez, 22 SCRA 1352 (1968); Padilla v. City of Pasay, 23 SCRA 1349 (1968); Garcia v. Vasquez,
27 SCRA 505 (1969); La Perla Cigar & Cigarette Factory v. Capapas, L- 27948 & 28001-11, July 31, 1969; Mobil Oil
Philippines v. Diocares, L-26371, Sept 30, 1969.
 6 Article 165, New Civil Code.

7 Cf. Report of the Code Commission, p. 17 (1948).

8 23 SCRA 29 (1968). Cf. Carillo vs. Allied Workers' Association, 24 SCRA 566 (1968).

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 82040 August 27, 1991

BA FINANCE CORPORATION, petitioner,

vs.
HON. COURT OF APPEALS, Hon. Presiding Judge of Regional Trial Court of Manila, Branch 43, MANUEL CUADY and LILIA
CUADY, respondents.

Valera, Urmeneta & Associates for petitioner.

Pompeyo L. Bautista for private respondents.

PARAS, J.:

This is a petition for review on certiorari which seeks to reverse and set aside (1) the decision of the Court of Appeals
dated July 21, 1987 in CA-G.R. No. CV-06522 entitled "B.A. Finance Corporation, Plaintiff-Appellant, vs. Manuel Cuady
and Lilia Cuady, Defendants-Appellees," affirming the decision of the Regional Trial Court of Manila, Branch 43, which
dismissed the complaint in Civil Case No. 82-10478, and (2) the resolution dated February 9, 1988 denying petitioner's
motion for reconsideration.

As gathered from the records, the facts are as follows:

On July 15, 1977, private respondents Manuel Cuady and Lilia Cuady obtained from Supercars, Inc. a credit of
P39,574.80, which amount covered the cost of one unit of Ford Escort 1300, four-door sedan. Said obligation was
evidenced by a promissory note executed by private respondents in favor of Supercars, Inc., obligating themselves to
pay the latter or order the sum of P39,574.80, inclusive of interest at 14% per annum, payable on monthly installments of
P1,098.00 starting August 16, 1977, and on the 16th day of the next 35 months from September 16, 1977 until full payment
thereof. There was also stipulated a penalty of P10.00 for every month of late installment payment. To secure the faithful
and prompt compliance of the obligation under the said promissory note, the Cuady spouses constituted a chattel
mortage on the aforementioned motor vehicle. On July 25, 1977, Supercars, Inc. assigned the promissory note, together
with the chattel mortgage, to B.A. Finance Corporation. The Cuadys paid a total of P36,730.15 to the B.A. Finance
Corporation, thus leaving an unpaid balance of P2,344.65 as of July 18, 1980. In addition thereto, the Cuadys owe B.A.
Finance Corporation P460.00 representing penalties or surcharges for tardy monthly installments (Rollo, pp. 27-29).

Parenthetically, the B.A. Finance Corporation, as the assignee of the mortgage lien obtained the renewal of the
insurance coverage over the aforementioned motor vehicle for the year 1980 with Zenith Insurance Corporation, when
the Cuadys failed to renew said insurance coverage themselves. Under the terms and conditions of the said insurance
coverage, any loss under the policy shall be payable to the B.A. Finance Corporation (Memorandum for Private
Respondents, pp. 3-4).

On April 18, 1980, the aforementioned motor vehicle figured in an accident and was badly damaged. The unfortunate
happening was reported to the B.A. Finance Corporation and to the insurer, Zenith Insurance Corporation. The Cuadys
asked the B.A. Finance Corporation to consider the same as a total loss, and to claim from the insurer the face value of
the car insurance policy and apply the same to the payment of their remaining account and give them the surplus
thereof, if any. But instead of heeding the request of the Cuadys, B.A. Finance Corporation prevailed upon the former to
just have the car repaired. Not long thereafter, however, the car bogged down. The Cuadys wrote B.A. Finance
Corporation requesting the latter to pursue their prior instruction of enforcing the total loss provision in the insurance
coverage. When B.A. Finance Corporation did not respond favorably to their request, the Cuadys stopped paying their
monthly installments on the promissory note (Ibid., pp. 45).

On June 29, 1982, in view of the failure of the Cuadys to pay the remaining installments on the note, B.A. Finance
Corporation sued them in the Regional Trial Court of Manila, Branch 43, for the recovery of the said remaining
installments (Memorandum for the Petitioner, p. 1).

After the termination of the pre-trial conference, the case was set for trial on the merits on April 25, 1984. B.A. Finance
Corporation's evidence was presented on even date and the presentation of Cuady's evidence was set on August 15,
1984. On August 7,1984, Atty. Noel Ebarle, counsel for the petitioner, filed a motion for postponement, the reason being
that the "handling" counsel, Atty. Ferdinand Macibay was temporarily assigned in Cebu City and would not be back until
after August 15, 1984. Said motion was, however, denied by the trial court on August 10, 1984. On August 15, 1984, the
date of hearing, the trial court allowed private respondents to adduce evidence ex-parte in the form of an affidavit to
be sworn to before any authorized officer. B.A. Finance Corporation filed a motion for reconsideration of the order of the
trial court denying its motion for postponement. Said motion was granted in an order dated September 26, 1984, thus:

The Court grants plaintiff's motion for reconsideration dated August 22, 1984, in the sense that plaintiff is allowed
to adduce evidence in the form of counter-affidavits of its witnesses, to be sworn to before any person
authorized to administer oaths, within ten days from notice hereof. (Ibid., pp. 1-2).

B.A. Finance Corporation, however, never complied with the above-mentioned order, paving the way for the trial court
to render its decision on January 18, 1985, the dispositive portion of which reads as follows:

IN VIEW WHEREOF, the Court DISMISSES the complaint without costs.

SO ORDERED. (Rollo, p. 143)

On appeal, the respondent appellate court * affirmed the decision of the trial court. The decretal portion of the said
decision reads as follows:

WHEREFORE, after consultation among the undersigned members of this Division, in compliance with the
provision of Section 13, Article VIII of the Constitution; and finding no reversible error in the judgment appealed
from, the same is hereby AFFIRMED, without any pronouncement as to costs. (Ibid., p. 33)

B.A. Finance Corporation moved for the reconsideration of the above decision, but the motion was denied by the
respondent appellate court in a resolution dated February 9, 1988 (Ibid., p. 38).

Hence, this present recourse.

On July 11, 1990, this Court gave due course to the petition and required the parties to submit their respective
memoranda. The parties having complied with the submission of their memoranda, the case was submitted for decision.

The real issue to be resolved in the case at bar is whether or not B.A. Finance Corporation has waived its right to collect
the unpaid balance of the Cuady spouses on the promissory note for failure of the former to enforce the total loss
provision in the insurance coverage of the motor vehicle subject of the chattel mortgage.

It is the contention of B.A. Finance Corporation that even if it failed to enforce the total loss provision in the insurance
policy of the motor vehicle subject of the chattel mortgage, said failure does not operate to extinguish the unpaid
balance on the promissory note, considering that the circumstances obtaining in the case at bar do not fall under Article
1231 of the Civil Code relative to the modes of extinguishment of obligations (Memorandum for the Petitioner, p. 11).

On the other hand, the Cuadys insist that owing to its failure to enforce the total loss provision in the insurance policy,
B.A. Finance Corporation lost not only its opportunity to collect the insurance proceeds on the mortgaged motor vehicle
in its capacity as the assignee of the said insurance proceeds pursuant to the memorandum in the insurance policy
which states that the "LOSS: IF ANY, under this policy shall be payable to BA FINANCE CORP., as their respective rights
and interest may appear" (Rollo, p. 91) but also the remaining balance on the promissory note (Memorandum for the
Respondents, pp. 16-17).

The petition is devoid of merit.

B.A. Finance Corporation was deemed subrogated to the rights and obligations of Supercars, Inc. when the latter
assigned the promissory note, together with the chattel mortgage constituted on the motor vehicle in question in favor
of the former. Consequently, B.A. Finance Corporation is bound by the terms and conditions of the chattel mortgage
executed between the Cuadys and Supercars, Inc. Under the deed of chattel mortgage, B.A. Finance Corporation was
constituted attorney-in-fact with full power and authority to file, follow-up, prosecute, compromise or settle insurance
claims; to sign execute and deliver the corresponding papers, receipts and documents to the Insurance Company as
may be necessary to prove the claim, and to collect from the latter the proceeds of insurance to the extent of its
interests, in the event that the mortgaged car suffers any loss or damage (Rollo, p. 89). In granting B.A. Finance
Corporation the aforementioned powers and prerogatives, the Cuady spouses created in the former's favor an agency.
Thus, under Article 1884 of the Civil Code of the Philippines, B.A. Finance Corporation is bound by its acceptance to
carry out the agency, and is liable for damages which, through its non-performance, the Cuadys, the principal in the
case at bar, may suffer.

Unquestionably, the Cuadys suffered pecuniary loss in the form of salvage value of the motor vehicle in question, not to
mention the amount equivalent to the unpaid balance on the promissory note, when B.A. Finance Corporation
steadfastly refused and refrained from proceeding against the insurer for the payment of a clearly valid insurance claim,
and continued to ignore the yearning of the Cuadys to enforce the total loss provision in the insurance policy, despite
the undeniable fact that Rea Auto Center, the auto repair shop chosen by the insurer itself to repair the aforementioned
motor vehicle, misrepaired and rendered it completely useless and unserviceable (Ibid., p. 31).

Accordingly, there is no reason to depart from the ruling set down by the respondent appellate court. In this connection,
the Court of Appeals said:

... Under the established facts and circumstances, it is unjust, unfair and inequitable to require the chattel
mortgagors, appellees herein, to still pay the unpaid balance of their mortgage debt on the said car, the non-
payment of which account was due to the stubborn refusal and failure of appellant mortgagee to avail of the
insurance money which became due and demandable after the insured motor vehicle was badly damaged in
a vehicular accident covered by the insurance risk. ... (Ibid.)

On the allegation that the respondent court's findings that B.A. Finance Corporation failed to claim for the damage to
the car was not supported by evidence, the records show that instead of acting on the instruction of the Cuadys to
enforce the total loss provision in the insurance policy, the petitioner insisted on just having the motor vehicle repaired, to
which private respondents reluctantly acceded. As heretofore mentioned, the repair shop chosen was not able to
restore the aforementioned motor vehicle to its condition prior to the accident. Thus, the said vehicle bogged down
shortly thereafter. The subsequent request of the Cuadys for the B.A. Finance Corporation to file a claim for total loss with
the insurer fell on deaf ears, prompting the Cuadys to stop paying the remaining balance on the promissory note
(Memorandum for the Respondents, pp. 4-5).

Moreover, B.A. Finance Corporation would have this Court review and reverse the factual findings of the respondent
appellate court. This, of course, the Court cannot and will not generally do. It is axiomatic that the judgment of the Court
of Appeals is conclusive as to the facts and may not ordinarily be reviewed by the Supreme Court. The doctrine is, to be
sure, subject to certain specific exceptions none of which, however, obtains in the instant case (Luzon Brokerage
Corporation v. Court of Appeals, 176 SCRA 483 [1989]).

Finally, B.A. Finance Corporation contends that respondent trial court committed grave abuses of discretion in two
instances: First, when it denied the petitioner's motion for reconsideration praying that the counsel be allowed to cross-
examine the affiant, and; second, when it seriously considered the evidence adduced ex-parte by the Cuadys, and
heavily relied thereon, when in truth and in fact, the same was not formally admitted as part of the evidence for the
private respondents (Memorandum for the Petitioner, p. 10). This Court does not have to unduly dwell on this issue which
was only raised by B.A. Finance Corporation for the first time on appeal. A review of the records of the case shows that
B.A. Finance Corporation failed to directly raise or ventilate in the trial court nor in the respondent appellate court the
validity of the evidence adduced ex-parte by private respondents. It was only when the petitioner filed the instant
petition with this Court that it later raised the aforementioned issue. As ruled by this Court in a long line of cases, issues not
raised and/or ventilated in the trial court, let alone in the Court of Appeals, cannot be raised for the first time on appeal
as it would be offensive to the basic rules of fair play, justice and due process (Galicia v. Polo, 179 SCRA 375 [1989];
Ramos v. Intermediate Appellate Court, 175 SCRA 70 [1989]; Dulos Realty & Development Corporation v. Court of
Appeals, 157 SCRA 425 [1988]; Dihiansan, et al. v. Court of Appeals, et al., 153 SCRA 712 [1987]; De la Santa v. Court of
Appeals, et al., 140 SCRA 44 [1985]).

PREMISES CONSIDERED, the instant petition is DENIED, and the decision appealed from is AFFIRMED.

SO ORDERED.
Melencio-Herrera (Chairperson), Padilla and Regalado, JJ., concur.
Sarmiento, J., is on leave.

Footnotes

* Decision penned by Justice Fidel P. Purisima and concurred in by Justices Emeterio C. Cui and Jesus M.
Elbinias.

FIRST DIVISION

[G.R. No. 146504. April 9, 2002]

HONORIO L. CARLOS, petitioner, vs. MANUEL T. ABELARDO, respondent.

DECISION

KAPUNAN, J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the decision of the Court of
Appeals dated November 10, 2000 in CA-G.R. CV No. 54464 which reversed and set aside the decision of the Regional
Trial Court of Valenzuela, Branch 172, and dismissed for insufficiency of evidence the complaint for a sum of money and
damages filed by herein petitioner Honorio Carlos against respondent Manuel Abelardo, his son-in-law, and the latters
wife, Maria Theresa Carlos-Abelardo.

Petitioner averred in his complaint filed on October 13, 1994 that in October 1989, respondent and his wife Maria
Theresa Carlos-Abelardo approached him and requested him to advance the amount of US$25,000.00 for the purchase
of a house and lot located at #19952 Chestnut Street, Executive Heights Village, Paranaque, Metro Manila. To enable and
assist the spouses conduct their married life independently and on their own, petitioner, in October 31, 1989, issued a check
in the name of a certain Pura Vallejo, seller of the property, who acknowledged receipt thereof.[1]

When petitioner inquired from the spouses in July 1991 as to the status of the amount he loaned to them, the latter
acknowledged their obligation but pleaded that they were not yet in a position to make a definite settlement of the
same.[2] Thereafter, respondent expressed violent resistance to petitioners inquiries on the amount to the extent of making
various death threats against petitioner.[3]

On August 24, 1994, petitioner made a formal demand for the payment of the amount of US$25,000.00 but the
spouses failed to comply with their obligation.[4] Thus, on October 13, 1994, petitioner filed a complaint for collection of a
sum of money and damages against respondent and his wife before the Regional Trial Court of Valenzuela, Branch 172,
docketed as Civil Case No. 4490-V-94. In the complaint, petitioner asked for the payment of the US$25,000.00 or
P625,000.00, its equivalent in Philippine currency plus legal interest from date of extra-judicial demand.[5] Petitioner likewise
claimed moral and exemplary damages, attorneys fees and costs of suit from respondent.[6]

As they were separated in fact for more than a year prior to the filing of the complaint, respondent and his wife filed
separate answers. Maria Theresa Carlos-Abelardo admitted securing a loan together with her husband, from
petitioner.[7] She claimed, however, that said loan was payable on a staggered basis so she was surprised when petitioner
demanded immediate payment of the full amount.[8]

In his separate Answer, respondent admitted receiving the amount of US$25,000.00 but claimed that:

xxx

a. Defendant (respondent) xxx revived that otherwise dormant construction firm H.L. CARLOS CONSTRUCTION
of herein plaintiff which suffered tremendous setback after the assassination of Senator Benigno Aquino;
 b. Working day and night and almost beyond human endurance, defendant devoted all his efforts and skill,
used all his business and personal connection to be able to revive the construction business of plaintiff;

c. Little-by-little, starting with small construction business, defendant was able to obtain various construction
jobs using the name H.L. CARLOS CONSTRUCTION and the income derived therefrom were deposited in the
name of such firm of plaintiff,

d. Defendant xxx was made to believe that the earnings derived from such construction will be for him and his
family since he was the one working to secure the contract and its completion, he was allowed to use the
facilities of the plaintiff;

e. The plaintiff seeing the progress brought about by defendant xxx to his company proposed a profit sharing
scheme to the effect that all projects amounting to more than P10 million shall be for the account of
plaintiff; lower amount shall be for defendants account but still using H.L. CARLOS CONSTRUCTION.

f. But, to clear account on previous construction contracts that brought income to H.L.CARLOS CONSTRUCTION,
out of which defendant derived his income, plaintiff gave the amount of US$25,000.00 to defendant to
square off account and to start the arrangement in paragraph (e) supra;

g. That, the said US$25,000.00 was never intended as loan of defendant. It was his share of income on contracts
obtained by defendant;

xxx [9]

Respondent denied having made death threats to petitioner and by way of compulsory counterclaim, he asked for
moral damages from petitioner for causing the alienation of his wifes love and affection, attorneys fees and costs of suit. [10]

On June 26, 1996, the Regional Trial Court rendered a decision in favor of petitioner, the dispositive portion of which
reads:

WHEREFORE, judgment is hereby rendered as follows:

1. Ordering the defendants to pay plaintiff the amount of US$25,000.00 or its equivalent in Philippine Currency
at the time of its payment, plus legal interest thereon from August 24, 1994 until fully paid;

2. Ordering the defendant Manuel T.Abelardo to pay the plaintiff the amount of P500,000.00 representing moral
damages and the further amount of P50,000.00 as exemplary damages; and

3. Ordering the defendants to pay the plaintiff the amount of P100,000.00 as attorneys fees, plus the costs of
suit.

SO ORDERED. [11]

Respondent appealed the decision of the trial court to the Court of Appeals. On November 10, 2000, the Court of
Appeals reversed and set aside the trial courts decision and dismissed the complaint for insufficiency of evidence to show
that the subject amount was indeed loaned by petitioner to respondent and his wife. The Court of Appeals found that the
amount of US$25,000.00 was respondents share in the profits of H.L. Carlos Construction. The dispositive portion of the Court
of Appeals decision states:

WHEREFORE, premises considered, the Decision of the Regional Trial Court of Valenzuela, Branch 172 in Civil Case No.
4490-V-94 is hereby REVERSED and SET ASIDE and a new one entered DISMISSING the Complaint for insufficiency of
evidence.

The claim for damages by defendant-appellant is likewise DISMISSED, also for insufficiency of evidence, because of his
failure to present substantial evidence to prove that plaintiff-appellee caused the defendant-spouses separation.

Costs against the plaintiff-appellee.

SO ORDERED. [12]

A motion for reconsideration of the above decision having been denied on, petitioner brought this appeal assigning
the following errors:
 THE COURT OF APPEALS ERRED IN FINDING INSUFFICIENT EVIDENCE TO PROVE THAT THE AMOUNT OF
US$25,000.00 WAS A LOAN OBTAINED BY PRIVATE RESPONDENT AND HIS WIFE FROM PETITIONER.

THE COURT OF APPEALS ERRED IN HOLDING THAT THE US$25,000.00 WAS GIVEN AS PRIVATE RESPONDENTS
SHARE IN THE PROFITS OF H.L. CARLOS CONSTRUCTION, INC. AND THAT THE FILING OF THE COMPLAINT IS A
HOAX.

THE COURT OF APPEALS ERRED IN NULLIFYING THE AWARD OF DAMAGES FOR LACK OF PROOF THEREOF.

We find merit in the petition.

As gleaned from the records, the following facts are undisputed: (1) there was a check in the amount of US$25,000.00
issued by petitioner; (2) this amount was received by respondent and his wife and given to a certain Pura Vallejo for the
full payment of a house and lot located at #19952 Chestnut Street, Executive Heights Village, Paranaque, Metro Manila;
(3) this house and lot became the conjugal dwelling of respondent and his wife; and (4) respondents wife executed an
instrument acknowledging the loan but which respondent did not sign.

To prove his claim that the amount was in the nature of a loan or an advance he extended to respondent and his
wife, petitioner presented Bankers Trust Check No. 337 in the amount of US$25,000.00 he issued on October 31, 1989 to
Pura Vallejo.[13] He also introduced in evidence an instrument executed by respondents wife on July 31, 1991
acknowledging her and her husbands accountability to petitioner for the said amount which was advanced in payment
of a house and lot located at #19952 Chestnut Street, Executive Heights Subdivision, Paranaque. [14] A formal demand
letter by counsel for petitioner dated August 24, 1994 sent to and received by respondent was also on record. [15]

All these pieces of evidence, taken together with respondents admission that he and his wife received the subject
amount and used the same to purchase their house and lot, sufficiently prove by a preponderance of evidence petitioners
claim that the amount of US$25,000.00 was really in the nature of a loan.

Respondent tried to rebut petitioners evidence by claiming that the US$25,000.00 was not a loan but his share in the
profits of H.L. Carlos Construction. He alleged that he received money from petitioner amounting to almost P3 million as
his share in the profits of the corporation. To prove this, he presented ten (10) Bank of the Philippine Islands (BPI) checks
allegedly given to him by petitioner.[16] He argued that if indeed, he and his wife were indebted to petitioner, the latter
could have easily deducted the amount of the said loan from his share of the profits.

Respondent fails to convince this Court.

All the checks presented by respondent, which he claims to be his share in the profits of petitioners company, were
all in the account of H.L. Carlos Construction.[17] On the other hand, the Bankers Trust Check in the amount of US$25,000.00
was drawn from the personal account of petitioner.[18] Assuming to be true that the checks presented by respondent were
his profits from the corporation, then all the more does this prove that the amount of US$25,000.00 was not part of such
profits because it was issued by petitioner from his own account. Indeed, if such amount was respondents share of the
profits, then the same should have been issued under the account of H.L. Carlos Construction.

Moreover, respondent failed to substantiate his claim that he is entitled to the profits and income of the corporation.
There was no showing that respondent was a stockholder of H.L. Carlos Construction. His name does not appear in the
Articles of Incorporation as well as the Organizational Profile of said company either as stockholder or officer.[19] Not being
a stockholder, he cannot be entitled to the profits or income of said corporation. Neither did respondent prove that he
was an employee or an agent so as to be entitled to salaries or commissions from the corporation.

We quote with favor the disquisition of the trial court on this point:

Early in time, it must be noted that payment of personal debts contracted by the husband or the wife before or during
the marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of the
family. The defendants never denied that the check of US$25,000.00 was used to purchase the subject house and lot.
They do not deny that the same served as their conjugal home, thus benefiting the family. On the same principle,
acknowledgment of the loan made by the defendant-wife binds the conjugal partnership since its proceeds redounded
to the benefit of the family. Hence, defendant-husband and defendant-wife are jointly and severally liable in the
payment of the loan.

Defendant-husband cannot allege as a defense that the amount of US $25,000.00 was received as his share in the
income or profits of the corporation and not as a loan. Firstly, defendant-husband does not appear to be a stockholder
nor an employee nor an agent of the corporation, H. L. Carlos Construction, Inc. Since he is not a stockholder, he has no
right to participate in the income or profits thereof. In the same manner that as he is not an employee nor an agent of H.
L. Carlos Construction, Inc., he has no right to receive any salary or commission therefrom. Secondly, the amount
advanced for the purchase of the house and lot came from the personal account of the plaintiff. If, indeed, it was to be
construed as defendant-husbands share in the profits of the corporation, the checks should come from the corporations
account and not from the plaintiffs personal account, considering that the corporation has a personality separate and
distinct from that of its stockholders and officers.

Even granting that the checks amount to US $3,000.000.00 given by the plaintiff to the defendant-spouses was their share
in the profits of the corporation, still there is no sufficient evidence to establish that the US $25,000.00 is to be treated
similarly. Defendant-husband in invoking the defense of compensation argued that if indeed they were indebted to the
plaintiff, the latter could have applied their share in the proceeds or income of the corporation to the concurrent
amount of the alleged loan, instead of giving the amount of P3,000,000.00 to them. This argument is untenable. Article
1278 of the Civil Code provides that compensation shall take place when two persons, in their own right, are debtors
and creditors of each other. As its indicates, compensation is a sort of balancing between two obligations. In the instant
case, the plaintiff and the defendant-husband are not debtors and creditors of each other. Even granting that the
defendant-husbands claim to the profits of the corporation is justified, still compensation cannot extinguish his loan
obligation to the plaintiff because under such assumption, the defendant is dealing with the corporation and not with
the plaintiff in his personal capacity. Hence, compensation cannot take place.

The Court of Appeals, thus, erred in finding that respondents liability was not proved by preponderance of evidence.
On the contrary, the evidence adduced by petitioner sufficiently established his claim that the US$25,000.00 he advanced
to respondent and his wife was a loan.

The loan is the liability of the conjugal partnership pursuant to Article 121 of the Family Code:

Article 121. The conjugal partnership shall be liable for:

xxx

(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of
the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may
have been benefited;

If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the
unpaid balance with their separate properties.

xxx

While respondent did not and refused to sign the acknowledgment executed and signed by his wife, undoubtedly,
the loan redounded to the benefit of the family because it was used to purchase the house and lot which became the
conjugal home of respondent and his family. Hence, notwithstanding the alleged lack of consent of respondent, under
Art. 21 of the Family Code, he shall be solidarily liable for such loan together with his wife.

We also find sufficient basis for the award of damages to petitioner, contrary to the findings of the Court of Appeals
that petitioner is not entitled thereto.

Petitioners allegations of verbal and written threats directed against him by respondent is duly supported by
evidence on record. He presented two witnesses, Irineo Pajarin and Randy Rosal, who testified on separate incidents
where threats were made by respondent against petitioner.

Randy Rosal, driver of petitioner, declared that around three o clock in the afternoon of September 15, 1991, he was
sent by respondents wife on an errand to deliver the acknowledgment letter to respondent for him to sign. Respondent
did not sign the acknowledgment and instead, wrote a letter addressed to petitioner threatening him. He narrated what
took place thereafter:

xxx

Q When you were requested by Ma. Theresa C. Abelardo to bring a letter to herein defendant Manuel
Abelardo for him to sign the same, do you know whether that letter was actually signed by Manuel
Abelardo?

A No, sir.

xxx
 Q And what happened when Manuel Abelardo refused to sign that letter coming from the other defendant?

A He made me wait and he prepared a letter to Mr. Honorio Carlos, sir.

xxx

Q Where were you at the time when this defendant Manuel Abelardo prepared this letter?

A In his house, sir.

Q And where did he actually prepare that letter?

A At the dining table, sir.

Q How far were you from Manuel Abelardo from the dining table at the time when he was preparing a letter.

A Around 1 meter, sir.

Q And do you know where in, what particular paper did Mr. Abelardo prepare or write this letter?

A He wrote it in a Manila envelope, sir.

xxx

Q What happened after Manuel Abelardo prepared this letter in a Manila envelope?

A He got a small envelope and placed there the name of Mr. Carlos as the addressee, sir.

xxx

Q After preparing this letter on a Manila envelope and then getting another envelope and writing on it the
address of herein plaintiff, what did the defendant Manuel Abelardo do, if any?

A He instructed me to mail the letter which he prepared, sir.

xxx

Q And did you actually accede to the request of herein defendant Manuel Abelardo for you to mail that
letter to Engr. Carlos?

A I got the envelope but I did not mail it, sir.

xxx

Q May we know from you the reason why you did not mail said letter?

A Because Engr. Carlos might become frightened, sir.

Q What did you do with that letter, although you did not mail it?

A I kept it, sir.

xxx
Q And what did you do next after keeping the letter for several days?

A I gave the letter personally to Engr. Carlos, sir.

Q What prompted you to give that letter to Engr. Carlos instead of mailing it?

A So that Engr. Carlos can prepare, sir.

xxx [20]

This incident was duly entered and recorded in the Police Blotter on October 7, 1991 by a certain Sgt. Casile of the
Valenzuela Police Station. [21] A photocopy of this written threat was also attached to the Police Report and presented in
evidence. [22]

Another witness, Irineo Pajarin, recounted an incident which occurred in the afternoon of May 25, 1994, to wit:

xxx

Q Now Mr. Witness, on May 25, 1994 at around 2:30 in the afternoon do you recall where you were on that
particular date and time?

A I was at B.F. Homes, Paranaque, sir.

Q What were you doing at that time?

A I was waiting for Sargie Cornista, sir.

xxx

Q Will you please narrate to this Honorable Court that unusual incident?

A Manuel Abelardo passed by and when he saw me he called me. I approached him while he was then on
board his car and asked me who was my companion, sir.

Q And what was your answer to him?

A I told him it was Sargie, sir.

Q And what was his reply if any?

A He again asked me if I have in my company one of his children, sir.

Q What was your reply?

A I answered none, sir.

Q Incidentally Mr. Witness, where or in what particular place did this conversation between you and Manuel
T. Abelardo take place?

A Parking Area of Academy I, Gov. Santos corner Aguirre St., sir.

Q Now, what else happened after you talk[ed] with this Manuel T. Abelardo?

A He said I may be fooling him because he said I once fooled him when I ran away with his children which he
is going to take back, sir.

Q And what was your reply to that?

 A I answered I did not do that and he said that once he discovered that I did it he would box me, sir.

Q What else if any did he tell you at that time?

A He asked me who instructed me, sir.

Q Instructed you about what?

A To run away with the children, sir.

Q And what was your reply?

A None, he was the one who said was it your Ate Puppet? But I did not answer, sir.

Q What happened next when you failed to answer?

A Or my father in law?

Q And when he said his father in law to whom was he referring at that time?

A Mr. Honorio Carlos, sir.

Q After mentioning the name of his father-in-law Mr. Honorio Carlos what happened next?

A He told me Sabihin mo sa biyenan ko babarilin ko siya pag nakita ko siya.

Q Where was Manuel Abelardo at that particular time when he told this threatening remark against Honorio
Carlos?

A He was inside his car in Aguirre St., sir.

Q How about you where were you approximately at that particular time when he narrated that message to
you threatening the herein plaintiff?

A I was outside looking in his vehicle at Aguirre St., sir.

xxx

Q And what was your reply or reaction when he made this threatening remarks?

A None, because he left. I was left behind, sir. [23]

This testimony was in part corroborated by an entry dated May 28, 1994 in the Police Blotter of the Paranaque Police
Station narrating the aforementioned incident. [24]

The testimonies of these witnesses on the two separate incidents of threat are positive, direct and straightforward.
Petitioner also declared on the witness stand that on several occasions, he received telephone calls from respondent
cursing and threatening him. [25] These incidents of threat were also evidenced by a letter written by respondents wife and
addressed to her father-in-law (father of respondent).[26] The letter recounted the instances when threats were made by
her husband against petitioner, particularly, the incident reported by Pajarin and the threats made by respondent through
the telephone. [27]

All these circumstances sufficiently establish that threats were directed by respondent against petitioner justifying the
award of moral damages in favor of petitioner. However, the Court finds the amount of P500,000.00 as moral damages
too exorbitant under the circumstances and the same is reduced to P50,000.00. The exemplary damages and attorneys
fees are likewise reduced to P20,000.00 and P50,000.00, respectively.
 WHEREFORE, the petition is hereby GRANTED and the decision of the Court of Appeals in CA GR-CV No. 54464 is
MODIFIED in that respondent is ordered to pay petitioner the amounts of (1) US$25,000 or its equivalent in Philippine
currency at the time of payment, plus legal interest from August 4, 1994, until fully paid; (2) P50,000.00 as moral damages;
(3) P20,000.00 as exemplary damages; and (4) P50,000.00 as attorneys fees.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur.

[1] Paragraph 3 of Complaint, Records, p. 2.1 The amount was in full payment of the property.
[2] Paragraph 4, id.
[3] Paragraph 5, id.
[4] Paragraph 6, id., at 2-3.
[5] Id.
[6] Paragraphs 7-9, id., at 3-4.
[7] Paragraph 4 of answer, id., at 25.
[8] Paragraphs 5-6, id., at .25-26.
[9] Defendant Manuel Abelardos Answer, id., at 17-19.
[10] Id., at 19-20.
[11] Rollo, p. 59.
[12] Id., at 80-81.
[13] Exhibits, p. 1.
[14] Id., at 11.
[15] Id., at 10.
[16] Id., at 30-32.
[17] Id.
[18] supra, Note 15.
[19] Id., at. 19-26.
[20] TSN of April 18, 1995, pp. 6-15.
[21] Exhibits, p. 8.
[22] Id., at 7.
[23] TSN of March 16, 1995, pp. 7-12.
[24] Exhibits, p. 9.
[25] TSN of January 17, 1995, pp. 22-23, 32.
[26] Exhibits, pp. 12-15.
[27] Id.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-25355 August 28, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
FROILAN LAGRIMAS, accused,
HEIRS OF PELAGIO CAGRO, heirs-appellants,
MERCEDES AGUIRRE DE LAGRIMAS, movant-appellee.

Socrates G. Desales for heirs-appellants.

Marciano Chitongco for movant-appellee.

FERNANDO, J.:

The Civil Code, under the conditions therein specified, recognizes the liability of the conjugal partnership for fines and
indemnities imposed upon either husband or wife "after the responsibilities enumerated in article 161 have been
covered," in the absence of any separate property of the offending spouse or its insufficiency. 1 How such an obligation
"may be enforced against the partnership assets" is the question, one of first impression, raised in this appeal from a lower
court order, based on the assumption of the total exemption of the conjugal partnership from the liability thus incurred,
prior to the stage of liquidation. The result was to set aside the preliminary attachment and thereafter the writ of
execution in favor of the heirs of the murdered victim, appellants before us, the judgment against the accused imposing
not only the penalty of reclusion perpetua but also the indemnification to such heirs having attained the status of finality.
In view of the failure, apparent on the face of the appealed order, to respect what the Civil Code ordains, we reverse
and remand the case for further proceedings.

The brief of appellants, the heirs of Pelagio Cagro, the murdered victim, discloses that on February 19, 1960 an
information was filed against the accused, Froilan Lagrimas, for the above murder committed on February 15, 1960 in
Pambujan, Samar. Thereafter, appellants as such heirs, filed on February 27, 1960 a motion for the issuance of a writ of
preliminary attachment on the property of the accused, such motion being granted in an order of March 5, 1960. After
trial, the lower court found the accused guilty of the crime charged and sentenced him to suffer the penalty of reclusion
perpetua and to indemnify the appellants as such heirs in the sum of P6,000.00 plus the additional sum of P10,000.00 in
the concept of damages, attorney's fees and burial expenses. An appeal from the judgment was elevated to this Court
by the accused but thereafter withdrawn, the judgment, therefore, becoming final on October 11, 1962.

A writ of execution to cover the civil indemnity was issued by the lower court upon motion of appellants. A levy was had
on eleven parcels of land in the province declared for tax purposes in the name of the accused. The sale thereof at
public auction was scheduled on January 5, 1965 but on December 29, 1964 the wife of the accused, Mercedes Aguirre
de Lagrimas, filed a motion to quash the writ of attachment as well as the writ of execution with the allegation that the
property levied upon belonged to the conjugal partnership and, therefore, could not be held liable for the pecuniary
indemnity the husband was required to pay. The then judge of the lower court granted such motion declaring null and
void the order of attachment and the writ of execution, in accordance with Article 161 of the new Civil Code. Another
judge of the same lower court set aside the above order, sustaining the legality of the preliminary attachment as well as
the writ of execution. Thereafter, upon appellee filing a motion for the reconsideration of the above order giving due
course to the writ of execution, a third judge, then presiding over such court, the Hon. Ignacio Mangosing, revived the
original order of March 5, 1960, declaring such attachment and the writ of execution thereafter issued as null and void.

This order of August 7, 1965, now on appeal, was premised on the following considerations: "It can be readily seen from
the above-quoted provisions of law that only debts contracted by the husband or the wife before the marriage, and
those of fines and indemnities imposed upon them, may be enforced against the partnership assets after the charges
enumerated in article 161 have been covered. So that as long as the obligations mentioned in said article 161 have not
been paid, the assets of the partnership cannot be made to answer for indemnities like the one being sought to be
enforced in the instant case. And, before the obligations enumerated in said article 161 can be paid, the conjugal
partnership properties should first, by necessity, be liquidated, and liquidation can take place only after the dissolution of
the partnership thru the occurrence of any of the causes mentioned in article 175 of the same Code, one of which is
death of one of the spouses. Since both are still living there cannot be any dissolution, imprisonment for life of the
husband notwithstanding, in the absence of a judicial separation of properly decreed in accordance with the provisions
of article 191 thereof. Moreover, the fines and indemnities sought to be charged against the ganancial properties of the
accused and his wife are not such debts and obligations contracted by said accused for the benefit of the conjugal
partnership." 2

The conclusion arrived at by Judge Mangosing follows: "We sympathize with the predicament of the widow and other
heirs of the deceased Pelagio Cagro, but the law is clear on the matter. The indemnities adjudged by the Court in their
favor may only be charged against the exclusive properties of the accused if he has any, or against his share in the
partnership assets after liquidation thereof if any still remains after the payment of all the items enumerated in article 161
of the said Civil Code." 3

Hence, this appeal, the heirs of Pelagio Cagro assigning as sole error the quashing and annulling of the writs of
attachment and execution aforesaid. As stated at the outset, we find the appeal meritorious.

The applicable Civil Code provision 4 is not lacking in explicitness. Fines and indemnities imposed upon either husband or
wife "may be enforced against the partnership assets after the responsibilities enumerated in article 161 have been
covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; ... ." It is quite plain,
therefore, that the period during which such a liability may be enforced presupposes that the conjugal partnership is still
existing. The law speaks of "partnership assets." It contemplates that the responsibilities to which enumerated in Article
161, chargeable against such assets, must be complied with first. It is thus obvious that the termination of the conjugal
partnership is not contemplated as a prerequisite. Whatever doubt may still remain should be erased by the concluding
portion of this article which provides that "at the time of the liquidation of the partnership such spouse shall be charged
for what has been paid for the purposes above-mentioned."

What other conclusion can there be than that the interpretation placed upon this provision in the challenged order is at
war with the plain terms thereof? It cannot elicit our acceptance. Nor is the reason for such a codal provision difficult to
discern. It is a fundamental postulate of our law that every person criminally liable for felony is also civilly liable. 5 The
accused, Froilan Lagrimas, was, as noted, found guilty of the crime of murder and sentenced to reclusion perpetua as
well as to pay the indemnification to satisfy the civil liability incumbent upon him. If the appealed order were to be
upheld, he would be in effect exempt therefrom, the heirs of the offended party being made to suffer still further.

It would follow, therefore, that the Civil Code provision, as thus worded, precisely minimizes the possibility that such
additional liability of an accused would be rendered nugatory. In doing justice to the heirs of the murdered victim, no
injustice is committed against the family of the offender. It is made a condition under this article of the Civil Code that
the responsibilities enumerated in Article 161, covering primarily the maintenance of the family and the education of the
children of the spouses or the legitimate children of one of them as well as other obligations of a preferential character,
are first satisfied. It is thus apparent that the legal scheme cannot be susceptible to the charge that for a transgression of
the law by either husband or wife, the rest of the family may be made to bear burdens of an extremely onerous
character.

The next question is how practical effect would be given this particular liability of the conjugal partnership for the
payment of fines and indemnities imposed upon either husband or wife? In the brief for appellants, the heirs of Pelagio
Cagro, they seek the opportunity to present evidence as to how the partnership assets could be made to respond, this
on the assumption that the property levied upon does not belong exclusively to the convicted spouse.

In Lacson v. Diaz, 6 which deals with the satisfaction of the debt contracted by husband or wife before marriage by the
conjugal partnership, likewise included in this particular article, it was held: "Considering that the enforceability of the
personal obligations of the husband or wife, against the conjugal assets, forms the exception to the general rule, it is
incumbent upon the one who invokes this provision or the creditor to show that the requisites for its applicability are
obtaining."

Without departing from the principle thus announced, we make this further observation. Considering that the obligations
mentioned in Article 161 are peculiarly within the knowledge of the husband or of the wife whose conjugal partnership is
made liable, the proof required of the beneficiaries of the indemnity should not be of the most exacting kind, ordinary
credibility sufficing. Otherwise, the husband or the wife, as the case may be, representing the conjugal partnership, may
find the temptation to magnify its obligation irresistible so as to defeat the right of recovery of the family of the offended
party. That result is to be avoided. The lower court should be on the alert, therefore, in the appraisal of whatever
evidence may be offered to assure compliance with this codal provision.

WHEREFORE, the appealed order of August 7, 1965 is set aside and the case remanded to the court of origin for the
reception of evidence in accordance with this opinion. With costs against appellee Mercedes Aguirre de Lagrimas.

Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Capistrano, Teehankee and Barredo, JJ., concur.
Reyes, J.B.L. and Zaldivar, JJ., are on leave.

Footnotes

1According to Article 163 of the Civil Code: "The payment of debts contracted by the husband or the wife
before the marriage shall not be charged to the conjugal partnership. Neither shall the fines and pecuniary
 indemnities imposed upon them be charged to the partnership. However, the payment of debts contracted by
the husband or the wife before the marriage, and that of fines and indemnities imposed upon them, may be
enforced against the partnership assets after the responsibilities enumerated in article 161 have been covered,
if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the
liquidation of the partnership such spouse shall be charged for what has been paid for the purposes above-
mentioned." Article 161 in turn provides: "The conjugal partnership shall be liable for: (1) All debts and
obligations contracted by the husband for the benefit of the conjugal partnership, and those contracted by
the wife, also for the same purpose, in the cases where she may legally bind the partnership; (2) Arrears or
income due, during the marriage, from obligations which constitute a charge upon property of either spouse or
of the partnership; (3) Minor repairs or for mere preservation made during the marriage upon the separate
property of either the husband or the wife; major repairs shall not be charged to the partnership; (4) Major or
minor repairs upon the conjugal partnership property; (5) The maintenance of the family and the education of
the children of both husband and wife, and of legitimate children of one of the spouses; (6) Expenses to permit
the spouses to complete a professional, vocational or other course."

2Record on Appeal, pp. 72-73.

3Ibid., pp. 43-74.

4Article 163, Civil Code.

5Article 100, Revised Penal Code.

6L-19346, May 31, 1965.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-28593 June 25, 1968

JUAN YSASI, petitioner,

vs.
HON. JOSE F. FERNANDEZ, as Presiding Judge of the Court of First Instance of Negros Occidental (Bacolod City, Branch V),
MARIA ALDECOA DE YSASI and JON YSASI, respondents.

Jose W. Diokno, Hugo P. Rodriguez and Hilado and Hilado for petitioner.
Mendoza and Hernandez and Rodolfo J. Herman for respondents.

SANCHEZ, J.:

The core of the problem we are called upon to resolve — simply stated — is whether a husband may be deprived of his
powers of administration over conjugal partnership properties upon mere allegations of abuse of such powers.

This issue came about upon facts to be narrated below:

Juan Ysasi, petitioner, and Maria Aldecoa de Ysasi, one of the respondents, are husband and wife. Petitioner concedes
for present purposes1 that Hacienda Manucao-A, situated in Hinigaran, Negros Occidental, is conjugal property of said
spouses.2 Since 1948, the spouses have been commuting between the Philippines and Spain where they also own real
properties. But the husband shuttled more frequently between the two countries on account of the management of the
hacienda.1ªvvphi1.nêt
Hacienda Manucao-A had been managed by one Valentin Bilbao, from 1952 to 1965. Juan Ysasi, however, maintained
overall supervision. Then in 1965, Jon Ysasi, a son of the spouses, took over as manager. In 1966, Juan Ysasi instructed their
younger son, Jose Mari Ysasi, to assist Jon Ysasi in the management of the hacienda. Jon Ysasi did not allow him to
participate. He also refused to let Jose Mari act as Cashier of the hacienda even as the latter was so designated by the
father. Dissension between the two developed.

This prompted the wife to leave Spain for the Philippines in May of 1967. Her mission was to iron out the differences
between the two brothers and to inquire into the affairs of the hacienda. For this purpose, she brought with her a letter
from Juan Ysasi to the sons and a list of matters she was to ascertain and report to her husband. Claim is made by the
husband that she never made any such report.

In June of 1967, Jon Ysasi resigned from his position as manager of the hacienda in a letter addressed to his parents. The
resignation was accepted by Juan Ysasi. Whereupon, Valentin Bilbao, who was then in Spain, was designated by the
husband to take his son's place.

Valentin Bilbao arrived in this country on August 19, 1967. Jon Ysasi refused to turn over the hacienda to Bilbao upon the
claim that his mother already took possession and administration of the hacienda since his resignation in June of 1967.

Subsequently, the wife filed a verified petition dated September 5, 1967 in the Court of First Instance of Negros
Occidental (Bacolod City, Branch V).3 She sought the administration of the conjugal partnership properties, or, in the
alternative, a separation of property with ex parte petition that she be appointed receiver pendente lite. Her grounds
were that her husband was not in a position to manage the conjugal properties directly and personally owing to his age
(77 years) and his blind left eye; and that he abandoned petitioner and their conjugal properties without just cause. The
respondent judge granted her ex parte petition on the same day.

Forthwith, the husband, through counsel, moved to set aside the order appointing his wife receiver pendente lite. The
wife opposed.

On September 22, 1967, respondent wife filed a supplemental petition. She asked respondent judge to modify the
September 5, 1967 order by appointing instead a disinterested person, preferably the Bank of the Philippine Islands, as
receiver if said disputed order cannot be fully and immediately implemented.

Answer to the petition and the supplemental petition was filed on October 3, 1967.

The September 5, 1967 order was set aside by respondent judge on October 7. The wife's October 14 motion to
reconsider failed of its purpose on October 23, 1967.

Juan Ysasi, in his answer of October 3, traversed the averments in his wife's petition, set up affirmative defenses and
counterclaim, and sued out a third-party complaint against Jon Ysasi. At the same time, Juan Ysasi moved for the
issuance of a writ of preliminary mandatory and preventive injunction to compel his wife and son to turn over to Valentin
Bilbao Hacienda Manucao-A and to make them desist from interfering with Bilbao's administration of the hacienda. The
issuance of a writ of preliminary mandatory and preventive injunction was opposed by wife and son.

On October 30, 1967, Jon Ysasi answered Juan Ysasi's third-party complaint heretofore adverted to.

Then, on November 10, 1957, the Bank of the Philippine Islands, mortgagee of the hacienda, filed an Urgent Motion to
Authorize Crop Loan Releases.

The following day, the husband, Juan Ysasi — who earlier that same month arrived from Spain — asked the court that
the releases be made to him. Objection thereto was registered by the wife.

The wife's Reply and Answer to the Counterclaim was filed on November 10, 1967. Her petition was further amended an
November 22, 1967 to elaborate on her charges of fraud. Answer was made by the husband on November 30, 1967.

On December 22, 1967, respondent judge came out with the disputed order. The dispositive portion thereof reads:

WHEREFORE, in view of the foregoing considerations the petition for preliminary mandatory injunction is hereby
denied.
 With respect to the release of the crop loan lines, the Court shall resolve this question at a later date. In the
meantime the Bank of the Philippine Islands is hereby ordered to give monthly allowance of P1,500.00, each, to
the plaintiff and defendant, any time upon demand from receipt of this order. In this connection, it is hereby
announced that if within a period of ten (10) days from receipt of this order no serious objection is received
from any of the parties, Hacienda Manucao-A shall be ordered place under the receivership of the Bank of the
Philippine Islands who shall use to the operation and financing of the Hacienda out of the crop loan previously
granted by said Bank, and the profits shall be liquidated after the termination of this case. However, before the
property is taken from the possession of the plaintiff wife, the Bank of the Philippine Islands shall be ordered to
pay all expenses incurred by her in connection with the operation of the Hacienda during the period of her
possession.

Petitioner's move to reconsider was rejected by respondent judge on January 17, 1968.

Came the present petition before this Court. Petitioner here seeks, on certiorari, to annul the orders of December 22,
1967 and January 17, 1968; and a mandatory injunction to compel private respondents Maria Aldecoa de Ysasi and Jon
Ysasi to turn over to petitioner the possession and control of Hacienda Manucao-A.

1. The husband is the administrator of the conjugal partnership. This is a right clearly granted to him by law.4 More, the
husband is the sole administrator. The wife is not entitled — as of right — to joint administration.5 The husband may even
enforce right of possession against the wife who has taken cover the administration without his consent. And, the wife
may be punished for contempt for her refusal to deliver to him the conjugal assets.6 She may be required to render full
and complete accounting of such properties.7

2. Of course, it is the wife's prerogative to ask the courts to remove administration of the conjugal properties from the
husband for her protection. This Article 167 of the Civil Code concedes, thus:

Art. 167. In case of abuse of powers of administration of the conjugal partnership property by the husband, the
courts, on petition of the wife, may provide for a receivership, or administration by the wife, or separation of
property.8

Respondent wife has taken advantage of this codal provision by instituting Civil Case 8306 aforesaid. Her main gripe is
abandonment and fraud amounting to abuse of powers of administration. As if this were not enough, she asked for the
appointment of a receiver pendente lite, that is, before she had adduced evidence to confirm her assertions of fraud.
Respondent judge, at first, granted her petition in an order dated September 5, 1967, only to set it aside afterwards.

But when petitioner asked, by way of a preliminary mandatory injunction, that respondents — wife and son — be
compelled to deliver the hacienda to the manager, Valentin Bilbao, respondent judge refused. Private respondents'
insistent assertions of fraud on the part of the husband could have befuddled the issue, misdirected respondent judge's
course of action. Well to remember, however, are Tolentino's observations on this point, viz:

On the other hand, the changes introduced by our code have not relegated the husband to the position of an
ordinary administrator of another's property. He himself has an interest in the community property. Although
certain rights are now recognized in the wife, authorizing her to intervene in and question some acts of the
husband, the code still assumes the existence of a residuary authority in the latter with respect to the
administration of community property. The grant of certain rights to the wife is specific, and must be restrictively
construed, so that all others not granted expressly cannot be considered as enjoyed by her. The right to require
the husband to render an accounting is not among those granted to her.9

Neither may the husband be divested of his administration upon mere assertions of fraud. These must first be proven. The
law presumes good faith. We prefer to adhere to, rather than depart from, the wise rule: Fraus est odiosa et non
praesumenda.

Here, we have but bare allegations of fraud. Petitioner husband, accordingly, is entitled to take over possession and
management of the hacienda.

3. Respondent judge's announced intention to place the hacienda under receivership of the Bank of the Philippine
Islands is a virtual reversal of his order setting aside the appointment of a receiver in the person of the wife. Receivership
has been rightfully tagged as a harsh remedy. It is to be warranted with extreme caution.10 The purpose of receivership,
as a provisional remedy, is to preserve or protect the rights of the parties during the pendency of the main action. To
apply this remedy to the case at hand is to lose sight of its purpose. At stake here are the husband's power of
administration and the wife's right to be protected from abuse thereof. The wife's right rests upon proof of such abuse.
Absent that proof, the wife's right does not exist.

Receivership is also aimed at the preservation of, and at making more secure, existing rights. Certainly, it cannot be use
as an instrument for the destruction of those rights. The conclusion remains: Petitioner may not be forced to surrender his
statutory right to administer the conjugal properties by the simple expedient of merely charging him with the naked
averment that he has forfeited that right.

Receivership at this stage is improper.

4. As we perceive the necessity of protecting petitioner husband's right to management, so are we concerned with the
possible abuses that may ensue therefrom and which may result in damage to the wife. As we balance in one equation
the interests of husband and wife in the premises, we feel that mandatory injunction should issue but only upon bond.11

For the reasons given —

We vote to grant the petition for certiorari;

We strike down the orders of respondent judge of December 22, 1967 and January 17, 1968 complained of, in Civil Case
8306, and declare them null and void; and

We direct respondent judge to issue a writ of preliminary mandatory injunction ordering and compelling respondents
Maria Aldecoa de Ysasi and Jon Ysasi to turn over to petitioner the possession and control of Hacienda Manucao-A, and
all the agricultural machinery, implements, work animals, and other properties used in the operation of the hacienda, as
well as its records, papers, documents and books of accounts, upon petitioner's filing, and said judge's approval, of a
bond in the sum of P50,000 to answer for any and all damages which private respondents or any of them may suffer by
reason of the issuance of said injunction.

No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Angeles and Fernando, JJ., concur.

Footnotes

1Petition herein, p. 11.

2According to petitioner, the property was acquired in 1951. Petitioner's Answer to the petition below, p. 6;
Rollo, p. 91.

3Civil
Case 8306 entitled "Maria Aldecoa de Ysasi, Petitioner, versus Juan Ysasi, Defendant; Jon Ysasi, Third-Party
Defendant."

4Article 165, Civil Code.

5De la Rosa vs. Barruga (unreported), L-2368, June 30, 1950.

6Perkins vs. Perkins, 57 Phil. 205, 211.

7Perkins vs. Director of Prisons, 58 Phil. 271, 281.

8Emphasis supplied.

9I Tolentino, Civil Code of the Philippines, 1960 ed., p. 413; Emphasis supplied.

10Velasco vs. Go Chuico, 28 Phil. 39, 41; Tuason vs. Concepcion, 54 Phil. 408, 419; Claudio vs. Zandueta, 64 Phil.
812, 818. See also: Ylarde vs. Enriquez, 78 Phil. 527, 534.
 11See petition herein, pp. 24-25.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-60174 February 16, 1983

EDUARDO FELIPE, HERMOGENA V. FELIPE AND VICENTE V. FELIPE, petitioners,

vs.
HEIRS OF MAXIMO ALDON, NAMELY: GIMENA ALMOSARA, SOFIA ALDON, SALVADOR ALDON, AND THE HONORABLE
COURT OF APPEALS, respondents.

Romulo D. San Juan for petitioner.

Gerundino Castillejo for private respondent.

ABAD SANTOS, J.:

Maximo Aldon married Gimena Almosara in 1936. The spouses bought several pieces of land sometime between 1948
and 1950. In 1960-62, the lands were divided into three lots, 1370, 1371 and 1415 of the San Jacinto Public Land
Subdivision, San Jacinto, Masbate.

In 1951, Gimena Almosara sold the lots to the spouses Eduardo Felipe and Hermogena V. Felipe. The sale was made
without the consent of her husband, Maximo.

On April 26, 1976, the heirs of Maximo Aldon, namely his widow Gimena and their children Sofia and Salvador Aldon,
filed a complaint in the Court of First Instance of Masbate against the Felipes. The complaint which was docketed as Civil
Case No. 2372 alleged that the plaintiffs were the owners of Lots 1370, 1371 and 1415; that they had orally mortgaged
the same to the defendants; and an offer to redeem the mortgage had been refused so they filed the complaint in
order to recover the three parcels of land.

The defendants asserted that they had acquired the lots from the plaintiffs by purchase and subsequent delivery to
them. The trial court sustained the claim of the defendants and rendered the following judgment:

a. declaring the defendants to be the lawful owners of the property subject of the present litigation;

b. declaring the complaint in the present action to be without merit and is therefore hereby ordered
dismissed;

c. ordering the plaintiffs to pay to the defendants the amount of P2,000.00 as reasonable attorney's
fees and to pay the costs of the suit.

The plaintiffs appealed the decision to the Court of Appeals which rendered the following judgment:

PREMISES CONSIDERED, the decision appealed from is hereby REVERSED and SET ASIDE, and a new
one is hereby RENDERED, ordering the defendants-appellees to surrender the lots in question as well as
the plaintiffs'-appellants' muniments of title thereof to said plaintiffs-appellants, to make an
accounting of the produce derived from the lands including expenses incurred since 1951, and to
solidarity turn over to the plaintiffs-appellants the NET monetary value of the profits, after deducting
the sum of P1,800.00. No attorney's fees nor moral damages are awarded for lack of any legal
justification therefor. No. costs.
The ratio of the judgment is stated in the following paragraphs of the decision penned by Justice Edgardo L. Paras with
the concurrence of Justices Venicio Escolin and Mariano A. Zosa:

One of the principal issues in the case involves the nature of the aforementioned conveyance or
transaction, with appellants claiming the same to be an oral contract of mortgage or antichresis, the
redemption of which could be done anytime upon repayment of the P1,800.00 involved (incidentally
the only thing written about the transaction is the aforementioned receipt re the P1,800). Upon the
other hand, appellees claim that the transaction was one of sale, accordingly, redemption was
improper. The appellees claim that plaintiffs never conveyed the property because of a loan or
mortgage or antichresis and that what really transpired was the execution of a contract of sale thru a
private document designated as a 'Deed of Purchase and Sale' (Exhibit 1), the execution having
been made by Gimena Almosara in favor of appellee Hermogena V. Felipe.

After a study of this case, we have come to the conclusion that the appellants are entitled to recover
the ownership of the lots in question. We so hold because although Exh. 1 concerning the sale made
in 1951 of the disputed lots is, in Our opinion, not a forgery the fact is that the sale made by Gimena
Almosara is invalid, having been executed without the needed consent of her husband, the lots being
conjugal. Appellees' argument that this was an issue not raised in the pleadings is baseless,
considering the fact that the complaint alleges that the parcels 'were purchased by plaintiff Gimena
Almosara and her late husband Maximo Aldon' (the lots having been purchased during the existence
of the marriage, the same are presumed conjugal) and inferentially, by force of law, could not, be
disposed of by a wife without her husband's consent.

The defendants are now the appellants in this petition for review. They invoke several grounds in seeking the reversal of
the decision of the Court of Appeals. One of the grounds is factual in nature; petitioners claim that "respondent Court of
Appeals has found as a fact that the 'Deed of Purchase and Sale' executed by respondent Gimena Almosara is not a
forgery and therefore its authenticity and due execution is already beyond question." We cannot consider this ground
because as a rule only questions of law are reviewed in proceedings under Rule 45 of the Rules of Court subject to well-
defined exceptions not present in the instant case.

The legal ground which deserves attention is the legal effect of a sale of lands belonging to the conjugal partnership
made by the wife without the consent of the husband.

It is useful at this point to re-state some elementary rules: The husband is the administrator of the conjugal partnership.
(Art. 165, Civil Code.) Subject to certain exceptions, the husband cannot alienate or encumber any real property of the
conjugal partnership without the wife's consent. (Art. 166, Idem.) And the wife cannot bind the conjugal partnership
without the husband's consent, except in cases provided by law. (Art. 172, Idem.)

In the instant case, Gimena, the wife, sold lands belonging to the conjugal partnership without the consent of the
husband and the sale is not covered by the phrase "except in cases provided by law." The Court of Appeals described
the sale as "invalid" - a term which is imprecise when used in relation to contracts because the Civil Code uses specific
names in designating defective contracts, namely: rescissible (Arts. 1380 et seq.), voidable (Arts. 1390 et
seq.), unenforceable (Arts. 1403, et seq.), and void or inexistent (Arts. 1409 et seq.)

The sale made by Gimena is certainly a defective contract but of what category? The answer: it is a voidable contract.

According to Art. 1390 of the Civil Code, among the voidable contracts are "[T]hose where one of the parties is
incapable of giving consent to the contract." (Par. 1.) In the instant case-Gimena had no capacity to give consent to
the contract of sale. The capacity to give consent belonged not even to the husband alone but to both spouses.

The view that the contract made by Gimena is a voidable contract is supported by the legal provision that contracts
entered by the husband without the consent of the wife when such consent is required, are annullable at her instance
during the marriage and within ten years from the transaction questioned. (Art. 173, Civil Code.)

Gimena's contract is not rescissible for in such contract all the essential elements are untainted but Gimena's consent
was tainted. Neither can the contract be classified as unenforceable because it does not fit any of those described in
Art. 1403 of the Civil Code. And finally, the contract cannot be void or inexistent because it is not one of those
mentioned in Art. 1409 of the Civil Code. By process of elimination, it must perforce be a voidable contract.

The voidable contract of Gimena was subject to annulment by her husband only during the marriage because he was
the victim who had an interest in the contract. Gimena, who was the party responsible for the defect, could not ask for
its annulment. Their children could not likewise seek the annulment of the contract while the marriage subsisted because
they merely had an inchoate right to the lands sold.

The termination of the marriage and the dissolution of the conjugal partnership by the death of Maximo Aldon did not
improve the situation of Gimena. What she could not do during the marriage, she could not do thereafter.

The case of Sofia and Salvador Aldon is different. After the death of Maximo they acquired the right to question the
defective contract insofar as it deprived them of their hereditary rights in their father's share in the lands. The father's
share is one-half (1/2) of the lands and their share is two-thirds (2/3) thereof, one-third (1/3) pertaining to the widow.

The petitioners have been in possession of the lands since 1951. It was only in 1976 when the respondents filed action to
recover the lands. In the meantime, Maximo Aldon died.

Two questions come to mind, namely: (1) Have the petitioners acquired the lands by acquisitive prescription? (2) Is the
right of action of Sofia and Salvador Aldon barred by the statute of limitations?

Anent the first question, We quote with approval the following statement of the Court of Appeals:

We would like to state further that appellees [petitioners herein] could not have acquired ownership
of the lots by prescription in view of what we regard as their bad faith. This bad faith is revealed by
testimony to the effect that defendant-appellee Vicente V. Felipe (son of appellees Eduardo Felipe
and Hermogena V. Felipe) attempted in December 1970 to have Gimena Almosara sign a ready-
made document purporting to self the disputed lots to the appellees. This actuation clearly indicated
that the appellees knew the lots did not still belong to them, otherwise, why were they interested in a
document of sale in their favor? Again why did Vicente V. Felipe tell Gimena that the purpose of the
document was to obtain Gimena's consent to the construction of an irrigation pump on the lots in
question? The only possible reason for purporting to obtain such consent is that the appellees knew
the lots were not theirs. Why was there an attempted improvement (the irrigation tank) only in 1970?
Why was the declaration of property made only in 1974? Why were no attempts made to obtain the
husband's signature, despite the fact that Gimena and Hermogena were close relatives? An these
indicate the bad faith of the appellees. Now then, even if we were to consider appellees' possession
in bad faith as a possession in the concept of owners, this possession at the earliest started in 1951,
hence the period for extraordinary prescription (30 years) had not yet lapsed when the present action
was instituted on April 26, 1976.

As to the second question, the children's cause of action accrued from the death of their father in 1959 and they had
thirty (30) years to institute it (Art. 1141, Civil Code.) They filed action in 1976 which is well within the period.

WHEREFORE, the decision of the Court of Appeals is hereby modified. Judgment is entered awarding to Sofia and
Salvador Aldon their shares of the lands as stated in the body of this decision; and the petitioners as possessors in bad
faith shall make an accounting of the fruits corresponding to the share aforementioned from 1959 and solidarity pay their
value to Sofia and Salvador Aldon; costs against the petitioners.

SO ORDERED.

Concepcion Jr., Guerrero and De Castro, JJ., concur.

Makasiar, (Chairman), J., In the result.

Escolin J., took no part.

Separate Opinions
AQUINO, J., concurring:

I concur in the result. The issue is whether the wife's sale in 1651 of an unregistered sixteen-hectare conjugal land, without
the consent of her husband (he died in 1959), can be annulled in 1976 by the wife and her two children.

As a rule, the husband cannot dispose of the conjugal realty without the wife's consent (Art. 166, Civil Code). Thus, a sale
by the husband of the conjugal realty without the wife's consent was declared void (Tolentino vs. Cardenas, 123 Phil.
517; Villocino vs. Doyon, L-19797, December 17, 1966, 18 SCRA 1094 and L-28871, April 25, 1975, 63 SCRA 460; Reyes vs. De
Leon, L-22331, June 6,1967, 20 SCRA 369; Bucoy vs. Paulino, L-25775, April 26, 1968, 23 SCRA 248; Tinitigan vs. Tinitigan, L-
45418, October 30,1980, 100 SCRA 619).

With more reason, the wife cannot make such a disposition without the husband's consent since the husband is the
administrator of the conjugal assets.

In the instant case, the Court of Appeals did not err in voiding the wife's sale of the conjugal land without the husband's
consent. As that sale is contrary to law, the action to have it declared void or inexistent does not prescribe.

Moreover, there are indications that the contract between the parties was an antichresis, a transaction which is very
common in rural areas.

Separate Opinions

AQUINO, J., concurring:

I concur in the result. The issue is whether the wife's sale in 1651 of an unregistered sixteen-hectare conjugal land, without
the consent of her husband (he died in 1959), can be annulled in 1976 by the wife and her two children.

As a rule, the husband cannot dispose of the conjugal realty without the wife's consent (Art. 166, Civil Code). Thus, a sale
by the husband of the conjugal realty without the wife's consent was declared void (Tolentino vs. Cardenas, 123 Phil.
517; Villocino vs. Doyon, L-19797, December 17, 1966, 18 SCRA 1094 and L-28871, April 25, 1975, 63 SCRA 460; Reyes vs. De
Leon, L-22331, June 6,1967, 20 SCRA 369; Bucoy vs. Paulino, L-25775, April 26, 1968, 23 SCRA 248; Tinitigan vs. Tinitigan, L-
45418, October 30,1980, 100 SCRA 619).

With more reason, the wife cannot make such a disposition without the husband's consent since the husband is the
administrator of the conjugal assets.

In the instant case, the Court of Appeals did not err in voiding the wife's sale of the conjugal land without the husband's
consent. As that sale is contrary to law, the action to have it declared void or inexistent does not prescribe.

Moreover, there are indications that the contract between the parties was an antichresis, a transaction which is very
common in rural areas.

FIRST DIVISION

[G.R. No. 143826. August 28, 2003]

HEIRS OF IGNACIA AGUILAR-REYES, petitioners, vs. SPOUSES CIPRIANO MIJARES AND FLORENTINA MIJARES, respondents.

DECISION

YNARES-SANTIAGO, J.:
 Under the regime of the Civil Code, the alienation or encumbrance of a conjugal real property requires the consent
of the wife. The absence of such consent renders the entire transaction[1] merely voidable and not void.[2] The wife may,
during the marriage and within ten years from the transaction questioned, bring an action for the annulment of the
contract entered into by her husband without her consent.[3]

Assailed in this petition for review on certiorari are the January 26, 2000 Decision[4] and June 19, 2000, Resolution[5] of
the Court of Appeals in CA-G.R. No. 28464 which declared respondents as purchasers in good faith and set aside the May
31, 1990 and June 29, 1990 Orders of the Regional Trial Court of Quezon City, Branch 101, in Civil Case No. Q-48018.

The controversy stemmed from a dispute over Lot No. 4349-B-2,[6] approximately 396 square meters, previously
covered by Transfer Certificate of Title (TCT) No. 205445, located in Balintawak, Quezon City and registered in the name of
Spouses Vicente Reyes and Ignacia Aguilar-Reyes.[7] Said lot and the apartments built thereon were part of the spouses
conjugal properties having been purchased using conjugal funds from their garments business.[8]

Vicente and Ignacia were married in 1960, but had been separated de facto since 1974.[9] Sometime in 1984,
Ignacia learned that on March 1, 1983, Vicente sold Lot No. 4349-B-2 to respondent spouses Cipriano and Florentina Mijares
for P40,000.00.[10] As a consequence thereof, TCT No. 205445 was cancelled and TCT No. 306087 was issued on April 19,
1983 in the name of respondent spouses.[11] She likewise found out that Vicente filed a petition for administration and
appointment of guardian with the Metropolitan Trial Court of Quezon City, Branch XXI. Vicente misrepresented therein that
his wife, Ignacia, died on March 22, 1982, and that he and their 5 minor children were her only heirs.[12] On September 29,
1983, the court appointed Vicente as the guardian of their minor children.[13] Subsequently, in its Order dated October 14,
1983, the court authorized Vicente to sell the estate of Ignacia.[14]

On August 9, 1984, Ignacia, through her counsel, sent a letter to respondent spouses demanding the return of her
share in the lot. Failing to settle the matter amicably, Ignacia filed on June 4, 1996 a complaint[15] for annulment of sale
against respondent spouses. The complaint was thereafter amended to include Vicente Reyes as one of the
defendants.[16]

In their answer, respondent spouses claimed that they are purchasers in good faith and that the sale was valid
because it was duly approved by the court.[17] Vicente Reyes, on the other hand, contended that what he sold to the
spouses was only his share in Lot No. 4349-B-2, excluding the share of his wife, and that he never represented that the latter
was already dead.[18] He likewise testified that respondent spouses, through the counsel they provided him, took
advantage of his illiteracy by filing a petition for the issuance of letters of administration and appointment of guardian
without his knowledge.[19]

On February 15, 1990, the court a quo rendered a decision declaring the sale of Lot No. 4349-B-2 void with respect
to the share of Ignacia. It held that the purchase price of the lot was P110,000.00 and ordered Vicente to return thereof or
P55,000.00 to respondent spouses. The dispositive portion of the said decision, reads-

WHEREFORE, premises above considered, judgment is hereby rendered declaring the subject Deed of Absolute Sale,
dated March [1,] 1983 signed by and between defendants Vicente Reyes and defendant Cipriano Mijares NULL AND
VOID WITH RESPECT TO ONE-HALF (1/2) OF THE SAID PROPERTY;

The Register of Deeds of Quezon City is hereby ordered to cancel TCT No. 306083 (sic) in the names of defendant
spouses Cipriano Mijares and Florentina Mijares and to issue a new TCT in the name of the plaintiff Ignacia Aguilar-Reyes
as owner in fee simple of one-half (1/2) of said property and the other half in the names of defendant spouses Cipriano
Mijares and Florentin[a] Mijares, upon payment of the required fees therefore;

Said defendant spouses Mijares are also ordered to allow plaintiff the use and exercise of rights, as well as obligations,
pertinent to her one-half (1/2) ownership of the subject property;

Defendant Vicente Reyes is hereby ordered to reimburse P55,000.00 with legal rate of interest from the execution of the
subject Deed of Absolute Sale on March 1, 1983, to the defendant spouses Cipriano Mijares and Florentina Mijares which
corresponds to the one-half (1/2) of the actual purchase price by the said Mijares but is annulled in this decision (sic);

Defendant Vicente Reyes is hereby further ordered to pay plaintiff the amount of P50,000.00 by way of moral and
exemplary damages, plus costs of this suit.

SO ORDERED.[20]

Ignacia filed a motion for modification of the decision praying that the sale be declared void in its entirety and that
the respondents be ordered to reimburse to her the rentals they collected on the apartments built on Lot No. 4349-B-2
computed from March 1, 1983.
 On May 31, 1990, the trial court modified its decision by declaring the sale void in its entirety and ordering Vicente
Reyes to reimburse respondent spouses the purchase price of P110,000, thus

WHEREFORE, premises considered, judgment is hereby rendered declaring the subject Deed of Absolute Sale, dated
March 1, 1983 signed by and between defendants Vicente Reyes and defendant Cipriano Mijares as null and void ab
initio, in view of the absence of the wifes conformity to said transaction.

Consequent thereto, the Register of Deeds for Quezon City is hereby ordered to cancel TCT No. 306083 (sic) in the name
of Cipriano Mijares and Florentin[a] Mijares and issue a new TCT in the name of the plaintiff and defendant Ignacia
Aguilar-Reyes and Vicente Reyes as owners in fee simple, upon payment of required fees therefore.

Defendant Vicente Reyes is hereby ordered to pay the amount of one hundred ten thousand pesos (P110,000.00) with
legal rate of interest at 12% per annum from the execution of the subject Deed of Absolute Sale on March 1, 1983.

Further, defendant Vicente Reyes is ordered to pay the amount of P50,000.00 by way of moral and exemplary damages,
plus costs of this suit.

SO ORDERED.[21]

On motion[22] of Ignacia, the court issued an Order dated June 29, 1990 amending the dispositive portion of the May
31, 1990 decision by correcting the Transfer Certificate of Title of Lot No. 4349-B-2, in the name of Cipriano Mijares and
Florentina Mijares, from TCT No. 306083 to TCT No. 306087; and directing the Register of Deeds of Quezon City to issue a
new title in the name of Ignacia Aguilar-Reyes and Vicente Reyes. The Order likewise specified that Vicente Reyes should
pay Ignacia Aguilar-Reyes the amount of P50,000.00 as moral and exemplary damages.[23]

Both Ignacia Aguilar-Reyes and respondent spouses appealed the decision to the Court of Appeals.[24] Pending the
appeal, Ignacia died and she was substituted by her compulsory heirs.[25]

Petitioners contended that they are entitled to reimbursement of the rentals collected on the apartment built on Lot
No. 4349-B-2, while respondent spouses claimed that they are buyers in good faith. On January 26, 2000, the Court of
Appeals reversed and set aside the decision of the trial court. It ruled that notwithstanding the absence of Ignacias
consent to the sale, the same must be held valid in favor of respondents because they were innocent purchasers for
value.[26] The decretal potion of the appellate courts decision states

WHEREFORE, premises considered, the Decision appealed from and the Orders dated May 31, 1990 and June 29, 1990,
are SET ASIDE and in lieu thereof a new one is rendered

1. Declaring the Deed of Absolute Sale dated March 1, 1983 executed by Vicente Reyes in favor of spouses Cipriano
and [Florentina] Mijares valid and lawful;

2. Ordering Vicente Reyes to pay spouses Mijares the amount of P30,000.00 as attorneys fees and legal expenses; and

3. Ordering Vicente Reyes to pay spouses Mijares P50,000.00 as moral damages.

No pronouncement as to costs.

SO ORDERED.[27]

Undaunted by the denial of their motion for reconsideration,[28] petitioners filed the instant petition contending that
the assailed sale of Lot No. 4392-B-2 should be annulled because respondent spouses were not purchasers in good faith.

The issues for resolution are as follows: (1) What is the status of the sale of Lot No. 4349-B-2 to respondent spouses? (2)
Assuming that the sale is annullable, should it be annulled in its entirety or only with respect to the share of Ignacia? (3) Are
respondent spouses purchasers in good faith?

Articles 166 and 173 of the Civil Code,[29] the governing laws at the time the assailed sale was contracted, provide:

Art.166. Unless the wife has been declared a non compos mentis or a spendthrift, or is under civil interdiction or is
confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership
without the wifes consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same
Art. 173. The wife may, during the marriage and within ten years from the transaction questioned, ask the courts for the
annulment of any contract of the husband entered into without her consent, when such consent is required, or any act
or contract of the husband which tends to defraud her or impair her interest in the conjugal partnership property. Should
the wife fail to exercise this right, she or her heirs after the dissolution of the marriage, may demand the value of property
fraudulently alienated by the husband.

Pursuant to the foregoing provisions, the husband could not alienate or encumber any conjugal real property without
the consent, express or implied, of the wife otherwise, the contract is voidable.Indeed, in several cases[30] the Court had
ruled that such alienation or encumbrance by the husband is void. The better view, however, is to consider the transaction
as merely voidable and not void.[31]This is consistent with Article 173 of the Civil Code pursuant to which the wife could,
during the marriage and within 10 years from the questioned transaction, seek its annulment.[32]

In the case of Heirs of Christina Ayuste v. Court of Appeals,[33] it was categorically held that

There is no ambiguity in the wording of the law. A sale of real property of the conjugal partnership made by the husband
without the consent of his wife is voidable. The action for annulment must be brought during the marriage and within ten
years from the questioned transaction by the wife. Where the law speaks in clear and categorical language, there is no
room for interpretation there is room only for application.[34]

Likewise, in Spouses Guiang v. Court of Appeals,[35] the Court quoted with approval the ruling of the trial court that
under the Civil Code, the encumbrance or alienation of a conjugal real property by the husband absent the wifes consent,
is voidable and not void. Thus

Under Article 166 of the Civil Code, the husband cannot generally alienate or encumber any real property of the
conjugal partnership without the wifes consent. The alienation or encumbrance if so made however is not null and
void. It is merely voidable. The offended wife may bring an action to annul the said alienation or encumbrance. Thus, the
provision of Article 173 of the Civil Code of the Philippines, to wit:

Art. 173. The wife may, during the marriage and within ten years from the transaction questioned, ask the courts for the
annulment of any contract of the husband entered into without her consent, when such consent is required, or any act
or contract of the husband which tends to defraud her or impair her interest in the conjugal partnership property. Should
the wife fail to exercise this right, she or her heirs after the dissolution of the marriage, may demand the value of property
fraudulently alienated by the husband.

This particular provision giving the wife ten (10) years x x x during [the] marriage to annul the alienation or encumbrance
was not carried over to the Family Code. It is thus clear that any alienation or encumbrance made after August 3, 1988
when the Family Code took effect by the husband of the conjugal partnership property without the consent of the wife is
null and void

In the case at bar, there is no dispute that Lot No. 4349-B-2, is a conjugal property having been purchased using the
conjugal funds of the spouses during the subsistence of their marriage. It is beyond cavil therefore that the sale of said lot
to respondent spouses without the knowledge and consent of Ignacia is voidable. Her action to annul the March 1, 1983
sale which was filed on June 4, 1986, before her demise is perfectly within the 10 year prescriptive period under Article 173
of the Civil Code. Even if we reckon the period from November 25, 1978 which was the date when Vicente and the
respondent spouses entered into a contract concerning Lot No. 4349-B-2, Ignacias action would still be within the
prescribed period.

Anent the second issue, the trial court correctly annulled the voidable sale of Lot No. 4349-B-2 in its entirety. In Bucoy
v. Paulino,[36] a case involving the annulment of sale with assumption of mortgages executed by the husband without the
consent of the wife, it was held that the alienation or encumbrance must be annulled in its entirety and not only insofar as
the share of the wife in the conjugal property is concerned. Although the transaction in the said case was declared void
and not merely voidable, the rationale for the annulment of the whole transaction is the same thus

The plain meaning attached to the plain language of the law is that the contract, in its entirety, executed by the
husband without the wife's consent, may be annulled by the wife. Had Congress intended to limit such annulment in so
far as the contract shall prejudice the wife, such limitation should have been spelled out in the statute. It is not the
legitimate concern of this Court to recast the law. As Mr. Justice Jose B. L. Reyes of this Court and Judge Ricardo C. Puno
of the Court of First Instance correctly stated, [t]he rule (in the first sentence of Article 173) revokes Baello vs. Villanueva,
54 Phil. 213 and Coque vs. Navas Sioca, 45 Phil. 430, in which cases annulment was held to refer only to the extent of the
one-half interest of the wife
The necessity to strike down the contract of July 5, 1963 as a whole, not merely as to the share of the wife, is not without
its basis in the common-sense rule. To be underscored here is that upon the provisions of Articles 161, 162 and 163 of the
Civil Code, the conjugal partnership is liable for many obligations while the conjugal partnership exists. Not only that. The
conjugal property is even subject to the payment of debts contracted by either spouse before the marriage, as those for
the payment of fines and indemnities imposed upon them after the responsibilities in Article 161 have been covered
(Article 163, par. 3), if it turns out that the spouse who is bound thereby, should have no exclusive property or if it should
be insufficient. These are considerations that go beyond the mere equitable share of the wife in the property. These are
reasons enough for the husband to be stopped from disposing of the conjugal property without the consent of the wife.
Even more fundamental is the fact that the nullity is decreed by the Code not on the basis of prejudice but lack of
consent of an indispensable party to the contract under Article 166.[37]

With respect to the third issue, the Court finds that respondent spouses are not purchasers in good faith. A purchaser
in good faith is one who buys property of another, without notice that some other person has a right to, or interest in, such
property and pays full and fair price for the same, at the time of such purchase, or before he has notice of the claim or
interest of some other persons in the property. He buys the property with the belief that the person from whom he receives
the thing was the owner and could convey title to the property. A purchaser cannot close his eyes to facts which should
put a reasonable man on his guard and still claim he acted in good faith.[38]

In the instant case, there existed circumstances that should have placed respondent spouses on guard. The death
certificate of Ignacia, shows that she died on March 22, 1982. The same death certificate, however, reveals that (1) it was
issued by the Office of the Civil Registrar of Lubao Pampanga on March 10, 1982; (2) the alleged death of Ignacia was
reported to the Office of the Civil Registrar on March 4, 1982; and (3) her burial or cremation would be on March 8,
1982.[39] These obvious flaws in the death certificate should have prompted respondents to investigate further, especially
so that respondent Florentina Mijares admitted on cross examination that she asked for the death certificate of Ignacia
because she was suspicious that Ignacia was still alive.[40] Moreover, respondent spouses had all the opportunity to verify
the claim of Vicente that he is a widower because it was their lawyer, Atty. Rodriguito S. Saet, who represented Vicente in
the special proceedings before the Metropolitan Trial Court.

Neither can respondent spouses rely on the alleged court approval of the sale. Note that the Order issued by the
Metropolitan Trial Court of Quezon City, Branch XXXI, appointing Vicente as guardian of his 5 minor children, as well as the
Order authorizing him to sell the estate of Ignacia were issued only on September 29, 1983 and October 14, 1983,
respectively. On the other hand, the sale of the entire Lot No. 4349-B-2 to respondent spouses appears to have been made
not on March 1, 1983, but even as early as November 25, 1978. In the Agreement dated November 25, 1978, Vicente in
consideration of the amount of P110,000.00, sold to Cipriano Mijares Lot No. 4349-B-2 on installment basis, with the first
installment due on or before July 31, 1979.[41] This was followed by a Memorandum of Understanding executed on July 30,
1979, by Vicente and Cipriano (1) acknowledging Ciprianos receipt of Vicentes down payment in the amount of
P50,000.00; and (2) authorizing Florentina Mijares to collect rentals.[42] On July 14, 1981, Vicente and Cipriano executed
another Memorandum of Agreement, stating, among other, that out of the purchase price of P110,000.00 Vicente had
remaining balance of P19,000.00.[43] Clearly therefore, the special proceedings before the Metropolitan Trial Court of
Quezon City, Branch XXXI, could not have been the basis of respondent spouses claim of good faith because the sale of
Lot No. 4349-B-2 occurred prior thereto.

Respondent spouses cannot deny knowledge that at the time of the sale in 1978, Vicente was married to Ignacia
and that the latter did not give her conformity to the sale. This is so because the 1978 Agreement described Vicente as
married but the conformity of his wife to the sale did not appear in the deed. Obviously, the execution of another deed
of sale in 1983 over the same Lot No. 4349-B-2, after the alleged death of Ignacia on March 22, 1982, as well as the institution
of the special proceedings were, intended to correct the absence of Ignacias consent to the sale. Even assuming that
respondent spouses believed in good faith that Ignacia really died on March 22, 1982, after they purchased the lot, the
fact remains that the sale of Lot No. 4349-B-2 prior to Ignacias alleged demise was without her consent and therefore
subject to annulment. The October 14, 1983 order authorizing the sale of the estate of Ignacia, could not have validated
the sale of Lot No. 4349-B-2 because said order was issued on the assumption that Ignacia was already dead and that the
sale dated March 1, 1983 was never categorically approved in the said order.

The fact that the 5 minor children[44] of Vicente represented by the latter, signed the March 1, 1983 deed of sale of
Lot No. 4349-B-2 will not estop them from assailing the validity thereof. Not only were they too young at that time to
understand the repercussions of the sale, they likewise had no right to sell the property of their mother who, when they
signed the deed, was very much alive.

If a voidable contract is annulled, the restoration of what has been given is proper. The relationship between parties
in any contract even if subsequently annulled must always be characterized and punctuated by good faith and fair
dealing. Hence, for the sake of justice and equity, and in consonance with the salutary principle of non-enrichment at
anothers expense, the Court sustains the trial courts order directing Vicente to refund to respondent spouses the amount
of P110,000.00 which they have paid as purchase price of Lot No. 4349-B-2.[45] The court a quo correctly found that the
subject of the sale was the entire Lot No. 4349-B-2 and that the consideration thereof is not P40,000.00 as stated in the
March 1, 1983 deed of sale, but P110,000.00 as evidenced by the (1) Agreement dated November 25, 1978 as well as the
July 30, 1979 Memorandum of Understanding and the July 14, 1981 Memorandum of Agreement which served as receipts
of the installment payments made by respondent Cipriano Mijares; and (2) the receipt duly signed by Vicente Reyes
acknowledging receipt of the amount of P110,000.00 from respondent spouses as payment of the sale of the controverted
lot.[46]

The trial court, however, erred in imposing 12% interest per annum on the amount due the respondents. In Eastern
Shipping Lines, Inc. v. Court of Appeals,[47] it was held that interest on obligations not constituting a loan or forbearance of
money is six percent (6%) annually. If the purchase price could be established with certainty at the time of the filing of the
complaint, the six percent (6%) interest should be computed from the date the complaint was filed until finality of the
decision. In Lui v. Loy,[48] involving a suit for reconveyance and annulment of title filed by the first buyer against the seller
and the second buyer, the Court, ruling in favor of the first buyer and annulling the second sale, ordered the seller to refund
to the second buyer (who was not a purchaser in good faith) the purchase price of the lots. It was held therein that the
6% interest should be computed from the date of the filing of the complaint by the first buyer. After the judgment becomes
final and executory until the obligation is satisfied, the amount due shall earn interest at 12% per year, the interim period
being deemed equivalent to a forbearance of credit.[49]

Accordingly, the amount of P110,000.00 due the respondent spouses which could be determined with certainty at
the time of the filing of the complaint shall earn 6% interest per annum from June 4, 1986 until the finality of this decision. If
the adjudged principal and the interest (or any part thereof) remain unpaid thereafter, the interest rate shall be twelve
percent (12%) per annum computed from the time the judgment becomes final and executory until it is fully satisfied.

Petitioners prayer for payment of rentals should be denied. Other than the allegation of Ignacia in her Sinumpaang
Salaysay that the apartments could be rented at P1,000.00 a month, no other evidence was presented to substantiate her
claim. In awarding rentals which are in the nature of actual damages, the Court cannot rely on mere assertions,
speculations, conjectures or guesswork but must depend on competent proof and on the best evidence obtainable
regarding the actual amount of loss.[50] None, having been presented in the case at bar, petitioners claim for rentals must
be denied.

While as a general rule, a party who has not appealed is not entitled to affirmative relief other than the ones granted
in the decision of the court below, law and jurisprudence authorize a tribunal to consider errors, although unassigned, if
they involve (1) errors affecting the lower courts jurisdiction over the subject matter, (2) plain errors not specified, and (3)
clerical errors.[51] In this case, though defendant Vicente Reyes did not appeal, the plain error committed by the court a
quo as to the award of moral and exemplary damages must be corrected. These awards cannot be lumped together as
was done by the trial court.[52] Moral and exemplary damages are different in nature, and require separate
determination. Moral damages are awarded where the claimant experienced physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury as a result of
the act complained of.[53] The award of exemplary damages, on the other hand, is warranted when moral, temperate,
liquidated, or compensatory damages were likewise awarded by the court.[54]

Hence, the trial courts award of P50,000.00 by way of moral and exemplary damages should be modified. Vicente
Reyes should be ordered to pay the amounts of P25,000.00 as moral damages and P25,000.00 as exemplary
damages. Since Vicente Reyes was among the heirs substituted to the late Ignacia Aguilar-Reyes, payment of moral and
exemplary damages must be made by Vicente to his children, petitioners in this case.

WHEREFORE, in view of all the foregoing, the petition is PARTIALLY GRANTED. The January 26, 2000 Decision and June
19, 2002, Resolution of the Court of Appeals in CA-G.R. No. 28464 are REVERSED and SET ASIDE. The May 31, 1990 Order of
the Regional Trial Court of Quezon City, Branch 101, in Civil Case No. Q-48018, which annulled the March 1, 1983 Deed of
Absolute Sale over Lot No. 4349-B-2, and ordered the Register of Deeds of Quezon City to cancel TCT No. 306087 in the
name of respondent spouses Cipriano Mijares and Florentina Mijares covering the same property; as well as the June 29,
1990 Order correcting the typographical errors in the order dated March 1, 1983, are REINSTATED, with the
following MODIFICATIONS

(1) The Register of Deeds of Quezon City is ordered to issue a new certificate of title over Lot No. 4349-B-2, in the
name of petitioners as co-owners thereof;

(2) Vicente Reyes is ordered to reimburse the respondent spouses the amount of P110,000.00 as purchase price of
Lot No. 4349-B-2, with interest at 6% per annum from June 4, 1986, until finality of this decision. After this decision becomes
final, interest at the rate of 12% per annum on the principal and interest (or any part thereof) shall be imposed until full
payment.

(3) Defendant Vicente Reyes is ordered to pay the heirs of the late Ignacia Aguilar-Reyes, the amounts of P25,000.00
as moral damages and P25,000.00 as exemplary damages.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.
[1] Bucoy v. Paulino, 131 Phil. 790, 804-805 (1968).
[2] Heirs of Christina Ayuste v. Court of Appeals, 372 Phil. 370, 379 (1999), citing Felipe v. Heirs of Aldon, et al., 205 Phil. 537
(1983), Roxas v. Court of Appeals, G.R. No. 92245, 26 June 1991, 198 SCRA 541, 546; Spouses Guiang v. Court of
Appeals, 353 Phil. 578, 588 (1998); Vitug, Compendium of Civil Law and Jurisprudence, 1993 edition, p. 71.
[3] Civil Code, Article 173.
[4] Penned by Associate Justice Corona Ibay-Somera and concurred in by Associate Justices Portia Alio-Hormachuelos and
Wenceslao I. Agnir, Jr. (Rollo, p. 92).
[5] Rollo, p. 128.
[6] Particularly described as follows: A parcel of land (Lot 4349-B-2 of the subdivision plan (LRC) Psd-64445, being a portion
of Lot 4349-B, Psd-37979, LRC (GLRO) Rec. No. 4429), situated in the Dist. of Balintawak, Quezon City. Bounded on
the NE., pts 3 to 4 by Lot 4349-B-3 of the subdivision plan; on the SE., points 4 to 1 by Lot 4350-A, Psd-17828; on the
SW., points 3 to 2 by Lot 4349-B-1 of the subdivision plan; and on NW., points 2 to 3 by Lot 4371, Caloocan
Cadastre.Beginning at the point marked 1 on plan, being S.89 deg. 19E. 2968.87 m. from BLLM 6, Caloocan
Cadastre:

thence N. 18 deg. 39 W., 42.88 m. to point 2;

thence N.65 deg. 51 E., 9.70m to point 3;

thence S. 16 deg. 58 E., 45.25 m. to point 4;

thence S. 80 deg.59 W., 8.45m. to point of beginning; containing an area of THREE HUNDRED NINETY SIX SQUARE
AND TWENTY SQUARE DECIMETERS (396.20) more or less. All points referred to are indicated on the plan and are
marked on the ground by PS Cyl. Conc. Mons. 15x60 cm., bearing true, date of the original survey, December
1930-Sept. 1832 and that of the subdivision survey, Nov. 12, 1966. (Transfer Certificate of Title, Records, p. 8)
[7] Transfer Certificate of Title, Records, p. 8.
[8] Sinumpaang Salaysay, Records, pp. 140-141; Complaint, Records, p. 4.
[9] TSN, 16 March 1989, pp. 18 and 21.
[10] Demand letter of Ignacia Reyes to the respondent spouses, Rollo, p. 149.
[11] Records, pp. 154-155.
[12] Order, Records, p. 188.
[13] Id., penned by Judge Mariano M. Singson, Jr.
[14] Records, p. 187.
[15] Records, p. 4.
[16] Amended Complaint, Records, p. 30.
[17] Records, p. 18.
[18] Answer with Cross-claim.
[19] TSN, Records, pp. 3-10.
[20] Rollo, p. 75.
[21] Rollo, p. 89.
[22] Motion to Correct Typographical Errors, Records, p. 228.
[23] Rollo, p. 90.
[24] Defendant Vicente Reyes also filed a Notice of Appeal manifesting to the trial court that he is appealing the decision
dated February 15, 1990 (Records, p. 219). It appears, however, that he did not pursue his appeal with the Court
of Appeals.
[25] Court of Appeals Resolution dated October 14, 1991, CA Rollo, p. 31. Vicente Reyes and their 5 minor children, namely,
Dominador Reyes, Agripino Reyes, Antonio Reyes, Ana Marie Reyes, and Jose Reyes, were substituted to the
deceased Ignacia Reyes.
[26] Decision, Records, pp. 114-115.
[27] Rollo, pp. 115-116.
[28] Resolution dated June 19, 2000, Rollo, p. 128.
[29] A sale or encumbrance of conjugal (or community) property concluded after the effectivity of the Family Code on
August 3, 1988, is governed by Article 124 of the same Code that now treats such a disposition to be void if done
without the conjoint consent of the spouses or, in case of a spouses inability, the authority of the court.

ART. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In
case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for a
proper remedy which must be availed of within five years from the date of the contract implementing such
decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of administration. These powers do not include the powers
of disposition or encumbrance which must have the authority of the court or the written consent of the other
spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the
court before the offer is withdrawn by either or both offerors.
[30] Garcia v. Court of Appeals, 215 Phil. 380, 383 (1984); Nicolas v. Court of Appeals, G.R. No. L-37631, 12 October 1987, 154
SCRA 635; Tolentino v. Cardenas, 123 Phil. 517, 521 (1966).
[31] Roxas v. Court of Appeals, supra, note 2.
[32] Vitug, Compendium of Civil Law and Jurisprudence, 1993 edition, p. 71; Concurring Opinion of Associate Justice Jose
C. Vitug in Heirs of Christina Ayuste v. Court of Appeals, supra, note 2.
[33] Supra, note 2.
[34] Supra, note 2.
[35] Supra, note 2.
[36] Supra, note 1.
[37] Supra, note 1.
[38] Sandoval v. Court of Appeals, 329 Phil. 48, 62 (1996), citing Agricultural and Home Extension Development
Corporation v. Court of Appeals, G.R. No. 92310, 3 September 1992, 213 SCRA 563; Santos v. Court of Appeals,
G.R. No. 90380, 13 September 1990, 189 SCRA 550; Fule v. Legare, 117 Phil. 367 (1963); De Santos v. Intermediate
Appellate Court, G.R. No. L-69591, 25 January 1988, 157 SCRA 295; Duran v. Intermediate Appellate Court, G.R.
No. L-64159, 10 September 1985, 138 SCRA 489; Arriola v. Gomez dela Serna, 14 Phil. 627; Embrado v. Court of
Appeals, G.R. No. 51457, 27 June 1994, 233 SCRA 335.
[39] Certificate of Death, Records, p. 182.
[40] TSN, December 19, 1989, pp. 17-19.
[41] Agreement, Records, p. 175.
[42] Memorandum of Understanding, Records, p. 183.
[43] Memorandum of Agreement, Records, p. 200.
[44] Then of ages, 12, 13, 14, 17 and 19 (Records, p. 184). The age of majority then under Republic Act No. 6809 was 21 years.
[45] Delos Reyes v. Court of Appeals, 372 Phil. 522, 539 (1999), citing Nool v. Court of Appeals, 342 Phil. 106 (1997); Bricktown
Development Corporation v. Amor Tierra Development Corporation, G.R. No. 112182, 12 December 1994, 239
SCRA 126; J.M. Tuason & Co., Inc. v. Court of Appeals, G.R. No. L-41233, 21 November 1979, 94 SCRA 413.
[46] Records, p. 176.
[47] G.R. No. 97412, 12 July 1994, 234 SCRA 78, 96.
[48] G.R. No. 145982, 3 July 2003.
[49] Eastern Shipping Lines, Inc. v. Court of Appeals, supra, at p. 97.
[50] Lucena v. Court of Appeals, 371 Phil. 188, 802 (1999), citing Barzaga v. Court of Appeals, 335 Phil. 568 (1997).
[51] Aurora Land Projects Corporation v. National Labor Relations Commission, 334 Phil. 44, 59 (1997), citing Santos v. Court
of Appeals, G.R. No. 100963, 6 April 1993, 221 SCRA 42.
[52] Herbosa v. Court of Appeals, G.R. No. 119087, 25 January 2002.
[53] Philippine Telegraph and Telephone Corporation v. Court of Appeals, G.R. No. 139268, 3 September 2002.
[54] Pacific Airways Corporation v. Tonda, G.R. No. 138478, 26 November 2002.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-19565 January 30, 1968

ESTRELLA DE LA CRUZ, plaintiff-appellee,

vs.
SEVERINO DE LA CRUZ, defendant-appellant.

Estacion and Paltriguera for plaintiff-appellee.

Manuel O. Soriano and Pio G. Villoso for defendant-appellant.

CASTRO, J.:

The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First Instance of Negros Occidental,
alleging in essence that her husband, the defendant Severino de la Cruz, had not only abandoned her but as well was
mismanaging their conjugal partnership properties, and praying for (1) separation of property, (2) monthly support of
P2,500 during the pendency of the action, and (3) payment of P20,000 as attorney's fees, and costs.

The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as alimony pendente lite, which
however, upon defendant's motion, was reduced to P2,000.

On June 1, 1961 the trial court rendered judgment ordering separation and division of the conjugal assets, and directing
the defendant to pay to the plaintiff the sum of P20,000 as attorney's fees, with legal interest from the date of the original
complaint, that is, from July 22, 1958, until fully paid, plus costs. From this judgment the defendant appealed to the Court
of Appeals, which certified the case to us, "it appearing that the total value of the conjugal assets is over P500,000".

The basic facts are not controverted. The plaintiff and the defendant were married in Bacolod City on February 1, 1938.
Six children were born to them, namely, Zenia (1939), Ronnie (1942), Victoria (1944), Jessie 1945), Bella (1946), and Felipe
(1948). During their coverture they acquired seven parcels of land of the Bacolod Cadastre, all assessed at P45,429, and
three parcels of the Silay Cadastre, all assessed at P43,580. All these parcels are registered in their names.
The hacienda in Silay yielded for the year 1957 a net profit of P3,390.49.

They are also engaged in varied business ventures with fixed assets valued as of December 31, 1956 at P496,006.92, from
which they obtained for that year a net profit of P75,655.78. The net gain of the Philippine Texboard Factory, the principal
business of the spouses, was P90,454.48 for the year 1957. As of December 31, 1959, the total assets of the various
enterprises of the conjugal partnership were valued at P1,021,407.68, not including those of the Top Service Inc., of which
firm the defendant has been the president since its organization in 1959 in Manila with a paid-up capital of P50,000,
P10,000 of which was contributed by him. This corporation was the Beverly Hills Subdivision in Antipolo, Rizal, the Golden
Acres Subdivision and the Green Valley Subdivision in Las Piñas, Rizal, and a lot and building located at M. H. del Pilar,
Manila purchased for P285,000, an amount borrowed from the Manufacturer's Bank and Trust Company.

The spouses are indebted to the Philippine National Bank and the Development Bank of the Philippines for loans
obtained, to secure which they mortgaged the Philippine Texboard Factory, the Silay hacienda, their conjugal house,
and all their parcels of land located in Bacolod City.

The essential issues of fact may be gleaned from the nine errors the defendant imputes to the court a quo, namely,
 1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made by the defendant to the
conjugal abode to see his wife was on June 15, 1955;

2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that she and the defendant are
living as husband and wife;

3. In finding that since 1951 the relations between the plaintiff and the defendant were far from cordial, and
that it was from 1948 that the former has been receiving an allowance from the latter;

4. In finding that the defendant has abandoned the plaintiff;

5. In finding that the defendant since 1956 has not discussed with his wife the business activities of the
partnership, and that this silence constituted "abuse of administration of the conjugal partnerships";

6. In declaring that the defendant mortgaged the conjugal assets without the knowledge of the plaintiff and
thru false pretences to which the latter was prey;

7. In allowing the plaintiff, on the one hand, to testify on facts not actually known by her, and, on the other
hand, in not allowing the defendant to establish his special defenses;

8. In ordering separation of the conjugal partnership properties; and

9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of P20,000, with interest at
the legal rate.1äwphï1.ñët

Two issues of law as well emerge, requiring resolution petition: (1) Did the separation of the defendant from the plaintiff
constitute abandonment in law that would justify a separation of the conjugal partnership properties? (2) Was the
defendant's failure and/or refusal to inform the plaintiff of the state of their business enterprises such an abuse of his
powers of administration of the conjugal partnership as to warrant a division of the matrimonial assets?

The plaintiff's evidence may be summarized briefly. The defendant started living in Manila in 1955, although he
occasionally returned to Bacolod City, sleeping in his office at the Philippine Texboard Factory in Mandalagan, instead
of in the conjugal home at 2nd Street, Bacolod City. Since 1955 the defendant had not slept in the conjugal dwelling,
although in the said year he paid short visits during which they engaged in brief conversations. After 1955 up to the time
of the trial, the defendant had never visited the conjugal abode, and when he was in Bacolod, she was denied
communication with him. He has abandoned her and their children, to live in Manila with his concubine, Nenita
Hernandez. In 1949 she began to suspect the existence of illicit relations between her husband and Nenita. This suspicion
was confirmed in 1951 when she found an unsigned note in a pocket of one of her husband's polo shirt which was
written by Nenita and in which she asked "Bering" to meet her near the church. She confronted her husband who
forthwith tore the note even as he admitted his amorous liaison with Nenita. He then allayed her fears by vowing to
forsake his mistress. Subsequently, in November 1951, she found in the iron safe of her husband a letter, exh. C, also
written by Nenita. In this letter the sender (who signed as "D") apologized for her conduct, and expressed the hope that
the addressee ("Darling") could join her in Baguio as she was alone in the Patria Inn and lonely in "a place for
honeymooners". Immediately after her husband departed for Manila the following morning, the plaintiff enplaned for
Baguio, where she learned that Nenita had actually stayed at the Patria Inn, but had already left for Manila before her
arrival. Later she met her husband in the house of a relative in Manila from whence they proceeded to the Avenue Hotel
where she again confronted him about Nenita. He denied having further relations with this woman.

Celia Bañez, testifying for the plaintiff, declared that she was employed as a cook in the home of the spouses from May
15, 1955 to August 15, 1958, and that during the entire period of her employment she saw the defendant in the place
only once. This declaration is contradicted, however, by the plaintiff herself who testified that in 1955 the defendant
"used to have a short visit there," which statement implies more than one visit.

The defendant, for his part, denied having abandoned his wife and children, but admitted that in 1957, or a year before
the filing of the action, he started to live separately from his wife. When he transferred his living quarters to his office in
Mandalagan, Bacolod City, his intention was not, as it never has been, to abandon his wife and children, but only to
teach her a lesson as she was quarrelsome and extremely jealous of every woman. He decided to live apart from his
wife temporarily because at home he could not concentrate on his work as she always quarreled with him, while in
Mandalagan he could pass the nights in peace. Since 1953 he stayed in Manila for some duration of time to manage
their expanding business and look for market outlets for their texboard products. Even the plaintiff admitted in both her
original and amended complaints that "sometime in 1953, because of the expanding business of the herein parties, the
defendant established an office in the City of Manila, wherein some of the goods, effects and merchandise
manufactured or produced in the business enterprises of the parties were sold or disposed of". From the time he started
living separately in Mandalagan up to the filing of the complaint, the plaintiff herself furnished him food and took care of
his laundry. This latter declaration was not rebutted by the plaintiff.

The defendant, with vehemence, denied that he has abandoned his wife and family, averring that he has never failed,
even for a single month, to give them financial support, as witnessed by the plaintiff's admission in her original and
amended complaints as well as in open court that during the entire period of their estrangement, he was giving her
around P500 a month for support. In point of fact, his wife and children continued to draw allowances from his office of a
total ranging from P1,200 to P1,500 a month. He financed the education of their children, two of whom were studying in
Manila at the time of the trial and were not living with the plaintiff. While in Bacolod City, he never failed to visit his family,
particularly the children. His wife was always in bad need of money because she played mahjong, an accusation which
she did not traverse, explaining that she played mahjong to entertain herself and forget the infidelities of her husband.

Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the testimony of the defendant on
the matter of the support the latter gave to his family, by declaring in court that since the start of his employment in 1950
as assistant general manager, the plaintiff has been drawing an allowance of P1,000 to P1,500 monthly, which amount
was given personally by the defendant or, in his absence, by the witness himself.

The defendant denied that he ever maintained a mistress in Manila. He came to know Nenita Hernandez when she was
barely 12 years old, but had lost track of her thereafter. His constant presence in Manila was required by the pressing
demands of an expanding business. He denied having destroyed the alleged note which the plaintiff claimed to have
come from Nenita, nor having seen, previous to the trial, the letter exh. C. The allegation of his wife that he had a
concubine is based on mere suspicion. He had always been faithful to his wife, and not for a single instance had he
been caught or surprised by her with another woman.

On the matter of the alleged abuse by the defendant of his powers of administration of the conjugal partnership, the
plaintiff declared that the defendant refused and failed to inform her of the progress of their various business concerns.
Although she did not allege, much less prove, that her husband had dissipated the conjugal properties, she averred
nevertheless that her husband might squander and dispose of the conjugal assets in favor of his concubine. Hence, the
urgency of separation of property.

The defendant's answer to the charge of mismanagement is that he has applied his industry, channeled his ingenuity,
and devoted his time, to the management, maintenance and expansion of their business concerns, even as his wife
threw money away at the mahjong tables. Tangible proof of his endeavors is that from a single cargo truck which he
himself drove at the time of their marriage, he had built up one business after another, the Speedway Trucking Service,
the Negros Shipping Service, the Bacolod Press, the Philippine Texboard Factory, and miscellaneous other business
enterprises worth over a million pesos; that all that the spouses now own have been acquired through his diligence,
intelligence and industry; that he has steadily expanded the income and assets of said business enterprises from year to
year, contrary to the allegations of the complainant, as proved by his balance sheet and profit and loss statements for
the year 1958 and 1959 (exhibits 1 and 2); and that out of the income of their enterprises he had purchased additional
equipment and machineries and has partially paid their indebtedness to the Philippine National Bank and the
Development Bank of the Philippines.

It will be noted that the plaintiff does not ask for legal separation. The evidence presented by her to prove concubinage
on the part of the defendant, while pertinent and material in the determination of the merits of a petition for legal
separation, must in this case be regarded merely as an attempt to bolster her claim that the defendant had abandoned
her, which abandonment, if it constitutes abandonment in law, would justify separation of the conjugal assets under the
applicable provisions of article 178 of the new Civil Code which read: "The separation in fact between husband and wife
without judicial approval, shall not affect the conjugal partnership, except that . . . if the husband has abandoned the
wife without just cause for at least one year, she may petition the court for a receivership, or administration by her of the
conjugal partnership property, or separation of property". In addition to abandonment as a ground, the plaintiff also
invokes article 167 of the new Civil Code in support of her prayer for division of the matrimonial assets. This article
provides that "In case of abuse of powers of administration of the conjugal partnership property by the husband, the
courts, on the petition of the wife, may provide for a receivership, or administration by the wife, or separation of
property". It behooves us, therefore, to inquire, in the case at bar, whether there has been abandonment, in the legal
sense, by the defendant of the plaintiff, and/or whether the defendant has abused his powers of administration of the
conjugal partnership property, so as to justify the plaintiff's plea for separation of property.

We have made a searching scrutiny of the record, and it is our considered view that the defendant is not guilty of
abandonment of his wife, nor of such abuse of his powers of administration of the conjugal partnership, as to warrant
division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when she has been abandoned by the husband for at
least one year are the same as those granted to her by article 167 in case of abuse of the powers of administration by
the husband. To entitle her to any of these remedies, under article 178, there must be real abandonment, and not mere
separation. 1 The abandonment must not only be physical estrangement but also amount to financial and moral
desertion.

Although an all-embracing definition of the term "abandonment " is yet to be spelled out in explicit words, we
nevertheless can determine its meaning from the context of the Law as well as from its ordinary usage. The concept of
abandonment in article 178 may be established in relation to the alternative remedies granted to the wife when she has
been abandoned by the husband, namely, receivership, administration by her, or separation of property, all of which
are designed to protect the conjugal assets from waste and dissipation rendered imminent by the husband's continued
absence from the conjugal abode, and to assure the wife of a ready and steady source of support. Therefore, physical
separation alone is not the full meaning of the term "abandonment", if the husband, despite his voluntary departure from
the society of his spouse, neither neglects the management of the conjugal partnership nor ceases to give support to his
wife.

The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or renounce utterly. 2 The dictionaries
trace this word to the root idea of "putting under a bar". The emphasis is on the finality and the publicity with which some
thing or body is thus put in the control of another, and hence the meaning of giving up absolutely, with intent never
again to resume or claim one's rights or interests. 3 When referring to desertion of a wife by a husband, the word has been
defined as "the act of a husband in voluntarily leaving his wife with intention to forsake her entirely, never to return to her,
and never to resume his marital duties towards her, or to claim his marital rights; such neglect as either leaves the wife
destitute of the common necessaries of life, or would leave her destitute but for the charity of others." 4 The word
"abandonment", when referring to the act of one consort of leaving the other, is "the act of the husband or the wife who
leaves his or her consort wilfully, and with an intention of causing per perpetual separation." 5 Giving to the word
"abandoned", as used in article 178, the meaning drawn from the definitions above reproduced, it seems rather clear
that to constitute abandonment of the wife by the husband, there must be absolute cessation of marital relations and
duties and rights, with the intention of perpetual separation.

Coming back to the case at bar, we believe that the defendant did not intend to leave his wife and children
permanently. The record conclusively shows that he continued to give support to his family despite his absence from the
conjugal home. This fact is admitted by the complainant, although she minimized the amount of support given, saying
that it was only P500 monthly. There is good reason to believe, however, that she and the children received more than
this amount, as the defendant's claim that his wife and children continued to draw from his office more than P500
monthly was substantially corroborated by Marcos Ganaban, whose declarations were not rebutted by the plaintiff. And
then there is at all no showing that the plaintiff and the children were living in want. On the contrary, the plaintiff
admitted, albeit reluctantly, that she frequently played mahjong, from which we can infer that she had money; to spare.

The fact that the defendant never ceased to give support to his wife and children negatives any intent on his part not to
return to the conjugal abode and resume his marital duties and rights. In People v. Schelske, 6 it was held that where a
husband, after leaving his wife, continued to make small contributions at intervals to her support and that of their minor
child, he was not guilty of their "abandonment", which is an act of separation with intent that it shall be perpetual, since
contributing to their support negatived such intent. In re Hoss' Estate, supra, it was ruled that a father did not abandon his
family where the evidence disclosed that he almost always did give his wife part of his earnings during the period of their
separation and that he gradually paid some old rental and grocery bills.

With respect to the allegation that the defendant maintained a concubine, we believe, contrary to the findings of the
court a quo, that the evidence on record fails to preponderate in favor of the plaintiff's thesis. The proof that Nenita
Hernandez was the concubine of the defendant and that they were living as husband and wife in Manila, is altogether
too indefinite. Aside from the uncorroborated statement of the plaintiff that she knew that Nenita Hernandez was her
husband's concubine, without demonstrating by credible evidence the existence of illicit relations between Nenita and
the defendant, the only evidence on record offered to link the defendant to his alleged mistress is exh. C. The plaintiff
however failed to connect authorship of the said letter with Nenita, on the face whereof the sender merely signed as "D"
and the addressee was one unidentified "Darling". The plaintiff's testimony on cross-examination, hereunder quoted,
underscores such failure:

Q. You personally never received any letter from Nenita?

A. No.

Q. Neither have you received on any time until today from 1949 from Nenita?
 A. No.

Q. Neither have you written to her any letter yourself until now?

A. Why should I write a letter to her.

Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of Nenita. Is that right?

A. I can say that Nenita writes very well.

Q. I am not asking you whether she writes very well or not but, my question is this: In view of the fact that you
have never received a letter from Nenita, you have ot sent any letter to her, you are not familiar with her
handwriting?

A. Yes.

Q. You have not seen her writing anybody?

A. Yes.

Anent the allegation that the defendant had mismanaged the conjugal partnership property, the record presents a
different picture. There is absolutely no evidence to show that he has squandered the conjugal assets. Upon the
contrary, he proved that through his industry and zeal, the conjugal assets at the time of the trial had increased to a
value of over a million pesos.

The lower court likewise erred in holding that mere refusal or failure of the husband as administrator of the conjugal
partnership to inform the wife of the progress of the family businesses constitutes abuse of administration. For "abuse" to
exist, it is not enough that the husband perform an act or acts prejudicial to the wife. Nor is it sufficient that he commits
acts injurious to the partnership, for these may be the result of mere inefficient or negligent administration. Abuse
connotes willful and utter disregard of the interests of the partnership, evidenced by a repetition of deliberate acts
and/or omissions prejudicial to the latter. 7

If there is only physical separation between the spouses (and nothing more), engendered by the husband's leaving the
conjugal abode, but the husband continues to manage the conjugal properties with the same zeal, industry, and
efficiency as he did prior to the separation, and religiously gives support to his wife and children, as in the case at bar,
we are not disposed to grant the wife's petition for separation of property. This decision may appear to condone the
husband's separation from his wife; however, the remedies granted to the wife by articles 167 and 178 are not to be
construed as condonation of the husband's act but are designed to protect the conjugal partnership from waste and
shield the wife from want. Therefore, a denial of the wife's prayer does not imply a condonation of the husband's act but
merely points up the insufficiency or absence of a cause of action.1äwphï1.ñët

Courts must need exercise judicial restraint and reasoned hesitance in ordering a separation of conjugal properties
because the basic policy of the law is homiletic, to promote healthy family life and to preserve the union of the spouses,
in person, in spirit and in property.

Consistent with its policy of discouraging a regime of separation as not in harmony with the unity of the family
and the mutual affection and help expected of the spouses, the Civil Code (both old and new) requires that
separation of property shall not prevail unless expressly stipulated in marriage settlements before the union is
solemnized or by formal judicial decree during the existence of the marriage (Article 190, new Civil Code,
Article 1432, old Civil Code): and in the latter case, it may only be ordered by the court for causes specified in
Article 191 of the new Civil Code. 8

Furthermore, a judgment ordering the division of conjugal assets where there has been no real abandonment, the
separation not being wanton and absolute, may altogether slam shut the door for possible reconciliation. The estranged
spouses may drift irreversibly further apart; the already broken family solidarity may be irretrievably shattered; and any
flickering hope for a new life together may be completely and finally extinguished.

The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long before the devaluation of the
Philippine peso in 1962, should be increased to P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving the conjugal abode, has given
cause for the plaintiff to seek redress in the courts, and ask for adequate support, an award of attorney's fees to the
plaintiff must be made. Ample authority for such award is found in paragraphs 6 and 11 of article 2208 of the new Civil
Code which empower courts to grant counsel's fees "in actions for legal support" and in cases "where the court deems it
just and equitable that attorney's fees . . . should be recovered." However, an award of P10,000, in our opinion, is, under
the environmental circumstances, sufficient.

This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that the law enjoins husband and
wife to live together, and, secondly, exhort them to avail of — mutually, earnestly and steadfastly — all opportunities for
reconciliation to the end that their marital differences may be happily resolved, and conjugal harmony may return and,
on the basis of mutual respect and understanding, endure.

ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal properties, is reversed and set
aside. Conformably to our observations, however, the defendant is ordered to pay to the plaintiff, in the concept of
support, the amount of P3,000 per month, until he shall have rejoined her in the conjugal home, which amount may, in
the meantime, be reduced or increased in the discretion of the court a quo as circumstances warrant. The award of
attorney's fees to the plaintiff is reduced to P10,000, without interest. No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles and Fernando, JJ., concur.

Footnotes

1Tolentino, Civil Code of the Philippines, Vol. 1, p. 436.

2See Webster's International and standard dictionaries.

3In re Hoss' Estate, 257 NYS 278.

4Gay vs. State, 31 S. L. 569.

5Note 4, supra.

6154 N. W. 781, 783.

7Tolentino, supra, p. 418.

8Garcia vs. Manzano, 103 Phil. 798.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 195670 December 3, 2012

WILLEM BEUMER, Petitioner,

vs.
AVELINA AMORES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Before the Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of CoLlli assailing the October 8, 2009
Decision2 and January 24, 2011 Resolution3 of the court of Appeals (CA) in CA-G.R. CV No. 01940, which affirmed the
February 28, 2007 Decision4 of the Regional Trial Court (RTC) of Negros Oriental, Branch 34 in Civil Case No. I 2884. The
foregoing rulings dissolved the conjugal partnership of gains of Willem Beumer (petitioner) and Avelina Amores
(respondent) and distributed the properties forming part of the said property regime.

The Factual Antecedents

Petitioner, a Dutch National, and respondent, a Filipina, married in March 29, 1980. After several years, the RTC of Negros
Oriental, Branch 32, declared the nullity of their marriage in the Decision5 dated November 10, 2000 on the basis of the
former’s psychological incapacity as contemplated in Article 36 of the Family Code.

Consequently, petitioner filed a Petition for Dissolution of Conjugal Partnership6 dated December 14, 2000 praying for the
distribution of the following described properties claimed to have been acquired during the subsistence of their
marriage, to wit:

By Purchase:

a. Lot 1, Block 3 of the consolidated survey of Lots 2144 & 2147 of the Dumaguete Cadastre, covered by
Transfer Certificate of Title (TCT) No. 22846, containing an area of 252 square meters (sq.m.), including a
residential house constructed thereon.

b. Lot 2142 of the Dumaguete Cadastre, covered by TCT No. 21974, containing an area of 806 sq.m., including
a residential house constructed thereon.

c. Lot 5845 of the Dumaguete Cadastre, covered by TCT No. 21306, containing an area of 756 sq.m.

d. Lot 4, Block 4 of the consolidated survey of Lots 2144 & 2147 of the Dumaguete Cadastre, covered by TCT
No. 21307, containing an area of 45 sq.m.

By way of inheritance:

e. 1/7 of Lot 2055-A of the Dumaguete Cadastre, covered by TCT No. 23567, containing an area of 2,635 sq.m.
(the area that appertains to the conjugal partnership is 376.45 sq.m.).

f. 1/15 of Lot 2055-I of the Dumaguete Cadastre, covered by TCT No. 23575, containing an area of 360 sq.m.
(the area that appertains to the conjugal partnership is 24 sq.m.).7

In defense,8 respondent averred that, with the exception of their two (2) residential houses on Lots 1 and 2142, she and
petitioner did not acquire any conjugal properties during their marriage, the truth being that she used her own personal
money to purchase Lots 1, 2142, 5845 and 4 out of her personal funds and Lots 2055-A and 2055-I by way of
inheritance.9 She submitted a joint affidavit executed by her and petitioner attesting to the fact that she purchased Lot
2142 and the improvements thereon using her own money.10 Accordingly, respondent sought the dismissal of the petition
for dissolution as well as payment for attorney’s fees and litigation expenses.11

During trial, petitioner testified that while Lots 1, 2142, 5845 and 4 were registered in the name of respondent, these
properties were acquired with the money he received from the Dutch government as his disability benefit12 since
respondent did not have sufficient income to pay for their acquisition. He also claimed that the joint affidavit they
submitted before the Register of Deeds of Dumaguete City was contrary to Article 89 of the Family Code, hence,
invalid.13

For her part, respondent maintained that the money used for the purchase of the lots came exclusively from her
personal funds, in particular, her earnings from selling jewelry as well as products from Avon, Triumph and
Tupperware.14 She further asserted that after she filed for annulment of their marriage in 1996, petitioner transferred to
their second house and brought along with him certain personal properties, consisting of drills, a welding machine,
grinders, clamps, etc. She alleged that these tools and equipment have a total cost of P500,000.00.15

The RTC Ruling

On February 28, 2007, the RTC of Negros Oriental, Branch 34 rendered its Decision, dissolving the parties’ conjugal
partnership, awarding all the parcels of land to respondent as her paraphernal properties; the tools and equipment in
favor of petitioner as his exclusive properties; the two (2) houses standing on Lots 1 and 2142 as co-owned by the parties,
the dispositive of which reads:

WHEREFORE, judgment is hereby rendered granting the dissolution of the conjugal partnership of gains between
petitioner Willem Beumer and respondent Avelina Amores considering the fact that their marriage was previously
annulled by Branch 32 of this Court. The parcels of land covered by Transfer Certificate of Titles Nos. 22846, 21974, 21306,
21307, 23567 and 23575 are hereby declared paraphernal properties of respondent Avelina Amores due to the fact that
while these real properties were acquired by onerous title during their marital union, Willem Beumer, being a foreigner, is
not allowed by law to acquire any private land in the Philippines, except through inheritance.

The personal properties, i.e., tools and equipment mentioned in the complaint which were brought out by Willem from
the conjugal dwelling are hereby declared to be exclusively owned by the petitioner.

The two houses standing on the lots covered by Transfer Certificate of Title Nos. 21974 and 22846 are hereby declared to
be co-owned by the petitioner and the respondent since these were acquired during their marital union and since there
is no prohibition on foreigners from owning buildings and residential units. Petitioner and respondent are, thereby,
directed to subject this court for approval their project of partition on the two houses aforementioned.

The Court finds no sufficient justification to award the counterclaim of respondent for attorney’s fees considering the well
settled doctrine that there should be no premium on the right to litigate. The prayer for moral damages are likewise
denied for lack of merit.

No pronouncement as to costs.

SO ORDERED.16

It ruled that, regardless of the source of funds for the acquisition of Lots 1, 2142, 5845 and 4, petitioner could not have
acquired any right whatsoever over these properties as petitioner still attempted to acquire them notwithstanding his
knowledge of the constitutional prohibition against foreign ownership of private lands.17 This was made evident by the
sworn statements petitioner executed purporting to show that the subject parcels of land were purchased from the
exclusive funds of his wife, the herein respondent.18 Petitioner’s plea for reimbursement for the amount he had paid to
purchase the foregoing properties on the basis of equity was likewise denied for not having come to court with clean
hands.

The CA Ruling

Petitioner elevated the matter to the CA, contesting only the RTC’s award of Lots 1, 2142, 5845 and 4 in favor of
respondent. He insisted that the money used to purchase the foregoing properties came from his own capital funds and
that they were registered in the name of his former wife only because of the constitutional prohibition against foreign
ownership. Thus, he prayed for reimbursement of one-half (1/2) of the value of what he had paid in the purchase of the
said properties, waiving the other half in favor of his estranged ex-wife.19

On October 8, 2009, the CA promulgated a Decision20 affirming in toto the judgment rendered by the RTC of Negros
Oriental, Branch 34. The CA stressed the fact that petitioner was "well-aware of the constitutional prohibition for aliens to
acquire lands in the Philippines."21 Hence, he cannot invoke equity to support his claim for reimbursement.

Consequently, petitioner filed the instant Petition for Review on Certiorari assailing the CA Decision due to the following
error:

UNDER THE FACTS ESTABLISHED, THE COURT ERRED IN NOT SUSTAINING THE PETITIONER’S ATTEMPT AT SUBSEQUENTLY
ASSERTING OR CLAIMING A RIGHT OF HALF OR WHOLE OF THE PURCHASE PRICE USED IN THE PURCHASE OF THE REAL
PROPERTIES SUBJECT OF THIS CASE.22 (Emphasis supplied)

The Ruling of the Court

The petition lacks merit.

The issue to be resolved is not of first impression. In In Re: Petition For Separation of Property-Elena Buenaventura Muller v.
Helmut Muller23 the Court had already denied a claim for reimbursement of the value of purchased parcels of Philippine
land instituted by a foreigner Helmut Muller, against his former Filipina spouse, Elena Buenaventura Muller. It held that
Helmut Muller cannot seek reimbursement on the ground of equity where it is clear that he willingly and knowingly
bought the property despite the prohibition against foreign ownership of Philippine land24 enshrined under Section 7,
Article XII of the 1987 Philippine Constitution which reads:

Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold lands of the public domain.

Undeniably, petitioner openly admitted that he "is well aware of the above-cited constitutional prohibition"25 and even
asseverated that, because of such prohibition, he and respondent registered the subject properties in the latter’s
name.26 Clearly, petitioner’s actuations showed his palpable intent to skirt the constitutional prohibition. On the basis of
such admission, the Court finds no reason why it should not apply the Muller ruling and accordingly, deny petitioner’s
claim for reimbursement.

As also explained in Muller, the time-honored principle is that he who seeks equity must do equity, and he who comes
into equity must come with clean hands. Conversely stated, he who has done inequity shall not be accorded equity.
Thus, a litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable, unfair
and dishonest, or fraudulent, or deceitful.27

In this case, petitioner’s statements regarding the real source of the funds used to purchase the subject parcels of land
dilute the veracity of his claims: While admitting to have previously executed a joint affidavit that respondent’s personal
funds were used to purchase Lot 1,28 he likewise claimed that his personal disability funds were used to acquire the same.
Evidently, these inconsistencies show his untruthfulness. Thus, as petitioner has come before the Court with unclean
hands, he is now precluded from seeking any equitable refuge.

In any event, the Court cannot, even on the grounds of equity, grant reimbursement to petitioner given that he acquired
no right whatsoever over the subject properties by virtue of its unconstitutional purchase. It is well-established that equity
as a rule will follow the law and will not permit that to be done indirectly which, because of public policy, cannot be
done directly.29 Surely, a contract that violates the Constitution and the law is null and void, vests no rights, creates no
obligations and produces no legal effect at all.30 Corollary thereto, under Article 1412 of the Civil Code,31 petitioner
cannot have the subject properties deeded to him or allow him to recover the money he had spent for the purchase
thereof. The law will not aid either party to an illegal contract or agreement; it leaves the parties where it finds
them.32 Indeed, one cannot salvage any rights from an unconstitutional transaction knowingly entered into.

Neither can the Court grant petitioner’s claim for reimbursement on the basis of unjust enrichment.33 As held in Frenzel v.
Catito, a case also involving a foreigner seeking monetary reimbursement for money spent on purchase of Philippine
land, the provision on unjust enrichment does not apply if the action is proscribed by the Constitution, to wit:

Futile, too, is petitioner's reliance on Article 22 of the New Civil Code which reads:

Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into
possession of something at the expense of the latter without just or legal ground, shall return the same to him.1âwphi1

The provision is expressed in the maxim: "MEMO CUM ALTERIUS DETER DETREMENTO PROTEST" (No person should unjustly
enrich himself at the expense of another). An action for recovery of what has been paid without just cause has been
designated as an accion in rem verso. This provision does not apply if, as in this case, the action is proscribed by the
Constitution or by the application of the pari delicto doctrine. It may be unfair and unjust to bar the petitioner from filing
an accion in rem verso over the subject properties, or from recovering the money he paid for the said properties, but, as
Lord Mansfield stated in the early case of Holman v. Johnson: "The objection that a contract is immoral or illegal as
between the plaintiff and the defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake,
however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the
advantage of, contrary to the real justice, as between him and the plaintiff."34 (Citations omitted)

Nor would the denial of his claim amount to an injustice based on his foreign citizenship.35 Precisely, it is the Constitution
itself which demarcates the rights of citizens and non-citizens in owning Philippine land. To be sure, the constitutional ban
against foreigners applies only to ownership of Philippine land and not to the improvements built thereon, such as the
two (2) houses standing on Lots 1 and 2142 which were properly declared to be co-owned by the parties subject to
partition. Needless to state, the purpose of the prohibition is to conserve the national patrimony36 and it is this policy
which the Court is duty-bound to protect.
WHEREFORE, the petition is DENIED. Accordingly, the assailed October 8, 2009 Decision and January 24, 2011 Resolution
of the Court of Appeals in CA-G.R. CV No. 01940 are AFFIRMED.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1 Rollo. pp. 11-25.

2 Penned
by Acting Executive Justice Franchito N. Diamante, with Associate Justices Edgarclo L. Delos Santos
and Samuel II. Gaerlan, concurring. Id. at 26-38.

3 Pennedby Associate Justice Edgardo L. Delos Santos, with Associate Justices Agnes Reyes-Carpio and
Eduardo B. Peralta, Jr., concurring. Id. at 45-46.

4 Penned by Judge Rosendo B. Bandal, Jr. Id. at 80-86.

5 See Annex "E" of the Petition. Penned by Judge Eleuterio E. Chiu (Civil Case No. 11754). Id. at 53-62.

6 Annex "E" of the Petition. Id. at 47-52.

7 Id. at 48-49a.

8 See attached as Annex "E" of the Petitioner. Respondent’s Answer. Id. at 76-79.

9 Id. at 76.

10 Id. at 79.

11 Id. at 77.

12 Id. at 81.

13 Id. at 82.

14 Id.

15 Id.

16 Id. at 85-86.

17 Id. at 84, citing Cheesman v. Intermediate Appellate Court, G.R. No. 74833, January 21, 1991, 193 SCRA 93,
103.

18 Id.

19 Id. at 91.

20 Id. at 26-38.

21 Id. at 33.

22 Id. at 17.

23 G.R. No. 149615, August 29, 2006, 500 SCRA 65.

24 Id. at 72.

25 Rollo, p. 17.

26 Id. at 18.

27 Supra note 23 at 73, citing University of the Philippines v. Catungal, Jr., 338 Phil. 728, 734-744 (1997).

28 Id. at 82.

29 Frenzel v. Catito, G.R. No. 143958, July 11, 2003, 406 SCRA 55, 70.

30 Id. at 69-70, citing Chavez s. Presidential Commission on Good Government, 307 SCRA 394 (1998).

31 Re:
Art. 1412. If the act in which the unlawful or forbidden cause consists does not constitute a criminal
offense, the following rules shall be observed:

(1) When the fault is on the part of both contracting parties, neither may recover what he has given
by virtue of the contract, or demand the performance of the other's undertaking
 xxxx

32 Id., citing Rellosa v. Hun, 93 Phil. 827 (1953).

33 Rollo, p. 20.

34 Supranote 29 at 74, citing I. Tolentino, Civil Code of the Philippines (1990 ), p. 85 and Marissey v. Bologna, 123
So. 2d 537 (1960).

35 Rollo, pp. 19-21.

36 See Krivenko v. Register of Deeds. 79 Phil. 461 (1947).

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-61700 September 14, 1987

PRINCESITA SANTERO, FEDERICO SANTERO and WILLIE SANTERO, petitioners,

vs.
HON. COURT OF FIRST INSTANCE OF CAVITE, ANSELMA DIAZ, VICTOR, RODRIGO, ANSELMINA, MIGUEL, all surnamed
SANTERO, and REYNALDO EVARISTO, in his capacity as Administrator of the Intestate Estate of PABLO
SANTERO, respondents.

PARAS, J.:

This is a Petition for certiorari which questions the order of the respondent court granting the Motion for Allowance filed
by private respondents. Said order reads as follows:

Acting on the Motion For Allowance dated June 30, 1982 filed by Victor, Rodrigo, Anselmina and
Miguel, all surnamed Santero, thru their guardian, Anselma Diaz, the Opposition thereto dated July 8,
1982 filed by the oppositors, the Reply to Opposition dated July 12, 1982 filed by movant Anselma Diaz
and the Rejoinder dated July 26, 1982 filed by the oppositors, the Court was constrained to examine
the Motion For Allowance filed by the herein movant last year wherein the ground cited was for
support which included educational expenses, clothing and medical necessities, which was granted
and said minors were given an allowance prayed for in their motion.

In the Motion For Allowance in question guardian-movant Anselma Diaz only followed the precedent
of the Court which granted a similar motion last year to be spent for the school expenses of her wards.
In their opposition the oppositors contend that the wards for whom allowance is sought are no longer
schooling and have attained majority age so that they are no longer under guardianship. They
likewise allege that the administrator does not have sufficient funds to cover the said allowance
because whatever funds are in the hands of the administrator, they constitute funds held in trust for
the benefit of whoever will be adjudged as owners of the Kawit property from which said
administrator derives the only income of the intestate estate of Pablo Santero, et al.

In the Reply filed by the guardian-movant, she admitted some of her children are of age and not
enrolled for the first semester due to lack of funds but will be enrolled as soon as they are given the
requested allowances. She cited Article 290 of the Civil Code providing that:

Support is everything that is indispensable for substance, dwelling, clothing and

medical attendance, according to the social position of the family.
 Support also includes the education of the person entitled to be supported until he
completes his education or training for some trade or vocation, even beyond the
age of majority.'

citing also Section 3 of Rule 83 of the Rules of Court which provides:

Allowance to widow and family. The widow and minor or incapacitated children of
a deceased person, during the settlement of the estate, shall receive therefrom,
under the direction of the Court, such allowance as provided by law.'

From the foregoing discussion alone, the Court cannot deviate from its duty to give the allowance
sought by the wards, the fact that they need further education which should have been provided to
them if their deceased father were alive.

On the allegation that the funds from which the allowance would be derived are trust funds, the
Court, time and again had emphasized that the estate of the Santeros is quite big and the amount to
be released for allowances is indeed insignificant and which can easily be replaced from its general
fund if the so-called trust fund is adjudicated to the oppositors.

WHEREFORE, Victor, Rodrigo, Anselmina and Miguel, all surnamed Santero are hereby granted an
allowance of two thousand (P2,000.00) pesos each for tuition fees, clothing materials and subsistence
out of any available funds in the hands of the administrator who is ordered to reimburse to them the
said amount after this order shall have become final to enable the oppositors to file their appeal by
certiorari if they so desire within the reglementary period.

SO ORDERED.

Bacoor, Cavite, July 28, 1982.

ILDEFON
SO M.
BLEZA

Executiv
e Judge

(pp. 35-36, Rollo)

It appears from the records that petitioners Princesita Santero-Morales, Federico Santero and Winy Santero are the
children begotten by the late Pablo Santero with Felixberta Pacursa while private respondents Victor, Rodrigo, Anselmina
and Miguel all surnamed Santero are four of the seven children begotten by the same Pablo Santero with Anselma Diaz.
Both sets of children are the natural children of the late Pablo Santero since neither of their mothers, was married to their
father Pablo. Pablo Santero in turn, who died on November 30, 1973 was the only legitimate son of Pascual Santero who
died in 1970 and Simona Pamuti Vda. de Santero who died in 1976.

Meanwhile before We could act on the instant petition private respondents filed another Motion for Allowance dated
March 25, 1985 with the respondent court to include Juanita, Estelita and Pedrito all surnamed Santero as children of the
late Pablo Santero with Anselma Diaz praying that an order be granted directing the administrator Reynaldo C. Evaristo,
to deliver the sum of P6,000.00 to each of the seven (7) children of Anselma Diaz as their allowance from the estate of
Pablo Santero. The respondent Court granted the motion of the private respondents but oppositors (petitioners herein)
asked the court to reconsider said Order.

On September 10, 1985, an Amended Order was issued by respondent Court directing Anselma Diaz to submit her
clarification or explanation as to the additional three (3) children of Anselma Diaz included in the motion. In compliance
therewith Anselma Diaz filed her "Clarification" stating among others that in her previous motions, only the last four minor
children as represented by the mother, Anselma Diaz were included in the motion for support and her first three (3)
children who were then of age should have been included since all her children have the right to receive allowance as
advance payment of their shares in the inheritance of Pablo Santero under Art. 188, of the New Civil Code.
On October 15, 1985, petitioners herein filed their Motion to Admit Supplemental Petition opposing the inclusion of three
(3) more heirs. We denied that "Motion for Extension of Time to file their Supplemental Petition" as per Our Resolution
dated October 23, 1985.

On November 11, 1985, another Order was issued by the respondent court directing the administrator of the estate to
get back the allowance of the three additional recipients or children of Anselma Diaz apparently based on the
oppositors' (petitioners herein) "Urgent Motion to Direct the Administrator to Withhold Disbursement of Allowance to the
Movants."

The issues now being raised in this present Petition are:

1. Whether or not respondent court acted with abuse of discretion amounting to lack of jurisdiction in
granting the allowance to the respondents Victor, Rodrigo, Anselmina and Miguel-P2,000.00 each
despite the fact that all of them are not minors and all are gainfully employed with the exception of
Miguel.

2. Whether or not respondent Court acted with abuse of discretion in granting the allowance based
on the allegations of the said respondents that the abovenamed wards are still schooling and they
are in actual need of money to defray their school expenses for 1982-83 when the truth is that they are
no longer schooling.

3. Whether or not respondent Court acted with abuse of discretion in granting the motion for
allowance without conducting a hearing thereon, to determine the truth of allegations of the private
respondents.

Petitioners argue that private respondents are not entitled to any allowance since they have already attained majority
age, two are gainfully employed and one is married as provided for under Sec. 3 Rule 83, of the Rules of Court.
Petitioners also allege that there was misrepresentation on the part of the guardian in asking for allowance for tuition
fees, books and other school materials and other miscellaneous expenses for school term 1982-83 because these wards
have already attained majority age so that they are no longer under guardianship. They further allege that the
administrator of the estate of Pablo Santero does not have sufficient funds to cover said allowance because whatever
funds are in the hands of the administrator constitute funds held in trust for the benefit of whoever will be adjudged as
owners of the Kawit properties from where these funds now held by the administrator are derived.

In this connection, the question of whether the private respondents are entitled to allowance or not concerns only the
intestate estate of the late Pablo Santero and not the intestate estates of Pascual Santero and Simona Pamuti, parents
of their late legitimate son Pablo Santero. The reason for this is Art. 992 of the New Civil Code which states that "An
illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor
shall such children or relatives inherit in the same manner from the illegitimate child." The question of whether or not the
petitioners and private respondents are entitled to inherit by right of representation from their grandparents more
particularly from Simona Pamuti was settled by Us in the related case of "Anselma Diaz, et al. vs. Felisa Pamuti-Jardin"
(G.R. No. 66574-R) wherein We held that in view of the barrier present in said Art. 992, petitioners and private respondents
are excluded from the intestate estate of Simona Pamuti Vda. de Santero.

The present petition obviously lacks merit.

The controlling provision of law is not Rule 83, Sec. 3 of the New Rules of Court but Arts. 290 and 188 of the Civil Code
reading as follows:

Art. 290. Support is everything that is indispensable for sustenance, dwelling, clothing and medical
attendance, according tothe social position of the family.

Support also includes the education of the person entitled to be supported until he completes his
education or training for some profession, trade or vocation, even beyond the age of majority.

Art. 188. From the common mass of property support shall be given to the surviving spouse and to the
children during the liquidation of the inventoried property and until what belongs to them is delivered;
but from this shall be deducted that amount received for support which exceeds the fruits or rents
pertaining to them.
The fact that private respondents are of age, gainfully employed, or married is of no moment and should not be
regarded as the determining factor of their right to allowance under Art. 188. While the Rules of Court limit allowances to
the widow and minor or incapacitated children of the deceased, the New Civil Code gives the surviving spouse and
his/her children without distinction. Hence, the private respondents Victor, Rodrigo, Anselmina and Miguel all surnamed
Santero are entitled to allowances as advances from their shares in the inheritance from their father Pablo Santero. Since
the provision of the Civil Code, a substantive law, gives the surviving spouse and to the children the right to receive
support during the liquidation of the estate of the deceased, such right cannot be impaired by Rule 83 Sec. 3 of the
Rules of Court which is a procedural rule. Be it noted however that with respect to "spouse," the same must be the
"legitimate spouse" (not common-law spouses who are the mothers of the children here).

It is not true that the Motion for Allowance was granted by respondent Court without hearing. The record shows that the
"Motion for Allowance" dated June 30, 1982 contains a Notice of Hearing (p. 2, Annex "A") addressed to the lawyers for
the petitioners and setting the hearing thereof on July 8, 1982 at 9:00 in the morning. Apparently a copy of said motion
was duly received by the lawyer, Atty. Beltran as he filed an opposition thereto on the same date of hearing of the
motion. Furthermore even the instant petition admits that the wards, (petitioners and private respondents as represented
by their respective guardians) "have been granted allowances for school expenses for about 8 years now." The
respondent court in granting the motion for allowance merely "followed the precedent of the court which granted
a similar motion last year." (Annex "F") However in previous years (1979-1981) the "wards" (petitioners and private
respondents) only received P1,500.00 each depending upon the availability of funds as granted by the court in several
orders. (Annex 1 to Annex 4).

WHEREFORE, in the light of the aforementioned circumstances, the instant Petition is hereby DISMISSED and the assailed
judgment is AFFIRMED.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, and Sarmiento, JJ., concur.

Padilla, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23828 February 28, 1966

PAULINA SANTOS and AURORA SANTOS, petitioners,

vs.
GREGORIA ARANZANSO and DEMETRIA VENTURA, respondents.

Jose W. Diokno for the petitioners.

Eulogio Rafael for the respondents.

BENGZON, J.P., J.:

A petition for adoption of Paulina Santos and Aurora Santos was filed by Simplicio Santos and Juliana Reyes in the Court
of First Instance of Manila on June 4, 1949.1 Paulina Santos was then 17 years old and Aurora Santos, 8 years old. The
petition, which was under oath, alleged inter alia, that the whereabouts of the minors' nearest of kin, particularly their
parents, were unknown; that since the outbreak of the war said minors have been abandoned by their respective
parents; and that for years, since their infancy, said children have continuously been in petitioners' care and custody. A
guardian ad litem Crisanto de Mesa, was thereafter appointed for the minors. Said guardian ad litem forthwith gave his
written consent to the adoption. Paulina Santos, being over fourteen years of age, likewise gave her written consent
thereto.2

After due publication and hearing, the adoption court (CFI) rendered on August 25, 1949 a decision, hereunder quoted
in full:
 This is a petition for the adoption of the minors Paulina Santos Reyes and Aurora Santos Reyes by the spouses
Simplicio Santos and Juliana R. Santos. After due publication in the "National Weekly", a newspaper of general
circulation in the City of Manila, once a week for three consecutive weeks, the case was then set for trial. The
office of the Solicitor General was duly notified of the petition and at the hearing did not offer any
objection.1äwphï1.ñët

From the evidence presented at the hearing, it appears that the petitioners have been married for the past
twenty-seven years and have no children of their own. They desire to adopt the minors Paulina Santos Reyes
and Aurora Santos Reyes, both of whom are and for years have been living under their care and custody; that
the former, since she was barely three months old has already been taken care of by them up to the present
time, and the latter has been cared for since she was only fifteen days old. Paulina Santos Reyes is now
seventeen years old and has given her consent to the adoption as shown by her signature at the foot of the
petition. She ratified the same in open Court. Both parents of the minors have long been unheard from and in
spite of diligent efforts of the petitioners to locate them, they could not be found. The consent to the adoption
has been given by the guardian ad litem appointed by the Court. The petitioners are both proprietors and
have substantial income, more than enough to support and educate the minors. The Court is of the opinion
that this adoption will be for the best interest and welfare of the minors.

WHEREFORE, the Court hereby grants the petition of the spouses Simplicio Santos and Juliana R. Santos to
adopt the minors Paulina Santos Reyes and Aurora Santos Reyes and in accordance with Rule 100 of the Rules
of Court in the Philippines, hence forth, the minors are freed from all legal obligations to their natural parents
and are, to all legal intents and purposes the children of the petitioners.

NOW, ORDERED.

Manila, Philippines, August 25, 1949.

No appeal was taken from the aforesaid decision.

Subsequently — eight years later — on October 21, 1957, Juliana Reyes died, in Manila, without testament. On
November 25, 1957 Simplicio Santos filed in the Court of First Instance of Manila a petition for the settlement of the
intestate estate of Juliana Reyes.3 In said petition he stated among other things that the surviving heirs of the deceased
are: he, as surviving spouse, Paulina Santos and Aurora Santos, 27 and 17 years of age, respectively. In the same petition,
he asked that he be appointed administrator of the estate.

Gregoria Aranzanso, alleging that she is first cousin to the deceased, filed on January 2, 1958 an opposition to the
petition for appointment of administrator. For her grounds she asserted that Simplicio Santos" marriage to the late Juliana
Reyes was bigamous and thus void: and that the adoption of Paulina Santos and Aurora Santos was likewise void ab
initio for want of the written consent of their parents, who were then living and had not abandoned them. An answer to
the opposition was filed by Simplicio Santos on March 7, 1958 and oppositor Aranzanso filed a reply thereto on March 17,
1958.

Demetria Ventura, alleging likewise that she is the first cousin of the deceased Juliana Reyes and adding that she is the
mother of the child Paulina Santos, filed on March 19, 1959 an opposition to the petition of Simplicio Santos to be named
administrator, and, moreover, thereunder adopted, as her own, the pleadings filed by Gregoria Aranzanso.

By order of April 6, 1959, the Court of First Instance decided the point in dispute, ruling that the validity of the adoption in
question could not be assailed collaterally in the intestate proceedings (Sp. Proc. No. 34354). From the order Gregoria
Aranzanso and Demetria Ventura appealed to the Court of Appeals.

In its decision, promulgated on September 14, 1964, the Court of Appeals reversed the appealed order, finding instead
that the adoption was null and void ab initio due to the absence of consent thereto by the natural parents of the minor
children, which it deemed a jurisdictional defect still open to collateral attack.

After denial of their motion for reconsideration by the Court of Appeals, Paulina Santos and Aurora Santos appealed to
this Court by way of petition for review, filed on November 18, 1964, to which due course was given. Five months after
submission of this case for decision — or on October 14, 1965 — petitioners herein filed a petition for preliminary
injunction, and later, on October 26, 1965, a supplemental petition therefor, to stop the trial court from allowing Gregorio
Aranzanso and Demetria Ventura, as well as of two other persons, namely, Consuelo and Pacita Pasion, to intervene in
the settlement proceedings or to withdraw cash advances from the estate.
It was alleged in the petition and supplemental petition for preliminary injunction that on September 22, 1965 the
probate court issued an order allowing Gregoria Aranzanso and Demetria Ventura to intervene in the settlement
proceedings of Juliana Reyes' estate (Sp. Proc. No. 34354); that on October 2, 1965 said court issued an order allowing,
on previous motions therefor, withdrawal of the sum of P7,000 each, under bond, to all the parties,including Gregoria
Aranzanso and Demetria Ventura; that on October 7, 1965 two strangers to the proceedings — the aforesaid sisters
Consuelo and Pacita Pasion — filed a motion, stating that they are also first cousins of the decedent and praying that an
order be issued allowing them to withdraw the sum of P7,000 each under bond; that on October 13, 1965 the same
Pasion sisters filed a supplemental motion in the same proceedings praying that their motion of October 7 be treated as
a motion to intervene; that on October 18, 1965 the probate court issued an order allowing the Pasion sisters to intervene
in the settlement proceedings and allowing them to withdraw under bond the sum of P7,000 each from the funds of the
estate.

On November 4, 1965 respondents, together with Consuelo and Pacita Pasion — who thereby submitted themselves to
this Court's jurisdiction and stated that they, "for purposes of expediency, are also denominated respondents" — filed
their "Comment", as required by this Court, opposing the aforesaid petition for preliminary injunction. On November 15,
1965 this Court granted the prayer for preliminary injunction and the writ was issued upon posting of a bond of P5,000 on
November 20, 1965. Respondents however moved for reconsideration or modification thereof on November 23, 1965,
stating inter alia that they would now be precluded from taking part in the scheduled hearing for settlement of the
accounts of the special administratrix (Araceli A. Pilapil). On November 26, 1965 we ordered modification of the
preliminary injunction, so that on November 29, the writ was modified so as to enjoin the probate court, until further
orders: (1) from hearing and/or approving the settlement of special administratrix's accounts; (2) from allowing any sale,
disposition or disbursement of the estate except when essential for strictly maintenance purposes; and (3) from allowing
respondents, Gregoria Aranzanso and Demetria Ventura, or Consuelo and Pacita Pasion, or any of them, to receive any
advance, cash or otherwise, from the funds of the intestate estate.

The principal issue on the merits in this appeal is whether respondents-oppositors Aranzanso and Ventura, could assail in
the settlement proceedings the adoption decree in favor of Paulina and Aurora Santos. In sustaining their right to make
such a collateral attack, the respondent Court of Appeals rested as abovementioned on the premise that failure to
obtain the consent of the natural parents was a jurisdictional defect rendering the adoption void ab initio. In its view,
said consent was not properly dispensed with, not only because the evidence adduced in the adoption proceedings
was insufficient to support a finding that the parents had abandoned the children, but also since the adoption court
fatally omitted to expressly and specifically find that such abandonment in fact occurred.

In this regard it should be stated that the Court of Appeals completely relied on American jurisprudence and authorities
to the effect that parental consent to the adoption is a jurisdictional requisite (E.g., 2 C.J.S., Adoption of Children, Section
45[a] p. 435; Whetmore vs. Fratello, 282 P2d 667, 670). The point to remember, however, is that under our law on the
matter, consent by the parents to the adoption is not an absolute requisite:

SEC. 3. Consent to adoption.—There shall be filed with the petition a written consent to the adoption signed by
the child if over fourteen years of age and not incompetent, and by each of its known living parents who is not
insane or hopelessly intemperate or has not abandoned such child, or if there are no such parents by the
general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum,
children's home, or benevolent society or person, by the proper officer or officers of such asylum, home, or
society, or by such person; but if the child is illegitimate and has not been recognized, the consent of its father
to the adoption shall not be required. (Rule 100, Old Rules of Court.)4

Stated otherwise, if the natural parents have abandoned their children, consent to the adoption by the guardian ad
litem suffices. This brings as to the question whether in the proceedings at bar the Court of Appeals can still review the
evidence in the adoption case and conclude that it was not sufficiently established therein that the parents of Paulina
and Aurora Santos had abandoned them.

First of all, it is not quite accurate to say that the adoption court made no determination of the fact of abandonment. As
quoted earlier, it is stated in the decision of the adoption court, that:

From the evidence presented at the hearing it appears that the petitioners have been married for the past
twenty-seven years and have no children of their own. They desire to adopt the minors Paulina Santos [y] Reyes
and Aurora Santos [y] Reyes, both of whom are and for years have been living under their care and custody;
that the former, since she was barely three months old has already been taken care of by them up to the
present time, and the latter has been cared for since she was only fifteen days old. Paulina Santos [y] Reyes
is now seventeen years old. . . . Both parents of the minors have long been unheard from and in spite of diligent
efforts of the petitioners to locate them, they could not be found. The consent to the adoption has been given
by the guardian ad litem appointed by the Court. . . . . (Emphasis supplied.)
Abandonment — under persuasive American rulings — imports "any conduct on the part of the parent which evinces a
settled purpose to forgo all parental duties and relinquish all parental claims to the child". It means "neglect or refusal to
perform the natural and legal obligations of care and support which parents owe to their children." (2 Am. Jur. 2d,
Adoption, Sec. 32, pp. 886-887.) It can thus readily be seen that altho the CFI judgment approving the adoption does
not use the word "abandoned", its findings sufficiently contain a set of facts and circumstances which truly constitutes a
finding of abandonment.

Coming now to the power of the Court of Appeals to review in this case the finding of abandonment made by the
adoption court, we find that even under American jurisprudence — relied upon, as stated, by said Court — the settled
rule is that even when the jurisdiction of an inferior or special tribunal depends upon the existence of a fact to be
established before it, the determination of that fact by the tribunal cannot be questioned in a collateral attack upon its
order (In re McKaeg's Estate, 141 Cal. 403, 74 Pac. 1039, 1040; In re Camp's Estate, 131 Cal. 469, 63 Pac. 736).

Anent this point the rulings are summed up in 2 American Jurisprudence, 2nd Series, Adoption, Sec. 75, p. 922, thus:

An adoption order implies the finding of the necessary facts and the burden of proof is on the party attacking
it; it cannot be considered void merely because the fact needed to show statutory compliance is obscure.
While a judicial determination of some particular fact, such as the abandonment of his next of kin to the
adoption, may be essential to the exercise of jurisdiction to enter the order of adoption, this does not make it
essential to the jurisdictional validity of the decree that the fact be determined upon proper evidence, or
necessarily in accordance with the truth; a mere error cannot affect the jurisdiction, and the determination
must stand until reversed on appeal, and hence cannot be collaterally attacked. If this were not the rule, the
status of adopted children would always be uncertain, since the evidence might not be the same at all
investigations, and might be regarded with different effect by different tribunals, and the adoption might be
held by one court to have been valid, while another court would hold it to have been of no avail.

Freeman on Judgments says the same thing:

In general, therefore, where the right of the court to assume jurisdiction of a cause and proceed to judgment
depends upon the ascertainment of facts in pais and the court retains jurisdiction it thereby impliedly adjudges
that the requisite jurisdictional facts exist and having found such facts in favor of jurisdiction, its decision in this
respect, whether erroneous or not, cannot be questioned in a collateral proceedings, for a presumption arises
in such cases, when the validity of the judgment is attacked, that the necessary jurisdictional facts were
proven. . . . . (Vol. I, Sec. 350, pp. 719-720.)

The Supreme Court of Wisconsin, construing a statute akin to our law in this regard, said in Parsons vs. Parsons, 101 Wis. 76,
77 N.W. 147, 148:

The statute to be considered is section 4022, Rev. St. 1878, which reads as follows: "No such adoption shall be
made without the written consent of the living parents of such child unless the court shall find that one of the
parents has abandoned the child or gone to parts unknown." Thus it will be seen that upon the fact being
established that the living parent has abandoned his child, he is deemed by the statute to have thereby
relinquished all parental right to be consulted in respect to the child's welfare, and his consent to the adoption
is therefore dispensed with. The term "abandon" obviously means no more than neglect or refusal to perform
the natural and legal obligations of care and support which parents owe to their children. The fact of
abandonment, judicially determined, was essential to the jurisdiction; not essential that it should be determined
on proper evidence, necessarily, or in accordance with the truth, because mere error in that regard does not
affect jurisdicition. If jurisdiction be obtained to determine a fact, its determination wrong or on insufficient or
improper evidence is immaterial oh the question of legal right to proceed judicially to the next step. That is
deemed to be elementary... A judicial determination may be contrary to conclusive evidence, or legal
evidence, or without any evidence, yet cannot be impeached for want of jurisdiction. Van Fleet, Coll. Attack,
Secs. 663, 665. That rule applies to all judicial proceedings. . . . .

It follows, therefore, that the Court of Appeals erred in reviewing, under a collateral attack, the determination of the
adoption court that the parents of Paulina and Aurora Santos had abandoned them. This is so even if such fact of
abandonment is deemed jurisdictional, a point which we need not — and do not — rule upon in this case.

For the same reason, it is not in point to argue here that Simplicio Santos in fact concealed the adoption proceedings
from the natural parents, thereby rendering the judgment obtained therein null and void or being secured by extrinsic
fraud. The rule is well recognized that a judgment can be set aside on the ground of extrinsic fraud only in a separate
action brought for that purpose; not by way of collateral attack (Gomez vs. Concepcion, 47 Phil. 717; Ramos vs.
Mañalac, 89 Phil. 270).
Anent the alleged lack of notice of the adoption proceedings on the natural parents, suffice it to mark that adoption is a
proceeding in rem5 and that constructive notice, such as the publication duly made as aforesaid, is enough where the
residence of the parents is unknown (2 Am. Jur., 2d, Adoption, Sec. 56, p. 906). Notice, moreover, is not required in
adoption cases in regard to the abandoning parent (Parsons vs. Parsons, supra).

Assuming that Simplicio Santos was not validly married to Juliana Reyes, it will not make any difference as far as the right
of respondents to intervene in the intestate proceedings is concerned. Juliana Reyes should then be deemed to have
filed the petition for adoption as a person whose status is single, not married. The defect would then lie only as to
Simplicio Santos, who, as allegedly married to another person (a point that we do not decide in this case), could not
adopt without joining his wife in the petition.6 It being the estate of Juliana Reyes that is the subject matter of the
settlement proceedings, the flaw, if any, would not affect the consideration of the right of Paulina and Aurora Santos to
succeed as adopted children of Juliana Reyes, to the exclusion of respondents.

It must not be forgotten that the philosophy behind adoption statutes is to promote the welfare of the child. Accordingly,
the modern trend is to encourage adoption (Prasnik vs. Republic, 5 O.G. 1942) and every reasonable intendment should
be sustained to promote that objective.

From 2 Corpus Juris Secundum 375-376 we quote:

Accordingly, as the main purpose of adoption statutes is the promotion of the welfare of children, bereft of the
benefits of the home and care of their real parents, wherever possible without doing violence to the terms of
the statute, such a construction should be given adoption laws as will sustain, rather than defeat, this purpose.

Although, as against the interests of the child, the proceedings must be strictly in accordance with the statute,
there is a tendency on the part of the courts, however, where the adoption has been fully consummated, to
construe the statute with a reasonable degree of liberality, to the end that the assumed relationship and the
intention of the parties be upheld, particularly as against strangers to the proceedings collaterally attacking
them . . . .

From all the foregoing it follows that respondents-oppositors Aranzanso and Ventura and those who, like them (Pasion
sisters), claim an interest in the estate of Juliana Reyes as alleged first cousins, cannot intervene, as such, in the
settlement proceedings, in view of the fact that in the order of intestate succession adopted children exclude first
cousins (Articles 979 and 1003, New Civil Code). The same holds true as long as the adoption must be — as in the instant
case — considered valid.

Wherefore, the judgment of the Court of Appeals is hereby reversed and the order of the probate court a quosustaining
the adoption, dated April 6, 1959, is affirmed. Respondents Gregoria Aranzanso and Demetria Ventura as well as
Consuelo and Pacita Pasion are declared without right to intervene as heirs in the settlement of the intestate estate of
Juliana Reyes. The preliminary injunction heretofore issued is dissolved, except insofar as it enjoins the intervention or
allowance of withdrawals of properly from the estate by Gregoria Aranzanso, Demetria Ventura, Consuelo and Pacita
Pasion, in the concept of heirs, as to which it is hereby made permanent. No costs. So ordered.

Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Sanchez, JJ., concur.
Bengzon, JJ., took no part.

RESOLUTION

May 19, 1966.

BENGZON, J.P., J.:

Respondents, thru newly retained counsel, Atty. Juan T. David, moved for reconsideration of Our decision of February 28,
1966 and/or modification of its dispositive portion. A supplemental motion thereto was filed by respondents' other
counsel, Atty. Cuadrajento A. Mendoza. In addition, a motion to substitute pages 11 and 12 of the motion for
reconsideration was made, which is hereby granted. The substitute pages are already in the record. Also, we received
and take, note of respondents' counsels' manifestation and comment.

1. The principal argument of movants is that the adoption court made no finding of abandonment by the natural
parents of the children sought to be adopted. Altho the point has already been fully discussed in the decision, it will
elaborate further on the same.
It is now argued that such long absence and status of being unheard from on the part of the natural parents, and their
having left their children since infancy to the care and custody of others, is not abandonment, for the reason that
abandonment must be willful and that time is not an element of abandonment.

As stated in the decision, abandonment means, under persuasive American rulings, "any conduct on the part of the
parent which evinces a settled purpose to forgo all parental duties and relinquish all parental claims to the child."1 In
other words, "neglect or refusal to perform the natural and legal obligations of care and support which parents owe to
their children.2

Negligent and careless failure to perform the duties of parenthood is a significant element of abandonment, regardless
of actual intention. (Emmons v. Dinelli, 235 Ind. 249, 133 NE 2d 56.) And as to the element of time, far from being
immaterial, it is recognized that: "A strong basis for a finding of the parents' abandonment of his or her child is found in
the case where the parent has left the child permanently or indefinitely in the care of others, given it to another, or
surrendered it entirely." (2 Am. Jur. 2d, 888; Emphasis supplied.)

It cannot seriously be disputed, therefore, that the adoption court did find that the fact of abandonment by the parents
was attendant. It was rule In re Asterbloom's Adoption, 63 Nev. 190, 166 P 2d 157 that: "A parent who withholds his
presence, his love, his care, and the opportunity to display filial affection, and neglects to lend support and
maintainance, relinquishes all parental claim and abandons the child."3 Such elements of abandonment are what the
findings of the adoption court, abovementioned, amount to.

2. Pursuing the argument, movants contend that, at any rate, according to the Court of Appeals, said finding of
abandonment had totally no support in the evidence. For the Court of Appeals to arrive at such a conclusion, however,
it had to pass under review the entire proceedings in the adoption court. And as ruled by us in the decision, it cannot do
so in a collateral suit, but only in a direct action for that purpose. It must not be lost sight of, that what was before the
Court of Appeals was not an appeal from the decision of the adoption court, or a direct suit assailing the adoption, but
an appeal from an order in the settlement proceedings where the adoption was sought to be collaterally attacked.
Accordingly, said Court was not in a position to determine that the findings of the adoption court had totally no support
in the evidence. For even assuming that the finding of abandonment is jurisdictional, Freeman on Judgments, to repeat,
states the settled rule that a finding that the requisite jurisdictional facts exist, whether erroneous or not, cannot be
questioned in a collateral proceedings, for a presumption arises in such cases, where the validity of the judgment is thus
attacked, that the necessary jurisdictional facts were proven. (Vol. I, 350, pp. 719-720)

3. In regard to the cases of Hook vs. Wright, 160 NE 479 and In Re McCormick's Estate, 84 NW 559, relied upon once
more by movants, suffice it to observe: First, that in the Hook case it was expressly ruled that "Neither the petition nor the
degree made any reference or finding as to such desertion."4 Secondly, the McCormick case, far from overruling Parsons
v. Parsons,5 distinguished therefrom, in that in the Parsons case the fact of abandonment was judicially determined,
whereas, in the said McCormick case, there was no fact of abandonment being found by the lower court.6 It being Our
view in the present case before Us that the adoption court made a finding of the fact of abandonment, said cases
invoked by movants do not apply.

4. Apparently in reply to Our reference to the trend in modern jurisprudence to sustain adoption in the face of collateral
attack, movants stress that parental ties are too noble and sacred to be lightly severed in the absence of a written
consent of the parents. It cannot be stressed too much that the parental consent required by the law refers to parents
who have not abandoned their child (Sec. 3, Rule 100, Rules of Court). And from the findings of the adoption court, it is
rather something remarkable that the natural parents of the children herein involved paid no heed to the sanctity and
nobility of the selfsame parental ties for almost twenty years. It would seem, from all that appears in this collateral attack,
that only when a fortune was bequeathed and about to befall upon their children, did said parents come to the fore,
not alas to assert parental rights in order to enhance the welfare of said children, but to defeat their claim to the estate
as adopted children, so as to succeed to said estate themselves, as collateral heirs. Such attitude strikes Us as too selfish
for parents to take, so much so that it would not be surprising if said parents were impelled thereto by other would-be
successors. At any rate, for such purposes, the sacredness of parental ties cannot be invoked. In such cases, the rule that
favors sustaining the validity of adoptions under collateral attack holds true with full vigor.

5. It is also raised that if Juliana Reyes was not validly married to Simplicio Santos, a point We did not decide, their joint
petition for adoption would be defective, since only Simplicio Santos signed the same. As We said, the petition would
then be deemed that of Juliana Reyes alone; as to the signature, Simplicio Santos may likewise be deemed to have
signed in behalf of Julian Reyes, as her representative. Personal signature by the petitioner of the petition to adopt is not
among the requisites of the law. At any rate, any defect on his has obviously been cured by Juliana Reyes' subsequent
prosecution of the adoption case.

6. Respondents-movants would cite Ragudo vs. Pasno, L-16642, April 18, 1962, where this Court stated:
 But this is not an adoption case. This is a civil action to annul an order of a justice of the peace court, allegedly
obtained thru fraud. It is based on Sec. 43 of Act 196. Of such action, justice of the peace Courts can not take
cognizance. And it falls within the general jurisdiction of courts of first instance.

It is argued for the appellees that under Art. 348 of the New Civil Code, fraud is not one of the grounds for
revocation of an adoption. The appellants reply, quite correctly, that those grounds refer only to an
adoption validly decreed — not to an adoption void from the beginning because tainted with fraud. Anyway,
this is an argument that should be submitted when the case is considered on the merits.

Said case, however, involved a direct action to annul an adoption decree on the ground of fraud. Furthermore, the
ruling therein is simply that such direct action falls within the jurisdiction of the Court of First Instance, not the municipal
court. The second paragraph abovequoted is, therefore, not ratio decidendi, as shown by the last sentence therein:
"Anyway, this is an argument that should be submitted when the case is considered on the merits."

7. Anent the motion for modification of the dispositive portion of Our decision, the same is due to the fear that the same
may be interpreted as foreclosing respondents' avenue — if any is open at this stage — to a direct action to annul the
adoption decree. Suffice it therefore to clarify the same. Said dispositive portion ought to be read together with relevant
discussions in the body of the decision, especially the last sentence immediately preceding it: "The same holds true as
long as the adoption must be — as in the instant case — considered valid." Should respondents, therefore, succeed by a
direct attack in invalidating the adoption, the dispositive portion of this Court's decision herein shall not be deemed to
hinder their rights thereunder. Furthermore, said dispositive portion described the court a quo's order of April 6, 1959 as
sustaining the adoption, in the sense of holding it valid in the face of a collateral attack, nothing more. As to whether a
direct attack will prosper or not, We say nothing, and can say nothing, in this case. Thus clarified, We see no further need
to modify the dispositive portion of Our decision. Motion denied. So ordered.

Bengzon, C.J., Bautista Angelo, Dizon, Regala, Makalintal, Zaldivar and Sanchez, JJ., concur.

Footnotes

1Special Proceedings No. A-232.

2See CFI decision approving adoption, quoted in Petitioners' Brief, pp. 41-43, infra.

3Special Proceedings No. 34354.

4See also Sec. 3, Rule 99, Revised Rules of Court.

5Jacinto, Special Proceedings, 1965 Ed., p. 347; Van Matre vs. Sankey, 148 Ill. 536; 36 N.E. 628.

6Sec. 2, Rule 100, Rules of Court (Old), then applicable.

12 Am. Jur. 2d 886. Anent this definition, Atty. Cuadrajento Mendoza states that we inadvertently omitted the
phrase "and to renounce and forsake the child entirely." Said phrase, however, follows after the superscript for
footnote 9, and belongs to that for footnote 10; it is the definition of the majority of cases, found under footnote
9, that We referred to. See 2 Am. Jur. 2d 886-887. At any rate, they amount to the same things: (1) a settled
purpose to forgo all parental duties and relinquish all parental claims to the child; and (2) a settled purpose
to renounce and forsake the child entirely.

2Ibid.

3See 2 Am. Jur. 2d 887, footnote 10.

4See p. 33 of Supplemental motion quoting the same.

5101 Wis. 76, 77 NW 147.

6Cf. p. 35 of Supplemental motion.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-34568 March 28, 1988

RODERICK DAOANG, and ROMMEL DAOANG, assisted by their father, ROMEO DAOANG, petitioners,
vs.
THE MUNICIPAL JUDGE, SAN NICOLAS, ILOCOS NORTE, ANTERO AGONOY and AMANDA RAMOS-AGONOY, respondents.

PADILLA, J.:

This is a petition for review on certiorari of the decision, dated 30 June 1971, rendered by the respondent judge * in Spec.
Proc. No. 37 of Municipal Court of San Nicolas, Ilocos Norte, entitled: "In re Adoption of the Minors Quirino Bonilla and
Wilson Marcos; Antero Agonoy and Amanda R. Agonoy, petitioners", the dispositive part of which reads, as follows:

Wherefore, Court renders judgment declaring that henceforth Quirino Bonilla and Wilson Marcos be,
to all legitimate intents and purposes, the children by adoption of the joint petitioners Antero Agonoy
and Amanda R. Agonoy and that the former be freed from legal obedience and maintenance by
their respective parents, Miguel Bonilla and Laureana Agonoy for Quirino Bonilla and Modesto Marcos
and Benjamina Gonzales for Wilson Marcos and their family names 'Bonilla' and 'Marcos' be changed
with "Agonoy", which is the family name of the petitioners.

Successional rights of the children and that of their adopting parents shall be governed by the
pertinent provisions of the New Civil Code.

Let copy of this decision be furnished and entered into the records of the Local Civil Registry of San
Nicolas, Ilocos Norte, for its legal effects at the expense of the petitioners. 1

The undisputed facts of the case are as follows:

On 23 March 1971, the respondent spouses Antero and Amanda Agonoy filed a petition with the Municipal Court of San
Nicolas, Ilocos Norte, seeking the adoption of the minors Quirino Bonilla and Wilson Marcos. The case, entitled: "In re
Adoption of the Minors Quirino Bonilla and Wilson Marcos, Antero Agonoy and Amanda Ramos-Agonoy, petitioners",
was docketed therein as Spec. Proc. No. 37. 2

The petition was set for hearing on 24 April 1971 and notices thereof were caused to be served upon the office of the
Solicitor General and ordered published in the ILOCOS TIMES, a weekly newspaper of general circulation in the province
of Ilocos Norte, with editorial offices in Laoag City. 3

On 22 April 1971, the minors Roderick and Rommel Daoang, assisted by their father and guardian ad litem, the
petitioners herein, filed an opposition to the aforementioned petition for adoption, claiming that the spouses Antero and
Amanda Agonoy had a legitimate daughter named Estrella Agonoy, oppositors' mother, who died on 1 March 1971,
and therefore, said spouses were disqualified to adopt under Art. 335 of the Civil Code. 4

After the required publication of notice had been accomplished, evidence was presented. Thereafter, the Municipal
Court of San Nicolas, Ilocos Norte rendred its decision, granting the petition for adoption. 5

Hence, the present recourse by the petitioners (oppositors in the lower court).

The sole issue for consideration is one of law and it is whether or not the respondent spouses Antero Agonoy and
Amanda Ramos-Agonoy are disqualified to adopt under paragraph (1), Art. 335 of the Civil Code.

The pertinent provision of law reads, as follows:

 Art. 335. The following cannot adopt:

(1) Those who have legitimate, legitimated, acknowledged natural children, or children by legal
fiction;

xxx xxx xxx

In overruling the opposition of the herein petitioners, the respondents judge held that "to add grandchildren in this article
where no grandchil is included would violate to (sic) the legal maxim that what is expressly included would naturally
exclude what is not included".

But, it is contended by the petitioners, citing the case of In re Adoption of Millendez,6 that the adoption of Quirino Bonilla
and Wilson Marcos would not only introduce a foreign element into the family unit, but would result in the reduction of
their legititimes. It would also produce an indirect, permanent and irrevocable disinheritance which is contrary to the
policy of the law that a subsequent reconciliation between the offender and the offended person deprives the latter of
the right to disinherit and renders ineffectual any disinheritance that may have been made.

We find, however, that the words used in paragraph (1) of Art. 335 of the Civil Code, in enumerating the persons who
cannot adopt, are clear and unambiguous. The children mentioned therein have a clearly defined meaning in law and,
as pointed out by the respondent judge, do not include grandchildren.

Well known is the rule of statutory construction to the effect that a statute clear and unambiguous on its face need not
be interpreted; stated otherwise, the rule is that only statutes with an ambiguous or doubtful meaning may be the
subject of statutory construction. 7

Besides, it appears that the legislator, in enacting the Civil Code of the Philippines, obviously intended that only those
persons who have certain classes of children, are disqualified to adopt. The Civil Code of Spain, which was once in force
in the Philippines, and which served as the pattern for the Civil Code of the Philippines, in its Article 174, disqualified
persons who have legitimate or legitimated descendants from adopting. Under this article, the spouses Antero and
Amanda Agonoy would have been disqualified to adopt as they have legitimate grandchildren, the petitioners herein.
But, when the Civil Code of the Philippines was adopted, the word "descendants" was changed to "children", in
paragraph (1) of Article 335.

Adoption used to be for the benefit of the adoptor. It was intended to afford to persons who have no child of their own
the consolation of having one, by creating through legal fiction, the relation of paternity and filiation where none exists
by blood relationship. 8 The present tendency, however, is geared more towards the promotion of the welfare of the
child and the enhancement of his opportunities for a useful and happy life, and every intendment is sustained to
promote that objective.9 Under the law now in force, having legitimate, legitimated, acknowledged natural children, or
children by legal fiction, is no longer a ground for disqualification to adopt. 10

WHEREFORE, the petition is DENIED. The judgment of the Municipal Court of San Nicolas, Ilocos Norte in Spec. Proc. No.
37 is AFFIRMED. Without pronouncement as to costs in this instance.

SO ORDERED.

Yap, Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Footnotes

* Judge Pascual C. Barab.

1 Rollo, pp. 19-20.

2 Id., p. 8.

3 Id., p. 12.
 4 Id., p. 13.

5 Id., p. 14.

6 G.R. No. L-28195, June 10, 1971, 39 SCRA 499.

7 2 Sutherland, Statutory Construction, 3rd. ed., Section 4502, p. 316.

8 In re Adoption of Resaba, 95 Phil. 244.

9 Santos vs. Aranzanso, 123 Phil. 160.

10 Child and Welfare Code, Art. 28.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-62465 May 24, 1985

SPOUSES ERNESTO S. NIETO and MATILDE NILO NIETO, petitioners,

vs.
HON. ROMEO D. MAGAT JUDGE DESIGNATE OF THE COURT OF FIRST INSTANCE OF PANGASINAN, THIRD JUDICIAL DISTRICT,
BRANCH XIII, respondents.

Floro Abelon for petitioners.

ABAD SANTOS, J.:

This is a petition to review the decision of the defunct Court of First instance of Pangasinan in Special Proceedings No.
A540 for adoption of a minor child.

The spouses Ernesto S. Nieto and Matilde Nilo Nieto filed a petition to adopt Roy Nieto Sumintac, their nephew. The
spouses are childless and they reared Roy from his birth in 1971 until 1975 and they continue to support him. Roy had to
be left in the Philippines when the spouses went to Guam wherefore husband is employed.

The Ministry of Social Services and Development favorably recommended the adoption to the court. It said that the
petitioners are in a better position to provide for the minor child considering that his natural parents are impoverished
Despite the favorable recommendation, the court denied the petition. It said:

Under the facts and evidence adduced, the petition should be DENIED. Firstly, the adopting parents
are non-residents of the Philippines. The report of the Ministry of Social Services and Development,
through its Social Worker, is explicit in this regard. Secondly, the trial custody as required by PD 603
cannot be effected as the petitioners are non-residents. Presumably, they are already aliens. In this
situation, technicalities may later be encountered should the petition be granted. (Rollo, p. 10.)

In the resolution of February 21, 1983, the respondent judge as well as the Minister of Social Services and Development
were required to comment on the petition. Because of bureaucracy the latter's comment was filed only on April 23,
1985. It prays that the judgment of the trial court be reversed and another rendered granting the petition for adoption of
the minor Roy Nieto Sumintac. We agree.

That the adopting parents are non-residents of the Philippines (albeit presumably temporarily only) is an uncontested
fact. That "they are already aliens" is an unjustified conclusion it has no basis.
Does the fact that the petitioner reside temporarily in Guam disqualify them from adopting the minor child? A reading of
Articles 27 and 28 of P.D. No. 603 gives a negative answer. They provide as follows:

Art. 27. Who May Adopt. — Any person of age and in full possession in his civil rights may
adopt: Provided, That he is in a position to support and care for his legitimate, legitimated,
acknowledged natural children, or natural children by legal fiction, or other illegitimate children, in
keeping with the means, both material and otherwise, of the family.

In all cases of adoption, the adopter must be at least fifteen years older than the person to be
adopted.

Art. 28. Who May Not Adopt. — The following persons may not adopt:

(1) A married person without the written consent of the spouse;

(2) The guardian with respect to the ward prior to final approval of his accounts;

(3) Any person who has been convicted of a crime involving moral turpitude;

(4) An alien who is disqualified to adopt according to the laws of his own country or one with whose
government the Republic of the Philippines has broken diplomatic relations. (Rollo, pp. 46-47.)

The trial court also said that adoption had to be denied because "the trial custody as required by PD 603 cannot be
effected as the petitioners are non-residents." But Art. 35 of P.D. No. 603 specifically authorizes the court, either upon its
own or on petitioner's motion, to dispense with the trial custody if it finds that it is to the best interest of the child. The
Minister of Social Services and Development suggests that the trial custody is unnecessary because:

We submit that the six months trial custody is only observed to insure the emotional adjustment of the
child to his adoptive family, which is now at this point unnecessary, considering that both parties are
ready for their legal union. It was indicated that the minor is comfortable with the adopters. Moreover,
the petitioners can obviously discipline the child without being doubtful if the child can accept them
as his own true parents. The adoption of minor-nephew would even strengthen the family solidarity of
petitioners and the child with all the rights and duties appertaining thereto. (Rollo, pp. 49-50.)

WHEREFORE, the petition is granted; the decision of the court a quo is reversed the petition for adoption is granted. No
costs.

SO ORDERED.

Makasiar (Chairman), Aquino, Escolin and Cuevas, JJ., concur.

Concepcion, Jr., J, is on leave.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-30576 February 10, 1976

ROBIN FRANCIS RADLEY DUNCAN and MARIA LUCY CHRISTENSEN, petitioners,

vs.
COURT OF FIRST INSTANCE OF RIZAL (Branch X) PRESIDED OVER BY HON. JUDGE HERMINIO C. MARIANO, respondent.
Susano A. Velasquez for petitioners.

Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Hector C. Fule and Trial Attorney Herminio Z. Florendo
for respondent.

ESGUERRA, J.:

Petition for review on certiorari of the decision of respondent court, dated June 27, 1968, dismissing petitioners' petition to
adopt the minor, Colin Berry Christensen Duncan. It seeks to have the findings and conclusions of law contained in -the
decision annulled and revoked and to declare the petition for adoption meritorious and the child sought to be adopted,
the minor Colin Berry Christensen Duncan, declared the child by adoption and heir of herein petitioners-Appellants.
Robin Francis Radley Duncan and Maria Lucy Christensen. 1

Petitioners Robin Francis Radley Duncan and Maria Lucy Christensen are husband and wife, the former a British national
residing in the Philippines for the last 17 years and the latter an American citizen born in and a resident of the Philippines.
Having no children of their own but having previously adopted another child, said spouses filed a petition with
respondent court (Sp. Proc. No. 5457) for the adoption of a child previously baptized and named by them as Colin Berry
Christensen Duncan. The petition is filed and denominated as Sp. Proc. No. 5457.

In the decision rendered by respondent Court dated June 27, 1968, the petition for adoption was dismissed. 2

The principal reason given for the dismissed al of the petition was that ... the consent given in this petition Exhibit "J" is
improper and falls short of the express requirement of the law. 3

Rationalizing its action respondent Judge said:

Art. 340 (of the Civil Code) provides that the written consent of the following to the adoption shall be
necessary:

2. The guardian or person in charge of the person to be adopted.

"Under the law aforementioned, it will be noted that the law is couched in mandatory terms by the word SHALL be
necessary, and it enumerates the persons who will give the consent to the adoption in the order as follows: parents,
guardian, or the person in charge of the person to be adopted.

It is admitted by witness Velasquez that she knew the identity of the mother who gave her the child.
This being the case, the proper person who is supposed to give the parental consent to the adoption
should first be, in the order of preference, the parent or the mother herself. 4

On the allegation of petitioners that their principal witness, Atty. Corazon de Leon Velasquez, under whose care the
newly-born child was entrusted by the unwedded mother, could not reveal the identity of the mother because it would
violate the privileged communications between the attorney and client, respondent Judge explained: "The contention
that for her (Atty. Corazon de Leon Velasquez, the witness for the petitioners who gave the written consent to the
adoption of the child in her capacity as loco parentis to said child) to reveal the identity of the mother would be
violative of the client-attorney relationship existing between her and the mother cannot hold water, because in the first
place, there was no such relationship existing between them in so far as this case is concerned and secondly, it is not
only a question of revealing the identity of the mother but rather, of giving consent to adoption by that alleged unwed
mother."5

Taking exception to respondent Judge's decision and the ratio decidendi thereof, appellants-petitioners alleged the
following as errors committed by the trial court: 6

1) The inviolability of privileged communication between attorney and client is only binding upon the
attorney in the same case where such relationship of attorney and client arose when the client
imparted the privileged communication and that elsewhere or in another case the attorney is not
bound to the secrecy;
 2) The infant that was given away by the natural mother, even without the latter providing for the
child's maintenance and support, could not be considered as abandoned;

3) The stranger who received the baby or child, in this case, Atty. Corazon de Leon Velasquez, could
not be considered as the guardian de facto and in loco parentis of the child, and therefore, is not
empowered by law to give written consent to the adoption;

4) That whenever and as long as the natural mother is known to anybody, only said natural mother
can give the written consent to the adoption;

5) That the term "person in charge of the person to be adopted", one of those who can give consent
to the adoption under Article 340 of the Civil Code, means or refers to institutions or orphanages
established for the purpose of rearing orphans, foundlings and destitute children.

The facts of this case are few and simple.

a) Sometime in May, 1967, a child, less than a week old (only 3 days old) 7 was given to petitioners
Robin Francis Radley Duncan and his wife Maria Lucy Christensen, for them to adopt, by Atty.
Corazon de Leon Velasquez. The child was later on baptized as Colin Berry Christensen Duncan with
the aforementioned espouses appearing in the records of said baptism as the parents of said child; 8

b) Atty. Corazon de Leon Velasquez on the other hand, received the infant from the child's unwed
mother who told the former never to reveal her (the mother's) identity because she wanted to get
married and did not want to destroy her future. The mother instructed Atty. Corazon de Leon
Velasquez to look for a suitable couple who will adopt the child. The mother did not provide for the
maintenance and support of her child; 9

c) In the petition for adoption filed by petitioners in September, 1967, Atty. Corazon de Leon
Velasquez, as the de facto guardian or loco parentis of the child subject of the adoption petition,
gave the written consent required by law; 10

d) Learning, from the testimony of witness Atty. Corazon de Leon Velasquez that the natural mother of
the child sought to be adopted was still alive, the court then pressed upon the witness to reveal the
identity of said mother. The witness refused to divulge the same on the ground that there existed an
attorney and client relationship between them. She had been instructed by her client not to reveal
the latter's identity. She could not now violate such privilege communication. 11

After examining the facts and the arguments presented, it appears to this Court that there is only one principal issue
involved, i.e., whether or not the person who gave the consent for adoption, which in this case is Atty. Corazon de Leon
Velasquez, is the proper person required by law to give such consent.

The law applicable is. Art. 340 of the Civil Code, which provides:

Art. 340. The written consent of the following to adoption shall be necessary:

(1) The person to be adopted, if fourteen years of age or over;

(2) The parents, guardian or person in charge of the person to be adopted.

On the other hand, the Rules of Court (Rule 99) has this to say on those who are required to give consent in adoption:

Sec. 3. Consent to adoption. — There shall be filed with the petition a written consent to the adoption
signed by the child, if fourteen years of age or over and not incompetent, and by the child's spouse, if
any, and by each of its known living parents who is not an insane or hopelessly intemperate or has not
abandoned such child, or if there are no such parents by the general guardian, or guardian ad
litem of the child, or if the child is in the custody of an orphan asylum, children's home, or benevolent
society or person, by the proper officer or officers of such asylum, home, or society, or by such person;
but if the child is illegitimate and has not been recognized, the consent of its father to the adoption
shall not be required.
Going by the set of facts in this case, only one of two persons particularly described by law may be considered here as
legally capable of giving the required written consent. They are:

Under Art. 340 of the Civil 'Code, the "parent, guardian or person in charge of the person to be adopted" while the other
one is that mentioned in Section 3, Rule 99 of the Rules of Court, describing it as each of the known living parents "who
has not abandoned such child." The father's consent here is out of the question as the child is illegitimate and
unrecognized.

Since the person whose written consent to the adoption (Atty: Corazon de Leon Velasquez) is assailed by the trial court
as being unauthorized and had consequently caused the rejection of the petition, this Tribunal will now look into her
alleged authority or lack thereof to give the controverted consent.

Sometime in May of 1967, the child subject of this adoption petition, undisputedly declared as only three days old then,
was turned over by its mother to witness Atty. Corazon de Leon Velasquez. The natural and unwedded mother, from that
date on to the time of the adoption proceedings in court which started in mid- year of said 1967, and up to the present,
has not bothered to inquire into the condition of the child, much less to contribute to the livelihood, maintenance and
care of the same. In short, this parent is the antithesis of that described in the law as "known living parent who is not
insane Or hopelessly intemperate or has not abandoned such child." We are convinced that in fact said mother had
completely and absolutely abandoned her child. This Court has previously declared that abandonment imports any
conduct on the part of the parent which evinces a settled purpose to forego all parental claims to the child. 12 Applying
this legal yardstick, the unidentified mother of the child in this case can be declared, as she is hereby declared, as
having abandoned her child with all legal consequences attached thereto.

Having declared that the child was an abandoned one by an unknown parent, there appears to be no more legal
need to require the written consent of such parent of the child to the adoption. As had been said by this Court in the
aforecited case of Santos vs. Aranzanso, the parental consent required by the law in adoption proceedings refers to
parents who have not abandoned their child. 13 The question now is whether or not Atty. Corazon de Leon Velasquez,
the undisputed custodian of the abandoned waif may be considered as the guardian under Art. 340 or the person
standing in loco parentis of said infant contemplated in Art. 349 of the Civil Code.

It seems to Us that when the 3-day old baby was left to and placed in the hands of Atty. Corazon de Leon Velasquez,
the helpless infant was in dire need of someone who could give it protection and sustain its delicate and fragile life. Atty.
Velasquez was under no legal compulsion to accept the child and to extend to it the protection and care it badly
needed. Since there had been no showing that the identity of the natural mother was made known to the trial court or
to the herein petitioners, nor had said mother seen fit to present herself before the court despite the public notice given
to the proceedings as required by law, there clearly appears only one person who could be considered as the guardian
exercising patria potestas over such abandoned child. Since there was no guardian ad litem appointed by the court
and the child not being in the custody of an orphan asylum, children's home or any benevolent society, there could not
have been anyone other than Atty. Corazon de Leon Velasquez who could, with reason, be called the guardian of said
infant. It was she who had actual. physical custody of the infant and who, out of compassion and motherly instinct,
extended the mantle of protection over the hapless and helpless infant which otherwise could have suffered a tragic
fate, like being thrown into some garbage heap as had often happened to some unwanted illegitimate babies. The
least this Court could do to recognize and acknowledge her good Samaritan deed is to extend, as it hereby extends, to
her the recognition that she was a de facto guardian exercising patria potestas over the abandoned child.

The trial court in its decision had sought refuge in the ancient Roman legal maxim "Dura lex sed lex" to cleanse its hands
of the hard and harsh decision it rendered. While this old adage generally finds apt application in many other legal
cases, in adoption of children, however, this should be softened so as to apply the law with less severity and with
compassion and humane understanding, for adoption is more for the benefit of unfortunate children, particularly those
born out of wedlock, than for those born with a silver spoon in their mouths. All efforts or acts designed to provide homes,
love, care and education for unfortunate children, who otherwise may grow from cynical street urchins to hardened
criminal offenders and become serious social problems, should be given the widest attitude of sympathy,
encouragement and assistance. The law is not, and should not be made, an instrument to impede the achievement of
a salutary humane policy. As often as is legally and lawfully possible, their texts and intendments should be construed so
as to give all the chances for human life to exist — with a modicum promise of a useful and constructive existence.

The herein petitioners, the spouses Robin Francis Radley Duncan and Maria Lucy Christensen, appear to be qualified to
adopt the child. There is no showing that they suffer from any of the disqualifications under the law. Above all, they have
the means to provide the child with the proper support, care, education and love that a growing child needs, even if
they have previously adopted another child as theirs. The fact that even before they have applied for legal custody and
adoption of the infant they have already showered it with love and care and had it baptized, with them appearing in
the records of the baptism as the parents of the child, speaks well of the genuine desire of petitioners to have the child
as their very own. The child was born in May, 1967, and he will be at this time, 1976, about 9 years of age. In all the years,
from the time he was turned over to the herein petitioners when he was only about a week old (there is no showing that
the said child was ever placed at any' time in the care and custody of some other persons) he had been cared for and
loved by the spouses Robin Francis RadLey Duncan and Maria Lucy Christensen. He must have known no other parents
than these persons. If we are now to sustain the decision of the court below, this Tribunal will be doing a graver injustice
to all concerned particularly to said spouses, and worse, it will be imposing a cruel sanction on this innocent child and on
all other children who might be similarly situated. We consider it to be justifiable and more humane to formalize a factual
relation, that of parents and son, existing between the herein petitioning spouses and the minor child baptized by them
as Colin Berry Christensen Duncan, than to sustain the hard, harsh and cruel interpretation of the law that was done by
the respondent court and Judge. It is Our view that it is in consonance with the true spirit and purpose of the law, and
with the policy of the State, to uphold, encourage and give life and meaning to the existence of family relations.

WHEREFORE, in the light of the foregoing, the decision of the respondent Judge of the Court of First Instance of Rizal,
Branch X, in Sp. Proc. No. 5457, dated June 27, 1968, is hereby annulled, and We declare that the minor Colin Berry
Christensen Duncan is the adopted child and the heir of petitioners Robin Francis Radley Duncan and Maria Lucy
Christensen.

No costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Muñoz Palma and Martin, JJ., concur.

Footnotes

1 Brief for Petitioners, p. 23; Rollo, p. 69.

2 Decision, Annex "A", Petition for Certiorari; Rollo, p. 24.

3 Ibid, p. 8; Rollo, p. 31.

4 Ibid, pp. 6-7.

5 Ibid, p. 7.

6 Brief for Petitioners, Rollo, p. 66.

7 Petition for certiorari, p. 3; Rollo, p. 12.

8 Ibid, p. 6.

9 Ibid, p. 7.

10 Ibid, p. 7.

11 Ibid p. 7; Petition for Certiorari, p. 3; Rollo, p. 12.

12 Santos vs. Aranzanso, L-2328, Feb. 28, 1966, 16 SCRA 344.

13 Ibid.

THIRD DIVISION
 [G.R. No. 105308. September 25, 1998]

HERBERT CANG, petitioner, vs. COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA CLARA
CLAVANO, respondents.

DECISION

ROMERO, J.:

Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter
has abandoned them? The answer to this interesting query, certainly not one of first impression, would have to be reached,
not solely on the basis of law and jurisprudence, but also the hard reality presented by the facts of the case.

This is the question posed before this Court in this petition for review on certiorari of the Decision[1] of the Court of
Appeals affirming the decree of adoption issued by the Regional Trial Court of Cebu City, Branch 14,[2] in Special
Proceedings No. 1744-CEB, In the Matter of the Petition for Adoption of the minors Keith, Charmaine and Joseph Anthony,
all surnamed Cang, Spouses Ronald V. Clavano and Maria Clara Diago Clavano, petitioners.

Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27, 1973, begot three children,
namely: Keith, born on July 3, 1973; Charmaine, born on January 23, 1977, and Joseph Anthony, born on January 3, 1981.

During the early years of their marriage, the Cang couples relationship was undisturbed. Not long thereafter,
however, Anna Marie learned of her husbands alleged extramarital affair with Wilma Soco, a family friend of the Clavanos.

Upon learning of her husbands alleged illicit liaison, Anna Marie filed a petition for legal separation with
alimony pendente lite[3] with the then Juvenile and Domestic Relations Court of Cebu[4] which rendered a
decision[5] approving the joint manifestation of the Cang spouses providing that they agreed to live separately and apart
or from bed and board. They further agreed:

(c) That the children of the parties shall be entitled to a monthly support of ONE THOUSAND PESOS (P1,000.00)
effective from the date of the filing of the complaint. This shall constitute a first lien on the net proceeds of
the house and lot jointly owned by the parties situated at Cinco Village, Mandaue City;

(d) That the plaintiff shall be entitled to enter into any contract or agreement with any person or persons, natural or
juridical without the written consent of the husband; or any undertaking or acts that ordinarily requires
husbands consent as the parties are by this agreement legally separated;[6]

Petitioner then left for the United States where he sought a divorce from Anna Marie before the Second Judicial
District Court of the State of Nevada. Said court issued the divorce decree that also granted sole custody of the three
minor children to Anna Marie, reserving rights of visitation at all reasonable times and places to petitioner.[7]

Thereafter, petitioner took an American wife and thus became a naturalized American citizen. In 1986, he divorced
his American wife and never remarried.

While in the United States, petitioner worked in Tablante Medical Clinic earning P18,000.00 to P20,000.00 a month[8] a
portion of which was remitted to the Philippines for his childrens expenses and another, deposited in the bank in the name
of his children.

Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano and Maria Clara Diago Clavano,
respectively the brother and sister-in-law of Anna Marie, filed Special Proceedings No. 1744-CEB for the adoption of the
three minor Cang children before the Regional Trial Court of Cebu. The petition bears the signature of then 14-year-old
Keith signifying consent to his adoption. Anna Marie likewise filed an affidavit of consent alleging that her husband had
evaded his legal obligation to support his children; that her brothers and sisters including Ronald V. Clavano, had been
helping her in taking care of the children; that because she would be going to the United States to attend to a family
business, leaving the children would be a problem and would naturally hamper (her) job-seeking venture abroad; and
that her husband had long forfeited his parental rights over the children for the following reasons:

1. The decision in Civil Case No. JD-707 allowed her to enter into any contract without the written consent of her
husband;

2. Her husband had left the Philippines to be an illegal alien in the United States and had been transferring from one
place to another to avoid detection by Immigration authorities, and
3. Her husband had divorced her.

Upon learning of the petition for adoption, petitioner immediately returned to the Philippines and filed an opposition
thereto, alleging that, although private respondents Ronald and Maria Clara Clavano were financially capable of
supporting the children while his finances were too meager compared to theirs, he could not in conscience, allow
anybody to strip him of his parental authority over his beloved children.

Pending resolution of the petition for adoption, petitioner moved to reacquire custody over his children alleging that
Anna Marie had transferred to the United States thereby leaving custody of their children to private respondents. On
January 11, 1988, the Regional Trial Court of Cebu City, Branch 19, issued an order finding that Anna Marie had, in effect,
relinquished custody over the children and, therefore, such custody should be transferred to the father. The court then
directed the Clavanos to deliver custody over the minors to petitioner.

On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14, issued a decree of adoption with a dispositive
portion reading as follows:

WHEREFORE, premises considered, the petition for adoption of the minors Keith, Charmaine and Joseph Anthony all
surnamed Cang, by the petitioners-spouses Ronald V. Clavano and Maria Clara Diago Clavano is hereby granted and
approved. These children shall henceforth be known and called as Keith D. Clavano, Charmaine D. Clavano and
Joseph Anthony D. Clavano respectively. Moreover, this Decree of Adoption shall:

(1) Confer upon the adopted children the same rights and duties as though they were in fact the legitimate
children of the petitioners;

(2) Dissolve the authority vested in the parents by nature, of the children; and,

(3) Vest the same authority in the petitioners.

Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this Decree of Adoption for registration purposes.

SO ORDERED.

In so ruling, the lower court was impelled by these reasons:

(1) The Cang children had, since birth, developed close filial ties with the Clavano family, especially their maternal
uncle, petitioner Ronald Clavano.

(2) Ronald and Maria Clara Clavano were childless and, with their printing press, real estate business, export
business and gasoline station and mini-mart in Rosemead, California, U.S.A., had substantial assets and
income.

(3) The natural mother of the children, Anna Marie, nicknamed Menchu, approved of the adoption because of her
heart ailment, near-fatal accident in 1981, and the fact that she could not provide them a secure and
happy future as she travels a lot.

(4) The Clavanos could provide the children moral and spiritual direction as they would go to church together and
had sent the children to Catholic schools.

(5) The children themselves manifested their desire to be adopted by the Clavanos Keith had testified and
expressed the wish to be adopted by the Clavanos while the two younger ones were observed by the court
to have snuggled close to Ronald even though their natural mother was around.

On the other hand, the lower court considered the opposition of petitioner to rest on a very shaky foundation
because of its findings that:

(1) Petitioner was morally unfit to be the father of his children on account of his being an improvident father of his
family and an undisguised Lothario. This conclusion is based on the testimony of his alleged paramour,
mother of his two sons and close friend of Anna Marie, Wilma Soco, who said that she and petitioner lived as
husband and wife in the very house of the Cangs in Opao, Mandaue City.
 (2) The alleged deposits of around $10,000 that were of comparatively recent dates were attempts at verisimilitude
as these were joint deposits the authenticity of which could not be verified.

(3) Contrary to petitioners claim, the possibility of his reconciliation with Anna Marie was dim if not nil because it
was petitioner who devised, engineered and executed the divorce proceedings at the Nevada Washoe
County court.

(4) By his naturalization as a U.S. citizen, petitioner is now an alien from the standpoint of Philippine laws and
therefore, how his new attachments and loyalties would sit with his (Filipino) children is an open question.

Quoting with approval the evaluation and recommendation of the RTC Social Worker in her Child Study Report, the
lower court concluded as follows:

Simply put, the oppositor Herbert Cang has abandoned his children. And abandonment of a child by its (sic) parent is
commonly specified by statute as a ground for dispensing with his consent to its (sic) adoption (Re Cozza, 163 Cal. 514 P.
161, Ann. [As. 1914A, 214]). Indeed, in such case, adoption will be allowed not only without the consent of the
parent, but even against his opposition (Re McKeag, 141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Cal. 469,
63 P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert, 170 Iowa, 561, 153 N.W.
160, citing R.C.L.; Stearns v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am. St. Rep. 441; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93
Am. St. Rep. 564; Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17.)[9]

Before the Court of Appeals, petitioner contended that the lower court erred in holding that it would be in the best
interest of the three children if they were adopted by private respondents Ronald and Maria Clara Clavano. He asserted
that the petition for adoption was fatally defective and tailored to divest him of parental authority because: (a) he did
not have a written consent to the adoption; (b) he never abandoned his children; (c) Keith and Charmaine did not
properly give their written consent; and (d) the petitioners for adoption did not present as witness the representative of the
Department of Social Welfare and Development who made the case study report required by law.

The Court of Appeals affirmed the decree of adoption stating:

Article 188 of the Family Code requires the written consent of the natural parents of the child to be adopted. It has been
held however that the consent of the parent who has abandoned the child is not necessary (Dayrit vs. Piccio, 92 Phil.
729; Santos vs. Ananzanso, 16 SCRA 344). The question therefore is whether or not oppositor may be considered as
having abandoned the children. In adoption cases, abandonment connotes any conduct on the part of the parent to
forego parental duties and relinquish parental claims to the child, or the neglect or refusal to perform the natural and
legal obligations which parents owe their children (Santos vs. Ananzanso, supra), or the withholding of the parents
presence, his care and the opportunity to display voluntary affection. The issue of abandonment is amply covered by
the discussion of the first error.

Oppositor argues that he has been sending dollar remittances to the children and has in fact even maintained bank
accounts in their names. His duty to provide support comes from two judicial pronouncements. The first, the decision in
JD-707 CEB, supra, obliges him to pay the children P1,000.00 a month. The second is mandated by the divorce decree of
the Nevada, U.S.A. Federal Court which orders him to pay monthly support of US$50.00 for each child. Oppositor has not
submitted any evidence to show compliance with the decision in JD-101 CEB, but he has submitted 22 cancelled dollar
checks (Exhs. 24 to 45) drawn in the childrens names totalling $2,126.98. The last remittance was on October 6, 1987 (Exh.
45). His obligation to provide support commenced under the divorce decree on May 5, 1982 so that as of October 6,
1987, oppositor should have made 53 remittances of $150.00, or a total of $7,950.00. No other remittances were shown to
have been made after October 6, 1987, so that as of this date, oppositor was woefully in arrears under the terms of the
divorce decree. And since he was totally in default of the judgment in JD-707 CEB, the inevitable conclusion is oppositor
had not really been performing his duties as a father, contrary to his protestations.

True, it has been shown that oppositor had opened three accounts in different banks, as follows

Acct. No. Date Opened Balance Name of Bank

July 23, 1985 $5,018.50 Great Western Savings, Daly City, Cal., U.S.A.
Oct. 29, 1987
1) 118-606437-4
Matewan National Bank of Williamson, West
March 5, 1986 3,129.00 Virginia, U.S.A.
Oct. 26, 1987
2) 73-166-8
Security Pacific National Bank, Daly City, Cal.,
December 31, 1986 2,622.19 U.S.A.
Oct. 29, 1987
3) 564-146883
The first and third accounts were opened however in oppositors name as trustee for Charmaine Cang and Joseph
Anthony Cang, respectively. In other words, the accounts are operated and the amounts withdrawable by oppositor
himself and it cannot be said that they belong to the minors. The second is an `or account, in the names of Herbert
Cang or Keith Cang. Since Keith is a minor and in the Philippines, said account is operable only by oppositor and the
funds withdrawable by him alone.

The bank accounts do not really serve what oppositor claimed in his offer of evidence `the aim and purpose of providing
for a better future and security of his family.[10]

Petitioner moved to reconsider the decision of the Court of Appeals. He emphasized that the decree of legal
separation was not based on the merits of the case as it was based on a manifestation amounting to a compromise
agreement between him and Anna Marie. That he and his wife agreed upon the plan for him to leave for the United States
was borne out by the fact that prior to his departure to the United States, the family lived with petitioners parents. Moreover,
he alone did not instigate the divorce proceedings as he and his wife initiated the joint complaint for divorce.

Petitioner argued that the finding that he was not fit to rear and care for his children was belied by the award to him
of custody over the children in Civil Case No. JD-707. He took exception to the appellate courts findings that as an
American citizen he could no longer lay claim to custody over his children because his citizenship would not take away
the fact that he is still a father to his children. As regards his alleged illicit relationship with another woman, he had always
denied the same both in Civil Case No. JD-707 and the instant adoption case. Neither was it true that Wilma Soco was a
neighbor and family friend of the Clavanos as she was residing in Mandaue City seven (7) kilometers away from the
Clavanos who were residents of Cebu City. Petitioner insisted that the testimony of Wilma Soco should not have been
given weight for it was only during the hearing of the petition for adoption that Jose Clavano, a brother of Ronald, came
to know her and went to her residence in Iligan City to convince her to be a witness for monetary considerations. Lastly,
petitioner averred that it would be hypocritical of the Clavanos to claim that they could love the children much more
than he could.[11]

His motion for reconsideration having been denied, petitioner is now before this Court, alleging that the petition for
adoption was fatally defective as it did not have his written consent as a natural father as required by Article 31 (2) of
Presidential Decree No. 603, the Child and Youth Welfare Code, and Article 188 (2) of the Family Code.

Article 31 of P.D. No. 603 provides -

ART. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary:

(1) The person to be adopted, if fourteen years of age or over;

(2) The natural parents of the child or his legal guardian of the Department of Social Welfare or any duly
licensed child placement agency under whose care the child may be;

(3) The natural children, fourteen years and above, of the adopting parents. (Underscoring supplied)

On December 17, 1986, then President Corazon C. Aquino issued Executive Order No. 91 amending Articles 27, 28,
29, 31, 33 and 35 of the Child and Youth Welfare Code. As thus amended, Article 31 read:

ART. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary:

(1) The person to be adopted, if fourteen years of age or over;

(2) The natural parents of the child or his legal guardian after receiving counselling and appropriate social
services from the Ministry of Social Services and Development or from a duly licensed child-placement
agency;

(3) The Ministry of Social Services and Development or any duly licensed child-placement agency under
whose care and legal custody the child may be;

(4) The natural children, fourteen years and above, of the adopting parents. (Underscoring supplied)

Jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the
commencement of the action determines the jurisdiction of the court.[12] As such, when private respondents filed the
petition for adoption on September 25, 1987, the applicable law was the Child and Youth Welfare Code, as amended by
Executive Order No. 91.

During the pendency of the petition for adoption or on August 3, 1988, the Family Code which amended the Child
and Youth Welfare Code took effect. Article 256 of the Family Code provides for its retroactivity insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. As amended by the Family
Code, the statutory provision on consent for adoption now reads:

Art. 188. The written consent of the following to the adoption shall be necessary:

(1) The person to be adopted, if ten years of age or over;

(2) The parents by nature of the child, the legal guardian, or the proper government instrumentality;

(3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents;

(4) The illegitimate children, ten years of age or over, of the adopting parents, if living with said parent and
the latters spouse, if any; and

(5) The spouse, if any, of the person adopting or to be adopted. (Underscoring supplied)

Based on the foregoing, it is thus evident that notwithstanding the amendments to the law, the written consent of
the natural parent to the adoption has remained a requisite for its validity. Notably, such requirement is also embodied in
Rule 99 of the Rules of Court as follows:

SEC. 3. Consent to adoption. There shall be filed with the petition a written consent to the adoption signed by the child,
if fourteen years of age or over and not incompetent, and by the childs spouse, if any, and by each of its known living
parents who is not insane or hopelessly intemperate or has not abandoned the child, or if there are no such parents by
the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum, childrens
home, or benevolent society or person, by the proper officer or officers of such asylum, home, or society, or by such
persons; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be
required. (Underscoring supplied)

As clearly inferred from the foregoing provisions of law, the written consent of the natural parent is indispensable for
the validity of the decree of adoption. Nevertheless, the requirement of written consent can be dispensed with if the
parent has abandoned the child[13] or that such parent is insane or hopelessly intemperate. The court may acquire
jurisdiction over the case even without the written consent of the parents or one of the parents provided that the petition
for adoption alleges facts sufficient to warrant exemption from compliance therewith. This is in consonance with the
liberality with which this Court treats the procedural aspect of adoption. Thus, the Court declared:

x x x. The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more
important that the petition should contain facts relating to the child and its parents, which may give information to those
interested, than that it should be formally correct as a pleading. Accordingly, it is generally held that a petition will
confer jurisdiction if it substantially complies with the adoption statute, alleging all facts necessary to give the court
jurisdiction.[14]

In the instant case, only the affidavit of consent of the natural mother was attached to the petition for
adoption. Petitioners consent, as the natural father is lacking. Nonetheless, the petition sufficiently alleged the fact of
abandonment of the minors for adoption by the natural father as follows:

3. That the childrens mother, sister of petitioner RONALD V. CLAVANO, has given her express consent to this adoption, as
shown by Affidavit of Consent, Annex `A. Likewise, the written consent of Keith Cang, now 14 years of age appears on
page 2 of this petition; However, the father of the children, Herbert Cang, had already left his wife and children and had
already divorced the former, as evidenced by the xerox copy of the DECREE OF DIVORCE issued by the County of
Washoe, State of Nevada, U.S.A. (Annex `B) which was filed at the instance of Mr. Cang, not long after he abandoned
his family to live in the United States as an illegal immigrant.[15]

The allegations of abandonment in the petition for adoption, even absent the written consent of petitioner,
sufficiently vested the lower court with jurisdiction since abandonment of the child by his natural parents is one of the
circumstances under which our statutes and jurisprudence[16] dispense with the requirement of written consent to the
adoption of their minor children.

However, in cases where the father opposes the adoption primarily because his consent thereto was not sought, the
matter of whether he had abandoned his child becomes a proper issue for determination. The issue of abandonment by
the oppositor natural parent is a preliminary issue that an adoption court must first confront. Only upon failure of the
oppositor natural father to prove to the satisfaction of the court that he did not abandon his child may the petition for
adoption be considered on its merits.

As a rule, factual findings of the lower courts are final and binding upon this Court.[17] This Court is not expected nor
required to examine or contrast the oral and documentary evidence submitted by the parties.[18]However, although this
Court is not a trier of facts, it has the authority to review and reverse the factual findings of the lower courts if it finds that
these do not conform to the evidence on record.[19]

In Reyes v. Court of Appeals,[20] this Court has held that the exceptions to the rule that factual findings of the trial
court are final and conclusive and may not be reviewed on appeal are the following: (1) when the inference made is
manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded
entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on
misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when
the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions
without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion
and (10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted
by the evidence on record.

This Court finds that both the lower court and the Court of Appeals failed to appreciate facts and circumstances
that should have elicited a different conclusion[21] on the issue of whether petitioner has so abandoned his children,
thereby making his consent to the adoption unnecessary.

In its ordinary sense, the word abandon means to forsake entirely, to forsake or renounce utterly. The dictionaries
trace this word to the root idea of putting under a ban. The emphasis is on the finality and publicity with which a thing or
body is thus put in the control of another, hence, the meaning of giving up absolutely, with intent never to resume or claim
ones rights or interests.[22] In reference to abandonment of a child by his parent, the act of abandonment imports any
conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to
the child. It means neglect or refusal to perform the natural and legal obligations of care and support which parents owe
their children.[23]

In the instant case, records disclose that petitioners conduct did not manifest a settled purpose to forego all parental
duties and relinquish all parental claims over his children as to constitute abandonment. Physical estrangement alone,
without financial and moral desertion, is not tantamount to abandonment.[24] While admittedly, petitioner was physically
absent as he was then in the United States, he was not remiss in his natural and legal obligations of love, care and support
for his children. He maintained regular communication with his wife and children through letters and telephone. He used
to send packages by mail and catered to their whims.

Petitioners testimony on the matter is supported by documentary evidence consisting of the following handwritten
letters to him of both his wife and children:

1. Exh. 1 a 4-page undated letter of Menchu (Anna Marie) addressed to Dear Bert on a C.Westates Carbon Phil.
Corp. stationery. Menchu stated therein that it had been a long time since the last time youve heard from me
excluding that of the phone conversation weve had. She discussed petitioners intention to buy a motorbike for
Keith, expressing apprehension over risks that could be engendered by Keiths use of it. She said that in the last
phone conversation she had with petitioner on the birthday of Ma, she forgot to tell petitioner that Keiths voice
had changed; he had become a bagito or a teen-ager with many fans who sent him Valentines cards. She told
him how Charmaine had become quite a talkative almost dalaga who could carry on a conversation with
her angkong and how pretty she was in white dress when she won among the candidates in the Flores de
Mayo after she had prayed so hard for it. She informed him, however, that she was worried because Charmaine
was vain and wont to extravagance as she loved clothes. About Joeton (Joseph Anthony), she told petitioner that
the boy was smart for his age and quite spoiled being the youngest of the children in Lahug. Joeton was
mischievous but Keith was his idol with whom he would sleep anytime. She admitted having said so much about
the children because they might not have informed petitioner of some happenings and spices of life about
themselves. She said that it was just very exciting to know how theyve grown up and very pleasant, too, that each
of them have (sic) different characters. She ended the letter with the hope that petitioner was at the best of
health. After extending her regards to all, she signed her name after the word Love. This letter was mailed on July 9,
1986 from Cebu to petitioner whose address was P.O. Box 2445, Williamson, West Virginia 25661 (Exh. 1-D).
 2. Exh. 2 letter dated 11/13/84 on a green stationery with golden print of a note from Menchu on the left upper
corner. Anna Marie stated that we wrote to petitioner on Oct. 2, 1984 and that Keith and Joeton were very excited
when petitioner called up last time. She told him how Joeton would grab the phone from Keith just so petitioner
would know what he wanted to order. Charmaine, who was asleep, was so disappointed that she missed
petitioners call because she also wanted something that petitioner should buy. Menchu told petitioner that
Charmaine wanted a pencil sharpener, light-colored T-shirts for her walking shorts and a (k)nap sack. Anna Marie
informed petitioner that the kids were growing up and so were their needs. She told petitioner to be very fatherly
about the childrens needs because those were expensive here. For herself, Anna Marie asked for a subscription of
Glamour and Vogue magazines and that whatever expenses he would incur, she would replace these. As a
postscript, she told petitioner that Keith wanted a size 6 khaki-colored Sperry topsider shoes.

3. Exh. 3 an undated note on a yellow small piece of paper that reads:

Dear Herbert,

Hi, how was Christmas and New Year? Hope you had a wonderful one.

By the way thanks for the shoes, it was a nice one. Its nice to be thought of at Xmas. Thanks again.

Sincerely,

Menchu

4. Exh. 4 a two-page undated letter of Keith on stationery of Jose Clavano, Inc. addressed to Dear Dad. Keith told
his father that they tried to tell their mother to stay for a little while, just a few weeks after classes start(s) on June 16.
He informed petitioner that Joeton would be in Kinder I and that, about the motorbike, he had told his mother to
write petitioner about it and well see what youre (sic) decision will be. He asked for chocolates, nuts, basketball
shirt and shorts, rubber shoes, socks, headband, some clothes for outing and perfume. He told petitioner that they
had been going to Lahug with their mother picking them up after Angkongor Ama had prepared lunch or dinner.
From her aerobics, his mother would go for them in Lahug at about 9:30 or 10:00 oclock in the evening. He wished
his father luck and the best of health and that they prayed for him and their other relatives. The letter was ended
with Love Keith.

5. Exh. 5 another undated long letter of Keith. He thanked his father for the Christmas card with $40.00, $30.00 and
$30.00 and the card of Joeton with $5.00 inside. He told petitioner the amounts following his fathers instructions and
promise to send money through the mail. He asked his father to address his letter directly to him because he
wanted to open his own letters. He informed petitioner of activities during the Christmas season that they enjoyed
eating, playing and giving surprises to their mother. He apprised him of his daily schedule and that their mother
had been closely supervising them, instructing them to fold their blankets and pile up their pillows. He informed
petitioner that Joeton had become very smart while Charmaine, who was also smart, was very demanding of their
mother. Because their mother was leaving for the United States on February 5, they would be missing her like they
were missing petitioner. He asked for his things and $200.00. He told petitioner more anecdotes about Joeton like
he would make the sign of the cross even when they would pass by the Iglesia ni Cristo church and his insistence
that Aquino was not dead because he had seen him on the betamax machine. For Keith, Charmaine had
become very maldita who was not always satisfied with her dolls and things but Joeton was full of surprises. He
ended the letter with Love your son, Keith. The letter was mailed on February 6, 1985 (Exh. 5-D).

6. Exh. 6 an undated letter Charmaine. She thanked petitioner for the bathing suit, key chain, pencil box, socks, half
shirt, pencil sharpener and $50.00. She reminded him of of her birthday on January 23 when she would turn 9 years
old. She informed him that she wore size 10 and the size of her feet was IM. They had fun at Christmas in Lahug but
classes would start on January 9 although Keiths classes had started on January 6. They would feel sad again
because Mommy would be leaving soon. She hoped petitioner would keep writing them. She signed, Love,
Charmaine.

7. Exh . 7 an undated letter of Keith. He explained to petitioner that they had not been remiss in writing letters to
him. He informed him of their trip to Manila they went to Malacaang, Tito Doy Laurels house, the Ministry of Foreign
Affairs, the executive house, Tagaytay for three days and Baguio for one week. He informed him that he got
honors, Charmaine was 7th in her class and Joeton had excellent grades. Joeton would be enrolled in Sacred
Heart soon and he was glad they would be together in that school. He asked for his reward from petitioner and so
with Charmaine and Joeton. He asked for a motorbike and dollars that he could save. He told petitioner that he
 was saving the money he had been sending them. He said he missed petitioner and wished him the best. He
added that petitioner should call them on Sundays.

8. Exh. 8 a letter from Joeton and Charmaine but apparently written by the latter. She asked for money from
petitioner to buy something for the school and something else. She promised not to spend so much and to save
some. She said she loved petitioner and missed him. Joeton said hi! to petitioner. After ending the letter with Love,
Joeton and Charmaine, she asked for her prize for her grades as she got seventh place.

9. Exh. 9 undated letter of Keith. He assured petitioner that he had been writing him; that he would like to have
some money but he would save them; that he learned that petitioner had called them up but he was not around;
that he would be going to Manila but would be back home May 3; that his Mommy had just arrived Thursday
afternoon, and that he would be the official altar boy. He asked petitioner to write them soon.

10. Exh. 10 Keith thanked petitioner for the money he sent. He told petitioner that he was saving some in the bank
and he was proud because he was the only one in his group who saved in the bank. He told him that Joeton had
become naughty and would claim as his own the shirts sent to Keith by petitioner. He advised petitioner to send
pants and shirts to Joeton, too, and asked for a pair of topsider shoes and candies. He informed petitioner that he
was a member of the basketball team and that his mom would drive for his group. He asked him to call them often
like the father of Ana Christie and to write them when he would call so that they could wait for it. He informed
petitioner that they had all grown bigger and heavier. He hoped petitioner would be happy with the letter that
had taken him so long to write because he did not want to commit any mistakes. He asked petitioner to buy him
perfume (Drakkar) and, after thanking petitioner, added that the latter should buy something for Mommy.

11. Exh. 11 a Christmas card For My Wonderful Father dated October 8, 1984 from Keith, Charmaine and Joeton.

12. Exh. 12 another Christmas card, Our Wish For You with the year 83 written on the upper right hand corner of the
inside page, from Keith, Charmaine and Joeton.

13. Exh. 13 a letter of Keith telling petitioner that he had written him even when their Mom was there where she
bought them clothes and shoes. Keith asked petitioner for $300.00. Because his mother would not agree to buy him
a motorbike, he wanted a Karaoke unit that would cost P12,000.00. He informed petitioner that he would go to an
afternoon disco with friends but their grades were all good with Joeton receiving stars for excellence. Keith wanted
a bow and arrow Rambo toys and G.I. Joe. He expressed his desire that petitioner would come and visit them
someday.

14. Exh. 14 a letter of Keith with one of the four pages bearing the date January 1986. Keith told his father that they
had received the package that the latter sent them. The clothes he sent, however, fitted only Keith but not
Charmaine and Joeton who had both grown bigger. Keith asked for grocery items, toys and more clothes. He
asked, in behalf of his mother, for low-heeled shoes and a dress to match, jogging pants, tights and leotards that
would make her look sexy. He intimated to petitioner that he had grown taller and that he was already ashamed
to be asking for things to buy in the grocery even though his mother had told him not to be shy about it.

Aside from these letters, petitioner also presented certifications of banks in the U.S.A. showing that even prior to the
filing of the petition for adoption, he had deposited amounts for the benefit of his children.[25]Exhibits 24 to 45 are copies
of checks sent by petitioner to the children from 1985 to 1989.

These pieces of evidence are all on record. It is, therefore, quite surprising why the courts below simply glossed over
these, ignoring not only evidence on financial support but also the emotional exchange of sentiments between petitioner
and his family. Instead, the courts below emphasized the meagerness of the amounts he sent to his children and the fact
that, as regards the bank deposits, these were withdrawable by him alone. Simply put, the courts below attached a high
premium to the prospective adopters financial status but totally brushed aside the possible repercussion of the adoption
on the emotional and psychological well-being of the children.

True, Keith had expressed his desire to be adopted by his uncle and aunt. However, his seeming steadfastness on the
matter as shown by his testimony is contradicted by his feelings towards his father as revealed in his letters to him. It is not
at all farfetched to conclude that Keiths testimony was actually the effect of the filing of the petition for adoption that
would certainly have engendered confusion in his young mind as to the capability of his father to sustain the lifestyle he
had been used to.

The courts below emphasized respondents emotional attachment to the children. This is hardly surprising for, from the
very start of their young lives, the children were used to their presence. Such attachment had persisted and certainly, the
young ones act of snuggling close to private respondent Ronald Clavano was not indicative of their emotional
detachment from their father. Private respondents, being the uncle and aunt of the children, could not but come to their
succor when they needed help as when Keith got sick and private respondent Ronald spent for his hospital bills.

In a number of cases, this Court has held that parental authority cannot be entrusted to a person simply because he
could give the child a larger measure of material comfort than his natural parent. Thus, in David v. Court of Appeals,[26] the
Court awarded custody of a minor illegitimate child to his mother who was a mere secretary and market vendor instead
of to his affluent father who was a married man, not solely because the child opted to go with his mother. The Court said:

Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with
him. It is enough, however, that petitioner is earning a decent living and is able to support her children according to her
means.

In Celis v. Cafuir[27] where the Court was confronted with the issue of whether to award custody of a child to the
natural mother or to a foster mother, this Court said:

This court should avert the tragedy in the years to come of having deprived mother and son of the beautiful associations
and tender, imperishable memories engendered by the relationship of parent and child. We should not take away from
a mother the opportunity of bringing up her own child even at the cost of extreme sacrifice due to poverty and lack of
means; so that afterwards, she may be able to look back with pride and a sense of satisfaction at her sacrifices and her
efforts, however humble, to make her dreams of her little boy come true. We should not forget that the relationship
between a foster mother and a child is not natural but artificial. If the child turns out to be a failure or forgetful of what its
foster parents had done for him, said parents might yet count and appraise (sic) all that they have done and spent for
him and with regret consider all of it as a dead loss, and even rue the day they committed the blunder of taking the
child into their hearts and their home. Not so with a real natural mother who never counts the cost and her sacrifices,
ever treasuring memories of her associations with her child, however unpleasant and disappointing. Flesh and blood
count. x x x.

In Espiritu v. Court of Appeals,[28] the Court stated that (I)n ascertaining the welfare and best interests of the child,
courts are mandated by the Family Code to take into account all relevant considerations. Thus, in awarding custody of
the child to the father, the Court said:

A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the
`torture and agony of a mother separated from her children and the humiliation she suffered as a result of her character
being made a key issue in court rather than the feelings and future, the best interests and welfare of her children. While
the bonds between a mother and her small child are special in nature, either parent, whether father or mother, is bound
to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is greater than that of the other
parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the
paramount consideration. (Italics supplied)[29]

Indeed, it would be against the spirit of the law if financial consideration were to be the paramount consideration in
deciding whether to deprive a person of parental authority over his children. There should be a holistic approach to the
matter, taking into account the physical, emotional, psychological, mental, social and spiritual needs of the child.[30] The
conclusion of the courts below that petitioner abandoned his family needs more evidentiary support other than his inability
to provide them the material comfort that his admittedly affluent in-laws could provide. There should be proof that he had
so emotionally abandoned them that his children would not miss his guidance and counsel if they were given to adopting
parents. The letters he received from his children prove that petitioner maintained the more important emotional tie
between him and his children.The children needed him not only because he could cater to their whims but also because
he was a person they could share with their daily activities, problems and triumphs.

The Court is thus dismayed that the courts below did not look beyond petitioners meager financial support to ferret
out other indications on whether petitioner had in fact abandoned his family. The omission of said courts has led us to
examine why the children were subjected to the process of adoption, notwithstanding the proven ties that bound them
to their father. To our consternation, the record of the case bears out the fact that the welfare of the children was not
exactly the paramount consideration that impelled Anna Marie to consent to their adoption.

In her affidavit of consent, Anna Marie expressly said that leaving the children in the country, as she was wont to
travel abroad often, was a problem that would naturally hamper her job-seeking abroad. In other words, the adoption
appears to be a matter of convenience for her because Anna Marie herself is financially capable of supporting her
children.[31] In his testimony, private respondent Ronald swore that Anna Marie had been out of the country for two years
and came home twice or three times,[32] thereby manifesting the fact that it was she who actually left her children to the
care of her relatives. It was bad enough that their father left their children when he went abroad, but when their mother
followed suit for her own reasons, the situation worsened. The Clavano family must have realized this. Hence, when the
family first discussed the adoption of the children, they decided that the prospective adopter should be Anna Maries
brother Jose. However, because he had children of his own, the family decided to devolve the task upon private
respondents.[33]

This couple, however, could not always be in Cebu to care for the children. A businessman, private respondent
Ronald Clavano commutes between Cebu and Manila while his wife, private respondent Maria Clara, is an international
flight stewardess.[34] Moreover, private respondent Ronald claimed that he could take care of the children while their
parents are away,[35] thereby indicating the evanescence of his intention. He wanted to have the childrens surname
changed to Clavano for the reason that he wanted to take them to the United States as it would be difficult for them to
get a visa if their surname were different from his.[36] To be sure, he also testified that he wanted to spare the children the
stigma of being products of a broken home.

Nevertheless, a close analysis of the testimonies of private respondent Ronald, his sister Anna Marie and their brother
Jose points to the inescapable conclusion that they just wanted to keep the children away from their father. One of the
overriding considerations for the adoption was allegedly the state of Anna Maries health she was a victim of an almost
fatal accident and suffers from a heart ailment. However, she herself admitted that her health condition was not that
serious as she could still take care of the children.[37] An eloquent evidence of her ability to physically care for them was
her employment at the Philippine Consulate in Los Angeles[38]- she could not have been employed if her health were
endangered. It is thus clear that the Clavanos attempt at depriving petitioner of parental authority apparently stemmed
from their notion that he was an inveterate womanizer. Anna Marie in fact expressed fear that her children would never
be at ease with the wife of their father.[39]

Petitioner, who described himself as single in status, denied being a womanizer and father to the sons of Wilma
Soco.[40] As to whether he was telling the truth is beside the point. Philippine society, being comparatively conservative
and traditional, aside from being Catholic in orientation, it does not countenance womanizing on the part of a family
man, considering the baneful effects such irresponsible act visits on his family. Neither may the Court place a premium on
the inability of a man to distinguish between siring children and parenting them. Nonetheless, the actuality that petitioner
carried on an affair with a paramour cannot be taken as sufficient basis for the conclusion that petitioner was necessarily
an unfit father.[41] Conventional wisdom and common human experience show that a bad husband does not necessarily
make a bad father. That a husband is not exactly an upright man is not, strictly speaking, a sufficient ground to deprive
him as a father of his inherent right to parental authority over the children.[42] Petitioner has demonstrated his love and
concern for his children when he took the trouble of sending a telegram[43] to the lower court expressing his intention to
oppose the adoption immediately after learning about it. He traveled back to this country to attend to the case and to
testify about his love for his children and his desire to unite his family once more in the United States.[44]

Private respondents themselves explained why petitioner failed to abide by the agreement with his wife on the
support of the children. Petitioner was an illegal alien in the United States. As such, he could not have procured gainful
employment. Private respondents failed to refute petitioners testimony that he did not receive his share from the sale of
the conjugal home,[45] pursuant to their manifestation/compromise agreement in the legal separation case. Hence, it can
be reasonably presumed that the proceeds of the sale redounded to the benefit of his family, particularly his children. The
proceeds may not have lasted long but there is ample evidence to show that thereafter, petitioner tried to abide by his
agreement with his wife and sent his family money, no matter how meager.

The liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes
of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount
consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and
perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences beyond the
contemplation of law and jurisprudence.[46] The discretion to approve adoption proceedings is not to be anchored solely
on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.[47]

In this regard, this Court notes private respondents reliance on the manifestation/compromise agreement between
petitioner and Anna Marie which became the basis of the decree of legal separation. According to private respondents
counsel,[48] the authority given to Anna Marie by that decree to enter into contracts as a result of the legal separation was
all embracing[49] and, therefore, included giving her sole consent to the adoption. This conclusion is however, anchored
on the wrong premise that the authority given to the innocent spouse to enter into contracts that obviously refer to their
conjugal properties, shall include entering into agreements leading to the adoption of the children. Such conclusion is as
devoid of a legal basis as private respondents apparent reliance on the decree of legal separation for doing away with
petitioners consent to the adoption.

The transfer of custody over the children to Anna Marie by virtue of the decree of legal separation did not, of
necessity, deprive petitioner of parental authority for the purpose of placing the children up for adoption.Article 213 of the
Family Code states: . . . in case of legal separation of parents, parental authority shall be exercised by the parent
designated by the court. In awarding custody, the court shall take into account all relevant considerations, especially the
choice of the child over seven years of age, unless the parent chosen is unfit.

It should be noted, however, that the law only confers on the innocent spouse the exercise of parental authority.
Having custody of the child, the innocent spouse shall implement the sum of parental rights with respect to his rearing and
care. The innocent spouse shall have the right to the childs services and earnings, and the right to direct his activities and
make decisions regarding his care and control, education, health and religion.[50]
 In a number of cases, this Court has considered parental authority, the joint exercise of which is vested by the law
upon the parents,[51] as

x x x a mass of rights and obligations which the law grants to parents for the purpose of the childrens physical
preservation and development, as well as the cultivation of their intellect and the education of their hearts and
senses. As regards parental authority, `there is no power, but a task; no complex of rights, but a sum of duties; no
sovereignty but a sacred trust for the welfare of the minor.

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases
authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and surrender to a childrens home or an orphan institution. When a
parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is
merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation
is manifest, the law still disallows the same.

The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep
them in their custody and company.[52] (Italics supplied)

As such, in instant case, petitioner may not be deemed as having been completely deprived of parental authority,
notwithstanding the award of custody to Anna Marie in the legal separation case. To reiterate, that award was arrived at
by the lower court on the basis of the agreement of the spouses.

While parental authority may be waived, as in law it may be subject to a compromise,[53] there was no factual finding
in the legal separation case that petitioner was such an irresponsible person that he should be deprived of custody of his
children or that there are grounds under the law that could deprive him of parental authority. In fact, in the legal
separation case, the court thereafter ordered the transfer of custody over the children from Anna Marie back to
petitioner. The order was not implemented because of Anna Maries motion for reconsideration thereon. The Clavano
family also vehemently objected to the transfer of custody to the petitioner, such that the latter was forced to file a
contempt charge against them.[54]

The law is clear that either parent may lose parental authority over the child only for a valid reason. No such reason
was established in the legal separation case. In the instant case for adoption, the issue is whether or not petitioner had
abandoned his children as to warrant dispensation of his consent to their adoption. Deprivation of parental authority is
one of the effects of a decree of adoption.[55] But there cannot be a valid decree of adoption in this case precisely
because, as this Court has demonstrated earlier, the finding of the courts below on the issue of petitioners abandonment
of his family was based on a misappreciation that was tantamount to non-appreciation, of facts on record.

As regards the divorce obtained in the United States, this Court has ruled in Tenchavez v. Escao[56] that a divorce
obtained by Filipino citizens after the effectivity of the Civil Code is not recognized in this jurisdiction as it is contrary to State
policy. While petitioner is now an American citizen, as regards Anna Marie who has apparently remained a Filipino citizen,
the divorce has no legal effect.

Parental authority is a constitutionally protected State policy borne out of established customs and tradition of our
people. Thus, in Silva v. Court of Appeals,[57] a case involving the visitorial rights of an illegitimate parent over his child, the
Court expressed the opinion that:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and
safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither
may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the
attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity
to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.

Since the incorporation of the law concerning adoption in the Civil Code, there has been a pronounced trend to
place emphasis in adoption proceedings, not so much on the need of childless couples for a child, as on the paramount
interest of a child who needs the love and care of parents. After the passage of the Child and Youth Welfare Code and
the Family Code, the discernible trend has impelled the enactment of Republic Act No. 8043 on Intercountry
Adoption[58] and Republic Act No. 8552 establishing the rules on the domestic adoption of Filipino children.[59]

The case at bar applies the relevant provisions of these recent laws, such as the following policies in the Domestic
Adoption Act of 1998:

(a) To ensure that every child remains under the care and custody of his/her parent(s) and be provided with love,
care, understanding and security towards the full and harmonious development of his/her personality.[60]
 (b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount
consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the Rights of
the Child.[61]

(c) To prevent the child from unnecessary separation from his/her biological parent(s).[62]

Inasmuch as the Philippines is a signatory to the United Nations Convention on the Rights of the Child, the government
and its officials are duty bound to comply with its mandates. Of particular relevance to instant case are the following
provisions:

States Parties shall respect the responsibilities, rights and duties of parents . . . to provide, in a manner consistent with the
evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized
in the present Convention.[63]

States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations
and direct contact with both parents on a regular basis, except if it is contrary to the childs best interests.[64]

A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional
circumstances personal relations and direct contacts with both parents . . .[65]

States Parties shall respect the rights and duties of the parents . . . to provide direction to the child in the exercise of his or
her right in a manner consistent with the evolving capacities of the child.[66]

Underlying the policies and precepts in international conventions and the domestic statutes with respect to children
is the overriding principle that all actuations should be in the best interests of the child. This is not, however, to be
implemented in derogation of the primary right of the parent or parents to exercise parental authority over him. The rights
of parents vis--vis that of their children are not antithetical to each other, as in fact, they must be respected and
harmonized to the fullest extent possible.

Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are now of legal age while Joseph
Anthony is approaching eighteen, the age of majority. For sure, they shall be endowed with the discretion to lead lives
independent of their parents. This is not to state that this case has been rendered moot and academic, for their welfare
and best interests regarding their adoption, must be determined as of the time that the petition for adoption was
filed.[67] Said petition must be denied as it was filed without the required consent of their father who, by law and under the
facts of the case at bar, has not abandoned them.

WHEREFORE, the instant petition for review on certiorari is hereby GRANTED. The questioned Decision and Resolution
of the Court of Appeals, as well as the decision of the Regional Trial Court of Cebu, are SET ASIDE thereby denying the
petition for adoption of Keith, Charmaine and Joseph Anthony, all surnamed Cang, by the spouse respondents Ronald
and Maria Clara Clavano. This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., (Chairman), Kapunan, and Purisima, JJ., concur.

Penned by Associate Justice Serafin E. Camilon and concurred in by Associate Justices Celso L. Magsino and Artemon
[1]

D. Luna.
[2] Presided by Judge Renato C. Dacudao.
[3] Docketed as Civil Case No. JD-707.
[4] Presided by Judge Maura C. Navarro.
[5] Original Records, pp. 39-40.
[6] Exh. H-2.
[7] Original Records, pp.5-7.
[8] RTC Decision, p. 3.
[9] RTC Decision, pp. 7-8.
[10] CA Decision, pp.16-17. Penned by Justice Serafin E. Camilon, Celso L. Magsino and Artemon D. Luna, JJ., concurring.
[11] Record of CA-G.R. CV No. 27108, pp.46-53.
[12] Republic v. Court of Appeals and Bobiles, G.R. No. 92326, January 24, 1992, 205 SCRA 356, 362.
[13] AQUINO, CIVIL CODE, Vol. I, 1990 ed., p. 299 citing Santos v. Aranzanso, 123 Phil. 160, 167 (1966).
[14] Republic v. Court of Appeals and Bobiles, supra, at p. 365.
[15] Exh. A.
[16] Duncan v. CFI of Rizal, L-30576, February 10, 1976, 69 SCRA 298; Santos v. Aranzanso, supra.
[17] Del Mundo v. Court of Appeals, 322 Phil. 463, 471 (1996).
[18] Imperial v. Court of Appeals, G.R. No. 102037, July 17, 1996, 259 SCRA 65, 71.

Philippine National Bank v. Court of Appeals, L-43972, July 24, 1990, 187 SCRA 735, 739 citing Ongsiako v. Intermediate
[19]

Appellate Court, G.R. No. 69901, July 31, 1987, 152 SCRA 627.
[20] 258 SCRA 651 [1996].
[21] P.M. Pastera Brokerage v. Court of Appeals, G.R. No. 113657, January 20, 1997, 266 SCRA 365, 371.
[22] De la Cruz v. De la Cruz, 130 Phil. 324 (1968).
[23] Duncan v. CFI of Rizal, supra at p.304; Santos v. Aranzanso, supra at p. 168.
[24] De la Cruz v. De la Cruz, supra.
[25] Exhs. 15 to 17.
[26] 250 SCRA 82 [1995].
[27] 86 Phil. 554, 559-560 (1950).
[28] 312 Phil. 431 (1995).
[29] Ibid., at p. 439.
[30] See; Perez v. Court of Appeals, 325 Phil. 1014, 1020 (1996).
[31] TSN, November 17, 1987, p. 38.
[32] Ibid., p. 22.
[33] RTC Decision, pp.1-2.
[34] TSN, February 3, 1988, p.13.
[35] TSN. November 17, 1987, p. 24.
[36] Ibid., pp. 28-29.
[37] TSN, January 12, 1988, p. 10.
[38] Ibid.
[39] Ibid., p. 6.
[40] TSN, December 8, 1987, p.12.
[41] Silva v. Court of Appeals, G.R. No. 114742, July 17, 1997.
[42] Chua v. Cabangbang, 137 Phil. 204 (1969).
[43] Exh. 18.
[44] TSN, December 8, 1987, pp.47-48; February 11, 1988, p. 6.
[45] TSN, December 8, 1987, p. 20.
[46] Republic v. Hernandez, 323 Phil. 606 (1996).
[47] Republic v. Court of Appeals and Bobiles, supra.
[48] Atty. Ricardo Padilla.
[49] TSN, November 17, 1987, p. 37.

Dissenting Opinion of Justice Felix V. Makasiar in Luna v. Intermediate Appellate Court (G.R. No. 68374, June 18, 1985,
[50]

137 SCRA 7) citing 59 Am. Jur. 2d 107.

[51] Art. 211, Family Code.

Sagala-Eslao v. Court of Appeals, G.R. No. 116773, January 16, 1997, 266 SCRA 317, 322-323 citing Santos, Sr. v. Court of
[52]

Appeals, G.R. No. 113054, March 16, 1995, 242 SCRA 407.
[53] TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. V, 1992 ed., p. 491 citing 4 Salvat 383.
[54] TSN, February 11, 1988, pp. 9-12.
[55] Cervantes v. Fajardo, G.R. No. 79955, January 27, 1989, 169 SCRA 575, 579.
[56] 122 Phil. 752 (1965).
[57] Supra.
[58] The law was approved on June 7, 1995.
[59] The law was approved on February 25, 1998.
[60] Art. 1, Sec. 2(a), R.A. No. 8552.

Art. 1, Sec. 2(b), Ibid; adopted by the General Assembly of the United Nations on November 20, 1989 and ratified by
[61]

the Philippines in July 1990 by virtue of Senate Resolution No. 109.

[62] Art. 1, Sec. 2(c), ii, Ibid.
[63] Art. 5, Convention on the Rights of the Child.
[64] Art. 9, parag. 3, Ibid.
[65] Art. 10, parag. 2, Ibid.
[66] Art. 14, parag. 2. Ibid.
[67] See: Espiritu v. Court of Appeals, supra at p.441.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 71370 January 3l, 1987

SLOBODAN BOBANOVIC AND DIANNE ELIZABETH CONNUNGHAM BOBANOVIC, petitioners,

vs.
HONORABLE SYLVIA P. MONTES (in her capacity as Minister of Social Services and Development), respondent.

RESOLUTION

ALAMPAY, J.:

In our decision in this case promulgated on July 7, 1986 and which is now the subject of the motion for reconsideration
filed by the Ministry of Social Services and Development, this Court emphasized that in adoption cases, the interest and
welfare of the child is of paramount consideration and that "every reasonable intendment should be sustained to
promote and fulfill these noble and compassionate objectives of the law (Malkinson vs. Agrava, 54 SCRA 66, and other
cited cases) and the law should not be made, as instrument to impede the achievement of a salutary policy." (Duncan
vs. CFI of Rizal, L-30576,69 SCRA 298).

Applying the aforecited judicial guidelines, this Court directed the present Ministry of Social Services and Development
"to forthwith issue without undue delay, the requisite travel clearance certificate in favor of herein petitioners' adopted
child, Adam Christopher Bobanovic." In our decision, we stated that "all that MSSD had to do was to use a little of its time
to verify the correctness of the case study report, prepared and submitted by the Social Worker who acted upon
instruction of the court below."

Respondent's motion for reconsideration of the decision in this case, dated August 5, 1986, although filed late, in the
interest of justice, was nevertheless admitted under our resolution of September 5, 1986. In said motion, public
respondent stressed the existence of the 1981 Memorandum of Agreement between the State and Territory Adoption
Authorities of Australia and the Ministry of Social Services and Development of the Philippines. Respondent Minister
therein pointed out that under the stated Memorandum of Agreement, it has been agreed among others, the following.

xxx xxx xxx

1.4. The adoption authorities in both countries will jointly approve of prospective adopting parents and
the selection of particular adoptive parents for a particular child. ... (Rollo, p. 140)

Respondent Minister further averred that certain significant procedures have been accepted and agreed to be
observed, such as:

xxx xxx xxx

4.1. Any person or persons having their ordinary place of residence in an Australian State or Territory,
who wish to adopt a child from the Philippines will apply to the Director of the appropriate Australian
State or Territory investigated, where he is satisfied that the applicants are fit and proper persons to
adopt a child from the Philippines, he will cause the preparation of a detailed Family Study and will
act as intermediary and forward the Family Study to the Philippines for consideration Only family
studies presented by an appropriate Australian State or Territory Adoption Authority to the Philippine
Ministry of Social Services and Development win be considered.

4.2. In an yapplication for approval as persons fit and proper to adopt a child from the Philippines, the
following will be conditions precedent to the approval of the application by the Australian State or
Territory Adoption Authorities.

(a) Applicants must have attained the ages specified in the appropriate laws of both countries and
be in a position to support and care for their family.

(b) The State or Territory Adoption Authority investigating an application will confirm that applicants
have no criminal record or else make appropriate comment on that record. (Rollo, pp. 141-142)

The Court is constrained to consider the aforestated matters. We note the assertions of the respondent Minister which
appear uncontroverted in petitioners' reply, that "the preparation of the Family Study report from the home country on
the prospective adopters is a requirement in this Memorandum of Agreement with Australia. ... "(Rollo, p. 142).

The Court does not say nor do We entertain a belief that the herein petitioners are in any way disqualified to be
adopting parents in their home State or ordinary place of residence. What the Court simply wishes to express is that it
would be more prudent and desirable to require that the petitioners herein submit themselves to a Family Study Report in
their home country so that if a favorable report is thereafter submitted to the Ministry of Social Services and
Development, then the corresponding travel certification should then forthwith issue, in implementation of the judgment
of adoption already rendered. This step, if taken by petitioners win lead to the removal Of the basic reason for the
reluctance and apprehension of the public respondent Minister who, understandably, is concerned that the welfare of
the adopted child might later be prejudiced — a possibility that may arise in the event that the latter's adoption is not
sanctioned or recognized by Australia where petitioners are citizens and residents of.

It may not be amiss to state that the petitioners, in their Comment to the motion for reconsideration principally expound
on the finality of the decision in the adoption case and that the working arrangement between the adoption authorities
of Australia and the Philippines does not have the effect of law. But even as petitioners deplore the delay in the issuance
of the certificate of clearance to travel, they, however, fail to tender an explanation or state any reason whatsoever for
their apparent reluctance to submit themselves to a Family Case Study in their home State.

While the Court takes the view that the decision in the adoption case should not be disturbed and that all the
technicalities that were raised against the adoption should yield to the ultimate end of promoting the best interest of the
adopted child, the same guiding principle should be applied in the matter of the issuance of the travel clearance
certificate. This subsequent aspect of the adoption which was raised by respondent Minister was brought only lately to
the Courts attention. Thus, it becomes relevant and important to extend consideration to the aforementioned
Memorandum Agreement entered into in 1981 by our country and Australia.

It is well worth considering that the welfare of the adopted child can be truly protected if there is at least an assurance
that the home State of the petitioners has undertaken a family case study concerning them. As it would be but a simple
thing for petitioners to submit to a family case study report, the Court finds it difficult to perceive the reason for
petitioners' apparent adamant attitude in declining to do so. As petitioners profess their desire to extend to their
adopted child the warmth of a parent's love, the comforts of a caring home and the material provision he needs, their
sincerity in this regard can best be manifested by laying aside any possible inconvenience on their part or searching for
legal technicalities. Whether or not the referred Memorandum Agreement has the force and effect of law should be of
least consideration to the petitioners if they are truly disposed to do their part to expedite the travel for their adopted
child to their country. The best solution would be for them to accept and submit themselves to a family case study which
should not be at all a difficult thing for them to do.

In the same way that this Court took to task the Ministry of Social Services and Development for being, paradoxically,
'overly concerned over its claimed exclusive prerogative to conduct the case study work instead of placing more
importance on the possible prejudicial effects of its refusal on the welfare of the child," a similar rebuke may be fastened
on the petitioners for their seemingly adamant attitude and reluctance to submit themselves to a family case study
report, which if favorable to them would quickly remove the last reasonable obstacle for the issuance of the subject
travel clearance certificate. It will banish the apprehension and any misgiving on the part of the local authorities
concerned that the adopted child might be confronted with unexpected problems seriously prejudicial to his welfare,
should the latter's adoption be not sanctioned or recognized by the State where petitioners reside and are citizens of.

WHEREFORE, and in the light of the facts and circumstances hereinabove discussed, the dispositive portion of our
judgment in the instant case directing the issuance of the requisite travel clearance certificate in favor of the child,
Adam Christopher Bobanovic, is hereby SUSPENDED and DEFERRED until after petitioners shall have submitted themselves
to a Family Case Study in their home State of Victoria, Australia where they are said to be residing. Upon furnishing herein
respondent Minister of Social Services and Development with the corresponding official report on said Family Case Study
and if such is favorable to the petitioners herein, then the requisite travel clearance certificate for the adopted child,
Adam Christopher Bobanovic, should thus be issued by the office of the public respondent Minister as previously
decreed.

SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., Paras, Padilla and Bidin JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 76290 November 23, 1988

MINISTER MAMITA PARDO DE TAVERA of the Ministry of Social Services and Development (MSSD) and LOURDES BALANON,
Officer-in-Charge, SCWU, MSSD, petitioners,
vs.
HONORABLE BONIFACIO A. CACDAC, JR., of the Regional Trial Court, National Capital Region, Branch XLVIII Manila,
GEORGE BAXTER BROWN GORDON, and GAIL JUDITH MILBOURN GORDON, respondents.

Rosa Maria Juan Bautista for petitioners.

J. V. Natividad & Associates for respondents.

MELENCIO-HERRERA, J.:

The Resolution of respondent Regional Trial Court, Branch XLVIII, Manila, of 1 October 1986 ordering the Chief of the
Special Child and Welfare Unit of the Ministry of Social Services and Development (MSSD) to issue a travel clearance in
favor of the adopted minor, Anthony Gandhi Gordon, within five (5) days from notice, under pain of contempt, is directly
challenged in this certiorari Petition for having been issued with grave abuse of discretion tantamount to lack of
jurisdiction. At the same time the Petition seeks to annul the Decision dated 5 August 1986 of the same Court declaring
the minor, Anthony Gandhi O. Custodio the truly and lawfully adopted child of George Baxter Gordon and Gail Judith
Milbourn Gordon (the Gordons, for brevity.)

On 6 November 1986, we issued a temporary Restraining Order enjoining Respondent Judge from enforcing the assailed
Decision and Resolution.

Because of the official request of the MSSD addressed to this Court to require all Regional Trial Court Judges handling
adoption cases to adhere strictly to the provisions of the Child and Youth Welfare Code (P.D. No. 603), the Petition was
given due course.

The antecedental facts disclose that, on 19 June 1986, in a verified Petition before the Regional Trial Court, Branch XLVIII,
Manila, the Gordons sought to adopt the minor, Anthony Gandhi O. Custodio, a natural son of Adoracion Custodia. The
Petition was set for hearing on 31 July 1986, with notice published in a newspaper of general circulation in the City of
Manila for three (3) consecutive weeks.

On the date of hearing, nobody appeared to oppose the Petition. The Office of the Solicitor General, which was notified
of the Petition and the hearing, failed to send any representative for the State. Thus, the Trial Court appointed the Branch
Clerk of Court as Commissioner to receive the additional evidence, the deposition of some witnesses having been taken
previously.

The principal evidence disclosed that the Gordons, as British citizens, are allowed by their home country to adopt foreign
babies specifically from the Republic of the Philippines; that the husband is employed at the Dubai Hilton International
Hotel as Building Superintendent; that they are financially secure and can amply provide for the education and support
of the child; that Anthony's mother, Adoracion Custodia had given her consent to the adoption realizing that her child
would face a brighter future; that the Case Study Report submitted by the Social Worker of the Trial Court gave a
favorable recommendation after observing that there existed a parent-child relationship between the Gordons and
Anthony and that although the natural mother was having second thoughts and experiencing lonesome feelings, her
aspirations for the future betterment of her one-year-two-month old child prevailed so she agreed to the adoption.

After assessment of the evidence the Trial Court concluded, in its decision of 5 August 1986, that the Gordons possessed
all the qualifications and none of the disqualifications for adoption and declared Anthony the truly and lawfully adopted
child of the Gordons, the Decree of Adoption to take effect from the filing of the petition on 19 June 1986.

On 11 August 1986, the Gordons wrote MSSD for a travel clearance for Anthony. The next day, 12 August, they also filed
an Urgent Ex-parte Motion before the Trial Court stating that the Chief of the Passport Division of the then Ministry of
Foreign Affairs refused to issue a passport to Anthony without a Case Study of the MSSD and praying that it be required
to issue such passport.

Subpoenaed, the MSSD opposed the grant of a travel clearance on the principal grounds that the Report of the Court
Social Worker and that of the Pastor of the International Christian Church of Dubai cannot take the place of a report of
the MSSD or a duly licensed child placement agency; that the required six-month trial custody had not been met nor the
reasons therefor given as required by Article 35 of the Child and Youth Welfare Code (P.D. No. 603); that the Gordons
had given P10,000.00 to the natural mother, which is reflective of the undesirable attitude of the Gordons to shop for
children as if they were shopping for commodities; that under Muslim law, which is the law in Dubai, Anthony cannot
inherit from the adopting parents; that the Gordons had filed another petition for adoption of a baby girl before the
Regional Trial Court, Quezon City, Branch 94, on 24 June 1986 but because she died a month later they tried to pass off
another child to whom they gave the same name and represented that she was the very same girl they were adopting;
and that there being no Memorandum of Agreement between Dubai and the Philippines there is no guarantee that the
adopted child will not be sold, exchanged, neglected or abused.
Over the MSSD Opposition, the Trial Court, in its Resolution of 1 October 1986 ordered the MSSD to issue the travel
clearance under pain of contempt and the Ministry of Foreign Affairs to issue the corresponding passport. It reasoned
out that the Court Social Worker Report could take the place of a report from a duly licensed placement agency or of
the MSSD; that the Court had impliedly dispensed with the six-month trial custody considering that the Gordons were
foreigners whose livelihood was earned abroad; that the Decision had become final and executory and to entertain the
MSSD objections at that point would put the MSSD above the Courts and its refusal to issue a travel clearance a
defiance of a lawful Order of the Court.

In so resolving, the Trial Court relied on: (1) the Resolution of this Court in Administrative Matter No. 85-2-7136-RTC denying
the request of the MSSD for a Supreme Court Circular to all Regional Trial Court Judges to the effect that, with the
abolition of the Juvenile and Domestic Relations Courts, only the MSSD can make the required case study and submit its
report and recommendation to the Courts. That denial was predicated on the following finding:

... The law expressly provides that in a petition for adoption a case study of a child to be adopted, his
natural parents and the prospective adopting parents may be conducted by the Department of
Social Welfare ... or the Social Work and Counselling Division, in case of Juvenile and Domestic
Relations Court, the functions of which are now exercised by the Regional Trial Courts Staff Assistant V
(Social Worker), Regional Trial Court. (Emphasis supplied)

and 2) this Court's ruling in Bobanovic vs. Hon. Montes (G.R. No. L-71370, July 7, 1986, 142 SCRA 485), reading in part:

By refusing to issue the travel clearance, respondent Minister would in effect frustrate said judgment of
adoption for the adopting parents who reside in a foreign country would consequently remain
separated from their adopted child. The respondent Minister would in effect take away from the
petitioners what already belongs to them as a vested legal right. The unfairness of such a situation
created by the action of the public respondent is patently a wanton abuse of her discretion and a
neglect of her plain duty to assist in the reasonable implementation of the final order of a proper
court.

In refusing to grant the travel clearance certificate, respondent MSSD discounts and negates the
effects of a valid and final judgment of the Court regarding which no appeal had even been taken
from (Bobanovic vs. Hon. Montes, G.R. L-71370, July 7, 1986).

It is true that in resolving a Motion for Reconsideration in that case on 31 January 1987, this Court deferred the
implementation of its judgment directing the issuance of the requisite travel clearance certificate because of a
Memorandum of Agreement between Australia and the Philippines belatedly brought to its attention which requires that
a prospective adopter of a Filipino child should first undergo a Family Study to be conducted by the adopter's home
state. In the case at bar, however, attention has not been called to any such agreement between Great Britain and the
Philippines.

On the strength of the foregoing Circular and Decision, the challenged Decision and Resolution of respondent Court
have to be upheld. Unequivocally, prior to Executive Order No. 91, issued on 17 December 1986, the Social Workers in
Regional Trial Courts had the authority to conduct a case study of a child to be adopted. While Juvenile and Domestic
Relations Courts have been abolished by B.P. Blg. 129, their functions have been merged with Regional Trial Courts,
which were then provided with Social Workers to assist the Court in handling juvenile and domestic relations cases.

It may be that respondent Trial Court had not complied strictly with the provisions of P.D. No. 603 on adoption. As it had
reasoned out, however, it was satisfied with the Case Study Report submitted by the Court Social Worker. Prior to
Executive Order No. 91, amending the Child and Youth Welfare Code, the MSSD did not have the exclusive authority to
make a case study in adoption cases. The Court evaluated the Report of its social Worker and found that it was based
on "very honest insight and opinion based on personal interviews and home study painstakingly made ..." The objections
which the MSSD have (sic) against the petitioners Gordon are all reflected in "... the case study report and such have
been passed upon by the Court in its decision granting the adoption" (P. 30, Rollo). The MSSD did not allege that the
Social Worker Report was faulty or incorrect. It thus appears that the objective of trial custody had been substantially
achieved, which is, "to assess the adjustment and emotional readiness of the adopting parents for the legal union"
(Article 35, P.D. No. 603). And as far as the delegation of the reception of evidence to a Commissioner is concerned,
that is permissible in the absence of any opposition.

The MSSD objection that the Gordons were making of the adoption case a commercial venture does not necessarily
follow from the fact that they had given the natural mother the sum of P10,000.00. As the latter had explained, the
amount was handed to her as a gesture of assistance. By receiving the same, the latter had not thereby made a
"hurried decision caused by strain or anxiety to give up the child," which is sought to be avoided by Article 32, P.D. No.
603. As to the "changeling" referred to by the MSSD, it appears that the Gordons also wanted to adopt a baby girl in
proceedings before the Regional Trial Court, Quezon City, but that was aborted as the first baby they selected was a
"mongoloid" so they decided to surrender her to the International Alliance for Children where she eventually died. At.
any rate, as the Trial Court had stated, the questionable attitude of the Gordons was belatedly raised and had yet to be
proven and should not be made to prejudice Anthony. Moreover, the Gordons are British citizens and Muslim law, which
is the law in Dubai, has no applicability to them. In the last analysis, it is not bureaucratic technicalities but the best
interests of the child that should be the principal criterion in adoption cases.

More significantly, as the Trial Court had opined, its judgment had become final and executory and, therefore,
commands obeisance. The MSSD could have appealed through the Solicitor General when it learned of the Decision,
but it did not. Its opposition to the issuance of a travel clearance cannot be equated with a motion for reconsideration
the request for a clearance being directed towards the implementation of the Trial Court judgment. Its present Petition
for certiorari cannot be a substitute for a lost appeal. And even assuming that the Trial Court judgment was erroneous,
the same would not be correctible by Certiorari. Much less can such an extraordinary Writ be availed of for the
annulment of a final judgment, exclusive appellate jurisdiction over which appertains to the Court of Appeals (Section
9[3], B.P. Blg. 129).

Since the filing of this case, this Court had issued Circular No. 12 to all Judges of the Regional Trial Courts hearing
adoption cases, dated 2 October 1986, directing them:

(1) to NOTIFY the Ministry of Social Services and Development , thru its local agency, of the filing of
adoption cases or the pendency thereof with respect to those cases already filed;

(2) to strictly COMPLY with the requirement in Art. 33 of the aforesaid decree that—

No petition for adoption shall be granted unless the Department of Social Welfare (now the Ministry of
Social Services and Development), or the Social Work and Counselling Division, in the case of Juvenile
and Domestic Relations Courts (now defunct), has made a case study of the child to be adopted, his
natural parents as well as the prospective adopting parents, and has submitted its report and
recommendations on the matter to the court hearing such petition. The Department of Social Welfare
(now the Ministry of Social Services and Development) shall intervene on behalf of the child if it finds,
after such case study, that the petition should be denied.

The Staff Assistant V (Social Worker) of the Regional Trial Courts, if any, shall coordinate with the
Ministry of Social Services and Development representatives in the preparation and submittal of such
case study.

(3) To personally HEAR all adoption cases and desist from the practice of delegating the reception of
evidence of the petitioner to the Clerk of Court.

With the foregoing directive, a happy solution has been arrived at. The understandable concern of the MSSD for Filipino
children up for adoption by foreigners is recognized and appreciated; the prerogative of the Courts to render judgments
based upon their assessment of the evidence inclusive of Case Study Reports that may be submitted is fully upheld; the
guidelines for a modus vivendi in adoption cases between the executive and judicial departments of government, even
with the advent of Executive Order No. 91 dated 17 December 1986, have been adequately laid down-all in proper
fealty to the Constitutional mandate that the protection of minors is a paramount duty of the State (Section 3[2], Article
XV, 1987 Constitution).<äre||anº•1àw>

WHEREFORE, the assailed Decision of 5 August 1986 and Resolution dated 1 October 1986, both of respondent Regional
Trial Court, Branch XLVIII Manila, are hereby AFFIRMED. The Temporary Restraining Order heretofore issued is hereby lifted.
No costs.

SO ORDERED.

Paras, Padilla, Sarmiento and Regalado, JJ., concur.

 SECOND DIVISION

[G.R. No. 79955. January 27, 1989.]

IN THE MATTER OF THE PETITION FOR A WRIT OF HABEAS CORPUS OF MINOR ANGELIE ANNE C. CERVANTES, NELSON L.
CERVANTES AND ZENAIDA CARREON CERVANTES, Petitioners, v. GINA CARREON FAJARDO AND CONRADO
FAJARDO, Respondents.

Yolando F. Lim, for Petitioners.

Vollaire C. Campomanes for Respondents.

SYLLABUS

1. REMEDIAL LAW; VENUE; KATARUNGANG PAMBARANGAY LAW; NON-COMPLIANCE THEREWITH DOES NOT WARRANT
JURISDICTIONAL OBJECTIONS. — Non-compliance with P.D. 1508 does not warrant jurisdictional objections; non-
availment of the conciliation process required therein only renders the complaint vulnerable to a timely motion to dismiss
for lack of cause of action or prematurity. The private respondents in the two cases at bar seasonably raised that
affirmative defense in their respective answers filed in the court a quo, hence waiver of such objection or estoppel by
laches are not in issue in the present controversy.

2. ID.; ID.; ID.; RESIDENCE CONSTRUED. — In procedural law, however, specifically for purposes of venue it has been held
that the residence of a person is his personal, actual or physical habitation or his actual residence or place of abode,
which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency.

3. ID.; ID.; ID.; PURPOSE; RESIDENCE ALONE OR MERE MEMBERSHIP, NOT SUFFICIENT. — Evidently, therefore, the primary
purpose of P.D. 1508 is to provide the conciliation mechanism, as an alternative to litigations in dispute settlement, to
member of the corresponding barangays who are actually residing therein. Residence alone, without membership, in
said barangays would not be an accurate and reliable criterion, considering that such residence may be actual but be
merely temporary, transient or categorized into other permutations as in the case of a house guest or a sojourner on a
visit of a day or two. On the other hand, mere membership in a barangay, without actual residence therein, should not
suffice since absentee membership would not subserve the avowed purpose of P.D. 1508 for lack of the common bond
and sense of belonging generally fostered in members of an identified aggroupment.

4. ID.; ID.; ID.; B.P. 337 APPLIES THERETO. — That such regulatory provisions in B.P. 337 on barangays should be read
conjointly with and applies to P.D. 1508 is shown by the provision in the former (Sec. 114).

RESOLUTION

PADILLA, J.:

This is a petition for a writ of Habeas Corpus filed with this Court over the person of the minor Angelie Anne Cervantes. In
a resolution, dated 5 October 1987, the Court resolved to issue the writ returnable to the Executive Judge, Regional Trial
Court of Pasig at the hearing of 12 October 1987 at 8:30 a.m. Said Judge was directed to hear the case and submit his
report and recommendation to the Court.

On 3 December 1987, said Executive Judge, Regional Trial Court of Pasig submitted to the Court his report and
recommendation, also dated 3 December 1987.

It appears that the minor was born on 14 February 1987 to respondents Conrado Fajardo and Gina Carreon, who are
common-law husband and wife. Respondents offered the child for adoption to Gina Carreon’s sister and brother-in-law,
the herein petitioners Zenaida Carreon-Cervantes and Nelson Cervantes, spouses, who took care and custody of the
child when she was barely two (2) weeks old. An Affidavit of Consent to the adoption of the child by herein petitioners,
was also executed by respondent Gina Carreon on 29 April 1987. 1

The appropriate petition for adoption (Sp. Proc. No. 057-B) was filed by herein petitioners over the child before the
Regional Trial Court of Rizal, Fourth Judicial District, Branch 67 which, on 20 August 1987, rendered a decision 2 granting
the petition. The child was then known as Angelie Anne Fajardo. The court ordered that the child be "freed from parental
authority of her natural parents as well as from legal obligation and maintenance to them and that from now on shall
be, for all legal intents and purposes, known as Angelie Anne Cervantes, a child of herein petitioners and capable of
inheriting their estate." 3

Sometime in March or April 1987, the adoptive parents, herein petitioners Nelson and Zenaida Cervantes, received a
letter from the respondents demanding to be paid the amount of P150,000.00, otherwise, they would get back their
child. Petitioners refused to accede to the demand.

As a result, on 11 September 1987, while petitioners were out at work, the respondent Gina Carreon took the child from
her "yaya" at the petitioners’ residence in Angono, Rizal, on the pretext that she was instructed to do so by her mother.
Respondent Gina Carreon brought the child to her house in Parañaque. Petitioners thereupon demanded the return of
the child, but Gina Carreon refused, saying that she had no desire to give up her child for adoption and that the
affidavit of consent to the adoption she had executed was not fully explained to her. She sent word to the petitioners
that she will, however, return the child to the petitioners if she were paid the amount of P150,000.00.chanrobles law
library : red

Felisa Tansingco, the social worker who had conducted the case study on the adoption and submitted a report thereon
to the Regional Trial Court of Rizal in the adoption case, testified on 27 October 1987 before the Executive Judge,
Regional Trial Court of Pasig in connection with the present petition. She declared that she had interviewed respondent
Gina Carreon on 24 June 1987 in connection with the contemplated adoption of the child. During the interview, said
respondent manifested to the social worker her desire to have the child adopted by the petitioners. 4

In all cases involving the custody, care, education and property of children, the latter’s welfare is paramount. The
provision that no mother shall be separated from a child under five (5) years of age, will not apply where the Court finds
compelling reasons to rule otherwise. 5 In all controversies regarding the custody of minors, the foremost consideration is
the moral, physical and social welfare of the child concerned, taking into account the resources and moral as we]l as
social standing of the contending parents. Never has this Court deviated from this criterion. 6

It is undisputed that respondent Conrado Fajardo is legally married to a woman other than respondent Gina Carreon,
and his relationship with the latter is a common-law husband and wife relationship. His open cohabitation with co-
respondent Gina Carreon will not accord the minor that desirable atmosphere where she can grow and develop into an
upright and moral-minded person. Besides, respondent Gina Carreon had previously given birth to another child by
another married man with whom she lived for almost three (3) years but who eventually left her and vanished. For a
minor (like Angelie Anne C. Cervantes) to grow up with a sister whose "father" is not her true father, could also affect the
moral outlook and values of said minor. Upon the other hand, petitioners who are legally married appear to be morally,
physically, financially, and socially capable of supporting the minor and giving her a future better than what the natural
mother (herein respondent Gina Carreon), who is not only jobless but also maintains an illicit relation with a married man,
can most likely give her.

Besides, the minor has been legally adopted by petitioners with the full knowledge and consent of respondents. A
decree of adoption has the effect, among others, of dissolving the authority vested in natural parents over the adopted
child, except where the adopting parent is the spouse of the natural parent of the adopted, in which case, parental
authority over the adopted shall be exercised jointly by both spouses. 7 The adopting parents have the right to the care
and custody of the adopted child 8 and exercise parental authority and responsibility over him. 9

ACCORDINGLY, and as recommended by the Executive Judge, Regional Trial Court of Pasig, Hon. Eutropio Migrino, the
Petition is GRANTED. The custody and care of the minor Angelie Anne Cervantes are hereby granted to petitioners to
whom they properly belong, and respondents are ordered (if they still have not) to deliver said minor to the petitioners
immediately upon notice hereof. This resolution is immediately executory.

SO ORDERED.

Melencio-Herrera (Chairman), Paras, Sarmiento and Regalado, JJ., concur.

Endnotes:
1. Rollo, p. 113.

2. Rollo, pp. 108-110.

3. Rollo, p. 110.

4. TSN, 27 October 1987, p. 11; Rollo, p. 249.

5. Art. 363 of the New Civil Code, as amended by Art. 17 of PD 603.

6. Union III, v. Navarro, 101 SCRA 183,17 November 1980.

7. Art. 39, PD 603.

8. Art. 189, par. (2) of the Family Code of the Philippines, Executive Order No. 209 as amended by Executive Order No.
227, promulgated on 6 June 1987.

9. Art. 17, PD 603.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4089 January 12, 1909

ARTURO PELAYO, plaintiff-appellant,

vs.
MARCELO LAURON, ET AL., defendants-appellees.

J.H. Junquera, for appellant.

Filemon Sotto, for appellee.

TORRES, J.:

On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, filed a complaint against Marcelo Lauron
and Juana Abella setting forth that on or about the 13th of October of said year, at night, the plaintiff was called to the
house of the defendants, situated in San Nicolas, and that upon arrival he was requested by them to render medical
assistance to their daughter-in-law who was about to give birth to a child; that therefore, and after consultation with the
attending physician, Dr. Escaño, it was found necessary, on account of the difficult birth, to remove the fetus by means
of forceps which operation was performed by the plaintiff, who also had to remove the afterbirth, in which services he
was occupied until the following morning, and that afterwards, on the same day, he visited the patient several times;
that the just and equitable value of the services rendered by him was P500, which the defendants refuse to pay without
alleging any good reason therefor; that for said reason he prayed that the judgment be entered in his favor as against
the defendants, or any of them, for the sum of P500 and costs, together with any other relief that might be deemed
proper.

In answer to the complaint counsel for the defendants denied all of the allegation therein contained and alleged as a
special defense, that their daughter-in-law had died in consequence of the said childbirth, and that when she was alive
she lived with her husband independently and in a separate house without any relation whatever with them, and that, if
on the day when she gave birth she was in the house of the defendants, her stay their was accidental and due to
fortuitous circumstances; therefore, he prayed that the defendants be absolved of the complaint with costs against the
plaintiff.

The plaintiff demurred to the above answer, and the court below sustained the demurrer, directing the defendants, on
the 23rd of January, 1907, to amend their answer. In compliance with this order the defendants presented, on the same
date, their amended answer, denying each and every one of the allegations contained in the complaint, and
requesting that the same be dismissed with costs.
As a result of the evidence adduced by both parties, judgment was entered by the court below on the 5th of April, 1907,
whereby the defendants were absolved from the former complaint, on account of the lack of sufficient evidence to
establish a right of action against the defendants, with costs against the plaintiff, who excepted to the said judgment
and in addition moved for a new trial on the ground that the judgment was contrary to law; the motion was overruled
and the plaintiff excepted and in due course presented the corresponding bill of exceptions. The motion of the
defendants requesting that the declaration contained in the judgment that the defendants had demanded therefrom,
for the reason that, according to the evidence, no such request had been made, was also denied, and to the decision
the defendants excepted.

Assuming that it is a real fact of knowledge by the defendants that the plaintiff, by virtue of having been sent for by the
former, attended a physician and rendered professional services to a daughter-in-law of the said defendants during a
difficult and laborious childbirth, in order to decide the claim of the said physician regarding the recovery of his fees, it
becomes necessary to decide who is bound to pay the bill, whether the father and mother-in-law of the patient, or the
husband of the latter.

According to article 1089 of the Civil Code, obligations are created by law, by contracts, by quasi-contracts, and by
illicit acts and omissions or by those in which any kind of fault or negligence occurs.

Obligations arising from law are not presumed. Those expressly determined in the code or in special laws, etc., are the
only demandable ones. Obligations arising from contracts have legal force between the contracting parties and must
be fulfilled in accordance with their stipulations. (Arts. 1090 and 1091.)

The rendering of medical assistance in case of illness is comprised among the mutual obligations to which the spouses
are bound by way of mutual support. (Arts. 142 and 143.)

If every obligation consists in giving, doing or not doing something (art. 1088), and spouses are mutually bound to support
each other, there can be no question but that, when either of them by reason of illness should be in need of medical
assistance, the other is under the unavoidable obligation to furnish the necessary services of a physician in order that
health may be restored, and he or she may be freed from the sickness by which life is jeopardized; the party bound to
furnish such support is therefore liable for all expenses, including the fees of the medical expert for his professional
services. This liability originates from the above-cited mutual obligation which the law has expressly established between
the married couple.

In the face of the above legal precepts it is unquestionable that the person bound to pay the fees due to the plaintiff for
the professional services that he rendered to the daughter-in-law of the defendants during her childbirth, is the husband
of the patient and not her father and mother- in-law, the defendants herein. The fact that it was not the husband who
called the plaintiff and requested his assistance for his wife is no bar to the fulfillment of the said obligation, as the
defendants, in view of the imminent danger, to which the life of the patient was at that moment exposed, considered
that medical assistance was urgently needed, and the obligation of the husband to furnish his wife in the indispensable
services of a physician at such critical moments is specially established by the law, as has been seen, and compliance
therewith is unavoidable; therefore, the plaintiff, who believes that he is entitled to recover his fees, must direct his action
against the husband who is under obligation to furnish medical assistance to his lawful wife in such an emergency.

From the foregoing it may readily be understood that it was improper to have brought an action against the defendants
simply because they were the parties who called the plaintiff and requested him to assist the patient during her difficult
confinement, and also, possibly, because they were her father and mother-in-law and the sickness occurred in their
house. The defendants were not, nor are they now, under any obligation by virtue of any legal provision, to pay the fees
claimed, nor in consequence of any contract entered into between them and the plaintiff from which such obligation
might have arisen.

In applying the provisions of the Civil Code in an action for support, the supreme court of Spain, while recognizing the
validity and efficiency of a contract to furnish support wherein a person bound himself to support another who was not
his relative, established the rule that the law does impose the obligation to pay for the support of a stranger, but as the
liability arose out of a contract, the stipulations of the agreement must be held. (Decision of May 11, 1897.)

Within the meaning of the law, the father and mother-in-law are strangers with respect to the obligation that devolves
upon the husband to provide support, among which is the furnishing of medical assistance to his wife at the time of her
confinement; and, on the other hand, it does not appear that a contract existed between the defendants and the
plaintiff physician, for which reason it is obvious that the former can not be compelled to pay fees which they are under
no liability to pay because it does not appear that they consented to bind themselves.
The foregoing suffices to demonstrate that the first and second errors assigned to the judgment below are unfounded,
because, if the plaintiff has no right of action against the defendants, it is needless to declare whether or not the use of
forceps is a surgical operation.

Therefore, in view of the consideration hereinbefore set forth, it is our opinion that the judgment appealed from should
be affirmed with the costs against the appellant. So ordered.

Mapa and Tracey, JJ., concur.

Arellano, C.J., and Carson, J., concurs in the result.
Willard, J., dissents.

EN BANC

G.R. No. L-45616 May 16, 1939

FELICIANO SANCHEZ, Petitioner-Appellant, vs. FRANCISCO ZULUETA, Judge of First Instance of Cavite,
JOSEFA DIEGO and MARIANO SANCHEZ, assisted by his mother,
JOSEFA DIEGO, as guardian ad litem, respondents-appellees.

Mariano P. Duldulao for petitioner-appellant.

H.B. Arandia for respondents-appellees.

AVANCE A, C.J.: chanrobles virtual law library

In civil case No. 3199 of the Court of First Instance of Cavite, wherein Josefa Diego and Mario Sanchez are plaintiffs and
Feliciano Sanchez is defendant, the plaintiffs ask that the defendant be sentenced to pay them a monthly allowance for
support.chanroblesvirtualawlibrary chanrobles virtual law library

The complaint alleges that the plaintiffs are the wife and child, respectively, of the defendant; that the latter, since 1932,
refused and still refuses to support the plaintiffs; that the latter have no means of subsistence, while the defendant
receives from the United States Army a monthly pension of P174.20; that the defendant abandoned the plaintiffs without
any justifiable cause and now refuses to allow them to live with him.chanroblesvirtualawlibrary chanrobles virtual law
library

The defendant alleges, as special defense, that the plaintiff Josefa Diego abandoned the conjugal home on October
27, 1930, without his knowledge or consent, because she committed adultery with Macario Sanchez, with whom she
had, as a result of the illicit relations, a child which is the other plaintiff Mario
Sanchez.chanroblesvirtualawlibrary chanrobles virtual law library

The month following the filing of the complaint, the plaintiffs asked the court to compel the defendant to give them, by
way of allowance pendente lite, the sum of P50 a month. In opposition to his petition, the defendant alleged that Mario
Sanchez is not his legitimate child but is the adulterous child of the plaintiff with Macario Sanchez, and he asked for an
oppurtunity to adduce evidence in support of this defense. The court, without acceding to this petition of the defendant
to adduce evidence, favorably acted upon the application of the plaintiffs and ordered the defendant to pay a
monthly allowance pendente lite of P50 to the plaintiffs, from July 1, 1936. In view of these facts, the defendant filed a
petition for prohibition before the Court of Appeals against the judge of the Court of First Instance and the plaintiffs. The
Court of Appeals denied the petition, and from this resolution, the defendant comes to this court
on certiorari.chanroblesvirtualawlibrary chanrobles virtual law library
We are of the opinion that the Court of Appeals erred in not allowing the defendant to present his evidence for the
purpose of determining whether it is sufficient prima facie to overcome the application. Adultery on the part of the wife
is a valid defense against an action for support (Quintana vs. Lerma, 24 Phil., 285). Consequently, as to the child, it is also
a defense that it is the fruit of such adulterous relations, for in that case, it would not be the child of the defendant and,
hence, would not be entitled to support as such. But as this defense should be established, and not merely alleged, it
would be unavailing if proof thereof is not permitted. It is not of course necessary to go fully into the merits of the case, it
being sufficient the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to justly
resolve the application, one way or the other, in view of the merely provisional character of the resolution to be
entered.chanroblesvirtualawlibrary chanrobles virtual law library

Although mere affidavits may satisfy the court to pass upon the application, nevertheless, the failure to accompany the
opposition therewith did not justify the court in ignoring said opposition, just because of this omission, inasmuch as an
opportunity to present evidence has been asked. It may be that the defendant could not get hold of affidavits in
support of his opposition, but he may have on hand other evidence of greater
weight.chanroblesvirtualawlibrary chanrobles virtual law library

If the defendant has a valid defense which calls for proof, and he asks for an opportunity to present evidence, it is error
to deny him this opportunity.chanroblesvirtualawlibrary chanrobles virtual law library

The decision rendered by the Court Appeals is reversed, and it is ordered that the petitioner be given an opportunity to
present evidence in support of his defense against the application for support pendente lite, to the extent which the
court determine, without special pronouncement as to the costs. So ordered.

Villa-Real, Imperial, Diaz, Laurel, and Conception, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-48219 February 28, 1979

MANUEL J. C. REYES, petitioner,

vs.
HON. LEONOR INES-LUCIANO, as Judge of the Juvenile & Domestic Relations Court, Quezon City, COURT OF APPEALS and
CELIA ILUSTRE-REYES, respondents.

Eriberto D. Ignacio for petitioner.

Gonzalo D. David for private respondent.

FERNANDEZ, J.:

This is a petition for certiorari to review the decision of the Court of Appeals in CA-G.R. No. 06928-SP entitled "Manuel J. C.
Reyes, petitioner, versus, The Hon. Leonor Ines-Luciano as Judge of the Juvenile & Domestic Relations Court (Quezon
City) and Celia Ilustre-Reyes, Respondents", dismissing the petition to annul the order of the respondent Judge directing
the petitioner to give support pendente lite to his wife, Celia Ilustre-Reyes, private respondent herein, in the amount of
P40,000.00 a month.1

The private petitioner, Celia Ilustre-Reyes, filed in the Juvenile and Domestic Relations Court of Quezon City a complaint
dated June 3, 1976 against her husband, Manuel J. C. Reyes, for legal separation on the ground that the defendant had
attempted to kill plaintiff. The pertinent allegations of the complaint are:
 6.8 On March 10, 1976, defendant went to V. Ilustre and attacked plaintiff. He pummeled her with fist
blows that floored her, then held her head and, with intent to kill, bumped it several times against the
cement floor. When she ran upstairs to her father for protection, he pushed her at the stairway of 13
flights and she fell sliding to the ground floor. Determined to finish her off, he again gave her a strong
swing at her abdomen which floored her half unconscious. Were it not for plaintiff's father, he would
have succeeded killing her;

6.9. On May 26, 1976, although on May 11 previous she ceased holding office with defendant at Bel-
Air Apartments elsewhere adverted to, she went thereto to get her overnight bag. Upon seeing her,
defendant yelled at her to get out of the office. When he did not mind him, he suddenly doused her
with a glass of grape juice, kicked her several times that landed at her back and nape, and was
going to hit her with a steel tray as her driver, Ricardo Mancera, came due to her screams for help. For
fear of further injury and for life, she rushed to Precinct 5 at united Nations Avenue, Manila
Metropolitan Police, for assistance and protection;2

The plaintiff asked for support pendente lite for her and her three children. The defendant, petitioner herein, opposed
the application for support pendente lite on the ground that his wife had committed adultery with her physician.

The application for support pendente lite was set for hearing and submitted for resolution on the basis of the pleadings
and the documents attached thereto by the parties.

The respondent Judge issued an order dated March 15, 1977 granting plaintiff's prayer for alimony pendente lite in the
amount of P5,000.00 a month commencing from June 1976.3

The petitioner filed a motion for reconsideration reiterating that his wife is not entitled to support during the pendency of
the case, and, alleging that even if she entitled, the amount awarded was excessive. The respondent Judge reduced
the amount from P5,000.00 to P44,00.00 a month in an order dated June 17, 1977.4

Manuel J. C. Reyes filed a petition for certiorari in the Court of Appeals dated July 25, 1977 asking that the order granting
support pendente lite to private respondent. Celia Ilustre-Reyes, be annulled on the ground that the respondent Judge,
Leonor Ines-Luciano, had committed a grave abuse of discretion or that said order be modified inasmuch as the
amount awarded as support pendente lite is excessive.

The Court of Appeals dismissed the petition because:

Considering the plight of the wife during the pendency of the case for legal separation and that the
husband appears to be financially capable of giving the support, We believe that the petitioner has
not presented a clear case of grave abuse of discretion on the part of the respondent in issuing the
questioned orders. We see no compelling reason to give it due course.5

The petitioner contends that the Court of Appeal committed the following error:

THE HON. COURT OF APPEALS GRIEVOUSLY ERRED IN A MANNER AMOUNTING IT CAN ERROR OF LAW
AND A DEPARTURE FROM THE ACCEPTED NORMS LAID DOWN BY THIS HON. COURT IN THE CASES WE
SHALL LATER ON DISCUSS, IN REFUSING TO GIVE DUE COURSE TO THE ORIGINAL PETITION FOR certiorari
HEREIN AGAINST RESPONDENTS-APPELLEES, AND IN AFFIRMING THE ORDERS FOR SUPPORT PENDENTE
LITE ANNEXES "F" AND "H" OF THIS PETITION WHEN HELD THAT RESPONDENT-APPELLEE JUDGE DID NOT
COMMIT ANY ABUSE OF DISCRETION IN ISSUING SAID ORDERS, FOR THE REASONS THAT:

A. IN ACTIONS FOR LEGAL SEPARATION THE WIFE IS ENTITLED TO SUPPORT FROM THE HUSBAND DESPITE
THE FACT THAT A CASE FOR ADULTERY HAD BEEN FILED BY THE HUSBAND AGAINST HER; AND

B. IN DETERMINING THE AMOUNT OF SUPPORT PENDENTE LITE, IT IS ENOUGH THAT THE COURT ASCERTAIN
THE KIND AND AMOUNT OF EVIDENCE EVEN BY AFFIDAVITS ONLY OR OTHER DOCUMENTARY EVIDENCE
APPEARING IN THE RECORDS.6

It is true that the adultery of the wife is a defense in an action for support however, the alleged adultery of wife must be
established by competent evidence. The allegation that the wife has committed adultery will not bar her from the right
receive support pendente lite. Adultery is a good defense and if properly proved and sustained wig defeat the action.7
In the instant case, at the hearing of the application for support pendente lite before the Juvenile and Domestic
Relations Court presided by the respondent Judge, Hon. Leonor Ines-Luciano the petitioner did not present any
evidence to prove the allegation that his wife, private respondent Celia Ilustre-Reyes, had committed adultery with any
person.

The petitioner has still the opportunity to adduce evidence on the alleged adultery of his wife when the action for legal
separation is heard on the merits before the Juvenile and Domestic Relations Court of Quezon City. It is to be noted
however, that as pointed out by the respondents in their comment, the "private respondent was not asking support to be
taken from petitioner's personal funds or wherewithal, but from the conjugal property—which, was her documentary
evidence ...". 8 It is, therefore, doubtful whether adultery will affect her right to alimony pendente lite. In Quintana vs.
Lerma,9 the action for support was based on the obligation of the husband to support his wife.

The contention of the petitioner that the order of the respondent Judge granting the private respondent support
pendente lite in the amount of P4,000.00 a month is not supported by the allegations of the complaint for legal
separation and by competent evidence has no merit.

The complaint or legal separation contains allegations showing that on at least two occasions the defendant, petitioner
herein, had made attempts to kill the private respondent. Thus it is alleged that on March 10, 1976, the defendant
attacked plaintiff, pummeled her with fist blows that floored her, held her head and with intent to kill, bumped it several
times against the cement floor and when she ran upstairs to her father for protection, the petitioner pushed her at the
stairway of thirteen (13) flights and she fell sliding to the ground floor and defendant gave her a strong swing at her
abdomen which floored her half unconscious and were it not for plaintiff's father, defendant would have succeeded in
killing her. 10 It is also alleged that on May 26, 1976, the defendant doused Celia Ilustre-Reyes with a glass of grape juice,
kicked her several times at her back and nape and was going to hit her with a steel tray if it were not for her driver who
came due to her creams for help." 11

In fixing the amount of monthly support pendente lite of P4,000,00, the respondent judge did not act capriciously and
whimsically. When she originally fixed the amount of P5,000.00 a month, the respondent Judge considered the following:

On record for plaintiff's cause are the following: that she and defendant were married on January 18,
1958; that she is presently unemployed and without funds, thus, she is being supported by her father
with whom she resides: that defendant had been maltreating her and Cried to kill her; that all their
conjugal properties are in the possession of defendant who is also president, Manager and Treasurer
of their corporation namely:

1. Standard Mineral Products, which was incorporated on February 9, 1959: presently with paid-in
capital of P295,670.00; assets and liabilities of P757,108.52; Retained Earnings of P85,654.61: and
majority stockholder is defendant;

2. Development and Technology Consultant Inc. incorporated on July 12, 1971, with paid-in capital of
P200,000.00; Assets and liabilities of P831,669.34; defendant owns 99% of the stocks; and last Retained
Earnings is P98,879.84.

3. The Contra-Prop Marine Philippines, Inc. which was incorporated on October 3, 1975, with paid-in
capital of P100,000 defendant owns 99% of the stocks.

To secure some of the of said Agreement of Counter-Guaranty Mortgage with Real Estate, and Real
Estate Mortgage were undertaken by plaintiff of their properties outside of other accommodations;
and that she needs of P5,000.00 a month for her support in accordance with their station in life. 12

The amount of support pendente lite was reduced to P4,000.00 inasmuch as the children are in the custody of the
petitioner and are being supported by him.

It is thus seen that the respondent judge acted with due deliberation before fixing the amount of support pendente lite
in the amount of P4,000.00 a month.

In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the merits of the
case, it being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to
enable it to justly resolve the application, one way or the other, in view of the merely provisional character of the
resolution to be entered. Mere affidavits may satisfy the court to pass upon the application for support pendente lite. 13 It
is enough the the facts be established by affidavits or other documentary evidence appearing in the record. 14

The private respondent has submitted documents showing that the corporations controlled by the petitioner have
entered into multi-million contracts in projects of the Ministry of Public Highways.

Considering the high cost of living due to inflation and the financial ability of the petitioner as shown by the documents
of record, We find that the amount of P4,000.00 a month granted by the respondent Judge as alimonypendente lite to
the private respondent is not excessive. There is no showing that the respondent Judge has committed a grave abuse of
discretion in granting said support.

In a resolution dated July 31, 1978, this Court issued a temporary restraining order effective immediately against the
enforcement of the lower court's order giving support pendente lite to private respondent in the sum of P4,000.00
monthly commencing June 1976 and in lieu thereof to allow such support only to the extent of P1,000.00 a month. 15

Later the petitioner was required to pay the support at the rate of P1,000.00 a month which had accumulated since
June 1976 within ten (10) days from notice of the resolution:16

The private respondent acknowledged on November 20, 1978 having received from the petitioner, through his counsel a
check in the amount of P30,000.00 as payment of support for the period from June 1976 to November 1978 or thirty (30)
months at P1,000.00 a month in compliance with the resolution of this Court dated October 9, 1978.

In view of the foregoing, the support of P4,000.00 should be made to commence or, March 1, 1979.

WHEREFORE, the petition for certiorari is hereby denied and the decision of the Council of Appeals sought to be
reviewed is affirmed with the modification that the support pendente lite at the rate of Four Thousand Pesos (P4.000.00) a
month should commence from March 1, 1979 without pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Guerrero, De Castro and Melencio-Herrera, JJ., concur.

#Footnotes

1 Annex "K" to Petition, Rollo pp. 74-77, Decision written by Mr. Justice B. S. de la Fuente and concurred
in by Mr. Justice Ramon G. Gaviola, Jr. and Mr. Justice Porfirio V. Sison.

2 Paragraphs 6.8 and 6.9 of the Complaint, Rollo, p. 28.

3 Annex "F", Rollo, pp. 46-49.

4 Annex "H", Rollo, pp. 55.

5 Decision, Rollo, P. 77.

6 Petition, Rollo, pp. 16-17.

7 Quintana vs. Lerma, 24 Phil. 285-286.

8 Annex "J", Rollo, pp. 67, 70.

9 24 Phil. 285-286.

10 Paragraph 6.8, Rollo. p. 28.

 11 Paragraph 6.9, Rollo. p. 28.

12 Annex "F ", Rollo, p. 46.

13 Sanchez vs. Zulueta, et al., 68 Phil. 110, 112.

14 Salazar vs. Salazar G.R. No. L-5823, April 29, 1953, 82 Phil. 1084.

15 Rollo, p. 121-f.

16 Resolution of October 9, 1978, Rollo, p. 496.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-33352 December 20, 1974

TEODORO E. LERMA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and CONCEPCION DIAZ, respondents.

Salonga, Ordoñez, Yap, Parlade & Associates for petitioner.

Villareal, Matic & Associates for private respondent.

MAKALINTAL, C.J.:p

Before Us for resolution are: (1) the petition for review by certiorari filed by Teodoro E. Lerma on March 21, 1971 to set
aside the resolution of the respondent Court of Appeals in CA-G.R. No. 44906-R dismissing his petition for certiorari and
prohibition with preliminary injunction filed therein; and (2) the petitioner's motion for reconsideration of our resolution
dated February 8, 1974 denying his urgent motion for the issuance of a writ of preliminary injunction and/or restraining
order to enjoin the enforcement of certain orders of the Juvenile and Domestic Relations Court of Quezon City
(hereinafter referred to as the lower court) ordering the petitioner to pay support pendente lite to Concepcion Diaz, the
private respondent herein.

Petitioner Lerma and respondent Diaz are husband and wife. They married on May 19, 1951. On August 22, 1969 the
petitioner filed a complaint for adultery against the respondent and a certain Teodoro Ramirez (Crim. Case No. 0519 of
the Court of First Instance of Rizal). On November 18, 1969 the respondent filed with the lower court, presided by Judge
Leonor Ines Luciano, a complaint1 against the petitioner for legal separation and/or separation of properties, custody of
their children2 and support, with an urgent petition for support pendente lite for her and their youngest son, Gregory, who
was then and until now is in her custody. The respondent's complaint for legal separation is based on two grounds:
concubinage and attempt against her life.

The petitioner filed his opposition to the respondent's application for support pendente lite, setting up as defense the
adultery charge he had filed against the respondent.

Judge Luciano granted the respondent's application for support pendente lite in an order dated December 24, 1969,
which she amended in an order dated February 15, 1970 to the following effect: (1) the respondent was declared
entitled to support pendente lite from the date of the filing of the complaint; and (2) the amount of such monthly
support was reduced from P2,250.00 to P1,820.00.
On March 12, 1970 the petitioner filed with respondent Court of Appeals a petition for certiorari and prohibition with
preliminary injunction to annul the aforementioned orders on the ground that they were issued with grave abuse of
discretion. The next day the respondent court gave due course to the petition and issued a writ of preliminary injunction
to stop Judge Luciano from enforcing said orders.

The respondent court, in its decision of October 8, 1970, set aside the assailed orders and granted the petitioner an
opportunity to present evidence before the lower court in support of his defense against the application for
support pendente lite.

The respondent moved to reconsider the decision on the ground that the petitioner had not asked that he be allowed
to present evidence in the lower court. The respondent court, in its resolution of January 20, 1971, set aside the decision
of October 8 and rendered another, dismissing the petition. This is now the subject of the instant proceeding for review.

On January 23, 1974 the petitioner filed an urgent motion for a writ of preliminary injunction and/or restraining order,
alleging (1) that during the pendency of this appeal and until December 5, 1973 the respondent had never sought the
enforcement of the assailed orders of the lower court granting support pendente lite; (2) that on December 5, 1973 the
respondent filed with the lower court an urgent motion praying that the petitioner be ordered to pay the awarded
support pendente lite, both current and in arrears, on the ground that in the absence of an injunction from this Court the
assailed orders should be executed; (3) that the petitioner filed his opposition to the motion, pointing out that for the
previous three years the respondent did not ask for the enforcement of the orders and her belated move came only
"after petitioner had filed new adultery charges against her and her second paramour" and after the petitioner had
sought custody of their son Gregory; (4) that in connection with the first adultery charge, the respondent and her co-
accused, Teddy Ramirez, had been convicted by the Court of First Instance of Rizal in its decision rendered on
September 26, 1972 and said judgment of conviction was pending appeal in the Court of Appeals; (5) that Judge
Luciano issued an order dated January 19, 1974, ordering the petitioner to pay the respondent the awarded
support pendente lite within 15 days; and (6) that unless the lower court was enjoined from enforcing its assailed orders,
the present petition would be rendered moot and academic, to the prejudice of the petitioner.

On January 28, 1974 this Court, acting on the petitioner's motion, resolved "to issue a temporary restraining order
effective immediately and until further orders from this Court." The order was addressed to Judge Luciano, her agents
and representatives.

Required to comment on the petitioner's urgent motion for preliminary injunction, the respondent filed an opposition,
with a prayer for the immediate lifting of the temporary restraining order issued ex-parte. The opposition reiterated the
grounds of her motion dated December 5, 1973 filed in the lower court, to wit: (1) that an order granting
support pendente lite, although interlocutory, is immediately executory even if appealed, unless enjoined; (2) that the
dismissal of the petition by the respondent Court of Appeals rendered functus oficio the writ of preliminary injunction it
had previously issued; and (3) that under Article 292 of the New Civil Code, which provides that "during the proceedings
for legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal
partnership property ...," such support is mandatory even if there be a showing that the wife is guilty of adultery.

In a minute resolution dated February 8, 1974 We denied the petitioner's urgent motion for a writ of preliminary injunction.
On February 28, 1974 the petitioner filed this instant motion for reconsideration. On March 6, 1974 We issued another
resolution setting aside the resolution of February 8, 1974 and reinstated the temporary restraining order previously issued
until further orders. On the same day the respondent filed her opposition to the motion for reconsideration and later
asked that it be set for oral argument. The petitioner's pending motion was set for hearing on April 22, 1974 and then
reset for May 20, 1974. On the latter date counsel for both parties appeared. In lieu, however, of oral argument the Court
allowed them to file memoranda.

The petition assails the resolution of the respondent Court of Appeals on two main grounds:

I. IT IS ERROR FOR THE COURT OF APPEALS TO HOLD THAT THE LOWER COURT, IN GRANTING
SUPPORT PENDENTE LITE TO RESPONDENT CONCEPCION DIAZ, DID NOT COMMIT A GRAVE ABUSE OF
DISCRETION.

II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE PROVISIONS OF ARTICLE 292 OF THE CIVIL
CODE MAKE IT MANDATORY DURING THE PENDENCY OF LEGAL SEPARATION PROCEEDINGS TO GRANT
SUPPORT PENDENTE LITE TO HEREIN RESPONDENT.

The foregoing alleged errors refer to the two aspects, procedural and substantive, of the disputed orders granting
support pendente lite.
As correctly stated by the respondent court in its decision (which was later reconsidered in its resolution under review),
the procedural law on support pendente lite is Rule 61 of the Revised Rules of Court, specifically Section 5 thereof, which
partly provides:

The court shall determine provisionally the pertinent facts, and shall render such order as equity and
justice may require, having due regard to the necessities of the applicant, the means of the adverse
party, the probable outcome of the case, and such other circumstances as may aid in the proper
elucidation of the questions involved. ...

The petitioner maintains that the above-quoted provision was disregarded by the lower court when it issued the disputed
orders without provisionally determining the pertinent facts of the case, particularly insofar as they might have a bearing
on its probable outcome, merely relying on the bare allegations of the complaint. The petitioner also claims he was
deprived of the opportunity to present evidence in support of his defense of adultery against the respondent's
application for support pendente lite.

The question of whether or not the petitioner should be allowed to present evidence in the lower court in support of that
his wife had committed adultery has become academic. The petitioner, in his motion filed February 28, 1974 for
reconsideration of the denial by this Court of his petition for preliminary injunction, manifested that on September 26,
1972 the court of First Instance of Rizal decided the adultery case of the respondent and found her and her co-accused,
Teodoro Ramirez, guilty of the charge, sentencing them to a term of imprisonment. This has not been denied by the
respondent. Neither is it denied that on March 30, 1970, as a result of the adulterous relations with Teodoro Ramirez for
which she was later on convicted, the said respondent gave birth prematurely to a baby boy, who however died the
same day. When the respondent entered the hospital for delivery, she registered under the assumed name of "Gloria
Santos," and when the child died had it falsely identified in the death certificate as the child of one Rosario R. Salita, a
close friend of hers. For the falsification thus committed Rosario E. Salita was criminally charged and convicted, although
the respondent herself was acquitted on reasonable doubt. The petitioner's motion of February 28 also states, without
denial on the part of the respondent, that after Teodoro Ramirez another man, this time a Manila policeman by the
name of Jose Gochangco, became her paramour, as a consequence of which criminal charges of adultery have been
filed against them before the Fiscal of Manila. Photographs of the two, showing them in intimate pose, were submitted to
this Court. Their veracity has not been disputed.

The legal issue posed by the foregoing facts is whether adultery is a good defense against the respondent's claim for
support pendente lite. In Quintana v. Lerma, 24 Phil. 285, which was an action by the wife against the husband for
support, based upon a written contract, this Court held that adultery is a good defense. This ruling was reiterated in the
subsequent cases of Sanchez v. Zulueta, 68 Phil. 110, and Mangoma v. Macadaeg, et al., 90 Phil. 508. See also Olayvar v.
Olayvar, 98 Phil. 52.

The respondent Court of Appeals, in upholding the questioned orders of the lower court, relied on Article 292 of the Civil
Code, which reads:

ART. 292. During the proceedings for legal separation, or for annulment of marriage, the spouses and
children shall be supported from the conjugal partnership property. After the final judgment of legal
separation, or of annulment of marriage, the obligation of mutual support between the spouses
ceases. However, in case of legal separation, the court may order that the guilty spouse shall give
support to the innocent one, the judgment specifying the terms of such order.

It is suggested that while adultery may be a defense in an action for personal support, that is, support of the wife by the
husband from his own funds, it is not a defense when the support is to be taken from the conjugal partnership property.

We do not see that the distinction is material in this case. In the first place Article 292 is not in itself the source of the legal
right to receive support. It merely states that the support, not only of the spouses but also of the children, shall be taken
from the conjugal property during the pendency of the legal separation proceeding. It does not preclude the loss of
such right in certain cases. In the second place, the said article contemplates the pendency of a court action and,
inferentially at least, a prima facie showing that the action will prosper. For if the action is shown to be groundless the
mere filing thereof will not necessarily set Article 292 in operation. This is also the sense of Section 5 of Rule 61, supra,
which requires, among other things, when support pendente lite is applied for, that the court determine provisionally "the
probable outcome of the case."

Article 100 of the Civil Code provides that "the legal separation may be claimed only by the innocent spouse, provided
there has been no condonation of or consent to the adultery or concubinage ... (and) where both spouses are
offenders, a legal separation cannot be claimed by either of them ..."
In a provisional sense at least, within the meaning of Rule 61 (Section 5), the probable failure of the respondent's suit for
legal separation can be foreseen since she is not an innocent spouse, having been convicted of adultery by the Court
of First Instance. It is true that the judgment of conviction is on appeal in the Court of Appeals, but the same
undoubtedly satisfies the standard of provisional showing set by the aforesaid Rule. If legal separation cannot be
claimed by the guilty spouse in the first place, the fact that an action for that purpose is filed anyway should not be
permitted to be used as a means to obtain support pendente lite, which, without such action, would be denied on the
strength of the decisions of this Court recognizing adultery as a good defense. Otherwise, as pointed out by the
petitioner, all that an erring spouse has to do to circumvent such defense would be to file a suit for legal separation no
matter how groundless.

The right to separate support or maintenance, even from the conjugal partnership property, presupposes the existence
of a justifiable cause for the spouse claiming such right to live separately. This is implicit in Article 104 of the Civil Code,
which states that after the filing of the petition for legal separation the spouses shall be entitled to live separately from
each other. A petition in bad faith, such as that filed by one who is himself or herself guilty of an act which constitutes a
ground for legal separation at the instance of the other spouse, cannot be considered as within the intendment of the
law granting separate support. In fact under Article 303 of the same Code the obligation to give support shall cease
"when the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance;" and under
Article 921 one of the causes for disinheriting a spouse is "when the spouse has given cause for legal separation." The loss
of the substantive right to support in such a situation is incompatible with any claim for support pendente lite.

What has been said above, of course, is not meant to be a prejudgment of either the legal separation proceeding
pending in the lower court or the criminal case for adultery pending in the Court of Appeals. It is to be understood only in
the light of Rule 61, Section 5, of the Rules of Court, which specifically governs the subject of support pendente lite.

WHEREFORE, the resolution of respondent Court of Appeals of January 20, 1971 and the orders of respondent Juvenile
and Domestic Relations Court herein complained of, dated December 24, 1969 and February 15, 1970, all are set aside
and their enforcement enjoined, without prejudice to such judgment as may be rendered in the pending action for
legal separation between the parties. No pronouncement as to costs.

Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.

Esguerra, J., took no part.

Footnotes

1 Docketed as Civil Case No. QE-00241.

2 Gerardo, George, Gelacio, Gilbert, Gregory and Ma. Victoria, who were 17, 16, 14, 11, 9 and 8 years
old respectively at the time of the filing of the complaint.

THIRD DIVISION

G.R. No. 207229, September 20, 2017

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SIEGFRED CABELLON CABAÑERO, Accused-Appellant.

DECISION
 LEONEN, J.:

The marking and identification of the seized dangerous drug is an essential part of the chain of custody. Absent this step,
a gap is created which casts a shadow of doubt on the identity and integrity of the dangerous drug presented as
evidence, creating reasonable doubt, which must be resolved in favor of the accused.

This reviews the August 30, 2012 Decision1 of the Court of Appeals in CA-G.R. No. CEB-CR HC No. 01081, affirming the
conviction of accused-appellant Siegfred Cabellon y Cabañero (Cabellon) for violation of Section 5 of Republic Act No.
9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

This Court restates the facts as found by the lower courts.

In an Information2 dated April 28, 2006, Cabellon was charged with violation of Section 5 of Republic Act No. 9165:

That on or about the 13th day of April2006 at about 7:30 P.M. more or less, in Bulacao, City of Talisay, Cebu, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there sell and
dispose One (1) heat sealed plastic packet of white crystalline substance containing Methylamphetamine (sic)
hydrochloride locally known as "SHABU", weighing 0.03 gram, a dangerous drugs.

CONTRARY TO LAW.3
Upon arraignment Cabellon pleaded not guilty.4 Trial on the merits ensued.

Evidence for the prosecution showed that on April 13, 2006, a buy bust operation was planned to capture Cabellon in
the act of selling drugs. At 7:30 p.m., PO2 Junar Rey Barangan (PO2 Barangan), PO3 Rey Bucao (PO3 Bucao), and PO3
Reynato Abellar (PO3 Abellar) went to Sitio Jawod, Barangay Bulacao, Talisay City to commence the buy-bust
operation. The police officers had a poseur-buyer with them.5

The asset poseur-buyer transacted with Cabellon in an alley, while the police officers observed them from a distance.
Once they saw the poseur-buyer scratch his head, their pre-approved signal, the police officers descended upon
Cabellon, who then ran away upon noticing the approaching officers.6

Cabellon ran and hid inside a nearby house and the police officers followed him. The police officers stumbled upon
three (3) men sniffing shabu inside the house, one (1) of whom they apprehended while the other two (2) managed to
escape. The police officers caught up with Cabellon inside the house, whom they thereafter frisked. They recovered the
marked P100.00 and P50.00 bills from him.7

After Cabellon's arrest, the poseur-buyer handed over the sachet of shabu he purchased from Cabellon to PO3 Bucao.8

That same date, a sachet marked with "SCC 04/13/06" was turned over to the Philippine National Police Crime
Laboratory for examination. The Request for Laboratory Examination was received by a certain PO1 Domael.9

P/S Insp. Mutchit G. Salinas (P/S Insp. Salinas), a forensic chemist, confirmed executing Chemistry Report No. D-698-2006.
She testified that she had examined a heat-sealed plastic sachet of white crystalline substance labelled with "SCC
04/13/06." The chemistry report bore the signatures of P/S Insp. Salinas and P/Supt. Myrna P. Areola. The specimen
weighed 0.03 grams and tested positive for methamphetamine hydrochloride (shabu).10

Cabellon was the only defense witness and he denied selling shabu to the poseur-buyer.11

He claimed that on April 13, 2006, at about 3:30p.m., he was buying barbecue when he saw his aunt, Jane Cabellon,
crying. He asked her why she was crying and he told her that she had a fight with someone. He approached and
slapped the lady his aunt had a fight with. The lady then warned him that he would be arrested for what he had done to
her.12

Later that evening, at the barbecue station,13 he was arrested and bodily searched by some police officers; however,
nothing was recovered from him. He claimed that he was not informed by the arresting officers of the offense he
supposedly violated.14

Cabellon was then brought to the police station and was asked to call somebody. He was also asked to pay for his
release and for the settlement of the case filed against him. He was unable to pay or give a gift and declined to make
the phone call; hence, he was charged and a case was filed against him.15

On October 27, 2008, the Regional Trial Court16 found that the prosecution was able to prove all the elements for the
illegal sale of shabu.17 Furthermore, PO3 Bucao and PO2 Barangan identified the sachet sold by Cabellon to the poseur-
buyer. The seized sachet's chain of custody from the time Cabellon was arrested until it was presented as evidence to
the court was accounted for.18 The fallo of the trial court Decision read:
ACCORDINGLY, this court finds the accused GUILTY as charged and sentences him to suffer the penalty of LIFE
IMPRISONMENT and to pay a fine of [P]500,000.00.

Exhibit "B" is forfeited in favor of the State for proper disposition.

SO ORDERED.19
Cabellon filed an appeal before the Court of Appeals and raised several errors. He claimed that the trial court erred in
upholding the validity of his arrest despite the blatant violation of his right against unreasonable searches and when it
relied on the weakness of the defense evidence rather than on the strength of the prosecution evidence. Additionally,
he averred that the prosecution failed to prove his guilt beyond reasonable doubt.20

On August 30, 2012, the Court of Appeals21 dismissed the appeal and upheld the trial court decision.

The Court of Appeals held that the elements for the illegal sale of shabu were duly proven by the prosecution.22

The Court of Appeals also downplayed the supposed necessity of presenting the poseur-buyer as a witness in court since
the testimonies of the members of the apprehending team had already sufficiently established the illegal sale between
Cabellon and the poseur-buyer.23

The Court of Appeals likewise waived the stringent application of Section 21 of Republic Act No. 9165, considering the
circumstances obtaining in the case. The Court of Appeals emphasized that the defense never questioned the integrity
of the evidence during trial and only did so upon appeal.24 The fallo of the Court of Appeals Decision read:
IN LIGHT OF THE FOREGOING, the appeal is DENIED. The decision dated October 27, 2008 of the Regional Trial Court
(RTC), Brunch 58, Cebu City in Criminal Case No. CBU-76737 convicting Siegfred Cabellon y Cabañero for the crime of
Sale of Dangerous Drugs penalized under Section 5 of Republic Act No. 9165 is AFFIRMED in toto.

SO ORDERED.25
Cabellon filed a Notice of Appeal26 on October 4, 2012, which was noted and given due course by the Court of Appeals
in its April 29, 2013 Resolution.27

In its August 7, 2013 Resolution,28 this Court notified the parties that they may file their respective supplemental briefs. Both
parties manifested29 that they were dispensing with the filing of a supplemental brief.

Cabellon alleges that the supposed illegal sale was never proven because the poseur-buyer was not presented to attest
to the alleged sale. Furthermore, the police officers were positioned at a distance where they could not have seen the
sale and could merely rely on the poseur-buyer's signal. Cabellon insisted that the fact of the sale was not proven
beyond reasonable doubt.30

Cabellon also emphasizes that the police officers did not comply with the mandatory requirements under Section 21,
paragraph 1 of Republic Act No. 9165, requiring the apprehending team to immediately physically inventory and
photograph the seized drugs in the presence of the accused, a representative from media or the Department of Justice,
and any elected official.31

Cabellon then points out that the prosecution was unable to show an unbroken chain of custody, PO3 Bucao testified
that the poseur-buyer handed him the sachet after Cabellon was arrested, but he never testified as to whom he gave it
next or who marked it.32 Lastly, Cabellon asserts that he was not informed either of his constitutional rights upon his arrest
or the reason for his arrest or detention.33

On the other hand, the prosecution claims that the poseur-buyer's failure to testify was not fatal to the case since PO3
Bucao testified that he saw the sale.34

The prosecution argues that there was substantial compliance with Section 21 of Republic Act No. 9165 because the
integrity and evidentiary value of the seized item was properly preserved. The prosecution maintains that the
circumstances surrounding the arrest, where he was arrested in a house with three (3) persons high on drugs, made it
impossible to mark and inventory the sachet on the spot.35 The prosecution also avers that the supposed violations of
Section 21 of Republic Act No. 9165 were only raised for the first time on appeal.36

Finally, the prosecution denies that Cabellon was found guilty based on his weak defense and holds that it has proven
the evidentiary integrity of the seized sachet proving Cabellon's guilt beyond reasonable doubt. It asserts that the
prosecution witnesses have established Cabellon's guilt with their straightforward and candid testimonies.37

The only issue for this Court's resolution is whether or not accused-appellant Siegfred Cabellon's guilt was proven beyond
reasonable doubt despite the non-observance of the required procedure under Section 21 of Republic Act No. 9165.

This Court grants the appeal and acquits Siegfred Cabellon y Cabañero.
In order to sustain a conviction for the illegal sale of dangerous drugs, these two (2) elements must be established by the
prosecution: "(1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or
the illicit drug as evidence."38

To prove that the illegal sale of shabu took place, the prosecution presented PO3 Bucao and PO2 Barangan, two (2) of
the police officers who were part of the buy-bust operation team which apprehended the accused.

Both PO3 Bucao39 and PO2 Barangan40 testified that they had seen the accused talk with the poseur-buyer before the
latter scratched his head, signalling that the transaction had taken place. The marked money was recovered from the
accused,41 while the poseur-buyer turned over the sachet with shabu he had bought from the accused to PO3 Bucao.42

While the prosecution may have proven that a transaction took place, it was not as convincing in its presentation of the
alleged corpus delicti as evidence.

People v. Jaafar43 underscored the importance of presenting the actual illicit drug or corpus delictirecovered as
evidence since its existence is essential to convict the accused. Thus:
In all prosecutions for violations of Republic Act No. 9165, the corpus delicti is the dangerous drug itself. Its existence is
essential to a judgment of conviction. Hence, the identity of the dangerous drug must be clearly established.

Narcotic substances are not readily identifiable. To determine their composition and nature, they must undergo scientific
testing and analysis. Narcotic substances are also highly susceptible to alteration, tampering, or contamination. It is
imperative, therefore, that the drugs allegedly seized from the accused are the very same objects tested in the
laboratory and offered in court as evidence. The chain of custody, as a method of authentication, ensures that
unnecessary doubts involving the identity of seized drugs are removed.44(Emphasis supplied)
Section 21 of Republic Act No. 9165 provides the manner by which law enforcement officers should handle seized
dangerous drugs:
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof[.] (Emphasis supplied)
Section 21 of the Implementing Rules and Regulations of Republic Act No. 9165 further provides:
Section 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person's from whom
such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the
place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these
requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said
items[.] (Emphasis supplied)
While it may be true that strict compliance with Section 21 of Republic Act No. 9165 may be excused under justifiable
grounds, the integrity and evidentiary value of the seized items must still be preserved by the apprehending officer.

This Court is not convinced that the prosecution was able to prove the identity of the shabu supposedly seized from the
accused.

PO3 Bucao claimed that the poseur-buyer turned over to him the sachet purchased from the accused and that he had
custody of the sachet until he reached the police station. He then handed the sachet to PO3 Abellar, who supposedly
prepared the request for the chemical analysis of the seized item. However, PO3 Bucao failed to identify who placed the
markings on the sachet:
(Pros. Canta) Q: How many packs of shabu did your poseur[-]buyer handed it (sic) to you?
(PO3 Bucao) A: Only one.

Q: Who kept this pack of shabu from the place of the arrest to the police station?

A: Myself.

Q: What did you do with this pack of shabu that you get (sic) from the accused?

A: After we reach in (sic) our station I gave it to PO3 Abellar the one pack of shabu.

Q: What did PO3 Abellar do with this one pack of shabu?

A: He made a request to the PNP Crime Lab for chemical analysis.

....

Q: I am showing to you this one pack of white crystalline substance with labeling "SCC" the date thereon, is that the
evidence you are referring to?

A: Yes[,] sir.

Q: Who then made the marking "SCC" and the date?

A: I am not sure who made the marking.45

Even PO2 Barangan could not confirm who placed the markings on the sachet:
(PROS. CANTA) Q: I am showing to you this one pack of white crystalline substance marked as Exhibit B, with markings
SCC with a date, can you tell us if this is the same evidence that your (sic) recovered from the accused?

A: Yes, sir.

Q: Why are you sure?

A: Because this is the one PO3 Bucao showed to me.

Q: And there are markings in this plastic pack containing this small plastic pack of shabu SCC and the date 04/13/06,
who made that marking if you know?

A: I do not know[,] sir.46

People v. Nandi47 expounded on the four (4) links that should be established by the prosecution to constitute an
unbroken chain of custody:
[F]irst, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending
officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the
turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the
turnover and submission of the marked illegal drug seized from the forensic chemist to the court.48
Undeniably, a noticeable gap exists in the chain of custody with the prosecution's failure to present evidence that the
seized sachet was actually marked by any of the three (3) apprehending officers.

The prosecution likewise did not present evidence that the seized sachet was inventoried and photographed in the
presence of the accused or his representative, a representative from the media or the Department of Justice, and an
elected public official. Neither did it provide an explanation as to why the police officers did not follow the requirements
provided under the law.

PO3 Bucao also testified that he turned over the unmarked seized sachet to PO3 Abellar, who then prepared the
request to the Philippine National Police for chemical analysis.49 However, a careful review of the Request for Laboratory
Examination50 dated April 13, 2006 shows that not only did it refer to a marked sachet, it was also signed by
P/Superintendent Romeo Pagal Perigo, not PO3 Abellar, who supposedly prepared it.

The prosecution utterly failed to proffer evidence on who placed the markings on the sachet Furthermore, it also failed
to account for the seized sachet's transfer from PO3 Bucao to the Philippine National Police Crime Laboratory for
laboratory examination, creating another gap in the chain of custody.

This blatant lack of compliance with the safeguards established in Republic Act No. 9165 is made even more egregious
by the fact that the seized sachet only contained 0.03 grams51 of shabu, no more than a grain of rice. The danger of
tampering and planting of evidence was, thus, heightened, which should have put the lower courts on guard and not
have so easily relied on the presumption of regularity accorded to police officers in the performance of their official acts.
As this Court stated in People v. Holgado:52
While the miniscule amount of narcotics seized is by itself not a ground for acquittal, this circumstance underscores the
need for more exacting compliance with Section 21. In Mallillin v. People, this court said that "the likelihood of tampering,
loss or mistake with respect to an exhibit is greatest when the exhibit is small and is one that has physical characteristics
fungible in nature and similar in form to substances familiar to people in their daily lives."53
WHEREFORE, premises considered, the Decision dated August 30, 2012 of the Court of Appeals in CA-G.R. No. CEB-CR HC
No. 01081 is REVERSED and SET ASIDE. Accused-appellant Siegfred Cabellon y Cabañero is hereby ACQUITTED for failure
of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention,
unless he is confined for any other lawful cause.

Let a copy of this decision be furnished the Director of the Bureau of Corrections, Muntinlupa City for immediate
implementation. The Director of the Bureau of Corrections is directed to report to this Court, within five (5) days from
receipt of this decision the action he has taken.

The Regional Trial Court is directed to turn over the seized sachet of methamphetamine hydrochloride to the Dangerous
Drugs Board for destruction in accordance with law.

Let entry of judgment be issued immediately.

SO ORDERED.

Velasco, Jr., (Chairperson), Bersamin, Martires, and Gesmundo, JJ., concur.

ORDER OF RELEASE

TO: The Director

Bureau of Corrections
1770 Muntinlupa City

GREETINGS:

WHEREAS, the Supreme Court on September 20, 2017 promulgated a Decision in the above-entitled case, the dispositive
portion of which reads:
"WHEREFORE, premises considered, the Decision dated August 30, 2012 of the Court of Appeals in CA-G.R. No. CEB-CR
HC No. 01081 is hereby REVERSED and SET ASIDE. Accused-appellant Siegfred Cabellon y Cabanero is
hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered
immediatelyRELEASED from detention, unless he is confined for any other lawful cause.

Let a copy of this decision be furnished the Director of the Bureau of Corrections, Muntinlupa City for immediate
implementation. The Director of the Bureau of Corrections is directed to report to this Court, within five (5) days from
receipt of this decision, the action he has taken.

The Regional Trial Court is directed to turn over the seized sachet of methamphetamine hydrochloride to the Dangerous
Drugs Board for destruction in accordance with law.

Let entry of judgment be issued immediately.

SO ORDERED."
NOW, THEREFORE, You are hereby ordered to immediately release SIEGFRED CABELLON y CABAÑERO unless there are
other lawful causes for which he should be further detained, and to return this Order with the certificate of your
proceedings within five (5) days from notice hereof.

GIVEN by the Honorable PRESBITERO J. VELASCO, JR., Chairperson of the Third Division of the Supreme Court of the
Philippines, this 20th day of September 2017.

Very truly yours,

(SGD)
WILFREDO V. LAPITAN
Division Clerk of Court
Endnotes:

1CArollo, pp. 92-105. The Decision was penned by Associate Justice Pamela Ann Abella Maxino and concurred in by
Associate Justices Edgardo L. Didos Reyes and Zenaida T. Galapate-Laguilles of the Nineteenth Division, Court of
Appeals, Cebu City.

2 Id. at 10-11.

3 Id. at 10.

4 Id. at 51, RTC Decision.

5 Id. at 52, RTC Decision.

6 Id.

7 Id.

8 Id. at 53, RTC Decision.

9 Id. at 51-52.

10 Id. at 51 and 53. RTC referred to the substance as "methylamphetamine hydrochloride."

11 Id. at 53-54, RTC Decision.

12 Id.

13 TSN dated September 23, 2008, p. 4. TSN also refers to the date as "September 23, 2007."

14 Id. at 54.

15 Id.

16Id. at 51-58. The Decision, docketed as Criminal Case No. CBU 76737, was penned by Presiding Judge Gabriel T. Ingles
of Branch 58, Regional Trial Court, Cebu City.

17 Id. at 55-57.

18 Id. at 57.

19 Id. at 58.

20 Id. at 31.

21 Id. at 92-105.

22 Id. at 95-99.

23 Id. at 100-101.

24 Id. at 101-104.

25 Id. at 105.

26 Id. at 106-107.

27 Id. at 111.

28Rollo, p. 22.

29 Id. at 23-26 and 27-28.

30 CA rollo, pp. 37-38.

31 Id. at 38-39.

32 Id. at 39-42.

33 Id. at 48-49.

34 Id. at 74.

35 Id. at 76-77.

36 Id. at 78-79.

37 Id. at 79-81.

38People v. Morales, 630 Phil. 215, 228 (2010) [Per J. Del Castillo, Second Division] citing People v. Darisan, 597 Phil. 479
(2009) [Per J. Corona, First Division].

39 TSN dated April 24, 2007, p. 4.

40 TSN dated February 13, 2007, pp. 5-6.

41 Id. at 7.

42 TSN dated April 24, 2007, pp. 5-6.

43G.R. No. 219829, January 18, 2017

<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/january2017/219829.pdf> [Per J. Leonen,
Second Division].

44Id. at 7, citing People v. Simbahon, 449 Phil. 74 (2003) [Per J. Ynares-Santiago, First Division] and Mallillin v. People, 516
Phil. 576 (2008) [Per J. Tinga, Second Division].

45 TSN dated April 24, 2007, p. 6.

46 TSN dated February 13, 2007, p. 9.

47 639 Phil. 134 (2010) [Per J. Mendoza, Second Division].

48 Id. at 144-145, citing People v, Kamad, 624 Phil. 289 (2010) [Per J. Brion, Second Division].

49 TSN dated April 24, 2007, p. 6.

50 RTC records, p. 8.

51 Id. at 9.

52 741 Phil. 78 (2014) [Per J. Leonen].

53 Id. at 99, citing Mallillin v. People, 576 Phil. 576 (2008) [Per J. Tinga, Second Division].

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23433 February 10, 1968

GLORIA G. JOCSON, plaintiff-appellee,

vs.
RICARDO R. ROBLES, defendant-appellant.
REYES J.B.L., J.:

On February 4, 1963, Gloria G. Jocson commenced in the Juvenile & Domestic Relations Court an action for the
annulment of her marriage to Ricardo R. Robles (Civ. Case No. E-00013), on the ground that it was bigamous. It was
alleged in the amended complaint that previous to his marriage to plaintiff on May 27, 1958, defendant Robles had
contracted a first marriage with Josefina Fausto, who had instituted a criminal action for Bigamy against the same
defendant in the Court of First Instance of Manila (Crim. Case No. 64124). Plaintiff also demanded from the defendant
moral and exemplary damages, attorneys' fees, and costs, claiming that during their cohabitation, she was subjected to
physical maltreatment by her husband, resulting in the premature birth of their first child, who died three days later.

In his answer, defendant also assailed the validity of the marriage. But he charged plaintiffs' parents with having
compelled him by force, threat and intimidation, to contract that marriage with her, notwithstanding their knowledge
that he is a married man; and that said threat and intimidation allegedly persisted until January, 1963 when he was finally
able to get away and live apart from the plaintiff.

Thereafter, defendant filed a motion for summary judgment, on the ground that no genuine issue of fact is involved
in the case. It was claimed that defendant's contention, that his consent to the marriage was secured by force and
intimidation employed upon his person by the relatives of plaintiff, was allegedly supported by the joint affidavit of
plaintiff's father and brother, dated October 28, 1963, attached to the motion (pp. 22-32, Record on Appeal). Plaintiff, on
the other hand, submitted the case for judgment on the pleadings.

On December 23, 1963, defendant's motion for summary judgment was denied, the court ruling that before it can
pass upon plaintiff's prayer for the declaration of nullity of her marriage to defendant, there is necessity for proof that
when he contracted marriage with plaintiff, defendant Robles had a previous and subsisting valid marriage. The
evidentiary requirement to establish these facts, according to the court, was not met in the motion for summary
judgment. Defendant's plea to have his marriage declared as having been brought about by force and intimidation,
was also denied, the court finding indications of collusion between the parties in their attempt to secure the nullification
of said marriage. Reconsideration of this order, sought by defendant, was denied on January 18, 1964. And, when both
parties failed to appear at the scheduled hearing on March 9, 1964, the court directed the dismissal of the action.

On April 17, 1964, defendant notified the court below of his intention to appeal to this Court from the
abovementioned orders of December 23, 1963, January 18, 1964, and March 9, 1964. The appeal bond and amended
record on appeal, dated April 15, 1964, were thereafter approved.

It is noted that, as specified in the notice of appeal, defendant is taking exception from the lower court's orders of
December 23, 1963, January 18, 1964, and March 9, 1964; however, there is no indication or certification or proof that
the filing of the appeal notice, bond and record on appeal on April 17, 1964 were made within the reglementary period,
as required by the provisions of Section 6, Revised Rule 41 of the Rules of Court. Thereunder, the record on appeal must
contain, not only the full names of all the parties to the proceeding, as well as the pleadings, petitions, motions and
orders related to the order or judgment subject of the appeal and which are necessary for the proper understanding of
the issue involved therein, but also "such data as will show that the appeal was perfected on time." This requirement,
incorporated in the new Rules of Court to enable the appellate courts to determine without protracted inquiry whether
an appeal was timely made or not, was held to be jurisdictional, failure to comply with which shall cause the dismissal of
the appeal. 1 There is here no showing that the present appeal was perfected within the reglementary period, which
datum should have appeared in the record on appeal.

On the merits, we are satisfied that the Court of Domestic Relations correctly denied the motion for summary
judgment in view of the first paragraph of Articles 88 and 1011 of the Civil Code of the Philippines, that expressly prohibit
the rendition of a decree of annulment of a marriage upon a stipulation of facts or a confession of judgment. The
affidavits annexed to the petition for summary judgment practically amount to these methods not countenanced by the
Civil Code.

FOR THE FOREGOING REASONS, this proceeding is hereby dismissed, conformable to Section (a) of Revised Rule 50
of the Rules of Court, and the judgment appealed from is affirmed. Costs against the appellant.

Concepcion, C.J., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ.,
concur. 1äwphï1.ñët

Footnotes
 1Atlas
Consolidated Mining & Development Corporation vs. Progressive Labor Association, G.R. No. L-27125,
September 15, 1967.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-43701 March 6, 1937

In re Instate of the deceased Marciana Escaño.

ANGELITA JONES., petitioner-appellant-appellee,
vs.
FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellant-appellee.

Salvador E. Imperial for petitioner-appellant-appellee.

Vicente L. Faelnar , Hipolito Alo and Ciriaco S. Salazar for oppositor-appellant-appellee.

CONCEPCION, J.:

This is an appeal taken from the order issued by the Court of First Instance of Cebu on March 14, 1935 , in the intestate
proceedings of the deceased Marciana Escaño, denying thereby: (1) the motion to appoint a new administrator and (2)
to set aside the order of May 9, 1932, declaring the heirs of said deceased; (3) holding it unwarranted to declare that the
properties of the intestate estate are paraphernal properties of said deceased, but reserving to the parties the right to
discuss which of said properties are paraphernal and which are conjugal; (4)setting aside the order of January 10, 1933.
granting to the administrator fees in the sum of P10,000, and that of June 26, 1933, approving the project of portion and
the final account; and (5) ordering the presentation of another project of partition and final account.

As Marciana Escaño had died intestate, her widower Felix Hortiguela was appointed judicial administrator of her entire
estate, and in an order issued on May 9, 1932, Angelita Jones, her daughter by her first marriage, and Felix Hortiguela,
her widower by her second marriage, were declared her only heirs. In a motion filed with the conformity of the guardian
of the heiress Angelita Jones, Felix Hortiguela, as administrator, prayed that his fees, as such, be fixed at P10,000 which
was granted by the court in its order of January 10, 1933. The administrator later presented an inventory of the properties
left by said deceased Marciana Escaño, a final account of his administration, and a project of partition of the intestate
estate wherein he adjudicated to himself a part of the estate in payment of his share of the conjugal properties and his
usufructuary right, and the remaining part to Angelita Jones. The latter, who was a minor, was represented in the
proceedings by her guardian Paz Escaño de Corominas. The project of partition and final account were approved in an
order of June 26, 1933, and the properties were turned over to the respective grantees by virtue thereof.

On May 3, 1934, the heiress Angelita Jones, then married to Ernesto Lardizabal, filed a motion alleging that she was the
only heir of her mother, the deceased Marciana Escaño; that there never was a valid marriage between her mother
and Felix Hortiguela or that had such marriage been celebrated, it was null and void; and even granting that it were
valid, Felix Hortiguela was not entitled to a share in usufruct of one-third of the inheritance; that the petitioner was a
minor and that during the hearing of the intestate proceedings she had not been assisted by counsel but was represent
by the same attorney of Felix Hortiguela; that during said proceedings there had been committed many errors and
inaccuracies which impaired her rights and that the fees of P10,000 charged by the administrator were highly
unreasonable and unconscionable. She prayed: (a) for the reopening of the proceedings; (b) that her husband
appointed special administrator without bond; (c) that her mother's alleged marriage to Felix Hortiguela be declared null
and void; (d) that the partition of the properties made by administrator or Hortiguela be declared null and void that
petitioner be declared the only universal heir of her deceased mother; and (e) that in case there was a valid marriage
between Felix Hortiguela and Marciana Escaño, Hortiguela be declared not entitled to the widower's usufruct; the errors
in the administrator's account be corrected; the latter be granted a remuneration of only P4 a day, and new partition of
the properties be made.

After Hortiguela's answer had been filed and the evidence for both parties received, the court issued the order of March
14, 1935, the provisions of which are stated in the first paragraph of this decision. Both parties appealed therefrom.
The principal question upon the resolution of which depends that of the others, is whether or not Felix Hortiguela's alleged
marriage to Marciana Escaño was celebrated.

It is a fact that in December, 1914, Marciana Escaño married Arthur W. Jones in the suburban catholic church of San
Nicolas, Province of Cebu. On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing was
ever heard of him. In October, 1919, proceedings were institute in the Court of First Instance of Maasin, Leyte, at the
instance of Marciana Escaño, to have her husband judicially declared an absentee. On the 25th of said month, the
court issued an order declaring Arthur W. Jones an absentee from the Philippine Islands pursuant to the provisions of
article 186 of the Civil Code, with the proviso that said judicial declaration of absence would not take effect until six
months after its publication in the official newspapers. Said order directed the publication thereof in the Official Gazette
and in the newspaper "El Ideal". Pursuant thereto, said order was published in the Official Gazette during the month of
December, 1919, and January, February, March, April, May and June, 1920. On April 23, 1921, the court issued another
order for the taking effect of the declaration of absence, publication thereof having been made in the Official Gazette
and in "El Ideal." On May 6, 1927, Felix Hortiguela and Marciana Escaño were married before the justice of the peace of
Malitbog, Leyte, and they signed the certificate of marriage.

Now, Angelita Jones contends that the declaration of absence must be understood to have been made not in the
order of October 25, 1919, but in that of April 23, 1921, and that from the latter date to May 6, 1927, the date of the
celebration of the marriage, only 6 years and 14 days elapsed; and in accordance with section III, paragraph 2, of
General Orders, No. 68, the marriage so contracted by Felix Hortiguela and Marciana Escaño is null and void. This court
does not believe so. For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially
declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its
sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For
the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven
consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to
be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the
celebration of the marriage (section III, paragraph 2, General orders, No. 68).

In accordance with the foregoing legal provision, the absence of Marciana Escaño's former husband should be
counted from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from
said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful.

For some unknown reason not attributable, of course, to the fault or negligence of Felix Hortiguela or Marciana Escaño,
the marriage contracted does not appear recorded in the marriage register of the municipality of Malitbog. Angelita
Jones assigns as one of the errors of the court its having declared that failure to record said marriage does not affect the
efficacy and validity thereof.

On this point, the court a quo very correctly stated as follows:

Section VIII of General Orders, No. 68, as amended, provides that the person solemnizing the marriage must
transmit the marriage certificate to the municipal secretary, and failure to transmit such certificate shall be
fined not less than twenty-five and not more than fifty dollars; but does not provide that failure to transmit such
certificate to the municipal secretary annuls the marriage. Interpreting this legal provision, the Supreme Court,
in its decision of September 5, 1931 (Madridejo vs. De Leon, 55 Phil., 1 ) said:

"The mere fact that the parish priest who married the plaintiff's natural father and mother, while the
latter was in articulo mortis failed to send a copy of the marriage certificate to the municipal
secretary, does not invalidate said marriage, since it does not appear that in the celebration thereof
all requisites for its validity were not present, the forwarding of a copy of the marriage certificate not
being one said requisites."

In another case (U. S. vs. De Vera, 28 Phil., 105), the court said:

"Certificate issued pursuant the provisions of section 20 of the Municipal Code by municipal secretaries,
marriages recorded in their respective registers, are not the only ones that can attest and prove such facts to
such an extent that other proofs established by law may not be presented or admitted at trial, when through
the omission or fault either of the municipal secretary himself or of the person who solemnized the marriage, it
was not duly entered or recorded in the municipal register."

Furthermore, Marciana Escaño believed Arthur W. Jones to be dead when she contracted her second marriage. Her
daughter Angelita Jones herself was of the same belief, since she lived with her mother after the latter had married
Hortiguela, treated Hortiguela as her true stepfather, and lived and traveled with him together with her mother. She
certainly would not have behaved so if she had not believed her father to be dead. Still furthermore, according to
section 334, No. 24, of the Code of Civil Procedure, a person not heard from in seven years is presumed to be dead.

Inasmuch as Felix Hortiguela was lawfully married to Marciana Escaño and was divorced from her at the time of her
death there is no doubt that he is entitled to inherit in usufruct, not only in testate but also in intestate succession, as in
the present case (6 and 7 Manresa, pages 497-499 and 134-141, respectively).

Therefor, there is no reason to annul the order of May 9, 1932, declaring that the heirs of the deceased were her widower
and her daughter Angelita Jones. Neither is there any reason to annul the order of June 26, 1933, approving the partition
of the properties of the intestate estate.

The inaccuracies and error attributed to the administrator Felix Hortiguela in Angelita Jones' motion and alleged therein
as one of the grounds for asking for the reopening of any assignment of error. It should, therefore, be considered that the
petitioner has desisted from her intention relative to this alleged ground for the nullity of the proceedings.

As to the administrator's fees, the evidence shows that of the P10,000 granted by the court to Hortiguela as his own sum
of P8,000 for the latter's professional services in this as well as in other cases affecting the estate of his deceased wife.
Taking into consideration the nature of and the amount involved in this and in the other cases wherein Attorney Faelnar
has rendered his services this court is of the opinion that the sum of P8,000 paid by the administrator is a reasonable and
moderate compensation. Angelita Jones' objection to the effect that she had no reason to contribute to the payment
of Faelnar's fees is untenable, considering the fact that said attorney's professional services were rendered for the benefit
of the administration of the estate of the deceased Escaño prior to the controversy provoked by said heiress. As to the
remainder of P2,000, said administrator is entitled to collect the sum of P4 for every day employed by him as such, and
considering the importance of the inheritance in question and the time elapsed since the inception of the administration
proceedings this court is of the opinion that the sum of P2,000 is an adequate compensation for said administrator's
services.

Lastly, had the court jurisdiction to set aside, as it did, the order of January 10, 1933, approving the administrator's fees
and the order of June 26, 1933, approving the partition and the final account? Had the court jurisdiction to order the
presentation of another project of partition and final account? These are the questions raised by Felix Hortiguela and this
court is of the opinion that said orders having therefrom, the court has lost jurisdiction that no appeal was ever taken
therefrom, the court has lost jurisdiction over the case and it could not resume it under section 113 of the Code of Civil
Procedure or under section 598 thereof because the above-cited section refer to grounds other than those upon which
Angelita Jones' motion of May 3, 1934, is based.

For all the foregoing consideration this court reverses the appealed order of March 14, 1935, in so far as it set aside the
order of January 10, 1933, relative to the administrator's fees and the order of June 26, 1933, approving the final account
and the project of portion, and in so far as said order of March 14, 1935, required the presentation of a new project of
partition; denied the appointment of Angelita Jones husband as administrator; affirms the order of May 9, 1932, relative
to declaration of heirs; and holds it unwarranted to make a finding as to whether or not the properties of this intestate
estate are paraphernal properties of the deceased Marciana Escaño reserving to the parties the right to discuss which
are paraphernal and which are conjugal properties. So ordered.

Avanceña, C.J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.

FIRST DIVISION

[G.R. No. L-8492. February 29, 1956.]

In the Matter of the Declaration of the Civil Status of: LOURDES G. LUKBAN, Petitioner-Appellant, vs. REPUBLIC OF THE
PHILIPPINES, Oppositor-Appellee.

DECISION

BAUTISTA ANGELO, J.:

This is a petition filed in the Court of First Instance of Rizal for a declaration that Petitioner is a widow of her husband
Francisco Chuidian who is presumed to be dead and has no legal impediment to contract a subsequent marriage.
The Solicitor General opposed the petition on the ground that the same is not authorized by law. After Petitioner had
presented her evidence, the court sustained the opposition and dismissed the petition. Hence this appeal.
Lourdes G. Lukban, Petitioner herein, contracted marriage with Francisco Chuidian on December 10, 1933 at the Paco
Catholic Church, Manila. On December 27, of the same year, Francisco left Lourdes after a violent quarrel and since then
he has not been heard from despite diligent search made by her. She also inquired about him from his parents and friends
but no one was able to indicate his whereabouts. She has no knowledge if he is still alive, his last known address being
Calle Merced, Paco, Manila. She believes that he is already dead because he had been absent for more than twenty
years, and because she intends to marry again, she desires that her civil status be defined in order that she may be relieved
of any liability under the law.

We believe that the petition at bar comes within the purview of our decision in the case of Nicolai Szartraw, 46 Off. Gaz.,
1st Sup., 243, wherein it was held that a petition for judicial declaration that Petitioner’s husband is presumed to be dead
cannot be entertained because it is not authorized by law, and if such declaration cannot be made in a special
proceeding similar to the present, much less can the court determine the status of Petitioner as a widow since this matter
must of necessity depend upon the fact of death of the husband. This the court can declare upon proper evidence, but
not to decree that he is merely presumed to be dead. (Nicolai Szartraw, 46 Off. Gaz., 1st sup. 243).

The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceeding of this nature is well
expressed in the case above-cited. Thus, we there said that “A judicial pronouncement to that effect, even if final and
executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject
of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a
competent court has to pass cralaw. It is, therefore, clear that a judicial declaration that a person is presumptively dead,
because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof,
cannot reach the stage of finality or become final.”
Appellant claims that the remedy she is seeking for can be granted in the present proceedings because in the case of
Hagans vs. Wislizenus, 42 Phil., 880, it was declared that a special proceeding is “an application or proceeding to establish
the status or right of a party, or a particular fact”; chan roblesvirtualawlibrarybut, as already said, that remedy can be
invoked if the purpose is to seek the declaration of death of the husband, and not, as in the present case, to establish a
presumption of death. If it can be satisfactorily proven that the husband is dead, the court would not certainly deny a
declaration to that effect as has been intimated in the case of Nicolas Szartraw, supra.
Appellant also claims that the present petition can be entertained because article 349 of the Revised Penal Code, in
defining bigamy, provides that a person commits that crime if he contracts a second marriage “before the absent spouse
has been declared presumptively dead by means of a judgment rendered in the proper proceedings” and, it is claimed,
the present petition comes within the purview of this legal provision. The argument is untenable for the words “proper
proceedings” used in said article can only refer to those authorized by law such as those which refer to the administration
or settlement of the estate of a deceased person (Articles 390 and 391, new Civil Code). That such is the correct
interpretation of the provision in question finds support in the case of Jones vs. Hortiguela, 64 Phil., 179, wherein this Court
made the following comment:chanroblesvirtuallawlibrary
“For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee.
The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable
the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil
marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time
of the second marriage, that the spouse present does not know his or her former spouse to be living, that each former
spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage
(section III, paragraph 2, General Orders, No. 68).”
The decision appealed from is affirmed, without pronouncement as to costs.

Paras, C.J., Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion, Reyes, J. B. L. and Endencia, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14058 March 24, 1960

In the matter of the petition for the declaration of William Gue, presumptively dead. ANGELINA L. GUE,petitioner-
appellant,
vs.
THE REPUBLIC OF THE PHILIPPINES, oppositor-appellee.
Virgilio V. David for appellant.
Office of the Solicitor General Edilberto Barot and Solicitor E. M. Salva for appellee.

MONTEMAYOR, J.:

This is an appeal from the order of the Court of First Instance of Manila, presided by Judge Bonifacio Ysip, dismissing the
petition of Angelina Gue. Involving as it does only question of law, the appeal was taken directly to us.

On November 20, 1957, Angelina L. Gue filed a petition in the Court of First Instance of Manila, Civil Case No. 34303,
alleging that she was married to William Gue; that they had a child named Anthony L. Gue; that January 5, 1946, her
husband left Manila where they were residing and went to Shanghai, China, but since then, he had not been heard of,
neither had he written to her, nor in anyway communicated with her as to his whereabouts; that despite her efforts and
diligence, she failed to locate him; and that they had not acquired any property during the marriage. She asked the
court for a declaration of the presumption of death of William Gue, pursuant to the provisions of Article 390 of the Civil
Code of the Philippines. After due publication and hearing, the trial court issued the order of dismissal, which we
reproduce below:

This is a petition filed by Angelina L. Gue to declare her husband. William Gue, presumptively dead. During the
hearing of this petition, it was established by the testimony of the petitioner that she and her husband were
married on October 11, 1944 in the City of Manila before the parish priest of Tondo, Manila, as shows in Exhibit B,
the marriage contract. Her husband, who is a Chinese citizen, left the Philippines for Shanghai on January, 1946.
The petitioner joined him in Shanghai in August of the same year. In January, 1949, the petitioner came back to
the Philippines alone with her children, on which occasion her husband promised to follow her. However, up to
the present time, said William Gue has not returned to the Philippines. From January, 1949, the petitioner had
sent letters to her husband in Shanghai, but she never received any reply thereto. She made inquiries from the
Bureau of Immigration in 1955 and 1958 as to whether her husband had already returned to the Philippines and
she received Exhibit D and Exhibit E from said Office, which gave no information as to the whereabouts of her
husband. It was also established by petitioner's testimony that no properties have been acquired by said
spouses during their union, and during which they begot two children, named Eugeni and Anthony, surnamed
Gue.

With this evidence on record and considering the allegations in the petition, it is clear that no right had been
established by the petitioner upon which a judicial decree may be predicated, and this action is not for the
settlement of the estate of the absentee, as it is clear that he did not leave any.

In the case of "Petition for the Presumption of Death of Nicolai Szatraw", 81 Phil., 461, a case similar to the
present, the Supreme Court held:

The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear that he
possessed property brought to the marriage and because he had acquired no property during his married life
with the petitioner. The rule invoked by the latter is merely one of evidence which permits the court to presume
that a person is dead after the fact that such person had been unheard from in seven years had been
established. This presumption may arise and be invoked and made in a case, whether in an action or in a
special proceeding, which is tried or heard by, and submitted for decision to, a special proceeding. In this
case, there is no right to be enforced nor is there a remedy prayed for by the petitioner for the final
determination of his right or status or for the ascertainment of a particular fact (Hagans vs. Wislizenus, 42 Phil.,
880), for the petition does not pray for a declaration that the petitioner's husband is dead, but merely asks for a
declaration that he be presumed dead because he had been unheard from in seven years. If there is any
pretense at securing a declaration that the petitioner's husband is dead, such a pretension cannot be granted
because it is unauthorized. The petition is for a declaration that the petitioner's husband is presumptively dead.
But this declaration, even if judicially made, would not improve the petitioner's situation, because such a
presumption is established by law. A judicial pronouncement to that effect, even if final and executory, would
still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a
judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a
competent court has to pass. The latter must decide finally the controversy the right or status of a party or
established finally a particular fact, out of which certain rights and obligations arise or may arise; and once
such controversy is decided by a final judgment or such right or status is determined, then the judgment on the
subject of the controversy, or the decree upon the right or status of a party or upon the existence of a
particular fact, becomes res judicata, subject to no collateral attack, except in a few rare instances especially
provided by law. It is, therefore, clear that a judicial declaration that a person is presumptively dead, because
he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof
cannot reach the state of finality or become final. Proof of actual death of the person presumed dead
because he had been unheard from in seven years, would have to be made in another proceeding to have
 such particular fact finally determined. If a judicial decree declaring a person presumptively dead, because he
had not been heard from in seven years, cannot become final and executory even after the lapse of the
reglementary period within which an appeal may be taken, for such a presumption is still disputable and
remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and
of no benefit to the petitioner. The Court should not waste its valuable time and be made to perform a
superfluous and meaningless act.

"Little effort is necessary to perceive that a declaration such as the one prayed for by the petitioner, if granted,
may make or lead her to believe that the marital bonds which binds her to her husband are torn asunder, and
that for that reason she is or may feel free to enter into a new marriage contract. The framers of the rules of
court, by the presumption provided for in the rule of evidence in question, did not intend and mean that a
judicial declaration based solely upon that presumption may be made. A petition for a declaration such as the
one filed in this case may be made in collusion with the other spouse. If that were the case, then a decree of
divorce that cannot be obtained or granted under the provisions of the Divorce Law (Act No. 2710) could
easily be secured by means of a judicial decree declaring a person unheard from in seven years to be
presumptively dead. This is another strong reason why a petition such as the one presented in this case should
not be countenanced and allowed. What cannot be obtained directly under the provisions of the Divorce Law
could indirectly be secured under the provisions of Rule 123, section 69 (x). Obviously, the latter must not be
made to prevail over the former."

In view of the foregoing and the doctrine of the Supreme Court laid down in the case above-cited, the Court
hereby orders that this case be, as it is hereby dismissed, without pronouncement as the costs.

In her appeal, Angelina invoked the provisions of the Article 390 of the New Civil Code, which for purpose of reference,
we reproduce below.

ART. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening this succession till after an absence of
ten years. If he disappeared after the of seventy-five years, an absence of five years shall be sufficient in order
that his succession may be opened.

She contends that under Article 191 of the Old Civil Code, which reads:

After thirty years have elapsed since disappearance of the absentee, or since he was last heard from, or ninety
years from his birth, the judgment upon the petition of any party lawfully interested, shall make an order
declaring that such absentee is presumed to be dead.

a person could be declared presumptively dead, but that said legal provision was repealed by the Code of Civil
Procedure and continued to be repealed by the Rules of Court. Consequently, only a mere disputable presumption of
death was available to any party, and that the case of Nicolai Szatraw, cited by the trial court, was decided on the law
then existing, namely, the Code of Civil Procedure, and later the new Rules of Court. However, according to appellant,
with the promulgation of the New Civil Code in 1950, particularly, Article 390 thereof, the Courts are now authorized to
declare persons presumptively dead.

In answer to her contention, the Solicitor General, as appellee herein, correctly cites our decision in the recent case of
Lourdes G. Lukban vs. Republic of the Philippines, 98 Phil., 574; 52 Off. Gaz., No. 3, 1441, decided long after the New Civil
Code went into effect, wherein we reiterated the doctrine laid own in Nicolai Szatraw, supra. We quote the pertinent
portions of our decision in that case:

This is a petition filed in the Court of First Instance of Rizal for a declaration that petitioner is a widow of her
husband Francisco Chuidian who is presumed to be dead and has no legal impediment to contract a
subsequent marriage.

The Solicitor General opposed the petition on the ground that the same is not authorized by law. After
petitioner had presented her evidence, the court sustained the opposition and dismissed the petition. Hence
this appeal.
 Lourdes G. Lukban, petitioner herein, contracted marriage with Francisco Chuidian on December 10, 1933 at
the Paco Catholic Church, Manila. On December 27, of the same year, Francisco left Lourdes after a violent
quarrel and since then he has not been heard from despite diligent search made by her. She also inquired
about him from his parents and friends but no one was able to indicate his whereabouts. She has no
knowledge if he is still alive, his last known address being Calle Merced, Paco, Manila. She believes that he is
already dead because he had been absent for more than twenty years, and because she intends to marry
again, she desires that her civil status be defined in order that she may be relieved of any liability under the law.

We believe that the petition at bar comes within the purview of our decision in the case of Nicolai Szatraw, 46
Off. Gaz. 1st Sup. 243, wherein it was held that a petition for judicial declaration that petitioner's husband is
presumed to be dead cannot be entertained because it is not authorized by law, and if such declaration
cannot be made in a special proceedings similar to the present, much less can the court determine the status
of petitioner as a widow since this matter must of necessity depend upon the fact of death of the husband. This
the court can declare upon proper evidence, but not to decree that he is merely presumed to be dead.
(Nicolai Szatraw, 48 Off. Gaz., 1st Sup. 243).

The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceeding of this
nature is well expressed in the case above-cited. Thus, we there said that "A judicial pronouncement to that
effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that
reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or
matter involved in a case, or upon which a competent court has to pass .. It is, therefore, clear that a judicial
declaration that a person is presumptively dead, because he had been unheard from in seven years, being a
presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final."

We deem it unnecessary to further discuss the merits of the case. The appealed order dismissing the petition is hereby
affirmed, with costs.

Paras, C. J., Bengzon, Bautista Angelo, Concepcion, Reyes, J. B. L., Barrera, and Gutierrez David, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 86421 May 31, 1994

SPS. THELMA R. MASINSIN and MIGUEL MASINSIN, SPS. GILBERTO and ADELINA, ROLDAN, petitioners,
vs.
THE HON. ED VINCENT ALBANO, Presiding Judge of the Metropolitan Trial Court of Manila, Branch X, DEPUTY SHERIFF JESS
ARREOLA, VICENTE CAÑEDA and THE HON. LEONARDO CRUZ, in his capacity as Presiding Judge Regional Trial of Manila,
Branch XXV, respondents.

Gregorio T. Fabros for petitioners.

Isidro F. Molina for private respondent.

RESOLUTION

VITUG, J.:

Spouses Miguel and Thelma Masinsin, et al., instituted this petition for certiorari, prohibition, relief from judgment, as well
as declaratory relief, with prayer for preliminary mandatory injunction, asking us to order the Metropolitan Trial Court
("MTC") of Manila, Branch X, to cease and desist from further proceeding with Civil Case No. 107203-CV.
This case emerged from an ejectment suit (docketed Civil Case No. 107203-CV) filed by private respondent Vicente
Cañeda ("Cañeda"), then as plaintiffs, against herein petitioners, as defendants, with the Metropolitan Trial Court of
Manila (Branch X). After trial, the MTC, on 01 July 1985, rendered judgment; thus:

PREMISES CONSIDERED, judgment is hereby rendered ordering the defendants and all persons
claiming right under them to vacate the premises and to remove their house/apartment and
surrender possession of the subject land to the plaintiff; to pay to the plaintiff the sum of P100.00 a
month from January 1987 as the reasonable compensation for the use and occupation of the
premises until the land is actually vacated, and the costs of suit. 1

No appeal having been taken therefrom, the judgment became final and executory. On 22 August 1985, petitioners
filed a petition for certiorari before the Regional Trial Court of Manila (Branch XXXII) seeking the annulment of the
aforesaid decision in the ejectment case and to set aside an order of its execution. The petition was in due time
dismissed. Again, no appeal was taken therefrom.

On 07 October 1985, a complaint for "Annulment of Judgment, Lease Contract and Damages" was filed by petitioners
before the Regional Trial Court of Manila (Branch XLI) asking, in main, for the nullification of the judgment in the
ejectment case. The complaint was dismissed on the ground of res judicata. This time, petitioners appealed the dismissal
to the Court of Appeals. Meanwhile, a writ of execution was issued by the MTC for the enforcement of its decision. The
writ, however, was held in abeyance when petitioners deposited with the Court of Appeals the sum of P3,000.00 in cash
plus an amount of P100.00 to be paid every month beginning February 1987. On 11 March 1987, the Court of Appeals
affirmed the order of dismissal of the lower court. Petitioners' recourse to this Court was to be of no avail. The petition was
denied, and an entry of judgment was made on 14 July 1987.

Accordingly, the records were remanded to the MTC for execution. When petitioners refused to remove their house on
the premises in question, upon motion of private respondent, an order of demolition was issued. Shortly thereafter, the
demolition began. Before the completion of the demolition, a restraining order was issued by the Regional Trial Court of
Manila (Branch XIX) following a petition for certiorari, with preliminary injunction and restraining order, filed by petitioners.
On 23 February 1988, the trial court dismissed the petition.

Unfazed by the series of dismissals of their complaints and petitions, petitioners assailed anew the MTC decision in a
petition for certiorari, with preliminary injunction, and for declaratory relief (docketed Civil Case No. 88-43944) before the
Regional Trial Court of Manila (Branch XXV), which, again, issued a restraining order. 2

Private respondent then filed a motion for an alias writ of execution with the MTC. An ex-parte motion of petitioners for
the issuance of a second restraining order was this time denied by the RTC (Branch XXV). 3 On 23 August 1990, 4 the trial
court, ultimately, dismissed the petition with costs against petitioners.

In this petition, petitioners contend that the MTC of Manila (Branch X) has lost jurisdiction to enforce its decision, dated 01
July 1985, in Civil Case No. 107203, when the property in question was proclaimed an area for priority development by
the National Housing Authority on 01 December 1987 by authority of Presidential Decree 2016.

The petition is totally without merit.

In resolving this issue, we only have to refer to our resolution of 01 February 1993 in G.R. No. 98446, entitled, "Spouses
Thelma R. Masinsin, et al. vs. Court of Appeals, et al.," to which this case is intimately related, where we ruled:

. . . The singular question common to both cases submitted for resolution of this court is the implication
of Presidential Decree No. 1517, otherwise known as the "Urban Land Reform Law," and its
amendments or ramifications embodied in Proclamation No. 1893, as amended by Proclamation No.
1967 and Presidential Decree No. 2016. All the above statutes are being implemented by the Housing
and Land Use Regulatory Board, and the Housing and Urban Development Coordinating Council,
Office of the President.

There is a prejudicial issue the answer to which hangs the resolution of this case. On May 20, 1992, this
Court required the National Housing Authority to submit a Comment on the status of the program of
acquisition by the Government of the land area which includes the disputed property, as part of the
Areas for Priority Development (APD), under the aforementioned decrees and proclamations.
 In compliance with said order of this Court, Mr. Andres C. Lingan, Manager of the Metro Manila
Project Department of the National Housing Authority, submitted the following report on the status of
Lot 6-A, Block 1012, located at No. 1890 Obesis Street, Pandacan, Manila, known as the Carlos Estate,
an APD site. Pertinent portions of the report read:

Please be informed that Lot 6-A, Block 1012 located at No. 1890 Obesis St.,
Pandacan, Manila which is the subject matter of the case and located within the
Carlos Estate declared as APD site pursuant to Presidential Proclamation No. 1967, is
not for acquisition by NHA.

The Carlos Estate is located outside of the NHA projects under the Zonal
Improvement Project (ZIP) and Community Mortgage Program (CMP). The site,
however, is under the administration of the Presidential Commission on Urban Poor
(PCUP) for acquisition and upgrading. (Emphasis Supplied.)

The above information answers the uncertainty concerning the status of the alleged negotiation for
the acquisition by the government of certain areas in Metro Manila. The NHA is definitely NOT
acquiring the said lot for its program.

It appearing that the purpose of this Petition for Review is to set aside the decision of the respondent
Court of Appeals which affirmed the decision of the lower courts, in order to avoid eviction from the
disputed premises and to be allowed to acquire the same allegedly under the Community Mortgage
Program of the National Housing Authority, we find the petition without merit and deny the same.
Consequently, the petition is DISMISSED. 5

What immediately catches one's attention to this case is the evident predilection of petitioners, through different
counsel, to file pleadings, one after another, from which not even this Court has been spared. The utter lack of merit of
the complaints and petitions simply evinces the deliberate intent of petitioners to prolong and delay the inevitable
execution of a decision that has long become final and executory.

Four times did the petitioners, with the assistance of counsel, try to nullify the same MTC decision before different
branches of the court, trifling with judicial processes. Never, again, should this practice be countenanced. 6

The lawyer's oath to which we have all subscribed in solemn agreement in dedicating ourselves to the pursuit of justice, is
not a mere fictile of words, drift and hollow, but a sacred trust that we must uphold and keep inviolable. Perhaps, it is
time we are here reminded of that pledge; thus -

LAWYER'S OATH

I, . . ., do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support
and defend its Constitution and obey the laws as well as the legal orders of the duly constituted
authorities therein; I will do no falsehood nor consent to its commission; I will not wittingly or willingly
promote or sue any groundless, false or unlawful suit nor give aid nor consent to the same; I will not
delay any man's cause for money or malice and will conduct myself as a lawyer according to the
best of my knowledge and discretion with all good fidelity as well to the courts as to my clients and I
impose upon myself this obligation voluntary, without any mental reservation or purpose of evasion.

SO HELP ME GOD. (Emphasis supplied.)

We have since emphasized in no uncertain terms that any act on the part of a lawyer, an officer of the court, which
visibly tends to obstruct, pervert, impede and degrade the administration of justice is contumacious calling for both an
exercise of disciplinary action and warranting application of the contempt power. 7

WHEREFORE, the petition is DISMISSED. Petitioners' counsel of record is hereby strongly CENSURED and WARNED that a
similar infraction of the lawyer's oath in the future will be dealt with most severely. Double costs against petitioners.

This resolution is immediately executory.

SO ORDERED.
 Feliciano, Bidin, Romero and Melo, JJ., concur.

#Footnotes

1 Rollo of G.R. No. 98446, 13-14.

2 Rollo of G.R. No. 86421, 13-14.

3 Ibid., Annex "H", Petition, 29-30.

4 Rollo of G.R. No. 98446, 14-15.

5 Rollo of G.R. No. 98446, pp. 90-91.

6 The Court has since issued Administrative Circular No. 04-94, effective 01 April 1994, hereunder
quoted for guidance:

ADMINISTRATIVE CIRCULAR NO. 04-94

TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS, REGIONAL

TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL
CIRCUIT TRIAL COURTS, THE SOLICITOR GENERAL, THE GOVERNMENT CORPORATE
COUNSEL, ALL MEMBERS OF THE GOVERNMENT PROSECUTION SERVICE, AND ALL
MEMBERS OF THE INTEGRATED BAR OF THE PHILIPPINES.

SUBJECT: ADDITIONAL REQUISITES FOR CIVIL COMPLAINTS, PETITIONS AND OTHER

INITIATORY PLEADINGS FILED IN ALL COURTS AND AGENCIES, OTHER THAN THE
SUPREME COURT AND THE COURT OF APPEALS, TO PREVENT FORUM SHOPPING OR
MULTIPLE FILING OF SUCH PLEADINGS.

Revised Circular No. 28-91, dated April 1, 1994, applies to and governs the filing of
petitions in the Supreme Court and the Court of Appeals and is intended to prevent
the multiple filing of petitions or complaints involving the same issues in other
tribunals or agencies as a form of forum shopping.

Complementary thereto and for the same purpose, the following requirements, in
addition to those in pertinent provisions of the Rules of Court and existing circulars,
shall be strictly complied with in the filing of complaints, petitions, applications or
other initiatory pleadings in all courts and agencies other than the Supreme Court
and the Court of Appeals, and shall be subject to sanctions provided hereunder:

(1) The plaintiff, petitioner, applicant or principal party seeking relief in the
complaint, petition, application or other initiatory pleading shall certify under oath
in such original pleading, or in a sworn certification annexed thereto and
simultaneously filed therewith, to the truth of the following facts and undertakings:
(a) he has not theretofore commenced any other action or proceeding involving
the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or
agency; (b) to the best of his knowledge, no such action or proceeding is pending
in the Supreme Court, the Court of Appeals, or any other tribunal or agency; (c) if
there is any such action or proceeding which is either pending or may have been
terminated, he must state the status thereof; and (d) if he should thereafter learn
that a similar action or proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, or any other tribunal or agency, he undertakes to
report that fact within five (5) days therefrom to the court or agency wherein the
original pleading and sworn certification contemplated herein have been filed.
 "The complaint and other initiatory, pleadings referred to and subject of this
Circular are the original civil complaint, counterclaim, cross-claim, third (fourth,
etc.) — party complaint, or complaint-in- intervention, petition, or application
where- in a party asserts his claim for relief.

"(2) Any violation of this Circular shall be a cause for the dismissal of the complaint,
petition, application or other initiatory pleading, upon motion and after hearing.
However, any clearly wilful and deliberate forum shopping by any party and his
counsel through the filing of multiple complaints or other initiatory pleadings to
obtain favorable action shall be a ground for summary dismissal thereof and shall
constitute direct contempt of court. Furthermore, the submission of a false
certification or non-compliance with the undertakings therein, as provided in
Paragraph 1 hereof, shall constitute indirect contempt of court, without prejudice
to disciplinary proceedings against the counsel and the filing of a criminal action
against the guilty party." (Emphasis supplied)

7 Zaldivar vs. Gonzales, 166 SCRA 316.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 1056 March 13, 1907

AGUEDA BENEDICTO DE LA RAMA, appellee,

vs.
ESTEBAN DE LA RAMA, appellant.

Ledesma, Sumulong & Quintos for appellant.

Coudert Brothers, Aylett R. Cotton & Lionel D. Hargis for appellee.

WILLARD, J.:

On July 5, 1902, the Court of First Instance of the Province of Iloilo entered a final judgment in this case, decreeing a
divorce to the plaintiff on the ground of the husband's adultery, as well as the payment of 81,042.76 pesos due her as her
unpaid share of the property belonging to the conjugal partnership, as well as the sum of 3,200 pesos as an allowance
for their support since the date on which the action was instituted.

From the judgment the defendant appealed to this court, which, on December 8, 1903, reversed the decree of the
Court of First Instance, incorporated in its opinion certain findings of fact, and ordered judgment absolute that the
complaint be dismissed. (Benedicto vs. De la Rama, 3 Phil. Rep., 34.) Thereafter the plaintiff appealed to the Supreme
Court of the United States, which on April 2, 1906, reversed the judgment of this Court. (De la Rama, vs. De la Rama, 201,
U. S., 303.) The opinion of the supreme court of the United States concludes as follows:

We have reached the conclusion that there is no such preponderance of evidence in favor of the theory of
plaintiffs guilt as authorized the Supreme Court to set aside the conclusions of the court below upon the ground
that these findings were plainly and manifestly against the weight of the evidence. In this connection it is
proper to bear in mind that the trial judge had all these witnesses before him and doubtless formed his
conclusions largely from their appearance on the stand, their manner of giving testimony, and their apparent
credibility. Under the circumstances we think the Supreme Court should have affirmed rather than reversed the
action of the lower court.

While the right of the plaintiff to her proportion of the original property, to alimony pending suit, and to other
allowances claimed is the basis of our jurisdiction, the decree of the Supreme Court in dismissing plaintiff's
petition renders it unnecessary to review the action of the Court of First Instance in fixing the amount that it held
plaintiff was entitled to recover. We are, therefore, of the opinion that the decree of the Supreme Court
 dismissing the action must be reversed and the cause remanded to that court for further proceedings not
inconsistent with this opinion.

After the case had been remanded to this court, and on the 2d of November, 1906, the plaintiff made a motion that the
judgment of the Court of First Instance be affirmed an order was made for the submission of printed briefs upon certain
questions of adultery. This court sustained those assignments and said:

Our conclusion is that neither one of the parties is entitled to a divorce. The result makes in unnecessary to
consider that part of the judgment which relates to the settlement of the conjugal partnership.

The action of this court upon those four assignment of error relating to adultery was reversed by the Supreme Court of
the United States, and by the decision of that court there were definitely disposed of. The other assignment of error relate
to that part of the decision of the Court of First Instance with treats of the division of the conjugal property, the
allowance of alimony, and the order of the court below that the case be referred to the fiscal for criminal proceedings
against the defendant. As has been said, these assignments of error were not considered by this court in view of the
result which it reached upon the other assignments. Nor were they discussed by the Supreme Court of the United States.

The claim of the appellant now is, however, that the whole case was finally disposed of by the decision of the latter
court, and that the only thing remaining for this court as to do is to affirm the judgment of the Court of First Instance in its
entirely.

With this view we can not agree. The only thing considered by the Supreme Court of the United States was that part of
the decision of the Court of First Instance which related to the right of the plaintiff to a divorce. It did not pass upon the
division of the conjugal property. Its order was that the case be remanded to this court for further proceedings not
inconsistent with its opinion. If the contention of the plaintiff is true, it seems that the order of that court and affirming that
of the Court of First Instance. By remanding the case to this court for further proceedings not inconsistent with the opinion
of the Supreme Court, it seems to have been the intention of that court that this court should dispose of the assignments
of error not already of.

The fifth assignment of error is as follows:

Se ha infringido el articulo 1418 y otros del Codigo Civil al admitir el Juzgado, dentro del presente juicio, el
avaluo y division efectiva de los supuestos bienes gananciales.

It was claimed by this defendant, in his brief in his original appeal to this court in support of this assignment of error, that it
was not proper to settle the affairs of the conjugal partnership in divorce proceedings, and that no such settlement of a
conjugal partnership could ever be made until there had been a final judgment ordering the divorce, from which no
appeal had been taken, or as to which the time to appeal had expired, and in his argument in this court in the motion
presented on the 2ds of November, 1906, the repeats the same claim.

In our opinion, however, this assignment of error was disposed of by the decision of the Supreme Court of the United
States. As was said in that decision , the jurisdiction of that court depended entirely upon that part of the judgment of
the Court of First Instance which directed the payment of 81,000 pesos. If the Court of First Instance had no jurisdiction to
make any order for the payment of money in a divorce proceeding, that part of the judgment would have to be
eliminated. In taking jurisdiction of the case the Supreme Court of the United States necessarily held that a liquidation of
the affairs of the conjugal partnership could be had in a divorce proceeding. The fifth assignment of error, therefore, can
not be urged by the defendant.

The sixth assignment of error was as follows:

Ha incurrido en error en cuanto fija la cuantia de la mitad de dichos supuestos bienes gananciales en 81,042
pesos y 75 centimos, sin haber tenido a la vista los antecedentes y datos necesarios y sin haber tenido en
cuenta ademas las perdidas sufridas y las deudas contraidas por la razon social Hijos de I. de la Rama.

This assignment of error not having been considered either by the Supreme Court of the United States or by his court, be
sustained. The Civil Code states in detail the manner in which the affairs of a conjugal partnership shall be settled after
the same has been dissolved. Article 1418 provides, except in certain cases not here important, that an inventory shall at
once be made. We have held in the case of Alfonso vs. Natividad 1 (4 Off. Gaz., 461), that when the partnership is
dissolved by the death of the husband this inventory be made in the proceedings for the settlement of his estate. And in
the case of Prado vs. Lagera 2 (5 Off. Gaz., 146), that the inventory thus formed must include the bienes parafernales of
the wife. It is very evident from the provisions of the Civil Code that the inventory includes the capital of the husband, the
dowry of the wife, in the second place the bienes parafernales of the wife, in the third place the debts and obligations
of the conjugal partnership, and in the fourth place the capital of the husband. Articles 1424 and 1426 then provide as
follows:

ART. 1424. After the deductions from the inventoried estate specified in the three preceding articles have been
made, the remainder of the same estate shall constitute the assets of the conjugal partnership.

ART. 1426. The net remainder of the partnership property shall be divided, share and share alike, between the
husband and wife, or their respective heirs.

It is thus seen that the conjugal property which is to be divided when the partnership is dissolved, is determined not with
reference to the income or profits, which may have been received during the partnership by the spouses but rather by
the amount of the actual property possessed by them at such dissolution after making the deductions and payments
aforesaid. This is positively provided by article 1424.

An examination of the decision of the Court of First Instance shows that no attempt was made to comply with any of
these statutory provisions. No inventory of the partnership property existing at the time of the trial, at which the liquidation
was made, was ever formed. No provision was made for paying to the wife the sum of 2,000 pesos, which was either the
dowry or bienes parafernales of the wife. No provision was made for returning to the husband his capital in the
partnership, which amounted to at least one third of the assets of the firm of hijos de I. de la Rama, which assets,
according to the inventory made January 30, 1901, amounted to 1,130,568 pesos. The court below rejected entirely the
method prescribed and in fact liquidated it, as appears from the decision, upon an entirely different basis. He
determined in the first place the income which each person had received from his or her property, during the
partnership, finding that the wife during that time had received from her property 345 pesos as income and that the
husband had received 162,430.53 pesos. He then says:

The total value therefore of the conjugal partnership existing between the plaintiff and the defendant in the
present case amounts to 162,775,53 pesos. The words of the statute say that the same must be divided share
and share alike. The means that each should have 81,387.76 pesos. The wife already having in her possession
345 pesos of this sum, she is entitled to receive from the husband 81,042.76 pesos as being the sum necessary to
equalize the holdings of the property which, according to the statute, must be regarded as belonging to the
conjugal partnership.

It needs no argument to show that this manner of liquidating the affairs of the conjugal partnership is entirely
unwarranted by the law. The Theory of the Civil Code is that the conjugal property is the actual property which is left at
the dissolution of the partnership. It, can therefore, never be determined by adding up the profits, which had been
made each year during its existence, and then saying that the result is the conjugal property. The difference between
the two systems of liquidation is well illustrated in this case., The court below found that the profits of the partnership of
Hijos de I. de la Rama from the time of its organization up to June 30, 1901, amounted to 290,101,31 pesos. The evidence
in this case shows, however, that the capital with which the firm started was 1,058.192 pesos, and that on June 30, 1901,
the value of its entire property was 1,130,568 pesos, an increase of only 72,376 pesos. Taking the method adopted by the
court below, if the conjugal partnership had been dissolved on June 30, 1901, it would have had as an asset one fourth
of this sum of 290,101.31 pesos, but following the rule laid by the Civil Code it would have only had one fourth of 72,376
pesos, the difference between the value of the property of said firm when it was organized and its value of the 39th of
June, 1901.

The other assignments of error were not urged in the last brief presented by the appellant and in any event we do not
think they can be sustained.

The result is that part of the judgment of the Court of First Instance ordering the divorce, ordering the payment of 3,200
pesos, Mexican currency, by the defendant to the plaintiff, and the costs of the action, is affirmed. That part of it
ordering the payment by the defendant to the plaintiff of 81,042.76 pesos, Mexican currency, is set aside, and the case is
remanded to the court below for the purpose of liquidating in this action the affairs of the conjugal partnership
(considering the same to have been dissolved on the 5th of July, 1902) in accordance with the rules laid down in the
Civil Code, and a judgment will be entered in that court for the amount which appears from such liquidation to be due
from the defendant to the plaintiff. No costs will be allowed to either party in this court.

After the expiration of twenty days let judgment be entered in accordance herewith, and ten days thereafter the record
be remanded to the court from whence it came for execution. So ordered.
Arellano, C.J., Torres, Mapa and Tracey, JJ., concur.

Separate Opinions

JOHNSON, J., dissenting:

This cause was originally tried in the Court of First Instance of the Province of Iloilo. A judgment was there rendered in
favor of the plaintiff and against the defendant. The defendant appealed to this court and the judgment was reversed.
The plaintiff appealed to the Supreme Court of the United States, were the judgment of this court was reversed, and the
cause was remanded for further proceedings not inconsistent with the opinion of the Supreme Court of the United
States.

On the 9th day of November, 1906, the plaintiff presented a motion in this court asking that the original judgment of the
Court of First Instance be affirmed. The attorney for the defendant opposed this motion, and this court ordered that the
respective parties submit briefs. These briefs were duly submitted and on the 23d day of January 1907, a majority of this
court, after an examination of the evidence adduced during the trial of said cause in the Court of First Instance of the
Province of Iloilo, decided that the inventory, made by the Court of First Instance, had not been made in accordance
with the provisions of the Civil Code. We are of the opinion that this court has no right or authority to examine the
evidence adduced during the trial of said cause in the court below for the reason that the defendant and appellant did
not there make a property motion for a new trial, justifying this court in examining the evidence. We are of the opinion
that this court have no authority to examine the evidence adduced during the trial in the Court of First Instance unless
the appellant has made a motion for a new trial in that court "upon the ground that the findings of fact are plainly and
manifestly against the weight of the evidence" (paragraph 3, section 497 of the Coddfe of Procedure in Civil Actions),
and the judge of the said lower court has overruled said motion, and the defendant has duly excepted to such ruling.

By reference to the motion for a new trial presented in this cause in the court below, it will be seen that the same was not
based upon these grounds. We are of the opinion that the motion presented for a new trial comes under the provisions
of sections 145 and 146 of said code, and the overruling of the same does not constitute a ground of exception upon
which an appeal can be based for the purpose of securing a reexamination of the evidence in this court.

Admitting, however, that said motion was sufficient to justify this court in examining the evidence, we are of the opinion
that even then the evidence adduced during the trial upon the question of the conjugal property is sufficient to justify
the conclusions of the said Court of First Instance and that the judgment of the lower court should be affirmed in this
particular. And, moreover, in view of the fact that the defendant made no appearance in the Supreme Court of the
United States when the case was pending there, and made no defense when the very question was being considered
by that court which is presented to this court now, we are of the opinion that a new trial should not be granted, and that
the plaintiff, who is clearly entitled to the relief granted by the lower court, at the close of the trial should not be further
annoyed or kept out of that portion of the conjugal property to which she is clearly entitled.

Torres, Mapa and Tracey, JJ., concurs.

Footnotes

1 6 Phil. Rep., 240.

2 Page 395, supra.

 SECOND DIVISION

A.M. No. 1022-MJ May 7, 1976

REDENTOR ALBANO, Complainant, vs. MUNICIPAL JUDGE PATROCINIO C. GAPUSAN of Dumalneg, Ilocos
Norte, Respondent.

RESOLUTION

AQUINO, J.:

Redentor Albano in a verified complaint dated August 18, 1975 charged Municipal Judge Patrocinio C. Gapusan of
Dumalneg and Adams, Ilocos Norte (1) with incompetence and Ignorance of the law for having prepared and
notarized a document providing for tile personal separation of husband and wife and the extrajudicial liquidation of their
conjugal partnership and (2) with having allegedly influenced Judge Zacarias A. Crispin of the Court of First Instance of
Ilocos Norte in deciding two criminal cases.

Malpractice as a notary. - In 1941 or five years before his appointment to the bench, respondent Gapusan notarized a
document for the personal separation of the spouses Valentina Andres and Guillermo Maligta of Barrio 6, Vintar, Ilocos
Norte and for the extrajudicial liquidation of their conjugal partnership.chanroblesvirtualawlibrarychanrobles virtual law
library

It was stipulated in that document that if either spouse should commit adultery or concubinage, as the case may be,
then the other should refrain from filing an action against the other.chanroblesvirtualawlibrarychanrobles virtual law
library

Judge Gapusan denied that he drafted the agreement. He explained that the spouses had been separated for a long
time when they signed the separation agreement and that the wife had begotten children with her paramour. He said
that there was a stipulation in the agreement that the spouses would live together in case of reconciliation. His belief was
that the separation agreement forestalled the occurrence of violent incidents between the
spouses.chanroblesvirtualawlibrarychanrobles virtual law library

Albano in filing the malpractice charge is in effect asking this Court to take belated disciplinary action against Judge
Gapusan as a member of the bar or as a notary. (He was admitted to the bar in
1937).chanroblesvirtualawlibrarychanrobles virtual law library

There is no question that the covenents contained in the said separation agreement are contrary to law, morals and
good customs (Biton vs. Momongan, 62 Phil. 7). Those stipulations undermine the institutions of marriage and the family,
"Marriage is not a mere contract but an inviolable social institution". "The family is a basic social institution which public
policy cherishes and protects." (Arts. 52 and 216, Civil Code). Marriage and the family are the bases of human society
throughout the civilized world (Adong vs. Cheong Seng Gee, 43 Phil. 43; Ramirez vs. Gmur, 42 Phil. 855, 864; Goitia vs.
Campos Rueda, 35 Phil. 252, 254; Brown vs. Yambao, 102 Phil. 168).chanroblesvirtualawlibrarychanrobles virtual law
library

To preserve the institutions of marriage and the family, the law considers as void "any contract for personal separation
between husband and wife" and "every extrajudicial agreement, during the marriage, for the dissolution of the conjugal
partnership" (Art. 221, Civil Code). Before the new Civil Code, it was held that the extrajudicial dissolution of the conjugal
partnership without judicial sanction was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil.
15).chanroblesvirtualawlibrarychanrobles virtual law library
A notary should not facilitate the disintegration of a marriage and the family by encouraging the separation of the
spouses and extrajudically dissolving the conjugal partnership. Notaries were severely censured by this Court for
notarizing documents which subvert the institutions of marriage and the family (Selanova vs. Mendoza, Adm. Matter No.
804-CJ, May 19, 1975, 64 SCRA 69; Miranda vs. Fuentes, Adm. Case No. 241, April 30, 1966, 16 SCRA 802; Biton vs.
Momongan, supra,, Panganiban vs. Borromeo, 58 Phil. 367; In re Santiago, 70 Phil. 66; Balinon vs. De Leon, 94 Phil.
277).chanroblesvirtualawlibrarychanrobles virtual law library

Respondent Gapusan as a member of the bar should be censured for having notarized the void separation agreement
already mentioned.chanroblesvirtualawlibrarychanrobles virtual law library

However, his notarization of that document does not warrant any disciplinary action against him as a municipal judge
(he was appointed in 1946 as justice of the peace) especially considering that his appointment to the judiciary was
screened by the Commission on Appointments (See Ty vs. San Diego, Adm. Matter No. 169-J, June 29, 1972).

Alleged misconduct in influencing CFI Judge. - Albano complains that Judge Gapusan took advantage of his intimacy
with Judge Crispin. He implies that by reason of that intimacy Judge Crispin acquitted of frustrated murder the
defendants in Criminal Case No. 102-III, People vs. Freddie Gapusan Gamboa, et al. and convicted Albano
(complainant herein) of double frustrated murder with triple attempted murder in Criminal Case No. 70-
III.chanroblesvirtualawlibrarychanrobles virtual law library

Albano said that Freddie Gapusan, an accused in the first criminal case above-mentioned and a complaining witness in
the other case against Albano, is a relative of Judge Gapusan. He revealed that after the acquittal decision was
rendered by Judge Crispin in Criminal Case No. 102 III, the relatives of the accused in that case were saying that their
relationship to Judge Gapusan, a friend of Judge Crispin, proved to be "worthwhile and
useful".chanroblesvirtualawlibrarychanrobles virtual law library

Judge Gapusan admitted in his answer that he is close to Judge Crispin because they used to be members of the
Municipal Judges League (when it was headed by Judge Crispin) and because the latter used to be an Executive
Judge (with supervision over municipal judges). Respondent said that his association with Judge Crispin "was purely
official".chanroblesvirtualawlibrarychanrobles virtual law library

Judge Gapusan also admitted that Freddie Gapusan is his distant relative. He denied that he influenced Judge Crispin in
rendering his decisions in the two criminal cases.chanroblesvirtualawlibrarychanrobles virtual law library

It is manifest that Alliano's imputation that Judge Gapusan influenced Judge Crispin is anchored on mere suspicion. If he
has any evidence that Judge Crispin committed any irregularity due to the alleged influence exerted by Judge
Gapusan, then Albano should have complained against Judge Crispin's actuations. He should riot vent his ire on Judge
Gapusan alone.chanroblesvirtualawlibrarychanrobles virtual law library

When an officer or court allows itself to enter upon the sea of suspicion, it permits itself to enter upon a sea which has no
shore, and the embarkation is without a rudder or compass to control the direction or to ascertain its bearing." (Dy Keng
vs. Collector of Customs, 40 Phil, 118, 123).chanroblesvirtualawlibrarychanrobles virtual law library

A person has freedom to choose his friends and to hobnob with them. It is not a crime nor unethical per se for a
municipal judge to fraternize with a Judge of the Court of First Instance. Whether the fraternization resulted in an unjust
verdict rendered by the Judge of the Court of First Instance due to the sinister or corruptive influence of the municipal
judge cannot be shown by mere inference, or conjecture. It should be Substantiated by solid evidence. The unjustness of
the decision should be indubitably established.chanroblesvirtualawlibrarychanrobles virtual law library

The second charge should be dismissed for being speculative and unfair to Judge Crispin. (He retired in September,
1975).chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the respondent, as a member of the bar, is for having notarized the above-mentioned void agreement. The
second charge is dismissed.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Fernando, Actg. C.J., Antonio and Martin, JJ, concur.chanroblesvirtualawlibrarychanrobles virtual law library

Concepcion, Jr., J., is on leave.

chanrobles virtual law library

chanrobles virtual law library

Separate Opinions

BARREDO, J., concurring:chanrobles virtual law library

Because offense was committed thirty-five years ago, otherwise, there would have been a heavier
sanction.chanroblesvirtualawlibrarychanrobles virtual law library

Separate Opinions

BARREDO, J., concurring:

Because offense was committed thirty-five years ago, otherwise, there would have been a heavier sanction.

[G.R. No. 138322. October 2, 2001]

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondent.

DECISION

PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid
according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien
spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments;
hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven
according to our law on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999
Decision[1] and the March 24, 1999 Order[2] of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No.
3026AF. The assailed Decision disposed as follows:

WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January
12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any
and/or both parties.[3]

The assailed Order denied reconsideration of the above-quoted Decision.

The Facts
 Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1,
1987.[4] They lived together as husband and wife in Australia. On May 18, 1989, [5] a decree of divorce, purportedly
dissolving the marriage, was issued by an Australian family court.

On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of Australian Citizenship issued
by the Australian government.[6] Petitioner -- a Filipina -- and respondent were married on January 12, 1994 in Our Lady of
Perpetual Help Church in Cabanatuan City.[7] In their application for a marriage license, respondent was declared as
single and Filipino.[8]

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their
Statutory Declarations secured in Australia.[9]

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage[10] in the court a quo, on the
ground of bigamy -- respondent allegedly had a prior subsisting marriage at the time he married her on January 12,
1994. She claimed that she learned of respondents marriage to Editha Samson only in November, 1997.

In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its
subsequent dissolution.[11] He contended that his first marriage to an Australian citizen had been validly dissolved by a
divorce decree obtained in Australia in 1989;[12] thus, he was legally capacitated to marry petitioner in 1994.

On July 7, 1998 -- or about five years after the couples wedding and while the suit for the declaration of nullity was
pending -- respondent was able to secure a divorce decree from a family court in Sydney, Australia because the marriage
ha[d] irretrievably broken down.[13]

Respondent prayed in his Answer that the Complaint be dismissed on the ground that it stated no cause of
action.[14] The Office of the Solicitor General agreed with respondent.[15] The court marked and admitted the documentary
evidence of both parties.[16] After they submitted their respective memoranda, the case was submitted for resolution.[17]

Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and
recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element
of the marriage; that is, respondents alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce
decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more marital union
to nullify or annul.

Hence, this Petition.[18]

Issues

Petitioner submits the following issues for our consideration:

The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso
facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the
petitioner.

The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry
constitutes absence of a substantial requisite voiding the petitioners marriage to the respondent

The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
 4

The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the
applicable provisions in this case.

The trial court gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso
facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce
decree before our courts.[19]

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether
the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally
capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest.

The Courts Ruling

The Petition is partly meritorious.

First Issue:
Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial courts recognition of the divorce between respondent and Editha Samson. Citing Adong v.
Cheong Seng Gee,[20] petitioner argues that the divorce decree, like any other foreign judgment, may be given
recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the
alleged divorce decree itself.She adds that respondent miserably failed to establish these elements.

Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are
governed by the law of the place where they were celebrated (the lex loci celebrationis). In effect, the Code requires the
presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of the place
where the marriage was performed.

At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does
not provide for absolute divorce; hence, our courts cannot grant it.[21] A marriage between two Filipinos cannot be
dissolved even by a divorce obtained abroad, because of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages
involving a Filipino and a foreigner, Article 26[25] of the Family Code allows the former to contract a subsequent marriage
in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.[26] A divorce
obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with
their respective national laws.[27]

A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van
Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided
they are valid according to their national law.[28] Therefore, before a foreign divorce decree can be recognized by our
courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing
it.[29] Presentation solely of the divorce decree is insufficient.

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration
requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows:

ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for
such license with the proper local civil registrar which shall specify the following:

xxxxxxxxx

(5) If previously married, how, when and where the previous marriage was dissolved or annulled;
 xxxxxxxxx

ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to

ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish,
instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased
spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his
or her previous marriage. x x x.

ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties
of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded in the appropriate civil registry
and registries of property; otherwise, the same shall not affect their persons.

Respondent, on the other hand, argues that the Australian divorce decree is a public document -- a written official
act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution.

Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the
document must first be presented and admitted in evidence.[30] A divorce obtained abroad is proven by the divorce
decree itself. Indeed the best evidence of a judgment is the judgment itself.[31] The decree purports to be a written act or
record of an act of an official body or tribunal of a foreign country.[32]

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official
record of a foreign country by either (1) an official publication or (2) a copy thereof attested[33] by the officer having legal
custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate
issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which
the record is kept and (b) authenticated by the seal of his office. [34]

The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian
family court.[35] However, appearance is not sufficient; compliance with the aforementioned rules on evidence must be
demonstrated.

Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel
for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry
of Cabanatuan City.[36] The trial court ruled that it was admissible, subject to petitioners qualification.[37] Hence, it was
admitted in evidence and accorded weight by the judge. Indeed, petitioners failure to object properly rendered the
divorce decree admissible as a written act of the Family Court of Sydney, Australia.[38]

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer
bound by Philippine personal laws after he acquired Australian citizenship in 1992.[39] Naturalization is the legal act of
adopting an alien and clothing him with the political and civil rights belonging to a citizen.[40] Naturalized citizens, freed
from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian,
respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party
challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce
decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a
long time. Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges may take judicial notice
of foreign laws in the exercise of sound discretion.

We are not persuaded. The burden of proof lies with the party who alleges the existence of a fact or thing necessary
in the prosecution or defense of an action.[41] In civil cases, plaintiffs have the burden of proving the material allegations
of the complaint when those are denied by the answer; and defendants have the burden of proving the material
allegations in their answer when they introduce new matters.[42] Since the divorce was a defense raised by respondent,
the burden of proving the pertinent Australian law validating it falls squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.[43] Like any other facts,
they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know
by reason of their judicial function.[44] The power of judicial notice must be exercised with caution, and every reasonable
doubt upon the subject should be resolved in the negative.

Second Issue: Respondents Legal Capacity to Remarry

 Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to
marry her in 1994. Hence, she concludes that their marriage was void ab initio.

Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately
established his legal capacity to marry under Australian law.

Respondents contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for
a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends
it and leaves the bond in full force.[45] There is no showing in the case at bar which type of divorce was procured by
respondent.

Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional judgment of divorce. It
is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the
prescribed period during which no reconciliation is effected.[46]

Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict
remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which
was granted on the ground of adultery may be prohibited from marrying again. The court may allow a remarriage only
after proof of good behavior.[47]

On its face, the herein Australian divorce decree contains a restriction that reads:

1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has
died) commits the offence of bigamy.[48]

This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not
absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of
the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondents capacity to remarry
despite the paucity of evidence on this matter.

We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive
evidence as to his civil status based on Section 48, Rule 39[49] of the Rules of Court, for the simple reason that no proof has
been presented on the legal effects of the divorce decree obtained under Australian laws.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted
together with the application for a marriage license. According to her, its absence is proof that respondent did not have
legal capacity to remarry.

We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party
concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal
capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien applicant for a marriage license.[50]

As it is, however, there is absolutely no evidence that proves respondents legal capacity to marry petitioner. A review
of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for
petitioner: (a) Exhibit A Complaint;[51] (b) Exhibit B Certificate of Marriage Between Rederick A. Recio (Filipino-Australian)
and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C Certificate of Marriage
Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;[53] (d)
Exhibit D Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick
A. Recio and Editha D. Samson was in its records;[54] and (e) Exhibit E Certificate of Australian Citizenship of Rederick A.
Recio;[55] (2) for respondent: (a) Exhibit 1 -- Amended Answer;[56] (b) Exhibit 2 Family Law Act 1975 Decree Nisi of Dissolution
of Marriage in the Family Court of Australia;[57] (c) Exhibit 3 Certificate of Australian Citizenship of Rederick A. Recio;[58] (d)
Exhibit 4 Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory
Declaration of the Legal Separation Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.[60]

Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen,
was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioners contention that the court a
quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least,
to prove his legal capacity to contract the second marriage.

Neither can we grant petitioners prayer to declare her marriage to respondent null and void on the ground of
bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result
of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive
evidence, if any, which show petitioners legal capacity to marry petitioner. Failing in that, then the court a quo may
declare a nullity of the parties marriage on the ground of bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the
other, in Cabanatuan City dated January 12, 1994.

WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for
the purpose of receiving evidence which conclusively show respondents legal capacity to marry petitioner; and failing in
that, of declaring the parties marriage void on the ground of bigamy, as above discussed. No costs.

SO ORDERED.

Melo, (Chairman), Vitug, and Sandoval-Gutierrez, 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 Muñoz 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, Muñoz 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, Muñoz, Nueva Ecija, of about 1,500 square meters and covered by Tax Declaration
No. 5476;

(8) Riceland in Barrio San Andres, Muñoz of about 5,083 square meters and covered by Tax Declaration No. 7083;

(9) Riceland in Barrio Rangayan, Muñoz, 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, Muñoz, 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. 1056-58 (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 (½) 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 (¼) pro indiviso to the surviving spouse, Dorotea de Ocampo; and (c) one-fourth (¼) 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; Muñoz & 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, Muñoz 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, Muñoz, Nueva Ecija, of about 1,500
square me ' quarters under Tax Declaration No. 5476; a riceland in barrio San Andres, Muñoz Nueva
Ecija, of about 5,083 square meters under Tax Dec. 7083; another riceland in Rangayan, Muñoz, 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 Muñoz 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 Muñoz 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 Muñoz 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 Muñoz 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 Muñoz 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 Muñoz 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 16-hectare 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 five-year
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, Muñoz 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, Muñoz, Nueva Ecija, of about 1,500 square
meters under Tax Declaration No. 5476; a riceland in Rangayan, Muñoz 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 after-acquired 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 respondents-appellees 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 (½) 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 Muñoz 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

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-55322 February 16, 1989

MOISES JOCSON, petitioner,

vs.
HON. COURT OF APPEALS, AGUSTINA JOCSON-VASQUEZ, ERNESTO VASQUEZ, respondents.

Dolorfino and Dominguez Law Officers for petitioner.

Gabriel G. Mascardo for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court of the decision of the Court of Appeals in CA-
G.R. No. 63474, promulgated on April 30, 1980, entitled "MOISES JOCSON, plaintiff-appellee, versus AGUSTINA JOCSON-
VASQUEZ and ERNESTO VASQUEZ, defendant-appellants," upholding the validity of three (3) documents questioned by
Moises Jocson, in total reversal of the decision of the then Court of First Instance of Cavite, Branch I, which declared
them as null and void; and of its resolution, dated September 30, 1980, denying therein appellee's motion for
reconsideration.
Petitioner Moises Jocson and respondent Agustina Jocson-Vasquez are the only surviving offsprings of the spouses Emilio
Jocson and Alejandra Poblete, while respondent Ernesto Vasquez is the husband of Agustina. Alejandra Poblete
predeceased her husband without her intestate estate being settled. Subsequently, Emilio Jocson also died intestate on
April 1, 1972.

As adverted to above, the present controversy concerns the validity of three (3) documents executed by Emilio Jocson
during his lifetime. These documents purportedly conveyed, by sale, to Agustina Jocson-Vasquez what apparently
covers almost all of his properties, including his one-third (1/3) share in the estate of his wife. Petitioner Moises Jocson
assails these documents and prays that they be declared null and void and the properties subject matter therein be
partitioned between him and Agustina as the only heirs of their deceased parents.

The documents, which were presented as evidence not by Moises Jocson, as the party assailing its validity, but rather by
herein respondents, are the following:

1) "Kasulatan ng Bilihan ng Lupa," marked as Exhibit 3 (pp. 12-13, Records) for the defendant in the
court a quo, dated July 27, 1968. By this document Emilio Jocson sold to Agustina Jocson-Vasquez six
(6) parcels of land, all located at Naic, Cavite, for the sum of ten thousand P10,000.00 pesos. On the
same document Emilio Jocson acknowledged receipt of the purchase price, thus:

Na ngayon, alang-alang sa halagang SAMPUNG LIBONG PISO (P10,000) salaping Pilipino na aking
tinanggap ng buong kasiyahan loob at ang pagkakatanggap ay aking hayagang inaamin sa
pamamagitan ng kasulatang ito, sa aking anak na si Agustina Jocson, na may sapat na gulang,
mamamayang Pilipino, asawa ni Ernesto Vasquez, at naninirahan sa Poblacion, Naic, Cavite, ay
aking ipinagbile ng lubusan at kagyat at walang ano mang pasubali ang nabanggit na anim na
pirasong lupa na nasa unang dahon ng dokumentong ito, sa nabanggit na Agustina Jocson, at sa
kaniyang tagapagmana o makakahalili at gayon din nais kong banggitin na kahit na may
kamurahan ang ginawa kong pagbibile ay dahilan sa ang nakabile ay aking anak na sa akin at
mapaglingkod, madamayin at ma-alalahanin, na tulad din ng isa ko pang anak na lalaki. Ang
kuartang tinanggap ko na P10,000.00, ay gagamitin ko sa aking katandaan at mga huling araw at sa
aking mga ibang mahahalagang pangangailangan. [Emphasis supplied]

Na nais ko ring banggitin na ang ginawa kong ito ay hindi labag sa ano mang batas o kautusan,
sapagkat ang aking pinagbile ay akin at nasa aking pangalan. Ang mga lupang nasa pangalan ng
aking nasirang asawa ay hindi ko ginagalaw ni pinakikialaman at iyon ay dapat na hatiin ng dalawa
kong anak alinsunod sa umiiral na batas (p. 13, Records.)

2) "Kasulatan ng Ganap na Bilihan,"dated July 27,1968, marked as Exhibit 4 (p. 14, Records). On the
face of this document, Emilio Jocson purportedly sold to Agustina Jocson-Vasquez, for the sum of FIVE
THOUSAND (P5,000.00) PESOS, two rice mills and a camarin (camalig) located at Naic, Cavite. As in
the first document, Moises Jocson acknowledged receipt of the purchase price:

'Na alang-alang sa halagang LIMANG LIBONG PISO (P5,000.00) salaping Pilipino na aking tinanggap
ng buong kasiyahan loob sa aking anak na Agustina Jocson .... Na ang halagang ibinayad sa akin ay
may kamurahan ng kaunti ngunit dahil sa malaking pagtingin ko sa kaniya ... kaya at pinagbile ko sa
kaniya ang mga nabanggit na pagaari kahit na hindi malaking halaga ... (p. 14, Records).

3) Lastly, the "Deed of Extrajudicial Partition and Adjudication with Sale, "dated March 9, 1969, marked
as Exhibit 2 (p. 10-11, Records), whereby Emilio Jocson and Agustina Jocson-Vasquez, without the
participation and intervention of Moises Jocson, extrajudicially partitioned the unsettled estate of
Alejandra Poblete, dividing the same into three parts, one-third (1/3) each for the heirs of Alejandra
Poblete, namely: Emilio Jocson, Agustina Jocson-Vasquez and Moises Jocson. By the same instrument,
Emilio sold his one- third (1/3) share to Agustin for the sum of EIGHT THOUSAND (P8,000.00) PESOS. As in
the preceding documents, Emilio Jocson acknowledged receipt of the purchase price:

Now for and in consideration of the sum of only eight thousand (P8,000.00) pesos, which I, the herein
Emilio Jocson had received from my daughter Agustina Jocson, do hereby sell, cede, convey and
transfer, unto the said Agustina Jocson, her heirs and assigns, administrators and successors in interests,
in the nature of absolute and irrevocable sale, all my rights, interest, shares and participation, which is
equivalent to one third (1/3) share in the properties herein mentioned and described the one third
being adjudicated unto Agustina Jocson and the other third (1/3) portion being the share of Moises
Jocson. (p. 11, Records).
These documents were executed before a notary public. Exhibits 3 and 4 were registered with the Office of the Register
of Deeds of Cavite on July 29, 1968 and the transfer certificates of title covering the properties therein in the name of
Emilio Jocson, married to Alejandra Poblete," were cancelled and new certificates of title were issued in the name of
Agustina Jocson-Vasquez. Exhibit 2 was not registered with the Office of the Register of Deeds.

Herein petitioner filed his original complaint (Record on Appeal, p. 27, Rollo) on June 20,1973 with the then Court of First
Instance of Naic, Cavite (docketed as Civil Case No. TM- 531), and which was twice amended. In his Second Amended
Complaint (pp. 47-58, Record on Appeal), herein petitioner assailed the above documents, as aforementioned, for
being null and void.

It is necessary to partly quote the allegation of petitioner in his complaint for the reason that the nature of his causes of
action is at issue, thus:

8. [With regard the first document, that] the defendants, through fraud, deceit, undue pressure and
influence and other illegal machinations, were able to induce, led, and procured their father ... to sign
[the] contract of sale ..., for the simulated price of P10,000.00, which is a consideration that is shocking
to the conscience of ordinary man and despite the fact that said defendants have no work or
livelihood of their own ...; that the sale is null and void, also, because it is fictitious, simulated and
fabricated contract x x x (pp. 52-53, Record on Appeal). [Emphasis supplied]

xxx xxx xxx

12. [With regards the second and third document, that they] are null and void because the consent
of the father, Emilio Jocson, was obtained with fraud, deceit, undue pressure, misrepresentation and
unlawful machinations and trickeries committed by the defendant on him; and that the said contracts
are simulated, fabricated and fictitious, having been made deliberately to exclude the plaintiff from
participating and with the dishonest and selfish motive on the part of the defendants to defraud him
of his legitimate share on said properties [subject matter thereof]; and that without any other business
or employment or any other source of income, defendants who were just employed in the
management and administration of the business of their parents, would not have the sufficient and
ample means to purchase the said properties except by getting the earnings of the business or by
simulated consideration ... (pp. 54-55, Record on Appeal). [Emphasis supplied]

Petitioner explained that there could be no real sale between a father and daughter who are living under the same
roof, especially so when the father has no need of money as the properties supposedly sold were all income-producing.
Further, petitioner claimed that the properties mentioned in Exhibits 3 and 4 are the unliquidated conjugal properties of
Emilio Jocson and Alejandra Poblete which the former, therefore, cannot validly sell (pp. 53, 57, Record on Appeal). As
far as Exhibit 2 is concerned, petitioner questions not the extrajudicial partition but only the sale by his father to Agustina
of the former's 1/3 share (p. 13, Rollo).

The trial court sustained the foregoing contentions of petitioner (pp. 59-81, Record on Appeal). It declared that the
considerations mentioned in the documents were merely simulated and fictitious because: 1) there was no showing that
Agustina Jocson-Vasquez paid for the properties; 2) the prices were grossly inadequate which is tantamount to lack of
consideration at all; and 3) the improbability of the sale between Emilio Jocson and Agustina Jocson-Vasquez, taking
into consideration the circumstances obtaining between the parties; and that the real intention of the parties were
donations designed to exclude Moises Jocson from participating in the estate of his parents. It further declared the
properties mentioned in Exhibits 3 and 4 as conjugal properties of Emilio Jocson and Alejandra Poblete, because they
were registered in the name of "Emilio Jocson, married to Alejandra Poblete" and ordered that the properties subject
matter of all the documents be registered in the name of herein petitioners and private respondents.

On appeal, the Court of Appeals in CA-G.R. No. 63474-R rendered a decision (pp. 29-42, Rollo) and reversed that of the
trial court's and ruled that:

1. That insofar as Exhibits 3 and 4 are concerned the appellee's complaint for annulment, which is
indisputably based on fraud, and undue influence, is now barred by prescription, pursuant to the
settled rule that an action for annulment of a contract based on fraud must be filed within four (4)
years, from the discovery of the fraud, ... which in legal contemplation is deemed to be the date of
the registration of said document with the Register of Deeds ... and the records admittedly show that
both Exhibits 3 and 4, were all registered on July 29, 1968, while on the other hand, the appellee's
complaint was filed on June 20, 1973, clearly beyond the aforesaid four-year prescriptive period
provided by law;
 2. That the aforesaid contracts, Exhibits 2, 3, and 4, are decisively not simulated or fictitious contracts,
since Emilio Jocson actually and really intended them to be effective and binding against him, as to
divest him of the full dominion and ownership over the properties subject of said assailed contracts, as
in fact all his titles over the same were all cancelled and new ones issued to appellant Agustina
Jocson-Vasquez ...;

3. That in regard to Exhibit 2, the same is valid and subsisting, and the partition with sale therein made
by and between Emilio Jocson and Agustina Jocson-Vasquez, affecting the 2/3 portion of the subject
properties described therein have all been made in accordance with Article 996 of the New Civil
Code on intestate succession, and the appellee's (herein petitioner) remaining 1/3 has not been
prejudiced (pp. 41-42, Rollo).

In this petition for review, Moises Jocson raised the following assignments of errors:

1. HAS THE RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT THE SUIT FOR THE
ANNULMENT OF CONTRACTS FILED BY PETITIONERS WITH THE TRIAL COURT IS "BASED ON FRAUD" AND
NOT ON ITS INEXISTENCE AND NULLITY BECAUSE OF IT'S BEING SIMULATED OR FICTITIOUS OR WHOSE
CAUSE IS CONTRARY TO LAW, MORALS AND GOOD CUSTOMS?

II. HAS THE RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT THE COMPLAINT FILED BY
PETITIONER IN THE TRIAL COURT IS BARRED BY PRESCRIPTION?

III. HAS THE RESPONDENT COURT OF APPEALS ERRED IN NOT DECLARING AS INEXISTENT AND NULL AND
VOID THE CONTRACTS IN QUESTION AND IN REVERSING THE DECLARING DECISION OF THE TRIAL
COURT? (p. 2, Rollo)

I.

The first and second assignments of errors are related and shall be jointly discussed.

According to the Court of Appeals, herein petitioner's causes of action were based on fraud. Under Article 1330 of the
Civil Code, a contract tainted by vitiated consent, as when consent was obtained through fraud, is voidable; and the
action for annulment must be brought within four years from the time of the discovery of the fraud (Article 1391, par. 4,
Civil Code), otherwise the contract may no longer be contested. Under present jurisprudence, discovery of fraud is
deemed to have taken place at the time the convenant was registered with the Register of Deeds (Gerona vs. De
Guzman, No. L-19060, May 29,1964, 11 SCRA 153). Since Exhibits 3 and 4 were registered on July 29, 1968 but Moises
Jocson filed his complaint only on June 20, 1973, the Court of Appeals ruled that insofar as these documents were
concerned, petitioner's "annulment suit" had prescribed.

If fraud were the only ground relied upon by Moises Jocson in assailing the questioned documents, We would have
sustained the above pronouncement. But it is not so. As pointed out by petitioner, he further assailed the deeds of
conveyance on the ground that they were without consideration since the amounts appearing thereon as paid were in
fact merely simulated.

According to Article 1352 of the Civil Code, contracts without cause produce no effect whatsoever. A contract of sale
with a simulated price is void (Article 1471; also Article 1409 [3]]), and an action for the declaration of its nullity does not
prescribe (Article 1410, Civil Code; See also, Castillo v. Galvan, No. L-27841, October 20, l978, 85 SCRA 526). Moises
Jocsons saction, therefore, being for the judicial declaration of nullity of Exhibits 3 and 4 on the ground of simulated
price, is imprescriptible.

II.

For petitioner, however, the above discussion may be purely academic. The burden of proof in showing that contracts
lack consideration rests on he who alleged it. The degree of proof becomes more stringent where the documents
themselves show that the vendor acknowledged receipt of the price, and more so where the documents were
notarized, as in the case at bar. Upon consideration of the records of this case, We are of the opinion that petitioner has
not sufficiently proven that the questioned documents are without consideration.

Firstly, Moises Jocson's claim that Agustina Jocson-Vasquez had no other source of income other than what she derives
from helping in the management of the family business (ricefields and ricemills), and which was insufficient to pay for the
purchase price, was contradicted by his own witness, Isaac Bagnas, who testified that Agustina and her husband were
engaged in the buy and sell of palay and rice (p. 10, t.s.n., January 14, 1975). Amazingly, petitioner himself and his wife
testified that they did not know whether or not Agustina was involved in some other business (p. 40, t.s.n., July 30, 1974; p.
36, t.s.n., May 24, 1974).

On the other hand, Agustina testified that she was engaged in the business of buying and selling palay and rice even
before her marriage to Ernesto Vasquez sometime in 1948 and continued doing so thereafter (p. 4, t.s.n., March 15,
1976). Considering the foregoing and the presumption that a contract is with a consideration (Article 1354, Civil Code), it
is clear that petitioner miserably failed to prove his allegation.

Secondly, neither may the contract be declared void because of alleged inadequacy of price. To begin with, there was
no showing that the prices were grossly inadequate. In fact, the total purchase price paid by Agustina Jocson-Vasquez is
above the total assessed value of the properties alleged by petitioner. In his Second Amended Complaint, petitioner
alleged that the total assessed value of the properties mentioned in Exhibit 3 was P8,920; Exhibit 4, P3,500; and Exhibit 2, P
24,840, while the purchase price paid was P10,000, P5,000, and P8,000, respectively, the latter for the 1/3 share of Emilio
Jocson from the paraphernal properties of his wife, Alejandra Poblete. And any difference between the market value
and the purchase price, which as admitted by Emilio Jocson was only slight, may not be so shocking considering that
the sales were effected by a father to her daughter in which case filial love must be taken into consideration (Alsua-Betts
vs. Court of Appeals, No. L-46430-31, April 30, 1979, 92 SCRA 332).

Further, gross inadequacy of price alone does not affect a contract of sale, except that it may indicate a defect in the
consent, or that the parties really intended a donation or some other act or contract (Article 1470, Civil Code) and there
is nothing in the records at all to indicate any defect in Emilio Jocson's consent.

Thirdly, any discussion as to the improbability of a sale between a father and his daughter is purely speculative which has
no relevance to a contract where all the essential requisites of consent, object and cause are clearly present.

There is another ground relied upon by petitioner in assailing Exhibits 3 and 4, that the properties subject matter therein
are conjugal properties of Emilio Jocson and Alejandra Poblete. It is the position of petitioner that since the properties
sold to Agustina Jocson-Vasquez under Exhibit 3 were registered in the name of "Emilio Jocson, married to Alejandra
Poblete," the certificates of title he presented as evidence (Exhibits "E', to "J', pp. 4-9, Records) were enough proof to
show that the properties covered therein were acquired during the marriage of their parents, and, therefore, under
Article 160 of the Civil Code, presumed to be conjugal properties.

Article 160 of the Civil Code provides that:

All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved
that it pertains exclusively to the husband or to the wife.

In Cobb-Perez vs. Hon. Gregorio Lantin, No. L-22320, May 22, 1968, 23 SCRA 637, 644, We held that:

Anent their claim that the shares in question are conjugal assets, the spouses Perez adduced not a
modicum of evidence, although they repeatedly invoked article 160 of the New Civil Code which
provides that ... . As interpreted by this Court, the party who invokes this presumption must first prove
that the property in controversy was acquired during the marriage. In other words, proof of acquisition
during the coverture is a condition sine qua non for the operation of the presumption in favor of
conjugal ownership. Thus in Camia de Reyes vs. Reyes de Ilano [62 Phil. 629, 639], it was held that
"according to law and jurisprudence, it is sufficient to prove that the Property was acquired during the
marriage in order that the same may be deemed conjugal property." In the recent case of Maramba
vs. Lozano, et. al. [L-21533, June 29, 1967, 20 SCRA 474], this Court, thru Mr. Justice Makalintal,
reiterated that "the presumption under Article 160 of the Civil Code refers to property acquired during
the marriage," and then concluded that since "there is no showing as to when the property in question
was acquired...the fact that the title is in the wife's name alone is determinative." Similarly, in the case
at bar, since there is no evidence as to when the shares of stock were acquired, the fact that they are
registered in the name of the husband alone is an indication that the shares belong exclusively to said
spouse.'

This pronouncement was reiterated in the case of Ponce de Leon vs. Rehabilitation Finance Corporation, No. L-24571,
December 18, 1970, 36 SCRA 289, and later in Torela vs. Torela, No. 1,27843, October 11, 1979, 93 SCRA 391.
It is thus clear that before Moises Jocson may validly invoke the presumption under Article 160 he must first present proof
that the disputed properties were acquired during the marriage of Emilio Jocson and Alejandra Poblete. The certificates
of title, however, upon which petitioner rests his claim is insufficient. The fact that the properties were registered in the
name of "Emilio Jocson, married to Alejandra Poblete" is no proof that the properties were acquired during the spouses'
coverture. Acquisition of title and registration thereof are two different acts. It is well settled that registration does not
confer title but merely confirms one already existing (See Torela vs. Torela, supra). It may be that the properties under
dispute were acquired by Emilio Jocson when he was still a bachelor but were registered only after his marriage to
Alejandra Poblete, which explains why he was described in the certificates of title as married to the latter.

Contrary to petitioner's position, the certificates of title show, on their face, that the properties were exclusively Emilio
Jocson's, the registered owner. This is so because the words "married to' preceding "Alejandra Poblete' are merely
descriptive of the civil status of Emilio Jocson Litam v. Rivera, 100 Phil. 354; Stuart v. Yatco, No. L-16467, April 27, 1962, 4
SCRA 1143; Magallon v. Montejo, G.R. No. L-73733, December 16, 1986, 146 SCRA 282). In other words, the import from
the certificates of title is that Emilio Jocson is the owner of the properties, the same having been registered in his name
alone, and that he is married to Alejandra Poblete.

We are not unmindful that in numerous cases We consistently held that registration of the property in the name of only
one spouse does not negate the possibility of it being conjugal (See Bucoy vs. Paulino, No. L-25775, April 26, 1968, 23
SCRA 248). But this ruling is not inconsistent with the above pronouncement for in those cases there was proof that the
properties, though registered in the name of only one spouse, were indeed conjugal properties, or that they have been
acquired during the marriage of the spouses, and therefore, presumed conjugal, without the adverse party having
presented proof to rebut the presumption (See Mendoza vs- Reyes, No. L-31618, August 17, 1983, 124 SCRA 154).

In the instant case, had petitioner, Moises Jocson, presented sufficient proof to show that the disputed properties were
acquired during his parents' coverture. We would have ruled that the properties, though registered in the name of Emilio
Jocson alone, are conjugal properties in view of the presumption under Article 160. There being no such proof, the
condition sine qua non for the application of the presumption does not exist. Necessarily, We rule that the properties
under Exhibit 3 are the exclusive properties of Emilio Jocson.

There being no showing also that the camarin and the two ricemills, which are the subject of Exhibit 4, were conjugal
properties of the spouses Emilio Jocson and Alejandra Poblete, they should be considered, likewise, as the exclusive
properties of Emilio Jocson, the burden of proof being on petitioner.

ACCORDINGLY, the petition is DISMISSED and the decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-43257 February 19, 1937

MARGARITA QUINTOS DE ANSALDO and ANGEL A. ANSALDO, plaintiffs-appellees,

vs.
THE SHERIFF OF THE CITY OF MANILA, FIDELITY & SURETY COMPANY OF THE PHILIPPINE ISLANDS and LUZON SURETY
COMPANY, defendants-appellants.

Ross, Lawrence and Selph for appellants.

Angel A. Ansaldo for appellees.

ABAD SANTOS, J.:

Upon the express guaranty of the appellant Fidelity & Surety Company of the Philippine Islands, the Philippine Trust
Company granted Romarico Agcaoili a credit in current account not to exceed at any one time P20,000. Appellee
Angel A. Ansaldo, in turn, agreed to indemnify the Fidelity & Surety Company of the Philippine Islands for any and all
losses and damages that it might sustain by reason of having guaranteed Agcaoili's obligations to the said Philippine
Trust Company. Agcaoili defaulted, and the surety company, as his guarantor, paid the Philippine Trust Company the
sum of P19,065.17. Thereafter, the surety company brought an action against the appellee Angel A. Ansaldo for the
recovery of the said sum of P19,065.17, and after obtaining a judgment on its favor, caused the sheriff of the City of
Manila to levy on the following properties:

The joint savings account in the name of Angel A. Ansaldo and Margarita Quintos de Ansaldo in the said Bank
of the Philippine Islands amounting to P165.84.

Upon learning of the action taken by the sheriff, appellees filed with him a third party claim alleging that the money on
which he levied execution was the property of the conjugal partnership existing between the said appellees and not
liable for the payment of personal obligations of the appellee Angel A. Ansaldo; but upon execution of an indemnity
bond by the appellant Luzon Surety Company, the sheriff retained the money in his possession.

Subsequently, appellees instituted an action against the appellants in the Court of First Instance of Manila to have the
execution levied by the sheriff declared null and void. The court below granted the relief prayed for and sentenced the
appellants, jointly and severally, to pay the appellees the sum of P636.80 with interest thereon at the rate of ten per
centum per annum from June 6, 1934 until paid, and the costs of suit.

As stated by counsel for the appellants, the question involved in this appeal is whether a joint savings account and a
joint current account, in a bank, of a husband and his wife are liable for the payment of the obligation of the husband.

It is undisputed that the sum of P636.80 which is now in controversy was derived from the paraphernal property of the
appellee, Margarita Quintos de Ansaldo, the wife of the other appellee Angel A. Ansaldo. It therefore belongs to the
conjugal partnership of the said spouses. (Civil Code, art. 1401.)

The provision of article 1408 of the Civil Code to the effect that the conjugal partnership shall be liable for all the debts
and obligations contracted during the marriage by the husband must be understood as subject to the qualifications
established by article 1386 of the same Code, which provides that:

The fruits of the paraphernal property cannot be subject to the payment of personal obligations of the
husband, unless it be proved that such obligation were productive of some benefit to the family.

The meaning of this article is clarified by reference to the first paragraph of the preceding article 1385 which reads as
follows:

The fruit of the paraphernal property form part of the assets of the conjugal partnership and are subject to the
payment of the debts and expenses of the spouses.

Construing the two article together, it seems clear that the fruits of the paraphernal property which become part of the
assets of the conjugal partnership are not liable for the payment of personal obligations of the husband, unless it be
proved that such obligations were productive of some benefit to the family.

In the case now before us no attempt has been made to prove that the obligations contracted by the appellee, Angel
A. Ansaldo, were productive of some benefit to his family. It is, however, claimed that, as the sum of P636.80 has
become the property of the conjugal partnership, at least one-half thereof was property levied on execution, as the
share of the appellee Angel A. Ansaldo. This contention is without merit. The right of the husband to one-half of the
property of the conjugal partnership does not vest until the dissolution of the marriage when the conjugal partnership is
also dissolved. (Civil Code, arts. 1392 and 1426.)

Counsel for the appellants call attention to the fact that in the third party claim filed with the sheriff of the City of Manila
by the appellees, the latter did not allege that the money on which the sheriff levied execution was property belonging
exclusively to the appellee Margarita Quintos de Ansaldo. Counsel contend that, as it was then claimed that the said
amount of P638.80 was conjugal property, appellees are now in estoppel to claim that the same sum was not conjugal
property but paraphernal property of the appellee Margarita Quintos de Ansaldo for the appellants are arguing from a
wrong premise. Appellees do not contend that said sum of P636.80 is not conjugal property. They contend that while it
forms part of the assets of the conjugal partnership under article 1385 of the Civil Code, it could not be levied upon,
because it was not applicable to this case.

The judgment appealed from is affirmed with costs against the appellants. So ordered.
Avanceña, C.J., Villa-real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

THIRD DIVISION

[G.R. No. 143297. February 11, 2003]

SPOUSES VIRGILIO and MICHELLE CASTRO, MOISES B. MIAT and ALEXANDER V. MIAT, petitioners, vs. ROMEO V.
MIAT, respondent.

DECISION

PUNO, J.:

This is a petition for review on certiorari of the decision rendered by the Court of Appeals in CA-G.R. CV No. 43053,
entitled Romeo V. Miat vs. Spouses Virgilio and Michelle Castro, Moises B. Miat and Alexander V. Miat, dated November
29, 1999.[1]

The evidence shows that the spouses Moises and Concordia Miat bought two (2) parcels of land during their
coverture. The first is located at Wawa La Huerta, Airport Village, Paraaque, Metro Manila[2] and covered by TCT No. S-
33535.[3] The second is located at Paco, Manila,[4] and covered by TCT No. 163863.[5] Concordia died on April 30, 1978. They
had two (2) children: Romeo and Alexander.

While at Dubai, United Arab Emirates, Moises agreed that the Paraaque and Paco properties would be given to
Romeo and Alexander.[6] However, when Moises returned in 1984, he renegotiated the agreement with Romeo and
Alexander. He wanted the Paraaque property for himself but would leave the Paco property to his two (2) sons. They
agreed.[7]

It appears that Moises and Concordia bought the Paco property on installment basis on May 17, 1977.[8] However, it
was only on December 14, 1984 that Moises was able to pay its balance.[9] He secured the title over the property in his
name as a widower.[10] According to Romeo, Moises violated the agreement that their (Romeos and Alexanders) names
would be registered in the title once the balance was paid.[11] Upon demand, Moises gave the owners duplicate of the
Paco property title to Romeo.

Romeo and Alexander lived on the Paco property. They paid its realty taxes and fire insurance premiums.[12] In early
August 1985, Alexander and his first wife left the house for personal reasons. In April 1988, Alexander agreed to sell to Romeo
his share in the Paco property for P42,750.00.[13] He received a partial payment of P6,000.00 from Romeo.[14] Nonetheless,
he never executed a deed of assignment in favor of Romeo, as he had lots of work to do and had no time and x x x there
[wa]s nothing to worry [as] the title [wa]s in [Romeos] possession.[15]

In February 1988, Romeo learned from his godmother in his wedding, Mrs. Rosalina Castro, mother of petitioner Virgilio
Castro, that she had given Moises P30,000.00 as downpayment for the sale by Moises of the Paco property to her son
Virgilio.[16]

On December 1, 1988, Romeo was brought by petitioner Virgilio Castro to the chambers of Judge Anunciacion of
the Metropolitan Trial Court of Manila where the status of the Paco property was discussed.[17] On December 16, 1988, he
received a letter from petitioner Castros lawyer asking for a conference. Romeo was informed that the Paco property had
been sold to Castro by Moises by virtue of a deed of sale dated December 5, 1988[18] for ninety-five thousand (P95,000.00)
pesos.[19]

Ceferino Miat, brother of petitioner Moises,[20] testified that even before the death of Concordia[21] there was already
an agreement that the Paco property would go to Romeo and Alexander.[22] This was reiterated at the deathbed of
Concordia.[23] When Moises returned to Manila for good, the agreement was reiterated[24] in front of the extended Miat
family members.[25] Initially, Romeo and Alexander orally[26] divided the Paco property between themselves.[27] Later,
however, Alexander sold his share to Romeo.[28] Alexander was given P6,000.00 as downpayment. This was corroborated
by Pedro Miranda and Virgilio Miat. Miranda worked with Moises at the Bayview Hotel and the Hotel Filipinas.[29] His wife is
the cousin of Romeo and Alexander.[30] Virgilio is the brother of Moises.

Moises confirmed that he and his wife Concordia bought the Paco property on installment from the Fraval Realty,
Inc. There was still a balance of P12,000.00 on the lot at the time of his wifes death.[31] He paid P3,500.00 in
1981[32] and P8,500.00 in 1984.[33] He registered the title in his name. Romeo then borrowed the title as he was going to
mortgage it to his friend Lorenzo.[34]

Later, Moises ran into financial difficulties and he mortgaged for P30,000.00 the Paco property to the parents of
petitioner Virgilio Castro.[35] He informed Romeo and Alexander that he would be forced to sell the Paco property if they
would not redeem the mortgage. He accompanied his children to the Manila City Hall to discuss its sale with a judge and
a lawyer. Also present in the meeting were petitioner Virgilio Castro and his parents. After the conference, he proceeded
to sell the property to the petitioners-spouses Castro.[36]

Alexander testified that after the sale, his father got one-third (1/3) of the proceeds while he received two-thirds
(2/3). Romeo did not get a single centavo but was given the right to till their Nueva Ecija property.[37] From his share of the
proceeds, Alexander intended to return to Romeo the P6,000.00 given him earlier by the latter. He considered the money
to be a personal debt due Romeo, not Romeos downpayment of his share in the Paco property.[38]

The buyer of the property, petitioner Virgilio P. Castro, testified that he informed Romeo that his father Moises was
selling the Paco property. Romeo replied: Bahala siya.[39]The second time he informed Romeo about the pending sale was
when he brought Romeo, Alexander and Moises to Judge Anunciacion to consult him [as to] who has [the] right over the
[Paco] property.[40] He further declared that he went to the Metropolitan Trial Court because [he] wanted to be sure
whether [he] could buy the property.[41] During the meeting, he was told by Romeo that the Paco property was already
given to him (Romeo) by Moises. He admitted knowing that the title to the Paco property was in the possession of
Romeo.[42] However, he proceeded with the sale. Moises assured him that he would be able to get the title from Romeo.[43]

These events precipitated the case at bar. Romeo filed an action to nullify the sale between Moises and the Castro
spouses; to compel Moises and Alexander to execute a deed of conveyance or assignment of the Paco property to him
upon payment of the balance of its agreed price; and to make them pay damages.[44]

After trial, the Regional Trial Court rendered its decision,[45] which in its dispositive portion states as follows:

WHEREFORE, in view of the foregoing, the Court hereby orders the following: 1) Defendant Alexander V. Miat to execute
a deed of sale of his share in the property upon payment by plaintiff Romeo of the balance of the purchase price in the
sum of P36,750.00; 2) Plaintiff Romeo V. Miat to recognize as valid the sale of defendant Moises share in the house and
lot located at No. 1495-C Fabie Estate, Paco, Manila; 3) the dismissal of defendants counter-claim; and 4) defendants to
pay the costs of suit.

Both parties appealed to Court of Appeals. On November 29, 1999, the appellate Court modified the Decision as
follows:[46]

WHEREFORE, the appealed decision is MODIFIED as follows:

(1) The deed of sale entered into between defendants-appellants Moises Miat and spouses Virgilio and Michelle Castro is
hereby NULLIFIED.

(2) Defendant-appellants Moises Miat and Alexander Miat are ordered to execute a deed of conveyance over the
Paco property with TCT No. 16383 (sic) in favor of plaintiff-appellant Romeo Miat, upon payment by Romeo Miat of the
balance of the purchase price in the sum of P36,750.00.

(3) Defendants-appellants are ordered, jointly and severally, to pay plaintiff-appellant attorneys fees in the amount
of P30,000.00 and to pay the costs of suit.

Reconsideration was denied on May 17, 2000.

Hence, this petition where the petitioners assign the following errors:

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED AND DID PETITIONERS AN INJUSTICE IN MODIFYING OR REVERSING
THE DECISION OF THE TRIAL COURT DATED MARCH 17, 1993 WHICH ORDERED RESPONDENT ROMEO MIAT TO RECOGNIZE
AS VALID THE DEED OF SALE ENTERED INTO BETWEEN PETITIONERS MOISES MIAT AND SPS. VIRGILIO AND MICHELLE CASTRO
PERTAINING TO PETITIONER MOISES MIATS SHARE IN THE HOUSE AND LOT LOCATED IN PACO, MANILA, WHEN IT DECLARED
SAID DEED OF SALE NULLIFIED.

THE RESPONDENT COURT OF APPEALS PATENTLY ERRED IN AFFIRMING OR UPHOLDING THE TRIAL COURTS DECISION
ORDERING ALEXANDER MIAT AND INCLUDING MOISES MIAT TO EXECUTE A DEED OF CONVEYANCE OVER THE PACO
PROPERTY WITH TCT NO. 16383 IN FAVOR OF ROMEO MIAT UPON PAYMENT BY THE LATTER OF THE BALANCE OF THE
PURCHASE PRICE IN THE SUM OF P36,750.00.
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN FURTHER ORDERING PETITIONERS TO PAY RESPONDENT, JOINTLY
AND SEVERALLY, ATTORNEYS FEES IN THE AMOUNT OF P30,000.00 AND AFFIRMING THE COURT A QUOS ORDER FOR THE
PETITIONERS TO PAY THE COST OF SUIT.[47]

The issues can be simplified thus:

1. Whether the Paco property is conjugal or capital;

2. Whether there was a valid oral partition covering the said property; and

3. Whether the spouses Castro were buyers in good faith.

The petitioners contend that the Paco property is the capital property of Moises. They allege that the spouses Moises
and Concordia purchased the property on installment basis in 1977 but stress that it was Moises who paid the balance of
twelve thousand (P12,000.00) pesos in 1984. At that time, Concordia had long been dead. She died in 1978.

We disagree.

Since Moises and Concordia were married before the effectivity of the Family Code, the provisions of the New Civil
Code apply.

Article 153(1) of the New Civil Code[48] provides as follows:

The following are conjugal partnership property:

(1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be
for the partnership, or for only one of the spouses; x x x.

The records show that the Paco property was acquired by onerous title during the marriage out of the common
fund. It is clearly conjugal property.

Petitioners also overlook Article 160 of the New Civil Code. It provides that all property of the marriage is presumed
to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife. This
article does not require proof that the property was acquired with funds of the partnership. The presumption applies even
when the manner in which the property was acquired does not appear.[49]

Petitioners reliance on Lorenzo vs. Nicolas[50] is misplaced. That case involved two (2) parcels of land that Magdalena
Clemente purchased on installment and started paying for when she was not yet married to Manuel Lorenzo. When she
married Manuel Lorenzo she continued to pay the installments in her own name. Upon completion of payment, the deed
of final conveyance was executed in her sole favor and the land was registered in the exclusive name of Magdalena
Clemente. The Court ruled that the two (2) parcels of land were the paraphernal properties of Magdalena Clemente,
thus:

x x x the fact that all receipts for installments paid even during the lifetime of the late husband Manuel Lorenzo were
issued in the name of Magdalena Clemente and that the deed of sale or conveyance of parcel no. 6 was made in her
name in spite of the fact that Manuel Lorenzo was still alive shows that the two parcels of land belonged to Magdalena
Clemente.[51] (emphasis supplied)

In the case at bar, Moises and Concordia bought the Paco property during their marriage Moises did not bring it into their
marriage, hence it has to be considered as conjugal.

Likewise, Jovellanos vs. Court of Appeals[52] cited by the petitioners is inapropos. In said case, Daniel Jovellanos, while
he was still married to his first wife, Leonor Dizon, entered into a contract of lease and conditional sale with Philamlife. He
continued paying the rental after the death of his first wife and during the subsistence of his marriage with his second wife,
Anette Jovellanos. He completed the payment during the existence of his second marriage. The Court ruled that the
property belonged to the conjugal partnership with the second wife as Daniel Jovellanos acquired ownership thereof only
upon full payment of the said amount hence, although he had been in possession of the premises since September 2,
1955, it was only on January 8, 1975 that the Philamlife executed the deed of absolute sale thereof in his favor. x x x Since
as early as 1967, he was already married to Annette H. Jovellanos, this property necessarily belonged to his conjugal
partnership with his second wife.[53] In the case at bar, Moises and Concordia executed a Deed of Sale with Mortgage.
The contract is one of sale the title passed to them upon delivery of the Paco property.[54] In fine, title was gained during
the conjugal partnership.

II

The next issue is whether the oral partition between Moises and his sons, Romeo and Alexander, involving the said
property is valid. In ruling in favor of its validity which we affirm, the appellate court relied on a portion of Moises letter to
Romeo, which reads as follows:[55]

KAYA PAG-USAPAN LANG NINYONG MABUTI ANG ANONG BALAK AT GUSTO NINYONG PAGHATI SA BAHAY, AT YAN AY
PAGPAPASIYAHAN KO KONG (sic) MAKAKABUTI SA INYONG DALAWA. AT WALA AKONG HIGIT NA PAPABURAN SA
INYONG DALAWA PAREHO KAYONG MAHAL SA AKIN, HINDI AKO TULAD SA IBANG MAGULANG NA HINDI PAREHO ANG
PAGTINGIN SA MGA ANAK. ANG BAHAY[56] AY PARA SA INYONG DALAWA, LALO NA NGAYONG MAY ASAWA NA
KAYONG PAREHO. x x x [All caps in the original]

Ceferino Miat, brother of Moises, testified that before Concordia died, there was an agreement that the Paraaque
property would go to Moises while the Paco property would go to Romeo and Alexander. This was reiterated at the
deathbed of Concordia. When Moises returned to Manila for good, the agreement was affirmed in front of the extended
Miat family members. Initially, Romeo and Alexander orally divided the Paco property between them. Later, Alexander
sold his share to Romeo.

This agreement was attested to by the extended Miat Family members in a document marked as Exhibit D, which
reads as follows:[57]

Pebrero 18, 1989

SINUMPAANG SALAYSAY

SA MGA KINAUUKULAN,

Kami, na nakalagda sa ibaba, ay nanunumpa sa harapan ng Punong Barangay, na si G. REYNALDO P. WONG:

Na kami ay mga saksi sa kasunduan nina G. MOISES B. MIAT, asawa ng yumao na, na si Gng. CONCORDIA VALENZUELA
MIAT, at mga anak nitong sina G. ROMEO V. MIAT at G. ALEXANDER V. MIAT:

Na ang kasunduan ay ang mga sumusunod:

1. Na ang pag-aaring lupa (132 sq. m.) ng mag-asawa (MOISES at CONCORDIA) sa Airport Village sa Paraaque, Metro
Manila ay mapupunta kay G. MOISES B. MIAT;

2. Na ang pag-aaring lupa at bahay (70 sq. m.) ng mag-asawa ring nabanggit ay sa magkapatid na ROMEO at
ALEXANDER mapupunta at ito ay nasa address na 1495-C FABIE, PACO, MANILA.

MGA SUMUMPA:[58]

(Sgd.) (Sgd.)
1) Ceferino B. Miat 6) Lorenzo C. Valenzuela
(kapatid ni Moises) (kapatid ni Concordia)

(Sgd.) (Sgd.)
2) Avelina J. Miat 7) Patricio C. Valenzuela
(asawa ni Ceferino) (kapatid ni Concordia)

(Sgd.) (Sgd.)
3) Virgilio Miat 8) Victor C. Valenzuela
(kapatid ni Moises) (kapatid ni Concordia)

(Sgd.) (Sgd.)
4) Aurea Miat-Joson 9) Elsa P. Miranda
(kapatid ni Moises)
(Sgd.)
5) Jose A. Joson
(asawa ni Aurea)

(Sgd.)
REYNALDO P. WONG
Kapitan ng Barangay
Sta. Maria, Licab, N.E.(emphasis supplied)

The consideration for the grant to Romeo and Alexander of the Paco property was best expressed by Moises himself
in his letter to Romeo, which reads as follows:

Labis akong nagpapasalamat at nauunawaan ninyo ang mga pagkakamali ko at mga kasalanan kong nagawa sa
inyong mag-iina, huwag kayong mag-alala at lahat nang naipundar namin nang (sic) inyong nanay ay sa inyong
dalawang magkapatid mapupunta.[59]

We also hold that the oral partition between Romeo and Alexander is not covered by the Statute of Frauds. It is
enforceable for two reasons. Firstly, Alexander accepted the six thousand (P6,000.00) pesos given by Romeo as
downpayment for the purchase of his share in the Paco property. Secondly, Romeo and his witnesses, Ceferino Miat and
Pedro Miranda, who testified regarding the sale of Alexanders share to Romeo, were intensely questioned by petitioners
counsel.[60]

In the recent case of Pada-Kilario vs. Court of Appeals, we held:[61]

[N]o law requires partition among heirs to be in writing and be registered in order to be valid. The requirement in Sec. 1,
Rule 74 of the Revised Rules of Court that a partition be put in a public document and registered, has for its purpose the
protection of creditors and the heirs themselves against tardy claims. The object of registration is to serve as constructive
notice to others. It follows then that the intrinsic validity of partition not executed with the prescribed formalities is not
undermined when no creditors are involved. Without creditors to take into consideration, it is competent for the heirs of
an estate to enter into an agreement for distribution thereof in a manner and upon a plan different from those provided
by the rules from which, in the first place, nothing can be inferred that a writing or other formality is essential for the
partition to be valid. The partition of inherited property need not be embodied in a public document so as to be
effective as regards the heirs that participated therein. The requirement of Article 1358 of the Civil Code that acts which
have for their object the creation, transmission, modification or extinguishment of real rights over immovable property,
must appear in a public instrument, is only for convenience, non-compliance with which does not affect the validity or
enforceability of the acts of the parties as among themselves. And neither does the Statute of Frauds under Article 1403
of the New Civil Code apply because partition among heirs is not legally deemed a conveyance of real property,
considering that it involves not a transfer of property from one to the other but rather, a confirmation or ratification of title
or right of property that an heir is renouncing in favor of another heir who accepts and receives the inheritance. x x x.

III

The appellate court also correctly held that the petitioners-spouses Castro were not buyers in good faith. A purchaser
in good faith is one who buys property and pays a full and fair price for it at the time of the purchase or before any notice
of some other persons claim on or interest in it. The rule is settled that a buyer of real property, which is in the possession of
persons other than the seller, must be wary and should investigate the rights of those in possession. Otherwise, without such
inquiry, the buyer can hardly be regarded as buyer in good faith.[62]

This finding of the appellate court that the Castro spouses were not buyers in good faith is supported by
evidence. Petitioner Virgilio Castro admitted in his testimony that Romeo told him that Moises had given the Paco property
to them. In fact, they consulted Judge Anunciacion on who had the right to the property Moises or Romeo. As well pointed
out by the appellate court:

In the case at bench, the said spouses have actual knowledge of the adverse claim of plaintiff-appellant. The most
protuberant index that they are not buyers in good faith is that before the sale, Virgilio Castro talked with Romeo Miat on
the supposed sale. Virgilio testified that together with Romeo, Alexander and Moses Miat, they went to Judge
Anunciacion of Manila in order to find out if Romeo has a right over the property. Romeo told Virgilio in that meeting that
Romeo has a right over the Paco property by virtue of an oral partition and assignment. Virgilio even admitted that he
knew Romeo was in possession of the title and Romeo then insisted that he is the owner of the property.

xxxxxxxxx
Virgilio Castro is further aware that plaintiff is in possession of the property, they being neighbors. A purchaser who was
fully aware of another persons possession of the lot he purchased cannot successfully pretend to be an innocent
purchaser for value.[63]

It is abundantly clear that the petitioners-spouses Castro did not buy the Paco property in good faith. They have no
right to the property.

WHEREFORE, the decision of the appellate court in CA-G.R. CV No. 43053 is affirmed. Costs against petitioners.

SO ORDERED.

Panganiban, Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-22383 October 6, 1924

THE PHILIPPINE NATIONAL BANK, plaintiff-appellee,

vs.
MARGARITA QUINTOS E YPARRAGUIRRE and ANGEL A. ANSALSO, defendants-appellants.

Angel A. Ansaldo for appellants.

Roman J. Lacson for appellee.

VILLAMOR, J.:

The appellants pray for the dismissal of the complaint with costs against the plaintiff, alleging that the judgment
appealed from is erroneous: (1) Because it holds that the document Exhibit A does not contain anything that makes the
plaintiff agent of the defendants; (2) because it finds without any ground that the defendant were husband and wife
when they executed said document; (3) because upon this finding, it considers unnecessary to discuss whether or not
the obligation evidence by said document is solidary between the defendants (4) because to maintain such opinion
amounts to compelling the defendants to comply with said obligation in a manner distinct from that stipulated in the
contract; and (5) because it sanctions an arbitrary, unjust and illegal procedure.

The Honorable Pedro Concepcion, judge, who tried this case, rendered decision in the following terms:

The plaintiff seeks to recover of the defendants the sum of P31,785.96, the amount of an alleged overdraft
against them and in favor of the plaintiff bank, with interest thereon at 8 per cent per annum from October 1,
1922.

It appears from the evidence that in a document dated June 20, 1918, the Philippine National Bank granted
the defendants a credit to the amount of P31,284, and to secure the payment thereof, as well as the interest
and costs, the defendants mortgaged and pledged to the bank certain certificates of one hundred fifty-eight
shares of stock of the Bank of the Philippine Islands of the nominal value of P200 each. Later on, a certificate of
fifty shares and another of forty were substituted by others of 10 and 30 shares, respectively. Besides these
shares, the defendants delivered to the bank, as additional securities, fifty shares of stock of the "Compañia
Naviera" of the nominal value of P100 each; eighty shares of stock of the Davao Agriculture and Commercial
Company of P100 each, and 10 second liberty bonds. These bonds were sold by the plaintiff bank on or before
August 19, 1922, having realized the sum of P2,360 from the sale thereof. (Exhibit 3.)

On August 21, 1920, the herein defendant, Mr. Angel Ansaldo, in his answer to a letter of the bank addressed to
him or to his wife, his codefendant Margarita Q. de Ansaldo, stated, as may be seen in Exhibit B, that the
balance in his current account in favor of said bank in the sum of P33,558.445 on July 31, 1920, had been
examined by him and found correct. This balance with the interest due from the said date up to September 30,
1922, amounted to P41,212.05 and after deducting the credit and deposits from August 1, 1920, to September
30, 1922, which amount to P9,426.09, there remains a balance of P31,785.96, payment of which is claimed in
the complaint.

And the complaint was filed because between April 2, 1921, and July 22, 192, the date of the letter Exhibit 6,
the defendant Mr. Ansaldo was several times required to pay his debt, the securities given having been found
to be insufficient to secure the payment of his obligations, but the defendants failed to give the new additional
securities demanded.

The defendants discuss in the first place the nature of the obligation sued on, maintaining that the same is not
of a solidary nature because, say they, there is nothing in it that expressly determines said character, and
therefore it binds only those who have contacted the same to the extent of their share in said obligation; and in
connection with this point it was attempted to prove that the defendant Margarita Q. de Ansaldo, making use
of the credit granted, has received from the bank only the sum of P10,000 (Exhibit 5). As an answer to the
question raised the attorney for the bank calls attention to Exhibit A where it appears that the defendant Angel
A. Ansaldo "and or" Margarita A. de Ansaldo, both or either of them indiscriminately, could sign checks against
the bank in their current account.

The court is of the opinion that it is not necessary to discuss whether the obligation in question is solidary or joint,
because in either case this debt is in the last analysis chargeable to the conjugal partnership of the defendant
spouses. According to article 1408 of the Civil Code, all the debts and obligations contracted during the
marriage by the husband, as well as those incurred by the wife in those cases in which she may legally bind the
partnership, are chargeable to the conjugal partnership. In the instant case, the defendant Margarita Q. de
Ansaldo joined her husband in the execution of the document, evidencing the obligation in question, on June
20, 1918, Exhibit A. (See Joaquin vs. Avellana, 11 Phil., 249; Fulgencio vs. Gatchalian, 21 Phil., 252;
Falcon vs. Manzano, 15 Phil., 441.)

Another question raised, although indirectly, by the defendants is that, this being, as it is, a case of a loan for an
indefinite period of time they were not asked to pay in accordance with law, articles 313 and 316 of the Code
of Commerce. This contention is untenable. Under the provision of section 33 of Act No. 2938, amending the
charter of the Philippine National Bank, if, from any cause whatsoever, any of the securities specified for the
loans provided for therein, or accepted by said bank as security for loans should decline or depreciate in
market value wholly or in part, said bank may demand additional securities or may forthwith declare such
obligation due and payable; and it is a fact admitted by the defendants themselves that the securities given
by them have suffered a considerable depreciation and it is a fact proven that they were required to give
additional securities but failed to do so.

If the securities were found to have depreciated in value, say the defendants, "the plaintiff bank's remedy was
the one provided in the document executed by the defendants in its favor and in accordance with its own
charter." According to the contract, it may hold or sell the securities above mentioned although as an agent
(articles 1710, 1713, 1714, 1718, 1719, and 1796 of the Civil Code); and in accordance with its charter (section
42, Act No. 2612), said sale may be ordered 15 days after a demand in writing is made upon the debtor to
increase the amount thereof, if in the meantime said debtor should have failed to comply with this requirement
. . . "The plaintiff, say they, cannot be considered authorized to be negligent, as soon as it shall have learned
that the securities had begun to depreciate, as compared with the value they had when they were delivered;
for then it neither would comply with the agency stipulated in the document in its favor, which would render it
liable, nor could in justice claim from the debtor what by its own negligence it may have failed to receive." As
an answer to this, it may be said that:

". . . it must be borne in mind that it is a recognized doctrine in the matter of suretyship that with
respect to the surety, the creditor is under no obligation to display any diligence in the enforcement of
his rights as a creditor. His mere inaction, indulgence, passiveness, or delay in proceeding against the
principal debtor, or the fact that he did not enforce the guaranty or apply to the payment of such
funds as were available, constitute no defense at all for the surety, unless the contract expressly
requires diligence and promptness on the part of the creditor, which is not in the case in the present
action." (Clark vs.Sellner, 42 Phil., 384.

Furthermore, there is nothing in the document evidencing the contract which makes the plaintiff, as the
defendants believe, their agent with the obligation to sell the securities to the document, has a right, not an
obligation, to elect to enforce the securities in the manner it now does by bringing this action.
 As to the amount of the obligation, the defendants argue that the acknowledgment of the debit balance on
July 31, 1920, in the amount of P33,548.55, (Exhibit B), is not any evidence that may legally bind the defendant
Margarita Q. de Ansaldo, who has not accepted it as correct. The truth, however, is that the defendant Mr.
Ansaldo who gave his conformity with the aforesaid balance is the husband of the other defendant and the
legal manager of the property of the conjugal partnership which is liable for the payment of this debt.

The interest computed was likewise discussed in this case, the defendants claiming that the same was not fixed
with their consent, nor does there exist, say they, any proof that it was ever fixed by the Board of Directors of the
bank. It appears, however, from the evidence of the plaintiff that the National Bank had authorized various
officers thereof to fix certain rate of interest on certain occasions; as for instance, the rate of interest for the
months of August to September, 1920, was raised from 12 to 8 per cent. At all events, we believe that the
defendants have no right to raise this question because they have paid interest at the rate of 9 per cent per
annum, as appears from the document marked Exhibit I.

For all of the foregoing, judgment is rendered sentencing the defendants to pay the plaintiff bank the sum of
thirty-one thousand seven hundred eighty-five pesos and ninety-six centavos (P31,785.96), with interest thereon
at the rate of 8 per cent per annum from October 1, 1922, until full payment, with the costs; in case of failure to
pay, let the certificates of shares described in Exhibit A be sold, and if the proceeds of the sale of said shares
are not sufficient to cover the whole amount of the debt, let an execution issue against any property of the
conjugal partnership of the defendants and, in default thereof, against the private property of each of them,
sufficient to cover the whole amount of the balance that may be remaining unpaid.

So ordered.

Manila, P. I., February 5, 1924.

(Sgd.) PEDRO CONCEPCION

Judge

As the transcript of the testimony of the witnesses was not forwarded to this court, we cannot, according to the constant
jurisprudence of this court, review the evidence and so we have to abide by the findings of fact set forth in the judgment
of the trial court.

We agree with the appellants that, according to the contract of pledge Exhibit A, attached to the complaint, the
defendants authorized the plaintiff to act as their agent with full power and authority to dispose of the effects pledged in
the manner stipulated in said contract; but it appears that the plaintiff had also an option, not an obligation precisely, to
enforce the securities given.

The question whether or not appellants executed the aforesaid document Exhibit A as husband and wife was decided
by the trial court in the sense that the defendant appellant Mr. Ansaldo is the husband of the other defendant Doña
Margarita Q. e Iparraugirre. For the reason above given we cannot alter this finding of the trial court and consequently if
the defendants are husband and wife, it is immaterial whether the debt was contracted by one or the other, for in either
case as the debt was contracted during the marriage of the defendants it must be paid for the account of the conjugal
partnership in accordance with article 1408 of the Civil Code. 1awph!l.net

After a thorough study of the judgment appealed from, we do not find therein any substantial error that justifies the
reversal thereof and therefore the same must be, as is hereby, affirmed with costs against the appellants. So ordered.

Johnson, Street, Malcolm, Avanceña, Ostrand and Romualdez, JJ., concur.

DECISION UPON MOTION FOR RECONSIDERATION

December 10, 1924.

VILLAMOR, J.:

In view of the juridical importance of the question raised in this motion, wherein it is maintained that the obligation of the
defendants is chargeable to the conjugal partnership, and not to the private property of the spouses, and much less to
the private property of Margarita Quintos de Ansaldo, we deem it well to enlarge upon our decision published October
6, 1924.
It will be remembered that the defendants signed a document of pledge in favor of the plaintiff Philippine National Bank
to secure the payment of a loan in current account to the amount of P31,284. In said document it does not clearly
appear that the signers were husband and wife, although there is proof in the record tending to show their civil status as
husband and wife. Nor does its appear in the said document that the signers have bound themselves solidarily to pay
the debt owing to plaintiff.

The judgment appealed from, affirmed by this court in a decision published October 6, 1924, sentences the defendants
to pay the plaintiff bank the sum of thirty-one thousand seven hundred eighty-five pesos and ninety-six centavos
(P31,785.96) with interest thereon at 8 per cent per annum from October 1, 1922, until full payment, with the costs;
providing that, in default of payment, the certificates of shares described in Exhibit A must be sold, and in case the
proceeds of the sale were not sufficient to cover the whole amount of the debt, an execution shall issue against the
property of the conjugal partnership of the defendants, and, if no such property was found, then against any private
property of each of them sufficient to cover the whole amount of the balance remaining unpaid.

There can be no doubt that the property pledged being insufficient, the property of the conjugal partnership is liable for
this obligation in accordance with article 1408 of the Civil Code, because the same was contracted by the spouses
during the marriage; but in default of property of the conjugal partnership (Article 1401), what is the liability of the
spouses as to the private property (article 1396) of each of them?

In this jurisdiction we do not believe that a similar question was heretofore ever raised and decided, and so far as the
research of the write hereof discloses, it finds no precedent in the Spanish jurisprudence.

By express provision of the Civil Code, the conjugal partnership begins to exist at the celebration of the marriage, and
the separation of the properties between the spouses shall take place (article 1432) only when it is expressly stipulated in
the marriage settlement, or is judicially decreed, or in the case provided in article 50 of the Code. This conjugal
partnership however, is confined to the properties mentioned in article 1401 of the Civil Code, to wit: (a) Those acquired
by onerous title during the marriage at the expense of the common property whether the acquisition is made for the
community or for only one of them; (b) those obtained by the industry, salary or labor of the spouses or any of them; (c)
the fruits, rents or interest received or accruing during the marriage, from the common or the private property of each of
the spouses. The partnership does not produce the merger of the properties of each spouse. Each of them,
notwithstanding the existence of the partnership, continues to be the owner of what he or she had before contracting
marriage, as well as of what he or she may have acquired later by lucrative title, by right of redemption, or by exchange
with his or her property, or by purchase with his or her money.

The ganancial partnership, to use the expression of Mr. Manresa, is the same conjugal partnership constituted, in its
economical aspect, under the system established by the law as suppletory. It is, therefore, formed by the husband and
the wife, each with his or her own property and with his or her own debts. The legislator does not intend to effect a
mixture or merger of those debts of properties between the spouses. The partnership maintains the separation of the
properties brought by each spouse from those that he or she may substitute for them, or privately acquire afterwards by
lucrative title.

Under the provisions of the Code it appears evident that the conjugal partnership does not produce the merger of
properties, nor does it cause the personality of the wife to disappear; on the contrary, the law established absolute
separation of capitals — a complete independence of the capital account from the account of benefits pertaining to
the conjugal partnership, all of which constitutes a unsurmountable obstacle to the presumption of solidarity between
spouses.

The question submitted to our consideration presupposes the insolvency of the conjugal partnership, and as there is no
presumption of solidarity of property between the spouses, the question may be asked, What liability do the partners
have with respect to the debts of the partnership? The legal provisions about conjugal partnership, contained in chapter
5, title 3, book 4, of the Civil Code, do not give an adequate answer to this question; so that we have to resort to other
sources for a solution thereof. Mr. Manresa already indicates in his commentaries on article 1395 that in view of the
provisions of the Code regarding conjugal partnership, "the cases will be rare wherein there would be any need to resort
to the suppletory rule of the contract of partnership; but the law, which does not in any manner pretend having
provided for all the questions that may present themselves in the practice, points out new sources of law to which resort
must be made in order to solve doubtful cases, situations or circumstances not provided in articles 1392 to 1431." The
case now before us is one of them, which requires, in order to be solved, a resort to the rule on the contract of
partnership, prescribed in article 1698, which provides that the partners are not solidarily liable with respect to the debt of
the partnership, and none can bind the others by a personal act, if they have not given him any power therefor.

The aforecited provision negativating solidarity in the liability of the partners is a consequence of the conclusive rule of
article 1137, of general application to all kinds of obligation, to the effect that in obligations created by the will of the
parties, solidarity will exist only when it is expressly determined in the title thereof, giving them such a character. Therefore
if solidarity exists only by stipulation, or by law, it is evident that the partner cannot be solidarity liable for the debts of the
partnership, because, as Manresa says, there is no legal provision imposing such burden upon him, and because the
same is not only not authorized by the contract of partnership, but is contrary to the nature thereof, for gain being the
consideration of the obligation, the latter cannot be extended beyond the interest that the partner may have therein
which is proportional to his share.

Taking into account that the contract of pledge signed by the defendants does not show that they have contracted a
solidary obligation, it is our opinion, and so decide, that the properties given as pledge being insufficient, the properties
of the conjugal partnership of the defendants are liable for the debt to the plaintiff, and in default thereof, they are
jointly liable for the payment thereof.

It being understood that the judgment appealed from is modified in the sense above stated, the motion of the
appellants is denied. So ordered.

Johnson, Street, Malcolm, Avanceña, Ostrand and Romualdez, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-16991 March 31, 1964

ROBERTO LAPERAL, JR., ET AL., plaintiffs-appellants,

vs.
RAMON L. KATIGBAK, ET AL., defendants-appellees.

William H. Quasha and Associates for plaintiffs-appellants.

Bausa, Ampil and Suarez for defendant-appellee Evelina Kalaw Katigbak.
Ramon L. Katigbak in his own behalf as defendant-appellee.

REGALA, J.:

This is an appeal from a decision of the Court of First Instance of Manila declaring the property covered by TCT No. 57626
in the City of Manila to be the separate or paraphernal property of the defendant-appellee Evelina Kalaw. Plaintiffs-
appellants, the spouses Laperal, disagree with the said finding. Hence they appealed from the said decision. They
maintain that the realty in question, with its improvements and income, are conjugal assets of the spouses Evelina Kalaw
and Ramon Katigbak.

This litigation is a sequel to the one instituted by the Laperals against Katigbak and Kalaw way back in August, 1950. In
that case, Civil Case No. 11767 of the Court of First Instance of Manila, the Laperals sought from the therein defendants
"recovery of P14,000 evidenced by various promissory notes executed in favor of the Laperals by Katigbak, and for the
return of jewelry valued at P97,500.00, delivered by the Laperals to Katigbak for sale on commission, or a total of
P111,500.00." On November 1, 1950, upon a confession of judgment by Katigbak, the trial court rendered judgment
against him to pay the Laperals the sum of P14,000.00, and to return the jewelry involved, or in lieu thereof, to pay
plaintiffs P97,500.00, with interest from August 8, 1950.

About a month after this decision was rendered, Kalaw filed a complaint against her husband Katigbak, for "judicial
separation of property and separate administration," docketed as Civil Case No. 12860, of the Court of First Instance of
Manila. Prior to the trial, Katigbak and Kalaw submitted an agreement or stipulation of facts on the basis of which, the
court granted the prayer for the "judicial separation of property and separate administration."

On February 1, 1955, the Laperals filed another complaint against Kalaw and Katigbak, Civil Case No. 25235 in the Court
of First Instance of Manila, seeking among other things, annulment of the proceedings had in Civil Case No. 12860 for
"judicial separation of property and separate administration," to enforce the judgment secured by the Laperals in Civil
Case No. 11767 on the fruits of Kalaw's paraphernal property, and to secure a ruling declaring the real property covered
by TCT No. 57626 as conjugal property of Katigbak and Kalaw. After trial, the court dismissed the complaint, which
dismissal the Laperals appealed to this Court. Acting on the same, We rendered judgment under G.R. No. L-11418,
promulgated on December 27, 1958, the pertinent portion of which reads:

However, our holding does not write a finis to the case. Because the trial court held that the conjugal
partnership was not liable, it naturally, saw no reason or necessity for ruling upon the other issues involved, such
as the legality of the proceedings in Civil Case No. 12860 for the dissolution of the conjugal partnership and
whether or not the property covered by Transfer Certificate of Title No. 57626 belongs to the conjugal
partnership.

In conclusion we hold that while the fruits of the paraphernal property of Kalaw are not liable for the
enforcement of the obligations contracted by Katigbak, nevertheless, the conjugal properties are.1äwphï1.ñët

The case is hereby ordered remanded for further proceedings to make trial court, the latter to make the
necessary findings indicated and then render a decision on the basis of said findings in accordance with our
decision. No costs.

In compliance with the above endorsement, the trial court, after submission by the parties of their respective
memoranda, there being already sufficient evidence in the record rendered judgment declaring the property covered
by TCT No. 57626 as paraphernal. Hence, this appeal.

The facts upon which trial court predicated its conclusion that the realty in question is paraphernal are as follows:

For the reason that it established, without contradiction in the records that the spouses Ramon Katigbak and Evelina
Kalaw were married in 1938 (tsn, p. 20, hearing of Jan. 31, 1956) and neither of them had brought properties unto the
marriage that Ramon's occupation was that of Asst. Atty. of the Bank of the Phil. Islands wherein his monthly salary
P200.00 (id); that the property under TCT No. 57626 was registered in the name of "Evelina Kalaw-Katigbak, married to
Ramon Katigbak" on December 6, 1939, only two years after marriage and the property was and is in Calle Evangelista,
which was and is a business district; the Court, not withstanding the presumption that all properties acquired during the
marriage are conjugal, is led to believe that, as Evelina declares, her mother Pura Villanueva was the one that had
bought property for her and had placed it only in her name as the practice of her mother; that is, buying properties
placing them directly in the names of her children; and this is recognized by Article 1448; and the Court is all the more
led to the conclusion when it sees that Ramon Katigbak, in the same year 1939, that is, long before the spouses had
come to the parting of ways, made a manifestation that he had no interest in the properties —

Ramon Katigbak, the husband of the vendor signed this document only for the purpose of assisting his wife but he has no
interest in the property.

(Sgd.) Ramon L. Katigbak

(Exh. 5-a, p. 189, Record)

As this case is before Us now, therefore, the issue is whether or not the above findings warrant a rejection of the
presumption that the property disputed, for the reason that it was acquired during the marriage, is conjugal.

We find for the appellee.

There is no denying that all properties acquired during the marriage are, by law, presumed conjugal. (Art. 160, Civil
Code) The presumption, however, is not conclusive but merely rebuttable, for the same law is un equivocal that it exists
only "unless it be proved that it (the property) belongs exclusively to the husband or the wife." And, examining the
records and evidence in this suit, We hold that this is a case where the presumption has been sufficiently and
convincingly disproven.

The facts recited by the trial judge in explanation of his view that the property in dispute is paraphernal despite its having
been acquired during coverture, impress Us as adequate and conclusive. As a matter of fact, the factors he took into
account in rejecting the presumption, on the whole, tally with Our own views in the cases of Casiano v. Samaniego, 30
Phil. 135 and Coingco v. Flores, 82 Phil. 284.

In the Casiano case, the deeds to the property in question were in the name of the defendant who testified that they
were "purchased by her mother for herself" and that the purchase price was paid with money furnished by her mother.
On the foregoing, the trial judge rendered judgment in favor of the defendant, and declared the real properties to be
paraphernal. On appeal to this Court, declaring the ruling as essentially factual, We said:
 We do not question the correctness of the doctrine contended for, but we think it is sufficient to say that the
legal presumption established by article 1407 of the Civil Code has been overcame by the evidence of record.
There is nothing in the record which would justify us in disturbing the findings, of the trial judge as to the
credibility of the witnesses called by the defense, and if we believe the defendant herself there can be no
doubt the land in question was purchased for the wife with her own separate funds.

It should be further noted that the husband in the aforecited case, apart from relying on the presumption established by
the Civil Code, sought to show the conjugal nature of the disputed property by presenting a number of documentary
evidence. He exhibited, for instance, "certified copies of reports on file in the City Assessor's Office showing that the land
was assessed in his name; a certified copy of an inspector's report in which the name of the husband appears as the
owner; and, a tax declaration made in November, 1905, relating to the property in dispute, in the name of the husband."
Yet, even then, this Court declined to give effect to the presumption as the wife's evidence to the contrary were more
preponderant. In the present case, on the other hand, We note that other than invoking the presumption, the burden of
denying the evidence so presented was shifted to the appellant. In this latter task, the appellant failed completely.

Again, in the Coingco case, We ruled:

The second question raised in the motion for reconsideration is, whether the presumption that the properties in
litigation are conjugal properties because they were acquired during the coverture may be sufficiently
rebutted by any one of the following facts: (1) the titles to them are in the name of wife alone; (2) that the
husband gave his marital consent to their being mortgaged by the wife; (3) that the wife financially able to buy
those properties. While it is true that each one of them, taken separately, may not be sufficient to overcome
the above-quoted presumption established by Art. 14 of the Civil Code, it is nonetheless true that all of them
taken together, with all the other facts and circumstances established by the evidence, might be, and were,
considered by the lower court as sufficient to rebut the same presumption.

In the case before Us now for review, the deed to the disputed land is in the name of the wife. At the time of its
purchase, the property was already of such substantial value as admittedly, the husband, by himself could not have
afforded to buy, considering that singular source of income then was his P200.00 a month salary from a Manila Bank. As
in the Casiano case, supra, the defendant herein testified, and was believe by the trial court, that the purchase price
was furnish by her mother so she could buy the property for herself. Furthermore, it was established during the trial that it
was a practice of defendant's parents to so provide their children with money to purchase realties for themselves.

These facts, quite obviously, more than measure up to the circumstances obtaining in the two cases previous cited
wherein We held the conjugal presumption to have been rebutted.

IN VIEW OF THE FOREGOING, the judgment of the lower Court declaring the property covered by TCT No. 57626 of the
Register of Deeds of Manila as paraphernal is hereby affirmed, with costs against the appellants.

Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Paredes and Makalintal, JJ., concur.
Padilla, Bautista Angelo and Dizon, JJ., took no part.

EN BANC

[G.R. No. 57257. March 5, 1984.]

ILUMINADA PONCE BERCILES, ILONA BERCILES ALVAREZ, ELLERY P. BERCILES, ENGLAND P. BERCILES and IONE P.
BERCILES, Petitioners, v. GOVERNMENT SERVICE INSURANCE SYSTEM, PASCUAL VOLTAIRE BERCILES, MARIA LUISA BERCILES
VILLAREAL, MERCY BERCILES PATACSIL and RHODA BERCILES, Respondents.

[Adm. Matter No. 1337-Ret. March 5, 1984.]

RE: CLAIM OF THE HEIRS OF THE LATE PASCUAL G. BERCILES, Former District Judge of the Court of First Instance of Cebu,
 Cebu City, FOR THE UNPAID SALARY, MONEY VALUE OF TERMINAL LEAVE and REPRESENTATION AND TRANSPORTATION
ALLOWANCES OF THE DECEASED JUDGE.

[Adm. Matter No. 10468-CFI. March 5, 1984.]

RE: TERMINAL LEAVE PAY, UNPAID SALARY AND ALLOWANCE OF THE LATE CFI JUDGE PASCUAL G. BERCILES: FLOR
FUENTEBELLA AND HER FOUR CHILDREN, ALL SURNAMED BERCILES, Petitioners, v. ILUMINADA PONCE AND HER FOUR
CHILDREN, ALL SURNAMED BERCILES, Respondents.

Ramon M. Durano & Associates, for Petitioners.

Luzel D. Demasu-ay and Nicolas Sonalan for Pascual Voltaire, Et. Al. private respondents in 57257.

SYLLABUS

1. CIVIL LAW; PERSONS; PATERNITY AND FILIATION; PROOF OF FILIATION; BIRTH CERTIFICATE, MUST BE SIGNED BY THE
FATHER. — The evidence considered by the Committee on Claims Settlement as basis of its finding that Pascual Voltaire
Berciles is an acknowledged natural child of the late Judge Pascual Berciles is the birth certificate of said Pascual
Voltaire Berciles marked Exh. "6." We have examined carefully this birth certificate and We find that the same is not
signed by either the father or the mother; We find no participation or intervention whatsoever therein by the alleged
father, Judge Pascual Berciles. Under our jurisprudence, if the alleged father did not intervene in the birth certificate, the
putting of his name by the mother or doctor or registrar is null and void. Such registration would not be evidence of
paternity. (Joaquin P. Roces Et. Al. v. Local Civil Registrar of Manila, 102 Phil. 1050). The mere certificate by the registrar
without the signature of the father is not proof of voluntary acknowledgment on his part (Dayrit v. Piccio, 92 Phil. 729). A
birth certificate does not constitute recognition in a public instrument. (Pareja v. Pareja, Et Al., 95 Phil. 167). A birth
certificate, to evidence acknowledgment, must, under Section 5 of Act 3753, bear the signature under oath of the
acknowledging parent or parents. (Vidaurrazaga v. Court of Appeals and Francisco Ruiz, 91 Phil. 492).

2. ID.; ID.; ID.; ID.; BAPTISMAL CERTIFICATE, NOT PROOF OF PATERNITY. — As to the baptismal certificate, Exh. "7-A", the rule
is that although the baptismal record of a natural child describes her as a child of the decedent, yet, if in the
preparation of the record the decedent had no intervention, the baptismal record cannot be held to be a voluntary
recognition of parentage. (Canales v. Arrogante, Et Al., 91 Phil. 6). The reason for this rule that canonical records do not
constitute the authentic document prescribed by Arts. 115 and 117 to prove the legitimate filiation of a child is that such
canonical record is simply proof of the only act to which the priest may certify by reason of his personal knowledge, an
act done by himself or in his presence, like the administration of the sacrament upon a day stated; it is no proof of the
declarations in the record with respect to the parentage of the child baptized, or of prior and distinct facts which require
separate and concrete evidence. (Adriano v. De Jesus, 23 Phil. 350).

3. ID.; ID.; ID.; ID.; TYPEWRITTEN LETTER OF THE DECEDENT FATHER DISCLAIMING THE EXISTENCE OF HIS OTHER FAMILY, NOT
AN AUTHENTIC WRITING. — We also agree with the finding of the Committee that" (t)he letters written by Judge Berciles
to her daughters with Flor Fuentebella especially the one sent to daughter Mercy Berciles (Exh. "22") wherein he
vigorously affirmed that it’s only her mother, Flor Fuentebella, and no other woman who was recognized as his wife and
loved by her parents deserve scant consideration. Pascual Berciles could not be expected to admit the existence of his
other family. This would be disastrous to his efforts at preventing one family from knowing the other." Not only do they
deserve scant consideration but also, there is jurisprudence that a typewritten letter signed by the father is not an
authentic writing. (Decision of the Supreme Court of Spain of Feb. 27, 1923 and Dec. 7, 1927 cited in 3 Castan, 6th ed.,
25; see Caguioa, Comments and Cases on Civil Law, Vol. I, p. 379).

4. ID.; ID.; ID.; ILLEGITIMATE CHILD; RIGHT TO SUPPORT REQUIRES RECOGNITION. — Under the law, Article 287, New Civil
Code, illegitimate children other than natural in accordance with Art. 269 are entitled to support and such successional
rights as are granted in the Code, but for this Article to be applicable, there must be admission or recognition of the
paternity of the illegitimate child (Paterno, Et. Al. v. Paterno, 20 SCRA 585, citing Noble v. Noble, G.R. No. L-17742, Dec.
17, 1966, 18 SCRA 1104; Paulino v. Paulino, G.R. No. L-15091, Dec. 28, 1961, 113 Phil. 697). Article 887, N.C.C., defining who
are compulsory heirs, is clear and specific that" (i)n all cases of illegitimate children, their filiation must be duly
proved."cralaw virtua1aw library

5. CIVIL LAW; SUCCESSION; INTESTATE SUCCESSION; SHARE OF THE SURVIVING SPOUSE IS EQUAL TO THE SHARE OF EACH OF
THE CHILDREN. — According to Article 996 of the New Civil Code which provides that "If a widow or widower and
legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of
the children," and Article 980 which provides that "The children of the deceased shall always inherit from him in their own
right, dividing the inheritance in equal shares," the retirement benefits shall be distributed equally to the five (5) heirs:
Iluminada Ponce Berciles, Ilona Berciles Alvarez, Ellery P. Berciles, England P. Berciles and Ione P. Berciles.

6. ID.; PERSONS AND FAMILY RELATIONS; PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE; CONJUGAL PARTNERSHIP OF
GAINS; RETIREMENT PREMIUMS PRESUMED CONJUGAL. — As to the retirement premiums totalling P9,700.00, the same is
presumed conjugal property, there being no proof that the premiums were paid from the exclusive funds of the
deceased Judge (Article 160, New Civil Code). Such being the case, one-half of the amount belongs to the wife as her
property in the conjugal partnership and the other half shall go to the estate of the deceased Judge which shall in turn
be distributed to his legal heirs.

7. REMEDIAL LAW; CIVIL ACTIONS; APPEAL FROM A DECISION OF THE GSIS; P.D. 1146 (REVISED GOVERNMENT SERVICE
INSURANCE ACT OF 1977) APPLICABLE TO DISPUTES ARISING UNDER THE JUDICIARY RETIREMENT ACT; CASE AT BAR —
Section 25 of P.D. 1146 specifically laying down the procedure whereby the party aggrieved by the decision of the GSIS
may appeal the same to the Court of Appeals, now the Intermediate Appellate Court, on questions of law and facts
following the procedures for appeals from the Court of First Instance (now Regional Trial Court) to the I.A.C. and if the
appeal is only on questions of law, the same shall be brought directly to the Supreme Court on certiorari, which
abbreviated procedure was designed to facilitate, and not to prolong, the payment of benefits, may be invoked by the
petitioners. That P.D. 1146, Sec. 35 is applicable to disputes arising under the Judiciary Retirement Act and all other acts
administered by the GSIS may also be construed from Sec. 23 of the Decree which provides that the "System shall
prescribe such rules and regulations to facilitate payment of benefits, proceeds and claims under the Act and any other
laws administered by the System."

DECISION

GUERRERO, J.:

The disposition made by respondent GSIS of the retirement benefits under Republic Act 910, as amended, due the heirs
of the late Judge of Court of First Instance Pascual G. Berciles whereby the GSIS considered said retirement benefits in
the total amount of P311,460.00 as partly conjugal and partly exclusive in nature and thus divided the same in the
following proportion:chanrob1es virtual 1aw library

77

—— for the surviving spouse, Iluminada Ponce Berciles;.

134

10

—— each for the legitimate children, Ilona Berciles Alvarez,

134 Ellery P. Berciles, England P. Berciles and Ione P. Berciles;.

—— for the-acknowledged natural child Pascual Voltaire Berciles;

134

—— each for the illegitimate children, namely, Maria Luisa Berciles,

134 Mercy Berciles and Rhoda Berciles.

is erroneous in view of the rule We laid down in Re: Claims for Benefits of the Heirs of the Late Mario V. Chanliongco, Et
Al., 79 SCRA 364; Vda. de Consuegra, Et. Al. v. GSIS, 37 SCRA 315 that retirement benefits shall accrue to his estate and
will be distributed among his legal heirs in accordance with the law on intestate succession, as in the case of a life
insurance if no beneficiary is named in the insurance policy, and that the money value of the unused vacation and sick
leave, and unpaid salary form part of the conjugal estate of the married employee.

Moreover, We find grave abuse of discretion on the part of respondent GSIS, acting through its Board of Trustees, in
resolving under its Resolution No. 431 to approve the recommendation of the Committee on Claims Settlement that
private respondent Pascual Voltaire Berciles is an acknowledged natural child and that the other private respondents
Maria Luisa Berciles Villareal, Mercy Berciles Patacsil and Rhoda Berciles are illegitimate children of the late Judge
Pascual G. Berciles in the absence of substantial evidence through competent and admissible proof of
acknowledgment by and filiation with said deceased parent as required under the law.

Judge Pascual G. Berciles of the Court of First Instance of Cebu died in office on August 21, 1979 at the age of sixty-six
years, death caused by "cardiac arrest due to cerebral vascular accident." Having served the government for more
than thirty-four (34) years, twenty-six (26) years in the judiciary, the late Judge Berciles was eligible for retirement under
Republic Act No. 910, as amended by Republic Act No. 5095 so that his heirs were entitled to survivors benefits
amounting to P311,460.00 under Section 2 of said Act. Other benefits accruing to the heirs of the deceased consist of the
unpaid salary, the money value of his terminal leave and representation and transportation allowances, computed at
P60,817.52, all of which are to be paid by this Court as the deceased’s last employer, and the return of retirement
premiums paid by the retiree in the amount of P9,700.00 to be paid by the GSIS. Such benefits are now being claimed by
two families, both of whom claim to be the deceased’s lawful heirs.

Iluminada Ponce of Tagudin, Ilocos Sur, and her four children, Ilona, Ellery, England and Ione, filed with Us an application
for survivors benefits under Republic Act 910, as amended by R.A. No. 5095 effective August 21, 1979 as the legal spouse
and legitimate children of the late Judge Pascual G. Berciles, duly supported by the required documents.

The other set of claimants are Flor Fuentebella, and her four children, namely Pascual Voltaire, Maria Luisa, Mercy and
Rhoda, all surnamed Berciles, the latter filing her family’s claim by means of a letter dated November 10, 1979 and
supporting documents were also submitted with their claim. The matter of these two (2) conflicting claims was first
docketed before this Court as Administrative Matter No. 1337-Ret. and in a Resolution of the Court En Banc dated April
10, 1980, We resolved to APPROVE the application of Ms. Iluminada P. Berciles for survivor’s benefits under the above-
cited law, effective August 21, 1979, subject to (a) the proper determination of the rightful beneficiaries and their
corresponding shares in accordance with law, it appearing that there are two claimant families thereto, and (b) the
usual clearance requirements.

In pursuance to the foregoing resolution, the Office of the Court Administrator recommended in a memorandum report
dated November 11, 1980 that (a) the transmittal to the GSIS of the retirement papers of the late Judge Pascual Berciles
be held in abeyance until the payment to the rightful heirs of the unpaid salary, money value of terminal leave and
representation and transportation allowances of the deceased Judge, and (b) that an investigator be designated to
determine the respective claims of the supposed heirs of the late Judge. The aforesaid recommendation was approved
by the Chief Justice on November 27, 1980 and Atty. Renato G. Quilala of the Office of the Court Administrator was
designated on December 15, 1980 as Court Investigator to help determine the rightful beneficiaries of the subject
benefits.

Thereupon, Atty. Quilala sent on December 22, 1980 to all the alleged heirs a notice of hearing set for January 26, 1981
and the following days thereafter for the reception of evidence in support of their respective claims. None of the parties,
however, appeared. Records from the Retirement Section, Administrative Services Office of this Court show that the
claim of Iluminada Ponce and her children was already approved by the GSIS as of October 9, 1980 and that in fact, the
five years lump sum equivalent to P301,760.00 (gratuity less the retirement premiums paid under R.A. 910, as amended,
which was to be returned to the retiree by the GSIS) under Check No. 04824308 as retirement gratuity of the deceased
had been remitted by the Budget and Finance Office of this Court to the GSIS for payment to the heir-beneficiaries on
October 15, 1980.

On February 4, 1981, Atty. Cecilia T. Berciles, daughter-in-law of the deceased Judge, and Mrs. Iluminada Ponce Berciles
submitted to the Court Investigator additional documents in support of the claim of Mrs. Iluminada P. Berciles and her
children, consisting of (A) Evaluation Report, as approved by the GSIS, under P.D No. 626 with the following
recommendations, to wit:jgc:chanrobles.com.ph

"1. It is recommended that the death benefits under PD 626 due to the death of the deceased of a compensable
contingency, be awarded to Iluminada Ponce having established her marriage to the deceased and had been living
with the deceased up to the time of the latter’s death.

"2. In the same light, the claim of Flor Fuentebella be denied for two reasons: (a) She has not clearly established her
legitimate relationship with the deceased and, (b) She was not living with the deceased at the time of his death as
required by the rules and regulation of P.D. 626, as amended. (Rule XIV, Section 1(b), No. 1 the legitimate spouse living
with the employee at the time of employee’s death . . .)."cralaw virtua1aw library

and (B) Certified Xerox copies of the late Judge Berciles’ Income Tax Returns for 1975, 1976 and 1979 where he listed Mrs.
Iluminada P. Berciles as his wife or spouse; also submitted in addition to the foregoing documents, is a certified xerox
copy of the application for optional insurance filed with the GSIS by the late Judge Berciles, dated November 19, 1956,
wherein the deceased listed as his beneficiaries therein the following persons:.

ILONA BERCILES — 11 years old — daughter;

ELLERY BERCILES — 10 years old — son;

ENGLAND BERCILES — 8 years old — son;

IONE BERCILES — 1 year old - daughter; and

ILUMINADA P. BERCILES — 33 years old — wife.

The above documents were noted in the Memorandum to the Chief Justice dated March 11, 1981 by the Deputy Court
Administrator. And notwithstanding the telegram sent to them on February 5, 1981 requiring them to submit their
evidence of filiation with the deceased Judge Berciles, no such evidence was submitted by the Fuentebellas.
Accordingly, it was recommended in said Memorandum that "the alleged marital relationship between the late Judge
Berciles and Ms. Flor Fuentebella Berciles has no leg to stand on. It should be stated in this connection that there was no
marriage contract submitted by Miss Rhoda F. Berciles in her claim-letter, dated October 29, 1979, nor was there any
certification from the Local Civil Registrar certifying to the fact that the deceased Judge was actually married to Miss Flor
Fuentebella. It can, therefore, be assumed that Miss Flor Fuentebella was not legally married to the late Judge Pascual
Berciles. Necessarily, it follows that the innocent children that came into being out of the alleged marital union of the
deceased Judge and Ms. Flor Fuentebella Berciles are spurious and have no established family filiation with the said
Judge. We can, therefore, rule that the attached papers/documents in the letter of Miss Rhoda F. Berciles, dated
October 29, 1979 relative to their claim as the surviving heirs of the late CFI Judge Pascual Berciles are mere scrap of
papers unworthy of credence, there being no substantiating evidence to corroborate the same, especially so in the
face of the adverse claim of Mrs. Iluminada Ponce Berciles as the rightful surviving spouse and with whom the deceased
Judge was living with at the time of his untimely demise."cralaw virtua1aw library

The same memorandum, therefore, recommended that since" (a)ll the documents presented amply corroborate and
fully substantiate what were previously submitted to the office by Mrs. Iluminada Ponce Berciles and her children. We
find, therefore, the evidence presented and submitted in favor of Mrs. Iluminada Ponce Berciles as sufficient to establish
the fact that she is the lawfully wedded wife of the deceased Judge Berciles. This finding is fully supported by the
certification issued by the Local Civil Registrar of Bocaue, Bulacan, dated August 24, 1977, attesting to the marriage
between the deceased Judge and Iluminada Ponce which took place on January 20, 1941 before the then Justice of
the Peace of the place. This being the case, the four (4) children (ILONA, ELLERY, ENGLAND and IONE) begotten by the
said spouses during their marital union are all legitimate, . . . that the unpaid salary, money value of terminal leave and
representation and transportation allowances of the late District Judge Pascual G. Berciles be awarded and
correspondingly distributed to his lawful heirs, namely, MRS. ILUMINADA PONCE BERCILES (surviving spouse); MRS. ILONA
BERCILES ALVAREZ (daughter); ELLERY BERCILES (son); ENGLAND P. BERCILES (son); and IONE P. BERCILES
(daughter)."cralaw virtua1aw library

As recommended in the said memorandum. We approved the following Resolution dated March 17,
1981:jgc:chanrobles.com.ph

"Re: Claim of the heirs of the late Pascual G. Berciles, former District Judge of the Court of First Instance of Cebu, Cebu
City, for the unpaid salary, money value of terminal leave and representation and transportation allowances of the
deceased Judge. — Considering the memorandum of Deputy Court Administrator Leo D. Medialdea, recommending
that the unpaid salary, money value of terminal leave and representation and transportation allowances of the late
District Judge Pascual G. Berciles be awarded and correspondingly distributed to his lawful heirs, the Court Resolved to
AWARD and CORRESPONDINGLY DISTRIBUTE aforesaid benefits to his lawful heirs, namely: Mrs. Iluminada Ponce Berciles,
surviving spouse; Mrs. Ilona Berciles Alvarez, daughter; Ellery Berciles, son; England P. Berciles, son; and Ione P. Berciles,
daughter."cralaw virtua1aw library

Pursuant to the above Resolution, the amount of P60,817.52 was paid to Iluminada Ponce and her four children on April
2, 1981.

On April 23, 1981, Flor Fuentebella and her four children, Pascual Voltaire, Ma. Luisa, Mercy, and Rhoda, through counsel,
filed a Motion for Reconsideration praying that the resolution of March 17, 1981 be set aside; that they be allowed to
present their evidence; and that, after due hearing, the benefits be awarded and distributed to them as lawful heirs. In
support of their motion, the movants alleged that they did not receive the Resolution of March 17, 1981 nor the letter or
notice of hearing sent by Atty. Quilala on December 22, 1980, the same having been sent to their old address at 6069-B,
Palma St., Makati; that all of the movants have left the Philippines to reside in the United States of America and that the
aunts and cousins residing at the old address moved to a new address at GSIS Village, Project 8, Quezon City; that
before they moved to the new address, these relatives left a forwarding address at the Makati Post Office; and, that
they did not receive the aforementioned mail. The fact of non-receipt was confirmed by one Domingo P. Raiz, letter
carrier of the Post Office of Makati, who executed an affidavit to that effect, which affidavit We admitted in Our
resolution of July 9, 1981. The matter of the Fuentebella Motion for Reconsideration is docketed before Us as
Administrative Matter No. 10468-CFI.

Acting on the aforesaid motion for reconsideration, We adopted the following resolution dated July 2, 1981, to
wit:jgc:chanrobles.com.ph
"Administrative Matter No. 10468-CFI — Re Terminal Leave Pay, Unpaid Salary and Allowance of the late CFI Judge
Pascual G. Berciles: Flor Fuentebella and her four children, all surnamed Berciles v. Iluminada Ponce and her four
children, all surnamed Berciles. - Judge Pascual G. Berciles of the Court of First Instance of Cebu died in office on August
21, 1979 at the age of sixty-six years. He was a native of Lapuz Norte, La Paz, Iloilo City.

Iluminada Ponce of Tagudin, Ilocos Sur, who claimed to be the decedent’s widow, and her four children, Ilona, Ellery,
England and Ione, filed a claim dated May 2, 1980 for survivors’ benefits. Iluminada executed an affidavit of heir ship
dated September 19, 1979.

On the other hand, Rhoda F. Berciles, 6069-B Palma Street, Makati, Rizal in a verified statement dated November 19,
1979, claimed that the deceased judge was survived by Flor Fuentebella, as widow, and their four children named
Voltaire, Luisa, Mercy and Rhoda. Judge Berciles allegedly married Flor Fuentebella on March 28, 1937 in Iloilo City
before City Judge Vicente Mapa.

Rhoda, in a letter to the Judicial Administrator dated October 29, 1979, requested the Judicial Administrator to hold the
processing of the claim filed by Iluminada Ponce and her four children pending the filing of Rhoda’s formal complaint.

Iluminada Ponce claimed that she was married to Judge Berciles at Bocaue, Bulacan on January 20, 1941.

This Court in its resolution of April 10, 1980 approved the grant of survivors’ benefits subject to the proper determination of
the rightful beneficiaries and their corresponding shares in accordance with law, it appearing that there are two
claimant families. (Adm. Matter No. 1337 - Ret. re Gratuity of Judge Berciles).

Pursuant to that resolution, the five-year lump sum gratuity amounting to P301,760 due to the heirs of Judge Berciles was
remitted to the GSIS on October 15, 1980. The said amount up to this time has not yet been distributed in view of the
controversy between the families of Flor Fuentebella and Iluminada Ponce as to who are the legal heirs of Judge
Berciles.

In a letter dated October 9, 1980, Ellery P. Berciles requested the Chief Justice for the payment to Iluminada Ponce of
the terminal leave pay of Judge Berciles, which, together with his unpaid salary and allowance, amounted to
P74,884.52, or to P60,817.52 after deducting the withholding tax of P14,067.

Upon the recommendation of Court Administrator Lorenzo Relova and Deputy Court Administrator Leo D. Medialdea,
the said amount of P60,817.52 was paid to Iluminada Ponce and her four children on April 2, 1981 pursuant to this Court’s
resolution of March 17, 1981. Payment was made to them on the assumption that they are the only legal heirs of Judge
Berciles.

Atty. Luzel D. Demasu-ay, counsel for Flor Fuentebella and her four children, in his motion for reconsideration dated April
21, 1981, alleged that his clients were not heard before that payment was made. He said that the payment was being
capitalized upon by Iluminada Ponce and her children in the GSIS as the basis for the payment to them of the retirement
gratuity of Judge Berciles.

Considering that the issue as to who are the legal heirs of Judge Berciles is still being litigated in the Social Security
Services of the GSIS (according to Atty. Felicisimo Fernandez of that unit), and the survivors’ benefits have not yet been
paid to Iluminada Ponce and her children, and considering that the children of Flor Fuentebella, even as illegitimate
children of Judge Berciles, would be entitled to a share in his terminal leave pay, allowance and unpaid salary (In re
Chanliongco, Adm. Matter No. 190-Ret., October 18, 1977, 79 SCRA 364), the Court Resolved (1) to require Iluminada
Ponce and her children, c/o Ione P. Berciles, 9 Jersey Street, Toro Hills, Project 8, Quezon City, to COMMENT on the said
motion for reconsideration within ten (10) days from notice and (2) to direct Atty. Juan P. Enriquez, Jr., Deputy Clerk of
Court and Chief of the Administrative Division, to advise the GSIS that, should Flor Fuentebella and her children be
ultimately adjudged as legal heirs of Judge Berciles, their share in the sum of P60,817.50 (terminal leave pay, etc.) would
be taken from the survivors’ benefits amounting to P301,760, already remitted to the GSIS and, consequently, the shares
of Iluminada Ponce and her children in the said gratuity would answer for the portions due to Flor Fuentebella, Et. Al. in
the terminal leave pay, etc., if adjudged entitled thereto.

A copy of this resolution should be furnished the GSIS."cralaw virtua1aw library

In a subsequent Resolution dated July 21, 1981, We noted the Comment filed by Iluminada Ponce and in the same
resolution, clarified Our resolution of April 10, 1980 in Administrative Matter No. 1337-Ret., to wit:jgc:chanrobles.com.ph

"As may be seen from this Court’s resolution of April 10, 1980 in Administrative Matter No. 1337-Ret. regarding the gratuity
of Judge Berciles, this Court has not finally and conclusively decided that the children of Flor Fuentebella are not the
heirs of the late Judge Berciles.

The question of whether the four children of Flor Fuentebella should share in the gratuity amounting to P301,760.00 is still
being litigated in the GSIS. Should it be finally decided by the GSIS that the children of Flor Fuentebella are entitled to
share in that gratuity or survivors’ benefits, then they are also entitled to share in the terminal leave pay, unpaid salary
and allowances and their share should be deducted from the shares in the said gratuity of Iluminada Ponce and her four
children.

This incident should, therefore, await the outcome of a final decision of competent authority on who are the heirs of
Judge Berciles, as contemplated in this Court’s resolution of April 10, 1980 in Administrative Matter No. 1337-Ret."cralaw
virtua1aw library

In the meantime, pursuant to Our Resolution of April 10, 1980, the papers were transmitted to the GSIS under the
advertisement that the approval of the application of Iluminada Ponce was subject to the proper determination of the
rightful beneficiaries.

The records of this Court, as adverted to earlier, disclose that on October 9, 1980, the GSIS approved the claim of
Iluminada Ponce and so, the five (5) years lump sum retirement gratuity of the deceased Judge, in the net amount of
P301,760.00, was remitted by our Budget and Finance Office to the GSIS on October 15, 1980 under Check No. 04824308
for payment to Iluminada and her four children. The GSIS, however, in its Memorandum dated June 25, 1982 in G.R. No.
57257 denied having approved the claim of Iluminada Ponce Berciles and her children saying that no such approval
was made. The records in G.R. No. 57257 disclose Annex "A" attached to the petition on pp. 14-15 of the Rollo the
following evaluation report evaluated by Carmelo C. Garcia, Legal Evaluator; reviewed by Lorenzo Sanchez, Legal
Evaluator; approved by Felicisimo A. Fernandez, Manager, Survivorship Benefits Dept.; and confirmed by Juanito S.
Santamaria, Vice President, SSS-II, to wit:jgc:chanrobles.com.ph

"PASCUAL G. BERCILES ANNEX "A"

Judge, CFI, Branch XV, Cebu City

Died — August 21, 1979, Cause: CVA.

Evaluation on compensability under PD 626, as amended.

I — Medical Evaluation —

Medically compensable for payment of such benefits as per Medical evaluation dated December 24, 1979.

II — Legal Evaluation —

A. Documents Submitted:chanrob1es virtual 1aw library

It appears that there are two claimants - both surviving spouse namely FLOR FUENTEBELLA and ILUMINADA PONCE, who
alleged to have been married to the deceased.

(1.) Documents submitted by Flor Fuentebella:chanrob1es virtual 1aw library

(a) Cert. from Census and Statistics of no record of marriage of Flor Fuentebella and Pascual Berciles alleged to have
been solemnized on March 28, 1937.

(b) Affidavit of Pascual Berciles dated May 22, 1972 that he and Flor were married by the late Judge J. Vicente Mapa.

(c) Affidavit of Coronacion Berciles, sister-in-law of Pascual Berciles as to the marriage of Flor and Pascual.

(d) Affidavit of Judge Rafael Lavente as to his being invited in the wedding of Flor and Pascual.

(e) Birth certificate of Pascual Voltaire Berciles - Aug. 30, 1938; Maria Luisa, June 27, 1943; Mercy, July 23, 1947; Rhoda,
Feb. 7, 1949.

(f) Xerox copy of Income Tax Return for 1972 of Pascual showing Flor as the wife.

(2) Documents submitted by Iluminada Ponce —

(a) Marriage certificate from Bocaue, Bulacan, showing marriage of Iluminada and Paquito Berciles on January 20, 1941.

(b) Birth certificate of Ilona — May 15, 1945; Ellery - Sept. 21, 1946; England — Nov. 14, 1948; Ione Ainee — Aug. 25, 1955.

(c) GSIS IMI on C-20297 dated Dec. 1, 1956 of Pascual Berciles.

(d) IMI on 0-26030 dated Jan. 1, 1957

(e) Affidavit of Pascual Berciles dated April 21, 1978 mentioning Ione and Iluminada as his daughter and wife
respectively.

(f) Affidavit of four (4) relatives of Pascual as to their personal knowledge of the marriage of Iluminada and Pascual.

(g) Affidavit of Santiago Medina (former Fiscal), denying of having notarized an affidavit of Pascual the latter’s marriage
to Flor.

(3.) Clarifying documents—

(a) Affidavit dated Feb. 14, 1980, of City Judge Rafael Lavente rectifying his previous affidavit that he was not present in
the wedding of Flor and Pascual.

(b) Certification dated Feb. 4, 1980, from Ministry of Justice that there is no record of one J. Mapa as Municipal Judge of
Iloilo from 1935 to 1945.

B. Findings —

After a careful study and appraisal of the documents above enumerated we cannot find merit on the claim of Flor
Fuentebella because.

2. Flor has been living abroad since 1972.

3. Iluminada and the deceased were living together at the time of the latter’s death (August 21, 1979).

Recommendation —

1. It is recommended that the death benefits under PD 626 due to the death of the deceased of a compensable
contingency, be awarded to Iluminada Ponce for having established her marriage to the deceased and had been
living with the deceased up to the time of the latter’s death.

2. In the same light, the claim of Flor Fuentebella be denied for two reasons:chanrob1es virtual 1aw library

(a) She has not clearly established her legitimate relationship with the deceased and,

(b) She was not living with the deceased at the time of his death as required by the rules and regulation of PD 626, as
amended. (Rule XIV, Section 1(b), No. 1 the legitimate spouse living with the employee at the time of employee’s death
. . .).

EVALUATED BY: REVIEWED BY:chanrob1es virtual 1aw library

S/T CARMELO C. GARCIA S/T LORENZO SANCHEZ

Legal Evaluator Legal Evaluator

APPROVED:chanrob1es virtual 1aw library

S/T FELICISIMO A. FERNANDEZ

Manager, Survivorship Benefits Dept.

CONFIRMED:chanrob1es virtual 1aw library

S/T JUANITO A. SANTAMARIA

Vice-President, SSS — II"

In denying the above approval, the GSIS in its Memorandum claims that the matter was elevated sometime in October
1980 to the Committee on Claims Settlement for the proper determination of the legal heirs of the late Judge Berciles.
The two sets of claimants having failed to reach an amicable settlement, the GSIS advised the parties to submit the
necessary documents to prove their relationship or filiation to the deceased.

Thereafter, based on their respective documents and proofs of filiation, the Board of Trustees approved the findings and
recommendations of the Committee on Claims Settlement under its Resolution No. 431 adopted on June 3, 1981, the
dispositive portion of which states:jgc:chanrobles.com.ph
"After due deliberation, considering the foregoing, the Board RESOLVED TO APPROVE the recommendation of the
Committee on Claims Settlement that the retirement benefits under R.A. 910, as amended, due the late Judge Pascual
G. Berciles in the total amount of P311,460.00 which is partly conjugal and partly exclusive in nature, be divided in the
following proportion:chanrob1es virtual 1aw library

77

—— for the surviving spouse, Iluminada Ponce Berciles;

134

10

—— each for the legitimate children, Ilona Berciles Alvarez,

134 Ellery P. Berciles, England P. Berciles and Ione P.

Berciles;

—— for the acknowledged natural child Pascual Voltaire

134 Berciles;

—— each for the illegitimate children, namely, Maria Luisa

134 Berciles, Mercy Berciles, and Rhoda Berciles. (Arts. 148

(2), 153 (2), 895, 983, 999, New Civil Code).

x x x"

Only the above dispositive portion of the aforementioned Resolution was communicated to Iluminada Ponce Berciles by
the GSIS in the letter signed by Felicisimo A. Fernandez, Manager, Survivorship Benefits Department, in his letter dated
June 18, 1981 (Annex "D", Petition in G.R. No. 57257, Rollo, p. 22). Not satisfied with the disposition of their claim, Iluminada
Ponce Berciles and her four children now come to this Court on appeal by certiorari, citing Section 25 of Presidential
Decree No. 1146, otherwise known as the "Revised Government Service Insurance Act of 1977" which took effect on May
31, 1977, which appeal is docketed as G.R. No. 57257.

As prayed for in the petition, We issued a temporary restraining order on July 13, 1981 enjoining the respondents from
enforcing or executing the GSIS Board of Trustees Resolution No. 431 dated June 3, 1981 and also required the
respondents to file their respective Comments to the Petition. Only the private respondents filed their Comment.
Thereupon, acting on the merits of the pleadings filed, We resolved to give due course to the petition in Our Resolution of
April 14, 1981. Considering Our Resolution of July 21, 1981, the disposition of Administrative Matter No. 1337-Ret. and
Administrative Matter No. 10468-CFI rests on Our decision in the present petition.

The primary issue raised in the herein petition for certiorari is the validity of the GSIS decision contained in its Resolution
No. 431 finding private respondent Pascual Voltaire Berciles as an acknowledged natural child of the late Judge Pascual
G. Berciles and the other private respondents namely Maria Luisa Berciles Villareal, Mercy Berciles Patacsil and Rhoda
Berciles as illegitimate children of the deceased, and thus, upon this finding, disposed the retirement benefits in the
manner and proportion set forth in said resolution after considering said benefits as partly conjugal and partly exclusive.
Petitioners contend that on the basis of the documents and testimony submitted by private respondents, the conclusion
of respondent GSIS is erroneous and unfounded and that respondent GSIS erred grossly in its resolution. The correctness
of the legal conclusion drawn by the respondent GSIS or its appreciation of the undisputed state of facts obtaining in the
present controversy is thus squarely raised by petitioners.

We note that private respondents in their Comment dated July 27, 1981 to the petition herein, while pointing out that the
Supreme Court is not the proper forum for the original determination of the legal heirs of a deceased judge who is
covered by R.A. 910 as amended and that the determination of the question of heirship can be appropriately
considered only in our regular courts of justice where private respondents actually did file a Special Civil Action No.
13966 for "Mandamus with Prayer for a Restraining Order" in the Court of First Instance of Iloilo, Branch III, a copy of which
is attached to the Comment as Annex "A", raised the same issue of illegality as may be seen clearly in par. 8 of the
petition as follows:jgc:chanrobles.com.ph

"8. That clearly from the foregoing adjudication rendered by the respondent Board of Trustees, petitioner Flor Fuentebella
Berciles and her children were unlawfully excluded from their lawful right to the death benefit of the late Judge Pascual
G. Berciles as his only lawful heirs;"

And like the petitioners herein, private respondents contend that the GSIS patently and gravely abused its discretion in
denying the latter’s claim to the death benefits of the late Judge Pascual Berciles as the legal and lawful heirs as may
also be clearly seen in par. 10 of the Mandamus Petition in the aforementioned Civil Case No. 13966, which reads
thus:jgc:chanrobles.com.ph

"10. That in denying petitioners claim on the death benefit of the late Judge Pascual Berciles of whom petitioners are the
legal and lawful heirs and in neglecting and refusing to issue forthwith a resolution adjudicating the death benefit
amounting to P311,460.00 in favor of the petitioners as legal heirs, the respondent Board of Trustees of the GSIS patently
and gravely abused its discretion and unlawfully neglected the performance of an act which is specifically enjoined
upon it by Sec. 5 of R.A. 910, as amended by R.A. 1057, R.A. 1797, R.A. 2614, R.A. 4627 and R.A. 5095;

In other words, both families, raising grave abuse of discretion, question the legality of the GSIS Resolution based on the
same undisputed facts, the petitioners herein claiming they are the legal heirs, whereas, according to private
respondents, they are the ones legally entitled to the retirement benefits. The issue here then is one of law which the
contending parties concede in their respective pleadings and thus correctible by certiorari.

But to set the records straight, We quote hereunder the findings of the Committee on Claims Settlement which the GSIS
Board of Trustees adopted and approved under its Resolution No. 431:chanroblesvirtualawlibrary

"A brief summary of the evidence submitted by the contending parties appears necessary for the proper disposition of
this case. As proof of her marriage to Judge Pascual Berciles, claimant Iluminada Ponce Berciles submitted a certificate
of marriage (Exh. "A") indicating that she was married to one Paquito Berciles in Bocaue, Bulacan on January 20, 1941
before Judge Bonifacio Enriquez, Justice of the Peace of the said municipality. The Committee noted that the husband’s
name appearing in the certificate is ‘Paquito Berciles’ and not ‘Pascual Berciles’.

"The discrepancy was explained in the sworn statement of Atty. Fortunato A. Padilla (Exh. "R") and in his deposition dated
February 27, 1981 taken by Atty. Hilarion Palma, Branch Attorney of our GSIS Iloilo City Branch Office. In both documents,
Atty. Padilla, a high school classmate and college companion of the late Judge Berciles, stated that Pascual Gayta
Berciles, Paquito Berciles or Paking Berciles all refer to one and the same person who was the deceased Judge Pascual
G. Berciles. In the deposition of Concepcion M. Gonzales (Exh. "31-A") who was a witness for Flor Fuentebella, she also
declared that Pascual Berciles was called Paking or Paquito and that a brother Francisco was called Pako.

"Submitted also to the Committee by Iluminada Ponce are the birth certificates of her children: Ilona Berciles (Exh. "E");
Ellery Berciles (Exh. "C"); England Joseph Berciles (Exh. "D-1"); Aiene Berciles (Exh. "B"). The other documents submitted
such as the Information for Membership Insurance (Exh. "F" and Exh. "G"), Income Tax Returns for the years 1975 (Exh. "U")
and 1976 (Exh. "V"), individual sworn statements of persons who knew or were related to the deceased corroborate the
filial affinity of Iluminada Ponce and her children to the late Judge Berciles.

"Based on these documents, there is no question that Iluminada Ponce was married to Pascual Berciles, alias Paquito, on
January 20, 1941 at Bocaue, Bulacan. From this union, they begot the following children, namely: Ilona, Ellery, England
and Ione.

"The evidence for claimant Flor Fuentebella Berciles and her children may also be briefly described as follows: She claims
to have been married to the late Judge Pascual Berciles on March 28, 1937 in Iloilo City before Justice of the Peace Jose
Vicente Mapa. In other words, she professes to be the first wife of the deceased Judge. Flor Fuentebella was, however,
not able to present her marriage contract or certificate of marriage. Instead she submitted a certification of the Local
Civil Registrar of Iloilo City (Exh. "1") attesting to the loss or destruction of the records of marriage for the year 1944 and
previous years and another certification issued by the Office of Civil Registrar General of the National Census and
Statistics Office (Exh. "2") stating the non-availability of the record of marriage between Pascual Berciles and Flor
Fuentebella.

"In concrete support of her claim of marriage to the late Judge Berciles, Flor Fuentebella presented to the Committee
sworn statements of several persons. Of the several sworn statements, at least two or three deserve serious consideration.
The first is the one executed by Concepcion M. Gonzales (Exh. "31") of 46 South Mapa, Philam Homes, Quezon City, who
stated that she knew for a fact that Flor Fuentebella was married to Pascual Berciles in 1937 at Iloilo City. It was
represented to the Committee that she was present as a guest in the marriage ceremony. Due to importance of her
testimony, the Committee requested her actual presence in the hearing. However, due to her advanced age of 89
years and her other physical infirmity, her attendance at the hearing was dispensed with instead, the Committee
directed the Manager, Survivorship Department to secure her deposition on questions prepared in advance by the
Committee. In his report to the Committee, the Manager stated that the old lady is already blind, quite hard of hearing
and her memory already weak. In the Answers (Exh. "31-A") to the questions written by the Manager, Survivorship
Department, Concepcion Gonzales declared that she was present during the marriage ceremony of Pascual Berciles
and Flor Fuentebella which was held in the Municipal Hall of Iloilo City. She described the wedding as attended by only
the members of the family and that after the ceremony they went to the house of Pascual’s parents where a small party
was held.

"The Committee finds the testimony of Concepcion Gonzales quite deficient in important detail. Flor Fuentebella had not
been presented in person for the proper identification of the witness. Was the Flor Fuentebella who allegedly married
Pascual Berciles on March 28, 1937 the same Flor Fuentebella who is cited by Concepcion Gonzales? At any rate,
assuming that a confrontation did occur, Concepcion Gonzales would not be able to properly identify Flor Fuentebella,
by reason of her blindness.

"The other sworn statements which merit particular discussion are those executed by Coronacion Berciles (Exhs. "10 and
31") a sister-in-law of the late Judge Berciles. Coronacion was presented before the Committee as a witness for Flor
Fuentebella. In her testimony, she stated facts and circumstances about the marital relations between Pascual Berciles
and Flor Fuentebella. She declared that her husband was the younger brother of the late Judge Berciles; that even
before Pascual Berciles became a lawyer in 1938, he and Flor Fuentebella were introduced to her by her husband; that
after she was married to her husband, they lived together with the family of Pascual Berciles and his wife Flor
Fuentebella; that their two families had lived closely enough during the Japanese Occupation and even after. She
further stated that the immediate members of the family with whom the spouses Pascual Berciles and Flor Fuentebella
had lived before and during the war were his mother Evarista, his two aunts Luisa Berciles and Eusebia Gayta and a sister
Susana Berciles. These testimonial and other declarations were latter transcribed into a sworn statement which
Coronacion executed on December 5, 1980 and submitted to the Committee. (Exh. "32").

"At its best, Coronacion Berciles testified on the cohabitation as husband and wife of Pascual Berciles and Flor
Fuentebella. But cohabitation is not solid proof that a marriage had in fact taken place, especially in this case when
such marriage is contested. Coronacion could not state positively since she was not present in the alleged marriage
ceremony.

"The third sworn statement which deserves the Committee’s attention is the one executed by Judge Rafael Lavente,
Presiding Judge of Branch III, City Court of Iloilo, on February 14, 1980 (Exh. "N" for Iluminada Ponce, Exh. "35" for Flor
Fuentebella). In this document, Judge Lavente denied having been present in the wedding of Pascual Berciles and Flor
Fuentebella; although he declared that the ‘late Judge Berciles was married here in Iloilo City and that after his marriage
he left Iloilo City. xxx.’ (Exh. "35-A"), he did not state with whom Pascual Berciles was married.

"Of course the affidavit of Flor F. Berciles herself (Exh. "5") was submitted wherein she stated that she was the legal wife of
the late Pascual G. Berciles and that she was married to him in Iloilo City on March 28, 1937. The affidavit is nothing more
than a self-serving statement. Flor Fuentebella was not presented to the Committee as a material witness. On the other
hand, the sworn statement of Pascual Berciles (Exh. "4") commands no evidentiary value at all. Mr. Santiago Medina,
former Provincial Fiscal of Cebu, who appears to have administered the oath, in a subsequent sworn statement (Exh.
"M") denied his signature on the document (Exh. "4").

"The letters written by Judge Berciles to her daughters with Flor Fuentebella especially the one sent to daughter Mercy
Berciles (Exh. "22") wherein he vigorously affirmed that it’s only her mother, Flor Fuentebella, and no other woman who
was recognized as his wife and loved by her parents deserve scant consideration. Pascual Berciles could not be
expected to admit the existence of his other family. This would be disastrous to his efforts at preventing one family from
knowing the other.

"Flor Fuentebella likewise submitted to the Committee the birth or baptismal certificates of her children begotten with the
late Judge Berciles; the birth certificates of Pascual Voltaire Berciles (Exh. "6"); baptismal certificate of Maria Luisa Berciles
(Exh. "7-A"); birth certificate of Mercy Berciles (Exh. "8"); birth certificates of Rhoda Berciles (Exh. "9"). The other evidence
consist of family pictures (Exhs. "30 to 30-M") which have been identified by witness Coronacion Berciles both in her oral
testimony before the Committee and in her affidavit. (Exh. "32", par. 15). The pictures, however, do not indicate that the
marriage took place. If at all, the said pictures show the presence of a family with or without the sanction of marriage.

"After a careful evaluation of these documents, the Committee believes that there is no sufficient evidence that Pascual
Berciles and Flor Fuentebella were married to each other on March 28, 1937 in Iloilo City; however, certain relationship
did exist and from such relationship were begotten the following children, namely: Pascual Voltaire Berciles, Maria Luisa
Berciles, Mercy Berciles and Rhoda Berciles.

"Furthermore, the Committee entertains doubt on the authority of the officer who solemnized the marriage between
Pascual Berciles and Flor Fuentebella. It is true that the Official Roster of Officers and Employees in the Civil Service (Exhs.
"3" and "3-A") include the name Jose Vicente Mapa, Justice of the Peace for Iloilo. The listings, however, do not indicate
the exact date of employment of any particular employee. The year 1935 indicated in the cover of the Roster may not
be interpreted to mean that all those listed were already in the service in 1935. It is possible that the Roster included
those appointed as early as 1935 and those appointed at much later date. This assumption deserves some degree of
validity when considered in relation with the record of service furnished by the Civil Service Commission (Exh. "T")
indicating that Jose Vicente Mapa was Acting Municipal Judge of Iloilo City effective July 16, 1937. It further appears in
the service record that he was Acting Municipal Judge pursuant to a Designation by letter of the Secretary to President,
dated June 30, 1937. If Jose Vicente Mapa was already a Municipal Judge prior to July 16, 1937, he could have been
assigned to a different municipality other than Iloilo, in which case he did not have the authority to solemnize marriage in
Iloilo on March 28, 1937. At any event, a serious uncertainty did exist as to whether Jose Vicente Mapa was already the
Justice of the Peace of Iloilo on the date the alleged marriage was contracted.

"The Committee therefore concludes that Judge Pascual Berciles was legally married to Iluminada Ponce. His alleged
marriage to Flor Fuentebella was not sufficiently proved and therefore the children begotten with her are either natural
or illegitimate children depending on whether they have been born before or after the marriage of Iluminada Ponce.
Consequently, the legal heirs of the late Judge Berciles entitled to share in the distribution of his retirement benefits are
the following: Iluminada Ponce, surviving spouse; Ilona Berciles Alvarez, Ellery Berciles, England P. Berciles and Ione P.
Berciles, legitimate children; Pascual Voltaire Berciles, natural child; Maria Luisa Berciles, Mercy Berciles, and Rhoda
Berciles, illegitimate children."cralaw virtua1aw library

From the above recital, We can readily summarize the following three (3) conclusions therein made and arrived at by
the Committee which were approved and adopted in toto by respondent GSIS through Board of Trustees Resolution No.
431, to wit:chanrob1es virtual 1aw library

1." (T)hat Iluminada Ponce was married to Pascual Berciles, alias Paquito, on January 20, 1941 at Bocaue, Bulacan. From
this union, they begot the following children namely: Ilona, Ellery, England and Ione."cralaw virtua1aw library

2." (T)hat there is no sufficient evidence that Pascual Berciles and Flor Fuentebella were married to each other on March
28, 1937 in Iloilo City."cralaw virtua1aw library

3." (H)owever, certain relationship did exist and from such relationship were begotten the following children, namely:
Pascual Voltaire Berciles, Maria Luisa Berciles, Mercy Berciles and Rhoda Berciles.." . ." The children begotten with her are
either natural or illegitimate children depending on whether they have been born before or after the marriage of
Iluminada Ponce."cralaw virtua1aw library

As pointed out earlier, petitioners assail the validity of the third conclusion or finding that Pascual Voltaire Berciles is an
acknowledged natural child and that Maria Luisa Berciles, Mercy Berciles and Rhoda Berciles are illegitimate children of
the late Judge Pascual Berciles, petitioners being in complete accord and conformity with the first two conclusions
summarized above.chanrobles virtual lawlibrary

Petitioners contend that the evidence submitted by private respondents with respect to the status of respondent Pascual
Voltaire Berciles show that he was not acknowledged by the late Judge Pascual Berciles in a birth certificate, in a will, in
a statement before a court of record, or in any authentic writing, as required under Art. 278, New Civil Code, or much
less, in a final judgment as provided in Art. 283, New Civil Code.

The evidence considered by the Committee on Claims Settlement as basis of its finding that Pascual Voltaire Berciles is
an acknowledged natural child of the late Judge Pascual Berciles is the birth certificate of said Pascual Voltaire Berciles
marked Exh. "6." We have examined carefully this birth certificate and We find that the same is not signed by either the
father or the mother; We find no participation or intervention whatsoever therein by the alleged father, Judge Pascual
Berciles. Under our jurisprudence, if the alleged father did not intervene in the birth certificate, the putting of his name by
the mother or doctor or registrar is null and void. Such registration would not be evidence of paternity. (Joaquin P. Roces
Et. Al. v. Local Civil Registrar of Manila, 102 Phil. 1050). The mere certificate by the registrar without the signature of the
father is not proof of voluntary acknowledgment on his part (Dayrit v. Piccio, 92 Phil. 729). A birth certificate does not
constitute recognition in a public instrument. (Pareja v. Pareja, Et Al., 95 Phil. 167). A birth certificate, to evidence
acknowledgment, must, under Section 5 of Act 3753, bear the signature under oath of the acknowledging parent or
parents. (Vidaurrazaga v. Court of Appeals and Francisco Ruiz, 91 Phil. 492). In the case of Mendoza, Et. Al. v. Mella, 17
SCRA 788, the Supreme Court speaking through Justice Makalintal who later became chief Justice,
said:jgc:chanrobles.com.ph

"It should be noted, however, that a Civil Registry Law was passed in 1930 (Act No. 3753) containing provisions for the
registration of births, including those of illegitimate parentage; and the record of birth under such law, if sufficient in
contents for the purpose, would meet the requisites for voluntary recognition even under Article 131. Since Rodolfo was
born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate (Exhibit 1),
which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been
voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both
parents, there is no showing that they signed the original, let alone swore to its contents as required in Section 5 of Act
No. 3753 (Vidaurrazaga v. Court of Appeals, 91 Phil. 493; In re Adoption of Lydia Duran, 92 Phil. 729). For all that might
have happened, it was not even they or either of them who furnished the data to be entered in the civil register.
Petitioners say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition
of a natural child may also be made, according to the same Article 131. True enough, but in such a case there must be
a clear statement in the document that the parent recognizes the child as his or her own (Madridejo v. De Leon, 55 Phil.
1); and in Exhibit 1 no such statement appears. The claim of voluntary recognition is without basis."cralaw virtua1aw
library

With respect to the Committee’s finding that the other private respondents are illegitimate children of the deceased
Judge Berciles, We find that the evidentiary basis of such finding are the baptismal certificate of Maria Luisa Berciles, Exh.
"7-A" ; birth certificate of Mercy Berciles, Exh. "8" ; and birth certificate of Rhoda Berciles, Exh. "9." We have also examined
the above exhibits and We find that Exh. "7" is a mere certification that all the Civil Registry records of birth filed in the
Office of the Local Civil Registrar for the year 1944 and previous years were either burned, destroyed or lost during the
last war and hence, the office could not furnish the birth certificate of Maria Luisa Berciles who claim to have been born
to the spouses Pascual Berciles and Flor Fuentebella on June 27, 1943 at Iloilo City. The same is true with Exh. "7-B"
attesting to the non-availability of the Register of Births for Iloilo, Iloilo in the year 1943 in the files of the National Archives.
Exh. "7-A and 7-B" are, therefore, of no value.

As to the baptismal certificate, Exh. "7-A", the rule is that although the baptismal record of a natural child describes her
as a child of the decedent, yet, if in the preparation of the record the decedent had no intervention, the baptismal
record cannot be held to be a voluntary recognition of parentage. (Canales v. Arrogante, Et Al., 91 Phil. 6; Adriano v. De
Jesus, 23 Phil. 350; Samson v. Corrales Tan, 48 Phil. 401; Madridejo v. De Leon, 55 Phil. 1; Malonda v. Infante Vda. de
Malonda, 81 Phil. 149). The reason for this rule that canonical records do not constitute the authentic document
prescribed by Arts. 115 and 117 to prove the legitimate filiation of a child is that such canonical record is simply proof of
the only act to which the priest may certify by reason of his personal knowledge, an act done by himself or in his
presence, like the administration of the sacrament upon a day stated; it is no proof of the declarations in the record with
respect to the parentage of the child baptized, or of prior and distinct facts which require separate and concrete
evidence. (Adriano v. De Jesus, 23 Phil. 350).

In the recent case of Republic v. Workmen’s Compensation Commission, 13 SCRA 272, the Supreme Court speaking
again through Justice Makalintal, held:jgc:chanrobles.com.ph

"This Court, construing the various pertinent provisions of the Civil Code concerning illegitimate children, has held that an
illegitimate (spurious) child, to be entitled to support and successional rights from his parents, must prove his filiation and
that this may be done by means of voluntary or compulsory recognition of the relationship. For this purpose, the
provisions concerning natural children are held applicable, thus, recognition is voluntary when made in the record of
birth, a will, a statement before a court of record, or in any authentic writing (Article 278); and compulsory when made
by means of a court action in the cases enumerated in Articles 283 and 284 (Paulino v. Paulino, L-15091, Dec. 28, 1961).

Discrediting the above certificate (birth and baptismal) of the illegitimate spurious children which do not constitute proof
of filiation with the deceased Judge Berciles, what remains are the sworn statements of Coronacion Berciles, Exh. 10 and
31, sister-in-law of the late Judge Berciles wherein she stated that after she was married to her husband, they lived
together with the family of Pascual Berciles and his wife, Flor Fuentebella; that their two families had lived closely enough
during the Japanese Occupation and even after. These statements, however, does not prove the filiation of the children
to the late Judge Pascual Berciles.

Neither are the family pictures, Exhs. 30 to 30-M, which, according to the Committee, do not indicate that the marriage
(between Judge Berciles and Flor Fuentebella) took place and that if at all, the said pictures show the presence of a
family with or without the sanction of marriage. We agree and We add that said pictures do not constitute proof of
filiation.

We also agree with the finding of the Committee that" (t)he letters written by Judge Berciles to her daughters with Flor
Fuentebella especially the one sent to daughter Mercy Berciles (Exh. "22") wherein he vigorously affirmed that it’s only her
mother, Flor Fuentebella, and no other woman who was recognized as his wife and loved by her parents deserve scant
consideration. Pascual Berciles could not be expected to admit the existence of his other family. This would be disastrous
to his efforts at preventing one family from knowing the other." Not only do they deserve scant consideration but also,
there is jurisprudence that a typewritten letter signed by the father is not an authentic writing. (Decision of the Supreme
Court of Spain of Feb. 27, 1923 and Dec. 7, 1927 cited in 3 Castan, 6th ed., 25; see Caguioa, Comments and Cases on
Civil Law, Vol. I, p. 379).

As to the other exhibits of private respondents, We affirm the Committee’s finding that the Flor Fuentebella Affidavit (Exh.
"5") is self-serving; that the testimony of Concepcion Gonzales (Exh. "31-A"), being blind, is deficient; and that the affidavit
of Judge Rafael Lavente (Exh. "35") has been repudiated. Indeed, the above evidence are, to Our view, very
insignificant, insufficient, and insubstantial to prove the filiation of private respondents to the alleged father, Judge
Pascual Berciles.

The records disclose that all the private respondents have left the Philippines and are now residing in the United States.
They have not appeared at the hearing before the Committee on Claims Settlement to testify in support of their claim of
filiation and acknowledgment. And We find no clear and competent proof, no positive and substantial evidence
presented by private respondents that their alleged father had admitted or recognized his paternity of the private
respondents Maria Luisa Berciles, Mercy Berciles and Rhoda Berciles.

Under the law, Article 287, New Civil Code, illegitimate children other than natural in accordance with Art. 269 are
entitled to support and such successional rights as are granted in the Code, but for this Article to be applicable, there
must be admission or recognition of the paternity of the illegitimate child. (Paterno, Et. Al. v. Paterno, 20 SCRA 585, citing
Noble v. Noble, G.R. No. L-17742, Dec. 17, 1966, 18 SCRA 1104; Paulino v. Paulino, G.R. No. L-15091, Dec. 28, 1961, 113
Phil. 697). Article 887, N.C.C., defining who are compulsory heirs, is clear and specific that" (i)n all cases of illegitimate
children, their filiation must be duly proved." And in the Noble case, supra, the Supreme Court laid down this
ruling:jgc:chanrobles.com.ph

"The filiation of illegitimate children, other than natural, must not only be proven but it must be shown that such filiation
was acknowledged by the presumed parent. If the mere fact of paternity is all that needs to be proven, that
interpretation would pave the way to unscrupulous individuals to take advantage of the death of the presumed parent,
who would no longer be in a position to deny the allegation, to present even fictitious claims and expose the life of the
deceased to inquiries affecting his character." (Emphasis supplied).

In fine, We hold and rule that the respondent GSIS committed grave abuse of discretion in approving Resolution No. 431
which adopted the erroneous recommendation of the Committee on Claims Settlement, a recommendation which has
no legal or factual basis to stand on. Accordingly, the disposition made by respondent GSIS of the retirement benefits
due the heirs of the late Judge Pascual G. Berciles is consequently erroneous and not in accordance with law.
Petitioners are the lawful heirs entitled to the distribution of the benefits which shall accrue to the estate of the deceased
Judge Berciles and will be distributed among the petitioners as his legal heirs in accordance with the law on intestate
succession. (Re: Mario v. Chanliongco, 79 SCRA 364; Vda. de Consuegra v. GSIS, 37 SCRA 325).

According to Article 996 of the New Civil Code which provides that "If a widow or widower and legitimate children or
descendants are left, the surviving spouse has in the succession the same share as that of each of the children," and
Article 980 which provides that "The children of the deceased shall always inherit from him in their own right, dividing the
inheritance in equal shares," the retirement benefits shall be distributed equally to the five (5) heirs: Iluminada Ponce
Berciles, Ilona Berciles Alvarez, Ellery P. Berciles, England P. Berciles and Ione P. Berciles.

As to the retirement premiums totalling P9,700.00, the same is presumed conjugal property, there being no proof that the
premiums were paid from the exclusive funds of the deceased Judge (Article 160, New Civil Code). Such being the
case, one-half of the amount belongs to the wife as her property in the conjugal partnership and the other half shall go
to the estate of the deceased Judge which shall in turn be distributed to his legal heirs.

With respect to the terminal leave pay, unpaid salary and allowances accruing to the deceased, since petitioners are
the only lawful heirs of the deceased Judge, only they are entitled to share thereto. There is no need to disturb Our
Resolution of March 17, 1981.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

One final point, the issue raised by respondents that Section 25 of P.D. 1146, otherwise known as "The Revised
Government Service Insurance Act of 1977", cannot be invoked by petitioners in taking the present appeal for the
reason that the dispute between the parties have arisen under the Judiciary Retirement Law, Republic Act No. 910, as
amended and not under P.D. 1146, and that the determination of the legal heirs of a deceased judge covered by
Republic Act 910 as amended, is vested in the regular courts of justice.

Section 25 of P.D. 1146 provides:jgc:chanrobles.com.ph

"SECTION 25. Appeals. — Within fifteen days from receipt of notice of decision or award, the aggrieved party may
appeal the same to the Court of Appeals on questions of law and facts following the procedures for appeals from the
Court of First Instance to the Court of Appeals as far as practicable and consistent with the purposes of this Act. If the
appeal is only on questions of law, the same shall be brought directly to the Supreme Court on certiorari. No appeal
bond shall be required. The appeal shall take precedence over all other cases except criminal cases wherein the
penalty of life imprisonment or death has been imposed by the trial court. Appeal shall not stay the decision of the Board
unless so ordered by the Board, by the Court of Appeals, or by the Supreme Court."cralaw virtua1aw library

Respondents’ position is untenable. We hold that Sec. 25 of P.D. 1146 quoted above may be availed of by petitioners.

Republic Act 910, as amended, is a special statute governing and granting retirement benefits to members of the
judiciary. While Section 5 of the Act provides that the GSIS shall take charge of the enforcement and operation of the
Act, there is no provision therein setting forth the procedure or remedy for the final determination of the legal heirs of the
deceased Judge in case a dispute arises between the opposing claimants. Even under the old GSIS Act,
Commonwealth Act No. 186 as amended, there is no express provision on appeal from the award or decisions of the
GSIS. In both cases, the decision or the award made by the GSIS which affects property rights as well as the legitimate or
illegitimate status of the claimants is brought to and assailed in the regular courts of justice under the general power and
jurisdiction of the courts to review decisions of administrative bodies and this is where the litigation becomes not only
delayed or protracted but also expensive and cumbersome, to the great prejudice and detriment of the parties.
As may be gleaned from the "whereas clauses" of P.D. 1146 which, among others, recognize that "provisions of existing
laws . . . have prejudiced, rather than benefitted, the government employee; restricted rather than broadened, his
benefits, prolonged, rather than facilitated the payment of benefits, must now yield to his paramount welfare," P.D. 1146
is a remedial legislation, which are "those which afford a remedy, or improve or facilitate remedies already existing for
the enforcement of rights and the redress of injuries, and statutes intended for the correction of defects, mistakes and
omissions in the civil institutions and the administration of the state." (Sutherland, Statutory Construction, Vol. III, p. 31).
And being remedial statutes relating to procedure as distinguished from those relating to substantive rights, they are
given a liberal interpretation. (Sutherland, supra, p. 39).

Accordingly, We hold and rule that Section 25 of P.D. 1146 specifically laying down the procedure whereby the party
aggrieved by the decision of the GSIS may appeal the same to the Court of Appeals, now the Intermediate Appellate
Court, on questions of law and facts following the procedures for appeals from the Court of First Instance (now Regional
Trial Court) to the I.A.C. and if the appeal is only on questions of law, the same shall be brought directly to the Supreme
Court on certiorari, which abbreviated procedure was designed to facilitate, and not to prolong, the payment of
benefits, may be invoked by the petitioners.

That P.D. 1146, Sec. 35 is applicable to disputes arising under the Judiciary Retirement Act and all other acts
administered by the GSIS may also be construed from Sec. 23 of the Decree which provides that the "System shall
prescribe such rules and regulations to facilitate payment of benefits, proceeds and claims under the Act and any other
laws administered by the System.chanrobles.com:cralaw:red

WHEREFORE, IN VIEW OF ALL THE FOREGOING, We AFFIRM the finding in Resolution No. 431 that petitioner Iluminada
Ponce Berciles is the surviving spouse of the late Judge Pascual G. Berciles and that petitioners Ilona Berciles Alvarez,
Ellery P. Berciles, England P. Berciles, and Ione P. Berciles are the legitimate children of the said deceased Judge. We
REVERSE and SET ASIDE its finding that Pascual Voltaire Berciles is an acknowledged natural child and that Maria Luisa
Berciles, Mercy Berciles, and Rhoda Berciles are illegitimate children of the deceased CFI Judge Pascual G. Berciles. The
claims of the petitioners as legal heirs are hereby APPROVED and the GSIS is hereby ordered to pay immediately to each
and every petitioner the various sums hereunder indicated opposite their names, as follows:chanrob1es virtual 1aw
library

1. ILUMINADA PONCE BERCILES.

A. Her 1/5 share of retirement gratuity P60,352.00

B. Her share from the return of the

retirement premiums

(1) as her conjugal share 4,850.00

(2) as a legal heir 970.00

—————

Total Amount Due Her P66,1172.00

=========

2. ILONA BERCILES ALVAREZ.

A. Her 1/5 share of retirement

gratuity P60,352.00

B. Her share from the return of

retirement premiums 970.00

—————

Total Amount Due Her P61,322.00

========

3. ELLERY P. BERCILES.
A. His 1/15 share of retirement

gratuity P60,352.00

B. His share from return of

retirement premiums 970.00

—————

Total Amount Due Him P61,322.00

=========

4. ENGLAND P. BERCILES.

A. His 1/5 share of retirement

gratuity P60,352.00

B. His share from return of

retirement premiums 970.00

—————

Total Amount Due Him P61,322.00

========

5. IONE P. BERCILES.

A. Her 1/5 share of retirement

gratuity P60,352.00

B. Her share from return of

retirement premiums 970.00

—————

Total Amount Due Her P61,322.00

=========

The temporary restraining order issued herein per Our Resolution dated July 13, 1981 is hereby made permanent.

SO ORDERED.

Makasiar, Concepcion, Jr., De Castro, Melencio-Herrera, Plana, Escolin, Relova and Gutierrez, Jr., JJ., concur.

Fernando, C.J. and Teehankee, J., are on leave.

Aquino, J., took no part.

Abad Santos, J., I reserve my vote.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-8715 October 24, 1914

MARIANO VELOSO, plaintiff-appellant,

vs.
LUCIA MARTINEZ, personally and as administratrix of the estate of Domingo Franco, deceased-appellee.

Martin M. Levering for appellant.

Pantaleon E. del Rosario for appellee.

JOHNSON, J.:

On the 1st day of July, 1911, the plaintiff commenced an action in the Court of First Instance of the Province of Cebu to
recover of the defendant, personally and as administratrix of the estate of Domingo Franco, deceased, the possession of
a certain parcel of land particularly described in the second paragraph of the complaint, together with the sum of P125
per month, from the 1st day of June, 1911.

The defendant presented a demurrer to said complaint, which was overruled. No exception was taken to the ruling of
the court upon the demurrer. Later the defendant answered, setting up a general denial and a special defense. The
special defense consisted —

First. Of a counterclaim in the sum of P18,500, as attorney's fees for services rendered by the deceased, Domingo Franco,
to the plaintiff; and, second, for the recovery of certain jewelry, of the value of P6,000, particularly described in the
answer of the defendant, alleged to be in the possession of the plaintiff.

The first special defense, relating to attorney's fees, was later withdrawn by the defendant. The only questions left for
litigation were: .

First. Whether the plaintiff was entitled to the recovery of the parcel of land in question; and, second, whether the
defendant was entitled to recover from the plaintiff the jewelry described in her answer.

After hearing the evidence, the Honorable Adoph Wislizenus, judge, in a carefully prepared opinion, found that the
plaintiff was entitled to recover the possession of the land in question, together with the sum of P100 for each month from
the month of June, 1911, until the possession of the land was returned to him.

The lower court further found that the defendant was entitled to the possession of said jewelry, and ordered the plaintiff
to return the same to her and in case of the plaintiff's failure to return said jewelry to the defendant, then and in that
case, he shall pay to the defendant, for such failure, the sum of P6,000.

From the judgment of the lower court, each of the parties, plaintiff and defendant, appealed to this court. Later the
defendant withdrew her appeal, thereby allowing that part of the judgment relating to the plaintiff's right to the
possession of the land in question, together with damages, to become final. The only question remaining, therefore, for
this court to decide is as to the ownership and right of possession of said jewels. It is admitted that the jewels in question,
before the possession of the same was given to the plaintiff, belonged to the defendant personally and that she had
inherited the same from her mother. The defendant, Lucia Martinez, is the widow of Domingo Franco, and after the
death of her husband she was appointed administratrix of his estate. The record further shows (Exhibit C) that a short time
before the death of Domingo Franco he borrowed from the plaintiff the sum of P4,500 and gave as security for the
payment of said sum the jewelry described in the complaint. The money was borrowed on the 7th day of April, 1911,
under promise to repay the same, with 12 per cent interest, on the 7th day of May, 1911. It is not clear whether or not the
jewelry, at the time of the execution of said document (Exhibit C), was in fact delivered to the plaintiff. Said exhibit states
that the jewelry was contained "dentro de una caja que queda cerrada despues de demonstradas las alhajas a D.
Mariano Veloso" (in a box which remains closed after the jewels were shown to Mariano Veloso). The document further
admits the "la llava quedara en poder de D. Domingo Franco" (the key shall remain in possession of Domingo Franco).
After the death of Domingo Franco it appears that said jewelry was found in the same "caja" and that the key was in the
possession of the defendant. It is very doubtful, indeed, under the facts, whether the plaintiff ever obtained the actual
possession of the jewelry. His possession, however, seems to be admitted by the defendant in the present action. So far
as the record shows the jewelry was in the same box where it was found at the time of the execution and delivery of said
Exhibit C and that the defendant still has the key to said box.
During the trial of the cause the plaintiff attempted to show that the jewels in question were pawned to him by Domingo
Franco, with the full knowledge and consent of the defendant. And not only that, the plaintiff further attempts to show
that after the death of Domingo Franco, the defendant promised to pay the amount for which the said jewels were
pawned. The defendant positively denies that she knew that her husband had pawned her jewels or that she promised
to redeem the same by paying the amount due. No explanation is contained in the record why the jewels were placed
in said box (presumably a money safe). In view of the fact, however, that the record shows that the jewels were the sole
and separate property of the wife, acquired from her mother, and in the absence of further proof, we must presume that
they constituted a part of her paraphernal property. As such paraphernal property she exercised dominion over the
same. (Article 1382, Civil Code.) She had the exclusive control and management of the same, until and unless she had
delivered it to her husband, before a notary public, with the intent that the husband might administer it properly. (Article
1384, Civil Code.) There is no proof in the record that she had ever delivered the same to her husband, in any manner, or
for any purpose. That being true, she could not be deprived of the same by any act of her husband, without her
consent, and without compliance with the provisions of the Civil Code above cited.1awphil.net

For the foregoing reasons, we find that the defendant is entitled to the possession of said jewels, or to their value,
amounting to P6,000.

The judgment of the lower court is therefore affirmed, with costs.

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

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

Panganiban September 9, 1933

JOSE R. PAÑGANIBAN, complainant,

vs.
ELIAS BORROMEO, respondent.

The Respondent in his own behalf.

Office of the Solicitor-General Hilado for the Government.

MALCOLM, J.:

These proceedings looking to the disbarment of the respondent attorney are before us on the representations of the
Solicitor-General that the respondent appear and show cause, if any he has, why he should not be proceeded against
for professional malpractice. The respondent admits that, in his capacity as notary public he legalized the document
which is the basis of the complaint against him, and that the document contains provisions contrary to law, morals and
good customs, but by way of defense disclaims any previous knowledge of the illegal character of the document.

On November 25, 1931, Alejandro Pabro and Juana Mappala husband and wife, subscribed a contract before the
notary public Elias Borromeo, who was at that time a regularly admitted member of the Philippine Bar. The contract in
question had been prepared by the municipal secretary of Naguilian, Isabela. Attorney Borromeo cooperated in the
execution of the document and had, at lease, some knowledge of its contents, although he may not have been fully
informed because of a difference in dialect. The contract in substance purported to formulate an agreement between
the husband and the wife which permitted the husband to take unto himself a concubine and the wife to live in
adulterous relationship with another man, without opposition from either one of them.

Two questions are suggested by the record. The first concerns the points of whether or not the contract sanctioned an
illicit and immoral purpose. The second concerns the point, on the supposition that the contract did sanction an illicit
and immoral purpose, of whether a lawyer may be disciplined for misconduct as a notary public.
The contract of the spouses, it will be recalled, was executed at a time when the Spanish Penal Code, as modified by
Act No. 1773 was in force. Conceding, however, that the more liberal provisions of the Revised Penal Code should be
given application, it is herein provided that the consent or pardon given by the offended party constitutes a bar to
prosecution for adultery or concubinage. In this instance, if the spouses should retain their present frame of mind, no
prosecution of either one by the other could be expected. Nevertheless, we think it far from the purpose of the
Legislature to legalize adultery and concubinage. They still remain crimes, with the qualification that prosecution cannot
be instituted if the offended party consent to the act or pardon the offender. This is a matter of future contingency and is
not matter for legalization in wanton disregard of good morals. We hold the contract to contain provisions contrary to
law, morals and public order, and as a consequence not judicially recognizable.

Passing to the second question, we think there can be no question as to the right of the court to discipline an attorney
who, in his capacity as notary public, has been guilty of misconduct. To the office of notary public there is not attached
such importance under present conditions as under the Spanish administration. Even so, the notary public exercise duties
calling for carefulness and faithfulness. It is for the notary to inform himself of the facts to which he intends to certify, and
to take part in no illegal enterprise. The notary public is usually a person who has been admitted to the practice of law,
and such, in the commingling of his duties as notary and lawyer, must be held responsible for both. We are led to hold
that a member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to
account by the court even to the extent of disbarment. (See 2 Thornton on Attorneys At Law, pp. 1258, 1259; In
re Chappell [1909], 115 N.Y.S., 868; In re Bernard [1912], 136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In re Terrell
[1903], 2 Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko [1916], 34 Phil., 796; De la Cruz vs. Capinpin and Albea
[1918], 38 Phil., 492.)

It now becomes necessary to pronounce sentence. As mitigating circumstances, there may be taken into consideration
(1) that the attorney may not have realized the full purport of the document to which he took acknowledgment, (2) that
no falsification of facts was attempted, and (3) that the commission of the respondent as a notary public has been
revoked. Accordingly, we are disposed in this case to exercise clemency and to confine our discipline of the respondent
to severe censure. So ordered.

Avanceña, C.J., Street, Villa-Real, Abad Santos, Hull, Vickers, and Imperial, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.C. No. 932 June 21, 1940

In re ATTY. ROQUE SANTIAGO, respondent,

Office of the Solicitor-General Ozaeta as petitioner-complainant.

LAUREL, J.:

This is an administrative case initiated upon complaint of the Solicitor-General against the respondent Roque Santiago,
charging the latter with malpractice and praying that disciplinary action be taken against him.

It appears that one Ernesto Baniquit, who was living then separately from his wife Soledad Colares for some nine
consecutive years and who was bent on contracting a second marriage, sought the legal advice of the respondent,
who was at the time a practicing and notary public in the Province of Occidental Negros. The respondent, after hearing
Baniquit's side of the case, assured the latter that he could secure a separation from his wife and marry again, and
asked him to bring his wife on the afternoon of the same day, May 29, 1939. This was done and the respondent right then
and there prepared the document Exhibit A in which it was stipulated, among other things, that the contracting parties,
who are husband and wife authorized each other to marry again, at the same time renouncing or waiving whatever
right of action one might have against the party so marrying. After the execution and acknowledgment of Exhibit A by
the parties, the respondent asked the spouses to shake hands and assured them that they were single and as such could
contract another and subsequent marriage. Baniquit then remarked, "Would there be no trouble?" Upon hearing it the
respondent stood up and, pointing to his diploma hanging on the wall, said: "I would tear that off if this document turns
out not to be valid." Relying on the validity of Exhibit A, Ernesto Baniquit, on June 11, 1939, contracted a second marriage
with Trinidad Aurelio. There is also evidence to show that the respondent tried to collect for this service the sum of P50,
but as the evidence on this point is not clear and the same is not material in the resolution of the present case, we do
not find it necessary to make any express finding as to whether the full amount or any portion thereof was paid or, as
contended by the respondent, the service were rendered free of charge.

The respondent did not deny the preparation of Exhibit A, put up the defense that he had the idea that seven years
separation of husband and wife would entitle either of them to contract a second marriage and for that reason
prepared Exhibit A, but immediately after the execution of said document he realized that he had made a mistake and
for that reason immediately sent for the contracting parties who, on June 30, 1939, came to his office and signed the
deed of cancellation Exhibit A.

There is no doubt that the contract Exhibit A executed by and between the spouses Ernesto Baniquit and Soledad
Colares upon the advice of the respondent and prepared by the latter as a lawyer and acknowledged by him as a
notary public is contrary to law, moral, and tends to subvert the vital foundation of the family. The advice given by the
respondent, the preparation and acknowledgment by him of the contract constitute malpractice which justifies
disbarment from the practice of law. The admission of a lawyer to the practice of law is upon the implied condition that
his continued enjoyment of the privilege conferred is dependent upon his remaining a fit and safe person to society.
When it appears that he, by recklessness or sheer ignorance of the law, is unfit or unsafe to be entrusted with the
responsibilities and obligations of a lawyer, his right to continue in the enjoyment of this professional privilege should be
declared terminated. In the present case, respondent was either ignorant of the applicable provision of the law or
carelessly negligent in giving the complainant legal advice. Drastic action should lead to his disbarment and this is the
opinion of some members of the court. The majority, however, have inclined to follow the recommendation of the
investigator, the Honorable Sotero Rodas, in view of the circumstances stated in the report of said investigator and the
fact that immediately after discovering his mistakes, respondent endeavored to correct it by making the parties sign
another document cancelling the previous one.

The respondent Roque Santiago is found guilty of malpractice and is hereby suspended from the practice of law for a
period of one year. So ordered.

Avanceña, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

A.M. No. 804-CJ May 19, 1975

SATURNINO SELANOVA, complainant,

vs.
ALEJANDRO E. MENDOZA, City Judge of Mandaue City, respondent.

RESOLUTION

AQUINO, J.:ñé+.£ªwph!1

Saturnino Selanova charged Judge Alejandro E. Mendoza of Mandaue City with gross ignorance of the law for having
prepared and ratified a document dated November 21, 1972, extrajudicially liquidating the conjugal partnership of the
complainant and his wife, Avelina Ceniza. One condition of the liquidation was that either spouse (as the case may be)
would withdraw the complaint for adultery or concubinage which each had filed against the other and that they
waived their "right to prosecute each other for whatever acts of infidelity" either one would commit against the other.

Judge Mendoza in his comment on the charge purposed to convey the impression that he was aware of the invalidity of
the agreement but he nevertheless ratified it and gave it his nihil obstat on the assurance of the spouses that they would
ask the Court of First Instance of Negros Oriental (where they were residing) to approve the agreement. That pretension
is disbelieved by the Judicial Consultant.

Respondent Judge alleged that he relied on the provision that "the husband and the wife may agree upon the
dissolution of the conjugal partnership during the marriage, subject to judicial approval" (Par. 4, Art. 191, Civil Code).

He argues that to give the prohibition against an extrajudicial liquidation of the conjugal partnership during the marriage
"an unqualified and literal legal construction" would lender nugatory the aforequoted provisions of article 191. He cites
Lacson vs. San Jose-Lacson, L-23482, L-23767 and L-24259, August 30, 1968, 24 SCRA 837 as authority for the propriety of
an extrajudicial agreement for the dissolution during the marriage of the conjugal partnership as long as the agreement
is subsequently approved by the court.

However, the respondent overlooks the unmistakable ruling of this Court in the Lacson case that judicial sanction for the
dissolution of the conjugal partnership during the marriage should be "secured beforehand."

Respondent Judge surmised that Selanova's complaint was instigated by a lawyer whose case was adversely decided
by the Judge. That speculation was denied by Selanova who also belied Judge Mendoza's version that the complainant
and his wife, Avelina Ceniza, "together with their parents", came to the office of Judge Mendoza and solicited his help in
the amicable settlement of their marital imbroglio.

According to Selanova, in 1972 his father was already dead and his mother was ninety-one years old. They could not
possibly have come to Judge Mendoza's office. Selanova said that only he and his brother-in-law, Arcadio Ceniza, an
alleged classmate of Judge Mendoza, were the persons who went to the Judge's office. But that version may be
inaccurate and oversimplified, considering that the agreement was signed before Judge Mendoza not only by
Selanova but also by his wife and two witnesses, Lamberts M. Ceniza and Florencio C. Pono.

Judge Mendoza retired on February 27, 1975 when he reached the age of seventy. In his letter of April 8, 1975 he asked
for a compassionate view of his case considering his forty-three years' service in the government (he started his public
career in 1932 as a policeman and became a justice of the peace in 1954). He also cited the financial predicament of
his big family occasioned by the delay in the payment of his retirement and terminal leave pay.

The case was not referred to a Judge of the Court of First Instance for investigation because actually no factual issues
necessitate a hearing and presentation of evidence. Respondent Judge admitted that he was responsible for the
execution of the questioned document, an extrajudicial "Liquidation of Conjugal Properties", which he caused
complainant Saturnino Selanova and his wife, Avelina Ceniza, to sign.

In that instrument Judge Mendoza divided the two pieces of conjugal assets of the spouses by allocating to the husband
a thirteen-hectare riceland and to the wife the residential house and lot. The last paragraph of the instrument, which
licensed either spouse to commit any act of infidelity, was in effect a ratification of their personal separation. The
agreement in question is void because it contravenes the following provisions of the Civil Code:têñ.£îhqwâ£

ART. 221. The following shall be void and of no effect:

(1) Any contract for personal separation between husband and wife;

(2) Every extrajudicial agreement, during marriage, for the dissolution of the conjugal partnership of
gains or of the absolute community of property between husband and wife;

xxx xxx xxx

Even before the enactment of the new Civil Code, this Court held that the extrajudicial dissolution of the conjugal
partnership without judicial approval was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15, De La
Rosa vs. Barruga, L-2368, June 30, 1950, 4 ROP Digest 171, sec. 29).

On the other hand, disciplinary action had been taken against notaries who authenticated agreements for the personal
separation of spouses wherein either spouse was permitted to commit acts of infidelity.

Thus, in Panganiban vs. Borromeo, 58 Phil. 367, a lawyer was severely censured for having notarized a document
containing "an agreement between the husband and the wife which permitted the husband to take unto himself a
concubine and the wife to live in adulterous relationship with another man, without opposition from either one of them".
The document was prepared by another person.

In that case this Court noted that while adultery and concubinage are private crimes, "they still remain crimes" and a
contract legalizing their commission is "contrary to law, morals and public order, and as a consequence not judicially
recognizable". Since the notary's commission was already revoked, this Court did not disbar him. The fact that he "may
not have realized the full purport of the document to which he took acknowledgment' was considered mitigating.

Severe censure was also administered to a notary of Cebu City who ratified a document entitled "Legal Separation",
executed by husband and wife, wherein they agreed that they separated mutually and voluntarily, that they renounced
their rights and obligations, and that they authorized each other to remarry, renouncing any action to which they might
be entitled and each promising not to be a witness against the other. Those covenants are contrary to law, morals and
good customs and tend to subvert the vital foundation of the legitimate family (Biton vs. Momongon, 62 Phil. 7).

In the Santiago case respondent lawyer prepared for a married couple (who had been separated for nine years) a
document wherein it was stipulated, inter alia, that they authorized each other to marry again, at the same time
renouncing whatever right of action one might have against the other. When the husband inquired if there would be no
trouble, respondent lawyer pointed to his diploma which was hanging on the wall and said: "I would tear that off if this
document turns out not to be valid." The husband remarried. The respondent was suspended from the practice of law for
one year for having been ignorant of the law or being careless in giving legal advice (In re Santiago, 70 Phil. 66).

In Balinon vs. De Leon, 94 Phil. 277, Attorney Celestino M. de Leon prepared an affidavit wherein he declared that he
was married to Vertudes Marquez, from whom he had been separated, their conjugal partnership having been
dissolved, and that he was consorting with Regina S. Balinon his "new found life-partner," to whom he would "remain loyal
and faithful" "as a lawful and devoted loving husband for the rest of" his life "at all costs". Attorney Justo T. Velayo
notarized that affidavit. This Court reprimanded Velayo and suspended De Leon from the practice of law for three years.

In the instant case, respondent Judge, due to his unawareness of the legal prohibition against contracts for the personal
separation of husband and wife and for the extrajudicial dissolution of their conjugal partnership, prepared the said void
agreement which was acknowledged before him as "City Judge and Notary Public Ex-Officio". (Because he was
admitted to the bar in 1948 and, consequently, he did not study the new Civil Code in the law school, he might not have
been cognizant of its aforecited article 221).

Taking into account that circumstance and his apparent good faith and honest desire to terminate the marital conflict
between the complainant and his wife, we are of the opinion that a drastic penalty should not be imposed on him. But
he deserves a severe censure for his mistake in preparing and notarizing the aforementioned immoral and illegal
agreement. Such severe reprimand should not be an obstacle to his enjoyment of retirement privileges, assuming that
there are no causes for depriving him of such benefits.

WHEREFORE, the respondent is severely censured.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.1äwphï1.ñët

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 80965 June 6, 1990

SYLVIA LICHAUCO DE LEON, petitioner,

vs.
THE HON. COURT OF APPEALS, MACARIA DE LEON AND JOSE VICENTE DE LEON, respondents.

Angara, Abello, Concepcion, Regala & Cruz for petitioner.

De Jesus & Associates for Macaria de Leon.

Quisumbing, Torres & Evangelista for Jose Vicente de Leon.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. CV No. 06649 dated June 30,
1987 the decision of the Regional Trial Court of Pasig in SP Proc. No. 8492 dated December 29, 1983; and its resolution
dated November 24, 1987 denying the motion for reconsideration.

The antecedent facts are as follows:

On October 18, 1969, private respondent Jose Vicente De Leon and petitioner Sylvia Lichauco De Leon were united in
wedlock before the Municipal Mayor of Binangonan, Rizal. On August 28, 1971, a child named Susana L. De Leon was
born from this union.

Sometime in October, 1972, a de facto separation between the spouses occured due to irreconcilable marital
differences, with Sylvia leaving the conjugal home. Sometime in March, 1973, Sylvia went to the United States where she
obtained American citizenship.

On November 23, 1973, Sylvia filed with the Superior Court of California, County of San Francisco, a petition for dissolution
of marriage against Jose Vicente. In the said divorce proceedings, Sylvia also filed claims for support and distribution of
properties. It appears, however, that since Jose Vicente was then a Philippine resident and did not have any assets in
the United States, Sylvia chose to hold in abeyance the divorce proceedings, and in the meantime, concentrated her
efforts to obtain some sort of property settlements with Jose Vicente in the Philippines.

Thus, on March 16, 1977, Sylvia succeeded in entering into a Letter-Agreement with her mother-in-law, private
respondent Macaria De Leon, which We quote in full, as follows (pp. 40-42, Rollo):

March 16, 1977

Mrs. Macaria Madrigal de Leon

12 Jacaranda, North Forbes Park
Makati, Metro Manila

Dear Dora Macaria:

This letter represents a contractual undertaking among (A) the undersigned (B) your son, Mr. Jose
Vicente de Leon, represented by you, and (C) yourself in your personal capacity.

You hereby bind yourself jointly and severally to answer for the undertakings of Joe Vincent under this
contract.

In consideration for a peaceful and amicable termination of relations between the undersigned and
her lawfully wedded husband, Jose Vicente de Leon, your son, the following are agreed upon:

Obligations of Jose Vicente de Leon and/ or yourself in a joint and several capacity:

1. To deliver with clear title free from all liens and encumbrances and subject to no claims in any form
whatsoever the following properties to Sylvia Lichauco-de Leon hereinafter referred to as the wife:

A. Suite 11-C, Avalon Condominium, Ortigas Ave., corner Xavier St., Mandaluyong, Rizal, Philippines.

B. Apartment 702, Wack Wack Condominium, Mandaluyong, Rizal, Philippines.

 C. The rights to assignment of 2 Ayala lots in Alabang, Rizal (Corner lots, 801 s q. meters each). (Fully
paid).

D. 2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18 Block 22 Westborough Unit No. 2).
(Fully paid).

E. 1) The sum of One Hundred Thousand Pesos (P100,000)

2) $30,000

3) $5,000

2. To give monthly support payable six (6) months in advance every year to any designated assignee
of the wife for the care and upbringing of Susana Lichauco de Leon which is hereby pegged at the
exchange rate of 7.50 to the dollar subject to adjustments in the event of monetary exchange
fluctuations. Subsequent increase on actual need upon negotiation.

3. To respect the custody of said minor daughter as pertaining exclusively to the wife except as herein
provided.

Obligations of the wife:

1. To agree to a judicial separation of property in accordance with Philippine law and in this
connection to do all that may be necessary to secure said separation of property including her
approval in writing of a joint petition or consent decree.

2. To amend her complaint in the United States before the Federal Court of California, U.S.A. entitled
"Sylvia Lichauco de Leon vs. Jose V. de Leon" in a manner compatible with the objectives of this
herein agreement. It is the stated objective of this agreement that said divorce proceedings will
continue.

3. All the properties herein described for assignment to the wife must be assigned to Sylvia Lichauco
de Leon upon the decree of the Court of First Instance in the Joint Petition for Separation of Property;
except for the P100,000, $30,000 and $5,000 which will be paid immediately.

4. This contract is intended to be applicable both in the Republic of the Philippines and in the United
States of America. It is agreed that this will constitute an actionable document in both jurisdictions
and the parties herein waive their right to object to the use of this document in the event a legal issue
should arise relating to the validity of this document. In the event of a dispute, this letter is subject to
interpretation under the laws of California, U.S.A.

5. To allow her daughter to spend two to three months each year with the father upon mutual
convenience.

Very truly yours,

(Sgd.) Sylvia de Leon t/ SYLVIA L. DE LEON

CONFORME:
s/t/MACARIA M. DE LEON
with my marital consent:
s/t/JUAN L. DE LEON

On the same date, Macaria made cash payments to Sylvia in the amount of P100,000 and US$35,000.00 or P280,000.00,
in compliance with her obligations as stipulated in the aforestated Letter-Agreement.

On March 30, 1977, Sylvia and Jose Vicente filed before the then Court of First Instance of Rizal a joint petition for judicial
approval of dissolution of their conjugal partnership, the main part of which reads as follows (pp. 37-38, Rollo):
 5. For the best interest of each of them and of their minor child, petitioners have agreed to dissolve
their conjugal partnership and to partition the assets thereof, under the following terms and
conditions-this document, a pleading being intended by them to embody and evidence their
agreement:

xxx xxx xxx

(c) The following properties shall be adjudicated to petitioner Sylvia Lichauco De Leon. These
properties will be free of any and all liens and encumbrances, with clear title and subject to no claims
by third parties. Petitioner Jose Vicente De Leon fully assumes all responsibility and liability in the event
these properties shall not be as described in the previous sentence:

Sedan (1972 model)

Suite 11-C, Avalon Condominium,

Ortigas Ave., comer Xavier St.,
Mandaluyong, Rizal, Philippines

Apt. 702, Wack-Wack Condominium,

Mandaluyong, Rizal, Philippines

The rights to assignment of 2 Ayala lots in Alabang Rizal (corner lots, 801 sq. meters each) (Fully paid)

2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18, Block 22 Westborough Unit 2) (Fully
paid)

The sum of One Hundred Thousand Pesos (P100,000.00)

$30,000.00 at current exchange rate

$5,000.00 at current exchange rate

After ex-parte hearings, the trial court issued an Order dated February 19, 1980 approving the petition, the dispositive
portion of which reads (p. 143, Rollo):

WHEREFORE, it is hereby declared that the conjugal partnership of the Spouses is DISSOLVED
henceforth, without prejudice to the terms of their agreement that each spouse shall own, dispose of,
possess, administer and enjoy his or her separate estate, without the consent of the other, and all
earnings from any profession, business or industries shall likewise belong to each spouse.

On March 17, 1980, Sylvia moved for the execution of the above-mentioned order. However, Jose Vicente moved for a
reconsideration of the order alleging that Sylvia made a verbal reformation of the petition as there was no such
agreement for the payment of P4,500.00 monthly support to commence from the alleged date of separation in April,
1973 and that there was no notice given to him that Sylvia would attempt verbal reformation of the agreement
contained in the joint petition

While the said motion for reconsideration was pending resolution, on April 20, 1980, Macaria filed with the trial court a
motion for leave to intervene alleging that she is the owner of the properties involved in the case. The motion was
granted. On October 29, 1980, Macaria, assisted by her husband Juan De Leon, filed her complaint in intervention. She
assailed the validity and legality of the Letter-Agreement which had for its purpose, according to her, the termination of
marital relationship between Sylvia and Jose Vicente. However, before any hearing could be had, the judicial
reorganization took place and the case was transferred to the-Regional Trial Court of Pasig. On December 29, 1983, the
trial court rendered judgment, the dispositive portion of which reads (pp. 35-36, Rollo):

WHEREFORE, judgment is hereby rendered on the complaint in intervention in favor of the intervenor,
declaring null and void the letter agreement dated March 16, 1977 (Exhibits 'E' to 'E-2'), and ordering
petitioner Sylvia Lichauco De Leon to restore to intervenor the amount of P380,000.00 plus legal
interest from date of complaint, and to pay intervenor the amount of P100,000.00 as and for attorney's
fees, and to pay the costs of suit.
 Judgment is likewise rendered affirming the order of the Court dated February 19, 1980 declaring the
conjugal partnership of the spouses Jose Vicente De Leon and Sylvia Lichauco De Leon DISSOLVED;
and adjudicating to each of them his or her share of the properties and assets of said conjugal
partnership in accordance with the agreement embodied in paragraph 5 of the petition, except
insofar as the adjudication to petitioner Sylvia L. De Leon of the properties belonging to and owned
by Intervenor Macaria De Leon is concerned.

Henceforth, (a) each spouse shall own, dispose of, possess, administer and enjoy his or her separate
estate, present and future without the consent of the other; (b) an earnings from any profession,
business or industry shall likewise belong to each of them separately; (c) the minor child Susana De
Leon shall stay with petitioner Sylvia Lichauco De Leon for two to three months every year-the
transportation both ways of the child for the trip to the Philippines to be at the expense of the
petitioner Jose Vicente De Leon; and (d) petitioner Jose Vicente De Leon shall give petitioner Sylvia
Lichauco De Leon the sum of P4,500.00 as monthly support for the minor child Susana to commence
from February 19, 1980.

Sylvia appealed to the respondent Court of Appeals raising the following errors:

1) The trial court erred in finding that the cause or consideration of the Letter- Agreement is the termination of marital
relations;

2) The trial court failed to appreciate testimonial and documentary evidence proving that Macaria de Leon's claims of
threat, intimidation and mistake are baseless; and

3) The trial court erred in finding that Sylvia Lichauco de Leon committed breach of the Letter-Agreement; and further,
failed to appreciate evidence proving Macaria de Leon's material breach thereof.

The respondent court affirmed the decision in toto. The motion for reconsideration was denied. Hence, the present
petition.

The only basis by which Sylvia may lay claim to the properties which are the subject matter of the Letter-Agreement, is
the Letter-Agreement itself. The main issue, therefore, is whether or not the Letter-Agreement is valid. The third paragraph
of the Letter-Agreement, supra, reads:

In consideration for a peaceful and amicable termination of relations between the undersigned and
her lawfully wedded husband, Jose Vicente De Leon, your son, the following are agreed upon:
(emphasis supplied)

It is readily apparent that the use of the word "relations" is ambiguous, perforce, it is subject to interpretation. There being
a doubt as to the meaning of this word taken by itself, a consideration of the general scope and purpose of the
instrument in which it occurs (see Germann and Co. v. Donaldson, Sim and Co., 1 Phil. 63) and Article 1374 of the Civil
Code which provides that the various stipulations of a contract shall be interpreted together, attributing to the doubtful
ones that sense which may result from all of them taken jointly, is necessary.

Sylvia insists that the consideration for her execution of the Letter-Agreement was the termination of property relations
with her husband. Indeed, Sylvia and Jose Vicente subsequently filed a joint petition for judicial approval of the
dissolution of their conjugal partnership, sanctioned by Article 191 of the Civil Code. On the other hand, Macaria and
Jose Vicente assert that the consideration was the termination of marital relationship.

We sustain the observations and conclusion made by the trial court, to wit (pp. 44- 46, Rollo):

On page two of the letter agreement (Exhibit' E'), the parties contemplated not only to agree to a
judicial separation of property of the spouses but likewise to continue with divorce proceedings
(paragraphs 1 and 2, Obligations of the Wife, Exhibit 'E-1'). If taken with the apparently ambiguous
provisions in Exhibit E' regarding termination of 'relations', the parties clearly contemplated not only the
termination of property relationship but likewise of marital relationship in its entirety. Furthermore, it
would be safe to assume that the parties in Exhibit 'E' not having specified the particular relationship
which they wanted to peacefully and amicably terminate had intended to terminate all kinds of
relations, both marital and property. While there could be inherent benefits to a termination of
conjugal property relationship between the spouses, the court could not clearly perceive the
underlying benefit for the intervenor insofar as termination of property relationship between petitioners
is concerned, unless the underlying consideration for intervenor is the termination of marital
relationship by divorce proceedings between her son Jose Vicente and his wife petitioner Sylvia. The
last sentence of paragraph 2 under "Obligations of the Wife" unequivocally states: "It is the stated
objective of this agreement that said divorce proceedings (in the United States) will continue. "There is
merit in concluding that the consideration by which Intervenor executed Exhibit 'E' to 'E-2' was to
secure freedom for her son petitioner Jose Vicente De Leon, especially if Exhibit 'R'-Intervenor, which is
(sic) agreement signed by petitioner Sylvia to consent to and pardon Jose Vicente De Leon for
adultery and concubinage (among others) would be considered. In the light, therefore, of the
foregoing circumstances, this Court finds credible the testimony of intervenor as follows:

Q Will you please go over the Exhibit 'E' to 'E-2'- intervenor consisting of three pages
and inform us whether or not this is the letter of March 16, 1977 which you just
referred to?

A Yes, this is the letter.

Why did you affix your signature to this Exh. 'E'-intervenor (sic)?

A Because at that time when I signed it I want to buy peace for myself and for the
whole family.

Q From whom did you want to buy peace and/or what kind of peace?

A I wanted to buy peace from Sylvia Lichauco whom I knew was kind of
'matapang;' so I want peace for me and primarily for the peaceful and amicable
termination of marital relationship between my son, Joe Vincent and Sylvia.
(Deposition dated September 6, 1983-Macaria de Leon, p. 6-7)

This Court, therefore, finds and holds that the cause or consideration for the intervenor Macaria De
Leon in having executed Exhibits 'E' to 'E-2' was the termination of the marital relationship between her
son Jose Vicente De Leon and Sylvia Lichauco de Leon.

Article 1306 of the New Civil Code provides:

Art. 1306. The contracting parties may establish such stipulations, clauses, terms, and conditions as
they may deem convenient, provided they are not contrary to law, morals, good customs, public
order or public policy.

If the stipulation is contrary to law, morals or public policy, the contract is void and inexistent from the
beginning.

Art. 1409. The following contracts are inexistent and void from the beginning:

Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public
policy;

xxx xxx xxx

(7) Those expressly prohibited or declared void by law.

These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived.

But marriage is not a mere contract but a sacred social institution. Thus, Art. 52 of the Civil Code
provides:

Art. 52. Marriage is not a mere contract but an inviolable social institution. Its nature, consequences
and incidents are governed by law and not subject to stipulations...
 From the foregoing provisions of the New Civil Code, this court is of the considered opinion and so
holds that intervenor's undertaking under Exhibit 'E' premised on the termination of marital relationship
is not only contrary to law but contrary to Filipino morals and public Policy. As such, any agreement or
obligations based on such unlawful consideration and which is contrary to public policy should be
deemed null and void. (emphasis supplied)

Additionally, Article 191 of the Civil Case contemplates properties belonging to the spouses and not those belonging to
a third party, who, in the case at bar., is Macaria. In the petition for the dissolution of the conjugal partnership, it was
made to appear that the said properties are conjugal in nature. However, Macaria was able to prove that the
questioned properties are owned by her. Neither Sylvia nor Jose Vicente adduced any contrary evidence.

Granting, in gratia argumenti, that the consideration of the Letter-Agreement was the termination of property relations,
We agree with the respondent court that (pp. 46-47, Rollo):

... the agreement nevertheless is void because it contravenes the following provisions of the Civil
Code:

Art. 221. The following shall be void and of no effect:

(1) Any contract for personal separation between husband and wife;

(2) Every extra-judicial agreement, during marriage, for the dissolution of the conjugal partnership of
gains or of the absolute community of property between husband and wife;

Besides, the Letter-Agreement shows on its face that it was prepared by Sylvia, and in this regard, the ambiguity in a
contract is to be taken contra proferentem, i.e., construed against the party who caused the ambiguity and could have
also avoided it by the exercise of a little more care. Thus, Article 1377 of the Civil Code provides: "The interpretation of
obscure words of stipulations in a contract shall not favor the party who caused the obscurity" (see Equitable Banking
Corp. vs. IAC, G.R. No. 74451, May 25, 1988, 161 SCRA 518).

Sylvia alleges further that since the nullity of the Letter-Agreement proceeds from the unlawful consideration solely of
Macaria, applying the pari delicto rule, it is clear that she cannot recover what she has given by reason of the Letter-
Agreement nor ask for the fulfillment of what has been promised her. On her part, Macaria raises the defenses of
intimidation and mistake which led her to execute the Letter-Agreement. In resolving this issue, the trial court said (pp.
148-151, Rollo):

In her second cause of action, intervenor claims that her signing of Exhibits 'E' to 'E- 2' was due to a
fear of an unpeaceful and troublesome separation other son with petitioner Sylvia Lichauco de Leon.
In support of her claim, intervenor testified as follows:

Q Will you please inform us how did Sylvia Lichauco disturb or threaten your son or
yourself?

A Despite the fact that Sylvia Lichauco voluntarily left my son Joe Vincent and
abandoned him, she unashamedly nagged Joe and me to get money and when
her demands were not met she resorted to threats like, she threatened to bring Joe
to court for support. Sylvia threatened to scandalize our family by these baseless
suits; in fact she caused the service of summons to Joe when he went to the United
States. (Intervenor's deposition dated Sept. 6, 1983, p. 8).

On the other hand, petitioner Sylvia claims that it was intervenor and petitioner Jose Vicente who
initiated the move to convince her to agree to a dissolution of their conjugal partnership due to the
alleged extra-marital activities of petitioner Jose Vicente de Leon. She testified as follows:

Q Now in her testimony, Macaria Madrigal de Leon also said that you threatened
her by demanding money and nagged her until she agreed to the letter
agreement of March 1977, what can you say about that?

A I think with all the people sitting around with Atty. Quisumbing, Atty. Chuidian, my
father-in-law, my sister-in-law and I, you know, it can be shown that this was a
 friendly amicable settlement that they were much really interested in settling down
as I was. I think there were certain reasons that they wanted to get done or
planned, being at that time Jose was already remarried and had a child. That
since she then found out that since she was worried about what might be, you
know, involved in any future matters. She just wanted to do what she could. She just
want me out of the picture. So in no way, it cannot be said that I nagged and
threatened her. (TSN dated December 8, 1983, p. 137-138)

In resolving this issue, this Court leans heavily on Exhibit 'R'-intervenor, which was not controverted by
petitioner Sylvia. A reading of Exhibit 'R' would show that petitioner Sylvia would consent to and
pardon petitioner Jose Vicente, son of intervenor, for possible crimes of adultery and/or concubinage,
with a sizing attached; that is, the transfer of the properties subject herein to her. There appears some
truth to the apprehensions of intervenor for in petitioner Sylvia's testimony she confirms the worry of
intervenor as follows:'... being at that time Jose (De Leon) was already remarried and had a child. That
since she (intervenor) found out that, she was worried about what might be, you know, involved in
any future matters. She just want me out of the picture." The aforesaid fear of intervenor was further
corroborated by her witness Concepcion Tagudin who testified as follows:

Q Now, you mentioned that you were present when Mrs. Macaria De Leon signed
this Exhibit 'E-2, ' will you inform us whether there was anything unusual which you
noticed when Mrs. Macaria M. De Leon signed this Exhibit 'E-2'?

A Mrs. Macaria M. De Leon was in a state of tension and anger. She was so mad
that she remarked: 'Punetang Sylvia ito bakit ba niya ako ginugulo. Ipakukulong
daw niya si Joe Vincent kung hindi ko pipirmahan ito. Sana matapos na itong
problemang ito pagkapirmang ito,' sabi niya.' (Deposition-Concepcion Tagudin,
Oct. 21, 1983, pp. 10-11)

In her third cause of action, intervenor claims mistake or error in having signed Exhibits '1' to 'E-2'
alleging in her testimony as follows:

Q Before you were told such by your lawyers what if any were your basis to believe
that Sylvia would no longer have inheritance rights from your son, Joe Vincent?

A Well, that was what Sylvia told me. That she will eliminate any inheritance rights
from me or my son Joe Vincent's properties if I sign the document amicably. ...
(Intervenor's deposition-Sept. 6, 1983, pp. 9-10).

On the other hand, petitioner Sylvia claims that intervenor could not have been mistaken in her
having signed the document as she was under advice of counsel during the time that Exhibits 'E' to 'E-
2' was negotiated. To support such claims by Sylvia Lichauco De Leon, the deposition testimony of
Atty. Vicente Chuidian was presented before this Court:

Atty. Herbosa: Now you mentioned Atty. Norberto Quisumbing, would you be able
to tell us in what capacity he was present in that negotiation?

Atty. Chuidian: He was counsel for Dona Macaria and for Joe Vincent, the spouse
of Sylvia. (Deposition of V. Chuidian, December 16, 1983, p. 8)

The New Civil Code provides:

Art. 1330. A contract where consent is given through mistake, violence, intimidation, undue influence
or fraud is voidable.

Art. 1331. In order that mistake may invalidate consent, it should refer to the substance of the thing
which is the object of the contract, or to those conditions which have principally moved one or both
parties to enter into a contract. ...

The preponderance of evidence leans in favor of intervenor who even utilized the statement of the
divorce lawyer of petitioner Sylvia (Mr. Penrod) in support of the fact that intervenor was mistaken in
 having signed Exhibits 'E' to 'E-2' because when she signed said Exhibits she believed that fact that
petitioner Sylvia would eliminate her inheritance rights and there is no showing that said intervenor
was properly advised by any American lawyer on the fact whether petitioner Sylvia, being an
American citizen, could rightfully do the same. Transcending, however, the issue of whether there was
mistake of fact on the part of intervenor or not, this Court could not. see a valid cause or
consideration in favor of intervenor Macaria De Leon having signed Exhibits 'E' to 'E-2.' For even if
petitioner Sylvia had confirmed Mr. Penrod's statement during the divorce proceedings in the United
States that she would undertake to eliminate her hereditary rights in the event of the property
settlement, under Philippine laws, such contract would likewise be voidable, for under Art. 1347 of the
New Civil Code 'no contract may be entered into upon future inheritance.

We do not subscribe to the aforestated view of the trial court. Article 1335 of the Civil Code provides:

xxx xxx xxx

There is intimidation when one of the contracting parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his person or property, or upon the person or
property of his spouse, descendants or ascendants, to give his consent.

To determine the degree of the intimidation, the age, sex and condition of the person shall be borne
in mind.

A threat to enforce one's claim through competent authority, if the claim is just or legal, does not
vitiate consent.

In order that intimidation may vitiate consent and render the contract invalid, the following requisites must concur: (1)
that the intimidation must be the determining cause of the contract, or must have caused the consent to be given; (2)
that the threatened act be unjust or unlawful; (3) that the threat be real and serious, there being an evident
disproportion between the evil and the resistance which all men can offer, leading to the choice of the contract as the
lesser evil; and (4) that it produces a reasonable and well-grounded fear from the fact that the person from whom it
comes has the necessary means or ability to inflict the threatened injury. Applying the foregoing to the present case, the
claim of Macaria that Sylvia threatened her to bring Jose Vicente to court for support, to scandalize their family by
baseless suits and that Sylvia would pardon Jose Vicente for possible crimes of adultery and/or concubinage subject to
the transfer of certain properties to her, is obviously not the intimidation referred to by law. With respect to mistake as a
vice of consent, neither is Macaria's alleged mistake in having signed the Letter-Agreement because of her belief that
Sylvia will thereby eliminate inheritance rights from her and Jose Vicente, the mistake referred to in Article 1331 of the
Civil Code, supra. It does not appear that the condition that Sylvia "will eliminate her inheritance rights" principally
moved Macaria to enter into the contract. Rather, such condition was but an incident of the consideration thereof
which, as discussed earlier, is the termination of marital relations.

In the ultimate analysis, therefore, both parties acted in violation of the laws. However, the pari delicto rule, expressed in
the maxims "Ex dolo malo non oritur actio" and "In pari delicto potior est conditio defendentis," which refuses remedy to
either party to an illegal agreement and leaves them where they are, does not apply in this case. Contrary to the ruling
of the respondent Court that (pp. 47-48, Rollo):

... [C]onsequently, intervenor appellees' obligation under the said agreement having been annulled,
the contracting parties shall restore to each other that things which have been subject matter of the
contract, their fruits and the price or its interest, except as provided by law (Art. 1398, Civil Code).

Article 1414 of the Civil Code, which is an exception to the pari delicto rule, is the proper law to be applied. It provides:

When money is paid or property delivered for an illegal purpose, the contract may be repudiated by
one of the parties before the purpose has been accomplished, or before any damage has been
caused to a third person. In such case, the courts may, if the public interest wig thus be subserved,
allow the party repudiating the contract to recover the money or property.

Since the Letter-Agreement was repudiated before the purpose has been accomplished and to adhere to the pari
delicto rule in this case is to put a premium to the circumvention of the laws, positive relief should be granted to Macaria.
Justice would be served by allowing her to be placed in the position in which she was before the transaction was
entered into.
With the conclusions thus reached, We find it unnecessary to discuss the other issues raised.

ACCORDINGLY, the petition is hereby DENIED. The decision of the respondent Court of Appeals dated June 30, 1987 and
its resolution dated November 24, 1987 are AFFIRMED.

SO ORDERED.

Narvasa (Chairman), Cruz and Gancayco, JJ., concur.

Griño-Aquino, J., is on leave.

FIRST DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 154380

Petitioner,

Present:

Davide, Jr., C.J.,

- versus - (Chairman),
Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
CIPRIANO ORBECIDO III,
Respondent. Promulgated:

October 5, 2005

x--------------------------------------------------x

DECISION

QUISUMBING, J.:

Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and

obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine

law?

Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel

question, presented as a pure question of law.

In this petition for review, the Solicitor General assails the Decision[1] dated May 15, 2002, of the Regional Trial

Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution[2] dated July 4, 2002 denying the motion for
reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry.

The fallo of the impugned Decision reads:

WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by
reason of the divorce decree obtained against him by his American wife, the petitioner is given the
capacity to remarry under the Philippine Law.

IT IS SO ORDERED.[3]

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines

in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady

Kimberly V. Orbecido.

In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano

discovered that his wife had been naturalized as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married

a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel,

California.

Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the

Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein

petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied.

In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE[4]

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only

applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper
remedy, according to the OSG, is to file a petition for annulment or for legal separation.[5] Furthermore, the OSG argues

there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of judicial

determination.[6]

For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien

wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant

to Section 12, Article II of the Constitution.[7]

At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition

for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising, and for a declaration
of his rights or duties, thereunder.
...

The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must

be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy;

and (4) that the issue is ripe for judicial determination.[8]

This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where

one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the

parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while

respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal

interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries,

litigation ensues and puts into question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent?

Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the

legislators in its enactment?

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the

Family Code, which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed

into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so

amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force
in the country where they were solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It

seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a

foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but

later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to

remarry, and indeed she remarried an American citizen while residing in the U.S.A.

Noteworthy, in the Report of the Public Hearings[9] on the Family Code, the Catholic Bishops Conference of the

Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:

 1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who
divorce them abroad. These spouses who are divorced will not be able to re-marry, while the
spouses of foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For
those whose foreign spouses validly divorce them abroad will also be considered to be validly
divorced here and can re-marry. We propose that this be deleted and made into law only
after more widespread consultation. (Emphasis supplied.)

Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article

26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation

where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the

Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.[10] The Van

Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree

validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to

remarry under Philippine law.

Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were

Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization?

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.[11] In Quita, the parties were,

as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and

obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his

naturalized foreign spouse is no longer married under Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of

Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The

Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization

of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute

according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the

legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law.

A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its

spirit or intent.[12]

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains

married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case

must be deemed as coming within the contemplation of Paragraph 2 of Article 26.

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a
foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their

citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has

been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a

valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are

both present in this case. Thus Cipriano, the divorced Filipino spouse, should be allowed to remarry.
 We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a

petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this

particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity.

On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the

legally separated Filipino spouse would still remain married to the naturalized alien spouse.

However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the

divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of

proving it and mere allegation is not evidence.[13]

Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an

American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it

must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.[14] Such foreign law must

also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged

and proved.[15] Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as

specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to

enter into another marriage.

Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended

by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired

foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient

evidence submitted and on record, we are unable to declare, based on respondents bare allegations that his wife, who

was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent
is now capacitated to remarry. Such declaration could only be made properly upon respondents submission of the

aforecited evidence in his favor.

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and

Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.

No pronouncement as to costs.

SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice
Chairman

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Associate Justice

ADOLFO S. AZCUNA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

HILARIO G. DAVIDE, JR.

Chief Justice

THIRD DIVISION

[G.R. No. 138322. October 2, 2001]

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondent.

DECISION

PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid
according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien
spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments;
hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven
according to our law on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999
Decision[1] and the March 24, 1999 Order[2] of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No.
3026AF. The assailed Decision disposed as follows:

WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January
12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any
and/or both parties.[3]

The assailed Order denied reconsideration of the above-quoted Decision.

The Facts

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1,
1987.[4] They lived together as husband and wife in Australia. On May 18, 1989, [5] a decree of divorce, purportedly
dissolving the marriage, was issued by an Australian family court.

On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of Australian Citizenship issued
by the Australian government.[6] Petitioner -- a Filipina -- and respondent were married on January 12, 1994 in Our Lady of
Perpetual Help Church in Cabanatuan City.[7] In their application for a marriage license, respondent was declared as
single and Filipino.[8]

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their
Statutory Declarations secured in Australia.[9]

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage[10] in the court a quo, on the
ground of bigamy -- respondent allegedly had a prior subsisting marriage at the time he married her on January 12,
1994. She claimed that she learned of respondents marriage to Editha Samson only in November, 1997.

In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its
subsequent dissolution.[11] He contended that his first marriage to an Australian citizen had been validly dissolved by a
divorce decree obtained in Australia in 1989;[12] thus, he was legally capacitated to marry petitioner in 1994.

On July 7, 1998 -- or about five years after the couples wedding and while the suit for the declaration of nullity was
pending -- respondent was able to secure a divorce decree from a family court in Sydney, Australia because the marriage
ha[d] irretrievably broken down.[13]

Respondent prayed in his Answer that the Complaint be dismissed on the ground that it stated no cause of
action.[14] The Office of the Solicitor General agreed with respondent.[15] The court marked and admitted the documentary
evidence of both parties.[16] After they submitted their respective memoranda, the case was submitted for resolution.[17]

Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court

 The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and
recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element
of the marriage; that is, respondents alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce
decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more marital union
to nullify or annul.

Hence, this Petition.[18]

Issues

Petitioner submits the following issues for our consideration:

The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso
facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the
petitioner.

The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry
constitutes absence of a substantial requisite voiding the petitioners marriage to the respondent

The trial court seriously erred in the application of Art. 26 of the Family Code in this case.

The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the
applicable provisions in this case.

The trial court gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso
facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce
decree before our courts.[19]

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether
the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally
capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest.

The Courts Ruling

The Petition is partly meritorious.

First Issue:
Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial courts recognition of the divorce between respondent and Editha Samson. Citing Adong v.
Cheong Seng Gee,[20] petitioner argues that the divorce decree, like any other foreign judgment, may be given
recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the
alleged divorce decree itself.She adds that respondent miserably failed to establish these elements.

Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are
governed by the law of the place where they were celebrated (the lex loci celebrationis). In effect, the Code requires the
presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of the place
where the marriage was performed.

At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does
not provide for absolute divorce; hence, our courts cannot grant it.[21] A marriage between two Filipinos cannot be
dissolved even by a divorce obtained abroad, because of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages
involving a Filipino and a foreigner, Article 26[25] of the Family Code allows the former to contract a subsequent marriage
in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.[26] A divorce
obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with
their respective national laws.[27]

A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van
Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided
they are valid according to their national law.[28] Therefore, before a foreign divorce decree can be recognized by our
courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing
it.[29] Presentation solely of the divorce decree is insufficient.

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration
requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows:

ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for
such license with the proper local civil registrar which shall specify the following:

xxxxxxxxx

(5) If previously married, how, when and where the previous marriage was dissolved or annulled;

xxxxxxxxx

ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to

ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish,
instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased
spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his
or her previous marriage. x x x.

ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties
of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded in the appropriate civil registry
and registries of property; otherwise, the same shall not affect their persons.

Respondent, on the other hand, argues that the Australian divorce decree is a public document -- a written official
act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution.

Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the
document must first be presented and admitted in evidence.[30] A divorce obtained abroad is proven by the divorce
decree itself. Indeed the best evidence of a judgment is the judgment itself.[31] The decree purports to be a written act or
record of an act of an official body or tribunal of a foreign country.[32]

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official
record of a foreign country by either (1) an official publication or (2) a copy thereof attested[33] by the officer having legal
custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate
issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which
the record is kept and (b) authenticated by the seal of his office. [34]

The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian
family court.[35] However, appearance is not sufficient; compliance with the aforementioned rules on evidence must be
demonstrated.
 Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel
for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry
of Cabanatuan City.[36] The trial court ruled that it was admissible, subject to petitioners qualification.[37] Hence, it was
admitted in evidence and accorded weight by the judge. Indeed, petitioners failure to object properly rendered the
divorce decree admissible as a written act of the Family Court of Sydney, Australia.[38]

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer
bound by Philippine personal laws after he acquired Australian citizenship in 1992.[39] Naturalization is the legal act of
adopting an alien and clothing him with the political and civil rights belonging to a citizen.[40] Naturalized citizens, freed
from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian,
respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party
challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce
decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a
long time. Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges may take judicial notice
of foreign laws in the exercise of sound discretion.

We are not persuaded. The burden of proof lies with the party who alleges the existence of a fact or thing necessary
in the prosecution or defense of an action.[41] In civil cases, plaintiffs have the burden of proving the material allegations
of the complaint when those are denied by the answer; and defendants have the burden of proving the material
allegations in their answer when they introduce new matters.[42] Since the divorce was a defense raised by respondent,
the burden of proving the pertinent Australian law validating it falls squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.[43] Like any other facts,
they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know
by reason of their judicial function.[44] The power of judicial notice must be exercised with caution, and every reasonable
doubt upon the subject should be resolved in the negative.

Second Issue: Respondents Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to
marry her in 1994. Hence, she concludes that their marriage was void ab initio.

Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately
established his legal capacity to marry under Australian law.

Respondents contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for
a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo
matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends
it and leaves the bond in full force.[45] There is no showing in the case at bar which type of divorce was procured by
respondent.

Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional judgment of divorce. It
is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the
prescribed period during which no reconciliation is effected.[46]

Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict
remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which
was granted on the ground of adultery may be prohibited from marrying again. The court may allow a remarriage only
after proof of good behavior.[47]

On its face, the herein Australian divorce decree contains a restriction that reads:

1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has
died) commits the offence of bigamy.[48]

This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not
absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of
the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondents capacity to remarry
despite the paucity of evidence on this matter.
 We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive
evidence as to his civil status based on Section 48, Rule 39[49] of the Rules of Court, for the simple reason that no proof has
been presented on the legal effects of the divorce decree obtained under Australian laws.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted
together with the application for a marriage license. According to her, its absence is proof that respondent did not have
legal capacity to remarry.

We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party
concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal
capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien applicant for a marriage license.[50]

As it is, however, there is absolutely no evidence that proves respondents legal capacity to marry petitioner. A review
of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for
petitioner: (a) Exhibit A Complaint;[51] (b) Exhibit B Certificate of Marriage Between Rederick A. Recio (Filipino-Australian)
and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C Certificate of Marriage
Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;[53] (d)
Exhibit D Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick
A. Recio and Editha D. Samson was in its records;[54] and (e) Exhibit E Certificate of Australian Citizenship of Rederick A.
Recio;[55] (2) for respondent: (a) Exhibit 1 -- Amended Answer;[56] (b) Exhibit 2 Family Law Act 1975 Decree Nisi of Dissolution
of Marriage in the Family Court of Australia;[57] (c) Exhibit 3 Certificate of Australian Citizenship of Rederick A. Recio;[58] (d)
Exhibit 4 Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory
Declaration of the Legal Separation Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.[60]

Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen,
was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioners contention that the court a
quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least,
to prove his legal capacity to contract the second marriage.

Neither can we grant petitioners prayer to declare her marriage to respondent null and void on the ground of
bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result
of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive
evidence, if any, which show petitioners legal capacity to marry petitioner. Failing in that, then the court a quo may
declare a nullity of the parties marriage on the ground of bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the
other, in Cabanatuan City dated January 12, 1994.

WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for
the purpose of receiving evidence which conclusively show respondents legal capacity to marry petitioner; and failing in
that, of declaring the parties marriage void on the ground of bigamy, as above discussed. No costs.

SO ORDERED.

Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.

EN BANC

G.R. No. 221029, April 24, 2018

REPUBLIC OF THE PHILIPPINES, Petitioner, v. MARELYN TANEDO MANALO, Respondent.

 DECISION

PERALTA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court (Rules) seeks to reverse and set aside the
September 18, 2014 Decision1 and October 12, 2015 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No. 100076.
The dispositive portion of the Decision states:

WHEREFORE, the instant appeal is GRANTED. The Decision dated 15 October 2012 of the Regional Trial Court of Dagupan
City, First Judicial Region, Branch 43, in SPEC. PROC. NO. 2012-0005 is REVERSED and SET ASIDE.

Let a copy of this Decision be served on the Local Civil Registrar of San Juan, Metro Manila.

SO ORDERED.3

The facts are undisputed.

On January 10, 2012, respondent Marelyn Tanedo Manalo (Manalo) filed a petition for cancellation of entry of marriage
in the Civil Registry of San Juan, Metro Manila, by virtue of a judgment of divorce rendered by a Japanese court.

Finding the petition to be sufficient in form and in substance, Branch 43 of the Regional Trial Court (RTC) of Dagupan City
set the case for initial hearing on April 25, 2012. The petition and the notice of initial hearing were published once a week
for three consecutive weeks in a newspaper of general circulation. During the initial hearing, counsel for Manalo marked
the documentary evidence (consisting of the trial court's Order dated January 25, 2012, affidavit of publication, and
issues of the Northern Journal dated February 21-27, 2012, February 28 - March 5, 2012, and March 6-12, 2012) for
purposes of compliance with the jurisdictional requirements.

The Office of the Solicitor General (OSG) entered its appearance for petitioner Republic of the Philippines authorizing the
Office of the City Prosecutor of Dagupan to appear on its behalf. Likewise, a Manifestation and Motion was filed
questioning the title and/or caption of the petition considering that, based on the allegations therein, the proper action
should be a petition for recognition and enforcement of a foreign judgment.

As a result, Manalo moved to admit an Amended Petition, which the court granted. The Amended Petition, which
captioned that it is also a petition for recognition and enforcement of foreign judgment, alleged:

2. That petitioner is previously married in the Philippines to a Japanese national named YOSHINO MINORO as shown by
their Marriage Contract x x x;

3. That recently, a case for divorce was filed by herein [petitioner] in Japan and after due proceedings, a divorce
decree dated December 6, 2011 was rendered by the Japanese Court x x x;

4. That at present, by virtue of the said divorce decree, petitioner and her divorced Japanese husband are no longer
living together and in fact, petitioner and her daughter are living separately from said Japanese former husband;

5. That there is an imperative need to have the entry of marriage in the Civil Registry of San Juan, Metro Manila
cancelled, where the petitioner and the former Japanese husband's marriage was previously registered, in order that it
would not appear anymore that petitioner is still married to the said Japanese national who is no longer her husband or is
no longer married to her; furthermore, in the event that petitioner decides to be remarried, she shall not be bothered
and disturbed by said entry of marriage;

6. That this petition is filed principally for the purpose of causing the cancellation of entry of the marriage between the
petitioner and the said Japanese national, pursuant to Rule 108 of the Revised Rules of Court, which marriage was
already dissolved by virtue of the aforesaid divorce decree; [and]

7. That petitioner prays, among others, that together with the cancellation of the said entry of her marriage, that she be
allowed to return and use. her maiden surname, MANALO.4
Manalo was allowed to testify in advance as she was scheduled to leave for Japan for her employment. Among the
documents that were offered and admitted were:

1. Court Order dated January 25, 2012, finding the petition and its attachments to be sufficient in form and in substance;

2. Affidavit of Publication;

3. Issues of the Northern Journal dated February 21-27, 2012, February 28 - March 5, 2012, and March 6-12, 2012;

4. Certificate of Marriage between Manalo and her former Japanese husband;

5. Divorce Decree of the Japanese court;

6. Authentication/Certificate issued by the Philippine Consulate General in Osaka, Japan of the Notification of Divorce;
and

7. Acceptance of Certificate of Divorce.5

The OSG did not present any controverting evidence to rebut the allegations of Manalo.

On October 15, 2012, the trial court denied the petition for lack of merit. In ruling that the divorce obtained by Manalo in
Japan should not be recognized, it opined that, based on Article 15 of the New Civil Code, the Philippine law "does not
afford Filipinos the right to file for a divorce, whether they are in the country or living abroad, if they are married to
Filipinos or to foreigners, or if they celebrated their marriage in the Philippines or in another country" and that unless
Filipinos "are naturalized as citizens of another country, Philippine laws shall have control over issues related to Filipinos'
family rights and duties, together with the determination of their condition and legal capacity to enter into contracts
and civil relations, including marriages."6

On appeal, the CA overturned the RTC decision. It held that Article 26 of the Family Code of the Philippines (Family
Code) is applicable even if it was Manalo who filed for divorce against her Japanese husband because the decree they
obtained makes the latter no longer married to the former, capacitating him to remarry. Conformably with Navarro, et
al. v. Exec. Secretary Ermita, et al.7 ruling that the meaning of the law should be based on the intent of the lawmakers
and in view of the legislative intent behind Article 26, it would be the height of injustice to consider Manalo as still married
to the Japanese national, who, in turn, is no longer married to her. For the appellate court, the fact that it was Manalo
who filed the divorce case is inconsequential. Cited as similar to this case was Van Dorn v. Judge Romillo, Jr.8 where the
marriage between a foreigner and a Filipino was dissolved through a divorce filed abroad by the latter.

The OSG filed a motion for reconsideration, but it was denied; hence, this petition.

We deny the petition and partially affirm the CA decision.

Divorce, the legal dissolution of a lawful union for a cause arising after marriage, are of two types: (1) absolute divorce
or a vinculo matrimonii, which terminates the marriage, and (2) limited divorce or a mensa et thoro, which suspends it
and leaves the bond in full force.9 In this jurisdiction, the following rules exist:

1. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.10

2. Consistent with Articles 1511 and 1712 of the New Civil Code, the marital bond between two Filipinos cannot be
dissolved even by an absolute divorce obtained abroad.13

3. An absolute divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines,
provided it is consistent with their respective national laws.14

4. In mixed marriages involving a Filipino and a foreigner, the former is allowed to contract a subsequent marriage in
case the absolute divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.15

On July 6, 1987, then President Corazon C. Aquino signed into law Executive Order (E.O.) No. 209, otherwise known
as The Family Code of the Philippines, which took effect on August 3, 1988.16 Shortly thereafter, E.O. No. 227 was issued
on July 17, 1987.17 Aside from amending Articles 36 and 39 of the Family Code, a second paragraph was added to
Article 26.18 This provision was originally deleted by the Civil Code Revision Committee (Committee), but it was presented
and approved at a Cabinet meeting after Pres. Aquino signed E.O. No. 209.19 As modified, Article 26 now states:

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1),
(4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity
to remarry under Philippine law.

Paragraph 2 of Article 26 confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a
Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage.20 It authorizes our
courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow
divorce.21 Philippine courts cannot try the case on the merits because it is tantamount to trying a divorce case.22 Under
the principles of comity, our jurisdiction recognizes a valid divorce obtained by a spouse of foreign nationality, but the
legal effects thereof, e.g., on custody, care and support of the children or property relations of the spouses, must still be
determined by our courts.23

According to Judge Alicia Sempio-Diy, a member of the Committee, the idea of the amendment is to avoid the absurd
situation of a Filipino as still being married to his or her alien spouse, although the latter is no longer married to the former
because he or she had obtained a divorce abroad that is recognized by his or her national law.24 The aim was that it
would solve the problem of many Filipino women who, under the New Civil Code, are still considered married to their
alien husbands even after the latter have already validly divorced them under their (the husbands') national laws and
perhaps have already married again.25

In 2005, this Court concluded that Paragraph 2 of Article 26 applies to a case where, at the time of the celebration of
the marriage, the parties were Filipino citizens, but later on, one of them acquired foreign citizenship by naturalization,
initiated a divorce proceeding, and obtained a favorable decree. We held in Republic of the Phils. v. Orbecido III:26

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. In Quita, the parties were, as in this
case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a
divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized
foreign spouse is no longer married under Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article
26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were
Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The
Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the
solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. x x x

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married
to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must
be deemed as coming within the contemplation of Paragraph 2 of Article 26.

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their
citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.27

Now, the Court is tasked to resolve whether, under the same provision, a Filipino citizen has the capacity to remarry
under Philippine law after initiating a divorce proceeding abroad and obtaining a favorable judgment against his or her
alien spouse who is capacitated to remarry. Specifically, Manalo pleads for the recognition and enforcement of the
divorce decree rendered by the Japanese court and for the cancellation of the entry of marriage in the local civil
registry "in order that it would not appear anymore that [she] is still married to the said Japanese national who is no
longer her husband or is no longer married to her; [and], in the event that [she] decides to be remarried, she shall not be
bothered and disturbed by said entry of marriage," and to return and to use her maiden surname.

We rule in the affirmative.

Both Dacasin v. Dacasin28 and Van Dorn29 already recognized a foreign divorce decree that was initiated and obtained
by the Filipino spouse and extended its legal effects on the issues of child custody and property relation, respectively.

In Dacasin, post-divorce, the former spouses executed an Agreement for the joint custody of their minor daughter. Later
on, the husband, who is a US citizen, sued his Filipino wife to enforce the Agreement, alleging that it was only, the latter
who exercised sole custody of their child. The trial court dismissed the action for lack of jurisdiction, on the ground,
among others, that the divorce decree is binding following the "nationality rule" prevailing in this jurisdiction. The husband
moved to reconsider, arguing that the divorce decree obtained by his former wife is void, but it was denied. In ruling
that the trial court has jurisdiction to entertain the suit but not to enforce the Agreement, which is void, this Court said:

Nor can petitioner rely on the divorce decree's alleged invalidity - not because the Illinois court lacked jurisdiction or that
the divorce decree violated Illinois law, but because the divorce was obtained by his Filipino spouse - to support the
Agreement's enforceability. The argument that foreigners in this jurisdiction are not bound by foreign divorce decrees is
hardly novel. Van Dorn v. Romillo settled the matter by holding that an alien spouse of a Filipino is bound by a divorce
decree obtained abroad. There, we dismissed the alien divorcee's Philippine suit for accounting of alleged post-divorce
conjugal property and rejected his submission that the foreign divorce (obtained by the Filipino spouse) is not valid in this
jurisdiction x x x.30

Van Dorn was decided before the Family Code took into effect. There, a complaint was filed by the ex-husband, who is
a US citizen, against his Filipino wife to render an accounting of a business that was alleged to be a conjugal property
and to be declared with right to manage the same. Van Dorn moved to dismiss the case on the ground that the cause
of action was barred by previous judgment in the divorce proceedings that she initiated, but the trial court denied the
motion. On his part, her ex-husband averred that the divorce decree issued by the Nevada court could not prevail over
the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign court
cannot, especially if the same is contrary to public policy, divest Philippine courts of jurisdiction to entertain matters within
its jurisdiction. In dismissing the case filed by the alien spouse, the Court discussed the effect of the foreign divorce on the
parties and their conjugal property in the Philippines. Thus:

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is
binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this
jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same being considered contrary to our concept of public policy
and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law. In this case, the divorce in Nevada released private respondent from the
marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

"The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to
change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage
tie, when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is
unknown to the law. When the law provides, in the nature of a penalty, that the guilty party shall not marry again, that
party, as well as the other, is still absolutely freed from the bond of the former marriage."

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing
to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the
Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not
repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal
property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner
should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The
latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served.31

In addition, the fact that a validly obtained foreign divorce initiated by the Filipino spouse can be recognized and given
legal effects in the Philippines is implied from Our rulings in Fujiki v. Marinay, et al.32 and Medina v. Koike.33

In Fujiki, the Filipino wife, with the help of her first husband, who is a Japanese national, was able to obtain a judgment
from Japan's family court, which declared the marriage between her and her second husband, who is a Japanese
national, void on the ground of bigamy. In resolving the issue of whether a husband or wife of a prior marriage can file a
petition to recognize a foreign judgment nullifying the subsequent marriage between his or her spouse and a foreign
citizen on the ground of bigamy, We ruled:

Fujiki has the personality to file a petition to recognize the Japanese Family Court judgment nullifying the marriage
between Marinay and Maekara on the ground of bigamy because the judgment concerns his civil status as married to
Marinay. For the same reason he has the personality to file a petition under Rule 108 to cancel the entry of marriage
between Marinay and Maekara in the civil registry on the basis of the decree of the Japanese Family Court.

There is no doubt that the prior spouse has a personal and material interest in maintaining the integrity of the marriage
he contracted and the property relations arising from it. There is also no doubt that he is interested in the cancellation of
an entry of a bigamous marriage in the civil registry, which compromises the public record of his marriage. The interest
derives from the substantive right of the spouse not only to preserve (or dissolve, in limited instances) his most intimate
human relation, but also to protect his property interests that arise by operation of law the moment he contracts
marriage. These property interests in marriage include the right to be supported "in keeping with the financial capacity of
the family" and preserving the property regime of the marriage.

Property rights are already substantive rights protected by the Constitution, but a spouse's right in a marriage extends
further to relational rights recognized under Title III ("Rights and Obligations between Husband and Wife") of the Family
Code. x x x34

On the other hand, in Medina, the Filipino wife and her Japanese husband jointly filed for divorce, which was granted.
Subsequently, she filed a petition before the RTC for judicial recognition of foreign divorce and declaration of capacity
to remarry pursuant to Paragraph 2 of Article 26. The RTC denied the petition on the ground that the foreign divorce
decree and the national law of the alien spouse recognizing his capacity to obtain a divorce decree must be proven in
accordance with Sections 24 and 25 of Rule 132 of the Revised Rules on Evidence. This Court agreed and ruled that,
consistent with Corpuz v. Sto. Tomas, et al.35 and Garcia v. Recio,36 the divorce decree and the national law of the alien
spouse must be proven. Instead of dismissing the case, We referred it to the CA for appropriate action including the
reception of evidence to determine and resolve the pertinent factual issues.

There is no compelling reason to deviate from the above-mentioned rulings. When this Court recognized a foreign
divorce decree that was initiated and obtained by the Filipino spouse and extended its legal effects on the issues of
child custody and property relation, it should not stop short in likewise acknowledging that one of the usual and
necessary consequences of absolute divorce is the right to remarry. Indeed, there is no longer a mutual obligation to live
together and observe fidelity. When the marriage tie is severed and ceased to exist, the civil status and the domestic
relation of the former spouses change as both of them are freed from the marital bond.

The dissent is of the view that, under the nationality principle, Manalo's personal status is subject to Philippine law, which
prohibits absolute divorce. Hence, the divorce decree which she obtained under Japanese law cannot be given effect,
as she is, without dispute, a national not of Japan, but of the Philippines. It is said that a contrary ruling will subvert not
only the intention of the framers of the law, but also that of the Filipino people, as expressed in the Constitution. The
Court is, therefore, bound to respect the prohibition until the legislature deems it fit to lift the same.

We beg to differ.

Paragraph 2 of Article 26 speaks of "a divorce x x x validly obtained abroad by the alien spouse capacitating him or her
to remarry. " Based on a clear and plain reading of the provision, it only requires that there be a divorce validly obtained
abroad. The letter of the law does not demand that the alien spouse should be the one who initiated the proceeding
wherein the divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the
respondent in the foreign divorce proceeding. The Court is bound by the words of the statute; neither can We put words
in the mouths of the lawmakers.37 "The legislature is presumed to know the meaning of the words, to have used words
advisedly, and to have expressed its intent by the use of such words as are found in the statute. Verba legis non est
recedendum, or from the words of a statute there should be no departure."38
Assuming, for the sake of argument, that the word "obtained" should be interpreted to mean that the divorce
proceeding must be actually initiated by the alien spouse, still, the Court will not follow the letter of the statute when to
do so would depart from the true intent of the legislature or would otherwise yield conclusions inconsistent with the
general purpose of the act.39 Laws have ends to achieve, and statutes should be so construed as not to defeat but to
carry out such ends and purposes.40 As held in League of Cities of the Phils., et al. v. COMELEC, et al.:41

The legislative intent is not at all times accurately reflected in the manner in which the resulting law is couched. Thus,
applying a verba legis or strictly literal interpretation of a statute may render it meaningless and lead to inconvenience,
an absurd situation or injustice. To obviate this aberration, and bearing in mind the principle that the intent or the spirit of
the law is the law itself, resort should be to the rule that the spirit of the law controls its letter.

To reiterate, the purpose of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after a foreign divorce decree that is effective in the country where it was rendered, is
no longer married to the Filipino spouse. The provision is a corrective measure to address an anomaly where the Filipino
spouse is tied to the marriage while the foreign spouse is free to marry under the laws of his or her country.42 Whether the
Filipino spouse initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and
capacitating his or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a
husband or wife. A Filipino who initiated a foreign divorce proceeding is in the same place and in "like circumstance as a
Filipino who is at the receiving end of an alien initiated proceeding. Therefore, the subject provision should not make a
distinction. In both instance, it is extended as a means to recognize the residual effect of the foreign divorce decree on
Filipinos whose marital ties to their alien spouses are severed by operation of the latter's national law.

Conveniently invoking the nationality principle is erroneous. Such principle, found under Article 15 of the Civil Code, is not
an absolute and unbending rule. In fact, the mere existence of Paragraph 2 of Article 26 is a testament that the State
may provide for an exception thereto. Moreover, blind adherence to the nationality principle must be disallowed if it
would cause unjust discrimination and oppression to certain classes of individuals whose rights are equally protected by
law. The courts have the duty to enforce the laws of divorce as written by the Legislature only if they are constitutional.43

While the Congress is allowed a wide leeway in providing for a valid classification and that its decision is accorded
recognition and respect by the courts of justice, such classification may be subjected to judicial review.44 The deference
stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the
Constitution.45 When these violations arise, this Court must discharge its primary role as the vanguard of constitutional
guaranties, and require a stricter and more exacting adherence to constitutional limitations.46 If a legislative classification
impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect
class strict judicial scrutiny is required since it is presumed unconstitutional, and the burden is upon the government to
prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to
protect such interest.47

"Fundamental rights" whose infringement leads to strict scrutiny under the equal protection clause are those basic
liberties explicitly or implicitly guaranteed in the Constitution.48 It includes the right of procreation, the right to marry, the
right to exercise free speech, political expression, press, assembly, and so forth, the right to travel, and the right to
vote.49 On the other hand, what constitutes compelling state interest is measured by the scale of rights and powers
arrayed in the Constitution and calibrated by history.50 It is akin to the paramount interest of the state for which some
individual liberties must give way, such as the promotion of public interest, public safety or the general welfare.51 It
essentially involves a public right or interest that, because of its primacy, overrides individual rights, and allows the former
to take precedence over the latter.52

Although the Family Code was not enacted by the Congress, the same principle applies with respect to the acts of the
President, which have the force and effect of law unless declared otherwise by the court. In this case, We find that
Paragraph 2 of Article 26 violates one of the essential requisites53 of the equal protection clause.54 Particularly, the
limitation of the provision only to a foreign divorce decree initiated by the alien spouse is unreasonable as it is based on
superficial, arbitrary, and whimsical classification.

A Filipino who is married to another Filipino is not similarly situated with a Filipino who is married to a foreign citizen. There
are real, material and substantial differences between them. Ergo, they should not be treated alike, both as to rights
conferred and liabilities imposed. Without a doubt, there are political, economic, cultural, and religious dissimilarities as
well as varying legal systems and procedures, all too unfamiliar, that a Filipino national who is married to an alien spouse
has to contend with. More importantly, while a divorce decree obtained abroad by a Filipino against another Filipino is
null and void, a divorce decree obtained by an alien against his or her Filipino spouse is recognized if made in
accordance with the national law of the foreigner.55
On the contrary, there is no real and substantial difference between a Filipino who initiated a foreign divorce
proceedings and a Filipino who obtained a divorce decree upon the instance of his or her alien spouse. In the eyes of
the Philippine and foreign laws, both are considered as Filipinos who have the same rights and obligations in a alien
land. The circumstances surrounding them are alike. Were it not for Paragraph 2 of Article 26, both are still married to
their foreigner spouses who are no longer their wives/husbands. Hence, to make a distinction between them based
merely on the superficial difference of whether they initiated the divorce proceedings or not is utterly unfair. Indeed, the
treatment gives undue favor to one and unjustly discriminate against the other.

Further, the differentiation in Paragraph 2 of Article 26 is arbitrary. There is inequality in treatment because a foreign
divorce decree that was initiated and obtained by a Filipino citizen against his or her alien spouse would not be
recognized even if based on grounds similar to Articles 35, 36, 37 and 38 of the Family Code.56 In filing for divorce based
on these grounds, the Filipino spouse cannot be accused of invoking foreign law at whim, tantamount to insisting that he
or she should be governed with whatever law he or she chooses. The dissent's comment that Manalo should be
"reminded that all is not lost, for she may still pray for the severance of her marital ties before the RTC in accordance with
the mechanisms now existing under the Family Code" is anything but comforting. For the guidance of the bench and the
bar, it would have been better if the dissent discussed in detail what these "mechanisms" are and how they specifically
apply in Manalo's case as well as those who are similarly situated. If the dissent refers to a petition for declaration of
nullity or annulment of marriage, the reality is that there is no assurance that our courts will automatically grant the same.
Besides, such proceeding is duplicitous, costly, and protracted. All to the prejudice of our kababayan.

It is argued that the Court's liberal interpretation of Paragraph 2 of Article 26 encourages Filipinos to marry foreigners,
opening the floodgate to the indiscriminate practice of Filipinos marrying foreign nationals or initiating divorce
proceedings against their alien spouses.

The supposition is speculative and unfounded.

First, the dissent falls into a hasty generalization as no data whatsoever was shown to support what he intends to
prove. Second, We adhere to the presumption of good faith in this jurisdiction. Under the rules on evidence, it is
disputably presumed (i.e., satisfactory if uncontradicted and overcome by other evidence) that a person is innocent of
crime or wrong,57 that a person intends the ordinary consequences of his voluntary acts,58 that a person takes ordinary
care of his concerns,59 that acquiescence resulted from a belief that the thing acquiesced in was conformable to the
law and fact,60 that a man and woman deporting themselves as husband and wife have entered into a lawful contract
of marriage,61 and that the law has been obeyed.62 It is whimsical to easily attribute any illegal, irregular or immoral
conduct on the part of a Filipino just because he or she opted to marry a foreigner instead of a fellow Filipino. It is
presumed that interracial unions are entered into out of genuine love and affection, rather than prompted by pure lust
or profit. Third, We take judicial notice of the fact that Filipinos are relatively more forbearing and conservative in nature
and that they are more often the victims or at the losing end of mixed marriages. And Fourth, it is not for Us to prejudge
the motive behind a Filipino's decision to marry an alien national. In one case, it was said:

Motives for entering into a marriage are varied and complex. The State does not and cannot dictate on the kind of life
that a couple chooses to lead. Any attempt to regulate their lifestyle would go into the realm of their right to privacy and
would raise serious constitutional questions. The right to marital privacy allows married couples to structure their marriages
in almost any way they see fit, to live together or live apart, to have children or no children, to love one another or not,
and so on. Thus, marriages entered into for other purposes, limited or otherwise, such as convenience, companionship,
money, status, and title, provided that they comply with all the legal requisites, are equally valid. Love, though the ideal
consideration in a marriage contract, is not the only valid cause for marriage. Other considerations, not precluded by
law, may validly support a marriage.63

The 1987 Constitution expresses that marriage, as an inviolable social institution, is the foundation of the family and shall
be protected by the State.64 Nevertheless, it was not meant to be a general prohibition on divorce because
Commissioner Jose Luis Martin C. Gascon, in response to a question by Father Joaquin G. Bernas during the deliberations
of the 1986 Constitutional Commission, was categorical about this point.65 Their exchange reveal as follows:

MR. RAMA. Mr. Presiding Officer, may I ask that Commissioner Bernas be recognized.

THE PRESIDING OFFICER (Mr. Colayco). Commissioner Bernas is recognized.

FR. BERNAS. Just one question, and I am not sure if it has been categorically answered. I refer specifically to the proposal
of Commissioner Gascon. Is this to be understood as a prohibition of a general law on divorce? His intention is to make
this a prohibition so that the legislature cannot pass a divorce law.
MR. GASCON. Mr. Presiding Officer, that was not primarily my intention. My intention was primarily to encourage the
social institution of marriage, but not necessarily discourage divorce. But now that he mentioned the issue of divorce, my
personal opinion is to discourage it, Mr. Presiding Officer.

FR. BERNAS. No. my question is more categorical. Does this carry the meaning of prohibiting a divorce law?

MR. GASCON. No. Mr. Presiding Officer.

FR. BERNAS. Thank you.66

Notably, a law on absolute divorce is not new in our country. Effective March 11, 1917, Philippine courts could grant an
absolute divorce on the grounds of adultery on the part of the wife or concubinage on the part of the husband by virtue
of Act No. 2710 of the Philippine Legislature.67 On March 25, 1943, pursuant to the authority conferred upon him by the
Commander-in-Chief of the Imperial Japanese Forces in the Philippines and with the approval of the latter, the
Chairman of the Philippine Executive Commission promulgated an E.O. No. 141 ("New Divorce Law"), which repealed
Act No. 2710 and provided eleven grounds for absolute divorce, such as intentional or unjustified desertion continuously
for at least one year prior to the filing of the action, slander by deed or gross insult by one spouse against the other to
such an extent as to make further living together impracticable, and a spouse's incurable insanity.68 When the Philippines
was liberated and the Commonwealth Government was restored, it ceased to have force and effect and Act No. 2710
again prevailed.69 From August 30, 1950, upon the effectivity of Republic Act No. 386 or the New Civil Code, an absolute
divorce obtained by Filipino citizens, whether here or abroad, is no longer recognized.70

Through the years, there has been constant clamor from various sectors of the Philippine society to re-institute absolute
divorce. As a matter of fact, in the current 17th Congress, House Bill (H.B.) Nos. 116,711062,72 238073 and 602774 were filed in
the House of Representatives. In substitution of these bills, H.B. No. 7303 entitled "An Act Instituting Absolute Divorce and
Dissolution of Marriage in the Philippines" or the Absolute Divorce Act of 2018 was submitted by the House Committee on
Population and Family Relations on February 28, 2018. It was approved on March 19, 2018 on Third Reading - with 134 in
favor, 57 against, and 2 abstentions. Under the bill, the grounds for a judicial decree of absolute divorce are as follows:

1. The grounds for legal separation under Article 55 of the Family Code, modified or amended, as follows:

a. Physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the
petitioner;
b. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
c. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
d. Final judgment sentencing the respondent to imprisonment of more than six (6) years, even if pardoned;
e. Drug addiction or habitual alcoholism or chronic gambling of the respondent;
f. Homosexuality of the respondent;
g. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
h. Marital infidelity or perversion or having a child with another person other than one's spouse during the marriage,
except when upon the mutual agreement of the spouses, a child is born to them by in vitro or a similar procedure or
when the wife bears a child after being a victim of rape;
i. Attempt by the respondent against the life of the petitioner, a common child or a child of the petitioner; and
j. Abandonment of petitioner by respondent without justifiable cause for more than one (1) year.

When the spouses are legally separated by judicial decree for more than two (2) years, either or both spouses can
petition the proper court for an absolute divorce based on said judicial decree of legal separation.

1. Grounds for annulment of marriage under Article 45 of the Family Code, restated as follows:

a. The party in whose behalf it is sought to have the marriage annulled was eighteen (18) years of age or
over but below twenty-one (21), and the marriage was solemnized without the consent of the
parents, guardian or person having substitute parental authority over the party, in that order, unless
after attaining the age of twenty-one (21), such party freely cohabited with the other and both lived
together as husband or wife;
b. either party was of unsound mind, unless such party after coming to reason, freely cohabited with the
other as husband and wife;
c. The consent of either party was obtained by fraud, unless such party afterwards with full knowledge of
the facts constituting the fraud, freely cohabited with the other as husband and wife;
 d. The consent of either party was obtained by force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter freely cohabited with the other as husband and
wife;
e. Either party was physically incapable of consummating the marriage with the other and such
incapacity continues or appears to be incurable; and
f. Either party was afflicted with a sexually transmissible infection found to be serious or appears to be
incurable.

Provided, That the grounds mentioned in b, e and f existed either at the time of the marriage or supervening after the
marriage.

1. When the spouses have been separated in fact for at least five (5) years at the time the petition for
absolute divorce is filed, and reconciliation is highly improbable;
2. Psychological incapacity of either spouse as provided for in Article 36 of the Family Code, whether or
not the incapacity was present at the time of the celebration of the marriage or later;
3. When one of the spouses undergoes a gender reassignment surgery or transitions from one sex to
another, the other spouse is entitled to petition for absolute divorce with the transgender or
transsexual as respondent, or vice-versa;
4. Irreconcilable marital differences and conflicts which have resulted in the total breakdown of the
marriage beyond repair, despite earnest and repeated efforts at reconciliation.

To be sure, a good number of the Filipinos led by the Roman Catholic Church react adversely to any attempt to enact a
law on absolute divorce, viewing it as contrary to our customs, morals, and traditions that has looked upon marriage and
family as an institution and their nature of permanence, inviolability, and solidarity. However, none of our laws should be
based on any religious law, doctrine, or teaching; otherwise, the separation of Church and State will be violated.75

In the same breath that the establishment clause restricts what the government can do with religion, it also limits what
religious sects can or cannot do. They can neither cause the government to adopt their particular doctrines as policy for
everyone, nor can they cause the government to restrict other groups. To do so, in simple terms, would cause the State
to adhere to a particular religion and, thus, establish a state religion.76

The Roman Catholic Church can neither impose its beliefs and convictions on the State and the rest of the citizenry nor
can it demand that the nation follow its beliefs, even if it sincerely believes that they are good for the country.77 While
marriage is considered a sacrament, it has civil and legal consequences which are governed by the Family Code.78 It is
in this aspect, bereft of any ecclesiastical overtone, that the State has a legitimate right and interest to regulate.

The declared State policy that marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State, should not be read in total isolation but must be harmonized with other constitutional provisions.
Aside from strengthening the solidarity of the Filipino family, the State is equally mandated to actively promote its total
development.79 It is also obligated to defend, among others, the right of children to special protection from all forms of
neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development.80 To Our mind, the State
cannot effectively enforce these obligations if We limit the application of Paragraph 2 of Article 26 only to those foreign
divorce initiated by the alien spouse. It is not amiss to point that the women and children are almost always the helpless
victims of all forms of domestic abuse and violence. In fact, among the notable legislation passed in order to minimize, if
not eradicate, the menace are R.A. No. 6955 (prohibiting mail order bride and similar practices), R.A. No. 9262 ("Anti-
Violence Against Women and Their Children Act of 2004"), R.A. No. 9710 ("The Magna Carta of Women"), R.A. No. 10354
("The Responsible Parenthood and Reproductive Health Act of 2012"), and R.A. No. 9208 ("Anti-Trafficking in Persons Act
of 2003"), as amended by R.A. No. 10364 ("Expanded Anti-Trafficking in Persons Act of 2012"). Moreover, in protecting
and strengthening the Filipino family as a basic autonomous social institution, the Court must not lose sight of the
constitutional mandate to value the dignity of every human person, guarantee full respect for human rights, and ensure
the fundamental equality before the law of women and men.81

A prohibitive view of Paragraph 2 of Article 26 would do more harm than good. If We disallow a Filipino citizen who
initiated and obtained a foreign divorce from the coverage of Paragraph 2 of Article 26 and still require him or her to first
avail of the existing "mechanisms" under the Family Code, any subsequent relationship that he or she would enter in the
meantime shall be considered as illicit in the eyes of the Philippine law. Worse, any child born out of such "extra-marital"
affair has to suffer the stigma of being branded as illegitimate. Surely, these are just but a few of the adverse
consequences, not only to the parent but also to the child, if We are to hold a restrictive interpretation of the subject
provision. The irony is that the principle of inviolability of marriage under Section 2, Article XV of the Constitution is meant
to be tilted in favor of marriage and against unions not formalized by marriage, but without denying State protection
and assistance to live-in arrangements or to families formed according to indigenous customs.82
This Court should not turn a blind eye to the realities of the present time. With the advancement of communication and
information technology, as well as the improvement of the transportation system that almost instantly connect people
from all over the world, mixed marriages have become not too uncommon. Likewise, it is recognized that not all
marriages are made in heaven and that imperfect humans more often than not create imperfect unions.83 Living in a
flawed world, the unfortunate reality for some is that the attainment of the individual's full human potential and self-
fulfillment is not found and achieved in the context of a marriage. Thus, it is hypocritical to safeguard the quantity of
existing marriages and, at the same time, brush aside the truth that some of them are of rotten quality.

Going back, We hold that marriage, being a mutual and shared commitment between two parties, cannot possibly be
productive of any good to the society where one is considered released from the marital bond while the other remains
bound to it.84 In reiterating that the Filipino spouse should not be discriminated against in his or her own country if the
ends of justice are to be served, San Luis v. San Luis85 quoted:

x x x In Alonzo v. Intermediate Appellate Court, the Court stated:

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal
rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent
of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never
within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the
legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are
inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary
when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because
only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do
instead is find a balance between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots
to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the
words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond
them."

xxxx

More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render every one his
due." That wish continues to motivate this Court when it assesses the facts and the law in every case brought to it for
decision. Justice is always an essential ingredient of its decisions. Thus when the facts warrant, we interpret the law in a
way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed
with justice.86

Indeed, where the interpretation of a statute according to its exact and literal import would lead to mischievous results
or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding
as far as necessary the letter of the law.87 A statute may, therefore, be extended to cases not within the literal meaning
of its terms, so long as they come within its spirit or intent.88

The foregoing notwithstanding, We cannot yet write finis to this controversy by granting Manalo's petition to recognize
and enforce the divorce decree rendered by the Japanese court and to cancel the entry of marriage in the Civil
Registry of San Juan, Metro Manila.

Jurisprudence has set guidelines before Philippine courts recognize a foreign judgment relating to the status of a
marriage where one of the parties is a citizen of a foreign country. Presentation solely of the divorce decree will not
suffice.89 The fact of divorce must still first be proven.90 Before a foreign divorce decree can be recognized by our courts,
the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.91

x x x Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and
admitted in evidence. A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a
judgment is the judgment itself. The decree purports to be a written act or record of an act of an official body or tribunal
of a foreign country.
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official
record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal
custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a
certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign
country in which the record is kept and (b) authenticated by the seal of his office.92

In granting Manalo's petition, the CA noted:

In this case, Petitioner was able to submit before the court a quo the 1) Decision of the Japanese Court allowing the
divorce; 2) the Authentication/Certificate issued by the Philippine Consulate General in Osaka, Japan of the Decree of
Divorce; and 3) Acceptance of Certificate of Divorce by Petitioner and the Japanese national. Under Rule 132, Sections
24 and 25, in relation to Rule 39, Section 48 (b) of the Rules of Court, these documents sufficiently prove the subject
Divorce Decree as a fact. Thus, We are constrained to recognize the Japanese Court's judgment decreeing the
divorce.93

If the opposing party fails to properly object, as in this case, the divorce decree is rendered admissible as a written act of
the foreign court.94 As it appears, the existence of the divorce decree was not denied by the OSG; neither was the
jurisdiction of the divorce court impeached nor the validity of its proceedings challenged on the ground of collusion,
fraud, or clear mistake of fact or law, albeit an opportunity to do so.95

Nonetheless, the Japanese law on divorce must still be proved.

x x x The burden of proof lies with the "party who alleges the existence of a fact or thing necessary in the prosecution or
defense of an action." In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when
those are denied by the answer; and defendants have the burden of proving the material allegations in their answer
when they introduce new matters. x x x

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any other facts, they
must be alleged and proved. x x x The power of judicial notice must be exercised with caution, and every reasonable
doubt upon the subject should be resolved in the negative.96

Since the divorce was raised by Manalo, the burden of proving the pertinent Japanese law validating it, as well as her
former husband's capacity to remarry, fall squarely upon her. Japanese laws on persons and family relations are not
among those matters that Filipino judges are supposed to know by reason of their judicial function.

WHEREFORE, the petition for review on certiorari is DENIED. The September 18, 2014 Decision and October 12, 2015
Resolution of the Court of Appeals in CA-G.R. CV No. 100076, are AFFIRMED IN PART. The case is REMANDED to the court
of origin for further proceedings and reception of evidence as to the relevant Japanese law on divorce.

SO ORDERED.

Carpio,* Velasco, Jr., Leonardo-De Castro, Bersamin, Martires, Tijam, Reyes, Jr., and Gesmundo, JJ., concur.
Leonen, J., concur. See separate opinion.
Del Castillo and Perlas-Bernabe, JJ., join the dissent of J. Caguioa.
Caguioa, J., see dissenting opinion.
Sereno, C.J., on leave.
Jardeleza, J., no part.

Endnotes:

* Acting Chief Justice per Special Order No. 2539 dated February 28, 2018.

1Penned by Associate Justice Jane Aurora C. Lantion, with Associate Justices Vicente S.E. Veloso and Nina G. Antonio-
Valenzuela concurring; rollo, pp. 23-31.

2Rollo, pp. 32-33.

3Id. at 30. (Emphasis in the original)

4Id. at 42-43.

5Id. at 25, 37-38.

6Id. at 40-41.

7 663 Phil. 546 (2011).

8 223 Phil. 357 (1985).

9Amor-Catalan v. Court of Appeals, 543 Phil. 568, 575 (2007), citing Garcia v. Recio, 418 Phil. 723, 735-736 (2001).

10Garcia v. Redo, supra, at 730 and Medina v. Koike, G.R. No. 215723, July 27, 2016, 798 SCRA 733, 739.

11Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad. (9a)

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the
12

country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine laws shall be observed in their execution.

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.(11a)

13Tenchavez v. Escano, et al., 22 Phil. 752, 759-760 (1965), as cited in Cang v. Court of Appeals, 357 Phil. 129, 162
(1998); Llorente v. Court of Appeals, 399 Phil. 342, 356 (2000); and Perez v. Court of Appeals, 516 Phil. 204, 211 (2006). See
also Garcia v. Recio, supra note 9, at 730; Republic v. Iyoy, 507 Phil. 485, 504 (2005); and Lavadia v. Heirs of Juan Luces
Luna, 739 Phil. 331, 341-342 (2014).

14Garcia v. Recio, supra note 9, at 730-731.

15FAMILY CODE, Article 26 Paragraph 2. See also Garcia v. Recio, supra note 9, at 730 and Medina v. Koike, supra note
10.

16Republic of the Phils. v. Orbecido III, 509 Phil. 108, 112 (2005), as cited in San Luis v. San Luis, 543 Phil. 275, 291 (2007).

17Id. at 112-113, as cited in San Luis v. San Luis, supra.

18Id. at 113, as cited in San Luis v. San Luis, supra.

19 Sempio-Diy, Alicia V., HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES, 1988, pp. 26-27.

20Medina v. Koike, supra note 10 and Fujiki v. Marinay, 712 Phil. 524, 555 (2013).

21Fujiki v. Marinay, supra.

22Id.

See Vda. de Catalan v. Catalan-Lee, 681 Phil. 493, 498 (2012); Roehr v. Rodriguez, 452 Phil. 608, 617-618 (2003);
23

and Llorente v. Court of Appeals, supra note 13.

24Supranote 19, at 27. See also Republic of the Phils. v. Orbecido III, supra note 16, at 114, as cited in Fujiki v.
Marinay, supra note 20, at 555 and San Luis v. San Luis, supranote 16, at 292.

25Supra note 19, at 27.

26Supra note 16.

27Id. at 114-115. (Citations omitted).

28 625 Phil. 494 (2010).

29Supra note 8.

30Dacasin v. Dacasin, supra, at 507. (Citations omitted; underscoring ours)

31Van Dorn v. Judge Romillo, Jr., supra note 8, at 361-363. (Citations omitted).

32Supra note 20.

33Supra note 10.

34Fujiki v. Marinay, et al., supra note 20, at 549-550. (Citations omitted).

35 642 Phil. 420 (2010).

36Supra note 9.

37Commissioner of Customs v. Manila Star Ferry, Inc., 298 Phil. 79, 86 (1993).

38Globe-Mackay Cable and Radio Corp. v. NLRC, 283 Phil. 649, 660 (1992), as cited in Victoria v. Commission on Elections,
299 Phil. 263, 268 (1994); Enjay Inc. v. NLRC, 315 Phil. 648, 656 (1995); and Pioneer Texturizing Corp. v. NLRC, 345 Phil. 1057,
1073 (1997). See also National Food Authority v. Masada Security Agency, Inc., 493 Phil. 241, 251 (2005); Rural Bank of San
Miguel, Inc. v. Monetary Board, 545 Phil. 62, 72 (2007); Rep. of the Phils. v. Lacap, 546 Phil. 87, 100 (2007); and Phil.
Amusement and Gaming Corp. (PAGCOR) v. Phil. Gaming Jurisdiction Inc. (PEJI), et al., 604 Phil. 547, 553 (2009).

39Mariano, Jr. v. COMELEC, 312 Phil. 259, 268 (1995).

40Id.

41 623 Phil. 531, 564-565 (2009).

42Fujiki v. Marinay, supra note 20, at 555.

43 See Barretto Gonzalez v. Gonzalez, 58 Phil. 67, 72 (1933), as cited in Tenchavez v. Escaño, et al., supra note 13, at 762.

44See Assn. of Small Landowners in the Phils., Inc. v. Hon. Secretary of Agrarian Reform, 256 Phil. 777, 808 (1989) and
Sameer Overseas Placement Agency, Inc. v. Cabiles, 740 Phil. 403, 436 (2014).

45Central Bank Employees Assn., Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 597 (2004) as cited in Serrano v. Gallant
Maritime Services, Inc., 601 Phil. 245, 436 (2009). See also Puno, C.J., Separate Concurring Opinion, Ang Ladlad LGBT
Party v. COMELEC, 632 Phil. 32, 100 (2010); Brion, J., Separate Opinion, Biraogo v. Phil. Truth Commission of 2010, 651 Phil.
374, 550 (2010); and Leonardo-De Castro, J., Concurring Opinion, Garcia v. Judge Drilon, et al., 712 Phil. 44, 125 (2013).

46Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, supra.

47Serrano v. Gallant Maritime Services, Inc., et al., 601 Phil. 245, 282 (2009) and Mosqueda v. Pilipino Banana Growers &
Exporters Association, Inc., G.R. Nos. 189185 & 189305, August 16, 2016, 800 SCRA 313, 360. See also Brion, J., Separate
Opinion, Biraogo v. Philippine Truth Commission of 2010, supra; Velasco, Jr., J., Concurring Opinion, International Service
for the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia (Phils.), et al., 774 Phil. 508, 706 (2015);
and Jardeleza, J., Concurring Opinion, Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700,
March 8, 2016, 786 SCRA 1, 904.

48 Brion, J., Separate Opinion, Biraogo v. Philippine Truth Commission of 2010, supra note 45, at 553.

49See Morales, J., Dissenting Opinion, Central Bank Employees Assn., Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 697-
698 (2004) as cited by Brion, J., Separate Opinion, Biraogo v. Philippine Truth Commission of 2010, supra note 45, at 553,
and Leonen, J., Separate Opinion, Samahan ng mga Progresibong Kabataan v. Quezon City, G.R. No. 225442, August 8,
2017.

50Serrano v. Gallant Maritime Services, Inc., et al., 601 Phil. 245, 298 (2009).

51Id.

52 Brion, J., Separate Concurring Opinion, Sps. Imbong v. Hon. Ochoa, Jr., et al., 732 Phil. 1, 326- 327 (2014).

53 To be valid, the classification must conform to the following requirements:

1.) It must rest on substantial distinctions.

2.) It must be germane to the purpose of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the same class. (See PAGCOR v. Bureau of Internal Revenue, 660 Phil. 636, 648
[2011]; Maj. Gen. Garcia v. The Executive Secretary, et al., 692 Phil. 114, 141-142 [2012]; Corpuz v. People, 734 Phil. 353,
405 [2014]; Ferrer, Jr. v. Mayor Bautista, 762 Phil. 233, 277 (2015); Drugstores Association of the Philippines, Inc. v. National
Council on Disability Affairs, G.R. No. 194561, September 14, 2016, 803 SCRA 25, 55; Ocampo v. Enriquez, G.R. Nos.
225973, 225984, 226097, 226116, 226117, 226120 & 226294, November 8, 2016; and Mindanao Shopping Destination Corp.
v. Duterte, G.R. No. 211093, June 6, 2017).

54 Section 1, Article III of the Constitution states:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.

55Tenchavez v. Escano, et al., supra note 13, as cited in Cang v. Court of Appeals, supranote 13;; Llorente v. Court of
Appeals, supra note 13; and Perez v. Court of Appeals, supra note 13. See also Garcia v. Recio, supra note 9, at
730; Republic v. Iyoy supra note 13; and Lavadia v. Heirs of Juan Luces Luna, supra note 13. FAMILY CODE, Article 26
Paragraph 2. See also Garcia v. Recio, supra note 9, at 730 and Medina v. Koike, supranote 10.

56 Art. 35. The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted
with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
(3) Those solemnized without a license, except those covered by the preceding Chapter;
(4) Those bigamous or polygamous marriages not falling under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization. (As amended by E.O. 227)

Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between
the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.

Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between the adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person's spouse or his or her own
spouse. (82)

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and
the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must
institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse. (83a)

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of
the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry
and registries of property; otherwise, the same shall not affect third persons, (n)

Art. 53. Either of the former spouses may marry again after complying with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall be null and void.

57 RULE 131, Section 3(a).

58Id., Section 3(c).

59Id., Section 3(d).

60Id., Section 3(x).

61Id., Section 3(aa).

62Id., Section 3(ff).

63Rep. of the Phils. v. Albios, 719 Phil. 622, 636 (2013).

64 1987 CONSTITUTION, Article XV, Section 2. This echoed the Family Code provision, which provides:

Art. 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance
with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social
institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that
marriage settlements may fix the property relations during the marriage within the limits provided by this Code.

65 Bernas, Joaquin G, S.J., THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995 Edition, pp. 1132, citing V RECORD 41.

66 Record of the Constitutional Commission: Proceedings and Debates, Volume V, September 24, 1986, p. 41.
67See Garcia Valdez v. Soteraña Tuason, 40 Phil. 943, 944 (1920); Francisco v. Tayao, 50 Phil. 42 (1927); People v. Bitdu, 58
Phil. 817 (1933); Sikat v. Canson, 61 Phil. 207 (1939); and Arca, et al. v. Javier, 95 Phil. 579 (1954).

68 See Baptista v. Castañeda, 16 Phil. 461 (1946); Luz v. Court of First Instance of Tacloban, 77 Phil. 679 (1946); and Antonio
v. Reyes, 519 Phil. 337 (2006).

69Baptista v. Castañeda, supra, at 463.

70Tenchavezv. Escano, et al.,supra note 13, at 759-760, as cited in Cang v. Court of Appeals, supra note 13; Llorente v.
Court of Appeals, supra note 13; and Perez v. Court of Appeals, supra note 13. See also Garcia v. Recio, supra note 9, at
730; Republic v. Iyoy, supra note 13; and Lavadia v. Heirs of Juan Luces Luna, 739 Phil. 331, 341-342 (2014).

71Entitled "Instituting Absolute Divorce in the Philippines And For Other Purposes," with Representative Edcel C. Lagman
as Principal Author.

72Entitled "An Act Amending Title I, Chapter 3, of Executive Order No. 209, Otherwise Known as the Family Code of the
Philippines, Prescribing Additional Ground for Annulment," with Representative Robert Ace S. Barbers as Principal Author.

73Entitled "An Act Introducing Divorce in the Philippines, Amending for the Purpose Articles 26, 55 to 66 and Repealing
Article 36 Under Title II of Executive Order No. 209, As Amended, Otherwise Known as the Family Code of the Philippines,
and For Other Purposes," with Gabriela Women's Party Representatives Emmi A. De Jesus and Arlene D. Brosas as
principal authors.

74Entitled "An Act Providing for Grounds for the Dissolution of a Marriage," with Representatives Teddy B. Baguilat, Jr.,
Rodel M. Batocabe, Arlene D. Brosas, Ariel B. Casilao, France L. Castro, Nancy A. Catamco, Pia S. Cayetano, Emmi A. De
Jesus, Sarah Jane I. Elago, Gwendolyn F. Garcia, Ana Cristina Siquian Go, Edcel C. Lagman, Pantaleon D. Alvarez,
Antonio L. Tinio, and Carlos Isagani T. Zarate as Principal Authors.

75 See Leonen, J., dissenting in Matudan v. Republic, G.R. No. 203284, November 14, 2016.

76Re: Letter of Tony Q. Valenciano, A.M. No. 10-4-19-SC (Resolution), March 7, 2017.

77 See Sps. Imbong, et al. v. Hon. Ochoa, Jr., et al., 732 Phil. 1, 167 (2014).

78Tilar v. Tilar, G.R. No. 214529, July 12, 2017.

79 Article XV, Section 1.

80 Article XV, Section 3(2).

Article II, Sections 11, 12 and 14. See also Republic Act Nos. 7192 ("Women in Development and Nation Building Act")
81

and 9710 ("The Magna Carta of Women").

82 Bernas, Joaquin G, S.J., THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995 Edition, pp. 1132, citing V RECORD 40, 44.

83 See Paras v. Paras, 555 Phil. 786, 804 (2007)

84San Luis v. San Luis, supra note 16, at 292-293.

85Supra note 16.

86San Luis v. San Luis, supra note 16, at 293-294.

87Republic of the Phils. v. Orbecido III, supra note 16, at 115.

88Id.
89Garcia v. Recio, supra note 9, at 731, as cited in Vda. de Catalan v. Catalan-Lee, supranote 23, at 501.

90Fujiki v. Marinay, supra note 20, at 544 and Vda. de Catalan v. Catalan-Lee, supra note 23, at 499.

91Garcia v. Recio, supra note 9, at 731, as cited in Medina v. Koike, supra note 10 and Republic of the Phils. v. Orbecido
III, supra note 16, at 116. See also Bayot v. The Hon. Court of Appeals, et al., 591 Phil. 452, 470 (2008).

92Garcia v. Recio, supra note 9, at 732-733. (Citations omitted). See also Vda. de Catalan v. Catalan-Lee, supra note 23,
at 499 and 501-502 and San Luis v. San Luis, supra note 16, at 294.

93Rollo, pp. 29-30.

94Garcia v. Recio, supra note 9, at 733-734.

95See Bayot v. The Hon. Court of Appeals, et al., supra note 75, at 470-471; and Roehr v. Rodriguez, supra note, 23, at
617.

96Garcia v. Recio, supra note 9, at 735. (Citations omitted). See also Vda. de Catalan v. Catalan- Lee, supra note 23, at
500-501; San Luis v. San Luis, supra note 16, at 295; Republic of the Phils. v. Orbecido III, supra note 16, at 116;
and Llorente v. Court of Appeals, supra note 13, at 354.

NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on April 24, 2018 a Decision/Resolution, copy attached herewith, was rendered by the Supreme
Court in the above-entitled case, the original of which was received by this Office on May 17, 2018 at 3:15 p.m.

Very truly yours,

(SGD.) EDGAR O. ARICHETA

Clerk of Court

CONCURRING OPINION

LEONEN, J.:

I concur with the ponencia of Justice Peralta, adding the following points.

The proposal of the Solicitor General is to give Article 261 of our Family Code an interpretation which capacitates and
empowers the Japanese husband the option to divorce and how such choice has effects in our country while, at the
same time, disallowing the Filipina wife from being able to do the same simply because she is a Filipina.
That interpretation may be unconstitutional. Article II, Section 14 of our Constitution provides:

Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before
the law of women and men.

This constitutional fiat advances the notion of gender equality from its passive formulation in Article III, Section 12 to its
more active orientation.

Article III, Section 1 simply states that "nor shall any person be denied the equal protection of the laws." Traditionally, this
means that the State has no duty to find ways and means to ensure equality. It is only a prescription that whatever legal
burdens and benefits are given to men should likewise be given to women. It does not require the State, through any of
its organs, to find affirmative ways and means to battle the patriarchy—that complex of political, cultural, and economic
factors that ensure women's disempowerment.

By enacting our Constitution and signing on to our political obligations to the Convention on the Elimination of All Forms
of Discrimination Against Women, we have legally committed to do better.

We likewise note that the Family Code was followed by Republic Act No. 7192 or the Women in Development and
Nation Building Act. Within this law are provisions which ensure equal treatment between men and women, thus:

Section 2. Declaration of Policy. - The State recognizes the role of women in nation building and shall ensure the
fundamental equality before the law of women and men. The State shall provide women rights and opportunities equal
to that of men.

....

Section 5. Equality in Capacity to Act. - Women of legal age, regardless of civil status, shall have the capacity to act and
enter into contracts which shall in every respect be equal to that of men under similar circumstances.

In all contractual obligations where married men have the capacity to act, married women shall have equal rights.

To this end:

(1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements
under the same conditions as men;

(2) Women shall have equal access to all government and private sector programs granting agricultural credit,
loans and non- material resources and shall enjoy equal treatment in agrarian reform and land resettlement
programs;

(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and

(4) Married women shall have the rights equal to those of married men in applying for passports, secure visas
and other travel documents, without need to secure the consent of their spouses.

In all other similar contractual relations, women shall enjoy equal rights and shall have the capacity to act which shall in
every respect be equal to those of men under similar circumstances. (Underscoring supplied)
Republic Act No. 9710 or the Magna Carta of Women reflects the state policy to "[abolish]. . . the unequal structures and
practices that perpetuate discrimination and inequality"3between the sexes, and Section 19 of the law is specific on the
equality of women and men as to rights relating to marriage and family relations:

Section 19. Equal Rights in All Matters Relating to Marriage and Family Relations. - The State shall take all appropriate
measures to eliminate discrimination against women in all matters relating to marriage and family relations and shall
ensure:

(a) the same rights to enter into and leave marriages or common law relationships referred to under the Family
Code without prejudice to personal and religious beliefs;

(b) the same rights to choose freely a spouse and to enter into marriage only with their free and full consent. The
betrothal and the marriage of a child shall have no legal effect;

(c) the joint decision on the number and spacing of their children and to have access to the information,
education and means to enable them to exercise these rights;

(d) the same personal rights between spouses or common law spouses including the right to choose freely a
profession and an occupation;

(e) the same rights for both spouses or common law spouses in respect of the ownership, acquisition,
management, administration, enjoyment, and disposition of property;

(f) the same rights to properties and resources, whether titled or not, and inheritance, whether formal or
customary; and

(g) women shall have equal rights with men to acquire, change, or retain their nationality. The State shall ensure
in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall
automatically change the nationality of the wife, render her stateless or force upon her the nationality of the
husband. Various statutes of other countries concerning dual citizenship that may be enjoyed equally by
women and men shall likewise be considered.

Customary laws shall be respected: Provided, however, That they do not discriminate against women. (Underscoring
supplied)

Section 19 is straightforward: the State shall ensure that men and women are to have "the same rights to enter into and
leave marriages."

Following section 19 of Republic Act No. 9710, Article 26 of the Family Code should be read to mean that who initiates
the divorce proceedings abroad is immaterial. Once a divorce decree is issued, the foreign spouse is deemed to have
"obtained" a divorce which capacitates him or her to remarry. The same status should therefore be afforded to the
Filipino spouse.
Besides, in many jurisdictions, the foreign spouse is given the option to divorce on the basis of a mutual recognition that
irreconcilable differences have surfaced in the context of their relationship. Some foreign laws, therefore, allow joint filing
for a divorce decree to ensure that there be less incrimination among the spouses, a more civil and welcoming
atmosphere for their children, and less financial burden for the families affected. The interpretation proposed by the
Solicitor General does not accommodate this possibility. It is blind to the actual complexities experienced by our citizens
in mixed marriages.

II

Justice Caguioa provides the argument that interpreting Article 26 of the Family Code in the manner provided in
the ponencia violates the nationality principle enshrined in Article 15 of the Civil Code.

I disagree.

Article 15 of the Civil Code provides:

Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.

Clearly, it is not only Article 26 of the Family Code or the Civil Code that applies. It should also include the Constitution,
which is the bedrock of rights of any citizen. Thus, the State's obligation to "ensure the fundamental equality before the
law of women and men"4applies with equal if not greater force. In my view, this is the full extent of the nationality
principle. It is borne of rational interpretation, not judicial legislation.

III

Finally, my agreement with the ponencia is also impelled by my understanding that divorce is more consistent with the
constitutionally entrenched fundamental freedoms inherent in individuals as human beings. It is also most consistent with
the constitutional command for the State to ensure human dignity.

The restrictive nature of our marriage laws tends to reify the concept of a family which is already far from the living
realities of many couples and children. For instance, orthodox insistence on heteronormativity may not compare with the
various types of care that various other "non-traditional" arrangements present in many loving households.

The worst thing we do in a human relationship is to regard the commitment of the other formulaic. That is, that it is
shaped alone by legal duty or what those who are dominant in government regard as romantic. In truth, each
commitment is unique, borne of its own personal history, ennobled by the sacrifices it has gone through, and defined by
the intimacy which only the autonomy of the parties creates.

In other words, words that describe when we love or are loved will always be different for each couple. It is that which
we should understand: intimacies that form the core of our beings should be as free as possible, bound not by social
expectations but by the care and love each person can bring.

Yet, the present form and the present interpretation we have on the law on marriage constrains. In love, there are no
guarantees. In choosing our most intimate partners, we can commit mistakes. It is but part of being human.

Our law cruelly defines the normal. The legal is coated in a false sense of morality poorly reasoned. It condemns those
who have made bad choices into a living inferno.

In my view, this case is a step forward in the right direction.

IV

As I stated in a dissent5 I wrote in 2016, we had absolute divorce laws in the past. Act No. 2710,6 enacted in 1917, allowed
the filing of a petition for divorce on the ground of adultery on the part of the wife, or concubinage on the part of the
husband.7
Eleven grounds for divorce were provided in Executive Order No. 141,8 effective during the Japanese occupation. These
grounds included "intentional or unjustified desertion continuously for at least one year prior to the filing of a [petition] for
divorce" and "slander by deed or gross insult by one spouse against the other to such an extent as to make further living
impracticable."9

After the Japanese left, the laws they enacted were declared void.10 Act No. 2710 again took effect until the Civil
Code's enactment in 1950. Since then, absolute divorce has been prohibited in our jurisdiction.

A world whose borders are increasingly becoming permeable with the ease of travel as well as with the technological
advances will definitely foster more inter-cultural relationships. These relationships can become more intimate.

I am of the belief that the law never intended for the Filipino to be at a disadvantage. For so long as the Constitution
itself guarantees fundamental equality, the absurd result from a literal and almost frigid and unfeeling interpretation of
our laws should not hold. To say that one spouse may divorce and the other may not contributes to the patriarchy. It
fosters an unequal relationship prone to abuse in such intimate relationships.

The law is far from frigid. It should passionately guarantee equality and I stand with this Court in ensuring that it does.

ACCORDINGLY, I vote to deny the Petition for Review on Certiorari and to affirm, with modification, the Court of Appeals'
Decision in CA-G.R. CV No. 100076. The case should be remanded to the court of origin for further proceedings and
reception of evidence as to the relevant Japanese law on divorce.

1 FAMILY CODE, art. 26 provides:

Article 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles
35 (1), (4), (5) and (6), 3637 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to
remarry under Philippine law.

2 CONST, art. III, sec. 1 provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.

3 Rep. Act No. 9710, sec. 2 provides:

Section 2. Declaration of Policy. - Recognizing that the economic, political, and sociocultural realities affect women's
current condition, the State affirms the role of women in nation building and ensures the substantive equality of women
and men. It shall promote empowerment of women and pursue equal opportunities for women and men and ensure
equal access to resources and to development results and outcome. Further, the State realizes that equality of men and
women entails the abolition of the unequal structures and practices that perpetuate discrimination and inequality. To
realize this, the State shall endeavor to develop plans, policies, programs, measures, and mechanisms to address
discrimination and inequality in the economic, political, social, and cultural life of women and men. The State condemns
discrimination against women in all its forms and pursues by all appropriate means and without delay the policy of
eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) and other international instruments consistent with Philippine law. The State shall accord
women the rights, protection, and opportunities available to every member of society.

The State affirms women's rights as human rights and shall intensify its efforts to fulfill its duties under international and
domestic law to recognize, respect, protect, fulfill, and promote all human rights and fundamental freedoms of women,
especially marginalized women, in the economic, social, political, cultural, and other fields without distinction or
discrimination on account of class, age, sex, gender, language, ethnicity, religion, ideology, disability, education, and
status. The State shall provide the necessary mechanisms to enforce women's rights and adopt and undertake all legal
measures necessary to foster and promote the equal opportunity for women to participate in and contribute to the
development of the political, economic, social, and cultural realms.
The State, in ensuring the full integration of women's concerns in the mainstream of development, shall provide ample
opportunities to enhance and develop their skills, acquire productive employment and contribute to their families and
communities to the fullest of their capabilities.

In pursuance of this policy, the State reaffirms the right of women in all sectors to participate in policy formulation,
planning, organization, implementation, management, monitoring, and evaluation of all programs, projects, and
services. It shall support policies, researches, technology, and training programs and other support services such as
financing, production, and marketing to encourage active participation of women in national development.

4 CONST., art. II, sec. 14.

5See Dissenting Opinion in Matudan v. Republic, G.R. No. 203284, November 14, 2016, <
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/november2016/203284. pdf > [Per J. Del
Castillo, Second Division].

6 An Act to Establish Divorce (1917).

7 Act. No. 2710, sec. 1 provides:

Section 1. A petition for divorce can only be filed for adultery on the part of the wife or concubinage on the part of the
husband, committed in any of the forms described in article four hundred and thirty-seven of the Penal Code.

See Valdez v. Tuazon, 40 Phil. 943, 948 (1920) [Per J. Street, En Banc].

8 Otherwise known as "The New Divorce Law."

9Baptista v. Castañeda, 76 Phil. 461, 462 (1946) [Per J. Ozaeta, En Banc].

10Id. at 462-463.

DISSENTING OPINION

CAGUIOA, J.:

The Supreme Court x x x aims to adopt a liberal construction of statutes. By liberal construction of statutes is meant that
method by which courts from the language used, the subject matter, and the purposes of those framing laws, are able to
find out their true meaning. There is a sharp distinction, however, between construction of this nature and the act of a
court in engrafting upon a law something that has been omitted which someone believes ought to have been
embraced. The former is liberal construction and is a legitimate exercise of judicial power. The latter is judicial legislation
forbidden by the tripartite division of powers among the three departments of government, the executive, the legislative,
and the judicial.1

On the basis of the Court's rulings in Van Dorn v. Romillo, Jr.2(Van Dorn), Republic of the Philippines v. Orbecido
III3(Orbecido), and Dacasin v. Dacasin4(Dacasin), the ponencia holds that Article 26(2) of the Family Code permits
the blanket recognition, under Philippine law, of a divorce decree obtained abroad by a Filipino citizen against the
latter's foreigner spouse.

I disagree.

At the outset, it bears to emphasize that the public policy against absolute divorce remains in force. At present, there
exists no legal mechanism under Philippine law through which a Filipino may secure a divorce decree upon his own
initiative. Accordingly, it is the Court's duty to uphold such policy and apply the law as it currently stands until the
passage of an amendatory law on the subject.

As members of the Court, ours is the duty to interpret the law; this duty does not carry with it the power to determine
what the law should be in the face of changing times, which power, in turn, lies solely within the province of Congress.

Article 26(2) of the Family Code is an exception to the nationality principle under Article 15 of the Civil Code.

Article 26(2) was introduced during the meetings of the Joint Civil Code and Family Law Committee (the Committee) to
address the effect of foreign divorce decrees on mixed marriages between Filipinos and foreigners. The provision, as
originally worded, and the rationale for its introduction, appear in the deliberations:

[Professor Esteban B. Bautista (Prof. Bautista)]'s position, even under the present law, was that the Filipina wife should be
allowed to remarry as long as the divorce is valid under the national law of the husband, with which [Judge Alicia
Sempio-Diy (Judge Diy)] and [Justice Leonor Ines-Luciano (Justice Luciano)] concurred.

After further deliberation, [Justice Ricardo C. Puno (Justice Puno)] suggested that they formulate the base to cover the
above situation. Judge Diy and [Justice Eduardo P. Caguioa (Justice Caguioa)] formulated the base as follows:

In a mixed marriage between a Filipino citizen and a foreigner, both capacitated to marry under Philippine law, in case
the foreigner should obtain a valid divorce abroad, capacitating him to remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law.5

However, subsequent deliberations show that the Committee ultimately resolved to delete the provision and defer
action until absolute divorce is determined in future legislation:

On Article [26(2)], [Justice Jose B.L. Reyes (Justice Reyes)] commented that it seems to discriminate against Filipinos, who
are married to Filipinos, since the provision governs only Filipinos married to foreigners.

Justice Puno suggested that, in line with Justice Caguioa's view that xxx they should make the Proposed Family Code as
acceptable as possible and since they are not touching on divorce which is one of the big issues and they are leaving it
to future legislation, they omit Article 126(2)] temporarily and take it up when they take up the matter of absolute
divorce.

Prof. Bautista remarked that it is a matter of equity, justice and fairness that Article [26(2)] should be retained. On the
point raised by Justice Reyes, Prof. Bautista opined that there is no unfairness in the case of a Filipino, who is married to a
Filipino, because in the case of a Filipino who is married to a foreigner, the foreigner is already free, and yet the Filipino is
still married to nobody. [Dean Bartolome S. Carale (Dean Carale)] added that if two Filipinos are married anywhere, they
are both covered by the Philippine prohibitory laws because they are nationals of the Philippines. Justice Caguioa,
however, pointed out that, in effect, there is preferential treatment in the case of Filipinos married to foreigners, since if
the foreigner gets a divorce, the Filipino spouse also automatically gets a divorce. Dean Carale remarked that Article
[26(2)] will in effect encourage Filipinos to marry foreigners. Prof. Bautista disagreed since it is the foreigner and not the
Filipino, who will seek divorce.

xxxx

Justice Reyes remarked that this article is an implicit recognition of foreign divorce, with which Justice Caguioa
concurred. Prof. Bautista and [Professor Flerida Ruth P. Romero (Prof. Romero)] pointed out that the article will only cover
exceptional cases and special situations and that there is a reasonable and substantial basis for making it an exception.

After further discussion, Justice Puno rephrased Article [26(2)] in accordance with Dr. Cortes' suggestion as follows:

Where a marriage between a Filipino citizen and a foreigner is validly celebrated abroad and a divorce is thereafter
validly obtained abroad capacitating such foreigner to remarry, the Filipino spouse shall likewise have capacity to
remarry under Philippine law.

xxxx
Having sufficiently discussed the matter, the Committee decided to put the issue to a vote.

The members voted as follows:

(1) Justice Puno, Justice Caguioa, Dr. Cortes, Dean Carale, Dean Gupit and Prof. Baviera were for the deletion of Article
[26(2)].

(2) Justice Diy, Prof. Bautista, Prof. Romero and [Director Flora C. Eufemio] were for its retention.

Hence, the Committee agreed that x x x Article [26(2)] shall be deleted x x x.6(Emphasis and underscoring supplied)

Accordingly, Article 26(2) did not appear in the initial version of the Family Code under Executive Order (EO) 209 which
was signed into law by then President Corazon Aquino on July 6, 1987. Days later, or on July 17, 1987, President Aquino
issued EO 227 which incorporated, among others, Article 26(2). Thus, when the Family Code finally took effect on August
3, 1988, Article 26, in its entirety, read as follows:

ART. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1),
(4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly
obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity
to remarry under Philippine law.

While Article 26(2) was reinstated by executive fiat, it is nevertheless clear that the true spirit behind the provision remains
explicit in the Committee deliberations — Article 26(2) had been crafted to serve as an exception to the nationality
principle embodied in Article 15 of the Civil Code, which states:

ART. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.

The deliberations show that Article 26(2) has the effect of (i) enforcing divorce decrees which are binding on foreign
nationals under their national law; and (ii) recognizing the residual effect of such foreign divorce decrees on their Filipino
spouses who are bound by the prohibition against absolute divorce under the Civil Code.7

To be sure, Article 26(2) had not been crafted to dilute the Philippines' policy against absolute divorce. In fact, this
perceived possible dilution is precisely what prompted the majority of the Committee members to vote for the deletion
of Article 26(2) in the initial version of the Family Code found in EO 209. As the deliberations indicate, the exception
provided in Article 26(2) is narrow, and intended only to address the unfair situation that results when a foreign national
obtains a divorce decree against a Filipino citizen, leaving the latter stuck in a marriage without a spouse, thus:

Justice Caguioa explained that the intention of the provision is to legalize foreign divorces for the Filipino so that in the
case of a Filipina, who was married to an American, who in turn later secured a divorce, said Filipina will be allowed to
remarry. Justice Puno and Judge Diy remarked that this is not clear in the provision [Article 26(2)]. Justice Puno, however,
commented that it will open the gates to practically invalidating the Philippine laws by the simple expedient of marrying
a foreigner, and that it will be an additional cause for the breakage of families, with which Justice Caguioa concurred.
Judge Diy stated that, on the other hand, it is an absurdity for a Filipina to be married without a husband.8 (Emphasis
supplied)

I believe that this view is consistent with the Court's rulings in Van Dorn, Orbecido, and Dacasin.

In Van Dorn, a case decided prior to the enactment of the Family Code, an American citizen sought to compel his
former Filipina wife to render an accounting of their alleged conjugal business in Manila. The American citizen argued
that he retained the right to share in the proceeds of the disputed business, as the divorce decree issued by the Nevada
District Court cannot be given effect in the Philippines. Ruling against the American citizen, the Court held that the
divorce decree issued by a United States court is binding against him as an American citizen.9As a residual effect of such
divorce, the American citizen no longer had standing to sue as the husband of his former Filipina wife.10Hence, in Van
Dorn, the Court held:
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same being considered contrary to our concept of public policy
and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law. x x x11 (Emphasis supplied)

In Orbecido, a Filipino citizen sought permission to remarry before the courts, claiming that his former Filipina wife had
obtained a divorce decree against him from an American court after she had become a naturalized American
citizen. The Court held that the effects of the divorce decree should be recognized in the Philippines since it was
obtained by the former wife as an American citizen in accordance with her national law, and that as a consequence,
the Filipino husband should be allowed to remarry pursuant to Article 26(2). In so ruling, the Court laid down elements for
the application of Article 26(2), thus:

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their
citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.

In this case, when [the Filipino spouse's] wife was naturalized as an American citizen, there was still a valid marriage that
has been celebrated between [them]. As fate would have it, the naturalized alien wife subsequently obtained a valid
divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both
present in this case. Thus x x x the "divorced" Filipino spouse, should be allowed to remarry.12 (Emphasis and underscoring
supplied)

Still, in Dacasin, a Filipino wife secured a divorce decree against her American husband from an Illinois court. The decree
awarded sole custody over the parties' daughter in favor of the Filipino wife. While the parties subsequently executed a
Joint Custody Agreement, the Filipino wife refused to honor the agreement, prompting the American husband to seek
redress before the Philippine courts. The Court held that the Illinois divorce decree is binding on the American citizen,
and that the latter cannot be permitted to evade the terms of the custodial award. Citing the nationality principle, the
Court stressed that "a foreign divorce decree carries as much validity against the alien divorcee in this jurisdictionas it
does in the jurisdiction of the alien's nationality, irrespective of who obtained the divorce."13 It bears stressing that the
issue raised in Dacasin was the enforceability of the Joint Custody Agreement against the American husband,
and not the validity of the foreign divorce decree as against the Filipino wife.

Thus, rather than serving as bases for the blanket recognition of foreign divorce decrees in the Philippines, I believe that
the Court's rulings in Van Dorn, Orbecido and Dacasin merely clarify the parameters for the application of the nationality
principle found in Article 15 of the Civil Code, and the exception thereto found in Article 26(2) the Family Code. These
parameters may be summarized as follows:

1. Owing to the nationality principle, all Filipino citizens are covered by the prohibition against absolute divorce.
As a consequence of such prohibition, a divorce decree obtained abroad by a Filipino citizen cannot be
enforced in the Philippines. To allow otherwise would be to permit a Filipino citizen to invoke foreign law to
evade an express prohibition under Philippine law.

2. Nevertheless, the effects of a divorce decree obtained by a foreign national may be extended to the Filipino
spouse, provided the latter is able to prove (i) the issuance of the divorce decree, and (ii) the personal law of
the foreign spouse allowing such divorce.14 This exception, found under Article 26(2) of the Family Code,
respects the binding effect of the divorce decree on the foreign national, and merely recognizes the residual
effect of such decree on the Filipino spouse.

It should be emphasized, however, that the prohibition against absolute divorce only applies to Filipino citizens.
Accordingly, it cannot be invoked by a foreign national to evade the effects of a divorce decree issued pursuant to his
national law. To reiterate, a divorce decree issued by a foreign court remains binding on the foreign spouse in the
Philippines, regardless of the party who obtained the same provided that such decree is valid and effective under the
foreign spouse's national law.

In essence, the applicable rule (whether Article 15 of the Civil Code on one hand, or Article 26[2] of the Family Code on
the other), is determined by (i) the law upon which the divorce decree had been issued; (ii) the party who obtained the
divorce decree; (iii) the nature of the action brought before the Philippine courts; and (iv) the law governing the
personal status of the party seeking relief.

The corresponding effect of these determining factors are, in turn, illustrated by the relevant cases involving the issue at
hand, decided after the issuance of EO 227:

Incidents of Action in the

Case Incidents of Divorce Court's Resolution
Philippines

Pilapil v. Ibay-
Somera15(Pilapil) Divorce obtained in German spouse filed The divorce decree is
Germany by German two (2) complaints binding on the German
spouse charging Filipino spouse pursuant to the
spouse with adultery nationality principle.
Accordingly, the
German spouse lacks
standing to file the
complaints as
"offended spouse",
having obtained the
divorce decree prior to
the filing of said
complaints.

Republic v.
Iyoy16(Iyoy) Divorce obtained in the Filipino husband The divorce decree
United States by Filipino invokes the divorce cannot be recognized
wife prior to her decree secured by in the Philippines since
naturalization as an his Filipino wife as the Filipino wife
American citizen additional ground to obtained the same
grant his petition for while still a Filipino
declaration of nullity citizen, and was, at
such time, bound by
Philippine laws on family
rights and duties,
pursuant to the
nationality principle.

Orbecido
Divorce obtained in the Filipino spouse The effects of the
United States by sought enforcement divorce decree must be
naturalized American of divorce in the recognized in favor of
spouse Philippines the Filipino spouse
pursuant to Article 26(2)
of the Family Code.
Accordingly, the Filipino
spouse should be
allowed to re-marry.

Dacasin
Divorce obtained in the American spouse
United States by Filipino sought enforcement
spouse of the Joint Custody
Agreement he had
executed with his
former Filipino wife,
which bore terms
The divorce decree is
binding on the
American spouse,
pursuant to the
nationality principle.
Accordingly, he cannot
be allowed to evade
 contrary to those in the same by invoking
the divorce decree the terms of the Joint
Custody Agreement.

Bayot v. Court, of
Appeals17(Bayot) Divorce obtained in the
Dominican Republic by
naturalized American
spouse
Naturalized
American spouse
sought annulment of
her marriage with
her Filipino spouse
through a petition for
annulment filed
before the Regional
Trial Court (RTC)
The divorce decree is
binding on the
naturalized American
spouse, pursuant to the
nationality principle.
Accordingly, she is left
without any cause of
action before the RTC,
as a petition for
annulment presupposes
a subsisting marriage.

Fujiki v.
Marinay18(Fujiki) Divorce obtained in First husband (also a
Japan by Filipina wife Japanese national)
against her second sought recognition
husband, who is a of the divorce
Japanese national obtained by his
Filipina wife against
her second husband
through a Petition for
Judicial Recognition
of Foreign Judgment
(or Decree of
Absolute Nullity of
Marriage) filed
before the RTC
The effect of the
divorce decree issued
pursuant to Japanese
law may be recognized
in the Philippines in
order to affect the
status of the first
husband, who, pursuant
to the nationality
principle, is governed
by Japanese law. Such
recognition is in line with
the Philippines' public
policy, which
characterizes bigamous
marriages as void ab
initio.

Medina v.
Koike19(Medina) Divorcejointlyobtained in
Japan by Filipina wife
and Japanese husband
Filipina wife sought
to enforce the
divorce in the
Philippines through a
Petition for Judicial
Recognition of
Foreign Divorce and
Declaration of
Capacity to Remarry
before the RTC
The case was
remanded to the CA to
allow Filipina wife to
prove that the divorce
obtained abroad by
her andher Japanese
husband is valid
according to the latter's
national law.

The factual circumstances in the foregoing cases illustrate and confirm the legislative intent behind Article 26(2), that is,
primarily, to recognize foreign divorce decrees secured by foreign nationals insofar as they affect Filipinos who would
otherwise be precluded from invoking such decrees in our jurisdiction, and, as well, to recognize those foreign divorce
decrees obtained by Filipinos insofar as they affect their foreign spouses whose national laws allow divorce. For
emphasis, I quote the relevant portion of the deliberations:

Prof. Bautista remarked that it is a matter of equity, justice and fairness that Article [26(2)] should be retained, x x x Dean
Carale added that if two Filipinos are married anywhere, they are both covered by the Philippine prohibitory laws
because they are nationals of the Philippines. Justice Caguioa, however, pointed out that, in effect, there is preferential
treatment in the case of Filipinos married to foreigners, since if the foreigner gets a divorce, the Filipino spouse also
automatically gets a divorce. Dean Carale remarked that Article [26(2)] will in effect encourage Filipinos to marry
foreigners. Prof. Bautista disagreed since it is the foreigner and not the Filipino, who will seek divorce.

xxxx

Justice Reyes remarked that this article is an implicit recognition of foreign divorce, with which Justice Caguioa
concurred. Prof. Bautista and Prof. Romero pointed out that the article will only cover exceptional cases and special
situations and that there is a reasonable and substantial basis for making it an exception.20 (Emphasis and underscoring
supplied)

Consistent with the foregoing, the Court held in Iyoy:

As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the [parties in the marriage] is a
foreigner who divorces his or her Filipino spouse. By its plain and literal interpretation, the said provision cannot be
applied to the case of respondent Crasus and his wife Fely because at the time Fely obtained her divorce, she was still, a
Filipino citizen. x x x At the time she filed for divorce, Fely was still a Filipino citizen, and pursuant to the nationality
principle embodied in Article 15 of the Civil Code of the Philippines, she was still bound by Philippine laws on family rights
and duties, status, condition, and legal capacity, even when she was already living abroad. Philippine laws, then and
even until now, do not allow and recognize divorce between Filipino spouses. Thus, Fely could not have validly obtained
a divorce from respondent Crasus.21 (Emphasis and underscoring supplied)

Article 26(2) of the Family Code merely recognizes the classification previously made pursuant to the nationality
principle.

The ponencia characterizes Article 26(2) of the Family Code as unconstitutional, as it proceeds from a "superficial [and]
arbitrary" classification.22 This position appears to be based on the premise that Article 26(2) creates new distinctions in
itself. This premise, however, is simply erroneous.

The classification under Article 26(2), (that is, between Filipinos in mixed marriages and Filipinos married to fellow Filipinos)
was created as a matter of necessity, in recognition of the classification between Filipinos and foreign nationals which
had been created by Article 15 of the Civil Code decades prior.

In his Separate Opinion in Pilapil, Justice Paras highlights the interplay between these two provisions, thus:

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the
American husband and his American wife as valid and binding in the Philippines on the theory that their status and
capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme Court
regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two
(2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of the National
law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar
as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still
married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the
opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still
one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign
law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute
divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be
still valid under her national law, it would seem that under our law existing before the new Family Code (which took
effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the
Filipino wife.23 (Emphasis supplied)

Hence, to characterize Article 26(2) as unconstitutional in such respect would be to disregard the nationality principle
and the reasons which render the adoption thereof necessary; it would be tantamount to insisting that Filipinos should be
governed with whatever law they choose.
 Article 26(2) of the Family Code rests on substantial and reasonable distinctions.

It has been argued that the verba legis interpretation of Article 26(2) of the Family Code violates the equal protection
clause, and that the application of the provision in this manner would not only be oppressive, but likewise
unconstitutional.

These reservations appear to proceed from three different classifications which, in turn, have been called into question
— first, that between Filipinos in mixed marriages and Filipinos who are married to fellow Filipinos; second, that between
Filipinos and foreigners; and finally, that between men and women.

As earlier discussed, the ponencia finds the first classification "superficial [and] arbitrary"24 insofar as it limits the scope of
recognition to cover only those divorce decrees obtained by foreign nationals.

It bears to stress, however, that the guarantee of equal protection under the Constitution does not require that all laws
indiscriminately operate with equal force with respect to all subjects at all times;25the guarantee does not preclude
classification provided they are reasonable and based on substantial distinctions.26

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens
of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that
every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be
treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that
are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory
within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other
departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one
another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of
inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of
the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class.
This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or
rational basis and is not palpably arbitrary.27 (Emphasis supplied)

There should be no dispute on the existence of substantial distinctions between Filipinos in mixed marriages and those
who are married to fellow Filipinos. In fact, several of these distinctions were highlighted in the ponencia, thus:

A Filipino who is married to another Filipino is not similarly situated with a Filipino who is married to a foreign citizen. There
are real, material and substantial differences between them. Ergo, they should not be treated alike, both as to rights
conferred and liabilities imposed. Without a doubt, there are political, economic, cultural, and religious dissimilarities as
well as varying legal systems and procedures, all too unfamiliar, that a Filipino national who is married to an alien spouse
has to contend with. More importantly, while a divorce decree obtained abroad by a Filipino against another Filipino is
null and void, a divorce decree obtained by an alien against his or her Filipino spouse is recognized if made in
accordance with the national law of the foreigner.28 (Emphasis supplied)

As observed by the ponencia, the most important distinction between Filipinos in mixed marriages and those who are
married to fellow Filipinos is their exposure to the absurdity for which Article 26(2) had been precisely crafted, as only
Filipinos in mixed marriages may find themselves married without a spouse due to the effects of a foreign divorce
decree. This distinction is "substantial" as to necessitate a difference in treatment before the law.

To disregard these substantial distinctions for the sake of liberality would empower Filipinos in mixed marriages to obtain
divorce decrees by invoking foreign law at whim, and effectively sanction a legal preference in their favor at the
expense of those Filipinos who happen to be married to their fellow Filipinos. A liberal interpretation of Article 26(2) would,
in Dean Carale's words, "encourage Filipinos to marry foreigners."29

To stress, all Filipinos are bound by the prohibition against absolute divorce. The recognition afforded to foreign divorce
under Article 26(2) is extended only as a means to recognize its residual effect on Filipinos whose marital ties to their
alien spouses are severed by operation of the latter's national laws. The provision was not intended to grant any
preferential right in favor of Filipinos in mixed marriages, but intended merely to recognize the operation of foreign
divorce on foreigners whose national laws permit divorce.

Equally apparent is the fundamental distinction between foreigners and Filipinos under the second classification, the
former being subject to their respective national laws and the latter being bound by the laws of the Philippines
regardless of their place of residence. Clearly, foreigners and Filipinos are not similarly situated. Hence, the determination
of their legal status, among others, cannot be made subject to the same parameters. In any case, I emphasize, at the
sake of being repetitious, that such classification had been created not by Article 26(2) of the Family Code, but rather,
the nationality principle under Article 15 of the Civil Code:

ART. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.

Finally, I find that Article 26(2) does not make any discernable distinction between men and women, as the exception
therein may be invoked by both men and women with equal force to attain the same end, provided that the
requirements for its application obtain. While I am certainly aware that the respondent in this case is one of the many
Filipino women who find themselves in unsuccessful marriages with foreign nationals, I am equally aware that this
unfortunate circumstance is similarly faced by Filipino men, who, like their female counterparts, are precluded from
obtaining an absolute divorce under Philippine law.

Respondent's case falls outside of the scope of Article 26(2) of the Family Code.

In this case, it has been established that (i) the respondent is a Filipino citizen who married a Japanese national; (ii) it was
the respondent who subsequently obtained a divorce decree against her Japanese husband from a Japanese court;
and (iii) the respondent thereafter filed a Petition for Recognition and Enforcement of a Foreign Judgment30 before the
RTC.31 It is clear that respondent is, and has always been, a Filipino citizen. Pursuant to the nationality principle,
respondent's personal status is subject to Philippine law which, in turn, prohibits absolute divorce.

Hence, the divorce decree which respondent obtained under Japanese law cannot be given effect, as she is, without
dispute, a national not of Japan, but of the Philippines. Nevertheless, the verba legisapplication of Article 26(2) does not
deprive the respondent of legal remedies, as she may pray for the severance of her marital ties before the RTC in
accordance with the mechanisms now existing under the Family Code.

The Constitution mandates the protection of the family as a basic autonomous social institution.32 In this connection, the
Family Code characterizes marriage as a special contract of permanent union, and regards the family as "an inviolable
social institution whose nature, consequences, and incidents are governed by law" and generally, not subject to
stipulation.33 Upon these fundamental principles rests the prohibition against absolute divorce, which had remained
effective and unchanged since the enactment of the Civil Code in 1950.34

Adherence to this prohibition is met with much reservation, as it purportedly forces Filipinos to play second-fiddle to their
foreign spouses, and places said Filipinos at a disadvantage. Moreover, it had been argued in the deliberations of the
Court that such adherence sanctions various forms of abuse that plague mixed marriages, and deprives Filipinos in such
marriages of a way out. I find that these observations, pressing as they are, already delve into the wisdom of statutes
governing marriage and personal status with which the Court cannot interfere.

To note, Article 26(2) of the Family Code has remained unchanged since the issuance of EO 227. The blanket recognition
of absolute divorce overturns the Court's unequivocal interpretation of the provision as laid down in the cases of Pilapil,
Iyoy, Orbecido, Dacasin, Bayot, Fujiki and Medina, which span a period of nearly three decades. Ascribing a
contradictory interpretation to the provision, under the guise of equal protection, essentially re-writes Article 26(2) and
gives it a meaning completely different from the framers' intention.

While I am not oblivious to the difficulty that results from the prohibition on absolute divorce and commiserate totally with
the respondent in this regard, I find that the prohibition remains, and thus, must be faithfully applied. To my mind, a
contrary ruling will subvert not only the intention of the framers of the law, but also that of the Filipino people, as
expressed in the Constitution. The Court is bound to respect the prohibition, until the legislature deems it lit to lift the same
through the passage of a statute permitting absolute divorce.
As recognized by the ponencia, there are currently four bills on the subject of divorce and severance of marriage
pending before the 17th Congress: (i) House Bill No. 116 (HB 116) and House Bill No. 2380 (HB 2380) which propose
different grounds for the issuance of a judicial decree of absolute divorce; (ii) House Bill No. 1062 (HB 1062) which
proposes the inclusion of separation in fact as an additional ground for annulment of marriage; and (iii) House Bill No.
6027 (HB 6027) which proposes additional grounds for dissolution of marriage. These bills have been consolidated and
substituted by House Bill No. 730335 (HB 7303), which, at present, is awaiting deliberations before the Senate.36

HB 7303 proposes the issuance of divorce decrees on the basis of the following grounds:

1. The existing grounds for legal separation and annulment of marriage under Articles 55 and 45 of the Family
Code;
2. Separation in fact for at least five years;
3. Psychological incapacity, whether or not present at the time of the celebration of the marriage;
4. Gender reassignment surgery or transition from one sex to another undertaken by either spouse; and
5. Irreconcilable marital differences.37

These movements towards the passage of a divorce law illustrate that the difficulty which results from the absolute
prohibition against marriage is being addressed by the 17th Congress through a statute specifically crafted for the
purpose. That the legislature has seen it necessary to initiate these proposed laws is a clear delineation of the Court's role
— that is, to simply apply the current law and not for it to indulge in judicial legislation.

Indeed, it is desirable, if not imperative, that statutes in a progressive democracy remain responsive to the realities of the
present time. However, responsiveness is a matter of policy which requires a determination of what the law ought to be,
and not what the law actually is.38 Widening the scope of the exception found in Article 26(2) so as to indiscriminately
recognize foreign divorce in this jurisdiction is doing, in Justice Elias Finley Johnson's39 words, "exactly what the Legislature
itself [has] refused to do."40 It not only subverts the standing public policy against absolute divorce; worse, it sanctions a
violation of the fundamental principle of separation of powers — a violation which cannot be undone by any
subsequent law. To wield judicial power in this manner is to arrogate unto the Court a power which it does not possess; it
is to forget that this State, is foremost governed by the rule of law and not of men, however wise such men are or purport
to be.

Considering the foregoing, I submit that the Court of Appeals erred when it reversed the RTC's order denying
respondent's Petition for Enforcement. Hence, I vote to GRANT the instant Petition for Review.

Endnotes:

1 See Tañada v. Yulo, 61 Phil. 515-516, 519 (1935) [Per J. Malcolm, En Banc]; emphasis supplied.

2 223 Phil. 357 (1985) [Per J. Melencio-Herrera, First Division].

3 509 Phil. 108 (2005) [Per J. Quisumbing, First Division].

4 625 Phil. 494 (2010) [Per J. Carpio, Second Division].

5 Minutes of the 146th joint Meeting of the Civil Code and Family Law Committees dated July 12, 1986, p. 5.

6 Minutes of the 149th Joint Meeting of the Civil Code and Family Law Committees dated August 2, 1986, pp. 14-15.

7 See CIVIL CODE, Arts. 15 and 17.

8 Supra note 5.

9 Supra note 2, at 361.

10 Id. at 362.

11 Id.
12 Supra note 3, at 115-116.

13 Supra note 4, at 508; emphasis and underscoring supplied.

See Medina v. Koike, 791 Phil. 645, 651-652 (2016) [Per J. Perlas-Bernabe, First Division]; Garcia v. Recio, 418 Phil. 723, 725
14

and 730-731 (2001) [Per J. Panganiban, Third Division].

15 256 Phil. 407 (1989) [Per J. Regalado, Second Division].

16 507 Phil. 485 (2005) [Per J. Chico-Nazario, Second Division].

17 591 Phil. 452 (2008) [Per J. Velasco, Jr., Second Division].

18 712 Phil. 524 (2013) [Per J. Carpio, Second Division].

19 Supra note 14.

20 Supra note 6.

21 Supra note 16, at 503-504.

22Ponencia, p. 14.

23 Supra note 15, at 421.

24Ponencia, p. 14.

25 See generally Department of Education, Culture and Sports v. San Diego, 259 Phil. 1016 (1989) [Per J. Cruz, En Banc].

26 See Fariñas v. Executive Secretary, 463 Phil. 179, 206-208 (2003) [Per J. Callejo, Sr., En Banc].

27Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 559-560 (2004) [Per J. Puno, En
Banc].

28Ponencia, p. 14.

29 Supra note 6, at 14.

30 Formerly captioned as Petition for Cancellation of Entry of Marriage; see ponencia, p. 2.

31Ponencia, p. 2.

32 CONSTITUTION, Art. II, Sec. 12.

33 FAMILY CODE, Title I, Art. 1.

34 See generally Raymundo v. Peñas, 96 Phil. 311 (1954) [Per J. J.B.L. Reyes, En Banc].

35 AN ACT INSTITUTING ABSOLUTE DIVORCE AND DISSOLUTION OF MARRIAGE IN THE PHILIPPINES.

36 HB 7303 passed its second reading on March 14, 2018, and was likewise approved on its third and final reading before
the lower house on March 19, 2018. See "House passes divorce bill on second reading,"
< http://www.sunstar.com.ph/article/423557 > (last accessed on March 19, 2018) and "House approves divorce bill on
3rd reading," < https://www.rappler.com/nation/198516-divorce-bill-philippines-passes-third-reading-house-
representatives > (last accessed on March 22, 2018).
37 See HB 7303, Sec. 5.

38 See generally People v. Vera, 65 Phil. 56 (1937) [Per J. Laurel, En Banc].

39 Justice Elias Finley Johnson served as Associate Justice of the Supreme Court of the Philippines from 1903 to 1933.

40 See Nicolas v. Alberto, 51 Phil. 370, 380 (1928) [Dissenting Opinion, J. Johnson]

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-16925 March 31, 1962

FABIAN PUGEDA, plaintiff-appellee,

vs.
RAPAEL TRIAS, MIGUEL TRIAS, SOLEDAD TRIAS, assisted by her husband Angel Sanchez,
CLARA TRIAS, assisted by her husband Victoriano Salvanera,
GABRIEL TRIAS, minors ROMULO VINIEGRA, GLORIA VINIEGRA
and FERNANDO VINIEGRA, JR., assisted by guardian-ad-litem, Rafael Trias,
TEOFILO PUGEDA, and VIRGINIA PUGEDA, assisted by her husband Ramon Portugal, defendants-appellants.

Placido Ramos for plaintiff-appellee.

Cajulis, Trias and Viniegra for defendants-appellants Trias, et al.
Ramon C. Aquino for defendants-appellants Teofilo Pugeda and Virginia Pugeda.

LABRADOR, J.:

The subject of this action, which was appealed from the Court of First Instance of Cavite, is certain lands acquired from
the Friar Lands Estate Administration known as lots Nos. 225, 226, 269, 311, 1803, 1814, 1816, 1832, 2264, 2265, 2266, 2282,
2284, 2378, 2412, 2282, 2683, 2685, 2686, 2688, 2722, 3177 and 3178 of the San Francisco de Malabon estate located in
General Trias, Cavite, a house of strong materials, a barn (camarin) also of strong materials, and a store also of strong
materials in General Trias, Cavite and sets of household furniture. The plaintiff claims participation in the said properties
on the ground that the same were acquired by him and the deceased Maria C. Ferrer, with whom plaintiff contracted
marriage in January, 1916 and who died on February 11, 1934.

The defendants Rafael, Miguel, Soledad, Clara, Constancia and Gabriel, all surnamed Trias are the children of the
deceased Maria C. Ferrer with her first husband Mariano Trias, while the defendants Teofilo Pugeda and Virginia Pugeda
are children of the plaintiff with said deceased Maria C. Ferrer.

The plaintiff alleges that during the lifetime of the marriage between himself and the deceased Maria C. Ferrer, they
acquired with conjugal partnership funds lots Nos. 273, 2650, 2680, 2718 and 2764 of the San Francisco de Malabon
estate with the following interest therein; 71% in lot No. 273, 82% in lot No. 2650, 77% in lot No. 2652, 77% in lot No. 2080,
64% in lot No. 2718 and 76% in lot No. 2764; that plaintiff is the owner of one-half of the said interest in the lots above-
mentioned; that upon the death of Maria C. Ferrer in 1934 plaintiff and defendants became co-owners of said properties
and defendants managed the properties in trust as co-owners thereof. Plaintiff prays that the properties above
described, acquired as conjugal properties by the plaintiff and deceased Maria C. Ferrer, be partitioned -and one-half
thereof be given as share therein of plaintiff.

The defendants surnamed Trias and Viniegra denied the claims of the plaintiff to the properties described in the
complaint, or that said properties had been administered by the defendants in trust as co-owners with the plaintiff, and
by way of special and affirmative defense they alleged that the properties subject of the complaint had been inherited
by the defendants from their deceased father Mariano Trias and deceased mother Maria C. Ferrer and had been in
possession and full enjoyment thereof for more than 10 years, peacefully, uninterruptedly, quietly and adversely under a
claim of ownership to the exclusion of all others, and that plaintiff is estopped from claiming or asserting any rights or
participation in the said properties. Defendants Trias also denied for lack of knowledge and belief the claim of plaintiff in
his complaint that he was married to Maria C. Ferrer and that the marriage continued up to the death of the latter in
1934. They further presented a counterclaim against the plaintiff for the sum of P40,000, this amount being what was
contributed by them in support of the candidacies of plaintiff when running for the office of provincial governor of
Cavite. They also filed a counterclaim for 30 pieces of Spanish gold coins and P5,000 in cash amounting in value to the
total sum of P50,000 and a counterclaim for P100,000 which is the value of four big parcels of land belonging to the
defendants which the plaintiff had appropriated for his own use.

The defendants Pugeda joined the plaintiff in the latter's claim that the properties mentioned in plaintiff's complaint were
joint properties of the plaintiff and the defendants. They also allege that the properties had gone to the management
and control of the defendants Trias who should be required to answer for the fruits and profits thereof during the
administration by them of said properties. As cross-claim against their co-defendants, they allege that they are each
entitled to one-eighth of the properties left by their mother as listed in the first ten paragraphs of the complaint, as well as
a share of one-eighth each in lots Nos. 98, 2015 of the San Francisco de Malabon estate and in a parcel of land in
Lingad, Litiit in Silang, Cavite and in 60 heads of cattle.

Plaintiff denied the counterclaim of the defendants Trias and the defendants Trias, answering the cross-claim of their co-
defendants Pugeda, denied all the allegations contained in the answer of the defendants Pugeda, and further alleged
that the cross-claim is improper as the same should be the subject of probate proceedings, and the defendants Pugeda
are estopped and barred by prescription from claiming any further right to the properties left by their deceased mother.

There are two questions or issues raised in the present case. The first is the alleged existence of a marriage of Fabian
Pugeda and Maria C. Ferrer. The second is the claim of the plaintiff to various lands acquired from the Friar Lands Estate
under certificates of sale issued first in the name of Mariano Trias and later assigned to Maria C. Ferrer, but paid for in part
during the marriage of plaintiff and Maria C. Ferrer. A third but minor issue is the claim for furniture alleged by plaintiff to
have been bought by him and Maria C. Ferrer during the marriage, which plaintiff claims is in the possession of the
defendants.

On the first issue, the existence of marriage, plaintiff and his witness Ricardo Ricafrente testified that in the afternoon of
January 5, 1916, on the eve of Epiphany or Three Kings, plaintiff and the deceased Maria C. Ferrer went to the office of
the Justice of the Peace, who was then witness Ricardo Ricafrente, to ask the latter to marry them; that accordingly
Ricafrente celebrated the desired marriage in the presence of two witnesses one of whom was Santiago Salazar and
another Amado Prudente, deceased; that after the usual ceremony Ricafrente asked the parties to sign two copies of a
marriage contract, and after the witnesses had signed the same, he delivered one copy to the contracting parties and
another to the President of the Sanitary Division, which officer was at that time the keeper of the records of the civil
register. Plaintiff and his witnesses explained that no celebration of the marriage was held inspite of the prominence of
the contracting parties because plaintiff was then busy campaigning for the office of Member of the Provincial Board
and Maria C. Ferrer was already on the family way.

The defendants denied the existence of the marriage and introduced a photostatic copy of the record of marriages in
the municipality of Rosario, Cavite, in the month of January, 1916, which showed that no record of the alleged marriage
existed therein; but this absence was explained by the Justice of the Peace that perhaps the person who kept the
register forgot tomake an entry of the marriage in the registry.

Other witnesses were introduced to the effect that after the marriage plaintiff lived in the house of Maria C. Ferrer, which
was the house of spouses Mariano Trias and Maria C. Ferrer. Evidence was also submitted to the effect that the first issue
was baptized on August 26, 1917 and the one who acted as sponsor was a sister-in-law of Maria C. Ferrer. The baptismal
certificate submitted states that the baptized child was the issue of the spouses Fabian Pugeda and Maria C. Ferrer. The
registry of said birth was also submitted and it states that the father is Fabian Pugeda and the mother is Maria C. Ferrer.

It is also not denied that after the marriage, plaintiff cohabited with the deceased wife, as husband and wife, until the
death of the latter, publicly and openly as husband and wife. Lastly, a document entitled "Project of Partition" (Exhibit 5-
Trias) was signed by the parties defendants themselves. The document contains the following significant statement or
admission: .

WHEREAS the parties hereto are the only children and forced heirs of the said deceased: Rafael, Miguel,
Soledad, Clara, Constancia, and Gabriel, all surnamed Trias y Ferrer, are the children of her first marriage with
Mariano Trias, now deceased; and Teofilo and Virginia, both surnamed Pugeda y Ferrer,are the children of her
second marriage with Fabian Pugeda..

.... That it is hereby agreed by and between the parties hereto that lots Nos. 3177 and 3178 known as the
Buenavista property will be administered by one of the parties to be agreed upon and for said purpose they
appoint MIGUEL F. TRIAS, and all earnings, rentals and income or profits shall be expended for the improvement
and welfare of the said property and for the payment of all claims and accounts of our deceased mother
Maria C. Ferrer, and for the maintenance and education of Teofilo and Virginia Pugeda y Ferrer.
The judge who heard the evidence, after a review of he testimonial and documental evidence, arrived at the
conclusion that plaintiff Fabian Pugeda was in fact married to Maria C. Ferrer on January 5, 1916, this conclusion being
borne out not only by the chain of circumstances but also by the testimonies of the witnesses to the celebration of the
marriage, who appeared to be truthful, as well as by the fact that plaintiff and deceased Maria C. Ferrer lived together
as husband and wife for eighteen years (1916-1934) and there is a strong presumption that they were actually married.

On the competency of the evidence submitted by plaintiff to prove the marriage we cite the following authority: .

Art. 53. — As to marriages contracted subsequently, no proof other than a certificate of the record in the civil
register shall be admitted, unless such books have never been kept, or have disappeared, or the question
arises in litigation, in which cases the marriage may be proved by evidence of any kind. (p. 27, Civil Code) .

The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter wasin
articulo mortis, failed to send a copy of the marriage certificate to the municipal secretary, does not invalidate
said marriage, since it does not appear that in the celebration thereof all requisites for its validity were not
present, and the forwarding of a copy of the marriage certificate not being one of said requisites. (Madridejo v.
De Leon, 55 Phil., 1) .

Testimony by one of the parties to the marriage, or by one of the witnesses to the marriage, has been held to
be admissible to prove the fact of marriage. The person who officiated at the solemnization is also competent
to testify as an eyewitness to the fact of marriage. (55 C.J.S., p. 900).

In our judgment the evidence submitted shows conclusively that plaintiff Fabian Pugeda was in fact married to Maria C.
Ferrer, said marriage subsisting from 1916 until 1934, upon the death of the latter, and we affirm the finding of the trial
court to that effect.

On the second issue the evidence introduced at the trial shows that the lands subject of the action were formerly Friar
Lands included in the San Francisco de Malabon Estate, province of Cavite, which were acquired under certificates of
sale in the name of Mariano Trias in the year 1910 and later assigned to his widow Maria C. Ferrer in the year 1916. The
different lots, the dates of their acquisition and assignment to said Maria C. Ferrer, widow are set forth in a table
appended to this decision as Annex "A".

On the basis of the facts about their acquisition and assignment Judge Lucero declared that the lots in question were
conjugal properties of Mariano Trias and Maria C. Ferrer, and consequently decreed that 1/2 thereof, should be
adjudicated to Mariano Trias, as the latter's share in the conjugal properties, to be divided among his 6 children at the
rate of 1/6 each, and the other half to Maria C. Ferrer, as her share in the conjugal properties, to be assigned to her
children by both marriages at the rate of 1/9 each and the balance of 1/9 to widower Fabian Pugeda in usufruct. From
this judgment the case was appealed to the Court of Appeals.

When the case was before the Court of Appeals, the attorneys for the defendants presented a motion for new trial on
the ground that they discovered copies of four documents namely — Annexes "A", "B" "C," "D" and "E" Record on Appeal,
pp. 108-117, (The last document is a copy of a court order issued by Judge Manuel V. Moran approving the project of
partition in Case No. 860, Intestate estate of Mariano Trias) which if admitted might alter the decision. The Court of
Appeals granted the motion and remanded the case to the Court of First Instance of Cavite for the consideration of said
evidence.

Upon the return of the case to the Court of First Instance, Judge Primitivo Gonzales who then presided the court,
rendered a new decision. Judge Gonzales found that the total amount paid by Mariano Trias and Maria C. Ferrer on the
lots in question amounts to only P8,911.84, while the installments paid during the marriage of the spouses Fabian Pugeda
and Maria C. Ferrer totaled P35,146.46. He also found that lots 3177 and 3178 were paid for during the marriage of
Pugeda and Ferrer in the total sum of P16,557.32. Judge Gonzales therefore ruled that the two marriages should
participate in the ownership of the lands, according to the actual contributions made by each marriage in the
installments in payment of the lands. The dispositive part of the decision, now subject of the appeal, is as follows: .

IN VIEW OF THE FOREGOING CONSIDERATION, the Court hereby renders judgment: .

1. That lots 2378, 225, 226, 269, 311, 1808, 1804, 1816; 1832, 2264, 2265, 2282, 2284, 2412, 2682, 273, 2650, 2652,
2680, 2718, 2764 (21 lots) are conjugal assets of Pugeda and Maria C. Ferrer in the proportion of percentage
and indicated in each individual lot;
 2. That lots 3177 and 3178, since all the installments for the same were fully paid during the marriage of Pugeda
and Maria C. Ferrer are hereby declared conjugal of the couple Pugeda and Ferrer; and even some of the
installments for these two lots were paid after the death of Maria C. Ferrer, they do not loss the character of
conjugal property for payments were made from the crops thereof;

3. That since Mariano Trias during his marriage to Maria C. Ferrer contributed in the payment for the installments
of these 21 lots amounting to P8,911.84, half of which must be reimbursed in favor of the children or heirs of
Mariano Trias to be paid from the mass of the hereditary estate of Maria C. Ferrer; the other half of P4,455.92 to
be distributed among all the children or heirs of Maria C. Ferrer in her first and second marriage to be deducted
from the mass of her estate;

4. That lots 2266, 2683, 2685, 2686, 2688 and 2722 since all the installments for these six (6) lots were fully paid
during marriage of Mariano Trias and Maria C. Ferrer, they are hereby declared to be conjugal between them
— one half of which must go to the children or heirs of Mariano Trias, the other half must equally go to the
children or heirs of Maria C. Ferrer in her first and second marriage;

5. That Miguel Trias as administrator of all the properties which commenced after the death of his mother who
died on February 11, 1934, must render an accounting of his administration within three (3) months time from
the date this judgment has become final.

6. That defendants Trias to pay the costs of this action. (Record on Appeal, pp. 154-156) .

Against this ruling the appeal has come to this Court. Defendants-appellants claim that Judge Gonzales had no power
or authority to change the decision of Judge Lucero, as it was not he but Judge Lucero himself, who had heard the
evidence. They have also assigned before Us a set of errors which may be boiled down to the three main issues set forth
above. As the issue of marriage has already been considered we will now pass to the second and more important
question as to whether the land subject of the action may be considered conjugal properties of the first marriage or of
the second or of both.

A consideration of the legal nature and character of the acquisition of the various lots is necessary that the issues in the
action may be justly determined.

A study of the provisions of the Friar Lands Act (Act No. 1120) discloses that the friar lands were purchased by the
government for sale to actual occupants (actual settler and occupants at the time said land are acquired by the
Government). (Paragraph 3 of Declaration of Purposes, Act 1120). The said act expressly declares that the land are not
public land in the sense in which this word is used in the Public Land Act, and their acquisition is not governed by the
provisions of the Public Land Act (Par. IV, Declaration of Purposes, Id.) .

The pertinent provisions of said Act No. 1120 are as follows: .

Sec. 12. — .... When the costs thereof shall have been thus ascertained, the Chief of the Bureau of Public Lands
shall give the said settler and occupant a certificate which shall set forth in detail that the Government has
agreed to sell to such settler and occupant the amount of land so held by him, at the price so fixed, payable
as provided in this Act at the office of the Chief of the Bureau of Public Lands, in gold coin of the United States
or its equivalent in Philippine currency, and that upon the payment of the final installment together with all
accrued interest the Government will convey to such settler and occupant the said land so held by him by
proper instrument of conveyance, which shall be issued and become effective in the manner provided in
section one hundred and twenty-two of the Land Registration Act. ...

Sec. 13. — The acceptance by the settler and occupant of such certificate shall be considered as an
agreement by him to pay the purchase price so fixed and in the installments and at the interest specified in the
certificate, and he shall by such acceptance become a debtor to the Government in that amount together
with all accrued interest. .... Provided however, That every settler and occupant who desires to purchase his
holding must enter into the agreement to purchase such holding by accepting the said certificate and
executing the said receipt whenever called on so to do by the Chief of the Bureau of Public Lands, and a
failure on the part of the settler and occupant to comply with this requirement shall be considered as a refusal
to purchase, and he shall be ousted as above provided and thereafter his holding may be leased or sold as in
case of unoccupied lands: ....

Sec. 15. — The Government hereby reserves the title to each and every parcel of land sold under the provisions
of this Act until the full payment of all installments of purchase money and interest by the purchaser has been
 made, and any sale or incumbrance made by him shall be invalid as against the Government of the Philippine
Islands and shall be in all respects subordinate to its prior claim.

Sec. 16. — In the event of the death of a holder of a certificate the issuance of which is provided for in section
twelve hereof, prior to the execution of a deed by the Government to any purchaser, his widow shall be
entitled to receive a deed of the land stated in the certificate upon showing that she has complied with the
requirements of law for the purchase of the same. In case a holder of a certificate dies before the giving of the
deed and does not leave a widow, then the interest of the holder of the certificate shall descend and deed
shall issue to the persons who under the laws of the Philippine Islands would have taken had the title been
perfected before the death of the holder of the certificate, upon proof of the holders thus entitled of
compliance with all the requirements of the certificate. In case the holder of the certificate shall have sold his
interest in the land before having complied with all the conditions thereof, the purchaser from the holder of the
certificate shall be entitled to all the rights of the holder of the certificate upon presenting his assignment to the
Chief of the Bureau of Public Lands for registration. (Vol. III, Public Laws, pp. 315-316).

A study of the above quoted provisions clearly indicates that the conveyance executed in favor of a buyer or
purchaser, or the so-called certificate of sale, is a conveyance of the ownership of the property, subject only to the
resolutory condition that the sale may be cancelled if the price agreed upon is not paid for in full. In the case at bar the
sale certificates were made in favor of Mariano Trias, and upon his death they were assigned in accordance with Sec.
16, to his widow. But the law provides that when the buyer does not leave a widow, the rights and interests of the holder
of the certificate of sale are left to the buyer's heirs in accordance with the laws of succession. In the case of the Director
of Lands, et al. vs. Ricardo Rizal, et al., G.R. No. 2925 prom. December 29, 1950, this court thru Mr. Justice Montemayor
held: .

... All this clearly and inevitably leads to the conclusion that the purchaser, even before the payment of the full
price and before the execution of the final deed of conveyance, is considered by the law as the actual owner
of the lot purchased, under obligation to pay in full the purchase price, the role or position of the Government
being that of a mere lien holder or mortgagee.

... In conclusion, we find and hold that in the sale of a Friar Lands lot or parcel under Act 1120, pending
payment in full of the purchase price, altho the Government reserves title thereto, merely for its protection, the
beneficial and equitable title is in the purchaser, and that any accretion received by the lot even before
payment of the last installment belongs to the purchaser thereof.

We also invite attention to the fact that a sale of friar lands is entirely different from a sale of public lands under the
provisions of the Public Land Act. In the case of public lands, a person who desires to acquire must first apply for the
parcel of land desired. Thereafter, the land is opened for bidding. If the land is awarded to an applicant or to a qualified
bidder the successful bidder is given a right of entry to occupy the land and cultivate and improve it (Secs. 22-28,
Commonwealth Act 141). It is only after satisfying the requirements of cultivation and improvement of 1/5 of the land
that the applicant is given a sales patent (Sec. 30).

In the case of friar lands the purchaser becomes the owner upon issuance of the certificate of sale in his favor, subject
only to cancellation thereof in case the price agreed upon is not paid. In case of sale of public lands if the applicant
dies and his widow remarries both she and the second husband are entitled to the land; the new husband has the same
right as his wife. Such is not the case with friar lands. As indicated in Section 16 of Act 1120, if a holder of a certificate dies
before the payment of the price in full, the sale certificate is assigned to the widow, but if the buyer does not leave a
widow, the right to the friar lands is transmitted to his heirs at law.

It is true that the evidence shows that of the various parcels of land now subject of the action none was paid for in full
during the marriage of Mariano Trias and Maria C. Ferrer, and that payments in installments continued to be made even
after the marriage of Pugeda and Maria C. Ferrer on January 5, 1916. But it is also true that even after said marriage the
certificates of sale were assigned to Maria C. Ferrer and installments for the lots after said marriage continued in the
name of Maria C. Ferrer; also all the amounts paid as installments for the lots were taken from the fruits of the properties
themselves, according to the admission of plaintiff Fabian Pugeda himself, thus: .

Mr. Viniegra:

Q —De los productos de pesos terrenos, durante la administracion por los demandados, recibia Vd. su
participation?

A —No, señor.
 Q —Nunca? .

A —Because I know there are obligations to be paid to the Bureau of Lands, and I have been informed that the
obligations have been paid annually from the products of the land.

Q —Therefore, from the products of these lands - the proceeds - the obligations to the Bureau of Lands are
being discounted from the said proceeds and after the remainder, as in palay, are equally divided, is that what
you mean to say ? .

A —Perhaps they were following the practice that, from the products of the lands the obligations to the Bureau
of Lands would be paid.

Court: .

Q —Pero Vd. no ha recibido ninguna cantidad, o sea les darian alguna participation?

A —No señor, porque estaba en Manila, but they informed me that the obligations to the Bureau of Lands were
being paid from the products of the lands.

Mr. Viniegra: .

Q —You do not claim any participation in the remainder of the products after paying the Bureau of Lands? .

A —How would I ask for I knew they were still paying the obligations to the Bureau of Lands - that was until the
Japanese time, and I knew some obligations were not paid, as a result of which the sales certificates of some
big lots were cancelled.

Court:

Q —Como se mantenia Vd.? .

A —Mi madre tenia la casa en Manila y ella recibia alguna renta. My mother helped me. (Session of November
20, 1951, before Judge A. G. Lucero, pp. 259-261, Matro.) (Brief for Defendants-Appellants, pp. 49-51).

There is another reason why the above conclusion must be upheld in the case at bar, and that is the fact that in the
proceedings for the settlement of the estate of the deceased Mariano Trias, which was instituted in August 1915, the
inventory of the estate left by said deceased included the lots purchased from the Friar Lands Estates (Exh. 2, Trias) and
the project of partition in said special proceedings submitted to the court as Exh. 3-Trias adjudicated 1/2 of said lands as
the share of Mariano Trias in the conjugal properties, the other 1/2 being awarded to Maria C. Ferrer.

The above considerations, factual and legal, lead us to the inevitable conclusion that the friar lands purchased as
above described and paid for, had the character of conjugal properties of the spouses Mariano Trias and Maria C.
Ferrer. But another compelling legal reason for this conclusion as against plaintiff, is the judicial pronouncement on said
nature of the lands in question. In the year 1915, even before the marriage of plaintiff and Maria C. Ferrer took place, the
latter was appointed administratrix of the estate of her deceased husband Mariano Trias in Civil Case No. 860 of the
Court of First Instance of Cavite (Exh. "1" Trias). An inventory of the estate left by the deceased Mariano Trias, dated
January 15, 1929, was submitted by her and on April 10, 1929, the project of partition of the properties was submitted.
The project includes the friar lands subject of the action, and in accordance with it one-half of the properties listed in the
inventory was adjudicated to the deceased Mariano Trias as his share and the other half adjudicated to Maria C. Ferrer
also as her share. The share of Mariano Trias was decreed in favor of his children and heirs. This project of partition was
approved by Judge Manuel V. Moran in an order dated February 11, 1929, submitted to the Court of Appeals as Annex
"E", pp. 114-115 of the record on appeal.

The pendency of the above intestate proceedings for the settlement of the estate of Mariano Trias must have been
known to plaintiff Fabian Pugeda, who is a lawyer. It does not appear, and neither does he claim or allege, that he ever
appeared in said proceedings to claim participation in the properties subject of the proceedings. His failure to intervene
in the proceedings to claim that the friar lands or some of them belonged to himself and his wife Maria C. Ferrer, shows a
conviction on his part that the said friar lands actually belonged to the spouses Mariano Trias and Maria C. Ferrer, and
that he had no interest therein. The project of partition was approved as late as 1929, by which time plaintiff and
defendant had already been married for a period of 13 years. Plaintiff's failure to assert any claim to the properties in the
said intestate proceedings during its pendency now bars him absolutely from asserting the claim that he now pretends
to have to said properties.

We will now proceed to consider plaintiff's claim that the lands in question had, through the joint effort of himself and his
wife, increased in productivity from 900 cavans to 2,400 cavans of rice because of the introduction therein of
improvements such as a system of irrigation for the lands. If, as admitted by plaintiff himself, the installments remaining
unpaid were taken from the produce or the yield of the said lands and if it be taken into account that one-half of said
lands already belonged to the children of the first marriage, to whom the lands were adjudicated in the settlement of
the estate of their father, the deceased Mariano C. Trias, the only portion of the products or produce of the lands in
which plaintiff could claim any participation is the one-half share therein produced from the paraphernal properties of
Maria C. Ferrer. How much of said produce belonging to Maria C. Ferrer was actually used in the improvement of the
lands is not shown, but the fact that plaintiff was engaged in continuous political campaigns, ever since his marriage in
1916 (he had devoted most of his time while married to Maria C. Ferrer to politics), portions of the products of the
paraphernal properties of Maria C. Ferrer must have been used in these political campaigns as well as in meeting the
expenses of the conjugal partnership. The value of the useful improvements introduced on the lands, joint properties of
Maria C. Ferrer and her children, was not proved in court by plaintiff. Hence the provisions of Article 1404 of the old Civil
Code, to the effect that useful expenditures for the benefit of the separate properties of one of the spouses are
partnership properties, cannot be applied. But even if such useful improvements had been proved, the statute of
limitations bars plaintiff' action to recover his share therein because Maria C. Ferrer died in 1934, whereas the present
action was instituted by plaintiff only in the year 1948. After the death of Maria C. Ferrer, plaintiff came to Manila, took a
second wife, and was not heard from for 14 years, that is, until he instituted this action in 1948. His claim for the
improvements, if any, is therefore also barred. 1äwphï1.ñët

The above ruling, that the action to demand his share in the value of the improvements in the paraphernal properties of
Maria C. Ferrer is barred, is also applicable to the claim of the plaintiff herein for the construction alleged to have been
made and the furniture supposedly bought by him and his spouse Maria C. Ferrer, and which had the character of
conjugal partnership property of said spouses. In the year 1935, defendants herein presented a project of partition to
plaintiff for his signature (the project of partition is dated March, 1935 and is mark Exhibit "5"-Trias). In this project of
partition of the properties of the deceased Maria C. Ferrer, mention is made of the participation of the plaintiff's children
with the deceased Maria C. Ferrer, but no mention is made therein of any participation that plaintiff had or could have
as usufruct or otherwise, or in any building or improvement. This deed of partition was shown to plaintif but the latter did
not sign it.

The express omission of the name of plaintiff here in the above deed of partition as one of the heirs of the deceased
Maria C. Ferrer was enough notice to plaintiff that defendants had intended to deprive him of any share or participation
in the properties left by the deceased Maria C. Ferrer, even of the usufruct that the law assigns to him. But in spite of his
knowledge of this fact no action was taken by him until February, 1948 when plaintiff demanded his share in the
properties and later brought this action.

The period of around 13 years therefore elapsed before plaintiff instituted this action. Consequently, whatever rights he
may have had to any portion of the estate left by the deceased Maria C. Ferrer, as a usufructuary or otherwise, must be
deemed to have prescribed. As a consequence, we find that the order of Judge Lucero granting to the plaintiff herein
one-ninth share in the estate of the deceased Maria C. Ferrer in usufruct should be set aside and the objection to the
grant of such share to plaintiff on the ground of prescription is sustained.

Having disposed of the claims of plaintiff Fabian Pugeda, we will now proceed to consider the cross-claim of his children,
namely, Teofilo Pugeda and Virginia Pugeda. Judge Lucero decreed that the properties left by the deceased Maria C.
Pugeda, be divided among her children, including the two cross-claimants Teofilo Pugeda and Virginia Pugeda, and
decreed one-ninth of the properties of the said deceased Maria C. Ferrer to each of these two children of hers with the
plaintiff and assigning also to the plaintiff one-ninth share in the said estate left by her in usufruct.

In view of our finding that the claim of the plaintiff to any share in the estate of his wife Maria C. Ferrer is already barred
by the statute of limitations, the decree entered by Judge Lucero declaring that her properties be divided into nine
parts, one part belonging to each heir and one to plaintiff in usufruct, is hereby modified, by eliminating the share in
usufruct of the plaintiff therein and increasing the share of each of her heirs to one-eighth.

FOR ALL THE FOREGOING CONSIDERATIONS, the plaintiff's complaint is hereby dismissed, and the judgment of the Court
of First Instance of Cavite, Hon. Antonio C. Lucero, presiding, decreeing the division of the properties of the deceased
Maria C. Ferrer among her eight children and plaintiff, is hereby modified in the sense that all of her properties be
divided among her eight children at the rate of one-eight per child. As thus modified, the judgment of Judge Lucero is
hereby affirmed. Without costs.
Bautista Angelo, Concepcion, Barrera, Paredes, Dizon and De Leon, JJ., concur.
Bengzon, C.J. and Padilla, J., took no part.

ANNEX "A"

Lands included in action - Dates of acquisition and assignment.

Lot Date of Sale Date of Assignment to Certificate

Number to Mariano Trias Maria C. Ferrer of Title

225 April 30, 1960 May 17, 1915 —

226 April 5, 1910 May 17, 1915 —

269 April 5, 1910 May 17, 1915 —

311 April 13, 1910 May 17, 1915 —

1808(3) April 13, 1910 May 15, 1915 —

1814 Not known May 17, 1915 —

1816 April 13, 1910 May 17, 1915 —

1832 April 13, 1910 May 17, 1915 —

2284 Nov. 1, 1910 Not known July 11, 1924

2265 Nov. 1, 1910 July 11, 1924 —

2266 Nov. 1, 1910 Not known July 11, 1924

2282 April 30, 1910 Not known July 11, 1924

2284 Nov. 1, 1910 Not known July 11, 1924

2378 April 30, 1910 May 17, 1915 —

2412 April 30, 1910 May 17, 1915 —

2682 Nov. 1, 1910 Not known July 11, 1924

2683 Nov. 1, 1910 Not known July 11, 1924

2685 Nov. 1, 1910 Not known July 11, 1924

2686 Nov. 1, 1910 Not known —

2688 Nov. 1, 1910 Not known July 11, 1924

2722 Jan. 1, 1913 Not known —

3177 Jan. 25, 1913 May 17, 1915 —

3178 Jan. 25, 1913 May 17, 1915 —

Other lots included in the complaint on which evidence was submitted are the following:

273 April 30, 1910 May 17, 1915 —

 2650 April 27, 1910 April 17, 1915 —

2672 April 30, 1910 May 17, 1915 —

2718 April 30, 1910 May 17, 1915 —

2765 April 30, 1910 May 17, 1915 —

Two other additional lots are the following:.

2225 July 1, 1909 May 17, 1915 —

2226 July 1, 1909 — Sept. 20, 1924.

Sold to Ignacio Ascano

later to M. Trias on
July 1, 1910.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5028 November 26, 1952

FELIPE CABAGUE and GERONIMO CABAGUE, plaintiffs-appellants,

vs.
MATIAS AUXILIO and SOCORRO AUXILIO, defendants-appellees.

Generoso F. Obusan for appellants.

Pedro M. Tagala for appellees.

BENGZON, J.:

According to the Rules of Court parol evidence is not admissible to prove an agreement made upon the consideration
of marriage other than a mutual promise to marry.1 This litigation calls for application of that rule.

In the justice of the peace court of Basud, Camarines Norte, Felipe Cabague and his son Geronimo sued the defendant
Matias Auxilio and his daughter Socorro to recover damages resulting from defendants' refusal to carry out the previously
agreed marriage between Socorro and Geronimo.

The complaint alleged, in short: (a) that defendants promised such marriage to plaintiffs, provided the latter would
improve the defendants' house in Basud and spend for the wedding feast and the needs of the bride; (b) that relying
upon such promises plaintiffs made the improvement and spent P700; and (c) that without cause defendants refused to
honor their pledged word.

The defendants moved to dismiss, arguing that the contract was oral, unenforceable under the rule of evidence
hereinbefore mentioned. And the court dismissed the case. On appeal to the Court of First Instance, the plaintiffs
reproduced their complaint and defendants reiterated their motion to dismiss. From an order of dismissal this appeal was
perfected in due time and form.

It should be observed preliminarily that, under the former rules of procedure, when the complaint did not state whether
the contract sued on was in writing or not, the statute of frauds could be no ground for demurrer. Under the new Rules
"defendant may now present a motion to dismiss on the ground that the contract was not in writing, even if such fact is
not apparent on the face of the complaint. The fact may be proved by him." (Moran Rules of Court 2d ed. p. 139 Vol. I.)

There is no question here that the transaction was not in writing. The only issue is whether it may be proved in court.
The understanding between the plaintiffs on one side and the defendants on the other, really involves two kinds of
agreement. One, the agreement between Felipe Cabague and the defendants in consideration of the marriage of
Socorro and Geronimo. Another, the agreement between the two lovers, as "a mutual promise to marry". For breach of
that mutual promise to marry, Geronimo may sue Socorro for damages. This is such action, and evidence of such mutual
promise is admissible.2 However Felipe Cabague's action may not prosper, because it is to enforce an agreement in
consideration of marriage. Evidently as to Felipe Cabague and Matias Auxilio this action could not be maintained on the
theory of "mutual promise to marry".3 Neither may it be regarded as action by Felipe against Socorro "on a mutual
promise to marry."

Consequently, we declare that Geronimo may continue his action against Socorro for such damages as may have
resulted from her failure to carry out their mutual matrimonial promises.

Wherefore this expediente will be returned to the lower court for further proceedings in accordance with this opinion. So
ordered.

Paras, C.J., Pablo, Padilla, Montemayor, Jugo, Bautista Angelo and Labrador, JJ., concur.

Footnotes

1 Rule 123, Sec. 21 (c).

2This is different from the situation in Atienza vs. Castillo (40 Off. Gaz., p. 2048) wherein the groom litigated
against his bride and her parents for breach of matrimonial promise. We hold in that case that the promise
could not be proved orally because the bridegroom was suing to enforce a contract "between his parents and
those of the bride."

3 Cf. Domalagan vs. Bolifer, 33 Phil., 471.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

JORGE DOMALAGAN, plaintiff-appellee,

vs.
CARLOS BOLIFER, defendant-appellant.

M. Abejuela for appellant.

Troadio Galicano for appellee.

JOHNSON, J.:

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

SUPREME COURT
Manila

EN BANC

G.R. No. L-14628 September 30, 1960

FRANCISCO HERMOSISIMA, petitioner,

vs.
THE HON. COURT OF APPEALS, ET AL., respondents.

Regino Hermosisima for petitioner.

F.P. Gabriel, Jr. for respondents.

CONCEPCION, J.:

An appeal by certiorari, taken by petitioner Francisco Hermosisima, from a decision of Court of Appeals modifying that
of the Court of First Instance of Cebu.

On October 4, 1954, Soledad Cagigas, hereinafter referred to as complaint, filed with said of her child, Chris
Hermosisima, as natural child and moral damages for alleged breach of promise. Petitioner admitted the paternity of
child and expressed willingness to support the latter, but denied having ever promised to marry the complainant. Upon
her motion, said court ordered petitioner, on October 27, 1954, to pay, by way of alimony pendente lite, P50.00 a month,
which was, on February 16, 1955, reduced to P30.00 a month. In due course, later on, said court rendered a decision the
dispositive part of which reads:

WHEREFORE, judgment is hereby rendered, declaring the child, Chris Hermosisima, as the natural daughter of
defendant, and confirming the order pendente lite, ordering defendant to pay to the said child, through
plaintiff, the sum of thirty pesos (P30.00), payable on or before the fifth day of every month sentencing
defendant to pay to plaintiff the sum of FOUR THOUSAND FIVE HUNDRED PESOS (P4,500.00) for actual and
compensatory damages; the sum of FIVE THOUSAND PESOS (P5,000.00) as moral damages; and the further sum
of FIVE HUNDRED PESOS (P500.00) as attorney's fees for plaintiff, with costs against defendant.

On appeal taken by petitioner, the Court of Appeals affirmed this decision, except as to the actual and compensatory
damages and the moral damages, which were increased to P5,614.25 and P7,000.00, respectively.

The main issue before us is whether moral damages are recoverable, under our laws, for breach of promise to marry. The
pertinent facts are:

Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then a teacher in the Sibonga Provincial High
School in Cebu, and petitioner, who was almost ten (10) years younger than she, used to go around together and were
regarded as engaged, although he had made no promise of marriage prior thereto. In 1951, she gave up teaching and
became a life insurance underwriter in the City of Cebu, where intimacy developed among her and the petitioner, since
one evening in 1953, when after coming from the movies, they had sexual intercourse in his cabin on board M/V
"Escaño," to which he was then attached as apprentice pilot. In February 1954, Soledad advised petitioner that she was
in the family way, whereupon he promised to marry her. Their child, Chris Hermosisima, was born on June 17, 1954, in a
private maternity and clinic. However, subsequently, or on July 24, 1954, defendant married one Romanita Perez. Hence,
the present action, which was commenced on or about October 4, 1954.

Referring now to the issue above referred to, it will be noted that the Civil Code of Spain permitted the recovery of
damages for breach to marry. Article 43 and 44 of said Code provides:

ART. 43. A mutual promise of marriage shall not give rise to an obligation to contract marriage. No court shall
entertain any complaint by which the enforcement of such promise is sought.

ART. 44. If the promise has been in a public or private instrument by an adult, or by a minor with the
concurrence of the person whose consent is necessary for the celebration of the marriage, or if the banns have
been published, the one who without just cause refuses to marry shall be obliged to reimburse the other for the
expenses which he or she may have incurred by reason of the promised marriage.

The action for reimbursement of expenses to which the foregoing article refers must be brought within one year,
computed from the day of the refusal to celebrate the marriage.

Inasmuch as these articles were never in force in the Philippines, this Court ruled in De Jesus vs. Syquia (58 Phil., 866), that
"the action for breach of promises to marry has no standing in the civil law, apart from the right to recover money or
property advanced . . . upon the faith of such promise". The Code Commission charged with the drafting of the
Proposed Civil Code of the Philippines deem it best, however, to change the law thereon. We quote from the report of
the Code Commission on said Proposed Civil Code:

Articles 43 and 44 the Civil Code of 1889 refer to the promise of marriage. But these articles are not enforced in
the Philippines. The subject is regulated in the Proposed Civil Code not only as to the aspect treated of in said
articles but also in other particulars. It is advisable to furnish legislative solutions to some questions that might
arise relative to betrothal. Among the provisions proposed are: That authorizing the adjudication of moral
damages, in case of breach of promise of marriage, and that creating liability for causing a marriage
engagement to be broken.1awphîl.nèt

Accordingly, the following provisions were inserted in said Proposed Civil Code, under Chapter I, Title III, Book I thereof:

Art. 56. A mutual promise to marry may be made expressly or impliedly.

Art. 57. An engagement to be married must be agreed directly by the future spouses.

Art. 58. A contract for a future marriage cannot, without the consent of the parent or guardian, be entered into
by a male between the ages of sixteen and twenty years or by a female between the ages of sixteen and
eighteen years. Without such consent of the parents or guardian, the engagement to marry cannot be the
basis of a civil action for damages in case of breach of the promise.

Art. 59. A promise to marry when made by a female under the age of fourteen years is not civilly actionable,
even though approved by the parent or guardian.

Art. 60. In cases referred to in the proceeding articles, the criminal and civil responsibility of a male for seduction
shall not be affected.

Art. 61. No action for specific performance of a mutual promise to marry may be brought.

Art. 62. An action for breach of promise to marry may be brought by the aggrieved party even though a minor
without the assistance of his parent or guardian. Should the minor refuse to bring suit, the parent or guardian
may institute the action.

Art. 63. Damages for breach of promise to marry shall include not only material and pecuniary losses but also
compensation for mental and moral suffering.
 Art. 64. Any person, other than a rival, the parents, guardians and grandparents, of the affianced parties, who
cause a marriage engagement to be broken shall be liable for damages, both material and moral, to the
engaged person who is rejected.

Art. 65. In case of breach of promise to marry, the party breaking the engagement shall be obliged to return
what he or she has received from the other as gift on account of the promise of the marriage.

These article were, however, eliminated in Congress. The reason therefor are set forth in the report of the corresponding
Senate Committee, from which we quote:

The elimination of this Chapter is proposed. That breach of promise to marry is not actionable has been definitely decide
in the case of De Jesus vs. Syquia, 58 Phil., 866. The history of breach of promise suit in the United States and in England
has shown that no other action lends itself more readily to abuse by designing women and unscrupulous men. It is this
experience which has led to the abolition of the rights of action in the so-called Balm suit in many of the American
States.

See statutes of:

Florida 1945 — pp. 1342 — 1344

Maryland 1945 — pp. 1759 — 1762
Nevada 1943 — p. 75
Maine 1941 — pp. 140 — 141
New Hampshire 1941 — p. 223
California 1939 — p. 1245
Massachusetts 1938 — p. 326
Indiana 1936 — p. 1009
Michigan 1935 — p. 201
New York 1935
Pennsylvania p. 450

The Commission perhaps though that it has followed the more progression trend in legislation when it provided
for breach of promise to marry suits. But it is clear that the creation of such causes of action at a time when so
many States, in consequence of years of experience are doing away with them, may well prove to be a step in
the wrong direction. (Congressional Record, Vol. IV, No. 79, Thursday, May 19, 1949, p. 2352.)

The views thus expressed were accepted by both houses of Congress. In the light of the clear and manifest intent of our
law making body not to sanction actions for breach of promise to marry, the award of moral damages made by the
lower courts is, accordingly, untenable. The Court of Appeals said award:

Moreover, it appearing that because of defendant-appellant's seduction power, plaintiff-appellee,

overwhelmed by her love for him finally yielded to his sexual desires in spite of her age and self-control, she
being a woman after all, we hold that said defendant-appellant is liable for seduction and, therefore, moral
damages may be recovered from him under the provision of Article 2219, paragraph 3, of the new Civil Code.

Apart from the fact that the general tenor of said Article 2219, particularly the paragraphs preceding and those
following the one cited by the Court of Appeals, and the language used in said paragraph strongly indicates that the
"seduction" therein contemplated is the crime punished as such in Article as such in Article 337 and 338 of the Revised
Penal Code, which admittedly does not exist in the present case, we find ourselves unable to say that petitioner
is morally guilty of seduction, not only because he is approximately ten (10) years younger than the complainant — who
around thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a life insurance agent
are supposed to be — when she became intimate with petitioner, then a mere apprentice pilot, but, also, because, the
court of first instance found that, complainant "surrendered herself" to petitioner because, "overwhelmed by her love" for
him, she "wanted to bind" "by having a fruit of their engagement even before they had the benefit of clergy."

The court of first instance sentenced petitioner to pay the following: (1) a monthly pension of P30.00 for the support of the
child: (2) P4,500, representing the income that complainant had allegedly failed to earn during her pregnancy and
shortly after the birth of the child, as actual and compensation damages; (3) P5,000, as moral damages; and (4) P500.00,
as attorney's fees. The Court of Appeals added to the second item the sum of P1,114.25 — consisting of P144.20, for
hospitalization and medical attendance, in connection with the parturiation, and the balance representing expenses
incurred to support the child — and increased the moral damages to P7,000.00.
With the elimination of this award for damages, the decision of the Court of Appeals is hereby affirmed, therefore, in all
other respects, without special pronouncement as to cost in this instance. It is so ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Gutierrez David, Paredes and Dizon, JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-20089 December 26, 1964

BEATRIZ P. WASSMER, plaintiff-appellee,

vs.
FRANCISCO X. VELEZ, defendant-appellant.

Jalandoni & Jamir for defendant-appellant.

Samson S. Alcantara for plaintiff-appellee.

BENGZON, J.P., J.:

The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious
endeavors, but terminated in frustration and, what is worse, complete public humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set
September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be:

Dear Bet —

Will have to postpone wedding — My mother opposes it. Am leaving on the Convair today.

Please do not ask too many people about the reason why — That would only create a scandal.

Paquing

But the next day, September 3, he sent her the following telegram:

NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE .

PAKING

Thereafter Velez did not appear nor was he heard from again.

Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before the
clerk of court as commissioner, and on April 29, 1955, judgment was rendered ordering defendant to pay plaintiff
P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees; and the costs.

On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new trial
and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the parties and their
attorneys to appear before it on August 23, 1955 "to explore at this stage of the proceedings the possibility of arriving at
an amicable settlement." It added that should any of them fail to appear "the petition for relief and the opposition
thereto will be deemed submitted for resolution."
On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a motion to
defer for two weeks the resolution on defendants petition for relief. The counsel stated that he would confer with
defendant in Cagayan de Oro City — the latter's residence — on the possibility of an amicable element. The court
granted two weeks counted from August 25, 1955.

Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but that
defendant and his counsel had failed to appear.

Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and their
attorneys to appear on July 13, 1956. This time. however, defendant's counsel informed the court that chances of settling
the case amicably were nil.

On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to this
Court. In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as ground to set aside
the judgment by default. Specifically, it was stated that defendant filed no answer in the belief that an amicable
settlement was being negotiated.

A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly
supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's
affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a good and valid defense against
plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due to fortuitous event and/or
circumstances beyond his control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is
not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800, December 29, 1960.)

Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage, because
the judgment sought to be set aside was null and void, it having been based on evidence adduced before the clerk of
court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed out that the procedure of
designating the clerk of court as commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of
Court. Now as to defendant's consent to said procedure, the same did not have to be obtained for he was declared in
default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First Instance, L-14557,
October 30, 1959).

In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to law. The
reason given is that "there is no provision of the Civil Code authorizing" an action for breach of promise to marry. Indeed,
our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept.
30, 1960), is that "mere breach of a promise to marry" is not an actionable wrong. We pointed out that Congress
deliberately eliminated from the draft of the new Civil Code the provisions that would have it so.

It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with impunity,
is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the latter for the damage."

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage, which was
subsequently issued (Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were printed and distributed
to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and other apparel for
the important occasion were purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A
matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn., 6; Exh. E). And then,
with but two days before the wedding, defendant, who was then 28 years old,: simply left a note for plaintiff stating: "Will
have to postpone wedding — My mother opposes it ... " He enplaned to his home city in Mindanao, and the next day,
the day before the wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But he never returned
and was never heard from again.

Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an
actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity,
only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably
contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21
aforesaid.

Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised as to the
award of actual damages. What defendant would really assert hereunder is that the award of moral and exemplary
damages, in the amount of P25,000.00, should be totally eliminated.
Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases mentioned
in Article 21 of said Code. As to exemplary damages, defendant contends that the same could not be adjudged
against him because under Article 2232 of the New Civil Code the condition precedent is that "the defendant acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of merit as under the above-
narrated circumstances of this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This
Court's opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral and
exemplary damages is deemed to be a reasonable award.

PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby affirmed, with
costs.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, and Zaldivar, JJ.,concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18630 December 17, 1966

APOLONIO TANJANCO, petitioner,

vs.
HON. COURT OF APPEALS and ARACELI SANTOS, respondents.

P. Carreon and G. O. Veneracion, Jr. for petitioner.

Antonio V. Bonoan for respondents.

REYES, J.B.L., J.:

Appeal from a decision of the Court of Appeals (in its Case No. 27210-R) revoking an order of the Court of First Instance
of Rizal (in Civil Case No. Q-4797) dismissing appellant's action for support and damages.

The essential allegations of the complaint are to the effect that, from December, 1957, the defendant (appellee herein),
Apolonio Tanjanco, courted the plaintiff, Araceli Santos, both being of adult age; that "defendant expressed and
professed his undying love and affection for plaintiff who also in due time reciprocated the tender feelings"; that in
consideration of defendant's promise of marriage plaintiff consented and acceded to defendant's pleas for carnal
knowledge; that regularly until December 1959, through his protestations of love and promises of marriage, defendant
succeeded in having carnal access to plaintiff, as a result of which the latter conceived a child; that due to her
pregnant condition, to avoid embarrassment and social humiliation, plaintiff had to resign her job as secretary in IBM
Philippines, Inc., where she was receiving P230.00 a month; that thereby plaintiff became unable to support herself and
her baby; that due to defendant's refusal to marry plaintiff, as promised, the latter suffered mental anguish, besmirched
reputation, wounded feelings, moral shock, and social humiliation. The prayer was for a decree compelling the
defendant to recognize the unborn child that plaintiff was bearing; to pay her not less than P430.00 a month for her
support and that of her baby, plus P100,000.00 in moral and exemplary damages, plus P10,000.00 attorney's fees.

Upon defendant's motion to dismiss, the court of first instance dismissed the complaint for failure to state a cause of
action.

Plaintiff Santos duly appealed to the Court of Appeals, and the latter ultimately decided the case, holding with the lower
court that no cause of action was shown to compel recognition of a child as yet unborn, nor for its support, but decreed
that the complaint did state a cause of action for damages, premised on Article 21 of the Civil Code of the Philippines,
prescribing as follows:
 ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.

The Court of Appeals, therefore, entered judgment setting aside the dismissal and directing the court of origin to
proceed with the case.

Defendant, in turn, appealed to this Court, pleading that actions for breach of a promise to marry are not permissible in
this jurisdiction, and invoking the rulings of this Court in Estopa vs. Piansay, L-14733, September 30, 1960; Hermosisima vs.
Court of Appeals, L-14628, January 29, 1962; and De Jesus vs. SyQuia, 58 Phil. 886.

We find this appeal meritorious.

In holding that the complaint stated a cause of action for damages, under Article 21 above mentioned, the Court of
Appeals relied upon and quoted from the memorandum submitted by the Code Commission to the Legislature in 1949
to support the original draft of the Civil Code. Referring to Article 23 of the draft (now Article 21 of the Code), the
Commission stated:

But the Code Commission has gone farther than the sphere of wrongs defined or determined by positive law.
Fully sensible that there are countless gaps in the statutes, which leave so many victims of moral wrongs
helpless, even though they have actually suffered material and moral injury, the Commission has deemed it
necessary, in the interest of justice, to incorporate in the proposed Civil Code the following rule:

"ART. 23. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage."

An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year old daughter of "X".
A promise of marriage either has not been made, or can not be proved. The girl becomes pregnant. Under the
present laws, there is no crime, as the girl is above eighteen years of age. Neither can any civil action for
breach of promise of marriage be filed. Therefore, though the grievous moral wrong has been committed, and
though the girl and her family have suffered incalculable moral damage, she and her parents cannot bring
any action for damages. But under the proposed article, she and her parents would have such a right of
action.

The Court of Appeals seems to have overlooked that the example set forth in the Code Commission's memorandum
refers to a tort upon a minor who has been seduced. The essential feature is seduction, that in law is more than mere
sexual intercourse, or a breach of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior
power or abuse of confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27
Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that —

To constitute seduction there must in all cases be some sufficient promise or inducement and the woman must
yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is
from mutual desire, there is no seduction (43 Cent. Dig. tit. Seduction, par. 56). She must be induced to depart
from the path of virtue by the use of some species of arts, persuasions and wiles, which are calculated to have
and do have that effect, and which result in her ultimately submitting her person to the sexual embraces of her
seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement, persuasion or deception is the essence of the
injury; and a mere proof of intercourse is insufficient to warrant a recover.

Accordingly it is not seduction where the willingness arises out of sexual desire or curiosity of the female, and
the defendant merely affords her the needed opportunity for the commission of the act. It has been
emphasized that to allow a recovery in all such cases would tend to the demoralization of the female sex, and
would be a reward for unchastity by which a class of adventuresses would be swift to profit." (47 Am. Jur. 662)

Bearing these principles in mind, let us examine the complaint. The material allegations there are as follows:
 I. That the plaintiff is of legal age, single, and residing at 56 South E. Diliman, Quezon City, while defendant is
also of legal age, single and residing at 525 Padre Faura, Manila, where he may be served with summons;

II. That the plaintiff and the defendant became acquainted with each other sometime in December, 1957 and
soon thereafter, the defendant started visiting and courting the plaintiff;

III. That the defendant's visits were regular and frequent and in due time the defendant expressed and
professed his undying love and affection for the plaintiff who also in due time reciprocated the tender feelings;

IV. That in the course of their engagement, the plaintiff and the defendant as are wont of young people in love
had frequent outings and dates, became very close and intimate to each other and sometime in July, 1958, in
consideration of the defendant's promises of marriage, the plaintiff consented and acceded to the former's
earnest and repeated pleas to have carnal knowledge with him;

V. That subsequent thereto and regularly until about July, 1959 except for a short period in December, 1958
when the defendant was out of the country, the defendant through his protestations of love and promises of
marriage succeeded in having carnal knowledge with the plaintiff;

VI. That as a result of their intimate relationship, the plaintiff started conceiving which was confirmed by a
doctor sometime in July, 1959;

VII. That upon being certain of her pregnant condition, the plaintiff informed the defendant and pleaded with
him to make good his promises of marriage, but instead of honoring his promises and righting his wrong, the
defendant stopped and refrained from seeing the plaintiff since about July, 1959 has not visited the plaintiff
and to all intents and purposes has broken their engagement and his promises.

Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to 1959, the plaintiff-
appellee, a woman of adult age, maintained intimate sexual relations with appellant, with repeated acts of intercourse.
Such conduct is incompatible with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had
the appellant been deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of the
defendant, she would not have again yielded to his embraces, much less for one year, without exacting early fulfillment
of the alleged promises of marriage, and would have cut chart all sexual relations upon finding that defendant did not
intend to fulfill his promises. Hence, we conclude that no case is made under Article 21 of the Civil Code, and no other
cause of action being alleged, no error was committed by the Court of First Instance in dismissing the complaint.

Of course, the dismissal must be understood as without prejudice to whatever actions may correspond to the child of the
plaintiff against the defendant-appellant, if any. On that point, this Court makes no pronouncement, since the child's
own rights are not here involved.

FOR THE FOREGOING REASONS, the decision of the Court of Appeals is reversed, and that of the Court of First Instance is
affirmed. No costs.

Concepcion, C.J., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 97336 February 19, 1993

GASHEM SHOOKAT BAKSH, petitioner,

vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.

Public Attorney's Office for petitioner.

Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the Decision1 of the
respondent Court of Appeals in CA-G.R. CV No. 24256 which affirmed in toto the 16 October 1939 Decision of Branch 38
(Lingayen) of the Regional Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the issue of whether or not
damages may be recovered for a breach of promise to marry on the basis of Article 21 of the Civil Code of the
Philippines.

The antecedents of this case are not complicated:

On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid trial court a
complaint2 for damages against the petitioner for the alleged violation of their agreement to get married. She alleges in
said complaint that: she is twenty-two (22) years old, single, Filipino and a pretty lass of good moral character and
reputation duly respected in her community; petitioner, on the other hand, is an Iranian citizen residing at the Lozano
Apartments, Guilig, Dagupan City, and is an exchange student taking a medical course at the Lyceum Northwestern
Colleges in Dagupan City; before 20 August 1987, the latter courted and proposed to marry her; she accepted his love
on the condition that they would get married; they therefore agreed to get married after the end of the school
semester, which was in October of that year; petitioner then visited the private respondent's parents in Bañaga,
Bugallon, Pangasinan to secure their approval to the marriage; sometime in 20 August 1987, the petitioner forced her to
live with him in the Lozano Apartments; she was a virgin before she began living with him; a week before the filing of the
complaint, petitioner's attitude towards her started to change; he maltreated and threatened to kill her; as a result of
such maltreatment, she sustained injuries; during a confrontation with a representative of the barangay captain of Guilig
a day before the filing of the complaint, petitioner repudiated their marriage agreement and asked her not to live with
him anymore and; the petitioner is already married to someone living in Bacolod City. Private respondent then prayed
for judgment ordering the petitioner to pay her damages in the amount of not less than P45,000.00, reimbursement for
actual expenses amounting to P600.00, attorney's fees and costs, and granting her such other relief and remedies as
may be just and equitable. The complaint was docketed as Civil Case No. 16503.

In his Answer with Counterclaim,3 petitioner admitted only the personal circumstances of the parties as averred in the
complaint and denied the rest of the allegations either for lack of knowledge or information sufficient to form a belief as
to the truth thereof or because the true facts are those alleged as his Special and Affirmative Defenses. He thus claimed
that he never proposed marriage to or agreed to be married with the private respondent; he neither sought the consent
and approval of her parents nor forced her to live in his apartment; he did not maltreat her, but only told her to stop
coming to his place because he discovered that she had deceived him by stealing his money and passport; and finally,
no confrontation took place with a representative of the barangay captain. Insisting, in his Counterclaim, that the
complaint is baseless and unfounded and that as a result thereof, he was unnecessarily dragged into court and
compelled to incur expenses, and has suffered mental anxiety and a besmirched reputation, he prayed for an award of
P5,000.00 for miscellaneous expenses and P25,000.00 as moral damages.

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order4 embodying the stipulated facts
which the parties had agreed upon, to wit:

1. That the plaintiff is single and resident (sic) of Bañaga, Bugallon, Pangasinan, while the defendant is
single, Iranian citizen and resident (sic) of Lozano Apartment, Guilig, Dagupan City since September 1,
1987 up to the present;

2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City, College of
Medicine, second year medicine proper;

3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue, Dagupan
City since July, 1986 up to the present and a (sic) high school graduate;

4. That the parties happened to know each other when the manager of the Mabuhay Luncheonette,
Johhny Rabino introduced the defendant to the plaintiff on August 3, 1986.
After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16 October 1989 a
decision5 favoring the private respondent. The petitioner was thus ordered to pay the latter damages and attorney's
fees; the dispositive portion of the decision reads:

IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the plaintiff and
against the defendant.

1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand (P20,000.00) pesos
as moral damages.

2. Condemning further the defendant to play the plaintiff the sum of three thousand (P3,000.00) pesos
as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation expenses and to pay the costs.

3. All other claims are denied.6

The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private respondent were
lovers, (b) private respondent is not a woman of loose morals or questionable virtue who readily submits to sexual
advances, (c) petitioner, through machinations, deceit and false pretenses, promised to marry private respondent, d)
because of his persuasive promise to marry her, she allowed herself to be deflowered by him, (e) by reason of that
deceitful promise, private respondent and her parents — in accordance with Filipino customs and traditions — made
some preparations for the wedding that was to be held at the end of October 1987 by looking for pigs and chickens,
inviting friends and relatives and contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such
acts of the petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our sense of morality,
good customs, culture and traditions. The trial court gave full credit to the private respondent's testimony because, inter
alia, she would not have had the temerity and courage to come to court and expose her honor and reputation to
public scrutiny and ridicule if her claim was false.7

The above findings and conclusions were culled from the detailed summary of the evidence for the private respondent
in the foregoing decision, digested by the respondent Court as follows:

According to plaintiff, who claimed that she was a virgin at the time and that she never had a
boyfriend before, defendant started courting her just a few days after they first met. He later proposed
marriage to her several times and she accepted his love as well as his proposal of marriage on August
20, 1987, on which same day he went with her to her hometown of Bañaga, Bugallon, Pangasinan, as
he wanted to meet her parents and inform them of their relationship and their intention to get
married. The photographs Exhs. "A" to "E" (and their submarkings) of defendant with members of
plaintiff's family or with plaintiff, were taken that day. Also on that occasion, defendant told plaintiffs
parents and brothers and sisters that he intended to marry her during the semestral break in October,
1987, and because plaintiff's parents thought he was good and trusted him, they agreed to his
proposal for him to marry their daughter, and they likewise allowed him to stay in their house and
sleep with plaintiff during the few days that they were in Bugallon. When plaintiff and defendant later
returned to Dagupan City, they continued to live together in defendant's apartment. However, in the
early days of October, 1987, defendant would tie plaintiff's hands and feet while he went to school,
and he even gave her medicine at 4 o'clock in the morning that made her sleep the whole day and
night until the following day. As a result of this live-in relationship, plaintiff became pregnant, but
defendant gave her some medicine to abort the fetus. Still plaintiff continued to live with defendant
and kept reminding him of his promise to marry her until he told her that he could not do so because
he was already married to a girl in Bacolod City. That was the time plaintiff left defendant, went home
to her parents, and thereafter consulted a lawyer who accompanied her to the barangay captain in
Dagupan City. Plaintiff, her lawyer, her godmother, and a barangay tanod sent by the barangay
captain went to talk to defendant to still convince him to marry plaintiff, but defendant insisted that
he could not do so because he was already married to a girl in Bacolod City, although the truth, as
stipulated by the parties at the pre-trial, is that defendant is still single.

Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of his desire to
marry Marilou, he already looked for sponsors for the wedding, started preparing for the reception by
looking for pigs and chickens, and even already invited many relatives and friends to the forthcoming
wedding. 8

Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the case as CA-G.R.
CV No. 24256. In his Brief,9 he contended that the trial court erred (a) in not dismissing the case for lack of factual and
legal basis and (b) in ordering him to pay moral damages, attorney's fees, litigation expenses and costs.
On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in toto the trial court's ruling of
16 October 1989. In sustaining the trial court's findings of fact, respondent Court made the following analysis:

First of all, plaintiff, then only 21 years old when she met defendant who was already 29 years old at
the time, does not appear to be a girl of loose morals. It is uncontradicted that she was a virgin prior
to her unfortunate experience with defendant and never had boyfriend. She is, as described by the
lower court, a barrio lass "not used and accustomed to trend of modern urban life", and certainly
would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made by the
defendant to marry her." In fact, we agree with the lower court that plaintiff and defendant must
have been sweethearts or so the plaintiff must have thought because of the deception of defendant,
for otherwise, she would not have allowed herself to be photographed with defendant in public in so
(sic) loving and tender poses as those depicted in the pictures Exhs. "D" and "E". We cannot believe,
therefore, defendant's pretense that plaintiff was a nobody to him except a waitress at the restaurant
where he usually ate. Defendant in fact admitted that he went to plaintiff's hometown of Bañaga,
Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on February 27, 1987 (p. 54, tsn May 18,
1988), at (sic) a beach party together with the manager and employees of the Mabuhay
Luncheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when he allegedly talked to
plaintiff's mother who told him to marry her daughter (pp. 55-56, tsn id.). Would defendant have left
Dagupan City where he was involved in the serious study of medicine to go to plaintiff's hometown in
Bañaga, Bugallon, unless there was (sic) some kind of special relationship between them? And this
special relationship must indeed have led to defendant's insincere proposal of marriage to plaintiff,
communicated not only to her but also to her parents, and (sic) Marites Rabino, the owner of the
restaurant where plaintiff was working and where defendant first proposed marriage to her, also knew
of this love affair and defendant's proposal of marriage to plaintiff, which she declared was the
reason why plaintiff resigned from her job at the restaurant after she had accepted defendant's
proposal (pp. 6-7, tsn March 7, 1988).

Upon the other hand, appellant does not appear to be a man of good moral character and must
think so low and have so little respect and regard for Filipino women that he openly admitted that
when he studied in Bacolod City for several years where he finished his B.S. Biology before he came to
Dagupan City to study medicine, he had a common-law wife in Bacolod City. In other words, he also
lived with another woman in Bacolod City but did not marry that woman, just like what he did to
plaintiff. It is not surprising, then, that he felt so little compunction or remorse in pretending to love and
promising to marry plaintiff, a young, innocent, trustful country girl, in order to satisfy his lust on her. 11

and then concluded:

In sum, we are strongly convinced and so hold that it was defendant-appellant's fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her surrender her virtue
and womanhood to him and to live with him on the honest and sincere belief that he would keep said
promise, and it was likewise these (sic) fraud and deception on appellant's part that made plaintiff's
parents agree to their daughter's living-in with him preparatory to their supposed marriage. And as
these acts of appellant are palpably and undoubtedly against morals, good customs, and public
policy, and are even gravely and deeply derogatory and insulting to our women, coming as they do
from a foreigner who has been enjoying the hospitality of our people and taking advantage of the
opportunity to study in one of our institutions of learning, defendant-appellant should indeed be
made, under Art. 21 of the Civil Code of the Philippines, to compensate for the moral damages and
injury that he had caused plaintiff, as the lower court ordered him to do in its decision in this case. 12

Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises therein the single issue of
whether or not Article 21 of the Civil Code applies to the case at bar. 13

It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral wrong or injury or
violated any good custom or public policy; he has not professed love or proposed marriage to the private respondent;
and he has never maltreated her. He criticizes the trial court for liberally invoking Filipino customs, traditions and culture,
and ignoring the fact that since he is a foreigner, he is not conversant with such Filipino customs, traditions and culture.
As an Iranian Moslem, he is not familiar with Catholic and Christian ways. He stresses that even if he had made a promise
to marry, the subsequent failure to fulfill the same is excusable or tolerable because of his Moslem upbringing; he then
alludes to the Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes that on the basis
thereof, the trial court erred in ruling that he does not posses good moral character. Moreover, his controversial
"common law life" is now his legal wife as their marriage had been solemnized in civil ceremonies in the Iranian Embassy.
As to his unlawful cohabitation with the private respondent, petitioner claims that even if responsibility could be pinned
on him for the live-in relationship, the private respondent should also be faulted for consenting to an illicit arrangement.
Finally, petitioner asseverates that even if it was to be assumed arguendo that he had professed his love to the private
respondent and had also promised to marry her, such acts would not be actionable in view of the special circumstances
of the case. The mere breach of promise is not actionable. 14

On 26 August 1991, after the private respondent had filed her Comment to the petition and the petitioner had filed his
Reply thereto, this Court gave due course to the petition and required the parties to submit their respective Memoranda,
which they subsequently complied with.

As may be gleaned from the foregoing summation of the petitioner's arguments in support of his thesis, it is clear that
questions of fact, which boil down to the issue of the credibility of witnesses, are also raised. It is the rule in this jurisdiction
that appellate courts will not disturb the trial court's findings as to the credibility of witnesses, the latter court having
heard the witnesses and having had the opportunity to observe closely their deportment and manner of testifying, unless
the trial court had plainly overlooked facts of substance or value which, if considered, might affect the result of the
case. 15

Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked any fact of
substance or values which could alter the result of the case.

Equally settled is the rule that only questions of law may be raised in a petition for review on certiorari under Rule 45 of
the Rules of Court. It is not the function of this Court to analyze or weigh all over again the evidence introduced by the
parties before the lower court. There are, however, recognized exceptions to this rule. Thus, in Medina vs.Asistio, Jr., 16 this
Court took the time, again, to enumerate these exceptions:

xxx xxx xxx

(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures
(Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is manifestly mistaken, absurb
or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of discretion (Buyco
v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of facts (Cruz v.
Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-9590 Ap. 30,
1957; unrep.) (6) When the Court of Appeals, in making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both appellate and appellee (Evangelista v. Alto Surety
and Insurance Co., 103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court of
Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of
fact are conclusions without citation of specific evidence on which they are based (Ibid.,); (9) When
the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by
the respondents (Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on the
supposed absence of evidence and is contradicted by the evidence on record (Salazar v. Gutierrez,
33 SCRA 242 [1970]).

Petitioner has not endeavored to joint out to Us the existence of any of the above quoted exceptions in this case.
Consequently, the factual findings of the trial and appellate courts must be respected.

And now to the legal issue.

The existing rule is that a breach of promise to marry per se is not an actionable wrong. 17 Congress deliberately
eliminated from the draft of the New Civil Code the provisions that would have made it so. The reason therefor is set forth
in the report of the Senate Committees on the Proposed Civil Code, from which We quote:

The elimination of this chapter is proposed. That breach of promise to marry is not actionable has
been definitely decided in the case of De Jesus vs. Syquia. 18 The history of breach of promise suits in
the United States and in England has shown that no other action lends itself more readily to abuse by
designing women and unscrupulous men. It is this experience which has led to the abolition of rights of
action in the so-called Heart Balm suits in many of the American states. . . . 19

This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the concept of torts
or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is
impossible for human foresight to specifically enumerate and punish in the statute books. 20
As the Code Commission itself stated in its Report:

But the Code Commission had gone farther than the sphere of wrongs defined or determined by
positive law. Fully sensible that there are countless gaps in the statutes, which leave so many victims of
moral wrongs helpless, even though they have actually suffered material and moral injury, the
Commission has deemed it necessary, in the interest of justice, to incorporate in the proposed Civil
Code the following rule:

Art. 23. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for
the damage.

An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year old
daughter of "X". A promise of marriage either has not been made, or can not be proved. The girl
becomes pregnant. Under the present laws, there is no crime, as the girl is above nineteen years of
age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though the
grievous moral wrong has been committed, and though the girl and family have suffered incalculable
moral damage, she and her parents cannot bring action for damages. But under the proposed
article, she and her parents would have such a right of action.

Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe adequate legal
remedy for that untold number of moral wrongs which it is impossible for human foresight to provide
for specifically in the statutes. 21

Article 2176 of the Civil Code, which defines a quasi-delict thus:

Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to
pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-delict, known in
Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common
law concept. Torts is much broader than culpa aquiliana because it includes not only negligence, but
international criminal acts as well such as assault and battery, false imprisonment and deceit. In the general
scheme of the Philippine legal system envisioned by the Commission responsible for drafting the New Civil
Code, intentional and malicious acts, with certain exceptions, are to be governed by the Revised Penal Code
while negligent acts or omissions are to be covered by Article 2176 of the Civil Code. 22 In between these
opposite spectrums are injurious acts which, in the absence of Article 21, would have been beyond redress.
Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19 and 20 of the Civil Code,
Article 21 has greatly broadened the scope of the law on civil wrongs; it has become much more supple and
adaptable than the Anglo-American law on torts. 23

In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man's promise
to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that
promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he
had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice
or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant
to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to
her honor and reputation which followed thereafter. It is essential, however, that such injury should have been
committed in a manner contrary to morals, good customs or public policy.

In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive protestations of love for
and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the
honest and sincere belief that he would keep said promise, and it was likewise these fraud and deception on appellant's
part that made plaintiff's parents agree to their daughter's living-in with him preparatory to their supposed marriage." 24 In
short, the private respondent surrendered her virginity, the cherished possession of every single Filipina, not because of
lust but because of moral seduction — the kind illustrated by the Code Commission in its example earlier adverted to.
The petitioner could not be held liable for criminal seduction punished under either Article 337 or Article 338 of the
Revised Penal Code because the private respondent was above eighteen (18) years of age at the time of the
seduction.
Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to marry where the
woman is a victim of moral seduction. Thus, in Hermosisima vs. Court of Appeals,25 this Court denied recovery of
damages to the woman because:

. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is
approximately ten (10) years younger than the complainant — who was around thirty-six (36) years of
age, and as highly enlightened as a former high school teacher and a life insurance agent are
supposed to be — when she became intimate with petitioner, then a mere apprentice pilot, but, also,
because the court of first instance found that, complainant "surrendered herself" to petitioner
because, "overwhelmed by her love" for him, she "wanted to bind" him by having a fruit of their
engagement even before they had the benefit of clergy.

In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if there had been moral
seduction, recovery was eventually denied because We were not convinced that such seduction existed. The following
enlightening disquisition and conclusion were made in the said case:

The Court of Appeals seem to have overlooked that the example set forth in the Code Commission's
memorandum refers to a tort upon a minor who had been seduced. The essential feature is
seduction, that in law is more than mere sexual intercourse, or a breach of a promise of marriage; it
connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the
part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs.
Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that —

To constitute seduction there must in all cases be some sufficient promise or

inducement and the woman must yield because of the promise or other
inducement. If she consents merely from carnal lust and the intercourse is from
mutual desire, there is no seduction (43 Cent. Dig. tit. Seduction, par. 56) She must
be induced to depart from the path of virtue by the use of some species of arts,
persuasions and wiles, which are calculated to have and do have that effect, and
which result in her person to ultimately submitting her person to the sexual
embraces of her seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement, persuasion or

deception is the essence of the injury; and a mere proof of intercourse is insufficient
to warrant a recovery.

Accordingly it is not seduction where the willingness arises out of sexual desire of
curiosity of the female, and the defendant merely affords her the needed
opportunity for the commission of the act. It has been emphasized that to allow a
recovery in all such cases would tend to the demoralization of the female sex, and
would be a reward for unchastity by which a class of adventuresses would be swift
to profit. (47 Am. Jur. 662)

xxx xxx xxx

Over and above the partisan allegations, the fact stand out that for one whole year, from 1958 to
1959, the plaintiff-appellee, a woman of adult age, maintain intimate sexual relations with appellant,
with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly
there is here voluntariness and mutual passion; for had the appellant been deceived, had she
surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she
would not have again yielded to his embraces, much less for one year, without exacting early
fulfillment of the alleged promises of marriage, and would have cut short all sexual relations upon
finding that defendant did not intend to fulfill his defendant did not intend to fulfill his promise. Hence,
we conclude that no case is made under article 21 of the Civil Code, and no other cause of action
being alleged, no error was committed by the Court of First Instance in dismissing the complaint. 27
In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently retired from this Court, opined
that in a breach of promise to marry where there had been carnal knowledge, moral damages may be recovered:

. . . if there be criminal or moral seduction, but not if the intercourse was due to mutual lust.
(Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs. Marcos, 7 Phil. 56
(sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29, 1962). (In other words, if the CAUSE
be the promise to marry, and the EFFECT be the carnal knowledge, there is a chance that there
was criminal or moral seduction, hence recovery of moral damages will prosper. If it be the other way
around, there can be no recovery of moral damages, because here mutual lust has intervened). . . .

together with "ACTUAL damages, should there be any, such as the expenses for the wedding presentations
(See Domalagon v. Bolifer, 33 Phil. 471).

Senator Arturo M. Tolentino 29 is also of the same persuasion:

It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the incorporation of
the present article31 in the Code. The example given by the Code Commission is correct, if there
was seduction, not necessarily in the legal sense, but in the vulgar sense of deception. But when the
sexual act is accomplished without any deceit or qualifying circumstance of abuse of authority or
influence, but the woman, already of age, has knowingly given herself to a man, it cannot be said
that there is an injury which can be the basis for indemnity.

But so long as there is fraud, which is characterized by willfulness (sic), the action lies. The court,
however, must weigh the degree of fraud, if it is sufficient to deceive the woman under the
circumstances, because an act which would deceive a girl sixteen years of age may not constitute
deceit as to an experienced woman thirty years of age. But so long as there is a wrongful act and a
resulting injury, there should be civil liability, even if the act is not punishable under the criminal law
and there should have been an acquittal or dismissal of the criminal case for that reason.

We are unable to agree with the petitioner's alternative proposition to the effect that granting, for argument's sake, that
he did promise to marry the private respondent, the latter is nevertheless also at fault. According to him, both parties are
in pari delicto; hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid down in Batarra
vs. Marcos, 32 the private respondent cannot recover damages from the petitioner. The latter even goes as far as stating
that if the private respondent had "sustained any injury or damage in their relationship, it is primarily because of her own
doing, 33 for:

. . . She is also interested in the petitioner as the latter will become a doctor sooner or later. Take
notice that she is a plain high school graduate and a mere employee . . . (Annex "C") or a waitress
(TSN, p. 51, January 25, 1988) in a luncheonette and without doubt, is in need of a man who can give
her economic security. Her family is in dire need of financial assistance. (TSN, pp. 51-53, May 18, 1988).
And this predicament prompted her to accept a proposition that may have been offered by the
petitioner. 34

These statements reveal the true character and motive of the petitioner. It is clear that he harbors a condescending, if
not sarcastic, regard for the private respondent on account of the latter's ignoble birth, inferior educational background,
poverty and, as perceived by him, dishonorable employment. Obviously then, from the very beginning, he was not at all
moved by good faith and an honest motive. Marrying with a woman so circumstances could not have even remotely
occurred to him. Thus, his profession of love and promise to marry were empty words directly intended to fool, dupe,
entice, beguile and deceive the poor woman into believing that indeed, he loved her and would want her to be his life's
partner. His was nothing but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting his
proffer of love and proposal of marriage, she would be able to enjoy a life of ease and security. Petitioner clearly
violated the Filipino's concept of morality and brazenly defied the traditional respect Filipinos have for their women. It
can even be said that the petitioner committed such deplorable acts in blatant disregard of Article 19 of the Civil Code
which directs every person to act with justice, give everyone his due and observe honesty and good faith in the exercise
of his rights and in the performance of his obligations.

No foreigner must be allowed to make a mockery of our laws, customs and traditions.

The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been impelled by
the purest of intentions, she eventually submitted to the petitioner in sexual congress not out of lust, but because of moral
seduction. In fact, it is apparent that she had qualms of conscience about the entire episode for as soon as she found
out that the petitioner was not going to marry her after all, she left him. She is not, therefore, in pari delicto with the
petitioner. Pari delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal fault." 35At most, it could
be conceded that she is merely in delicto.

Equity often interferes for the relief of the less guilty of the parties, where his transgression has been
brought about by the imposition of undue influence of the party on whom the burden of the original
wrong principally rests, or where his consent to the transaction was itself procured by
fraud. 36

In Mangayao vs. Lasud, 37 We declared:

Appellants likewise stress that both parties being at fault, there should be no action by one against the
other (Art. 1412, New Civil Code). This rule, however, has been interpreted as applicable only where
the fault on both sides is, more or less, equivalent. It does not apply where one party is literate or
intelligent and the other one is not. (c.f. Bough vs. Cantiveros, 40 Phil. 209).

We should stress, however, that while We find for the private respondent, let it not be said that this Court condones the
deplorable behavior of her parents in letting her and the petitioner stay together in the same room in their house after
giving approval to their marriage. It is the solemn duty of parents to protect the honor of their daughters and infuse upon
them the higher values of morality and dignity.

WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby DENIED, with costs
against the petitioner.

SO ORDERED.

Feliciano, Bidin, Romero and Melo, JJ., concur.

Gutierrez, Jr., J., is on leave.

# Footnotes

1 Annex "G" of Petition; Rollo, 53-62. Per Associate Justice Alicia V. Sempio-Diy, concurred in by
Associate Justices Jose C. Campos, Jr. and Jaime M. Lantin.

2 Annex "A" of Petition; Rollo, 20-22.

3 Annex "B" of Petition; Rollo, 23-24.

4 Annex "C", Id.; Id., 25.

5 Annex "D" of Petition; Rollo, 26-33. Per Judge Antonio M. Belen.

6 Id., 33.

7 Rollo, 31-33.

8 Rollo, 54-55.

9 Exhibit "E" of Petition; Rollo, 34-50.

10 Annex "G", Id.; Id.; 53-62.

11 Rollo, 58-59.
12 Rollo, 61.

13 Id., 11.

14 In support thereof, he cites Despi vs. Aliosco, [CA] 64 O.G.; Wassmer vs. Velez, 12 SCRA 648 [1964];
Hermosisima vs. Court of Appeals, 109 Phil. 629 [1960]; and Estopa vs. Piansay, 109 Phil. 640 [1960].

15 People vs. Garcia, 89 SCRA 440 [1979]; People vs. Bautista, 92 SCRA 465 [1979]; People vs. Abejuela,
92 SCRA 503 [1979]; People vs. Arciaga, 98 SCRA 1 [1980]; People vs. Marzan, 128 SCRA 203 [1984];
People vs. Alcid, 135 SCRA 280 [1985]; People vs. Sanchez, 199 SCRA 414 [1991]; and People vs.
Atilano, 204 SCRA 278 [1991].

16 191 SCRA 218 [1990], footnote omitted; see also, Remalante vs. Tibe, 158 SCRA 138 [1988].

17 Hermosisima vs. Court of Appeals, 109 Phil. 629 [1960]; Estopa vs. Piansay, 109 Phil. 640 [1960].

18 58 Phil. 866 [1933].

19 Congressional Record, vol. IV, No. 79, Thursday, 14 May 1949, 2352.

20 Philippine National Bank vs. Court of Appeals, 83 SCRA 237 [1978].

21 Report of the Code Commission, 39-40. This passage is quoted, except for the last paragraph, in
Tanjanco vs. Court of Appeals, 18 SCRA 994, 996-997 [1966]; the Article 23 referred to is now Article 21.

22 Report of the Code Commission, 161-162.

23 TOLENTINO, A.M., Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1,
1985 ed., 72.

24. Rollo, 61.

25. Supra.

26. Supra.

27 At pages 997-999.

28 Civil Code of the Philippines Annotated, vol. I, Eleventh ed., (1984), 91-92.

29 Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 76-77,
omitting footnotes.

30 7 Phil. 156 [1906].

31 Article 21.

32 Supra.

33 Rollo, 16.

34 Id., 16-17.

35 Black's Law Dictionary, Fifth ed., 1004.

 36 37 Am Jur 2d, 401, omitting citations.

37 11 SCRA 158 [1964]; see also, Liguez vs. Court of Appeals 102 Phil. 577 [1975].

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10699 October 18, 1957

WILLIAM H. BROWN, plaintiff-appellant,

vs.
JUANITA YAMBAO, defendant-appellee.

Jimenez B. Buendia for appellant.

Assistant City Fiscal Rafel A. Jose for appellee.

REYES, J.B.L., J.:

On July 14, 1955, William H. Brown filed suit in the Court of First Instance of Manila to obtain legal separation from his
lawful wife Juanita Yambao. He alleged under oath that while interned by the Japanese invaders, from 1942 to 1945, at
the University of Sto. Tomas internment camp, his wife engaged in adulterous relations with one Carlos Field of whom she
begot a baby girl that Brown learned of his wifes misconduct only in 1945, upon his release from internment; that
thereafter the spouse lived separately and later executed a document (Annex A ) liquidating their conjugal partnership
and assigning certain properties to the erring wife as her share. The complaint prayed for confirmation of the liquidation
agreement; for custody of the children issued of the marriage; that the defendant be declared disqualified to succeed
the plaintiff; and for their remedy as might be just and equitable.

Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to answer in due time,
despite service of summons; and directed the City Fiscal or his representatives to—

investigate, in accordance with Article 101 of the Civil Code, whether or not a collusion exists between the
parties and to report to this Court the result of his investigation within fifteen (15) days from receipt of copy of
this order. The City Fiscal or his representative is also directed to intervene in the case in behalf of the State.
(Rec. App. p. 9).

As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined plaintiff Brown. His questions
(strenuously objected to by Brown's counsel) elicited the fact that after liberation, Brown had lived maritally with another
woman and had begotten children by her. Thereafter, the court rendered judgment denying the legal separation
asked, on the ground that, while the wife's adultery was established, Brown had incurred in a misconduct of similar
nature that barred his right of action under Article 100 of the new Civil Code, providing:

ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation or of consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.

that there had been consent and connivance, and because Brown's action had prescribed under Article 102 of the
same Code:

ART. 102 An action for legal separation cannot be filed except within one year from and after the date on
which the plaintiff became cognizant of the cause and within five years from and after date when such cause
occurred.

since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in 1945.

Brown appeared to this Court, assigning the following errors:

 The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the defendant, who
defaulted.

The court erred in declaring that there was condonation of or consent to the adultery.

The court erred in dismissing the plaintiff's complaint.

Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia Deito, who was not his
wife, the Assistant Fiscal acted as consel for the defaulting wife, "when the power of the prosecuting officer is limited to
finding out whether or not there is collusion, and if there is no collusion, which is the fact in the case at bar, to intervene
for the state which is not the fact in the instant case, the truth of the matter being that he intervened for Juanita
Yambao, the defendant-appellee, who is private citizen and who is far from being the state.".

The argument is untenable. Collusion in matrimonial cases being "the act of married persons in procuring a divorce by
mutual consent, whether by preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of
agreement to defend divorce proceedings" (Cyclopedia Law Dictionary; Nelson, Divorce and Separation, Section 500),
it was legitimate for the Fiscal to bring to light any circumstances that could give rise to the inference that the wife's
default was calculated, or agreed upon, to enable appellant to obtain the decree of legal separation that he sought
without regard to the legal merits of his case. One such circumstance is obviously the fact of Brown's cohabitation with a
woman other than his wife, since it bars him from claiming legal separation by express provision of Article 100 of the new
Civil Code. Wherefore, such evidence of such misconduct, were proper subject of inquiry as they may justifiably be
considered circumstantial evidence of collusion between the spouses.

The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested
proceedings for legal separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is
more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or
interruption cannot be made depend upon the parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43
Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant with this policy that the injury by the
Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or
annulment are fully justified or not.

The court below also found, and correctly held that the appellant's action was already barred, because Brown did not
petition for legal separation proceedings until ten years after he learned of his wife's adultery, which was upon his release
from internment in 1945. Under Article 102 of the new Civil Code, action for legal separation can not be filed except
within one (1) year from and after the plaintiff became cognizant of the cause and within five years from and after the
date when such cause occurred. Appellant's brief does not even contest the correctness of such findings and
conclusion.

It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take cognizance
thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest and it is
the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record.

Hence, there being at least two well established statutory grounds for denying the remedy sought (commission of similar
offense by petitioner and prescription of the action), it becomes unnecesary to delve further into the case and ascertain
if Brown's inaction for ten years also evidences condonation or connivance on his part. Even if it did not, his situation
would not be improved. It is thus needless to discuss the second assignment of error.

The third assignment of error being a mere consequence of the others must necessarily fail with them.

The decision appealed from is affirmed, with costs against appellant. So ordered.

Bengzon, Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia and Felix,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-13553 February 23, 1960

JOSE DE OCAMPO, petitioner,

vs.
SERAFINA FLORENCIANO, respondent.

Joselito J. Coloma for petitioner.

BENGZON, J.:

Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The court of first
instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was confession of judgment, plus
condonation or consent to the adultery and prescription.

We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for convenience
are quoted herewith:

ART. 100.—The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.

ART. 101.—No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of
judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether
or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for
the State in order to take care that the evidence for the plaintiff is not fabricated.

The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it described their
marriage performed in 1938, and the commission of adultery by Serafina, in March 1951 with Jose Arcalas, and in June
1955 with Nelson Orzame.

Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed the
provincial fiscal to investigate whether or not collusion existed between the parties. The fiscal examined the defendant
under oath, and then reported to the Court that there was no collusion. The plaintiff presented his evidence consisting of
the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt.
Serafin Gubat.

According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were married in
April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot
several children who are now living with plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife
was betraying his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital
relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where she stayed for one
year. Again, plaintiff discovered that while in the said city defendant was going out with several other men, aside from
Jose Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left plaintiff and
since then they had lived separately.

"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by the name of Nelson
Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which defendant manifested her
conformity provided she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a
petition for legal separation."

The Court of Appeals held that the husband's right to legal separation on account of the defendant's adultery with Jose
Arcalas had prescribed, because his action was not filed within one year from March 1951 when plaintiff discovered her
infidelity. (Art. 102, New Civil Code) We must agree with the Court of Appeals on this point.1

As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the husband upon
discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed
to such filing. And when she was questioned by the Fiscal upon orders of the court, she reiterated her conformity to the
legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually
to mean a confession of judgment the Appellate Court declared that under Art. 101, legal separation could not be
decreed.

As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant
outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment
usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading
expressly agreeing to the plaintiff's demand.2 This is not occur.

Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch
as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it
would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a
judgment based exclusively or mainly on defendant's confession. If a confession defeats the action ipso facto, any
defendant who opposes the separation will immediately confess judgment, purposely to prevent it.

The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from her husband, is no
obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her
willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes
precautions against collusion, which implies more than consent or lack of opposition to the agreement.

Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission
of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals did not find collusion.)

Collusion in divorce or legal separation means the agreement.

. . . between husband and wife for one of them to commit, or to appear to commit, or to be represented in
court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose
of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the
parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs.
Sandoz, 107 Ore. 282, 214 Pas. 590.).

In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been
committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of
grounds therefor.

Here, the offense of adultery had really taking place, according to the evidence. The defendant could not havefalsely
told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the
Fiscal to prosecute. She could not have practiced deception at such a personal risk.

In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses
to the offense and thus enables the other party to procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.]
40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.).

And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs. Pohlman,
[N. J.] 46 Atl. Rep. 658.).

We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in
1952) constituted condonation or consent to her adulterous relations with Orzame. It will be remembered that she "left"
him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his
duty to search for her to bring her home. Hers was the obligation to return.

Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the husband's consent to or
condonation of his wife's misconduct. However, upon careful examination, a vital difference will be found: in both
instances, the husband had abandoned his wife; here it was the wife who "left" her husband.

Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed decision and
decree a legal separation between these spouse, all the consequent effects. Costs of all instances against Serafina
Florenciano. So ordered.
Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David,
JJ., concur.

Footnotes

1 Brown vs. Yambao, 102 Phil., 168.

2 Cf. Phil. National Bank vs. Ingersoll, 43 Phil., 444, See generally Corpus Juris Secundum "Judgments" sec. 134.

3 People vs. Sensano, 58 Phil., 73; People vs. Guinucud, 58 Phil., 621.

EN BANC
[G.R. No. L-9325. May 30, 1956.]
ROSARIO MATUTE, Petitioner, vs. HON. HIGINIO B. MACADAEG, as Judge of
the Court of First Instance of Manila, Branch X, and ARMANDO
MEDEL, Respondents.

DECISION

CONCEPCION, J.:

In an action for legal separation brought by Armando Medel against Rosario

Matute, upon the ground of adultery committed with his brother and her
brother-in-law, Ernesto Medel — which action was docketed as civil case
No. 14190 of the Court of First Instance of Manila — decision was, on
November 6, 1952, rendered by the latter, finding Rosario guilty of the
charge against her, decreeing said legal separation, and awarding to
Armando the custody of their four (4) minor children, Florencia, Manuel,
Carmelita and Benito, all surnamed Medel, then 12, 10, 8 and 4 years of age,
respectively. Thereafter, Armando went to the United States, leaving the
children in the City of Davao under the care of his sister Pilar Medel, in whose
house Rosario subsequently lived in order to be with her offspring. Armando
returned to the Philippines late in 1954. At the close of the then current
school year, during which the children were enrolled in a school in Davao,
or in March, 1955, they joined their father in Cebu. With his permission,
Rosario brought the children to Manila in April, 1955, to attend the funeral of
her father. Armando alleges that he consented thereto on condition that
she would return the children to him within two (2) weeks. However, Rosario
did not do so. Instead, on June 10, 1955, she filed, in said civil case No. 14190,
a motion the prayer of which is of the following
tenor:chanroblesvirtuallawlibrary

“WHEREFORE, movant respectfully prays this Honorable Court, after due

hearing:chanroblesvirtuallawlibrary

“(1) to issue an order awarding the custody of the above-named children

to the herein movant, their mother, in deference to the preference
expressed by the children (Sec. 6, Rule 100, Rules of Court); chan
roblesvirtualawlibraryand
“(2) to order Armando Medel, father of the said minor children, to support
said children by paying their school fees and giving them a reasonable
allowance both items in an amount not less than P200 a month.”
Said motion was based upon the ground that the children — three (3) of
whom, namely, Florencia, Manuel and Carmelita, were then 16, 14 and 12
years of age, respectively — do not want to go back to their father, because
he “is living with a woman other than” their mother. Armando opposed this
motion and countered with a petition to declare and punish Rosario for
contempt of court, in view of her failure and alleged refusal to restore the
custody of their children to him. After due hearing the Court of First Instance
of Manila, presided over by Hon. Higinio B. Macadaeg, Judge, issued an
order, dated June 29, 1955, absolving Rosario from the charge of contempt
of court, she having secured Armando’s consent before bringing the
children to Manila, but denying her motion for their custody and ordering
her to deliver them to Armando within twenty-four (24) hours from notice.
The dispositive part of said order reads:chanroblesvirtuallawlibrary

“IN VIEW OF THE FOREGOING, motion for the custody of the minor children,
Florencia, Manuel, Carmelita, and Benito, all surnamed Medel, is hereby
denied. Rosario Matute is hereby ordered to deliver to Armando Medel the
persons of the said minor children, within twenty-four (24) hours from receipt
of copy of this Order.

“Let copies of this Order be served immediately by the Sheriff of this Court,
not only on the lawyers appearing in this case, but also on the parties
themselves.”
Thereupon, Rosario instituted, against Armando and Judge Macadaeg, the
present action for certiorari and prohibition with preliminary injunction, upon
the ground that said order of June 29, 1955, had been issued with grave
abuse of discretion, and that there is no other plain, adequate and speedy
remedy in the ordinary course of law. The prayer in her petition, is as
follows:chanroblesvirtuallawlibrary
“WHEREFORE, Petitioner respectfully prays this Honorable Court to issue a writ
of preliminary injunction upon Petitioner’s filing a bond in such sum as this
Honorable Court may fix, ordering Respondents, their attorneys, agents and
other persons acting by and under their orders to cease and desist from
enforcing in any way the order of the Respondent Court dated June 19,
1965, and after hearing, to annul the said Order and to award the custody
of the children to your Petitioner.
“Petitioner likewise prays for such other or further relief as may be just and
equitable, without costs.”

Upon the filing of the petition, we issued the writ of preliminary injunction
therein prayed for, without bond.
Briefly stated, Petitioner herein maintains that the children should be under
her custody, because:chanroblesvirtuallawlibrary (1) she is their legitimate
mother and they wish to stay with her, not their father Armando Medel; chan
roblesvirtualawlibrary(2) three (3) of the children are over ten (10) years of
age, and, hence, their aforementioned wish must, pursuant to Rule 100,
section 6, of the Rules of Court, be heeded, unless “the parent so chosen be
unfit to take charge” of them “by reason of moral depravity, habitual
drunkenness, incapacity or poverty”; chan roblesvirtualawlibrary(3) the act
of infidelity of which she had been found guilty in the decision of November
6, 1952, does not involve “moral depravity”; chan roblesvirtualawlibrary(4) in
any event, it is a thing of the past, not a present reality; chan
roblesvirtualawlibrary(5) Respondent Armando Medel is now unfit to have
the children under his care, for he is living maritally with a woman by the
name of Paz Jesusa Concepcion; chan roblesvirtualawlibraryand (6)
although he had married the latter, after securing in the United States a
decree of divorce dissolving his marriage with Petitioner herein, said decree
is null and void and, accordingly, he is guilty of bigamy.

In the present action, we do not deem it necessary to pass upon the merits
of such pretense. The case before us is one of certiorari and prohibition,
governed by sections 1 and 2 of Rule 67 of the Rules of Court,
reading:chanroblesvirtuallawlibrary
“SECTION 1. Petition for certiorari. — When any tribunal, board, or officer
exercising judicial functions, has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion and there is no appeal, nor any
plain, speedy, end adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court alleging
the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board, or officer as the law
requires, with costs.
“SEC. 2. Petition for prohibition. — When the proceedings of any tribunal
corporation board, or person, whether exercising functions judicial or
ministerial, are without or in excess of its or his jurisdiction, or with grave abuse
of discretion, and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding
the Defendant to desist from further proceedings in the action or matter
specified therein, with costs.”
Pursuant to these provisions, neither the writ of certiorari nor that of
prohibition lies unless the act complained of has been performed “without
or in excess of” jurisdiction “or with grave abuse of discretion”. There is no
question but that Respondent Judge had jurisdiction to pass upon the issue
raised by Petitioner’s motion of June 10, 1955, for custody of the children,
and the petition of Respondent Medel, dated June 22, 1955, to
declare Petitioner guilty of contempt of court, to
wit:chanroblesvirtuallawlibrary whether said custody should be retained
by Respondent Medel, as adjudged in the decision of November 6, 1952, or
should be given to Petitioner herein. Which ever alternative taken
by Respondent Judge would not vitiate his choice as being “without or in
excess” of jurisdiction. Whatever mistakes, if any, he may have committed
in the appraisal of the situation — on which we do not express our view — in
determining the best solution to said issue or which one of the litigants is best
qualified or least disqualified to take charge of the children, would, at best,
constitute “merely errors of judgment.” They are not “errors of jurisdiction”,
but errors in the exercise of the jurisdiction which the lower court admittedly
had. Such errors do not affect the legality or validity of the order complained
of. They may be reviewed by appeal, not by writ of certiorari or prohibition.
(Comments on the Rules of Court, by Moran, Vol. II, pp. 167 and 168).

Neither does the aforementioned order of June 29, 1955, involve a grave
abuse of discretion for it merely enforces the award made in the decision of
November 6, 1952, which is admittedly final and executory. It is true that,
insofar as it refers to the custody of the minor children, said decision is never
final, in the sense that it is subject to review at any time that the Court may
deem it for the best interest of said minors. It is no less true, however, that,
unless and until reviewed and modified, said award must stand. No such
modification having been made, at yet, RespondentJudge had, not only
the authority; chan roblesvirtualawlibrarybut, also, the duty to execute and
implement said award.
Furthermore, by virtue of said decision of November 6,
1952, Respondent had, admittedly, the custody of said
minors. Petitioner merely obtained his permission to bring them to Manila, for
the purpose of attending the funeral of their maternal grandfather, which
took place in April, 1955. Thus, Petitioner obtained and has the physical
possession of the minors in a precarious manner. She holds it in the name, on
behalf and by authority of Respondent Medel, whose agent she, in effect,
is. He may, therefore, demand their return at any time, and she is bound to
comply immediately with such demand. She cannot even question his
authority to make it, although she is free to seek a review of the order or
decision awarding the custody of the minors to him, and to ask that they be
placed under her charge.
Again, it is conceded that children over ten (10) years of age, whose parents
are divorced or living separately, may choose which parent they prefer to
live with, unless the parent chosen is unfit to take charge of their care by
reason of “moral depravity, habitual drunkenness, incapacity or poverty”
(Rule 100, section 6, Rules of Court). Without deciding whether the adultery
committed by herein Petitioner with her own brother-in-law involves moral
depravity, it is clear to our mind that the affirmative assumption implicit in
 the order complained of cannot be characterized as an “abuse of
discretion”, much less a “grave” one.

Lastly, said order further declares:chanroblesvirtuallawlibrary

“ cralaw The facts remains that Defendant-movant is without means of
livelihood and, according to her own admission, she lives on the charity of
her brothers. She has no home of her own to offer to her children, but only
she would shelter them under the roof of her brothers.”

and the substantial accuracy of this statement is not contested. We are not
prepared to hold, that a grave abuse of discretion was committed when
the lower court impliedly deduced, from these circumstances, that
“poverty”, among other causes, rendered Petitioner unfit to take charge of
her children or made it unwise to place them under her care.
Wherefore, without prejudice to such appropriate action as Petitioner may
deem fit to take for the purpose of securing a review of the order
of Respondent Judge of June 29, 1955, or a modification of the award
made in the decision of November 6, 1952, relative to the custody of the
children, or both, the petition is denied and the case dismissed. The writ of
preliminary injunction heretofore issued is hereby dissolved, with costs
against the Petitioner. It is SO ORDERED.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo,
Labrador, Reyes, J.B.L., and Endencia, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18008 October 30, 1962

ELISEA LAPERAL, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, oppositor.

Martin B. Laurea and Associates for petitioner.

Office of the Solicitor General for oppositor.

BARRERA, J.:

On May 10, 1960, Elisea Laperal filed in the Court of First Instance of Baguio (Sp Proc. No. 433) a petition which reads:

1. That petitioner has been a bona fide resident of the City of Baguio for the last three years prior to the date of
the filing of this petition;

2. That petitioner's maiden name is ELISEA LAPERAL; that on March 24, 1939, she married Mr. Enrique R.
Santamaria; that in a partial decision entered on this Honorable Court on January 18, 1958, in Civil Case No. 356
of this Court, entitled 'Enrique R. Santamaria vs. Elisea L. Santamaria' Mr. Enrique Santamaria was given a
decree of legal separation from her; that the said partial decision is now final;

3. That during her marriage to Enrique R. Santamaria, she naturally used, instead of her maiden name, that of
Elisea L. Santamaria; that aside from her legal separation from Enrique R. Santamaria, she has also ceased to
live with him for many years now;

4. That in view of the fact that she has been legally separated from Mr. Enrique R. Santamaria and has likewise
ceased to live with him for many years, it is desirable that she be allowed to change her name and/or be
permitted to resume using her maiden name, to wit: ELISEA LAPERAL.
 WHEREFORE, petitioner respectfully prayed that after the necessary proceedings are had, she be allowed to
resume using her maiden name of Elisea Laperal.

The petition was opposed by the City Attorney of Baguio on the ground that the same violates the provisions of Article
370 (should be 372) of the Civil Code, and that it is not sanctioned by the Rules of Court.

In its decision of October 31, 1960, the court denied the petition for the reason that Article 372 of the Civil Code requires
the wife, even after she is decreed legally separated from her husband, to continue using the name and surname she
employed before the legal separation. Upon petitioner's motion, however, the court, treating the petition as one for
change of name, reconsidered its decision and granted the petition on the ground that to allow petitioner, who is a
businesswoman decreed legally separated from her husband, to continue using her married name would give rise to
confusion in her finances and the eventual liquidation of the conjugal assets. Hence, this appeal by the State.

The contention of the Republic finds support in the provisions of Article 372 of the New Civil Code which reads:

ART. 372. When legal separation has been granted, the wife shall continue using her name and surname
employed before the legal separation. (Emphasis supplied)

Note that the language of the statute is mandatory that the wife, even after the legal separation has been decreed,
shall continue using her name and surname employed before the legal separation. This is so because her married status
is unaffected by the separation, there being no severance of the vinculum. It seems to be the policy of the law that the
wife should continue to use the name indicative of her unchanged status for the benefit of all concerned.

The appellee contends, however, that the petition is substantially for change of her name from Elisea L. Santamaria, the
one she has been using, since her marriage, to Elisea Laperal, her maiden name, giving as reason or cause therefor her
being legally separated from the husband Enrique R. Santamaria, and the fact that they have ceased to live together
for many years.

There seems to be no dispute that in the institution of these proceedings, the procedure prescribed in Rule 103 of the
Rules of Court for change of name has been observed. But from the petition quoted in full at the beginning of these
opinion, the only reason relied upon for the change of name is the fact that petitioner is legally separated from her
husband and has, in fact, ceased to live with him for many years. It is doubtful, to say the least, whether Rule 103 which
refers to change of name in general, may prevail over the specific provisions of Article 372 of the New Civil Code with
regards to married women legally separated from their husbands. Even, however, applying Rule 103 to this case, the fact
of legal separation alone — which is the only basis for the petition at bar — is, in our opinion, not a sufficient ground to
justify a change of the name of herein petitioner, for to hold otherwise would be to provide an easy circumvention of the
mandatory provisions of Article 372.

It is true that in the second decision which reconsidered the first it is stated that as the petitioner owns extensive business
interests, the continued used of her husband surname may cause undue confusion in her finances and the eventual
liquidation of the conjugal assets. This finding is however without basis. In the first place, these were not the causes upon
which the petition was based; hence, obviously no evidence to this effect had been adduced. Secondly, with the
issuance of the decree of legal separation in 1958, the conjugal partnership between petitioner and her husband had
automatically been dissolved and liquidated. (Art. 106[2], Civil Cod). Consequently, there could be no more occasion
for an eventual liquidation of the conjugal assets.

WHEREFORE, the order of the lower court of December 1, 1960, granting the petition, is hereby set aside and the petition
dismissed. Without costs. So ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala and Makalintal,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-11086 March 29, 1958

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 set-up, 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 defendant-appellant 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.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 11263 November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,

vs.
JOSE CAMPOS RUEDA, defendant-appellee.

Eduardo Gutierrez Repide and Felix Socias for appellant.

Sanz, Opisso and Luzuriaga for appellee.
TRENT, J.:

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 property.)

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 described.lawphil.net

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 enforcement 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.

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; Boyd vs.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 cross-complaint, without special
pronouncement as to costs of either instance. So ordered.

Mapa, C.J., Johnson, Araullo, Avanceña and Villamor, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-20043 November 28, 1964

LOURDES RAMIREZ-CUADERNO, petitioner,

vs.
ANGEL CUADERNO, respondent.

R. L. Ramos and O. F. Disini for petitioner.

Severino C. Dominguez for respondent.
BARRERA, J.:

As a consequence of a complaint for support filed by Lourdes Ramirez-Cuaderno on August 14, 1957, against her
husband Angel Cuaderno, the Juvenile and Domestic Relations Court, after due hearing, rendered judgment ordering
the latter to give the plaintiff-wife a monthly support of P150.00, from the date of the filing of the complaint, plus
attorney's fees, and to pay, the costs. On appeal by the husband to the Court of Appeals, said decision was reversed
and set aside "so that (in the language of the court) appellant and appellee may again resume cohabitation which
they are hereby admonished to do as their duty as husband and wife." The wife filed the instant petition for review of the
aforesaid ruling of the Court of Appeals.

It has been established that the couple were living separately since November 17, 1956 when the husband, after having
inflicted bodily injuries on the wife in the course of a quarrel between them, took her to her mother's house where the
latter stayed until the institution of the claim for support. The wife claimed maltreatment and abandonment by the
husband as basis therefor, whereas the husband, in resisting her demand for maintenance, contended that it was she
who left the conjugal dwelling and, consequently, is not entitled thereto.

The trial court, in granting the wife's demand, sustained the theory that she was driven out of the dwelling or, at least
prevented from returning thereto by reason of defendant's maltreatment. The Court of Appeals, on the other hand,
while adopting the findings of the Juvenile and Domestic Relations Court as to the husband's role in the incident that led
to the separation, and notwithstanding the declaration by the husband during the hearing that "all the trouble she (the
wife) has given me is enough for me to turn my back to her," set aside the decision of the lower court, on the ground that
it believes that the conditions were such that cohabitation between the spouses is not yet impossible. Thus, they were
admonished to live together as husband and wife.

We recognize the wisdom of the exhortation1 that in the interest of society, and perhaps of the parties, courts should
move, with caution in providing separate maintenance for the wife, a situation which would be an acknowledgement
of the de facto separation of the spouses. However, it would be taking an unrealistic view for us to compel or urge them
to live together when, at least for the present, they specially the husband are speaking of impossibility of cohabitation.
For while marriage entitles both parties to cohabitation or consortium, the sanction therefor is the spontaneous, mutual
affection between husband and wife2 and not any legal mandate or court order. This is due to the inherent
characteristic and nature of marriage in this jurisdiction.

In the instant case, it is not disputed that the infliction of physical injuries on the wife, by the husband gave rise to their
separation. It is likewise shown it was the husband who took his wife to her parents' home where he left her. The fact that
the wife allegedly accepted money from her husband and desisted from accepting any later, because according to
the latter, she was demanding for more, only indicates that even before the filing of the present case, the defendant-
husband was already providing something for the separate maintenance. Considering that the wife has no income of
her own, while the husband has an employment, the sum of P150.00 fixed by the trial court for the wife's monthly support
does not seem to be unreasonable. Needless to state that, as the separation has been brought about by the husband
and under the circumstances established during the trial, the same shall subsist until a different situation between the
parties shall take place.

WHEREFORE, the decision of the Court of Appeals is set aside and that of the Juvenile and Domestic Relations Court is
hereby revived, without costs. So ordered.

Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Bengzon, J.P., and Zaldivar, JJ., concur.

Footnotes

1 See Arroyo v. Velasquez de Arroyo, 42 Phil. 54.

2 Vol. I, Tolentino's Civil Code of the Phil., p. 296, 299.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 100710 September 3, 1991

BENJAMIN P. ABELLA, petitioner,

vs.
COMMISSION ON ELECTIONS and ADELINA Y. LARRAZABAL, respondents.

G.R. No. 100739 September 3, 1991

ADELINA Y. LARRAZABAL, petitioner,

vs.
COMMSSION ON ELECTIONS and SILVESTRE DE LA CRUZ, respondents.

Sixto S. Brillantes, Jr. for petitioner in 100739.

Cesar A. Sevilla for petitioner in 100710.

Panganiban, Benitez, Baninaga & Bautista for private respondent S. de la Cruz.

GUTIERREZ, JR., J.:p

The main issue in these consolidated petitions centers on who is the rightful governor of the province of Leyte 1)
petitioner Adelina Larrazabal (G.R. No. 100739) who obtained the highest number of votes in the local elections of
February 1, 1988 and was proclaimed as the duly elected governor but who was later declared by the Commission on
Elections (COMELEC) "... to lack both residence and registration qualifications for the position of Governor of Leyte as
provided by Art. X, Section 12, Philippine Constitution in relation to Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A.
No. 179 and is hereby disqualified as such Governor"; 2) petitioner Benjamin Abella (G.R. No. 100710), who obtained the
second highest number of votes for the position of governor but was not allowed by the COMELEC to be proclaimed as
governor after the disqualification of Larrazabal; or 3) Leopoldo E. Petilla, the vice-governor of the province of. Leyte.

This is the fourth time that the controversy relating to the local elections in February 1, 1988 for governor of the province
of Leyte is elevated to this Court. The antecedent facts of these cases are stated in the earlier consolidated cases of
BENJAMIN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners, v. ADELINA INDAY LARRAZABAL, PROVINCIAL BOARD OF
CANVASSERS OF LEYTE and COMMISSION ON ELECTIONS, respondents (G.R. Nos. 87721-30) and BENJAMN P. ABELLA and
SILVESTRE T. DE LA CRUZ, petitioners v. ADELINA LARRAZABAL and COMMISSION ON ELECTIONS, respondents (G. R. No.
88004) 180 SCRA 509 [1989]), to wit:

The Court has ordered the consolidation of G.R. Nos 87721-30 and G.R. No. 88004 involving the same parties
and the same election in 1988 for the office of provincial governor of Leyte. Challenged in the petitions for
certiorari are the resolutions of the respondent Commission on Elections dismissing the pre-proclamation and
disqualification cases filed by the herein petitioners against private respondent Adelina Larrazabal.

Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for provincial governor of Leyte in
the local election held on February 1, 1988. The private respondent is the wife of Emeterio V. Larrazabal, the
original candidate of the Lakas ng Bansa-PDP-Laban who was disqualified by the Commission on Elections on
January 18, 1988, for lack of residence. (G.R. No. 88004, Rollo, pp. 102-104) (He filed a petition for certiorari to
challenge this resolution. He, however, filed an urgent ex-parte motion to withdraw petition which was granted
in a resolution dated January 21, 1988 and the case was dismissed. [G.R. No. 81313]) On January 31, 1988, the
day before the election, she filed her own certificate of candidacy in substitution of her husband. (Ibid., p. 48)
The following day, at about 9:30 o'clock in the morning, Silvestre de la Cruz, a registered voter of Tacloban City,
filed a petition with the provincial election supervisor of Leyte to disqualify her for alleged false statements in her
certificate of candidacy regarding her residence. (Id., pp. 113-118) This was immediately transmitted to the
 main office of the Commission on Elections, which could not function, however, because all but one of its
members had not yet been confirmed by the Commission on Appointments. De la Cruz then came to this
Court, which issued a temporary restraining order on February 4, 1988, enjoining the provincial board of
canvassers of Leyte 'from proclaiming Adelina Larrazabal as the winning candidate for the Office of the
Governor in the province of Leyte, in the event that she obtains the winning margin of votes in the canvass of
election returns of said province.' (Id., p. 179) On March 1, 1988, the Commission on Elections having been fully
constituted, we remanded the petition thereto for appropriate action, including maintenance or lifting of the
Court's temporary restraining order of February 4, 1988. (Id. pp. 182-184)

In the meantime, petitioner Abella, after raising various verbal objections (later duly reduced to writing) during
the canvass of the election returns, seasonably elevated them to the Commission on Elections in ten separate
appeals docketed as SPC Nos. 88-627 to 88627-I. Pending resolution of these cases, Abella intervened on
March 7, 1988 in the disqualification case, docketed as SPC No. 88-546, and the following day filed a
complaint, with the Law Department of the COMELEC charging the private respondent with falsification and
misrepresentation of her residence in her certificate of candidacy. On March 22, 1988, the public respondent
consolidated the pre-proclamation and disqualification cases with the Second Division.

On February 3, 1989, this Division unanimously upheld virtually all the challenged rulings of the provincial board
of canvassers, mostly on the ground that the objection raised were merely formal and did not affect the validity
of the returns or the ballots, and ordered the proclamation of the winner after completion of the canvass. (G.R.
Nos. 87721-30, Rollo, pp. 18-50) On that same date, the disqualification case was also dismissed by a 2-1
decision, and the matter was referred to the Law Department for 'preliminary investigation for possible violation
of Section 74 of the Omnibus Election Code. ' (G.R. Nos. 88004, Rollo, pp. 26-40)

The motion for reconsideration of the resolution on the pre-proclamation cases was denied by the
COMELEC en banc on April 13, 1989, with no dissenting vote. (G.R. Nos. 87721-30, Rollo, pp. 51-56) These cases
are the subject of G.R. Nos. 87721-30, where we issued on April 18, 1989, another temporary restraining order to
the provincial board of canvassers of Leyte to CEASE and DESIST from resuming the canvass of the contested
returns and/or from proclaiming private respondent Adelina Larrazabal Governor of Leyte.

The motion for reconsideration of the resolution on the qualification case was also denied by the COMELEC en
banc on May 4, 1989, but with three commissioners dissenting. (G.R. No. 88004, Rollo, pp 47-61; penned by
Commissioner Abueg, Jr., with Commissioners Africa Rama, and Yorac, dissenting) The dismissal of this case is
the subject of G.R. No. 88004. (at pp. 511-513)

Disposing of the consolidated petitions, this Court rendered judgment as follows:

1. In G.R.Nos. 87721-30, the decision dated February 3, 1989, the resolution dated April 13, 1989, are affirmed
and the petition is DISMISSED.

2. In G.R. No. 88004, the decision dated February 3,1989, and the resolution dated May 4, 1989, are REVERSED
and SET ASIDE. Respondent Commission on Elections is ORDERED to directly hear and decide SPC Case No. 88-
546 under Section 78 of the Omnibus Election Code, with authority to maintain or lift our temporary restraining
order of April 18, 1989, according to its own assessment of the evidence against the private respondent.

The parties are enjoined to resolve this case with all possible speed, to the end that the Governor of Leyte may
be ascertained and installed without further delay. (p. 520)

In view of these rulings, the COMELEC, upon motion of Larrazabal, lifted its temporary restraining order against her
proclamation paving Larrazabal's proclamation and her assumption to the Office of Governor of Leyte while the
hearings in the disqualification case (SPC No. 88-546) continued.

On February 14, 1991, the second division in a 2-1 vote rendered a decision disqualifying Larrazabal as governor.

On July 18, 1991, the Commission en banc issued a resolution which denied Larrazabal's motion to declare decision void
and/or motion for reconsideration and affirmed the second division's decision. In the same resolution, the Commission
disallowed Abella's proclamation as governor of Leyte.

Hence, these petitions.

We treat the various Comments as Answers and decide the petitions on their merits.

Acting on a most urgent petition (motion) for the issuance of a restraining order filed by petitioner Larrazabal, this Court
issued a temporary restraining order on August 1, 1991.

xxx xxx xxx

... [E]ffective immediately and continuing until further orders from this Court, ordering the respondent on on
Elections to CEASE and DESIST from enforcing, implementing and executing the decision and resolution,
respectively dated February 14, 1991 and July 18, 1991.

It appearing that despite the filing of this petition before this Court and during its pendency, the incumbent
Vice-Governor of Leyte Hon. Leopoldo E. Petilla, took his oath as Provincial Governor of Leyte and assumed the
governorship as contained in his telegraphic message, pursuant to COMELEC resolution SPC No. 88-546,
promulgated on July 18, 1991, the Court further Resolved to ORDER Hon. Leopoldo E. Petilla to MAINTAIN the
status quo ante then prevailing and/or existing before the filing of this petition and to DESIST from assuming the
office of the Governor and from discharging the duties and functions thereof. (Rollo-100739, p. 204)

In G.R. No. 100739, petitioner Larrazabal professes that the COMELEC completely disregarded our pronouncement in
G.R. No. 88004 in that instead of acting on SPC Case No. 88-546 under section 78 of the Election Code, the COMELEC
proceeded with a disqualification case not contemplated in G.R. No. 88004.

The argument is not meritorious.

The questioned decision and resolution of the COMELEC conform with this Court's decision in G.R. No. 88004.

Initially, herein respondent Silvestre T. de la Cruz (Benjamin P. Abella, petitioner in G.R. No. 100710 was allowed to
intervene in the case) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of
Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. It was
alleged that she was in fact a resident of Ormoc City like her husband who was earlier disqualified from running for the
same office. The COMELEC dismissed the petition and referred the case to its Law Department for proper action on the
ground that the petition was a violation of Section 74 of the Election Code and, pursuant to it rules, should be
prosecuted as an election offense under Section 262 of the Code.

This Court reversed and set aside the COMELEC's ruling, to wit:

The Court holds that the dismissal was improper. The issue of residence having been squarely raised before it, it
should not have been shunted aside to the Law Department for a roundabout investigation of the private
respondent's qualification through the filing of a criminal prosecution, if found to be warranted, with resultant
disqualification of the accused in case of conviction. The COMELEC should have opted for a more direct and
speedy process available under the law, considering the vital public interest involved and the necessity of
resolving the question of the earliest possible time for the benefit of the inhabitants of Leyte.

In the view of the Court, the pertinent provision is Section 78 in relation to Section 6 of R.A. No. 6646.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified petition seeking to
deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground
that any material representation contained therein as required under Section 74 hereof is false. The petition
may be filed at any time not later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election.

Section 6 of R.A. 6646 states as follows:

Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is voted in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong. ...
 xxx xxx xxx

The above-stressed circumstances should explain the necessity for continuing the investigation of the private
respondent's challenged disqualification even after the election notwithstanding that such matter is usually
resolved before the election. Independently of these circumstances, such proceedings are allowed by Section
6 of RA. 6646 if for any reason a candidate is not declared by final judgment before an election to be
disqualified ...

In fine, the Court directed the COMELEC to determine the residence qualification of petitioner Larrazabal in SPC Case
No. 88-546. Concomitant with this directive would be the disqualification of petitioner Larrazabal in the event that
substantial evidence is adduced that she really lacks the residence provided by law to qualify her to run for the position
of governor in Leyte.

In line with the Court's directive, the COMELEC conducted hearings in SPC Case No. 88-546 to resolve the qualification of
Larrazabal on the basis of two (2) legal issues raised by Silvestre T. de la Cruz namely, Larrazabal's lack of legal residence
in the province of Leyte and her not being a registered voter in the province, as required by Title II, Chapter I, Section 42,
B.P. Blg. 337, in relation to Article X, Section 12 of the Constitution, to wit:

Sec. 42. Qualification. — (1) An elective local official must be a citizen of the Philippines, at least twenty-three
years of age on election day, a qualified voter registered as such in the barangay, municipality, city or
province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his
certificate of candidacy, and able to read and write English, Pilipino, or any other local language or dialect.

xxx xxx xxx

Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit
their voters from voting for provincial elective officials, shall be independent of the province. The voters of
component cities within a province, whose charters contain no such prohibition, shall not be deprived of their
right to vote for elective provincial officials.

The position of petitioners De la Cruz and Abena was that respondent Larrazabal is neither a resident nor a registered
voter of Kananga, Leyte as she claimed but a resident and registered voter of Ormoc City, a component city of the
province of Leyte but independent of the province pursuant to Section 12, Article X of the Constitution thereby
disqualifying her for the position of governor of Leyte. They presented testimonial as well as documentary evidence to
prove their stance.

On the other hand, respondent Larrazabal maintained that she was a resident and a registered voter of Kananga, Leyte.
She, too presented testimonial as well as documentary evidence to prove her stand.

The COMELEC ruled against the respondent, now petitioner Larrazabal.

In its questioned decision and resolution, the COMELEC found that petitioner Larrazabal was neither a resident of
Kananga, Leyte nor a registered voter thereat. With these findings, the COMELEC disqualified the petitioner as governor
of the province of Leyte.

The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family
Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte.
She opines that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle
of INTENTION, the animus revertendi rather than anything else."

In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City thereafter, did not
necessarily erased (sic) or removed her Kananga residence, for as long as she had the ANIMUS REVERTENDIevidenced
by her continuous and regular acts of returning there in the course of the years, although she had physically resided at
Ormoc City." (Petition, Rollo, p. 40)

As can be gleaned from the questioned decision, the COMELEC based its finding that the petitioner lacks the required
residence on the evidence of record to the effect that despite protestations to the contrary made by the petitioner, she
has established her residence at Ormoc City from 1975 to the present and not at Kananga, Leyte. Her attempt to
purportedly change her residence one year before the election by registering at Kananga, Leyte to qualify her to ran for
the position of governor of the province of Leyte clearly shows that she considers herself already a resident of Ormoc
City. In the absence of any evidence to prove otherwise, the reliance on the provisions of the Family Code was proper
and in consonance with human experience. The petitioner did not present evidence to show that she and her husband
maintain separate residences, she at Kananga, Leyte and her husband at Ormoc City. The second division of the
COMELEC in its decision dated February 14, 1991 states:

xxx xxx xxx

But there is the more fundamental issue of residence. The only indications of a change of residence so far as
respondent is concerned are: the address indicated in the application for cancellation filed by respondent
indicating her postal address as Kananga, Leyte, the annotation in her Voter's affidavit for Precinct No. 15 that
her registration was cancelled due to lack of residence; the testimony of Anastacia Dasigan Mangbanag that
she entered into a contract of lease with option to buy with the spouses Emeterio and Inday Larrazabal over
two parcels of land the witness owned in Mahawan, Kananga, Leyte; that she sees the spouses in the leased
house in Kananga, that she was informed by Inday Larrazabal that the spouses had decided to buy their
property because she wanted to beautify the house for their residence. She attached as annex the written
contract signed by her and the spouses; and the testimony of Adolfo Larrazabal Exh. "10" cousin of the spouses
that 'at a family meeting ... the political plan of the Larrazabal clan was discussed, among which were (sic) the
problem of Terry's residence in Ormoc City' and that it was decided in said meeting ... that Inday Larrazabal,
wife of Terry, will transfer her Ormoc Registration as a voter to Kananga, Leyte (so) she will be able to vote for
Terry and also help me in my candidacy; that they have been staying in Kananga, very often as they have
properties in Lonoy and a house in Mahawan.

The references to residence in the documents of cancellation and registration are already assessed for their
evidentiary value in relation to the documents themselves above. The question must therefore be addressed in
relation to the testimony of Anastacia Dasigan Mangbanag and Adolfo V. Larrazabal. The gist of the
testimonies is that they leased properties in Mahawan, Leyte and that they are seen in the house on the land
leased. But the contract of lease with option to purchase itself indicates as to where the legal residence of the
Jarrazabal is. The pertinent portion states:

SPS EMETERIO V. LARRAZABAL AND ADELINA Y. LARRAZABAL, both of legal age, Filipino, and residents of Ormoc
City, Philippines, hereinafter referred to as the LESSEES.

The acknowledgment also indicates that Emeterio V. Larrazabal presented his Residence Certificate No.
155774914 issued in Ormoc City.

The testimony of Adolfo Larrazabal reenforces this conclusion. It admits, as of the second or third week of
November, that the residence of Emeterio Larrazabal was Ormoc City and that Inday Larrazabal was going to
transfer her registration so she may be able to vote for him.

For the purpose of running for public office, the residence requirement should be read as legal residence or
domicile, not any place where a party may have properties and may visit from time to time.

The Civil Code is clear that '[F]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of
natural persons is the place of their habitual residence.

Arts. 68 and 69 of the Family Code, E.O. No. 209 also provide as follows:

Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity,
and render mutual help and support.

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall
decide. The court may exempt one spouse from living with the other if the latter should live abroad or
there are other valid and compelling reasons for the exemption. However, such exemption shall not
apply if the same is not compatible with the solidarity of the family.

Husband and wife as a matter of principle live together in one legal residence which is their usual place of
abode. (COMELEC decision, pp. 21-23; Rollo – 100710, pp. 67-69; Emphsis supplied)

As regards the principle of ANIMUS REVERTENDI we ruled in the case of Faypon v. Quirino, 96 Phil. 294 [1954]):
 xxx xxx xxx

... [M]ere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his
avocation, is not sufficient to constitute abandonment or loss of such residence.' ... The determination of a
persons legal residence or domicile largely depends upon intention which may be inferred from his acts,
activities and utterances. The party who claims that a person has abandoned or left his residence or origin must
show and prove pre-ponderantly such abandonment or loss.

xxx xxx xxx

... A citizen may leave the place of his birth to look for 'greener pastures' as the saying goes, to improve his life,
and that, of course, includes study in other places, practice of his avocation, or engaging in business. When an
election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town
to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself
from the place of his professional or business activities; so there he registers as voter as he has the qualifications
to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the
government especially in national elections. Despite such registration, the animus revertendi to his home, to his
domicile or residence of origin, has not forsaken him. ... (at pp. 297-300)

In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in
1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with
her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in
Kananga, Leyte therefor, is nor present. The fact that she occasionally visits Kananga, Leyte through the years does not
signify an intention to continue her residence therein. It is common among us Filipinos to often visit places where we
formerly resided specially so when we have left friends and relatives therein although for intents and purposes we have
already transferred our residence to other places.

Anent the issue of whether or not the petitioner is a registered voter of Kananga, Leyte, the petitioner insists that she is
such a registered voter based on the following antecedents: 1) She cancelled her registration in Ormoc City on
November 25, 1987, and 2) she then transferred her registration to Kananga, Leyte on November 25, 1987 by registering
thereat and 3) she later voted on election day (February 1, 1988) in Kananga, Leyte.

Despite the insistence of the petitioner, the evidence shows that her supposed cancellation of registration in Ormoc City
and transfer of registration in Kananga, Leyte, is not supported by the records. As the COMELEC stated:

The train of events, which led to respondent's g of her certificate of candidacy on the basis of her registration
started on November 25, 1987, when she allegedly filed all application for cancellation of registration Exh. "2-B".
Subsequent to this request, her voter's affidavit in Precinct 15, Ormoc City with Serial No. 0918394 J was
annotated with the words 'cancelled upon application of the voter due to transfer of residence.' Thereafter,
she registered in Precinct No. 17, Mahawan, Kananga, Leyte on November 28,1987 which registration was
contained in Voter's Affidavit with Serial No. 0190840-J The cancellation of registration was submitted to the
Board of Election Inspectors on January 9, 1988 (Revision Day) on the submission of the sworn application at
4:30 p.m. allegedly by a clerk from the Election Registrar's Office with only the poll clerk and the third member
because the Chairman of the Board of Election Inspectors allegedly left earlier and did not come back. Exh. "3-
B".

We find the version pressed by respondent unworthy of belief. The story is marked by so many bizarre
cirumtances not consistent with the ordinary course of events or the natural behavior of persons. Among these
are:

(1) The application for cancellation of registration by respondent Adelina Y. Larrazabal happened to be
misplaced by a clerk in the Election Registrar's Office for Ormoc City so it was not sent to the Board of Election
Inspectors in a sealed envelope;

(2) The 'inadverterment' (sic) misplacement was discovered only on January 9,1988;

(3) The voter's affidavit was delivered by itself without any endorsement or covering letter from the Election
Registrar or anybody else;
(4) The election clerk delivered the application for cancellation only towards the last hour of the revision day,
allegedly at 4:30 P.M., January 9, 1988;

(5) All the members of the Board of Election Inspectors had already signed the Minutes indicating that no
revision of the voter's list was made as of 5:00 PM

(6) The poll clerk and the third member prepared another minutes stating that the election clerk had delivered
the application for cancellation at 4:30 P.M. without any reference to the minutes they had previously signed;

(7) Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan, Kananga, was
supposed to have filled up an application for cancellation of his registration in Precinct No. 15, Ormoc City at
Precinct 17 concurrent with his registration. His application for cancellation was never submitted in evidence.

(8) The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17 are far removed from
the serial numbers of the other new registrants in November 28, 1987 in the same precinct.

The most telling evidence is the list of voters (Form 2-A), Exh. "G", that the Chairman and the poll clerk had
written in Part II of the same, closed by the signatures of both officials showing that there were only nine (9)
additional registered voters in Precinct 17, Mahawan, Kananga, Leyte, namely, Bantasan, Merly; Conie;
Limosnero Anita; Limosnero W; Pame Virginia; Savenario, Analiza; Verallo, Ofelia; Basan, Juanita; and Acgang
Bonifacio. This is consistent with the list of new voters after the November 28, 1987 for Precinct No. 17,
Mahawan, Kananga, Leyte submitted by the Election of Kananga to the National Central File of the
Commission per certification of the Chief, National Central File Division on January 25, 1988 dated January 25,
1988, Exh. 'C'. The affidavits submitted by the Election Registrar to the Commission could only have come from
the Board of Election Inspectors of Precinct No. 17, after the November 28, 1987 registration, for the Election
Registrar could not have had the affidavits of these new registrants apart from those supplied by the Precinct
itself. Why were not the affidavits of the Larrazabals included? Was this part of the incredibly bizarre series of
inadvertence and neglect that spanned Ormoc City and Kananga? This also explains the certification dated
January 29, 1988, of the Election Registrar of Kananga that as of that date Mrs. Adelina Larrazabal was not a
registered voter in any of the' precincts in Kananga. Exh. "L". It was only on February 15, 1988, or two weeks after
the election day that the same Registrar certified for the first time that there were two voters lists, the first
without the names of the Larrazabals and the second, which appeared only after February 1, submitted by the
Chairman of the Board for Precinct 17 which contained the spouses Larrazabals' names.

It might also be stressed that one set of voter's list Exh. "G" had the signature of both the Chairman, poll clerk
and third member of the board, while the one which appeared later which included the names of the
Larrazabal had the signature only of the Chairman. Exh. "I".

From the certification of the National Central Files, it appears that the Serial Nos. of the newly registered voters
were as follows: 0189821-J 018922-J 0189823-J 0189824-J 0189825-J 0189826-J 0189827-J 0189828-J 0189839-J The
alleged registration of Emeterio V. Larrazabal and Adelina Y. Larrazabal are inexplicably effected through
voter's affidavits with Serial Nos. 0190893J and 01 90840-J. These serial numbers are traced per record of the
Commission to Precinct No. 6, municipality of Kananga, Leyte. Per official Project of precincts on file with the
Commission, Precinct No. 6 is a poblacion precinct located in Kananga, Municipal High School Building. How
these documents came to be used in Precinct No. 17 in Barangay Mahawan and only by the Larrazabals has
never been explained.

It also takes a lot of straining to believe the story about the effort to cancel registration on November 25, 1987,
which application surfaced before the Board of Election inspectors for Precinct No. 15, Ormoc City only on
January 9, 1988, Revision Day. As pointed out by Petitioner, it is absurd that it would only be on Revision Day,
normally set aside for the purpose of receiving inclusion and exclusion orders from the courts, that the
application for cancellation would be coincidentally found and delivered to the Board of Election Inspectors
for Precinct 15. Furthermore, the entire membership of the Board of Inspectors for said precinct, signed a
Minutes, Exh. "3-A" which indicates that no order of inclusion or exclusion was received from any court and that
the board proceeded with the numbering of a total 229 voters for the precinct. The Minutes also indicates that
the Board adjourned at 5:00 p.m. Exh. "3-B" which was supposedly prepared after Exh. "3-A" signed only by the
poll clerk and third member indicates that at 4:30 P.M. an unidentified clerk from the Election Registrar's Office
arrived with the application for cancellation of Vilma Manzano and Adelina Larrazabal.

It also appears that on November 28, 1987, the Board of Election Inspectors for Precinct 15, Ormoc City
prepared the list of voters for said precinct, Exh. 'N' where the name of Adelina Y. Larrazabal appears as voter
No. 96 and Emeterio V. Larrazabal is listed as Voter No. 98. At the back of the list there is a certification that
 there was no voter which was included by court order and that to voters, one Montero and one Salvame were
excluded by virtue of such order. As of January 29, 1988, when the certified true copy of the Voter's List for
Precinct 15 was furnished the petitioner, no additional entry was reflected on the list which would show what
transpired on January 9, 1988, as alleged by the Election Registrar for Ormoc City and the poll clerk and third
member of the board of inspectors that a cancellation was effected. It taxes credulity therefore, to lend belief
to Exh. "2-C", when was issued by the City Registrar for Ormoc only on February 1, 1990, which for the first time
showed handwritten annotations of cancellation of the registration of Adelina Larrazabal and Vilma Manzano
by witnesses Gratol and Patonog. If this evidence did not exist at the time of the entry which purports to have
been on January 9, 1988, this evidence could have been used to confront within Carolina Quezon when she
testified and identified Exh. "N" on April 14, 1988. In fact if these entries indicating (sic) were made, they would
have been evident in Exh. 'W. The failure to confront Quezon with the entries and the late submission of Exh. "2-
C" can only lead to two conclusions: these entries did not exist as of January 29, 1988 when the certification of
the list of voters was made and that they were annotated in the voter's list after that date. This is consistent with
Exh. "P" which was issued on February 11, 1988.

The relative weight of the parties' evidence supports petitioner's thesis that respondent was not a registered
voter in Precinct No. 17, Brgy. Mahawan, Kananga, Leyte, and, that she and her husband Emeterio Larrazabal
continued to be registered voters in Precinct No. 15, Ormoc City. (Rollo, pp. 62-67; COMELEC decision, pp. 22-
27)

The Court is bound by these factual findings as they are supported by substantial evidence:

In Aratuc v. Commission on Elections (88 SCRA 251), speaking of the need to preserve the 'independence and
all the needed concomitant powers' of the Commission on Elections, Justice Antonio P. Barredo declared that
it is but proper that the Court should accord the greatest measures of presumption of regularity to its course of
action ... to the end it may achieve its designed place in the democratic fabric of our government ... (Abella v.
Larrazabal, supra)

Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative
position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of
governor of the province of Leyte.

Section 12, Article X of the Constitution provides:

Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their
voters from voting for provincial elective officials, shall be independent of the province. The voters of
component cities within a province, whose charters contain no such prohibition, shall not be deprived of their
right to vote for elective provincial officials.

Section 89 of Republic Act No. 179 creating the City of Ormoc provides:

Election of provincial governor and members of the Provincial Board of the members of the Provincial Board of
the Province of Leyte — The qualified voters of Ormoc City shall not be qualified and entitled to vote in the
election of the provincial governor and the members of the provincial board of the Province of Leyte.

Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following
conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered
independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from
voting for the provincial elective officials. The question now is whether or not the prohibition against the 'city's registered
voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial
officials.

The petitioner citing section 4, Article X of the Constitution, to wit:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with
respect to component cities and municipalities and cities and municipalities with respect to component
barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers
and functions.
submits that "while a Component City whose charter prohibits its voters from participating in the elections for provincial
office, is indeed independent of the province, such independence cannot be equated with a highly urbanized city;
rather it is limited to the administrative supervision aspect, and nowhere should it lead to the conclusion that said voters
are likewise prohibited from running for the provincial offices." (Petition, p. 29)

The argument is untenable.

Section 12, Article X of the Constitution is explicit in that aside from highly-urbanized cities, component cities whose
charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same
provision, it provides for other component cities within a province whose charters do not provide a similar prohibition.
Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective
officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are
geographically attached. This independence from the province carries with it the prohibition or mandate directed to
their registered voters not to vote and be voted for the provincial elective offices. The resolution in G.R. No. 80716
entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited
case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable.

Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of
Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en
banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the
members of the provincial board of the Province of Leyte' connotes two prohibitions — one, from running for and the
second, from voting for any provincial elective official." (Resolution En Banc, p. 6)

The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong English" since nowhere
in the provision is there any reference to a prohibition against running for provincial elective office. She states that if the
prohibition to run was indeed intended, the provision should have been phrased "Shall not be qualified TO RUN in the
election FOR provincial governor." A comma should have been used after the word qualified and after the word "vote"
to clearly indicate that the phrase "in the election of the provincial governor" is modified separately and distinctly by the
words "not qualified" and the words "not entitled to vote." (Petition, p. 19)

The Court finds the petitioner's interpretation fallacious.

In the case of Mapa v. Arroyo (175 SCRA 76 [1989]) this Court interpreted Section 20 of Presidential Decree No. 957 in
relation to the conjunction and, to wit:

Time of Completion. — Every owner or developer shall construct and provide the facilities, improvements,
infrastructures and other forms of development, including water supply and lighting facilities, which are offered
and indicated in the approved subdivision or condominium plans. ...

The Court ruled:

We further reject petitioner's strained and tenuous application of the called doctrine of last antecedent in the
interpretation of Section 20 and, correlatively, of Section 21. He would thereby have the enumeration of
'facilities, improvements, infrastructures and other forms of development' interpreted to mean that the
demonstrative Phrase 'which are offered and indicated in the approved subdivision plans, etc,' refer only to
'other forms of development' and not to 'facilities, improvements and infrastructures.' While this subserves his
purpose, such bifurcation whereby the supposed adjectives phrase is set apart from the antecedent words, is
illogical and erroneous. The complete and applicable rule is ad proximum antedecens flat relationisi
impediatursentencia (See Black's Law Dictionary, 4th Ed., 57 citing Brown v. Brown, Delta 3 Terry 157, 29 A. 2d
149, 153) Relative words refer to the nearest antecedent, unless it be prevented by the context. In the present
case, the employment of the word 'and' between 'facilities, improvements, infrastructures' and 'other forms of
development,' far from supporting petitioner's theory, enervates it instead since it is basic in legal hermeneutics
that and is not meant to separate words but is a conjunction used to denote a joinder or union. (at pp. 81-83)

Applying these principles to the instant case, the conjunction and between the phrase shall not be
qualified and entitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the demonstrative phrase
"in the election of the provincial governor and the members of the provincial board of the Province of Leyte."

Finally, the petitioner contends that the February 14, 1991 decision of the COMELEC's second division is null and void on
the ground that on that date, the term of Commissioner Andres Flores, one of the signatories of the majority opinion
(vote was 2-1) had already expired on February 2, 1991. (Commissioner Flores was nominated by the President on
January 30, 1988 and was confirmed by the Commission on Appointments on February 15, 1988. His term of office was
fixed by the President for three years from February 15, 1988 to February 15, 1991.)

The petitioner postulates that the President has no power to fix the terms of office of the Commissioners of the COMELEC
because the Constitution impliedly fixes such terms of office. With regards to Commissioner Flores, the petitioner professes
that Flores' term of three (3) years expired on February 2, 1991 based in section 1(2), Article IX, C, of the Constitution, to
wit:

xxx xxx xxx

(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three
Members shall hold office for seven years, two Members for five years, and the last Members for three years,
without reappointment. Any appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. In
relation to the Transitory Provision of the 1987 Constitution (Article XVIII) particularly Section 15 thereof, to wit:

xxx xxx xxx

The incumbent Members of the Civil Service Commission, the Commission on Elections, and the Commission on
Audit shall continue in office for one year after the ratification of this Constitution, unless they are sooner
removed for cause or become incapacitated to discharge The duties of their office or appointed to a new
term thereunder. In no case shall any Member serve longer than seven years including service before the
ratification of this Constitution.

There is no need to pass upon this constitutional issue raised by the petitioner. The Court ruled in the case of Alger
Electric, Inc. v. Court of Appeals (135 SCRA 37 [1985]):

xxx xxx xxx

... This Court does not decide questions of a constitutional nature unless absolutely necessary to a decision of
the case. If there exists some other ground based on statute or general law or other grounds of construction,
we decide the case on a non-constitutional determination. (See Burton v. United States, 196 U.S. 283; Siler v.
Louisville & Nashville R. Co. 213 U.S. 175; Berea College v. Kentucky 211 U.S. 45.) (at p. 45)

Even if we concede that Commissioner Flores' term expired on February 2, 1991, we fail to see how this could validate
the holding of an elective office by one who is clearly disqualified from running for that position and the continued
exercise of government powers by one without legal authority to do so. The powers of this Court are broad enough to
enjoin the violation of constitutional and statutory provisions by public officers especially where, as in this case, we
merely affirm the decision of the COMELEC en banc promulgated at a time when Commissioner Flores was no longer a
member.

Moreover, under the peculiar circumstances of this case, the decision of the second division of COMELEC would still be
valid under the de facto doctrine.

Commissioner Flores was appointed for a three-year term from February 15, 1988 to February 15, 1991. In these three
years he exercised his duties and functions as Commissioner. Granting in the absence of a statute expressly stating when
the terms of the COMELEC Chairman and members commence and expire, that his term expired on February 2, 1991 to
enable a faithful compliance with the constitutional provision that the terms of office in the COMELEC are on a
staggered basis commencing and ending at fixed intervals, his continuance in office until February 15, 1991 has a color
of validity. Therefore, all his official acts from February 3, 1991 to February 15, 1991, are considered valid. The Court ruled
in the case of Leyte Acting Vice-Governor Aurelio D. Menzon v. Leyte Acting Governor Leopoldo E. Perilla, et al. G.R. No.
90762, May 20, 1991:

And finally, even granting that the President, acting through the Secretary of Local Government, possesses no
power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.

There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known
appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the
President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto
 Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the
appointment has the color of validity.

Petitioner Benjamin P. Abella in G.R. No. 100710 obtained the second highest number of votes, next to Larrazabal in the
local elections of February 1, 1988 in the province of Leyte. The COMELEC en banc, after affirming the February 14, 1991
decision of its second division disqualifying arrazabal as governor disallowed Abella from assuming position of governor
in accordance with section 6, Republic Act No. 6646 and the rulings in the cases of Frivaldo v. Commission on
Elections (174 SCRA 245 [1989]) and Labo, Jr. v. Commission on Elections (176 SCRA 1 [1989]).

Abella claims that the Frivaldo and Labo cases were misapplied by the COMELEC. According to him these cases are
fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions for a quowarranto filed
under section 253 of the Omnibus Code, contesting the eligibility of the respondents after they had been proclaimed
duly elected to the Office from which they were sought to be unseated while SPC No. 88-546 which was filed before
proclamation under section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of
candidacy for material misrepresentations and was seasonably filed on election day. He, therefore, avers that since
under section 6 of Republic Act 6646 it is provided therein that:

Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes case
for him shall not be counted.

the votes cast in favor of Larrazabal who obtained the highest number of votes are not considered counted making her
a non-candidate, he, who obtained the second highest number of votes should be installed as regular Governor of
Leyte in accordance with the Court's ruling in G.R. No. 88004.

The petitioner's arguments are not persuasive.

While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of
Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of February 1,
1988 in the province of Leyte proceeded with Larrazabal considered as a bona-fide candidate. The voters of the
province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes
were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He
was repudiated by the electorate. In the Frivaldo and Labo cases, this is precisely the reason why the candidates who
obtained the second highest number of votes were not allowed to assume the positions vacated by Frivaldo the
governorship of Sorsogon, and Labo, the position of mayor in Baguio City. The nature of the proceedings therefore, is not
that compelling. What matters is that in the event a candidate for an elected position who is voted for and who obtains
the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as
provided by law, the candidate who obtains the second highest number of votes for the same position can not assume
the vacated position. It should be stressed that in G.R. No. 88004, the Court set aside the dismissal of SPC No. 88-546, and
directed the COMELEC to conduct hearings to determine whether or not Larrazabal was qualified to be a candidate for
the position of governor in the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled
in the case of Labo, Jr. v. Commission on Elections:

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can
replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest
number of votes in the election, he was obviously not the choice of the people of Baguio City.

The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740) decided in 1985.
In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival,
who was disqualified as a turncoat and considered a non-candidate, were all disregard as stray. In effect, the
second placer won by default. That decision was supported by eight members of the Court then, (Cuevas, J.,
ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay and Aquino, JJ., concurring.)
with three dissenting (Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two
reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official leave. (Fernando, C.J.)

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case
of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule. That case,
which reiterated the doctrine first announced in 1912 in Topacio v. Paredes, (23 Phil. 238) was supported by ten
members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin,
Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without any dissent, although one reserved his
vote, (Makasiar, J.) another took no part, (Aquino, J.) and two others were on leave. (Fernando, C.J. and
Concepcion, Jr., J.) There the Court held:
 ... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner
and imposed as the representative of a constituency, the majority of which have positively declared
through their ballots that they do not choose him.

Sound policy dictates that public elective offices are filled by those who have received the highest
number of votes cast in the election for that office, and it is a fundamental idea in all republican forms
of government that no one can be declared elected and no measure can be declared carried
unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris
2nd, S 243, p. 676.)

The fact that the candidate who obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected does not necessarily entitle the
candidate who obtained the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid the
vote the winner into office or maintain him there. However the absence of a statute which clearly
asserts a contrary politics and legislative policy on the matter, if the votes were cast in the sincere
belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or
meaningless. (at pp. 20-21)

In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of
the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion.

WHEREFORE, the instant petitions are DISMISSED. The questioned decision of the second division of the
Commission on Elections dated February 14, 1991 and the questioned Resolution en banc of the Commission
dated July 18, 1991 are hereby AFFIRMED. The temporary restraining order issued on August 1, 1991 is LIFTED.
Costs against the petitioners.

SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
Fernan , C.J., took no part.

Feliciano and Sarmiento, JJ., is on leave.

FIRST DIVISION

[G.R. No. 102784. February 28, 1996]

ROSA LIM, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

SYLLABUS

1. CIVIL LAW; OBLIGATIONS AND CONTRACTS; CONTRACTS ARE OBLIGATORY IN WHATEVER FORM ENTERED; PLACE OF
SIGNATURE IMMATERIAL; PARTY BOUND THEREON THE MOMENT SHE AFFIXED HER SIGNATURE. - Rosa Lims signature
indeed appears on the upper portion of the receipt immediately below the description of the items taken. We find
that this fact does not have the effect of altering the terms of the transaction from a contract of agency to sell on
commission basis to a contract of sale. Neither does it indicate absence or vitiation of consent thereto on the part
of Rosa Lim which would make the contract void or voidable. The moment she affixed her signature thereon,
petitioner became bound by all the terms stipulated in the receipt. She, thus, opened herself to all the legal
obligations that may arise from their breach. This is clear from Article 1356 of the New Civil Code which provides:
Contracts shall be obligatory in whatever form they may have been entered into, provided all the essential requisites
for their validity are present. In the case before us, the parties did not execute a notarial will but a simple contract of
agency to sell on commission basis, thus making the position of petitioners signature thereto immaterial.

2. ID.; ID.; CONTRACT OF AGENCY; NO FORMALITIES REQUIRED. - There are some provisions of the law which require certain
formalities for particular contracts. The first is when the form is required for the validity of the contract; the second is
 when it is required to make the contract effective as against the third parties such as those mentioned in Articles
1357 and 1358; and the third is when the form is required for the purppose of proving the existence of the contract,
such as those provided in the Statute of Frauds in Article 1403. A contract of agency to sell on commission basis does
not belong to any of these three categories, hence, it is valid and enforceable in whatever form it may be entered
into.

3. REMEDIAL LAW; EVIDENCE; WEIGHT THEREOF NOT DETERMINED BY SUPERIORITY IN NUMBERS OF WITNESSES. - Weight of
evidence is not determined mathematically by the numerical superiority of the witnesses testifying to a given fact. It
depends upon its practical effect in inducing belief on the part of the judge trying the case.

4. ID.; ID.; CREDIBILITY; FINDINGS OF THE TRIAL AND APPELLATE COURTS GENERALLY NOT INTERFERED WITH ON APPEAL. - In
the case at bench, both the trial court and the Court of Appeals gave weight to the testimony of Vicky Suarez that
she did not authorize Rosa Lim to return the pieces of jewelry to Nadera. We shall not disturb this finding of the
respondent court. It is well settled that we should not interfere with the judgment of the trial court in determining the
credibility of witnesses, unless there appears in the record some fact or circumstances of weight and influence which
has been overlooked or the significance of which has been misinterpreted. The reason is that the trial court is in a
better position to determine questions involving credibility having heard the witnesses and having observed their
deportment and manner of testifying during the trial.

5. CRIMINAL LAW; ESTAFA WITH ABUSE OF CONFIDENCE; ELEMENTS. - The elements of estafa with abuse of confidence under
this subdivision are as follows: (1) That money, goods, or other personal property be received by the offender in trust,
or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to
return, the same; (2) That there be misappropriation or conversion of such money or property by the offender or
denial on his part of such receipt; (3) That such misappropriation or conversion or denial is to the prejudice of another;
and (4) That there is a demand made by the offended party to the offender (Note: The 4th element is not necessary
when there is evidence of misappropriation of the goods by the defendant).

6. ID.; ID.; ID.; PRESENT IN CASE AT BAR. All the elements of estafa under Article 315, Paragraph 1(b) of the Revised Penal
Code, are present in the case at bench. First, the receipt marked as Exhibit A proves that petitioner Rosa Lim received
the pieces of jewelry in trust from Vicky Suarez to be sold on commission basis. Second, petitioner misappropriated
or converted the jewelry to her own use; and, third, such misappropriation obviously caused damaged and prejudice
to the private respondent.

APPEARANCES OF COUNSEL

Zosa & Quijano Law Offices for petitioner.

The Solicitor General for respondents.

DECISION

HERMOSISIMA, JR., J.:

This is a petition to review the Decision of the Court of Appeals in CA-G.R. CR No. 10290, entitled People v. Rosa Lim,
promulgated on August 30, 1991.

On January 26, 1989, an Information for Estafa was filed against petitioner Rosa Lim before Branch 92 of the Regional
Trial Court of Quezon City.[1] The Information reads:

That on or about the 8th day of October 1987, in Quezon City, Philippines and within the jurisdiction of this Honorable
Court, the said accused with intent to gain, with unfaithfulness and/or abuse of confidence, did, then and there, wilfully,
unlawfully and feloniously defraud one VICTORIA SUAREZ, in the following manner, to wit: on the date and place
aforementioned said accused got and received in trust from said complainant one (1) ring 3.35 solo worth P169,000.00,
Philippine Currency, with the obligation to sell the same on commission basis and to turn over the proceeds of the sale to
said complainant or to return said jewelry if unsold, but the said accused once in possession thereof and far from
complying with her obligation despite repeated demands therefor, misapplied, misappropriated and converted the
same to her own personal use and benefit, to the damage and prejudice of the said offended party in the amount
aforementioned and in such other amount as may be awarded under the provisions of the Civil Code.

CONTRARY TO LAW.[2]

After arraignment and trial on the merits, the trial court rendered judgment, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1. Finding accused Rosa Lim GUILTY beyond reasonable doubt of the offense of estafa as defined and penalized under
Article 315, paragraph 1(b) of the Revised Penal Code;

2. Sentencing her to suffer the Indeterminate penalty of FOUR (4) YEARS and TWO (2) MONTHS of prision correccional as
minimum, to TEN (10) YEARS of prision mayor as maximum;

3. Ordering her to return to the offended party Mrs. Victoria Suarez the ring or its value in the amount of P169,000 without
subsidiary imprisonment in case of insolvency; and

4. To pay costs.[3]

On appeal, the Court of Appeals affirmed the Judgment of conviction with the modification that the penalty
imposed shall be six (6) years, eight (8) months and twenty- one (21) days to twenty (20) years in accordance with Article
315, paragraph 1 of the Revised Penal Code.[4]

Petitioner filed a motion for reconsideration before the appellate court on September 20, 1991, but the motion was
denied in a Resolution dated November 11, 1991.

In her final bid to exonerate herself, petitioner filed the instant petition for review alleging the following grounds:

THE RESPONDENT COURT VIOLATED THE CONSTITUTION, THE RULES OF COURT AND THE DECISION OF THIS HONORABLE
COURT IN NOT PASSING UPON THE FIRST AND THIRD ASSIGNED ERRORS IN PETITIONERS BRIEF;

II

THE RESPONDENT COURT FAILED TO APPLY THE PRINCIPLE THAT THE PAROL EVIDENCE RULE WAS WAIVED WHEN THE
PRIVATE PROSECUTOR CROSS-EXAMINED THE PETITIONER AND AURELIA NADERA AND WHEN COMPLAINANT WAS CROSS-
EXAMINED BY THE COUNSEL FOR THE PETITIONER AS TO THE TRUE NATURE OF THE AGREEMENT BETWEEN THE PARTIES
WHEREIN IT WAS DISCLOSED THAT THE TRUE AGREEMENT OF THE PARTIES WAS A SALE OF JEWELRIES AND NOT WHAT WAS
EMBODIED IN THE RECEIPT MARKED AS EXHIBIT A WHICH WAS RELIED UPON BY THE RESPONDENT COURT IN AFFIRMING THE
JUDGMENT OF CONVICTION AGAINST HEREIN PETITIONER; and

III

THE RESPONDENT COURT FAILED TO APPLY IN THIS CASE THE PRINCIPLE ENUNCIATED BY THIS HONORABLE COURT TO THE
EFFECT THAT ACCUSATION IS NOT, ACCORDING TO THE FUNDAMENTAL LAW, SYNONYMOUS WITH GUILT: THE
PROSECUTION MUST OVERTHROW THE PRESUMPTION OF INNOCENCE WITH PROOF OF GUILT BEYOND REASONABLE
DOUBT. TO MEET THIS STANDARD, THERE IS NEED FOR THE MOST CAREFUL SCRUTINY OF THE TESTIMONY OF THE STATE, BOTH
ORAL AND DOCUMENTARY, INDEPENDENTLY OF WHATEVER DEFENSE IS OFFERED BY THE ACCUSED. ONLY IF THE JUDGE
BELOW AND THE APPELLATE TRIBUNAL COULD ARRIVE AT A CONCLUSION THAT THE CRIME HAD BEEN COMMITTED
PRECISELY BY THE PERSON ON TRIAL UNDER SUCH AN EXACTING TEST SHOULD SENTENCE THUS REQUIRED THAT EVERY
INNOCENCE BE DULY TAKEN INTO ACCOUNT. THE PROOF AGAINST HIM MUST SURVIVE THE TEST OF REASON, THE
STRONGEST SUSPICION MUST NOT BE PERMITTED TO SWAY JUDGMENT. (People v. Austria, 195 SCRA 700)[5]

Herein the pertinent facts as alleged by the prosecution.

On or about October 8, 1987, petitioner Rosa Lim who had come from Cebu received from private respondent
Victoria Suarez the following two pieces of jewelry: one (1) 3.35 carat diamond ring worth P169,000.00 and one (1) bracelet
worth P170,000.00, to be sold on commission basis. The agreement was reflected in a receipt marked as Exhibit A[6] for the
prosecution. The transaction took place at the Sir Williams Apartelle in Timog Avenue, Quezon City, where Rosa Lim was
temporarily billeted.

On December 15, 1987, petitioner returned the bracelet to Vicky Suarez, but failed to return the diamond ring or to
turn over the proceeds thereof if sold. As a result, private complainant, aside from making verbal demands, wrote a
demand letter[7] to petitioner asking for the return of said ring or the proceeds of the sale thereof. In response, petitioner,
thru counsel, wrote a letter[8] to private respondents counsel alleging that Rosa Lim had returned both ring and bracelet
to Vicky Suarez sometime in September, 1987, for which reason, petitioner had no longer any liability to Mrs. Suarez insofar
as the pieces of jewelry were concerned. Irked, Vicky Suarez filed a complaint for estafa under Article 315, par. 1(b) of the
Revised Penal Code for which the petitioner herein stands convicted.

Petitioner has a different version.

 Rosa Lim admitted in court that she arrived in Manila from Cebu sometime in October 1987, together with one Aurelia
Nadera, who introduced petitioner to private respondent, and that they were lodged at the Williams Apartelle in Timog,
Quezon City. Petitioner denied that the transaction was for her to sell the two pieces of jewelry on commission basis. She
told Mrs. Suarez that she would consider buying the pieces of jewelry for her own use and that she would inform the private
complainant of such decision before she goes back to Cebu. Thereafter, the petitioner took the pieces of jewelry and told
Mrs. Suarez to prepare the necessary paper for me to sign because I was not yet prepare(d) to buy it.[9] After the document
was prepared, petitioner signed it. To prove that she did not agree to the terms of the receipt regarding the sale on
commission basis, petitioner insists that she signed the aforesaid document on the upper portion thereof and not at the
bottom where a space is provided for the signature of the person(s) receiving the jewelry.[10]

On October 12, 1987 before departing for Cebu, petitioner called up Mrs. Suarez by telephone in order to inform her
that she was no longer interested in the ring and bracelet. Mrs. Suarez replied that she was busy at the time and so, she
instructed the petitioner to give the pieces of jewelry to Aurelia Nadera who would in turn give them back to the private
complainant. The petitioner did as she was told and gave the two pieces of jewelry to Nadera as evidenced by a
handwritten receipt, dated October 12, 1987.[11]

Two issues need to be resolved: First, what was the real transaction between Rosa Lim and Vicky Suarez - a contract
of agency to sell on commission basis as set out in the receipt or a sale on credit; and, second, was the subject diamond
ring returned to Mrs. Suarez through Aurelia Nadera?

Petitioner maintains that she cannot be liable for estafa since she never received the jewelries in trust or on
commission basis from Vicky Suarez. The real agreement between her and the private respondent was a sale on credit
with Mrs. Suarez as the owner-seller and petitioner as the buyer, as indicated by the fact that petitioner did not sign on the
blank space provided for the signature of the person receiving the jewelry but at the upper portion thereof immediately
below the description of the items taken.[12]

The contention is far from meritorious.

The receipt marked as Exhibit A which establishes a contract of agency to sell on commission basis between Vicky
Suarez and Rosa Lim is herein reproduced in order to come to a proper perspective:

THIS IS TO CERTIFY, that I received from Vicky Suarez PINATUTUNAYAN KO na aking tinanggap kay _______________ the
following jewelries:
ang mga alahas na sumusunod:

Description Price
Mga Uri Halaga

1 ring 3.35 dolo P 169,000.00

1 bracelet 170.000.00
total Kabuuan P 339.000.00

in good condition, to be sold in CASH ONLY within . . .days from date of signing this receipt na nasa mabuting kalagayan
upang ipagbili ng KALIWAAN (ALCONTADO) lamang sa loob ng. . . araw mula ng ating pagkalagdaan:

if I could not sell, I shall return all the jewelry within the period mentioned above; if I would be able to sell, I shall
immediately deliver and account the whole proceeds of sale thereof to the owner of the jewelries at his/her residence;
my compensation or commission shall be the over-price on the value of each jewelry quoted above. I am prohibited to
sell any jewelry on credit or by installment; deposit, give for safekeeping; lend, pledge or give as security or guaranty
under any circumstance or manner, any jewelry to other person or persons.

kung hindi ko maipagbili ay isasauli ko ang lahat ng alahas sa loob ng taning na panahong nakatala sa itaas; kung
maipagbili ko naman ay dagli kong isusulit at ibibigay ang buong pinagbilhan sa may-ari ng mga alahas sa kanyang
bahay tahanan; ang aking gantimpala ay ang mapapahigit na halaga sa nakatakdang halaga sa itaas ng bawat
alahas HIND I ko ipinahihintulutang ipa-u-u-tang o ibibigay na hulugan ang alin mang alahas, ilalagak, ipagkakatiwala;
ipahihiram; isasangla o ipananagot kahit sa anong paraan ang alin mang alahas sa ibang mga tao o tao.

I sign my name this . . . day of. . . 19 . . . at Manila, NILALAGDAAN ko ang kasunduang ito ngayong ika____ ng dito sa
Maynila.

Signature of Persons who

received jewelries (Lagda
ng Tumanggap ng mga
Alahas)

Address: . . . . . . . . . . .

Rosa Lims signature indeed appears on the upper portion of the receipt immediately below the description of the
items taken. We find that this fact does not have the effect of altering the terms of the transaction from a contract of
agency to sell on commission basis to a contract of sale. Neither does it indicate absence or vitiation of consent thereto
on the part of Rosa Lim which would make the contract void or voidable. The moment she affixed her signature thereon,
petitioner became bound by all the terms stipulated in the receipt. She, thus, opened herself to all the legal obligations
that may arise from their breach. This is clear from Article 1356 of the New Civil Code which provides:

Contracts shall be obligatory in whatever form they may have been entered into, provided all the essential requisites for
their validity are present. x x x.

However, there are some provisions of the law which require certain formalities for particular contracts. The first is when the
form is required for the validity of the contract; the second is when it is required to make the contract effective as against
third parties such as those mentioned in Articles 1357 and 1358; and the third is when the form is required for the purpose
of proving the existence of the contract, such as those provided in the Statute of Frauds in Article 1403.[13] A contract of
agency to sell on commission basis does not belong to any of these three categories, hence it is valid and enforceable in
whatever form it may be entered into.

Furthermore, there is only one type of legal instrument where the law strictly prescribes the location of the signature
of the parties thereto. This is in the case of notarial wills found in Article 805 of the Civil Code, to wit:

Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself x x x.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the left margin x x x.

In the case before us, the parties did not execute a notarial will but a simple contract of agency to sell on commission
basis, thus making the position of petitioners signature thereto immaterial.

Petitioner insists, however, that the diamond ring had been returned to Vicky Suarez through Aurelia Nadera, thus
relieving her of any liability. Rosa Lim testified to this effect on direct examination by her counsel:

Q: And when she left the jewelries with you, what did you do thereafter?

A: On October 12, I was bound for Cebu. So I called up Vicky through telephone and informed her that I am
no longer interested in the bracelet and ring and that 1 will just return it.

Q: And what was the reply of Vicky Suarez?

A: She told me that she could not come to the apartelle since she was very busy. So, she asked me if Aurelia
was there and when I informed her that Aurelia was there, she instructed me to give the pieces of jewelry
to Aurelia who in turn will give it back to Vicky.

Q: And you gave the two (2) pieces of jewelry to Aurelia Nadera?

A: Yes, Your Honor.[14]

This was supported by Aurelia Nadera in her direct examination by petitioners counsel:

Q: Do you know if Rosa Lim in fact returned the jewelries ?

A: She gave the jewelries to me.

Q: Why did Rosa Lim give the jewelries to you?

A: Rosa Lim called up Vicky Suarez the following morning and told Vicky Suarez that she was going home to
Cebu and asked if she could give the jewelries to me.

Q: And when did Rosa Lim give to you the jewelries?

A: Before she left for Cebu.[15]

On rebuttal, these testimonies were belied by Vicky Suarez herself:

 Q: It has been testified to here also by both Aurelia Nadera and Rosa Lim that you gave authorization to Rosa
Lim to turn over the two (2) pieces of jewelries mentioned in Exhibit A to Aurelia Nadera, what can you
say about that?

A:. That is not true sir, because at that time Aurelia Nadera is highly indebted to me in the amount of P
140,000.00, so if I gave it to Nadera, I will be exposing myself to a high risk.[16]

The issue as to the return of the ring boils down to one of credibility. Weight of evidence is not determined
mathematically by the numerical superiority of the witnesses testifying to a given fact. It depends upon its practical effect
in inducing belief on the part of the judge trying the case.[17] In the case at bench, both the trial court and the Court of
Appeals gave weight to the testimony of Vicky Suarez that she did not authorize Rosa Lim to return the pieces of jewelry
to Nadera. The respondent court, in affirming the trial court, said:

x x x This claim (that the ring had been returned to Suarez thru Nadera) is disconcerting. It contravenes the very terms of
Exhibit A. The instruction by the complaining witness to appellant to deliver the ring to Aurelia Nadera is vehemently
denied by the complaining witness, who declared that she did not authorize and/or instruct appellant to do so. And
thus, by delivering the ring to Aurelia without the express authority and consent of the complaining witness, appellant
assumed the right to dispose of the jewelry as if it were hers, thereby committing conversion, a clear breach of trust,
punishable under Article 315, par. 1(b), Revised Penal Code.

We shall not disturb this finding of the respondent court. It is well settled that we should not interfere with the judgment
of the trial court in determining the credibility of witnesses, unless there appears in the record some fact or circumstance
of weight and influence which has been overlooked or the significance of which has been misinterpreted. The reason is
that the trial court is in a better position to determine questions involving credibility having heard the witnesses and having
observed their deportment and manner of testifying during the trial.[18]

Article 315, par. 1(b) of the Revised Penal Code provides:

ART. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow shall
be punished by:

xxx xxx xxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property
received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty
to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or
by denying having received such money, goods, or other property.

xxx xxx xxx

The elements of estafa with abuse of confidence under this subdivision are as follows: (1) That money, goods, or other
personal property be received by the offender in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return, the same; (2) That there be misappropriation or conversion
of such money or property by the offender or denial on his part of such receipt; (3) That such misappropriation or
conversion or denial is to the prejudice of another; and (4) That there is a demand made by the offended party to the
offender (Note: The 4th element is not necessary when there is evidence of misappropriation of the goods by the
defendant).[19]

All the elements of estafa under Article 315, Paragraph 1(b) of the Revised Penal Code, are present in the case at
bench. First, the receipt marked as Exhibit A proves that petitioner Rosa Lim received the pieces of jewelry in trust from
Vicky Suarez to be sold on commission basis. Second, petitioner misappropriated or converted the jewelry to her own use;
and, third, such misappropriation obviously caused damage and prejudice to the private respondent.

WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals is hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.

Padilla (Chairman), Bellosillo, and Kapunan, JJ., concur.

Vitug, J., In the results.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23102 April 24, 1967

CECILIO MENDOZA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, and LUISA DE LA ROSA MENDOZA, respondents.

Guillermo B. Ilagan for petitioner.

George Y. Cadhit for respondents.

REYES, J.B.L., J.:

Cecilio Mendoza resorts to this Court for a review of the decision of the Court of Appeals in case CA-G.R. No. 30005-R,
denying a writ of prohibition and injunction against the orders of the Court of First Instance of Nueva Ecija refusing
dismissal of Civil Case No. 3436 of that Court.1äwphï1.ñët

We glean from the record that Luisa de la Rosa Mendoza instituted Case No. 3436 against petitioner herein. In the
complaint, she averred that she was married to Cecilio Mendoza on 2 September 1953; that they lived together as
husband and wife until 14 July 1954, when the husband departed for the United States to further his studies and practice
his profession; that since then, defendant Mendoza "without justifiable cause or reason deliberately abandoned and
neglected plaintiff and despite repeated demands by plaintiff, defendant has failed and refused, and still fails and
refuses, to provide for the maintenance and support of plaintiff, who is allegel to be pregnant, sickly and without any
source of revenue, while defendant (now petitioner) is employed in a hospital in the United States, earning an average
of $200.00 a month, besides being a part-owner of lands in Muñoz, Nueva Ecija, assessed at P32,330.00 in 1955.

In due course, defendant Cecilio Mendoza moved for dismissal of the complaint for lack of jurisdiction and improper
venue. The motion having been denied, he filed an answer with counterclaim, putting in issue the validity of his marriage
to plaintiff (Brief, p. 13), and plaintiff (now respondent) Luisa de la Rosa duly replied.

On 3 July 1961 defendant filed a second motion to dismiss, this time predicated on the complaint's failure to state a
cause of action, because it contained no allegation that earnest efforts toward a compromise have been made before
the filing of the suit, and invoking the provisions of Article 222 of the Civil Code of the Philippines (R.A. No. 386) that
provides:

ART. 222. No suit shall be filed or maintained between members of the same family unless it should appear that
earnest efforts toward a compromise have been made, but that the same have failed, subject to the
limitations in article 2035.

The Court of First Instance, having refused to entertain his second motion to dismiss, the defendant petitioned the Court
of Appeals for writ of prohibition with preliminary injunction to stop the Court of First Instance from further proceeding
with the case. The Court of Appeals gave due course to his petition and issued the preliminary writ prayed for; but, after
hearing and consideration of the merits, it denied the writ of prohibition and dissolved the injunction.

His motion for reconsideration having been denied, Cecilio Mendoza then resorted to this Court, which gave due course
to his petition for review.

Petitioner argues that Article 222 of the Civil Code of the Philippines (jam. quot.) requires that before a suit between
members of the same family (in this case between husband and wife) is filed or maintained, it must appear that earnest
efforts toward a compromise have been made, and the only way to make it so appear when the suit is filed is by a
proper averment to that effect in the complaint. Since the law forbids a suit being initiated (filed) or maintained unless
such efforts at compromise appear, the showing that efforts in question were made is a condition precedent to the
existence of the cause of action. It follows that the failure of the complaint to plead that plaintiff previously tried in
earnest to reach a settlement out of court renders it assailable for lack of cause of action and it may be so attacked at
any stage of the case even on appeal.
While we agree that petitioner's position represents a correct statement of the general rule on the matter, we are
nevertheless constrained to hold that the Court of Appeals and the Court of First Instance committed no error in refusing
to dismiss the complaint, for on its face, the same involved a claim for future support that under Article 2035 of the Civil
Code of the Philippines can not be subject of a valid compromise, and is, therefore, outside the sphere of application of
Article 222 of the Code upon which petitioner relies. This appears from the last proviso of said Article 222, already
quoted. Even the answer below, in attacking the validity of the marriage of plaintiff-respondent Luisa de la Rosa to
defendant-petitioner Cecilio Mendoza, poses a non-compromisable issue.

ART. 2035. No compromise upon the following questions shall be valid:

(1) x x x;

(2) The validity of a marriage or a legal separation;

(3) x x x;

(4) Future support.

Since no valid compromise is possible on these issues, a showing of previous efforts to compromise them would be
superfluous.

It may be that the complaint asks for both future support and support in arrears, as petitioner contends. But, the
possibility of compromise on the latter does not negate the existence of a valid cause of action for future support, to
which Article 222 can not apply.

Wherefore, the decision of the Court of Appeals, sustaining that of the court of origin denying dismissal of the complaint,
is affirmed. Costs against petitioner. So ordered.

Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Castro, JJ., concur.
Sanchez, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-29759 May 18, 1989

NATIVIDAD DEL ROSARIO VDA. DE ALBERTO, in her individual capacity and as judicial guardian of the minors ANTONIO
ALBERTO, JR. and LOURDES ALBERTO, petitioners,
vs.
THE HON. COURT OF APPEALS and ANTONIO J. ALBERTO, JR., assisted by his mother as his natural guardian, ANDREA
JONGCO, respondents.

Tañada, Carreon & Tañada for petitioners.

BIDIN, J.:

This is a petition for review on certiorari of the August 31, 1968 Decision of the Court of Appeals in CA-G.R. No. 34750-R'*
entitled "Antonio J. Alberto, Jr., thru his mother as his natural guardian, Andrea Jongco, plaintiff-appellant, vs. Natividad
del Rosario Vda. de Alberto, in her individual capacity and as judicial guardian of the minors, Lourdes Alberto and
Antonio Alberto, Jr., defendants-appellees", reversing the August 10, 1964. Decision of the then Court of First Instance of
Manila.

The case originated from a complaint for acknowledgment and partition filed on September 8, 1960 with the then Court
of First Instance of Manila by the herein private respondent, a minor, 18 years of age, assisted by his mother, Andrea
Jongco, as his natural guardian, against the herein petitioners (Record on Appeal, pp. 2-8). In the said Complaint,
private respondent alleged, in substance, that in 1941 his alleged father, Antonio C. Alberto, and his mother, Andrea
Jongco, lived together as husband and wife and as a result of which, he was born on September 10, 1942; that during
the time that his alleged father and mother lived together as husband and wife and up to the time of his birth, both were
single and had no legal impediment to marry each other; that after his birth, his father and mother continued living
together as husband and wife, his father supporting them and introducing him to the public as his natural child; that
even the family of his father recognized him as such; that on or about the year 1944, his father and mother separated,
and subsequently, his father married herein petitioner Natividad del Rosario; that as a result of the marriage, two (2)
children were born herein petitioners Lourdes Alberto and Antonio Alberto, Jr.; that although his father was separated
from his mother, he continued to support him and recognized him as his own child; that on July 3, 1949, his father died,
and without notice to him, petitioner Natividad del Rosario Vda. de Alberto, on July 17, 1949, instituted before the then
Court of First Instance of Manila an intestate proceedings for the estate of his deceased father, docketed therein as
Special Proceedings No. 9092; that in the said intestate proceedings, petitioners deliberately omitted him as one of the
heirs and for this reason they succeeded in having the properties of his deceased father adjudicated and partitioned
among themselves; that the said intestate proceedings were terminated on November 9, 1953; that his father left
properties valued at P74,963.81, and accordingly, as a natural child of his father, he is entitles to at least P18,000.00; and
that he had absolutely no previous knowledge of the intestate proceedings and came to know about it only recently
and thereupon made a demand from the petitioners who refused to give him his share. Accordingly, he prays that the
petitioners be ordered to acknowledge him as the natural child of Antonio C. Alberto; that his one-fourth share be
turned over to him; and that petitioners be sentenced to pay him the sum of P5,000.00 as attorney's fee and the cost of
suit (Record on Appeals, pp. 2-9).

On September 21, 1960, petitioners filed a Motion to Dismiss on the grounds that (1) the cause of action is barred by prior
judgment; and (2) that the cause of action is also barred by the statute of limitation (Ibid, pp. 9-19). To this motion,
private respondents filed an opposition on October 22, 1960 (Ibid, pp. 20-58).

On November 11, 1960, the trial court issued an Order denying the Motion to Dismiss (Ibid, pp. 97-98).

On November 18, 1964, petitioners filed their Answer to the Complaint (Ibid, pp. 98-102).

On November 23, 1964, private respondent filed his Answer to Defendants' counterclaim (Ibid, pp. 102-104). On August
10, 1964, the trial court rendered a decision in favor of the petitioners (Ibid, pp. 104- 123). The dispositive portion of the
Decision reads:

Considering all the foregoing, the Court orders the dismissal of the complaint without pronouncement
as to the costs. The counterclaim is also dismissed.

SO ORDERED.

Private respondent, not satisfied with the decision, appealed to respondent Court, and in a Decision promulgated on
August 31, 1968 (Ibid, pp. 61-75), respondent Court reversed the decision of the trial court. The dispositive portion of the
said Decision, reads:

Wherefore, the decision appealed from is hereby reversed and set aside and another rendered
declaring plaintiff Antonio J. Alberto, Jr., an acknowledged Natural Child of the deceased Antonio C.
Alberto; declaring said plaintiff the owner pro indiviso of one-fifth (1/5) of the hereditary estate of
Antonio C. Alberto; and ordering the defendants to deliver to plaintiff Antonio J. Alberto, Jr., his one-
fifth (1/5) share in said estate, subject to the usufructuary rights of defendants Natividad del Rosario
Vda. de Alberto pursuant to Articles 834 of the Old Civil Code, and to pay the costs of suit.

SO ORDERED.

On September 24, 1968, petitioners filed a Motion for Reconsideration, but the same was denied in a Resolution dated
October 14, 1968 (Rollo, p. 77). Hence, the instant petition.
This Court, in a resolution dated November 27,1968, resolved to give due course to the petition (Rollo, p. 91).

Petitioners assigned the following errors:

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE COURT OF FIRST INSTANCE OF MANILA (TRIAL
COURT) HAD NO JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT CASE.

II

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT RESPONDENT ALBERTO JR.'S CAUSE OF ACTION WAS NOT
BARRED BY PRIOR JUDGMENT.

III

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT RESPONDENT ALBERTO JR.'S CAUSE OF ACTION HAD NOT YET
PRESCRIBED.

IV

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT RESPONDENT ALBERTO, JR., IN NOT BRINGING THE INSTANT
ACTION FOR AN UNREASONABLE LENGTH OF TIME, WAS GUILTY OF LACHES.

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS GROSSLY ERRED IN REVERSING THE FINDINGS OF THE TRIAL COURT BY BASING ITS
JUDGMENT ON A MISAPPREHENSION OF FACTS, GIVING CREDENCE TO THE TESTIMONIES OF ANDREA JONGCO AND
OTHER WITNESSES OF RESPONDENT ALBERTO, JR., DESPITE THE SERIOUS CONTRADICTIONS, INCONSISTENCIES AND
IMPROBABILITIES IN THEIR TESTIMONIES AS FOUND BY THE TRIAL COURT AND CATEGORICALLY STATED IN ITS DECISION.

VI

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS COMMITTED A GROSS ERROR OF LAW AND A GRAVE ABUSE OF DISCRETION WHEN IT
ARBITRARILY AND CAPRICIOUSLY DISREGARDED PETITIONERS' EVIDENCE.

VII

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE COGNIZANCE OF THE INSTANT CASE, THE
HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT RESPONDENT ALBERTO, JR., WAS AN ACKNOWLEDGED
NATURAL CHILD OF THE DECEASED ALBERTO AND IN DECLARING HIM OWNER PRO-INDIVISO OF ONE-FIFTH OF THE
HEREDITARY ESTATE OF THE DECEASED.

I.

It is the contention of petitioners that inasmuch as the instant case was filed on September 8, 1960, almost five (5) years
after the enactment of R.A. No. 1401 — creating the Juvenile and Domestic Relations Court, the questions of paternity
and acknowledgment fall beyond the jurisdictional pale of the Court of First Instance of Manila and instead comes
within the exclusive original jurisdiction of the Juvenile and Domestic Relations Court. While petitioners admitted that this
objection to lack of jurisdiction by the Court of First Instance of Manila over the subject matter of the present action had
not been raised either in the said court or in the Court of Appeals and is brought to this Court for resolution for the first
time on appeal, they contend that a party may object to the jurisdiction of the court over the subject matter of the
action at any stage of the proceedings, even for the first time on appeal since lack of jurisdiction of the court over the
subject matter cannot be waived. Such contention is untenable.

This Court has already ruled that the question of jurisdiction not raised in the trial court cannot be raised on appeal
(Dalman vs. City Court of Dipolog City, Branch II, 134 SCRA 243 [1985]). Besides, a party who had voluntarily participated
in the trial, like the herein petitioners, cannot later on raise the issue of the court's lack of jurisdiction (Philippine National
Bank vs. Intermediate Appellate Court, 143 SCRA 299 [1986]; Royales vs. Intermediate Appellate Court, 143 SCRA 470
[1984]; Tijam vs. Sibonghanoy, 23 SCRA 29 [1968]). Moreover, there are no more Juvenile and Domestic Relations Courts
today. Under Batas Pambansa Blg. 129, the functions of the Juvenile and Domestic Relations Court have been
transferred to the Regional Trial Courts (Divinagracia vs. Bellosillo, 143 SCRA 356 [1986]).

II.

Petitioners alleged that the intestate proceedings for the settlement of estate of the deceased Antonio C. Alberto
(Special Proceedings No. 9092) had already been terminated on November 9, 1953 by the order of distribution directing
the delivery of the residue of the estate to the persons entitled thereto and that in said proceedings the court also
declared who are the heirs of the deceased. Consequently, the instant case which seeks to secure the recognition of
Antonio J. Alberto, Jr. as an acknowledged natural child of the deceased in order to establish his rights to the
inheritance is already barred by prior judgment (Petitioners' Brief, p. 47) despite private respondent's insistence that he
had no knowledge or notice of the intestate proceedings of his alleged natural father (Record on Appeal, p. 21).

Petitioners' submission is impressed with merit.

This Court has invariably ruled that insolvency proceedings and settlement of a decedent's estate are both
proceedings in rem which are binding against the whole world. All persons having interest in the subject matter involved,
whether they were notified or not, are equally bound (Philippine Savings Bank vs. Lantin, 124 SCRA 483 [1983]). The court
acquires jurisdiction over all persons interested, through the publication of the notice prescribed ... and any order that
may be entered therein is binding against all of them (Ramon vs. Ortuzar, 89 Phil. 741 [1951] citing in re Estate of Johnson,
39 Phil. 156). It was ruled further that a final order of distribution of the estate of a deceased person vests the title to the
land of the estate in the distributees; and that the only instance where a party interested in a probate proceeding may
have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake
or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same
case by proper motion within the reglementary period, instead of an independent action, the effect of which, if
successful, would be, as in the instant case, for another court or judge to throw out a decision or order already final and
executed and reshuffle properties long ago distributed and disposed of (Ramon vs. Ortuzar, supra; Santos vs. Roman
Catholic Bishop of Nueva Caceres 45 Phil. 895).

III.

As to the issue of prescription, the Civil Code of the Philippines clearly provides:

Art. 1100. The action for rescission on account of lesion shall prescribe after four years from the time
the partition was made.

Intestate proceedings were terminated as alleged in the complaint itself on November 9, 1953 so that said four years
prescriptive period expired on November 9,1957. Hence, the present action filed on September 8, 1960 and which has
for one of its objects the rescission of the agreement of partition among the petitioners, as approved by the intestate
court, is already barred by prescription.

That an action for rescission is also the proper action in case of an alleged preterition of a compulsory heir by reason of
alleged bad faith or fraud of the other persons interested, which is what the complaint in this case alleges in substance,
is indicated in Article 1104 of the Civil Code as follows:

Art. 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded,
unless it be proved that there was bad faith or fraud on the part of the other persons interested; ...

It has also been ruled by this Court that the four years period provided in Article 1100 of the Civil Code (formerly Art. 1076
of the old Civil Code) should commence to run from the approval of the agreement of partition by the Court (Samson
vs. Araneta, 60 Phil. 27, 36). Thus, in the case at bar, it is evident that the action to rescind the Agreement of Partition
which was approved by the Court on November 9, 1953, had already prescribed when respondent filed the complaint
in the case at bar on September 8, 1960.

While as a general rule the action for partition among co-owners does not prescribe so long as the co-ownership is
expressly or impliedly recognized (Art. 494, Civil Code), petitioners herein had never recognized respondent as a co-
owner or co-heir either expressly or impliedly. Consequently, the rule on non-prescription of action for partition of
property owned in common (Art. 494) does not apply to the case at bar.

Moreover, private respondent cannot claim exemption from the effects of prescription on the plea of minority under the
New Civil Code which provides:

Art. 1108. Prescription, both acquisitive and extinctive, runs against: (1) Minors and other
incapacitated persons who have parents, guardians or other legal representatives:

xxxxxxxxx

Respondent Alberto, Jr. who has a living parent, his mother, Andrea Jongco, who in fact filed the complaint in the case
at bar for him, falls squarely under the above-cited provision.

Granting arguendo that respondent is a natural child of the deceased Antonio Alberto, Sr., the action for recognition of
natural child may be brought only during the lifetime of the presumed parent. And if the presumed father or mother died
during the minority of the child, the latter may file the action within four (4) years from the attainment of majority (Art. 285
[1]). However, if the minor has a guardian as in this case, prescription runs against him even during minority (Wenzel etc.,
et al. vs. Surigao Consolidated Mining, Inc., 108 Phil. 530 [1960]). In such case, the action for recognition must be
instituted within four (4) years after the death of the natural father (Magallanes, et al. vs. Court of Appeals, et al., 95 Phil.
795 [1954]). Antonio C. Alberto, Sr., the alleged father, died on July 3, 1949. The complaint for acknowledgment and
partition was filed eleven (11) years later, on September 8, 1960. Hence, prescription had set in.

Neither can it be claimed that the present action is in substance one for recovery of property in order to avoid the
consequences of prescription, for as correctly stated by the petitioners, to be entitled to the recovery of the property
from the estate, Alberto, Jr. must first rescind the partition and distribution approved by the intestate proceedings,
otherwise, the recovery of any property from the petitioners is not possible. Be that as it may, such partition can no longer
be rescinded having been already barred by the Statute of Limitations.

Furthermore, even granting that Article 1104 of the Civil Code does not apply and there is an injury to the rights of
plaintiff, tills action would still not prosper under Articles 1146 and 1149 of the same Code which provide that the action
must be brought within four and five years, respectively, from the time the right of action accrues.

IV

Petitioners' claim of laches is likewise tenable. The trial court in its findings clearly and unmistakably declared that
respondent Alberto, Jr. is guilty of laches as follows:

About 1944, Andrea Jongco said she learned of Antonio Alberto's marriage to Natividad del Rosario.
Yet, she took no steps to protect the interests of her child, Antonio, although she was already
confronted with the incontrovertible proof of Antonio's infidelity and the hallowness of his promises.

It might be that Andrea Jongco was then relying on Antonio Alberto's not denying that Alberto, Jr.
was his child, if such was the case. If this was so, however, how can we explain her inaction even after
the death of Antonio Alberto in 1949, or until September 8, 1960, when she filed this action, Andrea
kept silent, took no action to have her child recognized as the son of the alleged father. Her laches, as
well as the inherent improbabilities in her testimony rendered it unworthy of belief.

... It is evident that the plaintiff's case is adversely affected by his long delay in bringing this action.
'Undue delay in the separate enforcement of a right is strongly persuasive of lack of merit in this claim,
since it is human nature for a person to assert his rights most strongly when they are threatened or
invaded. (Buenaventura vs. David, 37 Phil. 435-440). (Record on Appeal, pp. 108-109).

This Court has consistently declared that laches is the failure or neglect, for an unreasonable and unexplained length of
time, to do that which by exercising due diligence, could or should have been done earlier. The negligence or omission
to assert a right within a reasonable time, warrants a presumption that the party entitled to assert it either has
abandoned it or declined to assert it (Corro vs. Lising, 137 SCRA 541 [1985]; Tendo vs. Zamacoma, 138 SCRA 78 [1985]; De
Castro vs. Tan, 129 SCRA 85 [1984]; Medija vs. Patcho, 132 SCRA 540 [1984]; Burgos, Sr. vs. Chief of Staff, Armed Forces of
the Phil., 133 SCRA 800 [1984]; Gumonpin vs. CA, 120 SCRA 687 [1983]).

As pointed out by the trial court, there appears to be no explanation for the surprising delay in the filing of the complaint
in the case at bar except perhaps, the fact that during the lifetime of the deceased Antonio Alberto, private
respondents were receiving support until the latter died in 1949; but thereafter, they allowed more than ten years to
elapse or until September 8, 1960 before they filed the present action to assert their rights despite Andrea Jongco's
allegation that they stopped receiving support after Alberto, Sr.'s death.

On the other hand, there is merit in petitioners' allegations that such delay is prejudicial to them. Private respondents
could have filed the action in 1944 when Andrea Jongco learned of the marriage of the deceased with petitioner
Natividad del Rosario instead of waiting for 16 years when the supposed father's lips had been sealed by death and
possible witnesses like Antonio Alberto, Sr.'s mother had become too old to give coherent testimony.

On this point, the Supreme Court ruled:

The assertion of doubtful claims, after long delay, cannot be favored by the courts. Time inevitably
tends to obliterate occurrences from the memory of witnesses, and even where the recollection
appears to be entirely clear, the true clue to the solution of a case may be hopelessly lost. These
considerations constitute one of the pillars of the doctrine long familiar in equity jurisprudence to the
effect that laches or unreasonable delay on the part of a plaintiff in seeking to enforce a right is not
only persuasive of a want of merit but may, according to the circumstances, be destructive of the
right itself. Vigilantibus non dormientibus equites subvenit (Buenaventura vs. David, 37 Phil. 435,
reiterated in Edralin vs. Edralin, 1 SCRA 227 [1961]).

The other explanation might have been the minority of Antonio Alberto, Jr. at the time of his supposed father's death. But
such explanation as discussed earlier is unavailing even in case of prescription under Article 1108 of the Civil Code where
minority does not stop the running of the prescriptive period for minors who have parents, guardians or legal
representatives.

Thus, it is well established that "The law serves those who are vigilant and diligent and not those who sleep when the law
requires them to act (Cui and Joven vs. Henson, 51 Phil. 606, 610; Bacolod-Murcia Milling Co. vs. Villaluz, Sept. 29, 1951, 90
Phil. 154)." The law does not encourage laches, indifference, negligence or ignorance. On the contrary, for a party to
deserve the considerations of the courts, he... must show that he is not guilty of any of the aforesaid failings (Samson vs.
Yateo, August 28,1958; 104 PMI. 378).

V.

Finally on the merits of this case, petitioners would have this Court review and reverse the conclusions of fact of the Court
of Appeals. As a general rule, this is a function this Court does not undertake. The established principle is that the factual
findings of the Court of Appeals are final and may not be reviewed on appeal to this Court; except: (1) when the
conclusion is grounded entirely on speculation, surmises and conjectures; (2) when the inference is manifestly mistaken,
absurd and impossible; (3) where there is grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the Court in making its findings went beyond the issues of the case, and the same
are contrary to the admissions of both the apellant and the appellee; (6) when the findings of the Appellate Court are
contrary to those of the trial court; (7) when the findings are without citation of specific evidence on which they are
based (Manlapaz vs. C.A., 147 SCRA 238-239 [1987]; Guita vs. C.A., 139 SCRA 576 [1985]; Sacay vs. Sandiganbayan, 147
SCRA 593 [1986]).

It is readily evident that this case falls within one of the recognized exceptions to the rule, specifically that the findings of
the Appellate Court are contrary to those of the trial court.

At the trial, the lower court in evaluating the evidence presented by the complainants is of the view that the testimony
alone of Andrea Jongco is sufficient to totally discredit not only her testimony but also her entire case. Aside from being
inherently improbable and the merit of her claim being adversely affected by her testimony and her long delay in
bringing action, her testimony is contradicted by the testimonies of Jose, Zoilo and Pilar who are brothers and sister of the
deceased Antonio Alberto and who have no pecuniary interest whatsoever in the outcome of the controversy. They
testified that during the period Andrea Jongco claimed that Antonio Alberto, Sr. lived with her, the deceased in fact
lived with his mother and brothers at the family residence except for his brief stint with the army (Decision, Civil Case No.
44164; Record on appeal, pp. 111-112).

More than that, the trial court found among others, that Andrea Jongco has had five children (aside from her son
Antonio) with four different men. The assumption, therefore, is that she lived with at least four different men without being
married to any of them. Thus, the trial court aptly ruled that his propensity to promiscuous relationship with different men,
render it unjust to state with definiteness that any particular person is the father of any one of her children." (Ibid, p. 121).

Other witnesses are Eufracia Cailan who allegedly took care of Antonio, the father, since the latter was a child and then
of Antonio, the alleged son, and Encarnacion Peralta, an alleged former lessor of Andrea Jongco and Antonio Alberto.
Their testimonies were, however, found by the trial court to be inherently improbable, inconsistent with human
experience and deliberately invented to conform with the testimony of Andrea Jongco (Ibid, pp. 109-117).

On the other hand, the Court of Appeals in its decision gave more credence to the testimonies of Eufracia Cailan and
Encarnacion Peralta and declared that their testimonies have sufficiently established the fact that Antonio J. Alberto, Jr.
is the son of the late Antonio C. Alberto and Andrea Jongco which finds further proof in the birth certificate and the
baptismal certificate of Alberto, Jr. (Rollo, pp. 6-11).

In this connection, it must be stated that in the case of Reyes vs. Court of Appeals, 135 SCRA 439 (1985), this Court, citing
the cases of Bercilles vs. GSIS, 128 SCRA 53; People vs. Villeza, 127 SCRA 349; Cid vs. Burnaman, 24 SCRA
434; Vudaurrazaga vs. C.A., 91 Phil. 492; and Capistrano vs. Gabino, 8 Phil. 135, ruled that a birth certificate not signed by
the alleged father therein indicated, like in the instant case, is not competent evidence of paternity.

In casting doubt upon the credibility of petitioner Natividad's testimony, the Court of Appeals pointed out her serious
inconsistency on material points such as her claim that she was married to the deceased in 1941 and her later admission
in the answer that they were married in 1944.

The record shows, however, that both admissions were correct, the first marriage was a secret civil marriage celebrated
in Pililla, Rizal while the second was a religious ratification of the former. The lack of marriage certificate as evidence was
also considered by the Court of Appeals as an impairment of credibility despite a certification to the effect that all pre-
war records in the Municipality of Pililla, Rizal were destroyed during the last war. Said Appellate Court is of the view that
if they did plan to marry secretly at that time, they could have chosen a city or municipality near Manila and that Pililla
must have been chosen as the place of the supposed marriage so that petitioners could have an apparent good
reason for the non-presentation of the marriage certificate.

As aptly argued by the petitioners, such conclusion is purely conjectural. Besides petitioners' reasons for the choice of
that place, the celebration of the marriage was positively confirmed by Damaso Herrera, one of the sponsors thereof.

In any event, it is a fundamental rule that conclusions and findings of fact by the trial court are entitled to great weight
on appeal and should not be disturbed unless for strong and cogent reasons because the trial court is in a better
position to examine real evidence, as well as to observe the demeanor of the witnesses while testifying in the case
(People vs. Pimentel, 147 SCRA 29, 30 [19871; People vs. Grefiel, 125 SCRA 108 [1983]; Chase vs. Buencamino, 136 SCRA
381 [1985]; People vs. Fernandez, 124 SCRA 248 (1983]; Olangco vs. C.F.I. of Misamis Oriental, 121 SCRA 338 [1983];
Minuchechi vs. C.A., 129 SCRA 479 [1984]).

After a careful review of the records and the evidence presented by the contending parties, no cogent reasons could
be found to justify the reversal of the findings of the trial court.

In view of the foregoing, there appears to be no need to discuss the last two assignments of errors.

WHEREFORE, the assailed decision of the Court of Appeals is hereby Reversed and the decision of the trial court is
Reinstated. No costs.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Cortes, JJ., concur.

Footnotes

** Penned by Justice Carmelino J. Alvendia and concurred in by Justices Julio Villamor and Ruperto
G. Martin.

*** Penned by Judge Francisco Arca.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-33659 June 14, 1990

VICTORIA U. BALUYUT, MA. THERESA U. BALUYUT and MA. FLORDELIZA U. BALUYUT, all minors, represented by their mother
and guardian ad litem, NORMA URBANO, petitioners,
vs.
FELICEDAD S. BALUYUT and HON. COURT OF APPEALS, respondents.

Note: The family name Baluyut appears as Baluyot is some pleadings.

Donald E. Asis for the Administratrix

MEDIALDEA, J.:

This is a petition for certiorari filed by Victoria and Ma. Flordeliza, all surnamed Baluyot, then minors, represented by their
mother and guardian ad litem, Norma Urbana which seeks the reversal of the decision of the Court of Appeals in CA-
G.R. No. 38069-R entitled "Felicidad S. Baluyut, Administratrix-Appellant v. Victoria U. Baluyut, et al., Intervenors-
Appellees." The decision brought to this court for review reversed the decision of the Court of First Instance of Pampanga
(now Regional Trial Court) and dismissed the petition for intervention filed by petitioners in the trial court.

In Special Proceedings No. 1835, entitled "Intestate Estate of Deceased Enrique Baluyut,' filed before the Court of First
Instance of Pampanga, herein petitioners filed on April 29, 1965 a petition for intervention. The petition alleged that
petitioners have a legal interest in the estate of the deceased Enrique M. Baluyut; that petitioners-minors are the
illegitimate children of the deceased, begotten out of wedlock by said deceased and petitioners' mother and
guardian ad litem Norma Urbano; that petitioners were conceived and born at the time when Norma Urbano cohabited
with the deceased while the latter was already married to Felicidad S. Baluyut; that they were in continuous possession
and enjoyment of the status of children of the deceased during his lifetime by direct overt acts of said deceased having
supported and maintained them. The petitioners also alleged that they were deliberately excluded from the estate of
Enrique M. Baluyut (pp. 10-18, Record on Appeal).

Felicidad S. Baluyut, widow of Enrique and appointed administratrix of his estate, opposed the petition for intervention (p.
20, Record on Appeal). On May 8, 1965 (pp. 18-19, Record on Appeal), the trial court issued an order allowing the
petitioners to intervene.

After trial, a decision (pp. 24-31, Record on Appeal) was rendered declaring the intervenors Victoria, Ma. Theresa and
Ma. Flordeliza the forced heirs of deceased Enrique Baluyut and ordering administratrix Felicidad Vda. de Baluyut to pay
P150.00 monthly support to Norma Urbano, guardian ad litem for the three minor children. The dispositive portion of the
decision reads:

WHEREFORE, the Court hereby orders:

1) FELICIDAD VDA. DE BALUYUT, the administratrix to pay P150.00 as monthly support out of the Estate
of Enrique Baluyut to Norma Urbano guardian ad litem for the three minor children, Victoria, Theresa
and Flordeliza Baluyut.
 2) That under Art. 887, (5) New Civil Code said children are forced heirs of the late Enrique Baluyut.

3) That they are entitled to their hereditary rights in said Estate of Enrique Baluyut under the provisions
of the New Civil Code (pp. 29-30, Record on Appeal).

On February 15, 1966, the administratrix filed a Notice of Appeal from the trial court's decision. On February 22, 1966, the
intervenors filed their Objection to Appeal and Motion for Execution. The latter motion was based on the pronouncement
in Salazar v. Salazar, L-5823, April 29, 1953, that an order granting support pendente lite is final and executory.

On May 4,1986, the trial court issued an order (p. 37, Record on Appeal) declaring that it considers intervenors' motion for
execution as a motion for reconsideration and amended the decision to the effect that it granted the minors Victoria,
Theresa and Flordeliza monthly support pendente lite in the amount of P150.00 payable every first day of the month to
their guardian ad litem Norma Urbano.

On April 22, 1971, the Court of Appeals rendered judgment (pp. 19-41, Rollo) reversing the decision of the trial court. The
dispositive portion of the decision states:

WHEREFORE, the appealed judgment is hereby reversed and the intervenors' petition in intervention is
hereby declared dismissed, without costs. The order granting alimony pendente lite to the intervenors
is hereby set aside. (p. 41, Rollo)

Petitioners' motion for reconsideration of respondent Court of Appeals' decision was denied on May 24, 1971 (p.
53, Rollo). Hence, the instant petition for review on certiorari filed on June 19, 1971.

On June 23, 1971, We gave due course to the petition (p. 57, Rollo). On July 1, 1971, We required the petitioners to file
their brief (p. 58, Rollo). Respondents, on the other hand, filed their brief on October 28, 1971 (p. 85, Rollo). On December
17, 1971, the petition was considered submitted for decision (p. 87, Rollo).

On June 3, 1975, petitioners filed a "Motion and Manifestation" praying for the reinstatement of the order of the trial court
to grant the petitioners monthly support during the pendency of the case. The said order for monthly support granted by
the trial court in its decision of May 4, 1966 was terminated in the early part of 1971 (p. 90, Rollo). When asked to
comment on the manifestation and motion of petitioners, respondents opposed said motion in view of respondent Court
of appeals' finding that petitioners were not the recognized spurious children of deceased Baluyut (p. 113, Rollo).

On November 25, 1976, We granted petitioner's motion for continuation of their monthly support pendente lite effective
June 1975 until further orders (p. 141, Rollo). After an exchange of pleadings by the parties regarding the order of this
court on the matter of the continuation of petitioners' support pendente lite, and after a motion filed by petitioners to cite
administratrix for contempt, private respondents filed a manifestation on January 6,1978, informing this Court that: 1) the
former administratrix Felicidad S. Baluyut was substituted by one of her daughters, Milagros B. Villar, as Special
Administratrix; and that 2) they have complied with the September 13, 1977 resolution of the court requiring them to show
cause why they should not be dealt with as in contempt for failing to obey the order to pay petitioners a monthly
support pendente lite. Private respondents also manifested their compliance by depositing with the then Court of First
Instance of Pampanga, Branch 1, a Philippine Commercial and Industrial Bank check in the amount of P4,350.00
representing the required support until October, 1977. Another PCIB check in the amount of P300.00 representing
support pendente lite for November and December, 1977 was also deposited with the trial court (p. 335, Rollo).

On February 19, 1980, petitioners, assisted by their guardian ad litem and private respondent Administratrix Milagros B.
Villar, both parties assisted by their respective counsel, filed a Joint Motion to Dismiss the petition in view of petitioners
'filing of a "Petition for Withdrawal of Intervention" with the Court of First Instance of Pampanga taking cognizance of the
Intestate Estate of Enrique Baluyut. The petition for withdrawal was based on a waiver by petitioners of any right or interest
they may have on the estate of the deceased in consideration of the financial assistance granted them by the
administratrix of the estate (p. 371, Rollo). The petition for withdrawal of intervention was approved by the intestate court
on February 14, 1980 (p. 369, Rollo), while the Joint Motion to Dismiss the instant petition was noted by this court on April
3, 1981 (p. 372, Rollo).

The withdrawal of intervention in consideration of the financial assistance extended to petitioners by the administratrix of
the estate of the deceased Enrique M. Baluyut (p. 37, Rollo) is in the nature of a compromise settlement of the instant
petition (p. 371, Rollo). Considering, however, that the issue involved in this case is whether or not petitioners, Victoria,
Ma. Theresa and Ma. Flordeliza, all surnamed Baluyut are the acknowledged, spurious children of the deceased, Enrique
M. Baluyut, the Joint Motion to Dismiss the instant petition cannot be granted, acknowledgment, affecting as it does the
civil status of persons and of future support cannot be the subject of a compromise (pars. 1 and 4, Article 2035 of the Civil
Code). (See Advincula v. Advincula, L-19065, January 31, 1964).

The trial court found that petitioners are the illegitimate children of the deceased Enrique M. Baluyut. This finding was
shared by respondent Court of Appeals:

... the testimony of Norma Urbana supported by that of Liberata Vasquez on the one hand as against
that of the administratrix who declared that she and her late husband were always together and that
of Cecilia Waters who testified that Norma had a suitor named Lieut. Alex on the other, leads us to give
credence to the proof of the intervenors specifically the testimony of Norma that the intervenors are in
fact her illegitimate children with the late Enrique M. Baluyut (p. 35, Rollo).

However, proof of filiation of the petitioners to the late Enrique M. Baluyut is not sufficient to confer upon them any
hereditary right in the estate of the deceased. What is necessary to be established by an illegitimate not natural child in
order that he may be entitled to successional rights under Article 887 of the New Civil Code, is not the fact of his bare
filiation but a filiation acknowledged by the putative parent. This has been the consistent pronouncement of this Court
since the reversal of the pronouncement in Reyes, et al. v. Zuzuarregui, et al., 102 Phil. 346 by the pronouncement in the
case of Paulino v. Paulino, 113 Phil. 697, 700, 701, 702. In the Paulino case, it was held:

An illegitimate (spurious) child to be entitled to support and successional rights from his putative or
presumed parents must prove his filiation to them. Filiation may be established by the voluntary or
compulsory recognition of the illegitimate (spurious) child. Recognition is voluntary when "made in the
record of birth, a will, a statement before a court of record, or in any authentic writing." It is
compulsory when by court action the child brings about his recognition. ...

xxx xxx xxx

It is true that by their motion to dismiss the appellees are deemed to have admitted that the appellant
is the illegitimate spurious, not natural child of the deceased Marcos Paulino. Such an admission,
however, does not entitle her to inherit from her alleged putative father. It is necessary to allege that
her putative father had acknowledged and recognized her as such. Such acknowledgment is
essential and is the basis other right to inherit. There being no allegation of such acknowledgment the
action becomes one to compel recognition which cannot be brought after the death of the putative
father.

This was reiterated in the case of Republic v. Workmen's Compensation Commission, 121 Phil. 261, where this Court held
that:

... the illegitimate (spurious) child, to be entitled to support and successional rights from his parents,
must prove his filiation and this may be done by means of voluntary or compulsory recognition of the
relationship. For this purpose, the provisions concerning natural children are held applicable. ...

There are two modes of acknowledgment provided in the New Civil Code; one, by the voluntary recognition by the
putative parent made in the record of birth, a statement before the court of record, or in any authentic writing (Art. 278,
New Civil Code) and two, by compulsory recognition under Article 283 of the same law.

Were the petitioners voluntarily recognized by the late Enrique M. Baluyut as his illegitimate spurious children?

There is no evidence as required by Article 278 which proves that the petitioners were recognized by the deceased
during his lifetime as his spurious children. The petitioners' records of birth, although in the name of Enrique Baluyut, were
not signed by the latter. There was no authentic writing presented nor any statement in a court of record which would
prove that the petitioners were recognized by the deceased.

With regard to compulsory recognition, Article 283 enumerates the cases where the father is obliged to recognize the
child as his, namely: a) in cases of rape, abduction or seduction, when the period of the offense coincides more or less
with that of the conception; b) when the child is in continuous possession of the status of a child of the alleged father by
the direct acts of the latter or his family; c) when the child was conceived during the time when the mother cohabited
with the supposed father; d) when the child has in his favor any evidence or proof that the defendant is his father.
The grounds relied upon by petitioners for compelling the heirs of Baluyut to recognize them as the heirs of the deceased
were the alleged possession by the petitioners of the status of recognized illegitimate spurious children and that they
were conceived at the time when their mother cohabited with the deceased. Since the petitioners were still minors at the
time of the death of Enrique M. Baluyut, the action for compulsory recognition was correctly filed by petitioners'
guardian ad litem and mother, Norma Urbano. However, as correctly pointed out by respondent appellate court, since
the recognition sought in the case is compulsory, strictness in the application of the rules applies. We agree with
respondent appellate court that the evidence presented by petitioners failed to satisfy the high standard of proof
required for the success of their action for compulsory recognition. Respondent court held:

The combined testimony of Norma Urbano and her witness Liberata Vasquez insofar as the issue of
recognition is concerned tends to show that Norma was kept by the late Enrique M. Baluyut as his
mistress first in the house of Liberata and then in a house supposedly rented from one Lacuna. But this
Lacuna was not even presented to testify in support of the claim of Norma and Liberate that Baluyut
rented his house for Norma. And, according to Norma and Liberata, Baluyut visited Norma some twice
a week in the house where she kept her as his mistress; that Baluyut paid the hospital bills for the
delivery of the two younger children of Norma. But, according to Liberata herself, it was not Baluyut
who personally paid the hospital bills but he gave the money for the payment of the hospital bills to
Liberato and he requested her to pay the money to the hospital. This only shows that Baluyut was
hiding his Identity as the father of the children of Norma, an act which is inconsistent with recognizing
such children as his own.

If Enrique did not want to hide being the father of the intervenors who were born at the Ortanez
hospital, there was no need for him to ask Liberata to pay the hospital bill of Norma for the delivery of
her youngest child as Baluyut could have easily done this himself. There is not even evidence showing
that he visited Norma at the hospital when she delivered there. Coupled with the circumstance that
Enrique tried to hide his being the father of the intervenors, there is absence of positive and convincing
proof that Enrique treated the intervenors as his children in all relations in society and in life. Far from
treating them in society as his children, he was hiding Norma and the intervenors from society and
visited them only once in a while evidently only to satisfy his sexual urge with Norma but with no
genuine desire to have and treat the intervenors so as to confer on them the continuous possession of
the status of recognized illegitimate (not natural) children. There is not even any proof that he had
brought out these intervenors to show them publicly as his children. With the single exception of
Liberata Vasquez, not a single neighbor of Norma in the rather populous area of Project 4, Quezon
City, was produced to testify on any act of Enrique to show his genuine desire to treat the intervenors
as his very own in his actual relations. The foregoing deficiencies in the intervenors' proof is fatal to
their case.

In order to prove the continuous possession of the status of a natural child, the acts
must be of such a nature that they reveal, not only the conviction of paternity, but
also the apparent desire to have and treat the child as such in all relations in
society and in life, not accidentally, but continuously' (Igar, et al. vs. Vda. de
Balingkit, CA, 60 O.G. 7792; Onos, et al. vs. Vda. de Onos, CA-G.R. No. 24646-R, July
22, 1964).

The birth certificates Exhibits 'A,' 'B' and 'C' of the intervenors do not help their case for these are not
evidence of recognized filiation by the deceased Enrique Baluyut because, firstly, they were admitted
in evidence by the lower court merely as part of the of the witnesses who referred to them in the
course of said witnesses' testimony and hence, they are not evidence of the facts stated in them.
Secondly, they are merely evidence of the fact that gave rise to their execution, that is, the fact of
birth and nothing else, much leas of recognition as they are not signed by Enrique Baluyut.

In an action for compulsory acknowledgment under paragraph 4, Article 283 of the

Civil Code, a birth certificate which, on its face, was not signed by the supposed
natural father is incompetent evidence on paternity, being in violation of oration 5
of Act 3753 and Article 280 of the Civil Code' (Roces vs. Local Civil Registrar, 54
O.G. 4950; Crisolo va. Macadaong, No. L-7017, April 19, 1964; Bernabe, etc. vs.
Lacodin, CA, 59 O.G. 3178).

If birth certificates, which are unsigned by the presumed father as required by

section 5 of Act No. 3752 and Article 280 of the Civil Code, are incompetent
evidence even to prove paternity alone, with more reason are birth certificates
incompetent evidence to prove recognized filiation. (pp. 36-39, Rollo)
Petitioners would have Us relax Our rule on strictness of the application of law regarding compulsory recognition as first
laid down in the Javellana v. Monteclaro, 74 Phil. 393. They opined that the said case was in fact the forerunner of the
liberal view that has found its way into the present provisions of the New Civil Code governing paternity and recognition.

Petitioners failed to grasp the import of this Court's ruling in the Javellana case. That the case was the forerunner of the
liberal view that has found its way into our statute books, is true. But, the rule of liberality enunciated therein applied only
to case involving voluntary recognition specifically in a public document and not to cases of compulsory recognition.
Thus,

Upon the second point, whether a voluntary acknowledgment may be done incidentally in a public
document, a distinction must be made between the two kinds of acknowledgment: (1) voluntary, and
(2) compulsory. In the former, recognition may be incidental, but in the latter, it must be direct and
express.

In actions to compel the alleged father to acknowledge his natural child, based upon recognition in
an indubitable writing, article 135, par. 1, of the Civil Code, requires that the father must expressly
recognize his paternity. This provision has been strictly construed by Spanish and Philippine
jurisprudence against the alleged natural child. Thus, in the Sentence of July 5,1906, the Supreme
Tribunal of Spain held in an action to compel acknowledgment under article 135, that a mere allusion,
more or leas clear, by the alleged father to his supposed child, if there is no express recognition of his
paternity, is not sufficient. In the Sentence of April 8,1915, that same Tribunal declared that there
should be an indubitable documentary proof or uninterrupted on of the status of a natural child,
excluding deductions and conjectures. As to Philippine cases, the same rule has been adhered to in
several decisions by this court. Thus, in Benedicto vs. De la Rama, 4 Phil., 746, an action was filed to
compel recognition of a natural child, based in part on a letter of defendant telling the mother of his
affection toward her and asking her to take care of the child. This court held that the letter did not
expressly recognize the child, under article 135. In Buenaventura vs. Urbano, 5 Phil. 1, the alleged
father wrote the child a letter advising him how to conduct himself. This court held that the letter did
not contain an-express recognition under article 135.

But while in actions to compel recognition the foregoing principle is true with respect to indubitable
writings according to article 135, par. 1 of the Civil Code, however, in cases of voluntary
acknowledgment in a public document under article 131, the law is more liberal and permits an
incidental recognition. ... (Javellana, et al. v. Monteclaro, et al., 74 Phils. 393)

ACCORDINGLY, the decision appealed from is AFFIRMED. No costs.

SO ORDERED.

Narvasa (Chairman), Cruz and Gancayco, JJ., concur.

Griño-Aquino, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 63680 March 23, 1990

JACOBA T. PATERNO, TOMAS T. PATERNO, and MARIA LUCIA PATERNO, petitioners,

vs.
BEATRIZ PATERNO, BERNARDO PATERNO and the INTERMEDIATE APPELLATE COURT, respondents.

Cruz, Cases, Cabaltera & Associates for petitioners. Bausa, Ampil, Suarez, Paredes & Bausa for respondents.
NARVASA, J.:

In the Juvenile and Domestic Relations Court of Manila, now defunct, there was filed by Feliza Orihuela, as guardian ad
litem of her children, Beatriz Paterno and Bernardo Paterno, a complaint 1 praying that the latter be declared illegitimate
(adulterous) children of, and consequently entitled to inherit from, the deceased Jose P. Paterno. According to Feliza,
Beatriz and Bernardo had been begotten of her illicit liaison with Jose P. Paterno, a married man, and should thus be
counted among the latter's compulsory heirs in accordance with Article 887 2 of the Civil Code. Feliza prayed in her
complaint for: (1) the invalidation of the extrajudicial partition of Jose Paterno's estate executed by his Widow, Jacoba T.
Paterno, and his legitimate children, Luis T. Paterno, Vicente T. Paterno, Tomas T. Paterno, Susana T. Paterno and Maria
Lucia T. Paterno, said partition having deprived the minor plaintiffs of their legitimes; (2) the extension to Beatriz and
Bernardo of support; and (3) the payment to them of actual, moral and exemplary damages, as well as attorney's fees. 3

The answer with counterclaim filed for the widow and her children aforenamed inter alia asserted as affirmative defense
that the "plaintiffs are guilty of laches as they should have exercised their right of action, if any, against the deceased Dr.
Jose P. Paterno during his lifetime in order to give the latter an opportunity to admit or deny the same, death having
sealed his lips." 4

It appears that "upon defendants" filing their answer, the Honorable N. Almeda-Lopez started reception of plaintiffs
'evidence. However, on January 11, 1964, prior to a scheduled continuation of the hearing, the Honorable Judge C.
Juliano Agrava who x x (succeeded Judge Almeda-Lopez) required the parties to show cause why the case should not
be dismissed for lack of jurisdiction. On April 4, 1964, and after both parties had submitted their respective memoranda,
the court finally ordered the dismissal of the case, for the reason that where an illegitimate child seeks to participate in
the estate of the deceased putative father, the action becomes essentially one for recovery of plaintiffs' supposed share
in the estate and the question of paternity becomes merely an incident thereto. As the main issue falls within the
jurisdiction of the ordinary courts, the incidental question of paternity should also be resolved therein, if the splitting of
causes of action is to be avoided. ...." 5

The plaintiffs perfected an appeal to this Court, which was docketed as G.R. No. L-23060. The appeal resulted in the
reversal of the challenged order. In a decision rendered on June 30, 1967, this Court set aside "the order of dismissal
appealed from, insofar as it affects the issue of paternity," and returned the case "to the Juvenile and Domestic Relations
Court for determination of that particular issue." Said the Court: 6

... The issue to be determined ... is which of plaintiffs' claim (filiation or participation [in the decedent's
estate]) constitutes the main cause and which is merely an incident thereto.

xx

... Clearly before the claim to participate in the estate may be prosecuted, plaintiffs' right to succeed
must first be established. Differently stated, plaintiffs' main action is that for recognition of their status as
illegitimate children of the deceased, upon which the right to share in the hereditary estate of the
putative father would rest. (This matter is without doubt within the jurisdiction of the JDRC.) ...

In granting to the Juvenile and Domestic Relations Court 'such incidental powers generally possessed
by the court of first instance,' the law x x (however) could not have intended to confer on this special
tribunal jurisdiction over all subject matter cognizable by the ordinary court of first instance. The term
'incidental powers' must refer to the authority to issue such orders or writs and take such measures as
might be necessary to carry out the functions of the Juvenile and Domestic Relations Court. (Hence,
the matter of the participation in the estate of the decedent is not within its competence; it is within
the jurisdiction of the court of first instance.)

The above conclusion will not constitute a violation of the rule against splitting of cause of action. The prohibition
provided in the Rules of Court is against the institution of more than one suit for a single cause of action, (Sec. 3, Rule 2
...). But, as alleged in the complaint, the bases for plaintiffs' various claims would not be the same. By the creation of the
Juvenile and Domestic Relations Court, with its exclusive jurisdiction over cases involving paternity and acknowledgment,
recognition of children and recovery of hereditary shares can no longer be properly joined as cause of action, since
each lies within the jurisdiction of a different tribunal.

The case having been thereafter remanded to and tried by the Juvenile and Domestic Relations Court (JDRC), that
Court rendered judgment on April 14, 1970 dismissing the complaint on the ground of prescription, its view being that the
action for compulsory recognition should have been commenced within the lifetime of the alleged father, and on the
ground that plaintiffs had failed to present "clear, strong and convincing" evidence of their filiation. 7Dismissed as well
was the defendants' counterclaim. The plaintiffs elevated the case to the Court of Appeals, 8where basically, they
imputed to the JDRC two (2) errors, 9 to wit:

1) holding that they (plaintiffs) had lost whatever right of action they might otherwise have had, when
they failed to file the corresponding action during the lifetime of their putative parent, Jose P. Paterno;
and

2) ruling that plaintiffs' evidence was in part incompetent and in any event did not constitute "clear,
strong and convincing proof' of plaintiffs' filiation.

The Court of Appeals reversed the judgment of the JDRC. In a decision promulgated on August 16, 1982, 10 said Court,
after an extensive review of the evidence adduced by the parties before the JDRC — observing in this connection that
as against the plaintiffs'(illegitimate children's) "witnesses and documentary evidence, Mrs. Jacoba Paterno, widow of
the decedent, stood alone to deny the claim of the plaintiffs-appellants" — reached the following conclusions:

It is true there appear to be certain inconsistencies in plaintiffs' evidence as pointed out by the trial
court, but in the final analysis, these inconsistencies are only minor matters winch, to Our mind, instead
strengthened the entire plaintiffs' evidence. Had these witnesses been very elaborate, thorough and
precise, We would have entertain(ed) some doubts. In fact, the evidence is so convincing, clear,
positive that We noted that, after trial and assessment of the evidence, the trial court was
constrained, perhaps, in consonance with its conscience, to admit that 'in evaluating plaintiffs'
evidence ... the court cannot definitely state that their (plaintiffs') claim is false. 'The trial court was
convinced that plaintiffs-appellants Beatriz and Bernardo and Virginia are the children of Dr. Jose P.
Paterno, but being of the opinion that spurious children's right of action to compel recognition as such
is lost forever upon the demise of the putative father, found against the plaintiffs.

We hold, after going over the records, that there are sufficient evidence, clear and convincing,
establishing the filiation of plaintiffs appellants Beatriz and Bernardo Paterno as spurious children of
Dr.Jose P. Paterno; that Jose P. Paterno died when they were still minors and the present action for the
establishment of their filiation to Dr. Jose P. Paterno was filed before they reach(ed) the age of
majority and within the period of limitation, within which cases of this nature should be instituted to
establish paternity and filiation. 11

WHEREFORE, finding the Court a quo in error, the decision appealed from is hereby REVERSED and
another one entered, declaring plaintiffs-appellants Beatriz and Bernardo Paterno
illegitimate(spurious) children of Dr. Jose P. Paterno, deceased, begotten out of wedlock with Felisa
Orihuela (who is herein appointed guardian ad litem) conceived and born when the deceased was
cohabiting with the latter, (and) having enjoyed and continued possessing the status as children of
the deceased Dr. Jose P. Paterno.

We are not in a position to pass on, much less, grant the other prayers of the appellants contained in
their brief except as to costs, inasmuch as the directive of Our Supreme Court in the case
of Paterno,et al. vs. Paterno, et al., L-32060, June 30, 1964, 20 SCRA 585, returning this case to the court
of origin, specifically states:

WHEREFORE, the order of dismissal appealed from, insofar as it affects the issue of paternity is hereby
set aside, and the case returned to the Juvenile and Domestic Relations Court for determination of
that particular issue.

Mrs. Jacoba T. Paterno, the widow, and her legitimate children have appealed to this Court on certiorari. In these
proceedings, they claim that the Court of Appeals erred in —

1) holding the evidence of the enjoyment by Beatriz and Bernardo Paterno of the status of children of
the deceased Jose Paterno, to be strong, clear and convincing;

2) failing to take account of —

a) the suspicious nature of the alleged letter of the decedent to Feliza, mother of Beatriz and
Bernardo (Exh. G), it being in English although Felisa was "not adequately conversant in English;"
 b) the suspect character of Beatriz's alleged baptismal certificate in that it "does not even state the
given name" (Exh. B);

c) he lack of specific evidence of cohabitation between the decedent and Feliza during the periods
of conception of their alleged children;

d) the "contradictory and conflicting evidence on direct acts by petitioner vis-a-vis the status of
private respondents;"

3) failing to apply the doctrine in Clemena v. Clemena, 24 SCRA (1968), 720, to the effect that doubts
in paternity suits are resolved against the claimant.

Such questions as whether certain items of evidence should be accorded probative value or weight, or rejected as
feeble or spurious, or whether or not the proofs on one side or the other are clear and convincing and adequate to
establish a proposition in issue, are without doubt questions of fact. 12 Whether or not the body of proofs presented by a
party, weighed and analyzed in relation to contrary evidence submitted by adverse party, may be said to be strong,
clear and convincing; whether or not certain documents presented by one side should be accorded full faith and credit
in the face of protests as to their spurious character by the other side; whether or not inconsistencies in the body of
proofs of a party are of such gravity as to justify refusing to give said proofs weight — all these are issues of fact.
Questions like these are not reviewable by this Court which, as a rule, confines its review of cases decided by the Court
of Appeals only to questions of law raised in the petition and therein distinctly set forth. 13 But it is questions of this type
which the petitioners have precisely submitted for resolution to this Court. Therefore, in accordance with established rule
and practice, those issues will not be considered by this Court, the resolutions thereon by the Court of Appeals being
final. 14

It may however be noted in passing that, as recapitulated in painstaking detail in the Decision of the Court of
Appeals, 15 the dovetailing and mutually corroborative testimony of the private respondents, their mother Felisa Orihuela,
and Teresa Miranda and Anselmo Macapinlac, the late Dr. Jose P. Pateno's retainers to whose care and company he
entrusted his illegitimate family, does indeed compel acceptance of the fact that from their birth until Dr. Pateno's
death, said respondents were treated as, and enjoyed the status of, his children by blood.

The gist of that testimony is to the effect that Dr. Paterno had borne the expenses of the birth and baptism of said
children, who were born in the same year (1938) within eleven months of each other; that in that year, after the birth of
the first child, Beatriz, mother and daughter had moved from A. Luna in San Juan, Rizal, to Rubi Street in San Andres
Bukid, Manila, where the second child, Bernardo, and a third, Virginia, who died at four, were born; that in 1940, the
family moved to a house in A. Lake Street in San Juan, Rizal purchased by Dr. Paterno; that in both places, they had lived
with and been maintained by Dr. Paterno in the company of the Miranda and Macapinlac families; that shortly before
the outbreak of the war in December 1941, Dr. Paterno left for Hongkong where he stayed until war's end; that in his
absence, mother and children received monthly support from Don Vicente Madrigal at the instance of Dr. Paterno who
was Madrigal's brother-in-law; that for sometime after Liberation, they lived in the Madrigal compound in Gen. Luna,
Paco, Manila; that when Dr. Paterno thereafter returned to the Philippines and until he again left for Hongkong, he lived
with mother and children, first in Antipolo, Rizal and later in Marilao, Bulacan; that when Felisa decided to get married —
this while Dr. Paterno was in Hongkong on his second sojourn there — she sought and received the forgiveness of his wife,
Dona Jacoba, who even consented to act as sponsor at her wedding; that when Dr. Paterno returned once more from
Hongkong, to be assigned to the Madrigal cement plant in Binangonan, Rizal, he made it a point to see that Beatriz and
Bernardo went or were brought to visit him, especially during weekends, and on these occasions, he and the children
slept in his room in the same bed, he would tell them to come or send word to him for anything they might need, and
would give them money when they left; that Beatriz, then about thirteen or fourteen, was being sent to school in Sta.
Isabel College by Dr. Paterno, who did the same for Bernardo, who was enrolled at the University of Santo Tomas; that
these reunions continued until he fell ill and had to keep to his house in Mendoza St., Quiapo, Manila, and Doña Jacoba
forbade the children to see him on the excuse that he might suffer a relapse; that on the some five occasions that they
tried to see Dr. Paterno in his residence while he lay sick, the children were given money by Doña Jacoba upon leaving;
and that after his death and burial, Doña Jacoba gave them money for their tuition.

Hence, even if, against all applicable law and precedent, this Court were minded to substitute its own assessment of
such testimony, as supported by the documents also presented by the private respondents, for that of the Court of
Appeals, it would reach no different conclusion. True, certain inconsistencies may be noted in the testimony given by the
witnesses for the private respondents, but it is on the whole unanimous and consistent as to the really crucial fact that Dr.
Paterno treated and acted towards said respondents, from their birth onward, in a manner only a real father would and
leaving little doubt that he recognized and considered them as in truth his children. The simple denials of the widow,
petitioner Jacoba T. Paterno, do not suffice to refute such proof.
The action for recognition (or to establish filiation) having been timely filed-having been instituted after the demise of the
putative parent and before the attainment of the age of majority of the children concerned-and the ground invoked
therefor having been satisfactorily proven, 16 the Court of Appeals committed no error in declaring and confirming the
status of the private respondents as illegitimate children of the late Dr.Jose P. Paterno.

WHEREFORE, the appealed judgment of the Court of Appeals is AFFIRMED, with costs against the petitioners.

SO ORDERED.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1 Docketed as Case No. 01124, N.B. The action was first instituted in the Manila Court of First Instance,
where it was docketed as-Civil Case No. 33467. It was however "dismissed on the jurisdictional ground
that the issue of paternity should be determined by ... (the Juvenile & Domestic Relations) Court" (rollo,
P. 16).

2 Which specifies, among the compulsory heirs entitled to share in the legitimate, "illegitimate
children," i.e., illegitimate children other than natural in accordance with article 269 and other than
natural children by legal fiction, having the right of support and "successional rights ... granted in this
Code" (Art. 287). See Castro v. C.A., et al., G.R. Nos. 50974-75, May 31, 1989 in which it is pointed out
that under the Family Code (Exec. Order No. 209, July 6, 1987, as amended by Exec. Order No. 227,
July 17, 1987), there are only two (2) classes of children, legitimate and illegitimate, and the "fine
distinctions among various types of illegitimate children have been eliminated' (Title VI) and that
illegitimate children may establish their filiation "in the same way and on the same evidence as
legitimate children" (ART. 175).

3 Rollo, p. 18-19.

4 Id., p. 19.

5 Paterno v. Paterno, 20 SCRA 585, 587-588-

6 Id., pp. 588, 589, 590-591.

7 Id., p. 21.

8 Their appeal was docketed as CA-G.R. No. 48067-R.

9 Eight (8) errors are actually set out in their brief, but these may be synthesized and reduced into two
(2).

10 Per Zosa, J., with whom concurred Busran and Coquia, JJ-

11 ART. 285, Civil Code, provides that an action for recognition of natural children may be brought
only during the lifetime of the presumed parents except inter alia if the father died during the minority
of the child, in which case the latter may file the action before the expiration of four years from the
attainment of his majority.

12 SEE Ramos v. Pepsi-Cola Bottling Co., 19 SCRA 289, 292; Sta. Ana v. Hernandez, 18 SCRA 973, 978;
Nunez v. Sandiganbayan, 100 SCRA 433; Aytona v. CA., 113 SCRA 322; Leonardo v. C.A., 120 SCRA
322; Rizal Cement Co., Inc. v. Villareal, 135 SCRA 575; Collector of Customs v. I.A.C., 137 SCRA 3; Sacay
v. Sandiganbayan, G.R. No. 66497-98, July 10, 1986; Amurao v. C.A., G.R. No. 83942, Dec. 29, 1988;
Baliwag Transit, Inc. v. C.A., G.R. No. 57493, Jan. 7, 1987; Tolentino v. C.A., et al., G.R. No. 56265, May
20, 1987.
 13 Sec. 2, Rule 45, Rules of Court.

14 Sec. 29, RA 296 (Judiciary Act of 1948) in relation to Sec. 2, Rule 45, and cases cited in footnote
11, supra; also, Pilar Development Corporation v. I.A.C. G.R. No. 72283, Dec. 12, 1986; Nakpil & Sons, et
al. v. C.A., G.R. No. 47851, Oct. 3, 1986; Republic v. I.A.C., G.R. No. 70513, Oct. 13, 1986; Director of
Lands et al. v. Funtillar, G.R. No. 68533, May 23, 1986.

15 ROLLO, pp. 28-47.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 192861 June 30, 2014

LINDA RANA, Petitioner,

vs.
TERESITA LEE WONG, SPS. SHIRLEY LEE ONG and RUBEN ANG ONG, represented by their Attorney-in-fact WILSON UY, and
SPS. ROSARIO and.WILSON UY, Respondents.

x-----------------------x

G.R. No. 192862

SPS. ROSARIO and WILSON UY, WILSON UY as attorney-in-fact of TERESITA LEE WONG, and SPS. SHIRLEY LEE ONG and
RUBEN ANG ONG, Petitioners,
vs.
SPS. REYNALDO. and LINDA RANA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Assailed in these consolidated petitions for review on certiorari1 are the Decision2 dated July 13, 2005 and the
Resolution3 dated June 18, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 78463 which affirmed the
Decision4 dated December 20, 2002 of the Regional Trial Court of Cebu City, 7th Judicial Region, Branch 22 (RTC) in Civil
Case Nos. CEB-20893 and CEB-21296.

The Facts

Teresita Lee Wong (Wong) and Spouses Shirley and Ruben Ang Ong (Sps. Ong) are co-owners pro-indivisoof a residential
land situated in Peace Valley Subdivision, Lahug, Cebu City, covered by Transfer Certificate of Title (TCT) No.
1391605 (Wong-Ong property), abutting6 a 10-meter7 wide subdivision road (subject road).

On the opposite side of the subject road, across the Wong-Ong property, are the adjacent lots of Spouses Wilson and
Rosario Uy (Sps. Uy) and Spouses Reynaldo and Linda Rana (Sps. Rana), respectively covered by TCT Nos. 1240958 (Uy
property) and T-1155699 (Rana property). The said lots follow a rolling terrain10 with the Rana property standing about two
(2) meters11 higher than and overlooking the Uy property, while the Wong-Ong property is at the same level with the
subject road.12

Sometime in 1997, Sps. Rana elevated and cemented a portion of the subject road that runs between the Rana and
Wong-Ong properties (subject portion) in order to level the said portion with their gate.13 Sps. Rana likewise backfilled a
portion (subject backfilling) of the perimeter fence separating the Rana and Uyproperties without erecting a retaining
wall that would hold the weight of the added filling materials. The matter was referred to the Office of the Barangay
Captain of Lahug14 as well as the Office of the Building Official of Cebu City (OBO),15 but to no avail.16

The RTC Proceedings

On September 19, 1997, Wong, Sps. Ong, and Sps. Uy (Wong, et al.) filed a Complaint17 for Abatement of Nuisance with
Damages against Sps. Rana before the RTC, docketed as Civil Case No. CEB-20893, seeking to: (a) declare the subject
portion as a nuisance which affected the ingress and egress of Wong and Sps. Ong to their lot "in the usual and [normal]
manner, such that they now have to practically jump from the elevated road to gain access to their lot and scale the
same elevation in order to get out";18 (b) declare the subject backfilling as a nuisance considering that it poses a clear
and present danger to the life and limb of the Uy family arising from the premature weakening of Sps. Uy’s perimeter
fence due to the seeping of rain water from the Rana property that could cause its sudden collapse;19 (c) compel Sps.
Rana to restore the subject portion to its original condition; (d) compel Sps. Rana to remove the backfilling materials
along Sps. Uy’s perimeter fence and repair the damage to the fence; and (e) pay moral and exemplary damages,
attorney’s fees, litigation expenses, and costs of suit.20

In their Answer dated October 23, 1997,21 Sps. Rana countered that prior to the construction of their residence, there was
no existing road and they merely developed the subject portion which abuts their gate in view of the rolling terrain. They
claimed thatWong and Sps. Ong do not have any need for the subject portion because their property is facing an
existing road, i.e., Justice Street. They likewise denied having undertaken any backfilling along the boundary of the Uy
property considering the natural elevation of their own property, which renders backfilling unnecessary.22

After the filing of Sps. Rana’s Answer, Wong, et al., in turn, filed a Motion for Leave to be Allowed to Bring in Heavy
Equipment23 for the intermediate development of the Wong-Ong property with a view to the use of the subject road as
access to their lot. Notwithstanding Sps. Rana’s opposition, the RTC granted Wong,et al.’s motion in an Order24dated
November 27, 1997 (November 27, 1997 Order), the dispositive portion of which reads as follows: WHEREFORE, as prayed
for, the motion is hereby GRANTED. Consequently, the plaintiffs are hereby allowed to use heavy
equipments/machineries in order to develop the area and make use of the right of way which is located between the
[Wong-Ong and Rana properties]. (Emphasis supplied)

Despite the limited tenor of the November 27, 1997 Order, Wong, et al., on May 23 and 24, 1998, proceeded to level the
subject portion, which, in the process, hampered Sps. Rana’s ingress and egress to their residence, resulting too to the
entrapment of their vehicle inside their garage.25 Feeling aggrieved, Sps. Rana, on June 19, 1998, filed a Supplemental
Answer,26 praying for: (a) the restoration of the soil, boulders, grade, contour, and level of the subject portion; and (b)
payment of moral damages, actual and consequential damages, and exemplary damages.

Meanwhile, on December 8, 1997, Sps. Rana filed with another branch of the same trial court a Complaint27 for Recovery
of Property and Damages against Sps. Uy, docketed as Civil Case No. CEB-21296. They alleged that in October 1997,
theycaused a resurvey of their property which purportedly showed that Sps. Uyencroached upon an11-square meter
(sq. m.) portion along the common boundary of their properties. Their demands for rectification as well as barangay
conciliation efforts were, however, ignored. Thus, they prayed that Sps. Uy be ordered to remove their fence along the
common boundary and return the encroached portion, as well as to pay moral damages, attorney’s fees, and litigation
expenses. After the filing of Sps. Rana’s complaint, Civil Case No. CEB-21296 was consolidated with Civil Case No. CEB-
20893.28

In response thereto, Sps. Uy filed an Answer with Counterclaim,29 averring that prior to putting up their fence, they
caused a relocation survey of their property and were, thus, confident that their fence did not encroach upon the Rana
property. In view of Sps.Rana’s complaint, they then caused another relocation survey which allegedly showed,
however, that while they encroached around 3 sq. m. of the Rana property, Sps. Rana intruded into 7 sq. m. of their
property. Hence, theyposited that they had "a bigger cause than that of [Sps. Rana] in [so] far as encroachment is
concerned."30 Accordingly, they prayed for the dismissal of Sps. Rana’s complaint with counterclaim for damages,
attorney’s fees, and litigation expenses.

In light of the foregoing, the RTC appointed three (3) commissioners to conduct a resurvey of the Uy and Rana properties
for the purpose of determining if any encroachment occurred whatsoever.31

The RTC Ruling

On December 20, 2002, the RTC rendered a Decision32 in the consolidated cases.
In Civil Case No. CEB-20893, the RTC found that: (a) Sps. Rana, without prior consultation with the subdivision owner or
their neighbors, developed to their sole advantage the subject portion consisting of one-half of the width of the 10-meter
subject road by introducing filling materials, and rip rapping the side of the road; (b) the said act denied Wong and Sps.
Ong the use of the subject portion and affected the market value of their property; (c) Sps. Uy have no intention of using
the subject portion for ingress or egress considering that theybuilt a wall fronting the same; and (d) Wong, et al.’s manner
of enforcing the November 27, 1997 Order caused damage and injury to Sps. Rana and amounted to bad faith. In view
of these findings, the RTC declared that the parties all acted in bad faith, and, therefore, no relief can be granted to
them against each other.33

Separately, however, the RTC found that the backfilling done by Sps. Rana on their property exerted pressure on the
perimeter fence of the Uy property, thereby constituting a nuisance. As such, the former were directed to construct a
retaining wall at their own expense.34 Meanwhile, in Civil Case No. CEB-21296, the RTC, despite having adopted the
findings of Atty. Reuel T. Pintor (Atty. Pintor) – a court-appointed commissioner who determined that Sps. Uy encroached
the Rana property by 2 sq. m35 – dismissed both the complaint and counterclaim for damages because of the failure
ofboth parties to substantiate their respective claims of bad faith against each other.36

Dissatisfied with the RTC’s verdict, the parties filed separate appeals with the CA.

The CA Ruling

On July 13, 2005, the CA rendered a Decision37 affirming the RTC.

With respect to Civil Case No. CEB-20893, the CA found that (a) Sps. Rana’s act of elevating and cementing the subject
portion curtailed the use and enjoyment by Wong and Sps. Ong of their properties; (b) the undue demolition of the
subject portion by Wong, et al.hampered Sps. Rana’s ingress and egress to their residence and deprived them of the use
of their vehicle which was entrapped in their garage; and (c) both parties were equally at fault in causingdamage and
injury to each other and, thus, are not entitled to the reliefs sought for.38

On the other hand, the CA found that the backfilling done by Sps. Rana on their property requires necessary works to
prevent it from jeopardizing someone’s life or limb.39

As for Civil Case No. CEB-21296, the CA sustained the dismissal of the complaint as well as the parties’ respective claims
for damages for lack of legal and factual bases.40

The parties filed separate motions for reconsideration41 which were, however, denied in the Resolution42 dated June 18,
2010, hence, the instant petitions.

The Issues Before the Court

In G.R. No. 192861, petitioner Linda Rana (Linda Rana)43 faults the RTC in (a) not finding Wong and Sps. Uyguilty of malice
and bad faith both in instituting Civil Case No. CEB-20893 and in erroneously implementing the November 27, 1997 Order,
and (b) failing or refusing to grant the reliefs initially prayed for,among others, the reconveyance of the encroached
property.44

On the other hand, in G.R. No. 192862, petitioners Wong, et al. fault the RTC in (a) applying the in pari delictodoctrine
against them and failing to abate the nuisance45 which still continues and actually exists as Sps. Rana caused the same
to be reconstructed and restored to their prejudice,46 and (b) not finding Sps. Rana guilty of bad faith in instituting Civil
Case No. CEB-21296 and ordering them to pay damages to petitioners Wong, et al.47

The Court’s Ruling

The petitions are partly meritorious.

As both petitions traverse the issues intersectingly, the Court deems it apt to proceed with its disquisition according to the
subject matters of the cases as originally filed before the RTC.

A. Civil Case No. CEB-20893

For Abatement of Nuisance and Damages.

Under Article 694 of the Civil Code, a nuisance is defined as "any act, omission, establishment, business, condition of
property, or anything else which: (1) Injures or endangers the healthor safety of others; or (2) Annoys or offends the
senses; or(3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any
public highway or street, or any body of water;or (5) Hinders or impairs the use of property." Based on case law, however,
the term "nuisance" is deemed to be "so comprehensive that it has been applied to almost all ways which have
interfered with the rights of the citizens, either in person, property, the enjoyment of his property, or his comfort."48

Article 695 of the Civil Code classifies nuisances with respect to the object or objects that they affect. In this regard, a
nuisance may either be: (a) a public nuisance (or one which "affects a community or neighborhood or any considerable
number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal"); or
(b) a private nuisance (or one "that is not included in the foregoing definition" [or, as case law puts it, one which "violates
only private rights and produces damages to but one or a few persons"]).49

Jurisprudence further classifies nuisances in relation to their legal susceptibility to summary abatement (that is, corrective
action without prior judicial permission). In this regard, a nuisance may either be: (a) a nuisance per se(or one which
"affects the immediate safety of persons and property and may be summarily abated under the undefined law of
necessity");50 or (b) a nuisance per accidens(or that which "depends upon certain conditions and circumstances, and its
existence being a question of fact, it cannot be abated without due hearing thereon ina tribunal authorized to decide
whether such a thing does in law constitute a nuisance.")51

It is a standing jurisprudentialrule that unless a nuisance is a nuisance per se, it may not be summarily abated. In Lucena
Grand Central Terminal, Inc. v. Jac Liner, Inc.,52 the Court, citing other cases on the matter, emphasized the need for
judicial intervention when the nuisance is not a nuisance per se, to wit:

In Estate of Gregoria Francisco v. Court of Appeals, this Court held:

Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without
judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and
property and may be summarily abated under the undefined law of necessity. The storage of copra in the quonset
building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of
comfort of the community. If it be a nuisance per accidensit may be so proven in a hearing conducted for thatpurpose.
It is not per sea nuisance warranting its summary abatement without judicial intervention.

In Pampanga Bus Co., Inc. v. Municipality of Tarlacwhere the appellant-municipality similarly argued that the terminal
involved therein is a nuisance that may be abated by the Municipal Council viaan ordinance, this Court held: "Suffice it
to say that in the abatement of nuisances the provisions of the Civil Code (Articles 694-707) must be observed and
followed. This appellant failed to do."53 (Emphases supplied; citations omitted)

Aside from the remedy of summary abatement which should be taken under the parameters stated in Articles 70454(for
public nuisances) and 70655 (for private nuisances) of the Civil Code, a private person whose property right was invaded
or unreasonably interfered with by the act, omission, establishment, business or condition of the property of another may
file a civil action to recover personal damages.56 Abatement may be judicially sought through a civil action therefor57 if
the pertinent requirements under the Civil Code for summary abatement, or the requisite that the nuisance is a nuisance
per se, do not concur. To note, the remedies of abatement and damages are cumulative; hence, both may be
demanded.58

In the present cases, Wong, et al. availed of the remedy of judicial abatement and damages against Sps.Rana, claiming
that both the elevated and cemented subject portionand the subject backfillingare "nuisances" caused/created by the
latter which curtailed their use and enjoyment of their properties.

With respect to the elevated and cemented subject portion, the Court finds that the same is not a nuisance per se. By its
nature, it is not injurious to the health or comfort of the community. It was built primarily to facilitate the ingress and egress
of Sps. Rana from their house which was admittedly located on a higher elevation than the subject road and the
adjoining Uy and Wong-Ong properties.Since the subject portion is not a nuisance per se(but actually a nuisance per
accidensas will be later discussed) it cannot be summarily abated. As such, Wong, et al.’s demolition of Sps. Rana’s
subject portion, which was not sanctioned under the RTC’s November 27, 1997 Order,remains unwarranted. Resultantly,
damages ought to be awarded in favor of Sps. Rana particularly that of (a) nominal damages59 – for the vindication and
recognition of Sps. Rana’s right to be heard before the court prior to Wong, et al.’sabatement of the subject portion
(erroneously perceived as a nuisance per se) – and (b) temperate damages60 – for the pecuniary loss owing to the
demolition of the subject portion, which had been established albeit uncertain as to the actual amount of loss.
Sps. Rana’s entitlement to the above-mentioned damages, however, only stands in theory.1âwphi1 This is because the
actual award thereof is precluded by the damage they themselves have caused Wong, et al. in view of their
construction of the subject portion. As the records establish, Sps. Rana, without prior consultation with Wong, et al. and to
their sole advantage, elevated and cemented almost half61 of the 10-meter wide subject road. As homeowners of
Peace Valley Subdivision, Wong, et al. maintain the rights to the unobstructed use of and free passage over the subject
road. By constructing the subject portion, Sps. Rana introduced a nuisance per accidensthat particularly transgressed
the aforesaid rights. Thus, for the vindication and recognition of Wong, et al.’srights, Sps. Rana should be similarly held
liable for nominal damages. Under Article 2216 of the Civil Code,62courts have the discretion to determine awards of
nominal and temperate damages without actual proof of pecuniary loss, as in this case. Assessing the respective
infractions of the parties herein, the Court finds it prudent to sustain the CA’s verdict offsetting the damage caused by
said parties against each other. The Court can, however, only concur with the CA in result since the latter inaccurately
applied,63 as basis for its ruling, the in pari delictoprinciple enunciated in the case of Yu Bun Guan v. Ong64 (Yu Guan).In
said case, the Court discussed the in pari delicto principle with respect to the subject matter ofinexistent and void
contracts, viz.:

Inapplicability of the in Pari Delicto Principle

The principle of in pari delictoprovides that when two parties are equally at fault, the law leaves them as they are and
denies recovery by either one of them. However, this principle does not apply with respect to inexistent and void
contracts. Said this Court in Modina v. Court of Appeals:

"The principle of in pari delicto non oritur actio denies all recovery to the guilty parties inter se. It applies to cases where
the nullity arises from the illegality of the consideration orthe purpose of the contract. When two persons are equally at
fault, the law does not relieve them. The exception to this general rule is when the principle is invoked with respect to
inexistent contracts."65 (emphasis supplied; citations omitted)

Clearly, no void or inexistent contract is hereinat issue, hence, the Court’s disagreement with the CA’s invocation of Yu
Guanin this respect.

As for the subject backfillingtouching the perimeter fence of the Uy property, records show that the said fence was not
designed to act as a retaining wall66 but merely to withhold windload and its own load.67 Both the RTC and the CA found
the subject backfilling to have added pressure on the fence,68 consequently endangering the safety of the occupants
of the Uy property, especially considering the higher elevation of the Rana property. With these findings, the Court thus
agrees with the courts a quothat there is a need for Linda Rana to construct a retaining wall69 which would bear the
weight and pressure of the filling materials introduced on their property. The Court, however, observed that neither the
RTC nor the CA specified in their respective decisions the backfilled areas which would require the retaining wall. Due to
the technicality of the matter, and considering that the due authenticity and genuineness of the
findings/recommendation70 of the OBO and the accompanying sketch71 thereto were not specifically denied by Sps.
Rana,72 the required retaining wall shall beconstructed in accordance with the said sketch which showed the area
backfilled.

B. Civil Case No. CEB-21296

For Recovery of Property.

Now, with respect to Civil Case No. CEB-21296, the Court finds that the CA erred in affirming the RTC’s dismissal thereof
considering that it was determined that Sps. Uy had actually encroached upon the Rana property to the extent of 2 sq.
m.

Settled is the rule that in order that an action for the recovery of property may prosper, the party prosecuting the same
need only prove the identity of the thing and his ownership thereof.73 In the present cases, the Report74 of the court-
appointed commissioner, Atty. Pintor, who conducted a relocation survey75 of the Rana and Uy properties identified and
delineated the boundaries of the two properties and showed that Sps. Uy’s perimeter fence intruded on 2 sq. m.of the
Rana property.76 Both the RTC and the CA relied upon the said report; thus, absent any competent showing that the said
finding was erroneous, the Court sees no reason to deviate from the conclusions reached by the courts a quo. Having
sufficiently proven their claim, Sps. Rana are, therefore entitled to the return of the 2 sq.m. encroached portion. Corollary
thereto, compliance by Linda Rana with the directive in Civil Case No. CEB-20893to build a retaining wall on their
property shall be held in abeyance pending return of the encroached portion.

C. Claims Common to Both Civil Case No. CEB-20893 and Civil Case No. CEB-21296: Malicious Prosecution of Both Cases,
Moral and Exemplary Damages, Attorney’s Fees, and Litigation
Expenses.

As a final matter, the Court resolvesthe claims common to both Civil Case No. CEB-20893 and Civil Case No. CEB-21296,
particularly those on malicious prosecution, as well asmoral and exemplary damages, attorney’s fees, and litigation
expenses.

As the Court sees it, the filing bythe parties of their respective complaints against each other was notclearly and
convincingly shown to have been precipitated by any maliceor bad faith, sufficient enough to warrant the payment of
damages in favor of either party. As correctly pointed out by the CA, malicious prosecution, both in criminal and civil
cases, requires the presence oftwo (2) elements, namely: (a) malice; and (b) absence of probable cause. Moreover,
there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person; and that it
was initiated deliberately knowing that the charge was false and baseless.77 Hence, the mere filing of a suitwhich
subsequently turns out to be unsuccessful does not render a person liable for malicious prosecution, for the law could not
have meant toimpose a penalty on the right to litigate.78 As the aforementioned elements were not duly proven, the
claims for malicious prosecution are hereby denied.

With respect to the claims for moral damages, although the Court found the parties to have sustained nominal damages
as a result of the other parties’ acts, an award of moral damages would nonetheless be improper in this case. Article
2217 of the Civil Code states that "[m]oral damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful
act for omission." Corollary thereto, Article 2219 of the same code (Article 2219) states that "[m]oral damages may be
recovered in the following and analogous cases: (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts
causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal
or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious
prosecution; (9) Acts mentioned in Article 309; [and] (10) Actsand actions referred to in Articles 21, 26, 27, 28, 29, 30, 32,
34, and 35."

Here, it was not proven thatthe damage caused by (a) Sps. Rana against Wong, et al., arising from the elevation and
cementing of the subject portion and the subject backfilling, and (b) Sps. Uy against Sps. Rana, by virtue of their 2 sq. m.
encroachment, could be characterized as a form of or had resulted in physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, or any other similar injury. Neitherwas
it convincingly shown that the present controversies fall within the class of cases enumerated under Article 2219.
Therefore, no moral damages should be awarded.

Similarly, the Court deems that an award of exemplary damages would be inappropriate since these damages are
imposed only "by way of example or correction for the publicgood, in addition to the moral, temperate, liquidated or
compensatory damages."79 Bluntly placed, the Court does not view the present matters of such caliber. Hence, there is
no reason to grant the parties’ claims for the same.

Lastly, considering that neither of the parties was able to successfully prove (a) their claims for malicious
prosecution,80 (b) their entitlement to moral and exemplary damages,81 and (c) the attendance of any of the
circumstances under Article 220882 of the Civil Code, their respective claims for attorney’s fees and litigation
expensesagainst each other are also denied. WHEREFORE, the Decision dated July 13, 2005 and the Resolution dated
June 18, 2010 in CA-G.R. CV No. 78463 are SET ASIDE and a new one is entered as follows:

In Civil Case No. CEB-20893:

(a) The awards of damages in favor of each party are OFFSETagainst each other as herein discussed;

(b) Linda Rana is hereby ORDEREDto build, at her own expense, a retaining wall on the property covered by
TCT No. 124095 in accordance with the sketch of the Office of the Building Official of Cebu City attached to
the records of the case, subject to the condition as shall be hereunder set; and

(c) All other claims and counterclaims are DISMISSED for lack of legal and factual bases.

In Civil Case No. CEB-21296:

 (a) Spouses Rosario and Wilson Uy are DIRECTED to return to Linda Rana the 2-square meter encroached
portion as reflected in the relocation survey conducted by court-appointed commissioner Atty. Reuel T. Pintor,
after which Linda Rana shall be OBLIGED to build the retaining wall as directed by the Court; and

(b) All other claims and counterclaims are DISMISSED for lack of merit.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

ARTURO D. BRION*
Associate Justice
Acting Chairperson

DIOSDADO M. PERALTA** MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE CATRAL MENDOZA***

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the cases were assigned to
the writer of the opinion of the Court's Division.

ARTURO D. BRION
Associate Justice
Acting Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before· the cases were assigned to the writer of
the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* Designated Acting Chairperson per Special Order No. 1699 dated June 13, 2014.

** Designated Acting Member per Special Order No. 1712 dated June 23, 2014 .

*** Designated Acting Member per Special Order No. 1696 dated June 13, 2014.

1 Rollo (G.R. No. 192861), pp. 5-26; rollo (G.R. No. 192862), pp. 3-32.

2Rollo (G.R. No. 192861), pp. 72-90; rollo (G.R. No. 192862), pp. 38-55. Penned by Executive Justice Mercedes
Gozo-Dadole, with Associate JusticesSesinando E. Villon and Ramon M. Bato, Jr., concurring.
3Rollo (G.R. No. 192861), pp. 102-105; rollo (G.R. No. 192862), pp. 57-60. Penned by Associate Justice Agnes
Reyes Carpio, with Associate Justices Edgardo L. delos Santos and Eduardo B. Peralta, Jr., concurring.

4Rollo (G.R. No. 192861), pp. 63-70; rollo (G.R. No. 192862), pp. 130-137. Penned by Judge (now Court of
Appeals Justice) Pampio A. Abarintos.

5 Rollo (G.R. No. 192861), p. 35 (including the dorsal portion); rollo (G.R. No. 192862), pp. 119-120.

6 Rollo (G.R. No. 192861), p. 63.

7 See RTC Order in Civil Case No. CEB-20893; rollo (G.R. No. 192861), p. 50.

8 Rollo (G.R. No. 192861), p. 37 (including the dorsal portion); rollo (G.R. No. 192862), pp. 123.

9 Rollo (G.R. No. 192861), p. 36; rollo (G.R. No. 192862), pp. 121-122.

10 Rollo (G.R. No. 192861), p. 64; rollo (G.R. No. 192862), p. 40.

11 Rollo (G.R. No. 192861), p. 50.

12 Rollo (G.R. No. 192861), p. 74; rollo(G.R. No. 192862), p. 40.

13 Rollo (G.R. No. 192861), pp. 64 and 74; rollo(G.R. No. 192862), p. 131.

14 Rollo (G.R. No. 192861), p. 38.

15 See Certification to file action [in court] issued by OBO; rollo (G.R. No. 192862), p. 124.

16 Rollo (G.R. No. 192861), pp. 74-75; rollo (G.R. No. 192862), pp. 40-41.

17 Rollo (G.R. No. 192861), pp. 28-34; rollo (G.R. No. 192862), pp. 112-118.

18 Rollo (G.R. No. 192861), p. 30; rollo (G.R. No. 192862), p. 114.

19 Rollo (G.R. No. 192861), p. 31; rollo (G.R. No. 192862), p. 115.

20 Rollo (G.R. No. 192861), pp. 32-33; rollo (G.R. No. 192862), pp. 116-117.

21 Rollo (G.R. No. 192861), pp. 39-43; rollo (G.R. No. 192862), pp. 125-129.

22 Rollo (G.R. No. 192861), pp. 38-40; rollo (G.R. No. 192862), pp. 125-126.

23 Rollo (G.R. No. 192861), pp. 46-47.

24 Id. at 51.

25 Rollo (G.R. No. 192861), p. 84; rollo (G.R. No. 192862), p. 49.

26 Rollo (G.R. No. 192861), pp. 52-55.

27 Id. at 57-60.

28 See RTC Order dated April 6, 1998 signed by Judge Ireneo Lee Gako, Jr.; id. at 61-62.
29 Records, pp. 154-156.

30 Id. at 155.

31 See RTC Order dated February 21, 2000 signed by Judge Pampio A. Abarintos; id. at 246.

32 Rollo (G.R. No. 192861), pp. 63-70; rollo (G.R. No. 192862), pp. 130-137.

33 Rollo (G.R. No. 192861), pp. 68-69; rollo (G.R. No. 192862), pp. 135-136.

34 Id.

35 Rollo (G.R. No. 192861), p. 67; rollo (G.R. No. 192862), p. 134.

36 Rollo (G.R. No. 192861), pp. 69-70; rollo (G.R. No. 192862), pp. 136-137.

37 Rollo (G.R. No. 192861), pp. 72-90; rollo (G.R. No. 192862), pp. 38-55.

38 Rollo (G.R. No. 192861), p. 84; rollo (G.R. No. 192862), p. 49.

39 Rollo (G.R. No. 192861), p. 85; rollo (G.R. No. 192862), p. 50.

40 Rollo (G.R. No. 192861), pp. 88-89; rollo (G.R. No. 192862), pp. 53-54.

See Separate Motions filed by Sps. Rana and Wong, Sps. Ong and Sps. Uy; rollo(G.R. No. 192861), pp. 92-100
41

and rollo(G.R. No. 192862), pp. 61-79, respectively.

42 Rollo (G.R. No. 192861), pp. 102-105; rollo (G.R. No. 192862), pp. 57-60.

43During the pendency of the proceedings before the RTC, Linda Rana’s husband, Reynaldo Rana, passed
away, thus, the petition in G.R. No. 192861 was instituted by her solely. (See Notice of Death; records, pp. 247-
249.)

44 Rollo (G.R. No. 192861), pp. 14-15.

45 Rollo (G.R. No. 192862), p. 17.

46 Id. at 22.

47 Id. at 27-28.

48 AC Enterprises, Inc. v. Frabelle Properties Corp., 537 Phil. 114, 143 (2006).

49 Id.

50 Perez v. Madrona, G.R. No. 184478, March 21, 2012, 668 SCRA 696, 706-707.

51 Salao v. Santos, 67 Phil. 547, 550-551 (1939).

52 492 Phil 314 (2005).

53 Id. at 327.
54ART. 704. Any private person may abate a public nuisance which is specially injurious to himby removing or, if
necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or
doing unnecessary injury. But it is necessary:

(1) That demand be first made upon the owner or possessor of the property to abate the nuisance;

(2) That such demand has been rejected;

(3) That the abatement be approved by the district health officer and executed with the assistance of
the local police; and

(4) That the value of the destruction does not exceed three thousand pesos. (Emphasis supplied)

55 ART. 706. Any person injured by a private nuisance may abateit by removing or, if necessary, by destroying
the thing which constitutes the nuisance, without committing a breach of the peace, or doing unnecessary
injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by
private person be followed. (Emphases supplied)

56 See AC Enterprises, Inc. v. Frabelle Properties Corp.,supra note 48, at 144-145.

57 Articles 699 and 705 of the Civil Code provide as follows:

ART. 699. The remedies against a public nuisance are:

(1) A prosecution under the Penal Code or any local ordinance: or

(2) A civil action; or

(3) Abatement, without judicial proceedings.

ART. 705. The remedies against a private nuisance are:

(1) A civil action; or

(2) Abatement, without judicial proceedings. (Emphases supplied)

58See Article 697 of the Civil Code. See also Paras,Edgardo L., Civil Code of the Philippines Annotated (16th Ed.,
2008), Vol. 2, p. 747.

59Civil Code, ART. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been
violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him.

Civil Code ART. 2224. Temperate or moderate damages, which are more than nominal but less than
60

compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered
but its amount can not, from the nature of the case, be provided with certainty.

61 Rollo(G.R. No. 192861), p. 50.

62ART. 2216. No proof of pecuniary loss is necessary in order that moral, nominal, temperate, liquidated or
exemplary damages may be adjudicated. The assessment of such damages, except liquidated ones, is left to
the discretion of the court, according to the circumstances of each case.

63 See pages 13 and 14, as well as footnote 5 of CA Decision, rollo(G.R. No. 192861), pp. 84-85.

64 419 Phil. 845 (2001).

65 Id. at 856.

66See Annex "A" of Presidential Decree No. (PD) 1096 (1977), entitled "ADOPTING A NATIONAL BUILDING CODE
OF THE PHILIPPINES (NBCP) THEREBY REVISING REPUBLIC ACT NUMBERED SIXTY-FIVE HUNDRED FORTY-ONE (R.A.
NO. 6541),"on "Words, Terms and Phrases" which defines "retaining wall" as "[a]ny wall used to resist the lateral
displacement of any material; a subsurface wall built to resist the lateral pressure of internal loads.

67 Transcript of Stenographic Notes, June 1, 1999, pp. 7, 11.

68 Rollo, (G.R. No. 192861), pp. 69 and 80; rollo(G.R. No. 192862), p. 135.

Under Section 1202(c)(2) of PD 1096, amending R.A. No. 6541, otherwise known as the "National Building
69

Code of the Philippines."

SEC. 1202. Excavation, Foundation and Retaining Walls.

xxxx

(c) Footings, Foundations and Retaining Walls

x x x x (2) Whenever or wherever there exists in the site of the construction an abrupt change in the
ground levels or level of the foundation such that instability of the soil could result, retaining walls shall
be provided and such shall be of adequate design and type of construction as prescribed by the
Secretary [of the then Public Works, Transportation and Communications].

70 Records, p. 205. Issued by Engineering Assistant Cresercia F. Alcuizar dated June 2, 1997.

71 Id. at 206.

See paragraph 9 of the Complaint in Civil Case No. CEB-20893; id. at 4. See also paragraphs 7 and 8 of the
72

answer; id. at 19-20.

73 See Articles 428 and 434 of the Civil Code which respectively read:

ART. 428. The owner has the right to enjoy and dispose of a thing, without other limitations than those
established by law.

The owner has also a right of action against the holder and possessor of the thing in order to recover
it.

ART. 434. In an action to recover, the property must be identified, and the plaintiff must rely on the
strength of his title and not on the weakness of the defendant's claim.

74 See Commissioner’s Report dated November 22, 2000; records, pp. 304-306.

75 Id. at 311.

76 Id. at 304-306.

77 Rollo(G.R. No. 192861), p. 88; rollo(G.R. No. 192862), p. 53.

78 Premiere Dev’t. Bank v. Central Surety & Insurance Co.,Inc., 598 Phil. 827, 861 (2009); citation omitted.

79 CIVIL CODE, Art. 2229.

80 See Premiere Dev’t. Bank v. Central Surety & Insurance Co., Inc., supra note 78.
 81 See Equitable PCI Bank v. Ng Sheung Ngor, 565 Phil. 520, 543 (2007).

ART. 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs,
82

cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to
incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly
valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8) In actions for indemnity under workmen’s compensation and employer’s liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded; or

(11) In any other case where the court deems it just and equitable that attorney’s fees and expenses
of litigation should be recovered.

In all cases, the attorney’s fees and expenses oflitigation must be reasonable. (Emphases supplied)

FIRST DIVISION

G.R. No. 202578, September 27, 2017

HEIRS OF GILBERTO ROLDAN, NAMELY: ADELINA ROLDAN, ROLANDO ROLDAN, GILBERTO ROLDAN, JR., MARIO ROLDAN,
DANNY ROLDAN, LEONARDO ROLDAN, ELSA ROLDAN, ERLINDA ROLDAN-CARAOS, THELMA ROLDAN-MASINSIN, GILDA
ROLDAN-DAWAL AND RHODORA ROLDAN-ICAMINA, Petitioners, v. HEIRS OF SILVELA ROLDAN, NAMELY: ANTONIO R. DE
GUZMAN, AUGUSTO R. DE GUZMAN, ALICIA R. VALDORIA-PINEDA, AND SALLY R. VALDORIA, AND HEIRS OF LEOPOLDO
MAGTULIS, NAMELY: CYNTHIA YORAC-MAGTULIS, LEA JOYCE MAGTULIS-MALABORBOR, DHANCY MAGTULIS, FRANCES
DIANE MAGTULIS, AND JULIERTO MAGTULIS-PLACER, Respondents.

DECISION

SERENO, C.J.:
Before this Court is a Petition for Review on Certiorari1 assailing the Court of Appeals (CA) Decision2 and
Resolution,3 which affirmed the Decision4 of the Regional Trial Court (RTC). The RTC ruled that petitioner heirs of Gilberto
Roldan, respondent heirs of Silvela Roldan,5 and respondent heirs of Leopoldo Magtulis are co-owners of Lot No. 4696.

FACTS OF THE CASE

Natalia Magtulis6 owned Lot No. 4696, an agricultural land in Kalibo, Aklan, which had an area of 21,739 square meters,
and was covered by Original Certificate of Title No. P-7711.7 Her heirs included Gilberto Roldan and Silvela Roldan, her
two children by her first marriage; and, allegedly, Leopolda Magtulis her child with another man named Juan
Aguirre.8 After her death in 1961, Natalia left the lot to her children. However, Gilberta and his heirs took possession of the
property to the exclusion of respondents.

On 19 May 2003, respondents filed before the RTC a Complaint for Partition and Damages against petitioners.9 The latter
refused to yield the property on these grounds: (1) respondent heirs of Silvela had already sold her share to Gilberto; and
(2) respondent heirs of Leopolda had no cause of action, given that he was not a child of Natalia.

During trial, petitioners failed to show any document evidencing the sale of Silvela's share to Gilberto. Thus, in its Decision
dated 14 December 2007, the RTC ruled that the heirs of Silvela remained co-owners of the property they had inherited
from Natalia. As regards Leopoldo Magtulis, the trial court concluded that he was a son of Natalia based on his
Certificate of Baptism10 and Marriage Contract.11

Considering that Gilberta, Silvela, and Leopolda were all descendants of Natalia, the RTC declared each set of their
respective heirs entitled to one-third share of the property. Consequently, it ordered petitioners to account and deliver to
respondents their equal share to the produce of the land.

Petitioners appealed to the CA. They reiterated that Silvela had sold her share of the property to her brother Gilberta.
They asserted that the RTC could not have considered Leopolda the son of Natalia on the mere basis of his Certificate of
Baptism. Emphasizing that filiation required a high standard of proof, petitioners argued that the baptismal certificate of
Leopoldo served only as evidence of the administration of the sacrament.

In its Decision dated 20 December 2011, the CA affirmed the ruling of the RTC that Gilberto, Silvela, and Leopoldo
remained co-owners of Lot No. 4696. The appellate court refused to conclude that Silvela had sold her shares to Gilberto
without any document evidencing a sales transaction. It also held that Leopoldo was the son of Natalia, since his
Certificate of Baptism and Marriage Contract indicated her as his mother.

Petitioner heirs of Gilberto moved for reconsideration,12 but to no avail. Before this Court, they reiterate that Silvela sold
her shares to Gilberto, and that Leopoldo was not the son of Natalia. They emphasize that the certificates of baptism
and marriage do not prove Natalia to be the mother of Leopoldo since these documents were executed without her
participation.

Petitioners additionally contend that respondents lost their rights over the property, since the action for partition was
lodged before the RTC only in 2003, or 42 years since Gilberto occupied the property in 1961. For the heirs of Gilberto,
prescription and laches already preclude the heirs of Silvela and the heirs of Leopoldo from claiming co-ownership over
Lot No. 4696.

In their Comment,13 respondents assert that the arguments raised by petitioners involve questions of fact not cognizable
by this Court. As regards the issue of prescription and laches, they insist that petitioners cannot invoke a new theory for
the first time on appeal.

ISSUES OF THE CASE

The following issues are presented to this Court for resolution:

1. Whether the CA erred in affirming the RTC's finding that Silvela did not sell her share of the property to Gilberto

2. Whether the courts a quo correctly appreciated Leopoldo to be the son of Natalia based on his baptismal and
marriage certificates

3. Whether prescription and laches bar respondents from claiming coownership over Lot No. 4696

RULING OF THE COURT

Sale of the Shares of Silvela to Gilberto

Petitioners argue before us that Silvela had a perfected contract of sale with Gilberto over her shares of Lot No. 4696.
That argument is obviously a question of fact,14 as it delves into the truth of whether she conveyed her rights in favor of
her brother.

The assessment of the existence of the sale requires the calibration of the evidence on record and the probative weight
thereof. The RTC, as affirmed by the CA, already performed its function and found that the heirs of Gilberto had not
presented any document or witness to prove the fact of sale.

The factual determination of courts, when adopted and confirmed by the CA, is final and conclusive on this Court
except if unsupported by the evidence on record.15 In this case, the exception does not apply, as petitioners merely
alleged that Silvela "sold, transferred and conveyed her share in the land in question to Gilberto Roldan for a valuable
consideration" without particularizing the details or referring to any proof of the transaction.16 Therefore, we sustain the
conclusion that she remains coowner of Lot No. 4696.

Filiation of Leopoldo to Natalia

In resolving the issue of filiation, the RTC and the CA referred to Articles 172 and 175 of the Family Code, viz.:
Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the
parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.

The action must be brought within the same period specified in Article 173, except when the action is based on the
second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.
The parties concede that there is no record of Leopolda's birth in either the National Statistics Office17 or in the Office of
the Municipal Registrar of Kalibo, Aklan.18 The RTC and the CA then referred to other means to prove the status of
Leopoldo: his Certificate of Baptism and his Marriage Contract. Since both documents indicate Natalia as the mother of
Leopoldo, the courts a quo concluded that respondent heirs of Leopoldo had sufficiently proven the filiation of their
ancestor to the original owner of Lot No. 4696. For this reason, the RTC and the CA maintained that the heirs of Leopoldo
are entitled to an equal share of the property, together with the heirs of Gilberto and heirs of Silvela.

We disagree.

Jurisprudence has already assessed the probative value of baptismal certificates. In Fernandez v. Court of
Appeals,19 which referred to our earlier rulings in Berciles v. Government Service Insurance System20and Macadangdang
v. Court of Appeals,21 the Court explained that because the putative parent has no hand in the preparation of a
baptismal certificate, that document has scant evidentiary value. The canonical certificate is simply a proof of the act to
which the priest may certify, i.e., the administration of the sacrament. In other words, a baptismal certificate is "no proof
of the declarations in the record with respect to the parentage of the child baptized, or of prior and distinct facts which
require separate and concrete evidence."22

In cases that followed Fernandez, we reiterated that a baptismal certificate is insufficient to prove filiation.23 But in Makati
Shangri-La Hotel and Resort, Inc. v. Harper,24 this Court clarified that a baptismal certificate has evidentiary value to
prove kinship "if considered alongside other evidence of filiation."25 Therefore, to resolve one's lineage, courts must
peruse other pieces of evidence instead of relying only on a canonical record. By way of example, we have considered
the combination of testimonial evidence,26 family pictures,27 as well as family books or charts,28 alongside the baptismal
certificates of the claimants, in proving kinship.

In this case, the courts below did not appreciate any other material proof related to the baptismal certificate of
Leopoldo that would establish his filiation with Natalia, whether as a legitimate or as an illegitimate son.

The only other document considered by the RTC and the CA was the Marriage Contract of Leopoldo. But, like his
baptismal certificate, his Marriage Contract also lacks probative value as the latter was prepared without the
participation of Natalia. In Reyes v. Court of Appeals,29 we held that even if the marriage contract therein stated that
the alleged father of the bride was the bride's father, that document could not be taken as evidence of filiation,
because it was not signed by the alleged father of the bride.
The instant case is similar to an issue raised in Paa v. Chan.30 The claimant in that case relied upon baptismal and
marriage certificates to argue filiation. The Court said:
As regards the baptismal and marriage certificates of Leoncio Chan, the same are not competent evidence to prove
that he was the illegitimate child of Bartola Maglaya by a Chinese father. While these certificates may be considered
public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified -
which in this case were the baptism and marriage, respectively, of Leoncio Chan - but not the veracity of the statements
or declarations made therein with respect to his kinsfolk and/or citizenship.
All told, the Baptismal Certificate and the Marriage Contract of Leopoldo, which merely stated that Natalia is his mother,
are inadequate to prove his filiation with the property owner. Moreover, by virtue of these documents alone, the RTC
and the CA could not have justly concluded that Leopoldo and his successors-in-interest were entitled to a one-third
share of the property left by Natalia, equal to that of each of her undisputed legitimate children Gilberto and Silvela. As
held in Board of Commissioners v. Dela Rosa,31 a baptismal certificate is certainly not proof of the status of legitimacy or
illegitimacy of the claimant. Therefore, the CA erred in presuming the hereditary rights of Leopoldo to be equal to those
of the legitimate heirs of Natalia.

Prescription and Laches

According to petitioners, prescription and laches have clearly set in given their continued occupation of the property in
the last 42 years. Prescription cannot be appreciated against the co-owners of a property, absent any conclusive act of
repudiation made clearly known to the other coowners.32

Here, petitioners merely allege that the purported co-ownership "was already repudiated by one of the parties" without
supporting evidence. Aside from the mere passage of time, there was failure on the part of petitioners to substantiate
their allegation of laches by proving that respondents slept on their rights.33 Nevertheless, had they done so, two grounds
deter them from successfully claiming the existence of prescription and laches.

First, as demanded by the repudiation requisite for prescription to be appreciated, there is a need to determine the
veracity of factual matters such as the date when the period to bring the action commenced to run. In Macababbad,
Jr. v. Masirag,34 we considered that determination as factual in nature. The same is true in relation to finding the
existence of laches. We held in Crisostomo v. Garcia, Jr.35 that matters like estoppel, laches, and fraud require the
presentation of evidence and the determination of facts. Since petitions for review on certiorari under Rule 45 of the
Rules of Court, as in this case, entertain questions of law,36 petitioners claim of prescription and laches fail.

Second, petitioners have alleged prescription and laches only before this Court. Raising a new ground for the first time
on appeal contravenes due process, as that act deprives the adverse party of the opportunity to contest the assertion
of the claimant.37 Since respondents were not able to refute the issue of prescription and laches, this Court denies the
newly raised contention of petitioners.

WHEREFORE, the Petition for Review on Certiorari filed by petitioner heirs of Gilberto Roldan is PARTIALLY GRANTED. The
Court of Appeals Decision and Resolution in CA-G.R. CEB-CV No. 02327 are hereby MODIFIED to read as follows:

1. Only the heirs of Gilberta Roldan and Silvela Roldan are declared co-owners of the land covered by Original
Certificate of Title No. P-7711, which should be partitioned among them in the following proportions:
a. One-half share to the heirs of Gilberta Roldan; and
b. One-half share to the heirs of Silvela Roldan.
2. Petitioners are ordered to account for and deliver to the heirs of Silvela Roldan their one-half share on the produce of
the land.

SO ORDERED.

Leonardo-De Castro, Del Castillo, and Tijam, JJ., concur.

Jardeleza, J., on official leave.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-46746 March 15, 1990

LIGAYA GAPUSAN-CHUA, petitioner,

vs.
COURT OF APPEALS and PROSPERO PARCON, respondents.
Citizens Legal Assistance Office for petitioner.

Gil B. Parreno for respondent.

NARVASA, J.:

Felisa Gapusan Parcon died intestate and without legitimate issue on April 6, 1966 in Bacolod City. Neither her surviving
spouse, Prospero Parcon, nor her other known relatives — three (3) sisters and a nephew — made any move to settle her
estate judicially.

It was Ligaya Gapusan-Chua, claiming to be an acknowledged natural daughter of Felisa Gapusan Parcon, who
instituted judicial proceedings for the settlement of the latter's estate. About a year and eight months after Felisa's
demise, or on January 15, 1968, Ligaya filed with the Court of First Instance of Negros Occidental a petition for the
settlement of the estate and for issuance of letters of administration in her favor. 1 She also sought her designation as
Special Administratrix pending her appointment as regular administratrix. 2

By Order dated January 16, 1968, the Court appointed Ligaya Special Administratrix of Felisa Parcon's estate.

On April 22, 1968, Prospero Parcon, Felisa Parcon's surviving husband, filed a motion for reconsideration of the Order of
January 16, 1968. 3 He denied that Ligaya was an acknowledged natural child of his deceased wife, and applied for his
own appointment as administrator of his wife's estate. 4

Hearings were had on the issue of Ligaya claimed affiliation. Ligaya presented, among other proofs, 5 the following
documents:

a) Felisa Parcon's sworn statement of assets and liabilities wherein Ligaya is named and described as
the daughter of Felisa (Exh. 4);

b) Felisa Parcon's application for GSIS life insurance in which Ligaya is set out as her (Felisa's) daughter
(Exh. 3);

c) Check No. 44046 of the Government Service Insurance System in the sum of P505.50 paid to her
(Ligaya) as her share in the death benefits due the heirs of Felisa Parcon (Exh. 2); and

d) a family photograph, showing Ligaya beside the deceased (Exh. 1).

Prospero Parcon, on the other hand, sought to demonstrate that Ligaya's exhibits did not constitute conclusive proof of
her claimed status of acknowledged natural child, for the reason that:

a) another document, Felisa's application for membership in Negros Occidental Teachers' Federation
(NOTF), merely named Ligaya as her "adopted daughter;"

b) in the distribution of death benefits pursuant to the decedent's GSIS insurance policy, supra, Ligaya
was allocated only P500.00 whereas Prospero received P1,000.00; and

c) Mrs. Leticia Papasin (Felisa's sister) and Vice-Mayor Solomon Mendoza travelled from afar to affirm
before the Probate Court on the witness stand that Ligaya was not the daughter of Felisa, 6 Mrs.
Papasin's testimony being that in 1942 an unknown "drifter" had sold Ligaya, then an infant, to Felisa.

The Probate Court found for Ligaya. Its Order dated April 16, 1969 disposed as follows: 7

WHEREFORE, it is hereby declared that petitioner is the acknowledged natural child of the late Felisa
Gapusan, and for being the next of kin of the deceased (Rule 78, Rules of Court), she is hereby
appointed regular administratrix of the properties of the above-mentioned deceased with the same
bond given by her as special administratrix, with costs against the oppositors.
On appeal seasonably perfected, the Court of Appeals (Fourth Division), in a Decision dated April 13, 1977, (1) set aside
the Probate Court's Order of January 16, 1968 (appointing Ligaya Special Administratrix) and of April 16, 1969 (declaring
her the decedent's acknowledged natural child and appointing her regular administratrix), and (2) appointed Prospero
Parcon regular administrator of his wife's estate. In that Court's view, the evidence at best showed merely that Ligaya
had been treated as a daughter by Felisa, but that this did "not constitute acknowledgment" but "only a ground to
compel recognition;" and that Ligaya had failed to establish that she had been acknowledged by Felisa in accordance
with Article 278 of the Civil Code (Article 131 of the Civil Code of 1889). Appeal has in turn been taken from this
judgment to this Court by Ligaya Gapusan-Chua.

Here, Ligaya insists that the evidence submitted by her does indeed sufficiently establish her status as the acknowledged
natural child of Felisa Parcon, and that her appointment as regular administratrix is justified by law and jurisprudence.

More particularly, she contends that the sworn statement of assets and liabilities, a public document submitted by the
decedent pursuant to a legal requirement therefor, and the latter's application for life insurance were in law indubitable
recognition by her mother of her status as an acknowledged natural child, voluntarily made, and were adequate
foundation for a judicial declaration of her status as heir. These statements, she alleges, were "authentic writings" in
contemplation of Article 278 of the Civil Code:

Art. 278. Recognition shall be made in the record of birth, a will, a statement before a court of record,
or in any authentic writing.

These, she contends, together with her treatment as a daughter by Felisa — a fact found to have been established by
the evidence by both the Trial Court and the Court of Appeals — eliminate all doubt about the juridical verity of her
recognition as a natural child.

Prospero Parcon disagrees. He argues that, as ruled by the Court of Appeals, the statements designating Ligaya as
Felisa's daughter merely furnished ground for Ligaya to compel recognition by action which, however, should have been
brought during the lifetime of the putative parent in accordance with Article 285 of the Civil Code, reading as follows:

Art. 285. The action for the recognition of natural children may be brought only during the lifetime of
the presumed parents, except in the following cases:

(1) If the father or mother died during the minority of the child, in which case the latter may file the
action before the expiration of four years from the attainment of his majority;

(2) If after the death of the father or of the mother a document should appear of which nothing had
been heard and in which either or both parents recognize the child.

In this case, the action must be commenced within four years from the finding of the document.

Since, Parcon continues, no such action was instituted prior to the death of Felisa, proof of the "authentic document"
(sworn statement of assets and liabilities) in the proceedings for the settlement of the latter's estate was inefficacious as
basis for a declaration of filiation or heirship.

The issue thus presented is whether or not Felisa's sworn statement of assets and liabilities and her application for
insurance are "authentic writings" which effectively operated as a recognition of Ligaya Gapusan-Chua as her natural
child, even if no action was brought by the latter to compel the former, during her lifetime, to recognize her as such.

Recognition of natural children may be voluntary or compulsory. 8

Voluntary recognition, it has been said, "is an admission of the fact of paternity or maternity by the presumed parent,
expressed in the form prescribed by the Civil Code. Its essence lies in the avowal of the parent that the child is his; the
formality is added to make the admission incontestable, in view of its consequences." 9 The form is prescribed by Article
278 of the Civil Code, earlier adverted to; it provides that a voluntary recognition "shall be made in the record of birth, a
will, a statement before a court of record, or in any authentic writing." 10

Compulsory recognition is sometimes also called judicial recognition, to distinguish it from that which is a purely voluntary
act of the parent. 11 It is recognition decreed by final judgment of a competent court. It is governed by Articles 283 and
284, setting forth the cases in which the father or mother, respectively, is obliged to recognize a natural child, and Article
285 providing that generally, the action for recognition of natural children may be brought only during the lifetime of the
presumed parents. 12

The matter of whether or not judicial approval is needful for the efficacy of voluntary recognition is dealt with in Article
281 of the Civil Code. 13

Art. 281. A child who is of age cannot be recognized without his consent.

When the recognition of a minor does not take place in a record of birth or in a will, judicial approval
shall be necessary.

A minor can in any case impugn the recognition within four years following the attainment of his
majority.

In other words, judicial approval is not needed if a recognition is voluntarily made —

1) of a person who is of age, only his consent being necessary; or

2) of a minor whose acknowledgment is effected in a record of birth or in a will.

On the other hand, judicial approval is needful if the recognition of the minor is effected, not through a record of birth or
in a will but through a statement in a court of record or an authentic document. In any case the individual recognized
can impugn the recognition within four years following the attainment of his majority. 14

Now, there are no less than three (3) writings submitted in evidence in this case in which Felisa Gapusan Parcon
describes Ligaya Gapusan-Chua as her daughter, viz.:

a) Felisa's sworn statement of assets and liabilities, in which she names and describes Ligaya as her
daughter (Exh. 4);

b) her application for GSIS life insurance in which she again describes Ligaya as her daughter (Exh. 3);
and

c) her application for membership in the Negros Occidental Teachers' Federation, where she names
Ligaya as her "adopted daughter" (Exh. 1).

Each of these writings is undoubtedly an "authentic writing" within the contemplation of Article 278. "An 'authentic writing'
for purposes of voluntary recognition . . . (is) understood as a genuine or indubitable writing of the father" (or mother),
including "a public instrument" (one acknowledged before a notary public or other competent official with the
formalities required by law), 15 and, of course, a public or official document in accordance with Section 20, Rule 132 of
the Rules of Court. The sworn statement of assets and liabilities filed by Felisa Parcon is a public document, having been
executed and submitted pursuant to a requirement of the law. So it has been held by this Court. 16 The other two writings
above mentioned are, to be sure, not public documents, but this is of no moment; neither of them has to be a public
document in order to be categorized as an "authentic writing." It is enough that they are the genuine or indubitable
writings of Felisa Gapusan Parcon. That in one of the writings, Felisa's application for membership in the Negros
Occidental Teachers' Federation, Felisa describes Ligaya as her "adopted" daughter is also inconsequential. It may be
explained by her reluctance to confess publicly to her colleagues in the teaching profession that she had borne a child
out of wedlock. It is in any case a categorical avowal by Felisa that Ligaya is indeed her daughter, an admission entirely
consistent with the two other authentic writings executed by her in which she acknowledges Ligaya to be her daughter
without qualification. Moreover, if these three (3) writings are considered in conjunction with the undisputed fact that
Ligaya had been continuously treated by Felisa as her daughter, the proposition that Ligaya was indeed Felisa's
daughter becomes well nigh conclusive.

It is admitted on all sides that no judicial action or proceeding was ever brought during the lifetime of Felisa to compel
her to recognize Ligaya as her daughter. It is also evident that Ligaya's recognition as Felisa's daughter was not made in
a record of birth or a will, a circumstance which would have made judicial approval unnecessary, only her own consent
to the recognition being required. The acknowledgment was made in authentic writings, and hence, conformably with
the legal provisions above cited, judicial approval thereof was needed if the writings had been executed during Ligaya's
minority. 17 In other words, the question of whether or not the absence of judicial approval negated the effect of the
writings as a mode of recognition of Ligaya is dependent upon the latter's age at the time the writings were made.
The point need not be belabored, however. For whether Ligaya were still a minor or already of age at the time of her
recognition in the authentic writings mentioned, that circumstance would be immaterial in the light of the attendant
facts.

In the first place, the consent required by Article 281 of a person of age who has been voluntarily recognized may be
given expressly or tacitly. 18 Assuming then that Ligaya was of age at the time of her voluntary recognition, the evidence
shows that she has in fact consented thereto. Her consent to her recognition is not only implicit from her failure to impugn
it at any time before her mother's death, but is made clearly manifest and conclusive by her assertion of that recognition
in the judicial proceeding for the settlement of her mother's estate as basis for her rights thereto. Assuming on the other
hand, that she was a minor at the time of her recognition, and therefore judicial approval of the recognition was
necessary, the absence thereof was cured by her ratification of that recognition, after having reached the age of
majority, by her initiation of the proceedings for the settlement of her deceased mother's estate on the claim precisely
that she was the decedent's acknowledged natural daughter. 19 The requirement of judicial approval imposed by Article
281 is clearly intended for the benefit of the minor. "The lack of judicial approval can not impede the effectivity of the
acknowledgment made. The judicial approval is for the protection of the minor against any acknowledgment made to
his prejudice." 20 "Therefore, the lack, or insufficiency of such approval is NOT a defect available to the recognizing
parent but one which the minor may raise or waive. If after reaching majority the minor consents to the
acknowledgment, the lack of judicial approval should make no difference. Implied consent to the acknowledgment
may be shown (e.g.,) by such acts as keeping, even after reaching the age of majority, the acknowledgment papers
and the use of the parent's surname. 21

Upon the foregoing facts and considerations, Ligaya Gapusan Chua must be held to be a voluntarily acknowledged
natural child of Felisa Gapusan Parcon. She is therefore entitled, in accordance with Article 282 of the Civil Code, to
bear her mother's surname, and to receive the hereditary portion accorded to her by the Code.

WHEREFORE, the challenged decision of the Court of Appeals (Fourth Division) dated April 13, 1977 is hereby REVERSED
AND SET ASIDE, and the Orders of the Probate Court dated January 16, 1968 — appointing Ligaya Gapusan-Chua
Special Administratrix — and of April 16, 1969 — declaring said Ligaya Gapusan-Chua the decedent's acknowledged
natural child and appointing her regular administratrix — are REINSTATED AND HEREBY AFFIRMED, without
pronouncement as to costs.

SO ORDERED.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1 Docketed as Sp. Proceedings No. 8427 of Branch 5 of said Court.

2 Rollo, p. 10.

3 The decedent's sisters also opposed Ligaya's petition.

4 Id., pp. 10-11.

5 Her own testimony regarding Felisa's revelations that Ligaya was her natural child, her father being
Gaudioso de Monteverde; and that of Rosario Edar, regarding the statement of de Monteverde that
Ligaya was his daughter by Felisa Gapusan. Rollo, pp. 24-25.

6 Id., pp. 12-13.

7 Id., p. 28.

8 SEE, e.g., Castro v. C.A., et al., G.R. Nos. 50974-75, May 31, 1989, in which it is also pointed out that
under the Family Code (Exec. Order No. 209, July 6, 1987, as amended by Exec. Order No. 227, July 17,
1987), there are only two classes of children, legitimate and illegitimate, and "the fine distinctions
among various types of illegitimate children have been eliminated" (Title VI) and that illegitimate
 children may establish their filiation "in the same way and on the same evidence as legitimate
children" (Art. 175).

9 Caguioa, Comments and Cases on Civil Law, 3rd ed. (1967), Vol. 1, p. 375.

10 The Family Code, supra — which has "retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws" (Art. 256) — provides that
the filiation of legitimate (or illegitimate) children may be established by (a) the record of birth
appearing in the civil register or a final judgment, or (2) an admission of legitimate filiation in a public
document or a private handwritten instrument signed by the parent concerned; and in the absence
of the foregoing evidence, the legitimate filiation may be proved by (a) the open and continuous
possession of the status of a legitimate child; or (b) any other means allowed by the Rules of Court
and special laws (Art. 172).

11 Tolentino, Civil Code, Commentaries and Jurisprudence, 1983 ed., Vol. 1, p. 577, citing 5 Sanches
Roman 1033.

12 Art. 173 of the Family Code declares that the action to claim legitimacy may be brought by the
child during his or her lifetime and shall be transmitted to the heirs should the child die during minority
or in a state of insanity. In the cases, the heirs shall have a period of five years within which to institute
the action. The action already commenced by the child shall survive notwithstanding the death of
either or both of the parties.

13 Not reproduced in the Family Code.

14 There does not appear to be any provision in the Family Code governing impugnation by the
recognized child of his recognition. What the Code does deal with is an action to impugn by the
husband or the heirs of the person recognizing (Arts. 170, 171).

15 Tolentino, op. cit., p. 585, citing Pareja, et al., v. Pareja, et al., 95 Phil. 167; Lim v. C.A., 65 SCRA 160,
161; Padilla, Civil Law, 1975 ed., Vol. 1, pp. 96-101, citing Gustilo v. Gustilo, 14 SCRA 149, Varela v.
Villanueva, et al., 95 Phil. 248, and decisions of the Court of Appeals.

16 Pareja v. Pareja, 95 Phil. 167, cited in Caguioa, op. cit., p. 379.

17 Art. 281, Civil Code.

18 Donado v. Donado, 55 Phil. 861, cited in Caguioa, op. cit., p. 382.

19 Apacible Aguilar v. Castillo, 74 Phil. 589, cited in Paras, Civil Code of the Philippines Annotated, 11th
ed. (1984), Vol. 1, pp. 676-677, and in Caguioa, op. cit., p. 382.

20 Caguioa, op. cit., p. 385, citing Guariña v. Guariña, L-15707, Oct. 31, 1960 and Apacible v. Castillo,
74 Phil. 589.

21 Paras, op. cit., p. 677, citing Javelona v. Monteclaro, 74 Phil. 393; Apacible v. Castillo, 74 Phil.
589,supra; Guariña et al. v. Guariña-Casas, 109 Phil. 1111.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-48362 February 28, 1990

PEOPLE OF THE PHILIPPINES, appellee,
vs.
FERNANDO RAFANAN, appellant.

The Office of the Solicitor General for plaintiff-appellee.

Ildefonso Jose J. Cruz for appellant.

FELICIANO, J.:

Fernando Rafanan appeals from a decision of the then Court of First Instance of Nueva Ecija dated 27 February 1978
which found him guilty beyond reasonable doubt of the crime of rape.

On 31 July 1974, a sworn complaint for rape was filed by Filomena Angala before the Court of First Instance which read
as follows:

The undersigned accuses Fernando Rafanan of the crime of Rape, committed as follows:

That on or about the 9th day of February, 1974 in Cabanatuan City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, by
means of force and intimidation, did then and there, willfully, unlawfully and
feloniously, have sexual intercourse with the undersigned against the latter's will.

CONTRARY TO LAW. 1

Upon arraignment, the accused pleaded not guilty.

After trial, the trial court rendered, on 27 February 1978, a decision the dispositive part of which read as follows:

WHEREFORE, the accused Fernando Rafanan is hereby declared guilty beyond reasonable doubt of
the crime of Rape defined and punished by Article 335 of the Revised Penal Code without any
mitigating or aggravating circumstance; and in the exercise of the Court's leniency, he is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA, with the accessories of the law, to indemnify
the offended party in the amount of P5,000.00 as moral damages, to acknowledge and support her
off-spring, and to pay the costs.

SO ORDERED. 2

In his Appellant's Brief, the accused claims that the trial court committed the following errors:

The Court a quo gravely erred in not considering properly certain facts and circumstances that
militate against finding the appellant guilty of the crime of rape.

II

The Court a quo gravely erred in considering and admitting unreliable evidence to prove that
appellant left the premises of the school thus, allegedly destroying his defense of alibi.

III

The Court a quo gravely erred in finding that appellant is the father of the cold allegedly born of
complainant in the absence of any valid and proper proof of the circumstances of said birth.
 IV

The Court a quo gravely erred in denying to the appellant the right to present vital witnesses who if
presented would have thrown more light on the search of truth in this case.

The Court a quo gravely erred when it convicted the herein appellant of the crime charged in the
light of the facts and circumstances brought out during the trial of this case.

VI

The Court a quo erred in imposing upon the herein appellant the penalty of reclusion perpetua and to
acknowledge and support the offspring allegedly born of the complainant.

The facts found by the trial court were summarized by the court itself in the following terms:

Filomena Angala was orphaned of her father in a far-flung and remote barrio in Mabini, province of
Isabela. Being poor with a brother and seven sisters, but in her earnest desire and ambition to pursue
her studies further, she decided to leave her place of residence and try her luck in Cabanatuan City
Having been introduced by an elderly woman to the spouses Fernando and Emma Rafanan, she
consented to be a household help for the latter, her principal chore being to take care of the three
children of the said spouses. It was on January 7, 1974 when Filomena started to work as a household
help for the spouses Rafanan.

The accused Fernando Rafanan was then the principal of the High School Department at the
Philippine Wesleyan College in Cabanatuan City. His wife Emma was likewise employed as an
accountant therein. In their absence during school days, Fil mena was the only caretaker of the
house. While the spouses Rafanan slept in the second floor of their house with their 2 younger children,
Filomena slept in the first floor beside the stairs with Emalyn, an eight-year old daughter of the
Rafanans.

In the evening of February 9, 1974, as it was already time to retire, and with Mrs. Rafanan and her two
children already upstairs, Filomena prepared her mat and mosquito net in her usual place of
retirement on the ground floor. Both Filomena and Emalyn then lied [sic] down to sleep.

As Filomena and Emalyn were both soundly asleep, Filomena was awakened by a man who was
already inside the mosquito net and whom she recognized to be the accused Fernando Rafanan.
Holding a short firearm and pointing the same at her, the accused Fernando Rafanan warned her not
to shout or move. Sensing that the accused was bent on forcing his evil intentions upon her, Filomena
slapped the accused, fought back and struggled with the latter. The accused in turn gave her fist
blows in the stomach and bumped her head against the cemented floor where she was then lying,
rendering her unconscious. When she regained consciousness, Filomena noticed that the accused
was already on top of her, the latter's penis already penetrating her organ. She felt that Fernando was
already making a downward and upward movement with his penis. Filomena wanted to fight back
and resist but being of the weaker sex and stricken with fear because of Fernando's threats, Filomena
could no longer do so. Filomena suddenly felt pain in her organ which made her cry aloud, causing
Mrs. Rafanan who was then upstairs to inquire what the matter was. Losing no time, Fernando walked
toward the stairs half naked and without his pants. Alone in her grief and sorrow, Filomena could only
cry and shed tears until daybreak.

Filomena continued to do her usual chores that morning. At 11:00 o'clock [a.m.] of the same day, she
told Mrs. Rafanan that she was leaving. When asked by Mrs. Rafanan the reason why, Filomena could
only say that the accused had entered her mosquito net the previous night. In the light of Filomena's
revelation, Mrs. Rafanan begged her not to tell anyone as it would be a great shame for her husband.
Leaving the house that same morning, Filomena went to the house of a relative in Mabini Extension,
this city She stayed there for two weeks, then proceeded to her hometown in Mabini, Isabela.
Sometime in the month of April, 1974, Filomena decided to stay with a first cousin, Artemio Domingo,
in Bacoor, Cavite. By this time she was already in the family way, having had no menstruation due as
early as the middle of March, as Filomena could no longer hide her pregnancy, she wrote the
president of the Philippine Wesleyan College in Cabanatuan City on May 10, 1974, denouncing the
 accused who was still the principal of the High School Department and related her harrowing
experience with the accused. Being a member of the Armed Forces of the Philippines, Artemio
Domingo accompanied Filomena to Camp Crame on May 14, 1974 where she executed a sworn
statement concerning the incident that happened on February 10, 1974. On that same day a PC
medico legal officer in the person of 1st Lt. Desiderio A. Moraleda examined her, the result of which as
well as his findings are as follows:

GENERAL AND EXTRAGENITAL

Fairly developed, nourished and coherent female subject. Breasts are

hemispherical with dark brown aroela and nipples from which no secretion could
be pressed out. The superficial veins are slightly engorged. Abdomen is flat and
tight. There are no external signs of recent application of any form of trauma.

GENITAL

There is moderate growth of pubic hair. Labia majora are full, convex and
coaptated with the pinkish-brown labia minora presenting in between. On
separating the same are disclosed a slightly congested-vulvar mucosa and an
elastic, fleshy-type hymen with deep, healed lacerations at 5 and 9 and shallow
healed lacerations at 6 and 11:00 o'clock positions. External vaginal orifice offers
moderate resistance [to] the introduction of the examining index finger and the
virgin sized vaginal speculum. Vaginal canal is narrow with slightly shallowed
rugosities. Cervix is soft and congested.

Vaginal and per-urethral smears are negative for gram-negative diplococci and
for spermatozoa.

Garvindex test is positive.

REMARK

Findings are compatible with 2 to 3 months pregnant state. 3

The appellant presented a two-fold defense: (1) his first and principal defense was alibi; and (2) his second defense, cast
in alternative form, was that assuming for purposes of argument only that he had lain with the offended party Filomena
Angala, he had done so with her consent.

Turning first to the defense of alibi, Fernando Rafanan testified that he was the principal of the High School Department
of the Philippine Wesleyan College and that he was a licensed holder of a caliber .38 handgun. He claimed that he last
saw Filomena Angala in their house at about 2:00 o'clock in the afternoon of 8 February 1974, upon leaving his house
after having there taken his lunch. The appellant insists that he had not been in their house through the whole night of 9
February 1972 up to 5:00 o'clock in the afternoon of the succeeding day, 10 February 1974, as he had been busy at the
school making streamers in the library of the Philippine Wesleyan College for the then forthcoming national seminar on
social studies, scheduled from 11 to 15 February 1974 and sponsored by the Department of Education.

Emma Rafanan, wife of the appellant, corroborated her husband's defense of alibi by declaring that Filomena bad left
their house for reasons unknown to them at about 5:00 o'clock in the afternoon of 8 February 1974 and that she came
back in the evening of the same day but only to pick up her belongings and to leave thereafter. Apparently suggesting
that nothing untoward had happened to Filomena, Emma Rafanan further testified that Filomena came back briefly on
27 February 1974 to collect the amount of P25.00 representing her half-month's salary.

This Court has many times in the past held that alibi is inherently a weak defense, easy of fabrication especially between
parents and children, husband and wife, and other relatives and even among those not related to each other, and that
for such defense to prosper, the accused must prove that it was not possible for him to have been at the scene of the
crime at the time of the commission of that came. 4 Thus, in People v. Detuya, 5 the Court gave little weight to the
testimony of the wife of the accused on the facts constituting his alibi, stating that:

The first witness is his wife; naturally, human nature being what it is, she is expected to come to her
husband's aid; hence, her testimony, if at all, carries very little weight. 6
In the present case, accused Rafanan's sole corroborating witness was his wife, Emma.

To counter the defense of alibi, the prosecution presented Bonifacio Mangahas and Rolando Wycoco, two of the
security guards of the Philippine Wesleyan College who had been on guard-duty on 9 to 10 February 1974. The two (2)
security guards testified with the aid of their logbook on which were recorded the time of arrival and time of departure
of the various people working in the college compound. Bonifacio Mangahas stated that he had been on guard-duty
from 3:00 to 11:00 p.m. of 9 February 1974 and that the accused had left the college campus at about 10:30 o'clock in
the evening of 9 February 1974; and that he (Bonifacio) had as a matter of course entered the departure time of the
accused on their logbook. 7 Rolando Wycoco in turn said that he had been on guard-duty from 11:00 o'clock p.m. of 9
February 1974 until past 7:00 o'clock a.m. on 10 February 1974, and that he had personally noted down the arrival of Mr.
Rafanan at the college compound on 7:00 o'clock a.m of 10 February 1974. 8Moreover, the house where the Rafanans
lived was only 600 meters away from the Philippine Wesleyan College compound. Under these circumstances, we
cannot fault the trial court for refusing to consider the accused's defense of alibi.

The appellant claims that the trial court denied him the opportunity to present additional witnesses, viz., Mr. and Mrs.
Naagas, faculty members of the Philippine Wesleyan College. We find this claim a very strange one indeed considering
that it was defense counsel who filed before the trial court a Motion Waiving Further Evidence and Resting Case dated
15 September 1977, 9 being apparently content with the denials and the proferred alibi of the accused as corroborated
by his wife.

We turn to the alternative defense of the accused that if he had lain with Filomena Angala, it was with her consent. The
accused sought to throw doubt upon testimony of Filomena Angala that the accused forced himself upon her by
pointing a caliber.38 pistol at her mouth and threatening to kill her if she did not give in to his desires. The accused
pointed to the circumstance that his eight-year old daughter Emalyn was sleeping beside Filomena in the same mat and
under the same mosquito net and that Emalyn was not awakened during Filomena's alleged struggle with the accused.
The accused also suggested that it would be highly improbable for a man to seek to force himself upon a woman in his
own house, with his wife sleeping on the floor above him. 10 In the first place, neither of the circumstances pointed out by
the accused can overcome the explicit and straightforward testimony of Filomena that the accused had not only
threatened her with his handgun but also punched her in the stomach and banged her head against the cemented
floor on which their sleeping mat had been laid out, causing her to lose consciousness for some time. The trial court gave
full credence to Filomena's testimony, while observing, upon the other hand, that the accused appeared to be unsure of
what he was to say. We must note once again that this Court accords high deference to the factual conclusions of the
trial court since the judge had the inestimable advantage of watching and listening to the witnesses as they have gave
their testimony and as they were subjected to cross-examination. 11Moreover, as the Court has noted before, rape has
been committed in many different places including places which to many would appear to be unlikely and high-risk
venues for sexual embraces. 12 There appeal's to us nothing inherently improbable in the account given by Filomena
Angala before the trial court of the copulation she was coerced into by the accused.

Accused also underscored that Filomena Angala had taken about three (3) months before she told of the outrage
allegedly inflicted upon her by the accused to the police authorities. There may be situations where the fact that the
complainant had failed to report promptly to the police her being raped, would generate substantial doubt as to the
truthfulness of her accusation. In the case at bar, however, as the trial court pointed out, the accused had not only
threatened to kill Filomena if she disclosed to anyone what she had been subjected to, but had also exercised strong
moral influence upon the offended party, by reason of his position as an important official in a recognized Protestant
Methodist educational institution like the Philippine Wesleyan College. The trial court said:

The first thrust of the attack set up by the defense is the fact that it was only three months after the
alleged incident when Filomena became emboldened to disclose her alleged horrifying experience.
It is conceded that Filomena refrained from disclosing her experience, first, to Mrs. Rafanan, then to
Marion delos Reyes, a relative of Filomena with whom she stayed for two weeks in Mabini Extension,
and finally, to her mother in Mabini, Isabela where she stayed for a considerable length of time prior
to her departure for Bacoor, Cavite. This is understandable, for during all these time, Filomena was still
stricken both with fear and with hope that she would not become pregnant. Fear, because she was
but a lowly barrio lass, simple and innocent, and would easily and naturally succumb to threats and
intimidation employed upon her by the accused in the evening of February 9, 1974. The central figure
in the life of Filomena inevitably was the accused, being a man of position in a prestigious institution.
While she worked as a lowly housemaid for the Rafanans, she had hoped to pursue further her studies.
The accused was the barrier against hunger and want, and could be her only hope to finish her
nursing course and be able to support her family. Because of this, the accused who had threatened
her during that fateful night as well as Mrs. Rafanan who had requested her not to disclose what
happened, must have had a towering moral influence over Filomena. With this dominance over
Filomena and notwithstanding the fact that his eight-year old daughter was beside Filomena on the
night in question, it was easy and safe for the accused to rape Filomena as it was difficult for the latter
 to frustrate him, nay, for Filomena to denounce him. All these explain the inexorable fact that
although Filomena fought for her honor when the accused deflowered her, she kept to herself her
disgrace until her pregnancy gave her away. Thus on cross examination, she declared:

ATTY. GARCIA

Q: If you did not like to give your parents a problem or you were afraid that they
might hurt you, why did you in fact make the same in public on May 14, 1974? Is it
because you were pregnant?

A: I made a report already because I could not keep the thing that happened to
me a secret anymore because I was already pregnant. And if it only happened
that I did not become pregnant I would not have reported the matter anymore. 13

In People v. Silfavan, 14 the Court observed that:

The delay in prosecuting the rape is not an indication of fabricated charges. If the complainant did
not become pregnant, she probably would never have revealed that she was raped by her uncle.
Many victims of rape never complain or file criminal charges against the rapists. They prefer to bear
the ignominy and pain rather than reveal their shame to the world or risk the rapists making good their
threats to kill or hurt their victims. 15

In the instant case, Filomena had herself stated that had she not become pregnant or been unable to conceal any
further the pregnancy that had ensued from Mr. Rafanan's unwanted attentions, she would not have instituted her
criminal complaint at all.

The suggestion of the accused that Filomena had freely consented to his sexual embrace can scarcely be taken
seriously. Filomena had spoken explicitly and convincingly of the threats and physical violence exercised upon her by
the accused. Moreover, the accused neither alleged nor proved that he had had prior sexual intercourse with Filomena
or that Filomena was a girl of loose morals given to sexual promiscuity.

Accused finally complains that the trial court had held him to be the father of the child allegedly born of Filomena,
notwithstanding the "absence of any valid and proper proof of the circumstance of said birth."

After careful examination of the record of this case, we find no basis at all for overturning the conclusion of the trial court
that the accused had been shown beyond reasonable doubt to have by force and intimidation penetrated Filomena
Angala. We also note that Filomena expressly testified to the fact that she had become pregnant as a result of the
outrage inflicted upon her person and that she gave birth to a child:

Q: Miss Witness, according to you, you were sexually abused by the accused in the
early morning of February 10, 1974, what happened to you after that?

A: I became pregnant, sir.

Q: You stated that you became pregnant, why is it that you are not pregnant
now?

ATTY. BELTRAN:

We would like to place on record that the witness before she answers the question,
cries on the witness stand.

A: Because I have given birth already, sir.

ATTY. BELTRAN:

Q: You stated that you have given birth, where is the child now?
 A: The child is in Bacoor, sir.

COURT:

Do you want to exclude the audience?

ATTY. BELTRAN:

No more, your Honor. 16

xxx xxx xxx

Q: Now, when did you first realize that you are on the family way?

A: Because I did not menstruate. sir. I did not menstruate anymore, sir.

Q: When was that?

A: May be in the middle portion of March, 1974, sir. From the time that happened
to me in February I did not menstruate anymore, sir.

Q: Where did you first realize that you have symptoms (sic) of pregnancy?

A: Because I did not menstruate anymore, sir.

Q: My question now is when you went to the PC on May 1974 were you then
pregnant?

A: Yes, sir.

Q: When you executed your statement before the CIS on 14 May 1974 you realized
before that date, that you were in the family way?

A: Yes, sir.

xxx xxx xxx 17

Q: On the day you wrote this letter, were you aware that you were on the family
way?

A: Yes, sir.

Q: Since when or how many days prior to May 10 that you are aware that you were
on the family way.

A: I was already three months on the family way at that time, sir.

Q: So you felt on the family way sometime in March?

A: Yes, sir, because I did not menstruate anymore.

Q: In March?

A: Yes, sir.
 Q: You were telling the court a while ago that one of the reasons in fact in your
testimony, the main reason why you made this in public, it is because you can not
hide your pregnancy anymore?

A: Yes, sir. 18

It is, of course, also true that the record does not show the identity and personal circumstances of the child born out of
the rape of Filomena. Even so, the Court correctly sentenced the accused "to acknowledge and support her off-spring"
considering the provisions of Article 345 of the Revised Penal Code:

Article 345. Civil Liability of Persons Guilty of Crimes against Chastity. — Persons guilty of rape,
seduction, or abduction shall also be sentenced:

(1) to indemnify the offended woman;

(2) to acknowledge the off-spring, unless the law should prevent him from so doing;

(3) in every case to support the off-spring.

xxx xxx xxx

and Article 283 (1) of the Civil Code of the Philippines:

Article 283. In any of the following cases, the father is obliged to recognize the child as his natural
child:

(1) in cases of rape, abduction or seduction, when the period of the offense coincides more or less
with that of the conception;

xxx xxx xxx

In the case at bar, the record shows that conception had occurred at or about the time that rape been inflicted upon
Filomena by the accused, or more particularly, within 120 days from the commission of the offense. 19 The
acknowledgment required of the accused by the trial court should be understood to be acknowledgment merely of
the filiation of the child; the accused being a married man could not sire an illegitimate natural child, 20 a status which in
any event is no longer recognized under the Family Code of the Philippines.

It should also be noted that since the accused was a High School Principal and as such entrusted with the education
and guidance of youth, the accessory penalties imposed upon him by the law include the penalty of temporary special
disqualification in its maximum period to perpetual special disqualification. 21

The trial court required the appellant to pay, by way of moral damages, the sum of P5,000.00 to Filomena. In
accordance with our more recent case law, 22 that amount should now be increased to P25,000.00 so that Filomena
might be somewhat more fully compensated for the suffering, bitterness and humiliation to which she had been
subjected by reason of appellant's acts.

WHEREFORE, except for the amount of moral damages granted to the offended party which is hereby INCREASED to
P25,000.00, the decision of the trial court dated 27 February 1978 is hereby AFFIRMED, with costs against appellant.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.

Footnotes
1 Rollo, p. 5.

2 Id., p. 19.

3 Ibid., pp. 77-80.

4 People v. Abigan, 144 SCRA 130 (1986); People v. Magdueño, 144 SCRA 210 (1986); People v.
Pielago, 140 SCRA 418 (1985); People v. Catipon, 139 SCRA 192 (1985).

5 154 SCRA 412 (1987).

6 154 SCRA at 425.

7 TSN, 18 February 1977, pp. 10-11.

8 TSN, 9 November 1977, p. 3.

9 Records, p. 79.

10 Appellant's Brief, Rollo, pp. 11, 19 & 28.

11 E.g., People v. Veloso, 148 SCRA 60 (1987), People v. Ramilo, 147 SCRA 102 (1987); People v.
Tuscano, 137 SCRA 203 (1985): People Mendoza, 121 SCRA 149 (1983).

12 E.g., People v. Gamboa, 145 SCRA 289 (1986) (Rape on a pathway twenty [20] meters away from a
beauty contest in progress): People v. Lopez, 141 SCRA 385 (1986) (Rape on the roadside at high
noon); People v. Aragona, 138 SCRA 569 (1985) (Rape on a "pilapil"

where people usually pass by People v. Jones, 137 SCRA 166 (1985) (Rape inside a washroom
adjoining a house).

13 Decision of the trial court, Rollo, pp. 81-82.

14 151 SCRA 617 (1987). See also People v. Sonico, 156 SCRA 419 (1987); People v. Valdez, 150 SCRA
405 (1987).

15 151 SCRA at 629.

16 TSN, 21 January 1976, p. 39.

7 Ibid., p. 44.

8 Ibid., p. 51.

19 Reyes, L.B., The Revised Penal Code, Vol. II, pp. 897-898 (12th Edition; 1981).

20 Article 277, Civil Code of the Philippines.

21 Article 346, Revised Penal Code; see, in this connection, Article 31 of the same Code.

22 E.g., People v. Deus, 136 SCRA 668 (1985).

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 118990 November 28, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FERDINAND BALISNOMO, accused-appellant.

FRANCISCO, J.:

On June 16, 1986, appellant FERDINAND BALISNOMO was charged with raping Ardel Banay, an eleven year old mental
retardate, in an information which reads:

At the instance of the offended party thru her father Arturo Banay who has subscribed and sworn to a
complaint attached to the records of this case, the undersigned Assistant Provincial Fiscal accuses
Ferdinand Balisnomo of the crime of rape committed as follows:

That on or about the 17th day of May, 1983, in the Municipality of Patnoñgon, Province of Antique,
Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named
accused by means of force and intimidation and with lewd designs, did, then and there wilfully,
unlawfully and feloniously have carnal knowledge of the said Ardel Banay against the latter's will.

Contrary to the provisions of Article 335 of the Revised Penal Code.1

Upon arraignment, appellant pleaded not guilty and trial on the merits ensued. During trial, the prosecution presented
Ardel Banay, her father, Arturo Banay and the medico-legal expert, Dr. Deogracias Solis, as witnesses. On direct
examination, Ardel narrated the perpetration of the crime against her as follows:

FISCAL ORCAJADA:

Q Last May 17,1983, at 8:00 (sic) o'clock in the afternoon, could you remember
where you where?

A I was in the house of Lolo Viong.

Q Where is that house located?

A Larioja (sic).

Q Patnoñgon, Antique?

A Yes, Sir.

Q Now, on that date, place and time, could you tell this Honorable Court if
anuthing (sic) happened to you?

A Yes, Sir.

Q What happened to you?

 A I was brought by Ferdinand Balisnomo?

Q Where did he bring you?

A In the house of Lolo Viong.

Q Is that Lolo Viong the owner of the house you said a while ago?

A Yes, Sir.

Q In the house of your Lolo Viong, what did Ferdinand Balisnomo do to you?

A He let me lie down.

Q If this Ferdinand Balisnomo is here in Court, could you kindly point at him?

A That one (witness pointed to the accused Ferdinand Balisnomo).

Q After Ferdinand Balisnomo let you lie down, what did he do further, if any?

A He undressed me.

Q What did Ferdinand Balisnomo do if he did anything?

A He undressed himself also.

Q After Ferdinand Balisnomo had undressed, what did he do to you?

A He lay on top of me.

Q When he layed (sic) on top of you, what did Ferdinand Balisnomo do to you?

A He inserted his penis into my vagina.

Q And what did you feel?

A Pain.2

Arturo Banay testified that: On May 17, 1983 at around three o'clock in the afternoon, he was at their house in La Rioja
when he saw his daughter, Ardel, at the faucet with blood oozing down her thighs. He asked her what happened but
the latter refused to answer. Arturo summoned his wife who asked Ardel the same question, and after several proddings,
Ardel told them that she was raped by the appellant. The couple then brought Ardel to the Health Center for
examination. At the Health Center, Ardel was examined by a nurse who confirmed that she had indeed been sexually
abused. Because of the continuous flow of blood from Ardel's private parts, the couple was advised to bring her to the
hospital for treatment. They immediately proceeded to the Antique Provincial Hospital where Ardel was attended to by
Dr. Deogracias Solis.3 The latter's medical findings show that Ardel suffered the following injuries:

1. Wound, lacerated, superficial, 2mm x 3mm

hymen, 4:00 o'clock.

2. Wound, lacerated, superficial, 1mm x 2mm,

fourchet.

xxx xxx xxx

 REMARKS: Laceration, fresh; bleeding and blood clots
in vaginal canal, slight.4

And her testimony in open court is to the effect that these lacerations could have been caused by the
penetration of a male organ into the vagina.5

For its part, the defense presented the testimonies of appellant and Silverio Roselio or "Lolo Viong". The latter, in
whose house the rape had allegedly taken place, claimed that he remained in the confines of his home the
entire day of May 17, 1983 because he was then suffering from a swollen knee due to rheumatism, and on no
occasion was Ardel present thereat.6

The appellant denied the charges against him and alleged that on the said date and time, he was sleeping in
his house in La Rioja.7 Appellant also testified that previous to the alleged incident, he and Arturo Banay had an
altercation over a sum of money which the latter owed him for some fish that Arturo had bought on credit from
the appellant.8 According to the appellant, the accusation against him was a mere fabrication motivated by
Arturo's desire to get even with him.9

Giving full faith and credence to the testimonies of the prosecution witnesses, and finding that appellant's alibi
was not established by clear and convincing evidence, the Regional Trial Court (RTC) of San Jose, Antique
rendered a decision convicting appellant of the crime charged and sentencing him to suffer the penalty
of reclusion perpetua and to pay the amount of P30,000.00 as indemnity. 10 Aggrieved, appellant comes to this
Court seeking the reversal of his conviction on the ground that the trial court erred in finding him guilty despite
the insufficiency of evidence to warrant conviction beyond reasonable doubt.11

Specifically, appellant contends that the testimony of Ardel whose mental capacity is akin to that of a three-
year old is unworthy of credence.12 Anent this contention, suffice it to state that the fact that the rape victim is
a mental retardate does not per se preclude the trial court from admitting her testimony in evidence nor from
according it full faith and respect.13 This Court has held that:

A mental retardate is not for this reason alone disqualified from being a witness. As in the case of other
witnesses, acceptance of his testimony depends on its nature and credibility or, otherwise put, the
quality of his perceptions and the manner he can make them known to the court. Thus, in People v.
Gerones, the Court accepted the testimony of a rape victim notwithstanding that she had the
mentality of a nine or ten-year old "because she was able to communicate her ordeal...clearly and
consistently.14[Emphasis supplied].

The determination of the competency of witnesses to testify rests largely with the trial court.15 As reiterated by
this Court, the trial judge's assessment of the credibility of the witnesses' testimonies are accorded great respect
on appeal in the absence of grave abuse of discretion on the part of the trial judge who has the advantage of
actually examining both real and testimonial evidence including the demeanor of the witnesses as they
present the same.16 A careful review of the records of the case before us reveals no cogent reason to warrant
a departure from the findings of the trial court with respect to Ardel's credibility. It is the trial court that had the
unequalled opportunity to observe the "quality of Ardel's perceptions and the manner she can make them
known to the court." And as found by the trial court, "she clearly narrated in detail how she was sexually
assaulted by the accused, Ferdinand Balisnomo. Her story is impeccable and rings true throughout and bears
the stamp of absolute with and candor.17

Appellant vainly attempts to destroy Ardel's credibility by presenting Silverio Roselio who testified that the rape
could not have been committed in his house as recounted by Ardel as he did not see her there on the said
date. Silverio's testimony itself offers the explanation for the seeming improbability of Ardel's story. Thus:

Q And Arturo Banay in his direct testimony said that you have two houses located
at La Rioja, is that not correct?

A Yes, sir, the house of my child.

Q Which of these two houses do you stay (sic) permanently?

A In my own house, sir.

Q And where is that house which you said you very (sic) own?

A At La Rioja, Patnongon, Antique.

Q Now, you have already admitted that you have another house. Who is staying in
the other house?

A That house is owned by my child.

Q And what is the name of that child?

A Ramon.

Q And how old is this Ramon?

A 29 years old.

Q Is he living in that other house with somebody else?

A Yes, sir, because that house is owned by him.

Q Now, because your child Ramon was staying there and how far is this house of
yours from this house where Ramon and his wife stay?

A Approximately 3 armslength, sir.

xxx xxx xxx

Q Now, on direct testimony or examination you said that you have never seen
Ardel Banay in the afternoon of May 17, 1983. How about Ferdinand Balisono (sic),
the accused in this case, had you also seen him during that time?

A I have not seen him, sir.

Q How far is this house of Ferdinand Balisnomo from your own house?

A Approximately half kilometer.

Q So, do I understand from you that in the afternoon of May 17, 1983 you did not
know of the whereabouts of your son Ramon and his companion in that other
house?

A Because this son of mine, Ramon, I told him to go to the farm to attend to my
carabao and he just went to my house during night time.

Q While your son Ramon attends to your cattle and to your vegetable garden, is
there any one left in your other house?

A No, sir.

xxx xxx xxx

Q Mr. Witness, you said that on May 17, 1983 you were suffering from pain because
of your swollen knee due to rheumatism and that you could hardly walk or move
around your house, such that you were not able to get out of your house that day,
May 17?
 A Yes, sir.

Q So therefore, you have no way of knowing whether in your other house there
were still occupants or not?

A There's none. There is a dog, sir. My house is secured with fence. How can any
person enter the house because (sic) it is surrounded with fence?

Q And that fence is closed whenever the occupants of that house leaves the
house?

A It is close, sir, and my house has a door.

Q Is that house being occupied by your son Ramon is (sic) enclosed with a fence?

A No, sir, only my house is surrounded with fence.

Q So you will have no way of knowing because of your sickness whether there were
occupants in the house occupied by your son Ramon on that afternoon of May 17,
1983?

A It might be that the house of Ramon has occupants during that time, sir.

Q Meaning to say, you presumed that there were occupants in that house?

A Yes, sir.18 [Emphasis supplied]

There are two houses, three armslength in distance from each other, that are both known to be owned by
Silverio. One was occupied by him and the other by his son and the latter's family. Thus, when Ardel testified
that she was raped in "Lolo Viong's"19 house, she could have been referring to either of these two houses. True,
Silverio stayed in his house the whole day of May 17, 1983 and did not see Ardel nor the appellant therein.
However, the foregoing testimony is also categorical to the effect that he does not actually know if the other
house was unoccupied on the said date and time when Ardel was raped. Unable to leave his house and
check on the other house, he merely presumed that his son's wife remained therein.20

Furthermore, the testimonies of the defense witnesses who did not actually see the commission of the offense
cannot prevail over the positive testimony of the complainant that she was raped by the appellant.21 The lone
testimony of the victim in the crime of rape, if credible, is sufficient to sustain a conviction. This is because from
the nature of the offense, the only evidence that can oftentimes be offered to establish the guilt of the
accused is the complainant's testimony.22

Appellant would like us to believe that the underlying reason for the false accusation against him is an alleged
hostility harbored by Arturo Banay towards him. Appellant's claim is preposterous for there is nothing more
unnatural than for a parent to use his offspring as an engine of malice, especially if it will subject a daughter to
embarrassment and even stigma, as in this case.23 A man puts much premium on his honor and that of his
family's. He has been known to ask all and stake even his life to preserve that honor and keep the family's name
unvarnished. It is thus, unlikely that he would expose his daughter to public ridicule and shame on account of
some minor argument.

Finally, appellant interposes an alibi which, aside from his bare asseverations, remains unsupported and
uncorroborated by other evidence. Nothing is more settled in our jurisprudence in criminal cases than the rule
that alibi is the weakest of all defenses and that the same should be rejected when the identity of the accused
has been sufficiently and positively established by an eyewitness to the crime.24

WHEREFORE, the assailed decision is hereby AFFIRMED subject to the MODIFICATION only as far as the award of
damages is concerned, which is increased to FIFTY THOUSAND PESOS (P50,000.00) in line with current
jurisprudence.25

SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur.

Footnotes

1 Information dated June 16, 1986; Rollo, p. 3.

2 TSN, Ardel Banay, November 24, 1987, pp. 2-3.

3 TSN, Arturo Banay, June, 1988, pp. 2-3.

4 Record of Confinement dated May 20, 1983; Records, p. 3.

5 TSN, Dr. Deogracias Solis, September 8, 1988, p. 3.

6 TSN, Silverio Roselio, November 8, 1991, p. 3.

7 TSN, Ferdinand Balisnomo, October 22, 1992, p. 2.

8 Id. at p. 3.

9 Brief for the Appellant, p. 6; Rollo, p. 39.

10 DECISION in Criminal Case No. 3241 dated January 29, 1993, pp. 7-8; Rollo, pp. 48-49.

11 Supra note 9 at p. 1; Rollo, p. 34.

12 Id. at p. 5; Rollo, p. 38.

13 In the case of People v. Quinones (222 SCRA 249 [1993]), the conviction of the accused was base mainly on
the testimony of the 25-year old complainant, although she was found to have the mentality of a three (3) or
four (4) year old child. Similarly, in People v. Antonio (233 SCRA 283[1994]), this Court relied on the testimony of
the mentally retarded complainant and held that the positive testimony of the victim being credible is sufficient
to sustain the conviction of the accused.

14 People v. Salomon, 229 SCRA 403, 409 (1994); People v. Gerones, 193 SCRA 263 (1991).

15 People v. Gerones, id., p. 267; People v. Rizo, 189 SCRA 265, 272 (1990).

16 People v. Gerones, id., People v. Bravo, 180 SCRA 694 (1989); People v. Ramos, 167 SCRA 476 (1988); People
v. Jarzi, 163 SCRA 307 (1988).

17 Supra note 10 at pp. 7-8; Rollo, pp. 48-49.

18 Supra, note 6 at pp. 5-7.

19 Also known as Silverio Roselio.

20 Supra note 18.

21 People v. De Dios, 187 SCRA 228, 246 (1990).

22 People v. Antonio, supra note 13 at p. 299; People v. Tismo, 204 SCRA 535 (1991); People v. Matrimonio, 215
SCRA 613 (1992).

23 People v. Salomon, supra note 14 at p. 410.

 24 People v. Namayan, 246 SCRA 654-655 (1995); People v. Bongadillo, 234 SCRA 233 (1994); People v. Retuta,
234 SCRA 645 (1994); People v. Amaro, 235 SCRA 8 (1994).

25 People v. Papa Talaboc, G.R. No. 103290, April 23, 1996; People v. Abendano, 312 Phil. 625 [1995]; People v.
Sartagoda, 221 SCRA 251 (1993).

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. Nos. 77737-38 August 15, 1988

CHRISTINA MARIE DEMPSEY, a minor and represented by her mother, Janalita Rapada, and THE PEOPLE OF THE
PHILIPPINES, petitioners,
vs.
REGIONAL TRIAL COURT, BRANCH LXXV, Third Judicial Region, Olongapo City, and JOEL DEMPSEY, respondents.

Estanislao L. Cesa, Jr. for petitioners.

Miguel F. Famularcano, Jr. for respondents.

GUTIERREZ, JR., J.:

This is a petition denominated as one for review on certiorari and/or a special civil action for certiorari from the decision
rendered by the respondent court on November 28, 1986 in Criminal Cases Nos. 460-86 and 461-86, entitled "The People
of the Philippines v. Joel Dempsey."

On January 30, 1986, two separate informations were filed against respondent Joel Dempsey before the Municipal Trial
Court, Branch II, Olongapo City charging him with violation of Article 59 (par. 2) of P.D. 603 and Article 46, par. 8 of P.D.
603.

The Informations read:

Criminal Case No. 68-86

That on or about and during the period from December 1985 to the present, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then
and there wilfully, unlawfully and feloniously leave their conjugal dwelling at No. 15 Ohio Street, Upper
Kalaklan, Olongapo City and abandon his child Christina R. Dempsey and deprive him (sic) of his love,
care and protection she from the accused (sic) since then, by continuously failing and refusing to give
adequate support to the said minor child and despite pleas, the accused without lawful justification,
failed, disregarded and still continues to fail and disregard to perform his obligations to his said minor
child Christina R. Dempsey,

CONTRARY TO LAW.

Criminal Case No. 69-86

That on or about and during the period from December 1985 to the present, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then
and there wilfully, unlawfully and criminally fail and refuse to provide his child Christina R. Dempsey
with adequate support, as defined in Article 290 of the Civil Code, despite the fact that he is capable
 of supporting his child, and despite pleas, the accused without lawful justification, failed and refused
and still fails and refuses to provide his child with adequate support, to the damage and prejudice of
the said child.

CONTRARY TO LAW. (Rollo, pp. 18-19)

The facts of the case are summarized by the Trial Court as follows:

xxx xxx xxx

The testimony of complainant Janalita Rapada purports to show that in her cohabitation with the
accused, without the benefit of marriage, Christina Marie was born on October 01, 1984, at the St.
Jude's Family Clinic, Olongapo City where she delivered the child. Her birth certificate, Exhibit "A"
bears an entry of the name of the accused as the father and Exhibit "A-1 " the Affidavit of the
Acknowledgment duly signed by him.

At the present, the child receives a monthly support from the accused in the sum of $150.00 thru the
child's mother, Janalita Rapada. Aside from this monthly support, Janalita Rapada obtained a
promise from the accused to declare Christina Marie as his dependent and also a commitment to
declare the child after his citizenship. This will entitle the child for all the benefits and privileges
extended to dependents of American US Navy servicemen like free medical check-up. Efforts were
made with the Naval Legal Service Office, US Naval Facilities, Subic Bay, Philippines to compel the
accused to fulfill these commitments but to no avail. To seek redress thru the Court, she engaged the
services of Atty. Estanislao L. Cesa, Jr., offering P5,000.00 as Attorney's fee payable after the cases are
decided.

xxx xxx xxx

At the Naval Legal Service Office, someone entertained her demand for the accused to declare
Christina Marie as his dependent and after his American citizenship. She was of the belief that these
could be done not knowing that the American who entertained her demands had no authority to
effect the same. (Rollo, pp. 21-22)

Upon arraignment, the private respondent freely, voluntarily, and spontaneously entered a plea of guilty to the offense
charged in the Information.

On August 26, 1986, the Trial Court rendered a decision, the dispositive portion of which reads:

WHEREFORE, finding the accused guilty beyond reasonable doubt of the charges against him,
considering the mitigating circumstances of his voluntary plea of guilty, this Court sentences him to a
prison term of Three (3) Months and Eleven (11) days to Four (4) months of Arresto Mayor, medium
period and fine of Three hundred (P300.00) Pesos for each of the cases and to pay the costs.

For the civil liability, judgment is rendered against accused Joel Dempsey confirming the payment of
US $150.00 monthly support to Christina Marie and to continue payment thru Janalita Rapada, to be
used solely for the needs of the child until she reaches the age of majority; to recognize the child
Christina Marie as his natural child; to pay Christina Marie thru Janalita Rapada the sum of P10,000.00
as exemplary damage; and to pay the sum of P5,000.00 as attorney's fee to Atty. Manuel Rosapapan
as Chairman of the Committee on Legal Aid of the IBP Chapter of Zambales Olongapo City and the
same to form part of the legal aid fund.

SO ORDERED. (Rollo, pp. 23-24)

The private respondent appealed the municipal trial court's decision to the regional trial court and prayed that the
award on civil liability be set aside and the penalty of imprisonment be reduced to a penalty of fine only.

In a decision rendered on November 28, 1986, the respondent regional trial court reversed the municipal trial court's
decision on the following grounds:
1. Parental authority to which certain parental obligations are attached pertains only to legitimate and adopted
children unlike petitioner who is an acknowledged illegitimate minor child of private respondent; that in cases of
abandonment of minors, the proper forum is the Department of Social Welfare where the person to whom the minor has
been left must report immediately (Art. 161, P.D. 603).

2. A person cannot he held criminally liable for failure to support a minor child.

3. The Municipal Trial Court had determined a matter not within its competence and authority.

Hence, the present petition on pure questions of law.

The petitioner maintains that the penalty of imprisonment and fine in both cases is sanctioned by the law and
jurisprudence and that the award of civil liability is justified.

We find merit in the instant petition.

The respondent court committed reversible error when it failed to take into account that the decision of the municipal
trial court was based on the private respondent's plea of guilty. Respondent Joel Dempsey did not and does not
challenge the validity of Presidential Decree No. 603, Articles 46 and 59 on certain obligations of parents to their children
and Articles 60 and 210 penalizing violations of mandatory provisions. As a matter of fact, respondent Dempsey's appeal
impliedly recognizes the validity of the judgment of conviction because he asked that the penalty of imprisonment be
changed to fine, not that the trial court's decision was void or that he be acquitted.

There can be no question about the trial court's jurisdiction over the criminal prosecutions. Article 69 of P.D. 603 penalizes
abandonment of a minor child by its parent, as provided in Article 59, with imprisonment from two to six months or a fine
not exceeding five hundred pesos or both. Article 210 penalizes a violation of the obligation to give adequate support
found in Article 46 with imprisonment not exceeding one month or a fine not exceeding two hundred pesos or both,
unless a higher penalty is provided for in the Revised Penal Code or special laws.

The respondent court erred in its ruling that the trial court determined a matter not within its competence and authority.
There is likewise no basis for its gratuitous finding that a parent cannot be held criminally liable under P.D. 603 for
withholding support from his minor child. There is absolutely no discussion on this ruling. The records show, however, that
Joel Dempsey's plea of guilt to the charge of withholding support from his minor daughter was made without a full
understanding of that particular charge. Janalita Rapada herself testified that she is receiving $150.00 a month for the
support of the minor Christina Marie Dempsey. The amount of P3,000.00 monthly appears to fulfill the requirement of
"adequate support" found in Par. 8, Art. 46 of P.D. No. 603. What Rapada wants is a judicial declaration for this support to
continue. This cannot be the basis of a criminal conviction.

As to the information charging abandonment, the private respondent entered his plea of guilt with full knowledge of the
consequences and meaning of his act and with the assistance of his counsel. The reversal of conviction based on a plea
of guilty is an act which is not at all explained by the respondent court and, therefore, in excess of its jurisdiction. It is well-
settled as a general rule that a plea of guilt is sufficient to sustain conviction without introduction of further evidence
(People v. Formentera, 130 SCRA 114; People v. Balisacan, 17 SCRA 119; People v. Gravino, et al., 122 SCRA 123; People
v. Pajarillo, 94 SCRA 828). Only in such exceptional cases as capital offenses is evidence still required.

The respondent court further ruled that Christina Dempsey is not entitled to the rights arising from the parental
responsibility of her father, she being an illegitimate child. Reliance was made on Art. 17 of P.D. 603 which defines the
joint parental authority of parents over their legitimate or adopted children. The respondent court's observations are
wrong because the law itself protects even illegitimate children. Illegitimate children have rights of the same nature as
legitimate and adopted children. This is enunciated in Art. 3, P.D. 603 which provides that "all children shall be entitled to
the rights herein set forth without distinction as to legitimacy or illegitimacy, sex, social status, religion, political
antecedents, and other factors." Rights must be enforced or protected to the extent that it is possible to do so.

The Solicitor General points out that the new Family Code promulgated as Executive Order No. 209, July 17, 1978 erases
any distinction between legitimate or adopted children on one hand and acknowledged illegitimate children on the
other, insofar as joint parental authority is concerned. Article 211 of the Family Code, whose date of effectivity is
approaching, merely formalizes into statute the practice on parental authority.

The respondent court would shift jurisdiction over the case from the municipal trial court to the Department of Social
Services and Development. It is readily apparent that the DSSD cannot take cognizance of and enforce the criminal
sanctions of P.D. 603. Besides, Christina Marie Dempsey is not an abandoned child in the strict sense of the word as she is
still in the custody and care of her mother. Art. 141 of P.D. 603 defines an abandoned child as follows: "... Am
abandoned child is one who has no parental care or guardianship or whose parents or guardians have deserted him for
a period of at least six continuous months ... ." Article 161 cannot, therefore, be applied to the case at bar. Thus, it is not
the Department of Social Services and Development which has jurisdiction but the Municipal Trial Court.

There is one other point which has to be corrected. As part of the civil liability in its judgment, the trial court required the
accused to recognize Christina Marie as his natural child. This should not have been done. The recognition of a child by
her father is provided for in the Civil Code and now in the new Family Code. In this criminal prosecution, where the
accused pleaded guilty to criminal charges and the issue of recognition was not specifically and fully heard and tried,
the trial court committed reversible error when it ordered recognition of a natural child as part of the civil liability in the
criminal case.

We also agree with the respondent regional trial court that the penalty imposed is erroneous. The award of exemplary
damages and attorney's fees is improper. Although fathers like Joel Dempsey should be deterred from committing similar
acts of irresponsibility, the law does not allow us to affirm the grant of exemplary damages only on the basis of the facts
herein presented. Exemplary damages cannot be awarded inasmuch as there is not one or more aggravating
circumstances (Art. 2230, Civil Code).

As to the penalties, we agree with the Solicitor General that these should be modified accordingly. And finally, it should
be noted that the Regional Trial Court after declaring that the Municipal Trial Court acted outside of its competence
merely set aside the appealed decision. Instead of acquitting the accused, it suggested the filing of necessary pleadings
before the proper court.

WHEREFORE, the questioned decision of the Regional Trial Court of Olongapo City, Branch 75 of the Third Judicial Region
is hereby REVERSED and SET ASIDE. The decision of Branch II of the Municipal Trial Court of Olongapo City is REINSTATED
with the modification that in Criminal Case No. 6886, Joel Dempsey is sentenced to imprisonment of One (1) month and
to pay a fine of Three Hundred Pesos (P300.00) while in Criminal Case No. 69-86 he is ACQUITTED.

SO ORDERED.

Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 96712 July 20, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ERNESTO VILLANUEVA, accused-appellant.

GRIÑO-AQUINO, J.:p

This is an appeal of the accused, Ernesto Villanueva, from the decision dated February 20, 1990 of the Regional Trial
Court of Tabaco, Albay, Branch 15, which found him guilty of rape against the person of Esperanza Mayor.

As gathered from the records of the case, the facts are as follows:

On July 30, 1988, at about 9:00 o'clock in the morning, Esperanza Mayor was gathering firewood in the land of Basilia
Casim in Barangay Comun, Municipality of Malinao, Albay. She found a coconut on the ground and was trying to
unhusk it with her bolo when suddenly, she heard the accused, Ernesto Villanueva, saying in their native dialect: "It is
good that you are around because I was looking for you for sometime now and I have something to do with you" (p.
18, Rollo). The accused, who was brandishing a bolo, grabbed her by her wrists forcing her to drop her bolo. He warned
her not to shout or he would kill her. He dragged her a short distance away and forced her to lie down. The complainant
struggled to free herself, but the accused, who was stronger than her, prevailed. He pulled down her skirt and panty and
thereafter removed his short pants. He lay on top of her and had sexual intercourse with her. After having satisfied his lust,
the accused got up and warned the complainant not to report the incident to anyone otherwise harm would befall her
family (pp. 8-17, tsn, May 23, 1989).

Sometime later, in August 1988, the complainant's husband asked her to go to the place of the incident to get some
vegetables, but she refused saying that she would not dare go there alone because she did not want the same incident
which befell her in July to happen again. She was thus forced to reveal to her husband the sexual assault which the
accused had committed against her. When her husband learned of it, he was furious and beat her up which caused her
to be hospitalized at the Ziga Memorial Hospital for four (4) days.

The complainant's family thereafter moved to San Ramon, Tabaco, Albay. After they had settled in Tabaco, the
complainant and her husband were able to muster enough courage to report to the police at Malinao, Albay the crime
that had been committed against Esperanza (pp. 23-28, tsn, May 23, 1989).

Appellant was charged with the crime of rape in the following Information:

That on or about the 30th day of July 1988, at about 9:00 AM., more or less, in Barangay Comun,
municipality of Malinao, province of Albay, Philippines, and within the jurisdiction of this Honorable
Court, above-named accused with lewd design and by means of force, violence and intimidation,
while armed with a bolo, did then and there wilfully, unlawfully and feloniously, take hold the both
hands of the herein complainant ESPERANZA MAYOR and drag her on a grassy place, then threaten
her not to shout or else accused will kilt her then forcibly take off her skirt and panty then forced her to
lay down on the grassy place then lay on top of her and forcibly insert his sexual organ to her vagina
and succeeded in having carnal knowledge against her will and consent and to the damage and
prejudice of the herein complainant to be determined by this Honorable Court. (p. 7, Rollo.)

Upon arraignment, on April 12, 1989, appellant entered a plea of not guilty.

After due trial, the lower court found him guilty as charged. The dispositive portion of the court's decision dated February
20, 1990, reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding the accused Ernesto
Villanueva guilty beyond reasonable doubt of the crime of RAPE, and sentencing him to suffer the
penalty of RECLUSION PERPETUA with the accessory penalties provided by law thereof.

Said accused is further ordered to pay private complainant Esperanza Mayor the total sum of THIRTY
THOUSAND PESOS (P30,000.00) as actual, moral and exemplary damages and finally to pay the costs
hereof. (p. 29, Rollo.)

Hence, this appeal by the accused, in which he alleges that:

The trial court committed grave error in not finding that the prosecution was not able to establish the
guilt of the accused-appellant beyond reasonable doubt. (p. 55, Rollo.)

The appeal has no merit.

Rape is a crime which is not normally committed in the presence of witnesses, hence, courts merely rely on the credibility
of the complainant's testimony when weighed against that of the accused (People vs. Barranco, 177 SCRA 103).

In the case at bar, we find the complainant's, testimony more credible than that of the appellant. Appellant's claim that
the manner by which the offended woman was allegedly raped defies human experience is not meritorious. The
appellant based this argument on the victim's declaration that while the appellant lay on top of her, holding with his
right hand the victim's right hand, the appellant at the same time went through the motions of removing the victim's skirt
and panty and thereafter removed his pants and underwear.

We do not find that testimony incredible for as found by the trial court, the appellant is a "husky male of hefty built (sic)
and quite taller and stronger than the victim who is of ordinary built (sic) and height" (p. 24, Rollo). Being obviously
stronger than his victim, it was not impossible for the accused to perform the sexual act in the manner narrated by the
complainant.

The Court does not agree with the appellant's contention that complainant's conduct during and after the alleged rape
was not consistent with normal human behavior.

While it is true that the complainant was in possession of a 1 1/2-foot-long bolo when the appellant surprised her, the
weapon fell from her hand when the appellant grabbed her wrists (p. 19, tsn, May 23, 1989). Having lost her weapon, she
could not use it to defend her honor.

The silence of the complainant after the rape, and her family's departure from Malinao after she disclosed the outrage
to her spouse, were not inconsistent with normal human behavior, for the shock of being so victimized and her
awareness of her husband's violent temper (as he did react violently when she disclosed the crime to him) and the
appellant's threats against her and her family, naturally restrained her from immediately reporting the crime to the
authorities and impelled her and her husband to move to another municipality before taking action against the
appellant.

That the complainant was mauled by her husband when he learned of the incident was irrational but not an unnatural
human reaction. In one case, this Court held that the anger of the rape victim's father at his daughter when he was told
about the rape, did not negate the commission of the offense. People act irrationally under shocking circumstances
(People vs. Malabad, 133 SCRA 392).

The victim's delay in reporting the rape to her husband was due to appellant's threat that he would harm her family if she
revealed the incident to anyone. The victim's husband testified that they let some days pass before reporting the matter
to the police in order that they could first leave Barrio Comun (the place of the incident) and move to San Ramon,
Tabaco, Albay, because they were afraid of the appellant's threats (pp. 6-7, tsn, May 31, 1989).

It has been held by this Court that the victim's delay in reporting the rape, due to death threats made by the accused,
should not be taken against the victim (People vs. Lucas, 181 SCRA 316).

Appellant maintains that the complainant had an ulterior motive in falsely charging him with rape because he caught
her taking coconuts from his plantation. However, it appears highly unthinkable for a married woman to concoct a false
charge of rape and prefer to be exposed to the embarrassment and humiliation of a public trial for rape, if such were
not the truth. Complainant would not risk ruining her future and exposing herself and her family to ridicule if her charges
were not true (People vs. Cariño, Sr., 167 SCRA 285).

Appellant's alibi cannot save him. For this defense to prosper, he must prove that he was at a place so far removed from
Barangay Comun that it was physically impossible for him to have been at the scene of the crime when the same was
committed (People vs. Hortillano, 177 SCRA 729). The trial court observed in this case that the mountain of Ogob,
Malinao, Albay where the accused, with four others, was supposedly stripping abaca when the complainant was raped,
is only tour (4) kilometers distant, or less than two (2) hours walk away from the scene of the crime (p. 138, Rollo).
Therefore, it was not physically impossible for him to have committed it.

IN VIEW OF ALL THE FOREGOING, we find no reversible error in the appealed decision, hence, hereby AFFIRM it in toto,
with costs against the accused-appellant, Ernesto Villanueva.

SO ORDERED.

Cruz, Medialdea and Bellosillo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-43955-56 July 30, 1979

RENATO LAZATIN alias RENATO STA. CLARA, petitioner,
vs.
HONORABLE JUDGE JOSE C. CAMPOS, JR., NORA L. DE LEON, BERNARDO DE LEON, ARLENE DE LEON and IRMA L.
VELOSO, respondents.

Ernesto T. Zshornack, Jr. for petitioner.

Jose W. Diokno Law Office private respondents the Leons.

Arturo E. Balbastro for privates respondent Veloso.

TEEHANKEE, J.:1äwphï1.ñët

The Court dismisses the petition which seeks to overrule respondent judge's orders declaring that petitioner has failed to
establish by competent evidence his alleged status as an adopted child of the deceased Lazatin spouses and prays for
judgment of this Court "declaring as established the fact of (his) adoption as a son of the deceased spouses entitling him
to succeed in their estates as such." Respondent judge correctly ruled that he could not allow petitioner (who had filed a
motion to intervene in the proceedings to probate the will of the late Margarita de Asis Vda. de Lazatin and to settle her
estate as her adopted son, after having earlier filed a motion to intervene in the intestate proceedings of her pre-
deceased husband as his admitted illegitimate [not natural] son), over the opposition of private respondents, to
introduce evidence that he had "enjoyed ... the status of an adopted child of the without his first producing competent
and documentary that there had been judicial proceedings for his by the said spouses which resulted in the final
judgment of a competent court decreeing his adoption.

On January 13, 1974, Dr. Mariano M. Lazatin diamond intestate in Pasay City, survived by his wife, Margarita de Asis, and
his adopted twin daughters, respondent Nora L. de Leon, married to respondent Bernardo de Leon, and respondent
Irma Lazatin, married to Francisco Veloso.

One month after Mariano's death, his widow, Margarita de Asis, commenced an intestate proceeding before the Court
of First Instance of Pasay, docketed as Sp. Proc. No. 2326-P. Mariano, Oscar, Virgilio and Yvonne, claiming to be
admitted illegitimate (not natural) children of Dr. Lazatin with one Helen Munoz, intervened. Subsequently, one Lily
Lazatin also intervened, claiming to be another admitted illegitimate (not natural) child.

Two months after or on April 11, 1974, the widow, Margarita de Asis, also died, leaving a & holographic will executed on
May 29, 1970, providing, among others, for a legacy of cash, jewelry, and stocks to respondent Arlene de Leon, a
granddaughter; a legacy of support to Rodolfo Gallardo, a son of her late sister; and a legacy of education to Ramon
Sta. Clara, son of petitioner Renato Lazatin alias Renato Sta. Clara.

During her lifetime, Margarita de Asis kept a safety deposit box at the People's Bank and Trust Company, Roxas
Boulevard branch, which either she or respondent Nora L. de Leon could open. Five days after Margarita's death,
respondent Nora L. de Leon, accompanied by her husband, respondent Bernardo de Leon, opened the safety deposit
box and removed its contents: (a) shares of stock; (b) her adoption papers and those of her sister, respondent Irma L.
Veloso; and (c) jewelry belonging to her and to her mother. Respondent Nora L. de Leon claims that she opened the
safety deposit box in good faith, believing that it was held jointly by her and her deceased mother. Her sole reason for
opening the box was to get her stock certificates and other small items deposited therein. When she was to close the
deposit box, the bank personnel informed her that she needed an authority from the court to do so, in view of her
mother's death and so, she removed everything from the box.

On June 3, 1974, private respondents filed a petition to probate the will of the late Margarita de Asis, before docketed as
Sp. Proc. No. 2341-P of respondent Court, Days after having learned that respondent Nora L. de Leon had opened this
safety deposit box, petitioner's son, Ramon Sta. Clara, filed a motion in the probate court, claiming that the deceased
had executed a will subsequent to that submitted for probate and demanding its production. He likewise prayed for the
opening of the safety deposit box. Respondent Nora L. de Leon admitted that she opened the box but there was no will
or any document resembling a will therein.

Upon the order of the probate court, presided over by Judge Arsenio B. Alcantara, the safety deposit box was opened
on November 6, 1974, at which time it was found to be empty, because prior thereto respondent Nora L. de Leon had
already removed its contents.
On November 22, 1974, or seven months after, the death of Margarita de Asis, petitioner intervened for the first time in
the proceedings to settle the estate of the late Dr. Mariano M. Lazatin (Sp. Proc. No. 2326- P), as an admitted illegitimate
(not natural) child.

Under the same date of November 22, 1974, petitioner's son, Ramon, filed a petition in the estate proceedings of
Margarita de Asis to examine private respondents on the contents of the safety deposit box, Whereupon, on January 31,
1975, the probate court ordered respondent Nora L. de Leon to deliver the properties taken from the safety deposit box
to the Clerk of Court. Subsequently, however, the two cases (Sp. Proc. No. 2326-P, Mariano Lazatin, and 2341-P,
Margarita de Asis) were transferred to the sala of respondent Judge Jose C. Campos, Jr.

On May 29, 1975, Judge Campos issued an order requiring counsel for respondents Nora L. de Leon and Bernardo de
Leon to produce all those papers and items removed from the safety deposit box and to deliver the same to the
custody of the court within one week. Within the period ordered, respondent Nora L. de Leon deposited with the Clerk of
Court, not the items themselves, but two keys to a new safety deposit box which could only be opened upon order of
the court.

On August 20, 1975, petitioner Renato to Lazatin alias Renato Sta. Clara filed a motion to intervene in the estate of
Margarita de Asis, Sp. Proc. No. 2341-P, as an adopted child, on the basis of an affidavit executed by Benjamin Lazatin,
brother of the deceased Dr. Mariano M. Lazatin, the petitioner was an "illegitimate son" of Dr. Lazatin and was later
adopted by him. This affidavit was later modified on August 19, 1975 to state that petitioner was adopted by both
Mariano M. Lazatin and his wife Margarita de Asis.

On September 29, 1975, Judge Campos found respondent' Nora L. de Leon guilty of contempt of court for not
complying with the orders of January 31, 1975 and May 29, 1975, requiring her to produce and deliver to the court an
the papers and items removed from the safety deposit box. Her former counsel was also found guilty of contempt,
sentenced to pay a fine of P00.00 and suspended from appearing in the two cases (Sp. Proc. No. 2326-P, Mariano M.
Lazatin, and Sp. Proc. No. 2341-P, Margarita de Asis), on her testimony that she, Nora L. de Leon, acted upon his advice.

Respondent court heard petitioner's motion to intervene as an adopted son in the estate of Margarita de Asis, Sp. Proc.
No. 2341-P, at which hearings petitioner presented no decree of adoption in his, favor. Instead, petitioner attempted to
prove, over private respondents' objections, that he had recognized the deceased spouses as his parents; he had been
supported by them until their death; formerly he was known as "Renato Lazatin" but was compelled to change his
surname to "Sta. Clara" when the deceased spouses refused to give consent to his marriage to his present wife; that at
first, he and his wife stayed at the residence of Engracio de Asis, father of Margarita, but a few months later, they
transferred to the Mercy Hospital at Taft Avenue, Manila, owned by the deceased spouses, where they continuously
resided up to the present. Photographs were also intended to be presented by petitioner, e.g., photograph of Irma
Veloso where she addressed herself as sister of petitioner; photograph of deceased Margarita de Asis and petitioner
when he was a boy; document showing that petitioners real name is "Renato Lazatin." 1

Respondent court first reserved its ruling on private respondents' objections to the admission of petitioner's evidence, but
on November 14, 1975, when petitioner could not present evidence on the issue of his alleged legal adoption,
respondent court discontinued the hearing and gave the parties time to file memoranda on the question of the
admissibility of the evidence sought to be introduced by petitioner.

On March 4, 1976, respondent court barred the introduction of petitioner's evidence because: têñ.£îhqwâ£

All the evidence submitted by Renato and Ramon Sta. Clara through their counsel do not prove or
have no tendency to prove the existence of any judicial proceeding where the adoption of the
parties above named were taken up by any court. Neither do the evidence tend to establish the
presence of any record of a proceeding in court where the adoption of the above named persons
was held. The evidence, however, tends to prove a status of a recognized natural child which,
however, is not the legal basis for which Renato and Ramon seek to intervene in this proceedings. In
view thereof, and taking into consideration the evidence heretofore presented by the petitioners, any
further introduction of similar evidence, documentary or oral, would not prove or tend to prove the
fact of their adoption but rather of a recognized natural child.

Petitioner then filed on March 16, 1976, in both cases, a motion to declare as established the fact of adoption in view of
respondent Nora L. de Leon's refusal to comply with the orders of respondent court to deposit the items she had
removed from the safety deposit box of Margarita de Asis. As authority therefor, petitioner invokes the sanction of Rule
29, Section 3 of the Rules of Court, since according to him, the order of the court for the production of the items in the
safety deposit box can be considered as an order for production and inspection of documents under Rule 27.
Private respondents opposed the motion, and on March 26, 1976, respondent court denied petitioner's motion. On April
26, 1976, respondent Nora L. de Leon deposited with respondent court the items she had removed from the safety
deposit box. An inventory was conducted by respondent court, with notice to the parties, and the items surrendered
consisted only of pieces of jewelry and stock certificates.

On June 3,1976, respondent court, ruling on petitioners motion for definite resolution on his previous n declare as
established the fact of adoption, issued the f order: têñ.£îhqwâ£

As far as the case of Renato Sta. Clara is his Petition to establish his status as an adopted child, The
Court has ruled that he has failed to establish such status. The any motion for reconsideration unless
based on some documentary proof.

Hence, the petition at bar.

We find the ruling of the respondent court to be in conformity with law and jurisprudence.

1. Adoption is a juridical act, a proceeding in rem 2 which creates between two persons a relationship similar to that
which results from legitimate paternity and filiation. 3 Only an adoption made through the court, or in pursuance with the
procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. 4 It is not of natural law at all, but is
wholly and entirely artificial. 5 To establish the relation, the statutory requirements must be strictly carried out, otherwise,
the adoption is an absolute nullity. 6 The fact of adoption is never presumed, but must be affirmatively proved by the
person claiming its existence. The destruction by fire of a public building in which the adoption papers would have been
filed if existent does not give rise to a presumption of adoption nor is the destruction of the records of an adoption
proceeding to be presumed. On the contrary, the absence of a record of adoption has been said to evolve a
presumption of its non-existence. 7 Where, under the provisions of the statute, an adoption is effected by a court order,
the records of such court constitute the evidence by which such adoption may be established. 8

2. Petitioner's flow of evidence in the case below does not lead us to any proof of judicial adoption. We can not pluck
from his chain of evidence any link to the real existence of a court decree of adoption in his favor. Petitioner's proofs do
not show or tend to show that at one time or another a specific court of competent jurisdiction rendered in an adoption
proceeding initiated by the late spouses an order approving his adoption as a child of the latter. No judicial records of
such adoption or copies thereof are presented or attempted to be presented. Petitioner merely proceeds from a
nebulous assumption that he was judicially adopted between the years 1928 and 1932. By what particular court was the
adoption decreed or by whom was the petition heard, petitioner does not even manifest, much less show. There are no
witnesses cited to that adoption proceeding or to the adoption decree. Apparently on the assumption that the
adoption was commenced in Manila, petitioner's counsel secured a certification from the Court of first Instance of
Manila which, however, negatively reported "(T)hat among the salvaged records now available in this Office, there has
not been found, after a diligent search, any record regarding the adoption of Mr. Renato Lazatin alias Renato Sta. Clara
allegedly filed sometime in the years 1928 to 1931 by the spouses Dr. Mariano M. Lazatin and Margarita de Asis Lazatin."
The certification of the Local Civil Registrar of Manila "(T)hat our pre-war records relative to decisions of the Court of First
Instance were either destroyed or burned during the Liberation of the City of Manila," does not furnish any legal basis for
a presumption of adoption in favor of petitioner. This is because there was no proof that petitioner was really adopted in
Manila or that an adoption petition was filed in the Court of first Instance of Manila by the deceased spouses, where,
after hearing, a judgment of approval was rendered by said court. Moreover, if there was really such adoption,
petitioner could have conveniently secured a copy of the newpaper publication of the adoption as required under
Section 4, Rule 99 of the Rules of Court (formerly Section 4, Rule 100) or a certification of the publishing house to that
effect. Petitioner's failure on this point is anotherer strong indication of the non-existence of the one who gave the written
consent of the non-existence of the adoption paper. We also observed to the adoption (Section 3, Rule 99, Rules of
Court), whether the parents or orphanage, does not appear on this point is not so difficult and such proof must be
presented if only to prove the real existence of the adoption. And of course, if the war, the clear right and duty of
petitioner was to duly reconstitute the records as provided by law.

3. The absence of proof of such order of adoption by the court, as provided by the statute, cannot be substituted by
parol evidence that a child has lived with a person, not his parent, and has been treated as a child to establish such
adoption. 9 Even evidence of declaration of the deceased, made in his lifetime, that he intended to adopt a child as his
heir, and that he had adopted him, and of the fact that the child resided with the deceased, as a member of his family,
from infancy until he attained his majority, is not sufficient to establish the fact of adoption.10 Nor does the fact that the
deceased spouses fed, clothed, educated, recognized and referred to one like petitioner as an adopted child,
recognized and referred to one like petitioner as an adopted child, necessarily establish adoption of the child. 11 Withal,
the attempts of petitioner to prove his adoption by acts and declarations of the deceased do not discharge the
mandatory presentation of the judicial decree of adoption. The thrust of petitioner's evidence is rather to establish his
status as an admitted illegitimate child, not an adopted child which status of an admitted illegitimate child was — the
very basis of his petitioner for intervention in the estate proceedings of the late Dr. Lazatin, as above stated. (Supra, at
page 3 hereof)

We do not discount though that declarations in regard to pedigree, although hearsay, are admitted on the principle
that they are natural expressions of persons who must know the truth. 12 Pedigree testimony is admitted because it is the
best that the nature of the case admits and because greater evil might arise from the rejection of such proof than from
its admission. 13 But, in proving an adoption, there is a better proof available and it should be produced. The
whereabouts of the child's family and circulation of the jurisdiction in which they resided and investigation in those courts
where adoption are usually granted would surely produce an adoption order, if indeed there was an order. 14 Besides,
since the point in favor of receiving hearsay evidence upon matters of family history or pedigree is its reliability, it has
been set forth as a condition upon which such evidence is received that it emanate from a source within the family.
Pursuant to this view, before a declaration of a deceased person can be admitted to prove pedigree, or ancestry, the
relationship of the declarant, by either of blood or affinity to the family in question, or a branch thereof, must ordinarily
be established by competent evidence. 15 Section 33 of Rule 130 states: "The act or declaration of a person deceased,
or outside of the Philippines, or unable to testify, in respect to the pedigree of another person related to him by birth or
marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two
persons is shown by evidence other than such actor declaration ..."

4. Secondary evidence is nonetheless admissible where the records of adoption proceedings were actually lost or
destroyed. But, prior to the introduction of such secondary evidence, the proponent must establish the former existence
of the instrument. The correct order of proof is as follows: Existence; execution; loss; contents; although this order may be
changed if necessary in the discretion of the court. 16 The sufficiency of the proof offered as a predicate for the
admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the
particular case.17 As earlier pointed out, petitioner failed to establish the former existence of the adoption paper and its
subsequent loss or destruction. Secondary proof may only be introduced if it has first beer. established that such
adoption paper really existed and was lost. This is indispensable. 18 Petitioner's supposed adoption was only testified to by
him and is allegedly to be testified to a brother of the deceased Mariano M. Lazatin or others who have witnessed that
the deceased spouses treated petitioner as their child. If adoption was really made, the records thereof should have
existed and the same presented at the hearing or subsequent thereto or a reasonable explanation of loss or destruction
thereof, if that be the case, adduced. 19

Assuming the mere fact that the deceased spouses treated petitioner as their child does not justify the conclusion that
petitioner had been in fact judicially adopted by the spouses nor does it constitute admissible proof of adoption.

We cannot entertain the plea of petitioner that the sanction of Rule 29 should be applied to consider as established the
fact of his adoption due to the refusal of respondent Nora L. de Leon to produce the document of adoption,
because first, the fact or real existence of petitioner's adoption had not been established; second, there is no proof that
such document of adoption is in the possession of respondent Nora L. de Leon; third, the motu proprio order of the court
for Nora de Leon to produce the items retrieved from the safety deposit box cannot be treated as a mode of discovery
of production and inspection of documents under Rule 27; and fourth, the items deposited in the safety deposit box
have already been surrendered by respondent Nora L. de Leon on April 26; 1976 and no document of adoption in favor
of petitioner was listed as found in the safety deposit box.

5. As a necessary consequence, petitioner Renato Lazatin alias Renato Sta. Clara cannot properly intervene in the
settlement of the estate of Margarita de Asis, Sp. Proc. No. 2341-P as an adopted child because of lack of proof thereof.
For one to intervene in an estate proceeding, it is a requisite that he has an interest in the estate, either as one who
would be benefited as an heir or one who has a claim against the estate like a creditor. 20 A child by adoption cannot
inherit from the parent creditor. by adoption unless the act of adoption has been done in strict accord with the statue.
Until this is done, no rights are acquired by the child and neither the supposed adopting parent or adopted child could
be bound thereby. 21 The burden of proof in establishing adoption is upon the person claiming such relationship. He must
prove compliance with the statutes relating to adoption in the jurisdiction where the adoption occurred. 22 A fortiori if no
hereditary interest in the estate can be gained by a claimant who failed to submit proof thereof, whether the will is
probated or not, intervention should be denied as it would merely result in unnecessary complication. 23 To succeed, a
child must be ligitimate, legitimated, adopted, acknowledged illegitimate natural child or natural child by legal fiction or
recognized spurious child. 24

In the face of the verified pleadings of record (constituting judicial admissions) which show that petitioner sought to
intervene on November 22, 1974 in the estate proceedings of his alleged adoptive father Dr. Mariano M. Lazatin (Sp.
Proc. No. 2326-P) as an admitted illegitimate (not natural) child, 25 while his intervention on August 20, 1975 in the estate
of Margarita de Asis, widow of the deceased Dr. Lazatin (Sp. Proc. No. 2341-P) was as her adopted child on the basis of
the affidavit of a brother of the deceased Dr. Lazatin, Benjamin Lazatin, executed August 19, 1975 (which affidavit
modified a first affidavit executed on May 31, 1975, which failed to estate by "oversight" petitioner, but stated that affiant
knew petitioner to be "an illegitimate son" of Dr. Lazatin who later "legally adopted (him) as a son before the Court of First
Instance of Manila sometime between the years 1928 and 1921") and prescinding from the question of whether a natural
or spurious child may be legally adopted by the putative father, we hold that no grave abuse of discretion nor error of
law as committed by respondent judge in issuing the questioned orders of March 4, 1976, March 26, 1976 and June 3,
1976 denying petitioner's petition "to declare as established in this proceeding the fact of adoption" and denying "any
motion for reconsideration unless based on some documentary proof." The Court finds no basis to grant the affirmative
relief sought in this proceeding by petitioner for a rendition of judgment "declaring as established the fact of your
petitioner's adoption as a son of the deceased spouses entitling him to succeed in their estates as such in accordance
with the applicable law on succession as to his inheritance."

Upon the filing of the petition, the Court issued on June 16, 1976 a temporary restraining order; which as amended on
July 21, 1976, restrained respondent judge "from proceeding with the hearing scheduled on June 17, 1976 at 8:30 a.m.,
requiring the submission of evidence to establish heirship in Special Proceedings No. 2326-P entitled 'Intestate Estate of
the Late Mariano M. Lazatin' and Special Proceedings No. 2341-P, entitled 'Testate Estate of the late Margarita de Asis
Vda. de Lazatin,' and from proceeding with the probate of the alleged holographic will of the deceased Doñ;a
Margarita de Asis Vda. de Lazatin scheduled on June 29, 1976, August 10 and 12, 1976 and on any other dates." With the
Court's determination of the issues as herein set forth, there is no longer any need for restraining the proceedings below
and the said restraining order shall be immediately lifted.

On January 24, 1977, the Court upon petitioner's motion resolved to conditionally allow respondent judge "to take the
deposition of petitioner's witnesses to perpetuate their testimonies pursuant to Rule 134, Section 7 of the Rules of Court,
subject to the Court's ruling in due course on the admissibility of such testimonies." The Court thereby permitted in effect
the advance testimonies of petitioner's witnesses, principally among them Rafael Lazatin and Esteban L. Lazatin, both
brothers of the deceased Dr. Mariano L. Lazatin and as stated in petitioner's motion of January 11, 1977: têñ.£îhqwâ£

Substantially, the testimony of the above-named witnesses will be on the fact that they had been
informed by the deceased spouses, Mariano and Margarita Lazatin that your petitioner was their
[Mariano's and Margarita's] judicially adopted son and to elicit further from them the fact that your
petitioner enjoys the reputation of being their judicially adopted son in the Lazatin family.

The Court's resolution allowing the advance testimonies of petitioner's witnesses was but in application of the Court's long
standing admonition to trial courts is reaffirmed in Lamagan vs. De la Cruz, 26, "to be liberal in accepting proferred
evidence since even if they were to refuse to accept the evidence, the affected party will nevertheless be allowed to
spread the excluded evidence on the record, for review on appeal." The Court therein once again stressed the
established rule that "it is beyond question that rulings of the trial court on procedural questions and on admissibility of
evidence during the course of the trial are interlocutory in nature and may not be the subject of separate appeal or
review on certiorari, but are to be assigned as errors and reviewed in the appeal properly taken from the decision
rendered by the trial court on the merits of the case," 27 and that a party's recourse when proferred evidence is rejected
by the trial court is to make a offer stating on the record what a party or witness would have testified to were his
testimony not excluded, as well as to attach to the record any rejected exhibits.

At the continuation of the proceedings below for declaration of heirship and for probate of the alleged holographic the
deceased Margarita de Asis Vda. de Lazatin, pet who has failed to establish his status as an alleged ;m child of
Margarita de Asis (unless, as reserved to him by the court below, he can show some documentary proof),and whose
intervention in the estate of the deceased Dr. Mariano Lazatin is as an admitted illegitimate child, win have to decide
whether he will pursue his first theory of having the of such admitted illegitimate child of said deceased. Whatever be his
theory and his course of action and whether or not he may be duly snowed to intervene in the proceedings below as
such alleged admitted illegitimate child, his recourse in the event of an adverse ruling against him is to make a formal
offer of proof and of his excluded evidence, oral and documentary, and seek a reversal on an appeal in due course.

ACCORDINGLY, the petition is dismissed and the questioned orders denying petitioner's petition below "to declare as
established in this proceeding the fact of [his] adoption" are hereby affirmed. The temporary restraining order issued on
June 16, 1976 and amended on July 21, 1976 is ordered lifted, effective immediately. Without costs.

SO ORDERED.

Makasiar, Fernandez, Guerrero and Melencio-Herrera, JJ., concur.1äwphï1.ñët

De Castro, J., took no part.

#Footnotestêñ.£îhqwâ£

1 Annex 25, p. 1, Comment of respondents de Leon.

2 Tolentino, Civil Code of the Philippines, Vol. 1, 1974 ed., at 657; Ellis v. Republic, L-16922, 7 SCRA 962;
Van Matre v. Sankey, 36 NE 628.

3 Valverde 473; See Annotation in Hofilena v. Republic, L- 26476, August 31, 1970, 34 SCRA 550.

4 In re: Adoption of Resaba Santos Yñ;igo v. Republic, 94 Phil 244 (1954).

5 Succession of Pizzari, 75 So. 498.

6 Succession of D' Asaro, 167 So. 2d 391; Appeal of Ritchie, 53 NW 2d 753.

7 2 CJS 444.

8 Quinn v. Quinn, 58 NW 808; 2 CJS 444.

9 Coombs v. Cook, 129 P. 698.

10 Haworth v. Haworth, 100 SW 531.

11 Wohlgemuth v. Browning, 384 SW 2d. 820.

12 See Sec. 33, Rule 130 Revised Rules of Court.

13 Wigmore on Evidence, Sec. 1420.

14 In re: Estate of Helen M. Rigs, 328 NYS 2d. 138; Moran, Comments on the Rules of Court, Vol. 5, 1970
ed., at 332, et seq.

15 29 Am Jur 2d 565.

16 Jones on Evidence, Vol. 1, 5th ed., at 458, 1 et seq.

17 Burns v. Goodrich, 382 SW 2d 501.

18 Francisco, Revised Rules of Court, Evidence, 107.

19 See Eusebio v. Valmores, 97 Phil 167 (1955).

20 Ngo The Hua v. Chung Kiat Hua, L-17091, Sept. 30, 1963, 9 SCRA 116; Sumilang v. Ramagosa, L-
23135, Dec. 26, 1967, 21 SCRA 1369; Teotico v. del Val L-18753, March 26, 1965, 13 SCRA 410.

21 In re Estate of Schick, 274 NE 2d 291, quoting McCollister v. Yard, 57 NW 447.

22 In re Estate of Helen M. Riggs, 328 NYS 2d 138.

23 Cacho v. Udan, L-19996, April 30, 1465, 13 SCRA 697.

24 See Cid v. Burnaman, L-24414, July 31, 1968, 24 SCRA 438-39.

25 Supra, at page 3 hereof In these cases involving both estates of the deceased spouses, petitioner
asserts his claim of being an adopted child, on the ground that respondent court had "definitively
 ruled" that he "failed to establish such status (adoption)." Petitioner's Reply, Rollo, p. 241. In his Reply to
other respondents, petitioner asserts that "there is actually no issue in the estate of Mariano Lazatin
that your petitioner was an acknowledged illegitimate son of Mariano M. Lazatin" and "the only issue
really is ... whether (he) is also an adopted son of the deceased spouses. " Rollo, pp. 248-249.

26 40 SCRA 101, 110 (1971).

27 Idem, at pages 106-107.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 79955 January 27, 1989

IN THE MATTER OF THE PETITION FOR A WRIT OF HABEAS CORPUS OF MINOR ANGELIE ANNE C. CERVANTES, NELSON L.
CERVANTES and ZENAIDA CARREON CERVANTES, petitioners,
vs.
GINA CARREON FAJARDO and CONRADO FAJARDO, respondents.

Yolanda F. Lim for petitioners.

Voltaire C. Campomanes for respondents.

RESOLUTION

PADILLA, J.:

This is a petition for a writ of Habeas Corpus filed with this Court over the person of the minor Angelie Anne Cervantes. In
a resolution, dated 5 October 1987, the Court resolved to issue the writ returnable to the Executive Judge, Regional Trial
Court of Pasig at the hearing of 12 October 1987 at 8:30 a.m. Said Judge was directed to hear the case and submit his
report and recommendation to the Court.

On 3 December 1987, said Executive Judge, Regional Trial Court of Pasig submitted to the Court his report and
recommendation, also dated 3 December 1987.

It appears that the minor was born on 14 February 1987 to respondents Conrado Fajardo and Gina Carreon, who are
common-law husband and wife. Respondents offered the child for adoption to Gina Carreon's sister and brother-in-law,
the herein petitioners Zenaida Carreon-Cervantes and Nelson Cervantes, spouses, who took care and custody of the
child when she was barely two (2) weeks old. An Affidavit of Consent to the adoption of the child by herein petitioners,
was also executed by respondent Gina Carreon on 29 April 1987. 1

The appropriate petition for adoption (Sp. Proc. No. 057-B) was filed by herein petitioners over the child before the
Regional Trial Court of Rizal, Fourth Judicial District, Branch 67 which, on 20 August 1987, rendered a decision 2granting
the petition. The child was then known as Angelie Anne Fajardo. The court ordered that the child be "freed from parental
authority of her natural parents as well as from legal obligation and maintenance to them and that from now on shall
be, for all legal intents and purposes, known as Angelie Anne Cervantes, a child of herein petitioners and capable of
inheriting their estate ." 3

Sometime in March or April 1987, the adoptive parents, herein petitioners Nelson and Zenaida Cervantes, received a
letter from the respondents demanding to be paid the amount of P150,000.00, otherwise, they would get back their
child. Petitioners refused to accede to the demand.
As a result, on 11 September 1987, while petitioners were out at work, the respondent Gina Carreon took the child from
her "yaya" at the petitioners' residence in Angono, Rizal, on the pretext that she was instructed to do so by her mother.
Respondent Gina Carreon brought the child to her house in Parañaque. Petitioners thereupon demanded the return of
the child, but Gina Carreon refused, saying that she had no desire to give up her child for adoption and that the
affidavit of consent to the adoption she had executed was not fully explained to her. She sent word to the petitioners
that she will, however, return the child to the petitioners if she were paid the amount of P150,000.00.

Felisa Tansingco, the social worker who had conducted the case study on the adoption and submitted a report thereon
to the Regional Trial Court of Rizal in the adoption case, testified on 27 October 1987 before the Executive Judge,
Regional Trial Court of Pasig in connection with the present petition. She declared that she had interviewed respondent
Gina Carreon on 24 June 1987 in connection with the contemplated adoption of the child. During the interview, said
respondent manifested to the social worker her desire to have the child adopted by the petitioners. 4

In all cases involving the custody, care, education and property of children, the latter's welfare is paramount. The
provision that no mother shall be separated from a child under five (5) years of age, will not apply where the Court finds
compelling reasons to rule otherwise. 5 In all controversies regarding the custody of minors, the foremost consideration is
the moral, physical and social welfare of the child concerned, taking into account the resources and moral as well as
social standing of the contending parents. Never has this Court deviated from this criterion. 6

It is undisputed that respondent Conrado Fajardo is legally married to a woman other than respondent Gina Carreon,
and his relationship with the latter is a common-law husband and wife relationship. His open cohabitation with co-
respondent Gina Carreon will not accord the minor that desirable atmosphere where she can grow and develop into an
upright and moral-minded person. Besides, respondent Gina Carreon had previously given birth to another child by
another married man with whom she lived for almost three (3) years but who eventually left her and vanished. For a
minor (like Angelie Anne C. Cervantes) to grow up with a sister whose "father" is not her true father, could also affect the
moral outlook and values of said minor. Upon the other hand, petitioners who are legally married appear to be morally,
physically, financially, and socially capable of supporting the minor and giving her a future better than what the natural
mother (herein respondent Gina Carreon), who is not only jobless but also maintains an illicit relation with a married man,
can most likely give her.

Besides, the minor has been legally adopted by petitioners with the full knowledge and consent of respondents. A
decree of adoption has the effect, among others, of dissolving the authority vested in natural parents over the adopted
child, except where the adopting parent is the spouse of the natural parent of the adopted, in which case, parental
authority over the adopted shall be exercised jointly by both spouses. 7 The adopting parents have the right to the care
and custody of the adopted child 8 and exercise parental authority and responsibility over him.9

ACCORDINGLY, and as recommended by the Executive Judge, Regional Trial Court of Pasig, Hon. Eutropio Migrino, the
Petition is GRANTED. The custody and care of the minor Angelie Anne Cervantes are hereby granted to petitioners to
whom they properly belong, and respondents are ordered (if they still have not) to deliver said minor to the petitioners
immediately upon notice hereof This resolution is immediately executory.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Sarmiento and Regalado, JJ., concur.

Footnotes

1 Rollo, p. 113.

2 Rollo, pp. 108-110.

3 Rollo, P. 110.

4 TSN, 27 October 1987, p. 11; Rollo, p. 249.

5 Art. 363 of the New Civil Code, as amended by Art. 17 of PD 603.

 7 Art. 39, PD 603.

8 Art. 189, par. (2) of the Family Code of the Philippines, Executive Order No. 209 as amended by
Executive Order No. 227, promulgated on 6 June 1987.

SECOND DIVISION

[G.R. No. 103695. March 15, 1996]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE COURT OF APPEALS, JAIME B. CARANTO, and ZENAIDA P.
CARANTO, respondents.

SYLLABUS

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; RULE 108 OF THE RULES OF COURT; APPLICABLE IN CASE AT BAR. - With regard to
the second assignment of error in the petition, we hold that both the Court of Appeals and the trial court erred in
granting private respondents prayer for the correction of the name of the child in the civil registry. Contrary to what
the trial court thought, Rule 108 of the Rules of Court applies to this- case and because its provision was not complied
with, the decision of the trial court, insofar as it ordered the correction of the name of the minor, is void and without
force or effect. The trial court was clearly in error in holding Rule 108 to be applicable only to the correction of errors
concerning the civil status of persons. This case falls under letter (o), referring to changes of name. Indeed, it has
been the uniform ruling of this Court that Art. 412 of the Civil Code - to implement which Rule 108 was inserted in the
Rules of Court in 1964 - covers those harmless and innocuous changes, such as correction of a name that is clearly
misspelled. Thus, in Yu v. Republic (21 SCRA 1018 [1967]) it was held that to change Sincio to Sencio which merely
involves the substitution of the first vowel i in the first name into the vowel e amounts merely to the righting of a clerical
error. In Labayo-Rowe v. Republic (168 SCRA 294 [1988]) it was held that the change of petitioners name from Beatriz
Labayo/Beatriz Labayu to Emperatriz Labayo is a mere innocuous alteration wherein a summary proceeding is
appropriate. Rule 108 thus applies to the present proceeding.

2. ID.; ID.; ID.; FAILURE TO IMPLEAD THE CIVIL REGISTRAR AS AN INDISPENSABLE PARTY AND TO GIVE NOTICE BY PUBLICATION
OF THE PETITION FOR CORRECTION OF ENTRY RENDERS THE PROCEEDING OF THE TRIAL COURT NULL AND VOID; CASE AT
BAR. - The local civil registrar is thus required to be made a party to the proceeding. He is an indispensable party,
without whom no final determination of the case can be had. As he was not impleaded in this case much less given
notice of the proceeding, the decision of the trial court, insofar as it granted the prayer for the correction of entry, is
void. The absence of-an indispensable party in a case renders ineffectual all the proceedings subsequent to the
filing of the complaint including the judgment. Nor was notice of the petition for correction of entry published as
required by Rule 108, 4 which reads: 4. Notice and publication. - Upon filing of the petition, the court shall, by an
order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the
persons named in the petition. The court shall also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province. While there was notice given by
publication in this case, it was notice of the petition for adoption made in compliance with Rule 99, 4. In that notice
only the prayer for adoption of the minor was stated. Nothing was, mentioned that in addition the correction of his
name in the civil registry was also being sought. The local civil registrar -was thus deprived of notice and,
consequently, of the opportunity to be heard. The necessary consequence of the failure to implead the civil registrar
as an indispensable party and to give notice by publication of the petition for correction of entry was to render the
proceeding of the trial court, so far as the correction of entry was concerned, null and void for lack of jurisdiction
both as to party and as to the subject matter.

APPEARANCES OF COUNSEL

The Solicitor General for petitioner.

Encarnacion, De Guzman & Associates Law Office for respondents.

DECISION

MENDOZA, J.:
 This is a petition for review on certiorari of the decision[1] of the Court of Appeals in CA-G.R. CV No. 24453 which
affirmed in toto the decision of Branch XVI of the Regional Trial Court of Cavite City, granting private respondents petition
for the adoption of Midael C. Mazon with prayer for the correction of the minors first name Midael to Michael.

The petition below was filed on September 2, 1988 by private respondents spouses Jaime B. Caranto and Zenaida P.
Caranto for the adoption of Midael C. Mazon, then fifteen years old, who had been living with private respondent Jaime
B. Caranto since he was seven years old. When private respondents were married on January 19, 1986, the minor Midael
C. Mazon stayed with them under their care and custody. Private respondents prayed that judgement be rendered:

a) Declaring the child Michael C. Mazon the child of petitioners for all intents and purposes;

b) Dissolving the authority vested in the natural parents of the child; and

c) That the surname of the child be legally changed to that of the petitioners and that the first name which
was mistakenly registered as MIDAEL be corrected to MICHAEL.

The RTC set the case for hearing on September 21, 1988, giving notice thereof by publication in a newspaper of
general circulation in the Province of Cavite and by service of the order upon the Department of Social Welfare and
Development and the Office of the Solicitor General.

The Solicitor General opposed the petition insofar as it sought the correction of the name of the child from Midael to
Michael. He argued that although the correction sought concerned only a clerical and innocuous error, it could not be
granted because the petition was basically for adoption, not the correction of an entry in the civil registry under Rule 108
of the Rules of Court.

Thereafter the case was heard during which private respondents Zenaida Caranto, Florentina Mazon (natural mother
of the child), and the minor testified. Also presented was Carlina Perez, social worker of the Department of Social Welfare
and Development, who endorsed the adoption of the minor, being of the opinion that the same was in the best interest
of the child.

On May 30, 1989, the RTC rendered its decision. The RTC dismissed the opposition of the Solicitor General. on the
ground that Rule 108 of the Rules of Court (Cancellation or Correction of Entries in the Civil Registry) applies only to the
correction of entries concerning the civil status of persons. It cited Rule 108, 1, which provides that any person interested
in an act, event, order or decree concerning the civil status of the persons which has been recorded in the civil register,
may file a verified petition for the cancellation or correction of any entry relating thereto. It held that the correction of
names in the civil registry is not one of the matters enumerated in Rule 108, 2 as entries subject to cancellation or correction.
According to the trial court, the error could be corrected in the same proceeding for adoption to prevent multiplicity of
actions, and inconvenience to the petitioners.

The dispositive portion of the RTC decision reads:

WHEREFORE, judgement is hereby rendered granting the herein petition and declaring that:

1. Michael C. Mazon is, for all legal intents and purposes, the son by adoption of petitioners Jaime B. Caranto
and Zenaida P. Caranto;

2. Henceforth, the minors name shall be Michael Caranto, in lieu of his original name of Michael Mazon, or
Midael Mazon, as appearing in his record of birth;

3. The Local Civil Registrar of Cavite City, the birthplace of said minor, is hereby directed to accordingly amend
(and) correct the birth certificate, of said minor; and

4. This judgement shall retroact to September 2, 1988, the date of filing of the herein petition.

The Solicitor General appealed to the Court of Appeals reiterating his contention that the correction of names
cannot be affected in the same proceeding for adoption. As additional ground for his appeal, he argued that the RTC
did not acquire jurisdiction over the Case for adoption because in the notice published in the newspaper, the name given
was Michael, instead of Midael, which is the name of the minor given in his Certificate of Live Birth.

On January 23,1992, the Court of Appeals affirmed in toto the decision of the RTC. The Court of Appeals ruled that
the case of Cruz v. Republic,[2] invoked by the petitioner in support of its plea that the trial court did not acquire jurisdiction
over the case, was inapplicable because that case involved a substantial error. Like the trial court, it held that to require
the petitioners to file a separate petition for correction of name would entail additional time and expenses for them as.
well as for the Government and the Courts.

Hence this petition for review. Private respondents were required to comment. Despite opportunity given to them,
however, they did not file any comment.
 The first issue is whether on the facts stated, the RTC acquired jurisdiction over the private respondents petition for
adoption. Petitioners contention is that the trial court did not acquire jurisdiction over the petition for adoption because
the notice by publication did not state the true name of the minor child. Petitioner invokes the ruling in Cruz v.
Republic.[3] There the petition for adoption and the notice published in the newspaper gave the baptismal name of the
child -(Rosanna E. Cruz) instead of her name in the record of birth (Rosanna E. Bucoy). it was held that this was a substantial
defect in the petition and the published order of hearing. Indeed there was a question of identity involved in that case.
Rosanna E. Cruz could very well be a different person from Rosanna E. Bucoy, as common experience would indicate.

The present case is different. It involves an obvious clerical error in the name of the child sought to be adopted. In
this case the correction involves merely the substitution of the letters ch for the letter d, so that what appears as Midael as
given name would read Michael. Even the Solicitor General admits that the error is a plainly clerical one. Changing the
name of the child from Midael C. Mazon to Michael C Mazon cannot possibly cause any confusion, because both names
can be read and pronounced with the same rhyme (tugma) and tone (tono, tunog, himig). The purpose of the publication
requirement is to give notice so that those who have any objection to the adoption can make their objection known. That
purpose has been served by publication of notice in this case.

For this reason we hold that the RTC correctly granted the petition for adoption of the minor Midael C. Mazon and
the Court of Appeals, in affirming the decision of the trial court, correctly did so.

With regard to the second assignment of error in the petition, we hold that both the Court of Appeals and the trial
court erred in granting private respondents prayer for the correction of the name of the child in the civil registry.

Contrary to what the trial court thought, Rule 108 of the Rules of Court applies to this case and because its provision
was not complied with, the decision of the trial court, insofar as it ordered the correction of the name of the minor, is void
and without force or effect.

The trial court was clearly in error in holding Rule 108 to be applicable only to the correction of errors concerning the
civil status of persons. Rule 108, 2 plainly states:

2. Entries subject to cancellation or correction. - Upon good and valid grounds, the following entries in the civil register
may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separation; (e) judgments of annulments
of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m)
judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

This case falls under letter (o), referring to changes of name. Indeed, it has been the uniform ruling of this Court that
Art. 412 of the Civil Code - to implement which Rule 108 was inserted in the rules of Court in 1964 - covers those harmless
and innocuous changes, such as correction of a name that is clearly misspelled.[4] Thus, in Yu vs. Republic[5] it was held that
to change Sincio to Sencio which merely involves the substitution of the first vowel i in the first name into the vowel e
amounts merely to the righting of a clerical error. In Labayo-Rowe v. Republic[6] it was held that the change of petitioners
name from Beatriz Labayo/Beatriz Labayu to Emperatriz Labayo is a mere innocuous alteration wherein a summary
proceeding is appropriate.

Rule 108 thus applies to the present proceeding. Now 3 of this Rule provides:

3. Parties. - When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who
have or claim any interest which would be affected thereby shall be made parties to the proceeding.

The local civil registrar is thus required to be made a party to the proceeding. He is an indispensable party, without
whom no final determination of the case can be had.[7] As he was not impleaded in this case much less given notice of
the proceeding, the decision of the trial court, insofar as it granted the prayer for the correction of entry, is void. The
absence of an indenpensable party in a case renders ineffectual all the proceeding subsequent to the filling of the
complaint including the judgment.[8]

Nor was notice of the petition for correction of entry published as required by Rule 108, 4 which reads:

4. Notice and publication. - Upon filling of the petition, the court shall, by an order, fix the time and place for the hearing
of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also
cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in
the province.

While there was notice given by publication in this case, it was notice of the petition for adoption made in
compliance with Rule 99, 4. In that notice only the prayer for adoption of the minor was stated. Nothing was mentioned
that in addition the correction of his name in the civil registry was also being sought. The local civil registrar was thus
deprived of notice and, consequently, of the opportunity to be heard.
 The necessary consequence of the failure to implead the civil registrar as an indispensable party and to give notice
by publication of the petition for correction of entry was to render the proceeding of the trial court, so far as the correction
of entry was concered, null and void for lack of jurisdiction both as to party and as to the subject matter.[9]

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is MODIFIED by deleting from the decision
of the Regional Trial Court the order to the local civil registrar to change the name MIDAEL to MICHAEL in the birth
certificate of the child. In other respects relating to the adoption of Midael C. Mazon, the decision appealed from is
AFFIRMED.

SO ORDERED.

Regalado (Chairman), Romero, and Puno, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 92326 January 24, 1992

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
COURT OF APPEALS and ZENAIDA C. BOBILES, respondents.

The Solicitor General for petitioner.

Mariano B. Miranda for private respondent.

REGALADO, J.:

Dissatisfied with the decision of respondent Court of Appeals promulgated on February 20, 1990 1 which affirmed in
toto the decision of Branch 2 of the Regional Trial Court of Legaspi City 2 granting the petition of herein private
respondent to adopt the minor Jason Condat, petitioner seeks the reversal thereof in the present petition for review
on certiorari.

On February 2, 1988, Zenaida Corteza Bobiles filed a petition to adopt Jason Condat, then six (6) years old and who had
been living with her family since he was four (4) months old, before the Regional Trial Court of Legaspi City, docketed
therein as Special Proceeding No. 1386. 3

The court a quo, finding the petition to be sufficient in form and substance, issued an order dated February 15, 1988
setting the petition for hearing on March 28, 1988. 4 The order was duly published, with copies thereof seasonably served
on the Solicitor General; Assistant Provincial Fiscal Mediavillo, Jr. of Albay; Salvador Condat, father of the child; and the
social worker assigned to the court. A copy of said order was posted on the bulletin board of the court and in the other
places it had required for that purpose. Nobody appeared to oppose the petition. 5

Compliance with the jurisdictional requirements having been proved at the hearing, the testimonies of herein private
respondent, together with that of her husband, Dioscoro Bobiles, and one Ma. Luz Salameno of the Department of Social
Welfare and Development were taken and admitted in the proceedings.

On March 20, 1988, the trial court rendered judgment disposing as follows:

ACCORDINGLY, it is declared that henceforth, the minor child, JASON CONDAT, be freed from all
legal obligations of obedience and maintenance with respect to his natural parents, and be, to all
 intents and purposes, the child of the spouses Dioscoro and Zenaida Bobiles, and the surname of the
child be changed to "Bobiles" which is the surname of the petitioner.

Furnish the Office of the Solicitor General, Manila, the Department of Social Welfare and
Development, Regional Office, Region V, Legaspi City, and the Local Civil Registrar of Tiwi, Albay, with
copies of this decision. 6

Herein petitioner appealed to the Court of Appeals which, as earlier stated, affirmed the aforesaid decision of the court
below. Hence, this present petition with the following assignment of errors:

1. The Honorable Court of Appeals erred in ruling that the Family Code cannot be applied
retroactively to the petition for adoption filed by Zenaida C. Bobiles; and

2 The Honorable Court of Appeals erred in affirming the trial court's decision which granted the
petition to adopt Jason Condat in favor of spouses Dioscoro Bobiles and Zenaida C. Bobiles. 7

The petition for adoption was filed by private respondent Zenaida C. Bobiles on February 2, 1988, when the law
applicable was Presidential Decree No. 603, the Child and Youth Welfare Code. Under said code, a petition for
adoption may be filed by either of the spouses or by both of them. However, after the trial court rendered its decision
and while the case was pending on appeal in the Court of Appeals, Executive Order No. 209, the Family Code, took
effect on August 3, 1988. Under the said new law, joint adoption by husband and wife is mandatory.

On the foregoing consideration, petitioner contends that the petition for adoption should be dismissed outright for it was
filed solely by private respondent without joining her husband, in violation of Article 185 of the Family Code which
requires joint adoption by the spouses. It argues that the Family Code must be applied retroactively to the petition filed
by Mrs. Bobiles, as the latter did not acquire a vested right to adopt Jason Condat by the mere filing of her petition for
adoption. We are not persuaded.

Preliminarily, we observe that petitioner's theory implies that the non-inclusion of Dioscoro Bobiles as a co-petitioner is a
jurisdictional defect, hence its prayer for an outright dismissal on that score. It could not be taking exception only on the
ground of non-joinder since petitioner must be aware that non-joinder is not a ground for the dismissal of an action or a
special proceeding. 8 We further apprehend that this objection has been raised for the first time on appeal in
respondent court. Nonetheless, we shall clarify petitioner's misgivings as postulated in its aforestated assignment of errors.

Article 246 of the Family Code provides for retroactive effect of appropriate relevant provisions thereof, subject to the
qualification that such retrospective application will not prejudice or impair vested or acquired rights in accordance with
the Civil Code or other laws.

A vested right is one whose existence, effectivity and extent does not depend upon events foreign to the will of the
holder. 9 The term expresses the concept of present fixed interest which in right reason and natural justice should be
protected against arbitrary State action, or an innately just and imperative right which enlightened free society, sensitive
to inherent and irrefragable individual rights, cannot deny. 10 Vested rights include not only legal or equitable title to the
enforcement of a demand, but also an exemption from new obligations created after the right has vested. 11

Under the Child and Youth Welfare Code, private respondent had the right to file a petition for adoption by herself,
without joining her husband therein. When Mrs. Bobiles filed her petition, she was exercising her explicit and
unconditional right under said law. Upon her filing thereof, her right to file such petition alone and to have the same
proceed to final adjudication, in accordance with the law in force at the time, was already vested and cannot be
prejudiced or impaired by the enactment of a new law.

When private respondent filed her petition in Special Proceeding No. 1386, the trial court acquired jurisdiction thereover
in accordance with the governing law. Jurisdiction being a matter of substantive law, the established rule is that the
jurisdiction of the court is determined by the statute in force at the time of the commencement of the action.12 We do
not find in the present case such facts as would constitute it as an exception to the rule.

The first error assigned by petitioner warrants a review of applicable local and foreign jurisprudence. For that purpose,
we start with the premise that Article 185 of the Family Code is remedial in nature. Procedural statutes are ordinarily
accorded a retrospective construction in the sense that they may be applied to pending actions and proceedings, as
well as to future actions. However, they will not be so applied as to defeat procedural steps completed before their
enactment. 13
Procedural matters are governed by the law in force when they arise, and procedural statutes are generally retroactive
in that they apply to pending proceedings and are not confined to those begun after their enactment although, with
respect to such pending proceedings, they affect only procedural steps taken after their enactment. 14

The rule that a statutory change in matters of procedure will affect pending actions and proceedings, unless the
language of the act excludes them from its operation, is not so extensive that it may be used to validate or invalidate
proceedings taken before it goes into effect, since procedure must be governed by the law regulating it at the time the
question of procedure arises.15

The jurisdictional, as distinguished from the purely procedural, aspect of a case is substantive in nature and is subject to a
more stringent rule. A petition cannot be dismissed by reason of failure to comply with a law which was not yet in force
and effect at the time. As long as the petition for adoption was sufficient in form and substance in accordance with the
law in governance at the time it was filed, the court acquires jurisdiction and retains it until it fully disposes of the
case. 16 To repeat, the jurisdiction of the court is determined by the statute in force at the time of the commencement of
the action. Such jurisdiction of a court, whether in criminal or civil cases, once it attaches cannot be ousted by
subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in
the first instance. 17

On the second issue, petitioner argues that, even assuming that the Family Code should not apply retroactively, the
Court of Appeals should have modified the trial court's decision by granting the adoption in favor of private respondent
Zenaida C. Bobiles only, her husband not being a petitioner. We do not consider this as a tenable position and,
accordingly, reject the same.

Although Dioscoro Bobiles was not named as one of the petitioners in the petition for adoption filed by his wife, his
affidavit of consent, attached to the petition as Annex "B" and expressly made an integral part thereof, shows that he
himself actually joined his wife in adopting the child. The pertinent parts of his written consent read as follows:

xxx xxx xxx

2. That my wife, ZENAIDA O. CORTEZA BOBILES and I mutually desire to adopt as our child, a boy
named JASON CONDAT, still a minor being six (6) years old, likewise residing at 18 C. Imperial Street,
Legaspi City, Albay, also in the Philippines;

3. That we are filing the corresponding Petition for Adoption of said minor child, JASON CONDAT,
before the Juvenile and Domestic Relations court, now the Regional Trial Court in Legaspi City, Albay
in the Philippines;

4. That I, Dioscoro C. Bobiles as the husband and father, am giving my lawful consent to this adoption
of said minor child, JASON CONDAT;

5. That further, my wife ZENAIDA O. CORTEZA BOBILES, and I have continuously reared and cared for
this minor child, JASON CONDAT since birth;

6. That as a result thereof, my wife and I have developed a kind of maternal and paternal love for the
boy as our very own, exercising therein the care, concern and diligence of a good father toward him;

7. That I am executing this document, an AFFIDAVIT OF CONSENT for whatever it is worth in the
premises as to the matter of adoption of this minor child, JASON CONDAT, by my wife ZENAIDA O.
CORTEZA BOBILES and by me, DIOSCORO C. BOBILES, in any court of justice; (Emphasis supplied.) 18

xxx xxx xxx

The foregoing declarations, and his subsequent confirmatory testimony in open court, are sufficient to make him a co-
petitioner. Under the circumstances then obtaining, and by reason of his foreign residence, he must have yielded to the
legal advice that an affidavit of consent on his part sufficed to make him a party to the petition. This is evident from the
text of his affidavit. Punctiliousness in language and pedantry in the formal requirements should yield to and be
eschewed in the higher considerations of substantial justice. The future of an innocent child must not be compromised
by arbitrary insistence of rigid adherence to procedural rules on the form of pleadings.
We see no reason why the following doctrines in American law should not apply to this case and, for that matter, in our
jurisdiction. It is a settled rule therein that adoption statutes, as well as matters of procedure leading up to adoption,
should be liberally construed to carry out the beneficent purposes of the adoption institution and to protect the adopted
child in the rights and privileges coming to it as a result of the adoption. 19 The modern tendency of the courts is to hold
that there need not be more than a substantial compliance with statutory requirements to sustain the validity of the
proceeding; to refuse would be to indulge in such a narrow and technical construction of the statute as to defeat its
intention and beneficial results or to invalidate proceedings where every material requirement of the statute was
complied with.

In support of this rule it is said that it is not the duty of the courts to bring the judicial microscope to bear upon the case in
order that every slight defect may be enlarged and magnified so that a reason may be found for declaring invalid an
act consummated years before, but rather to approach the case with the inclination to uphold such acts if it is found
that there was a substantial compliance with the statute. 20 The technical rules of pleading should not be stringently
applied to adoption proceedings, and it is deemed more important that the petition should contain facts relating to the
child and its parents, which may give information to those interested, than that it should be formally correct as a
pleading. Accordingly, it is generally held that a petition will confer jurisdiction if it substantially complies with the
adoption statute, alleging all facts necessary to give the court jurisdiction. 21

In determining whether or not to set aside the decree of adoption the interests and welfare of the child are of primary
and paramount consideration. 22 The welfare of a child is of paramount consideration in proceedings involving its
custody and the propriety of its adoption by another, and the courts to which the application for adoption is made is
charged with the duty of protecting the child and its interests and, to bring those interests fully before it, it has authority to
make rules to accomplish that end. 23 Ordinarily, the approval of the adoption rests in the sound discretion of the court.
This discretion should be exercised in accordance with the best interests of the child, as long as the natural rights of the
parents over the child are not disregarded. In the absence of a showing of grave abuse, the exercise of this discretion by
the approving official will not be disturbed. 24

In the case at bar, the rights concomitant to and conferred by the decree of adoption will be for the best interests of the
child. His adoption is with the consent of his natural parents. 25 The representative of the Department of Social Welfare
and Development unqualifiedly recommended the approval of the petition for adoption 26 and the trial court dispensed
with the trial custody for several commendatory reasons, especially since the child had been living with the adopting
parents since infancy. 27 Further, the said petition was with the sworn written consent of the children of the adopters.

The trial court and respondent court acted correctly in granting the petition for adoption and we find no reason to
disturb the same. As found and aptly stated by respondent court: "Given the facts and circumstances of the case and
considered in the light of the foregoing doctrine, 28 We are of the opinion and so hold that the decree of adoption issued
by the court a quo would go a long way towards promoting the welfare of the child and the enhancement of his
opportunities for a useful and happy life." 29

Adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount
consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned
children and give them the protection of society and family in the person of the adopted, as well as to allow childless
couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for
the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and
fulfill these noble and compassionate objectives of the law. 30

WHEREFORE, the instant petition is hereby DENIED.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Nocon, JJ., concur.

FIRST DIVISION

IN RE: PETITION FOR G.R. Nos. 168992-93

ADOPTION OF MICHELLE P.
LIM, Present:
MONINA P. LIM, PUNO, C.J., Chairperson,
Petitioner. CARPIO,
x - - - - - - - - - - - - - - - - - - - - - - - x CORONA,
LEONARDO-DE CASTRO, and
IN RE: PETITION FOR BERSAMIN, JJ.
ADOPTION OF MICHAEL JUDE
P. LIM,
Promulgated:
MONINA P. LIM,
Petitioner. May 21, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO, J.:

The Case

This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision[1] dated 15

September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and

1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P.

Lim.

The Facts

The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim (Lim).

They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban

(Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear that

they were the childrens parents. The children[2] were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael).

Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977.[3] Michael

was 11 days old when Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983.[4]

The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They

used the surname Lim in all their school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27

December 2000, petitioner married Angel Olario (Olario), an American citizen.

Thereafter, petitioner decided to adopt the children by availing of the amnesty[5] given under Republic Act No. 8552[6] (RA

8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the

adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At

the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael was 18

years and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent.[7] Michael also

gave his consent to his adoption as shown in his Affidavit of Consent.[8] Petitioners husband Olario likewise executed an

Affidavit of Consent[9] for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an

abandoned child and the whereabouts of her natural parents were unknown.[10] The DSWD issued a similar Certification

for Michael.[11]

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner

had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that joint adoption

by the husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005.

In denying the motion, the trial court ruled that petitioner did not fall under any of the exceptions under Section 7(c),

Article III of RA 8552. Petitioners argument that mere consent of her husband would suffice was untenable because, under

the law, there are additional requirements, such as residency and certification of his qualification, which the husband,

who was not even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of

parental authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority

because an emancipated child acquires certain rights from his parents and assumes certain obligations and

responsibilities.

Hence, the present petition.

Issue

Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly

adopt.

The Courts Ruling

Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and the State to

protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim dura lex

sed lex is not applicable to adoption cases. She argues that joint parental authority is not necessary in this case since, at

the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of

age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority.

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the

petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial courts

decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:

SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral
character, has not been convicted of any crime involving moral turpitude, emotionally and
psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and
who is in a position to support and care for his/her children in keeping with the means of the family. The
requirement of sixteen (16) year difference between the age of the adopter and adoptee may be
waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptees
parent;
(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That
his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living
in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption
and maintains such residence until the adoption decree is entered, that he/she has been certified by
his/her diplomatic or consular office or any appropriate government agency that he/she has the legal
capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her
country as his/her adopted son/daughter: Provided, further, That the requirements on residency and
certification of the aliens qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a
relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or

(c) The guardian with respect to the ward after the termination of the guardianship and clearance of
his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That
the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other,
joint parental authority shall be exercised by the spouses. (Emphasis supplied)
The use of the word shall in the above-quoted provision means that joint adoption by the husband and the wife is

mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As

the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly.

The rule also insures harmony between the spouses.[12]

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were

filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband,

Olario, the trial court was correct in denying the petitions for adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted

are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children

of petitioner. And third, petitioner and Olario are not legally separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain

requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of

RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must

have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3)

he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own

country; and (5) the adoptee is allowed to enter the adopters country as the latters adopted child. None of these

qualifications were shown and proved during the trial.

These requirements on residency and certification of the aliens qualification to adopt cannot likewise be waived pursuant

to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or

of Olario. Neither are the adoptees the legitimate children of petitioner.

Effects of Adoption

Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated

having reached the age of majority. This is untenable.

Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development

of their moral, mental and physical character and well-being.[13] The father and the mother shall jointly exercise parental

authority over the persons of their common children.[14] Even the remarriage of the surviving parent shall not affect the

parental authority over the children, unless the court appoints another person to be the guardian of the person or property

of the children.[15]
It is true that when the child reaches the age of emancipation that is, when he attains the age of majority or 18 years of

age[16] emancipation terminates parental authority over the person and property of the child, who shall then be qualified

and responsible for all acts of civil life.[17] However, parental authority is merely just one of the effects of legal adoption.

Article V of RA 8552 enumerates the effects of adoption, thus:

ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter,
all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall
then be vested on the adopter(s).
SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s)
for all intents and purposes and as such is entitled to all the rights and obligations provided by law to
legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is
entitled to love, guidance, and support in keeping with the means of the family.

SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have
reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and
his/her biological parent(s) had left a will, the law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except

when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and

(3) give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including

but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter

and adoptee to be legal and compulsory heirs of each other.[18] Therefore, even if emancipation terminates parental

authority, the adoptee is still considered a legitimate child of the adopter with all the rights[19] of a legitimate child such

as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled

to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child,

enjoy all the benefits to which biological parents are entitled[20] such as support[21] and successional rights.[22]

We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child

to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate,

needy or orphaned children and give them the protection of society and family, as well as to allow childless couples or

persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the

manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill

these noble and compassionate objectives of the law.[23] But, as we have ruled in Republic v. Vergara:[24]

We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare
of the children. Accordingly, the law should be construed liberally, in a manner that will sustain rather
than defeat said purpose. The law must also be applied with compassion, understanding and less
severity in view of the fact that it is intended to provide homes, love, care and education for less
fortunate children. Regrettably, the Court is not in a position to affirm the trial courts decision favoring
adoption in the case at bar, for the law is clear and it cannot be modified without violating the
proscription against judicial legislation. Until such time however, that the law on the matter is amended,
we cannot sustain the respondent-spouses petition for adoption. (Emphasis supplied)
Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her

husband. We cannot make our own legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible

because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not

equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree for the dissolution of the

marriage between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband

and the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner

was married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court, General

Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-64279 April 30, 1984

ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners,

vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch 129, acting for REGIONAL TRIAL COURT of
Camarines Norte, now presided over by JUDGE NICANOR ORIÑO, Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V.
ZENAROSA, ET AL., respondents.

Quiazon, De Guzman Makalintal and Barot for petitioners.

The Solicitor General for respondents.

AQUINO, J.:ñé+.£ªwph!1

At issue in this case is the enforceability, before publication in the Official Gazette of June 14, 1982, of Presidential
Executive Order No. 626-A dated October 25, 1980, providing for the confiscation and forfeiture by the government of
carabaos transported from one province to another.

Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in an Isuzu ten-wheeler truck in the evening of
April 2, 1982 twenty-six carabaos and a calf from Sipocot, Camarines Sur with Padre Garcia, Batangas, as the
destination.

They were provided with (1) a health certificate from the provincial veterinarian of Camarines Sur, issued under the
Revised Administrative Code and Presidential Decree No. 533, the Anti-Cattle Rustling Law of 1974; (2) a permit to
transport large cattle issued under the authority of the provincial commander; and (3) three certificates of inspection,
one from the Constabulary command attesting that the carabaos were not included in the list of lost, stolen and
questionable animals; one from the LIvestock inspector, Bureau of Animal Industry of Libmanan, Camarines Sur and one
from the mayor of Sipocot.

In spite of the permit to transport and the said four certificates, the carabaos, while passing at Basud, Camarines Norte,
were confiscated by Lieutenant Arnulfo V. Zenarosa, the town's police station commander, and by Doctor Bella S.
Miranda, provincial veterinarian. The confiscation was basis on the aforementioned Executive Order No. 626-A which
provides "that henceforth, no carabao, regardless of age, sex, physical condition or purpose and no carabeef shall be
transported from one province to another. The carabaos or carabeef transported in violation of this Executive Order as
amended shall be subject to confiscation and forfeiture by the government to be distributed ... to deserving farmers
through dispersal as the Director of Animal Industry may see fit, in the case of carabaos" (78 OG 3144).

Doctor Miranda distributed the carabaos among twenty-five farmers of Basud, and to a farmer from the Vinzons
municipal nursery (Annex 1).

The Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the recovery of the carabaos
allegedly valued at P70,000 and damages of P92,000. The replevin order could not be executed by the sheriff. In his
order of April 25, 1983 Judge Domingo Medina Angeles, who heard the case at Daet and who was later transferred to
Caloocan City, dismissed the case for lack of cause of action.

The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section 25 of the Interim Rules and pursuant
to Republic Act No. 5440, a 1968 law which superseded Rule 42 of the Rules of Court.

We hold that the said executive order should not be enforced against the Pesigans on April 2, 1982 because, as already
noted, it is a penal regulation published more than two months later in the Official Gazette dated June 14, 1982. It
became effective only fifteen days thereafter as provided in article 2 of the Civil Code and section 11 of the Revised
Administrative Code.

The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars and regulations which prescribe penalties.
Publication is necessary to apprise the public of the contents of the regulations and make the said penalties binding on
the persons affected thereby. (People vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting vs. Central Bank of the Phils., 104 Phil.
573; Balbuna vs. Secretary of Education, 110 Phil. 150.)

The Spanish Supreme Court ruled that "bajo la denominacion generica de leyes, se comprenden tambien los
reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las mismas por el
Gobierno en uso de su potestad (1 Manresa, Codigo Civil, 7th Ed., p. 146.)

Thus, in the Que Po Lay case, a person, convicted by the trial court of having violated Central Bank Circular No. 20 and
sentenced to six months' imprisonment and to pay a fine of P1,000, was acquitted by this Court because the circular was
published in the Official Gazette three months after his conviction. He was not bound by the circular.

That ruling applies to a violation of Executive Order No. 626-A because its confiscation and forfeiture provision or
sanction makes it a penal statute. Justice and fairness dictate that the public must be informed of that provision by
means of publication in the Gazette before violators of the executive order can be bound thereby.

The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37 SCRA 230 and Philippine Blooming Mills vs. Social
Security System, 124 Phil. 499, cited by the respondents, do not involve the enforcement of any penal regulation.
Commonwealth Act No. 638 requires that all Presidential executive orders having general applicability should be
published in the Official Gazette. It provides that "every order or document which shag prescribe a penalty shall be
deemed to have general applicability and legal effect."

Indeed, the practice has always been to publish executive orders in the Gazette. Section 551 of the Revised
Administrative Code provides that even bureau "regulations and orders shall become effective only when approved by
the Department Head and published in the Official Gazette or otherwise publicly promulgated". (See Commissioner of
Civil Service vs. Cruz, 122 Phil. 1015.)

In the instant case, the livestock inspector and the provincial veterinarian of Camarines Norte and the head of the Public
Affairs Office of the Ministry of Agriculture were unaware of Executive Order No. 626-A. The Pesigans could not have
been expected to be cognizant of such an executive order.

It results that they have a cause of action for the recovery of the carabaos. The summary confiscation was not in order.
The recipients of the carabaos should return them to the Pesigans. However, they cannot transport the carabaos to
Batangas because they are now bound by the said executive order. Neither can they recover damages. Doctor
Miranda and Zenarosa acted in good faith in ordering the forfeiture and dispersal of the carabaos.

WHEREFORE, the trial court's order of dismissal and the confiscation and dispersal of the carabaos are reversed and set
aside. Respondents Miranda and Zenarosa are ordered to restore the carabaos, with the requisite documents, to the
petitioners, who as owners are entitled to possess the same, with the right to dispose of them in Basud or Sipocot,
Camarines Sur. No costs.

SO ORDERED.1äwphï1.ñët

Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ., concur.

De Castro, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring:

The Pesigans are entitled to the return of their carabaos or the value of each carabao which is not returned for any
reason. The Pesigans are also entitled to a reasonable rental for each carabao from the twenty six farmers who used
them. The farmers should not enrich themselves at the expense of the Pesigans.

Separate Opinions

ABAD SANTOS, J., concurring:

The Pesigans are entitled to the return of their carabaos or the value of each carabao which is not returned for any
reason. The Pesigans are also entitled to a reasonable rental for each carabao from the twenty six farmers who used
them. The farmers should not enrich themselves at the expense of the Pesigans.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-62243 October 12, 1984

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. REGINO VERIDIANO II, as Presiding Judge of the Court of First Instance of Zambales and Olongapo City, Branch I,
and BENITO GO BIO, JR., respondents.

The Solicitor General for petitioner.

Anacleto T. Lacanilao and Carmelino M. Roque for respondents.

RELOVA, J.:ñé+.£ªwph!1

Private respondent Benito Go Bio, Jr. was charged with violation of Batas Pambansa Bilang 22 in Criminal Case No. 5396
in the then Court of First Instance of Zambales, presided by respondent judge. The information reads: têñ.£îhqwâ£

That on or about and during the second week of May 1979, in the City of Olongapo, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, guaranteeing the
authenticity and genuineness of the same and with intent to defraud one Filipinas Tan by means of
false pretenses and pretending to have sufficient funds deposited in the Bank of the Philippine Island,
did then and there wilfully, unlawfully and feloniously make and issue Bank of Philippine Island Check
No. D-357726 in the amount of P200,000.00 Philippine Currency, said accused well knowing that he
has no sufficient funds at the Bank of the Philippine Island and upon presentation of the said check to
the bank for encashment, the same was dishonored for the reason that the said accused has no
sufficient funds with the said bank and despite repeated demands made by Filipinas Tan on the
accused to redeem the said check or pay the amount of P200,000.00, said accused failed and
continues to fail to redeem the said check or to pay the said amount, to the damage and prejudice
of said Filipinas Tan in the aforementioned amount of P200,000.00 Philippine Currency. (pp. 23-24,
Rollo)

Before he could be arraigned respondent Go Bio, Jr. filed a Motion to Quash the information on the ground that the
information did not charge an offense, pointing out that at the alleged commission of the offense, which was about the
second week of May 1979, Batas Pambansa Bilang 22 has not yet taken effect.

The prosecution opposed the motion contending, among others, that the date of the dishonor of the check, which is on
September 26, 1979, is the date of the commission of the offense; and that assuming that the effectivity of the law —
Batas Pambansa Bilang 22 — is on June 29, 1979, considering that the offense was committed on September 26, 1979,
the said law is applicable.

In his reply, private respondent Go Bio, Jr. submits that what Batas Pambansa Bilang 22 penalizes is not the fact of the
dishonor of the check but the act of making or drawing and issuing a check without sufficient funds or credit.

Resolving the motion, respondent judge granted the same and cancelled the bail bond of the accused. In its order of
August 23, 1982, respondent judge said: têñ.£îhqwâ£

The Court finds merit to the contention that the accused cannot be held liable for bouncing checks
prior to the effectivity of Batas Pambansa Bilang 22 although the check may have matured after the
effectivity of the said law. No less than the Minister of Justice decreed that the date of the drawing or
making and issuance of the bouncing check is the date to reckon with and not on the date of the
maturity of the check. (Resolution No. 67, S. 1981, People's Car vs. Eduardo N. Tan, Feb. 3, 1981;
Resolution No. 192, S. 1981, Ricardo de Guia vs. Agapito Miranda, March 20, 1981).
 Hence, the Court believes that although the accused can be prosecuted for swindling (Estafa, Article
315 of the Revised Penal Code), the Batas Pambansa Bilang 22 cannot be given a retroactive effect
to apply to the above entitled case. (pp. 49- 50, Rollo)

Hence, this petition for review on certiorari, petitioner submitting for review respondent judge's dismissal of the criminal
action against private respondent Go Bio, Jr. for violation of Batas Pambansa Bilang 22, otherwise known as the
Bouncing Checks Law.

Petitioner contends that Batas Pambansa Bilang 22 was published in the April 9, 1979 issue of the Official Gazette. Fifteen
(15) days therefrom would be April 24, 1979, or several days before respondent Go Bio, Jr. issued the questioned check
around the second week of May 1979; and that respondent judge should not have taken into account the date of
release of the Gazette for circulation because Section 11 of the Revised Administrative Code provides that for the
purpose of ascertaining the date of effectivity of a law that needed publication, "the Gazette is conclusively presumed
to be published on the day indicated therein as the date of issue."

Private respondent Go Bio, Jr. argues that although Batas Pambansa Bilang 22 was published in the Official Gazette issue
of April 9, 1979, nevertheless, the same was released only on June 14, 1979 and, considering that the questioned check
was issued about the second week of May 1979, then he could not have violated Batas Pambansa Bilang 22 because it
was not yet released for circulation at the time.

We uphold the dismissal by the respondent judge of the criminal action against the private respondent.

The Solicitor General admitted the certification issued by Ms. Charito A. Mangubat, Copy Editor of the Official Gazette
Section of the Government Printing Office, stating-têñ.£îhqwâ£

This is to certify that Volume 75, No. 15, of the April 9, 1979 issue of the Official Gazette
was officiallyreleased for circulation on June 14, 1979. (p. 138, Rollo)

It is therefore, certain that the penal statute in question was made public only on June 14, 1979 and not on the printed
date April 9, 1979. Differently stated, June 14, 1979 was the date of publication of Batas Pambansa Bilang 22. Before the
public may be bound by its contents especially its penal provisions, the law must be published and the people officially
informed of its contents and/or its penalties. For, if a statute had not been published before its violation, then in the eyes
of the law there was no such law to be violated and, consequently, the accused could not have committed the alleged
crime.

The effectivity clause of Batas Pambansa Bilang 22 specifically states that "This Act shall take effect fifteen days after
publication in the Official Gazette." The term "publication" in such clause should be given the ordinary accepted
meaning, that is, to make known to the people in general. If the Batasang Pambansa had intended to make the printed
date of issue of the Gazette as the point of reference in determining the effectivity of the statute in question, then it
could have so stated in the special effectivity provision of Batas Pambansa Bilang 22.

When private respondent Go Bio, Jr. committed the act, complained of in the Information as criminal, in May 1979, there
was then no law penalizing such act. Following the special provision of Batas Pambansa Bilang 22, it became effective
only on June 29, 1979. As a matter of fact, in May 1979, there was no law to be violated and, consequently, respondent
Go Bio, Jr. did not commit any violation thereof.

With respect to the allegation of petitioner that the offense was committed on September 26, 1979 when the check was
presented for encashment and was dishonored by the bank, suffice it to say that the law penalizes the act of making or
drawing and issuance of a bouncing check and not only the fact of its dishonor. The title of the law itself states:

AN ACT PENALIZING THE MAKING OR DRAWING AND ISSUANCE OF A CHECK WITHOUT SUFFICIENT FUNDS OR CREDIT AND
FOR OTHER PURPOSES.

and, Sections 1 and 2 of said Batas Pambansa Bilang 22 provide: têñ.£îhqwâ£

SECTION 1. Checks without sufficient funds. — Any person who makes or draws and issues any check
to apply on account or for value, knowing at the time of issue that he does not have sufficient funds ...
shall be punished ...
 The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the
drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to
maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days
from the date appearing thereon, for which reason it is dishonored by the drawee bank.

xxx xxx xxx

SECTION 2. Evidence of knowledge of insufficient funds. — The making, drawing and issuance of a
check payment of which is refused by the drawee because of insufficient funds ... . (Emphasis
supplied)

ACCORDINGLY, the order of respondent judge dated August 23, 1982 is hereby AFFIRMED. No costs.

SO ORDERED.1äwphï1.ñët

Melencio-Herrera, Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

TEEHANKEE, Actg. C.J., concurring:

I concur on the ground that actual publication of the penal law is indispensable for its effectivity (Pesigan vs. Angeles,
129 SCRA 174).

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as
Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang
Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the
1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the
Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public
officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303,
312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503,
504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935,
961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772,
1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
 b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187,
188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-
269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576,
587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881,
882, 939-940, 964,997,1149-1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-
1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-
1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797,
1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-
1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528,
531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647,
649-677, 679-703, 705-707, 712-786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120,
122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners
have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any
showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the
presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus
proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which
we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully neglects
the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant, immediately or
at some other specified time, to do the act required to be done to Protect the rights of the petitioner,
and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is
to compel the performance of a public duty, they need not show any specific interest for their petition to be given due
course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held
that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases
where he has some private or particular interest to be subserved, or some particular right to be protected, independent
of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when
public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of
public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded
as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has
any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the
execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the
mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal
president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition that the relator is
a proper party to proceedings of this character when a public right is sought to be enforced. If the
 general rule in America were otherwise, we think that it would not be applicable to the case at bar for
the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in
mind the reason for the rule, because, if under the particular circumstances the reason for the rule
does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by counsel for the
respondent. The circumstances which surround this case are different from those in the United States,
inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we
have seen that it is not the duty of the law officer of the Government to appear and represent the
people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply
squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized
by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would
indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the
government officer generally empowered to represent the people, has entered his appearance for respondents in this
case.

Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity
of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential
issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette
is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of
decisions,4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation
itself does not provide for its effectivity date-for then the date of publication is material for determining its date of
effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it
goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of
publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached
that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides
for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and
resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such documents or classes of documents as may be
required so to be published by law; and [5] such documents or classes of documents as the President
of the Philippines shall determine from time to time to have general applicability and legal effect, or
which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which
are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for
the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise
burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital
significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by
the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan
Pambansa—and for the diligent ones, ready access to the legislative records—no such publicity accompanies the law-
making process of the President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents
and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ."
The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the
Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The
law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents
with no discretion whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law.
Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a
burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which
apply only to particular persons or class of persons such as administrative and executive orders need not be published
on the assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and
specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the
land, the requirement of due process and the Rule of Law demand that the Official Gazette as the
official government repository promulgate and publish the texts of all such decrees, orders and
instructions so that the people may know where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been published, shall
have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this
decision might have on acts done in reliance of the validity of those presidential decrees which were published only
during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to
P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations
in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter
Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442;
Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad
statements as to the effect of a determination of unconstitutionality must be taken with qualifications.
The actual existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various
aspects-with respect to particular conduct, private and official. Questions of rights claimed to have
become vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its previous
application, demand examination. These questions are among the most difficult of those which have
engaged the attention of courts, state and federal and it is manifest from numerous decisions that an
all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium
Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an
operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a
new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be
justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by
petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937
to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be
ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none
of these unpublished PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the
Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of
[penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is
apparently recognized by respondent officials considering the manifestation in their comment that "the government, as
a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the
Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect
immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances
which are of general application, and unless so published, they shall have no binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am
unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official
Gazette for unpublished "presidential issuances" to have binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely
to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law.
My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint,
there is an advantage to be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that
failure to do so would in all cases and under all circumstances result in a statute, presidential decree or any other
executive act of the same category being bereft of any binding force and effect. To so hold would, for me, raise a
constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such
requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to
past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception
as to what is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what
to me is the constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the
publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that
the guarantee of due process requires notice of laws to affected Parties before they can be bound thereby; but such
notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise
in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be
ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as
pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not
prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once published therein there is
the ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question
of what is the jural effect of past presidential decrees or executive acts not so published. For prior thereto, it could be
that parties aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could arise.
Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could
still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such
presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex post facto
character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect.
There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was
issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be tainted by
infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application. That is as far as it
goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the
effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such
publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws
taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this
exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act
No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act
which has the force and effect of law can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and
executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would
be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself
therefore unable to yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law
connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstances
and not subject to arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is
an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people
who are commanded to obey before they can be punished for its violation,1 citing the settled principle based on due
process enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law,
regulation or circular must first be published and the people officially and specially informed of said contents and its
penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised
Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based
on constructive notice that the provisions of the law are ascertainable from the public and official repository where they
are duly published) that "Ignorance of the law excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their
effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and
meaning of the Civil Code is that "laws shall take effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided by the law itself. This
proviso perforce refers to a law that has been duly published pursuant to the basic constitutional requirements of due
process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect
[only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees
specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their
effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential requirement of prior
publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity
date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the
Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published.
What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the
decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not
mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should
be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected
parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The
due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute
as a prerequisite for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it
obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes
that each law may provide not only a different period for reckoning its effectivity date but also a different mode of
notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be
published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of
the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette, determines its
frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It
also enumerates what shall be published in the Official Gazette, among them, "important legislative acts and resolutions
of a public nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations,
except such as have no general applicability." It is noteworthy that not all legislative acts are required to be published in
the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not provide that
publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and
stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638,
cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will
take effect. Only a higher law, which is the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person
should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that
such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the
Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general
applicability ineffective, until due publication thereof.
Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am
unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official
Gazette for unpublished "presidential issuances" to have binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely
to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law.
My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint,
there is an advantage to be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that
failure to do so would in all cases and under all circumstances result in a statute, presidential decree or any other
executive act of the same category being bereft of any binding force and effect. To so hold would, for me, raise a
constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such
requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to
past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception
as to what is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what
to me is the constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the
publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that
the guarantee of due process requires notice of laws to affected Parties before they can be bound thereby; but such
notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise
in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice
before laws become effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be
ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as
pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not
prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once published therein there is
the ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question
of what is the jural effect of past presidential decrees or executive acts not so published. For prior thereto, it could be
that parties aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could arise.
Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could
still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such
presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex post facto
character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect.
There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was
issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be tainted by
infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application. That is as far as it
goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the
effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such
publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws
taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this
exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act
No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act
which has the force and effect of law can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and
executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would
be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself
therefore unable to yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law
connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstances
and not subject to arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is
an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people
who are commanded to obey before they can be punished for its violation,1 citing the settled principle based on due
process enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law,
regulation or circular must first be published and the people officially and specially informed of said contents and its
penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised
Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based
on constructive notice that the provisions of the law are ascertainable from the public and official repository where they
are duly published) that "Ignorance of the law excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their
effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and
meaning of the Civil Code is that "laws shall take effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided by the law itself. This
proviso perforce refers to a law that has been duly published pursuant to the basic constitutional requirements of due
process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect
[only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees
specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their
effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential requirement of prior
publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity
date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the
Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published.
What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the
decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not
mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should
be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected
parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The
due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute
as a prerequisite for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it
obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes
that each law may provide not only a different period for reckoning its effectivity date but also a different mode of
notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be
published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of
the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette, determines its
frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It
also enumerates what shall be published in the Official Gazette, among them, "important legislative acts and resolutions
of a public nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations,
except such as have no general applicability." It is noteworthy that not all legislative acts are required to be published in
the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not provide that
publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and
stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638,
cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will
take effect. Only a higher law, which is the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person
should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that
such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the
Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general
applicability ineffective, until due publication thereof.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 86675 December 19, 1989

MRCA, INC., petitioner,

vs.
HON. COURT OF APPEALS, HON. BENJAMIN V. PELAYO, Judge, Regional Trial court, National Capital Judicial Region,
Branch 168, Pasig, M.M., SPOUSES DOMINGO SEBASTIAN, JR. & LILIA TIOSECO SEBASTIAN, and EXPECTACION P.
TIOSECO, respondents.

Ramon A. Gonzales for petitioner.

Tanjuatco, Oreta, Tanjuatco, Berenguer and Sanvicente for private respondents.

GRIÑO-AQUINO, J.:
The petitioner prays this Court to set aside the decision promulgated on January 18, 1989 by the Court of Appeals in CA-
G.R. No. SP 15745, affirming the order of the Regional Trial Court dismissing the complaint for non-payment of the proper
filing fees as the prayer of the complaint failed to specify the amounts of moral damages, exemplary damages,
attorney's fees and litigation expenses sought to be recovered by it from the defendants, but left them "to the discretion
of this Honorable Court" or "to be proven during the trial."

Invoking the decision of this Court in Manchester Development Corporation vs. Court of Appeals, 149 SCRA 562, the
private respondents (defendants in Civil Case No. 55740 of the Regional Trial Court of Pasig, Metro Manila, entitled
MRCA, Inc. vs. Spouses Domingo Sebastian, Jr., et al." filed a motion to dismiss the complaint on July 15, 1988. The
petitioner opposed the motion, but the trial court granted it in its order of August 10, 1988 (p. 54, Rollo). The Court of
Appeals upheld the trial court, hence, this petition for review under Rule 45 of the Rules of Court.

Petitioner argues that since the decision in Manchester had not yet been published in the Official Gazette when its
complaint was filed, the ruling therein was ineffective; that said ruling may not be given retroactive effect because it
imposes a new penalty for its non-observance; the dismissal of the complaint for want of jurisdiction; and, that it should
not apply to the present case because the petitioner herein (plaintiff in the trial court) had no fraudulent intent to
deprive the government of the proper docketing fee, unlike the Manchester case where enormous amounts of
damages were claimed in the body of the complaint, but the amounts were not mentioned in the prayer thereof, to
mislead the clerk of court in computing the filing fees to be paid.

Petitioner's argument regarding the need for publication of the Manchester ruling in the Official Gazette before it may
be applied to other cases is not well taken. As pointed out by the private respondents in their comment on the petition,
publication in the Official Gazette is not a prerequisite for the effectivity of a court ruling even if it lays down a new rule of
procedure, for "it is a doctrine well established that the procedure of the court may be changed at any time and
become effective at once, so long as it does not affect or change vested rights." (Aguillon vs. Director of Lands, 17 Phil.
508). In a later case, this Court held thus:

It is a well-established rule of statutory construction that statutes regulating the procedure of the
courts will be construed as applicable to actions pending and undetermined at the time of their
passage. Procedural laws are retrospective in that sense and to that extent. As the resolution of
October 1, 1945, relates to the mode of procedure, it is applicable to cases pending in courts at the
time of its adoption; but it can not be invoked in and applied to the present case in which the
decision had become final before said resolution became effective. In this case, the motion for
reconsideration filed by the defendant was denied on July 17, 1944, and a second motion for re-
hearing or consideration could not be filed after the expiration of the period of fifteen days from
promulgation of the order or judgment deducting the time in which the first motion had been
pending in this Court (Section 1, Rule 54); for said period had already expired before the adoption of
the resolution on October 1, 1945. Therefore, the Court cannot now permit or allow the petitioner to
file any pleading or motion in the present case." (People vs. Sumilang, 77 Phil. 765- 766.)

The Manchester ruling was applied retroactively in Sun Insurance Office, Ltd., et al. vs. Asuncion, et al., G.R. Nos. 7993738,
February 13, 1989, a case that was already pending before Manchester was promulgated.

The complaint in this case was filed on March 24, 1988, or ten months after Manchester was promulgated on May 7,
1987, hence, Manchester should apply except for the fact that it was modified in the Sun Insurance case, where we
ruled that the court may allow payment of the proper filing fee "within a reasonable time but in no case beyond the
prescriptive or reglementary period." We quote:

1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the
prescribed docket fee, that vests a trial court with jurisdiction over the subject-matter or nature of the
action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee,
the court may allow payment of the fee within a reasonable time but in no case beyond the
applicable prescriptive or reglementary period. (p. 80, Rollo.)

Intent to cheat the government of the proper filing fees may not be presumed from the petitioner's omission to specify in
the body and prayer of its complaint the amounts of moral and exemplary damages and attorney's fees that it claims to
have suffered and/or incurred in its transaction with the private respondents. The petitioner might not have computed its
damages yet, or probably did not have the evidence to prove them at the time it filed its complaint. In accordance with
our ruling in Sun Insurance Office, Ltd., the petitioner may be allowed to amend its complaint for the purpose of
specifying, in terms of pesos, how much it claims as damages, and to pay the requisite filing fees therefor, provided its
right of action has not yet prescribed. This the petitioner is ready to do.
WHEREFORE, the petition for review is granted.

The Order of the Regional Trial Court is hereby set aside. The complaint in Civil Case No. 55740 (MRCA, Inc. vs. Domingo
Sebastian, Jr. and Lilia Tioseco Sebastian) is reinstated and the petitioner is allowed to amend the same by specifying the
amounts of damages it seeks to recover from the defendants (private respondents) and to pay the proper filing fees
therefor as computed by the Clerk of Court.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 84111 December 22, 1989

JIMMY O. YAOKASIN, petitioner,

vs.
THE COMMISSIONER OF CUSTOMS, SALVADOR M. MISON and the DISTRICT COLLECTOR OF THE PORT OF TACLOBAN,
VICENTE D. YUTANGCO, respondents.

GRIÑO-AQUINO, J.:

This petition questions the power of automatic review of the Commissioner of Customs over the decision of the Collector
of Customs in protest and seizure cases.

On May 27, 1988, the Philippine Coast Guard seized 9000 bags/ sacks of refined sugar, which were being unloaded from
the M/V Tacloban, and turned them over to the custody of the Bureau of Customs.

The petitioner presented a sales invoice from the Jordan Trading of Iloilo (Annex A, Petition) to prove that the sugar was
purchased locally. The District Collector of Customs, however, proceeded with the seizure of the bags of sugar.

On June 3 and 6, 1988, show-cause hearings were conducted. On June 7, 1988, the District Collector of Customs ordered
the release of the sugar as follows:

WHEREFORE, premises considered subject Nine Thousand (9,000) sacks/bags of refined sugar are
hereby ordered released to Mr. Jimmy O. Yaokasin, consignee/claimant and the immediate
withdrawal of Customs Guard within its bodega's premises. (p. 276, Rollo.)

On June 10, 1988, the decision, together with the entire records of the case, were transmitted to, and received by, the
Commissioner of Customs (Annex H, Petition, p. 277, Rollo).

On June 14, 1988, without modifying his decision, the District Collector of Customs ordered the warehouse, wherein the
bags of sugar were stored, to be sealed.

On June 19, 1988, the Economic Intelligence and Investigation Board (EIIB) filed a Motion for Reconsideration (Annex I,
Petition, p. 278, Rollo), for "further hearing on the merits" (p. 279, Rollo), based on evidence that the seized sugar was of
foreign origin. Petitioner opposed the motion for being merely pro forma and/or that the same was, in effect, a motion
for new trial.
Hearing Officer Paula Alcazaren set the Motion for reconsideration for hearing on July 13, 1988.

But before that, or on July 4, 1988, the Commissioner of Customs by "2nd Indorsement" returned to the District Collector of
Customs the:

... folder of Tacloban S.I. No. 06-01 (R.P. vs. 9000 bags/sacks of refined sugar, MR. JIMMY YAOKASIN,
consignee/claimant), together with the proposed decision, for hearing and/or resolution of the
government is motion for reconsideration ... . (p. 437, Rollo, Emphasis Ours.)

On the same date, July 4, 1988, petitioner applied for and secured a writ of replevin from the Regional Trial Court of
Leyte (CC 7627, Branch VII), through a Petition/Complaint for certiorari Prohibition with Replevin and Damages with
Preliminary Injunction and/or Restraining Order (Annex L, Petition, p. 288, Rollo).

On July 12, 1988, respondent District Collector of Customs filed an Answer assailing the court's jurisdiction. On the same
day, the District Collector and the Commissioner of Customs filed in the Court of Appeals a Petition for certiorari and
Prohibition with Application for a Writ of Preliminary Injunction and/or Restraining Order to annul the July 4, 1988 — "Order
Granting Replevin with Temporary Restraining Order" (CA-G.R. SP NO. 15090; p. 396, Rollo).

On July 15, 1988, the Collector of Customs reconsidered his June 7, 1988 decision, as follows:

WHEREFORE, the undersigned hereby reconsiders his Decision, finds that the 9,000 bags/sacks of
refined sugar in question are of foreign origin, smuggled into the country, and declares them forfeited
in favor of the government.

Considering the provision in the quoted Customs Memorandum Order, especially the latter part
thereof prohibiting the release of the articles in question to the claimant, and considering also that the
said sacks of sugar are presently stored in the bodega of claimant, and considering further that there
are no facilities for storage in Tacloban City, for security reasons, the Honorable Commissioner of
Customs is respectfully and earnestly urged to order the immediate transfer of the sugar from the said
bodega to any Customs Warehouse, preferably in Manila and to this end to order the setting aside of
such sum of money in order to effectively accomplish this purpose." (p. 11, Rollo.)

Also, on the same day, the Court of Appeals: (a) gave due course to respondent's petition; and (b) restrained Judge
Pedro S. Espina, Regional Trial Court, Leyte, from further proceeding in Civil Case No. 7627, and from enforcing his Order
of July 4, 1988.

It is petitioner's contention that the June 7, 1988 decision of the District Collector of Customs became final and
executory, in view of the absence of an appeal therefrom by the "aggrieved party" (himself) within the 15-day period
provided for in Sec. 2313 of the Tariff and Customs Code. Hence, the release of the 9,000 bags of sugar must be upheld.

On the other hand, the District Collector and the Commissioner of Customs argue that since the June 7, 1988 decision
is adverse to the government, the case should go to the Commissioner of Customs on automatic review, pursuant to
Memorandum Order No. 20-87, dated May 18, 1987, of former Acting Commissioner of Customs Alexander Padilla, which
provides:

CUSTOMS MEMORANDUM ORDER

NO. 20-87

TO: All Collectors of Customs and Others Concerned

Effective immediately, you are hereby directed to implement strictly the following —

Decisions of the Collector of Customs in seizure and protest cases are subject to
review by the Commissioner upon appeal as provided under existing
laws; provided, however, that where a decision of the Collector of Customs in such
seizure and protest cases is adverse to the government it shall automatically be
reviewed by the Commissioner of Customs. (PD. No. 1, Annex C.)
 In view thereof, no releases in any seizure or like cases may be effected unless and until the decision
of the Collector has been confirmed in writing by the Commissioner of Customs.

For immediate and strict compliance.

(Sgd.)
ALEXAN
DER A.
PADILLA
Acting
Commiss
ioner of
Customs

(p. 436, Rollo; Emphasis Ours)

The memorandum order implements Section 12 (Art. IV, Part. IV, Vol. I) of the Integrated Reorganization Plan (hereafter,
"PLAN") which provides:

12. The Collector of Customs at each principal port of entry shall be the official head of the customs
service in his port and district responsible to the Commissioner. He shall have the authority to take final
action on the enforcement of tariff and customs laws within his collection district and on
administrative matters in accordance with Chapter III, Part II of this Plan. Decisions of the Collector of
Customs in seizure and protest cases are subject to review by the Commissioner upon appeal as
provided under existing laws; provided, however, that where a decision of a Collector of Customs in
such seizure and protest cases is adverse to the government, it shall automatically be reviewed by the
Commissioner of Customs which, if affirmed, shall automatically be elevated for final review by the
Secretary of Finance; provided, further that if within thirty days from receipt of the records of the case
by the Commissioner of Customs or the Secretary of Finance, no decision is rendered by the
Commissioner of Customs or the Secretary of Finance, the decision under review shall become final
and executory. (Emphasis supplied)

In Presidential Decree No. 1, dated September 24, 1972, former President Marcos decreed and ordered that the Plan be
(4 adopted, approved, and made as part of the law of the land." Under the 1987 Constitution, "[a]ll existing laws,
decrees, executive orders, proclamations, letters of instruction, and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed, or revoked" (Sec. 3, Art. XVIII). While some provisions of the
Plan have ceased to be operative because of subsequent reorganizations, other provisions, such as Section 12 have not
been repealed by subsequent legislation.

Section 12 of the Plan applies to petitioner's shipment of 9,000 bags of sugar. Taxes being the lifeblood of the
Government, Section 12, which the Commissioner of Customs in his Customs Memorandum Order No. 20-87, enjoined all
collectors to follow strictly, is intended to protect the interest of the Government in the collection of taxes and customs
duties in those seizure and protest cases which, without the automatic review provided therein, neither the Commissioner
of Customs nor the Secretary of Finance would probably ever know about. Without the automatic review by the
Commissioner of Customs and the Secretary of Finance, a collector in any of our country's far-flung ports, would have
absolute and unbridled discretion to determine whether goods seized by him are locally produced, hence, not dutiable
or of foreign origin, and therefore subject to payment of customs duties and taxes. His decision, unless appealed by the
aggrieved party (the owner of the goods), would become final with 'the no one the wiser except himself and the owner
of the goods. The owner of the goods cannot be expected to appeal the collector's decision when it is favorable to him.
A decision that is favorable to the taxpayer would correspondingly be unfavorable to the Government, but who will
appeal the collector's decision in that case certainly not the collector.

Evidently, it was to cure this anomalous situation (which may have already defrauded our government of huge amounts
of uncollected taxes), that the provision for automatic review by the Commissioner of Customs and the Secretary of
Finance of unappealed seizure and protest cases was conceived to protect the government against corrupt and
conniving customs collectors.

Section 12 of the Plan and Section 2313 of the Tariff and Customs Code do not conflict with each other. They may co-
exist. Section 2313 of the Code provides for the procedure for the review of the decision of a collector in seizure and
protest cases upon appeal by the aggrieved party, i.e., the importer or owner of the goods. On the other hand, Section
12 of the Plan refers to the general procedure in appeals in seizure and protest cases with a special proviso on
automatic review when the collector's decision is adverse to the government. Section 2313 and the proviso in Section 12,
although they both relate to the review of seizure and protest cases, refer to two different situations — when the
collector's decision is adverse to the importer or owner of the goods, and when the decision is adverse to the
government.

The decision of the Court in the case of Sy Man vs. Jacinto (93 Phil. 1093 [19531]), which the petitioner invokes as
precedent, is riot in point. In the present case the Acting Commissioner, in issuing the memorandum circular, was
directing strict compliance with an existing provision of law, which mandates automatic review of decisions of collectors
in seizure and protest cases which are adverse to the government. On the other hand, in Sy Man, the memorandum
order of the Insular Collector of Customs directed the elevation of records in seizure and forfeiture cases for automatic
review even if he had not been expressly granted such power under the then existing law.

The objection to the enforcement of Section 12 of the Plan and CMO No. 20-87 on the ground that they had not been
published in the Official Gazette, is not well taken. The Plan, as part of P.D. No. 1, was "adopted, approved and made as
part of the law of the land" and published in Volume 68, No. 40, p. 7797 of the Official Gazette issue of October 2, 1972.

Article 2 of the Civil Code, which requires laws to be published in the Official Gazette, does not apply to CMO No. 20-87
which is only an administrative order of the Commissioner of Customs addressed to his subordinates. the customs
collectors.

Commonwealth Act No. 638 (an Act to Provide for the Uniform Publication and Distribution of the Official Gazette)
enumerates what shall be published in the Official Gazette besides legislative acts and resolutions of a public natureof
the Congress of the Philippines. Executive and administrative orders and proclamations, shall also be published in the
Official Gazette, except such as have no general applicability." CMO No. 20-87 requiring collectors of customs to
comply strictly with Section 12 of the Plan, is an issuance which is addressed only to particular persons or a class of
persons (the customs collectors). "It need not be published, on the assumption that it has been circularized to all
concerned" (Tanada vs. Tuvera, 136 SCRA 27).

WHEREFORE, the petition for review is denied for lack of merit. The temporary restraining order which we issued in this
case is hereby made permanent. Cost against the petitioner.

SO ORDERED.

Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento and Cortes, JJ., concur.

Padilla, Jr., took no part.

Separate Opinions

MEDIALDEA, J., dissenting:

The present case involves two decisions of the Collector of Customs of Tacloban City on a seizure case. The first decision
was rendered on June 7, 1988, ordering the release of 9,000 bags of sugar belonging to petitioner Jimmy Yaokasin which
were seized by the Philippine Coast Guard and turned over to the custody of customs authorities. The second, rendered
on July 15, 1988 reverses the first decision and orders the forfeiture of the sugar. Petitioner did not appeal the June
7decision and the Collector of Customs rendered the second decision predicated on the automatic review powers of
the Commissioner in decisions adverse to the government as embodied in Customs Memorandum Order (CMO) No. 20-
87.

The memorandum was issued by then Acting Commissioner of Customs Alexander Padilla on May 18, 1987, and provides
as follows:
 CUSTOMS MEMORANDUM ORDER NO. 20-87

TO: All Collectors of Customs and Others Concerned

Effective immediately, you are hereby directed to implement strictly the following —

Decisions of the Collector of Customs in seizure and protest cases are subject to
review by the Commissioner upon appeal as provided under existing
laws; provided, however, that where a decision of the Collector Customs in such
seizure and protest cases is adverse to the government, it shall automatically be
reviewed by the Commissioner of Customs.'

In view thereof, no releases iii any seizure or like cases may be effected unless and until the decision of
the Collector has been confirmed in writing by the Commissioner of Customs.

For immediate and strict compliance.

(Sgd.)
ALEXAN
DER A.
PADILLA
Acting
Commiss
ioner of
Customs

(p. 436, Rollo) (Italics Ours)

Petitioner disputes the validity of the memorandum, claiming instead that the law applicable to his case is Sec. 2313 of
the Tariff and Customs Code of the Philippines of 1982.

The main issue in this case is whether or not the Commissioner of Customs has the power of automatic review over
decisions of the Collector of Customs in seizure and protest cases.

The majority upholds the automatic review power, based on CMO No. 20-87. I disagree, based on the provisions of
Section 2313 of the Tariff and Customs Code.

The facts of this case are similar to that involved in Sy Man v. Jacinto (93 Phil. 1093), briefly stated below:

On January 2, 1951, the Manila Port Collector of Customs ordered the seizure of the shipments of
textile and a number of sewing machines, consigned to Sy Man. On June 4, 1951, he ordered the
release of the articles covered by the seizure order, upon payment of the corresponding customs
duties, except the sewing machines which were declared forfeited to be sold, if saleable or otherwise,
destroyed.

On June 27, 1951, Sy Man received a copy of the decision. Sy Man's counsel sought execution of the
decision, based on the facts that the Commissioner of Customs could no longer review the decision
after the lapse of 15 days from notification of said decision to Sy Man.

The issue centered on the power of automatic review of the Commissioner of Customs, based on his
power and supervision and control over the Collector of Customs allegedly implemented by way of
the Memorandum promulgated by the Insular Collector of Customs, dated August 18, 1947, which
provides that as in protest cases, decisions of the Collector of Customs in seizure cases, whether
appealed or not, are subject to review by the Insular Collector (now Commissioner).

We ruled that:
 (1) Since the Memorandum Order dated August 18, 1947 was never approved by the department
head and was never published in the Official Gazette, as required by Sec. 551 of the Revised
Administrative Code, the same cannot be given legal effect;

(2) Additionally, the Memorandum is adjudged in consistent with law, since there is no law giving the
Commissioner the power to review and revise unappealed decision of the Collector of Customs in
seizure cases;

(3) Under the law then in force, governing the Bureau of Customs, the decisions of the Collector of
Customs in a seizure case, if not protested and appealed by the importer to the Commissioner of
Customs on time becomes final, not only to him, but also against the Government as well, and neither
the Commissioner nor the Department Head has the power to review, revise or modify such
unappealed decision.

In the present case, it is claimed that CMO No. 20-87 merely implements Section 12 (Part IV, Chp. I, Art. IV) of the
Integrated Reorganization Plan (Plan) of former President Marcos. The Plan was prepared by the Commission on
Reorganization (authorized under RA 5435) and submitted to former President Marcos for the reorganization of the
Executive Branch of the government. It was adopted as law, pursuant to P.D. No. 1, issued on September 24, 1972.

Section 12 of the Plan provides in part as follows:

Part. IV — Revenue Administration

Chp. I — Department of Finance

xxx xxx xxx

Art. IV — Bureau of Customs

12. ... Decisions of the Collector of Customs in seizure and protest cases are subject to review by the
Commissioner upon appeal as provided under existing laws; provided, however, that where a
decision of a Collector of Customs in such seizure and protest case is adverse to the government, it
shall automatically be reviewed by the Commissioner of Customs which, if affirmed, shall
automatically be elevated for final review by the Secretary of Finance; provided, further, that if within
thirty days from receipt of the records of the case by the Commissioner of Customs or the Secretary of
Finance, no decision is rendered by the Commissioner of Customs or the Secretary of Finance the
decision under review shall become final and executory. (Emphasis ours)

As will be noted, the Plan grants the Commissioner of Customs the power to review automatically, decisions of the
Collector of Customs in seizure and protest cases adverse to the government. Cases not decided by the Commissioner
within 30 days from receipt of the records become final and executory.

There is no question that P. D. No. 1/ the Plan is still a valid law. However, I do not agree that this is legal authority to
uphold the Commissioner's right to automatically review decisions of the Collector of Customs in seizure cases, and, in
the process, allow a reversal of a decision favorable to the importer. When the Plan became law pursuant to P.D. No. 1,
Section 2313 of RA 1937 (Tariff and Customs Code of the Philippines) already governed the review powers of the
Commissioner of Customs. Thus, while both Section 12 of the Plan and 2313 of the Tariff and Customs Code deal with the
review powers of the Commissioner of Customs, the Plan is a general law, as it concerns itself with the reorganization of
the executive branch of the government in a martial law regime, whereas the Code is a special law, i.e., specifically on
tariff and customs duties. Consequently, the Plan is subservient to the Code and the automatic review power granted
therein can not be upheld.

Prior to subsequent amendments, Section 2313 of the Code provided as follows:

SEC. 2313. Review by Commissioner. — The person aggrieved by the decision or action of the
Collector in any matter presented upon protest or by his action in any case of seizure may, within
fifteen days after notification in writing by the collector of his action or decision, give written notice to
the Collector of his desire to have the matter reviewed by the Commissioner. Thereupon the Collector
shall forthwith transmit all the records of the proceedings to the Commissioner, who shall approve,
 modify or reverse the action or decision of the Collector and take such steps and make such orders as
may be necessary to give effect to his decision. (Emphasis ours)

As will be noted, the foregoing provision does not contain any automatic review powers of the Commissioner of
Customs.

On October 27, 1972, former President Marcos issued P.D. No. 34, amending the Tariff and Customs Revision Act of 1972
(earlier issued by the former Congress, martial law having been proclaimed) without any reference to the provisions of
Sec. 12 of P.D. No. 1.

As amended by P.D. No. 34, Section 2313 provided as follows:

SEC. 2313. Review by Commissioner. — The person aggieved by the decision or action of the Collector
in any matter presented upon protest or by his action in any case of seizure may, within fifteen (15)
days after notificaton in writing by the Collector of his action or decision, give written notice to the
Collector and one copy furnished to the Commissioner of his desire to have the matter reviewed by
the Commissioner. Thereupon the Collector shall forthwith transmit all the records of the proceedings
to the Commissioner, who shall approve, modify or reverse the action or decision of the Collector and
take such steps and make such orders as may be necessary to give effect to his decision. (Emphasis
ours)

One notes that except for the phrase requiring a copy of the notice to be furnished to the Commissioner of Customs, no
other substantial change was introduced by P.D. No. 34. Consequently, the right to elevate the case to the
Commissioner of Customs remained an exclusive authority of the aggrieved party.

On June 11, 1978, P.D. No. 1464 was issued directing the consolidation and codification of the tariff and customs laws of
the Philippines into a single code, to be known as the Tariff and Customs Code of 1978. The Code was subsequently
codified as the "Tariff and Customs Code of 1982" pursuant to Executive Order No. 688, dated May 9, 1981, again without
any reference to Section 12 of P.D. No. 1.

Throughout the various amendments/modifications of the tariff and customs laws, the review power of the Commissioner
of Customs in seizure cases has remained the same, i.e., it arises only upon appeal of the aggrieved party. Hence, if no
appeal is made, the decision of the Collector of Customs becomes final and executory, even as against the
government.

It is therefore clear that while it was intended by the Plan to invest the Commissioner of Customs with automatic review
powers over decisions of the Collector of Customs in seizure cases, more importantly in cases adverse to the
government, this intention was never carried out.

As a matter of fact, despite the requirement of P.D. No. 1, viz:

xxx xxx xxx

Implementation of the Integrated Reorganization Plan as herein adopted, approved and

decreed shall be carried out by Letters of Implementation which will be issued by me from time to
time or by my duly elected authorized representative.

. . . (Emphasis ours)

and the Plan itself

I. After this Plan shall have been approved, the President of the Philippines shall, in consultation with
the department or agency head concerned, prepare the implementing details with the assistance of
such technical groups or agencies which he may designate, and issue the necessary executive order
or orders within three months after the approval of this plan; .... (Emphasis ours.)

no Letter of Implementation as called for, was ever issued.

Private respondents contend that CMO No. 20-87 implements the Plan on the automatic review powers. I do not agree.
Section 12 of the Plan/P.D. No. 1 is no longer good law, as earlier pointed out, since despite various presidential issuances
and amendments on customs laws, the Commissioner of customs was never granted any automatic review power.

The power of review of the Commissioner of customs found in Sec. 2313 is different from the supervisory authorityof the
Commissioner of Customs presently embodied in Sec. 2315 of the Tariff Customs Code, quoted below, and which gives
him the authority of automatic review of the decisions of the Collector of Customs in assessment of duties adverse to the
government.

SEC. 2315. Supervisory Authority of Commissioner and of Secretary of Finance in Certain Cases — If in
any case involving the assessment of duties, the Collector renders a decision adverse to the
government, such decision shall automatically be elevated to and reviewed by, the Commissioner;
and if the Collector's decision would be affirmed by the Commissioner, such decision shall be
automatically elevated to, and be finally reviewed by, the Secretary of Finance: Provided, however,
That if within thirty (30) days from receipt of the record of the case by the Commissioner or by the
Secretary of the Finance: as the case may be, no decision is rendered by either of them, the decision
under review shall become final and executory: Provided, further, That any party aggrieved by either
the decision of the Commissioner or of the Secretary of Finance may appeal to the Court of Tax
Appeal within thirty (30) days from receipt of a copy of such decision. For to purpose Republic Act
Numbered Eleven Hundred and twenty-five is hereby amended accordingly. ( Emphasis Ours)

Prior to the amendment introduced by P.D. No. 34, Sec. 2315 read as follows:

SEC. 2315. Supervisory Authority of Commissoner and of Department Head in Certain Cases. — If in
any case involving the assessment of duties the importer shall fail to protest the ruling of the Collector,
and the Commissioner shall be of the opinion that the ruling was erroneous and unfavorable to the
Government, the latter may order a reliquidation; and if the ruling of the Commissioner in any
unprotested case should, in the opinion of the department head, be erroneous and unfavorable to
the government, the department head may require the Commissioner to order a reliquidation.
(Emphasis ours)

xxx xxx xxx

Under the old provision, We note that the Commissioner of Customs had the right to order a reliquidation in unprotested
cases of assesment of duties, where he is "of the opinion that the ruling of the Collector of Customs was erroneous and
unfavorable to the government."

As amended, Sec. 2315 has been rephrased, giving the Commissioner of Customs the power of "automatic review"(not
reliquidation) over adverse decisions of the Collector of Customs in cases involving assessment of duties, but must do so
within a period of thirty days; otherwise, his decision becomes final and executory.

The 30-day period appears to be a response to a defect We noted in the Sy Man case found in the old provision of Sec.
2315 which did not prescribe a period within which a reliquidation may be undertaken. The absence of a period was
"decidedly unsatisfactory and even unjust, if not oppressive" to the importer, who was willing "to abide by the decision of
the Collector, to pay the amounts fixed, including the fines, and desired to get the goods released so as to be able to
dispose of them," but was unable to do so because of the prolonged inaction of the Commissioner. (See Sy Man, supra,
p.1101)

In the Sy Man case, We noted two defects. The first pertained to the absence of the period found in Sec. 2315, while the
second referred to a need for a provision on review and revision by the Commissioner of Customs on unappealed seizure
cases, as governed by Sec. 2313. Thus:

But if the Government deems it necessary to provide for review and revision by the Commissioner or
even by the Department Head of the decision of the Collector of Customs in an unappealed seizure
cases, the Legislature may be requested to insert a section in the Revised Administrative Code similar
to Section 1393 (now Section of the Customs Law) which applies to unprotested cases of assessment
duties. The defect in said section however is that it does not fix the period within which the automatic
review and revision or reliquidation to be ordered by the Commissioner and the Secretary of Finance
must be effected. This defect should be remedied. (p. 1107)
Unfortunately, as can be seen, our legislators merely acted on the defect found in Sec. 2315 by providing for a period in
cases of assessment of duties. Additionally, they invested the Commissioner with automatic review powers where an
assessment was adverse to the government, thus, eliminating any possible prejudice to the government. They did not,
however, provide any authority for automatic review in unappealed seizure cases, similar to that found in Sec. 2313, thus
belying any intent to implement the Plan with respect to the automatic review powers.

As in the Sy Man case, it is now argued that the lack of automatic review causes prejudice to the government. We
quote from Sy Man:

It is argued that if this power of review and revision by the Commissioner of unappealed seizure
casesis not conceded, then in cases where the Collector in his decision commits a blunder prejudicial
to the interest of the Government, or renders a decision through fraud or in collusion with the importer,
the Government cannot protect itself. The argument is not without merit; but we must bear in mind
that the law is promulgated to operate on ordinary, common, routine cases. The rule is and the law
presumes that in seizure cases Collectors of Customs act honestly and correctly and as Government
officials, always with an eye to the protection of the interests of the Government employing them. If
mistakes are committed at all more often than not they are in favor of the Government and not
against it, and that is the reason why when the importer feels aggrieved by their decision, he is given
every chance and facility to protest the decision and appeal to the Commissioner. Cases of
erroneous decisions against the interest of the Government of decisions rendered in collusion and
connivance with importers are the exception. To protect the Government in such exceptional cases,
we find that in every seizure case, section 1378 (now Section 2301, Customs Law) of the Revised
Administrative Code requires the Collector to immediately notify the Commissioner and the Auditor
General. It may be that this requirement has for its main purpose the recording of and accounting for
the articles seized so that in case of confiscation the Commissioner and the Auditor General will know
what articles have become government property. But the notice will also inform the Commissioner
and the Auditor General of the seizure. If the seizure is important or unusual, the Commissioner may, if
he so desires, order the Collector as his subordinate to withhold action on the seizure, or hold in
abeyance, within a reasonable time, the promulgation of his decision until after he had conferred
with the Commissioner or the latter had studied the case and given suggestions. At that stage of the
proceedings before definite action is taken by the Collector, and a decision rendered by him, it
would seem that any action by him as a subordinate is still subject to the supervisory authority and
control of the Commissioner as his chief, and the latter may still influence and direct the Collector's
action if he finds occasion for doing so. (Emphasis ours)

We believe that for as long as the procedure laid down in Sec. 2302 is observed, there can be no resulting prejudice to
the government in unappealed seizure cases, since the Commissioner in the exercise of his supervisory authority can ask
the Collector to "withhold action on the seizure or hold in abeyance within a reasonable time the promulgation of a
decision, until after he has conferred with the Collector," in cases of unusual or important seizure.

As it now stands therefore, there is no law allowing automatic review in seizure cases. For this reason, CMO No. 20-87,
issued supposedly in implementation of Sec. 12 of the Plan/P.D. No. 1, which has since been amended/modified, is void
and of no effect, being inconsistent with law.

Assuming applicability of P.D. No. 1/Plan, CMO No. 20-87 would still not be effective since it was not published as
required by Section 551 of the Revised Administrative Code (the law then in force since the 1987 Revised Administrative
Code took effect on September 21, 1988), which in part provides:

Section 551. Authority to prescribe forms and make regulation. — ...

Regulations and orders shall become effective only when approved by the Department Head and
published in the Official Gazette or otherwise publicly promulgated. Formal approval or publication
shall not be necessary as regards circulars of information or instructions for the guidance of officers
and employees in the internal administration of the affairs of the Bureau. (Italics ours)

Previous customs administrative orders had complied with this requirement. Thus, Customs Administrative Order Nos. 225
and 226, issued by then Commissioner of Customs Eleuterio Capapas on August 15,1957 and December 3,1957,
respectively, were duly published in Vol. 54, No. 2, p. 300 of the Official Gazette.

CAO No. 226 deals, among others, with "protests and appeals," and implements Section 2313 of the Code. Thus, Par. VII
thereof similarly gives the importer exclusive authority to elevate the case to the Commissioner, viz:
 Customs Administrative Order No. 226

December 3, 1957

PROTEST AND APPEALS: REDEMPTION OF FORFEITED ARTICLES; AND EXECUTION OF

DECISIONS.

xxx xxx xxx

Par. VII. The person aggrieved by the decision or action of a collector of customs in any matter
presented upon protest or by his action in any case of seizure pursuant to section 2312 of the Tariff
and Customs Code of the Philipppines may give a written notice to the Collector of Customs of his
desire to have the matter reviewed by the Commissioner of Customs. (Italics ours).

In contrast, CMO No. 20-87 enlarges the power of the Commissioner of Customs by investing him with automatic powers
in seizure cases, in effect amending COA No. 226. Expectedly, the memorandum must be published in accordance with
Sec. 551 of the Revised Administrative Code not only for effectivity but also to fully apprise third persons. Absent such
publication, the same cannot be upheld for non-compliance with Sec. 551 of the Revised Administrative Code.

For these reasons, I vote to GRANT the petition.

Fernan, C.J., Gutierrez, Jr., and Regalado, JJ., concur.

Separate Opinions

MEDIALDEA, J., dissenting:

The present case involves two decisions of the Collector of Customs of Tacloban City on a seizure case. The first decision
was rendered on June 7, 1988, ordering the release of 9,000 bags of sugar belonging to petitioner Jimmy Yaokasin which
were seized by the Philippine Coast Guard and turned over to the custody of customs authorities. The second, rendered
on July 15, 1988 reverses the first decision and orders the forfeiture of the sugar. Petitioner did not appeal the June
7decision and the Collector of Customs rendered the second decision predicated on the automatic review powers of
the Commissioner in decisions adverse to the government as embodied in Customs Memorandum Order (CMO) No. 20-
87.

The memorandum was issued by then Acting Commissioner of Customs Alexander Padilla on May 18, 1987, and provides
as follows:

CUSTOMS MEMORANDUM ORDER NO. 20-87

TO: All Collectors of Customs and Others Concerned

Effective immediately, you are hereby directed to implement strictly the following —

Decisions of the Collector of Customs in seizure and protest cases are subject to
review by the Commissioner upon appeal as provided under existing
laws; provided, however, that where a decision of the Collector Customs in such
seizure and protest cases is adverse to the government, it shall automatically be
reviewed by the Commissioner of Customs.'

In view thereof, no releases iii any seizure or like cases may be effected unless and until the decision of
the Collector has been confirmed in writing by the Commissioner of Customs.

For immediate and strict compliance.

 (Sgd.)
ALEXAN
DER A.
PADILLA
Acting
Commiss
ioner of
Customs

(p. 436, Rollo) (Italics Ours)

Petitioner disputes the validity of the memorandum, claiming instead that the law applicable to his case is Sec. 2313 of
the Tariff and Customs Code of the Philippines of 1982.

The main issue in this case is whether or not the Commissioner of Customs has the power of automatic review over
decisions of the Collector of Customs in seizure and protest cases.

The majority upholds the automatic review power, based on CMO No. 20-87. I disagree, based on the provisions of
Section 2313 of the Tariff and Customs Code.

The facts of this case are similar to that involved in Sy Man v. Jacinto (93 Phil. 1093), briefly stated below:

On January 2, 1951, the Manila Port Collector of Customs ordered the seizure of the shipments of
textile and a number of sewing machines, consigned to Sy Man. On June 4, 1951, he ordered the
release of the articles covered by the seizure order, upon payment of the corresponding customs
duties, except the sewing machines which were declared forfeited to be sold, if saleable or otherwise,
destroyed.

On June 27, 1951, Sy Man received a copy of the decision. Sy Man's counsel sought execution of the
decision, based on the facts that the Commissioner of Customs could no longer review the decision
after the lapse of 15 days from notification of said decision to Sy Man.

The issue centered on the power of automatic review of the Commissioner of Customs, based on his
power and supervision and control over the Collector of Customs allegedly implemented by way of
the Memorandum promulgated by the Insular Collector of Customs, dated August 18, 1947, which
provides that as in protest cases, decisions of the Collector of Customs in seizure cases, whether
appealed or not, are subject to review by the Insular Collector (now Commissioner).

We ruled that:

(1) Since the Memorandum Order dated August 18, 1947 was never approved by the department
head and was never published in the Official Gazette, as required by Sec. 551 of the Revised
Administrative Code, the same cannot be given legal effect;

(2) Additionally, the Memorandum is adjudged in consistent with law, since there is no law giving the
Commissioner the power to review and revise unappealed decision of the Collector of Customs in
seizure cases;

(3) Under the law then in force, governing the Bureau of Customs, the decisions of the Collector of
Customs in a seizure case, if not protested and appealed by the importer to the Commissioner of
Customs on time becomes final, not only to him, but also against the Government as well, and neither
the Commissioner nor the Department Head has the power to review, revise or modify such
unappealed decision.

In the present case, it is claimed that CMO No. 20-87 merely implements Section 12 (Part IV, Chp. I, Art. IV) of the
Integrated Reorganization Plan (Plan) of former President Marcos. The Plan was prepared by the Commission on
Reorganization (authorized under RA 5435) and submitted to former President Marcos for the reorganization of the
Executive Branch of the government. It was adopted as law, pursuant to P.D. No. 1, issued on September 24, 1972.

Section 12 of the Plan provides in part as follows:

 Part. IV — Revenue Administration

Chp. I — Department of Finance

xxx xxx xxx

Art. IV — Bureau of Customs

12. ... Decisions of the Collector of Customs in seizure and protest cases are subject to review by the
Commissioner upon appeal as provided under existing laws; provided, however, that where a
decision of a Collector of Customs in such seizure and protest case is adverse to the government, it
shall automatically be reviewed by the Commissioner of Customs which, if affirmed, shall
automatically be elevated for final review by the Secretary of Finance; provided, further, that if within
thirty days from receipt of the records of the case by the Commissioner of Customs or the Secretary of
Finance, no decision is rendered by the Commissioner of Customs or the Secretary of Finance the
decision under review shall become final and executory. (Emphasis ours)

As will be noted, the Plan grants the Commissioner of Customs the power to review automatically, decisions of the
Collector of Customs in seizure and protest cases adverse to the government. Cases not decided by the Commissioner
within 30 days from receipt of the records become final and executory.

There is no question that P. D. No. 1/ the Plan is still a valid law. However, I do not agree that this is legal authority to
uphold the Commissioner's right to automatically review decisions of the Collector of Customs in seizure cases, and, in
the process, allow a reversal of a decision favorable to the importer. When the Plan became law pursuant to P.D. No. 1,
Section 2313 of RA 1937 (Tariff and Customs Code of the Philippines) already governed the review powers of the
Commissioner of Customs. Thus, while both Section 12 of the Plan and 2313 of the Tariff and Customs Code deal with the
review powers of the Commissioner of Customs, the Plan is a general law, as it concerns itself with the reorganization of
the executive branch of the government in a martial law regime, whereas the Code is a special law, i.e., specifically on
tariff and customs duties. Consequently, the Plan is subservient to the Code and the automatic review power granted
therein can not be upheld.

Prior to subsequent amendments, Section 2313 of the Code provided as follows:

SEC. 2313. Review by Commissioner. — The person aggrieved by the decision or action of the
Collector in any matter presented upon protest or by his action in any case of seizure may, within
fifteen days after notification in writing by the collector of his action or decision, give written notice to
the Collector of his desire to have the matter reviewed by the Commissioner. Thereupon the Collector
shall forthwith transmit all the records of the proceedings to the Commissioner, who shall approve,
modify or reverse the action or decision of the Collector and take such steps and make such orders as
may be necessary to give effect to his decision. (Emphasis ours)

As will be noted, the foregoing provision does not contain any automatic review powers of the Commissioner of
Customs.

On October 27, 1972, former President Marcos issued P.D. No. 34, amending the Tariff and Customs Revision Act of 1972
(earlier issued by the former Congress, martial law having been proclaimed) without any reference to the provisions of
Sec. 12 of P.D. No. 1.

As amended by P.D. No. 34, Section 2313 provided as follows:

SEC. 2313. Review by Commissioner. — The person aggieved by the decision or action of the Collector
in any matter presented upon protest or by his action in any case of seizure may, within fifteen (15)
days after notificaton in writing by the Collector of his action or decision, give written notice to the
Collector and one copy furnished to the Commissioner of his desire to have the matter reviewed by
the Commissioner. Thereupon the Collector shall forthwith transmit all the records of the proceedings
to the Commissioner, who shall approve, modify or reverse the action or decision of the Collector and
take such steps and make such orders as may be necessary to give effect to his decision. (Emphasis
ours)
One notes that except for the phrase requiring a copy of the notice to be furnished to the Commissioner of Customs, no
other substantial change was introduced by P.D. No. 34. Consequently, the right to elevate the case to the
Commissioner of Customs remained an exclusive authority of the aggrieved party.

On June 11, 1978, P.D. No. 1464 was issued directing the consolidation and codification of the tariff and customs laws of
the Philippines into a single code, to be known as the Tariff and Customs Code of 1978. The Code was subsequently
codified as the "Tariff and Customs Code of 1982" pursuant to Executive Order No. 688, dated May 9, 1981, again without
any reference to Section 12 of P.D. No. 1.

Throughout the various amendments/modifications of the tariff and customs laws, the review power of the Commissioner
of Customs in seizure cases has remained the same, i.e., it arises only upon appeal of the aggrieved party. Hence, if no
appeal is made, the decision of the Collector of Customs becomes final and executory, even as against the
government.

It is therefore clear that while it was intended by the Plan to invest the Commissioner of Customs with automatic review
powers over decisions of the Collector of Customs in seizure cases, more importantly in cases adverse to the
government, this intention was never carried out.

As a matter of fact, despite the requirement of P.D. No. 1, viz:

xxx xxx xxx

Implementation of the Integrated Reorganization Plan as herein adopted, approved and

decreed shall be carried out by Letters of Implementation which will be issued by me from time to
time or by my duly elected authorized representative.

. . . (Emphasis ours)

and the Plan itself

I. After this Plan shall have been approved, the President of the Philippines shall, in consultation with
the department or agency head concerned, prepare the implementing details with the assistance of
such technical groups or agencies which he may designate, and issue the necessary executive order
or orders within three months after the approval of this plan; .... (Emphasis ours.)

no Letter of Implementation as called for, was ever issued.

Private respondents contend that CMO No. 20-87 implements the Plan on the automatic review powers. I do not agree.
Section 12 of the Plan/P.D. No. 1 is no longer good law, as earlier pointed out, since despite various presidential issuances
and amendments on customs laws, the Commissioner of customs was never granted any automatic review power.

The power of review of the Commissioner of customs found in Sec. 2313 is different from the supervisory authorityof the
Commissioner of Customs presently embodied in Sec. 2315 of the Tariff Customs Code, quoted below, and which gives
him the authority of automatic review of the decisions of the Collector of Customs in assessment of duties adverse to the
government.

SEC. 2315. Supervisory Authority of Commissioner and of Secretary of Finance in Certain Cases — If in
any case involving the assessment of duties, the Collector renders a decision adverse to the
government, such decision shall automatically be elevated to and reviewed by, the Commissioner;
and if the Collector's decision would be affirmed by the Commissioner, such decision shall be
automatically elevated to, and be finally reviewed by, the Secretary of Finance: Provided, however,
That if within thirty (30) days from receipt of the record of the case by the Commissioner or by the
Secretary of the Finance: as the case may be, no decision is rendered by either of them, the decision
under review shall become final and executory: Provided, further, That any party aggrieved by either
the decision of the Commissioner or of the Secretary of Finance may appeal to the Court of Tax
Appeal within thirty (30) days from receipt of a copy of such decision. For to purpose Republic Act
Numbered Eleven Hundred and twenty-five is hereby amended accordingly. ( Emphasis Ours)

Prior to the amendment introduced by P.D. No. 34, Sec. 2315 read as follows:
 SEC. 2315. Supervisory Authority of Commissoner and of Department Head in Certain Cases. — If in
any case involving the assessment of duties the importer shall fail to protest the ruling of the Collector,
and the Commissioner shall be of the opinion that the ruling was erroneous and unfavorable to the
Government, the latter may order a reliquidation; and if the ruling of the Commissioner in any
unprotested case should, in the opinion of the department head, be erroneous and unfavorable to
the government, the department head may require the Commissioner to order a reliquidation.
(Emphasis ours)

xxx xxx xxx

Under the old provision, We note that the Commissioner of Customs had the right to order a reliquidation in unprotested
cases of assesment of duties, where he is "of the opinion that the ruling of the Collector of Customs was erroneous and
unfavorable to the government."

As amended, Sec. 2315 has been rephrased, giving the Commissioner of Customs the power of "automatic review"(not
reliquidation) over adverse decisions of the Collector of Customs in cases involving assessment of duties, but must do so
within a period of thirty days; otherwise, his decision becomes final and executory.

The 30-day period appears to be a response to a defect We noted in the Sy Man case found in the old provision of Sec.
2315 which did not prescribe a period within which a reliquidation may be undertaken. The absence of a period was
"decidedly unsatisfactory and even unjust, if not oppressive" to the importer, who was willing "to abide by the decision of
the Collector, to pay the amounts fixed, including the fines, and desired to get the goods released so as to be able to
dispose of them," but was unable to do so because of the prolonged inaction of the Commissioner. (See Sy Man, supra,
p.1101)

In the Sy Man case, We noted two defects. The first pertained to the absence of the period found in Sec. 2315, while the
second referred to a need for a provision on review and revision by the Commissioner of Customs on unappealed seizure
cases, as governed by Sec. 2313. Thus:

But if the Government deems it necessary to provide for review and revision by the Commissioner or
even by the Department Head of the decision of the Collector of Customs in an unappealed seizure
cases, the Legislature may be requested to insert a section in the Revised Administrative Code similar
to Section 1393 (now Section of the Customs Law) which applies to unprotested cases of assessment
duties. The defect in said section however is that it does not fix the period within which the automatic
review and revision or reliquidation to be ordered by the Commissioner and the Secretary of Finance
must be effected. This defect should be remedied. (p. 1107)

Unfortunately, as can be seen, our legislators merely acted on the defect found in Sec. 2315 by providing for a period in
cases of assessment of duties. Additionally, they invested the Commissioner with automatic review powers where an
assessment was adverse to the government, thus, eliminating any possible prejudice to the government. They did not,
however, provide any authority for automatic review in unappealed seizure cases, similar to that found in Sec. 2313, thus
belying any intent to implement the Plan with respect to the automatic review powers.

As in the Sy Man case, it is now argued that the lack of automatic review causes prejudice to the government. We
quote from Sy Man:

It is argued that if this power of review and revision by the Commissioner of unappealed seizure
casesis not conceded, then in cases where the Collector in his decision commits a blunder prejudicial
to the interest of the Government, or renders a decision through fraud or in collusion with the importer,
the Government cannot protect itself. The argument is not without merit; but we must bear in mind
that the law is promulgated to operate on ordinary, common, routine cases. The rule is and the law
presumes that in seizure cases Collectors of Customs act honestly and correctly and as Government
officials, always with an eye to the protection of the interests of the Government employing them. If
mistakes are committed at all more often than not they are in favor of the Government and not
against it, and that is the reason why when the importer feels aggrieved by their decision, he is given
every chance and facility to protest the decision and appeal to the Commissioner. Cases of
erroneous decisions against the interest of the Government of decisions rendered in collusion and
connivance with importers are the exception. To protect the Government in such exceptional cases,
we find that in every seizure case, section 1378 (now Section 2301, Customs Law) of the Revised
Administrative Code requires the Collector to immediately notify the Commissioner and the Auditor
General. It may be that this requirement has for its main purpose the recording of and accounting for
the articles seized so that in case of confiscation the Commissioner and the Auditor General will know
 what articles have become government property. But the notice will also inform the Commissioner
and the Auditor General of the seizure. If the seizure is important or unusual, the Commissioner may, if
he so desires, order the Collector as his subordinate to withhold action on the seizure, or hold in
abeyance, within a reasonable time, the promulgation of his decision until after he had conferred
with the Commissioner or the latter had studied the case and given suggestions. At that stage of the
proceedings before definite action is taken by the Collector, and a decision rendered by him, it
would seem that any action by him as a subordinate is still subject to the supervisory authority and
control of the Commissioner as his chief, and the latter may still influence and direct the Collector's
action if he finds occasion for doing so. (Emphasis ours)

We believe that for as long as the procedure laid down in Sec. 2302 is observed, there can be no resulting prejudice to
the government in unappealed seizure cases, since the Commissioner in the exercise of his supervisory authority can ask
the Collector to "withhold action on the seizure or hold in abeyance within a reasonable time the promulgation of a
decision, until after he has conferred with the Collector," in cases of unusual or important seizure.

As it now stands therefore, there is no law allowing automatic review in seizure cases. For this reason, CMO No. 20-87,
issued supposedly in implementation of Sec. 12 of the Plan/P.D. No. 1, which has since been amended/modified, is void
and of no effect, being inconsistent with law.

Assuming applicability of P.D. No. 1/Plan, CMO No. 20-87 would still not be effective since it was not published as
required by Section 551 of the Revised Administrative Code (the law then in force since the 1987 Revised Administrative
Code took effect on September 21, 1988), which in part provides:

Section 551. Authority to prescribe forms and make regulation. — ...

Regulations and orders shall become effective only when approved by the Department Head and
published in the Official Gazette or otherwise publicly promulgated. Formal approval or publication
shall not be necessary as regards circulars of information or instructions for the guidance of officers
and employees in the internal administration of the affairs of the Bureau. (Italics ours)

Previous customs administrative orders had complied with this requirement. Thus, Customs Administrative Order Nos. 225
and 226, issued by then Commissioner of Customs Eleuterio Capapas on August 15,1957 and December 3,1957,
respectively, were duly published in Vol. 54, No. 2, p. 300 of the Official Gazette.

CAO No. 226 deals, among others, with "protests and appeals," and implements Section 2313 of the Code. Thus, Par. VII
thereof similarly gives the importer exclusive authority to elevate the case to the Commissioner, viz:

Customs Administrative Order No. 226

December 3, 1957

PROTEST AND APPEALS: REDEMPTION OF FORFEITED ARTICLES; AND EXECUTION OF

DECISIONS.

xxx xxx xxx

Par. VII. The person aggrieved by the decision or action of a collector of customs in any matter
presented upon protest or by his action in any case of seizure pursuant to section 2312 of the Tariff
and Customs Code of the Philipppines may give a written notice to the Collector of Customs of his
desire to have the matter reviewed by the Commissioner of Customs. (Italics ours).

In contrast, CMO No. 20-87 enlarges the power of the Commissioner of Customs by investing him with automatic powers
in seizure cases, in effect amending COA No. 226. Expectedly, the memorandum must be published in accordance with
Sec. 551 of the Revised Administrative Code not only for effectivity but also to fully apprise third persons. Absent such
publication, the same cannot be upheld for non-compliance with Sec. 551 of the Revised Administrative Code.

For these reasons, I vote to GRANT the petition.

Fernan, C.J., Gutierrez, Jr., and Regalado, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 179579 February 1, 2012

COMMISSIONER OF CUSTOMS and the DISTRICT COLLECTOR OF THE PORT OF SUBIC, Petitioners,
vs.
HYPERMIX FEEDS CORPORATION, Respondent.

DECISION

SERENO, J.:

Before us is a Petition for Review under Rule 45,1 assailing the Decision2 and the Resolution3 of the Court of Appeals (CA),
which nullified the Customs Memorandum Order (CMO) No. 27-20034 on the tariff classification of wheat issued by
petitioner Commissioner of Customs.

The antecedent facts are as follows:

On 7 November 2003, petitioner Commissioner of Customs issued CMO 27-2003. Under the Memorandum, for tariff
purposes, wheat was classified according to the following: (1) importer or consignee; (2) country of origin; and (3) port of
discharge.5 The regulation provided an exclusive list of corporations, ports of discharge, commodity descriptions and
countries of origin. Depending on these factors, wheat would be classified either as food grade or feed grade. The
corresponding tariff for food grade wheat was 3%, for feed grade, 7%.

CMO 27-2003 further provided for the proper procedure for protest or Valuation and Classification Review Committee
(VCRC) cases. Under this procedure, the release of the articles that were the subject of protest required the importer to
post a cash bond to cover the tariff differential.6

A month after the issuance of CMO 27-2003, on 19 December 2003, respondent filed a Petition for Declaratory
Relief7 with the Regional Trial Court (RTC) of Las Piñas City. It anticipated the implementation of the regulation on its
imported and perishable Chinese milling wheat in transit from China.8 Respondent contended that CMO 27-2003 was
issued without following the mandate of the Revised Administrative Code on public participation, prior notice, and
publication or registration with the University of the Philippines Law Center.

Respondent also alleged that the regulation summarily adjudged it to be a feed grade supplier without the benefit of
prior assessment and examination; thus, despite having imported food grade wheat, it would be subjected to the 7%
tariff upon the arrival of the shipment, forcing them to pay 133% more than was proper.

Furthermore, respondent claimed that the equal protection clause of the Constitution was violated when the regulation
treated non-flour millers differently from flour millers for no reason at all.

Lastly, respondent asserted that the retroactive application of the regulation was confiscatory in nature.

On 19 January 2004, the RTC issued a Temporary Restraining Order (TRO) effective for twenty (20) days from notice.9

Petitioners thereafter filed a Motion to Dismiss.10 They alleged that: (1) the RTC did not have jurisdiction over the subject
matter of the case, because respondent was asking for a judicial determination of the classification of wheat; (2) an
action for declaratory relief was improper; (3) CMO 27-2003 was an internal administrative rule and not legislative in
nature; and (4) the claims of respondent were speculative and premature, because the Bureau of Customs (BOC) had
yet to examine respondent’s products. They likewise opposed the application for a writ of preliminary injunction on the
ground that they had not inflicted any injury through the issuance of the regulation; and that the action would be
contrary to the rule that administrative issuances are assumed valid until declared otherwise.
On 28 February 2005, the parties agreed that the matters raised in the application for preliminary injunction and the
Motion to Dismiss would just be resolved together in the main case. Thus, on 10 March 2005, the RTC rendered its
Decision11 without having to resolve the application for preliminary injunction and the Motion to Dismiss.

The trial court ruled in favor of respondent, to wit:

WHEREFORE, in view of the foregoing, the Petition is GRANTED and the subject Customs Memorandum Order 27-2003 is
declared INVALID and OF NO FORCE AND EFFECT. Respondents Commissioner of Customs, the District Collector of Subic
or anyone acting in their behalf are to immediately cease and desist from enforcing the said Customs Memorandum
Order 27-2003.

SO ORDERED.12

The RTC held that it had jurisdiction over the subject matter, given that the issue raised by respondent concerned the
quasi-legislative powers of petitioners. It likewise stated that a petition for declaratory relief was the proper remedy, and
that respondent was the proper party to file it. The court considered that respondent was a regular importer, and that
the latter would be subjected to the application of the regulation in future transactions.

With regard to the validity of the regulation, the trial court found that petitioners had not followed the basic requirements
of hearing and publication in the issuance of CMO 27-2003. It likewise held that petitioners had "substituted the quasi-
judicial determination of the commodity by a quasi-legislative predetermination."13 The lower court pointed out that a
classification based on importers and ports of discharge were violative of the due process rights of respondent.

Dissatisfied with the Decision of the lower court, petitioners appealed to the CA, raising the same allegations in defense
of CMO 27-2003.14 The appellate court, however, dismissed the appeal. It held that, since the regulation affected
substantial rights of petitioners and other importers, petitioners should have observed the requirements of notice, hearing
and publication.

Hence, this Petition.

Petitioners raise the following issues for the consideration of this Court:

I. THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE WHICH IS NOT IN ACCORD WITH THE LAW AND
PREVAILING JURISPRUDENCE.

II. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT THE TRIAL COURT HAS JURISDICTION OVER THE
CASE.

The Petition has no merit.

We shall first discuss the propriety of an action for declaratory relief.

Rule 63, Section 1 provides:

Who may file petition. – Any person interested under a deed, will, contract or other written instrument, or whose rights are
affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before
breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of his rights or duties, thereunder.

The requirements of an action for declaratory relief are as follows: (1) there must be a justiciable controversy; (2) the
controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a
legal interest in the controversy; and (4) the issue involved must be ripe for judicial determination.15 We find that the
Petition filed by respondent before the lower court meets these requirements.

First, the subject of the controversy is the constitutionality of CMO 27-2003 issued by petitioner Commissioner of Customs.
In Smart Communications v. NTC,16 we held:
The determination of whether a specific rule or set of rules issued by an administrative agency contravenes the law or
the constitution is within the jurisdiction of the regular courts. Indeed, the Constitution vests the power of judicial review or
the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction,
ordinance, or regulation in the courts, including the regional trial courts. This is within the scope of judicial power, which
includes the authority of the courts to determine in an appropriate action the validity of the acts of the political
departments. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis
supplied)

Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary,17 we said:

xxx [A] legislative rule is in the nature of subordinate legislation, designed to implement a primary legislation by providing
the details thereof. xxx

In addition such rule must be published. On the other hand, interpretative rules are designed to provide guidelines to the
law which the administrative agency is in charge of enforcing.

Accordingly, in considering a legislative rule a court is free to make three inquiries: (i) whether the rule is within the
delegated authority of the administrative agency; (ii) whether it is reasonable; and (iii) whether it was issued pursuant to
proper procedure. But the court is not free to substitute its judgment as to the desirability or wisdom of the rule for the
legislative body, by its delegation of administrative judgment, has committed those questions to administrative
judgments and not to judicial judgments. In the case of an interpretative rule, the inquiry is not into the validity but into
the correctness or propriety of the rule. As a matter of power a court, when confronted with an interpretative rule, is free
to (i) give the force of law to the rule; (ii) go to the opposite extreme and substitute its judgment; or (iii) give some
intermediate degree of authoritative weight to the interpretative rule. (Emphasis supplied)

Second, the controversy is between two parties that have adverse interests. Petitioners are summarily imposing a tariff
rate that respondent is refusing to pay.

Third, it is clear that respondent has a legal and substantive interest in the implementation of CMO 27-2003. Respondent
has adequately shown that, as a regular importer of wheat, on 14 August 2003, it has actually made shipments of wheat
from China to Subic. The shipment was set to arrive in December 2003. Upon its arrival, it would be subjected to the
conditions of CMO 27-2003. The regulation calls for the imposition of different tariff rates, depending on the factors
enumerated therein. Thus, respondent alleged that it would be made to pay the 7% tariff applied to feed grade wheat,
instead of the 3% tariff on food grade wheat. In addition, respondent would have to go through the procedure under
CMO 27-2003, which would undoubtedly toll its time and resources. The lower court correctly pointed out as follows:

xxx As noted above, the fact that petitioner is precisely into the business of importing wheat, each and every importation
will be subjected to constant disputes which will result into (sic) delays in the delivery, setting aside of funds as cash bond
required in the CMO as well as the resulting expenses thereof. It is easy to see that business uncertainty will be a constant
occurrence for petitioner. That the sums involved are not minimal is shown by the discussions during the hearings
conducted as well as in the pleadings filed. It may be that the petitioner can later on get a refund but such has been
foreclosed because the Collector of Customs and the Commissioner of Customs are bound by their own CMO. Petitioner
cannot get its refund with the said agency. We believe and so find that Petitioner has presented such a stake in the
outcome of this controversy as to vest it with standing to file this petition.18 (Emphasis supplied)

Finally, the issue raised by respondent is ripe for judicial determination, because litigation is inevitable19 for the simple and
uncontroverted reason that respondent is not included in the enumeration of flour millers classified as food grade wheat
importers. Thus, as the trial court stated, it would have to file a protest case each time it imports food grade wheat and
be subjected to the 7% tariff.

It is therefore clear that a petition for declaratory relief is the right remedy given the circumstances of the case.

Considering that the questioned regulation would affect the substantive rights of respondent as explained above, it
therefore follows that petitioners should have applied the pertinent provisions of Book VII, Chapter 2 of the Revised
Administrative Code, to wit:

Section 3. Filing. – (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of
every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months
from that date shall not thereafter be the bases of any sanction against any party of persons.
 xxx xxx xxx

Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far as practicable, publish or
circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the
adoption of any rule.

(2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been published
in a newspaper of general circulation at least two (2) weeks before the first hearing thereon.

(3) In case of opposition, the rules on contested cases shall be observed.

When an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare
issuance, for it gives no real consequence more than what the law itself has already prescribed. When, on the other
hand, the administrative rule goes beyond merely providing for the means that can facilitate or render least
cumbersome the implementation of the law but substantially increases the burden of those governed, it behooves the
agency to accord at least to those directly affected a chance to be heard, and thereafter to be duly informed, before
that new issuance is given the force and effect of law.20

Likewise, in Tañada v. Tuvera,21 we held:

The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which
are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for
the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise
burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital
significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by
the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan
Pambansa – and for the diligent ones, ready access to the legislative records – no such publicity accompanies the law-
making process of the President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents
and texts of such decrees. (Emphasis supplied)

Because petitioners failed to follow the requirements enumerated by the Revised Administrative Code, the assailed
regulation must be struck down.

Going now to the content of CMO 27-3003, we likewise hold that it is unconstitutional for being violative of the equal
protection clause of the Constitution.

The equal protection clause means that no person or class of persons shall be deprived of the same protection of laws
enjoyed by other persons or other classes in the same place in like circumstances. Thus, the guarantee of the equal
protection of laws is not violated if there is a reasonable classification. For a classification to be reasonable, it must be
shown that (1) it rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not limited to existing
conditions only; and (4) it applies equally to all members of the same class.22

Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the quality of wheat is affected by
who imports it, where it is discharged, or which country it came from.

Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported food grade wheat, the product
would still be declared as feed grade wheat, a classification subjecting them to 7% tariff. On the other hand, even if the
importers listed under CMO 27-2003 have imported feed grade wheat, they would only be made to pay 3% tariff, thus
depriving the state of the taxes due. The regulation, therefore, does not become disadvantageous to respondent only,
but even to the state.

It is also not clear how the regulation intends to "monitor more closely wheat importations and thus prevent their
misclassification." A careful study of CMO 27-2003 shows that it not only fails to achieve this end, but results in the
opposite. The application of the regulation forecloses the possibility that other corporations that are excluded from the
list import food grade wheat; at the same time, it creates an assumption that those who meet the criteria do not import
feed grade wheat. In the first case, importers are unnecessarily burdened to prove the classification of their wheat
imports; while in the second, the state carries that burden.
Petitioner Commissioner of Customs also went beyond his powers when the regulation limited the customs officer’s duties
mandated by Section 1403 of the Tariff and Customs Law, as amended. The law provides:

Section 1403. – Duties of Customs Officer Tasked to Examine, Classify, and Appraise Imported Articles. – The customs
officer tasked to examine, classify, and appraise imported articles shall determine whether the packages designated for
examination and their contents are in accordance with the declaration in the entry, invoice and other pertinent
documents and shall make return in such a manner as to indicate whether the articles have been truly and correctly
declared in the entry as regard their quantity, measurement, weight, and tariff classification and not imported contrary
to law. He shall submit samples to the laboratory for analysis when feasible to do so and when such analysis is necessary
for the proper classification, appraisal, and/or admission into the Philippines of imported articles.

Likewise, the customs officer shall determine the unit of quantity in which they are usually bought and sold, and appraise
the imported articles in accordance with Section 201 of this Code.

Failure on the part of the customs officer to comply with his duties shall subject him to the penalties prescribed under
Section 3604 of this Code.1âwphi1

The provision mandates that the customs officer must first assess and determine the classification of the imported article
before tariff may be imposed. Unfortunately, CMO 23-2007 has already classified the article even before the customs
officer had the chance to examine it. In effect, petitioner Commissioner of Customs diminished the powers granted by
the Tariff and Customs Code with regard to wheat importation when it no longer required the customs officer’s prior
examination and assessment of the proper classification of the wheat.

It is well-settled that rules and regulations, which are the product of a delegated power to create new and additional
legal provisions that have the effect of law, should be within the scope of the statutory authority granted by the
legislature to the administrative agency. It is required that the regulation be germane to the objects and purposes of the
law; and that it be not in contradiction to, but in conformity with, the standards prescribed by law.23

In summary, petitioners violated respondent’s right to due process in the issuance of CMO 27-2003 when they failed to
observe the requirements under the Revised Administrative Code. Petitioners likewise violated respondent’s right to
equal protection of laws when they provided for an unreasonable classification in the application of the regulation.
Finally, petitioner Commissioner of Customs went beyond his powers of delegated authority when the regulation limited
the powers of the customs officer to examine and assess imported articles.

WHEREFORE, in view of the foregoing, the Petition is DENIED.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

1 Rollo, pp. 124-142.

2 Id. at 33-46.

3 Id. at 47.

4 Records, pp. 16-18.

5 SUBJECT: Tariff Classification of Wheat

In order to monitor more closely wheat importations and thus prevent their misclassification, the
following are hereby prescribed:

1. For tariff purposes, wheat shall be classified as follows:

1.1 Under HS 1001.9090 (Food Grade) when all the following elements are present:

1.1.1 the importer/consignee of the imported wheat is a flour miller as per attached list (Annex ‘A’),
which shall form as integral part of this Order

1.1.2 the wheat importation consists of any of those listed in Annex ‘A’ according to the country of
origin indicated therein

1.1.3 the wheat importation is entered/unloaded in the Port of Discharge indicated opposite the
name of the flour miller, as per Annex ‘A’

1.2 Under HS 1001.9010 (Feed Grade)

1.2.1 When any or all of the elements prescribed under 1.1 above is not present.

1.2.2 All other wheat importations by non-flour millers, i.e., importers/consignees NOT listed in Annex ‘A’

6 SUBJECT: Tariff Classification of Wheat

xxx xxx xxx

2. Any issue arising from this Order shall be resolved in an appropriate protest or VCRC case.
 3. In case of a VCRC case, the following applies:

3.1 The shipment may qualify for Tentative Release upon payment of the taxes and duties as per
declaration and the posting of cash bond to cover the tariff differential.

3.2 The Tentative Release granted by the VCRC shall, prior to the release of the shipment from
Customs custody, be subject to representative. For this purpose, the District/Port Collector concerned
shall forward to the Office of the Commissioner the Tentative Release papers, together with all
pertinent shipping and supporting documents, including, but not limited to, contract of sale,
phytosanitary certificate and certificate of quality.

In the case of Outports, the required documents shall be faxed to the Office of the Commissioner of
Customs to any of these numbers: 527-1953/527-4573.

3.3 In resolving the classification issue, the VCRC shall consider the import/consignee, type/source of
wheat and port of discharge of the wheat importation, as indicated in Annex ‘A’, and require the
proofs/evidences (sic), including, but not limited to, proofs of sale or consumption of said wheat
importation, certificate of quality issued by manufacturing country and contract of sale.

3.4 Any VCRC decision adverse to the government shall be subject to automatic review by the
Commissioner of Customs.

7 Rollo¸ pp. 158-168.

8 Records, p. 12.

9 Rollo, pp. 58-59.

10 Id. at 60-78.

11 Id. at 108-114; penned by Judge Romeo C. De Leon.

12 Id. at 114.

13 Id. at 112.

14 Id. at 117-122.

15 Tolentino v. Board of Accountancy, 90 Phil. 83 (1951).

16 456 Phil. 145 (2003).

17 G.R. No. 108524, 10 November 1994, 238 SCRA 63, 69-70.

18 Rollo, p. 112.

19 Office of the Ombudsman v. Ibay, 416 Phil. 659 (2001).

20 CIR v. Michel J. Lhuiller Pawnshop Inc., 453 Phil. 1043 (2003).

21 220 Phil. 422 (1985).

22 Philippine Rural Electric Cooperatives Association, Inc. v. DILG, 451 Phil. 683 (2003).

23 Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles v. Home Development Mutual Fund, 389 Phil. 296
(2000).
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 187587 June 5, 2013

NAGKAKAISANG MARALITA NG SITIO MASIGASIG, INC., Petitioner,

vs.
MILITARY SHRINE SERVICES - PHILIPPINE VETERANS AFFAIRS OFFICE, DEPARTMENT OF NATIONAL DEFENSE, Respondent.

x-----------------------x

G.R. No. 187654

WESTERN BICUTAN LOT OWNERS ASSOCIATION, INC., represented by its Board of Directors, Petitioner,
vs.
MILITARY SHRINE SERVICES - PHILIPPINE VETERANS AFFAIRS OFFICE, DEPARTMENT OF NATIONAL DEFENSE, Respondent.

DECISION

SERENO, CJ.:

Before us are consolidated Petitions for Review under Rule 45 of the Rules of Court assailing the Decision1promulgated on
29 April 2009 of the Court of Appeals in CA-G.R. SP No. 97925.

THE FACTS

The facts, as culled from the records, are as follows:

On 12 July 1957, by virtue of Proclamation No. 423, President Carlos P. Garcia reserved parcels of land in the
Municipalities of Pasig, Taguig, Parañaque, Province of Rizal and Pasay City for a military reservation. The military
reservation, then known as Fort William McKinley, was later on renamed Fort Andres Bonifacio (Fort Bonifacio).

On 28 May 1967, President Ferdinand E. Marcos (President Marcos) issued Proclamation No. 208, amending Proclamation
No. 423, which excluded a certain area of Fort Bonifacio and reserved it for a national shrine. The excluded area is now
known as Libingan ng mga Bayani, which is under the administration of herein respondent Military Shrine Services –
Philippine Veterans Affairs Office (MSS-PVAO).

Again, on 7 January 1986, President Marcos issued Proclamation No. 2476, further amending Proclamation No. 423,
which excluded barangaysLower Bicutan, Upper Bicutan and Signal Village from the operation of Proclamation No. 423
and declared it open for disposition under the provisions of Republic Act Nos. (R.A.) 274 and 730.

At the bottom of Proclamation No. 2476, President Marcos made a handwritten addendum, which reads:

"P.S. – This includes Western Bicutan

(SGD.) Ferdinand E. Marcos"2

The crux of the controversy started when Proclamation No. 2476 was published in the Official Gazette3 on 3 February
1986, without the above-quoted addendum.

Years later, on 16 October 1987, President Corazon C. Aquino (President Aquino) issued Proclamation No. 172 which
substantially reiterated Proclamation No. 2476, as published, but this time excluded Lots 1 and 2 of Western Bicutan from
the operation of Proclamation No. 423 and declared the said lots open for disposition under the provisions of R.A. 274
and 730.

Memorandum Order No. 119, implementing Proclamation No. 172, was issued on the same day.

Through the years, informal settlers increased and occupied some areas of Fort Bonifacio including portions of the
Libingan ng mga Bayani. Thus, Brigadier General Fredelito Bautista issued General Order No. 1323 creating Task Force
Bantay (TFB), primarily to prevent further unauthorized occupation and to cause the demolition of illegal structures at Fort
Bonifacio.

On 27 August 1999, members of petitioner Nagkakaisang Maralita ng Sitio Masigasig, Inc. (NMSMI) filed a Petition with
the Commission on Settlement of Land Problems (COSLAP), where it was docketed as COSLAP Case No. 99-434. The
Petition prayed for the following: (1) the reclassification of the areas they occupied, covering Lot 3 of SWO-13-000-298 of
Western Bicutan, from public land to alienable and disposable land pursuant to Proclamation No. 2476; (2) the
subdivision of the subject lot by the Director of Lands; and (3) the Land Management Bureau’s facilitation of the
distribution and sale of the subject lot to its bona fide occupants.4

On 1 September 2000, petitioner Western Bicutan Lot Owners Association, Inc. (WBLOAI) filed a Petition-in-Intervention
substantially praying for the same reliefs as those prayed for by NMSMI with regard to the area the former then occupied
covering Lot 7 of SWO-00-001302 in Western Bicutan.5

Thus, on 1 September 2006, COSLAP issued a Resolution6 granting the Petition and declaring the portions of land in
question alienable and disposable, with Associate Commissioner Lina Aguilar-General dissenting.7

The COSLAP ruled that the handwritten addendum of President Marcos was an integral part of Proclamation No. 2476,
and was therefore, controlling. The intention of the President could not be defeated by the negligence or inadvertence
of others. Further, considering that Proclamation

No. 2476 was done while the former President was exercising legislative powers, it could not be amended, repealed or
superseded, by a mere executive enactment. Thus, Proclamation No. 172 could not have superseded much less
displaced Proclamation No. 2476, as the latter was issued on October 16, 1987 when President Aquino’s legislative power
had ceased.

In her Dissenting Opinion, Associate Commissioner Lina AguilarGeneral stressed that pursuant to Article 2 of the Civil
Code, publication is indispensable in every case. Likewise, she held that when the provision of the law is clear and
unambiguous so that there is no occasion for the court to look into legislative intent, the law must be taken as it is,
devoid of judicial addition or subtraction.8 Finally, she maintained that the Commission had no authority to supply the
addendum originally omitted in the published version of Proclamation No. 2476, as to do so would be tantamount to
encroaching on the field of the legislature.

Herein respondent MSS-PVAO filed a Motion for Reconsideration,9 which was denied by the COSLAP in a Resolution
dated 24 January 2007.10

MSS-PVAO filed a Petition with the Court of Appeals seeking to reverse the COSLAP Resolutions dated 1 September 2006
and 24 January 2007.

Thus, on 29 April 2009, the then Court of Appeals First Division rendered the assailed Decision granting MSS-PVAO’s
Petition, the dispositive portion of which reads:

IN VIEW OF ALL THE FOREGOING, the instant petition is hereby GRANTED. The Resolutions dated September 1, 2006 and
January 24, 2007 issued by the Commission on the Settlement of Land Problems in COSLAP Case No. 99-434 are hereby
REVERSED and SET ASIDE. In lieu thereof, the petitions of respondents in COSLAP Case No. 99-434 are DISMISSED, for lack
of merit, as discussed herein. Further, pending urgent motions filed by respondents are likewise

DENIED. SO ORDERED.11 (Emphasis in the original)

Both NMSMI12 and WBLOAI13 appealed the said Decision by filing their respective Petitions for Review with this Court
under Rule 45 of the Rules of Court.
 THE ISSUES

Petitioner NMSMI raises the following issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RULING THAT PROCLAMATION NO. 2476 DID
NOT INCLUDE ANY PORTION OF WESTERN BICUTAN AS THE HANDWRITTEN NOTATION BY PRESIDENT MARCOS ON THE SAID
PROCLAMATION WAS NOT PUBLISHED IN THE OFFICIAL GAZETTE.

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RULING THAT PROCLAMATION NO. 172
LIKEWISE EXCLUDED THE PORTION OF LAND OCCUPIED BY MEMBER OF HEREIN PETITIONER.

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT THE HON. COSLAP HAS BROAD
POWERS TO RECOMMEND TO THE PRESIDENT >INNOVATIVE MEASURES TO RESOLVE EXPEDITIOUSLY VARIOUS LAND CASES.14

On the other hand, petitioner WBLOAI raises this sole issue:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE SUBJECT PROPERTY WAS NOT
DECLARED ALIENABLE AND DISPOSABLE BY VIRTUE OF PROCLAMATION NO. 2476 BECAUSE THE HANDWRITTEN ADDENDUM
OF PRESIDENT FERDINAND E. MARCOS INCLUDING WESTERN BICUTAN IN PROCLAMATION NO. 2476 WAS NOT INCLUDED IN
THE PUBLICATION.15

Both Petitions boil down to the principal issue of whether the Court of Appeals erred in ruling that the subject lots were
not alienable and disposable by virtue of Proclamation No. 2476 on the ground that the handwritten addendum of
President Marcos was not included in the publication of the said law.

THE COURT’S RULING

We deny the Petitions for lack of merit.

Considering that petitioners were occupying Lots 3 and 7 of Western Bicutan (subject lots), their claims were anchored
on the handwritten addendum of President Marcos to Proclamation No. 2476. They allege that the former President
intended to include all Western Bicutan in the reclassification of portions of Fort Bonifacio as disposable public land when
he made a notation just below the printed version of Proclamation No. 2476.

However, it is undisputed that the handwritten addendum was not included when Proclamation No. 2476 was published
in the Official Gazette.

The resolution of whether the subject lots were declared as reclassified and disposable lies in the determination of
whether the handwritten addendum of President Marcos has the force and effect of law. In relation thereto, Article 2 of
the Civil Code expressly provides:

ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless
it is otherwise provided. This Code shall take effect one year after such publication.

Under the above provision, the requirement of publication is indispensable to give effect to the law, unless the law itself
has otherwise provided. The phrase "unless otherwise provided" refers to a different effectivity date other than after
fifteen days following the completion of the law’s publication in the Official Gazette, but does not imply that the
requirement of publication may be dispensed with. The issue of the requirement of publication was already settled in the
landmark case Tañada v. Hon. Tuvera,16 in which we had the occasion to rule thus:

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day
period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his separate
concurrence in the original decision, is the Civil Code which did not become effective after fifteen days from its
publication in the Official Gazette but "one year after such publication." The general rule did not apply because it was
"otherwise provided."

It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason is that
such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to
govern it. Surely, if the legislature could validly provide that a law shall become effective immediately upon its approval
notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that
persons not aware of it would be prejudiced as a result; and they would be so not because of a failure to comply with it
but simply because they did not know of its existence. Significantly, this is not true only of penal laws as is commonly
supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to
the persons they may affect before they can begin to operate.

xxxx

The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to
the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship
to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be
said that such a law does not affect the public although it unquestionably does not apply directly to all the people. The
subject of such law is a matter of public interest which any member of the body politic may question in the political
forums or, if he is a proper party, even in the courts of justice. In fact, a law without any bearing on the public would be
invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be valid, the law must
invariably affect the public interest even if it might be directly applicable only to one individual, or some of the people
only, and not to the public as a whole.

We hold therefore that all statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by
the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement
existing law pursuant also to a valid delegation.

xxxx

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national
territory and directly affects only the inhabitants of that place. All presidential decrees must be published, including
even, say, those naming a public place after a favored individual or exempting him from certain prohibitions or
requirements. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but
to "fill in the details" of the Central Bank Act which that body is supposed to enforce.

xxxx

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the
contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential
decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in
a mere supplement of the Official Gazette cannot satisfy the publication requirement.1âwphi1 This is not even
substantial compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a
presidential decree undeniably of general applicability and interest, was "published" by the Marcos administration. The
evident purpose was to withhold rather than disclose information on this vital law.

xxxx

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep
secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and
contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people.
The furtive law is like a scabbarded saber that cannot feint, parry or cut unless the naked blade is drawn. (Emphases
supplied)
Applying the foregoing ruling to the instant case, this Court cannot rely on a handwritten note that was not part of
Proclamation No. 2476 as published. Without publication, the note never had any legal force and effect.

Furthermore, under Section 24, Chapter 6, Book I of the Administrative Code, "the publication of any law, resolution or
other official documents in the Official Gazette shall be prima facie evidence of its authority." Thus, whether or not
President Marcos intended to include Western Bicutan is not only irrelevant but speculative. Simply put, the courts may
not speculate as to the probable intent of the legislature apart from the words appearing in the law.17 This Court cannot
rule that a word appears in the law when, evidently, there is none. In Pagpalain Haulers, Inc. v. Hon. Trajano,18 we ruled
that "under Article 8 of the Civil Code, 'judicial decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines.' This does not mean, however, that courts can create law. The courts exist for
interpreting the law, not for enacting it. To allow otherwise would be violative of the principle of separation of powers,
inasmuch as the sole function of our courts is to apply or interpret the laws, particularly where gaps or lacunae exist or
where ambiguities becloud issues, but it will not arrogate unto itself the task of legislating." The remedy sought in these
Petitions is not judicial interpretation, but another legislation that would amend the law ‘to include petitioners' lots in the
reclassification.

WHEREFORE, in view of the foregoing, the instant petitions are hereby DENIED for lack of merit. The assailed Decision of
the Court of Appeals in CA-G.R. CV No. 97925 dated 29 April 2009 is AFFIRMED in toto. Accordingly, this Court's status quo
order dated 17 June 2009 is hereby LIFTED. Likewise, all pending motions to cite respondent in contempt is DENIED,
having been rendered moot. No costs.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Chief Justice, Chairperson

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 46623 December 7, 1939

MARCIAL KASILAG, petitioner,
vs.
RAFAELA RODRIGUEZ, URBANO ROQUE, SEVERO MAPILISAN and IGNACIO DEL ROSARIO, respondents.

Luis M. Kasilag for petitioner.

Fortunato de Leon for respondents.

IMPERIAL, J.:

This is an appeal taken by the defendant-petitioner from the decision of the Court of Appeals which modified that
rendered by the court of First Instance of Bataan in civil case No. 1504 of said court and held: that the contract Exhibit "1"
is entirely null and void and without effect; that the plaintiffs-respondents, then appellants, are the owners of the
disputed land, with its improvements, in common ownership with their brother Gavino Rodriguez, hence, they are
entitled to the possession thereof; that the defendant-petitioner should yield possession of the land in their favor, with all
the improvements thereon and free from any lien; that the plaintiffs-respondents jointly and severally pay to the
defendant-petitioner the sum of P1,000 with interest at 6 percent per annum from the date of the decision; and
absolved the plaintiffs-respondents from the cross-complaint relative to the value of the improvements claimed by the
defendant-petitioner. The appealed decision also ordered the registrar of deeds of Bataan to cancel certificate of title
No. 325, in the name of the deceased Emiliana Ambrosio and to issue in lieu thereof another certificate of title in favor of
the plaintiffs-respondents and their brother Gavino Rodriguez, as undivided owners in equal parts, free of all liens and
incumbrances except those expressly provided by law, without special pronouncement as to the costs.

The respondents, children and heirs of the deceased Emiliana Ambrosio, commenced the aforesaid civil case to the end
that they recover from the petitioner the possession of the land and its improvements granted by way of homestead to
Emiliana Ambrosio under patent No. 16074 issued on January 11, 1931, with certificate of title No. 325 issued by the
registrar of deeds of Bataan on June 27, 1931 in her favor, under section 122 of Act No. 496, which land was surveyed
and identified in the cadastre of the municipality of Limay, Province of Bataan, as lot No. 285; that the petitioner pay to
them the sum of P650 being the approximate value of the fruits which he received from the land; that the petitioner sign
all the necessary documents to transfer the land and its possession to the respondents; that he petitioner be restrained,
during the pendency of the case, from conveying or encumbering the land and its improvements; that the registrar of
deeds of Bataan cancel certificate of title No. 325 and issue in lieu thereof another in favor of the respondents, and that
the petitioner pay the costs of suit.

The petitioner denied in his answer all the material allegations of the complaint and by way of special defense alleged
that he was in possession of the land and that he was receiving the fruits thereof by virtue of a mortgage contract,
entered into between him and the deceased Emiliana Ambrosio on May 16, 1932, which was duly ratified by a notary
public; and in counterclaim asked that the respondents pay him the sum of P1,000 with 12 per cent interest per annum
which the deceased owed him and that, should the respondents be declared to have a better right to the possession of
the land, that they be sentenced to pay him the sum of P5,000 as value of all the improvements which he introduced
upon the land.lawphil.net

On May 16, 1932 Emiliana Ambrosio, in life, and the petitioner executed the following public deed:

"This agreement, made and entered into this 16th day of May, 1932, by and between Emiliana Ambrosio, Filipino, of legal
age, widow and resident of Limay, Bataan, P.L., hereinafter called the party of the first part, and Marcial Kasilag, Filipino,
of legal age, married to Asuncion Roces, and resident at 312 Perdigon Street, Manila, P.L., hereinafter called party of the
second part.

WITNESSETH: That the parties hereto hereby covenant and agree to and with each other as follows:

ARTICLE I. That the party of the first part is the absolute registered owner of a parcel of land in the barrio of
Alngan, municipality of Limay, Province of Bataan, her title thereto being evidenced by homestead certificate
of title No. 325 issued by the Bureau of Lands on June 11, 1931, said land being lot No. 285 of the Limay
Cadastre, General Land Registration Office Cadastral Record No. 1054, bounded and described as follows:

Beginning at point marked 1 on plan E-57394, N. 84º 32' W. 614.82 m. from B.B.M. No. 3, thence N. 66º 35' E. 307.15 m. to
point "2"; S. 5º 07' W. to point "5"; S.6º 10' E. 104.26 m. to point "4"; S. 82º 17' W. to point "5"; S. 28º 53' W. 72.26 m. to point "6";
N. 71º 09' W. to point "7"; N. 1º 42' E. 173.72 m. to point 1, point of beginning, "Containing an area of 6.7540 hectares.
"Points 1,2,6 and 7, B.L.; points 3,4 and 5, stakes; points 4, 5 and 6 on bank of Alangan River. "Bounded on the North, by
property claimed by Maria Ambrosio; on the East, by Road; on the South, by Alangan River and property claimed by
Maxima de la Cruz; and on the West, by property claimed by Jose del Rosario. "Bearing true. Declination 0º 51' E.
"Surveyed under authority of sections 12-22, Act No. 2874 and in accordance with existing regulations of the Bureau of
Lands, by Mamerto Jacinto, public land surveyor, on July 8, 1927 and approved on February 25, 1931.

ARTICLE II. That the improvements on the above described land consist of the following:

Four (4) mango trees, fruit bearing: one hundred ten (110) hills of bamboo trees; one (1) tamarind and six (6)
boñga trees.

ARTICLE III. That the assessed value of the land is P940 and the assessed value of the improvements is P860, as
evidenced by tax declaration No. 3531 of the municipality of Limay, Bataan.

ARTICLE IV. That for and in consideration of the sum of one thousand pesos (P1,000) Philippine currency, paid by
the party of second part to the party of the first part, receipt whereof is hereby acknowledged, the party of the
first part hereby encumbers and hypothecates, by way of mortgage, only the improvements described in
Articles II and III hereof, of which improvements the party of the first part is the absolute owner.

ARTICLE V. That the condition of said mortgage is such that if the party of the first part shall well and truly pay, or
cause to paid to the party of the second part, his heirs, assigns, or executors, on or before the 16th day of
November, 1936, or four and one-half (4½) years after date of the execution of this instrument, the aforesaid
sum of one thousand pesos (P1,000) with interest at 12 per cent per annum, then said mortgage shall be and
become null and void; otherwise the same shall be and shall remain in full force and effect, and subject to
foreclosure in the manner and form provided by law for the amount due thereunder, with costs and also
attorney's fees in the event of such foreclosure.lawphil.net

ARTICLE VI. That the party of the first part shall pay all taxes and assessments which are or may become due on
the above described land and improvements during the term of this agreement.

ARTICLE VII. That within thirty (30) days after date of execution of this agreement, the party of the first part shall
file a motion before the Court of First Instance at Balanga, Bataan, P. I., requesting cancellation of Homestead
Certificate of Title No. 325 referred to in Article I hereof and the issuance, in lieu thereof, of a certificate of title
under the provisions of Land Registration Act No. 496, as amended by Act 3901.

ARTICLE III. It if further agreed that if upon the expiration of the period of time (4½) years stipulated in this
mortgage, the mortgagor should fail to redeem this mortgage, she would execute a deed of absolute sale of
the property herein described for the same amount as this mortgage, including all unpaid interests at the rate
of 12 per cent per annum, in favor of the mortgagee.

ARTICLE IX. That in the event the contemplated motion under Article VII hereof is not approved by the Court,
the foregoing contract of sale shall automatically become null and void, and the mortgage stipulated under
Article IV and V shall remain in full force and effect.

In testimony whereof, the parties hereto have hereunto set their hands the day and year first herein before
written.

(Sgd.) MARCIAL KASILAG

(Sgd.) EMILIANA AMBROSIO

Signed in the presence of:

(Sgd.) ILLEGIBLE

(Sgd.) GAVINO RODRIGUEZ.

 PHILIPPINE ISLANDS } ss.
BALANGA, BATAAN } ss.

Before me this day personally appeared Emiliana Ambrosio without cedula by reason of her sex, to me known
and known to me to be the person who signed the foregoing instrument, and acknowledged to me that she
executed the same as her free and voluntary act and deed.

I hereby certify that this instrument consists of three (3) pages including this page of the acknowledgment and
that each page thereof is signed by the parties to the instrument and the witnesses in their presence and in the
presence of each other, and that the land treated in this instrument consists of only one parcel.

In witness whereof I have hereunto set my hand and affixed my notarial seal, this 16th day of May, 1932.

(Sgd.) NICOLAS NAVARRO

Notary Public

My commission expires December 31, 1933.

Doc. No. 178

Page 36 of my register
Book No. IV

One year after the execution of the aforequoted deed, that is, in 1933, it came to pass that Emiliana Ambrosio was
unable to pay the stipulated interests as well as the tax on the land and its improvements. For this reason, she and the
petitioner entered into another verbal contract whereby she conveyed to the latter the possession of the land on
condition that the latter would not collect the interest on the loan, would attend to the payment of the land tax, would
benefit by the fruits of the land, and would introduce improvements thereon. By virtue of this verbal contract, the
petitioner entered upon the possession of the land, gathered the products thereof, did not collect the interest on the
loan, introduced improvements upon the land valued at P5,000, according to him and on May 22, 1934 the tax
declaration was transferred in his name and on March 6, 1936 the assessed value of the land was increased from P1,020
to P2,180.

After an analysis of the conditions of Exhibit "1" the Court of Appeals came to the conclusion and so held that the
contract entered into by and between the parties, set out in the said public deed, was one of absolute purchase and
sale of the land and its improvements. And upon this ruling it held null and void and without legal effect the entire Exhibit
1 as well as the subsequent verbal contract entered into between the parties, ordering, however, the respondents to
pay to the petitioner, jointly and severally, the loan of P1,000 with legal interest at 6 per cent per annum from the date of
the decision. In this first assignment of error the petitioner contends that the Court of Appeals violated the law in holding
that Exhibit 1 is an absolute deed of sale of the land and its improvements and that it is void and without any legal
effect.

The cardinal rule in the interpretation of contracts is to the effect that the intention of the contracting parties should
always prevail because their will has the force of law between them. Article 1281 of the Civil Code consecrates this rule
and provides, that if the terms of a contract are clear and leave no doubt as to the intention of the contracting parties,
the literal sense of its stipulations shall be followed; and if the words appear to be contrary to the evident intention of the
contracting parties, the intention shall prevail. The contract set out in Exhibit 1 should be interpreted in accordance with
these rules. As the terms thereof are clear and leave no room for doubt, it should be interpreted according to the literal
meaning of its clauses. The words used by the contracting parties in Exhibit 1 clearly show that they intended to enter
into the principal contract of loan in the amount of P1,000, with interest at 12 per cent per annum, and into the
accessory contract of mortgage of the improvements on the land acquired as homestead, the parties having moreover,
agreed upon the pacts and conditions stated in the deed. In other words, the parties entered into a contract of
mortgage of the improvements on the land acquired as homestead, to secure the payment of the indebtedness for
P1,000 and the stipulated interest thereon. In clause V the parties stipulated that Emiliana Ambrosio was to pay, within
four and a half years, or until November 16, 1936, the debt with interest thereon, in which event the mortgage would not
have any effect; in clause VI the parties agreed that the tax on the land and its improvements, during the existence of
the mortgage, should be paid by the owner of the land; in clause VII it was covenanted that within thirty days from the
date of the contract, the owner of the land would file a motion in the Court of First Instance of Bataan asking that
certificate of title No. 325 be cancelled and that in lieu thereof another be issued under the provisions of the Land
Registration Act No. 496, as amended by Act No. 3901; in clause VIII the parties agreed that should Emiliana Ambrosio
fail to redeem the mortgage within the stipulated period of four years and a half, she would execute an absolute deed
of sale of the land in favor of the mortgagee, the petitioner, for the same amount of the loan of P1,000 including unpaid
interest; and in clause IX it was stipulated that in case the motion to be presented under clause VII should be
disapproved by the Court of First Instance of Bataan, the contract of sale would automatically become void and the
mortgage would subsist in all its force.

Another fundamental rule in the interpretation of contracts, not less important than those indicated, is to the effect that
the terms, clauses and conditions contrary to law, morals and public order should be separated from the valid and legal
contract and when such separation can be made because they are independent of the valid contract which expresses
the will of the contracting parties. Manresa, commenting on article 1255 of the Civil Code and stating the rule of
separation just mentioned, gives his views as follows:

On the supposition that the various pacts, clauses or conditions are valid, no difficulty is presented; but should
they be void, the question is as to what extent they may produce the nullity of the principal obligation. Under
the view that such features of the obligation are added to it and do not go to its essence, a criterion based
upon the stability of juridical relations should tend to consider the nullity as confined to the clause or pact
suffering therefrom, except in case where the latter, by an established connection or by manifest intention of
the parties, is inseparable from the principal obligation, and is a condition, juridically speaking, of that the nullity
of which it would also occasion. (Manresa, Commentaries on the Civil Code, Volume 8, p. 575.)

The same view prevails in the Anglo-American law, as condensed in the following words:

Where an agreement founded on a legal consideration contains several promises, or a promise to do several
things, and a part only of the things to be done are illegal, the promises which can be separated, or the
promise, so far as it can be separated, from the illegality, may be valid. The rule is that a lawful promise made
for a lawful consideration is not invalid merely because an unlawful promise was made at the same time and
for the same consideration, and this rule applies, although the invalidity is due to violation of a statutory
provision, unless the statute expressly or by necessary implication declares the entire contract void. . . . (13 C. J.,
par. 470, p. 512; New York Cent. etc. R. Co. v. Gray, 239 U.S., 583; 60 Law ed., 451; U.S. v. Mora, 97 U.S., 413, 24
Law. ed., 1017; U.S. v. Hodson, 10 Wall, 395; 19 Law ed. 937; Gelpcke v. Dubuque, 1 Wall. 175, 17 Law ed., 520;
U.S. v. Bradly, 10 Pet. 343, 9 Law. ed., 448; Borland v. Prindle, 144 Fed 713; Western Union Tel. Co. v. Kansas Pac.
R. Co., 4 Fed., 284; Northern Pac. R. Co. v. U.S., 15 Ct. Cl., 428.)

Addressing ourselves now to the contract entered into by the parties, set out in Exhibit 1, we stated that the principal
contract is that of loan and the accessory that of mortgage of the improvements upon the land acquired as a
homestead. There is no question that the first of these contract is valid as it is not against the law. The second, or the
mortgage of the improvements, is expressly authorized by section 116 of Act No. 2874, as amended by section 23 of Act
No. 3517, reading:

SEC. 116. Except in favor of the Government or any of its branches, units or institutions, or legally constituted
banking corporations, lands acquired under the free patent or homestead provisions shall not be subject to
encumbrance or alienation from the date of the approval of the application and for a term of five years from
and after the date of issuance of the patent or grant, nor shall they become liable to the satisfaction of any
debt contracted prior to the expiration of said period; but the improvements or crops on the land may be
mortgaged or pledged to qualified persons, associations, or corporations.

It will be recalled that by clause VIII of Exhibit 1 the parties agreed that should Emiliana Ambrosio fail to redeem the
mortgage within the stipulated period of four and a half years, by paying the loan together with interest, she would
execute in favor of the petitioner an absolute deed of sale of the land for P1,000, including the interest stipulated and
owing. The stipulation was verbally modified by the same parties after the expiration of one year, in the sense that the
petitioner would take possession of the land and would benefit by the fruits thereof on condition that he would condone
the payment of interest upon the loan and he would attend to the payment of the land tax. These pacts made by the
parties independently were calculated to alter the mortgage a contract clearly entered into, converting the latter into a
contract of antichresis. (Article 1881 of the Civil Code.) The contract of antichresis, being a real encumbrance burdening
the land, is illegal and void because it is legal and valid.

The foregoing considerations bring us to the conclusion that the first assignment of error is well-founded and that error
was committed in holding that the contract entered into between the parties was one of absolute sale of the land and
its improvements and that Exhibit 1 is null and void. In the second assignment of error the petitioner contends that the
Court of Appeals erred in holding that he is guilty of violating the Public Land Act because he entered into the contract,
Exhibit 1. The assigned error is vague and not specific. If it attempts to show that the said document is valid in its entirety,
it is not well-founded because we have already said that certain pacts thereof are illegal because they are prohibited
by section 116 of Act No. 2874, as amended.

In the third assignment of error the petitioner insists that his testimony, as to the verbal agreement entered into between
him and Emiliana Ambrosio, should have been accepted by the Court of Appeals; and in the fourth and last assignment
of error the same petitioner contends that the Court of Appeals erred in holding that he acted in bad faith in taking
possession of the land and in taking advantage of the fruits thereof, resulting in the denial of his right to be reimbursed for
the value of the improvements introduced by him.

We have seen that subsequent to the execution of the contract, Exhibit 1, the parties entered into another verbal
contract whereby the petitioner was authorized to take possession of the land, to receive the fruits thereof and to
introduce improvements thereon, provided that he would renounce the payment of stipulated interest and he would
assume payment of the land tax. The possession by the petitioner and his receipt of the fruits of the land, considered as
integral elements of the contract of antichresis, are illegal and void agreements because, as already stated, the
contract of antichresis is a lien and such is expressly prohibited by section 116 of Act No. 2874, as amended. The Court of
Appeals held that the petitioner acted in bad faith in taking possession of the land because he knew that the contract
he made with Emiliana Ambrosio was an absolute deed of sale and, further, that the latter could not sell the land
because it is prohibited by section 116. The Civil Code does not expressly define what is meant by bad faith, but section
433 provides that "Every person who is unaware of any flaw in his title, or in the manner of its acquisition, by which it is
invalidated, shall be deemed a possessor in good faith"; and provides further, that "Possessors aware of such flaw are
deemed possessors in bad faith". Article 1950 of the same Code, covered by Chapter II relative to prescription of
ownership and other real rights, provides, in turn, that "Good faith on the part of the possessor consists in his belief that
the person from whom he received the thing was the owner of the same, and could transmit the title thereto." We do not
have before us a case of prescription of ownership, hence, the last article is not squarely in point. In resume, it may be
stated that a person is deemed a possessor in bad faith when he knows that there is a flaw in his title or in the manner of
its acquisition, by which it is invalidated.

Borrowing the language of Article 433, the question to be answered is whether the petitioner should be deemed a
possessor in good faith because he was unaware of any flaw in his title or in the manner of its acquisition by which it is
invalidated. It will be noted that ignorance of the flaw is the keynote of the rule. From the facts found established by the
Court of Appeals we can neither deduce nor presume that the petitioner was aware of a flaw in his title or in the manner
of its acquisition, aside from the prohibition contained in section 116. This being the case, the question is whether good
faith may be premised upon ignorance of the laws. Manresa, commenting on article 434 in connection with the
preceding article, sustains the affirmative. He says:

"We do not believe that in real life there are not many cases of good faith founded upon an error of law. When the
acquisition appears in a public document, the capacity of the parties has already been passed upon by competent
authority, and even established by appeals taken from final judgments and administrative remedies against the
qualification of registrars, and the possibility of error is remote under such circumstances; but, unfortunately, private
documents and even verbal agreements far exceed public documents in number, and while no one should be ignorant
of the law, the truth is that even we who are called upon to know and apply it fall into error not infrequently. However, a
clear, manifest, and truly unexcusable ignorance is one thing, to which undoubtedly refers article 2, and another and
different thing is possible and excusable error arising from complex legal principles and from the interpretation of
conflicting doctrines.

But even ignorance of the law may be based upon an error of fact, or better still, ignorance of a fact is possible
as to the capacity to transmit and as to the intervention of certain persons, compliance with certain formalities
and appreciation of certain acts, and an error of law is possible in the interpretation of doubtful doctrines.
(Manresa, Commentaries on the Spanish Civil Code. Volume IV, pp. 100, 101 and 102.)

According to this author, gross and inexcusable ignorance of law may not be the basis of good faith, but possible,
excusable ignorance may be such basis. It is a fact that the petitioner is not conversant with the laws because he is not
a lawyer. In accepting the mortgage of the improvements he proceeded on the well-grounded belief that he was not
violating the prohibition regarding the alienation of the land. In taking possession thereof and in consenting to receive its
fruits, he did not know, as clearly as a jurist does, that the possession and enjoyment of the fruits are attributes of the
contract of antichresis and that the latter, as a lien, was prohibited by section 116. These considerations again bring us to
the conclusion that, as to the petitioner, his ignorance of the provisions of section 116 is excusable and may, therefore,
be the basis of his good faith. We do not give much importance to the change of the tax declaration, which consisted in
making the petitioner appear as the owner of the land, because such an act may only be considered as a sequel to the
change of possession and enjoyment of the fruits by the petitioner, to about which we have stated that the petitioner's
ignorance of the law is possible and excusable. We, therefore, hold that the petitioner acted in good faith in taking
possession of the land and enjoying its fruits.
The petitioner being a possessor in good faith within the meaning of article 433 of the Civil Code and having introduced
the improvements upon the land as such, the provisions of article 361 of the same Code are applicable; wherefore, the
respondents are entitled to have the improvements and plants upon indemnifying the petitioner the value thereof which
we fix at P3,000, as appraised by the trial court; or the respondents may elect to compel the petitioner to have the land
by paying its market value to be fixed by the court of origin.

The respondents also prayed in their complaint that the petitioner be compelled to pay them the sum of P650, being the
approximate value of the fruits obtained by the petitioner from the land. The Court of Appeals affirmed the judgment of
the trial court denying the claim or indemnity for damages, being of the same opinion as the trial court that the
respondents may elect to compel the petitioner to have the land. The Court of Appeals affirmed the judgment of the
trial court that the respondents have not established such damages. Under the verbal contract between the petitioner
and the deceased Emiliana Ambrosio, during the latter's lifetime, the former would take possession of the land and
would receive the fruits of the mortgaged improvements on condition that he would no longer collect the stipulated
interest and that he would attend to the payment of the land tax. This agreement, at bottom, is tantamount to the
stipulation that the petitioner should apply the value of the fruits of the land to the payment of stipulated interest on the
loan of P1,000 which is, in turn, another of the elements characterizing the contract of antichresis under article 1881 of
the Civil Code. It was not possible for the parties to stipulate further that the value of the fruits be also applied to the
payment of the capital, because the truth was that nothing remained after paying the interest at 12% per annum. This
interest, at the rate fixed, amounted to P120 per annum, whereas the market value of the fruits obtainable from the land
hardly reached said amount in view of the fact that the assessed value of said improvements was, according to the
decision, P860. To this should be added the fact that, under the verbal agreement, from the value of the fruits had to be
taken a certain amount to pay the annual land tax. We mention these data here to show that the petitioner is also not
bound to render an accounting of the value of the fruits of the mortgaged improvements for the reason stated that said
value hardly covers the interest earned by the secured indebtednes.

For all the foregoing considerations, the appealed decision is reversed, and we hereby adjudge: (1) that the contract of
mortgage of the improvements, set out in Exhibit 1, is valid and binding; (2) that the contract of antichresis agreed upon
verbally by the parties is a real incumbrance which burdens the land and, as such, is a null and without effect; (3) that
the petitioner is a possessor in good faith; (4) that the respondents may elect to have the improvements introduced by
the petitioner by paying the latter the value thereof, P3,000, or to compel the petitioner to buy and have the land where
the improvements or plants are found, by paying them its market value to be filed by the court of origin, upon hearing
the parties; (5) that the respondents have a right to the possession of the land and to enjoy the mortgaged
improvements; and (6) that the respondents may redeem the mortgage of the improvements by paying to the
petitioner within three months the amount of P1,000, without interest, as that stipulated is set off by the value of the fruits
of the mortgaged improvements which petitioner received, and in default thereof the petitioner may ask for the public
sale of said improvements for the purpose of applying the proceeds thereof to the payment of his said credit. Without
special pronouncement as to the costs in all instances. So ordered.

Diaz, J., concur.

Separate Opinions

VILLA-REAL, J., concurring and dissenting:

According to the contract entered into May 16, 1932, between Emiliana Ambrosio, in life, and the petitioner Marcial
Kasilag, the first, in consideration of the sum of P1,000 given to her by the second, constituted a mortgage on the
improvements only of the land which she acquired by way of homestead. The improvements which she mortgaged
consisted of four fruit bearing mango trees, one hundred ten hills of bamboo trees, 1 tamarind tree and 6 betelnut trees,
the assessed value of which was P660. The condition of the loan were that if the mortgagor should pay the mortgage on
November 16, 1936, that is, four and a half years after the execution of the deed, said sum of P1,000 with interest thereon
at 12% per annum, the aforesaid mortgage would become null and void, otherwise it would remain in full force and
effect and would b subject to foreclosure in the manner provided by law; that the mortgagor would pay all the land tax
on the land and its improvements during the duration of the contract; and that if after the expiration of the said period
of four and a half years the mortgagor should fail to redeem the mortgage, she would execute in favor of the mortgage
an absolute deed of sale of the property described in the contract for the same sum of P1,000 plus interest due and
unpaid at the rate of 12 per cent per annum.

The principal rule in the interpretation of contracts is that "If the terms of a contract are clear and leave no doubt as to
the intention of the contracting parties, the literal sense of its stipulations shall be followed. If the words appear to be
contrary to the evident intention of the contracting parties, the intention shall prevail" (article 1281, Civil Cod). "In order to
judge as to the intention of the contracting parties, attention must be paid principally to their conduct at the time of
making the contract and subsequently thereto." (Article 1282.)

Now, then what is the true nature of the contract entered into between the parties by virtue of the deed of sale
executed by them on May 16, 1932? The Court of Appeals held that it is an absolute deed of sale of a land with a
homestead certificate of title, under the guise of a loan secured by a mortgage upon its improvements in order to go
around the prohibition contained in section 116 of Act No. 2874, as amended by section 23 of Act No. 3517.

Closely examined, the only clauses of the contract which may lead to the conclusion that it is one of the sale are those
which state that if at the expiration of the period of four years and a half the mortgagor should fail to pay the amount of
the loan plus interest due and unpaid at the rate of 12 per cent per annum, she would execute in favor of the
mortgagee a deed of absolute sale of the land whose improvements were mortgaged for the amount of the loan and
the interest owing. It will be seen that the sale would not be made until after the lapse of four and a half years from the
execution of the deed, if the mortgagor should fail or should not wish to redeem the mortgaged improvements.
Consequently, the obligation contracted by said mortgagor was no more than a conditional promise to sell. Now, then,
is this a promise to sell valid? Like any other onerous, consensual and mutually binding contract, that of promise to sell
requires for its legal existence and validity the concurrence of consent, consideration and subject-matter. The contract
before us dos not show what is the cause or consideration for such promise to sell. Assuming that it was the economic
impotence of the mortgagor to redeem the mortgaged improvements, before she could be compelled to comply with
her obligation to sell, there is need to wait until she should fail of funds or to abandonment. The cause will come into
being only upon the happening of said event after the four and half years and only then will the said contract of promise
to sell have juridical existence. The P1,000 and its interest, should the mortgagor fail to redeem the improvements upon
the maturity of the indebtedness, would be the consideration of the sale; because the promise to sell is a contract
different and distinct from that of sale and each requires a consideration for its existence and validity.

The terms of the contract are clear and explicit and do not leave room for doubt that the intention of the contracting
parties was to constitute a mortgage on the improvements of the land in litigation to secure the payment of the loan for
P1,000, within interest thereon at 12 per cent per annum. It cannot be said that this contract is simulated because the
assessed value of the improvements is P860 only. It is well known that rural properties are valued for assessment purposes
not less than half of their market value. The true value of the said improvements may therefore be P1,720, and the
mortgagee may have considered that adequate. Moreover, the petitioner could not have the property whose
improvements were mortgaged to him the property whose improvements were mortgaged to him even should the
mortgagor default in the payment of interest. He could only have the mortgaged improvements in case of foreclosure
should he bid therefor at the sale. Neither could the mortgagor sell the same property to the mortgagee, even after the
expiration of five years from the issuance of the homestead certificate of title, for then the sale would be in satisfaction of
an obligation contracted during the five years, which is prohibited by the oft-mentioned section 116 of Act No. 2874, as
amended by section 23 of Act No. 3517. The fact that after one year the contracting parties had novated the contract
of loan secured by a mortgagee, converting the same into a contract of anti-chresis because of the mortgagor's failure
to pay the accrued interest, does not show that they intended to enter into a contract of sale, because the conversion
in this case of the contract of loan secured by a mortgage into one of antichresis was accidental, due to the
mortgagor's default in the payment of unpaid interest for the first year. if the parties' intention from the beginning had
been to sell the property, the mortgagee would have immediately entered upon the possession of the land instead of
waiting until after the expiration of one year. The transfer of the Torrens certificate of title to the homestead by the
original owner to the mortgagee in 1934 was only a consequence of the conversion of the mortgage loan into an anti-
chretic loan, the parties having such a transfer. The setting off of the interest on the debt against the fruits of the property
given in antichresis finds authority in article 1885 of the of the Civil Code. There is, therefore, no ambiguity in the terms of
the contract warranting the search outside its four corners for the true intention of the contracting parties other than that
of entering into a contract of loan secured by the said improvements. If the true intention of the contracting parties, as
clearly gathered from the terms of the contract, was to enter into a contract, was to enter into a contract of loan
secured by a mortgage upon the improvements, although they should convert it into a contract of antichresis after one
year and although after the maturity of the loan with interest they may wish to convert it into one of absolute sale —
both conversions being illegal and, hence, void, — 8 the original intention of entering into a contract of loan secured by
a mortgagee upon the improvements would prevail, the said contract of loan being the only one legal and valid, and
the petitioner having acted in good faith in making it.
The verbal contract of antichresis, entered into by the petitioner Marcial Kasilag and Emiliana Ambrosio, being null and
void ab initio and without any legal effect because it is in violation of the express prohibition of section 116 of Act No.
2874 as amended by section 23 of Act No. 3517, (article 4 of the Civil Code), the contracting parties should restore to
each other the things which have been the subject-matter of the contract, together with their fruits, and the price paid
therefor, together with interest, pursuant to Article 1303 of the same Code. Marcial Kasilag, therefore, should return to
Emiliana Ambrosio or to her heirs the possession of the homestead and the improvements thereon with its fruits, and
Emiliana Ambrosio or her heirs should pay him the sum of P1,000, being the amount of the loan, plus interest due and
unpaid.

As to the improvements introduced upon the land by the petitioner, having done so with the knowledge and consent of
its owner Emiliana Ambrosio, the former acted in good faith, and under article 361 of the Civil Code, the owner of the
land may have the said improvements upon paying the indemnity provided in articles 453 and 454, or may compel the
said Marcial Kasilag, who introduced the said improvements, to pay the price of the land. If the herein respondents, as
heirs of Emiliana Ambrosio, do not wish or are unable to pay for said improvements, and Marcial Kasilag does not wish or
is unable to pay the land, said petitioner would lose his right of intention over the same (Bernardo vs. Batalan, 37 Off. G.,
No. 74, p. 1382), provided that he may remove the improvements which he had introduced in good faith.

In view of the foregoing, I concur in the majority opinion except insofar as it holds that the interest is set off against the
fruits of the mortgaged improvements, because as a result of the nullity of the contract of antichresis the petitioner
should return to the respondents the products of the mortgaged improvements, and the latter should pay to the
petitioner the amount of the loan plus interest due and unpaid at the rate of 12 per cent per annum from the date of
the contract until fully paid.

LAUREL, J., concurring in the result:

On August 27, 1918, Emiliana Ambrosio put in a homestead application for lot No. 285 of the Limay cadastre, Province of
Bataan. After complying with the requisite legal formalities, she obtained therefor homestead patent No. 16074, the
same having been recorded in the Registry of Deeds of Bataan on Juner 26, 1931. On May 16, 1932, she entered with the
herein petitioner, Marcial Kasilag, into a contract, Exhibit 1, inserted in the foregoing majority opinion.

Sometime in 1933, or a year after the execution of the aforequoted and land taxes, whereupon, the mortgage, Marcial
Kasilag, and the mortgagor, Emiliana Ambrosio, verbally agreed that the former would pay the land taxes and waive
the unpaid interest, enter into the possession of the property in question, introducing improvements thereon, and
thereafter be reimbursed for the value of such improvements. Under this verbal pact, Kasilag went into possession of the
property, planted it with the fruit trees allegedly valued at P5,000, and on May 22, 1934, declared the same for taxation
purposes. In 1934 the original homesteader, Emiliana Rodriguez, Severo Mapilisan, Ignacio del Rosario and Gavino
Rodriguez.

On May 16, 1936, the said heirs, with the exception Gavino Rodriguez who testified for the defendant, sued Marcial
Kasilag in the Court of First Instance of Bataan to recover the possession of the aforesaid property belonging to their
mother. For answer, the defendant put in as was in good faith with the knowledge and tolerance of the plaintiffs, a
counterclaim for P1,000 representing the loan to the deceased homesteader with stipulated interest there on, and a
recoupment for P5,000 allegedly the value of the improvements he had introduced upon the land. On the issues thus
joined, the trial court gave judgment for the defendant couched in the following language:

Resuming all that has been said above, the court find and declares that the deed of combined mortgage and
sale executed by Emiliana Ambrosio in favor of the defendant Marcial Kasilag and dated May 16, 1932, is null
and void as a contract for a future conveyance or sale of the homestead, but valid as an equitable mortgage
on the improvements for the sum of P1,000; and that the possession of the homestead by the defendant
Marcial Kasilag by virtue of said contract or by virtue of any other agreement is null and void, but that the
making of the improvements thereon by him, which the court finds to be valued at P3,000, by virtue of the
verbal agreement entered into after the executing of the original instrument of mortgage, was in good faith,
entitling the said Marcial Kasilag to be reimbursed of their actual value, the above-mentioned amount.
Wherefore, let judgment be entered declaring that the plaintiffs are entitled to the possession as owners of the
homestead subject of the present suit, lot No. 285 of the Limay cadastral survey, subject to an encumbrance of
the improvements for the sum of P1,000 in favor of the defendant, ordering the defendant deliver unto the
plaintiffs in turn to pay unto the defendant jointly and severally, as heirs of their deceased mother Rafaela
Rodriguez the sum of P3,000, value of the improvements introduced on said homestead by defendant. Let
there be no pronouncement as to costs." On appeal by the plaintiffs, the Third Division of the Court of Appeals
reached a different result and modified the judgment of the trial court as follows:
 Wherefore, the appealed judgment is hereby modified by declaring that the contract, Exhibit "1", is entirely null
and void; that the plaintiffs and appellants are the owners of the lot in question together with all the
improvements thereon in common with their brother, Gavino Rodriguez, and are, therefore, entitled to the
possession thereof; ordering the defendant and appellee to vacate and deliver the possession of the
aforementioned plaintiffs and appellants free from any encumbrance; requiring latter, however, to pay jointly
and severally to the said appellee the sum of P1,000 with the interest thereon at the rate of 6 per cent per
annum from and including the date this decision becomes final; and absolving the said plaintiffs and
appellants from the cross-complaint with respect to the value of the improvements claimed by the appellee.

It is further ordered that the register of deeds of Bataan cancel the certificate of title No. 325 in the name of the
deceased, Emiliana Ambrosio, and issue in lieu thereof anew certificate of title in favor of the herein plaintiffs
and appellants and their brother, Gavino Rodriguez, as owners pro indiviso and in equal shares free from any
lien or encumbrance except those expressly provided by law.

Without special pronouncement as to the costs.

The case is before us on petition for certiorari which was given due course, filed by defendant-appellee, Marcial Kasilag,
now petitioner, against plaintiffs-appellants, Rafaela Rodriguez and others, now respondents. The burden of petitioner's
case is condensed in the following assignments of error:

The Honorable Court of Appeals erred:

I. In having interpreted that document Exhibit "1" is an absolute sale and declared it entirely null and void, and
in not having interpreted and declared that it is a deed of combined mortgage and future sale which, if void
as a contract for future conveyance of the homestead in question is, however, valid as an equitable mortgage
on the improvements thereof for the sum of P1,000 loaned by petitioner Marcial Kasilag to the homestead
owner Emiliana Ambrosio.

II. In holding that the petitioner was guilty of the violation of the public land law for having entered into said
contract Exhibit "1".

III. In not giving probative value to the uncontradicted testimony of the petitioner Marcial Kasilag that he was
expressly authorized by the homestead owner Emiliana Ambrosio to introduction by him of improvements
therein by virtue of the verbal agreement entered into after the execution of the original instrument of
mortgage was in good faith, entitling him to reimbursed of the actual value of improvements he introduced.

Boiled down to the fundamentals, there are only two propositions which stands to be resolved in this appeal: (1) What is
the legal nature of the agreement, Exhibit 1, entered into by and between the parties? and (2) Is Marcial Kasilag guilty of
bad faith in entering upon the possession of the homestead, paying the land tax and introducing improvements
thereon?

The numerous adjudications in controversies of this nature will show that each case must be decided in the light of the
attendant circumstances and the situation of the parties which, upon the whole, mark its character. However, for the
purpose of ascertaining the manner and extent to which persons have intended to be found by their written
agreements, the safe criterion, the time honored test, is their contention which is intimately woven into the instrument
itself. It is true that resort to extrinsic evidence is imperative when the contract is ambiguos and is susceptible of divergent
interpretations; nevertheless, the primary obligation of the courts is to discover the intention of the contracting parties, as
it is expressed by the language of the document itself. We are not authorized to make a contract for the parties.

In the trial court as in the Court of Appeals, the discussion centered on the nature and validity of the document, Exhibit 1.
This is the correct approach. The Court of Appeals, however, rejected the conclusion of the trial court that it is an
absolute deed of sale which is null and void in its entirely because it is banned by section 116, as amended of the Public
land Act. The ruling is now assailed by the petitioner. I share petitioner's view that the deed is not what it was construed
to be by the Court of Appeals.

From Article I to III thereof is a description of the homestead and the improvements existing thereon. By its Article IV the
homesteader, Emiliana Ambrosio, "encumbers and hipothecates, by way of mortgage, only the improvements
described in Articles II and III" under the conditions set out in Articles V, VI and VII. Its closing Articles VIII and IX,
particularly relied upon by the Court of Appeals, speak, not of a present deed of absolute sale, but of one to be
executed "upon the expiration of the period of time (4½ years) stipulated in the mortgage" if "the mortgagor should fail
to redeem this mortgage". In other words, the redemption of the mortgage by the payment of the loan may bring about
the frustration of contemplated sale, hence, to hold unqualifiedly that the whole of Exhibit 1, or even a part thereof, is an
absolute deed of sale would be to do violence to the terms of the document it self.

Still other tokens drive home the same conviction. The intimation by the Court of Appeals that the petitioner "know,
therefore, that the land subject of the patent could not be alienated by express prohibition of law," is an argument that
the petitioner could not have brazenly disregarded the law by intending Exhibit 1 to be an absolute deed of sale. Its
further observation that "the stipulation under article VIII of the contract, Exhibit '1' . . . clearly indicates that there was
nothing left to be done except the execution of the deed of absolute sale," is a concession that no such sale has yet
been executed. Finally it will be recalled that under Article VII of Exhibit 1, "within thirty (30) days after date of execution
of this agreement the party of the first part shall file a motion before the Court of First Instance of Balanga, Bataan, P.I.,
requesting cancellation of homestead certificate of title No. 325 referred to in Article 1 hereof and the issuance, in lieu
thereof, of a certificate of title under the provisions of Land Registration Act 496, as amended by Act 3901." And by its
Article IX it provides "That in the event the contemplated motion under Article VII hereof is not approved by the Court,
the foregoing contract of sale shall automatically become null and void." (Underlining is mine.) We have nothing in the
record to show that the required motion was filed within thirty days or thereafter, by Emiliana Ambrosio in life, or by her
successors-in-interest after her death. Indeed, Homestead Certificate of Title No. 325, sought to be substituted by another
through the said motion, still stands. It is, evident, therefore, that the projected sale has and may never come into being,
because under Article IX of Exhibit 1, it became automatically null and void. This view, incidentally, precludes further
consideration of the validity or invalidity of the sale clause of Exhibit 1, as it will purely academic to dwell upon the nature
and effect of a contract that has passed out of existence in the contemplation of the parties.

Having reached the conclusion, upon its plain language and unequivocal import, that Exhibit 1 is essentially and
fundamentally a mortgage upon the improvements found on the questioned homestead, with a conditional clause for
the future sale of said homestead and improvements which has become a "dead twig" still attached to a living tree
because the condition has never been performed, I would, under Articles 1281 and 1283 of the Civil Code, be otherwise
content in resting our decision of this aspect of the case on this interpretation. But I do not propose to so limit my inquiry
in view of the fact that the Court of Appeals points to contemporaneous and subsequent circumstances, beyond the
four corners of the document, Exhibit 1, allegedly revelatory of petitioner's concealed but evident intention to
circumvent the law. I may state, at the outset, that these circumstances are fairly susceptible of legitimate explanations.
The appealed decision could not conceive of a man, of petitioner's intelligence, who "would accept improvements
valued at only P860 as security for the payment of a larger amount of P1,000." But we are concerned with an assessed
valuation which is not always nor even frequently the value that it can command in the market. To ignore this is to live in
monastic seclusion. The appealed decision would imply from the fact that petitioner subsequently paid the land taxes
and from the further fact that Emiliana never paid stipulated interest on the one thousand-peso loan, that Exhibit 1 was
meant to vest absolute title irretrievably in the petitioner. It could hardly be supposed at the time of the execution of
Exhibit 1 that the homesteader would fail to make these payments, nor does it seem just to draw from these
circumstances, induced by Emiliana's own neglect, deductions unfavorable to the petitioner. That the petitioner went
upon the possession of the questioned property is not proof that he was even already the would-be owner thereof, for as
elsewhere stated, the said possession came practically at the suggestion of or at least with the consent of Emiliana
Ambrosio as a result of her failure to live up to her part of the bargain. Finally, the Court of Appeals asked: "If the real
purpose was to mortgage the improvements only as specified in article IV of the contract, why is it that in article VIII
thereof it was provided that in case of failure to redeem the alleged mortgage the grantor would be required to
execute a de of absolute sale of the property described therein for the same amount of the mortgage in favor of the
grantee, and not of" the improvements only'?" The precaution which the petitioner took to have the sale clause of Exhibit
I so phrased that the said sale would not be affected until after the expiration of the five-year period prohibited by law,
at which time the alienation of the homestead would then have been perfectly legitimate, may not be without
significance to show petitioner's respect for and intention to be on the side of the law. The very mention of the word
"sale" in the document in question argues against any attempt at concealment, for if the said document was intended
as a cover and cloak of an illegal alienation, then the reference to the contract of sale therein was illtimed and
foolhardy.

The question next at hand is whether or not the mortgage constituted upon the improvement's of the homestead is valid.
It is, under express provisions of section 116 of the Public Land Act, before and after its amendment, reading pertinently
that "the improvements or crops on the land may be mortgaged or pledged to qualified persons, associations, or
corporations." I find no occasion to dispute this legislative policy however mistaken it may be. It is sufficient to observe
that what the law permits may be done. Upon the other hand, I find no occasion to test the legality of the sale provisions
of Exhibit 1, as I have heretofore said, this question is, in my opinion, moot. Moreover, the petitioner, technically, is barred
from raising this question, as he did not appeal from and, therefore, abided by the decision of the trial court which
outlawed this sale clause as violative of the provisions of section 116 of the Public Land Act. This part of the decision of
the trial court was affirmed by the Court of Appeals when the latter struck down Exhibit 1 in its entirety and, even now,
petitioner does not complain against the destruction of Exhibit 1 with respect to its sale clause. In other words, counsel for
petitioner concedes all along that the said sale clause may be properly legislated out. As the mortgage provisions of
Exhibit 1 are independent of and severable from the rest thereof, the same are perfectly enforceable. Where a part of
the contract is perfectly valid and separable from the rest, the valid portion should not be avoided. (Ollendorf vs.
Abrahamson, 38 Phil., 585.)

The question yet to be answered is whether the petitioner's possession of the question homestead was in good faith so as
to entitle him to reimbursement for improvements introduced upon the land. The basis of petitioner's possession was a
verbal agreement with the original homesteader whereby, for failure of the latter to comply with her obligations to pay
land taxes and stipulated interest on the loan, the former assumed the said obligations for the privilege of going into
possession of the property, introducing improvements thereon, and thereafter being reimbursed for the value of such
improvements. The petitioner did enter upon such possession, planted the land to fruit trees valued at P5,000, according
to him, and P3,000, according to the trial judge. It should be stated, in passing, that the Court of Appeals was unable to
belie this verbal agreement, although it was of the opinion "that the trial court erred in giving probative value to the
testimony of the appellee with reference to the alleged verbal agreement". Its reason for the opinion is not because the
testimony is untrue, but because even if it were true, "it only tends to corroborate the allegation that he acted in bad
faith when he took possession of the property and made improvements thereon, because then he knew full well that the
homestead owner could not enter into an agreement involving the future final and absolute alienation of the
homestead in his favor." As the said opinion and the reason back of it does not involve a question of strict fact, it is in our
power to inquire into its soundness. The weakness of the argument lies, first, in its, (a) inconsistency and (b) in the
misconception of the legal principle involved: inconsistency, because it considers entry of possession, payment of land
tax as facts tending to show the real character of the transaction and as evidencing bad faith on the part of the
petitioner, but at the same time it improperly rejects the verbal agreement by which such facts are established. It is clear
that we cannot directly reject the verbal agreement between the parties in so fat as it is favorable to the petitioner. The
misconception proceeds from the erroneous legal conclusion that, upon the facts, the good faith is attributable to the
petitioner alone and that Ambrosio was not to be blamed for the prohibited alienation of the homestead, as I shall
presently proceed to discuss.

In holding that the petitioner was a possessor in bad faith, the decision sought to be reviewed first laid down the premise
that such possession is banned by law at least for five years from the issuance of patent (section 116, Public Land Act),
assumed that the petitioner had knowledge of such law, and then drew the conclusion that the petitioner was aware of
the illegality of his possession. We think that the assumption and conclusion are precipitate. As observed in the foregoing
majority opinion-citing Manresa-knowledge of a legal provision does not necessarily mean knowledge of its true
meaning and scope, or of the interpretation which the courts may place upon it. In this particular case, what section 116
of the Public Land Act prohibits is the "incumbrance or alienation" of land acquired thereunder within the period
prescribed therein. We may concede, as assumed by the appealed decision, that the petitioner was cognizant of said
section 116, but this is not saying that petitioner knew that his possession came under the phrase "incumbrance or
alienation" prohibited by law, and that the petitioner, therefore, knew that his possession was illegal. The import of the
phrase "incumbrance or alienation" is a subject upon which "men of reason may reasonably differ," in the same way that
we ourselves have differed in the deliberation of this case. It is not correct to assume that the petitioner had knowledge
of the illegality of his possession. The contrary assumption, namely, that petitioner had no idea of such illegality, would
have been more in accord with the experience of everyday, for petitioner would not have invested money and labor in
the land and assumed obligations incumbent upon the homesteader if he had even the least suspicion that all his efforts
would count for nothing and would in the end entangle him in a mild scandal. As possession in bad faith does not
necessarily mean possession illegal under the law, it being necessary that the possessor be aware of such illegality, it
follows that the petitioner's possession of the homestead of the respondents was in good faith. (Art. 433, Civil Code.)
"Good faith is always presumed, and the burden of proving bad faith on the part of the possessor rests upon the person
alleging it" (article 434, Civil Code.) As a bona fide possessor, and it being unquestioned that the improvements
introduced by him upon the land redounded to its benefit, the petitioner is by law entitled to be paid for the value of
such improvements in the amount of P3,000, as found by the trial judge. "Useful expenditures shall be paid the possessor
in good faith with the same right of retention, the person who has defeated him in his possession having the option of
refunding the amount of such expenditures or paying him the increase in value which the thing has acquired by reason
thereof." ( Article 453, 2nd par., Civil Code). The reimbursement in this particular case is the more in order in view of the
express undertaking of respondent's predecessor-in-interest to pay therefor.

Even the equities of the case militate against the respondents and in favor of the petitioner. There is a concession that
the petitioner's possession was neither imposed upon nor wrested from the homesteader; on the contrary, it came about
by virtue of a mutual agreement whereby the said homesteader and the herein respondents were spared the burden of
paying for land taxes and stipulated interest and extended the benefit of having their land improved on condition that
they pay the value of such improvements upon redeeming the land. We also have uncontradicted fact that P400 of the
one thousand-peso loan were given to the herein respondents and the balance kept by their mother. They may not
reap and retain these benefits at the same time repudiate and go back upon contractual obligations solemnly entered
into.

But let grant that the contract, Exhibit 1, is one of absolute sale, as found by the Court of Appeals, what then? As the
land could not be alienated for five years from the date of the issuance of the patent, the sale was illegal and void
because it was entered into in violation of section 116 of the Public Land Act, as amended. By whom was the law
violated? Certainly, not by Kasilag alone but by Ambrosio as well. Both are presumed to know the law, and we cannot
justly charge Kasilag alone with that knowledge on the alleged reason that Kasilag is rich and Ambrosio is poor. Neither
can we proceed on the bare assumption that because Exhibit 1 was written in English it was prepared by Kasilag as if he
were the only English-speaking person in the Province of Bataan where the document was executed. Are we already
living in the midst of a communistic society that we shall have to incline invariably the balance in favor of a litigant who
happens to be well-to-do, regardless of the merits of the case? And to this end, shall we, by a series of assumptions and
deductions, impute to a party malice aforethought dishonesty and bad faith, in entering into a transaction made in the
open sun, publicly recorded and whose effectiveness was even conditioned by the approval of a court of justice? If so,
then I dare say that we have not profited by the admonition of Aristotle in his Metaphysics centuries ago that "justice is a
virtue of the soul which discards party, friendship and sentiment and is therefore always represented as blind." There is a
charm in rhetoric but its value in cool judicial reasoning is nil.

And if — as we are confidently told — we should relax the legal principle with reference to Ambrosio, because she was
"poor and ignorant," I am reluctant to believe that she was ignorant of the condition against the alienation inserted in all
homestead patents, and my knowledge of the Public Land Law, of the activities of the Department and bureau
charged with the administration of public lands, gives me just the contrary impression. Every homestead patent contains
that condition. Circulars and instructions and general information have been issued in pursuance with law. (Sec. 5, Act
No. 2874; see also sec. 5, Comonwealth Act No. 141.) I must presume that the Government and its officials charged with
the administration of public lands have complied with the law and their duties in this connection, and I cannot believe
that Ambrosio, when she alienated the property, was unaware of the legal prohibition. Under the circumstances, then, it
is reasonable to conclude that on the hypothesis that the document, Exhibit 1, was a contract of absolute sale between
Kasilag and Ambrosio, both of them were guilty of infraction of the law. If this is correct, what is the legal situation of the
parties?

Justinian, who, by his Corpus Juris Civiles, still speaks through practically all the civil codes of Continental Europe,
considers both as having acted in good faith. "Realmente," bluntly observes Manresa, "si los dos que se encuentran en
lucha sobre la propiedad han provocado el conflicto por su voluntad; a ciencia y paciencia del dueno del suelo, ante
cuya vista las obras se han ejecutado, y con conciencia, por parte del que edifica o planta, de que el terreno no es
suyo, no hay razon alguna que abone derecho preferente en favor de ninguno de los dos; deben, por tanto, tratarse
como si los dos hubiesen obrado de buena fe; la mala fe del uno extingue y neutraliza, en justa reciprocidad, la del
otro." (Manresa, Codigo Civil segunda edicion Tomo III pag. 203.) Article 364 of our Civil Code then comes into play.
"Where there has been bad faith, not only on the part of the person who built, sewed, or planted on another's land, but
also on the part of the owner of the latter, the rights of both shall be the same as if they had acted in good faith. Bad
faith on the part of the owner is deemed to exist whenever the act has been done in his presence, with his knowledge
and tolerance, and without opposition on his part." ( Article 364, Civil Code; see also arts. 1303, 1306 ibid.) The codal
section is evidently based upon the vulnerable maxim of equity that one who comes into equity must come with clean
hands. A court which seeks to enforce on the part of the defendant uprightness, fairness, and conscientiousness also
insists that, if relief is to be granted, it must be to a plaintiff whose conduct is not inconsistent with the standards he seeks
to have applied to his adversary.

Fundamenta justitiae sunt, ut ne cui noceatur, deinde ut communi serviatur. I therefore concur in the result.

CONCEPCION, J., dissenting:

In view of the findings of fact of the Court of Appeals, which are final according to law, I dissent from the majority
opinion as to the legal denomination of the contract really entered into by the petitioners and the now deceased
Emiliana Ambrosio.

The facts according to the decision of the Court of Appeals are as follows:

On August 27, 1918, the deceased Emiliana Ambrosio applied for the land in question as a homestead, now
known as lot No. 285 of the Limay cadastral survey of Bataan, and the application was approved on
September 10, 1919. A final proof was submitted on November 10, 1927 which was approved on October 17,
1929. The homestead patent No. 16074 and homestead certificate of title No. 325 were issued in favor of the
applicant on June 11, 1931 which were recorded on June 26, 1931 in the office of registrar of deeds in
accordance with the provisions of section 122 of Act 496.

"On or about May 16, 1932, the homestead owner, Emiliana Ambrosio offered to sell the property to the defendant and
appellee, Marcial Kasilag. The latter, upon examining her title found that it was a homestead patent and knew,
therefore, that the land subject of the patent could not be alienated by express prohibition of law, so he devised a
means by which the proposed sale might not appear in any document and had the patentee, Emiliana Ambrosio,
execute a public instrument, Exhibit '1', purporting to be a mere mortgage of the improvements thereon consisting of
four mango trees, fruit bearing; 110 hills of bamboo trees, 1 tamarind, and 6 boñga trees, with the assessed value of
P860, in consideration of the sum of P1,000 alleged to have been loaned by the said Kasilag to the said patentee,
Emiliana Ambrosio. It was expressly stipulated in that document that the aforementioned amount should be paid within
four and a half years from the date of the instrument (May 16, 1932), the condition being that if she would fail to redeem
the alleged mortgage at the expiration of the stipulated period, she would execute a deed of absolute sale of the
property therein described for the same amount of the alleged mortgage (P1,000) including all unpaid interest at the
rate of 12 per cent per annum in favor of the alleged mortgagee. It was further stipulated therein that the said Emiliana
should pay all the taxes and assessment which might become due on the land and improvements during the term of the
agreement and that within thirty days after the date of the execution thereof she should file a motion before the Court
of First Instance of Bataan requesting the cancellation of the homestead certificate No. 325 above referred to and the
issuance in lieu thereof a certificate of title under the provisions of the Land Registration Act 496, as amended by Act
3901.

The lot in question was originally declared for land tax purposes in the name of the homestead (owner)
Emiliana Ambrosio, and assessed at P1,020 in 1933; but on May 22, 1934, the tax declaration was transferred in
the name of the appellee, Marcial Kasilag, and on March 6, 1936 the assessed value was raised to P2,180.

Emiliana, however, never paid any interest on the alleged loan of P1,000 or paid taxes on the land since the
execution of the contract.

The evidence further discloses that the appellant entered upon the actual possession of the land and had
been holding the same up to the present time, having planted various kinds of fruit trees valued according to
him at P5,000, and collected the products thereof for his own exclusive benefit.

Relying upon the foregoing facts, the majority contends that the contract executed by the parties was one of
mortgage, as per Exhibit 1, with a promise to sell the land in question. I cannot hold to these rulings of the majority,
because the nature of the contract of mortgage is inconsistent with the idea that the creditor should immediately enter
upon a possession of the mortgaged land; that he should pay the land tax; that he should accept as security something
whose values does not cover the amount of the loan sought to be secured, for in this case the supposed loan was
P1,000, and what were mortgaged were only the improvements consisting of 4 mango trees, 110 hills of bamboo trees, 1
tamarind tree and 6 betelnut trees, assessed at P860.

I believe that the contract which the parties intended to execute is a promise to sell the land, for which reason Ambrosio
retained the right of ownership of the land and its improvements while the deed of the promised sale had not been
executed. Under the terms of the deed Exhibit 1, Kasilag could not be considered the owner of the land, nor could he
execute any act promised upon the assumption of ownership, nor could he alienate the same as he had no title to it. But
the parties, in consideration of the fact that Kasilag paid in advance the price of the land and assumed the obligation
to pay the tax thereon, which Ambrosio could not pay, agreed that Kasilag may enter upon the enjoyment of the land
until the promise to sell is converted in fact into an absolute sale by the execution of the corresponding deed by
Ambrosio. It was stipulated, however, that if the sale is not approved by the Court, Kasilag would collect the amount of
P1,000 paid him as a mortgage credit, with all the interest due and payable.

Under these circumstances, the conclusion of law that Kasilag acted in bad faith is not supported by the established
facts.

Wherefore, the plaintiffs are bound to comply with the contract as heirs of Ambrosio, by executing in favor of Kasilag the
deed of sale of the land, but should the sale, for any reason, be not approved, Kasilag may collect the amount of P1,000
with all the interest thereon, and may execute the judgment obtained by him upon the land and all its improvements,
deducting, however, in his favor the value of the improvements which he introduced upon the land in good faith.

In view of the foregoing, I am of the opinion that the decision of the Court of Appeals should be reversed and that
another should be entered against the respondents, requiring them to execute the deed of sale of the land in favor of
the petitioner, provided that if the sale, for any reason, be not approved by the court, the petitioner may execute his
credit upon the land and all its improvements, after deducting the value of the improvements introduced by him upon
the land.

MORAN, J., dissenting:

According to section 116 of Act No. 2874, as amended by section 23 of Act No. 3517, "lands acquired under the free
patent or homestead provisions shall not be subject to encumbrance or alienation from the date of the approval of the
application and for a term of five years from and after the date of issuance of the patent or grant, nor shall they
become liable to the satisfaction of any debt contracted prior to the expiration of said period."

About June 11, 1931, homestead patent No. 16074 was issued to Emiliana Ambrosio, now deceased. On May 16, 1932
Emiliana Ambrosio offered the sale of the said homestead to the herein petitioner, Marcial Kasilag, and in view of the
above-quoted legal prohibition, the parties executed the document Exhibit 1, copied in the majority decision. The heirs
of Emiliana Ambrosio filed a complaint for the annulment of the contract in the Court of First Instance of Bataan, and
from the judgment rendered by said court an appeal was taken to the Court of Appeals, which held that the true
contract between the parties is one of absolute sale, wherefore, it is null and void under the already cited legal
prohibition. Marcial Kasilag comes to this court on certiorari, and this court reverses the decision of the Court of Appeals.

The only question is as to the true contract between the parties at the time of the execution of the deed Exhibit 1; Kasilag
contends that the contract is that set out in the document Exhibit 1, that is, a mortgage of the improvements of the
homestead to secure a loan of one thousand pesos given to Emiliana Ambrosio; and the latter's heirs, in turn, contend
that the contract is one of the absolute sale of the homestead, wherefore, it is null and void. The findings of the Court of
Appeals are as follows:

The pertinent facts as disclosed by the evidence of record are as follows:

On August 27, 1918 the deceased, Emiliana Ambrosio, applied for the land in question as a homestead, not
known as Lot No. 285 of the Limay cadastral survey of Bataan, and the application was approved on
September 10, 1919. A final proof was submitted on November 10, 1927 which was approved on October 17,
1929. The homestead patent No. 16074 and homestead certificate of title No. 325 were issued in favor of the
applicant on June 11, 1931 which were recorded on June 26, 1931 in the office of the register of deeds in
accordance with the provisions of Section 122 of Act No. 496.

On or about May 16, 1932, the homestead owner Emiliana Ambrosio offered to sell the property to the
defendant and appellee, Marcial Kasilag. The latter, upon examining her title found that it was a homestead
patent and knew, therefore, that the land subject of the patent could not be alienated by express prohibition
of law, so he devised means by which the proposed sale might not appear in any document and had the
patentee, Emiliana Ambrosio, execute a public instrument, Exhibit 1, purporting to be a mere mortgage of the
improvements thereon consisting of four mango trees, fruit bearing; one hundred ten hills of bamboo trees, one
thousand and six boñga trees, with the assessed value of P860, in consideration of the sum of P1,000 alleged to
have been loaned by the said Kasilag to the said patentee Emiliana Ambrosio. It was expressly stipulated in
that document that the aforementioned amount should be paid within four and a half years from the date of
the instrument (May 16, 1932), the condition being that if she failed to redeem the alleged mortgage at the
expiration of the stipulated period, she would execute a deed of absolute sale of the property therein
described for the same amount of the alleged mortgage (P1,000) including all unpaid interest at the rate of 12
per cent per annum in favor of the alleged mortgagee. It was further stipulated therein that the said Emiliana
should pay all the taxes and assessment which might become due on the land and improvements during the
term of the agreement and that within thirty days after the date of the execution thereof she should file a
motion before the Court of First Instance of Bataan requesting the cancellation of the homestead certificate
No. 325 above referred to and the issuance in lieu thereof of a certificate of title under the provisions of the
Land Registration Act No. 496, as amended by Act No. 3901.

The lot in question was originally declared for land tax purposes in the name of the homestead owner, Emiliana
Ambrosio, and assessed at P1,020 in 1933; but on May 22, 1934, the tax declaration was transferred in the name
of the appellee, Marcial Kasilag, and on March 6, 1936 the assessed value was raised to P2,180.

Emiliana, however, never paid any interest on the alleged loan of P1,000 or paid taxes on the land since the
execution of the contract.

The evidence further discloses that the appellee entered upon the actual possession of the land and had been
holding the same up to the present time, having planted various kinds of fruit trees valued according to him at
P5,000, and collected the products thereof for his own exclusive benefit.

Construing the contract, Exhibit 1, in the light of all the foregoing facts and circumstances under which it was
executed in relation to the subsequent acts of the contracting parties, we are led to the inescapable
conclusion that their real intention was to execute an agreement of absolute sale of the homestead together
with the improvements thereon. The stipulation concerning an alleged mortgage in the instrument is a mere
devise to circumvent the law which expressly prohibits the alienation or encumbrance of the homestead during
 the period of five years from the date of the issuance of the homestead patent. (Sec. 116 of Act No. 2874 as
amended by Act No. 3517.)

It is inconceivable, and, therefore, we refuse to believe that the appellee, Marcial Kasilag, being an intelligent
man far above the average, would accept improvements valued at only P860 as security for the payment of a
larger amount of P1,000, the alleged loan. We entertain no doubt that at the time the execution of the
contract, Exhibit 1, the appellee knew that the homestead owner, Emiliana Ambrosio, a poor ignorant woman,
was badly in need of money and that she was determined to dispose of and alienate definitely her
homestead, as evidenced by the fact testified to by Gavino Rodriguez as witness for the said appellee that she
actually offered to sell the land to the latter. He also knew that she would not be able to pay back to him such
a large amount with interest of 12 per cent per annum because she had no other income except what she
would derive from the homestead. Under such circumstances, there is reason to believe that she was no longer
concerned with the form in which the contract would be drawn, as long as could obtain the amount of P1,000
which was agreeable to her as the price of the homestead she offered to sell to the appellee. This conclusion is
supported in part by the subsequent action of Emiliana in not paying any interest on the alleged loan of P1,000
or the land taxes thereon since the execution of the contract and by the action of the appellee in declaring
the land for tax purposes in his own name as owner thereof, notwithstanding that he had no interest in the land,
as he alleged, except in the improvements only.

The contract of absolute sale was consummated, because the grantor, Emiliana, received full payment of the
purchase price disguised as a loan of P1,000 and placed the grantee, Marcial Kasilag, in absolute possession
and control of the land conveyed to him with all the improvements thereon. The stipulation under article VIII of
the contract, Exhibit I, to the effect that the grantor would execute a deed of absolute sale of the property
herein described for the said amount of this mortgage including all unpaid interest at the rate of 12 per cent
per annum in favor of the mortgagee', clearly indicates that there was nothing left to be done except the
execution of the deed of absolute sale, which is merely a matter of form in contracts of this nature, which was
postponed until after the expiration of four and a half years because by that time the period of five years within
which the property could not be alienated nor encumbered in any way, as provided by section 116 of Act No.
2874 as amended by Act No. 3517, supra, would have already expired. If the real purpose was to mortgage the
improvements only as specified in article VIII thereof it was provided that in case of failure to redeem the
alleged mortgage the grantor would be required to execute a deed of absolute sale of the property described
therein for the same amount of the mortgage in favor of the grantee, and not of 'the improvements only'? It is
clear, therefore, that the real contract under Exhibit 1, was one of absolute sale and not a mortgage with
future sale.

In other words, although the document Exhibit 1 states that it is a mortgage of the improvements, with a stipulation
regarding a future sale of the land in case of failure to comply with the mortgage obligations, in reality the true contract
between the parties is one of absolute sale in the light of the circumstances of the case, among them the following:

First, Emiliana Ambrosio offered the sale, not the mortgage, of her homestead to Marcial Kasilag, and it is a fact found
established by the Court of Appeals that she was agreeable to the sum of one thousand pesos as the price of the sale
offered by her. If this is so, it is unlikely that Kasilag would refuse the offer of sale of the homestead and would accept in
lieu thereof a simple mortgage of the improvements, for the same sum of one thousand pesos;

Second. In the deed it is stipulated that, if at the expiration of the period of four and a half years, the debtor should fail to
redeem the mortgage, she would execute in favor of the creditor, Marcial Kasilag, a deed of absolute sale not only of
the mortgaged improvements but also of the land for the same amount of the loan of one thousand pesos. This magic
conversion of the mortgage of the improvements into an absolute sale of the land at the expiration of four and a half
years and without any additional consideration can only mean that the two contracts are one and the same thing, and
that the first has been availed of to go around the legal prohibition. The scheme is very obvious, and to make any
attempt to reconcile it with good faith is simply to fall into it.

The mortgage of the improvements could not have been intended because the supposed loan which it guaranteed
was the same price of the stipulated sale to be later executed, and further because Kasilag knew, according to the
findings of fact of the Court of Appeals, that Emiliana Ambrosio was a poor and ignorant woman who was not in a
position to return to one thousand pesos;

Third. Kasilag had always considered the contract as one of sale of the land and not as a mortgage of the
improvements, because he put the tax declaration of the land in his name, paid the corresponding land tax, took
possession of the land, received the fruits thereof for his exclusive use, and introduced thereon permanent
improvements, one of them being a summer house, all of which were valued at about five thousand pesos. It is not an
attribute of a contract of mortgage that the creditor should take possession of the mortgaged property, or that he
should pay the taxes thereon. Kasilag would not spend five thousand pesos for permanent improvements if he knew that
his possession was precarious.

Fourth. In the document it is stipulated that the debtor would pay interest, but she did not pay any, and the alleged
mortgage was not foreclosed thereby, which shows that the stipulation was nothing but a ruse.

Fifth. The deed Exhibit 1 was drawn by Kasilag, because it is in English, and the other party is a poor and ignorant woman,
wherefore, all doubts and uncertainties arising therefrom should be resolved against Kasilag. It is to noted that in this
document are phrases indicative of the real contract between the parties. For instance: in clause IV the word paid and
not loaned is used in referring to the loan of one thousand pesos; and clause IX of the document states "the foregoing
contract of sale."

Under all these circumstances, the irresistible conclusion is that the real contract between the parties is an absolute sale,
and that the contract of mortgage was made to appear in the document Exhibit 1 for the sole purpose of defeating the
legal prohibition. Nevertheless, the majority of this Court, brushing aside the findings of fact made by the Court of
Appeals without stating its reasons therefor, holds as to the document Exhibit 1, that "as the terms thereof are clear and
leave no room for doubt, it should be interpreted according to the literal meaning of its clauses." I have already shown in
speaking of the second circumstance, that the context itself of the document Exhibit 1 discloses strong tokens that the
contract between the parties was one of the sale and not of mortgage. Moreover, the rule relied upon by the majority is
only applicable in the absence of any allegation that the document does not express the real contract between the
parties. Under section 285, No. 1, of Act No. 190, a document, however clear its conditions may be, may and should be
rejected when it is alleged and shown by evidence aliundethat it does not express the true intent of the parties. We
have often considered as document, by its terms a contract of absolute sale, as one of mortgage because it has been
so alleged and established by convincing oral evidence. (Cuyugan vs. Santos, 34 Phil., 100; Villa vs. Santiago, 38 Phil.,
157; Laureano vs. Kilayco, 34 Phil., 148; Cuyugan vs. Santos, 39 Phil., 970; Rodriguez vs. Pamintuan, 37 Phil., 876; see also
Manalo vs. Gueco, 42 Phil., 925; Gatmaitan vs. Nepumuceno, 42 Phil., 295.)

The majority decision does not only pass over the findings of fact made by the Court of Appeals, but further, gives weight
to certain facts which said court finds not to have been established. For instance, we have the following passages the
majority decision:

One year after the execution of the aforequoted deed, that is, in 1933, it came to pass that Emiliana Ambrosio was
unable to pay the stipulated interest as well as the tax on the land and its improvements. For this reason, she and the
petitioner entered into another verbal contract whereby she conveyed to the latter the possession of the land on
condition that the latter would not collect the interest on the loan, would attend to the payment of the land tax, would
benefit by the fruits of the land, and would introduce improvements thereon. . . . .

. . . This stipulation was verbally modified by the same parties after the expiration of one year, in the sense that
the petitioner would take possession of the land and would benefit by the fruits thereof on condition that he
would condone the payment of interest upon the loan and he would attend to the payment of the land tax. . .
..

These two paragraphs state as an established fact the supposed verbal contract between the parties which Kasilag
tried to prove by his testimony. However, the Court of Appeals expressly held: "We believe, however, that the trial court
erred in giving probative value to the testimony of the appellee (Marcial Kasilag) with reference to the alleged verbal
agreement with the deceased, Emiliana Ambrosio, and based thereon the conclusion that the appellee acted in good
faith," (Words in parenthesis are mine.)

Rule 47, paragraph (b), of our Rules, provides expressly that in appeals to this court on certiorari, "only questions of law
may be raised and must be distinctly set forth." And we have held in various decisions that in passing upon the legal
conclusions of the Court of Appeals, we shall abide by the findings of fact of said court.

I, moreover, find certain ambiguities in the majority decision, for while it states on the one hand that the verbal contract
had for its purpose the "alteration of the mortgage contract clearly entered into, converting the latter into a contract of
antichresis," (underscoring mine) thereby implying that the mortgage contract was abandoned by the parties and
ceased to exist, in the dispositive part of its decision, the majority holds that the mortgage of the improvements is valid
and binding, and gives to the respondents the right to "redeem the mortgage of the improvements by paying to the
petitioner within three months the amount of P1,000 . . . ." It, therefore, requires compliance with a contract that has
ceased to exist.
While on the one hand the majority states that the aforesaid verbal contract is one of antichresis and that it is void, on
the other hand, it gives force thereto by holding that the interest on the loan of one thousand pesos is sufficiently "set off
by the value of the fruits of the mortgaged improvements which the petitioner received." And, furthermore, why should
the interest be set off against the fruits of the improvements only and not against those of the entire land? And if the
verbal contract of antichresis is void, why is Kasilag not required to render an accounting of the fruits of the land
received by him which may exceed the total amount of interest, taxes and even the principal itself?

The majority states that Kasilag, in taking possessions of the homestead, receiving its fruits and introducing improvements
thereon, did so under the void contract of antichresis, and did so in good faith as he was excusably unaware of the legal
provision which prohibits the incumbrance of the homestead within the period of five years. Whether Kasilag was aware
or unaware of the legal prohibition is again a factual question resolved by the Court of Appeals as follows: "the appellee
( Marcial Kasilag) was also aware of these provisions which were incorporated in the homestead patent shown to him at
the beginning of the transaction" (Words in parenthesis are mine). I do not understand how we can disturb this factual
finding.

I found, moreover, that in the majority decision it is ordered that, if the heirs of Emiliana Ambrosio cannot pay the value
of the permanent improvements introduced by Marcial Kasilag, the latter may have the homestead by paying to them
its price in the market. The improvements were appraised by the trial court at three thousand pesos, and as the heirs of
Emiliana Ambrosio probably inherited nothing from the latter but poverty, they will eventually be unable to pay the said
amount and, in the last analysis, will lose the homestead of their mother. The practical effect, therefore, of the majority
decision is that the heirs of Emiliana Ambrosio will be deprived of the homestead by virtue of a void antichretic
obligation contracted by her within the period of five years from the granting of the homestead. And this, at least, is in
violation of the spirit of section 116 of the Homestead Act.

I have other reasons which I need not set out to bring this dissent to a close. But before I conclude, I should like to state
that the Homestead Act has been enacted for the welfare and protection of the poor. The law gives a needy citizen a
piece of land where he may build a modest house for himself and family and plant what is necessary for subsistence and
for the satisfaction of life's other needs. The right of the citizens to their homes and to the things necessary for their
subsistence is as vital as the right to life itself. They have a right to live with a certain degree of comfort as become
human beings, and the State which looks after the welfare of the people's happiness is under a duty to safeguard the
satisfaction of this vital right. Moreover, a man with a home and a means of subsistence is a lover of peace and order
and will profess affection for his country, whereas one without a home and in penury is not only a social parasite but also
a dangerous element in the social order. The Homestead Act at once aims at the promotion of wholesome and happy
citizenship and the wiping out of the germs of social discontent found everywhere.

Considering the social and economic ends of the Homestead Act, the courts should exercise supreme care and strict
vigilance towards faithful compliance with all its benign provisions and against the defeat, directly or indirectly, of its
highly commendable purposes. And it is my firm conviction that where, as in the present case, a rich and clever man
attempts to wrest a homestead granted to a poor and ignorant woman, the slightest tokens of illegality should be
enough to move the courts to apply the strong arm of the law.

I dissent from the majority decision and vote for the affirmance of the decision of the Court of Appeals.

AVANCEÑA, C.J., dissenting:

I concur in this dissenting opinion of Justice Moran.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4963 January 29, 1953

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR NEBREDA, AND FAUSTINO NEBREDA,
Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.

BAUTISTA ANGELO, J.:

This is an action for recovery of the ownership and possession of five (5) parcels of land situated in the Municipality of
Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario and her four children named
Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda, who are all of minor age, before the Court of First
Instance of Pangasinan.

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands involved in this litigation.
Faustino Nebreda left no other heir except his widow Maria Uson. However, plaintiff claims that when Faustino Nebreda
died in 1945, his common-law wife Maria del Rosario took possession illegally of said lands thus depriving her of their
possession and enjoyment.

Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and her husband, the late
Faustino Nebreda, executed a public document whereby they agreed to separate as husband and wife and, in
consideration of their separation, Maria Uson was given a parcel of land by way of alimony and in return she renounced
her right to inherit any other property that may be left by her husband upon his death (Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered decision ordering the
defendants to restore to the plaintiff the ownership and possession of the lands in dispute without special
pronouncement as to costs. Defendants interposed the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former owner of the five
parcels of lands litigated in the present case. There is likewise no dispute that Maria del Rosario, one of the defendants-
appellants, was merely a common-law wife of the late Faustino Nebreda with whom she had four illegitimate children,
her now co-defendants. It likewise appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new
Civil Code. With this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he was
seized of at the time passed from the moment of his death to his only heir, his widow Maria Uson (Article 657, old Civil
Code).As this Court aptly said, "The property belongs to the heirs at the moment of the death of the ancestor as
completely as if the ancestor had executed and delivered to them a deed for the same before his death" (Ilustre vs.
Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over the lands in
question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in question because she expressly
renounced to inherit any future property that her husband may acquire and leave upon his death in the deed of
separation they had entered into on February 21, 1931, cannot be entertained for the simple reason that future
inheritance cannot be the subject of a contract nor can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil
Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).

But defendants contend that, while it is true that the four minor defendants are illegitimate children of the late Faustino
Nebreda and under the old Civil Code are not entitled to any successional rights, however, under the new Civil Code
which became in force in June, 1950, they are given the status and rights of natural children and are entitled to the
successional rights which the law accords to the latter (article 2264 and article 287, new Civil Code), and because these
successional rights were declared for the first time in the new code, they shall be given retroactive effect even though
the event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil Code).

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are declared for the first
time shall have retroactive effect even though the event which gave rise to them may have occurred under the former
legislation, but this is so only when the new rights do not prejudice any vested or acquired right of the same origin. Thus,
said article provides that "if a right should be declared for the first time in this Code, it shall be effective at once, even
though the act or event which gives rise thereto may have been done or may have occurred under the prior legislation,
provided said new right does not prejudice or impair any vested or acquired right, of the same origin." As already stated
in the early part of this decision, the right of ownership of Maria Uson over the lands in question became vested in 1945
upon the death of her late husband and this is so because of the imperative provision of the law which commands that
the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new right recognized
by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the
impairment of the vested right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of pity or compassion,
agreed to assign the lands in question to the minor children for the reason that they were acquired while the deceased
was living with their mother and Maria Uson wanted to assuage somewhat the wrong she has done to them, this much
can be said; apart from the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of
the nature of a donation of real property, inasmuch as it involves no material consideration, and in order that it may be
valid it shall be made in a public document and must be accepted either in the same document or in a separate one
(Article 633, old Civil Code). Inasmuch as this essential formality has not been followed, it results that the alleged
assignment or donation has no valid effect.

WHEREFORE, the decision appealed from is affirmed, without costs.

Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 75082 January 31, 1989

JOSE F. PUZON, petitioner-appellant,

vs.
ALEJANDRA ABELLERA, substituted by TOMASA D. DOMONDON, oppositor-appellee.

De Guzman, Florendo & Apolinar Law Office for petitioner-appellant.

Sixto A. Domondon and Hector D. Domondon for oppositor-appellee.

PARAS, J.:

This is a petition for review on certiorari of the decision of the then First Civil Cases Division of the Intermediate Appellate
Court ** in AC-G.R. CV No. 04690, dated 13 March 1986, affirming in toto the decision of the then Court of First Instance
of Baguio and Benguet, Branch IV, sitting as a Land Registration Court, in Administrative Case No. 2091. It is the
contention of petitioner that:

THE HONORABLE APPELLATE COURT COMMITTED GRAVE AND REVERSIBLE ERROR IN UPHOLDING THAT
LANDS WITHIN THE BAGUIO TOWNSITE RESERVATION WHOSE TITLES HAVE BEEN ISSUED IN CIVIL
RESERVATION CASE NO. 1, G.L.R.O. RECORD NO. 211 PURSUANT TO REPUBLIC ACT 931, AS AMENDED,
ARE NOT SUBJECT TO REALTY TAX. (Petition, p. 7, Rollo)

The oppositor-appellee (now deceased and substituted by her only child Tomasa Domondon) was the registered owner
of the land in question, a two-hectare lot known as Lot 1-B subdivision plan (LRC) PSU-33174, Res. Sec. 2, Km. 3 Asin Road,
Baguio City and covered by TCT No. 8103. The said land was part of a bigger tract of public land but titled in a judicial
reopening proceeding pursuant to the provisions of RA 931, as amended, entitled "An act to authorize the filing in the
court, under certain conditions, of certain claims of titles to parcels of land that have been declared public land, by
virtue of judicial decisions rendered within the forty years next preceeding the approval of this act' (now inoperative).

Subsequently, in a case entitled Republic, et al. v. Hon. Pio R. Marcos, et al., 29 SCRA 517 (1969), We declared all titles
issued under RA 931 null and void since the said Act was applicable only to places that were covered by cadastral
proceedings, not to the City of Baguio which was covered by a townsite reservation under Civil Reservation Case No. 1,
G.L.R.O. Record No. 211 filed before the enactment of Cadastral Act No. 2259 on 11 February 1913. This was followed by
another case also entitled Republic v. Marcos, 52 SCRA 238 (1973), where We reiterated the above ruling. The ruling in
these case was subsequently enacted into law as incorporated in Presidential Decree No. 1271 which took effect on 22
December 1977 with the title "An act nullifying decrees of registration and certificates of title covering lands within the
Baguio Townsite Reservation Case No. 1, G.L.R.O. Record No. 211 pursuant to Republic Act No. 931, as amended, but
considering as valid certain titles of such lands that are alienable and disposable under certain conditions and for other
purposes." Hence, the lot in question was reverted to the public domain.

On 10 October 1977, certain real properties in Baguio City, which included two (2) properties of the oppositor-appellee,
one of which is the land involved in this appeal, were auctioned off. Allegedly, the real property taxes on the land in
question for the years 1971 to 1977 had not been paid. Having been previously informed of the scheduled auction sale
of tax delinquent properties in Baguio City, petitioner Puzon gained interest in the property in question. He examined the
title of said land and all other documents evidencing transactions over the same. At the auction sale petitioner Puzon
was declared winner in the bidding over the lot in question, being the lone bidder, and paid to the City Treasurer a total
sum of only P3,253.95 which included his bid and other petty sums.

One year after the tax sale, petitioner Puzon was given a certificate of sale over the parcel of land sold to him. He went
to the Registry of Deeds in order to register said certificate and to secure a new title in his name but was advised to first
go to court for an order confirming said sale. Hence, petitioner filed this suit to consolidate his ownership over the
property.

In the meantime, while trying to avail of the provisions of PD 1271 in oppositor-appellee's behalf, Tomasa Domondon
found out that the two lands of the former had been auctioned off for alleged tax deliquencies for the years 1971 to
1977, one of which is the land purchased by petitioner Puzon Domondon then arranged a meeting with the latter to
discuss the matter with him. But when the latter failed to appear at the appointed time and place. Domondon
consigned with the Court the amount of P4,780.00 after having verified that Puzon paid only P3,252.95 for a two-hectare
land which could have commanded a very much higher price. She then filed her opposition to petitioner Puzon's
petition for consolidation. The lower court ruled in favor of the then oppositor, declaring null and void the aforesaid
auction sale and illegal the assessment made. This ruling was affirmed by the then Intermediate Appellate Court (IAC),
hence this present petition. As stated by the lower court and adopted by the IAC, the issues are "whether the (property)
involved herein can be considered tax (delinquent) and, if, so, has there been a valid tax sale of the same as to place
the Court under no recourse but to confirm said (sale) and order the (title) thereof transferred in the name of petitioner
Jose F. Puzon . ." (p. 23, Rollo).

In concluding that the assessments made for the years 1971 to 1977 were legal, petitioner contends that PD 1271 is
curative in nature. Section 1 of the said Decree states in part:

SECTION 1. All orders and decisions issued by the Court of First Instance of Baguio and Benguet in
connection with the proceedings for the reopening of Civil Reservation Case No. 1, GLRO Record No.
21 1, covering lands within the Baguio Townsite Reservation, and decreeing such lands in favor of
private individuals or entities, are hereby declared null and void and without force and effect;
PROVIDED, HOWEVER that all certificates of titles issued on or before July 31, 1973 shall be considered
valid and the lands covered by them shall be deemed to have been conveyed in fee simple to the
registered owners upon a showing of, and compliance with, the following conditions.. . (74 O.G. No.
19, pp- 3583-3584).

The petitioner submits that: 'upon compliance with certain requirements the titles so issued are validated and deemed to
have been conveyed in fee simple.... The validation of the title retroacts to the very day the title was originally issued'
(pp. 45, Rollo). We agree with the petitioner. The intent of the law necessarily makes such titles valid from, the time they
were issued. The ninth "whereas" clause of PD 1271 states:

WHEREAS, there are holders of titles who, before the promulgation of the decision of the Supreme
Court on July 31, 1973, had acted in good faith and relied, although mistakenly, on the indefeasibility
of torrens certificates of titles and who had introduced substantial improvements on the land covered
by the certificates. (74 O.G. No. 19, p. 3583)

The foregoing necessarily implies that the intent of the law is to recognize the effects of certain acts of ownership done in
good faith by persons with torrens titles issued in their favor before the cut-off date stated, honestly believing that they
had validly acquired the lands. And such would be possible only by validating all the said titles issued before 31 July
1973, effective on their respective dates of issue. However, the validity of these titles would not become operative unless
and after the conditions stated in PD 1271 are met. Hence, the phrase "upon a showing, and compliance with, the
following conditions," (Sec. 1, PD 1271)

While it may be argued that Article 4 of the New Civil Code prohibits the retroactive application of laws unless expressly
provided therein, such rule allows some exceptions. As We have held in the case of Nilo v. Court of Appeals, 128 SCRA
519, "a statute operates prospectively only and never retroactively, unless the legislative intent to the contrary is made
manifest either by the express terms of the statute or by necessary implications." As pointed out above, PD 1271 falls
under one of the exceptions.

Considering, however, that during the years 1971-1977 the land in question was still part of the public domain, the
oppositor-appellee could not, in those years, obviously be held liable for real property taxes over the land in question.
Since the validity of her title would take effect retroactively only after having complied with the conditions set in PD 1271,
only then could she be held liable for taxes for the period starting 1971 to 1977. It would be absurd then to hold the
oppositor-appellee liable for taxes over a piece of land which she did not own (it being public land) or use.
Consequently, the tax sale was prematurely conducted. The oppositor-appellee should have first been given the
opportunity to settle the taxes assessed for the years 1971-1977 after having complied with PD 1271.

As to the validity of the auction sale, We reiterate that it was prematurely held, hence, null and void for the above
reasons. But even on the evidence presented by the parties, assuming that the sale was properly and seasonably held, it
has been clearly shown by the trial court and the IAC that the oppositor-appellee was not properly notified. The holding
of the tax sale despite the absence of the requisite notice was tantamount to a violation of her substantial right to due
process. As held by the IAC,

. . . Under these provisions (referring to Secs. 59, 65, 73 and 76 of PD 464, the Real Property Tax Code)
notice to the delinquent owner is required as a prerequisite to a valid tax sale.

Failure to notify the registered owner shall vitiate the sale.' (Cabrera v. Prov. Treasurer, 75 Phil. 780)

Tax sales are administrative proceedings. And-

Administrative proceedings established for the sale of private lands for non-payment of taxes being in
personam (Pantaleon v. Santos, L-10289, July 31, 1957), it is essential that there be actual notice to the
delinquent, otherwise the sale is null and void although preceded by proper advertisement or
publication." (Vivencio v. Quintos, CA-G.R. No. 44697, Jan. 23, 1975, 72 O.G. No. 11, March 15, 1975.)
(Decision of the IAC, 13 March 1986, pp. 27-28, Rollo)

We do not see the above findings of fact of the trial court, as adopted by the IAC, to be contrary to the evidence
presented nor tainted with partiality or indiscretion. Hence, We accord them great respect (Premier Insurance and
Surety Corporation v. IAC, 141 SCRA 432; Vda. de Roxas v. IAC, 143 SCRA 77; Republic v. IAC, 144 SCRA 705).

WHEREFORE, the appealed decisions is hereby MODIFIED accordingly, that is the land should really be considered
owned by the respondent and her title thereto must not be disturbed BUT she must pay the real property taxes thereon
for the years 1971-1977. As to the other matters raised, We find no reason to deviate from the findings of the lower court
and, thus, AFFIRM the same.

SO ORDERED.

Melencio-Herrera (Chairperson), Sarmiento and Regalado, JJ., concur. Padilla, J., no part, by reason of ownership of a
lot in the same Baguio townsite reservation.

Footnotes

** Penned by then Associate Justice Coquioa and concurred in by then Presiding Justice Gaviola and
Associate Justices Quetulio-Losa and Ines Luciano.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION
G.R. No. L-44466 January 30, 1989

MAGDALENA V. ACOSTA, JULIANA V. ACOSTA and ROSITA V. ACOSTA, petitioners,

vs.
HON. JUDGE ANDRES B. PLAN, Presiding Judge of the Court of First Instance of Isabela, Branch II, HON. SECRETARY OF
AGRICULTURE AND NATURAL RESOURCES, THE DIRECTOR OF LANDS, and BERNARDINO MAGDAY, respondents.

Florentino E. Estillore for petitioners.

The Solicitor General for respondents.

GRINO-AQUINO, J.:

The only issue in this petition for review on certiorari is whether the petitioners' appeal from the decision of the Court of
First Instance of Isabela in Civil Case No. 1201, may be dismissed for tardiness in submitting their record on appeal.

On January 8, 1962, the petitioners filed an accion publiciana (Civil Case No. 1201) in the Court of First Instance of
Isabela against the private respondent Bernardino Magday. After the defendant had filed his answer, the complaint was
amended on August 25, 1971, to implead the Department of Agriculture and Natural Resources and the Bureau of Lands
as additional defendants. Magday filed an amended answer. The Secretary of Agriculture and Natural Resources and
the Director of Lands filed separate answers to the amended complaint.

After the parties had submitted a stipulation of facts, the court, upon plaintiffs' motion for judgment on the pleadings
and/or summary judgment, which the defendant did not oppose, rendered judgment on October 3, 1975, dismissing the
complaint with costs against the plaintiffs (Annex F, pp. 35- 46, Rollo).

The plaintiffs filed a motion for reconsideration (Annex G, p. 47, Rollo) of the decision. It was denied by the respondent
Judge on December 12, 1975 (Annex H, p. 50, Rollo).

On December 22, 1975, they filed a motion for leave to appeal as paupers (Annex J, p. 52, Rollo) and on December 23,
1975, they filed a notice of appeal (Annex I, p. 51, Rollo). The trial court granted on January 19, 1976 their motion to
appeal as paupers (Annex K, p. 55, Rollo).

Believing that as pauper litigants they did not have to submit a record on appeal, they waited for the trial court to
elevate the entire records of the case to the Court of Appeals as provided in Section 16, Rule 41 of the Rules of Court. On
June 16, 1976, respondent Judge dismissed the appeal for failure to file a record on appeal (Annex L, p. 56, Rollo). A
motion for reconsideration (Annex M, p. 57, Rollo) of the dismissal order was filed by the appellants on July 26, 1976. On
August 10, 1976, they mailed their record on appeal to the Court. On August 23, 1976, the lower court denied their
motion for reconsideration (Annex 0, p. 60, Rollo). Hence, this petition for certiorari by the appellants raising the lone legal
question of whether for the perfection of an appeal by a pauper litigant, the timely submission of a record on appeal is
required.

Under the Rules of Court then in force, a record on appeal was indeed required to be filed by a pauper appellant
although it did not have to be printed. As argued by the Solicitor General in his brief.

Petitioners contend, however, that having been allowed by the lower court to appeal as paupers,
they are not required to file a record on appeal since the entire record of the case shall be
transmitted to the appellate court and the case shall be heard upon the original record so
transmitted without printing the same.

Sec. 16, Rule 41 of the Rules of Court, provides:

Sec. 16. Appeal by pauper. — Where a party desiring to appeal shall establish to the satisfaction of
the trial court that he is a pauper and unable to pay the expenses of prosecuting the appeal, and
that the case is of such importance, by reason of the amount involved, or the nature of the questions
raised, that it ought to be reviewed by the appellate court, the trial judge may enter an order entitling
the party to appeal as pauper. The clerk shall transmit to the appellate court the entire record of the
 case, including the evidence taken on trial and the record on appeal, and the case shall be heard in
the appellate court upon the original record so transmitted without printing the same.' (Emphasis
types supplied.)

'It is clear that even a pauper litigant is required to file a record on appeal. What is not required of him
is the filing of a printed record on appeal, and, of course, an appeal bond, since the cited Rule is
designed to help the pauper litigant who may not be able to pay the expenses of prosecuting the
appeal. In contrast, Sec. 17 of the same Rule 41 which refers to appeals in certiorari, prohibition,
mandamus, quo warranto and employee's liability cases categorically provides that 'the original
record of the case shall be transmitted to the appellate court in lieu of the record on appeal.' In other
words, appeals in special civil actions do not require record on appeal; they are perfected by the
mere filing of the notice of appeal (Embroidery and Apparel Control and Inspection Board vs.
Cloribel, 20 SCRA 517 [1967]).

'Indeed, records on appeal have been filed by pauper litigants as a matter of course (Tiozon vs. Court
of Appeals, 70 SCRA 284 ,[1976]).' (pp. 7-9, Brief for the Respondents; p. 109, Rollo.)

However, under B.P. Blg. 129, which has overtaken this case before it could be decided, a record on appeal is no longer
required for the perfection of an appeal. This new rule was given retroactive effect in Alday vs. Camilon, 120 SCRA 521
where We Ruled:

The reorganization having been declared to have been completed, Batas Pambansa Blg. 129 is now
in full force and effect. A record on appeal is no longer necessary for taking an appeal. The same
proviso appears in Section 18 of the Interim Rules and Guidelines issued by this Court on January 11,
1983. Being procedural in nature, those provisions may be applied retroactively for the benefit of
petitioners, as appellants. 'Statutes regulating the procedure of the courts will be construed as
applicable to actions pending undetermined at the time of their passage. Procedural laws are
retrospective in that sense and to that extent.' (People vs. Sumilang, 77 Phil. 764).' (Cited in Palomo
Building Tenants Association, Inc. vs. Intermediate Appellate Court, 133 SCRA 168; De Guzman vs.
Court of Appeals, 137 SCRA 731; and Lagunzad vs. Court of Appeals, 154 SCRA 199.)

WHEREFORE, the decision dated October 3, 1975, of the trial court and its orders of June 16, 1976 and August 23, 1976
are hereby set aside. The trial court is hereby ordered to forward the entire records of Civil Case No. 1201 to the Court of
Appeals for the determination and disposition of the petitioners' appeal on the merits.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 86675 December 19, 1989

MRCA, INC., petitioner,

vs.
HON. COURT OF APPEALS, HON. BENJAMIN V. PELAYO, Judge, Regional Trial court, National Capital Judicial Region,
Branch 168, Pasig, M.M., SPOUSES DOMINGO SEBASTIAN, JR. & LILIA TIOSECO SEBASTIAN, and EXPECTACION P.
TIOSECO, respondents.

Ramon A. Gonzales for petitioner.

Tanjuatco, Oreta, Tanjuatco, Berenguer and Sanvicente for private respondents.

GRIÑO-AQUINO, J.:

The petitioner prays this Court to set aside the decision promulgated on January 18, 1989 by the Court of Appeals in CA-
G.R. No. SP 15745, affirming the order of the Regional Trial Court dismissing the complaint for non-payment of the proper
filing fees as the prayer of the complaint failed to specify the amounts of moral damages, exemplary damages,
attorney's fees and litigation expenses sought to be recovered by it from the defendants, but left them "to the discretion
of this Honorable Court" or "to be proven during the trial."

Invoking the decision of this Court in Manchester Development Corporation vs. Court of Appeals, 149 SCRA 562, the
private respondents (defendants in Civil Case No. 55740 of the Regional Trial Court of Pasig, Metro Manila, entitled
MRCA, Inc. vs. Spouses Domingo Sebastian, Jr., et al." filed a motion to dismiss the complaint on July 15, 1988. The
petitioner opposed the motion, but the trial court granted it in its order of August 10, 1988 (p. 54, Rollo). The Court of
Appeals upheld the trial court, hence, this petition for review under Rule 45 of the Rules of Court.

Petitioner argues that since the decision in Manchester had not yet been published in the Official Gazette when its
complaint was filed, the ruling therein was ineffective; that said ruling may not be given retroactive effect because it
imposes a new penalty for its non-observance; the dismissal of the complaint for want of jurisdiction; and, that it should
not apply to the present case because the petitioner herein (plaintiff in the trial court) had no fraudulent intent to
deprive the government of the proper docketing fee, unlike the Manchester case where enormous amounts of
damages were claimed in the body of the complaint, but the amounts were not mentioned in the prayer thereof, to
mislead the clerk of court in computing the filing fees to be paid.

Petitioner's argument regarding the need for publication of the Manchester ruling in the Official Gazette before it may
be applied to other cases is not well taken. As pointed out by the private respondents in their comment on the petition,
publication in the Official Gazette is not a prerequisite for the effectivity of a court ruling even if it lays down a new rule of
procedure, for "it is a doctrine well established that the procedure of the court may be changed at any time and
become effective at once, so long as it does not affect or change vested rights." (Aguillon vs. Director of Lands, 17 Phil.
508). In a later case, this Court held thus:

It is a well-established rule of statutory construction that statutes regulating the procedure of the
courts will be construed as applicable to actions pending and undetermined at the time of their
passage. Procedural laws are retrospective in that sense and to that extent. As the resolution of
October 1, 1945, relates to the mode of procedure, it is applicable to cases pending in courts at the
time of its adoption; but it can not be invoked in and applied to the present case in which the
decision had become final before said resolution became effective. In this case, the motion for
reconsideration filed by the defendant was denied on July 17, 1944, and a second motion for re-
hearing or consideration could not be filed after the expiration of the period of fifteen days from
promulgation of the order or judgment deducting the time in which the first motion had been
pending in this Court (Section 1, Rule 54); for said period had already expired before the adoption of
the resolution on October 1, 1945. Therefore, the Court cannot now permit or allow the petitioner to
file any pleading or motion in the present case." (People vs. Sumilang, 77 Phil. 765- 766.)

The Manchester ruling was applied retroactively in Sun Insurance Office, Ltd., et al. vs. Asuncion, et al., G.R. Nos. 7993738,
February 13, 1989, a case that was already pending before Manchester was promulgated.

The complaint in this case was filed on March 24, 1988, or ten months after Manchester was promulgated on May 7,
1987, hence, Manchester should apply except for the fact that it was modified in the Sun Insurance case, where we
ruled that the court may allow payment of the proper filing fee "within a reasonable time but in no case beyond the
prescriptive or reglementary period." We quote:

1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment of the
prescribed docket fee, that vests a trial court with jurisdiction over the subject-matter or nature of the
action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee,
the court may allow payment of the fee within a reasonable time but in no case beyond the
applicable prescriptive or reglementary period. (p. 80, Rollo.)

Intent to cheat the government of the proper filing fees may not be presumed from the petitioner's omission to specify in
the body and prayer of its complaint the amounts of moral and exemplary damages and attorney's fees that it claims to
have suffered and/or incurred in its transaction with the private respondents. The petitioner might not have computed its
damages yet, or probably did not have the evidence to prove them at the time it filed its complaint. In accordance with
our ruling in Sun Insurance Office, Ltd., the petitioner may be allowed to amend its complaint for the purpose of
specifying, in terms of pesos, how much it claims as damages, and to pay the requisite filing fees therefor, provided its
right of action has not yet prescribed. This the petitioner is ready to do.

WHEREFORE, the petition for review is granted.

The Order of the Regional Trial Court is hereby set aside. The complaint in Civil Case No. 55740 (MRCA, Inc. vs. Domingo
Sebastian, Jr. and Lilia Tioseco Sebastian) is reinstated and the petitioner is allowed to amend the same by specifying the
amounts of damages it seeks to recover from the defendants (private respondents) and to pay the proper filing fees
therefor as computed by the Clerk of Court.

SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 188056 January 8, 2013

SPOUSES AUGUSTO G. DACUDAO AND OFELIA R. DACUDAO, Petitioners,

vs.
SECRETARY OF JUSTICE RAUL M. GONZALES OF THE DEPARTMENT OF JUSTICE, Respondent.

DECISION

BERSAMIN, J.:

Petitioners - residents of Bacaca Road, Davao City - were among the investors whom Celso G. Delos Angeles, Jr. and his
associates in the Legacy Group of Companies (Legacy Group) allegedly defrauded through the Legacy Group's "buy
back agreement" that earned them check payments that were dishonored. After their written demands for the return of
their investments went unheeded, they initiated a number of charges for syndicated estafa against Delos Angeles, Jr., et
al. in the Office of the City Prosecutor of Davao City on February 6, 2009. Three of the cases were docketed as NPS
Docket No. XI-02-INV.-09-A-00356, Docket No. XI-02-INV.-09-C-00752, and Docket No. XI-02-INV.-09-C-00753.1

On March 18, 2009, the Secretary of Justice issued Department of Justice (DOJ) Order No. 182 (DO No. 182), directing all
Regional State Prosecutors, Provincial Prosecutors, and City Prosecutors to forward all cases already filed against Delos
Angeles, Jr., et al. to the Secretariat of the DOJ Special Panel in Manila for appropriate action.

DO No. 182 reads:2

All cases against Celso G. delos Angeles, Jr., et al. under Legacy Group of Companies, may be filed with the docket
section of the National Prosecution Service, Department of Justice, Padre Faura, Manila and shall be forwarded to the
Secretariat of the Special Panel for assignment and distribution to panel members, per Department Order No. 84 dated
February 13, 2009.

However, cases already filed against Celso G. delos Angeles, Jr. et al. of Legacy group of Companies in your respective
offices with the exemption of the cases filed in Cagayan de Oro City which is covered by Memorandum dated March 2,
2009, should be forwarded to the Secretariat of the Special Panel at Room 149, Department of Justice, Padre Faura,
Manila, for proper disposition.

For information and guidance.

Pursuant to DO No. 182, the complaints of petitioners were forwarded by the Office of the City Prosecutor of Davao City
to the Secretariat of the Special Panel of the DOJ.3

Aggrieved by such turn of events, petitioners have directly come to the Court via petition for certiorari, prohibition and
mandamus, ascribing to respondent Secretary of Justice grave abuse of discretion in issuing DO No. 182. They claim that
DO No. 182 violated their right to due process, their right to the equal protection of the laws, and their right to the speedy
disposition of cases. They insist that DO No. 182 was an obstruction of justice and a violation of the rule against
enactment of laws with retroactive effect.

Petitioners also challenge as unconstitutional the issuance of DOJ Memorandum dated March 2, 2009 exempting from
the coverage of DO No. No. 182 all the cases for syndicated estafa already filed and pending in the Office of the City
Prosecutor of Cagayan de Oro City. They aver that DOJ Memorandum dated March 2, 2009 violated their right to equal
protection under the Constitution.

The Office of the Solicitor General (OSG), representing respondent Secretary of Justice, maintains the validity of DO No.
182 and DOJ Memorandum dated March 2, 2009, and prays that the petition be dismissed for its utter lack of merit.

Issues

The following issues are now to be resolved, to wit:

1. Did petitioners properly bring their petition for certiorari, prohibition and mandamus directly to the Court?

2. Did respondent Secretary of Justice commit grave abuse of discretion in issuing DO No. 182?

3. Did DO No. 182 and DOJ Memorandum dated March 2, 2009 violate petitioners’ constitutionally guaranteed
rights?

Ruling

The petition for certiorari, prohibition and mandamus, being bereft of substance and merit, is dismissed.

Firstly, petitioners have unduly disregarded the hierarchy of courts by coming directly to the Court with their petition for
certiorari, prohibition and mandamus without tendering therein any special, important or compelling reason to justify the
direct filing of the petition.

We emphasize that the concurrence of jurisdiction among the Supreme Court, Court of Appeals and the Regional Trial
Courts to issue the writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction did not give
petitioners the unrestricted freedom of choice of court forum.4 An undue disregard of this policy against direct resort to
the Court will cause the dismissal of the recourse. In Bañez, Jr. v. Concepcion,5 we explained why, to wit:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to
be ignored without serious consequences. The strictness of the policy is designed to shield the Court from having to deal
with causes that are also well within the competence of the lower courts, and thus leave time to the Court to deal with
the more fundamental and more essential tasks that the Constitution has assigned to it. The Court may act on petitions
for the extraordinary writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy. This was why the Court stressed in Vergara, Sr. v. Suelto:

x x x. The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned
to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of
dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be
exercised only where absolutely necessary or where serious and important reasons exist therefor. Hence, that jurisdiction
should generally be exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or another are not controllable by the Court of Appeals.
Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional Trial
Court, it is in either of these courts that the specific action for the writ’s procurement must be presented. This is and
should continue to be the policy in this regard, a policy that courts and lawyers must strictly observe. (Emphasis supplied)
In People v. Cuaresma, the Court has also amplified the need for strict adherence to the policy of hierarchy of courts.
There, noting "a growing tendency on the part of litigants and lawyers to have their applications for the so-called
extraordinary writs, and sometimes even their appeals, passed upon and adjudicated directly and immediately by the
highest tribunal of the land," the Court has cautioned lawyers and litigants against taking a direct resort to the highest
tribunal, viz:

x x x. This Court’s original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas
corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts x x x, which may issue the writ,
enforceable in any part of their respective regions. It is also shared by this Court, and by the Regional Trial Court, with the
Court of Appeals x x x, although prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the latter's
competence to issue the extraordinary writs was restricted to those "in aid of its appellate jurisdiction." This concurrence
of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That
hierarchy is determinative of the venue of appeals, and 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 filed with the Regional Trial
Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's 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 is necessary to prevent inordinate demands
upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to
prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction on the jurisdiction of the Court
of Appeals in this regard, supra— resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" —
was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for the
extraordinary writs which, but for the expansion of the Appellate Court corresponding jurisdiction, would have had to be
filed with it.1âwphi1

xxxx

The Court therefore closes this decision with the declaration for the information and evidence of all concerned, that it
will not only continue to enforce the policy, but will require a more strict observance thereof. (Emphasis supplied)

Accordingly, every litigant must remember that the Court is not the only judicial forum from which to seek and obtain
effective redress of their grievances. As a rule, the Court is a court of last resort, not a court of the first instance. Hence,
every litigant who brings the petitions for the extraordinary writs of certiorari, prohibition and mandamus should ever be
mindful of the policy on the hierarchy of courts, the observance of which is explicitly defined and enjoined in Section 4 of
Rule 65, Rules of Court, viz:

Section 4. When and where petition filed. - The petition shall be filed not later than sixty (60) days from notice of the
judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the sixty (60) day period shall be counted from notice of the denial of the said motion.

The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation,
board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the
Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in the aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-
judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the
Court of Appeals.

In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed
exclusively with the Commission on Elections, in aid of its appellate jurisdiction.6

Secondly, even assuming arguendo that petitioners’ direct resort to the Court was permissible, the petition must still be
dismissed.

The writ of certiorari is available only when any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law.7"The sole
office of the writ of certiorari," according to Delos Santos v. Metropolitan Bank and Trust Company:8

x x x is the correction of errors of jurisdiction, which includes the commission of grave abuse of discretion amounting to
lack of jurisdiction. In this regard, mere abuse of discretion is not enough to warrant the issuance of the writ. The abuse of
discretion must be grave, which means either that the judicial or quasi-judicial power was exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, or that the respondent judge, tribunal or board evaded a
positive duty, or virtually refused to perform the duty enjoined or to act in contemplation of law, such as when such
judge, tribunal or board exercising judicial or quasi-judicial powers acted in a capricious or whimsical manner as to be
equivalent to lack of jurisdiction.

For a special civil action for certiorari to prosper, therefore, the following requisites must concur, namely: (a) it must be
directed against a tribunal, board or officer exercising judicial or quasi-judicial functions; (b) the tribunal, board, or officer
must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction; and (c) there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law.9 The
burden of proof lies on petitioners to demonstrate that the assailed order was issued without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction.

Yet, petitioners have not shown a compliance with the requisites. To start with, they merely alleged that the Secretary of
Justice had acted without or in excess of his jurisdiction. Also, the petition did not show that the Secretary of Justice was
an officer exercising judicial or quasi-judicial functions. Instead, the Secretary of Justice would appear to be not
exercising any judicial or quasi-judicial functions because his questioned issuances were ostensibly intended to ensure his
subordinates’ efficiency and economy in the conduct of the preliminary investigation of all the cases involving the
Legacy Group. The function involved was purely executive or administrative.

The fact that the DOJ is the primary prosecution arm of the Government does not make it a quasi-judicial office or
agency. Its preliminary investigation of cases is not a quasi-judicial proceeding. Nor does the DOJ exercise a quasi-
judicial function when it reviews the findings of a public prosecutor on the finding of probable cause in any case.
Indeed, in Bautista v. Court of Appeals,10 the Supreme Court has held that a preliminary investigation is not a quasi-
judicial proceeding, stating:

x x x the prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not
exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining
whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof.
While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately,
that pass judgment on the accused, not the fiscal.11

There may be some decisions of the Court that have characterized the public prosecutor’s power to conduct a
preliminary investigation as quasi-judicial in nature. Still, this characterization is true only to the extent that the public
prosecutor, like a quasi-judicial body, is an officer of the executive department exercising powers akin to those of a court
of law.

But the limited similarity between the public prosecutor and a quasi-judicial body quickly endsthere. For sure, a quasi-
judicial body is an organ of government other than a court of law or a legislative office that affects the rights of private
parties through either adjudication or rule-making; it performs adjudicatory functions, and its awards and adjudications
determine the rights of the parties coming before it; its decisions have the same effect as the judgments of a court of
law. In contrast, that is not the effect whenever a public prosecutor conducts a preliminary investigation to determine
probable cause in order to file a criminal information against a person properly charged with the offense, or whenever
the Secretary of Justice reviews the public prosecutor’s orders or resolutions.

Petitioners have self-styled their petition to be also for prohibition. However, we do not see how that can be. They have
not shown in their petition in what manner and at what point the Secretary of Justice, in handing out the assailed
issuances, acted without or in excess of his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction. On the other hand, we already indicated why the issuances were not infirmed by any defect of jurisdiction.
Hence, the blatant omissions of the petition transgressed Section 2, Rule 65 of the Rules of Court, to wit:

Section 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to
desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as
law and justice may require.
The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping
as provided in the third paragraph of section 3, Rule 46. (2a) Similarly, the petition could not be one for mandamus,
which is a remedy available only when "any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified
petition in the proper court."12 The main objective of mandamus is to compel the performance of a ministerial duty on
the part of the respondent. Plainly enough, the writ of mandamus does not issue to control or review the exercise of
discretion or to compel a course of conduct,13 which, it quickly seems to us, was what petitioners would have the
Secretary of Justice do in their favor. Consequently, their petition has not indicated how and where the Secretary of
Justice’s assailed issuances excluded them from the use and enjoyment of a right or office to which they were
unquestionably entitled.

Thirdly, there is no question that DO No. 182 enjoyed a strong presumption of its validity. In ABAKADA Guro Party List v.
Purisima,14 the Court has extended the presumption of validity to legislative issuances as well as to rules and regulations
issued by administrative agencies, saying:

Administrative regulations enacted by administrative agencies to implement and interpret the law which they are
entrusted to enforce have the force of law and are entitled to respect. Such rules and regulations partake of the nature
of a statute and are just as binding as if they have been written in the statute itself. As such, they have the force and
effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an
appropriate case by a competent court.15

DO No. 182 was issued pursuant to Department Order No. 84 that the Secretary of Justice had promulgated to govern
the performance of the mandate of the DOJ to "administer the criminal justice system in accordance with the accepted
processes thereof"16 as expressed in Republic Act No. 10071 (Prosecution Service Act of 2010) and Section 3, Chapter I,
Title III and Section 1, Chapter I, Title III of Book IV of Executive Order 292 (Administrative Code of 1987).

To overcome this strong presumption of validity of the questioned issuances, it became incumbent upon petitioners to
prove their unconstitutionality and invalidity, either by showing that the Administrative Code of 1987 did not authorize the
Secretary of Justice to issue DO No. 182, or by demonstrating that DO No. 182 exceeded the bounds of the
Administrative Code of 1987 and other pertinent laws. They did not do so. They must further show that the performance
of the DOJ’s functions under the Administrative Code of 1987 and other pertinent laws did not call for the impositions laid
down by the assailed issuances. That was not true here, for DO No 182 did not deprive petitioners in any degree of their
right to seek redress for the alleged wrong done against them by the Legacy Group. Instead, the issuances were
designed to assist petitioners and others like them expedite the prosecution, if warranted under the law, of all those
responsible for the wrong through the creation of the special panel of state prosecutors and prosecution attorneys in
order to conduct a nationwide and comprehensive preliminary investigation and prosecution of the cases. Thereby, the
Secretary of Justice did not act arbitrarily or oppressively against petitioners.

Fourthly, petitioners attack the exemption from the consolidation decreed in DO No. 182 of the cases filed or pending in
the Office of the City Prosecutor of Cagayan de Oro City, claiming that the exemption traversed the constitutional
guaranty in their favor of the equal protection of law.17

The exemption is covered by the assailed DOJ Memorandum dated March 2, 2009, to wit:

It has come to the attention of the undersigned that cases for syndicated estafa were filed with your office against
officers of the Legacy Group of Companies. Considering the distance of the place of complainants therein to Manila,
your Office is hereby exempted from the directive previously issued by the undersigned requiring prosecution offices to
forward the records of all cases involving Legacy Group of Companies to the Task Force.

Anent the foregoing, you are hereby directed to conduct preliminary investigation of all cases involving the Legacy
Group of Companies filed in your office with dispatch and to file the corresponding informations if evidence warrants
and to prosecute the same in court.

Petitioners’ attack deserves no consideration. The equal protection clause of the Constitution does not require the
universal application of the laws to all persons or things without distinction; what it requires is simply equality among
equals as determined according to a valid classification.18 Hence, the Court has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, the classification stands as long as it bears a rational relationship to some
legitimate government end.19
That is the situation here. In issuing the assailed DOJ Memorandum dated March 2, 2009, the Secretary of Justice took
into account the relative distance between Cagayan de Oro, where many complainants against the Legacy Group
resided, and Manila, where the preliminary investigations would be conducted by the special panel. He also took into
account that the cases had already been filed in the City Prosecutor’s Office of Cagayan de Oro at the time he issued
DO No. 182. Given the considerable number of complainants residing in Cagayan de Oro City, the Secretary of Justice
was fully justified in excluding the cases commenced in Cagayan de Oro from the ambit of DO No. 182. The
classification taken into consideration by the Secretary of Justice was really valid. Resultantly, petitioners could not
inquire into the wisdom behind the exemption upon the ground that the non-application of the exemption to them
would cause them some inconvenience.

Fifthly, petitioners contend that DO No. 182 violated their right to the speedy disposition of cases guaranteed by the
Constitution. They posit that there would be considerable delay in the resolution of their cases that would definitely be "a
flagrant transgression of petitioners’ constitutional rights to speedy disposition of their cases."20

We cannot favor their contention.

In The Ombudsman v. Jurado,21 the Court has clarified that although the Constitution guarantees the right to the speedy
disposition of cases, such speedy disposition is a flexible concept. To properly define that concept, the facts and
circumstances surrounding each case must be evaluated and taken into account. There occurs a violation of the right
to a speedy disposition of a case only when the proceedings are attended by vexatious, capricious, and oppressive
delays, or when unjustified postponements of the trial are sought and secured, or when, without cause or justifiable
motive, a long period of time is allowed to elapse without the party having his case tried.22 It is cogent to mention that a
mere mathematical reckoning of the time involved is not determinant of the concept.23

The consolidation of the cases against Delos Angeles, Jr., et al. was ordered obviously to obtain expeditious justice for
the parties with the least cost and vexation to them. Inasmuch as the cases filed involved similar or related questions to
be dealt with during the preliminary investigation, the Secretary of Justice rightly found the consolidation of the cases to
be the most feasible means of promoting the efficient use of public resources and of having a comprehensive
investigation of the cases.

On the other hand, we do not ignore the possibility that there would be more cases reaching the DOJ in addition to
those already brought by petitioners and other parties. Yet, any delays in petitioners’ cases occasioned by such other
and subsequent cases should not warrant the invalidation of DO No. 182. The Constitution prohibits only the delays that
are unreasonable, arbitrary and oppressive, and tend to render rights nugatory.24 In fine, we see neither undue delays,
nor any violation of the right of petitioners to the speedy disposition of their cases.

Sixthly, petitioners assert that the assailed issuances should cover only future cases against Delos Angeles, Jr., et al., not
those already being investigated. They maintain that DO No. 182 was issued in violation of the prohibition against passing
laws with retroactive effect.

Petitioners’ assertion is baseless.

As a general rule, laws shall have no retroactive effect. However, exceptions exist, and one such exception concerns a
law that is procedural in nature. The reason is that a remedial statute or a statute relating to remedies or modes of
procedure does not create new rights or take away vested rights but only operates in furtherance of the remedy or the
confirmation of already existing rights.25 A statute or rule regulating the procedure of the courts will be construed as
applicable to actions pending and undetermined at the time of its passage. All procedural laws are retroactive in that
sense and to that extent. The retroactive application is not violative of any right of a person who may feel adversely
affected, for, verily, no vested right generally attaches to or arises from procedural laws.

Finally, petitioners have averred but failed to establish that DO No. 182 constituted obstruction of justice. This ground of
the petition, being unsubstantiated, was unfounded.

Nonetheless, it is not amiss to reiterate that the authority of the Secretary of Justice to assume jurisdiction over matters
involving the investigation of crimes and the prosecution of offenders is fully sanctioned by law. Towards that end, the
Secretary of Justice exercises control and supervision over all the regional, provincial, and city prosecutors of the
country; has broad discretion in the discharge of the DOJ’s functions; and administers the DOJ and its adjunct offices
and agencies by promulgating rules and regulations to carry out their objectives, policies and functions.

Consequently, unless and until the Secretary of Justice acts beyond the bounds of his authority, or arbitrarily, or
whimsically, or oppressively, any person or entity who may feel to be thereby aggrieved or adversely affected should
have no right to call for the invalidation or nullification of the rules and regulations issued by, as well as other actions
taken by the Secretary of Justice.

WHEREFORE, the Court DISMISSES the omnibus petition for certiorari, prohibition, and mandamus for lack of merit.

Petitioners shall pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the court.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila
 THIRD DIVISION

G.R. No. L-66826 August 19, 1988

BANK OF THE PHILIPPINE ISLANDS, petitioner,

vs.
THE INTERMEDIATE APPELLATE COURT and ZSHORNACK respondents.

Pacis & Reyes Law Office for petitioner.

Ernesto T. Zshornack, Jr. for private respondent.

CORTES, J.:

The original parties to this case were Rizaldy T. Zshornack and the Commercial Bank and Trust Company of the Philippines
[hereafter referred to as "COMTRUST."] In 1980, the Bank of the Philippine Islands (hereafter referred to as BPI absorbed
COMTRUST through a corporate merger, and was substituted as party to the case.

Rizaldy Zshornack initiated proceedings on June 28,1976 by filing in the Court of First Instance of Rizal — Caloocan City a
complaint against COMTRUST alleging four causes of action. Except for the third cause of action, the CFI ruled in favor of
Zshornack. The bank appealed to the Intermediate Appellate Court which modified the CFI decision absolving the bank
from liability on the fourth cause of action. The pertinent portions of the judgment, as modified, read:

IN VIEW OF THE FOREGOING, the Court renders judgment as follows:

1. Ordering the defendant COMTRUST to restore to the dollar savings account of plaintiff (No. 25-4109)
the amount of U.S $1,000.00 as of October 27, 1975 to earn interest together with the remaining
balance of the said account at the rate fixed by the bank for dollar deposits under Central Bank
Circular 343;

2. Ordering defendant COMTRUST to return to the plaintiff the amount of U.S. $3,000.00 immediately
upon the finality of this decision, without interest for the reason that the said amount was merely held
in custody for safekeeping, but was not actually deposited with the defendant COMTRUST because
being cash currency, it cannot by law be deposited with plaintiffs dollar account and defendant's
only obligation is to return the same to plaintiff upon demand;

xxx xxx xxx

5. Ordering defendant COMTRUST to pay plaintiff in the amount of P8,000.00 as damages in the
concept of litigation expenses and attorney's fees suffered by plaintiff as a result of the failure of the
defendant bank to restore to his (plaintiffs) account the amount of U.S. $1,000.00 and to return to him
(plaintiff) the U.S. $3,000.00 cash left for safekeeping.

Costs against defendant COMTRUST.

SO ORDERED. [Rollo, pp. 47-48.]

Undaunted, the bank comes to this Court praying that it be totally absolved from any liability to Zshornack. The latter not
having appealed the Court of Appeals decision, the issues facing this Court are limited to the bank's liability with regard
to the first and second causes of action and its liability for damages.

1. We first consider the first cause of action, On the dates material to this case, Rizaldy Zshornack and his wife, Shirley
Gorospe, maintained in COMTRUST, Quezon City Branch, a dollar savings account and a peso current account.

On October 27, 1975, an application for a dollar draft was accomplished by Virgilio V. Garcia, Assistant Branch Manager
of COMTRUST Quezon City, payable to a certain Leovigilda D. Dizon in the amount of $1,000.00. In the application,
Garcia indicated that the amount was to be charged to Dollar Savings Acct. No. 25-4109, the savings account of the
Zshornacks; the charges for commission, documentary stamp tax and others totalling P17.46 were to be charged to
Current Acct. No. 210465-29, again, the current account of the Zshornacks. There was no indication of the name of the
purchaser of the dollar draft.

On the same date, October 27,1975, COMTRUST, under the signature of Virgilio V. Garcia, issued a check payable to the
order of Leovigilda D. Dizon in the sum of US $1,000 drawn on the Chase Manhattan Bank, New York, with an indication
that it was to be charged to Dollar Savings Acct. No. 25-4109.

When Zshornack noticed the withdrawal of US$1,000.00 from his account, he demanded an explanation from the bank.
In answer, COMTRUST claimed that the peso value of the withdrawal was given to Atty. Ernesto Zshornack, Jr., brother of
Rizaldy, on October 27, 1975 when he (Ernesto) encashed with COMTRUST a cashier's check for P8,450.00 issued by the
Manila Banking Corporation payable to Ernesto.

Upon consideration of the foregoing facts, this Court finds no reason to disturb the ruling of both the trial court and the
Appellate Court on the first cause of action. Petitioner must be held liable for the unauthorized withdrawal of US$1,000.00
from private respondent's dollar account.

In its desperate attempt to justify its act of withdrawing from its depositor's savings account, the bank has adopted
inconsistent theories. First, it still maintains that the peso value of the amount withdrawn was given to Atty. Ernesto
Zshornack, Jr. when the latter encashed the Manilabank Cashier's Check. At the same time, the bank claims that the
withdrawal was made pursuant to an agreement where Zshornack allegedly authorized the bank to withdraw from his
dollar savings account such amount which, when converted to pesos, would be needed to fund his peso current
account. If indeed the peso equivalent of the amount withdrawn from the dollar account was credited to the peso
current account, why did the bank still have to pay Ernesto?

At any rate, both explanations are unavailing. With regard to the first explanation, petitioner bank has not shown how
the transaction involving the cashier's check is related to the transaction involving the dollar draft in favor of Dizon
financed by the withdrawal from Rizaldy's dollar account. The two transactions appear entirely independent of each
other. Moreover, Ernesto Zshornack, Jr., possesses a personality distinct and separate from Rizaldy Zshornack. Payment
made to Ernesto cannot be considered payment to Rizaldy.

As to the second explanation, even if we assume that there was such an agreement, the evidence do not show that the
withdrawal was made pursuant to it. Instead, the record reveals that the amount withdrawn was used to finance a dollar
draft in favor of Leovigilda D. Dizon, and not to fund the current account of the Zshornacks. There is no proof whatsoever
that peso Current Account No. 210-465-29 was ever credited with the peso equivalent of the US$1,000.00 withdrawn on
October 27, 1975 from Dollar Savings Account No. 25-4109.

2. As for the second cause of action, the complaint filed with the trial court alleged that on December 8, 1975,
Zshornack entrusted to COMTRUST, thru Garcia, US $3,000.00 cash (popularly known as greenbacks) for safekeeping, and
that the agreement was embodied in a document, a copy of which was attached to and made part of the complaint.
The document reads:

Makati Cable Address:

Philippines "COMTRUST"

COMMERCIAL BANK AND TRUST COMPANY

of the Philippines

Quezon City Branch

D
e
c
e
m
b
e
 r
8
,
1
9
7
5

MR. RIZALDY T. ZSHORNACK

&/OR MRS SHIRLEY E. ZSHORNACK

Sir/Madam:

We acknowledged (sic) having received from you today the sum of US DOLLARS:
THREE THOUSAND ONLY (US$3,000.00) for safekeeping.

Receive
d by:

(Sgd.)
VIRGILIO
V.
GARCIA

It was also alleged in the complaint that despite demands, the bank refused to return the money.

In its answer, COMTRUST averred that the US$3,000 was credited to Zshornack's peso current account at prevailing
conversion rates.

It must be emphasized that COMTRUST did not deny specifically under oath the authenticity and due execution of the
above instrument.

During trial, it was established that on December 8, 1975 Zshornack indeed delivered to the bank US $3,000 for
safekeeping. When he requested the return of the money on May 10, 1976, COMTRUST explained that the sum was
disposed of in this manner: US$2,000.00 was sold on December 29, 1975 and the peso proceeds amounting to P14,920.00
were deposited to Zshornack's current account per deposit slip accomplished by Garcia; the remaining US$1,000.00 was
sold on February 3, 1976 and the peso proceeds amounting to P8,350.00 were deposited to his current account per
deposit slip also accomplished by Garcia.

Aside from asserting that the US$3,000.00 was properly credited to Zshornack's current account at prevailing conversion
rates, BPI now posits another ground to defeat private respondent's claim. It now argues that the contract embodied in
the document is the contract of depositum (as defined in Article 1962, New Civil Code), which banks do not enter into.
The bank alleges that Garcia exceeded his powers when he entered into the transaction. Hence, it is claimed, the bank
cannot be liable under the contract, and the obligation is purely personal to Garcia.

Before we go into the nature of the contract entered into, an important point which arises on the pleadings, must be
considered.

The second cause of action is based on a document purporting to be signed by COMTRUST, a copy of which document
was attached to the complaint. In short, the second cause of action was based on an actionable document. It was
therefore incumbent upon the bank to specifically deny under oath the due execution of the document, as prescribed
under Rule 8, Section 8, if it desired: (1) to question the authority of Garcia to bind the corporation; and (2) to deny its
capacity to enter into such contract. [See, E.B. Merchant v. International Banking Corporation, 6 Phil. 314 (1906).] No
sworn answer denying the due execution of the document in question, or questioning the authority of Garcia to bind the
bank, or denying the bank's capacity to enter into the contract, was ever filed. Hence, the bank is deemed to have
admitted not only Garcia's authority, but also the bank's power, to enter into the contract in question.

In the past, this Court had occasion to explain the reason behind this procedural requirement.
 The reason for the rule enunciated in the foregoing authorities will, we think, be readily appreciated. In
dealing with corporations the public at large is bound to rely to a large extent upon outward
appearances. If a man is found acting for a corporation with the external indicia of authority, any
person, not having notice of want of authority, may usually rely upon those appearances; and if it be
found that the directors had permitted the agent to exercise that authority and thereby held him out
as a person competent to bind the corporation, or had acquiesced in a contract and retained the
benefit supposed to have been conferred by it, the corporation will be bound, notwithstanding the
actual authority may never have been granted

... Whether a particular officer actually possesses the authority which he assumes to exercise is
frequently known to very few, and the proof of it usually is not readily accessible to the stranger who
deals with the corporation on the faith of the ostensible authority exercised by some of the corporate
officers. It is therefore reasonable, in a case where an officer of a corporation has made a contract in
its name, that the corporation should be required, if it denies his authority, to state such defense in its
answer. By this means the plaintiff is apprised of the fact that the agent's authority is contested; and
he is given an opportunity to adduce evidence showing either that the authority existed or that the
contract was ratified and approved. [Ramirez v. Orientalist Co. and Fernandez, 38 Phil. 634, 645- 646
(1918).]

Petitioner's argument must also be rejected for another reason. The practical effect of absolving a corporation from
liability every time an officer enters into a contract which is beyond corporate powers, even without the proper
allegation or proof that the corporation has not authorized nor ratified the officer's act, is to cast corporations in so
perfect a mold that transgressions and wrongs by such artificial beings become impossible [Bissell v. Michigan Southern
and N.I.R. Cos 22 N.Y 258 (1860).] "To say that a corporation has no right to do unauthorized acts is only to put forth a very
plain truism but to say that such bodies have no power or capacity to err is to impute to them an excellence which does
not belong to any created existence with which we are acquainted. The distinction between power and right is no more
to be lost sight of in respect to artificial than in respect to natural persons." [Ibid.]

Having determined that Garcia's act of entering into the contract binds the corporation, we now determine the correct
nature of the contract, and its legal consequences, including its enforceability.

The document which embodies the contract states that the US$3,000.00 was received by the bank for safekeeping. The
subsequent acts of the parties also show that the intent of the parties was really for the bank to safely keep the dollars
and to return it to Zshornack at a later time, Thus, Zshornack demanded the return of the money on May 10, 1976, or over
five months later.

The above arrangement is that contract defined under Article 1962, New Civil Code, which reads:

Art. 1962. A deposit is constituted from the moment a person receives a thing belonging to another,
with the obligation of safely keeping it and of returning the same. If the safekeeping of the thing
delivered is not the principal purpose of the contract, there is no deposit but some other contract.

Note that the object of the contract between Zshornack and COMTRUST was foreign exchange. Hence, the transaction
was covered by Central Bank Circular No. 20, Restrictions on Gold and Foreign Exchange Transactions, promulgated on
December 9, 1949, which was in force at the time the parties entered into the transaction involved in this case. The
circular provides:

xxx xxx xxx

2. Transactions in the assets described below and all dealings in them of whatever nature, including,
where applicable their exportation and importation, shall NOT be effected, except with respect to
deposit accounts included in sub-paragraphs (b) and (c) of this paragraph, when such deposit
accounts are owned by and in the name of, banks.

(a) Any and all assets, provided they are held through, in, or with banks or banking
institutions located in the Philippines, including money, checks, drafts, bullions bank
drafts, deposit accounts (demand, time and savings), all debts, indebtedness or
obligations, financial brokers and investment houses, notes, debentures, stocks,
bonds, coupons, bank acceptances, mortgages, pledges, liens or other rights in
the nature of security, expressed in foreign currencies, or if payable abroad,
irrespective of the currency in which they are expressed, and belonging to any
 person, firm, partnership, association, branch office, agency, company or other
unincorporated body or corporation residing or located within the Philippines;

(b) Any and all assets of the kinds included and/or described in subparagraph (a)
above, whether or not held through, in, or with banks or banking institutions, and
existent within the Philippines, which belong to any person, firm, partnership,
association, branch office, agency, company or other unincorporated body or
corporation not residing or located within the Philippines;

(c) Any and all assets existent within the Philippines including money, checks, drafts,
bullions, bank drafts, all debts, indebtedness or obligations, financial securities
commonly dealt in by bankers, brokers and investment houses, notes, debentures,
stock, bonds, coupons, bank acceptances, mortgages, pledges, liens or other
rights in the nature of security expressed in foreign currencies, or if payable abroad,
irrespective of the currency in which they are expressed, and belonging to any
person, firm, partnership, association, branch office, agency, company or other
unincorporated body or corporation residing or located within the Philippines.

xxx xxx xxx

4. (a) All receipts of foreign exchange shall be sold daily to the Central Bank by those authorized to
deal in foreign exchange. All receipts of foreign exchange by any person, firm, partnership,
association, branch office, agency, company or other unincorporated body or corporation shall be
sold to the authorized agents of the Central Bank by the recipients within one business day following
the receipt of such foreign exchange. Any person, firm, partnership, association, branch office,
agency, company or other unincorporated body or corporation, residing or located within the
Philippines, who acquires on and after the date of this Circular foreign exchange shall not, unless
licensed by the Central Bank, dispose of such foreign exchange in whole or in part, nor receive less
than its full value, nor delay taking ownership thereof except as such delay is customary; Provided,
further, That within one day upon taking ownership, or receiving payment, of foreign exchange the
aforementioned persons and entities shall sell such foreign exchange to designated agents of the
Central Bank.

xxx xxx xxx

8. Strict observance of the provisions of this Circular is enjoined; and any person, firm or corporation,
foreign or domestic, who being bound to the observance thereof, or of such other rules, regulations or
directives as may hereafter be issued in implementation of this Circular, shall fail or refuse to comply
with, or abide by, or shall violate the same, shall be subject to the penal sanctions provided in the
Central Bank Act.

xxx xxx xxx

Paragraph 4 (a) above was modified by Section 6 of Central Bank Circular No. 281, Regulations on Foreign Exchange,
promulgated on November 26, 1969 by limiting its coverage to Philippine residents only. Section 6 provides:

SEC. 6. All receipts of foreign exchange by any resident person, firm, company or corporation shall be
sold to authorized agents of the Central Bank by the recipients within one business day following the
receipt of such foreign exchange. Any resident person, firm, company or corporation residing or
located within the Philippines, who acquires foreign exchange shall not, unless authorized by the
Central Bank, dispose of such foreign exchange in whole or in part, nor receive less than its full value,
nor delay taking ownership thereof except as such delay is customary; Provided, That, within one
business day upon taking ownership or receiving payment of foreign exchange the aforementioned
persons and entities shall sell such foreign exchange to the authorized agents of the Central Bank.

As earlier stated, the document and the subsequent acts of the parties show that they intended the bank to safekeep
the foreign exchange, and return it later to Zshornack, who alleged in his complaint that he is a Philippine resident. The
parties did not intended to sell the US dollars to the Central Bank within one business day from receipt. Otherwise, the
contract of depositum would never have been entered into at all.
Since the mere safekeeping of the greenbacks, without selling them to the Central Bank within one business day from
receipt, is a transaction which is not authorized by CB Circular No. 20, it must be considered as one which falls under the
general class of prohibited transactions. Hence, pursuant to Article 5 of the Civil Code, it is void, having been executed
against the provisions of a mandatory/prohibitory law. More importantly, it affords neither of the parties a cause of
action against the other. "When the nullity proceeds from the illegality of the cause or object of the contract, and the
act constitutes a criminal offense, both parties being in pari delicto, they shall have no cause of action against each
other. . ." [Art. 1411, New Civil Code.] The only remedy is one on behalf of the State to prosecute the parties for violating
the law.

We thus rule that Zshornack cannot recover under the second cause of action.

3. Lastly, we find the P8,000.00 awarded by the courts a quo as damages in the concept of litigation expenses and
attorney's fees to be reasonable. The award is sustained.

WHEREFORE, the decision appealed from is hereby MODIFIED. Petitioner is ordered to restore to the dollar savings
account of private respondent the amount of US$1,000.00 as of October 27, 1975 to earn interest at the rate fixed by the
bank for dollar savings deposits. Petitioner is further ordered to pay private respondent the amount of P8,000.00 as
damages. The other causes of action of private respondent are ordered dismissed.

SO ORDERED.

Gutierrez, Jr. and Bidin, JJ., concur.

Fernan, C.J., took no part

Feliciano, J., concur in the result.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE BORJA, as administrator,
CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa
Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja, appellant. .

G.R. No L-28568 August 18, 1972

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE BORJA, special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.

G.R. No. L-28611 August 18, 1972

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late Francisco de Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa Tangco, defendant-appellant.

L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.

Quiogue & Quiogue for appellee Matilde de Borja.

Andres Matias for appellee Cayetano de Borja.

Sevilla & Aquino for appellant.

L-28568

Sevilla & Aquino for special administratrix-appellee.

Pelaez, Jalandoni & Jamir for oppositor-appellant.

L-28611

Sevilla & Aquino for plaintiff-appellee.

Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.

REYES, J.B.L., J.:p

Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de Borja, special administratrix of
the testate estate of Francisco de Borja,1 from the approval of a compromise agreement by the Court of First Instance of
Rizal, Branch I, in its Special Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de Borja,
Administrator".

Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same compromise agreement by
the Court of First Instance of Nueva Ecija, Branch II, in its Special Proceeding No. 832, entitled, "Testate Estate of Francisco
de Borja, Tasiana O. Vda. de de Borja, Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the Court of First Instance of Rizal,
Branch X, in its Civil Case No. 7452, declaring the Hacienda Jalajala Poblacion, which is the main object of the aforesaid
compromise agreement, as the separate and exclusive property of the late Francisco de Borja and not a conjugal asset
of the community with his first wife, Josefa Tangco, and that said hacienda pertains exclusively to his testate estate,
which is under administrator in Special Proceeding No. 832 of the Court of First Instance of Nueva Ecija, Branch II.

It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for
the probate of her will which was docketed as Special Proceeding No. R-7866 of the Court of First Instance of Rizal,
Branch I. The will was probated on 2 April 1941. In 1946, Francisco de Borja was appointed executor and administrator: in
1952, their son, Jose de Borja, was appointed co-administrator. When Francisco died, on 14 April 1954, Jose became the
sole administrator of the testate estate of his mother, Josefa Tangco. While a widower Francisco de Borja allegedly took
unto himself a second wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the
Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix. The validity of Tasiana's
marriage to Francisco was questioned in said proceeding.

The relationship between the children of the first marriage and Tasiana Ongsingco has been plagued with several court
suits and counter-suits; including the three cases at bar, some eighteen (18) cases remain pending determination in the
courts. The testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to
put an end to all these litigations, a compromise agreement was entered into on 12 October 1963,2 by and between
"[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of
the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of the
compromise agreement are as follows:

AGREEMENT
 THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco,

AND

The heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda.
de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr.

WITNESSETH

THAT it is the mutual desire of all the parties herein terminate and settle, with finality, the various court
litigations, controversies, claims, counterclaims, etc., between them in connection with the
administration, settlement, partition, adjudication and distribution of the assets as well as liabilities of
the estates of Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja.

THAT with this end in view, the parties herein have agreed voluntarily and without any reservations to
enter into and execute this agreement under the following terms and conditions:

1. That the parties agree to sell the Poblacion portion of the Jalajala properties situated in Jalajala,
Rizal, presently under administration in the Testate Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal),
more specifically described as follows:

Linda al Norte con el Rio Puwang que la separa de la jurisdiccion del Municipio de
Pililla de la Provincia de Rizal, y con el pico del Monte Zambrano; al Oeste con
Laguna de Bay; por el Sur con los herederos de Marcelo de Borja; y por el Este con
los terrenos de la Familia Maronilla

with a segregated area of approximately 1,313 hectares at the amount of P0.30 per square meter.

2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco Vda. de de Borja the
total amount of Eight Hundred Thousand Pesos (P800,000) Philippine Currency, in cash, which
represent P200,000 as his share in the payment and P600,000 as pro-rata shares of the heirs Crisanto,
Cayetano and Matilde, all surnamed de Borja and this shall be considered as full and complete
payment and settlement of her hereditary share in the estate of the late Francisco de Borja as well as
the estate of Josefa Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc. No. 7866-Rizal, respectively,
and to any properties bequeathed or devised in her favor by the late Francisco de Borja by Last Will
and Testament or by Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for
consideration or otherwise. The funds for this payment shall be taken from and shall depend upon the
receipt of full payment of the proceeds of the sale of Jalajala, "Poblacion."

3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that particular obligation
incurred by the late Francisco de Borja in favor of the Rehabilitation Finance Corporation, now
Development Bank of the Philippines, amounting to approximately P30,000.00 and also assumes
payment of her 1/5 share of the Estate and Inheritance taxes on the Estate of the late Francisco de
Borja or the sum of P3,500.00, more or less, which shall be deducted by the buyer of Jalajala,
"Poblacion" from the payment to be made to Tasiana Ongsingco Vda. de Borja under paragraph 2 of
this Agreement and paid directly to the Development Bank of the Philippines and the heirs-children of
Francisco de Borja.

4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay directly to Tasiana
Ongsingco Vda. de de Borja the balance of the payment due her under paragraph 2 of this
Agreement (approximately P766,500.00) and issue in the name of Tasiana Ongsingco Vda. de de
Borja, corresponding certified checks/treasury warrants, who, in turn, will issue the corresponding
receipt to Jose de Borja.

5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja, Jose de Borja

personally and as administrator of the Testate Estate of Josefa Tangco, and Tasiana Ongsingco Vda.
de de Borja, for themselves and for their heirs, successors, executors, administrators, and assigns,
 hereby forever mutually renounce, withdraw, waive, remise, release and discharge any and all
manner of action or actions, cause or causes of action, suits, debts, sum or sums of money, accounts,
damages, claims and demands whatsoever, in law or in equity, which they ever had, or now have or
may have against each other, more specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and
Sp. Proc. No. 832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No. 7452-CFI, Rizal,
as well as the case filed against Manuel Quijal for perjury with the Provincial Fiscal of Rizal, the
intention being to completely, absolutely and finally release each other, their heirs, successors, and
assigns, from any and all liability, arising wholly or partially, directly or indirectly, from the
administration, settlement, and distribution of the assets as well as liabilities of the estates of Francisco
de Borja and Josefa Tangco, first spouse of Francisco de Borja, and lastly, Tasiana Ongsingco Vda. de
de Borja expressly and specifically renounce absolutely her rights as heir over any hereditary share in
the estate of Francisco de Borja.

6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under paragraph 4 hereof,
shall deliver to the heir Jose de Borja all the papers, titles and documents belonging to Francisco de
Borja which are in her possession and said heir Jose de Borja shall issue in turn the corresponding
receive thereof.

7. That this agreement shall take effect only upon the fulfillment of the sale of the properties
mentioned under paragraph 1 of this agreement and upon receipt of the total and full payment of
the proceeds of the sale of the Jalajala property "Poblacion", otherwise, the non-fulfillment of the said
sale will render this instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER.

IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the City of Manila, Philippines,
the 12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First
Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the Court of First Instance of Nueva
Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court
approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. Special
administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court
G.R. case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case No. L-28568) by
the Court of First Instance of Nueva Ecija.

The genuineness and due execution of the compromised agreement of 12 October 1963 is not disputed, but its validity
is, nevertheless, attacked by Tasiana Ongsingco on the ground that: (1) the heirs cannot enter into such kind of
agreement without first probating the will of Francisco de Borja; (2) that the same involves a compromise on the validity
of the marriage between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to
have force and effect.

In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the Probate Court of Nueva Ecija
rely on this Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the Court's majority held the view that the
presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of
intestacy when the decedent left a will, is against the law and public policy. It is likewise pointed out by appellant
Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly conditions the validity of an extrajudicial
settlement of a decedent's estate by agreement between heirs, upon the facts that "(if) the decedent left no will and no
debts, and the heirs are all of age, or the minors are represented by their judicial and legal representatives ..." The will of
Francisco de Borja having been submitted to the Nueva Ecija Court and still pending probate when the 1963 agreement
was made, those circumstances, it is argued, bar the validity of the agreement.

Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja stresses that at the time it was
entered into, on 12 October 1963, the governing provision was Section 1, Rule 74 of the original Rules of Court of 1940,
which allowed the extrajudicial settlement of the estate of a deceased person regardless of whether he left a will or not.
He also relies on the dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was expressed the
view that if the parties have already divided the estate in accordance with a decedent's will, the probate of the will is a
useless ceremony; and if they have divided the estate in a different manner, the probate of the will is worse than useless.

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is apparent from an examination of
the terms of the agreement between Jose de Borja and Tasiana Ongsingco. Paragraph 2 of said agreement specifically
stipulates that the sum of P800,000 payable to Tasiana Ongsingco —
 shall be considered as full — complete payment — settlement of her hereditary share in the estate of
the late Francisco de Borja as well as the estate of Josefa Tangco, ... and to any properties
bequeathed or devised in her favor by the late Francisco de Borja by Last Will and Testament or by
Donation Inter Vivos or Mortis Causa or purportedly conveyed to her for consideration or otherwise.

This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the cases at bar. There
was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate
of his will. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her
individual share and interest, actual or eventual in the estate of Francisco de Borja and Josefa Tangco. There is no
stipulation as to any other claimant, creditor or legatee. And as a hereditary share in a decedent's estate is transmitted
or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the
Philippines, Art. 777)3 there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if the actual extent of such share is not determined until the
subsequent liquidation of the estate.4 Of course, the effect of such alienation is to be deemed limited to what is
ultimately adjudicated to the vendor heir. However, the aleatory character of the contract does not affect the validity
of the transaction; neither does the coetaneous agreement that the numerous litigations between the parties (the
approving order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered settled and
should be dismissed, although such stipulation, as noted by the Rizal Court, gives the contract the character of a
compromise that the law favors, for obvious reasons, if only because it serves to avoid a multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja, Tasiana Ongsingco was
his compulsory heir under article 995 et seq. of the present Civil Code. Wherefore, barring unworthiness or valid
disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament and would
exist even if such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as established in
the Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja.

Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse
of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was
binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the
Court to enter into the same. The only difference between an extrajudicial compromise and one that is submitted and
approved by the Court, is that the latter can be enforced by execution proceedings. Art. 2037 of the Civil Code is
explicit on the point:

8. Art. 2037. A compromise has upon the parties the effect and authority of res judicata; but there shall
be no execution except in compliance with a judicial compromise.

It is argued by Tasiana Ongsingco that while the agreement Annex A expressed no definite period for
its performance, the same was intended to have a resolutory period of 60 days for its effectiveness. In
support of such contention, it is averred that such a limit was expressly stipulated in an agreement in
similar terms entered into by said Ongsingco with the brothers and sister of Jose de Borja, to wit,
Crisanto, Matilde and Cayetano, all surnamed de Borja, except that the consideration was fixed at
P600,000 (Opposition, Annex/Rec. of Appeal, L-28040, pp. 39- 46) and which contained the following
clause:

III. That this agreement shall take effect only upon the consummation of the sale of the property
mentioned herein and upon receipt of the total and full payment of the proceeds of the sale by the
herein owner heirs-children of Francisco de Borja, namely, Crisanto, Cayetano and Matilde, all
surnamed de Borja; Provided that if no sale of the said property mentioned herein is consummated, or
the non-receipt of the purchase price thereof by the said owners within the period of sixty (60) days
from the date hereof, this agreement will become null and void and of no further effect.

Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party to this particular contract
(Annex 1), and that the same appears not to have been finalized, since it bears no date, the day being left blank "this —
day of October 1963"; and while signed by the parties, it was not notarized, although plainly intended to be so done,
since it carries a proposed notarial ratification clause. Furthermore, the compromise contract with Jose de Borja (Annex
A), provides in its par. 2 heretofore transcribed that of the total consideration of P800, 000 to be paid to Ongsingco,
P600,000 represent the "prorata share of the heirs Crisanto, Cayetano and Matilde all surnamed de Borja" which
corresponds to the consideration of P600,000 recited in Annex 1, and that circumstance is proof that the duly notarized
contract entered into wit Jose de Borja under date 12 October 1963 (Annex A), was designed to absorb and supersede
the separate unformalize agreement with the other three Borja heirs. Hence, the 60 days resolutory term in the contract
with the latter (Annex 1) not being repeated in Annex A, can not apply to the formal compromise with Jose de Borja. It is
moreover manifest that the stipulation that the sale of the Hacienda de Jalajala was to be made within sixty days from
the date of the agreement with Jose de Borja's co-heirs (Annex 1) was plainly omitted in Annex A as improper and
ineffective, since the Hacienda de Jalajala (Poblacion) that was to be sold to raise the P800,000 to be paid to
Ongsingco for her share formed part of the estate of Francisco de Borja and could not be sold until authorized by the
Probate Court. The Court of First Instance of Rizal so understood it, and in approving the compromise it fixed a term of
120 days counted from the finality of the order now under appeal, for the carrying out by the parties for the terms of the
contract.

This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the compromise with Jose
de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate of Josefa Tangco pending settlement in
the Rizal Court, but she was an heir of Francisco de Borja, whose estate was the object of Special Proceeding No. 832 of
the Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was
only her eventual share in the estate of her late husband, not the estate itself; and as already shown, that eventual share
she owned from the time of Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of her
undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose. Such alienation is expressly
recognized and provided for by article 1088 of the present Civil Code:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the
sale, provided they do so within the period of one month from the time they were notified in writing of
the sale of the vendor.

If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could not be forbidden.

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void because it amounts to a
compromise as to her status and marriage with the late Francisco de Borja. The point is without merit, for the very
opening paragraph of the agreement with Jose de Borja (Annex "A") describes her as "the heir and surviving spouse of
Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite admission of
her civil status. There is nothing in the text of the agreement that would show that this recognition of Ongsingco's status
as the surviving spouse of Francisco de Borja was only made in consideration of the cession of her hereditary rights.

It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva Ecija in its order of 21
September 1964, in Special Proceedings No. 832 (Amended Record on Appeal in L-28568, page 157), that the
compromise agreement of 13 October 1963 (Annex "A") had been abandoned, as shown by the fact that, after its
execution, the Court of First Instance of Nueva Ecija, in its order of 21 September 1964, had declared that "no amicable
settlement had been arrived at by the parties", and that Jose de Borja himself, in a motion of 17 June 1964, had stated
that the proposed amicable settlement "had failed to materialize".

It is difficult to believe, however, that the amicable settlement referred to in the order and motion above-mentioned was
the compromise agreement of 13 October 1963, which already had been formally signed and executed by the parties
and duly notarized. What the record discloses is that some time after its formalization, Ongsingco had unilaterally
attempted to back out from the compromise agreement, pleading various reasons restated in the opposition to the
Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that the same was invalid because of the lapse of
the allegedly intended resolutory period of 60 days and because the contract was not preceded by the probate of
Francisco de Borja's will, as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a compromise
affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of which objections have been already
discussed. It was natural that in view of the widow's attitude, Jose de Borja should attempt to reach a new settlement or
novatory agreement before seeking judicial sanction and enforcement of Annex "A", since the latter step might
ultimately entail a longer delay in attaining final remedy. That the attempt to reach another settlement failed is apparent
from the letter of Ongsingco's counsel to Jose de Borja quoted in pages 35-36 of the brief for appellant Ongsingco in
G.R. No. 28040; and it is more than probable that the order of 21 September 1964 and the motion of 17 June 1964
referred to the failure of the parties' quest for a more satisfactory compromise. But the inability to reach a novatory
accord can not invalidate the original compromise (Annex "A") and justifies the act of Jose de Borja in finally seeking a
court order for its approval and enforcement from the Court of First Instance of Rizal, which, as heretofore described,
decreed that the agreement be ultimately performed within 120 days from the finality of the order, now under appeal.

We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its order should be upheld,
while the contrary resolution of the Court of First Instance of Nueva Ecija should be, and is, reversed.

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected her unfavorably, in that
while the purchasing power of the agreed price of P800,000 has diminished, the value of the Jalajala property has
increased. But the fact is that her delay in receiving the payment of the agreed price for her hereditary interest was
primarily due to her attempts to nullify the agreement (Annex "A") she had formally entered into with the advice of her
counsel, Attorney Panaguiton. And as to the devaluation de facto of our currency, what We said in Dizon Rivera vs.
Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates would never be settled if there were to be a revaluation with
every subsequent fluctuation in the values of currency and properties of the estate", is particularly opposite in the
present case.

Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala (Poblacion), concededly acquired
by Francisco de Borja during his marriage to his first wife, Josefa Tangco, is the husband's private property (as contended
by his second spouse, Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial) partnership with Josefa
Tangco. The Court of First Instance of Rizal (Judge Herminio Mariano, presiding) declared that there was adequate
evidence to overcome the presumption in favor of its conjugal character established by Article 160 of the Civil Code.

We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja has become moot and
academic, in view of the conclusion reached by this Court in the two preceding cases (G.R. No. L-28568), upholding as
valid the cession of Tasiana Ongsingco's eventual share in the estate of her late husband, Francisco de Borja, for the sum
of P800,000 with the accompanying reciprocal quit-claims between the parties. But as the question may affect the rights
of possible creditors and legatees, its resolution is still imperative.

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally acquired jointly by Francisco
de Borja, Bernardo de Borja and Marcelo de Borja and their title thereto was duly registered in their names as co-owners
in Land Registration Case No. 528 of the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465).
Subsequently, in 1931, the Hacienda was partitioned among the co-owners: the Punta section went to Marcelo de Borja;
the Bagombong section to Bernardo de Borja, and the part in Jalajala proper (Poblacion) corresponded to Francisco de
Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).

The lot allotted to Francisco was described as —

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena Romero; S. Heirs of
Marcelo de Borja O. Laguna de Bay; containing an area of 13,488,870 sq. m. more or less, assessed at
P297,410. (Record on Appeal, pages 7 and 105)

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of Francisco de Borja, instituted a
complaint in the Court of First Instance of Rizal (Civil Case No. 7452) against Jose de Borja, in his capacity as
Administrator of Josefa Tangco (Francisco de Borja's first wife), seeking to have the Hacienda above described declared
exclusive private property of Francisco, while in his answer defendant (now appellant) Jose de Borja claimed that it was
conjugal property of his parents (Francisco de Borja and Josefa Tangco), conformably to the presumption established by
Article 160 of the Philippine Civil Code (reproducing Article 1407 of the Civil Code of 1889), to the effect that:

Art. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be
proved that it pertains exclusively to the husband or to the wife.

Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and exemplary, as well as for
attorney's fees.

After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the plaintiff had adduced sufficient
evidence to rebut the presumption, and declared the Hacienda de Jalajala (Poblacion) to be the exclusive private
property of the late Francisco de Borja, and his Administratrix, Tasiana Ongsingco Vda. de Borja, to be entitled to its
possession. Defendant Jose de Borja then appealed to this Court.

The evidence reveals, and the appealed order admits, that the character of the Hacienda in question as owned by the
conjugal partnership De Borja-Tangco was solemnly admitted by the late Francisco de Borja no less than two times: first,
in the Reamended Inventory that, as executor of the estate of his deceased wife Josefa Tangco, he filed in the Special
Proceedings No. 7866 of the Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"); and again, in the Reamended
Accounting of the same date, also filed in the proceedings aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda.
de Borja, herself, as oppositor in the Estate of Josefa Tangco, submitted therein an inventory dated 7 September 1954
(Exhibit "3") listing the Jalajala property among the "Conjugal Properties of the Spouses Francisco de Borja and Josefa
Tangco". And once more, Tasiana Ongsingco, as administratrix of the Estate of Francisco de Borja, in Special
Proceedings No. 832 of the Court of First Instance of Nueva Ecija, submitted therein in December, 1955, an inventory
wherein she listed the Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco de
Borja and Josefa Tangco, which are in the possession of the Administrator of the Testate Estate of the Deceased Josefa
Tangco in Special Proceedings No. 7866 of the Court of First Instance of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact that they are plain admissions against interest made by
both Francisco de Borja and the Administratrix of his estate, in the course of judicial proceedings in the Rizal and Nueva
Ecija Courts, supporting the legal presumption in favor of the conjugal community, the Court below declared that the
Hacienda de Jalajala (Poblacion) was not conjugal property, but the private exclusive property of the late Francisco de
Borja. It did so on the strength of the following evidences: (a) the sworn statement by Francis de Borja on 6 August 1951
(Exhibit "F") that —

He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4 parte, 337 hectareas)
adjunto a mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal).

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda had been bought at a
foreclosure sale for P40,100.00, of which amount P25,100 was contributed by Bernardo de Borja and P15,000. by Marcelo
de Borja; that upon receipt of a subsequent demand from the provincial treasurer for realty taxes the sum of P17,000,
Marcelo told his brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-owner, and upon Bernardo's
assent to the proposal, Marcelo issue a check for P17,000.00 to pay the back taxes and said that the amount would
represent Francisco's contribution in the purchase of the Hacienda. The witness further testified that —

Marcelo de Borja said that that money was entrusted to him by Francisco de Borja when he was still a
bachelor and which he derived from his business transactions. (Hearing, 2 February 1965, t.s.n., pages
13-15) (Emphasis supplied)

The Court below, reasoning that not only Francisco's sworn statement overweighed the admissions in the inventories
relied upon by defendant-appellant Jose de Borja since probate courts can not finally determine questions of ownership
of inventoried property, but that the testimony of Gregorio de Borja showed that Francisco de Borja acquired his share of
the original Hacienda with his private funds, for which reason that share can not be regarded as conjugal partnership
property, but as exclusive property of the buyer, pursuant to Article 1396(4) of Civil Code of 1889 and Article 148(4) of the
Civil Code of the Philippines.

The following shall be the exclusive property of each spouse:

xxx xxx xxx

(4) That which is purchased with exclusive money of the wife or of the husband.

We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio de Borja's testimony as to
the source of the money paid by Francisco for his share was plain hearsay, hence inadmissible and of no probative
value, since he was merely repeating what Marcelo de Borja had told him (Gregorio). There is no way of ascertaining
the truth of the statement, since both Marcelo and Francisco de Borja were already dead when Gregorio testified. In
addition, the statement itself is improbable, since there was no need or occasion for Marcelo de Borja to explain to
Gregorio how and when Francisco de Borja had earned the P17,000.00 entrusted to Marcelo. A ring of artificiality is
clearly discernible in this portion of Gregorio's testimony.

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14) does not clearly demonstrate
that the "mi terreno personal y exclusivo (Poblacion de Jalajala, Rizal) " refers precisely to the Hacienda in question. The
inventories (Exhibits 3 and 4) disclose that there were two real properties in Jalajala owned by Francisco de Borja, one of
72.038 sq. m., assessed at P44,600, and a much bigger one of 1,357.260.70 sq. m., which is evidently the Hacienda de
Jalajala (Poblacion). To which of these lands did the affidavit of Francisco de Borja (Exhibit "F") refer to? In addition,
Francisco's characterization of the land as "mi terreno personal y exclusivo" is plainly self-serving, and not admissible in
the absence of cross examination.

It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4" and "7") are not conclusive on
the conjugal character of the property in question; but as already noted, they are clear admissions against the
pecuniary interest of the declarants, Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as such of
much greater probative weight than the self-serving statement of Francisco (Exhibit "F"). Plainly, the legal presumption in
favor of the conjugal character of the Hacienda de Jalajala (Poblacion) now in dispute has not been rebutted but
actually confirmed by proof. Hence, the appealed order should be reversed and the Hacienda de Jalajala (Poblacion)
declared property of the conjugal partnership of Francisco de Borja and Josefa Tangco.

No error having been assigned against the ruling of the lower court that claims for damages should be ventilated in the
corresponding special proceedings for the settlement of the estates of the deceased, the same requires no pro
announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in Case No. L-28040 is hereby
affirmed; while those involved in Cases Nos. L-28568 and L-28611 are reversed and set aside. Costs against the appellant
Tasiana Ongsingco Vda. de Borja in all three (3) cases.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Fernando, J., took no part.

Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION

ASIAN CATHAY FINANCE AND LEASING CORPORATION, G.R. No. 186550

Petitioner,
Present:

- versus - CARPIO, J.,

Chairperson,
NACHURA,
PERALTA,
SPOUSES CESARIO GRAVADOR and NORMA DE VERA and ABAD, and
SPOUSES EMMA CONCEPCION G. DUMIGPI and FEDERICO L. MENDOZA, JJ.
DUMIGPI,
Respondents. Promulgated:
July 5, 2010

x---------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

On appeal is the June 10, 2008 Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 83197, setting aside the April 5,

2004 decision[2] of the Regional Trial Court (RTC), Branch 9, Bulacan, as well as its subsequent Resolution[3] dated February

11, 2009, denying petitioners motion for reconsideration.

On October 22, 1999, petitioner Asian Cathay Finance and Leasing Corporation (ACFLC) extended a loan of Eight

Hundred Thousand Pesos (P800,000.00)[4] to respondent Cesario Gravador, with respondents Norma de Vera and Emma

Concepcion Dumigpi as co-makers. The loan was payable in sixty (60) monthly installments of P24,400.00 each. To secure

the loan, respondent Cesario executed a real estate mortgage[5] over his property in Sta. Maria, Bulacan, covered by

Transfer Certificate of Title No. T-29234.[6]

Respondents paid the initial installment due in November 1999. However, they were unable to pay the subsequent

ones. Consequently, on February 1, 2000, respondents received a letter demanding payment of P1,871,480.00 within five
(5) days from receipt thereof. Respondents requested for an additional period to settle their account, but ACFLC denied

the request. Petitioner filed a petition for extrajudicial foreclosure of mortgage with the Office of the Deputy Sheriff of

Malolos, Bulacan.

On April 7, 2000, respondents filed a suit for annulment of real estate mortgage and promissory note with

damages and prayer for issuance of a temporary restraining order (TRO) and writ of preliminary injunction. Respondents

claimed that the real estate mortgage is null and void. They pointed out that the mortgage does not make reference to

the promissory note dated October 22, 1999. The promissory note does not specify the maturity date of the loan, the

interest rate, and the mode of payment; and it illegally imposed liquidated damages. The real estate mortgage, on the

other hand, contains a provision on the waiver of the mortgagors right of redemption, a provision that is contrary to law

and public policy. Respondents added that ACFLC violated Republic Act No. 3765, or the Truth in Lending Act, in the

disclosure statement that should be issued to the borrower. Respondents, thus, claimed that ACFLCs petition for foreclosure

lacked factual and legal basis, and prayed that the promissory note, real estate mortgage, and any certificate of sale

that might be issued in connection with ACFLCs petition for extrajudicial foreclosure be declared null and void. In the

alternative, respondents prayed that the court fix their obligation at P800,000.00 if the mortgage could not be annulled,

and declare as null and void the provisions on the waiver of mortgagors right of redemption and imposition of the

liquidated damages. Respondents further prayed for moral and exemplary damages, as well as attorneys fees, and for

the issuance of a TRO to enjoin ACFLC from foreclosing their property.

On April 12, 2000, the RTC issued an Order,[7] denying respondents application for TRO, as the acts sought to be

enjoined were already fait accompli.

On May 12, 2000, ACFLC filed its Answer, denying the material allegations in the complaint and averring failure

to state a cause of action and lack of cause of action, as defenses. ACFLC claimed that it was merely exercising its right

as mortgagor; hence, it prayed for the dismissal of the complaint.

After trial, the RTC rendered a decision, dismissing the complaint for lack of cause of action. Sustaining the validity

of the promissory note and the real estate mortgage, the RTC held that respondents are well-educated individuals who

could not feign naivet in the execution of the loan documents. It, therefore, rejected respondents claim that ACFLC

deceived them into signing the promissory note, disclosure statement, and deed of real estate mortgage. The RTC further

held that the alleged defects in the promissory note and in the deed of real estate mortgage are too insubstantial to

warrant the nullification of the mortgage. It added that a promissory note is not one of the essential elements of a

mortgage; thus, reference to a promissory note is neither indispensable nor imperative for the validity of the mortgage. The

RTC also upheld the interest rate and the penalty charge imposed by ACFLC, and the waiver of respondents right of

redemption provided in the deed of real estate mortgage.

 The RTC disposed thus:

WHEREFORE, on the basis of the evidence on record and the laws/jurisprudence applicable
thereto, judgment is hereby rendered DISMISSING the complaint in the above-entitled case for want of
cause of action as well as the counterclaim of [petitioner] Asian Cathay Finance & Leasing Corporation
for moral and exemplary damages and attorneys fees for abject lack of proof to justify the same.

SO ORDERED.[8]

Aggrieved, respondents appealed to the CA. On June 10, 2008, the CA rendered the assailed Decision, reversing

the RTC. It held that the amount of P1,871,480.00 demanded by ACFLC from respondents is unconscionable and excessive.

Thus, it declared respondents principal loan to be P800,000.00, and fixed the interest rate at 12% per annum and reduced

the penalty charge to 1% per month. It explained that ACFLC could not insist on the interest rate provided on the note

because it failed to provide respondents with the disclosure statement prior to the consummation of the loan transaction.

Finally, the CA invalidated the waiver of respondents right of redemption for reasons of public policy. Thus, the CA ordered:

WHEREFORE, premises considered, the appealed decision is REVERSED AND SET

ASIDE. Judgment is hereby rendered as follows:

1) Affirming the amount of the principal loan under the REM and Disclosure Statement both
dated October 22, 1999 to be P800,000.00, subject to:

a. 1% interest per month (12% per annum) on the principal from November 23, 1999
until the date of the foreclosure sale, less P24,000.00 paid by [respondents] as first month
amortization[;]

b. 1% penalty charge per month on the principal from December 23, 1999 until the date of
the foreclosure sale.

2) Declaring par. 14 of the REM as null and void by reason of public policy, and granting
mortgagors a period of one year from the finality of this Decision within which to redeem the subject
property by paying the redemption price as computed under paragraph 1 hereof, plus one percent
(1%) interest thereon from the time of foreclosure up to the time of the actual redemption pursuant to
Section 28, Rule 39 of the 1997 Rules on Civil Procedure.

The claim of the [respondents] for moral and exemplary damages and attorneys fees is
dismissed for lack of merit.

SO ORDERED.[9]

ACFLC filed a motion for reconsideration, but the CA denied it on February 11, 2009.

ACFLC is now before us, faulting the CA for reversing the dismissal of respondents complaint. It points out that respondents

are well-educated persons who are familiar with the execution of loan documents. Thus, they cannot be deceived into

signing a document containing provisions that they are not amenable to. ACFLC ascribes error on the part of the CA for

invalidating the interest rates imposed on respondents loan, and the waiver of the right of redemption.

The appeal lacks merit.

 It is true that parties to a loan agreement have a wide latitude to stipulate on any interest rate in view of Central

Bank Circular No. 905, series of 1982, which suspended the Usury Law ceiling on interest rate effective January 1,

1983. However, interest rates, whenever unconscionable, may be equitably reduced or even invalidated. In several

cases,[10] this Court had declared as null and void stipulations on interest and charges that were found excessive, iniquitous

and unconscionable.

Records show that the amount of loan obtained by respondents on October 22, 1999

was P800,000.00. Respondents paid the installment for November 1999, but failed to pay the subsequent ones. On February

1, 2000, ACFLC demanded payment of P1,871,480.00. In a span of three months, respondents obligation ballooned by

more than P1,000,000.00. ACFLC failed to show any computation on how much interest was imposed and on the penalties

charged. Thus, we fully agree with the CA that the amount claimed by ACFLC is unconscionable.

In Spouses Isagani and Diosdada Castro v. Angelina de Leon Tan, Sps. Concepcion T. Clemente and Alexander

C. Clemente, Sps. Elizabeth T. Carpio and Alvin Carpio, Sps. Marie Rose T. Soliman and Arvin Soliman and Julius Amiel

Tan,[11] this Court held:

The imposition of an unconscionable rate of interest on a money debt, even if knowingly and
voluntarily assumed, is immoral and unjust. It is tantamount to a repugnant spoliation and an iniquitous
deprivation of property, repulsive to the common sense of man. It has no support in law, in principles of
justice, or in the human conscience nor is there any reason whatsoever which may justify such imposition
as righteous and as one that may be sustained within the sphere of public or private morals.

Stipulations authorizing the imposition of iniquitous or unconscionable interest are contrary to morals, if not against

the law. Under Article 1409 of the Civil Code, these contracts are inexistent and void from the beginning. They cannot be

ratified nor the right to set up their illegality as a defense be waived. The nullity of the stipulation on the usurious interest

does not, however, affect the lenders right to recover the principal of the loan. Nor would it affect the terms of the real

estate mortgage. The right to foreclose the mortgage remains with the creditors, and said right can be exercised upon the

failure of the debtors to pay the debt due. The debt due is to be considered without the stipulation of the excessive

interest. A legal interest of 12% per annum will be added in place of the excessive interest formerly imposed.[12] The

nullification by the CA of the interest rate and the penalty charge and the consequent imposition of an interest rate of 12%

and penalty charge of 1% per month cannot, therefore, be considered a reversible error.

ACFLC next faults the CA for invalidating paragraph 14 of the real estate mortgage which provides for the waiver

of the mortgagors right of redemption. It argues that the right of redemption is a privilege; hence, respondents are at liberty

to waive their right of redemption, as they did in this case.

 Settled is the rule that for a waiver to be valid and effective, it must, in the first place, be couched in clear and

unequivocal terms which will leave no doubt as to the intention of a party to give up a right or benefit which legally pertains

to him. Additionally, the intention to waive a right or an advantage must be shown clearly and

convincingly.[13] Unfortunately, ACFLC failed to convince us that respondents waived their right of redemption voluntarily.

As the CA had taken pains to demonstrate:

The supposed waiver by the mortgagors was contained in a statement made in fine print in the REM. It
was made in the form and language prepared by [petitioner]ACFLC while the [respondents] merely
affixed their signatures or adhesion thereto. It thus partakes of the nature of a contract of adhesion. It is
settled that doubts in the interpretation of stipulations in contracts of adhesion should be resolved
against the party that prepared them. This principle especially holds true with regard to waivers, which
are not presumed, but which must be clearly and convincingly shown. [Petitioner] ACFLC presented no
evidence hence it failed to show the efficacy of this waiver.

Moreover, to say that the mortgagors right of redemption may be waived through a fine print in
a mortgage contract is, in the last analysis, tantamount to placing at the mortgagees absolute disposal
the property foreclosed. It would render practically nugatory this right that is provided by law for the
mortgagor for reasons of public policy. A contract of adhesion may be struck down as void and
unenforceable for being subversive to public policy, when the weaker party is completely deprived of
the opportunity to bargain on equal footing.[14]

In fine, when the redemptioner chooses to exercise his right of redemption, it is the policy of the law to aid rather

than to defeat his right.[15] Thus, we affirm the CA in nullifying the waiver of the right of redemption provided in the real

estate mortgage.

Finally, ACFLC claims that respondents complaint for annulment of mortgage is a collateral attack on its

certificate of title. The argument is specious.

The instant complaint for annulment of mortgage was filed on April 7, 2000, long before the consolidation of

ACFLCs title over the property. In fact, when respondents filed this suit at the first instance, the title to the property was still

in the name of respondent Cesario. The instant case was pending with the RTC when ACFLC filed a petition for foreclosure

of mortgage and even when a writ of possession was issued. Clearly, ACFLCs title is subject to the final outcome of the

present case.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV

No. 83197 are AFFIRMED. Costs against petitioner.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice
WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions
in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the
Courts Division.

RENATO C. CORONA
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 94571 April 22, 1991

TEOFISTO T. GUINGONA, JR. and AQUILINO Q. PIMENTEL, JR., petitioners,
vs.
HON. GUILLERMO CARAGUE, in his capacity as Secretary, Budget & Management, HON. ROZALINA S. CAJUCOM in her
capacity as National Treasurer and COMMISSION ON AUDIT, respondents.

Ramon A. Gonzales for petitioners.

GANCAYCO, J.:

This is a case of first impression whereby petitioners question the constitutionality of the automatic appropriation for debt
service in the 1990 budget.

As alleged in the petition, the facts are as follows:

The 1990 budget consists of P98.4 Billion in automatic appropriation (with P86.8 Billion for debt service) and P155.3 Billion
appropriated under Republic Act No. 6831, otherwise known as the General Appropriations Act, or a total of P233.5
Billion,1 while the appropriations for the Department of Education, Culture and Sports amount to P27,017,813,000.00.2

The said automatic appropriation for debt service is authorized by P.D. No. 81, entitled "Amending Certain Provisions of
Republic Act Numbered Four Thousand Eight Hundred Sixty, as Amended (Re: Foreign Borrowing Act)," by P.D. No. 1177,
entitled "Revising the Budget Process in Order to Institutionalize the Budgetary Innovations of the New Society," and by
P.D. No. 1967, entitled "An Act Strenghthening the Guarantee and Payment Positions of the Republic of the Philippines
on Its Contingent Liabilities Arising out of Relent and Guaranteed Loan by Appropriating Funds For The Purpose.

There can be no question that petitioners as Senators of the Republic of the Philippines may bring this suit where a
constitutional issue is raised.3 Indeed, even a taxpayer has personality to restrain unlawful expenditure of public funds.

The petitioner seek the declaration of the unconstitutionality of P.D. No. 81, Sections 31 of P.D. 1177, and P.D. No. 1967.
The petition also seeks to restrain the disbursement for debt service under the 1990 budget pursuant to said decrees.

Respondents contend that the petition involves a pure political question which is the repeal or amendment of said laws
addressed to the judgment, wisdom and patriotism of the legislative body and not this Court.

In Gonzales,5 the main issue was the unconstitutionality of the presidential veto of certain provision particularly Section 16
of the General Appropriations Act of 1990, R.A. No. 6831. This Court, in disposing of the issue, stated —

The political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with the applicability of
the principle in appropriate cases.

Sec. 1. The judicial power shad be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

With the Senate maintaining that the President's veto is unconstitutional and that charge being controverted,
there is an actual case or justiciable controversy between the Upper House of Congress and the executive
department that may be taken cognizance of by this Court.

The questions raised in the instant petition are —

 I. IS THE APPROPRIATION OF P86 BILLION IN THE P233 BILLION 1990 BUDGET VIOLATIVE OF SECTION 5, ARTICLE XIV
OF THE CONSTITUTION?

II. ARE PD No. 81, PD No. 1177 AND PD No. 1967 STILL OPERATIVE UNDER THE CONSTITUTION?

III. ARE THEY VIOLATIVE OF SECTION 29(l), ARTICLE VI OF THE CONSTITUTION?6

There is thus a justiciable controversy raised in the petition which this Court may properly take cognizance of On the first
issue, the petitioners aver —

According to Sec. 5, Art. XIV of the Constitution:

(5) The State shall assign the highest budgetary priority to education and ensure that teaching will
attract and retain its rightful share of the best available talents through adequate remuneration and
other means of job satisfaction and fulfillment.

The reason behind the said provision is stated, thus:

In explaining his proposed amendment, Mr. Ople stated that all the great and sincere piety professed
by every President and every Congress of the Philippines since the end of World War II for the
economic welfare of the public schoolteachers always ended up in failure and this failure, he stated,
had caused mass defection of the best and brightest teachers to other careers, including menial jobs
in overseas employment and concerted actions by them to project their grievances, mainly over low
pay and abject working conditions.

He pointed to the high expectations generated by the February Revolution, especially keen among
public schoolteachers, which at present exacerbate these long frustrated hopes.

Mr. Ople stated that despite the sincerity of all administrations that tried vainly to respond to the needs
of the teachers, the central problem that always defeated their pious intentions was really the one
budgetary priority in the sense that any proposed increase for public schoolteachers had to be
multiplied many times by the number of government employees in general and their equitable claims
to any pay standardization such that the pay rate of teachers is hopelessly pegged to the rate of
government workers in general. This, he stated, foredoomed the prospect of a significant pay
increase for teachers.

Mr. Ople pointed out that the recognition by the Constitution of the highest priority for public
schoolteachers, and by implication, for all teachers, would ensure that the President and Congress
would be strongly urged by a constitutional mandate to grant to them such a level of remuneration
and other incentives that would make teaching competitive again and attractive to the best
available talents in the nation.

Finally, Mr. Ople recalled that before World War II, teaching competed most successfully against all
other career choices for the best and the brightest of the younger generation. It is for this reason, he
stated, that his proposed amendment if approved, would ensure that teaching would be restored to
its lost glory as the career of choice for the most talented and most public-spirited of the younger
generation in the sense that it would become the countervailing measure against the continued
decline of teaching and the wholesale desertion of this noble profession presently taking place. He
further stated that this would ensure that the future and the quality of the population would be
asserted as a top priority against many clamorous and importunate but less important claims of the
present. (Journal of the Constitutional Commission, Vol. II, p. 1172)

However, as against this constitutional intention, P86 Billion is appropriated for debt service while only P27 Billion is
appropriated for the Department of Education in the 1990 budget. It plain, therefore, that the said appropriation for
debt services is inconsistent with the Constitution, hence, viod (Art. 7, New Civil Code).7

While it is true that under Section 5(5), Article XIV of the Constitution Congress is mandated to "assign the highest
budgetary priority to education" in order to "insure that teaching will attract and retain its rightful share of the best
available talents through adequate remuneration and other means of job satisfaction and fulfillment," it does not
thereby follow that the hands of Congress are so hamstrung as to deprive it the power to respond to the imperatives of
the national interest and for the attainment of other state policies or objectives.

As aptly observed by respondents, since 1985, the budget for education has tripled to upgrade and improve the facility
of the public school system. The compensation of teachers has been doubled. The amount of P29,740,611,000.008 set
aside for the Department of Education, Culture and Sports under the General Appropriations Act (R.A. No. 6831), is the
highest budgetary allocation among all department budgets. This is a clear compliance with the aforesaid constitutional
mandate according highest priority to education.

Having faithfully complied therewith, Congress is certainly not without any power, guided only by its good judgment, to
provide an appropriation, that can reasonably service our enormous debt, the greater portion of which was inherited
from the previous administration. It is not only a matter of honor and to protect the credit standing of the country. More
especially, the very survival of our economy is at stake. Thus, if in the process Congress appropriated an amount for debt
service bigger than the share allocated to education, the Court finds and so holds that said appropriation cannot be
thereby assailed as unconstitutional.

Now to the second issue. The petitioners made the following observations:

To begin with, Rep. Act 4860 entitled "AN ACT AUTHORIZING THE PRESIDENT OF THE PHILIPPINES TO OBTAIN SUCH
FOREIGN LOANS AND CREDITS, OR TO INCUR SUCH FOREIGN INDEBTEDNESS, AS MAY BE NECESSARY TO FINANCE
APPROVED ECONOMIC DEVELOPMENT PURPOSES OR PROJECTS, AND TO GUARANTEE, IN BEHALF OF THE
REPUBLIC OF THE PHILIPPINES, FOREIGN LOANS OBTAINED OR BONDS ISSUED BY CORPORATIONS OWNED OR
CONTROLLED BY THE GOVERNMENT OF THE PHILIPPINES FOR ECONOMIC DEVELOPMENT PURPOSES INCLUDING
THOSE INCURRED FOR PURPOSES OF RELENDING TO THE PRIVATE SECTOR, APPROPRIATING THE NECESSARY
FUNDS THEREFOR, AND FOR OTHER PURPOSES, provides:

Sec. 2. The total amount of loans, credits and indebtedness, excluding interests, which the President of
the Philippines is authorized to incur under this Act shall not exceed one billion United States dollars or
its equivalent in other foreign currencies at the exchange rate prevailing at the time the loans, credits
and indebtedness are incurred: Provided, however, That the total loans, credits and indebtedness
incurred under this Act shall not exceed two hundred fifty million in the fiscal year of the approval of
this Act, and two hundred fifty million every fiscal year thereafter, all in United States dollars or its
equivalent in other currencies.

Sec. 5. It shall be the duty of the President, within thirty days after the opening of every regular session,
to report to the Congress the amount of loans, credits and indebtedness contracted, as well as
the guarantees extended, and the purposes and projects for which the loans, credits and
indebtedness were incurred, and the guarantees extended, as well as such loans which may be
reloaned to Filipino owned or controlled corporations and similar purposes.

Sec. 6. The Congress shall appropriate the necessary amount out of any funds in the National Treasury
not otherwise appropriated, to cover the payment of the principal and interest on such loans, credits
or indebtedness as and when they shall become due.

However, after the declaration of martial law, President Marcos issued PD 81 amending Section 6, thus:

Sec. 7. Section six of the same Act is hereby further amended to read as follows:

Sec. 6. Any provision of law to the contrary notwithstanding, and in order to enable the Republic of
the Philippines to pay the principal, interest, taxes and other normal banking charges on the loans,
credits or indebtedness, or on the bonds, debentures, securities or other evidences of indebtedness
sold in international markets incurred under the authority of this Act, the proceeds of which are
deemed appropriated for the projects, all the revenue realized from the projects financed by such
loans, credits or indebtedness, or on the bonds, debentures, securities or other evidences of
indebtedness, shall be turned over in full, after deducting actual and necessary expenses for the
operation and maintenance of said projects, to the National Treasury by the government office,
agency or instrumentality, or government-owned or controlled corporation concerned, which is
hereby appropriated for the purpose as and when they shall become due. In case the revenue
realized is insufficient to cover the principal, interest and other charges, such portion of the budgetary
savings as may be necessary to cover the balance or deficiency shall be set aside exclusively for the
purpose by the government office, agency or instrumentality, or government-owned or controlled
 corporation concerned: Provided, That, if there still remains a deficiency, such amount necessary to
cover the payment of the principal and interest on such loans, credit or indebtedness as and when
they shall become due is hereby appropriated out of any funds in the national treasury not otherwise
appropriated: . . .

President Marcos also issued PD 1177, which provides:

Sec. 31. Automatic appropriations. –– All expenditures for (a) personnel retirement premiums,
government service insurance, and other similar fixed expenditures, (b) principal and interest on
public debt, (c) national government guarantees of obligations which are drawn upon, are
automatically appropriated; Provided, that no obligations shall be incurred or payments made from
funds thus automatically appropriated except as issued in the form of regular budgetary allotments.

and PD 1967, which provides:

Sec. 1. There is hereby appropriated, out of any funds in the National Treasury not otherwise
appropriated, such amounts as may be necessary to effect payments on foreign or domestic loans, or
foreign or domestic loans whereon creditors make a call on the direct and indirect guarantee of the
Republic of the Philippines, obtained by:

a. The Republic of the Philippines the proceeds of which were relent to government-owned
or controlled corporations and/or government financial institutions;

b. government-owned or controlled corporations and/or government financial institutions

the proceeds of which were relent to public or private institutions;

c. government-owned or controlled corporations and/or financial institutions and

guaranteed by the Republic of the Philippines;

d. other public or private institutions and guaranteed by government-owned or controlled

corporations and/or government financial institutions.

Sec. 2. All repayments made by borrower institutions on the loans for whose account advances were
made by the National Treasury will revert to the General Fund.

Sec. 3. In the event that any borrower institution is unable to settle the advances made out of the
appropriation provided therein, the Treasurer of the Philippines shall make the proper
recommendation to the Minister of Finance on whether such advances shall be treated as equity or
subsidy of the National Government to the institution concerned, which shall be considered in the
budgetary program of the Government.

In the "Budget of Expenditures and Sources of Financing Fiscal Year 1990," which accompanied her
budget message to Congress, the President of the Philippines, Corazon C. Aquino, stated:

Sources Appropriation

The P233.5 billion budget proposed for fiscal year 1990 will require P132.1 billion of new programmed
appropriations out of a total P155.3 billion in new legislative authorization from Congress. The rest of the budget,
totalling P101.4 billion, will be sourced from existing appropriations: P98.4 billion from Automatic Appropriations
and P3.0 billion from Continuing Appropriations (Fig. 4).

And according to Figure 4, . . ., P86.8 billion out of the P98.4 Billion are programmed for debt service. In other words, the
President had, on her own, determined and set aside the said amount of P98.4 Billion with the rest of the appropriations
of P155.3 Billion to be determined and fixed by Congress, which is now Rep. Act 6831.9

Petitioners argue that the said automatic appropriations under the aforesaid decrees of then President Marcos
became functus oficio when he was ousted in February, 1986; that upon the expiration of the one-man legislature in the
person of President Marcos, the legislative power was restored to Congress on February 2, 1987 when the Constitution
was ratified by the people; that there is a need for a new legislation by Congress providing for automatic appropriation,
but Congress, up to the present, has not approved any such law; and thus the said P86.8 Billion automatic appropriation
in the 1990 budget is an administrative act that rests on no law, and thus, it cannot be enforced.

Moreover, petitioners contend that assuming arguendo that P.D. No. 81, P.D. No. 1177 and P.D. No. 1967 did not expire
with the ouster of President Marcos, after the adoption of the 1987 Constitution, the said decrees are inoperative under
Section 3, Article XVIII which provides ––

Sec. 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive
issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked."
(Emphasis supplied.)

They then point out that since the said decrees are inconsistent with Section 24, Article VI of the Constitution, i.e.,

Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in the House of Representatives, but the Senate may
propose or concur with amendments. (Emphasis supplied.)

whereby bills have to be approved by the President,10 then a law must be passed by Congress to authorize said
automatic appropriation. Further, petitioners state said decrees violate Section 29(l) of Article VI of the Constitution
which provides as follows ––

Sec. 29(l). No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.

They assert that there must be definiteness, certainty and exactness in an appropriation,11 otherwise it is an undue
delegation of legislative power to the President who determines in advance the amount appropriated for the debt
service.12

The Court is not persuaded.

Section 3, Article XVIII of the Constitution recognizes that "All existing laws, decrees, executive orders, proclamations,
letters of instructions and other executive issuances not inconsistent with the Constitution shall remain operative until
amended, repealed or revoked."

This transitory provision of the Constitution has precisely been adopted by its framers to preserve the social order so that
legislation by the then President Marcos may be recognized. Such laws are to remain in force and effect unless they are
inconsistent with the Constitution or, are otherwise amended, repealed or revoked.

An examination of the aforecited presidential decrees show the clear intent that the amounts needed to cover the
payment of the principal and interest on all foreign loans, including those guaranteed by the national government,
should be made available when they shall become due precisely without the necessity of periodic enactments of
separate laws appropriating funds therefor, since both the periods and necessities are incapable of determination in
advance.

The automatic appropriation provides the flexibility for the effective execution of debt management policies. Its political
wisdom has been convincingly discussed by the Solicitor General as he argues —

. . . First, for example, it enables the Government to take advantage of a favorable turn of market conditions by
redeeming high-interest securities and borrowing at lower rates, or to shift from short-term to long-term
instruments, or to enter into arrangements that could lighten our outstanding debt burden debt-to-equity, debt
to asset, debt-to-debt or other such schemes. Second, the automatic appropriation obviates the serious
difficulties in debt servicing arising from any deviation from what has been previously programmed. The annual
debt service estimates, which are usually made one year in advance, are based on a mathematical set or
matrix or, in layman's parlance, "basket" of foreign exchange and interest rate assumptions which may
significantly differ from actual rates not even in proportion to changes on the basis of the assumptions. Absent
an automatic appropriation clause, the Philippine Government has to await and depend upon Congressional
action, which by the time this comes, may no longer be responsive to the intended conditions which in the
meantime may have already drastically changed. In the meantime, also, delayed payments and arrearages
may have supervened, only to worsen our debt service-to-total expenditure ratio in the budget due to
penalties and/or demand for immediate payment even before due dates.
 Clearly, the claim that payment of the loans and indebtedness is conditioned upon the continuance of the
person of President Marcos and his legislative power goes against the intent and purpose of the law. The
purpose is foreseen to subsist with or without the person of Marcos.13

The argument of petitioners that the said presidential decrees did not meet the requirement and are therefore
inconsistent with Sections 24 and 27 of Article VI of the Constitution which requires, among others, that "all
appropriations, . . . bills authorizing increase of public debt" must be passed by Congress and approved by the President
is untenable. Certainly, the framers of the Constitution did not contemplate that existing laws in the statute books
including existing presidential decrees appropriating public money are reduced to mere "bills" that must again go
through the legislative million The only reasonable interpretation of said provisions of the Constitution which refer to "bills"
is that they mean appropriation measures still to be passed by Congress. If the intention of the framers thereof were
otherwise they should have expressed their decision in a more direct or express manner.

Well-known is the rule that repeal or amendment by implication is frowned upon. Equally fundamental is the principle
that construction of the Constitution and law is generally applied prospectively and not retrospectively unless it is so
clearly stated.

On the third issue that there is undue delegation of legislative power, in Edu vs. Ericta,14 this Court had this to say ––

What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal
them;the test is the completeness of the statute in all its terms and provisions when it leaves the hands of the
legislature. To determine whether or not there is an undue delegation of legislative power, the inequity must be
directed to the scope and definiteness of the measure enacted. The legislature does not abdicate its function
when it describes what job must be done, who is to do it, and what is the scope of his authority. For a complex
economy, that may indeed be the only way in which legislative process can go forward . . .

To avoid the taint of unlawful delegation there must be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays down fundamental policy . . .

The standard may be either express or implied . . . from the policy and purpose of the act considered as whole .
..

In People vs. Vera,15 this Court said "the true distinction is between the delegation of power to make the law, which
necessarily involves discretion as to what the law shall be, and conferring authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."

Ideally, the law must be complete in all its essential terms and conditions when it leaves the legislature so that there will
be nothing left for the delegate to do when it reaches him except enforce it. If there are gaps in the law that will prevent
its enforcement unless they are first filled, the delegate will then have been given the opportunity to step in the shoes of
the legislature and exercise a discretion essentially legislative in order to repair the omissions. This is invalid delegation.16

The Court finds that in this case the questioned laws are complete in all their essential terms and conditions and sufficient
standards are indicated therein.

The legislative intention in R.A. No. 4860, as amended, Section 31 of P.D. No. 1177 and P.D. No. 1967 is that the amount
needed should be automatically set aside in order to enable the Republic of the Philippines to pay the principal, interest,
taxes and other normal banking charges on the loans, credits or indebtedness incurred as guaranteed by it when they
shall become due without the need to enact a separate law appropriating funds therefor as the need arises. The
purpose of these laws is to enable the government to make prompt payment and/or advances for all loans to protect
and maintain the credit standing of the country.

Although the subject presidential decrees do not state specific amounts to be paid, necessitated by the very nature of
the problem being addressed, the amounts nevertheless are made certain by the legislative parameters provided in the
decrees. The Executive is not of unlimited discretion as to the amounts to be disbursed for debt servicing. The mandate is
to pay only the principal, interest, taxes and other normal banking charges on the loans, credits or indebtedness, or on
the bonds, debentures or security or other evidences of indebtedness sold in international markets incurred by virtue of
the law, as and when they shall become due. No uncertainty arises in executive implementation as the limit will be the
exact amounts as shown by the books of the Treasury.
The Government budgetary process has been graphically described to consist of four major phases as aptly discussed
by the Solicitor General:

The Government budgeting process consists of four major phases:

1. Budget preparation. The first step is essentially tasked upon the Executive Branch and covers the estimation
of government revenues, the determination of budgetary priorities and activities within the constraints imposed
by available revenues and by borrowing limits, and the translation of desired priorities and activities into
expenditure levels.

Budget preparation starts with the budget call issued by the Department of Budget and Management. Each
agency is required to submit agency budget estimates in line with the requirements consistent with the general
ceilings set by the Development Budget Coordinating Council (DBCC).

With regard to debt servicing, the DBCC staff, based on the macro-economic projections of interest rates (e.g.
LIBOR rate) and estimated sources of domestic and foreign financing, estimates debt service levels. Upon
issuance of budget call, the Bureau of Treasury computes for the interest and principal payments for the year
for all direct national government borrowings and other liabilities assumed by the same.

2. Legislative authorization. –– At this stage, Congress enters the picture and deliberates or acts on the budget
proposals of the President, and Congress in the exercise of its own judgment and wisdom formulatesan
appropriation act precisely following the process established by the Constitution, which specifies that no
money may be paid from the Treasury except in accordance with an appropriation made by law.

Debt service is not included in the General Appropriation Act, since authorization therefor already exists under
RA No. 4860 and 245, as amended and PD 1967. Precisely in the fight of this subsisting authorization as
embodied in said Republic Acts and PD for debt service, Congress does not concern itself with details for
implementation by the Executive, but largely with annual levels and approval thereof upon due deliberations
as part of the whole obligation program for the year. Upon such approval, Congress has spoken and cannot
be said to have delegated its wisdom to the Executive, on whose part lies the implementation or execution of
the legislative wisdom.

3. Budget Execution. Tasked on the Executive, the third phase of the budget process covers the
various operational aspects of budgeting. The establishment of obligation authority ceilings, the evaluation of
work and financial plans for individual activities, the continuing review of government fiscal position, the
regulation of funds releases, the implementation of cash payment schedules, and other related activities
comprise this phase of the budget cycle.

Release from the debt service fired is triggered by a request of the Bureau of the Treasury for allotments from
the Department of Budget and Management, one quarter in advance of payment schedule, to ensure prompt
payments. The Bureau of Treasury, upon receiving official billings from the creditors, remits payments to creditors
through the Central Bank or to the Sinking Fund established for government security issues (Annex F).

4. Budget accountability. The fourth phase refers to the evaluation of actual performance and initially
approved work targets, obligations incurred, personnel hired and work accomplished are compared with the
targets set at the time the agency budgets were approved.

There being no undue delegation of legislative power as clearly above shown, petitioners insist nevertheless
that subject presidential decrees constitute undue delegation of legislative power to the executive on the
alleged ground that the appropriations therein are not exact, certain or definite, invoking in support therefor
the Constitution of Nebraska, the constitution under which the case of State v. Moore, 69 NW 974, cited by
petitioners, was decided. Unlike the Constitution of Nebraska, however, our Constitution does not require
a definite, certain, exact or "specific appropriation made by law." Section 29, Article VI of our 1987 Constitution
omits any of these words and simply states:

Section 29(l). No money shall be paid out of the treasury except in pursuance of an appropriation
made by law.

More significantly, there is no provision in our Constitution that provides or prescribes any particular form of
words or religious recitals in which an authorization or appropriation by Congress shall be made, except that it
 be "made by law," such as precisely the authorization or appropriation under the questioned presidential
decrees. In other words, in terms of time horizons, an appropriation may be made impliedly (as by past but
subsisting legislations) as well as expressly for the current fiscal year (as by enactment of laws by the present
Congress), just as said appropriation may be made in general as well as in specific terms. The Congressional
authorization may be embodied in annual laws, such as a general appropriations act or in special provisions of
laws of general or special application which appropriate public funds for specific public purposes, such as the
questioned decrees. An appropriation measure is sufficient if the legislative intention clearly and certainly
appears from the language employed (In re Continuing Appropriations, 32 P. 272), whether in the past or in the
present.17

Thus, in accordance with Section 22, Article VII of the 1987 Constitution, President Corazon C. Aquino submitted to
Congress the Budget of Expenditures and Sources of Financing for the Fiscal Year 1990. The proposed 1990 expenditure
program covering the estimated obligation that will be incurred by the national government during the fiscal year
amounts to P233.5 Billion. Of the proposed budget, P86.8 is set aside for debt servicing as follows:

1âwphi1

National Government
Debt
Service Expenditures, 1990
(in million pesos)

Domestic Foreign Total

RA 245, as RA 4860
amended as amended,
PD 1967

Interest
Payments P36,861 P18,570 P55,431

Principal
Amortization 16,310 15,077 31,387

Total P53,171 P33,647 P86,818 18

======== ======== ========

as authorized under P.D. 1967 and R.A. 4860 and 245, as amended.

The Court, therefor, finds that R.A. No. 4860, as amended by P.D. No. 81, Section 31 of P.D. 1177 and P.D. No. 1967
constitute lawful authorizations or appropriations, unless they are repealed or otherwise amended by Congress. The
Executive was thus merely complying with the duty to implement the same.

There can be no question as to the patriotism and good motive of petitioners in filing this petition. Unfortunately, the
petition must fail on the constitutional and legal issues raised. As to whether or not the country should honor its
international debt, more especially the enormous amount that had been incurred by the past administration, which
appears to be the ultimate objective of the petition, is not an issue that is presented or proposed to be addressed by the
Court. Indeed, it is more of a political decision for Congress and the Executive to determine in the exercise of their
wisdom and sound discretion.

WHEREFORE, the petition is DISMISSED, without pronouncement as to costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
 Separate Opinions

PARAS, J., dissenting:

I dissent. Any law that undermines our economy and therefore our security is per se unconstitutional.

CRUZ, J., dissenting:

I regret I must dissent.

One of the essential requirements of a valid appropriation is that the amount appropriated must be certain, which
means that the sum authorized to be released should either be determinate or at least determinable. As has been
uniformly held:

It is essential to the validity of an appropriation law that it should state the exact amount appropriated or the
maximum sum from which the authorized expenses shall be paid, otherwise it would be void for uncertainty,
since the legislative power over appropriation in effect could have been delegated in such case to the
recipient of the funds appropriated or to the official authorized to spend them. (State v. Eggers, 16 L.R.A., N.S.
630; State v. La Grave, 41 Pac. 1075).

Thus, a law which provided that there should be paid out of the State Treasury to any person, firm or
corporation engaged in the manufacture of sugar in that State the sum of five-eights of one per cent per
pound upon each pound manufactured under the conditions and restrictions of the Act was held as invalid
appropriation for lack of certainty in the amount to be paid out of the Treasury, the legislature having failed to
fix the amount to be appropriated. (State of Nebraska v. Moore, 50 Neb. 88, cited in Gonzales, Phil. Political
Law, p. 213).

The presidential decrees on which the respondents rely do not satisfy this requirement.1âvvphi1

Section 7 of P.D. 81 provides that "all the revenue realized from the projects financed by such loans," after deducting the
actual and necessary operating and maintenance expenses, is appropriated for servicing the foreign debts.

The same sections says that in case of deficiency, "such amount necessary to cover the payment of the principal and
interest on such loans, credit or indebteedness as and when they shall become due is hereby appropriated."

Section 31 of P.D. 1717 provides that "all expenditures for the payment of the principal and interest on public debt" are
automatically appropriated.

Section 1 of P.D. 1967 appropriates "such amounts as may be necessary to effect payments on foreign or domestic
loans."

It is easy to see that in none of these decrees is the amount appropriated fixed, either by an exact figure or by an
indication at least of its maximum.

The ponencia says that "the amounts are made certain by the legislative parameters provided in the degree." I am
afraid I do not see those parameters. I see only the appropriation of "all the revenue derived from the projects financed
by such loans" and "such amounts as may be necessary to effect payment on foreign or domestic loans" or "the principal
and interest on public debt, as and when they shall become due." All these are uncertain.

Even President Marcos as a legislator, did not know how much he was appropriating.

The ponencia assures us that "no uncertainty arises in executive implementation as the limit will be the exact amounts as
shown by the books of the Treasury." That is cold comfort, indeed, if we consider that it is the Treasury itself that is sought
to be limited by the requirement for certainty. The intention precisely is to prevent the disbursement of public funds
by the Treasury itself from "running riot."
We surely cannot defend an appropriation, say, of "such amounts as may be necessary for the construction of a bridge
across the Pasig River" even if the exact cost may be shown later by the books of the Treasury. This would be no different
from the uncertain appropriations the Court is here sustaining.

I think it is a mistake for this government to justify its acts on the basis of the decrees of President Marcos. These are on the
whole tainted with authoritarianism and enfeebled by lack of proper study and draftmanship, let alone suspect motives.
I suggest that these decrees must be reviewed carefully and whenever proper, set aright by necessary modification or
outright revocation. Instead, the respondents are invoking them blindly.

Sarmiento, J., concurs.

PADILLA, J., dissenting

I join Mr. Justice Cruz in his dissent. I only wish to add the following:

Section 29(l), Article VI of the 1987 Constitution provides:

Sec. 29(l). No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.

It is quite obvious from this provision that there must first be a law enacted by Congress (and approved by the President)
appropriating a particular sum or sums before payment thereof from the Treasury can be made.

If the above constitutional provision is to be meaningful and effective at all, I believe that the law appropriating
aparticular sum or sums for debt service, whether involving domestic or foreign loans of the Government, should be
enacted by the Congress, composed of the most recently elected representatives of the people. To construe the term
"lay" in the above provision to mean the decrees issued by then President Marcos would, in effect, be supporting
a continuing governance of a large segment of the Philippine economy by a past regime which, as every one knows,
centralized for a good number of years legislative and executive powers in only one person.

Besides, these decrees issued by President Marcos relative to debt service were tailored for the periods covered by said
decrees. Today it is Congress that should determine and approve the proper appropriations for debt servicing, as this is a
matter of policy that, in my opinion, pertains to the legislative department, as the policy determining body of the
Government.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 15574 September 17, 1919

SMITH, BELL & COMPANY (LTD.), petitioner,

vs.
JOAQUIN NATIVIDAD, Collector of Customs of the port of Cebu, respondent.

Ross and Lawrence for petitioner.

Attorney-General Paredes for respondent.

MALCOLM, J.:

A writ of mandamus is prayed for by Smith, Bell & Co. (Ltd.), against Joaquin Natividad, Collector of Customs of the port
of Cebu, Philippine Islands, to compel him to issue a certificate of Philippine registry to the petitioner for its motor
vessel Bato. The Attorney-General, acting as counsel for respondent, demurs to the petition on the general ground that it
does not state facts sufficient to constitute a cause of action. While the facts are thus admitted, and while, moreover,
the pertinent provisions of law are clear and understandable, and interpretative American jurisprudence is found in
abundance, yet the issue submitted is not lightly to be resolved. The question, flatly presented, is, whether Act. No. 2761
of the Philippine Legislature is valid — or, more directly stated, whether the Government of the Philippine Islands, through
its Legislature, can deny the registry of vessels in its coastwise trade to corporations having alien stockholders.

FACTS.

Smith, Bell & Co., (Ltd.), is a corporation organized and existing under the laws of the Philippine Islands. A majority of its
stockholders are British subjects. It is the owner of a motor vessel known as the Bato built for it in the Philippine Islands in
1916, of more than fifteen tons gross The Bato was brought to Cebu in the present year for the purpose of transporting
plaintiff's merchandise between ports in the Islands. Application was made at Cebu, the home port of the vessel, to the
Collector of Customs for a certificate of Philippine registry. The Collector refused to issue the certificate, giving as his
reason that all the stockholders of Smith, Bell & Co., Ltd., were not citizens either of the United States or of the Philippine
Islands. The instant action is the result.

LAW.

The Act of Congress of April 29, 1908, repealing the Shipping Act of April 30, 1906 but reenacting a portion of section 3 of
this Law, and still in force, provides in its section 1:

That until Congress shall have authorized the registry as vessels of the United States of vessels owned in the
Philippine Islands, the Government of the Philippine Islands is hereby authorized to adopt, from time to time,
and enforce regulations governing the transportation of merchandise and passengers between ports or places
in the Philippine Archipelago. (35 Stat. at L., 70; Section 3912, U. S. Comp Stat. [1916]; 7 Pub. Laws, 364.)

The Act of Congress of August 29, 1916, commonly known as the Jones Law, still in force, provides in section 3, (first
paragraph, first sentence), 6, 7, 8, 10, and 31, as follows.

SEC. 3. That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property
without due process of law, or deny to any person therein the equal protection of the laws. . . .

SEC. 6. That the laws now in force in the Philippines shall continue in force and effect, except as altered,
amended, or modified herein, until altered, amended, or repealed by the legislative authority herein provided
or by Act of Congress of the United States.

SEC. 7. That the legislative authority herein provided shall have power, when not inconsistent with this Act, by
due enactment to amend, alter modify, or repeal any law, civil or criminal, continued in force by this Act as it
may from time to time see fit

This power shall specifically extend with the limitation herein provided as to the tariff to all laws relating to
revenue provided as to the tariff to all laws relating to revenue and taxation in effect in the Philippines.

SEC. 8. That general legislative power, except as otherwise herein provided, is hereby granted to the Philippine
Legislature, authorized by this Act.

SEC. 10. That while this Act provides that the Philippine government shall have the authority to enact a tariff law
the trade relations between the islands and the United States shall continue to be governed exclusively by laws
of the Congress of the United States: Provided, That tariff acts or acts amendatory to the tariff of the Philippine
Islands shall not become law until they shall receive the approval of the President of the United States, nor shall
any act of the Philippine Legislature affecting immigration or the currency or coinage laws of the Philippines
become a law until it has been approved by the President of the United States: Provided further, That the
President shall approve or disapprove any act mentioned in the foregoing proviso within six months from and
after its enactment and submission for his approval, and if not disapproved within such time it shall become a
law the same as if it had been specifically approved.

SEC. 31. That all laws or parts of laws applicable to the Philippines not in conflict with any of the provisions of this
Act are hereby continued in force and effect." (39 Stat at L., 546.)

On February 23, 1918, the Philippine Legislature enacted Act No. 2761. The first section of this law amended section 1172
of the Administrative Code to read as follows:
 SEC. 1172. Certificate of Philippine register. — Upon registration of a vessel of domestic ownership, and of more
than fifteen tons gross, a certificate of Philippine register shall be issued for it. If the vessel is of domestic
ownership and of fifteen tons gross or less, the taking of the certificate of Philippine register shall be optional
with the owner.

"Domestic ownership," as used in this section, means ownership vested in some one or more of the following
classes of persons: (a) Citizens or native inhabitants of the Philippine Islands; (b) citizens of the United States
residing in the Philippine Islands; (c) any corporation or company composed wholly of citizens of the Philippine
Islands or of the United States or of both, created under the laws of the United States, or of any State thereof, or
of thereof, or the managing agent or master of the vessel resides in the Philippine Islands

Any vessel of more than fifteen gross tons which on February eighth, nineteen hundred and eighteen, had a
certificate of Philippine register under existing law, shall likewise be deemed a vessel of domestic ownership so
long as there shall not be any change in the ownership thereof nor any transfer of stock of the companies or
corporations owning such vessel to person not included under the last preceding paragraph.

Sections 2 and 3 of Act No. 2761 amended sections 1176 and 1202 of the Administrative Code to read as follows:

SEC. 1176. Investigation into character of vessel. — No application for a certificate of Philippine register shall be
approved until the collector of customs is satisfied from an inspection of the vessel that it is engaged or
destined to be engaged in legitimate trade and that it is of domestic ownership as such ownership is defined in
section eleven hundred and seventy-two of this Code.

The collector of customs may at any time inspect a vessel or examine its owner, master, crew, or passengers in
order to ascertain whether the vessel is engaged in legitimate trade and is entitled to have or retain the
certificate of Philippine register.

SEC. 1202. Limiting number of foreign officers and engineers on board vessels. — No Philippine vessel operating
in the coastwise trade or on the high seas shall be permitted to have on board more than one master or one
mate and one engineer who are not citizens of the United States or of the Philippine Islands, even if they hold
licenses under section one thousand one hundred and ninety-nine hereof. No other person who is not a citizen
of the United States or of the Philippine Islands shall be an officer or a member of the crew of such vessel. Any
such vessel which fails to comply with the terms of this section shall be required to pay an additional tonnage
tax of fifty centavos per net ton per month during the continuance of said failure.

ISSUES.

Predicated on these facts and provisions of law, the issues as above stated recur, namely, whether Act No 2761 of the
Philippine Legislature is valid in whole or in part — whether the Government of the Philippine Islands, through its
Legislature, can deny the registry of vessel in its coastwise trade to corporations having alien stockholders .

OPINION.

1. Considered from a positive standpoint, there can exist no measure of doubt as to the power of the Philippine
Legislature to enact Act No. 2761. The Act of Congress of April 29, 1908, with its specific delegation of authority to the
Government of the Philippine Islands to regulate the transportation of merchandise and passengers between ports or
places therein, the liberal construction given to the provisions of the Philippine Bill, the Act of Congress of July 1, 1902, by
the courts, and the grant by the Act of Congress of August 29, 1916, of general legislative power to the Philippine
Legislature, are certainly superabundant authority for such a law. While the Act of the local legislature may in a way be
inconsistent with the Act of Congress regulating the coasting trade of the Continental United States, yet the general rule
that only such laws of the United States have force in the Philippines as are expressly extended thereto, and the
abnegation of power by Congress in favor of the Philippine Islands would leave no starting point for convincing
argument. As a matter of fact, counsel for petitioner does not assail legislative action from this direction (See U. S. vs. Bull
[1910], 15 Phil., 7; Sinnot vs. Davenport [1859] 22 How., 227.)

2. It is from the negative, prohibitory standpoint that counsel argues against the constitutionality of Act No. 2761. The first
paragraph of the Philippine Bill of Rights of the Philippine Bill, repeated again in the first paragraph of the Philippine Bill of
Rights as set forth in the Jones Law, provides "That no law shall be enacted in said Islands which shall deprive any person
of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws."
Counsel says that Act No. 2761 denies to Smith, Bell & Co., Ltd., the equal protection of the laws because it, in effect,
prohibits the corporation from owning vessels, and because classification of corporations based on the citizenship of one
or more of their stockholders is capricious, and that Act No. 2761 deprives the corporation of its properly without due
process of law because by the passage of the law company was automatically deprived of every beneficial attribute of
ownership in the Bato and left with the naked title to a boat it could not use .

The guaranties extended by the Congress of the United States to the Philippine Islands have been used in the same
sense as like provisions found in the United States Constitution. While the "due process of law and equal protection of the
laws" clause of the Philippine Bill of Rights is couched in slightly different words than the corresponding clause of the
Fourteenth Amendment to the United States Constitution, the first should be interpreted and given the same force and
effect as the latter. (Kepner vs. U.S. [1904], 195 U. S., 100; Sierra vs. Mortiga [1907], 204 U. S.,.470; U. S. vs. Bull [1910], 15
Phil., 7.) The meaning of the Fourteenth Amendment has been announced in classic decisions of the United States
Supreme Court. Even at the expense of restating what is so well known, these basic principles must again be set down in
order to serve as the basis of this decision.

The guaranties of the Fourteenth Amendment and so of the first paragraph of the Philippine Bill of Rights, are universal in
their application to all person within the territorial jurisdiction, without regard to any differences of race, color, or
nationality. The word "person" includes aliens. (Yick Wo vs. Hopkins [1886], 118 U. S., 356; Truax vs. Raich [1915], 239 U. S.,
33.) Private corporations, likewise, are "persons" within the scope of the guaranties in so far as their property is concerned.
(Santa Clara County vs. Southern Pac. R. R. Co. [1886], 118.U. S., 394; Pembina Mining Co. vs. Pennsylvania [1888],.125 U.
S., 181 Covington & L. Turnpike Road Co. vs. Sandford [1896], 164 U. S., 578.) Classification with the end in view of
providing diversity of treatment may be made among corporations, but must be based upon some reasonable ground
and not be a mere arbitrary selection (Gulf, Colorado & Santa Fe Railway Co. vs. Ellis [1897],.165 U. S., 150.) Examples of
laws held unconstitutional because of unlawful discrimination against aliens could be cited. Generally, these decisions
relate to statutes which had attempted arbitrarily to forbid aliens to engage in ordinary kinds of business to earn their
living. (State vs. Montgomery [1900], 94 Maine, 192, peddling — but see. Commonwealth vs. Hana [1907], 195 Mass., 262;
Templar vs. Board of Examiners of Barbers [1902], 131 Mich., 254, barbers; Yick Wo vs. Hopkins [1886], 118 U. S.,.356,
discrimination against Chinese; Truax vs. Raich [1915], 239 U. S., 33; In re Parrott [1880], 1 Fed , 481; Fraser vs. McConway &
Torley Co. [1897], 82 Fed , 257; Juniata Limestone Co. vs. Fagley [1898], 187 Penn., 193, all relating to the employment of
aliens by private corporations.)

A literal application of general principles to the facts before us would, of course, cause the inevitable deduction that
Act No. 2761 is unconstitutional by reason of its denial to a corporation, some of whole members are foreigners, of the
equal protection of the laws. Like all beneficient propositions, deeper research discloses provisos. Examples of a denial of
rights to aliens notwithstanding the provisions of the Fourteenth Amendment could be cited. (Tragesser vs.Gray [1890], 73
Md., 250, licenses to sell spirituous liquors denied to persons not citizens of the United States; Commonwealth vs. Hana
[1907], 195 Mass , 262, excluding aliens from the right to peddle; Patsone vs.Commonwealth of Pennsylvania [1914], 232
U. S. , 138, prohibiting the killing of any wild bird or animal by any unnaturalized foreign-born resident; Ex parte Gilleti
[1915], 70 Fla., 442, discriminating in favor of citizens with reference to the taking for private use of the common property
in fish and oysters found in the public waters of the State; Heim vs. McCall [1915], 239 U. S.,.175, and Crane vs. New York
[1915], 239 U. S., 195, limiting employment on public works by, or for, the State or a municipality to citizens of the United
States.)

One of the exceptions to the general rule, most persistent and far reaching in influence is, that neither the Fourteenth
Amendment to the United States Constitution, broad and comprehensive as it is, nor any other amendment, "was
designed to interfere with the power of the State, sometimes termed its `police power,' to prescribe regulations to
promote the health, peace, morals, education, and good order of the people, and legislate so as to increase the
industries of the State, develop its resources and add to its wealth and prosperity. From the very necessities of society,
legislation of a special character, having these objects in view, must often be had in certain districts."
(Barbier vs. Connolly [1884], 113 U.S., 27; New Orleans Gas Co. vs. Lousiana Light Co. [1885], 115 U.S., 650.) This is the same
police power which the United States Supreme Court say "extends to so dealing with the conditions which exist in the
state as to bring out of them the greatest welfare in of its people." (Bacon vs.Walker [1907], 204 U.S., 311.) For quite similar
reasons, none of the provision of the Philippine Organic Law could could have had the effect of denying to the
Government of the Philippine Islands, acting through its Legislature, the right to exercise that most essential, insistent, and
illimitable of powers, the sovereign police power, in the promotion of the general welfare and the public interest. (U.
S. vs. Toribio [1910], 15 Phil., 85; Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; Rubi vs. Provincial Board of Mindoro
[1919], 39 Phil., 660.) Another notable exception permits of the regulation or distribution of the public domain or the
common property or resources of the people of the State, so that use may be limited to its citizens. (Ex parte Gilleti
[1915], 70 Fla., 442; McCready vs. Virginia [1876], 94 U. S., 391; Patsone vs. Commonwealth of Pennsylvania [1914], 232U.
S., 138.) Still another exception permits of the limitation of employment in the construction of public works by, or for, the
State or a municipality to citizens of the United States or of the State. (Atkin vs. Kansas [1903],191 U. S., 207;
Heim vs. McCall [1915], 239 U.S., 175; Crane vs. New York [1915], 239 U. S., 195.) Even as to classification, it is admitted that
a State may classify with reference to the evil to be prevented; the question is a practical one, dependent upon
experience. (Patsone vs.Commonwealth of Pennsylvania [1914], 232 U. S., 138.)
To justify that portion of Act no. 2761 which permits corporations or companies to obtain a certificate of Philippine
registry only on condition that they be composed wholly of citizens of the Philippine Islands or of the United States or
both, as not infringing Philippine Organic Law, it must be done under some one of the exceptions here mentioned This
must be done, moreover, having particularly in mind what is so often of controlling effect in this jurisdiction — our local
experience and our peculiar local conditions.

To recall a few facts in geography, within the confines of Philippine jurisdictional limits are found more than three
thousand islands. Literally, and absolutely, steamship lines are, for an Insular territory thus situated, the arteries of
commerce. If one be severed, the life-blood of the nation is lost. If on the other hand these arteries are protected, then
the security of the country and the promotion of the general welfare is sustained. Time and again, with such conditions
confronting it, has the executive branch of the Government of the Philippine Islands, always later with the sanction of the
judicial branch, taken a firm stand with reference to the presence of undesirable foreigners. The Government has thus
assumed to act for the all-sufficient and primitive reason of the benefit and protection of its own citizens and of the self-
preservation and integrity of its dominion. (In re Patterson [1902], 1 Phil., 93; Forbes vs.Chuoco, Tiaco and Crossfield
[1910], 16 Phil., 534;.228 U.S., 549; In re McCulloch Dick [1918], 38 Phil., 41.) Boats owned by foreigners, particularly by such
solid and reputable firms as the instant claimant, might indeed traverse the waters of the Philippines for ages without
doing any particular harm. Again, some evilminded foreigner might very easily take advantage of such lavish hospitality
to chart Philippine waters, to obtain valuable information for unfriendly foreign powers, to stir up insurrection, or to
prejudice Filipino or American commerce. Moreover, under the Spanish portion of Philippine law, the waters within the
domestic jurisdiction are deemed part of the national domain, open to public use. (Book II, Tit. IV, Ch. I, Civil Code;
Spanish Law of Waters of August 3, 1866, arts 1, 2, 3.) Common carriers which in the Philippines as in the United States and
other countries are, as Lord Hale said, "affected with a public interest," can only be permitted to use these public waters
as a privilege and under such conditions as to the representatives of the people may seem wise. (See De
Villata vs. Stanley [1915], 32 Phil., 541.)

In Patsone vs. Commonwealth of Pennsylvania ([1913], 232 U.S., 138), a case herein before mentioned, Justice Holmes
delivering the opinion of the United States Supreme Court said:

This statute makes it unlawful for any unnaturalized foreign-born resident to kill any wild bird or animal except in
defense of person or property, and `to that end' makes it unlawful for such foreign-born person to own or be
possessed of a shotgun or rifle; with a penalty of $25 and a forfeiture of the gun or guns. The plaintiff in error was
found guilty and was sentenced to pay the abovementioned fine. The judgment was affirmed on successive
appeals. (231 Pa., 46; 79 Atl., 928.) He brings the case to this court on the ground that the statute is contrary to
the 14th Amendment and also is in contravention of the treaty between the United States and Italy, to which
latter country the plaintiff in error belongs .

Under the 14th Amendment the objection is twofold; unjustifiably depriving the alien of property, and
discrimination against such aliens as a class. But the former really depends upon the latter, since it hardly can
be disputed that if the lawful object, the protection of wild life (Geer vs. Connecticut, 161 U.S., 519; 40 L. ed.,
793; 16 Sup. Ct. Rep., 600), warrants the discrimination, the, means adopted for making it effective also might
be adopted. . . .

The discrimination undoubtedly presents a more difficult question. But we start with reference to the evil to be
prevented, and that if the class discriminated against is or reasonably might be considered to define those
from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not
matter. The question is a practical one, dependent upon experience. . . .

The question therefore narrows itself to whether this court can say that the legislature of Pennsylvania was not
warranted in assuming as its premise for the law that resident unnaturalized aliens were the peculiar source of
the evil that it desired to prevent. (Barrett vs. Indiana,. 229 U.S., 26, 29; 57 L. ed., 1050, 1052; 33 Sup. Ct. Rep.,
692.)

Obviously the question, so stated, is one of local experience, on which this court ought to be very slow to
declare that the state legislature was wrong in its facts (Adams vs. Milwaukee, 228 U.S., 572, 583; 57 L. ed.,
971,.977; 33 Sup. Ct. Rep., 610.) If we might trust popular speech in some states it was right; but it is enough that
this court has no such knowledge of local conditions as to be able to say that it was manifestly wrong. . . .

Judgment affirmed.

We are inclined to the view that while Smith, Bell & Co. Ltd., a corporation having alien stockholders, is entitled to the
protection afforded by the due-process of law and equal protection of the laws clause of the Philippine Bill of Rights,
nevertheless, Act No. 2761 of the Philippine Legislature, in denying to corporations such as Smith, Bell &. Co. Ltd., the right
to register vessels in the Philippines coastwise trade, does not belong to that vicious species of class legislation which
must always be condemned, but does fall within authorized exceptions, notably, within the purview of the police power,
and so does not offend against the constitutional provision.

This opinion might well be brought to a close at this point. It occurs to us, however, that the legislative history of the
United States and the Philippine Islands, and, probably, the legislative history of other countries, if we were to take the
time to search it out, might disclose similar attempts at restriction on the right to enter the coastwise trade, and might
thus furnish valuable aid by which to ascertain and, if possible, effectuate legislative intention.

3. The power to regulate commerce, expressly delegated to the Congress by the Constitution, includes the
power to nationalize ships built and owned in the United States by registries and enrollments, and the recording
of the muniments of title of American vessels. The Congress "may encourage or it may entirely prohibit such
commerce, and it may regulate in any way it may see fit between these two extremes." (U.S. vs.Craig [1886], 28
Fed., 795; Gibbons vs. Ogden [1824], 9 Wheat., 1; The Passenger Cases [1849], 7 How., 283.)

Acting within the purview of such power, the first Congress of the United States had not been long convened before it
enacted on September 1, 1789, "An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for
other purposes." Section 1 of this law provided that for any ship or vessel to obtain the benefits of American registry, it
must belong wholly to a citizen or citizens of the United States "and no other." (1 Stat. at L., 55.) That Act was shortly after
repealed, but the same idea was carried into the Acts of Congress of December 31, 1792 and February 18, 1793. (1 Stat.
at L., 287, 305.).Section 4 of the Act of 1792 provided that in order to obtain the registry of any vessel, an oath shall be
taken and subscribed by the owner, or by one of the owners thereof, before the officer authorized to make such registry,
declaring, "that there is no subject or citizen of any foreign prince or state, directly or indirectly, by way of trust,
confidence, or otherwise, interested in such vessel, or in the profits or issues thereof." Section 32 of the Act of 1793 even
went so far as to say "that if any licensed ship or vessel shall be transferred to any person who is not at the time of such
transfer a citizen of and resident within the United States, ... every such vessel with her tackle, apparel, and furniture, and
the cargo found on board her, shall be forefeited." In case of alienation to a foreigner, Chief Justice Marshall said that all
the privileges of an American bottom were ipso facto forfeited. (U.S. vs. Willings and Francis [1807], 4 Cranch, 48.) Even
as late as 1873, the Attorney-General of the United States was of the opinion that under the provisions of the Act of
December 31, 1792, no vessel in which a foreigner is directly or indirectly interested can lawfully be registered as a vessel
of the United. States. (14 Op. Atty.-Gen. [U.S.], 340.)

These laws continued in force without contest, although possibly the Act of March 3, 1825, may have affected them,
until amended by the Act of May 28, 1896 (29 Stat. at L., 188) which extended the privileges of registry from vessels wholly
owned by a citizen or citizens of the United States to corporations created under the laws of any of the states thereof.
The law, as amended, made possible the deduction that a vessel belonging to a domestic corporation was entitled to
registry or enrollment even though some stock of the company be owned by aliens. The right of ownership of stock in a
corporation was thereafter distinct from the right to hold the property by the corporation (Humphreys vs. McKissock
[1890], 140 U.S., 304; Queen vs. Arnaud [1846], 9 Q. B., 806; 29 Op. Atty.-Gen. [U.S.],188.)

On American occupation of the Philippines, the new government found a substantive law in operation in the Islands with
a civil law history which it wisely continued in force Article fifteen of the Spanish Code of Commerce permitted any
foreigner to engage in Philippine trade if he had legal capacity to do so under the laws of his nation. When the
Philippine Commission came to enact the Customs Administrative Act (No. 355) in 1902, it returned to the old American
policy of limiting the protection and flag of the United States to vessels owned by citizens of the United States or by
native inhabitants of the Philippine Islands (Sec. 117.) Two years later, the same body reverted to the existing
Congressional law by permitting certification to be issued to a citizen of the United States or to a corporation or
company created under the laws of the United States or of any state thereof or of the Philippine Islands (Act No. 1235,
sec. 3.) The two administration codes repeated the same provisions with the necessary amplification of inclusion of
citizens or native inhabitants of the Philippine Islands (Adm. Code of 1916, sec. 1345; Adm. Code of 1917, sec. 1172). And
now Act No. 2761 has returned to the restrictive idea of the original Customs Administrative Act which in turn was merely
a reflection of the statutory language of the first American Congress.

Provisions such as those in Act No. 2761, which deny to foreigners the right to a certificate of Philippine registry, are thus
found not to be as radical as a first reading would make them appear.

Without any subterfuge, the apparent purpose of the Philippine Legislature is seen to be to enact an anti-alien shipping
act. The ultimate purpose of the Legislature is to encourage Philippine ship-building. This, without doubt, has, likewise,
been the intention of the United States Congress in passing navigation or tariff laws on different occasions. The object of
such a law, the United States Supreme Court once said, was to encourage American trade, navigation, and ship-
building by giving American ship-owners exclusive privileges. (Old Dominion Steamship Co. vs.Virginia [1905], 198 U.S.,
299; Kent's Commentaries, Vol. 3, p. 139.)
In the concurring opinion of Justice Johnson in Gibbons vs. Ogden ([1824], 9 Wheat., 1) is found the following:

Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming
houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of
an extensive system, the object of which is to encourage American shipping, and place them on an equal
footing with the shipping of other nations. Almost every commercial nation reserves to its own subjects a
monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is contemplated, in
the whole legislation of the United States on this subject. It is not to give the vessel an American character, that
the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to confer
on her American privileges, as contradistinguished from foreign; and to preserve the. Government from fraud
by foreigners, in surreptitiously intruding themselves into the American commercial marine, as well as frauds
upon the revenue in the trade coastwise, that this whole system is projected.

The United States Congress in assuming its grave responsibility of legislating wisely for a new country did so imbued with a
spirit of Americanism. Domestic navigation and trade, it decreed, could only be carried on by citizens of the United
States. If the representatives of the American people acted in this patriotic manner to advance the national policy, and
if their action was accepted without protest in the courts, who can say that they did not enact such beneficial laws
under the all-pervading police power, with the prime motive of safeguarding the country and of promoting its
prosperity? Quite similarly, the Philippine Legislature made up entirely of Filipinos, representing the mandate of the Filipino
people and the guardian of their rights, acting under practically autonomous powers, and imbued with a strong sense of
Philippinism, has desired for these Islands safety from foreign interlopers, the use of the common property exclusively by
its citizens and the citizens of the United States, and protection for the common good of the people. Who can say,
therefore, especially can a court, that with all the facts and circumstances affecting the Filipino people before it, the
Philippine Legislature has erred in the enactment of Act No. 2761?

Surely, the members of the judiciary are not expected to live apart from active life, in monastic seclusion amidst dusty
tomes and ancient records, but, as keen spectators of passing events and alive to the dictates of the general — the
national — welfare, can incline the scales of their decisions in favor of that solution which will most effectively promote
the public policy. All the presumption is in favor of the constitutionally of the law and without good and strong reasons,
courts should not attempt to nullify the action of the Legislature. "In construing a statute enacted by the Philippine
Commission (Legislature), we deem it our duty not to give it a construction which would be repugnant to an Act of
Congress, if the language of the statute is fairly susceptible of another construction not in conflict with the higher law." (In
re Guariña [1913], 24. Phil., 36; U.S. vs. Ten Yu [1912], 24 Phil., 1.) That is the true construction which will best carry
legislative intention into effect.

With full consciousness of the importance of the question, we nevertheless are clearly of the opinion that the limitation of
domestic ownership for purposes of obtaining a certificate of Philippine registry in the coastwise trade to citizens of the
Philippine Islands, and to citizens of the United States, does not violate the provisions of paragraph 1 of section 3 of the
Act of Congress of August 29, 1916 No treaty right relied upon Act No. 2761 of the Philippine Legislature is held valid and
constitutional .

The petition for a writ of mandamus is denied, with costs against the petitioner. So ordered.

Arellano, C.J., Torres, Johnson, Araullo, Street, Avanceña and Moir, JJ., concur.

EN BANC

G.R. No. L-2832 November 24, 1906

 REV. JORGE BARLIN, in his capacity as apostolic administrator of this vacant bishopric and legal representative of the
general interests of the Roman Catholic Apostolic Church in the diocese of Nueva Caceres,Plaintiff-Appellee, vs. P.
VICENTE RAMIREZ, ex-rector of the Roman Catholic Apostolic Parochial Church of Lagonoy, AND THE MUNICIPALITY OF
LAGONOY,Defendants-Appellants.

Manly & Gallup for appellants.

Leoncio Imperial and Chicote, Miranda & Sierra for appellee.

WILLARD, J.:

There had been priests of the Roman Catholic Church in the pueblo of Lagonoy, in the Province of Ambos Camarines,
since 1839. On the 13th of January, 1869, the church and convent were burned. They were rebuilt between 1870 and
1873. There was evidence that this was done by the order of the provincial governor. The labor necessary for this
reconstruction was performed by the people of the pueblo the direction of the cabeza de barangay. Under the law
then in force, each man in the pueblo was required to work for the government, without compensation, for forty days
every year. The time spent in the reconstruction of these buildings was counted as a part of the forty days. The material
necessary was brought and paid for in part by the parish priest from the funds of the church and in part was donated by
certain individuals of the pueblo. After the completion of the church it was always administered, until November 14,
1902, by a priest of a Roman Catholic Communion and all the people of the pueblo professed that faith and belonged
to that church.chanroblesvirtualawlibrary chanrobles virtual law library

The defendant, Ramirez, having been appointed by the plaintiff parish priest, took possession of the church on the 5th of
July, 1901. he administered it as such under the orders of his superiors until the 14th day of November, 1902. His successor
having been then appointed, the latter made a demand on this defendant for the delivery to him of the church,
convent, and cemetery, and the sacred ornaments, books, jewels, money, and other property of the church. The
defendant, by a written document of that date, refused to make such delivery. That document is as follows:

At 7 o'clock last night I received through Father Agripino Pisino your respected order of the 12th instant, wherein I am
advised of the appointment of Father Pisino as acting parish priest of this town, and directed to turn over to him this
parish and to report to you at the vicarage. In reply thereto, I have the honor to inform you that the town of Lagonoy, in
conjunction with the parish priest thereof, has seen fit to sever connection with the Pope at Rome and his representatives
in these Islands, and join the Filipino Church, the head of which is at Manila. This resolution of the people was reduced to
writing and triplicate copies made, of which I beg to inclose a copy herewith.chanroblesvirtualawlibrary chanrobles
virtual law library

For this reason I regret to inform you that I am unable to obey your said order by delivering to Father Agripino Pisino the
parish property of Lagonoy which, as I understand, is now outside of the control of the Pope and his representatives in
these Islands. May God guard you many years.chanroblesvirtualawlibrary chanrobles virtual law library

Lagonoy, November 14, 1902.

(Signed) VICENTE RAMIREZ.chanroblesvirtualawlibrary chanrobles virtual law library

RT. REV. VICAR OF THIS DISTRICT.

The document, a copy of which is referred to in this letter, is as follows:

LAGONOY, November, 9, 1902. chanrobles virtual law library

The municipality of this town and some of its most prominent citizens having learned through the papers from the capital
of these Islands of the constitution of the Filipino National Church, separate from the control of the Pope at Rome by
reason of the fact that the latter has refused to either recognize or grant the rights to the Filipino clergy which have
many times been urged, and it appearing to us that the reasons advanced why such offices should be given to the
Filipino clergy are evidently well-founded, we have deemed it advisable to consult with the parish priest of this town as to
whether it would be advantageous to join the said Filipino Church and to separate from the control of the Pope as long
as he continues to ignore the rights of the said Filipino clergy, under the conditions that there will be no change in the
articles of faith, and that the sacraments and other dogmas will be recognized and particularly that of the immaculate
conception of the mother of our Lord. But the moment the Pope at Rome recognizes and grants the rights heretofore
denied to the Filipino clergy we will return to his control. In view of this, and subject to this condition, the reverend parish
priest, together with the people of the town, unanimously join in declaring that from this date they separate themselves
from the obedience and control of the Pope and join the Filipino National Church. This assembly and the reverend parish
priest have accordingly adopted this resolution written in triplicate, and resolved to send a copy thereof to the civil
government of this province for its information, and do sign the same below. Vicente Ramirez, Francisco Israel, Ambrosio
Bocon, Florentino Relloso, Macario P. Ledesma, Cecilio Obias, Balbino Imperial, Juan Preseñada, Fernando Deudor,
Mauricio Torres, Adriano Sabater.

At the meeting at which the resolution spoken of in this document was adopted, there were present about 100 persons
of the pueblo. There is testimony in the case that the population of the pueblo was at that time 9,000 and that all but 20
of the inhabitants were satisfied with the action there taken. Although it is of no importance in the case, we are inclined
to think that the testimony to this effect merely means that about 100 of the principal men of the town were in favor of
the resolution and about 20 of such principal men were opposed to it. After the 14th of November, the defendant,
Ramirez, continued in the possession of the church and other property and administered the same under the directions
of his superior, the Obispo Maximo of the Independent Filipino Church. The rites and ceremonies and the manner of
worship were the same after the 14th day of November as they were before, but the relations between the Roman
Catholic Church and the defendant had been entirely severed.chanroblesvirtualawlibrary chanrobles virtual law library

In January, 1904, the plaintiff brought this action against the defendant, Ramirez, alleging in his amended complaint that
the Roman Catholic Church was the owner of the church building, the convent, cemetery, the books, money, and other
property belonging thereto, and asking that it be restored to the possession thereof and that the defendant render an
account of the property which he had received and which was retained by him, and for other
relief.chanroblesvirtualawlibrary chanrobles virtual law library

The answer of the defendant, Ramirez, in addition to a general denial of the allegation of the complaint, admitted that
he was in the possession and administration of the property described therein with the authority of the municipality of
Lagonoy and of the inhabitants of the same, who were the lawful owners of the said property. After this answer had
been presented, and on the 1st day of November, 1904, the municipality of Lagonoy filed a petition asking that it be
allowed to intervene in the case and join with the defendant, Ramirez, as a defendant therein. This petition been
granted, the municipality of the 1st day of December filed an answer in which it alleged that the defendant, Ramirez,
was in possession of the property described in the complaint under the authority and with the consent of the
municipality of Lagonoy and that such municipality was the owner thereof.chanroblesvirtualawlibrary chanrobles virtual
law library

Plaintiff answered this complaint, or answer in intervention, and the case was tried and final judgment in entered therein
in favor of the plaintiff and against the defendants. The defendants then brought the case here by a bill of
exceptions.chanroblesvirtualawlibrary chanrobles virtual law library

That the person in the actual possession of the church and other property described in the complaint is the defendant,
Ramirez, is plainly established by the evidence. It does not appear that the municipality, as a corporate body, ever took
any action in reference to this matter until they presented their petition for intervention in this case. In fact, the witnesses
for the defense, when they speak of the ownership of the buildings, say that they are owned by the people of the
pueblo, and one witness, the president, said that the municipality as a corporation had nothing whatever to do with the
matter. That the resolution adopted on the 14th of November, and which has been quoted above, was not the action
of the municipality, as such, is apparent from an inspection thereof.chanroblesvirtualawlibrary chanrobles virtual law
library

The witnesses for the defenses speak of a delivery of the church by the people of the pueblo to the defendant, Ramirez,
but there is no evidence in the case of any such delivery. Their testimony in regard to the delivery always refers to the
action taken on the 14th of November, a record of which appears that in the document above quoted. It is apparent
that the action taken consisted simply in separating themselves from the Roman Catholic Church, and nothing is said
therein in reference to the material property then in possession of the defendant,
Ramirez.chanroblesvirtualawlibrary chanrobles virtual law library

There are several grounds upon which this judgment must be affirmed.chanroblesvirtualawlibrary chanrobles virtual law
library

(1) As to the defendant, Ramirez, it appears that he took possession of the property as the servant or agent of the
plaintiff. The only right which he had to the possession at the time he took it, was the right which was given to him by the
plaintiff, and he took possession under the agreement to return that possession whenever it should be demanded of him.
Under such circumstances he will not be allowed, when the return of such possession is demanded by him the plaintiff, to
say that the plaintiff is not the owner of the property and is not entitled to have it delivered back to him. The principle of
law that a tenant can not deny his landlord's title, which is found in section 333, paragraph 2, of the Code of Civil
Procedure, and also in the Spanish law, is applicable to a case of this kind. An answer of the defendant, Ramirez, in
which he alleged that he himself was the owner of the property at the time he received it from the plaintiff, or in which
he alleged that the pueblo was the owner of the property at that time, would constitute no defense. There is no claim
made by him that since the delivery of the possession of the property to him by the plaintiff he has acquired the title
thereto by other means, nor does he is own behalf make any claim whatever either to the property or to the possession
thereof.chanroblesvirtualawlibrary chanrobles virtual law library

(2) The municipality of Lagonoy, in its answer, claims as such, to be the owner of the property. As we have said before,
the evidence shows that it never was in the physical possession of the property. But waiving this point and assuming that
the possession of Ramirez, which he alleges in his answer is the possession of the municipality, gives the municipality the
rights of a possessor, the question still arises, Who has the better right to the present possession of the property? The
plaintiff, in 1902, had been in the lawful possession thereof for more than thirty years and during all that time its possession
had never been questioned or disturbed. That possession has been taken away from it and it has the right now to
recover the possession from the persons who have so deprived it of such possession, unless the latter can show that they
have a better right thereto. This was the preposition which was discussed and settled in the case of Bishop of Cebu vs.
Mangaron, 1 No. 1748, decided June 1, 1906. That decision holds that as against one who has been in possession for the
length of the plaintiff has been in possession, and who had been deprived of his possession, and who can not produce
any written evidence of title, the mere fact that the defendant is in possession does not entitle the defendant to retain
that possession. In order that he may continue in possession, he must show a better right
thereto.chanroblesvirtualawlibrary chanrobles virtual law library

The evidence in this case does not show that the municipality has, as such, any right of whatever in the property in
question. It has produced no evidence of ownership. Its claim of ownership is rested in its brief in this court upon the
following propositions: That the property in question belonged prior to the treaty of Paris to the Spanish Government; that
by the treaty of Paris the ownership thereof passed to the Government of the United States; that by section 12 of the act
of Congress of July 1, 1902, such property was transferred to the Government of the Philippine Islands, and that by the
circular of that Government, dated November 11, 1902, the ownership and the right to the possession of this property
passed to the municipality of Lagonoy. If, for the purposes of the argument, we should admit that the other propositions
are true, there is no evidence whatever to support the last proposition, namely that the Government of the Philippine
Islands has transferred the ownership of this church to the municipality of Lagonoy. We have found no circular of the
date above referred to. The one of February 10, 1903, which is probably the one intended, contains nothing that
indicates any such transfer. As to the municipality of Lagonoy, therefore, it is very clear that it has neither title, ownership,
nor right of possession.chanroblesvirtualawlibrary chanrobles virtual law library

(3) We have said that it would have no such title or ownership ever admitting that the Spanish Government was the
owner of the property and it has passed by the treaty of Paris to the American Government. But this assumption is not
true. As a matter of law, the Spanish Government at the time the treaty of peace was signed, was not the owner of this
property, nor of any other property like it, situated in the Philippine Islands.chanroblesvirtualawlibrary chanrobles virtual
law library

It does not admit of doubt that from the earliest times the parish churches in the Philippine Islands were built by the
Spanish Government. Law 2, title 2, book 1, of the Compilation of the Laws of the Indies is, in part, as follows:

Having erected all the churches, cathedrals, and parish houses of the Spaniards and natives of our Indian possessions
from their discovery at the cost and expense of our royal treasury, and applied for their service and maintenance the
part of the tithes belonging to us by apostolic concession according to the division we have made.

Law 3 of the same title to the construction of parochial churches such as the one in question. That law is as follows:

The parish churches which was erected in Spanish towns shall be of durable and decent construction. Their costs shall be
divided and paid in three parts: One by our royal treasury, another by the residents and Indian encomenderos of the
place where such churches are constructed, and the other part by the Indians who abide there; and if within the limits
of a city, village, or place there should be any Indians incorporated to our royal crown, we command that for our part
there be contributed the same amount as the residents and encomenderos, respectively, contribute; and the residents
who have no Indians shall also contribute for this purpose in accordance with their stations and wealth, and that which is
so given shall be deducted from the share of the Indians should pay.

Law 11 of the same title is as follows:

We command that the part of the tithes which belongs to the fund for the erection of churches shall be given to their
superintendents to be expended for those things necessary for these churches with the advice of the prelates and
officials, and by their warrants, and not otherwise. And we request and charge the archbishops and bishops not to
interfere in the collection and disbursement thereof, but to guard these structures.
Law 4, title 3, book 6, is as follows:

In all settlements, even though the Indians are few, there shall be erected a church where mass can be decently held,
and it shall have a donor with a key, notwithstanding the fact that it be the subject to or separate from a parish.

Not only were all the parish churches in the Philippines erected by the King and under his direction, but it was made
unlawful to erect a church without the license of the King. This provision is contained in Law 2, title 6, book 1, which is as
follows:

Whereas it is our intention to erect, institute, found, and maintain all cathedrals, parish churches, monasteries, votive
hospitals, churches, and religious and pious establishments where they are necessary for the teaching, propagation, and
preaching of the doctrine of our sacred Roman Catholic faith, and to aid to this effect with out royal treasury whenever
possible, and to receive information of such places where they should be founded and are necessary, and the
ecclesiastical patronage of all our Indies belonging to us: chanrobles virtual law library

We command that there shall not be erected, instituted, founded, or maintained any cathedral, parish church,
monastery, hospital, or votive churches, or other pious or religious establishment without our express permission as is
provided in Law 1, title 2, and Law 1, title 3, of this book, notwithstanding any permission heretofore given by our viceroy
or other ministers, which in this respect we revoke and make null, void, and of no effect.

By agreement at an early date between the Pope and the Crown of Spain, all tithes in the Indies were given by the
former to the latter and the disposition made the King of the fund thus created is indicated by Law 1, title 16, book 1,
which is as follows:

Whereas the ecclesiastical tithes from the Indies belong to us by the apostolic concessions of the supreme pontiffs, we
command the officials of our royal treasury of those provinces to collect and cause to be collected all tithes due and to
become due from the crops and flocks of the residents in the manner in which it has been the custom to pay the same,
and from these tithes the churches shall be provided with competent persons of good character to serve them and with
all ornaments and things which may be necessary for divine worship, to the end that these churches may be well served
and equipped, and we shall be informed of God, our Lord; this order shall be observed where the contrary has not
already been directed by us in connection with the erection of churches.

That the condition of things existing by virtue of the Laws of the Indies was continued to the present time is indicated by
the royal order of the 31st of January, 1856, and by the royal order of the 13th of August, 1876, both relating to the
construction and repair of churches, there being authority for saying that the latter order was in force in the
Philippines.chanroblesvirtualawlibrary chanrobles virtual law library

This church, and other churches similarly situated in the Philippines, having been erected by the Spanish Government,
and under its direction, the next question to be considered is, To whom did these churches belong? chanrobles virtual
law library

Title 28 of the third partida is devoted to the ownership of things and, after discussing what can be called public property
and what can be called private property, speaks, in Law 12, of those things which are sacred, religious, or holy. That law
is as follows:

Law XII. - HOW SACRED OR RELIGIOUS THINGS CAN NOT BE OWNED BY ANY
PERSON.chanroblesvirtualawlibrary chanrobles virtual law library

No sacred, religious, or holy thing, devoted to the service of God, can be the subject of ownership by any man, nor can
it be considered as included in his property holdings. Although the priests may have such things in their possession, yet
they are not the owners thereof. They, hold them thus as guardians or servants, or because they have the care of the
same and serve God in or without them. Hence they were allowed to take from the revenues of the church and lands
what was reasonably necessary for their support; the balance, belonging to God, was to be devoted to pious purposes,
such as the feeding and clothing of the poor, the support of orphans, the marrying of poor virgins to prevent their
becoming evil women because of their poverty, and for the redemption of captives and the repairing of the churches,
and the buying of chalices, clothing, books, and others things which they might be in need of, and other similar
charitable purposes.

And then taking up for consideration the first of the classes in to which this law has divided these things, it defines in Law
13, title 28, third partida, consecrated things. That law is as follows:
Sacred things, we say, are those which are consecrated by the bishops, such as churches, the altars therein, crosses,
chalices, censers, vestments, books, and all other things which are in tended for the service of the church, and the title
to these things can not be alienated except in certain specific cases as we have already shown in the first partidaof this
book by the laws dealing with this subject. We say further that even where a consecrated church is razed, the ground
upon which it formerly stood shall always be consecrated ground. But if any consecrated church should fall into the
hands of the enemies of our faith it shall there and then cease to be sacred as long as the enemy has it under control,
although once recovered by the Christians, it will again become sacred, reverting to its condition before the enemy
seized it and shall have all the right and privileges formerly belonging to it.

That the principles of the partida in reference to churches still exist is indicated by Sanchez Roman, whose work on the
Civil Law contains the following statement:

First Group. Spiritual and corporeal or ecclesiastical. A. Spiritual. - From early times distinction has been made by authors
and by law between things governed by divine law, called divine, and those governed by human law, called human,
and although the former can not be the subject of civil juridical relations, their nature and species should be ascertained
either to identify them and exclude them from such relations or because they furnish a complete explanation of the
foregoing tabulated statement, or finally because the laws of the partida deal with them.

Divine things are those which are either directly or indirectly established by God for his service and sanctification of men
and which are governed by divine or canonical laws. This makes it necessary to divide them into spiritual things, which
are those which have a direct influence on the religious redemption of man such as the sacrament, prayers, fasts,
indulgences, etc., and corporeal or ecclesiastical, which are those means more or less direct for the proper religious
salvation of man.

7. First Group. Divine things. B. Corporeal or ecclesiastical things (sacred, religious, holy, and temporal belonging to the
church). - Corporeal or ecclesiastical things are so divided.chanroblesvirtualawlibrary chanrobles virtual law library

( a) Sacred things are those devoted to God, religion, and worship in general, such as temples, altars, ornaments, etc.
These things can not be alienated except for some pious purpose and in such cases as are provided for in the laws,
according to which their control pertains to the ecclesiastical authorities, and in so far as their use is concerned, to the
believers and the clergy. (2 Derecho Civil Español, Sanchez Roman, p. 480; 8 Manresa, Commentaries on the Spanish
Civil Code, p. 636; 3 Alcubilla, Diccionario de la Administracion Española, p. 486.)

The partidas defined minutely what things belonged to the public in general and what belonged to private persons. In
the first group churches are not named. The present Civil Code declares in article 338 that property is of public or private
ownership. Article 339, which defines public property, is as follows:

Property of public ownership is - chanrobles virtual law library

1. That destined to the public use, such as roads, canals, rivers, torrents, ports, and bridges constructed by the State, and
banks, shores, roadsteads, and that of similar character.chanroblesvirtualawlibrary chanrobles virtual law library

2. That belonging exclusively to the state without being for public use and which is destined to some public service, or to
the development of the national wealth, such as walls, fortresses, and other works for the defense of the territory, and
mines, until their concession has been granted.

The code also defines the property of provinces and of pueblos, and in defining what property is of public use, article
344 declares as follows:

Property for public use in provinces and in towns comprises the provincial and town roads, the squares, streets, fountains,
and public waters, the promenades, and public works of general service supported by the said towns or
provinces.chanroblesvirtualawlibrary chanrobles virtual law library

All other property possessed by either is patrimonial, and shall be governed by the provisions of this code, unless
otherwise prescribe in special laws.

It will be noticed that in either one of these articles is any mention made of churches. When the Civil Code undertook to
define those things in a pueblo which were for the common use of the inhabitants of the pueblo, or which belonged to
the State, while it mentioned a great many other things, it did not mention
churches.chanroblesvirtualawlibrary chanrobles virtual law library
It has been said that article 25 of the Regulations for the Execution of the Mortgage Law indicates that churches belong
to the State and are public property. That article is as follows:

There shall be excepted from the record required by article 2 of the law: chanrobles virtual law library

First. Property which belongs exclusively to the eminent domain of the State, and which is for the use of all, such as the
shores of the sea, islands, rivers and their borders, wagon roads, and the roads of all kinds, with the exception of railroads;
streets, parks, public promenades, and commons of towns, provided they are not lands of common profit to the
inhabitants; walls of cities and parks, ports, and roadsteads, and any other analogous property during the time they are
in common and general use, always reserving the servitudes established by law on the shores of the sea and borders of
navigable rivers.chanroblesvirtualawlibrary chanrobles virtual law library

Second. Public temples dedicated to the Catholic faith.

A reading of this article shows that far from proving that churches belong to the State and to the eminent domain
thereof, it proves the contrary, for, if they had belonged to the State, they would have been included in the first
paragraph instead of being placed in a paragraph by themselves.chanroblesvirtualawlibrary chanrobles virtual law
library

The truth is that, from the earliest times down to the cession of the Philippines to the United States, churches and other
consecrated objects were considered outside of the commerce of man. They were not public property, nor could they
be subjects of private property in the sense that any private person could the owner thereof. They constituted a kind of
property distinctive characteristic of which was that it was devoted to the worship of
God.chanroblesvirtualawlibrary chanrobles virtual law library

But, being material things was necessary that some one should have the care and custody of them and the
administration thereof, and the question occurs, To whom, under the Spanish law, was intrusted that possession and
administration? For the purposes of the Spanish law there was only one religion. That was the religion professed by the
Roman Catholic Church. It was for the purposes of that religion and for the observance of its rites that this church and all
other churches in the Philippines were erected. The possession of the churches, their care and custody, and the
maintenance of religious worship therein were necessarily, therefore, intrusted to that body. It was, by virtue of the laws
of Spain, the only body which could under any circumstances have possession of, or any control over, any church
dedicated to the worship of God. By virtue of those laws this possession and right of control were necessarily exclusive. It
is not necessary or important to give any name to this right of possession and control exercised by the Roman Catholic
Church in the church buildings of the Philippines prior to 1898. It is not necessary to show that the church as a juridical
person was the owner of the buildings. It is sufficient to say that this right to the exclusive possession and control of the
same, for the purposes of its creation, existed.chanroblesvirtualawlibrary chanrobles virtual law library

The right of patronage, existing in the King of Spain with reference to the churches in the Philippines, did not give him any
right to interfere with the material possession of these buildings.chanroblesvirtualawlibrary chanrobles virtual law library

Title 6 of book 1 of the Compilation of the laws of the Indies treats Del Patronazgo Real de las Indias. There is nothing in
any one of the fifty-one laws which compose this title which in any way indicates that the King of Spain was the owner of
the churches in the Indies because he had constructed them. These laws relate to the right of presentation to
ecclesiastical charges and offices. For example, Law 49 of the title commences as follows:

Because the patronage and right of presentation of all archbishops, bishops, dignitaries, prevents, curates, and doctrines
and all other beneficiaries and ecclesiastical offices whatsoever belong to us, no other person can obtain or possess the
same without our presentation as provided in Law 1 and other laws of this title.

Title 15 of the first partida treats of the right of patronage vesting in private persons, but there is nothing in any one of its
fifteen laws which in any way indicates that the private patron is the owner of the
church.chanroblesvirtualawlibrary chanrobles virtual law library

When it is said that this church never belonged to the Crown of Spain, it is not intended to say that the Government and
had no power over it. It may be that by virtue of that power of eminent domain which is necessarily resides in every
government, it might have appropriated this church and other churches, and private property of individuals. But nothing
of this kind was ever attempted in the Philippines.chanroblesvirtualawlibrary chanrobles virtual law library
It, therefore, follows that in 1898, and prior to the treaty of Paris, the Roman Catholic Church had by law the exclusive
right to the possession of this church and it had the legal right to administer the same for the purposes for which the
building was consecrated. It was then in the full and peaceful possession of the church with the rights aforesaid. That
these rights were fully protected by the treaty of Paris is very clear. That treaty, in article 8, provides, among other things,
as follows:

And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph
refers, can not in any respect impair the property or rights which by law belong to the peaceful possession of property of
all kinds, or provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other
associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of
private individuals, or whatsoever nationality such individuals may be.

It is not necessary, however, to invoke the provisions of that treaty. Neither the Government of the United States, nor the
Government of these Islands, has ever attempted in any way to interfere with the rights which the Roman Catholic
Church had in this building when Spanish sovereignty ceased in the Philippines. Any interference that has resulted has
been caused by private individuals, acting without any authority from the
Government.chanroblesvirtualawlibrary chanrobles virtual law library

No point is made in the brief of the appellant that any distinction should be made between the church and the
convent. The convent undoubtedly was annexed to the church and, as to it, the provisions of Law 19, title 2, book 1, of
the Compilation of the Laws of the Indies would apply. That law is as follows:

We command that the Indians of each town or barrio shall construct such houses as may be deemed sufficient in which
the priests of such towns or barrios may live comfortably adjoining the parish church of the place where that may be
built for the benefit of the priests in charge of such churches and engaged in the education and conversion of their
Indian parishioners, and they shall not be alienated or devoted to any other purpose.

The evidence in this case makes no showing in regard to the cemetery. It is always mentioned in connection with the
church and convent and no point is made by the possession of the church and convent, he is not also entitled to
recover possession of the cemetery. So, without discussing the question as to whether the rules applicable to churches
are all respects applicable to cemeteries, we hold for the purpose of this case that the plaintiff has the same right to the
cemetery that he has to the church.chanroblesvirtualawlibrary chanrobles virtual law library

(4) It is suggested by the appellant that the Roman Catholic Church has no legal personality in the Philippine Islands. This
suggestion, made with reference to an institution which antedates by almost a thousand years any other personality in
Europe, and which existed "when Grecian eloquence still flourished in Antioch, and when idols were still worshiped in the
temple of Mecca," does not require serious consideration. In the preamble to the budget relating to ecclesiastical
obligations, presented by Montero Rios to the Cortes on the 1st of October 1871, speaking of the Roman Catholic
Church, he says:

Persecuted as an unlawful association since the early days of its existence up to the time of Galieno, who was the first of
the Roman emperors to admit it among the juridicial entities protected by the laws of the Empire, it existed until then by
the mercy and will of the faithful and depended for such existence upon pious gifts and offerings. Since the latter half of
the third century, and more particularly since the year 313, when Constantine, by the edict of Milan, inaugurated an era
of protection for the church, the latter gradually entered upon the exercise of such rights as were required for the
acquisition, preservation, and transmission of property the same as any other juridical entity under the laws of the Empire.
(3 Dictionary of Spanish Administration, Alcubilla, p. 211. See also the royal order of the 4th of December, 1890, 3
Alcubilla, 189.)

The judgment of the court below is affirmed, with the costs of this instance against the appellant. After the expiration of
twenty days from the date hereof let judgment be entered in accordance herewith, and ten days thereafter the record
be remanded to the court below for execution. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Arellano, C.J., Torres, Mapa and Tracey, JJ., concur.

Johnson, J., reserves his vote. chanrobles virtual law library

chanrobles virtual law library

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chanrobles virtual law library

Separate Opinions chanrobles virtual law library

chanrobles virtual law library

CARSON, J., concurring: chanrobles virtual law library

I am in entire accord with the majority of the court as to the disposition of this case, but I can not adopt the reasoning by
which some of the conclusions appear to have been obtained, nor accept without reserve all of the propositions laid
down in the majority opinion.chanroblesvirtualawlibrary chanrobles virtual law library

Profoundly as I respect the judgment of my associates, and distrustful as I ought to be of my own, the transcendant
importance of the issues involved seems to impose upon me the duty of writing a separate opinion and stating therein as
clearly as may be the precise grounds upon which I base my assent and the reasons which forbid my acceptance of
the majority opinion in its entirety.chanroblesvirtualawlibrary chanrobles virtual law library

I accept the argument and authority of the opinion of the court in so far as it finds: That the Roman Catholic Church is a
juridical entity in the Philippine Islands; that the defendant, Ramirez, can not and should not be permitted in this action to
deny the plaintiff's right to the possession of the property in question, because he can not be heard to set up title thereto
in himself or a third person, at least until he has first formally surrendered it to the plaintiff who intrusted it to his care; that
the municipality of Lagonoy has failed to show by evidence of record that it is or ever was in physical possession of the
property in question; and that the possession of the defendant Ramirez, can not be relied upon as the possession of the
municipality because the same reason which estops Ramirez from denying the right of possession in the plaintiff estops
any other person claiming possession through him from denying that right. I agree, furthermore, with the finding that the
defendant municipality failed to establish a better right to the possession than the plaintiff in this action, because,
claiming to be the owner by virtue of a grant from the Philippine Government, it failed to establish the existence of such
grant; and because, furthermore, it was shown that the plaintiff or his predecessors had been in possession and control
of the property in question for a long period of years prior to the treaty of Paris by unlawful authority of the King of Spain,
and that since the sovereignty of these Islands has been transferred to the United States the new sovereign has never at
any time divested or attempted to divest the plaintiff of this possession and
control.chanroblesvirtualawlibrary chanrobles virtual law library

Thus far I am able to accept the reasoning of the majority opinion, and these propositions, supported as they are by the
law and the evidence in this case, completely dispose of the question before us and establish the right of the plaintiff to
a judgment for possession.chanroblesvirtualawlibrarychanrobles virtual law library

I am not prepared, however, to give my assent to the proposition that prior to the Treaty of Paris "The King of Spain was
not the owner of the property in question nor of any other property like it situated in the Philippine Islands," and
inferentially that the United States is not now the owner thereof and has no property rights therein other than, perhaps,
the mere right of eminent domain.chanroblesvirtualawlibrary chanrobles virtual law library

I decline to affirm this proposition, first, because it is not necessary in the decision of this case; and second, because I am
of opinion that, in the unlimited and unrestricted sense in which it is stated in the majority opinion, it is inaccurate and
misleading, if not wholly erroneous.chanroblesvirtualawlibrary chanrobles virtual law library

That it is not necessary for the proper disposition of this case will be apparent if we consider the purpose for which it is
introduced in the argument and the proposition which it is intended to controvert. As stated in the majority opinion, the
claim of ownership of the defendant municipality -

It is rested upon the following propositions: That the property in question belonged, prior to the treaty of Paris, to the
Spanish Government; that by the treaty of Paris the ownership of thereof passed to the Government of the United States;
that by article 12 of the act of Congress of July 1, 1902, such property was transferred to the Government of the
Philippine Islands, and that by a circular of that Government dated November 11, 1902, the ownership and the right to
the possession of this property passed to the municipality of Lagonoy.

It is evident that if any of these propositions is successfully controverted, the defendants' claim of ownership must fall to
the ground. The majority opinion finds (and I am entire accord as to this finding) that neither the Government of the
United States nor the Philippine Government had ever made, or attempted to make, such transfer, and in making its
finding it completely, conclusively, and finally disposes of defendants' claim of
ownership.chanroblesvirtualawlibrary chanrobles virtual law library

All the acts of the Government of the United States and of the present Government of the Philippine Islands which can
have any relation to the property in question are before us, and so short a period of years has elapsed since the transfer
of the sovereignty of these Islands to the United States that it is possible to demonstrate with the utmost certainty that by
no act of the United States or of the Government of the Philippine Islands has the ownership and possession of this
property been conferred upon the defendant municipality; it is a very different undertaking, however, to review the
legislation of Spain for the three centuries of her Philippine occupation for the purpose of deciding the much-vexed
question of the respective property rights of the Spanish sovereign and the Roman Catholic Church in State-constructed
and State-aided churches in these Islands; and if I am correct in my contention that a holding that the King of Spain was
not." and, inferentially, that the Government of the United States is not, "the owner of this property or any other property
like it is situated in the Philippine Islands" is not necessary for the full, final, and complete determination of the case at bar,
then I think that this court should refrain from making so momentous a finding in a case wherein the United States is not a
party and has never had an opportunity to be heard.chanroblesvirtualawlibrary chanrobles virtual law library

But the mere fact that a finding that the King of Spain had no right of ownership in this property which could pass to the
United States under the provisions of the treaty of Paris is not necessary in my opinion for the disposition of the case at
bar, would not impose upon me the duty of writing a separate opinion if it were in fact and a law a correct holding. I am
convinced, however, that when stated without limitations or restrictions, as it appears in the majority opinion, it is
inaccurate and misleading, and it may not be improper, therefore, to indicate briefly my reasons for doubting
it.chanroblesvirtualawlibrary chanrobles virtual law library

As stated in the majority opinion, "it does not admit of doubt that the parish churches in the Philippines were built by the
Spanish Government," and it would seem therefore that prior to their dedication, the beneficial ownership, the legal title,
the possession and control of all this property must be taken to have been vested in that Government. But it must be
admitted that after this property was dedicated, the ownership, in contemplation of Spanish law, was said to have been
in God, and there can be no doubt that the physical possession and control of these churches for the purposes for
which they were dedicated was given to the Roman Catholic Church - not, as I think, absolutely and conclusively, but
limited by and subject to the royal patronage ( patronato real) which included the right to intervene in the appointment
of the representatives of the church into whose hands the possession and control of the sacred editors were to be
intrusted.chanroblesvirtualawlibrary chanrobles virtual law library

The anomalous status thus created might well have given rise to doubts and uncertainties as to the legal title and
beneficial ownership of this property had not the grantor and the lawgiver of Spain expressly and specifically provided
that neither the Roman Catholic Church nor any other person was or could become the owner thereof, and that all
these sacred edifices were to be regarded as beyond the commerce of men.

No sacred, religious, or holy thing, devoted to the service of God, can be the subject of ownership by any man, nor it
can be considered as included in his property holdings. Although the priests may have such things in their possession, yet
they are not the owners thereof. They hold them thus as guardians or servants, or because they have the care of the
same and serve God in or with them. Hence they were allowed to take from the Revenues of the church and lands what
was reasonably necessary for their support; the balance, belonging to God, was to be devoted to pious purposes, such
as the feeding and clothing of the poor, the support of orphans, the marrying of poor virgins to prevent their becoming
evil women because of their poverty; and for the redemption of captivers and the repairing of the churches, and the
buying of chalices, clothing, books, and other things which they might be in seed of, and other similar charitable
purposes. (Law 12, title 28, partida 3.)

It is difficult to determine, and still more difficult to state, the precise meaning and legal effect of this disposition of the
ownership, possession, and control of the parish churches in the Philippines; but since it was not possible for God, in any
usual or ordinary sense to take or hold, to enforce or to defend the legal title to this property, it would seem that a grant
to Him by the King or the Government of Spain could not suffice to convey to Him the legal title of the property set out in
the grant, and the truth would seem to be that the treatment of this property in contemplation of Spanish law as the
property of God was a mere arbitrary convention, the purpose and object of which was crystallize the status of all such
property in the peculiar and unusual mold in which it was cast at the time of its
dedication.chanroblesvirtualawlibrary chanrobles virtual law library

So long as church and state remained united and so long as the Roman Catholic Church continued to be the church of
the State, this convention served its purpose well; indeed, its very indefiniteness seems to have aided in the
accomplishment of the end for which it was adopted, and on a review of all the pertinent citations of Spanish law which
have been brought to my attention, I am satisfied that the status created by the above-cited law 12 of the partidas
continued without substantial modification to the date of the transfer of sovereignty from the King of Spain to the United
States. But this transfer of sovereignty, and the absolute severance of church and state which resulted therefrom, render
it necessary to ascertain as definitely as may be the true meaning and intent of this conventional treatment of the parish
churches in the Philippines as the property of God, and it is evident that for this purpose we must look to the substance
rather than the form and examine the intention of the grantor and the object he sought to attain, rather than the words
and conventional terms whereby that intent was symbolically expressed.chanroblesvirtualawlibrary chanrobles virtual
law library

It is not necessary to go beyond the citations of the majority opinion to see that the objects which the grantor sought to
attain were, first, and chiefly, to advance the cause of religion among the people of the Philippine Islands and to
provide for their religious instruction and edification by furnishing them with parish churches suitable for the worship and
glorification of God; second, to place those sacred edifices under the guardian care and custody of the church of the
State; and, third, to deny to that church and to all others the right of ownership in the property thus dedicated; and since
God could neither take nor hold the legal title to this property, the declaration of the King of Spain as set out in the
above-cited law, that when dedicated these churches became in some peculiar and especial manner the property of
God, was in effect no more than a solemn obligation imposed upon himself to hold them for the purposes for which they
were dedicated, and to exercise no right of property in them inconsistent
therewith.chanroblesvirtualawlibrary chanrobles virtual law library

This declaration that these churches are the property of God and the provisions which accompanied it, appear to me to
be precisely equivalent to a declaration of trust by the grantor that he would hold the property as trustee for the use for
which it was
dedicated - that is, for the religious edification and enjoyment of the people of the Philippine Islands - and that he would
give to the Roman Catholic Church the physical possession and control thereof, including the disposition of any funds
arising therefrom, under certain stipulated conditions and for the purposes expressly provided by law. In other words, the
people of the Philippine Islands became the beneficial owners of all such property, and the grantor continued to hold
the legal title, in trust nevertheless to hold the property for the purposes for which it was dedicated and on the further
trust to give the custody and control thereof to the Roman Catholic Church. If this interpretation of the meaning and
intent of the convention of Spanish law which treated God as the owner of the parish churches of the Philippine Islands
be correct, a holding that the King of Spain had no right to ownership in this property which could pass to the United
States by virtue of the treaty of Paris can not be maintained; and it is to withhold my assent from this proposition that I
have been compelled to write this separate opinion.chanroblesvirtualawlibrary chanrobles virtual law library

For the purposes of this opinion it is not necessary, nor would it be profitable, to do more than indicate the line of
reasoning which has led me to my conclusions, nor to discuss at length the question of ownership of this property,
because whether it be held to be in abeyance or in God or in the Roman Catholic Church or in the United States it has
been shown without deciding this question of ownership that the right to the possession for the purpose for which it was
dedicated is in the Roman Catholic Church, and while the complaint in this action alleges that the Roman Catholic
Church is the owner of the property in question, the prayer of the complaint is for the possession of this property of which
it is alleged that church has been unlawfully deprived; and because, furthermore, if I am correct in my contention that
the legal title to the State-constructed churches in the Philippines passed to the United States the virtue of the treaty of
Paris, it passed, nevertheless, subject to the trusts under which it was held prior thereto, and the United States can not at
will repudiate the conditions of that trust and retain its place in the circle of civilized nations; and as long as the property
continues to be used for the purposes for which it was dedicated, the Government of the United States has no lawful
right to deprive the Roman Catholic Church of the possession and control thereof under the terms and conditions upon
which that possession and control were originally granted.chanroblesvirtualawlibrary chanrobles virtual law library

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5921 July 25, 1911

THE STANDARD OIL COMPANY OF NEW YORK, plaintiff-appellee,

vs.
JUAN CODINA ARENAS AND OTHERS, defendants;
VICENTE SIXTO VILLANUEVA, appellant.

Chicote and Miranda for appellant.

W.A. Kincaid and Thos. L. Hartigan for appellee.

ARELLANO, C.J.:
On December 15, 1908, Juan Codina Arenas and Francisco Lara del Pino, as principals, and Alipio Locso, Vicente Sixto
Villanueva and the Chinaman, Siy Ho, as sureties, assumed the obligation to pay, jointly and severally, to the
corporation, The Standard Oil Company of New York, the sum of P3,305. 76, at three months from date, with interest at
P1 per month.

On April 5, 1909, The Standard Oil Company of New York sued the said five debtors for payment of the P3,305.76,
together with the interest thereon at the rate of 1 per cent per month from the 15th of December, 1908, and the costs.

The defendants were summoned, the record showing that summons was served on Vicente Sixto Villanueva on April 17,
1909.

On May 12, 1909, Vicente Sixto Villanueva and Siy Ho were declared to be in default and were so notified, the latter on
the 14th and the former on the 15th of May, 1909.

On August 28, 1909, the Court of First Instance of the city of Manila sentenced all the defendants to pay jointly and
severally to the plaintiff company the sum of P3,305.76, together with the interest thereon at 1 per cent per month from
December 15, 1908, until complete payment should have been made of the principal, and to pay the costs.

While the judgment was in the course of execution, Elisa Torres de Villanueva, the wife of Vicente Sixto Villanueva,
appeared and alleged: (1) That on July 24, 1909, the latter was declared to be insane by the Court of First Instance of
the city of Manila; (2) that she was appointed his guardian by the same court; (3) that, on October 11, following, she was
authorized by the court, as guardian, to institute the proper legal proceedings for the annulment of several bonds given
by her husband while in a state of insanity, among them that concerned in the present cause, issued in behalf of The
Standard Oil Company of New York; (4) that she, the guardian, was not aware of the proceedings had against her
husband and was only by chance informed thereof; (5) that when Vicente S. Villanueva gave the bond, the subject of
this suit, he was already permanently insane, was in that state when summoned and still continued so, for which reason
he neither appeared nor defended himself in the said litigation; and, in conclusion, she petitioned the court to relieve
the said defendant Villanueva from compliance with the aforestated judgment rendered against him in the suit before
mentioned, and to reopen the trial for the introduction of evidence in behalf of the said defendant with respect to his
capacity at the time of the execution of the bond in question, which evidence could not be presented in due season on
account of the then existing incapacity of the defendant.

The court granted the petition and the trial was reopened for the introduction of evidence, after due consideration of
which, when taken, the court decided that when Vicente Villanueva, on the 15th of December, 1908, executed the
bond in question, he understood perfectly well the nature and consequences of the act performed by him and that the
consent that was given by him for the purpose was entirely voluntary and, consequently, valid and efficacious. As a
result of such findings the court ruled that the petition for an indefinite stay of execution of the judgment rendered in the
case be denied and that the said execution be carried out.

After the filing of an exception to the above ruling, a new hearing was requested "with reference to the defendant
Vicente S. Villanueva" and, upon its denial, a bill of exceptions was presented in support of the appeal submitted to this
court and which is based on a single assignment of error as follows:

Because the lower court found that the monomania of great wealth, suffered by the defendant Villanueva,
does not imply incapacity to execute a bond such as the one herein concerned.

Certainly the trial court founded its judgment on the basis of the medico-legal doctrine which supports the conclusion
that such monomania of wealth does not necessarily imply the result that the defendant Villanueva was not a person
capable of executing a contract of bond like the one here in question.

This court has not found the proof of the error attributed to the judgment of the lower court. It would have been
necessary to show that such monomania was habitual and constituted a veritable mental perturbation in the patient;
that the bond executed by the defendant Villanueva was the result of such monomania, and not the effect of any other
cause, that is, that there was not, nor could there have been any other cause for the contract than an ostentation of
wealth and this purely an effect of monomania of wealth; and that the monomania existed on the date when the bond
in question was executed.

With regard to the first point: "All alienists and those writers who have treated of this branch of medical science
distinguish numerous degrees of insanity and imbecility, some of them, as Casper, going so far into a wealth of
classification and details as to admit the existence of 60 to 80 distinct states, an enumeration of which is unnecessary.
Hence, the confusion and the doubt in the minds of the majority of the authors of treatises on the subject in determining
the limits of sane judgment and the point of beginning of this incapacity, there being some who consider as a sufficient
cause for such incapacity, not only insanity and imbecility, but even those other chronic diseases or complaints that
momentarily perturb or cloud the intelligence, as mere monomania, somnambulism, epilepsy, drunkenness, suggestion,
anger, and the divers passional states which more or less violently deprive the human will of necessary liberty." (Manresa,
Commentaries on the Civil Code, Vol. V, p. 342.) In our present knowledge of the state of mental alienation such
certainly has not yet been reached as to warrant the conclusion, in a judicial decision, that he who suffers the
monomania of wealth, believing himself to be very wealthy when he is not, is really insane and it is to be presumed, in
the absence of a judicial declaration, that he acts under the influence of a perturbed mind, or that his mind is deranged
when he executes an onerous contract .The bond, as aforesaid, was executed by Vicente S. Villanueva on December
15, 1908, and his incapacity, for the purpose of providing a guardian for him, was not declared until July 24, 1909.

The trial court, although it conceded as a fact that the defendant had for several years suffered from such monomania,
decided, however, guided by the medico-legal doctrine above cited, that a person's believing himself to be what he is
not or his taking a mere illusion for a reality is not necessarily a positive proof of insanity or incapacity to bind himself in a
contract. Specifically, in reference to this case, the following facts were brought out in the testimony given by the
physicians, Don Rudesino Cuervo and Don Gervasio de Ocampo, witnesses for the defendant, the first of whom had
visited him some eight times during the years 1902 and 1903, and the latter, only once, in 1908.

Dr. Cuervo:

Q. But if you should present to him a document which in no wise concerns his houses and if you should
direct him to read it, do you believe that he would understand the contents of the document?

A. As to understanding it, it is possible that he might, in this I see nothing particularly remarkable; but
afterwards, to decide upon the question involved, it might be that he could not do that; it depends upon what
the question was.

Dr. Ocampo:

Q. Do you say that he is intelligent with respect to things other than those concerning greatness?

A. Yes, he reasons in matters which do not refer to the question of greatness and wealth.

Q. He can take a written paper and read it and understand it, can he not?

A. Read it, yes, he can read it and understand it, it is probable that he can, I have made no trial.

Q. Is he not a man of considerable intelligence, only with the exception of this monomania of greatness
and wealth?

A. Of not much intelligence, an ordinary intelligence.

Q. He knows how to read and write, does he not?

A. Yes, sir I believe that he does.

Mr. F.B. Ingersoll, a witness for the plaintiff, testified that as a notary he had prepared the instrument of bond and
received the statements of the signers; that he explained to Mr. Villanueva its contents and when the witness asked the
latter whether he wished to sign it he replied that he was willing and did in fact do so; that the defendant's mental
condition appeared to the witness to be normal and regular and that he observed nothing to indicate the contrary; and
that the defendant was quiet and composed and spoke in an ordinary way without giving cause fir any suspicion that
there was anything abnormal.

Honorable Judge Araullo testified as a witness for the plaintiff that while trying in the Court of First Instance, over which he
presided, the case concerning the estate of the Chinaman Go-Cho-Co, and Mr. Villanueva having been proposed as a
surety therein, the witness asked him some questions about his property, in order to ascertain whether he was solvent
and would be adequate surety, and that Villanueva testified the same as many, others had done, and witness did not
notice any particular disorder or perturbation of his mental faculties; that he answered the questions concerning the
property that he held, stated its value, specified the place where it was situated, his answers being precisely relevant to
the matter treated; that he therefore approved the bond; and that all this took place between July and September,
1908. This witness having been asked, on cross-examination, whether Mr. Villanueva, subsequent to the date mentioned,
had again been surety in any other case, and whether it appeared strange to witness that Mr. Villanueva should
engage in giving bonds and whether for that reason he rejected this new bond, replied that it was in that same case
relative to the estate of the Chinaman Go-Cho-Co that he endeavored to investigate, as he customarily did, with
regard to whether Mr. Villanueva had given any other previous bond, and the discovered that he had in fact previously
given bond in a criminal case, but that, as it had already been cancelled, he had no objection to accepting the one
offered by Mr. Villanueva in the said Go-Cho-Co case.

Capacity to act must be supposed to attach to a person who has not previously been declared incapable, and such
capacity is presumed to continue so long as the contrary be not proved, that is, that at the moment of his acting he was
incapable, crazy, insane, or out his mind: which, in the opinion of this court, has not been proved in this case.

With regard to the second point, it is very obvious that in every contract there must be a consideration to substantiate
the obligation, so much so that, even though it should not be expressed in the contract, it is presumed that it exists and
that it is lawful, unless the debtor proves the contrary. (Civil Code, art. 1277.) In the contract of bond the consideration,
general, is no other, as in all contract of pure beneficence, than the liberality of the benefactor. (Id, 1274.) Out of the
ordinary, a bond may be given for some other consideration, according to the agreement and the free stipulation of
the parties and may be, as in onerous and remuneratory contracts, something remunerative stipulated as an equivalent,
on the part of the beneficiary of the bond.

It is not clear as to the reason why Villanueva gave the bond in favor of the two members of the firm of Arenas & Co.,
Francisco Lara, and Juan Arenas. Lara testified that he had never had dealings with Villanueva; from which it is inferred
that the latter could hardly have been moved to favor the former by the benefit of an assumed obligation to pay him
some three thousand pesos, with monthly interest .But he added that Arenas & Co. obtained an agent to look for
sureties for them, to whom Arenas paid a certain sum of money. The witness did not know, however, whether Arenas
gave the money for the signature of the bond or simply in order that the agent might find sureties. The fact is that the
sureties came with the agent and signed the bond.

The appellant presented, as proof that Villanueva concealed from his family his dealings with Arenas, a note by the
latter addressed to his friend, Mr. Villanueva, on the 13th of May, 1909, that is, two days before Villanueva was declared
to be in default, inviting him to a conference "for the purpose of treating of a matter of great importance of much
interest to Villanueva, between 5 and 6 of that same day, in the garden and on the benches which are in front of the
Delmonico Hotel, on Calle Palacio, corner of Calle Victoria, and if rained, in the bar on the corner." It can not be
affirmed with certainty (the trial court considers it probable) that Villanueva engaged in the business of giving bonds for
a certain consideration or remuneration; but neither can it be sustained that there was no other cause for the giving of
the bond in question than the mental disorder that dominated the intellect of the person obligated, to the extent of his
believing himself so oversupplied with money as to be able to risk it in behalf of any person whatever. There is no proof
that the said bond was merely the product of an insensate ostentation of wealth, nor that, if Villanueva boasted of
wealth in giving several bonds, among them that herein concerned, he was influenced only by the monomania of
boasting of being wealthy, when he was not.

Neither is there any proof whatever with respect to the third point, that is, that, granting that he was a monomaniac, he
was dominated by that malady when he executed the bond now under discussion. In the interpretative jurisprudence
on this kind of incapacity, to wit, lunacy or insanity, it is a rule of constant application that is not enough that there be
more or less probability that a person was in a state of dementia at a given time, if there is not direct proof that, at the
date of the performance of the act which it is endeavored to invalidate for want of capacity on the part of the
executor, the latter was insane or demented, in other words, that he could not, in the performance of that act, give his
conscious, free, voluntary, deliberate and intentional consent. The witness who as physicians testified as to
extravagancies observed in Villanueva's conduct, referred, two of them, to a time prior to 1903, and another of them to
the year 1908, but none to December 15, 1908, the date of the execution of the bond sought to be invalidated. the
testimony of one of these witnesses shows that when Villanueva's wife endeavored, in 1908, to have her husband
confined in the Hospicio de San Jose and cared for therein, objection was made by the director of the institution who
advised her that if he entered in that way and lodged in the ward for old men, as soon as he shouted and disturbed
them in their sleep he would have to be locked up in the insane ward; to which Villanueva's wife replied "that her
husband was not exactly insane enough to be placed among the insane." This same lady, testifying as a witness in this
case, stated: that no restrictions had ever been placed upon her husband's liberty to go wherever he wished and do
what he liked; that her husband had property of his own and was not deprived of its management; that he went out
every morning without her knowing where he went; that she did not know whether he had engaged in the business of
signing bonds, and that, with reference to the one now concerned, she had learned of it only by finding to note, before
mentioned, wherein Arenas invited him to a rendezvous on the benches in front of the Delmonico Hotel; that she had
not endeavored legally to deprive him of the management of his own real estate which had been inherited by him,
although he did not attend to the collection of the rents and the payment of the land tax, all this being done by her,
and she also it was who attended to the subsistence of the family and to all their needs. Finally, and with direct
reference to the point under discussion, she was asked:

Q. It is not true that, up to the date of his signing this bond, he used to go out of the house and was on the
streets nearly every day? to which she replied:

A. He went where he pleased, he does this even now. He goes to the markets, and buys provisions and
other things. In fact I don't know where he goes go.

Q. From his actions toward others, did he show any indication of not being sane when he was on the street,
according to your opinion?

A. Half of Manila knows him and are informed of this fact and it is very strange that this should have
occurred. If you need witnesses to prove it, there are many people who can testify in regard to this particular.

The only incorrectness mentioned by this lady is that her husband, when he went to the market, would return to the
house with his pockets full of tomatoes and onions, and when she was asked by the judge whether he was a man of
frugal habits, she replied that, as far as she knew, he had never squandered any large sum of money; that he had never
been engaged in business; that he supported himself on what she gave him; and that if he had something to count on
for his living, it was the product of his lands.

Such is a summary of the facts relating to the debated incapacity of the appellant, and it is very evident that it can not
be concluded therefrom that, on December 15, 1908, when Villanueva subscribed the obligation now contested, he did
not possess the necessary capacity to give efficient consent with respect to the bond which he freely executed.

Therefore, the judgment appealed from is affirmed, with the costs of this instance against the appellant. So ordered.

Torres, Johnson, Carson, and Moreland, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-11872 December 1, 1917

DOMINGO MERCADO and JOSEFA MERCADO, plaintiffs-appellants,

vs.
JOSE ESPIRITU, administrator of the estate of the deceased Luis Espiritu, defendant-appellee.

Perfecto Salas Rodriguez for appellants.

Vicente Foz for appellee.

TORRES, J.:

This is an appeal by bill of exceptions, filed by the counsel for the plaintiffs from the judgment of September 22, 1914, in
which the judge of the Seventh Judicial District dismissed the complaint filed by the plaintiffs and ordered them to keep
perpetual silence in regard to the litigated land, and to pay the costs of the suit.

By a complaint dated April 9, 1913, counsel for Domingo and Josefa Mercado brought suit in the Court of First Instance
of Bulacan, against Luis Espiritu, but, as the latter died soon thereafter, the complaint was amended by being directed
against Jose Espiritu in his capacity of his administrator of the estate of the deceased Luis Espiritu. The plaintiffs alleged
that they and their sisters Concepcion and Paz, all surnamed Mercado, were the children and sole heirs of Margarita
Espiritu, a sister of the deceased Luis Espiritu; that Margarita Espiritu died in 1897, leaving as her paraphernal property a
tract of land of 48 hectares in area situated in the barrio of Panducot, municipality of Calumpit, Bulacan, and bounded
as described in paragraph 4 of the amended complaint, which hereditary portion had since then been held by the
plaintiffs and their sisters, through their father Wenceslao Mercado, husband of Margarita Espiritu; that, about the year
1910, said Luis Espiritu, by means of cajolery, induced, and fraudulently succeeded in getting the plaintiffs Domingo and
Josefa Mercado to sign a deed of sale of the land left by their mother, for the sum of P400, which amount was divided
among the two plaintiffs and their sisters Concepcion and Paz, notwithstanding the fact that said land, according to its
assessment, was valued at P3,795; that one-half of the land in question belonged to Margarita Espiritu, and one-half of
this share, that is, one-fourth of said land , to the plaintiffs, and the other one-fourth, to their two sisters Concepcion and
Paz; that the part of the land belonging to the two plaintiffs could produce 180 cavanes of rice per annum, at P2.50 per
cavan, was equivalent to P450 per annum; and that Luis Espiritu had received said products from 1901 until the time of
his death. Said counsel therefore asked that judgment be rendered in plaintiffs' favor by holding to be null and void the
sale they made of their respective shares of their land, to Luis Espiritu, and that the defendant be ordered to deliver and
restore to the plaintiffs the shares of the land that fell to the latter in the partition of the estate of their deceased mother
Margarita Espiritu, together with the products thereof, uncollected since 1901, or their equivalent, to wit, P450 per
annum, and to pay the costs of the suit.

In due season the defendant administrator answered the aforementioned complaint, denying each and all of the
allegations therein contained, and in special defense alleged that the land, the subject-matter of the complaint, had an
area of only 21 cavanes of seed rice; that, on May 25, 1894, its owner, the deceased Margarita Espiritu y Yutoc, the
plaintiffs' mother, with the due authorization of her husband Wenceslao Mercado y Arnedo Cruz sold to Luis Espiritu for
the sum of P2,000 a portion of said land, to wit, an area such as is usually required for fifteen cavanes of seed; that
subsequently, on May 14, 1901, Wenceslao Mercado y Arnedo Cruz, the plaintiffs' father, in his capacity as administrator
of the property of his children sold under pacto de retro to the same Luis Espiritu at the price of P375 the remainder of the
said land, to wit, an area covered by six cavanes of seed to meet the expenses of the maintenance of his (Wenceslao's)
children, and this amount being still insufficient the successively borrowed from said Luis Espiritu other sums of money
aggregating a total of P600; but that later, on May 17,1910, the plaintiffs, alleging themselves to be of legal age,
executed, with their sisters Maria del Consejo and Maria dela Paz, the notarial instrument inserted integrally in the 5th
paragraph of the answer, by which instrument, ratifying said sale under pacto de retro of the land that had belonged to
their mother Margarita Espiritu, effected by their father Wenceslao Mercado in favor of Luis Espiritu for the sum of P2,600,
they sold absolutely and perpetually to said Luis Espiritu, in consideration of P400, the property that had belonged to their
deceased mother and which they acknowledged having received from the aforementioned purchaser. In this cross-
complaint the defendant alleged that the complaint filed by the plaintiffs was unfounded and malicious, and that
thereby losses and damages in the sum of P1,000 had been caused to the intestate estate of the said Luis Espiritu. He
therefore asked that judgment be rendered by ordering the plaintiffs to keep perpetual silence with respect to the land
in litigation and, besides, to pay said intestate estate P1,000 for losses and damages, and that the costs of the trial be
charged against them.

In reply to the cross-complaint, the plaintiffs denied each and all of the facts therein set forth, and in special defense
alleged that at the time of the execution of the deed of sale inserted in the cross-complaint the plaintiffs were still minors,
and that since they reached their majority the four years fixed by law for the annulment of said contract had not yet
elapsed. They therefore asked that they be absolved from the defendant's cross-complaint.

After trial and the introduction of evidence by both parties, the court rendered the judgment aforementioned, to which
the plaintiffs excepted and in writing moved for a reopening of the case and a new trial. This motion was overruled,
exception was taken by the petitioners, and the proper bill of exceptions having been presented, the same was
approved and transmitted to the clerk of this court.

As the plaintiffs assailed the validity of the deed of sale, Exhibit 3, executed by them on May 17, 1910, on the ground that
they were minors when they executed it, the questions submitted to the decision of this court consist in determining
whether it is true that the plaintiffs were then minors and therefore incapable of selling their property on the date borne
by the instrument Exhibit 3; and in case they then were such, whether a person who is really and truly a minor and,
notwithstanding, attests that he is of legal age, can, after the execution of the deed and within legal period, ask for the
annulment of the instrument executed by him, because of some defect that invalidates the contract, in accordance
with the law (Civ. Code, arts. 1263 and 1300), so that he may obtain the restitution of the land sold.

The records shows it to have been fully proven that in 1891 Lucas Espiritu obtained title by composition with the State, to
three parcels of land, adjoining each other, in the sitio of Panducot of the pueblo of Calumpit, Bulacan, containing
altogether an area of 75 hectares, 25 ares, and 59 centares, which facts appear in the title Exhibit D; that, upon Luis
Espiritu's death, his said lands passed by inheritance to his four children named Victoria, Ines, Margarita, and Luis; and
that, in the partition of said decedent's estate, the parcel of land described in the complaint as containing forty-seven
and odd hectares was allotted to the brother and sister Luis and Margarita, in equal shares. Margarita Espiritu, married to
Wenceslao Mercado y Ardeno Cruz, had by this husband five children, Maria Consejo, Maria de la Paz, Domingo,
Josefa, and Amalia, all surnamed Mercado y Espiritu, who, at the death of their mother in 1896 inherited, by operation of
law, one-half of the land described in the complaint.

The plaintiffs' petition for annulment of the sale and the consequent restitution to them of two-fourths of the land left by
their mother, that is, of one-fourth of all the land described in the complaint, and which, they stated, amounts to 11
hectares, 86 ares and 37 centares. To this claim the defendant excepted, alleging that the land in question comprised
only an area such as is customarily covered by 21 cavanes of seed.

It was also duly proven that, by a notarial instrument of May 25, 1894, the plaintiffs' mother conveyed by actual and
absolute sale for the sum of P2,000, to her brother Luis Espiritu a portion of the land now on litigation, or an area such as is
usually covered by about 15 cavanes of seed; and that, on account of the loss of the original of said instrument, which
was on the possession of the purchaser Luis Espiritu, and furthermore because, during the revolution, the protocols or
registers of public documents of the Province of Bulacan were burned, Wenceslao Mercado y Arnedo Cruz, the widower
of the vendor and father of the plaintiffs, executed, at the instance of the interested party Luis Espiritu, the notarial
instrument Exhibit 1, of the date of May 20, 1901, in his own name and those of his minor children Maria Consejo, Maria
de la Paz, Domingo, Josefa, and Amalia, and therein set forth that it was true that the sale of said portion of land had
been made by his aforementioned wife, then deceased, to Luis Espiritu in 1894.

However, even prior to said date, to wit, on May 14th of the same year, 1901, the widower Wenceslao Mercado,
according to the private document Exhibit 2, pledged or mortgaged to the same man, Luis Espiritu, for P375, a part, or
an area covered by six cavanes of seed, of the land that had belonged to this vendor's deceased wife, to the said Luis
Espiritu and which now forms a part of the land in question — a transaction which Mercado was obliged to make in
order to obtain funds with which "to cover his children's needs." Wenceslao Mercado, the plaintiffs' father, having died,
about the year 1904, the plaintiffs Domingo and Josefa Mercado, together with their sisters Consejo and Paz, declaring
themselves to be of legal age and in possession of the required legal status to contract, executed and subscribed
before a notary the document Exhibit 3, on May 17, 1910, in which referring to the previous sale of the land, effected by
their deceased mother for the sum of P2,600 and with her husband's permission and authorization, they sold absolutely
and in perpetuity to Luis Espiritu, for the sum of P400 "as an increase" of the previous purchase price, the land described
in said instrument and situated in Panducot, pueblo of Calumpit, Bulacan, of an area equal to that usually sown with 21
cavanes of seed bounded on the north by the lands of Flaviano Abreu and the heirs of Pedro Espiritu, on the east by
those of Victoria Espiritu and Ines Espiritu, on the south by those of Luis Espiritu, and on the west by those of Hermogenes
Tan-Toco and by the Sapang-Maitu stream.

In this status of the case the plaintiffs seek the annulment of the deed Exhibit 3, on the ground that on the date of its
execution they were minors without legal capacity to contract, and for the further reason that the deceased purchaser
Luis Espiritu availed himself of deceit and fraud in obtaining their consent for the execution of said deed.

As it was proven by the testimony of the clerk of the parochial church of Apalit (plaintiffs were born in Apalit) that the
baptismal register books of that parish pertaining to the years 1890-1891, were lost or burned, the witness Maria Consejo
Mercado recognized and identified the book Exhibit A, which she testified had been kept and taken care of by her
deceased father Wenceslao Mercado, pages 396 and 397 of which bear the attestation that the plaintiff Domingo
Mercado was born on August 4, 1890, and Josefa Mercado, on July 14, 1891. Furthermore, this witness corroborated the
averment of the plaintiffs' minority, by the personal registration certificate of said Domingo Mercado, of the year 1914,
Exhibit C, by which it appears that in 1910 he was only 23 years old, whereby it would also be appear that Josefa
Mercado was 22 years of age in 1910, and therefore, on May 17,1910, when the instrument of purchase and sale, Exhibit
3, was executed, the plaintiffs must have been, respectively, 19 and 18 years of age.

The witness Maria Consejo Mercado also testified that after her father's death her brother and sisters removed to Manila
to live there, although her brother Domingo used to reside with his uncle Luis Espiritu, who took charge of the
administration of the property left by his predecessors in interest; that it was her uncle Luis who got for her brother
Domingo the other cedula, Exhibit B, pertaining to the year 1910, where in it appears that the latter was then already 23
years of age; that she did not know why her uncle did so; that she and her brother and sisters merely signed the deed of
May 17, 1910; and that her father Wenceslao Mercado, prior to his death had pledged the land to her uncle Luis
Espiritu.

The witness Ines Espiritu testified that after the death of the plaintiffs' father, it was Luis Espiritu who directed the cultivation
of the land in litigation. This testimony was corroborated by her sister Victoria Espiritu, who added that her nephew, the
plaintiff Domingo, had lived for some time, she did not know just how long, under the control of Luis Espiritu.

Roque Galang, married to a sister of Luis Espiritu, stated that the land that fell to his wife and to his sister-in-law Victoria,
and which had an area of about 8 hectares less than that of the land allotted to the aforementioned Luis and Margarita
produced for his wife and his sister-in-law Victoria a net and minimum yield of 507 cavanes in 1907, in spite of its being
high land and of inferior quality, as compared with the land in dispute, and that its yield was still larger in 1914, when the
said two sisters' share was 764 cavanes.

Patricio Tanjucto, the notary before whom the deed Exhibit 3 was ratified, was a witness for the defendant. He testified
that this deed was drawn up by him at the request of the plaintiff Josefa Mercado; that the grantors of the instrument
assured him that they were all of legal age; that said document was signed by the plaintiffs and the other contracting
parties, after it had been read to them and had been translated into the Pampangan dialect for those of them who did
not understand Spanish. On cross-examination, witness added that ever since he was 18 years of age and began to
court, he had known the plaintiff Josefa Mercado, who was then a young maiden, although she had not yet
commenced to attend social gatherings, and that all this took place about the year 1898, for witness said that he was
then [at the time of his testimony, 1914,] 34 years of age.

Antonio Espiritu, 60 years of age, who knew Lucas Espiritu and the properties owned by the latter, testified that Espiritu's
land contained an area of 84 cavanes, and after its owner's death, was under witness' administration during to harvest
two harvest seasons; that the products yielded by a portion of this land, to wit, an area such as is sown by about 15
cavanes of seed, had been, since 1894, utilized by Luis Espiritu, by reason of his having acquired the land; and that, after
Margarita Espiritu's death, her husband Wenceslao Mercado took possession of another portion of the land, containing
an area of six cavanes of seed and which had been left by this deceased, and that he held same until 1901, when he
conveyed it to Luis Espiritu. lawphi1.net

The defendant-administrator, Jose Espiritu, son of the deceased Luis Espiritu, testified that the plaintiff Domingo Mercado
used to live off and on in the house of his deceased father, about the year 1909 or 1910, and used to go back and forth
between his father's house and those of his other relatives. He denied that his father had at any time administered the
property belonging to the Mercado brother and sisters.

In rebuttal, Antonio Mercado, a cousin of Wenceslao, father of the plaintiffs, testified that he mediate in several
transactions in connection with a piece of land belonging to Margarita Espiritu. When shown the deed of purchase and
sale Exhibit 1, he stated that he was not acquainted with its contents. This same witness also testified that he mediated in
a transaction had between Wenceslao Mercado and Luis Espiritu (he did not remember the year), in which the former
sold to the latter a parcel of land situated in Panducot. He stated that as he was a witness of the deed of sale he could
identify this instrument were it exhibited to him; but he did not do so, for no instrument whatever was presented to him for
identification. The transaction mentioned must have concerned either the ratification of the sale of the land of 15
cavanes, in 1901, attested in Exhibit 1, or the mortgage or pledge of the other parcel of 6 cavanes, given on May 14,
1901, by Wenceslao Mercado to Luis Espiritu, as may be seen by the private document Exhibit 2. In rebuttal, the plaintiff
Josefa Mercado denied having gone to the house of the notary Tanjutco for the purpose of requesting him to draw up
any document whatever. She stated that she saw the document Exhibit 3 for the first time in the house of her uncle Luis
Espiritu on the day she signed it, on which occasion and while said document was being signed said notary was not
present, nor were the witnesses thereto whose names appear therein; and that she went to her said uncle's house,
because he had sent for her, as well as her brother and sisters, sending a carromata to fetch them. Victoria Espiritu
denied ever having been in the house of her brother. Luis Espiritu in company with the plaintiffs, for the purpose of giving
her consent to the execution of any deed in behalf of her brother.

The evidence adduced at the trial does not show, even circumstantially, that the purchaser Luis Espiritu employed fraud,
deceit, violence, or intimidation, in order to effect the sale mentioned in the document Exhibit 3, executed on May 17,
1910. In this document the vendors, the brother and the sisters Domingo, Maria del Consejo, Paz and, Josefa surnamed
Mercado y Espiritu, attested the certainty of the previous sale which their mother, during her lifetime, had made in behalf
of said purchaser Luis Espiritu, her brother with the consent of her husband Wenceslao Mercado, father of the vendors of
the portion of land situated in the barrio of Panducot, pueblo of Calumpit, Bulacan; and in consideration of the fact that
the said vendor Luis Espiritu paid them, as an increase, the sum of P400, by virtue of the contract made with him, they
declare having sold to him absolutely and in perpetuity said parcel of the land, waive and thenceforth any and all rights
they may have, inasmuch as said sum constitutes the just price of the property.

So that said document Exhibit 3 is virtually an acknowledgment of the contract of sale of the parcel or portion of land
that would contain 15 cavanes of seed rice made by the vendors' mother in favor of the purchaser Luis Espiritu, their
uncle, and likewise an acknowledgment of the contract of pledge or mortgage of the remainder of said land, an area
of six cavanes, made with the same purchaser, at an increase of P400 over the price of P2,600, making an aggregate
sum of P3,000, decomposed as follows: P2,000, collected during her lifetime, by the vendors' father; and the said
increase of P400, collected by the plaintiffs.

In the aforementioned sale, according to the deed of May 25, 1894, Margarita Espiritu conveyed to her brother Luis the
parcel of 15 cavanes of seed, Exhibit 1, and after her death the plaintiffs' widowed father mortgaged or pledged the
remaining parcel or portion of 6 cavanes of seed to her brother-in-law, Luis Espiritu, in May, 1901 (Exhibit 2). So it is that
the notarial instrument Exhibit 3, which was assailed by the plaintiffs, recognized the validity of the previous contracts,
and the totality of the land, consisting of an area containing 21 cavanes of seed rice, was sold absolutely and in
perpetuity, the vendors receiving in exchange P400 more; and there is no conclusive proof in the record that this last
document was false and simulated on account of the employment of any violence, intimidation, fraud, or deceit, in the
procuring of the consent of the vendors who executed it.

Considering the relation that exists between the document Exhibit 3 and those of previous dates, Exhibits 1 and 2, and
taking into the account the relationship between the contracting parties, and also the general custom that prevails in
many provinces of these Islands for the vendor or debtor to obtain an increase in the price of the sale or of the pledge,
or an increase in the amount loaned, without proof to the contrary, it would be improper and illegal to hold, in view of
the facts hereinabove set forth, that the purchaser Luis Espiritu, now deceased, had any need to forge or simulate the
document Exhibit 3 inasmuch as, since May, 1894, he has held in the capacity of owner by virtue of a prior acquisition,
the parcel of land of 15 cavanes of seed, and likewise, since May, 1901, according to the contract of mortgage or
pledge, the parcel of 6 cavanes, or the remainder of the total area of 21 cavanes.

So that Luis Espiritu was, during his lifetime, and now, after his death, his testate or intestate estate is in lawful possession of
the parcel of land situated in Panducot that contains 21 cavanes of seed, by virtue of the title of conveyance of
ownership of the land measuring 15 cavanes, and, in consequence of the contract of pledge or mortgage in security for
the sum of P600, is likewise in lawful possession of the remainder of the land, or an area containing 6 cavanes of seed.

The plaintiffs have absolutely no right whatever to recover said first parcel of land, as its ownership was conveyed to the
purchaser by means of a singular title of purchase and sale; and as to the other portion of 6 cavanes of seed, they could
have redeemed it before May 17, 1910, upon the payment or the return of the sum which their deceased father
Wenceslao Mercado had, during his lifetime, received as a loan under security of the pledged property; but, after the
execution of the document Exhibit 3, the creditor Luis Espiritu definitely acquired the ownership of said parcel of 6
cavanes. It is therefore a rash venture to attempt to recover this latter parcel by means of the contract of final and
absolute sale, set forth in the deed Exhibit 3.

Moreover, the notarial document Exhibit 1, are regards the statements made therein, is of the nature of a public
document and is evidence of the fact which gave rise to its execution and of the date of the latter, even against a third
person and his predecessors in interest such as are the plaintiffs. (Civ. Code, art. 1218.)

The plaintiffs' father, Wenceslao Mercado, recognizing it to be perfectly true that his wife Margarita Espiritu sold said
parcel of land which she inherited from her father, of an area of about "15 cavanes of seed," to her brother Luis Espiritu,
by means of an instrument executed by her on May 25,1894 — an instrument that disappeared or was burned — and
likewise recognizing that the protocols and register books belonging to the Province of Bulacan were destroyed as a
result of the past revolution, at the request of his brother-in-law Luis Espiritu he had no objection to give the testimony
recorded in said notarial instrument, as it was the truth regarding what had occurred, and in so doing he acted as the
plaintiffs' legitimate father in the exercise of his parental authority, inasmuch as he had personal knowledge of said sale,
he himself being the husband who authorized said conveyance, notwithstanding that his testimony affected his
children's interest and prejudiced his own, as the owner of any fruits that might be produced by said real property.

The signature and handwriting of the document Exhibit 2 were identified as authentic by one of the plaintiffs, Consejo
Mercado, and as the record shows no evidence whatever that this document is false, and it does not appear to have
been assailed as such, and as it was signed by the plaintiffs' father, there is no legal ground or well-founded reason why it
should be rejected. It was therefore properly admitted as evidence of the certainty of the facts therein set forth.

The principal defect attributed by the plaintiffs to the document Exhibit 3 consists in that, on the date of May 17, 1910,
when it was executed that they signed it, they were minors, that is, they had not yet attained the age of 21 years fixed
by Act No. 1891, though no evidence appears in the record that the plaintiffs Josefa and Domingo Mercado were in
fact minors, for no certified copies were presented of their baptismal certificates, nor did the plaintiffs adduce any
supplemental evidence whatever to prove that Domingo was actually 19 and Josefa 18 years of age when they signed
the document Exhibit 3, on May 17, 1910, inasmuch as the copybook, Exhibit A, notwithstanding the testimony of the
plaintiff Consejo Mercado, does not constitute sufficient proof of the dates of births of the said Domingo and Josefa.

However, even in the doubt whether they certainly were of legal age on the date referred to, it cannot be gainsaid that
in the document Exhibit 3 they stated that they were of legal age at the time they executed and signed it, and on that
account the sale mentioned in said notarial deed Exhibit 3 is perfectly valid — a sale that is considered as limited solely
to the parcel of land of 6 cavanes of seed, pledged by the deceased father of the plaintiffs in security for P600 received
by him as a loan from his brother-in-law Luis Espiritu, for the reason that the parcel of 15 cavanes had been lawfully sold
by its original owner, the plaintiffs' mother.
The courts, in their interpretation of the law, have laid down the rule that the sale of real estate, made by minors who
pretend to be of legal age, when in fact they are not, is valid, and they will not be permitted to excuse themselves from
the fulfillment of the obligations contracted by them, or to have them annulled in pursuance of the provisions of Law 6,
title 19, of the 6th Partida; and the judgment that holds such a sale to be valid and absolves the purchaser from the
complaint filed against him does not violate the laws relative to the sale of minors' property, nor the juridical rules
established in consonance therewith. (Decisions of the supreme court of Spain, of April 27, 1860, July 11, 1868, and March
1, 1875.) itc@alf

With respect to the true age of the plaintiffs, no proof was adduced of the fact that it was Luis Espiritu who took out
Domingo Mercado's personal registration certificate on April 13, 1910, causing the age of 23 years to be entered therein
in order to corroborate the date of the notarial instrument of May 17th of the same year; and the supposition that he did,
would also allow it to be supposed, in order to show the propriety of the claim, that the cedula Exhibit C was taken out
on February 14, 1914, where in it is recorded that Domingo Mercado was on that date 23 years of age, for both these
facts are not proved; neither was any proof adduced against the statement made by the plaintiffs Domingo and Josefa
in the notarial instrument Exhibit 3, that, on the date when they executed it, they were already of legal age, and, besides
the annotation contained in the copybook Exhibit A, no supplemental proof of their true ages was introduced.

Aside from the foregoing, from a careful examination of the record in this case, it cannot be concluded that the
plaintiffs, who claim to have minors when they executed the notarial instrument Exhibit 3, have suffered positive and
actual losses and damages in their rights and interests as a result of the execution of said document, inasmuch as the
sale effected by the plaintiffs' mother, Margarita Espiritu, in May, 1894, of the greater part of the land of 21 cavanes of
seed, did not occasion any damage or prejudice to the plaintiffs, inasmuch as their father stated in the document
Exhibit 2 that he was obliged to mortgage or pledge said remaining portion of the land in order to secure the loan of the
P375 furnished by Luis Espiritu and which was subsequently increased to P600 so as to provide for certain engagements
or perhaps to meet the needs of his children, the plaintiff; and therefore, to judge from the statements made by their
father himself, they received through him, in exchange for the land of 6 cavanes of seed, which passed into the
possession of the creditor Luis Espiritu, the benefit which must have accrued to them from the sums of money received as
loans; and, finally, on the execution of the impugned document Exhibit 3, the plaintiffs received and divided between
themselves the sum of P400, which sum, added to that P2,000 received by Margarita Espiritu, and to that of the P600
collected by Wenceslao Mercado, widower of the latter and father of the plaintiffs, makes all together the sum of
P3,000, the amount paid by the purchaser as the price of all the land containing 21 cavanes of seed, and is the just price
of the property, was not impugned, and, consequently, should be considered as equivalent to, and compensatory for,
the true value of said land.

For the foregoing reasons, whereby the errors assigned to the judgment appealed from have been refuted, and
deeming said judgment to be in accordance with law and the evidence of record, we should, and do hereby, affirm
the same, with costs against the appellants. So ordered.

Arellano, C. J., Johnson, Street, and Malcolm, JJ., concur.

Separate Opinions

CARSON, J., concurring:

I concur.

But in order to avoid misunderstanding, I think it well to indicate that the general statement, in the prevailing opinion to
the effect that the making of false representations as to his age by an infant executing a contract will preclude him from
disaffirming the contract or setting up the defense of infancy, must be understood as limited to cases wherein, on
account of the minor's representations as to his majority, and because of his near approach thereto, the other party had
good reason to believe, and did in fact believe the minor capable of contracting.

The doctrine set forth in the Partidas, relied upon by the supreme court of Spain in the cases cited in the prevailing
opinion, is substantially similar to the doctrine of estoppel as applied in like instances by many of the courts in the United
States.

For the purposes of convenient comparison, I here insert some citations of authority, Spanish and American, recognizing
the limitations upon the general doctrine to which I am inviting attention at this time; and in this connection it is worthy of
note that the courts of the United States look with rather less favor than the supreme court of Spain upon the application
of the doctrine, doubtless because the cases wherein it may properly be applied, are much less likely to occur in a
jurisdiction where majority is reached at the age of 21 than a jurisdiction wherein majority is not ordinarily attained until
the infant reaches the age of 25.

Ley 6, tit. 19, Partida 6. is, in part, as follows:

If he who is minor (1) deceitfully says or sets forth in an instrument that he is over twenty-five years of age, and
this assertion is believed by another person who takes him to be of about that age, (2) in an action at law he
should be deemed to be of the age he asserted, and should no (3) afterwards be released from liability on the
plea that he was not of said age when he assumed the obligation. The reason for this is that the law helps the
deceived and not the deceivers.

In the glossary to these provisions of the Partidas by Gregorio Lopez, I find the following:

(1) De tal tiempo. Nota bene hoc verbum, nam si appareret ex aspectu eum esse minorem, tunc adversarius
non potest dicere se deceptum; imo tam ipse, quam minor videntur esse in dolo, quo casu competit minori
restitutio, quia facta doli compensatione, perinde ast ac si nullus fuiset in dolo, et ideo datur restitutio; et quia
scienti dolus non infertur, l. 1. D. de act. empt. secundum Cyn. Alberic et Salic. in l. 3. C. si minor se major. dixer.
adde Albericum tenentem, quabndo per aspectum a liter constaret, in authent. sacramenta puberum, col. 3.
C. si advers vendit.

(2) Engoñosamente. Adde 1. 2. et 3. C. si minor se major. dixer. Et adverte nam per istam legem Partitarum, que
non distinguit, an adultus, vel pupillus talem assertionem faciat, videtur comprobari dictum Guillielm. de Cun.
de quo per Paul. de Castr. in 1. qui jurasse. in princ. D. de jurejur. quod si pupillus proximus pubertari juret, cum
contrahit, se esse puberem, et postea etiam juret, quod non veniet contra contractum quod habebit locum
dispositio authenticae sacramenta puberum, sicut si esset pubes: et cum isto dicto transit ibi Paul. de Cast.
multum commendans, dicens, se alibi non legisse; si tamen teneamus illam opinionem, quod etiam pupillus doli
capax obligatur ex juramento, non esset ita miranda dicat, decissio; vide per Alexand. in dict. 1. qui jurasse, in
princ. Item lex ista Partitarum expresse sentit de adulto, non de pupillo, cum superius dixit, que paresciere de tal
tiempo: Doctores etiam intelligunt de adulto 11. dict. tit. C. si minor. se major. dixer. et patet ex 11. illius tituli.
Quid autem dicemus in dubio, cum non constat de dolo minoris? Azon. in summa illius tit. in fin. Cynus tamen, et
alli, tenent oppositum, quia dolus non praesumitur, nisi probetur, 1. quotiens, s., qui dolo, D. de probat. Et hoc
etiam vult ista lex Partitarum, cum dicit, si lo faze engoñosamente: et ita tenent Alberic. et Salicet. in dict. 1. 3.
ubi etiam Bart. in fin. Si autem minor sui facilitate asserat se mojorem, et ita juret, tunc distingue, ut habetur dict.
1. 3 quia aut juravit verbo tenus, et tunc non restituitur, nisi per instrumentum seu scripturam probet se minorem;
et si juravit corporaliter, nullo modo restituitur, ut ibi; et per quae instrumenta probentur, cum verbo tenus juravit,
vide per Specul. tit. de restit, in integr. s. quis autem, col. 4. vers. sed cujusmodi erit scriptura, ubi etiam vide per
Speculatorem aliquas notabiles quaestiones in ista materia, in col. 5. videlicet, an praejudicet sibi minor ex tali
juramento in aliis contractibus, et tenet, quod non; et tenet glossa finalis in 1. de aetate, D. de minor. in fin.
gloss. vide ibi per Speculat. ubi etiam de aliis in ista materia.

In the decision of the supreme court of Spain dated the 27th of April, 1860, I find an excellent illustration of the conditions
under which that court applied the doctrine, as appears from the following resolution therein set forth.

Sales of real estate made by minors are valid when the latter pretend to be twenty-five years of age and, due
to the circumstances that they are nearly of that age, are married, or have administration of their property, or
on account of other special circumstances affecting them, the other parties to the contract believe them to
be of legal age.
With these citations compare the general doctrine in the United States as set forth in 22 Cyc. (p. 610), supported by
numerous citations of authority.

Estoppel to disaffirm — (I) In General. — The doctrine of estoppel not being as a general rule applicable to
infants, the court will not readily hold that his acts during infancy have created an estoppel against him to
disaffirm his contracts. Certainly the infant cannot be estopped by the acts or admissions of other persons.

(II) False representations as to age. — According to some authorities the fact that an infant at the time of
entering into a contract falsely represented to the person with whom he dealt that he had attained the age of
majority does not give any validity to the contract or estop the infant from disaffirming the same or setting up
the defense of infancy against the enforcement of any rights thereunder; but there is also authority for the view
that such false representations will create an estoppel against the infant, and under the statutes of some states
no contract can be disaffirmed where, on account of the minor's representations as to his majority, the other
party had good reason to believe the minor capable of contracting. Where the infant has made no
representations whatever as to his age, the mere fact that the person with whom he dealt believed him to be
of age, even though his belief was warranted by the infant's appearance and the surrounding circumstances,
and the infant knew of such belief, will not render the contract valid or estop the infant to disaffirm.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1720 March 4, 1950

SIA SUAN and GAW CHIAO, petitioners,

vs.
RAMON ALCANTARA, respondent.

Antonio Barredo for petitioners.

Zosimo D. Tanalega for respondents.

PARAS, J.:

On August 3, 1931, a deed of sale was executed by Rufino Alcantara and his sons Damaso Alcantara and Ramon
Alcantara conveying to Sia Suan five parcels of land. Ramon Alcantara was then 17 years, 10 months and 22 days old.
On August 27, 1931, Gaw Chiao (husband of Sia Suan) received a letter from Francisco Alfonso, attorney of Ramon
Alcantara, informing Gaw Chiao that Ramon Alcantara was a minor and accordingly disavowing the contract. After
being contacted by Gaw Chiao, however, Ramon Alcantara executed an affidavit in the office of Jose Gomez,
attorney of Gaw Chiao, wherein Ramon Alcantara ratified the deed of sale. On said occasion Ramon Alcantara
received from Gaw Chiao the sum of P500. In the meantime, Sia Suan sold one of the lots to Nicolas Azores from whom
Antonio Azores inherited the same.

On August 8, 1940, an action was instituted by Ramon Alcantara in the Court of First Instance of Laguna for the
annulment of the deed of sale as regards his undivided share in the two parcels of land covered by certificates of title
Nos. 751 and 752 of Laguna. Said action was against Sia Suan and her husband Gaw Chiao, Antonio, Azores, Damaso
Alcantara and Rufino Alcantara (the latter two being, respectively, the brother and father of Ramon Alcantara
appealed to the Court of Appealed which reversed the decision of the trial court, on the ground that the deed of sale is
not binding against Ramon Alcantara in view of his minority on the date of its execution, and accordingly sentenced Sia
Suan to pay to Ramon Alcantara the sum of P1,750, with legal interest from December 17, 1931, in lieu of his share in the
lot sold to Antonio Azores (who was absolved from the complaint), and to reconvey to Ramon Alcantara an undivided
one-fourth interest in the lot originally covered by certificate of title NO. 752 of Laguna plus the cost of the suit. From this
judgment Sia Suan and Gaw Chiao have come to us on appeal by certiorari.

It is undeniable that the deed of sale signed by the appellee, Ramon Alcantara, On August 3, 1931, showed that he, like
his co-signers (father and brother), was then of legal age. It is not pretend and there is nothing to indicate that the
appellants did not believe and rely on such recital of fact. This conclusion is decisive and very obvious in the decision of
the Court of Appeals It is true that in the resolution on the for reconsideration, the Court of Appeals remarked that "The
fact that when informed of appellant's minority, the appellees too no steps for nine years to protect their interest beyond
requiring the appellant to execute a ratification of the sale while still a minor, strongly indicates that the appellees knew
of his minority when the deed of sale was executed." But the feeble insinuation is sufficiently negative by the following
positive pronouncements of the Court of Appeals as well in said resolution as in the decision.

As to the complaint that the defendant is guilty of laches, suffice it to say that the appellees were informed of
his minority within one (1) month after the transaction was completed. (Resolution.)

Finally, the appellees were equally negligent in not taking any action to protect their interest form and after
August 27, 1931, when they were notified in writing of appellant's minority. (Resolution.)

. . . The fact remains that the appellees were advised within the month that appellant was a minor, through the
letter of Attorney Alfonso (Exhibit 1) informing appellees of his client's desire to disaffirm the contract . . .
(Decision.)

The purchaser having been apprised of incapacity of his vendor shortly after the contract was made, the delay
in bringing the action of annulment will not serve to bar it unless the period fixed by the statute of limitations
expired before the filing of the complaint. . . . (Decision.)

In support of the contend that the deed of sale is binding on the appellee, counsel for the appellants invokes the
decision in Mercado and Mercado vs. Espiritu (37 Phil., 215), wherein this court held:

The courts, in their interpretation of the law, have laid down the rule that the sale of real estate, made by
minors who pretend to be of legal age, when it fact they are not, is valid, and they will not be permitted to
excuse themselves from the fulfillment of the obligations contracted by them, or to have them annulled in
pursuance of the provisions of Law 6 title 19, of the 6th Partida; and the judgment that holds such a sale to valid
and absolves the purchaser from the complaint filed against him does not violate the laws relative to the sale
of minors' property, nor the juridical rules established in consonance therewith. (Decisions of the Supreme Court
of Spain, of April 27, 1840, July 11, 1868, and March 1, 1875.)

The Court of Appeals has refused to apply this doctrine on the ground that the appellants did not actually pay any
amount in cash to the appellee and therefore did not suffer any detriment by reason of the deed of sale, it being
stipulated that the consideration therefore was a pre-existing indebtedness of appellee's father, Rufino Alcantara. We
are of the opinion that the Court of Appeals erred. In the first place, in the case cited, the consideration for sale
consisted in greater part of pre-existing obligation. In the second place, under the doctrine, to bind a minor who
represents himself to be of legal age, it is not necessary for his vendee to actually part with cash, as long as the contract
is supported by a valid consideration. Since appellee's conveyance to the appellants was admittedly for and in virtue of
a pre-existing indebtedness (unquestionably a valid consideration), it should produce its full force and effect in the
absence of any other vice that may legally invalidate the same. It is not here claimed that the deed of sale is null and
void on any ground other than the appellee's minority. Appellee's contract has become fully efficacious as a contract
executed by parties with full legal capacity.

The circumstance that, about one month after the date of the conveyance, the appellee informed the appellants of his
minority, is of no moment, because appellee's previous misrepresentation had already estopped him from disavowing
the contract. Said belated information merely leads to the inference that the appellants in fact did not know that the
appellee was a minor on the date of the contract, and somewhat emphasizes appellee's had faith, when it is borne in
mind that no sooner had he given said information than he ratified his deed of sale upon receiving from the appellants
the sum of P500.

Counsel for the appellees argues that the appellants could not have been misled as to the real age of the appellee
because they were free to make the necessary investigation. The suggestion, while perhaps practicable, is
conspicuously unbusinesslike and beside the point, because the findings of the Court of Appeals do not show that the
appellants knew or could suspected appellee's minority.

The Court of Appeals seems to be of the opinion that the letter written by the appellee informing the appellants of his
minority constituted an effective disaffirmance of the sale, and that although the choice to disaffirm will not by itself
avoid the contract until the courts adjudge the agreement to be invalid, said notice shielded the appellee from laches
and consequent estoppel. This position is untenable since the effect of estoppel in proper cases is unaffected by the
promptness with which a notice to disaffirm is made.
The appealed decision of the Court of Appeals is hereby reversed and the appellants absolved from the complaint, with
costs against the appellee, Ramon Alcantara. So ordered.

Ozaeta, Tuason, Montemayor and Torres, JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur in the result not upon the grounds stated in the majority opinion but for the following reasons: The deed of sale
executed by Ramon Alcantara on 3 August 1931 conveying to Sia Suan five parcels of land is null and void insofar as the
interest, share, or participation of Ramon Alcantara in two parcels of land is concerned, because on the date of sale he
was 17 years, 10 months and 22 days old only. Consent being one of the essential requisites for the execution of a valid
contract, a minor, such as Ramon Alcantara was, could not give his consent thereof. The only misrepresentation as to his
age, if any, was the statement appearing in the instrument that he was of age. On 27 August 1931, or 24 days after the
deed was executed, Gaw Chiao, the husband of the vendee Sia Suan, was advised by Atty. Francisco Alfonso of the
fact that his client Ramon Alcantara was a minor. The fact that the latter, for and in consideration of P500, executed an
affidavit, whereby he ratified the deed of sale, is of no moment. He was still minor. The majority opinion invokes the rule
laid down in the case of Mercado et al. vs. Espiritu, 37 Phil., 215. The rule laid down by this Court in that case is based on
three judgments rendered by the Supreme Court of Spain on 27 April 1960, 11 July 1868, and 1 March 1875. In these
decisions the Supreme Court of Spain applied Law 6, Title 19, of the 6th Partida which expressly provides:

"Diziendo o ortogando el que fuese menor, que era mayor de XXV años, si ouiesse persona que paresciesse de
tal tiempo, si lo faze enganosamente, valdria el pleyto que assi fuere fecho con el e non deue ser desatado
despues, como quier que non era de edad quando lo fizo: esto es, porque las leyes ayudan a los enganados,
e non a los enganadores. . . ." (Alcubilla, Codigos Antigous de España, p. 613.)

The contract of sale involved in the case of Mercado vs. Espiritu, supra, was executed by the minors on 17 May 1910. The
Law in force on this last-mentioned date was not Las Siete Partidas, 1 which was the in force at the time the cases
decided by the Supreme Court of Spain referred to, but the Civil Code which took effect in the Philippines on 8
December 1889. As already stated, the Civil Code requires the consent of both parties for the valid execution of a
contract (art. 1261, Civil Code). As a minor cannot give his consent, the contract made or executed by him has no
validity and legal effect. There is no provision in the Civil Code similar to that of Law 6, Title 19, of the 6th Partida which is
equivalent to the common law principle of estoppel. If there be an express provision in the Civil Code similar law 6, Title
19, of the 6th Partida, I would agree to the reasoning of the majority. The absence of such provision in the Civil Code is
fatal to the validity of the contract executed by a minor. It would be illogical to uphold the validity of a contract on the
ground of estoppel, because if the contract executed by a minor is null and void for lack of consent and produces no
legal effect, how could such a minor be bound by misrepresentation about his age? If he could not be bound by a
direct act, such as the execution of a deed of sale, how could he be bound by an indirect act, such as
misrepresentation as to his age? The rule laid down in Young vs. Tecson, 39 O. G. 953, in my opinion, is the correct one.

Nevertheless, as the action in this case was brought on 8 August 1940, the same was barred, because it was not brought
within four (4) years after the minor had become of age, pursuant to article 1301 of the Civil Code. Ramon Alcantara
became of age sometime in September 1934.

Moran, C.J. and Bengzon, J., concur.

PABLO, M., disidente:

No creo que Ramon Alcantara este en estoppel al querer recuperar su participacion en los lotes que el cedio a Sia
Suan en la escritura de 3 de Agosto de 1931. Las circunstancias que concurrieron en su otorgamiento demostraran que
es insostenible esa conclusion. La acreedora era Sia Suan, y el deudor, Rufino Alcantara por transactiones que tuvo con
ella en el negocio de copra. Al fallecimiento de la esposa de Rufino, alguien se habra percatado de la dificultad de
cobrar el credito porque Rufino no tenia mas que tres lotes de su exclusiva propiedad y dos lotes, como bienes
gananciales. Ramon, uno de los herederos, era un menor de edad. Por eso, se procuro el otorgamiento de tal escritura,
vendiendo el padre (Rufino) y sus dos hijos (Damaso y Ramon) cinco lotes amillarados en P19,592.85 por P2,500; que en
realidad no fue mas que una dacion en pago de la deuda. Si no se otorgaba tal escritura, la acreedora tenia
necesidad de utilizar un proceso largo de abintestato para obtener el pago de la deuda en cuanto afecte, si podia
afectar, los bienes gananciales de Rufino Alcantara y su difunta esposa, o de tutela para que alguien actue en lugar
del menor Ramon. El procedimiento mas corto y menos costoso entonces era hacer que el menos apareciera como
con edad competente para otorgar la escritura de venta. Y asi sucedio: se otorgo la escritura. El menor no recibio ni un
solo centimo. Con la herencia que habia de recibier de su difunta madre, pago la deuda de su padre.

Despues de notificada Sia Suan de la reclamacion de nulidad del documento, por gestion de Gaw Chiao, Ramon
Alcantara siendo menor de edad aun, firmo un affidavit ratificando la venta en la oficina del abogado de Gaw Chiao.
Esta actuacion de Gar Chiao, marido de Sia Suan, denuncia que no fue Ramon el que les hacia creer que era mayor
de edad y que oficiosa y voluntariamente haya solicitado el otorgamiento de la escritura de venta. Si Gaw Chiao,
marido de Sia Suan, fue el que gestiono el otorgamientodel affidavit de ratificacion, ?por que no debemos concluir que
el fue quien gestiono a indicacion tal vez de algun abogado, que Ramon Alcantara estampara su firma en la escritura
de 3 de agosto de 1931? Pero la firma de un menor no vale nada; debia aparecer entonces que Ramon era de mayor
edad. ¿Por que habia de interesarse el menor en otorgar una escritura de venta de tales terrenos? ¿No es mas
probable que la acreedora o su marido o algun agente haya sido el que se intereso por que Ramon tomara parte en el
otorgamiento de la escritura?

Que beneficio obtuvo el menor en el otorgamiento de la escritura? Nada; en cambio, la acreedora consiguio ser
duena de los cinco lotes a cambio de su credito. ¿Quedaba favorecido el menor al firmas su affidavit de ratificacion?
Tampoco; con todo, Sia Suan reclama que el menor fue quien la indujo a error. Si alguien engano al alguien, no habra
sido Ramon. Tenia que ser la acreedora o alguien que ayudaba a ella en conseguir el pago del credito; pero no fue, no
podia ser el menor.

Teniendo en cuenta todas estas circunstancias, no podemos concluir que Ramon Alcantara haya inducido a error a Sia
Suan. No es aplicable, por tanto, la decision de este Tribunal en Mercado y Mercado contra Espiritu (37 Jur. Fil., 227); ni
la del Tribunal Supremo de Espana, pues en tales casos, el menor fingio e hizo creer a los compradores que era mayor
de edad: no era justo que el que indujo a los compradores a comprar un terreno desprendiendosedel precio de
compra, sea permitido despues alegar su minoria de edad para anular la actuacion hecha por el. Eso es
verdadero estoppel; pero en el caso presente no lo hay.

Laches es el otro fundamento sobre que descansa la mayoria para revocar la decision apelada. Laches es medida de
equidad, y no es aplicable al caso presente. Solamente debe admitirse como defensa cuando la aplicacion y hay
necesidad de hacer uso de la equidad. No debe aplicarse para fomentar una injusticia sino para minimizar sus efectos
y solamente debe ser utilizada como defensa cuando en la aplicacion de una ley se comete verdadera injusticia (30 C.
J. S., 531). En el caso presente Ramon Alcantara tiene diez anos de plazo a contar del 3 de Agosto de 1931, dentro del
cual puede pedir la anulacion de la venta. Y la demanda que inicio esta causa se presento dentro de ese plazo; no
esta prescrita pues aun la accion (art. 43, Cod. Proc. Civ.).

Suponiendo que Ramon Alcantara hubiera presentado su demanda antes de la venta de un lote a Nicolas Azores que
sentencia se hubiera dictado? El otorgamiento de una escritura de traspaso de una cuarta parte de los dos lotes; pero
despues de vendido un lote, se ordenaria, como decidio el Tribunal de Apelacion, el traspaso de la cuarta parte del
lote restante y el pago de la cuarta parte del importe en venta del lote vendido a Ramon. En uno y otro caso no se
hace ningun dano a Sia Suan, solamente se le obliga a traspasar a Ramon la parte que, en herencia de los bienes
gananciales dejados por su difunta madre, le corresponde. No hay daño desproporcionado que en equidad autorica
a Sia Suan a invocar la defensa de laches. Si Sia Suan antes de la presentacion de la demanda, hubiera construido
edificios en los lotes por valor de P3,000,000, demos por caso, tal vez seria de equidad para Sia Suan invocar la defensa
de laches, pues por el silencio de Ramon Alcantara, ella ha hecho mejoras de mucho valor que con una decision
semejante seria perjudicada. El trasparo a Ramon Alcantara de una cuarta parte de cada uno de los dos lotes pondria
a ella en la alternativa de comprar esa cuarta parte de los lotes con precio excesivo o derribar parte de los edificios
construidos. En el caso presente no se le ha puesto en esa dificil situacion; al contrario, ella estuvo disfrutando de esos
dos lotes sin hacer mejoras extraordinarias, y despues de vendido el segundo lote, utilizo el dinero recibido, y no hay
pruebas de que se haya causado a ella dano por no presentarse la demanda mas temprano.

Voto por la confirmacion de la decision del Tribunal de Apalacion.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. L-27710 January 30, 1928

ISIDRO BAMBALAN Y PRADO, plaintiff-appellant,

vs.
GERMAN MARAMBA and GENOVEVA MUERONG, defendants-appellants.

Pedro C. Quinto for plaintiff-appellant.

Turner, Rheberg and Sanchez for defendants-appellants.

ROMUALDEZ, J.:

The defendants admit in their amended answer those paragraphs of the complaint wherein it is alleged that Isidro
Bambalan y Colcotura was the owner, with Torrens title, of the land here in question and that the plaintiff is the sole and
universal heir of the said deceased Isidro Bambalan y Colcotura, as regards the said land. This being so, the fundamental
question to be resolved in this case is whether or not the plaintiff sold the land in question to the defendants.

The defendants affirm they did and as proof of such transfer present document Exhibit 1, dated July 17, 1922. The plaintiff
asserts that while it is true that he signed said document, yet he did so by intimidation made upon his mother Paula
Prado by the defendant Genoveva Muerong, who threatened the former with imprisonment. While the evidence on this
particular point does not decisively support the plaintiff's allegation, this document, however, is vitiated to the extent of
being void as regards the said plaintiff, for the reason that the latter, at the time he signed it, was a minor, which is clearly
shown by the record and it does not appear that it was his real intention to sell the land in question.

What is deduced from the record is, that his mother Paula Prado and the latter's second husband Vicente Lagera,
having received a certain sum of money by way of a loan from Genoveva Muerong in 1915 which, according to Exhibit
3, was P200 and according to the testimony of Paula Prado, was P150, and Genoveva Muerong having learned later
that the land within which was included that described in said Exhibit 3, had a Torrens title issued in favor of the plaintiff's
father, of which the latter is the only heir and caused the plaintiff to sign a conveyance of the land.

At any rate, even supposing that the document in question, Exhibit 1, embodies all of the requisites prescribed by law for
its efficacy, yet it does not, according to the provisions of section 50 of Act No. 496, bind the land and would only be a
valid contract between the parties and as evidence of authority to the register of deeds to make the proper registration,
inasmuch as it is the registration that gives validity to the transfer. Therefore, the defendants, by virtue of the document
Exhibit 1 alone, did not acquire any right to the property sold as much less, if it is taken into consideration, the vendor
Isidro Bambalan y Prado, the herein plaintiff, was a minor.

As regards this minority, the doctrine laid down in the case of Mercado and Mercado vs. Espiritu (37 Phil., 215), wherein
the minor was held to be estopped from contesting the contract executed by him pretending to be age, is not
applicable herein. In the case now before us the plaintiff did not pretend to be of age; his minority was well known to the
purchaser, the defendant, who was the one who purchased the plaintiff's first cedula used in the acknowledgment of
the document.

In regard to the amount of money that the defendants allege to have given the plaintiff and her son in 1992 as the price
of the land, the preponderance of evidence shows that no amount was given by the defendants to the alleged vendors
in said year, but that the sum of P663.40, which appears in the document Exhibit 1, is arrived at, approximately, by taking
the P150 received by Paula Prado and her husband in 1915 and adding thereto interest at the rate of 50 per cent
annum, then agreed upon, or P75 a year for seven years up to July 31, 1922, the sate of Exhibit 1.

The damages claimed by the plaintiff have not been sufficiently proven, because the witness Paula Prado was the only
one who testified thereto, whose testimony was contradicted by that of the defendant Genoveva Muerong who,
moreover, asserts that she possesses about half of the land in question. There are, therefore, not sufficient data in the
record to award the damages claimed by the plaintiff.

In view of the foregoing, the dispositive part of the decision appealed from is hereby affirmed, without any express
findings as to the costs in this instance. So ordered.

Johnson, Street, Malcolm, Ostrand, Johns and Villa-Real, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-1720 March 4, 1950

SIA SUAN and GAW CHIAO, petitioners,

vs.
RAMON ALCANTARA, respondent.

Antonio Barredo for petitioners.

Zosimo D. Tanalega for respondents.

PARAS, J.:

On August 3, 1931, a deed of sale was executed by Rufino Alcantara and his sons Damaso Alcantara and Ramon
Alcantara conveying to Sia Suan five parcels of land. Ramon Alcantara was then 17 years, 10 months and 22 days old.
On August 27, 1931, Gaw Chiao (husband of Sia Suan) received a letter from Francisco Alfonso, attorney of Ramon
Alcantara, informing Gaw Chiao that Ramon Alcantara was a minor and accordingly disavowing the contract. After
being contacted by Gaw Chiao, however, Ramon Alcantara executed an affidavit in the office of Jose Gomez,
attorney of Gaw Chiao, wherein Ramon Alcantara ratified the deed of sale. On said occasion Ramon Alcantara
received from Gaw Chiao the sum of P500. In the meantime, Sia Suan sold one of the lots to Nicolas Azores from whom
Antonio Azores inherited the same.

On August 8, 1940, an action was instituted by Ramon Alcantara in the Court of First Instance of Laguna for the
annulment of the deed of sale as regards his undivided share in the two parcels of land covered by certificates of title
Nos. 751 and 752 of Laguna. Said action was against Sia Suan and her husband Gaw Chiao, Antonio, Azores, Damaso
Alcantara and Rufino Alcantara (the latter two being, respectively, the brother and father of Ramon Alcantara
appealed to the Court of Appealed which reversed the decision of the trial court, on the ground that the deed of sale is
not binding against Ramon Alcantara in view of his minority on the date of its execution, and accordingly sentenced Sia
Suan to pay to Ramon Alcantara the sum of P1,750, with legal interest from December 17, 1931, in lieu of his share in the
lot sold to Antonio Azores (who was absolved from the complaint), and to reconvey to Ramon Alcantara an undivided
one-fourth interest in the lot originally covered by certificate of title NO. 752 of Laguna plus the cost of the suit. From this
judgment Sia Suan and Gaw Chiao have come to us on appeal by certiorari.

It is undeniable that the deed of sale signed by the appellee, Ramon Alcantara, On August 3, 1931, showed that he, like
his co-signers (father and brother), was then of legal age. It is not pretend and there is nothing to indicate that the
appellants did not believe and rely on such recital of fact. This conclusion is decisive and very obvious in the decision of
the Court of Appeals It is true that in the resolution on the for reconsideration, the Court of Appeals remarked that "The
fact that when informed of appellant's minority, the appellees too no steps for nine years to protect their interest beyond
requiring the appellant to execute a ratification of the sale while still a minor, strongly indicates that the appellees knew
of his minority when the deed of sale was executed." But the feeble insinuation is sufficiently negative by the following
positive pronouncements of the Court of Appeals as well in said resolution as in the decision.

As to the complaint that the defendant is guilty of laches, suffice it to say that the appellees were informed of
his minority within one (1) month after the transaction was completed. (Resolution.)

Finally, the appellees were equally negligent in not taking any action to protect their interest form and after
August 27, 1931, when they were notified in writing of appellant's minority. (Resolution.)

. . . The fact remains that the appellees were advised within the month that appellant was a minor, through the
letter of Attorney Alfonso (Exhibit 1) informing appellees of his client's desire to disaffirm the contract . . .
(Decision.)
 The purchaser having been apprised of incapacity of his vendor shortly after the contract was made, the delay
in bringing the action of annulment will not serve to bar it unless the period fixed by the statute of limitations
expired before the filing of the complaint. . . . (Decision.)

In support of the contend that the deed of sale is binding on the appellee, counsel for the appellants invokes the
decision in Mercado and Mercado vs. Espiritu (37 Phil., 215), wherein this court held:

The courts, in their interpretation of the law, have laid down the rule that the sale of real estate, made by
minors who pretend to be of legal age, when it fact they are not, is valid, and they will not be permitted to
excuse themselves from the fulfillment of the obligations contracted by them, or to have them annulled in
pursuance of the provisions of Law 6 title 19, of the 6th Partida; and the judgment that holds such a sale to valid
and absolves the purchaser from the complaint filed against him does not violate the laws relative to the sale
of minors' property, nor the juridical rules established in consonance therewith. (Decisions of the Supreme Court
of Spain, of April 27, 1840, July 11, 1868, and March 1, 1875.)

The Court of Appeals has refused to apply this doctrine on the ground that the appellants did not actually pay any
amount in cash to the appellee and therefore did not suffer any detriment by reason of the deed of sale, it being
stipulated that the consideration therefore was a pre-existing indebtedness of appellee's father, Rufino Alcantara. We
are of the opinion that the Court of Appeals erred. In the first place, in the case cited, the consideration for sale
consisted in greater part of pre-existing obligation. In the second place, under the doctrine, to bind a minor who
represents himself to be of legal age, it is not necessary for his vendee to actually part with cash, as long as the contract
is supported by a valid consideration. Since appellee's conveyance to the appellants was admittedly for and in virtue of
a pre-existing indebtedness (unquestionably a valid consideration), it should produce its full force and effect in the
absence of any other vice that may legally invalidate the same. It is not here claimed that the deed of sale is null and
void on any ground other than the appellee's minority. Appellee's contract has become fully efficacious as a contract
executed by parties with full legal capacity.

The circumstance that, about one month after the date of the conveyance, the appellee informed the appellants of his
minority, is of no moment, because appellee's previous misrepresentation had already estopped him from disavowing
the contract. Said belated information merely leads to the inference that the appellants in fact did not know that the
appellee was a minor on the date of the contract, and somewhat emphasizes appellee's had faith, when it is borne in
mind that no sooner had he given said information than he ratified his deed of sale upon receiving from the appellants
the sum of P500.

Counsel for the appellees argues that the appellants could not have been misled as to the real age of the appellee
because they were free to make the necessary investigation. The suggestion, while perhaps practicable, is
conspicuously unbusinesslike and beside the point, because the findings of the Court of Appeals do not show that the
appellants knew or could suspected appellee's minority.

The Court of Appeals seems to be of the opinion that the letter written by the appellee informing the appellants of his
minority constituted an effective disaffirmance of the sale, and that although the choice to disaffirm will not by itself
avoid the contract until the courts adjudge the agreement to be invalid, said notice shielded the appellee from laches
and consequent estoppel. This position is untenable since the effect of estoppel in proper cases is unaffected by the
promptness with which a notice to disaffirm is made.

The appealed decision of the Court of Appeals is hereby reversed and the appellants absolved from the complaint, with
costs against the appellee, Ramon Alcantara. So ordered.

Ozaeta, Tuason, Montemayor and Torres, JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur in the result not upon the grounds stated in the majority opinion but for the following reasons: The deed of sale
executed by Ramon Alcantara on 3 August 1931 conveying to Sia Suan five parcels of land is null and void insofar as the
interest, share, or participation of Ramon Alcantara in two parcels of land is concerned, because on the date of sale he
was 17 years, 10 months and 22 days old only. Consent being one of the essential requisites for the execution of a valid
contract, a minor, such as Ramon Alcantara was, could not give his consent thereof. The only misrepresentation as to his
age, if any, was the statement appearing in the instrument that he was of age. On 27 August 1931, or 24 days after the
deed was executed, Gaw Chiao, the husband of the vendee Sia Suan, was advised by Atty. Francisco Alfonso of the
fact that his client Ramon Alcantara was a minor. The fact that the latter, for and in consideration of P500, executed an
affidavit, whereby he ratified the deed of sale, is of no moment. He was still minor. The majority opinion invokes the rule
laid down in the case of Mercado et al. vs. Espiritu, 37 Phil., 215. The rule laid down by this Court in that case is based on
three judgments rendered by the Supreme Court of Spain on 27 April 1960, 11 July 1868, and 1 March 1875. In these
decisions the Supreme Court of Spain applied Law 6, Title 19, of the 6th Partida which expressly provides:

"Diziendo o ortogando el que fuese menor, que era mayor de XXV años, si ouiesse persona que paresciesse de
tal tiempo, si lo faze enganosamente, valdria el pleyto que assi fuere fecho con el e non deue ser desatado
despues, como quier que non era de edad quando lo fizo: esto es, porque las leyes ayudan a los enganados,
e non a los enganadores. . . ." (Alcubilla, Codigos Antigous de España, p. 613.)

The contract of sale involved in the case of Mercado vs. Espiritu, supra, was executed by the minors on 17 May 1910. The
Law in force on this last-mentioned date was not Las Siete Partidas, 1 which was the in force at the time the cases
decided by the Supreme Court of Spain referred to, but the Civil Code which took effect in the Philippines on 8
December 1889. As already stated, the Civil Code requires the consent of both parties for the valid execution of a
contract (art. 1261, Civil Code). As a minor cannot give his consent, the contract made or executed by him has no
validity and legal effect. There is no provision in the Civil Code similar to that of Law 6, Title 19, of the 6th Partida which is
equivalent to the common law principle of estoppel. If there be an express provision in the Civil Code similar law 6, Title
19, of the 6th Partida, I would agree to the reasoning of the majority. The absence of such provision in the Civil Code is
fatal to the validity of the contract executed by a minor. It would be illogical to uphold the validity of a contract on the
ground of estoppel, because if the contract executed by a minor is null and void for lack of consent and produces no
legal effect, how could such a minor be bound by misrepresentation about his age? If he could not be bound by a
direct act, such as the execution of a deed of sale, how could he be bound by an indirect act, such as
misrepresentation as to his age? The rule laid down in Young vs. Tecson, 39 O. G. 953, in my opinion, is the correct one.

Nevertheless, as the action in this case was brought on 8 August 1940, the same was barred, because it was not brought
within four (4) years after the minor had become of age, pursuant to article 1301 of the Civil Code. Ramon Alcantara
became of age sometime in September 1934.

Moran, C.J. and Bengzon, J., concur.

PABLO, M., disidente:

No creo que Ramon Alcantara este en estoppel al querer recuperar su participacion en los lotes que el cedio a Sia
Suan en la escritura de 3 de Agosto de 1931. Las circunstancias que concurrieron en su otorgamiento demostraran que
es insostenible esa conclusion. La acreedora era Sia Suan, y el deudor, Rufino Alcantara por transactiones que tuvo con
ella en el negocio de copra. Al fallecimiento de la esposa de Rufino, alguien se habra percatado de la dificultad de
cobrar el credito porque Rufino no tenia mas que tres lotes de su exclusiva propiedad y dos lotes, como bienes
gananciales. Ramon, uno de los herederos, era un menor de edad. Por eso, se procuro el otorgamiento de tal escritura,
vendiendo el padre (Rufino) y sus dos hijos (Damaso y Ramon) cinco lotes amillarados en P19,592.85 por P2,500; que en
realidad no fue mas que una dacion en pago de la deuda. Si no se otorgaba tal escritura, la acreedora tenia
necesidad de utilizar un proceso largo de abintestato para obtener el pago de la deuda en cuanto afecte, si podia
afectar, los bienes gananciales de Rufino Alcantara y su difunta esposa, o de tutela para que alguien actue en lugar
del menor Ramon. El procedimiento mas corto y menos costoso entonces era hacer que el menos apareciera como
con edad competente para otorgar la escritura de venta. Y asi sucedio: se otorgo la escritura. El menor no recibio ni un
solo centimo. Con la herencia que habia de recibier de su difunta madre, pago la deuda de su padre.

Despues de notificada Sia Suan de la reclamacion de nulidad del documento, por gestion de Gaw Chiao, Ramon
Alcantara siendo menor de edad aun, firmo un affidavit ratificando la venta en la oficina del abogado de Gaw Chiao.
Esta actuacion de Gar Chiao, marido de Sia Suan, denuncia que no fue Ramon el que les hacia creer que era mayor
de edad y que oficiosa y voluntariamente haya solicitado el otorgamiento de la escritura de venta. Si Gaw Chiao,
marido de Sia Suan, fue el que gestiono el otorgamientodel affidavit de ratificacion, ?por que no debemos concluir que
el fue quien gestiono a indicacion tal vez de algun abogado, que Ramon Alcantara estampara su firma en la escritura
de 3 de agosto de 1931? Pero la firma de un menor no vale nada; debia aparecer entonces que Ramon era de mayor
edad. ¿Por que habia de interesarse el menor en otorgar una escritura de venta de tales terrenos? ¿No es mas
probable que la acreedora o su marido o algun agente haya sido el que se intereso por que Ramon tomara parte en el
otorgamiento de la escritura?

Que beneficio obtuvo el menor en el otorgamiento de la escritura? Nada; en cambio, la acreedora consiguio ser
duena de los cinco lotes a cambio de su credito. ¿Quedaba favorecido el menor al firmas su affidavit de ratificacion?
Tampoco; con todo, Sia Suan reclama que el menor fue quien la indujo a error. Si alguien engano al alguien, no habra
sido Ramon. Tenia que ser la acreedora o alguien que ayudaba a ella en conseguir el pago del credito; pero no fue, no
podia ser el menor.

Teniendo en cuenta todas estas circunstancias, no podemos concluir que Ramon Alcantara haya inducido a error a Sia
Suan. No es aplicable, por tanto, la decision de este Tribunal en Mercado y Mercado contra Espiritu (37 Jur. Fil., 227); ni
la del Tribunal Supremo de Espana, pues en tales casos, el menor fingio e hizo creer a los compradores que era mayor
de edad: no era justo que el que indujo a los compradores a comprar un terreno desprendiendosedel precio de
compra, sea permitido despues alegar su minoria de edad para anular la actuacion hecha por el. Eso es
verdadero estoppel; pero en el caso presente no lo hay.

Laches es el otro fundamento sobre que descansa la mayoria para revocar la decision apelada. Laches es medida de
equidad, y no es aplicable al caso presente. Solamente debe admitirse como defensa cuando la aplicacion y hay
necesidad de hacer uso de la equidad. No debe aplicarse para fomentar una injusticia sino para minimizar sus efectos
y solamente debe ser utilizada como defensa cuando en la aplicacion de una ley se comete verdadera injusticia (30 C.
J. S., 531). En el caso presente Ramon Alcantara tiene diez anos de plazo a contar del 3 de Agosto de 1931, dentro del
cual puede pedir la anulacion de la venta. Y la demanda que inicio esta causa se presento dentro de ese plazo; no
esta prescrita pues aun la accion (art. 43, Cod. Proc. Civ.).

Suponiendo que Ramon Alcantara hubiera presentado su demanda antes de la venta de un lote a Nicolas Azores que
sentencia se hubiera dictado? El otorgamiento de una escritura de traspaso de una cuarta parte de los dos lotes; pero
despues de vendido un lote, se ordenaria, como decidio el Tribunal de Apelacion, el traspaso de la cuarta parte del
lote restante y el pago de la cuarta parte del importe en venta del lote vendido a Ramon. En uno y otro caso no se
hace ningun dano a Sia Suan, solamente se le obliga a traspasar a Ramon la parte que, en herencia de los bienes
gananciales dejados por su difunta madre, le corresponde. No hay daño desproporcionado que en equidad autorica
a Sia Suan a invocar la defensa de laches. Si Sia Suan antes de la presentacion de la demanda, hubiera construido
edificios en los lotes por valor de P3,000,000, demos por caso, tal vez seria de equidad para Sia Suan invocar la defensa
de laches, pues por el silencio de Ramon Alcantara, ella ha hecho mejoras de mucho valor que con una decision
semejante seria perjudicada. El trasparo a Ramon Alcantara de una cuarta parte de cada uno de los dos lotes pondria
a ella en la alternativa de comprar esa cuarta parte de los lotes con precio excesivo o derribar parte de los edificios
construidos. En el caso presente no se le ha puesto en esa dificil situacion; al contrario, ella estuvo disfrutando de esos
dos lotes sin hacer mejoras extraordinarias, y despues de vendido el segundo lote, utilizo el dinero recibido, y no hay
pruebas de que se haya causado a ella dano por no presentarse la demanda mas temprano.

Voto por la confirmacion de la decision del Tribunal de Apalacion.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12471 April 13, 1959

ROSARIO L. DE BRAGANZA, ET AL., petitioners,

vs.
FERNANDO F. DE VILLA ABRILLE, respondent.

Oscar M. Herrera for petitioners.

R. P. Sarandi and F. Valdez Anama for respondents.

BENGZON, J.:
Rosario L. de Braganza and her sons Rodolfo and Guillermo petition for review of the Court of Appeal's decision whereby
they were required solidarily to pay Fernando F. de Villa Abrille the sum of P10,000 plus 2 % interest from October 30, 1944.

The above petitioners, it appears, received from Villa Abrille, as a loan, on October 30, 1944 P70,000 in Japanese war
notes and in consideration thereof, promised in writing (Exhibit A) to pay him P10,000 "in legal currency of the P. I. two
years after the cessation of the present hostilities or as soon as International Exchange has been established in the
Philippines", plus 2 % per annum.

Because payment had not been made, Villa Abrille sued them in March 1949.

In their answer before the Manila court of first Instance, defendants claimed to have received P40,000 only — instead of
P70,000 as plaintiff asserted. They also averred that Guillermo and Rodolfo were minors when they signed the promissory
note Exhibit A. After hearing the parties and their evidence, said court rendered judgment, which the appellate court
affirmed, in the terms above described.

There can be no question about the responsibility of Mrs. Rosario L. Braganza because the minority of her consigners note
release her from liability; since it is a personal defense of the minors. However, such defense will benefit her to the extent
of the shares for which such minors may be responsible, (Art. 1148, Civil Code). It is not denied that at the time of signing
Exhibit A, Guillermo and Rodolfo Braganza were minors-16 and 18 respectively. However, the Court of Appeals found
them liable pursuant to the following reasoning:

. . . . These two appellants did not make it appears in the promissory note that they were not yet of legal age. If
they were really to their creditor, they should have appraised him on their incapacity, and if the former, in spite
of the information relative to their age, parted with his money, then he should be contended with the
consequence of his act. But, that was not the case. Perhaps defendants in their desire to acquire much
needed money, they readily and willingly signed the promissory note, without disclosing the legal impediment
with respect to Guillermo and Rodolfo. When minor, like in the instant case, pretended to be of legal age, in
fact they were not, they will not later on be permitted to excuse themselves from the fulfillment of the
obligation contracted by them or to have it annulled. (Mercado, et al. vs. Espiritu, 37 Phil., 215.) [Emphasis Ours.]

We cannot agree to above conclusion. From the minors' failure to disclose their minority in the same promissory note they
signed, it does not follow as a legal proposition, that they will not be permitted thereafter to assert it. They had no
juridical duty to disclose their inability. In fact, according to Corpuz Juris Secundum, 43 p. 206;

. . . . Some authorities consider that a false representation as to age including a contract as part of the contract
and accordingly hold that it cannot be the basis of an action in tort. Other authorities hold that such
misrepresentation may be the basis of such an action, on the theory that such misrepresentation is not a part
of, and does not grow out of, the contract, or that the enforcement of liability for such misrepresentation as tort
does not constitute an indirect of enforcing liability on the contract. In order to hold infant liable, however, the
fraud must be actual and not constructure. It has been held that his mere silence when making a contract as
to age does not constitute a fraud which can be made the basis of an action of decit. (Emphasis Ours.)

The fraud of which an infant may be held liable to one who contracts with him in the belief that he is of full age
must be actual not constructive, and mere failure of the infant to disclose his age is not sufficient. (27 American
Jurisprudence, p. 819.)

The Mecado case1 cited in the decision under review is different because the document signed therein by the
minor specifically stated he was of age; here Exhibit A contained no such statement. In other words, in the Mercado
case, the minor was guilty of active misrepresentation; whereas in this case, if the minors were guilty at all, which we
doubt it is of passive (or constructive) misrepresentation. Indeed, there is a growing sentiment in favor of limiting the
scope of the application of the Mercado ruling, what with the consideration that the very minority which incapacitated
from contracting should likewise exempt them from the results of misrepresentation.

We hold, on this point, that being minors, Rodolfo and Guillermo Braganza could not be legally bound by their signatures
in Exhibit A.

It is argued, nevertheless, by respondent that inasmuch as this defense was interposed only in 1951, and inasmuch as
Rodolfo reached the age of majority in 1947, it was too late to invoke it because more than 4 years had elapsed after he
had become emancipated upon reaching the age of majority. The provisions of Article 1301 of the Civil Code are
quoted to the effect that "an action to annul a contract by reason of majority must be filed within 4 years" after the
minor has reached majority age. The parties do not specify the exact date of Rodolfo's birth. It is undenied, however,
that in October 1944, he was 18 years old. On the basis of such datum, it should be held that in October 1947, he was 21
years old, and in October 1951, he was 25 years old. So that when this defense was interposed in June 1951, four years
had not yet completely elapsed from October 1947.

Furthermore, there is reason to doubt the pertinency of the 4-years period fixed by Article 1301 of the Civil Code where
minority is set up only as a defense to an action, without the minors asking for any positive relief from the contract. For
one thing, they have not filed in this case an action for annulment.2 They merely interposed an excuse from liability.

Upon the other hand, these minors may not be entirely absolved from monetary responsibility. In accordance with the
provisions of Civil Code, even if their written contact is unenforceable because of non-age, they shall make restitution to
the extent that they have profited by the money they received. (Art. 1340) There is testimony that the funds delivered to
them by Villa Abrille were used for their support during the Japanese occupation. Such being the case, it is but fair to
hold that they had profited to the extent of the value of such money, which value has been authoritatively established in
the so-called Ballantine Schedule: in October 1944, P40.00 Japanese notes were equivalent to P1 of current Philippine
money.

Wherefore, as the share of these minors was 2/3 of P70,000 of P46,666.66, they should now return P1,166.67.3Their promise
to pay P10,000 in Philippine currency, (Exhibit A) can not be enforced, as already stated, since they were minors
incapable of binding themselves. Their liability, to repeat, is presently declared without regard of said Exhibit A, but solely
in pursuance of Article 1304 of the Civil Code.

Accordingly, the appealed decision should be modified in the sense that Rosario Braganza shall pay 1/3 of P10,000 i.e.,
P3,333.334 plus 2% interest from October 1944; and Rodolfo and Guillermo Braganza shall pay jointly5 to the same creditor
the total amount of P1,166.67 plus 6% interest beginning March 7, 1949, when the complaint was filed. No costs in this
instance.

Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion and Endencia, JJ., concur.

Footnotes

1 Mercado vs. Espiritu, 37 Phil., 215.

2It would be observed in this connection, that the new Civil Code does not govern the contract executed in
1944.

3 P46,666.00 divided by 40.

4 She says peso for peso, in view of the terms of Exhibit A. She is, indeed, willing to pay as much.

5Arts. 1137, 1138, Civil Code. Debtors presumed to be bound jointly — not severally. Un Pak Leung vs. Negora, 9
Phil., 381; Flaviano vs. Delgado, 11 Phil., 154; Compania General vs. Obed, 13 Phil., 391.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. Nos. L-9471 and L-9472 March 13, 1914

THE UNITED STATES, plaintiff-appellee,

vs.
EVARISTO VAQUILAR, defendant-appellant.
William J. Rohde for appellant.
Acting Attorney-General Harvey for appellee.

TRENT, J.:

The appellant, Evaristo Vaquilar, was charged in two separate informations with parricide, in one for the killing of his wife
and in the other for the killing of his daughter. He was sentenced to life imprisonment, to indemnify the heirs, to the
accessory penalties, and to the payment of the costs in each case. From this judgment he appealed. The two cases
have been submitted to this court together.

The appellant in these two cases was proven to have killed his wife and daughter in the manner charged and to have
wounded other persons with a bolo. The commission of these crimes is not denied. The defendant did not testify but
several witnesses were introduced in his behalf, testifying that the defendant appeared to them to be insane at and
subsequent to the commission of the crimes. they also testified that he had been complaining of pains in his head and
stomach prior to the killing.

Our attention has been directed to the following testimony: Martin Agustin, witness for the prosecution, testified that he
heard the appellant, his uncle, making a noise, and that he refused into the house and saw the appellant kill his wife and
daughter; that he was cut by the appellant; that there "were seven, including the small boys and girls who were cut by
him;" that he did not know of any disagreement between the appellant and the two deceased; that on the morning
before she was killed that the appellant had 'felt pains in his head and stomach." The witness further stated that the
appellant's "eyes were very big and red and his sight penetrating" at the time he was killing his wife and daughter, and
that "according to my own eyes as he looked at me he was crazy because if he was not crazy he would not have killed
his family — his wife and child."

Diego Agustin, a witness for the defense, testified that he helped Martin Agustin capture the appellant; that the
appellant "himself used to say before that time he had felt pains in the head and the stomach;" that at the moment he
was cutting those people " he looked like a madman; crazy because he would cut everybody at random without
paying any attention to who it was."

Alejandra Vaquilar, the appellant's sister, testified that her brother had headache and stomach trouble about five days
prior to the commission of the crimes; that "he looked very sad at the time, but I saw him run downstairs and then he
pursued me;" and that "he must have been crazy because he cut me."

Estanislao Canaria, who was a prisoner confined in the same jail with the appellant, testified that he had observed the
appellant about five months and that sometimes "his head is not all right;" that "oftentimes since he came to the jail
when he is sent for something he goes back he does without saying anything, even if he comes back he does not say
anything at all;" that when the appellant returns from work he does not say a word; and that about every other night he,
the appellant, cries aloud, saying, "What kind of people are you to me, what are you doing to me, you are beasts."

The health officer who examined the two deceased and the other wounded parties found that the appellant's wife had
five mortal wounds on the head, besides several other wounds on her hands; and that the daughter's skull was split
"through and through from one side to the other." The witness stated that he made a slight examination of the defendant
in the jail and that he did not notice whether defendant in the jail and that he did not notice whether defendant was
suffering from any mental derangement or not.

There is vast different between an insane person and one who has worked himself up into such a frenzy of anger that he
fails to use reason or good judgment in what he does. Persons who get into a quarrel of fight seldom, if ever, act
naturally during the fight. An extremely angry man, often, if not always, acts like a madman. The fact that a person acts
crazy is not conclusive that he is insane. The popular meaning of the word "crazy" is not synonymous with the legal terms
"insane," "non compos mentis," "unsound mind," "idiot," or "lunatic." In this case as before indicated, one witness testified
that "according to my own eyes as he looked at me he was crazy because if he was not crazy he would not have killed
his family." That witness' conception of the word "crazy" evidently is the doing of some act by a person which an
ordinarily rational person would not think of doing. Another witness testified that "he looked like a madman; crazy,
because he would cut everybody at random without paying any attention to who it was." It is not at all unnatural for a
murderer, caught in the act of killing his wife and child, to fly into a passion and strike promiscuously at those who
attempt to capture him. The appellant's sister said "he must have been crazy because he cut me." This is another
illustration of the popular conception of the word "crazy," it being thus used to describe a person or an act unnatural or
out of the ordinary.
The conduct of the appellant after he was confined in jail as described by his fellow prisoner is not inconsistent with the
actions of a sane person. The reflection and remorse which would follow the commission of such deeds as those
committed by the appellant might be sufficient to cause the person to cry out, "What kind of people are you to me;
what are you doing to me; you are beast," and yet such conduct could not be sufficient to show that the person was
insane at the time the deeds were committed.

In People vs. Mortimer (48 Mich., 37; 11 N. W., 776), the defendant was indicated for an assault with intent to murder. The
defense attempted to prove "a mental condition which would involved no guilt." The supreme court on appeal in this
decision distinguished between passion and insanity as follows:

But passion and insanity are very different things, and whatever indulgence the law may extend to persons
under provocation, it does not treat them as freed from criminal responsibility. Those who have not lost control
of their reason by mental unsoundness are bound to control their tempers and restrain their persons, and are
liable to the law if they do not. Where persons allow their anger to lead them so far as to make them reckless,
the fact that they have become at last too infuriated to keep them from mischief is merely the result of not
applying restraint in season. There would be no safety for society if people could with impunity lash themselves
into fury, and then to desperate acts of violence. That condition which springs from undisciplined and unbridled
passion is clearly within legal as well as moral censure and punishment. (People vs. Finley, 38 Mich., 482;
Welch vs. Ware, 32 Mich., 77.)

In People vs. Foy (138 N. Y., 664), the court sad: "The court very properly continued with an explanation to the jury that
'the heat of passion and feeling produced by motives of anger, hatred, or revenge, is not insanity. The law holds the doer
of the act, under such conditions, responsible for the crime, because a large share of homicides committed are
occasioned by just such motives as these.' "

The Encyclopedia of Law and Procedure (vol. 12, p. 170), cites many cases on the subject of anger and emotional
insanity and sums up those decisions in the following concise statement:

Although there have been decisions to the contrary, it is now well settled that mere mental depravity, or moral
insanity, so called, which results, not from any disease of mind, but from a perverted condition of the moral
system, where the person is mentally sense, does not exempt one from responsibility for crimes committed
under its influence. Care must be taken to distinguish between mere moral insanity or mental depravity and
irresistable impulse resulting from disease of the mind.

In the case of United States vs. Carmona (18 Phil. Rep., 62), the defendant was convicted of the crime of lesiones graves.
The defendant's counsel, without raising any question as to the actual commission of the alleged acts, or the allegation
that the accused committed them, confined himself to the statement, in behalf of his client, that on the night of the
crime the defendant was sick with fever and out of his mind and that in one of his paroxysms he committed the said
acts, wounding his wife and the other members of her family, without any motives whatever. In the decision in that case
this court stated:

In the absence of proof that the defendant had lost his reason or became demented a few moments prior to
or during the perpetration of the crime, it is presumed that he was in a normal condition of mind. It is improper
to conclude that he acted unconsciously, in order to relieve him from responsibility on the ground of
exceptional mental condition, unless his insanity and absence of will are proven.

Regarding the burden of proof in cases where insanity is pleaded in defense of criminal actions, we quote as follows
from State vs. Bunny (24 S. C., 439; 58 Am. Rep., 262, 265):

But as the usual condition of men is that of sanity, there is a presumption that the accused is sane, which
certainly in the first instance affords proof of the fact. (State vs. Coleman, 20 S. C., 454.) If the killing and nothing
more appears, this presumption, without other proof upon the point of sanity, is sufficiently to support a
conviction and as the State must prove every element of the crime charged "beyond a reasonable doubt," it
follows that this presumption affords such proof. This presumption however may be overthrow. It may be shown
on the part of the accused that the criminal intent did not exist at the time the act was committed. This being
exceptional is a defense, and like other defenses must be made out by the party claiming the benefit of it. "The
positive existence of that degree and kind of insanity that shall work a dispensation to the prisoner in the case
of established homicide is a fact to be proved as it s affirmed by him." (State vs. Stark, 1 Strob., 506.)

What then is necessary to make out this defense? It surely cannot be sufficient merely to allege insanity to put
his sanity "in issue." That is merely a pleading, a denial, and ineffectual without proof. In order to make not such
 defense, as it seems to us, sufficient proof must be shown to overcome in the first place the presumption of
sanity and then any other proof that may be offered.

In the case of State vs. Stickley (41 Iowa, 232), the court said (syllabus):

One who, possession of a sound mind, commits a criminal act under the impulse of passion or revenge, which
way temporarily dethrone reason and for the moment control the will, cannot nevertheless be shield from the
consequences of the act by the plea of insanity. Insanity will only excuse the commission of a criminal act,
when it is made affirmatively to appear that the person committing it was insane, and that the offense was the
direct consequences of his insanity.

The appellant's conduct, as appears from the record, being consistent with the acts of an enlarged criminal, and it not
having been satisfactorily, shown that he was of unsound mind at the time he committed the crimes, and the facts
charged in each information having been proven, and the penalty imposed being in accordance with the law, the
judgments appealed from are affirmed, with costs against the appellant.

Arellano, C.J., Carson and Araullo, JJ., concur.

Moreland, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5921 July 25, 1911

THE STANDARD OIL COMPANY OF NEW YORK, plaintiff-appellee,

vs.
JUAN CODINA ARENAS AND OTHERS, defendants;
VICENTE SIXTO VILLANUEVA, appellant.

Chicote and Miranda for appellant.

W.A. Kincaid and Thos. L. Hartigan for appellee.

ARELLANO, C.J.:

On December 15, 1908, Juan Codina Arenas and Francisco Lara del Pino, as principals, and Alipio Locso, Vicente Sixto
Villanueva and the Chinaman, Siy Ho, as sureties, assumed the obligation to pay, jointly and severally, to the
corporation, The Standard Oil Company of New York, the sum of P3,305. 76, at three months from date, with interest at
P1 per month.

On April 5, 1909, The Standard Oil Company of New York sued the said five debtors for payment of the P3,305.76,
together with the interest thereon at the rate of 1 per cent per month from the 15th of December, 1908, and the costs.

The defendants were summoned, the record showing that summons was served on Vicente Sixto Villanueva on April 17,
1909.

On May 12, 1909, Vicente Sixto Villanueva and Siy Ho were declared to be in default and were so notified, the latter on
the 14th and the former on the 15th of May, 1909.

On August 28, 1909, the Court of First Instance of the city of Manila sentenced all the defendants to pay jointly and
severally to the plaintiff company the sum of P3,305.76, together with the interest thereon at 1 per cent per month from
December 15, 1908, until complete payment should have been made of the principal, and to pay the costs.

While the judgment was in the course of execution, Elisa Torres de Villanueva, the wife of Vicente Sixto Villanueva,
appeared and alleged: (1) That on July 24, 1909, the latter was declared to be insane by the Court of First Instance of
the city of Manila; (2) that she was appointed his guardian by the same court; (3) that, on October 11, following, she was
authorized by the court, as guardian, to institute the proper legal proceedings for the annulment of several bonds given
by her husband while in a state of insanity, among them that concerned in the present cause, issued in behalf of The
Standard Oil Company of New York; (4) that she, the guardian, was not aware of the proceedings had against her
husband and was only by chance informed thereof; (5) that when Vicente S. Villanueva gave the bond, the subject of
this suit, he was already permanently insane, was in that state when summoned and still continued so, for which reason
he neither appeared nor defended himself in the said litigation; and, in conclusion, she petitioned the court to relieve
the said defendant Villanueva from compliance with the aforestated judgment rendered against him in the suit before
mentioned, and to reopen the trial for the introduction of evidence in behalf of the said defendant with respect to his
capacity at the time of the execution of the bond in question, which evidence could not be presented in due season on
account of the then existing incapacity of the defendant.

The court granted the petition and the trial was reopened for the introduction of evidence, after due consideration of
which, when taken, the court decided that when Vicente Villanueva, on the 15th of December, 1908, executed the
bond in question, he understood perfectly well the nature and consequences of the act performed by him and that the
consent that was given by him for the purpose was entirely voluntary and, consequently, valid and efficacious. As a
result of such findings the court ruled that the petition for an indefinite stay of execution of the judgment rendered in the
case be denied and that the said execution be carried out.

After the filing of an exception to the above ruling, a new hearing was requested "with reference to the defendant
Vicente S. Villanueva" and, upon its denial, a bill of exceptions was presented in support of the appeal submitted to this
court and which is based on a single assignment of error as follows:

Because the lower court found that the monomania of great wealth, suffered by the defendant Villanueva,
does not imply incapacity to execute a bond such as the one herein concerned.

Certainly the trial court founded its judgment on the basis of the medico-legal doctrine which supports the conclusion
that such monomania of wealth does not necessarily imply the result that the defendant Villanueva was not a person
capable of executing a contract of bond like the one here in question.

This court has not found the proof of the error attributed to the judgment of the lower court. It would have been
necessary to show that such monomania was habitual and constituted a veritable mental perturbation in the patient;
that the bond executed by the defendant Villanueva was the result of such monomania, and not the effect of any other
cause, that is, that there was not, nor could there have been any other cause for the contract than an ostentation of
wealth and this purely an effect of monomania of wealth; and that the monomania existed on the date when the bond
in question was executed.

With regard to the first point: "All alienists and those writers who have treated of this branch of medical science
distinguish numerous degrees of insanity and imbecility, some of them, as Casper, going so far into a wealth of
classification and details as to admit the existence of 60 to 80 distinct states, an enumeration of which is unnecessary.
Hence, the confusion and the doubt in the minds of the majority of the authors of treatises on the subject in determining
the limits of sane judgment and the point of beginning of this incapacity, there being some who consider as a sufficient
cause for such incapacity, not only insanity and imbecility, but even those other chronic diseases or complaints that
momentarily perturb or cloud the intelligence, as mere monomania, somnambulism, epilepsy, drunkenness, suggestion,
anger, and the divers passional states which more or less violently deprive the human will of necessary liberty." (Manresa,
Commentaries on the Civil Code, Vol. V, p. 342.) In our present knowledge of the state of mental alienation such
certainly has not yet been reached as to warrant the conclusion, in a judicial decision, that he who suffers the
monomania of wealth, believing himself to be very wealthy when he is not, is really insane and it is to be presumed, in
the absence of a judicial declaration, that he acts under the influence of a perturbed mind, or that his mind is deranged
when he executes an onerous contract .The bond, as aforesaid, was executed by Vicente S. Villanueva on December
15, 1908, and his incapacity, for the purpose of providing a guardian for him, was not declared until July 24, 1909.

The trial court, although it conceded as a fact that the defendant had for several years suffered from such monomania,
decided, however, guided by the medico-legal doctrine above cited, that a person's believing himself to be what he is
not or his taking a mere illusion for a reality is not necessarily a positive proof of insanity or incapacity to bind himself in a
contract. Specifically, in reference to this case, the following facts were brought out in the testimony given by the
physicians, Don Rudesino Cuervo and Don Gervasio de Ocampo, witnesses for the defendant, the first of whom had
visited him some eight times during the years 1902 and 1903, and the latter, only once, in 1908.

Dr. Cuervo:

Q. But if you should present to him a document which in no wise concerns his houses and if you should
direct him to read it, do you believe that he would understand the contents of the document?
 A. As to understanding it, it is possible that he might, in this I see nothing particularly remarkable; but
afterwards, to decide upon the question involved, it might be that he could not do that; it depends upon what
the question was.

Dr. Ocampo:

Q. Do you say that he is intelligent with respect to things other than those concerning greatness?

A. Yes, he reasons in matters which do not refer to the question of greatness and wealth.

Q. He can take a written paper and read it and understand it, can he not?

A. Read it, yes, he can read it and understand it, it is probable that he can, I have made no trial.

Q. Is he not a man of considerable intelligence, only with the exception of this monomania of greatness
and wealth?

A. Of not much intelligence, an ordinary intelligence.

Q. He knows how to read and write, does he not?

A. Yes, sir I believe that he does.

Mr. F.B. Ingersoll, a witness for the plaintiff, testified that as a notary he had prepared the instrument of bond and
received the statements of the signers; that he explained to Mr. Villanueva its contents and when the witness asked the
latter whether he wished to sign it he replied that he was willing and did in fact do so; that the defendant's mental
condition appeared to the witness to be normal and regular and that he observed nothing to indicate the contrary; and
that the defendant was quiet and composed and spoke in an ordinary way without giving cause fir any suspicion that
there was anything abnormal.

Honorable Judge Araullo testified as a witness for the plaintiff that while trying in the Court of First Instance, over which he
presided, the case concerning the estate of the Chinaman Go-Cho-Co, and Mr. Villanueva having been proposed as a
surety therein, the witness asked him some questions about his property, in order to ascertain whether he was solvent
and would be adequate surety, and that Villanueva testified the same as many, others had done, and witness did not
notice any particular disorder or perturbation of his mental faculties; that he answered the questions concerning the
property that he held, stated its value, specified the place where it was situated, his answers being precisely relevant to
the matter treated; that he therefore approved the bond; and that all this took place between July and September,
1908. This witness having been asked, on cross-examination, whether Mr. Villanueva, subsequent to the date mentioned,
had again been surety in any other case, and whether it appeared strange to witness that Mr. Villanueva should
engage in giving bonds and whether for that reason he rejected this new bond, replied that it was in that same case
relative to the estate of the Chinaman Go-Cho-Co that he endeavored to investigate, as he customarily did, with
regard to whether Mr. Villanueva had given any other previous bond, and the discovered that he had in fact previously
given bond in a criminal case, but that, as it had already been cancelled, he had no objection to accepting the one
offered by Mr. Villanueva in the said Go-Cho-Co case.

Capacity to act must be supposed to attach to a person who has not previously been declared incapable, and such
capacity is presumed to continue so long as the contrary be not proved, that is, that at the moment of his acting he was
incapable, crazy, insane, or out his mind: which, in the opinion of this court, has not been proved in this case.

With regard to the second point, it is very obvious that in every contract there must be a consideration to substantiate
the obligation, so much so that, even though it should not be expressed in the contract, it is presumed that it exists and
that it is lawful, unless the debtor proves the contrary. (Civil Code, art. 1277.) In the contract of bond the consideration,
general, is no other, as in all contract of pure beneficence, than the liberality of the benefactor. (Id, 1274.) Out of the
ordinary, a bond may be given for some other consideration, according to the agreement and the free stipulation of
the parties and may be, as in onerous and remuneratory contracts, something remunerative stipulated as an equivalent,
on the part of the beneficiary of the bond.

It is not clear as to the reason why Villanueva gave the bond in favor of the two members of the firm of Arenas & Co.,
Francisco Lara, and Juan Arenas. Lara testified that he had never had dealings with Villanueva; from which it is inferred
that the latter could hardly have been moved to favor the former by the benefit of an assumed obligation to pay him
some three thousand pesos, with monthly interest .But he added that Arenas & Co. obtained an agent to look for
sureties for them, to whom Arenas paid a certain sum of money. The witness did not know, however, whether Arenas
gave the money for the signature of the bond or simply in order that the agent might find sureties. The fact is that the
sureties came with the agent and signed the bond.

The appellant presented, as proof that Villanueva concealed from his family his dealings with Arenas, a note by the
latter addressed to his friend, Mr. Villanueva, on the 13th of May, 1909, that is, two days before Villanueva was declared
to be in default, inviting him to a conference "for the purpose of treating of a matter of great importance of much
interest to Villanueva, between 5 and 6 of that same day, in the garden and on the benches which are in front of the
Delmonico Hotel, on Calle Palacio, corner of Calle Victoria, and if rained, in the bar on the corner." It can not be
affirmed with certainty (the trial court considers it probable) that Villanueva engaged in the business of giving bonds for
a certain consideration or remuneration; but neither can it be sustained that there was no other cause for the giving of
the bond in question than the mental disorder that dominated the intellect of the person obligated, to the extent of his
believing himself so oversupplied with money as to be able to risk it in behalf of any person whatever. There is no proof
that the said bond was merely the product of an insensate ostentation of wealth, nor that, if Villanueva boasted of
wealth in giving several bonds, among them that herein concerned, he was influenced only by the monomania of
boasting of being wealthy, when he was not.

Neither is there any proof whatever with respect to the third point, that is, that, granting that he was a monomaniac, he
was dominated by that malady when he executed the bond now under discussion. In the interpretative jurisprudence
on this kind of incapacity, to wit, lunacy or insanity, it is a rule of constant application that is not enough that there be
more or less probability that a person was in a state of dementia at a given time, if there is not direct proof that, at the
date of the performance of the act which it is endeavored to invalidate for want of capacity on the part of the
executor, the latter was insane or demented, in other words, that he could not, in the performance of that act, give his
conscious, free, voluntary, deliberate and intentional consent. The witness who as physicians testified as to
extravagancies observed in Villanueva's conduct, referred, two of them, to a time prior to 1903, and another of them to
the year 1908, but none to December 15, 1908, the date of the execution of the bond sought to be invalidated. the
testimony of one of these witnesses shows that when Villanueva's wife endeavored, in 1908, to have her husband
confined in the Hospicio de San Jose and cared for therein, objection was made by the director of the institution who
advised her that if he entered in that way and lodged in the ward for old men, as soon as he shouted and disturbed
them in their sleep he would have to be locked up in the insane ward; to which Villanueva's wife replied "that her
husband was not exactly insane enough to be placed among the insane." This same lady, testifying as a witness in this
case, stated: that no restrictions had ever been placed upon her husband's liberty to go wherever he wished and do
what he liked; that her husband had property of his own and was not deprived of its management; that he went out
every morning without her knowing where he went; that she did not know whether he had engaged in the business of
signing bonds, and that, with reference to the one now concerned, she had learned of it only by finding to note, before
mentioned, wherein Arenas invited him to a rendezvous on the benches in front of the Delmonico Hotel; that she had
not endeavored legally to deprive him of the management of his own real estate which had been inherited by him,
although he did not attend to the collection of the rents and the payment of the land tax, all this being done by her,
and she also it was who attended to the subsistence of the family and to all their needs. Finally, and with direct
reference to the point under discussion, she was asked:

Q. It is not true that, up to the date of his signing this bond, he used to go out of the house and was on the
streets nearly every day? to which she replied:

A. He went where he pleased, he does this even now. He goes to the markets, and buys provisions and
other things. In fact I don't know where he goes go.

Q. From his actions toward others, did he show any indication of not being sane when he was on the street,
according to your opinion?

A. Half of Manila knows him and are informed of this fact and it is very strange that this should have
occurred. If you need witnesses to prove it, there are many people who can testify in regard to this particular.

The only incorrectness mentioned by this lady is that her husband, when he went to the market, would return to the
house with his pockets full of tomatoes and onions, and when she was asked by the judge whether he was a man of
frugal habits, she replied that, as far as she knew, he had never squandered any large sum of money; that he had never
been engaged in business; that he supported himself on what she gave him; and that if he had something to count on
for his living, it was the product of his lands.
Such is a summary of the facts relating to the debated incapacity of the appellant, and it is very evident that it can not
be concluded therefrom that, on December 15, 1908, when Villanueva subscribed the obligation now contested, he did
not possess the necessary capacity to give efficient consent with respect to the bond which he freely executed.

Therefore, the judgment appealed from is affirmed, with the costs of this instance against the appellant. So ordered.

Torres, Johnson, Carson, and Moreland, JJ., concur.

FIRST DIVISION

[G.R. No. 54135. November 21, 1991.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. POLICARPIO RAFANAN, JR., Defendant-Appellant.

The Solicitor General for Plaintiff-Appellee.

Causapin, Millar & Tutana Law Office, for Defendant-Appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; INCONSISTENCIES RELATING TO MINOR AND INCONSEQUENTIAL
DETAILS DID NOT IMPAIR COMPLAINT’S CREDIBILITY. — Appellant first assails the credibility of complainant as well as of her
mother whose testimonies he contends are contradictory. It is claimed by appellant that the testimony of complainant
on direct examination that she immediately went home after the rape incident, is at variance with her testimony on
cross examination to the effect that she has stayed in the house of appellant until the following day. Complainant, in
saying that she left the house of appellant by herself, is also alleged to have contradicted her mother who stated that
she (the mother) went to the store in the evening of 17 March 1979 and brought Estelita home. The apparently
inconsistent statements made by complainant were clarified by her on cross examination. In any case, the
inconsistencies related to minor and inconsequential details which do not touch upon the manner in which the crime
had been committed and therefore did not in any way impair the credibility of the complainant.

2. CRIMINAL LAW; EXEMPTING CIRCUMSTANCE; INSANITY; STANDARDS OF LEGAL INSANITY. — Although the Court has
ruled many times in the past on the insanity defense, it was only in People v. Formigones that the Court elaborated on
the required standards of legal insanity, quoting extensively from the Commentaries of Judge Guillermo Guevara on the
Revised Penal Code. The standards set out in Formigones were commonly adopted in subsequent cases. A linguistic or
grammatical analysis of those standards suggests that Formigones established two (2) distinguished tests: (a) the test of
cognition — "complete deprivation of intelligence in committing the [criminal] act," and (b) the test of volition — "or that
there be a total deprivation of freedom of the will."cralaw virtua1aw library

3. ID.; ID.; ID.; ID.; NO EXEMPTION FOR AN ACCUSED WHO FAILED TO SHOW COMPLETE IMPAIRMENT OR LOSS OF
INTELLIGENCE. — But our caselaw shows common reliance on the test of cognition, rather than on a test relating to
"freedom of the will;" examination of our caselaw has failed to turn up any case where this Court has exempted an
accused on the sole ground that he was totally deprived of "freedom of the will," i.e., without an accompanying
"complete deprivation of intelligence." This is perhaps to be expected since a person’s volition naturally reaches out only
towards that which is presented as desirable by his intelligence, whether that intelligence be diseased or healthy. In any
case, where the accused failed to show complete impairment or loss of intelligence, the Court has recognized at most a
mitigating, not an exempting, circumstance in accord with Article 13(9) of the Revised Penal Code: "Such illness of the
offender as would diminish the exercise of the will-power of the offender without however depriving him of the
consciousness of his acts."cralaw virtua1aw library

4. ID.; ID.; ID.; ID.; ID.; SCHIZOPHRENIA AS AN EXEMPTING CIRCUMSTANCE, REJECTED BY THE COURT. — Schizophrenia
pleaded by appellant has been described as a chronic mental disorder characterized by inability to distinguished
between fantasy and reality, and often accompanied by hallucinations and delusions. Formerly called dementia
praecox, it is said to be the most common form of psychosis and usually develops between the ages 15 and 30. In
previous cases where schizophrenia was interposed as an exempting circumstance, it has mostly been rejected by the
Court. In each of these cases, the evidence presented tended to show that if there was impairment of the mental
faculties, such impairment was not so complete as to deprive the accused of intelligence or the consciousness of his
acts.

5. ID.; ID.; ID.; ID.; ID.; ID.; ACCUSED IN INSTANT CASE SHOWS THAT HE WAS AWARE OF REPREHENSIBLE MORAL QUALITY OF
THE ASSAULT. — The facts of the instant case exhibit much the same situation. Dr. Jovellano’s testimony, in substance,
negated complete destruction of intelligence at the time of commission of the act charged which, in the current state
of our caselaw, is critical if the defense of insanity is to be sustained. The fact that appellant Rafanan threatened
complainant Estelita with death should she reveal she had been sexually assaulted by him, indicates, to the mind of the
Court, that Rafanan was aware of the reprehensible moral quality of that assault. The defense sought to suggest,
through Dr. Jovellano that a person suffering from schizophrenia sustains not only impairment of the mental faculties but
also deprivation of the power of self-control. We do not believe that Dr. Jovellano’s testimony, by itself, sufficiently
demonstrated the truth of that proposition. In any case, as already pointed out, it is complete loss of intelligence which
must be shown if the exempting circumstance of insanity is to be found.

6. ID.; ID.; ID.; ACCUSED HAS BURDEN OF PROVING HIS AFFIRMATIVE ALLEGATION OF INSANITY. — The law presumes every
man to be sane. A person accused of a crime has the burden of proving his affirmative allegation of insanity. Here,
appellant failed to present clear and convincing evidence regarding his state of mind immediately before and during
the sexual assault on Estelita. It has been held that inquiry into the mental state of the accused should relate to the
period immediately before or at the very moment the act is committed. Appellant rested his case on the testimonies of
the two (2) physicians (Dr. Jovellano and Dr. Nerit) which, however, did not purport to characterize his mental condition
during that critical period of time. They did not specifically relate to circumstances occurring on or before the day of the
rape. Their testimonies consisted of broad statements based on general behavioral patterns of people afflicted with
schizophrenia. Curiously, while it was Dr. Masikip who had actually observed and examined appellant during his
confinement at the National Mental Hospital, the defense chose to present Dr. Nerit.

7. ID.; MITIGATING CIRCUMSTANCE; APPRECIATED WHERE ACCUSED IS FOUND SUFFERING FROM SCHIZOPHRENIA. — In
People v. Puno (supra), the Court ruled that schizophrenic reaction, although not exempting because it does not
completely deprive the offender of the consciousness of his acts, may be considered as a mitigating circumstance
under Article 13(9) of the Revised Penal Code, i.e., as an illness which diminishes the exercise of the offender’s will-power
without, however, depriving him of the consciousness of his acts. Appellant should have been credited with this
mitigating circumstance, although it would not have affected the penalty imposable upon him under Article 63 of the
Revised Penal Code: "in all cases in which the law prescribes a single indivisible penalty (reclusion perpetua in this case),
it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the
commission of the deed."

DECISION

FELICIANO, J.:

Policarpio Rafanan, Jr. appeals from a decision of the then Court of First Instance of Pangasinan convicting him of the
crime of rape and sentencing him to reclusion perpetua, to indemnify complainant Estelita Ronaya in the amount of
P10,000.00 by way of moral damages, and to pay the costs.

The facts were summarized by the trial court in the following manner:jgc:chanrobles.com.ph

"The prosecution’s evidence shows that on February 27, 1976, complainant Estelita Ronaya who was then only fourteen
years old was hired as a househelper by the mother of the accused, Ines Rafanan alias ‘Baket Ines’ with a salary of
P30.00 a month.

The accused Policarpio Rafanan and his family lived with his mother in the same house at Barangay San Nicolas, Villasis,
Pangasinan. Policarpio was then married and had two children.

On March 16, 1976, in the evening, after dinner, Estelita Ronaya was sent by the mother of the accused to help in their
store which was located in front of their house about six (6) meters away. Attending to the store at the time was the
accused. At 11:00 o’clock in the evening, the accused called the complainant to help him close the door of the store
and as the latter complied and went near him, he suddenly pulled the complainant inside the store and said, ‘Come, let
us have sexual intercourse,’ to which Estelita replied, ‘I do not like,’ and struggled to free herself and cried. The accused
held a bolo measuring 1-1/2 feet including the handle which he pointed to the throat of the complainant threatening
her with said bolo should she resist. Then, he forced her to lie down on a bamboo bed, removed her pants and after
unfastening the zipper of his own pants, went on top of the complainant and succeeded having carnal knowledge of
her inspite of her resistance and struggle. After the sexual intercourse, the accused cautioned the complainant not to
report the matter to her mother or to anybody in the house, otherwise he would kill her.cralawnad

Because of fear, the complainant did not immediately report the matter and did not leave the house of the accused
that same evening. In fact, she slept in the house of the accused that evening and the following morning she scrubbed
the floor and did her daily routine work in the house. She only left the house in the evening of March 17, 1976.

Somehow, in the evening of March 17, 1976, the family of the accused learned what happened the night before in the
store between Policarpio and Estelita and a quarrel ensued among them prompting Estelita Ronaya to go back to her
house. When Estelita’s mother confronted her and asked her why she went home that evening, the complainant could
not answer but cried and cried. It was only the following morning on March 18, 1976 that the complainant told her
mother that she was raped by the accused. Upon knowing what happened to her daughter, the mother Alejandra
Ronaya, immediately accompanied her to the house of Patrolman Bernardo Mairina of the Villasis Police Force who lives
in Barrio San Nicolas, Villasis, Pangasinan. Patrolman Mairina is a cousin of the father of the complainant. He advised
them to proceed to the municipal building while he went to fetch the accused. The accused was later brought to the
police headquarter with the bolo, Exhibit ‘E’, which the accused allegedly used in threatening the complainant. 1

At arraignment, appellant entered a plea of not guilty. The case then proceeded to trial and in due course of time, the
trial court, as already noted, convicted the Appellant.

The instant appeal is anchored on the following:jgc:chanrobles.com.ph

"Assignment of Errors

1. The lower court erred in basing its decision of conviction of appellant solely on the testimony of the complainant and
her mother.

2. The lower court erred in considering the hearsay evidence for the prosecution, ‘Exhibits B and C’.

3. The lower court erred in not believing the testimony of the expert witnesses, as to the mental condition of the accused-
appellant at the time of the alleged commission of the crime of rape.chanrobles law library

4. The lower court erred in convicting appellant who at the time of the alleged rape was suffering from insanity." 2

Appellant first assails the credibility of complainant as well as of her mother whose testimonies he contends are
contradictory. It is claimed by appellant that the testimony of complainant on direct examination that she immediately
went home after the rape incident, is at variance with her testimony on cross examination to the effect that she had
stayed in the house of appellant until the following day. Complainant, in saying that she left the house of appellant by
herself, is also alleged to have contradicted her mother who stated that she (the mother) went to the store in the
evening of 17 March 1979 and brought Estelita home.

The apparently inconsistent statements made by complainant were clarified by her on cross examination. In any case,
the inconsistencies related to minor and inconsequential details which do not touch upon the manner in which the
crime had been committed and therefore did not in any way impair the credibility of the complainant. 3

The commission of the crime was not seriously disputed by appellant. The testimony of complainant in this respect is clear
and convincing:jgc:chanrobles.com.ph

"Fiscal Guillermo:chanrob1es virtual 1aw library

Q Now, we go back to that time when according to you the accused pulled you from the door and brought you inside
the store after you helped him closed the store. Now, after the accused pulled you from the door and brought you inside
the store what happened then?

A ‘You come and we will have sexual intercourse,’ he said.

Q And what did you say?

A ‘I do not like,’ I said.

Q And what did you do, if any, when you said you do not like to have sexual intercourse with him?

A I struggled and cried.

Q What did the accused do after that?

A He got a knife and pointed it at my throat so I was frightened and he could do what he wanted to do. He was able to
do what he wanted to do.

Q This ‘kutsilyo’ you were referring to or knife, how big is that knife? Will you please demonstrate, if any?

A This length, sir. (Which parties agreed to be about one and one-half [1-1/2] feet long.).

x x x

Fiscal Guillermo:chanrob1es virtual 1aw library

Q Now, you said that the accused was able to have sexual intercourse with you after he placed the bolo or that knife
[at] your throat. Now, will you please tell the court what did the accused do immediately after placing that bolo at your
throat and before having sexual intercourse with you?

A He had sexual intercourse with me.

Q What was your wearing apparel that evening?

A I was wearing pants, sir.

Q Aside from the pants, do you have any underwear?

A Yes, sir, I have a panty.

Q Now, before the accused have sexual intercourse with you what, if any, did he do with respect to your pants and your
panty?

A He removed them, sir.cralawnad

Q Now, while he was removing your pants and your panty what, if any, did you do?

A I continued to struggle so that he could not remove my pants but he was stronger that’s why he succeeded.

Q Now, after he had removed your panty and your pants or pantsuit what else happened?

A He went on top of me, sir.

Q At the time what was the accused wearing by way of apparel?

A He was wearing pants.

Q When you said he went on top of you after he has removed your pantsuit and your panty, was he still wearing his
pants?

A He unbuttoned his pants and unfastened the zipper of his pants.

Q And after he unbuttoned and unfastened his pants what did you see which he opened?

A I saw his penis.

Q Now, you said that after the accused has unzipped his pants and brought out his penis which you saw, he went on top
of you. When he was already on top of you what did you do, if any?

A I struggled.

Q Now, you said that you struggled. What happened then when you struggled against the accused when he was on
top of you?

A Since he was stronger, he succeeded doing what he wanted to get.

x x x
COURT:chanrob1es virtual 1aw library

Alright, what do you mean by he was able to succeed in getting what he wanted to get?

Fiscal Guillermo:chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

Considering the condition of the witness, your honor, with tears, may we just be allowed to ask a leading question which
is a follow-up question?

Witness:chanrob1es virtual 1aw library

A He inserted his private part inside my vagina.

Fiscal Guillermo:chanrob1es virtual 1aw library

Q Now, when he inserted his private part inside your vagina what did you feel, if any?

A I felt something that came out from his inside.

Q Now, how long, if you remember, did the accused have his penis inside your vagina?

A Around five minutes maybe, sir.

Q After that what happened then?

A He removed it.

Q After the accused has removed his penis from your vagina what else happened?

A No more, sir, he sat down.

Q What, if any, did he tell you?

A There was, sir. He told me not to report the matter to my mother and to anybody in their house.

Q What else did he tell you?

A He told me that if I told anyone what happened, he will kill me.

Q After that where did you go?

A I went home already, sir." 4

The principal submission of appellant is that he was suffering from a metal aberration characterized as schizophrenia
when he inflicted his violent intentions upon Estelita. At the urging of his counsel, the trial court suspended the trial and
ordered appellant confined at the National Mental Hospital in Mandaluyong for observation and treatment. In the
meantime, the case was archived. Appellant was admitted into the hospital on 29 December 1976 and stayed there
until 26 June 1978.

During his confinement, the hospital prepared four (4) clinical reports on the mental and physical condition of the
appellant, all signed by Dr. Simplicio N. Masikip and Dr. Arturo E. Nerit, physician-in-charge and chief, Forensic Psychiatry
Service, respectively.

In the first report dated 27 January 1977, the following observations concerning appellant’s mental condition were set
forth:jgc:chanrobles.com.ph

"On admission he was sluggish in movements, indifferent to interview, would just look up whenever questioned but
refused to answer.

On subsequent examinations and observations he was carelessly attired, with dishevelled hair, would stare vacuously
through the window, or look at people around him. He was indifferent and when questioned, he would just smile
inappropriately. He refused to verbalize, even when persuaded, and was emotionally dull and mentally inaccessible. He
is generally seclusive, at times would pace the floor, seemingly in deep thought. Later on when questioned his frequent
answers are ‘Aywan ko, hindi ko alam.’ His affect is dull, he claimed to hear strange voices ‘parang ibon, tinig ng ibon,’
but cannot elaborate. He is disoriented to 3 spheres and has no idea why he was brought here." chanrobles virtual
lawlibrary
The report then concluded:jgc:chanrobles.com.ph

"In view of the foregoing examinations and observations, Policarpio Rafanan, Jr. y Gambawa is found suffering from a
mental disorder called schizophrenia, manifested by carelessness in grooming, sluggishness in movements, staring
vacuously, indifferen[ce], smiling inappropriately, refusal to verbalize, emotional dullness, mental inaccessibility,
seclusiveness, preoccupation, disorientation, and perceptual aberrations of hearing strange sounds. He is psychotic or
insane, hence cannot stand court trial. He needs further hospitalization and treatment." 5

The second report, dated 21 June 1977, contained the following description of appellant’s mental
condition:jgc:chanrobles.com.ph

"At present he is still seclusive, undertalkative and retarded in his responses. There is dullness of his affect and he
appeared preoccupied. He is observed to mumble alone by himself and would show periods of being irritable saying —
‘oki naman’ with nobody in particular. He claim he does not know whether or not he was placed in jail and does not
know if he has a case in court. Said he does not remember having committed any wrong act"

and the following conclusions:jgc:chanrobles.com.ph

"In view of the foregoing examinations and observations Policarpio Rafanan, Jr. y Gambawa is at present time still
psychotic or insane, manifested by periods of irritability cursing nobody in particular, seclusive, underactive,
undertalkative, retarded in his responses, dullness of his affect, mumbles alone by himself, preoccupied and lack of
insight.

He is not yet in a condition to stand court trial. He needs further hospitalization and treatment." 6

In the third report, dated 5 October 1977, appellant was described as having become "better behaved, responsive" and
"neat in person," and "adequate in his emotional tone, in touch with his surroundings and . . . free from hallucinatory
experiences." During the preceding period, appellant had been allowed to leave the hospital temporarily; he stayed
with a relative in Manila while coming periodically to the hospital for check-ups. During this period, he was said to have
been helpful in the doing of household chores, conversed and associated freely with other members of the household
and slept well, although, occasionally, appellant smiled while alone. Appellant complained that at times he heard
voices of small children, talking in a language he could not understand. The report concluded by saying that while
appellant had improved in his mental condition, he was not yet in a position to stand trial since he needed further
treatment, medication and check-ups. 7

In the last report dated 26 June 1978, appellant was described as behaved, helpful in household chores and no longer
talking while alone. He was said to be "fairly groomed" and "oriented" and as denying having hallucinations. The report
concluded that he was in a "much improved condition" and "in a mental condition to stand court trial." 8

Trial of the case thus resumed. The defense first presented Dr. Arturo Nerit who suggested that appellant was sick one or
two years before his admission into the hospital, in effect implying that appellant was already suffering from
schirophrenia when he raped complainant. 9 The defense next presented Dr. Raquel Jovellano, a psychiatrist engaged
in private practice, who testified that he had examined and treated the Appellant.

Appellant’s plea of insanity rests on Article 12 of the Revised Penal Code which provides:jgc:chanrobles.com.ph

"ARTICLE 12. Circumstances which exempt from criminal liability. — The following are exempt from criminal
liability:chanrobles virtual lawlibrary

1. An imbecile or an insane person, unless the latter has acted during a lucid interval.

Where the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court shall
order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be
permitted to leave without first obtaining the permission of the same court.

x x x"

Although the Court has ruled many times in the past on the insanity defense, it was only in People v. Formigones 10 that
the Court elaborated on the required standards of legal insanity, quoting extensively from the Commentaries of Judge
Guillermo Guevara on the Revised Penal Code, thus:jgc:chanrobles.com.ph

"The Supreme Court of Spain held that in order that this exempting circumstance may be taken into account, it is
necessary that there be a complete deprivation of intelligence in committing the act, that is, that the accused be
deprived of reason; that there be no responsibility for his own acts; that he acts without the least discernment; (Decision
of the Supreme Court of Spain of November 21, 1891; 47 Jur. Crim. 413.) that there be a complete absence of the power
to discern, (Decision of the Supreme Court of Spain of April 29, 1916; 96 Jur. Crim. 239) or that there be a total deprivation
of freedom of the will. (Decision of the Supreme Court of Spain of April 9, 1872; 6 Jur. Crim. 239) For this reason, it was held
that the imbecility or insanity at the time of the commission of the act should absolutely deprive a person of intelligence
or freedom of will, became mere abnormality of his mental faculties does rot exclude imputability. (Decision of the
Supreme Court of Spain of April 20, 1911; 86 Jur. Crim. 94, 97.)

The Supreme Court of Spain likewise held that deaf-muteness cannot be [equated with] imbecility or insanity.

The allegation of insanity or imbecility must be clearly proved. Without positive evidence that the defendant had
previously lost his reason or was demented, a few moments prior to or during the perpetration of the crime, it will be
presumed that he was in a normal condition. Acts penalized by law are always reputed to be voluntary, and it is
improper to conclude that a person acted unconsciously, in order to relieve him from liability, on the basis of his mental
condition, unless his insanity and absence of will are proved." (Emphasis supplied.)

The standards set out in Formigones were commonly adopted in subsequent cases. 11 A linguistic or grammatical
analysis of those standards suggests that Formigones established two (2) distinguishable tests (a) the test of cognition —
"complete deprivation of intelligence in committing the [criminal] act," and (b) the test of volition — "or that there be a
total deprivation of freedom of the will." But our caselaw shows common reliance on the test of cognition, rather than on
a test relating to "freedom of the will;" examination of our caselaw has failed to turn up any case where this Court has
exempted an accused on the sole ground that he was totally deprived of "freedom of the will," i.e., without an
accompanying "complete deprivation of intelligence." This is perhaps to be expected since a person’s volition naturally
reaches out only towards that which is presented as desirable by his intelligence, whether that intelligence be diseased
or healthy. In any case, where the accused failed to show complete impairment or loss of intelligence, the Court has
recognized at most a mitigating, not an exempting, circumstance in accord with Article 13(9) of the Revised Penal
Code: "Such illness of the offender as would diminish the exercise of the will-power of the offender without however
depriving him of the consciousness of his acts." 12

Schizophrenia pleaded by appellant has been described as a chronic mental disorder characterized by inability to
distinguish between fantasy and reality, and often accompanied by hallucinations and delusions. Formerly called
dementia praecox, it is said to be the most common form of psychosis and usually develops between the ages 15 and
30. 13 A standard textbook in psychiatry describes some of the symptoms of schizophrenia in the following
manner:jgc:chanrobles.com.ph

"Eugen Bleuler later described three general primary symptoms of schizophrenia: a disturbance of association, a
disturbance of affect, and a disturbance of activity. Bleuler also stressed the dereistic attitude of the schizophrenic —
that is, his detachment from reality and his consequent autism and the ambivalence that expresses itself in his uncertain
affectivity and initiative. Thus, Bleuler’s system of schizophrenia is often referred to as the four A’s: association, affect,
autism, and ambivalence.chanroblesvirtualawlibrary

x x x

Kurt Schneider described a number of first-rank symptoms of schizophrenia that he considered in no way specific for the
disease but of great pragmatic value in making a diagnosis. Schneider’s first-rank symptoms include the hearing of one’s
thoughts spoken aloud, auditory hallucinations that comment on the patient’s behavior, somatic hallucinations, the
experience of having one’s thought controlled, the spreading of one’s thoughts to others, delusions, and the experience
of having one’s actions controlled or influenced from the outside.

Schizophrenia, Schneider pointed out, also can be diagnosed exclusively on the basis of second-rank symptoms, along
with an otherwise typical clinical appearances. Second-rank symptoms include other forms of hallucination, perplexity,
depressive and euphoric disorders of affect, and emotional blunting.

Perceptual Disorders

Various perceptual disorders occur in schizophrenia . . .

Hallucinations. Sensory experiences or perceptions without corresponding external stimuli are common symptoms of
schizophrenia. Most common are auditory hallucinations, or the hearing of voices. Most characteristically, two or more
voices talk about the patient, discussing him in the third person. Frequently, the voices address the patient, comment on
what he is doing and what is going on around him, or are threatening or obscene and very disturbing to the patient.
Many schizophrenic patients experience the hearing of their own thoughts. When they are reading silently, for example,
they may be quite disturbed by hearing every word they are reading clearly spoken to them.

Visual hallucinations occur less frequently than auditory hallucinations in schizophrenic patients, but they are not rare.
Patients suffering from organic or affective psychoses experience visual hallucinations primarily at night or during limited
periods of the day, but schizophrenic patients hallucinate as much during the day as they do during the night,
sometimes almost continuously. They get relief only in sleep. When visual hallucinations occur in schizophrenia, they are
usually seen nearby, clearly defined, in color, life size, in three dimensions, and moving. Visual hallucinations almost never
occur by themselves but always in combination with hallucinations in one of the other sensory modalities.

x x x

Cognitive Disorders

Delusions. By definition, delusions are false ideas that cannot be corrected by reasoning, and that are idiosyncratic for
the patient — that is, not part of his cultural environment. They are among the common symptoms of schizophrenia.

Most frequent are delusions of persecution, which are the key symptom in the paranoid type of schizophrenia. The
conviction of being controlled by some unseen mysterious power that exercises its influence from a distance is almost
pathognomonic for schizophrenia. It occurs in most, if not all, schizophrenics at one time or another, and for many it is a
daily experience. The modern schizophrenic whose delusions have kept up with the scientific times may be preoccupied
with atomic power, X-rays, or spaceships that take control over his mind and body. Also typical for many schizophrenics
are delusional fantasies about the destruction of the world." 14

In previous cases where schizophrenia was interposed as an exempting circumstance, 15 it has mostly been rejected by
the Court. In each of these cases, the evidence presented tended to show that if there was impairment of the mental
faculties, such impairment was not so complete as to deprive the accused of intelligence or the consciousness of his
acts.

The facts of the instant case exhibit much the same situation. Dr. Jovellano declared as follows:red:chanrobles.com.ph

"(Fiscal Guillermo:)

Q Now, this condition of the accused schizophrenic as you found him, would you say doctor that he was completely
devoid of any consciousness of whatever he did in connection with the incident in this case?

A He is not completely devoid of consciousness.

Q Would you say doctor, therefore, that he was conscious of threatening the victim at the time of the commission of the
alleged rape?

A Yes, he was conscious.

Q And he was conscious of forcing the victim to lie down?

A Yes.

Q And he was also conscious of removing the panty of the victim at the time?

A Yes.

Q And he was also conscious and knows that the victim has a vagina upon which he will place his penis?

A Yeah.

Q And he was conscious enough to be competent and have an erection?

A Yes.

Q Would you say that those acts of a person no matter whether he is schizophrenic which you said, it deals (sic) some
kind of intelligence and consciousness of some acts that is committed?

A Yes, it involves the consciousness because the consciousness there in relation to the act is what we call primitive acts
of any individual. The difference only in the act of an insane and a normal individual, a normal individual will use the
power of reasoning and consciousness within the standard of society while an insane causes (sic) already devoid of the
fact that he could no longer withstand himself in the ordinary environment, yet his acts are within the bound of insanity or
psychosis.chanrobles virtual lawlibrary

Q Now, Doctor, of course this person suffering that ailment which you said the accused here is suffering is capable of
planning the commission of a rape?

A Yes, they are also capable.

Q He is capable of laying in wait in order to assault?

A Yes.

Q And would you say that condition that ability of a person to plan a rape and to perform all the acts preparatory to the
actual intercourse could be done by an insane person?

A Yes, it could be done.

Q Now, you are talking of insanity in its broadest sense, is it not?

A Yes, sir.

Q Now, is this insane person also capable of knowing what is right and what is wrong?

A Well, there is no weakness on that part of the individual. They may know what is wrong but yet there is no inhibition on
the individual.

Q Yes, but actually, they are mentally equipped with knowledge that an act they are going to commit is wrong?

A Yeah, they are equipped but the difference is, there is what we call they lost the inhibition. The reasoning is weak and
yet they understand but the volition is [not] there, the drive is [not] there. 16 (Emphasis supplied)

The above testimony, in substance, negates complete destruction of intelligence at the time of commission of the act
charged which, in the current stab of our caselaw, is critical if the defense of insanity is to be sustained. The fact that
appellant Rafanan threatened complainant Estelita with death should she reveal she had been sexually assaulted by
him, indicates, to the mind of the Court, that Rafanan was aware of the reprehensible moral quality of that assault. The
defense sought to suggest, through Dr. Jovellano’s last two (2) answers above, that a person suffering from schizophrenia
sustains not only impairment of the mental faculties but also deprivation of the power of self-control. We do not believe
that Dr. Jovellano’s testimony, by itself, sufficiently demonstrated the truth of that proposition. In any case, as already
pointed out, it is complete loss of intelligence which must be shown if the exempting circumstance of insanity is to be
found.

The law presumes every man to be sane. A person accused of a crime has the burden of proving his affirmative
allegation of insanity. 17 Here, appellant failed to present clear and convincing evidence regarding his state of mind
immediately before and during the sexual assault on Estelita. It has been held that inquiry into the mental state of the
accused should relate to the period immediately before or at the very moment the act is committed. 18 Appellant
rested his case on the testimonies of the two (2) physicians (Dr. Jovellano and Dr. Nerit) which, however, did not purport
to characterize his mental condition during that critical period of time. They did not specifically relate to circumstances
occurring on or immediately before the day of the rape. Their testimonies consisted of broad statements based on
general behavioral patterns of people afflicted with schizophrenia. Curiously, while it was Dr. Masikip who had actually
observed and examined appellant during his confinement at the National Mental Hospital, the defense chose to present
Dr. Nerit.

Accordingly, we must reject the insanity defense of appellant Rafanan.

In People v. Puno (supra), the Court ruled that schizophrenic reaction, although not exempting ‘because it does not
completely deprive the offender of the consciousness of his acts, may be considered as a mitigating circumstance
under Article 13(9) of the Revised Penal Code, i.e., as an illness which diminishes the exercise of the offender’s will-power
without, however, depriving him of the consciousness of his acts. Appellant should have been credited with this
mitigating circumstance, although it would not have affected the penalty imposable upon him under Article 63 of the
Revised Penal Code: "in all cases in which the law prescribes a single indivisible penalty (reclusion perpetua in this case),
it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the
commission of the deed."cralaw virtua1aw library

WHEREFORE, the Decision appealed from is hereby AFFIRMED, except that the amount of moral damages is increased to
P30,000.00. Costs against Appellant.

Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5877 September 28, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ARTURO MENDOZA, defendant-appellant.

Nestor A. Andrada for appellant.

Office of the Solicitor General Pompeyo Diaz and Solicitor Felicisimo R. Rosete for appellee.

PARAS, C.J.:

The defendant, Arturo Mendoza, has appealed from a judgment of the Court of First Instance of Laguna, finding him
guilty of the crime of bigamy and sentencing him to imprisonment for an indeterminate term of from 6 months and 1 day
to 6 years, with costs.

The following facts are undisputed: On August 5, 1936, the appellant and Jovita de Asis were married in Marikina, Rizal.
On May 14, 1941, during the subsistence of the first marriage, the appellant was married to Olga Lema in the City of
Manila. On February 2, 1943, Jovita de Asis died. On August 19, 1949, the appellant contracted another marriage with
Carmencita Panlilio in Calamba, Laguna. This last marriage gave rise to his prosecution for and conviction of the crime
of bigamy.

The appellant contends that his marriage with Olga Lema on May 14, 1941 is null and void and, therefore, non-existent,
having been contracted while his first marriage with Jovita de Asis August 5, 1936 was still in effect, and that his third
marriage to Carmencita Panlilio on August 19, 1949 cannot be the basis of a charge for bigamy because it took place
after the death of Jovita de Asis. The Solicitor General, however, argues that, even assuming that appellant's second
marriage to Olga Lema is void, he is not exempt from criminal liability, in the absence of a previous judicial annulment of
said bigamous marriage; and the case of People vs. Cotas, 40 Off. Gaz., 3134, is cited.

The decision invoked by the Solicitor General, rendered by the Court of Appeals, is not controlling. Said case is essentially
different, because the defendant therein, Jose Cotas, impeached the validity of his first marriage for lack of necessary
formalities, and the Court of Appeals found his factual contention to be without merit.

In the case at bar, it is admitted that appellant's second marriage with Olga Lema was contracted during the existence
of his first marriage with Jovita de Asis. Section 29 of the marriage law (act 3613), in force at the time the appellant
contracted his second marriage in 1941, provides as follows:1âwphïl.nêt

Illegal marriages. — 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:

(a) The first marriage was annulled or dissolved;

(b) 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 the absentee being generally
considered as dead and believed to be so by the spouse present at the time of contracting such
subsequent marriage, the marriage so contracted being valid in either case until declared null and
void by a competent court.

This statutory provision plainly makes a subsequent marriage contracted by any person during the lifetime of his first
spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity, as
distinguished from mere annulable marriages. There is here no pretence that appellant's second marriage with Olga
Lema was contracted in the belief that the first spouse, Jovita de Asis, has been absent for seven consecutive years or
generally considered as dead, so as to render said marriage valid until declared null and void by a competent
court.1âwphïl.nêt
Wherefore, the appealed judgment is reversed and the defendant-appellant acquitted, with costs de officio so ordered.

Pablo, Bengzon, Jugo, Bautista Angelo, Labrador, Concepcion, and Reyes, J.B.L., JJ., concur.

Separate Opinions

REYES, J., dissenting:

I dissent.

Article 349 of the Revised Penal Code punishes with prision mayor "any person who shall contract a second or
subsequent marriage before the former marriage has been legally dissolved".

Though the logical may say that where the former marriage was void there would be nothing to dissolve still it is not for
the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts. As Viada says "La
santidad e importancia del matrinonio no permite que los casados juzguen por si mismos de su nulidad; esta ha de
someterse precisamente al judicio del Tribunal competente, y cuando este declare la nulidad del matrimonio, y solo
entonces, se tendra por nulo; mientras no exista esta declaracion, la presuncion esta siempre a favor de la validez del
matrimonio, y de consiguente, el que contrae otro segundo antes de dicha declaracion de nulidad, no puede menos
de incurrir la pena de este articulo."(3 Viada, Codigo penal p. 275.)

"This is a sound opinion," says Mr. Justice Tuason in the case of People vs. Jose Cotas, (CA), 40 Off. Gaz., 3145, "and is in
line with the well-known rule established in cases of adultery, that "until by competent authority in a final judgment the
marriage contract is set aside, the offense to the vows taken and the attack on the family exist."

Padilla and Montemayor, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10016 February 28, 1957

THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,

vs.
PROCESO S. ARAGON, defendant-appellant.

Office of the Solicitor General Ambrosio Padilla and Solicitor Adolfo Brillantes for appellee.
Prospero V. Manuel, Fernando Moncada and Antonio Abad Tornis for defendant and appellant.

LABRADOR, J.:

Appeal from a judgment of the Court of First Instance of Cebu finding appellant guilty of bigamy. The facts are not
disputed and, as found by the trial court, are as follows:

On September 28, 1925, the accused, under the name of Proceso Rosima, contracted marriage with a certain
Maria Gorrea in the Philippine Independent Church in Cebu (Exhibits "1" and "1-A"). While his marriage with
Maria Gorrea was subsisting, the accused under the name of Proceso Aragon, contracted a canonical
marriage with Maria Faicol on August 27, 1934, in the Santa Teresita Church in Iloilo City.
 The sponsors of the accused and Maria Faicol were Eulogio Giroy, who was then an employee of the Office of
the Municipal Treasurer of Iloilo, and a certain Emilio Tomesa, a clerk in the said office (Exhibit "A" and
testimonies of Eulogio Giroy and complainant Maria Faicol). After the said marriage, the accused and Maria
Faicol established residence in Iloilo. As the accused was then a traveling salesman, he commuted between
Iloilo where he maintained Maria Faicol, and Cebu where he maintained his first wife, Maria Gorrea died in
Cebu City on August 5, 1939 (Exhibit "2"). After Maria Gorrea's death, and seeing that the coast was dear in
Cebu, the accused brought Maria Faicol to Cebu City in 1940, where she worked as a teacher-nurse.

It would seem that the accused and Maria Faicol did not live a happy marital life in Cebu, for it appears that in
1949 and 1950, Maria Faicol suffered injuries to her eyes because of physical maltreatment in the hands of the
accused. On January 22, 1953, the accused sent Maria Faicol to Iloilo, allegedly for the purpose of undergoing
treatment of her eyesight. During her absence, the accused contracted a third marriage with a certain Jesusa
C. Maglasang on October 3, 1953, in Sibonga, Cebu. (See Exhibits "C", "D", "E" and "F")

The accused admitted having contracted marriage with Jesusa C. Maglasangin Sibonga, Cebu, on October 3,
1953, Although the accused made an attempt to deny his previous marriage with Maria Faicol, the Court,
however, believes that the attempt is futile for the fact of the said second marriage was fully established not
only by the certificate of the said marriage, but also by the testimony of Maria Faicol and of Eulogio Giroy, one
of the sponsors of the wedding, and the identification of the accused made by Maria Faicol. (See Exhibits "A"
and "B"; t.s.n. pp. 32-33, 40, 41, hearing of April 27, 1954).

The Court of First Instance of Cebu held that even in the absence of an express provision in Act No. 3613 authorizing the
filing of an action for judicial declaration of nullity of a marriage void ab initio, defendant could not legally contract
marriage with Jesusa C. Maglasang without the dissolution of his marriage to Maria Faicol, either by the death of the
latter or by the judicial declaration of the nullity of such marriage, at the instance of the latter. Authorities given for this
ruling are 5 Viada, 5th edition, 651; 35 American Jurisprudence, Marriage, Sec. 46, p. 212; Bickford vs. Bickford, 74 N. H.
466, 69 A. 579.

Appellant in this Court relies on the case of People vs. Mendoza, (95 Phil., 845; 50 Off. Gaz., [10] 4767). In this case the
majority of this Court declared:

The statutory provision (section 29 of the Marriage Law or Act No. 3613) plainly makes a subsequent marriage
contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no
judicial decree is necessary to establish its invalidity, as distinguished from mere annullable marriages. There is
here no pretense that appellant's second marriage with Olga Lema was contracted in the belief that the first
spouse, Jovita de Asis, had been absent for seven consecutive years or generally considered as dead, so as to
render said marriage valid until declared null and void by a subsequent court.

We are of the very weighty reasons by Justice Alex Reyes in the dissent in the case above-quoted But this weighty
reasons notwithstanding, the very fundamental principle of strict construction of penal laws in favor of the accused,
which principle we may not ignore, seems to justify our stand in the above-cited case of People vs. Mendoza. Our
Revised Penal Code is of recent enactment and had the rule enunciated in Spain and in America requiring judicial
declaration of nullity of ab initio void marriages been within the contemplation of the legislature, an express provision to
that effect would or should have been inserted in the law. In its absence, we are bound by said rule of strict
interpretation already adverted to.

It is to be noted that the action was instituted upon complaint of the second wife, whose marriage with the appellant
was not renewed after the death of the first wife and before the third marriage was entered into. Hence, the last
marriage was a valid one and appellant's prosecution for contracting this marriage can not prosper.

For the foregoing considerations, the judgment appealed from is hereby reversed and the defendant-appellant
acquitted, with costs de oficio, without prejudice to his prosecution for having contracted the second bigamous
marriage. So ordered.

Paras, C. J., Bengzon, Bautista Angelo, Reyes, J. B. L., Endencia, and Felix, JJ., concur.

Separate Opinions
REYES, A.J., dissenting:

I dissent.

Dissenting in the case of People vs. Mendoza, replied on by the majority, I there said:

Article 349 of the Revised Penal Code punishes with prision mayor "any person who shall contract a second or
subsequent marriage before the former marriage has been legally dissolved."

Though the logician may say that there were the former marriage was void there would be nothing to dissolve,
still it is not for the spouses to judge whether that marriage was void or not. That judgment is reserved to the
courts. As Viada says, 'La satidad e importancia del matrimonio no permite que los casados juzguen por si
mosmos de su nulidad; esta ha de someterse [precisamente al juicio del Tribunalcompetente, y cuando este
declare la nulidad del matrimonio, y solo entonces, se tendra por nulo; mientras no exista esta declaracion, la
presuncion esta siempre a favor de la validez del matrimonio, yde consiguiente, el que contrae otro segundo
antes de dicha declaracio de nulidad, no puede menos de incurrir la pena de este articulo. (3 Viada, Codigo
Penal, p. 275.)

"This is a sound opinion," says Mr. Justice Tuason in the case of People vs. Jose Cotas, (CA), 40 Off. Gaz. 3145,
"and is in line with the well-known rule established in cases of adultery, that "until by competent authority in a
final judgment the marriage contract is set aside, the offense to the vows taken and the attack on the family
exists."

I may add that the construction placed by the majority upon the law penalizing bigamy would frustrate the legislative
intent rather than give effect thereto.

Padilla and Montemayor, JJ., concur.

FIRST DIVISION

[G.R. No. L-43905. May 30, 1983.]

SERAFIA G. TOLENTINO, Petitioner, v. HON. EDGARDO L. PARAS, MARIA CLEMENTE and THE LOCAL CIVIL
REGISTRAR OF PAOMBONG, BULACAN, Respondents.

Amelita G. Tolentino for Petitioner.

Hermin E. Arceo for Maria Clemente.

The Solicitor General for Respondents.

SYLLABUS

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; ACTION FOR JUDICIAL DECLARATION AS THE SURVIVING SPOUSE, A
PROPER REMEDY, THOUGH THE ULTIMATE OBJECT IS CORRECTION OF ENTRY CONTEMPLATED IN ARTICLE 412 OF
THE CIVIL CODE AND RULE 108 OF THE RULES OF COURT. — Although petitioner’s ultimate objective is the
correction of entry contemplated in Article 412 of the Civil Code and Rule 108 of the Rules of Court, she
initially seeks a judicial declaration that she is the lawful surviving spouse of the deceased, Amado, in order to
lay the basis for the correction of the entry in the death certificate of said deceased. The suit below is a
proper remedy. It is of an adversary character as contrasted to a mere summary proceeding. A claim of right
is asserted against one who has an interest in contesting it. Private respondent, as the individual most
affected, is a party defendant, and has appeared to contest the petition and defend her interests. The Local
Civil Registrar is also a party defendant.

2. ID.; ID.; REQUIRED PUBLICATION UNDER RULE 108, RULES OF COURT NOT ABSOLUTELY NECESSARY WHERE NO
OTHER PARTIES ARE INVOLVED. — The publication required by the Court below pursuant to Rule 108 of the
Rules of Court is not absolutely necessary for no other parties are involved. After all, publication is required to
bar indifferently all who might be minded to make an objection of any sort against the right sought to be
established. Besides, even assuming that this is a proceeding under Rule 108, it was the Court that was called
upon to order the publication, but it did not. In the ultimate analysis, Courts are not concerned so much with
the form of actions as with their substance.

3. ID.; EVIDENCE; PLEA OF GUILT IN BIGAMY; NO BETTER PROOF OF THE EXISTENCE OF MARRIAGE THAN THE
ADMISSION BY THE ACCUSED. — Considering that Amado, upon his own plea, was convicted for Bigamy, that
sentence furnishes the necessary proof of the marital status of petitioner and the deceased. There is no better
proof of marriage than the admission by the accused of the existence of such marriage. The second
marriage that he contracted with private respondent during the lifetime of his first spouse is null and void from
the beginning and of no force and effect. No judicial decree is necessary to establish the invalidity of a void
marriage. It can be safely concluded, then, without need of further proof nor remand to the Court below,
that private respondent is not the surviving spouse of the deceased Amado, but petitioner. Rectification of
the erroneous entry in the records of the Local Civil Registrar may, therefore, be validly made.

4. ID.; ID.; PRESUMPTION THAT ENTRIES IN PUBLIC DOCUMENTS SUCH AS DEATH AND BIRTH CERTIFICATES ARE
CORRECT, DISPUTABLE. — In fine, since there is no question regarding the invalidity of Amado’s second
marriage with private respondent and that the entry made in the corresponding local register is thereby
rendered false, it may be corrected. While documents, such as death and birth certificates, are public and
entries therein are presumed to be correct, such presumption is merely disputable and will have to yield to
more positive evidence establishing their inaccuracy.

DECISION

MELENCIO-HERRERA, J.:

The reversal of respondent Court’s Order, dismissing petitioner’s suit for her "declaration . . . as the lawful
surviving spouse of deceased Amado Tolentino and the correction of the death certificate of the same", is
sought in this Petition for Review on Certiorari.

The records disclose that Amado Tolentino had contracted a second marriage with private respondent
herein, Maria Clemente, at Paombong, Bulacan, on November 1, 1948 (Annex "C", Petition), while his
marriage with petitioner, Serafia G. Tolentino, celebrated on July 31, 1943, was still subsisting (Annex "A",
Petition).chanrobles law library

Petitioner charged Amado with Bigamy in Criminal Case No. 2768 of the Court of First Instance of Bulacan,
Branch II, which Court, upon Amado’s plea of guilty, sentenced him to suffer the corresponding penalty. After
Amado had served the prison sentence imposed on him, he continued to live with private respondent until his
death on July 25, 1974. His death certificate carried the entry "Name of Surviving Spouse — Maria Clemente.."

In Special Proceedings No. 1587-M for Correction of Entry, petitioner sought to correct the name of the
surviving spouse in the death certificate from "Maria Clemente" to "Serafia G. Tolentino", her name. The lower
Court dismissed the petition "for lack of the proper requisites under the law" and indicated the need for a
more detailed proceeding.

Conformably thereto, petitioner filed the case below against private respondent and the Local Civil Registrar
of Paombong, Bulacan, for her declaration as the lawful surviving spouse, and the correction of the death
certificate of Amado. In an Order, dated October 21, 1975, respondent Court, upon private respondent’s
instance, dismissed the case, stating:jgc:chanrobles.com.ph

"The Motion to Dismiss filed by the defendants in this case, thru counsel Atty. Hermin E. Arceo, for the reasons
therein mentioned, is hereby GRANTED. Further: (1) the correction of the entry in the Office of the Local Civil
Registrar is not the proper remedy because the issue involved is marital relationship; (2) the Court has not
acquired proper jurisdiction because as prescribed under Art. 108, read together with Art. 412 of the Civil
Code — publication is needed in a case like this, and up to now, there has been no such publication; and (3)
in a sense, the subject matter of this case has been aptly discussed in Special Proceeding No. 1587-M, which
this Court has already dismissed, also for lack of the proper requisites under the law.

"In view of the above dismissal, all other motions in this case are hereby considered MOOT and ACADEMIC.

"SO ORDERED." 1

Thus, petitioner’s present recourse mainly challenging the grounds relied upon by respondent Court in
ordering dismissal.

We rule for Petitioner.

First, for the remedy. Although petitioner’s ultimate objective is the collection of entry contemplated in Article
412 of the Civil Code and Rule 108 of the Rules of Court, she initially seeks a judicial declaration that she is the
lawful surviving spouse of the deceased, Amado, in order to lay the basis for the correction of the entry in the
death certificate of said deceased. The suit below is a proper remedy. It is of an adversary character as
contrasted to a mere summary proceeding. A claim of right is asserted against one who has an interest in
contesting it. Private respondent, as the individual most affected; is a party defendant, and has appeared to
contest the petition and defend her interests. The Local Civil Registrar is also a party defendant. The
publication required by the Court below pursuant to Rule 108 of the Rules of Court is not absolutely necessary
for no other parties are involved. After all, publication is required to bar indifferently all who might be minded
to make an objection of any sort against the right sought to be established. 2 Besides, even assuming that this
is a proceeding under Rule 108, it was the Court that was called upon to order the publication, 3 but it did
not. In the ultimate analysis, Courts are not concerned so much with the form of actions as with their
substance. 4

Second, for the merits. Considering that Amado, upon his own plea, was convicted for Bigamy, that sentence
furnishes the necessary proof of the marital status of petitioner and the deceased. There is no better proof of
marriage than the admission by the accused of the existence of such marriage. 5 The second marriage that
he contracted with private respondent during the lifetime of his first spouse is null and void from the beginning
and of no force and effect. 6 No judicial decree is necessary to establish the invalidity of a void marriage. 7 It
can be safely concluded, then, without need of further proof nor remand to the Court below, that private
respondent is not the surviving spouse of the deceased Amado, but petitioner. Rectification of the erroneous
entry in the records of the Local Civil Registrar may, therefore, be validly made.chanrobles.com : virtual law
library

Having arrived at the foregoing conclusion, the other issues raised need no longer be discussed.

In fine, since there is no question regarding the invalidity of Amado’s second marriage with private
respondent and that the entry made in the corresponding local register is thereby rendered false, it may be
corrected. 8 While documents, such as death and birth certificates, are public and entries therein are
presumed to be correct, such presumption is merely disputable and will have to yield to more positive
evidence establishing their inaccuracy. 9

WHEREFORE, the Order, dated October 21, 1975, of respondent Court is hereby set aside and petitioner,
Serafia G. Tolentino, hereby declared the surviving spouse of the deceased Amado Tolentino. Let the
corresponding correction be made in the latter’s death certificate in the records of the Local Civil Registrar of
Paombong, Bulacan.

No costs.

SO ORDERED.

Teehankee (Chairman), Plana, Vasquez and Gutierrez, Jr., JJ., concur.

Relova, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION
G.R. No. L-53703 August 19, 1986

LILIA OLIVA WIEGEL, petitioner,

vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile and Domestic Relations Court of Caloocan
City) and KARL HEINZ WIEGEL, respondents.

Dapucanta, Dulay & Associates for petitioner.

Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

PARAS, J.:

In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic Relations Court of Caloocan City,
herein respondent Karl Heinz Wiegel (plaintiff therein) asked for the declaration of Nullity of his marriage (celebrated on
July, 1978 at the Holy Catholic Apostolic Christian Church Branch in Makati, Metro Manila) with herein petitioner Lilia
Oliva Wiegel (Lilia, for short, and defendant therein) on the ground of Lilia's previous existing marriage to one Eduardo A.
Maxion, the ceremony having been performed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia,
while admitting the existence of said prior subsisting marriage claimed that said marriage was null and void, she and the
first husband Eduardo A. Maxion having been allegedly forced to enter said marital union. In the pre-trial that ensued,
the issue agreed upon by both parties was the status of the first marriage (assuming the presence of force exerted
against both parties): was said prior marriage void or was it merely voidable? Contesting the validity of the pre-trial
order, Lilia asked the respondent court for an opportunity to present evidence-

(1) that the first marriage was vitiated by force exercised upon both her and the first husband; and

(2) that the first husband was at the time of the marriage in 1972 already married to someone else.

Respondent judge ruled against the presentation of evidence because the existence of force exerted on both parties of
the first marriage had already been agreed upon. Hence, the present petition for certiorari assailing the following Orders
of therespondent Judge-

(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case for resolution based on
"agreed facts;" and

(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in her favor.

We find the petition devoid of merit.

There is no need for petitioner to prove that her first marriage was vitiated by force committed against both parties
because assuming this to be so, the marriage will not be void but merely viodable (Art. 85, Civil Code), and therefore
valid until annulled. Since no annulment has yet been made, it is clear that when she married respondent she was still
validly married to her first husband, consequently, her marriage to respondent is VOID (Art. 80, Civil Code).

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 1 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.

WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders complained of are hereby AFFIRMED.
Costs against petitioner.

SO ORDERED.

Feria (Chairman), Fernan Alampay and Gutierrez, Jr., JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-53642 April 15, 1988

LEONILO C. DONATO, petitioners,

vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF MANIIA, BRANCH XXXII HON. JOSE
FLAMINIANO, CITY FISCAL OF MANILA; PAZ B. ABAYAN, respondents.

Leopoldo P. Dela Rosa for petitioner.

Emiterio C. Manibog for private respondent.

City Fiscal of Manila for public respondent.

GANCAYCO, J.:

In this petition for certiorari and prohibition with preliminary injunction, the question for the resolution of the Court is
whether or not a criminal case for bigamy pending before the Court of First Itance of Manila should be suspended in
view of a civil case for annulment of marriage pending before the Juvenile and Domestic Relations Court on the ground
that the latter constitutes a prejudicial question. The respondent judge ruled in the negative. We sustain him.

The pertinent facts as set forth in the records follow. On January 23, 1979, the City Fiscal of Manila acting thru Assistant
City Fiscal Amado N. Cantor filed an information for bigamy against herein petitioner, Leonilo C. Donato with the Court
of First Instance of Manila, docketed as Criminal Case No. 43554 and assigned to Branch XXXII of said court. The
information was filed based on the complaint of private respondent Paz B. Abayan.

On September 28, 1979, before the petitioner's arraignment, private respondent filed with the Juvenile and Domestic
Relations Court of Manila a civil action for declaration of nullity of her marriage with petitioner contracted on September
26, 1978, which action was docketed as Civil Case No. E-02627. Said civil case was based on the ground that private
respondent consented to entering into the marriage, which was petitioner Donato's second one, since she had no
previous knowledge that petitioner was already married to a certain Rosalinda R. Maluping on June 30, 1978. Petitioner
Donato's answer in the civil case for nullity interposed the defense that his second marriage was void since it was
solemnized without a marriage license and that force, violence, intimidation and undue influence were employed by
private respondent to obtain petitioner's consent to the marriage. Prior to the solemnization of the subsequent or second
marriage, petitioner and private respondent had lived together and deported themselves as husband and wife without
the benefit of wedlock for a period of at least five years as evidenced by a joint affidavit executed by them on
September 26, 1978, for which reason, the requisite marriage license was dispensed with pursuant to Article 76 of the
New Civil Code pertaining to marriages of exceptional character.

Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed a motion to suspend the
proceedings of said case contending that Civil Case No. E-02627 seeking the annulment of his second marriage filed by
private respondent raises a prejudicial question which must first be determined or decided before the criminal case can
proceed.

In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the proceedings in Criminal Case
No. 43554 for bigamy. Respondent judge's basis for denial is the ruling laid down in the case of Landicho vs. Relova. 1 The
order further directed that the proceedings in the criminal case can proceed as scheduled.
A motion for reconsideration was flied by herein petitioner thru counsel citing as one of his grounds for suspension of
proceedings the ruling laid down by this Court in the case of De la Cruz vs. Ejercito 2 which was a much later case than
that cited by respondent judge in his order of denial.

The motion for reconsideration of the said order was likewise denied in an order dated April 14, 1980, for lack of merit.
Hence, the present petition for certiorari and prohibition with preliminary injunction.

A prejudicial question has been defined to be one which arises in a case, the resolution of which question is a logical
antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal.3 It is one based
on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the
issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. 4A
prejudicial question usually comes into play in a situation where a civil action and a criminal action may proceed,
because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or
innocence of the accused in a criminal case.5

The requisites of a prejudicial question do not obtain in the case at bar. It must be noted that the issue before the
Juvenile and Domestic Relations Court touching upon the nullity of the second marriage is not determinative of
petitioner Donato's guilt or innocence in the crime of bigamy. Furthermore, it was petitioner's second wife, the herein
private respondent Paz B. Abayan who filed the complaint for annulment of the second marriage on the ground that her
consent was obtained through deceit.

Petitioner Donato raised the argument that the second marriage should have been declared null and void on the
ground of force, threats and intimidation allegedly employed against him by private respondent only sometime later
when he was required to answer the civil action for anulment of the second marriage. The doctrine elucidated upon by
the case of Landicho vs. Relova 6 may be applied to the present case. Said case states that:

The mere fact that there are actions to annul the marriages entered into by the accused in a bigamy
case does not mean that "prejudicial questions" are automatically raised in civil actions as to warrant
the suspension of the case. In order that the case of annulment of marriage be considered a
prejudicial question to the bigamy case against the accused, it must be shown that the petitioner's
consent to such marriage must be the one that was obtained by means of duress, force and
intimidation to show that his act in the second marriage must be involuntary and cannot be the basis
of his conviction for the crime of bigamy. The situation in the present case is markedly different. At the
time the petitioner was indicted for bigamy on February 27, 1963, the fact that two marriage
ceremonies had been contracted appeared to be indisputable. And it was the second spouse, not
the petitioner who filed the action for nullity on the ground of force, threats and intimidation. And it
was only on June 15, 1963, that petitioner, as defendant in the civil action, filed a third-party
complaint against the first spouse alleging that his marriage with her should be declared null and void
on the ground of force, threats and intimidation. Assuming that the first marriage was null and void on
the ground alleged by petitioner, the fact would not be material to the outcome of the case. Parties
to the marriage should not be permitted to judge for themselves its nullity, for the same must be
submitted to the judgment of the competent courts and only when the nullity of the marriage is so
declared can it be held as void, and so long as there is no such declaration the presumption is that
the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of
nullity of the first marriage assumes the risk of being prosecuted for bigamy. The lower court therefore,
has not abused much less gravely abused, its discretion in failing to suspend the hearing as sought by
petitioner.

In the case at bar, petitioner has not even sufficiently shown that his consent to the second marriage has been obtained
by the use of threats, force and intimidation.

Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is a later case and as such it
should be the one applied to the case at bar. We cannot agree. The situation in the case at bar is markedly different. In
the aforecited case it was accused Milagros dela Cruz who was charged with bigamy for having contracted a second
marriage while a previous one existed. Likewise, Milagros dela Cruz was also the one who filed an action for annulment
on the ground of duress, as contra-distinguished from the present case wherein it was private respondent Paz B. Abayan,
petitioner's second wife, who filed a complaint for annulment of the second marriage on the ground that her consent
was obtained through deceit since she was not aware that petitioner's marriage was still subsisting. Moreover, in De la
Cruz, a judgment was already rendered in the civil case that the second marriage of De la Cruz was null and void, thus
determinative of the guilt or innocence of the accused in the criminal case. In the present case, there is as yet no such
judgment in the civil case.
Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot apply the rule on prejudicial
questions since a case for annulment of marriage can be considered as a prejudicial question to the bigamy case
against the accused only if it is proved that the petitioner's consent to such marriage was obtained by means of duress,
violence and intimidation in order to establish that his act in the subsequent marriage was an involuntary one and as
such the same cannot be the basis for conviction. The preceding elements do not exist in the case at bar.

Obviously, petitioner merely raised the issue of prejudicial question to evade the prosecution of the criminal case. The
records reveal that prior to petitioner's second marriage on September 26, 1978, he had been living with private
respondent Paz B. Abayan as husband and wife for more than five years without the benefit of marriage. Thus,
petitioner's averments that his consent was obtained by private respondent through force, violence, intimidation and
undue influence in entering a subsequent marriage is belled by the fact that both petitioner and private respondent
executed an affidavit which stated that they had lived together as husband and wife without benefit of marriage for
five years, one month and one day until their marital union was formally ratified by the second marriage and that it was
private respondent who eventually filed the civil action for nullity.

Another event which militates against petitioner's contentions is the fact hat it was only when Civil Case No. E-02627 was
filed on September 28, 1979, or more than the lapse of one year from the solemnization of the second marriage that
petitioner came up with the story that his consent to the marriage was secured through the use of force, violence,
intimidation and undue influence. Petitioner also continued to live with private respondent until November 1978, when
the latter left their abode upon learning that Leonilo Donato was already previously married.

In the light of the preceding factual circumstances, it can be seen that the respondent Judge did not err in his earlier
order. There is no pivotal issue that must be pre-emptively resolved in Civil Case No. E-02627 before proceedings in the
criminal action for bigamy can be undertaken.

Accordingly, there being no prejudicial question shown to exit the order of denial issued by the respondent judge dated
April 14, 1980 should be sustained.

WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of merit. We make no
pronouncement as to costs.

SO ORDERED.

Teehankee, C.J., Narvasa, Cruz and Griño-Aquino, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 2349 July 3, 1992

DOROTHY B. TERRE, complainant,

vs.
ATTY. JORDAN TERRE, respondent.

PER CURIAM:

In a sworn complaint filed with this Court on 24 December 1981, complainant Dorothy B. Terre charged respondent
Jordan Terre, a member of the Philippine Bar with "grossly immoral conduct," consisting of contracting a second
marriage and living with another woman other than complainant, while his prior marriage with complainant remained
subsisting.
The Court resolved to require respondent to answer the complaint. 1 Respondent successfully evaded five (5) attempts
to serve a copy of the Court's Resolution and of the complaint by moving from one place to another, such that he could
not be found nor reached in his alleged place of employment or residence. 2 On 24 April 1985, that is after three (3)
years and a half, with still no answer from the respondent, the Court noted respondent's success in evading service of the
complaint and the Court's Resolution and thereupon resolved to "suspend respondent Atty. Jordan Terre from the
practice of law until after he appears and/or files his answer to the complaint against him" in the instant
case. 3

On 28 September 1985, respondent finally filed an Answer with a Motion to Set Aside and/or Lift Suspension Order. In his
Answer, Atty. Terre averred that he had contracted marriage with complainant Dorothy Terre on 14 June 1977 upon her
representation that she was single; that he subsequently learned that Dorothy was married to a certain Merlito A.
Bercenilla sometime in 1968; that when he confronted Dorothy about her prior marriage, Dorothy drove him out of their
conjugal residence; that Dorothy had mockingly told him of her private meetings with Merlito A. Bercenilla and that the
child she was then carrying (i.e., Jason Terre) was the son of Bercenilla; that believing in good faith that his marriage to
complainant was null and void ab initio, he contracted marriage with Helina Malicdem at Dasol, Pangasinan. 4

In her Reply, complainant Dorothy denied that Jason Terre was the child of Merlito A. Bercenilla and insisted that Jason
was the child of respondent Jordan Terre, as evidenced by Jason's Birth Certificate and physical resemblance to
respondent. Dorothy further explained that while she had given birth to Jason Terre at the PAFGH registered as a
dependent of Merlito Bercenilla, she had done so out of extreme necessity and to avoid risk of death or injury to the
fetus which happened to be in a difficult breech position. According to Dorothy, she had then already been
abandoned by respondent Jordan Terre, leaving her penniless and without means to pay for the medical and hospital
bills arising by reason of her pregnancy.

The Court denied respondent's Motion to Set Aside or Lift the Suspension Order and instead referred; by a Resolution
dated 6 January 1986, the complaint to the Office of the Solicitor General for investigation, report and
recommendation. 5

Then Solicitor Pio C. Guerrero was appointed investigator by the Office of the Solicitor General. He set the case for
hearing on 7 July 1986 with notice to both parties. On 7 July 1986, complainant Dorothy appeared and presented her
evidence ex parte, since respondent did not so appear. 6 The Investigating Solicitor scheduled and held another
hearing on 19 August 1986, where he put clarificatory questions to the complainant; respondent once again did not
appear despite notice to do so. Complainant finally offered her evidence and rested her case. The Solicitor set still
another hearing for 2 October 1986, notifying respondent to present his evidence with a warning that should he fail once
more to appear, the case would be deemed submitted for resolution. Respondent did not appear on 2 October 1986.
The Investigating Solicitor accordingly considered respondent to have waived his right to present evidence and
declared the case submitted for resolution. The parties were given time to submit their respective memoranda.
Complainant Dorothy did so on 8 December 1986. Respondent Terre did not file his memorandum.

On 26 February 1990, the Office of the Solicitor General submitted its "Report and Recommendation" to this Court. The
Report summarized the testimony of the complainant in the following manner:

Complainant Dorothy Terre took the witness stand and testified substantially as follows: she and
respondent met for the first time in 1979 as fourth year high school classmates in Cadiz City High
School (tsn, July 7, 1986, p. 9); she was then married to Merlito Bercenilla, while respondent was single
(id.); respondent was aware of her marital status (ibid, p. 14); it was then that respondent started
courting her but nothing happened of the courtship (ibid, p. 10); they [complainant and respondent]
moved to Manila were they respectively pursued their education, respondent as a law student at the
Lyceum University (tsn, July 7, 1986, p. 12, 15-16); respondent continued courting her, this time with
more persistence (ibid, p. 11); she decided nothing would come of it since she was married but he
[respondent] explained to her that their marriage was void ab initio since she and her first husband
were first cousins (ibid, p. 12); convinced by his explanation and having secured favorable advice
from her mother and
ex-in-laws, she agreed to marry him [respondent] (ibid, 12-13, 16); in their marriage license, despite her
[complainant's] objection, he [respondent] wrote "single" as her status explaining that since her
marriage was void ab initio, there was no need to go to court to declare it as such (ibid, 14-15); they
were married before Judge Priscilla Mijares of the City Court of Manila on June 14, 1977 (Exhibit A; tsn,
July 7, 1986, pp. 16-17); Jason Terre was born of their union on June 25, 1981 (Exhibit B, tsn, July 7, 1986,
p. 18); all through their married state up to the time he [respondent] disappeared in 1981,
complainant supported respondent, in addition to the allowance the latter was getting from his
parents (ibid, pp. 19-20); she was unaware of the reason for his disappearance until she found out
later that respondent married a certain Vilma [sic] Malicdem (Exhibit C, tsn, July 7, 1986, pp. 21-22);
she then filed a case for abandonment of minor with the City Fiscal of Pasay City (ibid, p. 23) which
 was subsequently filed before Branch II of the City Court of Pasay City as Criminal Case No. 816159
(Exhibit D; tsn, July 7, 1986, p. 24); she likewise filed a case for bigamy against respondent and Helina
Malicdem with the office of the Provincial Fiscal of Pangasinan, where a prima facie case was found
to exist (Exhibit E; tsn, July 7, pp. 25-26); additionally, complainant filed an administrative case against
respondent with the Commission on Audit where he was employed, which case however was
considered closed for being moot and academic when respondent was considered automatically
separated from the service for having gone on absence without official leave (Exhibit F; tsn, July 7,
1986, pp. 28-29). 7

There is no dispute over the fact that complainant Dorothy Terre and respondent Jordan Terre contracted marriage on
14 July 1977 before Judge Priscilla Mijares. There is further no dispute over the fact that on 3 May 1981, respondent
Jordan Terre married Helina Malicdem in Dasol, Pangasinan. When the second marriage was entered into, respondent's
prior marriage with complainant was subsisting, no judicial action having been initiated or any judicial declaration
obtained as to the nullity of such prior marriage of respondent with complainant.

Respondent Jordan Terre sought to defend himself by claiming that he had believed in good faith that his prior marriage
with complainant Dorothy Terre was null and void ab initio and that no action for a judicial declaration of nullity was
necessary.

The Court considers this claim on the part of respondent Jordan Terre as a spurious defense. In the first place, respondent
has not rebutted complainant's evidence as to the basic facts which underscores the bad faith of respondent Terre. In
the second place, that pretended defense is the same argument by which he had inveigled complainant into believing
that her prior marriage to Merlito A. Bercenilla being incestuous and void ab initio (Dorothy and Merlito being allegedly
first cousins to each other), she was free to contract a second marriage with the respondent. Respondent Jordan Terre,
being a lawyer, knew or should have known that such an argument ran counter to the prevailing case law of this Court
which holds 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. 8 Even if we were to assume, arguendo merely,
that Jordan Terre held that mistaken belief in good faith, the same result will follow. For if we are to hold Jordan Terre to
his own argument, his first marriage to complainant Dorothy Terre must be deemed valid, with the result that his second
marriage to Helina Malicdem must be regarded as bigamous and criminal in character.

That the moral character of respondent Jordan Terre was deeply flawed is shown by other circumstances. As noted, he
convinced the complainant that her prior marriage to Bercenilla was null and void ab initio, that she was still legally
single and free to marry him. When complainant and respondent had contracted their marriage, respondent went
through law school while being supported by complainant, with some assistance from respondent's parents. After
respondent had finished his law course and gotten complainant pregnant, respondent abandoned the complainant
without support and without the wherewithal for delivering his own child safely in a hospital.

Thus, we agree with the Solicitor General that respondent Jordan Terre, by his actions, "eloquently displayed, not only his
unfitness to remain as a member of the Bar, but likewise his inadequacy to uphold the purpose and responsibility of his
gender" because marriage is a basic social institution. 9

In Pomperada v. Jochico, 10 the Court, in rejecting a petition to be allowed to take the oath as a member of the Bar
and to sign the Roll of Attorneys, said through Mme. Justice Melencio-Herrera:

It is evident that respondent fails to meet the standard of moral fitness for membership in the legal
profession. Whether the marriage was a joke as respondent claims, or a trick played on her as
claimed by complainant, it does not speak well of respondent's moral values. Respondent had made
a mockery of marriage, a basic social institution which public policy cherishes and protects (Article
216, Civil Code). 11

In Bolivar v. Simbol, 12 the Court found the respondent there guilty of "grossly immoral conduct" because he made a
dupe of complainant, living on her bounty and allowing her to spend for his schooling and other personal necessities
while dangling before her the mirage of a marriage, marrying another girl as soon as he had finished his studies, keeping
his marriage a secret while continuing to demand money from complainant. . . . ." The Court held such acts "indicative of
a character not worthy of a member of the Bar." 13

We believe and so hold that the conduct of respondent Jordan Terre in inveigling complainant Dorothy Terre to contract
a second marriage with him; in abandoning complainant Dorothy Terre after she had cared for him and supported him
through law school, leaving her without means for the safe delivery of his own child; in contracting a second marriage
with Helina Malicdem while his first marriage with complainant Dorothy Terre was subsisting, constituted "grossly immoral
conduct" under Section 27 of Rule 138 of the Rules of Court, affording more than sufficient basis for disbarment of
respondent Jordan Terre. He was unworthy of admission to the Bar in the first place. The Court will correct this error
forthwith.

WHEREFORE, the Court Resolved to DISBAR respondent Jordan Terre and to STRIKE OUT his name from the Roll of
Attorneys. A copy of this decision shall be spread on the personal record of respondent Jordan Terre in the Bar
Confidant's Office. A copy of this resolution shall also be furnished to the Integrated Bar of the Philippines and shall be
circularized to all the courts of the land.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr.,
Romero, Nocon and Bellosillo, JJ., concur.

Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES, G. R. No. 187512

Petitioner,
Present:

CARPIO, J., Chairperson,

- versus - BRION,
PEREZ,
SERENO, and
REYES, JJ.

YOLANDA CADACIO GRANADA,

Respondent. Promulgated:

June 13, 2012

x--------------------------------------------------x

DECISION

SERENO, J.:

This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January 2009[1] and 3 April 2009[2] issued by the

Court of Appeals (CA), which affirmed the grant by the Regional Trial Court (RTC) of the Petition for Declaration of

Presumptive Death of the absent spouse of respondent.

 In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada (Cyrus) at Sumida Electric

Philippines, an electronics

company in Paranaque where both were then working. The two eventually got married at the Manila City Hall on 3 March

1993. Their marriage resulted in the birth of their son, Cyborg Dean Cadacio Granada.

Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus went to Taiwan to seek employment.

Yolanda claimed that from that time, she had not received any communication from her husband, notwithstanding efforts

to locate him. Her brother testified that he had asked the relatives of Cyrus regarding the latters whereabouts, to no avail.

After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared presumptively dead. The Petition

was raffled to Presiding Judge Avelino Demetria of RTC Branch 85, Lipa City, and was docketed as Sp. Proc. No. 2002-

0530.

On 7 February 2005, the RTC rendered a Decision declaring Cyrus as presumptively dead.

On 10 March 2005, petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG),

filed a Motion for Reconsideration of this Decision. Petitioner argued that Yolanda had failed to exert earnest efforts to

locate Cyrus and thus failed to prove her well-founded belief that he was already dead. However, in an Order dated 29

June 2007, the RTC denied the motion.

Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably under Rule 41, Section 2(a) of the

Rules of Court. Yolanda filed a Motion to Dismiss on the ground that the CA had no jurisdiction over the appeal. She argued

that her Petition for Declaration of Presumptive Death, based on Article 41 of the Family Code, was a summary judicial

proceeding,

in which the judgment is immediately final and executory and, thus, not appealable.

In its 23 January 2009 Resolution, the appellate court granted Yolandas Motion to Dismiss on the ground of lack

of jurisdiction. Citing Republic v. Bermudez-Lorino,[3] the CA ruled that a petition for declaration of presumptive death

under Rule 41 of the Family Code is a summary proceeding. Thus, judgment thereon is immediately final and executory

upon notice to the parties.

Petitioner moved for reconsideration, but its motion was likewise denied by the CA in a Resolution dated 3 April

2009.[4]

Hence, the present Rule 45 Petition.

 Issues

1. Whether the CA seriously erred in dismissing the Petition on the ground that the

Decision of the RTC in a summary proceeding for the declaration of presumptive death is immediately

final and executory upon notice to the parties and, hence, is not subject to ordinary appeal

2. Whether the CA seriously erred in affirming the RTCs grant of the Petition for

Declaration of Presumptive Death under Article 41 of the Family Code based on the evidence that

respondent presented

Our Ruling

1. On whether the CA seriously erred in dismissing the Petition on

the ground that the Decision of the RTC in a summary proceeding for the
declaration of presumptive death is immediately final and executory upon
notice to the parties and, hence, is not subject to ordinary appeal

In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the RTCs grant of the

Petition for Declaration of Presumptive Death of the absent spouse under Article 41 of the Family Code. Citing Republic v.

Bermudez-Lorino,[5] the appellate court noted that a petition for declaration of presumptive death for the purpose of

remarriage is a summary judicial proceeding under the Family Code. Hence, the RTC Decision therein is immediately final

and executory upon notice to the parties, by express provision of Article 247 of the same Code. The decision is therefore

not subject to ordinary appeal, and the attempt to question it through a Notice of Appeal is unavailing.

We affirm the CA ruling.

Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be
null and void, unless before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years
shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the
spouse present must institute a summary proceeding as provided in this Code for the declaration of
 presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse. (Underscoring supplied.)

Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose of contracting a

subsequent marriage under Article 41 of the Family Code is a summary proceeding as provided for under the Family Code.

Further, Title XI of the Family Code is entitled Summary Judicial Proceedings in the Family Law. Subsumed

thereunder are Articles 238 and 247, which provide:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.

xxx xxx xxx

Art. 247. The judgment of the court shall be immediately final and executory.

Further, Article 253 of the Family Code reads:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed
under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.

Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a petition for declaration of

presumptive death is a summary proceeding, the judgment of the court therein shall be immediately final and executory.

In Republic v. Bermudez-Lorino,[6] the Republic likewise appealed the CAs affirmation of the RTCs grant of

respondents Petition for Declaration of Presumptive Death of her absent spouse. The Court therein held that it was an error

for the Republic to file a Notice of Appeal when the latter elevated the matter to the CA, to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary period
within which to perfect an appeal, precisely because judgments rendered thereunder, by express
provision of Section 247, Family Code, supra, are immediately final and executory.

xxx xxx xxx

But, if only to set the records straight and for the future guidance of the bench and the bar,
let it be stated that the RTCs decision dated November 7, 2001, was immediately final and executory
upon notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to
give due course thereto. The Court of Appeals acquired no jurisdiction over the case, and should have
dismissed the appeal outright on that ground.
 Justice (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the Court in Republic

v. Bermudez-Lorino, additionally opined that what the OSG should have filed was a petition for certiorari under Rule 65,

not a petition for review under Rule 45.

In the present case, the Republic argues that Bermudez-Lorino has been superseded by the subsequent Decision

of the Court in Republic v. Jomoc,[7] issued a few months later.

In Jomoc, the RTC granted respondents Petition for Declaration of Presumptive Death of her absent husband for

the purpose of remarriage. Petitioner Republic appealed the RTC Decision by filing a Notice of Appeal. The trial court

disapproved the Notice of Appeal on the ground that, under

the Rules of Court,[8] a record on appeal is required to be filed when appealing special proceedings cases. The CA

affirmed the RTC ruling. In reversing the CA, this Court clarified that while an action for declaration of death or absence

under Rule 72, Section 1(m), expressly falls under the category of special proceedings, a petition for declaration of

presumptive death under Article 41 of the Family Code is a summary proceeding, as provided for by Article 238 of the

same Code. Since its purpose was to enable her to contract a subsequent valid marriage, petitioners action was a

summary proceeding based on Article 41 of the Family Code, rather than a special proceeding under Rule 72 of the Rules

of Court. Considering that this action was not a special proceeding, petitioner was not required to file a record on appeal

when it appealed the RTC Decision to the CA.

We do not agree with the Republics argument that Republic v. Jomoc superseded our ruling in Republic v.

Bermudez-Lorino. As observed by the CA, the Supreme Court in Jomoc did not expound on the characteristics of a

summary proceeding under the Family Code. In contrast, the Court in Bermudez-Lorinoexpressly stated that its ruling on

the impropriety of an ordinary appeal as a vehicle for questioning the trial courts Decision in a summary proceeding for

declaration of presumptive death under Article 41 of the Family Code was intended to set the records straight and for the

future guidance of the bench and the bar.

At any rate, four years after Jomoc, this Court settled the rule regarding appeal of judgments rendered in

summary proceedings under the Family Code when it ruled in Republic v. Tango:[9]

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and accordingly, refine our previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY
LAW, establishes the rules that govern summary court proceedings in the Family Code:

ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Code requiring summary court proceedings.
Such cases shall be decided in an expeditious manner without regard to technical
rules.

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two
and three of the same title. It states:
 ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern
summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as
they are applicable. (Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and executory.

By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial
court's judgment in a summary proceeding for the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party
may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts.
To be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent with the RTCs
and the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted
freedom of choice of court forum. From the decision of the Court of Appeals, the losing party may then
file a petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is
because the errors which the court may commit in the exercise of jurisdiction are merely errors of
judgment which are the proper subject of an appeal.

In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the declaration of

presumptive death may file a petition for certiorari with the CA on the ground that, in rendering judgment thereon, the

trial court committed grave abuse of discretion amounting to lack of jurisdiction. From the decision of the CA, the

aggrieved party may elevate the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of

Court.

Evidently then, the CA did not commit any error in dismissing the Republics Notice of Appeal on the ground that

the RTC judgment on the Petition for Declaration of Presumptive Death of respondents spouse was immediately final and

executory and, hence, not subject to ordinary appeal.

2. On whether the CA seriously erred in affirming the RTCs grant of

the Petition for Declaration of Presumptive Death under Article 41 of the
Family Code based on the evidence that respondent had presented

Petitioner also assails the RTCs grant of the Petition for Declaration of Presumptive Death of the absent spouse of

respondent on the ground that she had not adduced the evidence required to establish a well-founded belief that her

absent spouse was already dead, as expressly required by Article 41 of the Family Code. Petitioner cites Republic v.

Nolasco,[10] United States v. Biasbas[11] and Republic v. Court of Appeals and Alegro[12] as authorities on the subject.

In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of the RTCs grant of respondents Petition

for Declaration of Presumptive Death of his absent spouse, a British subject who left their home in the Philippines soon after

giving birth to their son while respondent was on board a vessel working as a seafarer. Petitioner Republic sought the
reversal of the ruling on the ground that respondent was not able to establish

his well-founded belief that the absentee is already dead, as required by Article 41 of the Family Code. In ruling thereon,

this Court recognized that this provision imposes more stringent requirements than does Article 83 of the Civil Code.[13] The

Civil Code provision merely requires either that there be no news that the absentee is still alive; or that the absentee is

generally considered to be dead and is believed to be so by the spouse present, or is presumed dead under Articles 390

and 391 of the Civil Code. In comparison, the Family Code provision prescribes a well-founded belief that the absentee is

already dead before a petition for declaration of presumptive death can be granted. As noted by the Court in that case,

the four requisites for the declaration of presumptive death under the Family Code are as follows:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under the circumstances laid down in
Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive death of the
absentee.

In evaluating whether the present spouse has been able to prove the existence of a well-founded belief that the

absent spouse is already dead, the Court in Nolasco cited United States v. Biasbas,[14] which it found to be instructive as to

the diligence required in searching for a missing spouse.

In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in ascertaining the

whereabouts of his first wife, considering his admission that that he only had a suspicion that she was dead, and that the

only basis of that suspicion was the fact of her absence.

Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal of the CA ruling

affirming the RTCs grant of the Petition for Declaration of Presumptive Death of the absent spouse on the ground that the

respondent therein had not been able to prove a well-founded belief that his spouse was already dead. The Court

reversed the CA, granted the Petition, and provided the following criteria for determining the existence of a well-founded

belief under Article 41 of the Family Code:

For the purpose of contracting the subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.
 The spouse present is, thus, burdened to prove that his spouse has been absent and that he
has a well-founded belief that the absent spouse is already dead before the present spouse may
contract a subsequent marriage. The law does not define what is meant by a well-grounded belief.
Cuello Callon writes that es menester que su creencia sea firme se funde en motivos racionales.

Belief is a state of the mind or condition prompting the doing of an overt act. It may be proved
by direct evidence or circumstantial evidence which may tend, even in a slight degree, to elucidate
the inquiry or assist to a determination probably founded in truth. Any fact or circumstance relating to
the character, habits, conditions, attachments, prosperity and objects of life which usually control the
conduct of men, and are the motives of their actions, was, so far as it tends to explain or characterize
their disappearance or throw light on their intentions, competence [sic] evidence on the ultimate
question of his death.

The belief of the present spouse must be the result of proper and honest to goodness inquiries
and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still
alive or is already dead. Whether or not the spouse present acted on a well-founded belief of
death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances
occurring before and after the disappearance of the absent spouse and the nature and extent of the
inquiries made by present spouse. (Footnotes omitted, underscoring supplied.)

Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda did not

initiate a diligent search to locate her absent husband. While her brother Diosdado Cadacio testified to having inquired

about the whereabouts of Cyrus from the latters relatives, these relatives were not presented to corroborate Diosdados

testimony. In short, respondent was allegedly not diligent in her search for her husband. Petitioner argues that if she were,

she would have sought information from the Taiwanese Consular Office or assistance from other government agencies in

Taiwan or the Philippines. She could have also utilized mass media for this end, but she did not. Worse, she failed to explain

these omissions.

The Republics arguments are well-taken. Nevertheless, we are constrained to deny the Petition.

The RTC ruling on the issue of whether respondent was able to prove her well-founded belief that her absent

spouse was already dead prior to her filing of the Petition to declare him presumptively dead is already final and can no

longer be modified or reversed. Indeed, [n]othing is more settled in law than that when a judgment becomes final and

executory, it becomes immutable and unalterable. The same may no longer be modified in any respect, even if the

modification is meant to correct what is perceived to be an erroneous conclusion of fact or law.[15]

WHEREFORE, premises considered, the assailed Resolutions of the Court of Appeals dated 23 January 2009 and 3

April 2009 in CA-G.R. CV No. 90165 are AFFIRMED.

SO ORDERED.
 MARIA LOURDES P. A. SERENO
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice
Chairperson

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the

writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296,
The Judiciary Act of 1948, as amended)

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 184621 December 10, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
MARIA FE ESPINOSA CANTOR, Respondent.

DECISION

BRION, J.:
The petition for review on certiorari1 before us assails the decision2 dated August 27, 2008 of the Court of Appeals (CA) in
CA-G.R. SP No. 01558-MIN which affirmed be order3 dated December 15, 2006 of the Regional Trial Court (RTC), Branch
25, Koronadal City, South Cotabato, in SP Proc. Case No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe Espinosa
Cantor’s husband, presumptively dead under Article 41 of the Family Code.

The Factual Antecedents

The respondent and Jerry were married on September 20, 1997. They lived together as husband and wife in their
conjugal dwelling in Agan Homes, Koronadal City, South Cotabato. Sometime in January 1998, the couple had a violent
quarrel brought about by: (1) the respondent’s inability to reach "sexual climax" whenever she and Jerry would have
intimate moments; and (2) Jerry’s expression of animosity toward the respondent’s father.

After their quarrel, Jerry left their conjugal dwelling and this was the last time that the respondent ever saw him. Since
then, she had not seen, communicated nor heard anything from Jerry or about his whereabouts.

On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance, the respondent filed before the RTC
a petition4for her husband’s declaration of presumptive death, docketed as SP Proc. Case No. 313-25. She claimed that
she had a well-founded belief that Jerry was already dead. She alleged that she had inquired from her mother-in-law,
her brothers-in-law, her sisters-in-law, as well as her neighbors and friends, but to no avail. In the hopes of finding Jerry,
she also allegedly made it a point to check the patients’ directory whenever she went to a hospital. All these earnest
efforts, the respondent claimed, proved futile, prompting her to file the petition in court.

The Ruling of the RTC

After due proceedings, the RTC issued an order granting the respondent’s petition and declaring Jerry presumptively
dead. It concluded that the respondent had a well-founded belief that her husband was already dead since more than
four (4) years had passed without the former receiving any news about the latter or his whereabouts. The dispositive
portion of the order dated December 15, 2006 reads:

WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F. Cantor is presumptively dead
pursuant to Article 41 of the Family Code of the Philippines without prejudice to the effect of the reappearance of the
absent spouse Jerry F. Cantor.5

The Ruling of the CA

The case reached the CA through a petition for certiorari6filed by the petitioner, Republic of the Philippines, through the
Office of the Solicitor General (OSG). In its August 27, 2008 decision, the CA dismissed the petitioner’s petition, finding no
grave abuse of discretion on the RTC’s part, and, accordingly, fully affirmed the latter’s order, thus:

WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and the assailed Order dated December
15, 2006 declaring Jerry F. Cantor presumptively dead is hereby AFFIRMED in toto.7

The petitioner brought the matter via a Rule 45 petition before this Court. The Petition The petitioner contends that
certiorari lies to challenge the decisions, judgments or final orders of trial courts in petitions for declaration of presumptive
death of an absent spouse under Rule 41 of the Family Code. It maintains that although judgments of trial courts in
summary judicial proceedings, including presumptive death cases, are deemed immediately final and executory
(hence, not appeal able under Article 247 of the Family Code), this rule does not mean that they are not subject to
review on certiorari.

The petitioner also posits that the respondent did not have a well-founded belief to justify the declaration of her
husband’s presumptive death. It claims that the respondent failed to conduct the requisite diligent search for her missing
husband. Likewise, the petitioner invites this Court’s attention to the attendant circumstances surrounding the case,
particularly, the degree of search conducted and the respondent’s resultant failure to meet the strict standard under
Article 41 of the Family Code.

The Issues

The petition poses to us the following issues:

 (1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial courts in petitions for
declaration of presumptive death of an absent spouse under Article 41 of the Family Code; and

(2) Whether the respondent had a well-founded belief that Jerry is already dead.

The Court’s Ruling

We grant the petition.

a. On the Issue of the Propriety of Certiorari as a Remedy

Court’s Judgment in the Judicial

Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable

The Family Code was explicit that the court’s judgment in summary proceedings, such as the declaration of presumptive
death of an absent spouse under Article 41 of the Family Code, shall be immediately final and executory.

Article 41,in relation to Article 247, of the Family Code provides:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and
the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.

Art. 247. The judgment of the court shall be immediately final and executory. [underscores ours]

With the judgment being final, it necessarily follows that it is no longer subject to an appeal, the dispositions and
conclusions therein having become immutable and unalterable not only as against the parties but even as against the
courts.8 Modification of the court’s ruling, no matter how erroneous is no longer permissible. The final and executory
nature of this summary proceeding thus prohibits the resort to appeal. As explained in Republic of the Phils. v. Bermudez-
Lorino,9 the right to appeal is not granted to parties because of the express mandate of Article 247 of the Family Code,
to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an
appeal, precisely because judgments rendered thereunder, by express provision of [Article] 247, Family Code, supra, are
"immediately final and executory." It was erroneous, therefore, on the part of the RTCto give due course to the Republic’s
appeal and order the transmittal of the entire records of the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is immediately final
and executory. As we have said in Veloria vs. Comelec, "the right to appeal is not a natural right nor is it a part of due
process, for it is merely a statutory privilege." Since, by express mandate of Article 247 of the Family Code, all judgments
rendered in summary judicial proceedings in Family Law are "immediately final and executory," the right to appeal was
not granted to any of the parties therein. The Republic of the Philippines, as oppositor in the petition for declaration of
presumptive death, should not be treated differently. It had no right to appeal the RTC decision of November 7, 2001.
[emphases ours; italics supplied]

Certiorari Lies to Challenge the

Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of Presumptive
Death Under the Family Code
A losing party in this proceeding, however, is not entirely left without a remedy. While jurisprudence tells us that no
appeal can be made from the trial court's judgment, an aggrieved party may, nevertheless, file a petition for certiorari
under Rule 65 of the Rules of Court to question any abuse of discretion amounting to lack or excess of jurisdiction that
transpired.

As held in Delos Santos v. Rodriguez, et al.,10 the fact that a decision has become final does not automatically negate
the original action of the CA to issue certiorari, prohibition and mandamus in connection with orders or processes issued
by the trial court. Certiorari may be availed of where a court has acted without or in excess of jurisdiction or with grave
abuse of discretion, and where the ordinary remedy of appeal is not available. Such a procedure finds support in the
case of Republic v. Tango,11 wherein we held that:

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in summary proceedings
under the Family Code and accordingly, refine our previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes the rules
that govern summary court proceedings in the Family Code:

"ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this
Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to
technical rules."

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three of the same
title. It states:

"ART. 253. The foregoing rules in Chapters 2and 3 hereof shall likewise govern summary proceedings filed under Articles
41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable."(Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

"ART.247. The judgment of the court shall be immediately final and executory."

By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and
executory. As a matter of course, it follows that no appeal can be had of the trial court's judgment ina summary
proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion
amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine
of Hierarchy of Courts. To be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent with the
RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted freedom of choice
of court forum. [emphasis ours]

Viewed in this light, we find that the petitioner’s resort to certiorari under Rule 65 of the Rules of Court to question the
RTC’s order declaring Jerry presumptively dead was proper.

b. On the Issue of the Existence of Well-Founded Belief

The Essential Requisites for the

Declaration of Presumptive Death
Under Article 41 of the Family Code

Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior spouse had been
absent for four consecutive years and the present spouse had a well-founded belief that the prior spouse was already
dead. Under Article 41 of the Family Code, there are four (4) essential requisites for the declaration of presumptive
death:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under the circumstances laid down in Article 391,
Civil Code;

2. That the present spouse wishes to remarry;

 3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the
absentee.12

The Present Spouse Has the Burden

of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present

The burden of proof rests on the present spouse to show that all the requisites under Article 41 of the Family Code are
present. Since it is the present spouse who, for purposes of declaration of presumptive death, substantially asserts the
affirmative of the issue, it stands to reason that the burden of proof lies with him/her. He who alleges a fact has the
burden of proving it and mere allegation is not evidence.13

Declaration of Presumptive Death

Under Article 41 of the Family Code
Imposes a Stricter Standard

Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it superseded, imposes
a stricter standard. It requires a "well-founded belief " that the absentee is already dead before a petition for declaration
of presumptive death can be granted. We have had occasion to make the same observation in Republic v.
Nolasco,14 where we noted the crucial differences between Article 41 of the Family Code and Article 83 of the Civil
Code, to wit:

Under Article 41, the time required for the presumption to arise has been shortened to four (4) years; however, there is
need for a judicial declaration of presumptive death to enable the spouse present to remarry. Also, Article 41 of the
Family Code imposes a stricter standard than the Civil Code: Article 83 of the Civil Code merely requires either that there
be no news that such absentee is still alive; or the absentee is generally considered to be dead and believed to be so by
the spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code. The Family Code, upon the other
hand, prescribes as "well founded belief" that the absentee is already dead before a petition for declaration of
presumptive death can be granted.

Thus, mere absence of the spouse (even for such period required by the law), lack of any news that such absentee is still
alive, failure to communicate or general presumption of absence under the Civil Code would not suffice. This conclusion
proceeds from the premise that Article 41 of the Family Code places upon the present spouse the burden of proving the
additional and more stringent requirement of "well-founded belief" which can only be discharged upon a showing of
proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but, more
importantly, that the absent spouse is still alive or is already dead.15

The Requirement of Well-Founded Belief

The law did not define what is meant by "well-founded belief." It depends upon the circumstances of each particular
case. Its determination, so to speak, remains on a case-to-case basis. To be able to comply with this requirement, the
present spouse must prove that his/her belief was the result of diligent and reasonable efforts and inquiries to locate the
absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent
spouseis already dead. It requires exertion of active effort (not a mere passive one).

To illustrate this degree of "diligent and reasonable search" required by the law, an analysis of the following relevant
cases is warranted:

i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16

In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled that the present spouse failed to prove
that he had a well-founded belief that his absent spouse was already dead before he filed his petition. His efforts to
locate his absent wife allegedly consisted of the following:

(1) He went to his in-laws’ house to look for her;

(2) He sought the barangay captain’s aid to locate her;

 (3) He went to her friends’ houses to find her and inquired about her whereabouts among his friends;

(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his free time;

(5) He went back to Catbalogan and again looked for her; and

(6) He reported her disappearance to the local police station and to the NBI.

Despite these alleged "earnest efforts," the Court still ruled against the present spouse. The Court found that he failed to
present the persons from whom he allegedly made inquiries and only reported his wife’s absence after the OSG filed its
notice to dismiss his petition in the RTC.

The Court also provided the following criteria for determining the existence of a "well-founded belief" under Article 41 of
the Family Code:

The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain the
whereabouts of the absent spouse and whether the absent spouse is still alive or is already dead. Whether or not the
spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn
from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature
and extent of the inquiries made by [the] present spouse.18

ii. Republic v. Granada19

Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-founded belief" that her absent
spouse was already dead prior to her filing of the petition. In this case, the present spouse alleged that her brother had
made inquiries from their relatives regarding the absent spouse’s whereabouts. The present spouse did not report to the
police nor seek the aid of the mass media. Applying the standards in Republic of the Philippines v. Court of Appeals
(Tenth Div.),20 the Court ruled against the present spouse, as follows:

Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda did not initiate a
diligent search to locate her absent husband. While her brother Diosdado Cadacio testified to having inquiredabout the
whereabouts of Cyrus from the latter’s relatives, these relatives were not presented to corroborate Diosdado’s testimony.
In short, respondent was allegedly not diligent in her search for her husband. Petitioner argues that if she were, she would
have sought information from the Taiwanese Consular Office or assistance from other government agencies in Taiwan or
the Philippines. She could have also utilized mass media for this end, but she did not. Worse, she failed to explain these
omissions.

iii.Republic v. Nolasco21

In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who had been missing for
more than four years. He testified that his efforts to find her consisted of:

(1) Searching for her whenever his ship docked in England;

(2) Sending her letters which were all returned to him; and

(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless. The Court ruled that the
present spouse’s investigations were too sketchy to form a basis that his wife was already dead and ruled that
the pieces of evidence only proved that his wife had chosen not to communicate with their common
acquaintances, and not that she was dead.

iv.The present case

In the case at bar, the respondent’s "well-founded belief" was anchored on her alleged "earnest efforts" to locate Jerry,
which consisted of the following:

(1) She made inquiries about Jerry’s whereabouts from her in-laws, neighbors and friends; and
 (2) Whenever she went to a hospital, she saw to it that she looked through the patients’ directory, hoping to
find Jerry.

These efforts, however, fell short of the "stringent standard" and degree of diligence required by jurisprudence for the
following reasons:

First, the respondent did not actively look for her missing husband.1âwphi1 It can be inferred from the records that her
hospital visits and her consequent checking of the patients’ directory therein were unintentional. She did not purposely
undertake a diligent search for her husband as her hospital visits were not planned nor primarily directed to look for him.
This Court thus considers these attempts insufficient to engender a belief that her husband is dead.

Second, she did not report Jerry’s absence to the police nor did she seek the aid of the authorities to look for him. While
a finding of well-founded belief varies with the nature of the situation in which the present spouse is placed, under
present conditions, we find it proper and prudent for a present spouse, whose spouse had been missing, to seek the aid
of the authorities or, at the very least, report his/her absence to the police.

Third, she did not present as witnesses Jerry’s relatives or their neighbors and friends, who can corroborate her efforts to
locate Jerry. Worse, these persons, from whom she allegedly made inquiries, were not even named. As held in Nolasco,
the present spouse’s bare assertion that he inquired from his friends about his absent spouse’s whereabouts is insufficient
as the names of the friends from whom he made inquiries were not identified in the testimony nor presented as witnesses.

Lastly, there was no other corroborative evidence to support the respondent’s claim that she conducted a diligent
search. Neither was there supporting evidence proving that she had a well-founded belief other than her bare claims
that she inquired from her friends and in-laws about her husband’s whereabouts. In sum, the Court is of the view that the
respondent merely engaged in a "passive search" where she relied on uncorroborated inquiries from her in-laws,
neighbors and friends. She failed to conduct a diligent search because her alleged efforts are insufficient to form a well-
founded belief that her husband was already dead. As held in Republic of the Philippines v. Court of Appeals (Tenth
Div.),22 "[w]hether or not the spouse present acted on a well-founded belief of death of the absent spouse depends
upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the
absent spouse and the natureand extent of the inquiries made by [the] present spouse."

Strict Standard Approach Is

Consistent with the State’s Policy
to Protect and Strengthen Marriage

In the above-cited cases, the Court, fully aware of the possible collusion of spouses in nullifying their marriage, has
consistently applied the "strictstandard" approach. This is to ensure that a petition for declaration of presumptive death
under Article 41 of the Family Code is not used as a tool to conveniently circumvent the laws. Courts should never allow
procedural shortcuts and should ensure that the stricter standard required by the Family Code is met. In Republic of the
Philippines v. Court of Appeals (Tenth Div.),23 we emphasized that:

In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration of presumptive
death of one’s spouse, the degree of due diligence set by this Honorable Court in the above-mentioned cases in
locating the whereabouts of a missing spouse must be strictly complied with. There have been times when Article 41 of
the Family Code had been resorted to by parties wishing to remarry knowing fully well that their alleged missing spouses
are alive and well. It is even possible that those who cannot have their marriages xxx declared null and void under
Article 36 of the Family Code resort to Article 41 of the Family Code for relief because of the xxx summary nature of its
proceedings.

The application of this stricter standard becomes even more imperative if we consider the State’s policy to protect and
strengthen the institution of marriage.24 Since marriage serves as the family’s foundation25 and since it is the state’s policy
to protect and strengthen the family as a basic social institution,26 marriage should not be permitted to be dissolved at
the whim of the parties. In interpreting and applying Article 41, this is the underlying rationale –to uphold the sanctity of
marriage. Arroyo, Jr.v. Court of Appeals27 reflected this sentiment when we stressed:

[The]protection of the basic social institutions of marriage and the family in the preservation of which the State has the
strongest interest; the public policy here involved is of the most fundamental kind. In Article II, Section 12 of the
Constitution there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social
institution.
Strict Standard Prescribed Under
Article 41 of the Family Code
Is for the Present Spouse’s Benefit

The requisite judicial declaration of presumptive death of the absent spouse (and consequently, the application of a
stringent standard for its issuance) is also for the present spouse's benefit. It is intended to protect him/her from a criminal
prosecution of bigamy under Article 349 of the Revised Penal Code which might come into play if he/she would
prematurely remarry sans the court's declaration.

Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the present spouse's good faith
in contracting a second marriage is effectively established. The decision of the competent court constitutes sufficient
proof of his/her good faith and his/her criminal intent in case of remarriage is effectively negated.28 Thus, for purposes of
remarriage, it is necessary to strictly comply with the stringent standard and have the absent spouse judicially declared
presumptively dead.

Final Word

As a final word, it has not escaped this Court's attention that the strict standard required in petitions for declaration of
presumptive death has not been fully observed by the lower courts. We need only to cite the instances when this Court,
on review, has consistently ruled on the sanctity of marriage and reiterated that anything less than the use of the strict
standard necessitates a denial. To rectify this situation, lower courts are now expressly put on notice of the strict standard
this Court requires in cases under Article 41 of the Family Code.

WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the Court of Appeals, which
affirmed the order dated December 15, 2006 of the Regional Trial Court, Branch 25, Koronadal City, South Cotabato,
declaring Jerry F. Cantor presumptively dead is hereby REVERSED and SET ASIDE.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

Please see concurring opinion

ANTONIO T. CARPIO
PRESBITERO J. VELASCO, JR.
Associate Justice
Associate Justice

TERESITA J. LEONARDO DE CASTRO DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

I join the dissent opinion of Justice M.M.V.F

Leonen MARTIN S. VILLARAMA, JR.
ROBERTO A. ABAD Associate Justice
Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice
 BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice

See dissenting opinion

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-43701 March 6, 1937

In re Instate of the deceased Marciana Escaño.

ANGELITA JONES., petitioner-appellant-appellee,
vs.
FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellant-appellee.

Salvador E. Imperial for petitioner-appellant-appellee.

Vicente L. Faelnar , Hipolito Alo and Ciriaco S. Salazar for oppositor-appellant-appellee.

CONCEPCION, J.:

This is an appeal taken from the order issued by the Court of First Instance of Cebu on March 14, 1935 , in the intestate
proceedings of the deceased Marciana Escaño, denying thereby: (1) the motion to appoint a new administrator and (2)
to set aside the order of May 9, 1932, declaring the heirs of said deceased; (3) holding it unwarranted to declare that the
properties of the intestate estate are paraphernal properties of said deceased, but reserving to the parties the right to
discuss which of said properties are paraphernal and which are conjugal; (4)setting aside the order of January 10, 1933.
granting to the administrator fees in the sum of P10,000, and that of June 26, 1933, approving the project of portion and
the final account; and (5) ordering the presentation of another project of partition and final account.

As Marciana Escaño had died intestate, her widower Felix Hortiguela was appointed judicial administrator of her entire
estate, and in an order issued on May 9, 1932, Angelita Jones, her daughter by her first marriage, and Felix Hortiguela,
her widower by her second marriage, were declared her only heirs. In a motion filed with the conformity of the guardian
of the heiress Angelita Jones, Felix Hortiguela, as administrator, prayed that his fees, as such, be fixed at P10,000 which
was granted by the court in its order of January 10, 1933. The administrator later presented an inventory of the properties
left by said deceased Marciana Escaño, a final account of his administration, and a project of partition of the intestate
estate wherein he adjudicated to himself a part of the estate in payment of his share of the conjugal properties and his
usufructuary right, and the remaining part to Angelita Jones. The latter, who was a minor, was represented in the
proceedings by her guardian Paz Escaño de Corominas. The project of partition and final account were approved in an
order of June 26, 1933, and the properties were turned over to the respective grantees by virtue thereof.

On May 3, 1934, the heiress Angelita Jones, then married to Ernesto Lardizabal, filed a motion alleging that she was the
only heir of her mother, the deceased Marciana Escaño; that there never was a valid marriage between her mother
and Felix Hortiguela or that had such marriage been celebrated, it was null and void; and even granting that it were
valid, Felix Hortiguela was not entitled to a share in usufruct of one-third of the inheritance; that the petitioner was a
minor and that during the hearing of the intestate proceedings she had not been assisted by counsel but was represent
by the same attorney of Felix Hortiguela; that during said proceedings there had been committed many errors and
inaccuracies which impaired her rights and that the fees of P10,000 charged by the administrator were highly
unreasonable and unconscionable. She prayed: (a) for the reopening of the proceedings; (b) that her husband
appointed special administrator without bond; (c) that her mother's alleged marriage to Felix Hortiguela be declared null
and void; (d) that the partition of the properties made by administrator or Hortiguela be declared null and void that
petitioner be declared the only universal heir of her deceased mother; and (e) that in case there was a valid marriage
between Felix Hortiguela and Marciana Escaño, Hortiguela be declared not entitled to the widower's usufruct; the errors
in the administrator's account be corrected; the latter be granted a remuneration of only P4 a day, and new partition of
the properties be made.

After Hortiguela's answer had been filed and the evidence for both parties received, the court issued the order of March
14, 1935, the provisions of which are stated in the first paragraph of this decision. Both parties appealed therefrom.

The principal question upon the resolution of which depends that of the others, is whether or not Felix Hortiguela's alleged
marriage to Marciana Escaño was celebrated.

It is a fact that in December, 1914, Marciana Escaño married Arthur W. Jones in the suburban catholic church of San
Nicolas, Province of Cebu. On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing was
ever heard of him. In October, 1919, proceedings were institute in the Court of First Instance of Maasin, Leyte, at the
instance of Marciana Escaño, to have her husband judicially declared an absentee. On the 25th of said month, the
court issued an order declaring Arthur W. Jones an absentee from the Philippine Islands pursuant to the provisions of
article 186 of the Civil Code, with the proviso that said judicial declaration of absence would not take effect until six
months after its publication in the official newspapers. Said order directed the publication thereof in the Official Gazette
and in the newspaper "El Ideal". Pursuant thereto, said order was published in the Official Gazette during the month of
December, 1919, and January, February, March, April, May and June, 1920. On April 23, 1921, the court issued another
order for the taking effect of the declaration of absence, publication thereof having been made in the Official Gazette
and in "El Ideal." On May 6, 1927, Felix Hortiguela and Marciana Escaño were married before the justice of the peace of
Malitbog, Leyte, and they signed the certificate of marriage.

Now, Angelita Jones contends that the declaration of absence must be understood to have been made not in the
order of October 25, 1919, but in that of April 23, 1921, and that from the latter date to May 6, 1927, the date of the
celebration of the marriage, only 6 years and 14 days elapsed; and in accordance with section III, paragraph 2, of
General Orders, No. 68, the marriage so contracted by Felix Hortiguela and Marciana Escaño is null and void. This court
does not believe so. For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially
declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its
sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For
the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven
consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to
be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the
celebration of the marriage (section III, paragraph 2, General orders, No. 68).

In accordance with the foregoing legal provision, the absence of Marciana Escaño's former husband should be
counted from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from
said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful.

For some unknown reason not attributable, of course, to the fault or negligence of Felix Hortiguela or Marciana Escaño,
the marriage contracted does not appear recorded in the marriage register of the municipality of Malitbog. Angelita
Jones assigns as one of the errors of the court its having declared that failure to record said marriage does not affect the
efficacy and validity thereof.

On this point, the court a quo very correctly stated as follows:

Section VIII of General Orders, No. 68, as amended, provides that the person solemnizing the marriage must
transmit the marriage certificate to the municipal secretary, and failure to transmit such certificate shall be
fined not less than twenty-five and not more than fifty dollars; but does not provide that failure to transmit such
certificate to the municipal secretary annuls the marriage. Interpreting this legal provision, the Supreme Court,
in its decision of September 5, 1931 (Madridejo vs. De Leon, 55 Phil., 1 ) said:

"The mere fact that the parish priest who married the plaintiff's natural father and mother, while the
latter was in articulo mortis failed to send a copy of the marriage certificate to the municipal
 secretary, does not invalidate said marriage, since it does not appear that in the celebration thereof
all requisites for its validity were not present, the forwarding of a copy of the marriage certificate not
being one said requisites."

In another case (U. S. vs. De Vera, 28 Phil., 105), the court said:

"Certificate issued pursuant the provisions of section 20 of the Municipal Code by municipal secretaries,
marriages recorded in their respective registers, are not the only ones that can attest and prove such facts to
such an extent that other proofs established by law may not be presented or admitted at trial, when through
the omission or fault either of the municipal secretary himself or of the person who solemnized the marriage, it
was not duly entered or recorded in the municipal register."

Furthermore, Marciana Escaño believed Arthur W. Jones to be dead when she contracted her second marriage. Her
daughter Angelita Jones herself was of the same belief, since she lived with her mother after the latter had married
Hortiguela, treated Hortiguela as her true stepfather, and lived and traveled with him together with her mother. She
certainly would not have behaved so if she had not believed her father to be dead. Still furthermore, according to
section 334, No. 24, of the Code of Civil Procedure, a person not heard from in seven years is presumed to be dead.

Inasmuch as Felix Hortiguela was lawfully married to Marciana Escaño and was divorced from her at the time of her
death there is no doubt that he is entitled to inherit in usufruct, not only in testate but also in intestate succession, as in
the present case (6 and 7 Manresa, pages 497-499 and 134-141, respectively).

Therefor, there is no reason to annul the order of May 9, 1932, declaring that the heirs of the deceased were her widower
and her daughter Angelita Jones. Neither is there any reason to annul the order of June 26, 1933, approving the partition
of the properties of the intestate estate.

The inaccuracies and error attributed to the administrator Felix Hortiguela in Angelita Jones' motion and alleged therein
as one of the grounds for asking for the reopening of any assignment of error. It should, therefore, be considered that the
petitioner has desisted from her intention relative to this alleged ground for the nullity of the proceedings.

As to the administrator's fees, the evidence shows that of the P10,000 granted by the court to Hortiguela as his own sum
of P8,000 for the latter's professional services in this as well as in other cases affecting the estate of his deceased wife.
Taking into consideration the nature of and the amount involved in this and in the other cases wherein Attorney Faelnar
has rendered his services this court is of the opinion that the sum of P8,000 paid by the administrator is a reasonable and
moderate compensation. Angelita Jones' objection to the effect that she had no reason to contribute to the payment
of Faelnar's fees is untenable, considering the fact that said attorney's professional services were rendered for the benefit
of the administration of the estate of the deceased Escaño prior to the controversy provoked by said heiress. As to the
remainder of P2,000, said administrator is entitled to collect the sum of P4 for every day employed by him as such, and
considering the importance of the inheritance in question and the time elapsed since the inception of the administration
proceedings this court is of the opinion that the sum of P2,000 is an adequate compensation for said administrator's
services.

Lastly, had the court jurisdiction to set aside, as it did, the order of January 10, 1933, approving the administrator's fees
and the order of June 26, 1933, approving the partition and the final account? Had the court jurisdiction to order the
presentation of another project of partition and final account? These are the questions raised by Felix Hortiguela and this
court is of the opinion that said orders having therefrom, the court has lost jurisdiction that no appeal was ever taken
therefrom, the court has lost jurisdiction over the case and it could not resume it under section 113 of the Code of Civil
Procedure or under section 598 thereof because the above-cited section refer to grounds other than those upon which
Angelita Jones' motion of May 3, 1934, is based.

For all the foregoing consideration this court reverses the appealed order of March 14, 1935, in so far as it set aside the
order of January 10, 1933, relative to the administrator's fees and the order of June 26, 1933, approving the final account
and the project of portion, and in so far as said order of March 14, 1935, required the presentation of a new project of
partition; denied the appointment of Angelita Jones husband as administrator; affirms the order of May 9, 1932, relative
to declaration of heirs; and holds it unwarranted to make a finding as to whether or not the properties of this intestate
estate are paraphernal properties of the deceased Marciana Escaño reserving to the parties the right to discuss which
are paraphernal and which are conjugal properties. So ordered.

Avanceña, C.J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 108763 February 13, 1997

REPUBLIC OF THE PHILIPPINES,

vs.
COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, respondents.

PANGANIBAN, J.:

The Family Code of the Philippines provides an entirely new ground (in addition to those enumerated in the Civil Code) to
assail the validity of a marriage, namely, "psychological incapacity." Since the Code's effectivity, our courts have been
swamped with various petitions to declare marriages void based on this ground. Although this Court had interpreted the
meaning of psychological incapacity in the recent case of Santos vs. Court of Appeals, still many judges and lawyers
find difficulty in applying said novel provision in specific cases. In the present case and in the context of the herein
assailed Decision of the Court of Appeals, the Solicitor General has labelled — exaggerated to be sure but nonetheless
expressive of his frustration — Article 36 as the "most liberal divorce procedure in the world." Hence, this Court in addition
to resolving the present case, finds the need to lay down specific guidelines in the interpretation and application of
Article 36 of the Family Code.

Before us is a petition for review on certiorari under Rule 45 challenging the January 25, 1993 Decision1 of the Court of
Appeals2 in CA-G.R. CV No. 34858 affirming in toto the May 14, 1991 decision of the Regional Trial Court of La
Trinidad,3 Benguet, which declared the marriage of respondent Roridel Olaviano Molina to Reynaldo Molina void ab
initio, on the ground of "psychological incapacity" under Article 36 of the Family Code.

The Facts

This case was commenced on August 16, 1990 with the filing by respondent Roridel O. Molina of a verified petition for
declaration of nullity of her marriage to Reynaldo Molina. Essentially, the petition alleged that Roridel and Reynaldo were
married on April 14, 1985 at the San Agustin Church4 in Manila; that a son, Andre O. Molina was born; that after a year of
marriage, Reynaldo showed signs of "immaturity and irresponsibility" as a husband and a father since he preferred to
spend more time with his peers and friends on whom he squandered his money; that he depended on his parents for aid
and assistance, and was never honest with his wife in regard to their finances, resulting in frequent quarrels between
them; that sometime in February 1986, Reynaldo was relieved of his job in Manila, and since then Roridel had been the
sole breadwinner of the family; that in October 1986 the couple had a very intense quarrel, as a result of which their
relationship was estranged; that in March 1987, Roridel resigned from her job in Manila and went to live with her parents
in Baguio City; that a few weeks later, Reynaldo left Roridel and their child, and had since then abandoned them; that
Reynaldo had thus shown that he was psychologically incapable of complying with essential marital obligations and was
a highly immature and habitually quarrel some individual who thought of himself as a king to be served; and that it
would be to the couple's best interest to have their marriage declared null and void in order to free them from what
appeared to be an incompatible marriage from the start.

In his Answer filed on August 28, 1989, Reynaldo admitted that he and Roridel could no longer live together as husband
and wife, but contended that their misunderstandings and frequent quarrels were due to (1) Roridel's strange behavior
of insisting on maintaining her group of friends even after their marriage; (2) Roridel's refusal to perform some of her
marital duties such as cooking meals; and (3) Roridel's failure to run the household and handle their finances.

During the pre-trial on October 17, 1990, the following were stipulated:

1. That the parties herein were legally married on April 14, 1985 at the Church of St. Augustine, Manila;

2. That out of their marriage, a child named Albert Andre Olaviano Molina was born on July 29, 1986;
 3. That the parties are separated-in-fact for more than three years;

4. That petitioner is not asking support for her and her child;

5. That the respondent is not asking for damages;

6. That the common child of the parties is in the custody of the petitioner wife.

Evidence for herein respondent wife consisted of her own testimony and that of her friends Rosemarie Ventura and
Maria Leonora Padilla as well as of Ruth G. Lalas, a social worker, and of Dr. Teresita Hidalgo-Sison, a psychiatrist of the
Baguio General Hospital and Medical Center. She also submitted documents marked as Exhibits "A" to "E-1." Reynaldo
did not present any evidence as he appeared only during the pre-trial conference.

On May 14, 1991, the trial court rendered judgment declaring the marriage void. The appeal of petitioner was denied by
the Court of Appeals which affirmed in toto the RTC's decision. Hence, the present recourse.

The Issue

In his petition, the Solicitor General insists that "the Court of Appeals made an erroneous and incorrect interpretation of
the phrase 'psychological incapacity' (as provided under Art. 36 of the Family Code) and made an incorrect application
thereof to the facts of the case," adding that the appealed Decision tended "to establish in effect the most liberal
divorce procedure in the world which is anathema to our culture."

In denying the Solicitor General's appeal, the respondent Court relied5 heavily on the trial court's findings "that the
marriage between the parties broke up because of their opposing and conflicting personalities." Then, it added it sown
opinion that "the Civil Code Revision Committee (hereinafter referred to as Committee) intended to liberalize the
application of our civil laws on personal and family rights. . . ." It concluded that:

As ground for annulment of marriage, We view psychologically incapacity as a broad range of

mental and behavioral conduct on the part of one spouse indicative of how he or she regards the
marital union, his or her personal relationship with the other spouse, as well as his or her conduct in the
long haul for the attainment of the principal objectives of marriage. If said conduct, observed and
considered as a whole, tends to cause the union to self-destruct because it defeats the very
objectives of marriage, then there is enough reason to leave the spouses to their individual fates.

In the case at bar, We find that the trial judge committed no indiscretion in analyzing and deciding
the instant case, as it did, hence, We find no cogent reason to disturb the findings and conclusions
thus made.

Respondent, in her Memorandum, adopts these discussions of the Court of Appeals.

The petitioner, on the other hand, argues that "opposing and conflicting personalities" is not equivalent to psychological
incapacity, explaining that such ground "is not simply the neglect by the parties to the marriage of their responsibilities
and duties, but a defect in their psychological nature which renders them incapable of performing such marital
responsibilities and duties."

The Court's Ruling

The petition is meritorious.

In Leouel Santos vs. Court of Appeals6 this Court, speaking thru Mr. Justice Jose C. Vitug, ruled that "psychological
incapacity should refer to no less than a mental (nor physical) incapacity . . . and that (t)here is hardly any doubt that
the intendment of the law has been to confine the meaning of 'psychological incapacity' to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the
marriage. This psychologic condition must exist at the time the marriage is celebrated." Citing Dr. Gerardo Veloso, a
former presiding judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila,7Justice Vitug wrote
that "the psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability."
On the other hand, in the present case, there is no clear showing to us that the psychological defect spoken of is an
incapacity. It appears to us to be more of a "difficulty," if not outright "refusal" or "neglect" in the performance of some
marital obligations. Mere showing of "irreconciliable differences" and "conflicting personalities" in no wise constitutes
psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (nor
physical) illness.

The evidence adduced by respondent merely showed that she and her husband could nor get along with each other.
There had been no showing of the gravity of the problem; neither its juridical antecedence nor its incurability. The expert
testimony of Dr. Sison showed no incurable psychiatric disorder but only incompatibility, not psychological incapacity. Dr.
Sison testified:8

COURT

Q It is therefore the recommendation of the psychiatrist based on your findings that

it is better for the Court to annul (sic) the marriage?

A Yes, Your Honor.

Q There is no hope for the marriage?

A There is no hope, the man is also living with another woman.

Q Is it also the stand of the psychiatrist that the parties are psychologically unfit for
each other but they are psychologically fit with other parties?

A Yes, Your Honor.

Q Neither are they psychologically unfit for their professions?

A Yes, Your Honor.

The Court has no more questions.

In the case of Reynaldo, there is no showing that his alleged personality traits were constitutive of psychological
incapacity existing at the time of marriage celebration. While some effort was made to prove that there was a failure to
fulfill pre-nuptial impressions of "thoughtfulness and gentleness" on Reynaldo's part of being "conservative, homely and
intelligent" on the part of Roridel, such failure of expectation is nor indicative of antecedent psychological incapacity. If
at all, it merely shows love's temporary blindness to the faults and blemishes of the beloved.

During its deliberations, the Court decided to go beyond merely ruling on the facts of this case vis-a-vis existing law and
jurisprudence. In view of the novelty of Art. 36 of the Family Code and the difficulty experienced by many trial courts
interpreting and applying it, the Court decided to invite two amici curiae, namely, the Most Reverend Oscar V.
Cruz,9 Vicar Judicial (Presiding Judge) of the National Appellate Matrimonial Tribunal of the Catholic Church in the
Philippines, and Justice Ricardo C. Puno, 10 a member of the Family Code Revision Committee. The Court takes this
occasion to thank these friends of the Court for their informative and interesting discussions during the oral argument on
December 3, 1996, which they followed up with written memoranda.

From their submissions and the Court's own deliberations, the following guidelines in the interpretation and application of
Art. 36 of the Family Code are hereby handed down for the guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor
of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that
both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes
an entire Article on the Family, 11 recognizing it "as the foundation of the nation." It decrees marriage as legally
"inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be
"protected" by the state.
The Family Code 12 echoes this constitutional edict on marriage and the family and emphasizes the permanence,
inviolability and solidarity

(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code
requires that the incapacity must be psychological — not physical. although its manifestations and/or symptoms may be
physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an
extent that the person could not have known the obligations he was assuming, or knowing them, could not have given
valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application
of the provision under the principle of ejusdem generis, 13 nevertheless such root cause must be identified as a
psychological illness and its incapacitating nature explained. Expert evidence may be given qualified psychiatrist and
clinical psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must
show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not
related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to
procreate, bear and raise his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of
marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be
accepted as root causes. The illness must be shown as downright incapacity or inability, nor a refusal, neglect or
difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the
husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such
non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of
the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while
not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family
Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and
which provides:

The following are incapable of contracting marriage: Those who are unable to assume the essential
obligations of marriage due to causes of psychological nature. 14

Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of
our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decision
of such appellate tribunal. Ideally — subject to our law on evidence — what is decreed as canonically invalid should
also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous
religious interpretation is to be given persuasive effect. Here, the State and the Church — while remaining independent,
separate and apart from each other — shall walk together in synodal cadence towards the same goal of protecting
and cherishing marriage and the family as the inviolable base of the nation.

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the
state. No decision shall he handed down unless the Solicitor General issues a certification, which will be quoted in the
decision, briefly staring therein his reasons for his agreement or opposition, as the case may be, to the petition. The
Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days
from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the
equivalent function of the defensor vinculi contemplated under Canon 1095.
In the instant case and applying Leouel Santos, we have already ruled to grant the petition. Such ruling becomes even
more cogent with the use of the foregoing guidelines.

WHEREFORE, the petition is GRANTED. The assailed Decision is REVERSED and SET ASIDE. The marriage of Roridel Olaviano
to Reynaldo Molina subsists and remains valid.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Bellosillo, Melo, Puno Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.

Regalado, Kapunan and Mendoza, JJ., concurs in the result.

Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the peculiar facts of the
case. As to whether or not the psychological incapacity exists in a given case calling for annulment of a marriage,
depends crucially, more than in any field of the law, on the facts of the case. In Leouel Santos v. Court of
Appealsand Julia Rosario-Bedia Santos, G.R. No. 112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I still
maintain, that there was psychological incapacity on the part of the wife to discharge the duties of a wife in a valid
marriage. The facts of the present case, after an indepth study, do not support a similar conclusion. Obviously, each
case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own
facts. In the field of psychological incapacity as a ground for annulment of marriage, it is trite to say that no case is on
"all fours" with another case. The trial judge must take pains in examining the actual millieu and the appellate court must,
as much as possible, avoid substituting its own judgment for that of the trial court.

ROMERO, J., separate opinion:

The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial Court ruling. upheld
petitioner Solicitor General's position that "opposing and conflicting personalities" is not equivalent to psychological
incapacity, for the latter "is not simply the neglect by the parties to the marriage of their responsibilities and duties, but
a defect in their Psychological nature which renders them incapable of performing such marital responsibilities and
duties.

In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so much "psychological
incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the performance of some marital obligations. "It is not
enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they
must be shown to be incapable of doing so, due to some psychological (not physical) illness."

I would add that neither should the incapacity be the result of mental illness. For if it were due to insanity or defects in the
mental faculties short of insanity, there is a resultant defect of vice of consent, thus rendering the marriage annulable
under Art. 45 of the Family Code.

That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to exclude mental inability to
understand the essential nature of marriage and focus strictly on psychological incapacity is demonstrated in the way
the provision in question underwent revisions.

At the Committee meeting of July 26, 1986, the draft provision read:

(7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the
sufficient use of reason or judgment to understand the essential nature of marriage or was
 psychologically or mentally incapacitated to discharge the essential marital obligations, even if such
lack of incapacity is made manifest after the celebration.

The twists and turns which the ensuing discussion took finally produced the following revised provision even before the
session was over:

(7) That contracted by any party who, at the time of the celebration, was psychologically
incapacitated to discharge the essential marital obligations, even if such lack or incapacity becomes
manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any reference to "wanting in the sufficient use
of reason or judgment to understand the essential nature or marriage" and to "mentally incapacitated." It was explained
that these phrases refer to "defects in the mental faculties vitiating consent, which is not the idea . . . but lack of
appreciation of one's marital obligation." There being a defect in consent, "it is clear that it should be a ground for
voidable marriage because there is the appearance of consent and it is capable of convalidation for the simple reason
that there are lucid intervals and there are sanity is curable. . . . Psychological incapacity does not refer to mental
faculties and has nothing to do with consent; it refers to obligations attendant to
marriage."1

My own position as a member of the Committee then was that psychological incapacity is, in a sense, insanity of a lesser
degree.

As to the proposal of Justice Caguioa to use the term "psychological or mental impotence," Archbishop Oscar Cruz
opined in he earlier February 9, 1984 session that this term "is an invention of some churchmen who are moralists but not
canonists, that is why it is considered a weak phrase." He said that the Code of Canon Law would rather express it as
"psychological or mental incapacity to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may be
psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of Art. 36 is: "Such
incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or
even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex."

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is incurable" but Prof.
Esteban B. Bautista commented that this would give rise to the question of how they will determine curability and Justice
Caguioa agreed that it would be more problematic. Yet the possibility that one may be cured after the psychological
incapacity becomes manifest after the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice
Caguioa suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:

1. lack of one or more of the essential requisites of marriage as contract;

2. reasons of public policy;

3. special cases and special situations.

The ground of psychological incapacity was subsumed under "special cases and special situations," hence its
special treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling marriages that even comes
close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage which stands valid
until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are void from the
beginning.
With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters, now open to fresh winds
of change in keeping with the more permissive mores and practices of the time, took a leaf from the relatively liberal
provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting marriage: "3. (those) who,
because of causes of a psychological nature, are unable to assume the essential obligations of marriage" provided the
model for what is now Art. 36 of the Family Code: "A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only after its solemnization.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with respect to their validity:
valid and void. Civil Law, however, recognizes an intermediate state, the voidable or annullable marriages. When the
Ecclesiastical Tribunal "annuls" a marriage, it actually declares the marriage null and void, i.e., it never really existed in the
first place, for a valid sacramental marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal annulment process which entails a full
tribunal procedure with a Court selection and a formal hearing.

Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties as to capacitate the
parties to enter lawfully into another marriage. The grounds for nullifying civil marriage, not being congruent with those
laid down by Canon Law, the former being more strict, quite a number of married couples have found themselves in
limbo — freed from the marriage bonds in the eyes of the Catholic Church but yet unable to contract a valid civil
marriage under state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into live-in
relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law Revision Committee
decided to engraft the Canon Law concept of psychological incapacity into the Family Code — and classified the
same as a ground for declaring marriages void ab initio or totally in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide directly for psychological
incapacity, in effect recognized the same indirectly from a combination of three old canons: "Canon #1081 required
persons to 'be capable according to law' in order to give valid consent; Canon #1082 required that persons 'be at least
not ignorant' of the major elements required in marriage; and Canon #1087 (the force and fear category) required that
internal and external freedom be present in order for consent to be valid. This line of interpretation produced two distinct
but related grounds for annulment, called 'lack of due discretion' and 'lack of due competence.' Lack of due discretion
means that the person did not have the ability to give valid consent at the time of the weddingand therefore the union
is invalid. Lack of due competence means that the person was incapable of carrying out the obligations of the promise
he or she made during the wedding ceremony.

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual disorders such as
homosexuality and nymphomania laid the foundation for a broader approach to the kind of proof necessary for
psychological grounds for annulment. The Rota had reasoned for the first time in several cases that the capacity to give
valid consent at the time of marriage was probably not present in persons who had displayed such problems shortly
after the marriage. The nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated
a cautious willingness to use this kind of hindsight, the way was paved for what came after 1970. Diocesan Tribunals
began to accept proof of serious psychological problems that manifested themselves shortly after the ceremony as
proof of an inability to give valid consent at the time of the ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert became increasingly important
in such cases. Data about the person's entire life, both before and after the ceremony, were presented to these experts
and they were asked to give professional opinions about a party's mental at the time of the wedding. These opinions
were rarely challenged and tended to be accepted as decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness in this area did not amount to the addition of new grounds for
annulment, but rather was an accommodation by the Church to the advances made in psychology during the past
decades. There was now the expertise to provide the all-important connecting link between a marriage breakdown and
premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to that of a covenant.
The result of this was that it could no longer be assumed in annulment cases that a person who could intellectually
understand the concept of marriage could necessarily give valid consent to marry. The ability to both grasp and assume
the real obligations of a mature, lifelong commitment are now considered a necessary prerequisite to valid matrimonial
consent.2
Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to sexual anomalies but
to all kinds of personality disorders that incapacitate a spouse or both spouses from assuming or carrying out the essential
obligations of marriage. For marriage . . . is not merely cohabitation or the right of the spouses to each others' body for
heterosexual acts, but is, in its totality, the right to the community of the whole of life, i.e., the right to a developing.
lifelong relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic capacity for
marriage as presupposing the development of an adult personality; as meaning the capacity of the spouses to give
themselves to each other and to accept the other as a distinct person; that the spouses must be 'other oriented' since
the obligations of marriage are rooted in a self-giving love; and that the spouses must have the capacity for
interpersonal relationship because marriage is more than just a physical reality but involves a true intertwining of
personalities. The fulfillment of the obligations of marriage depends. according to Church decisions, on the strength of
this interpersonal relationship. A serious incapacity for interpersonal sharing and support is held to impair the relationship
and consequently, the ability to fulfill the essential marital obligations. The marital capacity of one spouse is not
considered in isolation but in reference to the fundamental relationship to the other spouse.3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital relationship:

The courts consider the following elements crucial to the marital commitment: (1) a permanent and
faithful commitment to the marriage partner; (2) openness to children and partner; (3) stability; (4)
emotional maturity; (5) financial responsibility; (6) an ability to cope with the ordinary stresses and
strains of marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions that might lead to the failure
of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion even with the best
intentions of the parties. Among the psychic factors possibly giving rise to his or her inability to fulfill
marital obligations are the following: (1) antisocial personality with its fundamental lack of loyalty to
persons or sense of moral values; (2) hyperesthesia, where the individual has no real freedom of sexual
choice; (3) the inadequate personality where personal responses consistently fallshort of reasonable
expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts whether he or she has a
case for an annulment on any other terms. A situation that does not fit into any of the more traditional
categories often fits very easily into the psychological category.

As new as the psychological grounds are, experts are already detecting a shift in their use. Whereas
originally the emphasis was on the parties' inability to exercise proper judgment at the time of the
marriage (lack of due discretion), recent cases seem to be concentrating on the parties' to assume or
carry out their responsibilities an obligations as promised (lack of due competence). An advantage to
using the ground of lack of due competence is that the at the time the marriage was entered
into civil divorce and breakup of the family almost is of someone's failure out marital responsibilities as
promisedat the time the marriage was entered into.4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered equivalent to
psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia, the Court held that the failure of
the wife to return home from the U.S. or to communicate with her husband for more then five years is not proof of her
psychological incapacity as to render the marriage a nullity.5 Therefore, Art. 36 is inapplicable and the marriages remain
valid and subsisting.

However in the recent case of Chi Ming Tsoi v. Court of Appeals,6 this Court upheld both the Regional Trial Court and the
Court of Appeals in declaring the presence of psychological incapacity on the part of the husband. Said petitioner
husband, after ten (10) months' sleeping with his wife never had coitus with her, a fact he did not deny but he alleged
that it was due to the physical disorder of his wife which, however, he failed to prove. Goaded by the indifference and
stubborn refusal of her husband to fulfill a basic marital obligation described as "to procreate children based on the
universal principle that procreation of children through sexual cooperation is the basic end of marriage," the wife
brought the action in the lower court to declare the marriage null.

The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic
Archdiocese of Manila (Branch I) on Psychological incapacity concluded:
 If a spouse, although physically capable but simply refuses to perform his or her essential marriage
obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes
to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to
psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his
or her spouse is considered a sign of psychological incapacity.

We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of
unfulfilled vows and unconsummated marital obligations, can do no less but sustain the studied judgment of respondent
appellate court.

1 concur with the majority opinion that the herein marriage remains valid and subsisting absent psychological incapacity
(under Art. 36 of the Family Code) on the part of either or both of the spouses.

VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia, and I find to be most
helpful the guidelines that he prepared for the bench and the bar in the proper appreciation of Article 36 of Executive
Order No. 209 ("The Family Code of the Philippines"). The term "psychological incapacity" was neither defined nor
exemplified by the Family Code. Thus —

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even
if such incapacity becomes manifest only after its solemnization.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which drafted the Code
explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case basis, guided by
experience, the findings of experts and researchers in psychological disciplines, and by decisions of
church tribunals which, although not binding on the civil courts, may be given persuasive effect since
the provision was taken from Canon Law.1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon Law —

Canon 1095. (The following persons) are incapable of contracting marriage; (those) —

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essential matrimonial rights
and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential obligations of marriage
—

that should give that much value to Canon Law jurisprudence as an aid to the interpretation and construction
of the statutory enactment.2

The principles in the proper application of the law teach us that the several provisions of a Code must be read like a
congruent whole. Thus, in determining the import of "psychological incapacity" under Article 36, one must also read it
along with, albeit to be taken as distinct from, the other grounds enumerated in the Code, like Articles 35, 37, 38 and 41
that would likewise, but for distinct reasons, render the marriage merely voidable, or Article 55 that could justify a petition
for legal separation. Care must be observed so that these various circumstances are not applied so indiscriminately as if
the law were indifferent on the matter.
I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals;3 viz:

(T)he use of the phrase "psychological incapacity" under Article 36 of the Code has not been meant
to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like circumstances. . . Article 36 of the Family
Code cannot be taken and construed independently of, but must stand in conjunction with, existing
precepts in our law on marriage. Thus correlated, "psychological incapacity" should refer to no less
than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to the marriage
which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help and support. There is hardly any doubt
that the intendment of the law has been to confine the meaning of "psychological incapacity" to the
most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability of
the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the
Family Code which considers children conceived prior to the judicial declaration of nullity of the void
marriage to be "legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of
unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism,
merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction,
habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become
mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code,
however, do not necessarily preclude the possibility of these various circumstances being themselves,
depending on the degree and severity of the disorder, indicia of psychological
incapacity.4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under Article 36 of the Family
Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, the psychological incapacity must relate to the inability, not mere refusal, to understand, assume end discharge
the basic marital obligations of living together, observing love, respect and fidelity and rendering mutual help and
support;

Third, the psychologic condition must exist at the time the marriage is contracted although its overt manifestations and
the marriage may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few observers would suspect,
as another form of absolute divorce or, as still others would also put it, to be a alternative to divorce; however, the fact
still remains that the language of the law has failed to carry out, even if true, any such intendment. It might have indeed
turned out for the better, if it were otherwise, there could be good reasons to doubt the constitutionality of the measure.
The fundamental law itself, no less, has laid down in terse language its unequivocal command on how the State should
regard marriage and the family, thus —

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution . . . .

Section 1, Article XV:

 Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the specific issue there resolved
but for the tone it has set. The Court there has held that constitutional provisions are to be considered mandatory unless
by necessary implication, a different intention is manifest such that to have them enforced strictly would cause more
harm than by disregarding them. It is quite clear to me that the constitutional mandate on marriage and the family has
not been meant to be simply directory in character, nor for mere expediency or convenience, but one that demands a
meaningful, not half-hearted, respect.

Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the peculiar facts of the
case. As to whether or not the psychological incapacity exists in a given case calling for annulment of a marriage,
depends crucially, more than in any field of the law, on the facts of the case. In Leouel Santos v. Court of
Appealsand Julia Rosario-Bedia Santos, G.R. No. 112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I still
maintain, that there was psychological incapacity on the part of the wife to discharge the duties of a wife in a valid
marriage. The facts of the present case, after an indepth study, do not support a similar conclusion. Obviously, each
case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own
facts. In the field of psychological incapacity as a ground for annulment of marriage, it is trite to say that no case is on
"all fours" with another case. The trial judge must take pains in examining the actual millieu and the appellate court must,
as much as possible, avoid substituting its own judgment for that of the trial court.

ROMERO, J., separate opinion:

The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial Court ruling. upheld
petitioner Solicitor General's position that "opposing and conflicting personalities" is not equivalent to psychological
incapacity, for the latter "is not simply the neglect by the parties to the marriage of their responsibilities and duties, but
a defect in their Psychological nature which renders them incapable of performing such marital responsibilities and
duties.

In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so much "psychological
incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the performance of some marital obligations. "It is not
enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they
must be shown to be incapable of doing so, due to some psychological (not physical) illness."

I would add that neither should the incapacity be the result of mental illness. For if it were due to insanity or defects in the
mental faculties short of insanity, there is a resultant defect of vice of consent, thus rendering the marriage annulable
under Art. 45 of the Family Code.

That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to exclude mental inability to
understand the essential nature of marriage and focus strictly on psychological incapacity is demonstrated in the way
the provision in question underwent revisions.

At the Committee meeting of July 26, 1986, the draft provision read:

(7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the
sufficient use of reason or judgment to understand the essential nature of marriage or was
psychologically or mentally incapacitated to discharge the essential marital obligations, even if such
lack of incapacity is made manifest after the celebration.

The twists and turns which the ensuing discussion took finally produced the following revised provision even before the
session was over:
 (7) That contracted by any party who, at the time of the celebration, was psychologically
incapacitated to discharge the essential marital obligations, even if such lack or incapacity becomes
manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any reference to "wanting in the sufficient use
of reason or judgment to understand the essential nature or marriage" and to "mentally incapacitated." It was explained
that these phrases refer to "defects in the mental faculties vitiating consent, which is not the idea . . . but lack of
appreciation of one's marital obligation." There being a defect in consent, "it is clear that it should be a ground for
voidable marriage because there is the appearance of consent and it is capable of convalidation for the simple reason
that there are lucid intervals and there are sanity is curable. . . . Psychological incapacity does not refer to mental
faculties and has nothing to do with consent; it refers to obligations attendant to
marriage."1

My own position as a member of the Committee then was that psychological incapacity is, in a sense, insanity of a lesser
degree.

As to the proposal of Justice Caguioa to use the term "psychological or mental impotence," Archbishop Oscar Cruz
opined in he earlier February 9, 1984 session that this term "is an invention of some churchmen who are moralists but not
canonists, that is why it is considered a weak phrase." He said that the Code of Canon Law would rather express it as
"psychological or mental incapacity to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may be
psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the interpretation and application of Art. 36 is: "Such
incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or
even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex."

The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is incurable" but Prof.
Esteban B. Bautista commented that this would give rise to the question of how they will determine curability and Justice
Caguioa agreed that it would be more problematic. Yet the possibility that one may be cured after the psychological
incapacity becomes manifest after the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice
Caguioa suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void marriages, viz:

1. lack of one or more of the essential requisites of marriage as contract;

2. reasons of public policy;

3. special cases and special situations.

The ground of psychological incapacity was subsumed under "special cases and special situations," hence its
special treatment in Art. 36 in the Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling marriages that even comes
close to being psychological in nature.

Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage which stands valid
until annulled is capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential requisites, some marriages are void from the
beginning.

With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters, now open to fresh winds
of change in keeping with the more permissive mores and practices of the time, took a leaf from the relatively liberal
provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting marriage: "3. (those) who,
because of causes of a psychological nature, are unable to assume the essential obligations of marriage" provided the
model for what is now Art. 36 of the Family Code: "A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only after its solemnization.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with respect to their validity:
valid and void. Civil Law, however, recognizes an intermediate state, the voidable or annullable marriages. When the
Ecclesiastical Tribunal "annuls" a marriage, it actually declares the marriage null and void, i.e., it never really existed in the
first place, for a valid sacramental marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal annulment process which entails a full
tribunal procedure with a Court selection and a formal hearing.

Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties as to capacitate the
parties to enter lawfully into another marriage. The grounds for nullifying civil marriage, not being congruent with those
laid down by Canon Law, the former being more strict, quite a number of married couples have found themselves in
limbo — freed from the marriage bonds in the eyes of the Catholic Church but yet unable to contract a valid civil
marriage under state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into live-in
relationships.

It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law Revision Committee
decided to engraft the Canon Law concept of psychological incapacity into the Family Code — and classified the
same as a ground for declaring marriages void ab initio or totally in existent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide directly for psychological
incapacity, in effect recognized the same indirectly from a combination of three old canons: "Canon #1081 required
persons to 'be capable according to law' in order to give valid consent; Canon #1082 required that persons 'be at least
not ignorant' of the major elements required in marriage; and Canon #1087 (the force and fear category) required that
internal and external freedom be present in order for consent to be valid. This line of interpretation produced two distinct
but related grounds for annulment, called 'lack of due discretion' and 'lack of due competence.' Lack of due discretion
means that the person did not have the ability to give valid consent at the time of the weddingand therefore the union
is invalid. Lack of due competence means that the person was incapable of carrying out the obligations of the promise
he or she made during the wedding ceremony.

"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual disorders such as
homosexuality and nymphomania laid the foundation for a broader approach to the kind of proof necessary for
psychological grounds for annulment. The Rota had reasoned for the first time in several cases that the capacity to give
valid consent at the time of marriage was probably not present in persons who had displayed such problems shortly
after the marriage. The nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated
a cautious willingness to use this kind of hindsight, the way was paved for what came after 1970. Diocesan Tribunals
began to accept proof of serious psychological problems that manifested themselves shortly after the ceremony as
proof of an inability to give valid consent at the time of the ceremony.

Furthermore, and equally significant, the professional opinion of a psychological expert became increasingly important
in such cases. Data about the person's entire life, both before and after the ceremony, were presented to these experts
and they were asked to give professional opinions about a party's mental at the time of the wedding. These opinions
were rarely challenged and tended to be accepted as decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness in this area did not amount to the addition of new grounds for
annulment, but rather was an accommodation by the Church to the advances made in psychology during the past
decades. There was now the expertise to provide the all-important connecting link between a marriage breakdown and
premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to that of a covenant.
The result of this was that it could no longer be assumed in annulment cases that a person who could intellectually
understand the concept of marriage could necessarily give valid consent to marry. The ability to both grasp and assume
the real obligations of a mature, lifelong commitment are now considered a necessary prerequisite to valid matrimonial
consent.2

Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to sexual anomalies but
to all kinds of personality disorders that incapacitate a spouse or both spouses from assuming or carrying out the essential
obligations of marriage. For marriage . . . is not merely cohabitation or the right of the spouses to each others' body for
heterosexual acts, but is, in its totality, the right to the community of the whole of life, i.e., the right to a developing.
lifelong relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic capacity for
marriage as presupposing the development of an adult personality; as meaning the capacity of the spouses to give
themselves to each other and to accept the other as a distinct person; that the spouses must be 'other oriented' since
the obligations of marriage are rooted in a self-giving love; and that the spouses must have the capacity for
interpersonal relationship because marriage is more than just a physical reality but involves a true intertwining of
personalities. The fulfillment of the obligations of marriage depends. according to Church decisions, on the strength of
this interpersonal relationship. A serious incapacity for interpersonal sharing and support is held to impair the relationship
and consequently, the ability to fulfill the essential marital obligations. The marital capacity of one spouse is not
considered in isolation but in reference to the fundamental relationship to the other spouse.3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital relationship:

The courts consider the following elements crucial to the marital commitment: (1) a permanent and
faithful commitment to the marriage partner; (2) openness to children and partner; (3) stability; (4)
emotional maturity; (5) financial responsibility; (6) an ability to cope with the ordinary stresses and
strains of marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions that might lead to the failure
of a marriage:

At stake is a type of constitutional impairment precluding conjugal communion even with the best
intentions of the parties. Among the psychic factors possibly giving rise to his or her inability to fulfill
marital obligations are the following: (1) antisocial personality with its fundamental lack of loyalty to
persons or sense of moral values; (2) hyperesthesia, where the individual has no real freedom of sexual
choice; (3) the inadequate personality where personal responses consistently fallshort of reasonable
expectations.

xxx xxx xxx

The psychological grounds are the best approach for anyone who doubts whether he or she has a
case for an annulment on any other terms. A situation that does not fit into any of the more traditional
categories often fits very easily into the psychological category.

As new as the psychological grounds are, experts are already detecting a shift in their use. Whereas
originally the emphasis was on the parties' inability to exercise proper judgment at the time of the
marriage (lack of due discretion), recent cases seem to be concentrating on the parties' to assume or
carry out their responsibilities an obligations as promised (lack of due competence). An advantage to
using the ground of lack of due competence is that the at the time the marriage was entered
into civil divorce and breakup of the family almost is of someone's failure out marital responsibilities as
promisedat the time the marriage was entered into.4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered equivalent to
psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia, the Court held that the failure of
the wife to return home from the U.S. or to communicate with her husband for more then five years is not proof of her
psychological incapacity as to render the marriage a nullity.5 Therefore, Art. 36 is inapplicable and the marriages remain
valid and subsisting.

However in the recent case of Chi Ming Tsoi v. Court of Appeals,6 this Court upheld both the Regional Trial Court and the
Court of Appeals in declaring the presence of psychological incapacity on the part of the husband. Said petitioner
husband, after ten (10) months' sleeping with his wife never had coitus with her, a fact he did not deny but he alleged
that it was due to the physical disorder of his wife which, however, he failed to prove. Goaded by the indifference and
stubborn refusal of her husband to fulfill a basic marital obligation described as "to procreate children based on the
universal principle that procreation of children through sexual cooperation is the basic end of marriage," the wife
brought the action in the lower court to declare the marriage null.

The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic
Archdiocese of Manila (Branch I) on Psychological incapacity concluded:

If a spouse, although physically capable but simply refuses to perform his or her essential marriage
obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes
to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to
psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his
or her spouse is considered a sign of psychological incapacity.
We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of
unfulfilled vows and unconsummated marital obligations, can do no less but sustain the studied judgment of respondent
appellate court.

1 concur with the majority opinion that the herein marriage remains valid and subsisting absent psychological incapacity
(under Art. 36 of the Family Code) on the part of either or both of the spouses.

VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia, and I find to be most
helpful the guidelines that he prepared for the bench and the bar in the proper appreciation of Article 36 of Executive
Order No. 209 ("The Family Code of the Philippines"). The term "psychological incapacity" was neither defined nor
exemplified by the Family Code. Thus —

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even
if such incapacity becomes manifest only after its solemnization.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which drafted the Code
explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case basis, guided by
experience, the findings of experts and researchers in psychological disciplines, and by decisions of
church tribunals which, although not binding on the civil courts, may be given persuasive effect since
the provision was taken from Canon Law.1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon Law —

Canon 1095. (The following persons) are incapable of contracting marriage; (those) —

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essential matrimonial rights
and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential obligations of marriage
—

that should give that much value to Canon Law jurisprudence as an aid to the interpretation and construction
of the statutory enactment.2

The principles in the proper application of the law teach us that the several provisions of a Code must be read like a
congruent whole. Thus, in determining the import of "psychological incapacity" under Article 36, one must also read it
along with, albeit to be taken as distinct from, the other grounds enumerated in the Code, like Articles 35, 37, 38 and 41
that would likewise, but for distinct reasons, render the marriage merely voidable, or Article 55 that could justify a petition
for legal separation. Care must be observed so that these various circumstances are not applied so indiscriminately as if
the law were indifferent on the matter.

I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals;3 viz:

(T)he use of the phrase "psychological incapacity" under Article 36 of the Code has not been meant
to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like circumstances. . . Article 36 of the Family
Code cannot be taken and construed independently of, but must stand in conjunction with, existing
 precepts in our law on marriage. Thus correlated, "psychological incapacity" should refer to no less
than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to the marriage
which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help and support. There is hardly any doubt
that the intendment of the law has been to confine the meaning of "psychological incapacity" to the
most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability of
the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the
Family Code which considers children conceived prior to the judicial declaration of nullity of the void
marriage to be "legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of
unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism,
merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction,
habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become
mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code,
however, do not necessarily preclude the possibility of these various circumstances being themselves,
depending on the degree and severity of the disorder, indicia of psychological
incapacity.4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under Article 36 of the Family
Code, must be able to pass the following tests; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, the psychological incapacity must relate to the inability, not mere refusal, to understand, assume end discharge
the basic marital obligations of living together, observing love, respect and fidelity and rendering mutual help and
support;

Third, the psychologic condition must exist at the time the marriage is contracted although its overt manifestations and
the marriage may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few observers would suspect,
as another form of absolute divorce or, as still others would also put it, to be a alternative to divorce; however, the fact
still remains that the language of the law has failed to carry out, even if true, any such intendment. It might have indeed
turned out for the better, if it were otherwise, there could be good reasons to doubt the constitutionality of the measure.
The fundamental law itself, no less, has laid down in terse language its unequivocal command on how the State should
regard marriage and the family, thus —

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution . . . .

Section 1, Article XV:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the specific issue there resolved
but for the tone it has set. The Court there has held that constitutional provisions are to be considered mandatory unless
by necessary implication, a different intention is manifest such that to have them enforced strictly would cause more
harm than by disregarding them. It is quite clear to me that the constitutional mandate on marriage and the family has
not been meant to be simply directory in character, nor for mere expediency or convenience, but one that demands a
meaningful, not half-hearted, respect.

Footnotes

1 Rollo pp. 25-33.

2 Sixteenth Division composed of J., Segundino G. Chua, ponente and chairman JJ., Serafin V.C.
Guingona and Ricardo P. Galvez, concurring.

3 Presided by Judge Heilia S. Mallare-Phillipps.

4 Solemnized by Fr. Jesus C. Encinas.

5 The Court of Appeals reproduced in its Decision a substantial portion of the RTC Decision is follows:

"To sustain her claim that respondent is psychologically incapacitated to comply with his marital
obligations, petitioner testified that he is immature, irresponsible, dependent, disrespectful, arrogant, a
chronic liar, and an infidel. These characteristics of respondent are based on petitioner's testimony
that the former failed to be gainfully employed after he was relieved from the office of the
Government Corporate Counsel sometime in February, 1986. leaving petitioner as the sole
breadwinner of the family. Also when they were separated in fact, respondent practically
abandoned both petitioner-mother and son except during the first few months of separation when
respondent regularly visited his son and gave him a monthly allowance of P1,000.00 for about two to
four months. Respondent is likewise dependent on his parents for financial aid and support as he has
no savings, preferring to spend his money with his friends and peers. A year after their marriage,
respondent informed petitioner that he bought a house and lot at BF Homes, Parañaque for about a
million pesos. They then transferred there only for the petitioner to discover a few months later that
they were actually renting the house with the respondent's parents responsible for the payment of the
rentals. Aside from this. respondent would also lie about his salary and ability. And that at present,
respondent is living with his mistress and their child. which fact he does not deny.

It is unfortunate that the marriage between petitioner and respondent turned sour if we look at the
background of their relationship. During their college days, when they were still going steady,
respondent observed petitioner to be conservative, homely, and intelligent causing him to believe
then that she would make an ideal wife and mother. Likewise, petitioner fell in love with respondent
because of his thoughtfulness and gentleness. After a year, however, they decided to break their
relationship because of some differences in their personalities. Almost five (5) years later, while they
were working in Manila, petitioner and respondent rekindled their love affair. They became very close
and petitioner was glad to observe a more mature respondent. Believing that they know each other
much better after two years of going steady, they decided to settle down and get married. It would
seem. therefore, that petitioner and respondent knew each other well and were then prepared for
married life.

During their marriage, however, the true personalities of the parties cropped-up and dominated their
life together. Unexpectedly on both their parts, petitioner and respondent failed to respond properly
to the situation. This failure resulted in their frequent arguments and fighting's. In fact, even with the
intervention and help of their parents who arranged for their possible reconciliation, the parties could
not come to terms.

It seems clear at this stage that the marriage between the parties broke-up because of their opposing
and conflicting personalities (sic). Neither of them can accept and understand the weakness of the
other. No one gives in and instead, blame each other for whatever problem or misunderstanding/s
they encounter. In fine, respondent cannot be solely responsible for the failure of other (sic) marriage.
Rather, this resulted because both parties cannot relate to each other as husband and wife which is
unique and requisite in marriage.

Marriage is a special contract of permanent union between a man and a woman with the basic
objective of establishing a conjugal and family life. (Article 1, Family Code). The unique element of
permanency of union signifies a continuing, developing, and lifelong relationship between the parties.
Towards this end, the parties must fully understand and accept the (implications and consequences
of being permanently) united in marriage. And the maintenance of this relationship demands from
the parties, among others, determination to succeed in their marriage as well as heartfelt
understanding, acceptance, cooperation, and support for each other. Thus, the Family Code requires
them to live together, to observe mutual (love, respect and fidelity, and render mutual help and
support. Failure to observe) and perform these fundamental roles of a husband and a wife will most
likely lead to the break-up of the marriage. Such is the unfortunate situation in this case. (Decision, pp.
5-8; Original Records, pp. 70-73).

6 240 SCRA 20, 34, January 4, 1995.

7 Quoted from Justice Alicia Sempio-Diy, Handbook on the Family Code, First Edition, 1988.

8 TSN, April 6, 1991, p. 5.

9 The National Appellate Matrimonial Tribunal reviews all decisions of the marriage tribunals of each
archdiocese in the country. Aside from heading the Appellate Tribunal, Most. Rev. Cruz is also
incumbent president of the Catholic Bishops' Conference of the Philippines, Archbishop of Dagupan-
Lingayen, and holds the degrees of Doctor of Canon Law and Doctor of Divinity. Archbishop Cruz was
also Secretary-General of the Second Plenary Council of the Philippines — PCP II — held from January
20, 1991 to February 17, 1991, which is the rough equivalent of a parliament or a constitutional
convention in the Philippine Church, and where the ponente, who was a Council member, had the
privilege of being overwhelmed by his keen mind and prayerful discernments.

10 Justice Puno was a former member of the Court of Appeals, retired Minister of Justice, author,
noted civil law professor and the law practitioner.

Article XV

THE FAMILY

Sec. 1. The State recognizes the Filipino Family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development.

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the state.

Sec. 3. The State shall defend:

(1) The right of spouses to found a family in accordance with their religious connections and the
demands of responsible parenthood;

(2) The right of children to assistance, including proper care and nutrition, and special protection from
all forms of neglect, abuse, cruelty. exploitation, and other conditions prejudicial to their
development;

(3) The right of the family to a family living wage and income;

(4) The right of families or family associations to participate in the planning and implementation of
policies and programs that affect them.

Sec. 4. The family has the duty to care for its elderly members but the state may also do so through just
programs of social security.

Art. 1 Marriage is a special contract of permanent union between a man and a woman entered into
in accordance with law for the establishment of conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature, consequences, and incidents are governed
by law and not subject to stipulation, except that marriage settlements may fix the property relations
during the marriage within the limits provided by this Code.
 13 Salita vs. Magtolis, 233 SCRA 100, June 13, 1994.

14 This text is taken from the Memorandum of Archbishop Cruz. On the other hand, the text used in
Santos v. CA reads:

"Canon 1095. They are incapable of contracting marriage:

xxx xxx xxx

3. Who for causes of psychological nature are unable to assume the essential obligations of marriage.

The difference in wording between this and that in Arch. Cruz's Memorandum is due to the fact that
the original Canon is written in Latin and both versions are differently-worded English translations.

ROMERO, J., separate opinion:

1 Justice Caguioa's explanation in the Minutes of July 26, 1986 of the Civil Code Revision Committee of
the U.P. Law Center.

2 Zwack , Joseph P. Annulment, A Step-by-Step Guide.

3 The Code of Canon Law, A Text and Commentary, The Canon Law Society of America, Paulist Press,
New York, 1985.

4 Zwack, ibid., p. 47.

5 G.R. No. 112019, 240 SCRA 20 (1995).

6 G.R. No. 119190 (1997).

VITUG, J., concurring:

1 Mr. Justice Josue N. Bellosillo, quoting Mme. Justice Alicia V. Sempio-Diy, In Salita vs. Hon. Magtolis,
233 SCRA 100.

2 In Santos vs. Court Appeals, 240 SCRA 20.

3 Supra.

4 At pages 34-35.

THIRD DIVISION

[G.R. No. 143376. November 26, 2002]

LENI O. CHOA, petitioner, vs. ALFONSO C. CHOA, respondent.

DECISION

PANGANIBAN, J.:
 Though interlocutory in character, an order denying a demurrer to evidence may be the subject of a certiorari
proceeding, provided the petitioner can show that it was issued with grave abuse of discretion; and that appeal in due
course is not plain, adequate or speedy under the circumstances. Indeed, when the plaintiffs evidence is utterly and
patently insufficient to prove the complaint, it would be capricious for a trial judge to deny the demurrer and to require the
defendant to present evidence to controvert a nonexisting case. Verily, the denial constitutes an unwelcome imposition
on the courts docket and an assault on the defendants resources and peace of mind. In short, such denial needlessly
delays and, thus, effectively denies justice.

The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the March 16, 2000
Decision[1] and the May 22, 2000 Resolution[2] of the Court of Appeals (CA) in CA-GR SP No. 53100. The decretal portion of
the Decision reads as follows:

WHEREFORE, the instant Petition is hereby DISMISSED for lack of merit.[3]

The assailed Resolution denied petitioners Motion for Reconsideration.[4]

The Facts

Petitioner and respondent were married on March 15, 1981. Out of this union, two children were born, Cheryl Lynne
and Albryan. On October 27, 1993, respondent filed before the Regional Trial Court (RTC) of Negros Occidental, Branch
51, a Complaint[5] for the annulment of his marriage to petitioner. The Complaint was docketed as Civil Case No. 93-
8098. Afterwards he filed an Amended Complaint[6] dated November 8, 1993 for the declaration of nullity of his marriage
to petitioner based on her alleged psychological incapacity.

The case went to trial with respondent presenting his evidence in chief. After his last witness testified, he submitted
his Formal Offer of Exhibits[7] dated February 20, 1998. Instead of offering any objection to it, petitioner filed a Motion to
Dismiss (Demurrer to Evidence)[8] dated May 11, 1998. The lower court then allowed a number of pleadings to be filed
thereafter.

Finally, the RTC issued its December 2, 1998 Order[9] denying petitioners Demurrer to Evidence. It held that
[respondent] established a quantum of evidence that the [petitioner] must controvert.[10] After her Motion for
Reconsideration[11] was denied in the March 22, 1999 Order,[12] petitioner elevated the case to the CA by way of a Petition
for Certiorari,[13] docketed as CA-GR No. 53100.

Ruling of the Court of Appeals

The CA held that the denial of the demurrer was merely interlocutory; hence, certiorari under Rule 65 of the Rules of
Court was not available. The proper remedy was for the defense to present evidence; and if an unfavorable decision was
handed down later, to take an appeal therefrom.[14] In any event, no grave abuse of discretion was committed by
respondent judge in issuing the assailed Orders.[15]

The CA also ruled that the propriety of granting or denying a demurrer to evidence rests on the sound exercise of
the [trial] courts discretion.[16] Further, the [p]etitioner failed to show that the issues in the court below [had] been resolved
arbitrarily or without basis.[17]

Hence, this Petition.[18]

The Issues

In her Memorandum,[19] petitioner submits the following issues for our consideration:
1) Upon the denial of petitioners demurrer to evidence under Rule 33 of the 1997 Rules of Civil Procedure, is she under
obligation, as a matter of inflexible rule, as what the Court of Appeals required of her, to present her evidence, and
when an unfavorable [verdict] is handed down, appeal therefrom in the manner authorized by law, despite the
palpably and patently weak and grossly insufficient or so inadequate evidence of the private respondent as plaintiff in
the annulment of marriage case, grounded on psychological incapacity under Art. 36 of The Family Code? Or under
such circumstances, can the extraordinary remedy of certiorari be directly and immediately resorted to by the
petitioner; and

2) In upholding the lower courts denial of petitioners demurrer to evidence, did the Court of Appeals wantonly violate,
ignore or disregard in a whimsical manner the doctrinal pronouncements of this Court in Molina (G.R. No. 108763,
February 13, 1997, 268 SCRA 198) and Santos (G.R. No. 112019, January 14, 1995, 58 SCRA 17)?[20]

Simply stated, the issues are: (1) is certiorari available to correct an order denying a demurrer to evidence? and (2)
in its denial, did the RTC commit grave abuse of discretion by violating or ignoring the applicable law and jurisprudence?

The Courts Ruling

The Petition is meritorious.

First Issue:
Resort to Certiorari

Petitioner argues that the RTC denied her Demurrer to Evidence despite the patent weakness and gross insufficiency
of respondents evidence. Thus, she was entitled to the immediate recourse of the extraordinary remedy of
certiorari. Echoing the CA, respondent counters that appeal in due course, not certiorari, is the proper remedy.

We clarify. In general, interlocutory orders are neither appealable nor subject to certiorari proceedings.

However, this rule is not absolute. In Tadeo v. People,[21] this Court declared that appeal -- not certiorari -- in due time
was indeed the proper remedy, provided there was no grave abuse of discretion or excess of jurisdiction or oppressive
exercise of judicial authority.

In fact, Rules 41 and 65 of the Rules of Court expressly recognize this exception and allow certiorari when the lower
court acts with grave abuse of discretion in the issuance of an interlocutory order. Rule 41 provides:

No appeal may be taken from:

xxxxxxxxx

(c) An interlocutory order;

xxxxxxxxx

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65. [22]

In turn, Section 1 of Rule 65 reads as follows:

SEC. 1. Petition for certiorari -- When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as
law and justice may require.[23]
 Thus, a denial of a demurrer that is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction
may be assailed through a petition for certiorari.[24] In Cruz v. People, this exception was stressed by the Court in this wise:

Admittedly, the general rule that the extraordinary writ of certiorari is not available to challenge interlocutory orders of
the trial court may be subject to exceptions. When the assailed interlocutory orders are patently erroneous or issued with
grave abuse of discretion, the remedy of certiorari lies.[25]

Second Issue:
Denial of Demurrer to Evidence

Having established that a writ of certiorari may be issued in exceptional circumstances, this Court is now tasked to
determine whether the present case falls under the exception; that is, whether the RTC indeed committed a patent error
or grave abuse of discretion in denying petitioners Demurrer to Evidence.

A demurrer to evidence is defined as an objection or exception by one of the parties in an action at law, to the
effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his
case or sustain the issue.[26] The demurrer challenges the sufficiency of the plaintiffs evidence to sustain a verdict.[27] In
passing upon the sufficiency of the evidence raised in a demurrer, the court is merely required to ascertain whether there
is competent or sufficient proof to sustain the indictment or to support a verdict of guilt.[28]

We have thoroughly reviewed the records of the present case, and we are convinced that the evidence against
respondent (herein petitioner) is grossly insufficient to support any finding of psychological incapacity that would warrant
a declaration of nullity of the parties marriage.

First. Respondent claims that the filing by petitioner of a series of charges against him are proof of the latters
psychological incapacity to comply with the essential obligations of marriage. These charges included Complaints for
perjury,[29] false testimony,[30] concubinage[31] and deportation.[32] According to him, the filing and the prosecution of these
cases clearly showed that his wife (herein petitioner) wanted not only to put him behind bars, but also to banish him from
the country. He contends that this is very abnormal for a wife who, instead of protecting the name and integrity of her
husband as the father of her children, had acted to the contrary.[33]

We do not agree. The documents presented by respondent during the trial do not in any way show the alleged
psychological incapacity of his wife. It is the height of absurdity and inequity to condemn her as psychologically
incapacitated to fulfill her marital obligations, simply because she filed cases against him. The evidence presented, even
if taken as true, merely establishes the prosecution of the cases against him. To rule that the filings are sufficient to establish
her psychological incapacity is not only totally erroneous, but also grave abuse of discretion bordering on absurdity.

Second. Neither is the testimony of respondent, taken by itself or in conjunction with his documentary offerings,
sufficient to prove petitioners alleged psychological incapacity. He testified in these words:

Q Will you please tell us or explain to the Court what do you mean by psychologically incapacitated to comply
with the essential obligations of marriage. What do you mean by that?

A Because before our marriage she was already on the family way, so at that time she even want it aborted
by taking pills. She was even immature, carefree, and she lacked the intention of procreative sexuality.[34]

xxxxxxxxx

ATTY. CHUA:

And you consider her that she was carefree, she is psychologically incapacitated? Will you please
elaborate on this what you mean by carefree approximating psychologically incapacitated?

ATTY. MIRANO:

I think we better ask the witness what he means by carefree.

ATTY. CHUA:

Okay.

COURT:

Witness may answer.

WITNESS:
 She does not help in the household chores, she does not take care of the child, she wants me to hire an
attendant in order to take care of the child. Even when the children were sick she does not bother to let
the children see a doctor.[35]

xxxxxxxxx

STENOGRAPHER (reads back the question of Atty. Chua):

ATTY. CHUA:

Now. From the time of courtship up to the time of your marriage to the defendant, did you notice any
characteristic or traits which you consider as psychological incapacity?

WITNESS:

Sometimes when I cannot visit at her house she gets mad at me, and she wont talk to me when I call her
up by telephone. So, all she wanted for me to visit her everytime and even at the time when I am busy
with some other things. So, I think that is all.[36]

Even if taken as true, the testimony of respondent basically complains about three aspects of petitioners personality;
namely, her alleged (1) lack of attention to their children, (2) immaturity and (3) lack of an intention of procreative
sexuality. None of these three, singly or collectively, constitutes psychological incapacity. Far from it.

In Santos v. CA,[37] this Court clearly explained that psychological incapacity must be characterized by (a) gravity,
(b) juridical antecedence and (c) incurability.[38] Said the Court:

It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the deliberations of the
Family Code Revision Committee itself, that the use of the phrase psychological incapacity under Article 36 of the Code
has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio Baluma's Void and
Voidable Marriages in the Family Code and their Parallels in Canon Law, quoting from the Diagnostic Statistical Manual
of Mental Disorder by the American Psychiatric Association; Edward Hudson's Handbook II for Marriage Nullity Cases).
Article 36 of the Family Code cannot be taken and construed independently of but must stand in conjunction with,
existing precepts in our law on marriage. Thus correlated, psychological incapacity should refer to no less than a mental
(not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly
must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family
Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support.
There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity
to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning
and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated.[39]

Furthermore, in Republic v. Molina,[40] we ruled that the psychological incapacity must be more than just a difficulty,
a refusal or a neglect in the performance of some marital obligations. We stressed that a mere showing of irreconcilable
differences and conflicting personalities in no wise constitutes psychological incapacity.

In the case at bar, the evidence adduced by respondent merely shows that he and his wife could not get along
with each other. There was absolutely no showing of the gravity or juridical antecedence or incurability of the problems
besetting their marital union.

Sorely lacking in respondents evidence is proof that the psychological incapacity was grave enough to bring about
the disability of a party to assume the essential obligations of marriage. In Molina, we affirmed that mild characterological
peculiarities, mood changes and occasional emotional outbursts cannot be accepted as root causes of psychological
incapacity. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill
will. In other words, there should be a natal or supervening disabling factor in the person, an adverse integral element in
the personality structure that effectively incapacitates the person from really accepting and thereby complying with the
obligations essential to marriage.[41]

Respondents pious peroration that petitioner lacked the intention of procreative sexuality is easily belied by the fact
that two children were born during their union. Moreover, there is absolutely no showing that the alleged defect was
already existing at the time of the celebration of the marriage.

Third. Most telling is the insufficiency, if not incompetency, of the supposed expert testimony presented by
respondent. His witness, Dr. Antonio M. Gauzon, utterly failed to identify and prove the root cause of the alleged
psychological incapacity. Specifically, his testimony did not show that the incapacity, if true, was medically or clinically
permanent or incurable. Neither did he testify that it was grave enough to bring about the disability of the party to assume
the essential obligations of marriage. The pertinent portions of his testimony are quoted thus:

ATTY. CHUA:
 And then finally and ultimately you reached the conclusion that both parties, meaning the husband and
the wife in the present case have a personality which is normal. That is your conclusion?

WITNESS:

They are normal, but they cannot mix together.

Q. So as a general proposition, both of them are of normal personality, only that they are not compatible with
each other?

A. Yes.

Q. And by normal personality, you mean that neither of them suffer from any personality disorder, bordering on
abnormality?

A. Yes.

Q. But Doctor, is not a fact or a fact of life, that no couple could be or are perfectly match?

A. Precisely, if there is a problem, marital problem, there should be somebody who knows how to handle
marriage, that should try to intervene.

Q. You mean expert advise or services should be needed by the couple?

A. Yes.

Q. Now, if the couple are mature enough and each of them practises what we call maximum tolerance and
give and take, will that serve the purpose?

A. That would served the purpose of getting well.

Q. Yes?

A. Yes.

Q. Meaning to say that the incompatibility could be harmonized?

A. Yes, because they are supposedly normal, but both of them are personally disordered. It cannot be
harmonized. So this case, if only they have tried professional help to take care of their marital problem, it
could have been solved.

Q. Or the situation could have been remedied?

A. Yes. But I would like to say that it must be somebody who is an expert. Not just any from Tom, Dick and Harry
could handle this. That means from the very beginning they have personalities which they were
incompatible. So if anybody would handle that, they will not mix, they will be always quarreling with each
other. They should not have got married.[42]

xxxxxxxxx

Q. Yes. So in this present case, your expert opinion was sought by the plaintiff, and you found out that both are
normal?

A. With different personalities. So that they were incompatible.

Q. Normal, simply incompatible.

A. Yes, with personalities different from each other, which I mentioned there in my last page. That they are like
oil and water, immiscible. Like oil and water, they will not mix.

Q. You also mentioned that the plaintiff. Meaning to say the husband told you about the frequent quarrels had
with the wife. Did he ever tell you that was a serious or major quarrel?

A. Actually there was no major quarrel. It was all petty quarrels.[43]

xxxxxxxxx

Q. So the problem of this couple is fundamentally a conflicting personalities?

A. Yes.[44]

xxxxxxxxx

Q. Now, you mentioned that you maybe able to make them reconcile?
 A. Yes.

Q. You mean that given the time and opportunity, things could be worked out?

A. Yes.

Q. You mean reconciliation at this stage with expert services, and the advise of those who possess the
necessary [expertise] could be worked out?

A. Yes, as I said it can be done by therapy. Family therapy.[45]

xxxxxxxxx

Q. Doctor, you draw your conclusion that there is psychological inc[a]pacity existing in this case?

A. Yes.

Q. Because of the

A. The incompatibility.

Q. Incompatibility.

A. Yes.[46]

His testimony established merely that the spouses had an incompatibility, a defect that could possibly be treated or
alleviated through psychotherapy. We need not expound further on the patent insufficiency of the expert testimony to
establish the psychological incapacity of petitioner.

Furthermore, the assessment of petitioner by Dr. Gauzon was based merely on descriptions communicated to him
by respondent. The doctor never conducted any psychological examination of her. Neither did he ever claim to have
done so. In fact, his Professional Opinion[47] began with the statement [I]f what Alfonso Choa said about his wife Leni is true,
x x x.[48] The expert witness testified thus:

ATTY. CHUA

Q Doctor, in this professional opinion of yours, you gathered most of your material data from the plaintiff who is
the husband?

WITNESS

A Yes. By the way, I requested the husband Alfonso, if it was possible for me to interview Leni, and he said, he
doesnt know.

ATTY. CHUA

Q He doesnt know. Now, Doctor if we were to request you to conduct the same personal interview and written
psychological examination on the part of the wife, [w]ould you be willing to do that?

WITNESS

A Sure for a fee. I maybe able to make them reconcile.[49]

Obviously, Dr. Gauzon had no personal knowledge of the facts he testified to, as these had merely been relayed to
him by respondent. The former was working on pure suppositions and secondhand information fed to him by one
side. Consequently, his testimony can be dismissed as unscientific and unreliable.

Dr. Gauzon tried to save his credibility by asserting that he was able to assess petitioners character, not only through
the descriptions given by respondent, but also through the formers at least fifteen hours[50] of study of the voluminous
transcript of records of this case. Even if it took the good doctor a whole day or a whole week to examine the records of
this case, we still find his assessment of petitioners psychological state sorely insufficient and methodologically flawed.

As to respondents argument -- that because Dr. Gauzons testimony had never been objected to, the objection
raised thereafter was deemed waived -- the Supreme Court has already ruled on the matter. It held that although the
question of admissibility of evidence could not be raised for the first time on appeal, hearsay or unreliable evidence should
be disregarded whether objected to or not, because it has no probative value.[51]

We are, of course, mindful of the ruling that a medical examination is not a conditio sine qua non to a finding of
psychological incapacity, so long as the totality of evidence presented is enough to establish the incapacity
adequately.[52] Here, however, the totality of evidence presented by respondent was completely insufficient to sustain a
finding of psychological incapacity -- more so without any medical, psychiatric or psychological examination.
 The trial court should have carefully studied and assessed the evidence presented by respondent and taken into
account the prevailing jurisprudence on the matter. It could then have easily concluded, as we conclude now, that it was
useless to proceed further with the tedious process of hearing contravening proof. His evidence was obviously, grossly and
clearly insufficient to support a declaration of nullity of marriage based on psychological incapacity. Withal, it was grave
abuse of discretion for the RTC to deny the Demurrer and to violate or ignore this Courts rulings in point. Indeed, continuing
the process of litigation would have been a total waste of time and money for the parties and an unwelcome imposition
on the trial courts docket.

We have already ruled that grave abuse of discretion may arise when a lower court or tribunal violates or
contravenes the Constitution, the law or existing jurisprudence.[53]Any decision, order or resolution of a lower court
tantamount to overruling a judicial pronouncement of the highest Court is unmistakably a very grave abuse of
discretion.[54]

There is no reason to believe that an appeal would prove to be a plain, speedy or adequate remedy in the case at
bar. An appeal would not promptly relieve petitioner from the injurious effects of the patently mistaken Orders maintaining
the baseless action of respondent. It would only compel her to go needlessly through a protracted trial, which would
further clog the court dockets with another futile case.[55]

WHEREFORE, the Petition is hereby GRANTED and the assailed CA Decision REVERSED and SET ASIDE. Respondents
Demurrer to Evidence is GRANTED, and the case for declaration of nullity of marriage based on the alleged psychological
incapacity of petitioner is DISMISSED. No pronouncement as to costs.

SO ORDERED.

Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

Puno, (Chairman), J., abroad on official leave.

FIRST DIVISION

[G.R. No. 130087. September 24, 2003]

DIANA M. BARCELONA, petitioner, vs. COURT OF APPEALS and TADEO R. BENGZON, respondents.

DECISION

CARPIO, J.:

The Case

The Petition for Review before us assails the 30 May 1997 Decision[1] as well as the 7 August 1997 Resolution of the
Court of Appeals in CA-G.R. SP No. 43393. The Court of Appeals affirmed the Order[2] dated 21 January 1997 of the
Regional Trial Court of Quezon City, Branch 106, in Civil Case No. Q-95-24471. The Regional Trial Court refused to dismiss
private respondents Petition for Annulment of Marriage for failure to state a cause of action and for violation of Supreme
Court Administrative Circular No. 04-94. The assailed Resolution denied petitioners motion for reconsideration.

The Facts

On 29 March 1995, private respondent Tadeo R. Bengzon (respondent Tadeo) filed a Petition for Annulment of
Marriage against petitioner Diana M. Barcelona (petitioner Diana). The case was docketed as Civil Case No. Q-95-23445
(first petition) before the Regional Trial Court of Quezon City, Branch 87.[3] On 9 May 1995, respondent Tadeo filed a Motion
to Withdraw Petition which the trial court granted in its Order dated 7 June 1995.
 On 21 July 1995, respondent Tadeo filed anew a Petition for Annulment of Marriage against petitioner Diana. This
time, the case was docketed as Civil Case No. Q-95-24471 (second petition) before the Regional Trial Court of Quezon
City, Branch 106 (trial court).

Petitioner Diana filed a Motion to Dismiss the second petition on two grounds. First, the second petition fails to state
a cause of action. Second, it violates Supreme Court Administrative Circular No. 04-94 (Circular No. 04-94) on forum
shopping. Respondent Tadeo opposed the Motion to which petitioner Diana filed Additional Arguments in Support of the
Motion.

The trial court, through Judge Julieto P. Tabiolo, issued on 18 September 1996 an Order (first order) deferring resolution
of the Motion until the parties ventilate their arguments in a hearing. Petitioner Diana filed a motion for
reconsideration. However, the trial court, through Pairing Judge Rosalina L. Luna Pison, issued on 21 January 1997 an Order
(second order) denying the motion. In denying the motion for reconsideration, Judge Pison explained that when the
ground for dismissal is the complaints failure to state a cause of action, the trial court determines such fact solely from the
petition itself. Judge Pison held that contrary to petitioner Dianas claim, a perusal of the allegations in the petition shows
that petitioner Diana has violated respondent Tadeos right, thus giving rise to a cause of action. Judge Pison also rejected
petitioner Dianas claim that respondent Tadeo is guilty of forum shopping in filing the second petition. Judge Pison
explained that when respondent Tadeo filed the second petition, the first petition (Civil Case No. Q-95-23445) was no
longer pending as it had been earlier dismissed without prejudice.

Petitioner Diana filed a Petition for Certiorari, Prohibition and Mandamus before the Court of Appeals assailing the
trial courts first order deferring action on the Motion and the second order denying the motion for reconsideration on 14
February 1997. The Court of Appeals dismissed the petition and denied the motion for reconsideration.

Hence, this petition.

Ruling of the Court of Appeals

The Court of Appeals agreed with petitioner Diana that the trial court in its first order erred in deferring action on the
Motion until after a hearing on whether the complaint states a cause of action. Nevertheless, the Court of Appeals pointed
out that the trial courts second order corrected the situation since in denying the motion for reconsideration, the trial court
in effect denied the Motion. The appellate court agreed with the trial court that the allegations in the second petition
state a cause of action sufficient to sustain a valid judgment if proven to be true.

The Court of Appeals also held that there was no violation of Circular No. 04-94. To determine the existence of forum
shopping, the elements of litis pendentia must exist or a final judgment in one case must amount to res judicata in the
other. In this case, there is no litis pendentia because respondent Tadeo had caused the dismissal without prejudice of the
first petition before filing the second petition. Neither is there res judicata because there is no final decision on the merits.

Issues

In her Memorandum, petitioner Diana raises the following issues:

I. WHETHER THE ALLEGATIONS OF THE SECOND PETITION FOR ANNULMENT OF MARRIAGE SUFFICIENTLY STATE A
CAUSE OF ACTION;

II. WHETHER RESPONDENT TADEO VIOLATED SUPREME COURT ADMINISTRATIVE CIRCULAR NO. 04-94 IN FAILING
TO STATE THE FILING OF A PREVIOUS PETITION FOR ANNULMENT OF MARRIAGE, ITS TERMINATION AND
STATUS.[4]

The Courts Ruling

The petition has no merit.

Sufficiency of Cause of Action

 Petitioner Dianas contention that the second petition fails to state a cause of action is untenable. A cause of action
is an act or omission of the defendant in violation of the legal right of the plaintiff.[5] A complaint states a cause of action
when it contains three essential elements: (1) a right in favor of the plaintiff by whatever means and under whatever law
it arises; (2) an obligation of the defendant to respect such right; and (3) the act or omission of the defendant violates the
right of the plaintiff.[6]

We find the second petition sufficiently alleges a cause of action. The petition sought the declaration of nullity of the
marriage based on Article 36 of the Family Code.[7] The petition alleged that respondent Tadeo and petitioner Diana were
legally married at the Holy Cross Parish after a whirlwind courtship as shown by the marriage contract attached to the
petition. The couple established their residence in Quezon City. The union begot five children, Ana Maria, born on 8
November 1964; Isabel, born on 28 October 1968; Ernesto Tadeo, born on 31 March 1970; Regina Rachelle born on 7 March
1974; and Cristina Maria born in February 1978. The petition further alleged that petitioner Diana was psychologically
incapacitated at the time of the celebration of their marriage to comply with the essential obligations of marriage and
such incapacity subsists up to the present time. The petition alleged the non-complied marital obligations in this manner:

xxx

5. During their marriage, they had frequent quarrels due to their varied upbringing. Respondent, coming from a rich
family, was a disorganized housekeeper and was frequently out of the house.She would go to her sisters house or would
play tennis the whole day.

6. When the family had crisis due to several miscarriages suffered by respondent and the sickness of a child, respondent
withdrew to herself and eventually refused to speak to her husband.

7. On November 1977, the respondent, who was five months pregnant with Cristina Maria and on the pretext of re-
evaluating her feelings with petitioner, requested the latter to temporarily leave their conjugal dwelling. She further
insisted that she wanted to feel a little freedom from petitioners marital authority and influences. The petitioner argued
that he could occupy another room in their conjugal dwelling to accommodate respondents desire, but no amount of
plea and explanation could dissuade her from demanding that the petitioner leave their conjugal dwelling.

8. In his desire to keep peace in the family and to safeguard the respondents pregnancy, the petitioner was compelled
to leave their conjugal dwelling and reside in a condominium located in Greenhills.

9. This separation resulted in complete estrangement between the petitioner and the respondent. The petitioner waived
his right to the conjugal dwelling in respondents favor through an extrajudicial dissolution of their conjugal partnership of
gains. The separation in fact between the petitioner and the respondent still subsists to the present time.

10. The parties likewise agreed on the custody and support of the children. The extrajudicial dissolution of conjugal
partnership of gains is hereto attached as Annex C and taken as an integral part hereof.

11. The respondent at the time of the celebration of their marriage was psychologically incapacitated to comply with
the essential obligation of marriage and such incapacity subsisted up to and until the present time. Such incapacity was
conclusively found in the psychological examination conducted on the relationship between the petitioner and the
respondent.

12. Under Article 36 of the Family Code, the marriage between the petitioner and the respondent is void ab initio and
needs to be annulled. This petition is in accordance with Article 39 thereof.

xxx.[8]

The second petition states the ultimate facts on which respondent bases his claim in accordance with Section 1, Rule
8 of the old Rules of Court.[9] Ultimate facts refer to the principal, determinative, constitutive facts upon the existence of
which the cause of action rests. The term does not refer to details of probative matter or particulars of evidence which
establish the material elements.[10]

Petitioner Diana relies mainly[11] on the rulings in Santos v. Court of Appeals[12] as well as in Republic v. Court of
Appeals and Molina.[13] Santos gave life to the phrase psychological incapacity, a novel provision in the Family Code, by
defining the term in this wise:

xxx psychological incapacity should refer to no less than mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the
 marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together,
observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law
has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic
condition must exist at the time the marriage is celebrated.xxx.

Molina additionally provided procedural guidelines to assist the courts and the parties in cases for annulment of marriages
grounded on psychological incapacity.[14]

Petitioner Diana argues that the second petition falls short of the guidelines set forth
in Santos and Molina. Specifically, she contends that the second petition is defective because it fails to allege the root
cause of the alleged psychological incapacity. The second petition also fails to state that the alleged psychological
incapacity existed from the celebration of the marriage and that it is permanent or incurable. Further, the second petition
is devoid of any reference of the grave nature of the illness to bring about the disability of the petitioner to assume the
essential obligations of marriage. Lastly, the second petition did not even state the marital obligations which petitioner
Diana allegedly failed to comply due to psychological incapacity.

Subsequent to Santos and Molina, the Court adopted the new Rules on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages (new Rules).[15] Specifically, Section 2, paragraph (d) of the new Rules
provides:

SEC. 2. Petition for declaration of absolute nullity of void marriages

x x x.

(d) What to allege. A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that
either or both parties were psychologically incapacitated from complying with the essential marital obligations of
marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration.

The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the
time of the celebration of the marriage but expert opinion need not be alleged. (Emphasis supplied)

Procedural rules apply to actions pending and unresolved at the time of their passage.[16] The obvious effect of the
new Rules providing that expert opinion need not be alleged in the petition is that there is also no need to allege the root
cause of the psychological incapacity. Only experts in the fields of neurological and behavioral sciences are competent
to determine the root cause of psychological incapacity. Since the new Rules do not require the petition to allege expert
opinion on the psychological incapacity, it follows that there is also no need to allege in the petition the root cause of the
psychological incapacity.

Science continues to explore, examine and explain how our brains work, respond to and control the human body.
Scientists still do not understand everything there is to know about the root causes of psychological disorders. The root
causes of many psychological disorders are still unknown to science even as their outward, physical manifestations are
evident. Hence, what the new Rules require the petition to allege are the physical manifestations indicative of
psychological incapacity. Respondent Tadeos second petition complies with this requirement.

The second petition states a cause of action since it states the legal right of respondent Tadeo, the correlative
obligation of petitioner Diana, and the act or omission of petitioner Diana in violation of the legal right. In Dulay v. Court
of Appeals,[17] the Court held:

In determining whether the allegations of a complaint are sufficient to support a cause of action, it must be borne in
mind that the complaint does not have to establish or allege the facts proving the existence of a cause of action at the
outset; this will have to be done at the trial on the merits of the case (Del Bros Hotel Corporation v. CA, supra). If the
allegations in a complaint can furnish a sufficient basis by which the complaint can be maintained, the same should not
be dismissed regardless of the defenses that may be assessed by the defendants (Rava Devt Corp. v. CA, 211 SCRA 152
[1992] citing Consolidated Bank & Trust Corporation v. Court of Appeals, 197 SCRA 663 [1991]). To sustain a motion to
dismiss for lack of cause of action, the complaint must show that the claim for relief does not exist rather than that a
claim has been defectively stated or is ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27 SCRA 50 [1969]).
xxx. (Emphasis supplied)

A defendant moving to dismiss a complaint on the ground of lack of cause of action hypothetically admits all the
factual averments in the complaint.[18] Given the hypothetically admitted facts in the second petition, the trial court could
render judgment over the case.
Forum Shopping

Similarly untenable is petitioner Dianas contention that the second petitions certificate of non-forum shopping which
does not mention the filing of the first petition and its dismissal without prejudice violates Circular No. 04-94.[19] Petitioner
Diana refers to this portion of Circular No. 04-94-

1. The plaintiff, petitioner, applicant or principal party seeking relief in the complaint, petition, application or other
initiatory pleading shall certify under oath in such original pleading, or in a sworn certification annexed thereto and
simultaneously filed therewith, to the truth of the following facts and undertakings: (a) he has not theretofore
commenced any other action or proceeding involving the same issues in the Supreme court, the Court of Appeals, or
any other tribunal or agency; (b) to the best of his knowledge, no action or proceeding is pending in the Supreme Court,
the Court of Appeals, or any other tribunal or agency; (c) if there is any such action or proceeding which is either
pending or may have been terminated, he must state the status thereof; and (d) if he should thereafter learn that a
similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other
tribunal or agency, he undertakes to report that fact within five (5) days therefrom to the court or agency wherein the
original pleading and sworn certification contemplated herein have been filed.[20]

Petitioner Diana points out that respondent Tadeo did not disclose in his certificate of non-forum shopping that he
had previously commenced a similar action based on the same grounds with the same prayer for relief. The certificate of
non-forum shopping should have stated the fact of termination of the first petition or its status.

The Court has consistently held that a certificate of non-forum shopping not attached to the petition or one belatedly
filed or one signed by counsel and not the party himself constitutes a violation of the requirement. Such violation can result
in the dismissal of the complaint or petition. However, the Court has also previously held that the rule of substantial
compliance applies to the contents of the certification.[21]

In Roxas v. Court of Appeals,[22] the Court squarely addressed the issue of whether the omission of a statement on
the prior filing and dismissal of a case involving the same parties and issues merits dismissal of the petition. In Roxas, the
Court ruled:

xxx an omission in the certificate of non-forum shopping about any event that would not constitute res judicata and litis
pendentia as in the case at bar, is not fatal as to merit the dismissal and nullification of the entire proceedings
considering that the evils sought to be prevented by the said certificate are not present. It is in this light that we ruled
in Maricalum Mining Corp. v. National Labor Relations Commission that a liberal interpretation of Supreme Court Circular
No. 04-94 on non-forum shopping would be more in keeping with the objectives of procedural rules which is to secure a
just, speedy and inexpensive disposition of every action and proceeding.

The dismissal of the first petition precluded the eventuality of litis pendentia. The first petitions dismissal did not also
amount to res judicata. Thus, there is no need to state in the certificate of non-forum shopping in the second petition (Civil
Case No. Q-95-24471) about the prior filing and dismissal of the first petition (Civil Case No. Q-95-23445).

The first petition was dismissed without prejudice at the instance of respondent Tadeo to keep the peace between
him and his grown up children. The dismissal happened before service of answer or any responsive pleading. Clearly, there
is no litis pendentia since respondent Tadeo had already withdrawn and caused the dismissal of the first petition when he
subsequently filed the second petition. Neither is there res judicata because the dismissal order was not a decision on the
merits but a dismissal without prejudice.

Circular No. 04-94,[23] now Section 5, Rule 7 of the 1997 Rules of Civil Procedure, must be interpreted and applied to
achieve its purpose. The Supreme Court promulgated the Circular to promote and facilitate the orderly administration of
justice. The Circular should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate
objective or the goal of all rules of procedure which is to achieve substantial justice as expeditiously as possible.[24]

A final word. We are ever mindful of the principle that marriage is an inviolable social institution and the foundation
of the family that the state cherishes and protects.[25] In rendering this Decision, this Court is not prejudging the main issue
of whether the marriage is void based on Article 36 of the Family Code. The trial court must resolve this issue after trial on
the merits where each party can present evidence to prove their respective allegations and defenses. We are merely
holding that, based on the allegations in the second petition, the petition sufficiently alleges a cause of action and does
not violate the rule on forum shopping. Thus, the second petition is not subject to attack by a motion to dismiss on these
grounds.

WHEREFORE, we DENY the petition. The assailed Decision dated 30 May 1997 as well as the Resolution dated 7 August
1997 of the Court of Appeals in CA-G.R. SP No. 43393 is AFFIRMED. Costs against petitioner.

SO ORDERED.
 Davide, Jr., C.J., (Chairman), Vitug, and Ynares-Santiago, JJ., concur.
Azcuna, J., on leave.

THIRD DIVISION

[G.R. No. 149498. May 20, 2004]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. LOLITA QUINTERO-HAMANO, respondent.

DECISION

CORONA, J.:

Before us is a petition for review of the decision[1] dated August 20, 2001 of the Court of Appeals[2] affirming the
decision[3] dated August 28, 1997 of the Regional Trial Court of Rizal, Branch 72, declaring as null and void the marriage
contracted between herein respondent Lolita M. Quintero-Hamano and her husband Toshio Hamano.

On June 17, 1996, respondent Lolita Quintero-Hamano filed a complaint for declaration of nullity of her marriage to
her husband Toshio Hamano, a Japanese national, on the ground of psychological incapacity.

Respondent alleged that in October 1986, she and Toshio started a common-law relationship in Japan. They later
lived in the Philippines for a month. Thereafter, Toshio went back to Japan and stayed there for half of 1987. On November
16, 1987, she gave birth to their child.

On January 14, 1988, she and Toshio were married by Judge Isauro M. Balderia of the Municipal Trial Court of Bacoor,
Cavite. Unknown to respondent, Toshio was psychologically incapacitated to assume his marital responsibilities, which
incapacity became manifest only after the marriage. One month after their marriage, Toshio returned to Japan and
promised to return by Christmas to celebrate the holidays with his family. After sending money to respondent for two
months, Toshio stopped giving financial support. She wrote him several times but he never responded. Sometime in 1991,
respondent learned from her friends that Toshio visited the Philippines but he did not bother to see her and their child.

The summons issued to Toshio remained unserved because he was no longer residing at his given
address. Consequently, on July 8, 1996, respondent filed an ex partemotion for leave to effect service of summons by
publication. The trial court granted the motion on July 12, 1996. In August 1996, the summons, accompanied by a copy of
the petition, was published in a newspaper of general circulation giving Toshio 15 days to file his answer. Because Toshio
failed to file a responsive pleading after the lapse of 60 days from publication, respondent filed a motion dated November
5, 1996 to refer the case to the prosecutor for investigation. The trial court granted the motion on November 7, 1996.

On November 20, 1996, prosecutor Rolando I. Gonzales filed a report finding that no collusion existed between the
parties. He prayed that the Office of the Provincial Prosecutor be allowed to intervene to ensure that the evidence
submitted was not fabricated. On February 13, 1997, the trial court granted respondents motion to present her evidence ex
parte. She then testified on how Toshio abandoned his family. She thereafter offered documentary evidence to support
her testimony.

On August 28, 1997, the trial court rendered a decision, the dispositive portion of which read:

WHEREFORE, premises considered, the marriage between petitioner Lolita M. Quintero-Hamano and Toshio Hamano, is
hereby declared NULL and VOID.

The Civil Register of Bacoor, Cavite and the National Statistics Office are ordered to make proper entries into the records
of the afore-named parties pursuant to this judgment of the Court.

SO ORDERED.[4]

In declaring the nullity of the marriage on the ground of Toshios psychological incapacity, the trial court held that:

It is clear from the records of the case that respondent spouses failed to fulfill his obligations as husband of the petitioner
and father to his daughter. Respondent remained irresponsible and unconcerned over the needs and welfare of his
family. Such indifference, to the mind of the Court, is a clear manifestation of insensitivity and lack of respect for his wife
and child which characterizes a very immature person. Certainly, such behavior could be traced to respondents mental
incapacity and disability of entering into marital life.[5]

The Office of the Solicitor General, representing herein petitioner Republic of the Philippines, appealed to the Court
of Appeals but the same was denied in a decision dated August 28, 1997, the dispositive portion of which read:

WHEREFORE, in view of the foregoing, and pursuant to applicable law and jurisprudence on the matter and evidence on
hand, judgment is hereby rendered denying the instant appeal. The decision of the court a quo is AFFIRMED. No costs.

SO ORDERED.[6]

The appellate court found that Toshio left respondent and their daughter a month after the celebration of the
marriage, and returned to Japan with the promise to support his family and take steps to make them Japanese citizens. But
except for two months, he never sent any support to nor communicated with them despite the letters respondent sent. He
even visited the Philippines but he did not bother to see them. Respondent, on the other hand, exerted all efforts to contact
Toshio, to no avail.

The appellate court thus concluded that respondent was psychologically incapacitated to perform his marital
obligations to his family, and to observe mutual love, respect and fidelity, and render mutual help and support pursuant
to Article 68 of the Family Code of the Philippines. The appellate court rhetorically asked:

But what is there to preserve when the other spouse is an unwilling party to the cohesion and creation of a family as a
social inviolable institution? Why should petitioner be made to suffer in a marriage where the other spouse is not around
and worse, left them without even helping them cope up with family life and assist in the upbringing of their daughter as
required under Articles 68 to 71 of the Family Code?[7]

The appellate court emphasized that this case could not be equated with Republic vs. Court of Appeals and
Molina[8] and Santos vs. Court of Appeals.[9] In those cases, the spouses were Filipinos while this case involved a mixed
marriage, the husband being a Japanese national.

Hence, this appeal by petitioner Republic based on this lone assignment of error:

The Court of Appeals erred in holding that respondent was able to prove the psychological incapacity of Toshio
Hamano to perform his marital obligations, despite respondents failure to comply with the guidelines laid down in
the Molina case.[10]

According to petitioner, mere abandonment by Toshio of his family and his insensitivity to them did not automatically
constitute psychological incapacity. His behavior merely indicated simple inadequacy in the personality of a spouse falling
short of reasonable expectations. Respondent failed to prove any severe and incurable personality disorder on the part
of Toshio, in accordance with the guidelines set in Molina.

The Office of the Public Attorney, representing respondent, reiterated the ruling of the courts a quo and sought the
denial of the instant petition.

We rule in favor of petitioner.

The Court is mindful of the policy of the 1987 Constitution to protect and strengthen the family as the basic
autonomous social institution and marriage as the foundation of the family.[11] Thus, any doubt should be resolved in favor
of the validity of the marriage.[12]

Respondent seeks to annul her marriage with Toshio on the ground of psychological incapacity. Article 36 of the
Family Code of the Philippines provides that:

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization.

In Molina, we came up with the following guidelines in the interpretation and application of Article 36 for the
guidance of the bench and the bar:
(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor
of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that
both our Constitution and our laws cherish the validity of marriage and unity of the family. x x x

(2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code
requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be
physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such
an extent that the person could not have known the obligations he was assuming, or knowing them, could not have
given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem generis (Salita vs. Magtolis, 233 SCRA 100, June 13, 1994),
nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained.
Expert evidence may be given by qualified psychiatrists and clinical psychologists.

(3) The incapacity must be proven to be existing at the time of the celebration of the marriage. The evidence must show
that the illness was existing when the parties exchanged their I dos. The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not
related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to
procreate, bear and raise his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of
marriage. Thus, mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be
accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or
difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the
husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such
non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of
the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while
not controlling or decisive, should be given great respect by our courts. x x x

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the
state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The
Solicitor-General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days
from the date the case is deemed submitted for resolution of the court. The Solicitor-General shall discharge the
equivalent function of the defensor vinculi contemplated under Canon 1095.[13] (emphasis supplied)

The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos: psychological
incapacity must be characterized by (a) gravity (b) juridical antecedence and (c) incurability.[14] The foregoing guidelines
do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause
may be medically or clinically identified. What is important is the presence of evidence that can adequately establish the
partys psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of
psychological incapacity, then actual medical examination of the person concerned need not be resorted to.[15]

We now proceed to determine whether respondent successfully proved Toshios psychological incapacity to fulfill his
marital responsibilities.

Petitioner showed that Toshio failed to meet his duty to live with, care for and support his family. He abandoned them
a month after his marriage to respondent. Respondent sent him several letters but he never replied. He made a trip to
the Philippines but did not care at all to see his family.

We find that the totality of evidence presented fell short of proving that Toshio was psychologically incapacitated to
assume his marital responsibilities. Toshios act of abandonment was doubtlessly irresponsible but it was never alleged nor
proven to be due to some kind of psychological illness. After respondent testified on how Toshio abandoned his family, no
other evidence was presented showing that his behavior was caused by a psychological disorder. Although, as a rule,
there was no need for an actual medical examination, it would have greatly helped respondents case had she presented
evidence that medically or clinically identified his illness. This could have been done through an expert witness. This
respondent did not do.

We must remember that abandonment is also a ground for legal separation.[16] There was no showing that the case
at bar was not just an instance of abandonment in the context of legal separation. We cannot presume psychological
defect from the mere fact that Toshio abandoned his family immediately after the celebration of the marriage. As we
ruled in Molina, it is not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is
essential that he must be shown to be incapable of doing so due to some psychological, not physical, illness.[17] There was
no proof of a natal or supervening disabling factor in the person, an adverse integral element in the personality structure
that effectively incapacitates a person from accepting and complying with the obligations essential to marriage.[18]

According to the appellate court, the requirements in Molina and Santos do not apply here because the present
case involves a mixed marriage, the husband being a Japanese national. We disagree. In proving psychological
incapacity, we find no distinction between an alien spouse and a Filipino spouse. We cannot be lenient in the application
of the rules merely because the spouse alleged to be psychologically incapacitated happens to be a foreign national. The
medical and clinical rules to determine psychological incapacity were formulated on the basis of studies of human
behavior in general. Hence, the norms used for determining psychological incapacity should apply to any person
regardless of nationality.

In Pesca vs. Pesca,[19] this Court declared that marriage is an inviolable social institution that the State cherishes and
protects. While we commiserate with respondent, terminating her marriage to her husband may not necessarily be the
fitting denouement.

WHEREFORE, the petition for review is hereby GRANTED. The decision dated August 28, 1997 of the Court of Appeals
is hereby REVERSED and SET ASIDE.

SO ORDERED.

Vitug, (Chairman and Acting Chief Justice), Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 170022 January 9, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
CESAR ENCELAN, Respondent.

DECISION

BRION, J.:

We resolve the petition for review on certiorari1 filed by petitioner Republic of the Philippines challenging the October 7,
2005 amended decision2 of the Court of Appeals (CA) that reconsidered its March 22, 2004 decision3(original decision) in
CA-G.R. CV No. 75583. In its original decision, the CA set aside the June 5, 2002 decision4 of the Regional Trial Court (RTC)
of Manila, Branch 47, in Civil Case No. 95-74257, which The Factual Antecedents

On August 25, 1979, Cesar married Lolita5 and the union bore two children, Maricar and Manny.6 To support his family,
Cesar went to work in Saudi Arabia on May 15, 1984. On June 12, 1986, Cesar, while still in Saudi Arabia, learned that
Lolita had been having an illicit affair with Alvin Perez. Sometime in 1991,7 Lolita allegedly left the conjugal home with her
children and lived with Alvin. Since then, Cesar and Lolita had been separated. On June 16, 1995, Cesar filed with the
RTC a petition against Lolita for the declaration of the nullity of his marriage based on Lolita’s psychological incapacity.8
Lolita denied that she had an affair with Alvin; she contended that Alvin used to be an associate in her promotions
business. She insisted that she is not psychologically incapacitated and that she left their home because of irreconcilable
differences with her mother-in-law.9

At the trial, Cesar affirmed his allegations of Lolita’s infidelity and subsequent abandonment of the family home.10He
testified that he continued to provide financial support for Lolita and their children even after he learned of her illicit
affair with Alvin.11

Cesar presented the psychological evaluation report12 on Lolita prepared by Dr. Fareda Fatima Flores of the National
Center for Mental Health. Dr. Flores found that Lolita was "not suffering from any form of major psychiatric illness,"13 but
had been "unable to provide the expectations expected of her for a good and lasting marital relationship";14 her
"transferring from one job to the other depicts some interpersonal problems with co-workers as well as her impatience in
attaining her ambitions";15 and "her refusal to go with her husband abroad signifies her reluctance to work out a good
marital and family relationship."16

The RTC Ruling

In its June 5, 2002 decision,17 the RTC declared Cesar’s marriage to Lolita void, finding sufficient basis to declare Lolita
psychologically incapacitated to comply with the essential marital obligations.

The petitioner, through the Office of the Solicitor General (OSG), appealed to the CA.

The CA Ruling

The CA originally18 set aside the RTC’s verdict, finding that Lolita’s abandonment of the conjugal dwelling and infidelity
were not serious cases of personality disorder/psychological illness. Lolita merely refused to comply with her marital
obligations which she was capable of doing. The CA significantly observed that infidelity is only a ground for legal
separation, not for the declaration of the nullity of a marriage.

Cesar sought reconsideration19 of the CA’s decision and, in due course, attained his objective. The CA set aside its
original decision and entered another, which affirmed the RTC’s decision. In its amended decision,20 the CA found two
circumstances indicative of Lolita’s serious psychological incapacity that resulted in her gross infidelity: (1) Lolita’s
unwarranted refusal to perform her marital obligations to Cesar; and (2) Lolita’s willful and deliberate act of abandoning
the conjugal dwelling.

The OSG then filed the present petition.

The Petition

The OSG argues that Dr. Flores’ psychological evaluation report did not disclose that Lolita had been suffering from a
psychological illness nor did it establish its juridical antecedence, gravity and incurability; infidelity and abandonment do
not constitute psychological incapacity, but are merely grounds for legal separation.

The Case for the Respondent

Cesar submits that Lolita’s infidelity and refusal to perform her marital obligations established her grave and incurable
psychological incapacity.

The Issue

The case presents to us the legal issue of whether there exists sufficient basis to nullify Cesar’s marriage to Lolita on the
ground of psychological incapacity.

The Court’s Ruling

We grant the petition. No sufficient basis exists to annul Cesar’s marriage to Lolita on the ground of psychological
incapacity.
Applicable Law and Jurisprudence
on Psychological Incapacity

Article 36 of the Family Code governs psychological incapacity as a ground for declaration of nullity of marriage. It
provides that "a marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization."

In interpreting this provision, we have repeatedly stressed that psychological incapacity contemplates "downright
incapacity or inability to take cognizance of and to assume the basic marital obligations";21 not merely the refusal,
neglect or difficulty, much less ill will, on the part of the errant spouse.22 The plaintiff bears the burden of proving the
juridical antecedence (i.e., the existence at the time of the celebration of marriage), gravity and incurability of the
condition of the errant spouse.23

Cesar failed to prove Lolita’s

psychological incapacity

In this case, Cesar’s testimony failed to prove Lolita’s alleged psychological incapacity. Cesar testified on the dates
when he learned of Lolita’s alleged affair and her subsequent abandonment of their home,24 as well as his continued
financial support to her and their children even after he learned of the affair,25 but he merely mentioned in passing
Lolita’s alleged affair with Alvin and her abandonment of the conjugal dwelling.

In any event, sexual infidelity and abandonment of the conjugal dwelling, even if true, do not necessarily constitute
psychological incapacity; these are simply grounds for legal separation.26 To constitute psychological incapacity, it must
be shown that the unfaithfulness and abandonment are manifestations of a disordered personality that completely
prevented the erring spouse from discharging the essential marital obligations.27 No evidence on record exists to support
Cesar’s allegation that Lolita’s infidelity and abandonment were manifestations of any psychological illness.

Cesar mistakenly relied on Dr. Flores’ psychological evaluation report on Lolita to prove her alleged psychological
incapacity. The psychological evaluation, in fact, established that Lolita did not suffer from any major psychiatric
illness.28 Dr. Flores’ observation on Lolita’s interpersonal problems with co-workers,29 to our mind, does not suffice as a
consideration for the conclusion that she was – at the time of her marriage – psychologically incapacitated to enter into
a marital union with Cesar. Aside from the time element involved, a wife’s psychological fitness as a spouse cannot
simply be equated with her professional/work relationship; workplace obligations and responsibilities are poles apart from
their marital counterparts. While both spring from human relationship, their relatedness and relevance to one another
should be fully established for them to be compared or to serve as measures of comparison with one another. To be
sure, the evaluation report Dr. Flores prepared and submitted cannot serve this purpose. Dr. Flores’ further belief that
Lolita’s refusal to go with Cesar abroad signified a reluctance to work out a good marital relationship30 is a mere
generalization unsupported by facts and is, in fact, a rash conclusion that this Court cannot support.

In sum, we find that Cesar failed to prove the existence of Lolita’s psychological incapacity; thus, the CA committed a
reversible error when it reconsidered its original decision.1âwphi1

Once again, we stress that marriage is an inviolable social institution31 protected by the State. Any doubt should be
resolved in favor of its existence its existence and continuation and against its dissolution and nullity.32 It cannot be
dissolved at the whim of the parties nor by transgressions made by one party to the other during the marriage.

WHEREFORE, we GRANT the petition and SET ASIDE the October 7, 2005 amended decision of the Court of Appeals in
CA-G.R. CV No. 75583. Accordingly, we DISMISS respondent Cesar Encelan's petition for declaration of nullity of his
marriage to Lolita Castillo-Encelan.

Costs against the respondent.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:
 ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VI II of the Constitution, and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

FIRST DIVISION

October 11, 2017

G.R. No. 201988

MARIA VICTORIA SOCORRO LONTOC-CRUZ, Petitioner

vs.
NILO SANTOS CRUZ, Respondent

DECISION

DEL CASTILLO, J.:

The most challenging part of being in a difficult marriage is to thrive in one. In the case of petitioner Maria Victoria
Socorro Lontoc-Cruz (Marivi) and respondent Nilo Santos Cruz (Nilo), their marriage withered as this was beset with
problems such as the lack of quality time, recriminations, disillusionment, loss of passion, and infidelity. The estranged
spouses considered their union as non-functional, attributing the failure of their marriage to their respective personality
disorders that repelled each other.

This Petition for Review on Certiorari1challenges the November 22, 2011 Decision2 and May 29, 2012 Resolution3 of the
Court of Appeals (CA) in CA-G.R. CV No. 93736 that affirmed the Decision4 of the Regional Trial Court (RTC), Branch 207,
Muntinlupa City in Civil Case No. 05-095 which refused to declare the marriage void ab initio under Article 36 of the
Family Code.

Factual Antecedents

Twenty-two-year-old Marivi met 28-year old Nilo sometime in March 1986. They became steady in August of the same
year. Nilo, whose job was then in Hong Kong, prodded Marivi to marry him so she could join him there soonest. Marivi
agreed. The couple married in a civil ceremony5 on October 21, 1986 followed by a church wedding6on February 8,
1987. The marriage produced two sons: Antonio Manuel, born on April 25, 1988, and Jose Nilo, born on September 9,
1992.

On July 7, 2005, Marivi filed with the RTC of Muntinlupa City a petition for declaration of nullity of marriage7 based on
psychological incapacity. She averred that it had been medically ascertained that Nilo was suffering from "inadequate
personality disorder related to masculine strivings associated with unresolved oedipal complex,"8 while she herself was
found to be suffering from a "personality disorder of the mixed type, [h]istrionic, [n]arcissistic with immaturity x x x."9

To show that Nilo failed to provide her with the necessary emotional, psychological, and physical support, Marivi cited
the following:

1. His infidelity and his non-commitment to the marriage as he continued to act like a bachelor;

2. The lack of 'oneness' in the marriage as Nilo would make decisions (on financial matters) without consulting or
considering her suggestions; treating her as a housemate or a "mayordoma;" keeping from her his whereabouts, when
he would come home or how much his income was;

3. The lack of sexual contact for more than a decade as Nilo made excuses;

4. Putting up a facade that he is a caring, concerned, and loving husband, especially to his bosses; and

5. Preference towards the company of his peers/friends.10

In his Answer,11 Nilo claimed that he was madly in love with Marivi; that at the start of their relationship, both he and Mari
vi would exhibit negative personality traits which they overlooked; that he believed that both he and Marivi were
suffering from psychological incapacity; and that he was not singularly responsible for the breakdown of their marriage.
He stressed that Marivi also contributed to the deterioration of their union, to wit:

1. Marivi would demand that he behave in ways he was not accustomed to or inconsistent with his career position;

2. Marivi was jealous of his friends; and would often make hasty conclusions that he was having an affair with other
women;

3. Marivi would exhibit volatile temperament if things did not go her way; would not admit mistakes, and blame others
instead;

4. Marivi would make decisions impulsively, such as changing an item she gets tired of, or demanding that Nilo change a
motor vehicle simply because she did not like it; and

5. She lacked respect for Nilo, and would speak to him degradingly, and even accuse him of being gay or a
homosexual.12
On October 11, 2006, the trial court rendered a Partial Decision13 approving the parties' Compromise
Agreement14pertaining to custody, support, and dissolution of the properties. Trial on the issue of the nullity of marriage
on the ground of psychological incapacity ensued.

Marivi's Version

Marivi narrated that when they were still going steady, Nilo would only spend Saturdays and Sundays with her and
devote the weekdays to partying with his friends; that even after their engagement, Nilo would still meet other women
and accept invitations to beauty pageants and cocktails;15 that Nilo was not the type who would kiss passionately; that
Nilo would not engage in foreplay during sex, but wished only to satisfy himself; that Nilo would engage in anal sex and
would only stop when she complained that it was painful; that Nilo would thereafter sleep, leaving her feeling "used,"
and that Nilo was impulsive, daring, and adventurous.16

She also claimed that Nilo would habitually come home late; that Friday nights were Nilo's boys' night out; that unless she
would ask him to take her out on a date, Nilo would not do so; and that Nilo would call her a "nagger" even if she was
merely asking him to come home early.17

Marivi further narrated that Nilo would engage in extramarital affairs; that a few months into their marriage, Nilo had an
affair with an unmarried female officemate;18 that Nilo ended the affair only after she (Mari vi) threatened to tell his
employer/supervisor;19 that Nilo had another affair a few weeks after the birth of their second son; that when confronted
with his womanizing and made to choose between her and the children or the other women, Nilo replied that he was
"confused,"20 which prompted her to leave and stay in Cebu with her parents; and that she heard from her friends that
while she was in Cebu, Nilo was living a bachelor's life.21

Marivi added that she eventually reconciled with Nilo but despite the reconciliation, Nilo never really changed, and that
he remained indifferent, insensitive, and unappreciative. According to Marivi, she would instead call up her parents and
sisters to talk about their family problems;22 that while he (Nilo) told people that he was proud of her, he never gave her
the emotional, psychological, and physical support she needed.23 She felt like she was no more than a mayordoma to
him, and that they were just "housemates." Nilo would come home late on weekdays and preferred to go out with his
friends. Their quarrels were frequent and their conversations were superficial; Nilo would rather talk about himself, instead
of asking Marivi about her day or about their children. He was controlling and domineering,24 and refused to consider her
suggestions; he would not want his money mingled with her (Marivi's) money.25 Nilo would shell out money when he
wanted to buy things, but would make excuses when it came to Mari vi's suggestion for a family vacation.26 Marivi also
claimed that Nilo had no sense of companionship with their children; and that Nilo even told their son that their brand
new house was everything to him.27

Marivi was moreover bothered by Nilo's effeminate ways; he was vain and would have weekly "beauty"
treatments.28Furthermore, they no long had sex after the birth of their second son. While they tried to have sex twice, Nilo
failed to have an erection. After that, Nilo would refuse to have sex with her which made her (Marivi) question his sexual
orientation, so much so that Nilo physically hurt her when she questioned his virility.29

Marivi's father, Manuel, likewise stated that Marivi would call them up for help because Nilo had hurt her during the
couple's quarrel; that their marriage was not harmonious due to Marivi's youth and her unfamiliarity with Nilo's personality
and family values. He considered Nilo only as a provider, not as a husband and a good father to his sons.30

Marivi's younger sister, Margarita Ledesma (Margarita), who lived for four years with Nilo and Marivi, claimed to have
witnessed how lonely Marivi was. She alleged that Nilo was absent when Marivi gave birth to their second son; that Nilo
was short-tempered when driving; and that the couple would often fight because Nilo would always come home late or
because Marivi suspected Nilo of infidelity. Margarita believed that Nilo did not really want to save the marriage,
although he told her that he loves Marivi and the children.31

Nilo's Version

Nilo acknowledged his contribution to the breakdown of the marriage because his job required him to come home late,
his inability to sexually perform adequately, his failure to be the "ideal husband,"32 and because he had had extramarital
affairs in the years 1992, 2002, and 2006.33 At the same time, Nilo insisted that Marivi also contributed to the collapse of
their union.

According to Nilo, Marivi would always want to know his companions and whereabouts; would demand information
about his female acquaintances; and would even call up his workplace to ask where he was. Moreover, her conceit
and her "prima donna" attitude embarrassed him. Marivi would order him to act in accordance with their stature in life,
and would demand that he instruct his office staff to accord her special treatment as Hewlett Packard's "first lady" during
the time that he was Hewlett Packard's President. Marivi would also instruct their housemaids to call him "sefiorito;" and
she would make a "big deal" out of her being a "mestiza," and would think of herself a "trophy wife."34

Nilo claimed that Marivi was "unappreciative" of him, had a misdirected sense of self-entitlement, and would complain if
she did not get her own way, as she was used to, she being her father's favorite daughter; Marivi did not even care
about discussing family finances with him as long as she got what she wanted. She also had a violent temper and would
hurl things at him during their fights; that she would blame him for everything, and would keep on reciting his past
mistakes. Marivi did not understand the demands of his job, and unfairly compared his work to her father's job, the
operation of which was limited to a single area, a compound in a mine site in Cebu. He explained that the multinational
companies he then worked for required him to work beyond the normal office hours because he has to meet "sales
quotas in millions of dollars," entertain people from different headquarters, and meet with different clients from areas far
from his residence.35

Worse, Nilo was turned off by Marivi's act of broadcasting to her whole clan his inadequacies during their intimate sexual
relations, which began after he witnessed Marivi giving birth to their first child. When he confided to Marivi about this, she
instead accused him of having another affair. Since then, he did not feel any sexual excitement and attraction toward
her when they were together. Instead of discussing the problem with him candidly, she accused him of being gay. Nilo
stated that the last time they had sex was in 1997 or in 1998.36

The Clinical Findings

In support of her claim that she and Nilo were suffering from psychological incapacity, Marivi presented Dr. Cecilia
Villegas (Dr. Villegas), a psychiatrist, and Dr. Ruben Encarnacion (Dr. Encarnacion), a clinical psychologist.

Dr. Villegas diagnosed Nilo to have "inadequate personality disorder related to masculine strivings associated with
unresolved oedipal complex,"37 while she diagnosed Marivi to have "personality disorder of the mixed type, [h]istrionic,
[n]arcissistic, with immaturity x x x."38

In the March 21, 2005 Psychiatric Report,39 Dr. Villegas stated:

The root cause of the above clinical conditions, on the part of Marivi Cruz, were the overindulgence and over attention
of her parents, in a prolonged manner, carried over to adult adjustments. On the part of Nilo Cruz, his negative
identification and resentments towards his father and close attachments to his mother, continued by his long-time maid,
to the point of an oedipal situation led to his inadequacy, along masculine strivings, with difficult assertions of his
authority and power.

The above clinical conditions existed prior [to] marriage but became manifest only after the celebration due to marital
stresses and demands. Both are considered as permanent in nature, because they started early in their developmental
stage, and therefore became so deeply engrained into their personality structures. Both are considered grave in degree,
because they hampered, interfered and disrupted their normal functioning related to heterosexual adjustments.40

According to Dr. Villegas, both parties could not tolerate each others' weaknesses and that the incapacities of the
parties are grave because they preferred to satisfy their own needs rather than to give in to the other's needs.41

She claimed that Nilo's lack of a father figure weakened his masculinity. He cross-identified himself with his mother
because his father, a disciplinarian and the thrifty one, was often absent because of his military service. While he was still
a teenager, his mother migrated to Canada and their long-time maid acted as his surrogate mother. Nilo sought from his
wife his mother's nurturing qualities, but he felt hostility when Marivi failed to meet his ego ideal. His aggression was in the
form of passivity, punishing his wife by not sexually performing.42

Dr. Villegas noted that Nilo would put on a facade, a compensatory mechanism according to social norms. While he
was not exactly a homosexual, he covered up his weak masculine traits by being a "playboy." Nilo could only comply
with the financial obligation of marital life, but not the psychological and emotional parts of it.43 Nilo likewise was an
inadequate father figure to his own two sons, especially the younger, who has already manifested strong feminine
traits.44

Marivi, on the other hand, expected that her interactions with the world would be like that of her own close-knit family, a
perception attributable to her parents' prolonged gratification of her dependency needs. Her father was a dedicated,
devoted, and responsible family man who regularly came home to spend time with them, while her mother was a good
housewife, who always found time to personally attend to their needs. Dr. Villegas described Marivi’s one with strong
mood fluctuations, emotionally immature, with low self-esteem has difficulty neutralizing the outbreak of negativity in her
behavior, is suggestible, egocentric, and impelled by a desire to "extort" from others. To Dr. Villegas, the couple's
respective personality disorders were mutually repelling, their brain waves not being in sync because what Marivi
expected from Nilo happened to be Nilo's weakest point.45

Dr. Encarnacion supported Dr. Villegas' diagnosis. On the basis of Nilo's five-to-six sessions and Marivi's eight bi-weekly
psychotherapy sessions with him, Dr. Encarnacion concluded that there was no chance of a successful marriage in a
dysfunctional union when there is double psychological incapacity. He categorically stated that Nilo was incapable of
being a good husband and a good father. Nilo lacked an individual coherent identity and instead went by the
standards of general society, which is driven by the desire to gain material wealth, power, and control. Nilo did not like
close relationships and was incapable of forming some; his social anxiety, associated with paranoid fears, was
manifested by excessive vanity. Nilo projected an image of a wealthy, successful, handsome man surrounded by
women, in none of whom, however, he was interested in a long-term sexual relationship; he saw himself as a performer-
provider and was disinterested in spending quality time with his family, in carrying on conversations with members of his
family, insensitive, intolerant, and demanding.46

Dr. Encarnacion attributed respondent's psychological disorder to his childhood, in which he did not have fond
memories of tender moments and vacation times with his family. Nilo grew up very close to his mother who always
listened to his complaints and with whom he sympathized, hence his unresolved oedipal issues; even as he patterned his
masculinity strivings after his stingy father, the family provider, but whom he nonetheless described as "unappreciative,
undemonstrative, and quite materialistic." At the age of 18, when his parents migrated to Canada and left him in the
Philippines, he then lost his role models, incapacitating him from creating his own identity. Thus, when he began working
at the age of 21, he imbibed the values of his workplace, where feelings and emotional discussions were absent, factors
that nonetheless somehow worked to his advantage in his job.47 Dr. Encarnacion opined that Nilo's incapacity was his
"rigidity," which drove him into imposing his family upbringing on his mvn family, instead of adjusting to the modem family
setup, i.e., that the modem father should take on new roles and be part of family activities where his family needs him to
be, e.g. taking the children to the pediatrician or to the park, camping with the family, or being with them in church,
instead of strictly confining himself to being a provider.48

As for Marivi, Dr. Encarnacion found that she exhibited "Histrionic Personality Behaviors and Features" as manifested by
her impressionistic speech, her exaggerated expression of emotions, and her suggestibility. He stated that Marivi's
"inflexibility" consisted in her expecting a high standard of faithfulness from all men as exemplified by her dad, who was
also very devoted to her mother. However, because dissatisfied and frustrated by her actual marital situation, she sought
attention, externalized blame, displayed anger, mistrust, resentment, and self-indulgence.49

Ruling of the Regional Trial Court

In its October 13, 2008 Decision,50 the RTC denied the Petition.

The RTC took a dim view of the expert witnesses' attribution of a double psychological incapacity to Marivi's nature of
being a "father figure woman," and to Nilo's "oedipal complex." The court noted that Marivi already disengaged herself
from her father as her standard of an ideal husband when she married Nilo, despite the latter's limitations and his then
being already very focused on his job. Marivi's need for assurance that she is loved, vis-a-vis her looking up to her father
as her standard, was not by itself sufficient to declare her psychologically incapacitated.

As for Nilo, the RTC found no concrete evidence of "oedipal complex;" the RTC held that prioritizing his work over the
emotional needs of his family was not reflective of his psychological incapacity because what he did was still for his
family's benefit. Neither was Nilo's lack of sexual interest in Marivi a case of psychological incapacity, for this was a result
of his being turned off by Marivi's unabated naggings and her revelations to her family of his sexual inadequacies.

From the RTC's verdict, petitioner appealed to the CA.

Ruling of the Court of Appeals

In its November 22, 2011 Decision,51 the CA united with the RTC in rejecting the alleged existence of psychological
incapacity pointed out by Dr. Villegas and by Dr. Encarnacion.

The CA found that Dr. Villegas and Dr. Encarnacion failed to paint a clear picture of the supposed gravity or seriousness
of Nilo's psychological incapacity, and that it was unconvinced of the doctors' conclusion that Nilo had a deep
propensity to cover up for his serious inadequacies.
It ruled that Marivi failed to prove that Nilo's failure to comply with his sexual obligation was due to some psychological
condition or makeup, as this could very well be explained by the stress brought about by Marivi's negative attitude
toward Nilo, who was turned off by her act of revealing to her clan their bedroom secrets instead of privately resolving
the problem with him. Moreover, the CA said it is a non sequitur, that just because he could not sexually perform
according to Marivi's standard, he should thus be labelled a gay or homosexual. It appears that Nilo has "selective"
impotency, for while he could not have an erection for Marivi, he nevertheless had had extramarital affairs. Neither did
the CA see anything wrong with Nilo's "put-on fa9ade" of a happy marriage to protect the family's privacy.

The CA did not even consider Marivi's alleged histrionic traits as reflected in her behavior, e.g., her persistent demand as
to Nilo's whereabouts, her constant naggings, her attention-seeking acts, grave or serious enough to qualify as
psychological incapacity. The CA ruled that it was the couple's irreconcilable differences that marred their marriage;
that the negative acts or actions of one spouse were neutralized or offset by the other's negative acts or actions, and
that these are "mere character flaws or bad habits that the spouses developed over the years [which] can be modified
or changed depending on the desire of either spouse to do so."52 The CA thereafter disposed of the appeal, thus:

WHEREFORE, the appeal is DENIED. The decision of the Regional Trial Court in CV No. 05-095 denying the petition for
declaration of nullity of marriage between appellant Maria Victoria Socorro Lontoc-Cruz and appellee Nilo Santos Cruz
for insufficiency of evidence is hereby AFFIRMED. No costs.

SO ORDERED."53

Marivi moved for a reconsideration but it was denied in the CA's May 29, 2012 Resolution.54

Issue

At issue before us is whether the psychological conditions of the parties fall under Article 36 of the Family Code to
warrant the declaration of nullity of marriage.

Our Ruling

We sustain the findings of both the RTC and the CA.

Article 36 of the Family Code states:

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization.

We have laid down guidelines in interpreting and applying this provision. In Republic v. De Gracia, 55 we reiterated the
doctrine in Santos v. Court of Appeals, 56 "that psychological incapacity must be characterized by: (a) gravity (i.e., it
must be grave and serious such that the party would be incapable of carrying out the ordinary duties required in a
marriage); (b) juridical antecedence (i.e., it must be rooted in the history of the party antedating the marriage, although
the overt manifestations may emerge only after the marriage); and (c) incurability (i.e., it must be incurable, or even if it
were otherwise, the cure would be beyond the means of the party involved)." Also, in Republic v. Court of Appeals, 57 we
reiterated the well-settled guidelines in resolving petitions for declaration of nullity of marriage, as embodied in Republic
v. Court of Appeals, 58 viz.:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor
of the existence and continuation of the marriage and against its dissolution and nullity.x x x.

xxxx

(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code
requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be
physical. x x x.

xxxx
(3) The incapacity must be proven to be existing at 'the time of the celebration' of the marriage.x x x.

xxxx

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. x x x.

xxxx

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of
marriage. Thus, 'mild characteriological peculiarities, mood changes, occasional emotional outbursts' cannot be
accepted as root causes.x x x.

xxxx

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the
husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such
non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of
the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while
not controlling or decisive, should be given great respect by our courts. x x x.

xxxx

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the
state. x x x.

Notably, "mere showing of 'irreconcilable differences' and 'conflicting personalities' [as in the present case,] in no wise
constitutes psychological incapacity."59 "Nor does failure of the parties to meet their responsibilities and duties as married
persons" amount to psychological incapacity.60 We further elucidated in Yambao v. Republic61that the psychological
condition should render the subject totally unaware or incognitive of the basic marital obligations:

Article 36 contemplates incapacity or inability to take cognizance of and to assume basic marital obligations and not
merely difficulty, refusal, or neglect in the performance of marital obligations or ill will. This incapacity consists of the
following: (a) a true inability to commit oneself to the essentials of marriage; (b) this inability to commit oneself must refer
to the essential obligations of marriage: the conjugal act, the community of life and love, the rendering of mutual help,
the procreation and education of offspring; and (c) the inability must be tantamount to a psychological abnormality. It is
not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that he
must be shown to be incapable of doing so due to some psychological illness.62

In Marcos v. Marcos, 63 the actual medical examination of the one claimed to have psychological incapacity is not a
condition sine qua non, for what matters is the totality of evidence to sustain a finding of such psychological incapacity.
While it behooves this Court to weigh the clinical findings of psychology experts as part of the evidence, the court's
hands are nonetheless free to make its own independent factual findings. "It bears repeating that the trial courts, as in all
the other cases they try, must always base their judgments not solely on the expert opinions presented by the parties but
on the totality of evidence adduced in the course of the proceedings."64

With specific reference to the case before us, even granting that both parties did suffer from personality disorders as
evaluated by the expert witnesses, we find that the conclusions reached by these expert witnesses do not irresistibly
point to the fact that the personality disorders which plague the spouses antedated the marriage; that these personality
disorders are indeed grave or serious; or that these personality disorders are incurable or permanent as to render the
parties psychologically incapacitated to carry out and carry on their marital duties. What can be inferred from the
totality of evidence, at most, is a case of incompatibility. For a personality disorder to be declared clinically or medically
incurable or permanent is one thing; for a spouse to refuse or to be reluctant to perform his/her marital duties is
another.65

Indeed, we are loath to overturn the findings of the RTC and the CA. More than that, too, the evidence on record do not
square with the existence of psychological incapacity as contemplated by law and jurisprudence. In the case of Nilo,
what brought about the breakdown of his relationship with Marivi was not necessarily attributable to his so-called
"psychological disorder" but can be imputed to his work and marital stress, and his ordinary human failings.
With regard to his failure to sexually perform "adequately," the same appeared to be a case of "selective impotency," as
he was turned off by Marivi's disclosure of their bed secrets to her family. Furthermore, Nilo testified that the sexual
problem with Marivi did not crop up until the birth of their second son, and that he felt that the blame was invariably and
unfairly laid on upon him, thus:

THE COURT:

The Court has just some questions with regard to the main issue. During your direct testimony; Mr. Witness, you mentioned
some of your faults which [may be] the reason why the instant case was filed. x x x one of those faults is no sex. When did
that happen? x x x

A. If I recall it right, Your Honor; I [had] some challenge[s] immediately after the first birth of my eldest son which I x x x
shared with the psychologist or psychiatrist who [had] examined me.

THE COURT:

But when you got married with your wife that was not a problem until the birth of your last son?

A. Yes, your Honor.

x x x x66

ATTY. STA. MARIA, JR.:

Q. So it is attributable to the petitioner though you claim that it is your fault, is that correct?

A. Because, your Honor, that kind of situation, I always get blamed, so for the purpose of settling all these questions,
when you make that mistake, you'll always be the one to be blamed although as per the psychologist and the
psychiatrist, there's also a reason why I am not able to perform sex to my wife because in those ten (10) years that we
were together, after the first one, [didn't] have any other affairs but I kept being blamed that I [had] just because I [was]
not able to perform sex to her. The whole family, her family knows that in that premise because I got, one time, in one of
our quarrels x x x told me, ''maybe you're not making love with my daughter because you are having an affair with
another woman." So, I know 1 made a mistake in the past but if I'm x x x kept [being] reminded of it, it's a punishment,
your Honor.

xxxx

Q. What you initially said was your fault was ... as you're now talking before this Honorable Court, is really the fault of 1he
petitioner; is that what you are saying?

A. There [were] times, your Honor, I would say it was my fault. There [were] times it was caused by her faults as well. H's
not one plus one It was hers and one plus one it was mine, it depends on the situation. We've been dealing with cases
before so not all the time it's the fault of Mrs. Cruz. And not all the time it's the fault of Mr. Cruz. It's a relationship, there are
times it's hers, there are times, it's mine but we're able to fix it until this annulment situation came.

x x x x67

Nor can it be said that Nilo's failure to provide quality time for the family was caused by his "inadequate personality
disorder" or "unresolved oedipal complex." Nilo explained that he has a taxing and demanding job, and that
unfortunately, with his working hours eating up his home life, while he was able to provide his family with an adequate
standard of living, the lack of quality time for his wife became attenuated and resulted in severing his bond with Mari vi,
who failed to understand the nature of his job. They were a happy couple during the period of courtship, and even
during the early years of their marriage. Nilo testified:

ATTY. REVILLA:

Q. x x x What was the reason why you had to stay up late?

A. Ma'am, I'm .. .in those I.T. companies that I worked for whether manager or managing director, my companies are ...
the companies are involved in sales and marketing and support so it entails entertainment of clients, entertainment of
principals coming from headquarters and entertainment of customers with my staff and other company.

Q. When you say LT., what does it stand for?

A. Information Technology.

Q. You also referred to a headquarters. What do you mean by headquarters?

A. Headquarters, if you work in a multinational company like companies I worked for, they have headquarters in Hong
Kong, they have headquarters in Singapore, they have headquarters in the U.S.

Q. So you had to entertain principals coming from [these] headquarters?

A. As a part of the job as required by the principals who [visit] us.

Q. How often were you required to stay out late because of your job?

A. Ma'am, it is unpredictable. Sometimes, we were required to stay for dinner and entertainment thereafter. Sometimes,
we can go home early also.

Q. Could you not refuse the invitations of going out and just go home and spend time with your family?

A. Sometimes I can refuse, sometimes I cannot. Because it becomes a condition of sale of the clients x x x.

xxxx

Q. So x x x what's the latest time of the night that you usually come home?

A. My objective as a husband and as a father is to really come as early as I can which I have explained on and on, your
Honor. But to meet my million dollar targets of the country, I have to do things beyond 5 o'clock. In several occasions
when I tried to go home early, to my disappointment, my kids are not at home because they were borrowed by my in-
laws to have merienda. That's why I complained to my wife that time that "please tell me if they are going with my in-
laws because I don't want to deprive them also of the few times I'm able to go home early."

Q. So, you are saying that you only have few times of coming home early?

A. Well, yes, but not very few.

Q. Okay. Have you tried to make an effort to remedy the situation?

A. Well, if I have my way to be able to direct my appointments in the South, my meetings in Amkor Anam, Mamplasan, in
Sta. Rosa then that will allow me to be home at least 5-6 o'clock. But most of my meetings in Makati, Quezon City, Manila
especially with government clients [do] allow me to go home early, your Honor.

x x x x68

THE COURT:

What about another fault you mentioned which is staying late, when did this thing happen?

A. When I came back from my assignment in Hong Kong in 1988 when I was given a new job in sales and marketing.

xxxx
THE COURT:

So before the birth of your children, that is after your marriage with the petitioner, this was not a problem?

A. Because, your Honor, I was assigned in Hong Kong and I was only twelve (12) minutes [away] by [foot] to our office x x
x.

xxxx

And I was not in [sales] and marketing, I was the Administrative Assistant of the President of IBM in Southeast Asia so it's
the ... purely management administrative work as an administrative assistant so there's [not] much of entertaining done
in Hong Kong.

THE COURT:

Okay, so in other words, at that time, that was not a problem. It was only a problem when you were appointed to your
position in ...

A. IBM.

THE COURT:

That was so many years after you got married with your wife

A We got married, your Honor, in 1987 then we went back to the Philippines in July 1988 [when] I was given a new
marketing and [sales] role as a manager of general marketing which is ... which encompasses all industries aside [from]
the government.

THE COURT:

So you mean to say that this problem of staying late only happened lately?

xxxx

A The definition, your Honor, of my family... late is when you don't make it at 7:00 o'clock or. .. [with] the family at 7:00
o'clock in the evening. So ifl don't make it at seven, I considered myself late.

THE COURT:

What is the reason why you have been late?

A Your Honor, my job is not a 9 to 5 job because we ... we call on customers, we entertain customers, partners, principals,
we also have fellowship with our teams. So, we either have dinner or we have happy hours. We also see friends after. So
but, physically I cannot do that everyday, your Honor, because I also wake up automatically at 6:00 everyday whether I
have a drink, or have dinner, or I worked out in the evening or play[ed] basketball during that time, I always wake up at
six. So if I stayed up late like previously... like 2, 3, it's gonna be a burden for me physically and [I would be] unable to
perform my job well. So, like I mentioned earlier in a hearing, your Honor, many times I tried to be home by 10 to be able
to watch. Before 10 to be able to watch the 10:00 o'clock news and be able to enjoy my ice cream while watching it.

THE COURT:

Well, one of those faults you mentioned is also working hard, why did you say that it is your fault?

A In our industry, your Honor, when you work out, you will definitely end up late several couple of times, but not all the
time.

xxxx
Your Honor, sometimes, I get all these complaints. But when they saw my picture in the newspaper or in the TV having
success stories and contract signing, they are proud of me.

THE COURT:

When you say "so proud of me," to whom are you referring x x x?

A. My family. They call me, they congratulate me, we have dinners together to celebrate but to get to that, is the
working hard and staying away from the family.

xxxx

THE COURT:

How long did you court your wife?

A. Six (6) months, your Honor.

x x x x69

THE COURT:

Could you say that you were a perfect couple at that time?

A. When we were starting, your Honor, we [were] happy, and during the time that we were in Hong Kong. But when we
went back to Manila, there are times (the witness is in tears) ... adjusting to work and family that is why it affected my
relationship to her family and combination of mistakes happened which I admitted.

THE COURT:

How would you describe your wife during your first years of marriage?

A. [She was] a very good wife.

THE COURT:

Did she perform her duties as a wife and as a mother?

A. Yes, your Honor.

THE COURT:

And was she that independent from her parents or she was too dependent [on] her parents?

A. On her performing her duties, with the ... as a wife and as a friend, she's independent. When it comes to our problems,
she would consult her family.

THE COURT:

So only those times when you have a problem. Like what problems, Mr. Witness?

A. Our relationship, your Honor.

THE COURT:
But most of the time, you were able to patch up your problems?

A. Yes, your Honor.

x x x x70

Interestingly, when asked if there was no more functional marital life between him and Marivi, Nilo candidly highlighted
his different perception from his estranged wife:

ATTY. STA MARIA, JR.:

Q. So, Mr. Witness, well in reality today, Mr. Witness, even the petitioner believes that there is no more functional marital
life in this relationship, would you agree with that?

A. If that's the way she thinks, I...I will have my own way of looking at things because ...

xxxx

Q. Even ... as I was saying since she was asking for nullity and you were asking for nullity, it's a fact of life as of today, as
you speak today that there is no more functional marital life between the two (2) of you?

A. You see, your Honor, that's why we're different. Her style is conclude and conclude. I have a different style because of
my background. I will only stop till death. I cannot share her legal counsel's statement with my own thinking, your Honor.

x x x x71

Even the psychiatrist Dr. Villegas pinpointed the differences of the estranged couple which led to squabbles -

ATTY. STA. MARIA, JR.:

Q. Doctor, from your examination of both respondent and petitioner the obligation of trust and respect for each other,
how did it not manifest in this relationship?

A.The respondent [sees] the petitioner as one who's very negativistic on him or who's very demanding and who is also
trying to put him down because according to him, the petitioner would always see his weak points rather than his strong
points.

Q. Are you saying that this developed a non-trust just between them?

A None trust. They do not trust each other anymore.1âwphi1 On the part of the petitioner, because of his womanizing
activities and on the part of the respondent, that the petitioner is always looking at his weak points rather than his strong
points.

x x x x72

It is significant to note that Marivi failed to substantiate Nilo's penchant for womanizing as a manifestation of his
psychological incapacity. Aside from her bare allegations, which were chiefly based on what other people told her, she
never presented irrefutable proof to corroborate her claims of his sexual proclivities, i.e., that these proclivities were
already existing before the marriage and during the first years of their marriage. Nilo, on the other hand, categorically
admitted to having extramarital affairs in 1992, 2002, and 2006, the period when the marriage was already on the rocks.
Neither is there evidence of Nilo's alleged oedipal complex, the manifestations of which were not cited by the experts,
that caused the couple to fall out of love.

Anent Marivi's case, based on her family history as reflected in the experts' clinical evaluation, she grew up in a well-
functioning, supportive, and emotionally healthy family environment. Even Nilo himself attested that she was a good wife
and a good mother to their children. Her demand for attention, time, love, and fidelity is normal for a wife. The anger she
felt within her is also a legitimate reaction.
Yet the psychologist Dr. Encarnacion himself acknowledged that Marivi's so-called psychological incapacity is in fact,
curable. Thus:

ATTY. REVILLA:

Q. So even without the respondent, Nilo Cruz, petitioner would still be psychologically incapacitated?

A. I beg to [differ]: from that because the needs were not fulfilled in this particular marriage, it's like a tendency to have
cancer, but if you take care of yourself with the right environment, you will not catch cancer. Those were previous
positions, that's why I called them Histrionic Personality Traits Behaviors and Features not a full blown Histrionic Personality
Disorder, the needs were badly unfulfilled in this marriage because she married a man who did not know the language
of feeling of showing some attention towards his spouse, meaning, if she is put in a relationship with a man who is able to
address these needs, she would be better, she would be better in a marriage.

Q. So this psychological incapacity of the petitioner is only dormant at

the time that she was not yet married?

A. Well, it's grave ...

Q. Was it grave already at the time ...

A. Yes, it is, it's grave but. ..

Q. Even before the marriage?

A. ... but not incurable, that is the only adjective, grave, pre-existing ...

Q. Pre-existing?

A. Grave and pre-existing, yes, incurable, no, in the sense that if she married properly if her needs were addressed, it
would not appear in that marriage.

Q. But because of her marriage to the respondent, are you saying now that her psychological incapacity now…

A. Became an incapacity, yes

Q. ... became incurable?

A. No.

xxxx

Q. Okay. I am quite curious about the curability of the personality disorder of the petitioner. Now, if her needs are
satisfied with ... in case, assuming the petitioner enters into another relationship and her needs are satisfied then her
incapacity is cured, is that what you're saying?

A. In effect, yes, in effect, yes.

Q. Would you say, what are these needs of the petitioner that [you're] ... not satisfied of the respondent?

A. Need to be paid attention to, need to be valued, need to have an effect on someone, it is a universal need. She was
made to feel that she did not have any effect on him and so are the children, x x x well, the father made the children
feel that they, wife and two sons did not have any effect on him, ma'am.

x x x x73
Q. One last question. The needs of the petitioner, like you say, do you think she was able to convey, clearly convey her
needs to the respondent, properly convey?

A. Very clearly, yes, and then when they were still not being heard, well, iyon na nga eh, yung hostility niya and
resentment would get the better of her as a ano ... so it would become dysfunctional reaction upon reaction. That's a
good question.74

Upon the view we take of this case, thus, this Court believes that the protagonists in this case are in reality simply unwilling
to work out a solution for each other's personality differences, and have thus become overwhelmed by feelings of
disappointment or disillusionment toward one another. Sadly, a marriage, even if unsatisfactory, is not a null and void
marriage.75

WHEREFORE, the Petition is DENIED.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO FRANCIS H. JARDELEZA

Associate Justice Associate Justice

NOEL GIMENEZ TIJAM

Associate Justice

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

LEONARDO-DE CASTRO, J.:

Petitioner Yolanda E. Garlet assails in this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court the:
(1) Decision[1] dated June 21, 2010 of the Court of Appeals in CA-G.R. CV No. 89142, which reversed and set aside the
Decision[2] dated November 27, 2006 of the Regional Trial Court (RTC), Branch 159, Pasig City in JDRC Case No. 6796; and
(2) Resolution[3] dated August 24, 2010 of the appellate court in the same case, which denied petitioner's Motion for
Reconsideration.

The factual antecedents of the case are as follows:

Petitioner and respondent Vencidor T. Garlet met each other sometime in 1988. They became intimately involved and as
a result, petitioner became pregnant. Petitioner gave birth to their son, Michael Vincent Garlet (Michael), out of wedlock
on November 9, 1989. Petitioner and respondent eventually got married on March 4, 1994. Their union was blessed with a
second child, Michelle Mae Garlet (Michelle), on January 23, 1997. However, petitioner and respondent started
experiencing marital problems. After seven years of marriage, petitioner and respondent separated in 2001. Petitioner
now has custody over their two children.

On May 6, 2005, petitioner filed a Petition[4] for Declaration of Nullity of Marriage on the ground of respondent's
psychological incapacity to fulfill his essential marital obligations to petitioner and their children. The Petition was
docketed as JDRC Case No. 6796. On June 30, 2005, respondent filed his Answer[5] to the Petition.

At the pre-trial, the parties admitted the following facts:

1. The petitioner and respondent contracted marriage on [March[6]] 4, 1994;

2. The parties' first son was named Michael Vincent Garlet and was born on November 9, 1989;

3. The petitioner gave birth to another child named Michelle Mae Garlet on January 23, 1997;

4. The respondent is aware that the petitioner is working in Japan as an entertainer;

5. There is no ante-nuptial agreement prior to the celebration of the marriage;

6. There is no separation of properties during the marriage;

7. The petitioner has the custody and the one supporting the children from the time the respondent lost
communication with the children as he does not exert effort to see them;

8. The petitioner admitted that the parties acquired several properties during cohabitation with qualification that
the same was bought out of the efforts and finances of the petitioner; and

9. The petitioner likewise admitted that the respondent was not subjected to psychological examination by the
psychologist sought by the petitioner with qualification that respondent was given several opportunities to
attend the psychological evaluation but failed to do so.[7]

Thereafter, trial ensued.

Testifying for petitioner were petitioner herself; Marites Ereve (Marites), petitioner's sister who served as the children's
nanny from 1993 to 2001; and Ms. Nimia Hermilia C. De Guzman (De Guzman), the clinical psychologist.

Petitioner and respondent were introduced to each other by a common friend in 1988. Respondent courted petitioner
and they became close. One day, after partying and drinking liquor with some friends, petitioner and respondent lost
their inhibitions and indulged in sexual intercourse. Petitioner became pregnant as a result. Respondent doubted if he
fathered the unborn child and refused to support petitioner. Respondent urged petitioner to have an abortion, to which
she did not agree. During petitioner's pregnancy, respondent did not visit her nor did he give any financial assistance.
After giving birth to Michael, respondent visited petitioner only once.[8]

In order to support Michael, petitioner left for Japan to work for six months as a cultural dancer. Petitioner temporarily
entrusted Michael's care and custody to her mother and siblings in Bicol. Upon returning to the Philippines, petitioner took
Michael back to live in Manila. Petitioner also brought Marites with them to Manila to serve as the nanny.[9] Respondent
visited petitioner and Michael several times but respondent still did not offer petitioner any monetary help as he was
jobless.[10]

From 1990 to 1994, petitioner returned to Japan several more times to work, but she maintained her relationship with
respondent for the sake of their son. Sometime in 1992, petitioner instructed respondent to scout for a real property on
which she may invest her money. With the money petitioner remitted, respondent purchased a 210-square meter lot in
Morong, Rizal (Morong property),[11] but registered the Transfer Certificate of Title (TCT) No. M-38509[12] covering said
property in his name. Despite petitioner's pleas, respondent refused to transfer the certificate of title to the Morong
property in petitioner's name.[13] Later on, respondent, without petitioner's consent, sold a 69-square meter portion of the
Morong property to spouses Avelino Garlet (Avelino) and Cipriana A. Garlet, respondent's brother and sister-in-law,
respectively, who secured TCT No. M-56993 for said portion in their names.[14] Respondent also mortgaged the Morong
property to his sister-in-law's friend, which forced petitioner to redeem it for P50,000.00.[15]

Petitioner bought another parcel of land in Pila, Laguna on March 3, 1994 (Pila property).[16] Respondent insisted on
including his name as one of the buyers in the deed of sale for the Pila property even though he was jobless and had no
money to contribute for the purchase of said property.[17]

It was also in 1992 that petitioner and respondent started living together on the Morong property. They often quarreled
but respondent stayed with petitioner because she was the breadwinner of the family. Respondent later asked petitioner
to marry him. Thinking it was for the best interest of their son, petitioner agreed and she married respondent on March 4,
1994.[18]

After their wedding, respondent turned into a "selfish, greedy, irresponsible, philandering and physically abusive
husband." From 1994 to 1997, their family relied on petitioner's savings for their needs. Petitioner purchased a jeepney to
augment their family's finances but respondent did not ply the jeepney.[19]

Petitioner hoped and asked respondent to change his ways. But even after the birth of their daughter, Michelle,
respondent never bothered to look for a stable job. Worse, respondent maintained his vices of gambling, drinking, and
womanizing.[20] Respondent neglected Michael and Michelle, and relied on Marites to take care of the children.[21]

In 1998, petitioner was forced to work in Japan again as all her savings had been exhausted. Petitioner was able to save
enough money to invest in a mini-grocery store. Petitioner placed respondent in charge of the store but the store
suffered losses, which respondent could not account. Petitioner infused additional capital into the store but it still
ultimately closed.[22]

Upon returning to the Philippines in 2000, petitioner felt devastated upon learning that respondent had squandered her
hard-earned money, pawned her jewelry, and incurred debts in her name.[23] Petitioner also discovered the incident
when respondent allowed a "male friend" to sleep in the master's bedroom. According to petitioner, this was highly
unusual as they never previously allowed anyone to sleep at their house.[24]

Additionally, every time petitioner came home and brought presents for her parents and siblings, respondent got angry
and demanded from petitioner all her earnings.[25]

Petitioner and respondent were fighting constantly. Sometime in 2001, they had a serious altercation during which,
respondent strangled petitioner. Fortunately, a third person intervened and saved petitioner.[26]

Petitioner and respondent tried to settle their marital issues before the barangay. There, respondent admitted taking
petitioner's money and jewelry because he had no means to support himself and the family. Realizing that there was no
more love and respect between them and that respondent was just using her, petitioner finally separated from
respondent.[27] Petitioner and respondent executed on September 10, 2001 before the barangay a Kasunduang Pag-
aayos[28] wherein they agreed that respondent would leave the house in exchange for the jeepney, tricycle, and
P300,000.00; and that respondent would have visitation rights, i.e., twice a week, over their children. Since the
separation, petitioner had been solely supporting their children with the income from her businesses in Bicol, Bulacan,
and Pasig.

Petitioner filed an application for support, alleging that she had been spending approximately P15,000.00 a month for
the two children, and paying the children's tuition fees in the following amounts[29]:

Michael Michelle
Grade 6 P 18,118.10 Nursery P 18,280.00
1st year high school 20,366.00 Grade 1 21,741.00
2nd year high school 24,241.00 Grade 2 15,050.00
3rd year high school 26,996.00 Grade 3 17,704.00
4th year high school 29,676.00

In addition, petitioner had expended around P15,000.00 for the children's medical and dental needs and about
P100,000.00 for the children's clothing needs since 2001. As the children would be starting school again, Michael would
need P15,000.00 for his tuition fee for the first semester in college, plus P20,000.00 for his monthly allowance, books,
supplies, and other miscellaneous expenses; while Michelle would need P30,000.00 for her annual tuition fee, as well as
P15,000.00 for food allowance, school supplies, tutorials, clothing, and other miscellaneous expenses.[30]

Considering the children's foregoing expenses, petitioner asserted that her demand for respondent to pay P20,000.00 per
month, or P10,000.00 a month for each child, was just and reasonable.[31]

Clinical psychologist, Ms. De Guzman, reported that she interviewed petitioner and gathered information from the
couple's relatives and neighbors.[32] Ms. De Guzman's attempts to talk to respondent at his house were unsuccessful. Ms.
De Guzman, however, explained that her failure to personally interview respondent would not affect her findings, saying
that "what is being tapped in the psychological assessment is the unconscious level, more or less. And what is
represented or uncovered in the unconscious level would be correlated to the manifested behavior. Having observed
the respondent since the time that I have been appearing in this case, there are some aspects or some attitudes and
behaviors that correlated with the descriptions of those people whom I interviewed."[33]

In her report entitled "Psychological Capacity of Petitioner Yolanda Ereve Garlet"[34] (Psychological Report), Ms. De
Guzman cleared petitioner of any psychological disorder, saying that petitioner has the capacity to understand and
comply with her marital obligations. In contrast, Ms. De Guzman found respondent to be suffering from a narcissistic type
of personality disorder. Quoted below are Ms. De Guzman's test results and her evaluation of both petitioner and
respondent:

Petitioner is endowed with an average intellectual capacity and possesses practical sounding cognitive skills that
enables her to confront her challenges in an efficient manner. However, her better judgment and analytical functions
are inclined to falter when pressures and stresses overwhelm her.

Personality profile reveals a woman who is overly submissive to the point of being gullible such that she normally gets the
raw end of a deal in most social situations. As much as possible, she would want a smooth sailing interaction especially
with her loved ones, trying to compensate for lost time when she is not around them.

She is however, the type who knows and honors her commitments and obligations even if the people she trusts, as in the
case of her wayward husband – Respondent have already betrayed her.

She is basically goal-focused and independent-minded but these mature and positive traits easily dwindle when her
sentimental nature gets the better of her. She welcomes praises and attention accorded to her by her milieu such that
she sometimes fail to decipher who among them are merely taking advantage of her generosity/kindness.
Consequently, she easily gets fooled, particularly as she could really be too trusting.

Assertiveness and strength of character are the least among her traits but Petitioner always makes it a point to maintain
a positive outlook and disposition in life despite her failures. She is very sensitive and considerate of the feelings of other
people.

Pyschosexual adjustment is basically adequate even if she has developed a wary attitude towards members of the
opposite sex.

Over-all analysis of the test data failed to yield traces of any on-going psychopathological condition nor of any type of
personality disorder. Thus, Petitioner is still Psychologically Capacitated to understand, comply and execute her marital
obligations.

The same could not be said as true for the Respondent who is undoubtedly suffering from the Narcissistic Type of
Personality Disorder, as evidenced by the following symptomatic behavior:

1. He is unable to maintain his own direction in life without the financial help and support of other people. He
clings to the Petitioner, who is the breadwinner, sacrificing to be away from home to be able to build up a
stable future, for his finances. He also maintains an amorous relationship with different women as a source of
added emotional support, boost of and satisfaction of his self-directed/immediate needs and desires.

2. He is not motivated to work and likewise capitalizes on his physical assets to attain what he wants to achieve.

3. He is contented with his present lifestyle without thought of others and has no foresight to prepare for a healthy
family, emotionally and socially. He is not bothered by his conscience and even flaunts his indiscretions publicly.

4. He has marked adjustment difficulties with his immediate relatives.

5. He has a very poor impulse control, easily using invectives/verbal tirades and at times unable to control his
aggressions that physical fights with Petitioner arose.

6. He took advantage of Petitioner's kindness, resourcefulness and industry, by not fulfilling his part of the marriage
covenant. He never cared nor attended to his children but often delegated them to whoever would be willing
to assist him.

7. He appears not to make use of his judgment and decision making abilities as he is under the mercy of his
immature impulses where the important aspect of his life, is himself and immediate gratification of his needs.

Thus, attending to his responsibility, understanding and complying with his obligations in marriage are beyond his
capacity. Conclusively, the breakdown of their marriage could be traced to Respondent's aforementioned traits plus his
inadequacy and insecurity in dealing with mature roles. Respondent's traits and attitudes have been present even
before marriage so that to effect any change or improvement in his dispositions, would be difficult to do. The
Psychological Incapacitation is pervasive, permanent and clinically proven to be incurable. Respondent has accepted
it as his means of coping with stressing life demands and is not aware that it was the source of their estrangement and
final breakdown of their marital relationship.

The root cause of which started in his early days of training where ambivalent/matter-of-fact treatment was received
from immediate caregivers. Because of his ordinal position among the children, being the youngest boy, he was always
given the choice of what to do, favored or praised. He was not able to overcome such indulgence, carried it to his
adolescent/adult years, as he was always given the most attention.

Contrarily, they were also somehow neglected because of financial lack so much so that parents had to work overtime
to earn adequately for their living. Respondent together with his younger siblings were left to the care of elder
brothers/sisters who just simply/literally followed what their parents would want of them. Guidance and discipline were
imposed upon the elder siblings but became oblivious towards the Respondent. It developed in Respondent on how he
would go about his life without experiencing the deprivation and hardship that he had undergone. He became self-
focused and at the same time hunted for women vulnerable to his superficialities.

Thus, they are better off apart for the sake of everyone who are within their bounds of reach" for Respondent does not
realize the pain he is causing towards other people, specifically his legal wife – the Petitioner as well as their children.

It is therefore recommended that their marriage covenant be dissolved for everyone's peace of mind, through due
process in this Honorable Court.[35]

Respondent testified on his own behalf. However, in an Order[36] dated September 14, 2006, the RTC declared
respondent's direct testimony stricken off the record because of respondent's failure to appear for his cross-examination.
After petitioner submitted her Memorandum,[37] the case was deemed submitted for decision.[38]

In its Decision dated November 27, 2006, the RTC gave weight to Ms. De Guzman's conclusion that respondent was
suffering from a Narcissistic Personality Disorder and ruled that:

Based on the evidence submitted, the parties never shared a true married life.

After a careful evaluation of the records, this Court finds the petition to be impressed with merit. The respondent is
described as suffering from narcissistic personality disorder found to be permanent, severe, serious, and incurable,
rendering him as psychologically incapacitated to perform the marital obligations.

Respondent neglected his obligations as a husband and father to their children. Even prior to the marriage, the
respondent manifested his psychological incapacity. He suspected the paternity of his son with the petitioner and even
turned his back upon learning it. He has visited only on the day of giving birth by the petitioner of their son. He never
cared for his son and would only visit him once in a while. He never worked to support his son. In fact, the respondent
was financially dependent on the petitioner even before the marriage. He defrauded the petitioner by registering all the
properties bought by the petitioner from the latter's exclusive income under his name declaring themselves as married.
Worst, he sold a portion of the property in Morong without the knowledge of the petitioner.

During the marriage, the respondent's laziness became manifest. He focused on his self and does not care who gets hurt
for as long as it satisfies him. He gambles and drinks at the expense of the petitioner. He was given the chance to earn
for himself and for the family and still, he did not handle it well and instead continued with his vices.

The respondent disregarded his obligations to spend quality time with the petitioner and especially with their children. He
even committed infidelities.

All deeds and actions of the respondent are clear demonstrations of an utter insensitivity or inability to give meaning and
significance to the marriage.

By reason of the respondent's immaturity and irresponsibility stemming from his NARCISSISTIC PERSONALITY DISORDER, he
was unable to fulfill his duties and responsibilities towards his wife and children, thus constituting psychological
incapacity.

The psychological report shows that respondent's psychological incapacity is characterized by juridical antecedence as
it was found to have existed even prior to the time he contracted marriage with petitioner. Respondent's personality
disorder, the root cause of which can be traced in his childhood years was found to be pervasive and permanent. Being
the youngest boy, Respondent was always favored and praised but was not properly guided and disciplined by his
parents as the latter were pre-occupied with improving their finances.
It also speaks of gravity because respondent is incapable of rendering marital obligations like commitment, fidelity, trust,
support and love toward the petitioner and their children which are very vital in a marital relationship. In fact, Ms. De
Guzman stated in her report that attending to his responsibilities, understanding and complying with his obligations in
marriage are beyond respondent's capacity.

It is incurable because the psychological incapacity of the respondent is deeply rooted, it is already in his character. No
amount of therapy, no matter how intensive, can possibly change the respondent insofar as incapability to perform his
essential marital obligations with the petitioner and to his children are concerned. Respondent has already accepted
such incapacity as his means of coping with stressing life demands.[39]

The RTC further held that all of the properties which were acquired during the marriage were bought with petitioner's
exclusive funds, thus, negating the presumption of equality of shares between the parties in a void marriage under
Article 147 of the Family Code. The RTC awarded the custody of the children to petitioner, but granted weekly visitation
rights to respondent and ordered respondent to give support to the children.

In the end, the RTC adjudged:

WHEREFORE, judgment is hereby rendered declaring the marriage between YOLANDA EREVE GARLET and VENCIDOR
TAEP GARLET held at the Office of the Mayor, Morong, Rizal on March 4, 1994, as NULL AND VOID AB INITIO on [the]
ground of psychological incapacity of the respondent to perform the essential marital obligations in accordance with
Article 36 of the Family Code, with all the legal effects thereon.

The property relation between the petitioner and respondent under Article 147 of the Family Code is deemed
DISSOLVED. The real properties acquired prior to marriage and cohabitation is hereby declared exclusive properties of
the petitioner particularly the real property covered by Transfer Certificate [of Title] No. M-38509 of the Registry of Deeds
of Rizal; and the tricycle and jeepney covered by Certificate of Registration Nos. 13175616 and 27224267, respectively.

The parties are directed to submit list of properties for liquidation, partition and distribution; and the delivery of
presumptive legitime of their common children with notice to their creditors upon finality of this decision.

The custody of the children, namely: 1) Michael Vincent E. Garlet; and 2) Michelle Mae E. Garlet is hereby awarded to
the petitioner subject to visitorial right of the respondent once a week at the most convenient time of the said children.
The respondent is hereby adjudged to give support to the children in the amount of P3,000.00 a month each to be
deposited every 5th day of the month in their respective bank accounts under trust of the petitioner; and he is hereby
directed to provide at least one-half of the cost of their education.

The petitioner shall revert to the use of her maiden name.

The Local Civil Registrars of Morong, Rizal, and Pasig [City] are directed to cause the entry of the foregoing judgment in
the Book of Marriages upon issuance thereof.

A decree of declaration of nullity of marriage shall be issued upon compliance with the foregoing judgment.[40]

The RTC denied respondent's Motion for Reconsideration in its Order dated February 26, 2007.

Respondent's appeal before the Court of Appeals was docketed as CA-G.R. CV No. 89142. The Court of Appeals, in its
Decision dated June 21, 2010, reversed the RTC judgment, reasoning as follows:

[W]e scrutinized the totality of evidence adduced by Yolanda and found that the same was not enough to sustain a
finding that Vencidor was psychologically incapacitated.

In essence, Yolanda wanted to equate Vencidor's addiction to alcohol, chronic gambling, womanizing, refusal to find a
job and his inability to take care of their children as akin to psychological incapacity. At best, Yolanda's allegations
showed that Vencidor was irresponsible, insensitive, or emotionally immature. The incidents cited by Yolanda did not
show that Vencidor suffered from a psychological malady so grave and permanent as to deprive him of awareness of
the duties and responsibilities of the matrimonial bond.

Yolanda's portrayal of Vencidor as jobless and irresponsible is not enough. It is not enough to prove that the parties failed
to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of
doing so, due to some psychological illness. Indeed, irreconcilable differences, sexual infidelity or perversion, emotional
immaturity and irresponsibility, and the like, do not by themselves warrant a finding of psychological incapacity under
Article 36, as the same may only be due to a person's refusal or unwillingness to assume the essential obligations of
marriage and not due to some psychological illness that is contemplated by this rule. What the law requires to render a
marriage void on the ground of psychological incapacity is downright incapacity, not refusal or neglect or difficulty,
much less ill will.

In ruling for Yolanda, the trial court gave credence to the psychological report prepared by Ms. De Guzman. x x x

While it is true that courts rely heavily on psychological experts for its understanding of human personality, still the root
cause of the psychological incapacity must be identified as a psychological illness, its incapacitating nature fully
explained, and said incapacity established by the totality of the evidence presented during trial. Likewise, although
there is no requirement that a party to be declared psychologically incapacitated should be personally examined by a
physician or a psychologist (as a condition sine qua non), there is nevertheless still a need to prove the psychological
incapacity through independent evidence adduced by the person alleging said disorder.

In the instant case, the root cause of the alleged psychological incapacity, its incapacitating nature and the incapacity
itself were not sufficiently explained. What can be perused from the psychological report prepared by Ms. De Guzman is
that it only offered a general evaluation on the supposed root cause of Vencidor's personality disorder. The report failed
to exhaustively explain the relation between being a pampered youngest son and suffering from a psychological
malady so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial
bond.

The psychological report failed to reveal that the personality traits of Vencidor were grave or serious enough to bring
about an incapacity to assume the essential obligations of marriage. Ms. De Guzman merely stated in the said report
that it is beyond the capacity of Vencidor to attend to his responsibility and understand and comply with his marital
obligations. Such statement is a mere general conclusion which, unfortunately, is unsubstantiated. We cannot see how
Vencidor's supposed personality disorder would render him unaware of the essential marital obligations or to be
incognitive of the basic marital covenants that concomitantly must be assumed and discharged by him.

Also, we cannot help but note that Ms. De Guzman's conclusions about Vencidor's psychological incapacity were
primarily based on the informations fed to her by Yolanda whose bias for her cause cannot be doubted. Moreover, Ms.
De Guzman testified that the informations that she obtained from Yolanda were the result of one-hour interview with
Yolanda and initial testing given at intervals.

While this circumstance alone does not disqualify the psychologist for reasons of bias, her report, testimony and
conclusions deserve the application of a more rigid and stringent set of standards. Ms. De Guzman only examined
Vencidor from a third-party account. To make conclusions on x x x Vencidor's psychological condition based on the
information fed by Yolanda, during a one-hour interview, is not different from admitting hearsay evidence as proof of the
truthfulness of the content of such evidence.

It remains settled that the State has a high stake in the preservation of marriage rooted in its recognition of the sanctity of
married life and its mission to protect and strengthen the family as a basic autonomous social institution. Hence, any
doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and
nullity. Presumption is always in favor of the validity of marriage. Semper praesumitur pro matrimonio.[41]

The dispositive portion of the foregoing Court of Appeals Decision reads:

WHEREFORE, in view of the foregoing premises, the instant appeal is hereby GRANTED. Accordingly, the assailed Decision
dated November 27, 2006 and the Order dated February 26, 2007 are hereby REVERSED and SET ASIDE. The marriage
between herein parties is hereby declared as still subsisting and valid.[42]

Petitioner received a copy of the Decision of the appellate court on June 28, 2010. Petitioner filed a motion[43] seeking an
extension of twenty days, or until August 2, 2010, within which to file a motion for reconsideration. Petitioner filed her
Motion for Reconsideration on August 2, 2010. However, the Court of Appeals issued a Resolution[44] on August 24, 2010
denying petitioner's Motion for Reconsideration for being filed out of time, citing the ruling in Habaluyas Enterprises, Inc.
v. Japzon[45] that the filing of the motion for extension of time does not toll the fifteen-day period for filing a motion for
reconsideration.

Petitioner seeks redress from this Court through the instant Petition, grounded on the following assignment of errors:

THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN REVERSING THE DECISION OF THE TRIAL COURT
AND DECLARING THAT THE MARRIAGE BETWEEN YOLANDA GARLET AND VENCIDOR GARLET TO BE SUBSISTING. THE COURT
OF APPEALS MISINTERPRETED AND MISAPPRECIATED THE APPLICABLE LAW AND JURISPRUDENCE OF THE CASE.

II

THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS DISCRETION IN DENYING THE MOTION FOR EXTENSION OF TIME
TO FILE MOTION FOR RECONSIDERATION AND CONSEQUENTLY DECREEING THAT THE MOTION FOR RECONSIDERATION
WAS FILED OUT OF TIME.[46]

Petitioner avers that the Court of Appeals erred in (a) disregarding Ms. De Guzman's findings for being based solely on
petitioner's version of events, which was a third party account; (b) treating petitioner's evidence as "no different from
hearsay;" (c) finding that the root cause of respondent's psychological incapacity was not sufficiently explained; and (d)
declaring the marriage of petitioner and respondent as valid.

Petitioner argues that based on Marcos v. Marcos,[47] it is not required that the psychologist personally examine the
spouse who is alleged to be suffering from a psychological disorder. What matters is that the totality of petitioner's
evidence establish psychological incapacity.

Petitioner asserts that her evidence consists of not just her testimony, but also those of her witnesses. Petitioner's
description of her marriage was substantiated by the statements of respondent's brother, sister-in-law, and neighbors,
which were incorporated in the Psychological Report. What is more, the root cause of respondent's psychological
incapacity had been properly alleged in the Petition, clinically identified, and proven by Ms. De Guzman in her
testimony and her Psychological Report. Petitioner points out that the RTC gave considerable weight to her evidence,
and found respondent to be suffering from a Narcissistic Personality Disorder so permanent, serious, severe, and
incurable that it rendered respondent incapable of performing his marital obligations. Considering that the RTC had the
opportunity to observe the demeanor of the witnesses when they testified, its findings are entitled to respect from the
appellate courts. Underscoring the importance of the appreciation of the facts by the trial court in determining whether
a party to a marriage is psychologically incapacitated, petitioner refers to the case of Ngo Te v. Gutierrez Yu-
Te [48] wherein the findings of the trial court were declared to be final and binding on the appellate courts. Based on the
totality of the evidence, petitioner maintains that her marriage should be declared null and void on account of
respondent's psychological incapacity.

Lastly, petitioner alleges that the Court of Appeals erred in denying her Motion for Reconsideration for being filed out of
time based on Habaluyas Enterprises, and pleads for liberality in the application of the rules in the interest of substantial
justice.

The Petition is without merit.

The Court shall first address the procedural issue regarding the denial of petitioner's Motion for Reconsideration by the
Court of Appeals for being filed out of time.

In its Resolution issued on May 30, 1986 in Habaluyas Enterprises, the Court already elucidated, for the guidance of Bench
and Bar, that:

1.) Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for
extension of time to file a motion for new trial or reconsideration may be filed with the Metropolitan or Municipal Trial
Courts, the Regional Trial Courts, and the [Court of Appeals]. Such a motion may be filed only in cases pending with the
Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension
requested.[49]

The foregoing rule is still good presently. The Court, in the more recent case of V.C. Ponce Company, Inc. v. Municipality
of Parañaque,[50] still observed strict adherence to the rule laid down in Habaluyas Enterprises. The Court acknowledged
in said case that it sometimes allowed a liberal reading of the rules in the interest of equity and justice, so long as the
petitioner is able to prove the existence of cogent reasons to excuse its non-observance. However, the Court also found
therein that petitioner's reason for failing to meet the deadline, i.e., it was without aid of counsel, did not warrant a
relaxation of the rules as "it is incumbent upon the client to exert all efforts to retain the services of new counsel."

Petitioner's counsel in the instant case sought extension of time to file the motion for reconsideration of the Court of
Appeals Decision claiming that she had already started the draft of said motion but was unable to finalize the same
"due to heavy pressure of work in the preparation of pleadings in other equally important cases requiring immediate
attention."[51] The excuse of petitioner's counsel does not constitute cogent reason or extraordinary circumstance that
warrant a departure from the general rule. Pressure and large volume of legal work do not excuse a counsel for filing a
pleading out of time. It is the counsel's duty to devote his/her full attention, diligence, skills, and competence to every
case that he/she accepts.[52]

The Court stressed in De Leon v. Hercules Agro Industrial Corporation[53] that compliance with the reglementary period
for perfecting an appeal is not only a procedural issue, but jurisdictional, thus:

As the period to file a motion for reconsideration is non-extendible, petitioner's motion for extension of time to file a
motion for reconsideration did not toll the reglementary period to appeal; thus, petitioner had already lost his right to
appeal the September 23, 2005 decision. As such, the RTC decision became final as to petitioner when no appeal was
perfected after the lapse of the prescribed period.

Doctrinally-entrenched is that the right to appeal is a statutory right and the one who seeks to avail that right must
comply with the statute or rules. The requirements for perfecting an appeal within the reglementary period specified in
the law must be strictly followed as they are considered indispensable interdictions against needless delays. Moreover,
the perfection of appeal in the manner and within the period set by law is not only mandatory but jurisdictional as well,
hence, failure to perfect the same renders the judgment final and executory.

The CA correctly ordered that petitioner's appellant's brief be stricken off the records. As the CA said, the parties who
have not appealed in due time cannot legally ask for the modification of the judgment or obtain affirmative relief from
the appellate court. A party who fails to question an adverse decision by not filing the proper remedy within the period
prescribed by law loses his right to do so. As petitioner failed to perfect his appeal within the period for doing so, the
September 23, 2005 decision has become final as against him. The rule is clear that no modification of judgment could
be granted to a party who did not appeal. It is enshrined as one of the basic principles in our rules of procedure,
specifically to avoid ambiguity in the presentation of issues, facilitate the setting forth of arguments by the parties, and
aid the court in making its determinations. It is not installed in the rules merely to make litigations laborious and tedious for
the parties. It is there for a reason.

Petitioner received a copy of the Decision dated June 21, 2010 of the Court of Appeals on June 28, 2010 and the 15-day
reglementary period expired on July 13, 2010 without her filing a motion for reconsideration or an appeal, hence, the
said judgment already became final.

Moreover, the Court is unconvinced that it should set aside the finality of the Court of Appeals judgment for the sake of
substantive justice, as the appellate court did not commit reversible error in ruling that the marriage of petitioner and
respondent is subsisting and valid because petitioner failed to establish respondent's psychological incapacity.

Petitioner insists on respondent's psychological incapacity, a ground for declaration of nullity of marriage under Article 36
of the Family Code,[54] which provides:

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization.

Jurisprudence had laid down guiding principles in resolving cases for the declaration of nullity of marriage on the ground
of psychological incapacity. In Azcueta v. Republic,[55] the Court presented a summation of relevant jurisprudence on
psychological incapacity, reproduced hereunder:

Prefatorily, it bears stressing that it is the policy of our Constitution to protect and strengthen the family as the basic
autonomous social institution and marriage as the foundation of the family. Our family law is based on the policy that
marriage is not a mere contract, but a social institution in which the state is vitally interested. The State can find no
stronger anchor than on good, solid and happy families. The break up of families weakens our social and moral fabric
and, hence, their preservation is not the concern alone of the family members.

Thus, the Court laid down in Republic of the Philippines v. Court of Appeals and Molina stringent guidelines in the
interpretation and application of Article 36 of the Family Code, to wit:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor
of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that
both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes
an entire Article on the Family, recognizing it "as the foundation of the nation". It decrees marriage as legally "inviolable",
thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by
the state.
The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence,
inviolability and solidarity.

(2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code
requires that the incapacity must be psychological – not physical, although its manifestations and/or symptoms may be
physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an
extent that the person could not have known the obligations he was assuming, or knowing them, could not have given
valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application
of the provision under the principle of ejusdem generis (Salita v. Magtolis, 233 SCRA 100, 108), nevertheless such root
cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may
be given by qualified psychiatrists and clinical psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must
show that the illness was existing when the parties exchanged their "I do's". The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not
related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to
procreate, bear and raise his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of
marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be
accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or
difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the
husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such
non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of
the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while
not controlling or decisive, should be given great respect by our courts x x x.

In Santos v. Court of Appeals, the Court declared that psychological incapacity must be characterized by (a) gravity,
(b) juridical antecedence, and (c) incurability. It should refer to "no less than a mental, not physical, incapacity that
causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage." The intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity
or inability to give meaning and significance to the marriage.

However, in more recent jurisprudence, we have observed that notwithstanding the guidelines laid down
in Molina, there is a need to emphasize other perspectives as well which should govern the disposition of petitions for
declaration of nullity under Article 36. Each case must be judged, not on the basis of a priori assumptions, predilections
or generalizations but according to its own facts. In regard to psychological incapacity as a ground for annulment of
marriage, it is trite to say that no case is on "all fours" with another case. The trial judge must take pains in examining the
factual milieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial
court. With the advent of Te v. Te, the Court encourages a reexamination of jurisprudential trends on the interpretation of
Article 36 although there has been no major deviation or paradigm shift from the Molina doctrine. (Citations omitted.)

It bears to stress that the burden of proving the nullity of the marriage falls on petitioner. Petitioner's evidence shall still be
scrutinized and weighed, regardless of respondent's failure to present any evidence on his behalf. Any doubt shall be
resolved in favor of the existence and continuation of the marriage. Tested against the present guidelines, the Court
agrees with the Court of Appeals that the totality of petitioner's evidence is insufficient to establish respondent's
psychological incapacity.

Petitioner imputes almost every imaginable negative character trait against respondent, but not only do they not
satisfactorily constitute manifestations of respondent's psychological incapacity as contemplated in the Family Code,
petitioner's averments are riddled with inconsistencies that are sometimes contradicted by her own evidence.

Petitioner avers that respondent tried to persuade her to have an abortion when she became pregnant with Michael
and respondent even questioned Michael's paternity. Yet, notably, respondent never sought the correction of Michael's
Certificate of Live Birth, which specifically named him as Michael's father. The following verbal exchanges between the
couple in the Kasunduang Pag-aayos[56] also show that respondent acknowledged his children with petitioner, namely,
Michael and Michelle, and was concerned with their welfare:

Yoly - Ayoko na nga basta umalis ka sa bahay natin at kung hindi ka aalis kami ng mga anak mo ang aalis.

Vencidor
Paano mga anak natin, sinong mag-aalaga sa kanila.
–

Yoly – Ako na ang bahala sa mga anak ko bubuhayin ko sila.

xxxx

Makikita mo pa naman ang mga anak mo, puwede mo rin naman dalawin kahit dalawang beses sa
Yoly –
isang lingo.

Vencidor Ayoko yata Yoly na magkahiwalay tayo paano na ako, sino ang mag-iintindi sa mga anak ko,
– halimbawa na umalis ka uli papunta abroad.

Even assuming that respondent initially reacted adversely to petitioner's pregnancy with Michael, it would appear from
respondent's subsequent actuations that he had come to accept that he is indeed Michael's father.

In her testimony, petitioner claimed that her relationship with respondent was cut off when she got pregnant; that
respondent never visited her during her pregnancy; and that respondent visited her only once after she gave birth to
Michael on November 9, 1989. According to petitioner, she had no relationship with respondent until she purchased the
Pila property on March 3, 1994.[57] The records, though, bear out the continuous relationship between petitioner and
respondent. First, petitioner stated in her own Memorandum before the RTC that she "did not sever her ties with
[respondent]."[58] Second, petitioner remitted money to respondent sometime in 1992 for the purchase of the Morong
property, where they eventually lived. Third, Ms. De Guzman recounted in her Psychological Report that sometime "[i]n
1992, Petitioner and Respondent started to live [in] Morong, Rizal."[59] And fourth, petitioner married respondent on March
4, 1994, which would just be the day after she bought the Pila property.

Petitioner further alleges that respondent meddled with the purchase and registration of the Morong and Pila properties.
Although he did not make any monetary contribution at all for the said purchases, respondent registered the TCT of the
Morong property in his name and as one of the owners in the TCT of the Pila property. In addition, respondent
purportedly sold a portion of the Morong property without petitioner's consent. But the Court notes that petitioner and
respondent had already deported themselves as husband and wife long before the purchase of the Morong and Pila
properties and their actual marriage. Petitioner had a direct hand in the preparation of Michael's Certificate of Live Birth
in 1989 and she made it to . appear therein that she and respondent were already married on December 27, 1988 in
Pasay City. It is not inconceivable, therefore, that petitioner and respondent continued to misrepresent themselves as a
married couple in the purchase of the Pila property and in the case of the Morong property, the purchase took place
when petitioner was then working in Japan. It appears that petitioner belatedly renounced respondent's authority to
purchase and register the subject properties, as well as to sell a portion of the Morong property, only after their
relationship had gone sour.

Furthermore, petitioner complains about respondent's joblessness, gambling, alcoholism, sexual infidelity, and neglect of
the children during their marriage.

Contrary to petitioner's assertion, it appears that respondent took on several jobs. As indicated in Michael's Certificate of
Live Birth, respondent's occupation was listed as a "vendor." Respondent was also in-charge of the mini-grocery store
which he and petitioner put up. Most recently, respondent worked as a jeepney driver. Petitioner's claim that respondent
never plied the jeepney[60] was contradicted by her own sister and witness, Marites, who testified that respondent
sometimes plied the jeepney himself or asked somebody else to drive it for him.[61] Petitioner criticized respondent for not
looking for a stable job, but did not specify what job suits respondent's qualifications. More importantly, it is settled in
jurisprudence that refusal to look for a job per se is not indicative of a psychological defect.[62]

As for respondent's alleged drinking and gambling vices, petitioner herself had no personal knowledge of the same,
relying only on what relatives relayed to her while she was in Japan.[63] Being hearsay evidence, petitioner's testimony on
the matter had no probative value[64] even if allowed by the Court as part of her narration. It is Marites, in her
testimony[65] and Sinumpaang Salaysay,[66] who recounted that petitioner would often play tong-its and mahjong until
early morning, come home drunk, sleep until afternoon, and leave again to gamble. While respondent could have
indulged in the vices of drinking and gambling, it was not established that it was due to some debilitating psychological
condition or illness or that it was serious enough as to prevent him from performing his essential marital obligations. As the
Court pronounced in Suazo v. Suazo[67]:

Habitual drunkenness, gambling and refusal to find a job, while indicative of psychological incapacity, do not, by
themselves, show psychological incapacity. All these simply indicate difficulty, neglect or mere refusal to perform marital
obligations that, as the cited jurisprudence holds, cannot be considered to be constitutive of psychological incapacity in
the absence of proof that these are manifestations of an incapacity rooted in some debilitating psychological condition
or illness.

There is utter lack of factual basis for respondent's purported sexual infidelity. Aside from petitioner's bare allegations, no
concrete proof was proffered in court to establish respondent's unfaithfulness to petitioner. Petitioner failed to provide
details on respondent's supposed affairs, such as the names of the other women, how the affairs started or developed,
and how she discovered the affairs. Ms. De Guzman, in her Psychological Report, quoted respondent's brother, Avelino,
as saying that different women often looked for and visited respondent at the latter's house after petitioner and
respondent separated, but this is still insufficient evidence of respondent's marital infidelity.

The Court already declared that sexual infidelity, by itself, is not sufficient proof that a spouse is suffering from
psychological incapacity. It must be shown that the acts of unfaithfulness are manifestations of a disordered personality
which makes the spouse completely unable to discharge the essential obligations of marriage.[68] In Navales v.
Navales,[69] the Court still found no factual basis for the husband's claim that his wife, being flirtatious and sexually
promiscuous, was psychologically incapacitated, regardless of the submitted psychological report concluding that the
wife was a nymphomaniac. The Court reasoned as follows:

The Court finds that the psychological report presented in this case is insufficient to establish Nilda's psychological
incapacity. In her report, Vatanagul concluded that Nilda is a nymphomaniac, an emotionally immature individual, has
a borderline personality, has strong sexual urges which are incurable, has complete denial of her actual role as a wife,
has a very weak conscience or superego, emotionally immature, a social deviant, not a good wife as seen in her
infidelity on several occasions, an alcoholic, suffers from anti-social personality disorder, fails to conform to social norms,
deceitful, impulsive, irritable and aggressive, irresponsible and vain. She further defined "nymphomania" as a psychiatric
disorder that involves a disturbance in motor behavior as shown by her sexual relationship with various men other than
her husband.

The report failed to specify, however, the names of the men Nilda had sexual relationship with or the circumstances
surrounding the same. As pointed out by Nilda, there is not even a single proof that she was ever involved in an illicit
relationship with a man other than her husband. Vatanagul claims, during her testimony, that in coming out with the
report, she interviewed not only Reynaldo but also Jojo Caballes, Dorothy and Lesley who were Reynaldo's sister-in-law
and sister, respectively, a certain Marvin and a certain Susan. Vatanagul however, did not specify the identities of these
persons, which information were supplied by whom, and how they came upon their respective informations. Indeed, the
conclusions drawn by the report are vague, sweeping and lack sufficient factual bases. As the report lacked specificity,
it failed to show the root cause of Nilda's psychological incapacity; and failed to demonstrate that there was a "natal or
supervening disabling factor" or an "adverse integral element" in Nilda's character that effectively incapacitated her
from accepting, and thereby complying with, the essential marital obligations, and that her psychological or mental
malady existed even before the marriage, x x x. (Citations omitted.)

That respondent delegated the care for the children to Marites, petitioner's sister, does not necessarily constitute neglect.
While it is truly ideal that children be reared personally by their parents, in reality, there are various reasons which compel
parents to employ the help of others, such as a relative or hired nanny, to watch after the children. In the instant case, it
was actually petitioner who brought Marites from Bicol to Manila to care for Michael, and also later on, for Michelle.
Granting that Marites was primarily responsible for the children's care, there is no showing that a serious psychological
disorder has rendered respondent incognizant of and incapacitated to perform his parental obligations to his children.
There is no allegation, much less proof, that the children were deprived of their basic needs or were placed in danger by
reason of respondent's neglect or irresponsibility.

Petitioner additionally accuses respondent of taking her money and jewelry after their marital dispute sometime in 2001,
and submitted the Kasunduang Pag-aayos they executed before the barangay in which respondent admitted doing so.
The submitted document recorded the exchange between the couple, thus:

Vencidor – O sige Yoly ibabalik ko yong alahas mo at pera mo magsimula uli tayo.
Yoly – Ayoko na nga makisama sa iyo, basta ibalik mo na lang ang pera ko at mga alahas ko.
Vencidor – Paano naman ako dapat tayo ay hati.
Yoly – O sige ibalik mo ang P150,000.00, at alahas ko.
Vencidor – Gawin mo namang P300,000.00.
O sige gawin mo ng Tatlong daan, pati bahay sa Pila, Laguna jeep at trysikel sa iyo na umalis ka lang
Yoly –
ng bahay.
Vencidor – Saan naman ako uuwi, pero pansamantala lang ito di ba?
Makikita mo pa naman ang mga anak mo, puwede mo rin naman dalawin kahit dalawang beses sa
Yoly –
isang lingo.
Ayoko yata Yoly na magkahiwalay tayo paano na ako, sino ang mag-iintindi sa mga anak ko,
Vencidor –
halimbawa na umalis ka uli papunta abroad.
Yoly – Ayoko na nga makisama sayo kung [di] ka aalis mapipilitan ako na itataas ko na ito kaso natin.
Vencidor – O sige kukunin ko ang pera sa bangko at ibibigay ko sa iyo dadalhin ko sa bahay.
Yoly – Ang kikita (sic) ko lagi niyang sinisilip.
Vencidor – Dapat naman mag-asawa naman tayo kung ano ang iyo ay akin rin yon di ba.
Yoly – Bakit mo kinuha ang pera ko [?]
Ginalaw ko iyon kasi inuunahan mo ako. Di mo ako pinalalapit pagtulog ay mag-asawa tayo. At yong
Vencidor –
Hapon palaging tumatawag, kaya naitago ko ang mga alahas mo. Hinabol pa niyan ng saksak.
Yoly – Sinisiraan niya ako sa Hapon ay iyon ay mga kustomer ko. Masasakit ang mga sinasabi niya sa kin.
Vencidor – Binabalewala niya ako.
Basta umalis ka na sa baliay at naibigay ko na sa iyo ang [b]ahay sa [L]aguna, jeep, trysikel at pera
Yoly – ano pa ang gusto mo[?] [S]a amin ng mga anak mo ang bahay sa Natividad St., Ibaba. Wala ka
pakialam roon at ako ang nagpundar noon.[70] (Emphases supplied.)

A perusal of the aforequoted verbal exchange between petitioner and respondent in the Kasunduang Pag-
aayos, though, reveals that respondent only hid petitioner's money and jewelry as a desperate attempt to stop
petitioner from leaving him, taking with her the children. In fact, respondent repeatedly expressed concern about saving
their marriage, offering to return the money and jewelry back to petitioner as long as they stay together. It was petitioner
who categorically stated that she no longer wanted to live with respondent, offering to the latter P300,000.00 cash, the
Pila property, the jeepney and the tricycle, just for respondent to leave their marital home.

Petitioner asserts too that she had been physically abused by respondent, but offers no substantiating evidence, such as
details on the instances of abuse, pictures of her injuries, medico-legal report, or other witness' testimony.

While the Court does not hold respondent totally without blame or free of shortcomings, but his failings as husband and
father are not tantamount to psychological incapacity which renders their marriage void from the very beginning.
Worthy of reiterating herein is the declaration of the Court in Agraviador v. Amparo-Agraviador[71] that:

These acts, in our view, do not rise to the level of psychological incapacity that the law requires, and should be
distinguished from the "difficulty," if not outright "refusal" or "neglect," in the performance of some marital obligations that
characterize some marriages. The intent of the law has been to confine the meaning of psychological incapacity to
the most serious cases of personality disorders – existing at the time of the marriage – clearly demonstrating an utter
insensitivity or inability to give meaning and significance to the marriage. The psychological illness that must have
afflicted a party at the inception of the marriage should be a malady so grave and permanent as to deprive one of
awareness of the duties and responsibilities of the matrimonial bond he or she is about to assume. (Emphases supplied,
citations omitted.)

Finally, the Court is not bound by Ms. De Guzman's Psychological Report. While the Court previously held that "there is no
requirement that the person to be declared psychologically incapacitated be personally examined by a physician," yet,
this is qualified by the phrase, "if the totality of evidence presented is enough to sustain a finding of psychological
incapacity."[72] The psychologist's findings must still be subjected to a careful and serious scrutiny as to the bases of the
same, particularly, the source/s of information, as well as the methodology employed.

In Padilla-Rumbaua v. Rumbaua,[73] the Court did not give credence to the clinical psychologist's report because:

We cannot help but note that Dr. Tayag's conclusions about the respondent's psychological incapacity were based on
the information fed to her by only one side – the petitioner – whose bias in favor of her cause cannot be doubted. While
this circumstance alone does not disqualify the psychologist for reasons of bias, her report, testimony and conclusions
deserve the application of a more rigid and stringent set of standards in the manner we discussed above. For,
effectively, Dr. Tayag only diagnosed the respondent from the prism of a third party account; she did not actually hear,
see and evaluate the respondent and how he would have reacted and responded to the doctor's probes.

Dr. Tayag, in her report, merely summarized the petitioner's narrations, and on this basis characterized the respondent to
be a self-centered, egocentric, and unremorseful person who "believes that the world revolves around him"; and who
"used love as a . . . deceptive tactic for exploiting the confidence [petitioner] extended towards him." Dr. Tayag then
incorporated her own idea of "love"; made a generalization that respondent was a person who "lacked commitment,
faithfulness, and remorse," and who engaged "in promiscuous acts that made the petitioner look like a fool"; and finally
concluded that the respondent's character traits reveal "him to suffer Narcissistic Personality Disorder with traces of
Antisocial Personality Disorder declared to be grave and incurable."

We find these observations and conclusions insufficiently in-depth and comprehensive to warrant the conclusion that a
psychological incapacity existed that prevented the respondent from complying with the essential obligations of
marriage. It failed to identify the root cause of the respondent's narcissistic personality disorder and to prove that it
existed at the inception of the marriage. Neither did it explain the incapacitating nature of the alleged disorder, nor
show that the respondent was really incapable of fulfilling his duties due to some incapacity of a psychological, not
physical, nature. Thus, we cannot avoid but conclude that Dr. Tayag's conclusion in her Report – i.e., that the respondent
suffered "Narcissistic Personality Disorder with traces of Antisocial Personality Disorder declared to be grave and
incurable – is an unfounded statement, not a necessary inference from her previous characterization and portrayal of
the respondent. While the various tests administered on the petitioner could have been used as a fair gauge to assess
her own psychological condition, this same statement cannot be made with respect to the respondent's condition. To
make conclusions and generalizations on the respondent's psychological condition based on the information fed by only
one side is. to our mind, not different from admitting hearsay evidence as proof of the truthfulness of the content of such
evidence.

The Court similarly rejected the psychiatric evaluation report presented by the petitioner in Agraviador for the following
reasons:

The Court finds that Dr. Patac's Psychiatric Evaluation Report fell short in proving that the respondent was psychologically
incapacitated to perform the essential marital duties. We emphasize that Dr. Patac did not personally evaluate and
examine the respondent; he, in fact, recommended at the end of his Report for the respondent to "undergo the same
examination [that the petitioner] underwent." Dr. Patac relied only on the information fed by the petitioner, the parties'
second child, Emmanuel, and household helper, Sarah. Largely, the doctor relied on the information provided by the
petitioner. Thus, while his Report can be used as a fair gauge to assess the petitioner's own psychological condition (as
he was, in fact, declared by Dr. Patac to be psychologically capable to fulfill the essential obligations of marriage), the
same statement cannot be made with respect to the respondent's condition. The methodology employed simply
cannot satisfy the required depth and comprehensiveness of the examination required to evaluate a party alleged to
be suffering from a psychological disorder.

We do not suggest that a personal examination of the party alleged to be psychologically incapacitated is mandatory.
We have confirmed in Marcos v. Marcos that the person sought to be declared psychologically incapacitated must be
personally examined by a psychologist as a condition sine qua non to arrive at such declaration. If a psychological
disorder can be proven by independent means, no reason exists why such independent proof cannot be admitted and
given credit. No such independent evidence appears on record, however, to have been gathered in this case.[74]

Much in the same way, the Court finds herein that Ms. De Guzman's sources and methodology is' severely lacking the
requisite depth and comprehensiveness to judicially establish respondent's psychological incapacity. Ms. De Guzman
relied on the information given by petitioner; Avelino, respondent's brother; Ramil Ereve, petitioner's brother; an
anonymous female cousin of petitioner;[75] and the couple's neighbors who refused to give their names.[76] On the basis
thereof, Ms. De Guzman determined that respondent suffered from Narcissistic Personality Disorder, the root cause of
which, Ms. De Guzman traced back to respondent, as the youngest child in the family, being favored, praised, and
indulged by his caregivers. From there, Ms. De Guzman already concluded that respondent's disorder rendered it
beyond his capacity to understand, comply, and attend to his obligations in the marriage; was present even before
marriage; and was "pervasive, permanent and clinically proven to be incurable." To put it simply, Ms. De Guzman is
saying that respondent was a spoiled child, and while it can be said that respondent has grown up to be a self-centered
and self-indulgent adult, it still falls short of establishing respondent's psychological incapacity characterized by gravity,
juridical antecedence, and incurability, so as to render respondent's marriage to petitioner void ab initio.

All told, the Court agrees with the Court of Appeals in declaring that the marriage of petitioner and respondent as
subsisting and valid. As the Court decreed in Republic v. Galang[77]:

The Constitution sets out a policy of protecting and strengthening the family as the basic social institution, and marriage
is the foundation of the family. Marriage, as an inviolable institution protected by the State, cannot be dissolved at the
whim of the parties. In petitions for the declaration of nullity of marriage, the burden of proof to show the nullity of
marriage lies with the plaintiff. Unless the evidence presented clearly reveals a situation where the parties, or one of
them, could not have validly entered into a marriage by reason of a grave and serious psychological illness existing at
the time it was celebrated, we are compelled to uphold the indissolubility of the marital tie.

WHEREFORE, premises considered, the Petition for Review on Certiorari is DENIED. The assailed Decision dated June 21,
2010 and Resolution dated August 24, 2010 of the Court of Appeals in CA-G.R. CV No. 89142 are AFFIRMED.

SO ORDERED.

Sereno, C.J., (Chairperson), Del Castillo, Perlas-Bernabe, and Caguioa, JJ., concur.

THIRD DIVISION

August 9, 2017

G.R. No. 217993

MANUEL R. BAKUNAWA III,, Petitioner,

vs.
NORA REYES BAKUNAWA,, Respondent.

RESOLUTION

REYES, JR, J.:

For resolution of the Court is a petition for review on certiorari1 filed by Manuel R. Bakunawa III (Manuel) challenging the
Decision2 dated March 27, 2014 and Resolution3 dated April 22, 2015 of the Court of Appeals (CA) in CA-G.R. CV No.
98579, which upheld the validity of his marriage to Nora Reyes Bakunawa (Nora).

The Facts

Manuel and Nora met in 1974 at the University of the Philippines where they were students and became sweethearts.
When Nora became pregnant, she and Manuel got married on July 26, 1975 at St. Ignatius Church, Camp Aguinaldo,
Quezon City.4

Because Manuel and Nora were both college undergraduates at that time, they lived with Manuel's parents. While Nora
was able to graduate, Manuel had to stop his studies to help his father in the family's construction business. Manuel was
assigned to provincial projects and came home only during weekends. This setup continued even as Nora gave birth to
their eldest child, Moncho Manuel (Moncho). However, whenever Manuel came back from his provincial assignments,
he chose to spend his limited time with friends and girlfriends instead of his family. Nora resented this and they started
quarreling about Manuel's behavior. Worse, Manuel depended on his father and on Nora for their family's needs.5

In 1976, Manuel and Nora lived separately from Manuel's parents. It was during this period th.at Manuel first observed
Nora's passiveness and laziness; she was moody and mercurial. Their house was often dirty and disorderly. Thus, Manuel
became more irritated with Nora and their verbal quarrels escalated to physical violence.6
On May 9, 1977, Nora gave birth to their second child. However, nothing changed in their relationship. Manuel spent
most of his time with friends and engaged in drinking sprees. In 1979, he had an extramarital affair and seldom came
home. He eventually left Nora and their children in 1980 to cohabit with his girlfriend. They considered themselves
separated.7

In 1985, Manuel, upon Nora's request, bought a house for her and their children. After Manuel spent a few nights with
them in the new house, Nora became pregnant again and thereafter gave birth to their third child.8

On June 19, 2008, Manuel filed a petition for declaration of nullity of marriage with the Regional Trial Court (RTC) of
Quezon City,9 on the ground that he and Nora are psychologica11y incapacitated to comply with the essential
obligations of marriage.

Manuel presented a psychiatrist, Dr. Cecilia Villegas (Dr. Villegas), who testified that Manuel has Intermittent Explosive
Disorder, characterized by irritability and aggressive behavior that is not proportionate to the cause. Dr. Villegas
diagnosed Nora with Passive Aggressive Personality Disorder, marked by a display of negative attitude and passive
resistance in her relationship with Manuel. Her findings were based on her interview with Manuel and the parties' eldest
son, Moncho, because Nora did not participate in the psychological assessment.10

Manuel alleges in his petition that he continues to live with his common-law wife and has a son with her, whereas, Nora
lives alone in her unit in Cubao, Quezon City. Their house and lot was already foreclosed following Nora's failure to pay a
loan secured by a mortgage on the said property.11

Ruling of the RTC

The R TC granted the petition in its Decision12 dated March 28, 2011. The dispositive portion thereof reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring the marriage

between MANUEL R. BAKUNAWAIII and NORAREYESBAKUNAWA null and void ab initio under Article 36 of the Family
Code.

The Office of the City Civil Registrar of Quezon City is hereby ordered to make entries into the records of the respective
parties pursuant to the judgment of the Court.

Let a copy of this Decision be furnished upon the Office of Solicitor General, the Office of the City Prosecutor of Quezon
City, the Office of the Civil Registrars of Quezon City, and the National Statistics Office, as well as the parties and counsel.

SO ORDERED.13

Nora appealed the RTC decision to the CA, arguing inter alia that the RTC erred in finding that the testimony of the
psychiatrist is sufficient to prove the parties' psychological incapacity.

Ruling of the CA

The CA, in its Decision14 dated March 27, 2014, granted Nora's appeal and reversed the RTC decision. The decretal
portion of the decision states:

WHEREFORE, premises considered, the instant appeal filed by [Nora] is GRANTED. The Decision dated March 28, 2011 of
the RTC, National Capital Judicial Region in Civil Case No. Q-08-62822 is REVERSED and SETASIDE.

SO ORDERED.15

The CA denied Manuel's motion for reconsideration16 through a Resolution17 dated April 22, 2015.

Manuel filed the present petition raising the following grounds:

I. THE HONORABLE CA ERRED WHEN IT UPHELD THE VALIDITY OF °THE MARRIAGE OF THE PARTIES DESPITE MORE THAN
CLEAR AND CONVINCING EVIDENCE TO DECLARE ITS NULLITY DUE TO THE PSYCHOLOGICAL INCAPACITY OF EITHER OR
BOTH PARTIES TO PERFORM THEIR MARITAL OBLIGATIONS; and
II. THE HONORABLE CA ERRED WHEN IT FAILED TO RECONSIDER ITS DECISION DATED MARCH 27, 2014 DESPITE MORE THAN
COMPELLING REASONS FOR THE REVERSAL THEREOF.18

Ruling of the Court

As the CA correctly ruled, the totality of evidence presented by Manuel comprising of his testimony and that of Dr.
Villegas, as well as the latter's psychological evaluation report, is insufficient to prove that he and Nora are
psychologically incapacitated to perform the essential obligations of marriage.

Dr. Villegas' conclusion that Manuel is afflicted with Intermittent Explosive Disorder and that Nora has Passive Aggressive
Personality Disorder which render them psychologically incapacitated under Article 36 of the Family Code,19 is solely
based on her interviews with Manuel and the parties' eldest child, Moncho. Consequently, the CA did not err in not
according probative value to her psychological evaluation report and testimony.

In Republic of the Philippines v. Galang,20 the Court held that "[i]f the incapacity can be proven by independent means,
no reason exists why such independent proof cannot be admitted to support a conclusion of psychological incapacity,
independently of a psychologist's examination and report."21 In Toring v. Toring, et al.,22 the Court stated that:

Other than from the spouses, such evidence can come from persons intimately related to them, such as relatives, close
friends or even family doctors or lawyers who could testify on the allegedly incapacitated spouses' condition at or about
the time of marriage, or to subsequent occurring events that trace their roots to the incapacity already present at the
time of marriage.23

In this case, the only person interviewed by Dr. Villegas aside from Manuel for the spouses' psychological evaluation was
Moncho, who could not be considered as a reliable witness to establish the psychological incapacity of his parents in
relation to Article 36 of the Family Code, since he could not have been there at the time his parents were married.

The Court also notes that Dr. Villegas did not administer any psychological tests on Manuel despite having had the
opportunity to do so. While the Court has declared that there is no requirement that the person to be declared
psychologically incapacitated should be personally examined by a physician,24 much less be subjected to
psychological tests, this rule finds application only if the totality of evidence presented is enough to sustain a finding of
psychological incapacity. In this case, the supposed personality disorder of Manuel could have been established by
means of psychometric and neurological tests which are objective means designed to measure specific aspects of
people's intelligence, thinking, or personality.25

With regard to the Confirmatory Decree26 of the National Tribunal of Appeals, which affirmed the decision of the
Metropolitan Tribunal of First Instance for the Archdiocese of Manila in favor of nullity of the Catholic marriage of Manuel
and Nora, the Court accords the same with great respect but does not consider the same as controlling and decisive, in
line with prevailing jurisprudence.27

WHEREFORE, the petition for review is hereby DENIED. The Decision dated March 27, 2014 and Resolution dated April 22,
2015 of the Court of Appeals in CA-G.R. CV No. 98579 are AFFIRMED.

SO ORDERED.

ANDRES B. REYES, JR
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice
 NOEL GIMENEZ TIJAM
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-26462 June 9, 1969

TERESITA C. YAPTINCHAY, petitioner,

vs.
HON. GUILLERMO E. TORRES, Judge of the Court of First Instance of Rizal, Pasig Branch; VIRGINIA Y. YAPTINCHAY, in her
own behalf and in her capacity as Special Administratrix in the Intestate Estate of the deceased Isidro Y. Yaptinchay and
JESUS MONZON, MARY YAPTINCHAY ELIGIR, ERNESTO YAPTINCHAY, ANTONIO YAPTINCHAY, ASUNCION YAPTINCHAY,
JOSEFINA Y. YAPTINCHAY, ROSA Y. MONZON, ISABEL Y. VALERIANO, REMEDIOS Y. YAPTINCHAY, FELICIDAD Y. ARGUELLES,
MARY DOE and JOHN DOE,respondents.

V. E. del Rosario and Associates for petitioner.

Sycip, Salazar, Luna, Manalo and Feliciano for respondents.

SANCHEZ, J.:

The problem posed in this, an original petition for certiorari, is whether or not this Court in the exercise of its supervisory
powers should stake down as having been issued in excess of jurisdiction or with grave abuse of discretion, the
respondent judge's order of June 15, 1966 in Civil Case 8873 (Court of First Instance of Rizal) directing petitioner to deliver
to Special Administratrix Virginia Y. Yaptinchay of the estate of the deceased Isidro Y. Yaptinchay the North Forbes Park
property hereinafter described, and to refrain from disturbing or interfering in any manner whatsoever with the latter's
possession thereof, such order having been amended by said respondent judge's subsequent order of June, 28, 1966 in
turn enjoining defendants in said case (private respondents herein) and/or their duly authorized agents or
representatives from selling, disposing, or otherwise encumbering said property in any manner whatsoever pending the
termination of said case. We granted the writ of preliminary mandatory injunction prayed for and directed respondents
to return the possession of the North Forbes Park property to petitioner upon a P50,000-bond.

The controlling facts are the following:

On July 13, 1965, herein petitioner Teresita C. Yaptinchay sought in the Court of First Instance of Rizal, Pasay City Branch,
her appointment first as Special Administratrix and then as regular administratrix of the estate of Isidro Y. Yaptinchay who
died in Hongkong on July 7, 1965. This is known in the record as Special Proceedings 1944-P. Petitioner there alleged that
the deceased Isidro Y. Yaptinchay had lived with her continuously, openly and publicly as husband and wife for
nineteen (19) years: from 1946 to 1964 at 1951 Taft-Avenue, Pasay City, and from 1964 to July 1965 at 60 Russel Avenue,
Pasay City; that the deceased who died without a will left an estate consisting of personal and real properties situated in
the Philippines, Hongkong and other places with an estimated value of about P500,000; that to petitioner's knowledge
and information, the deceased left three daughters, Virginia Yaptinchay, Mary Yaptinchay Eligir and Asuncion
Yaptinchay, all of age; that on July 7, 8 and 11, 1965, certain parties carted away from the residences aforesaid personal
properties belonging to the deceased together with others exclusively owned by petitioner. It was averred that in these
circumstances the appointment of a special administrator to take custody and care of the interests of the deceased
pending appointment of a regular administrator became an urgent necessity.

Upon the foregoing allegations, the court issued on July 17, 1965 an order appointing herein petitioner Teresita C.
Yaptinchay special administratrix of the state of the deceased Isidro Y. Yaptinchay upon a P25,000-bond.

To the petition of Teresita C. Yaptinchay, an opposition was registered by Josefina Y. Yaptinchay, the alleged legitimate
wife, and Ernesto Y. Yaptinchay and other children, of the deceased Isidro Y. Yaptinchay, upon the ground that said
Teresita C. Yaptinchay, not being an heir of the decedent, had no right to institute the proceeding for the settlement of
the latter's estate, much less to procure appointment as administratrix thereof; and that having admittedly cohabited
with the deceased for a number of years said petitioner was not qualified to serve as administratrix for want of integrity.
At the same time, oppositors counter-petitioned for the appointment of Virginia Y. Yaptinchay, daughter of the
deceased, as special administratrix and of Josefina Y. Yaptinchay, the alleged surviving spouse, as regular administratrix.

To give oppositors an opportunity to be heard, the probate court, on July 19, 1965, set aside its order of July 17, 1965
appointing petitioner Teresita C. Yaptinchay special administratrix.

On July 30, 1965, after the parties were heard, the probate court granted counter-petitioners' prayer and named Virginia
Y. Yaptinchay special administratrix upon a P50,000-bond.1awphil.nêt

On August 18, 1965, the special administratrix submitted a preliminary inventory of the assets of the estate of the
deceased Isidro Y. Yaptinchay. Included amongst these was "[a] bungalow residential house with swimming pool,
situated at Park corner Talisay Road, North Forbes Park, Makati, Rizal" adverted to at the start of this opinion.

It was after respondent Virginia Y. Yaptinchay had been appointed special administratrix that herein petitioner Teresita
C. Yaptinchay made her second move. That was on August 14, 1965. This time, petitioner filed in another branch (Pasig
Branch) of the Court of First Instance of Rizal an action for replevin and for liquidation of the partnership supposedly
formed during the period of her cohabitation with Isidro Y. Yaptinchay and for damages. This case was docketed as Civil
Case 8873. 1 Pending hearing on the question of the issuance of the writs of replevin and preliminary injunction prayed
for, respondent judge Guillermo E. Torres issued an order of August 17, 1965 temporarily restraining defendants therein
(private respondents here) and their agents from disposing any of the properties listed in the complaint and from
interfering with plaintiff's (herein petitioner's) rights to, and possession over, amongst others, "the house now standing at
North Forbes Park, Makati, Rizal."

On August 25, 1965, defendants (private respondents herein) resisted the action, opposed the issuance of the writs of
replevin and preliminary injunction, mainly upon these propositions: (1) that exclusive jurisdiction over the settlement of
the estate of the deceased Isidro Y. Yaptinchay was already vested in the Court of First Instance of Rizal, Pasay City
Branch in the special proceedings heretofore mentioned (Special Proceedings No. 1944-P); (2) that the present
liquidation case was filed to oust said probate court of jurisdiction over the properties enumerated in this, the second
case (Civil Case 8873); and (3) that plaintiff was not entitled to the remedy of injunction prayed for, her alleged right
sought to be protected thereby being doubtful and still in dispute.

Said defendants (private respondents before this Court) in turn prayed the court for a writ of preliminary injunction to
direct plaintiff (petitioner here) and all others in her behalf to cease and desist from disturbing in any manner whatsoever
defendant Virginia Y. Yaptinchay's possession amongst others of the North Forbes Park house and to order the removal
from the premises of said North Forbes Park house of the guards, agents and employees installed therein by plaintiff; to
enjoin plaintiff and her agents from entering the aforesaid house and any other real property registered in the name of
Isidro Y. Yaptinchay and from interfering with or from disturbing the exercise by Virginia Y. Yaptinchay of her rights and
powers of administration over the assets registered in the name of Isidro Y. Yaptinchay and/or in the latter's possession at
the time of his death.

Came the herein disputed order of June 15, 1966 issued in said Civil Case 8873, the pertinent portion of which
reads: "From the pleadings as well as the evidence already submitted and representations made to the court
during the arguments, it appears that one of the properties in dispute is the property located at the corner of
 Park Road and Talisay Street, North Forbes Park, Makati, Rizal which at the time of the death of the deceased
Isidro Y. Yaptinchay was still under construction and it also appears that after his death said property was
among the properties of the deceased placed under the administration of the special administratrix, the
defendant Virginia Y. Yaptinchay. Information has been given that in the evening of August 14, 1965, the
plaintiff was able to dispossess the special administratrix from the premises in question and that since then she
had been in custody of said house.

While the Court is still considering the merits of the application and counter-application for provisional relief, the
Court believes that for the protection of the properties and considering the Forbes Park property is really under
the responsibility of defendant Virginia Y. Yaptinchay, by virtue of her being appointed Special Administratrix of
the estate of the deceased Isidro Yaptinchay, the Court denies the petition for the issuance of a writ of
preliminary injunction of the plaintiff with respect to the Forbes Park property and the restraining order issued by
this Court is lifted. The Court also orders the plaintiff to cease and desist from disturbing in any manner
whatsoever the defendant Virginia Y. Yaptinchay in the possession of said property.

WHEREFORE, upon defendant's filing a bond in the amount of P10,000.00, let a writ of preliminary injunction is
requiring the plaintiff, her representatives and agents or other persons acting in her behalf to deliver the
possession of the property located at the corner of Park Road and Talisay Street, North Forbes Park, Makati,
Rizal to the Special Administratrix Virginia Y. Yaptinchay, and to refrain from disturbing interfering in any manner
whatsoever defendant's possession thereof.

Which, as aforestated, was amended by the court order of June 28, 1966, which in part recites:

Considering that the present case treats principally with the liquidation of an alleged partnership between the
plaintiff and the deceased Isidro Yaptinchay and considering further that said house in North Forbes Park is
included among the properties in dispute, the Court hereby clarifies its Order of June 15, 1966 by enjoining the
defendants and/or their duly authorized agents or representatives from selling, disposing or otherwise
encumbering said property in any manner whatsoever pending the termination of this case.

Petitioner's motion to reconsider the June 15, 1966 order was overturned by respondent judge's order of August 8, 1966,
which recites that:

Considering that defendants, principally Virginia Y. Yaptinchay, took actual or physical possession of the said
properties which were formerly held by the deceased Isidro Yaptinchay and the plaintiff, by virtue of her
appointment and under her authority, as Special Administratrix of the estate of the deceased Isidro
Yaptinchay, the plaintiff's Motion for Reconsideration is hereby denied.2

The orders of June 15 and August 8, 1966 triggered the present proceedings in this Court.

1. Petitioner's stance before us is this: As she was occupying the Forbes Park property at the time of the death of Isidro
Yaptinchay, grave abuse of discretion attended respondent judge's order issuing an injunctive writ transferring possession
of said property to respondent Virginia Y. Yaptinchay.

A rule of long standing echoed and reechoed in jurisprudence is that injunction is not to be granted for the purpose of
taking property out of possession and/or control of a party and placing it in that of another whose title thereto has not
been clearly established. 3 With this as guidepost, petitioner would have been correct if she were lawfully in possession of
the house in controversy when Civil Case 8873 (where the injunctive writ was issued) was commenced in the Pasig
court, and if respondent special administratrix, to whom the possession thereof was transferred, were without right
thereto. But the situation here is not as petitioner pictures it to be. It is beyond debate that with the institution on July 13,
1965 of Special Proceedings 1944-P, properties belonging not only to the deceased Isidro Y. Yaptinchay but also to the
conjugal partnership of said deceased and his legitimate wife, Josefina Y. Yaptinchay, 4 were brought under the
jurisdiction of the probate court, properly to be placed under administration.5 One such property is the lot at North
Forbes Park. 6

With respect to the Forbes Park house, petitioner offers varying versions. In the verified petition before this Court,
petitioner avers "that the construction of said North Forbes Park property was undertaken jointly by petitioner and the
deceased, petitioner even contributing her own exclusive funds therefor." 7 This is a reproduction of an allegation in
petitioner's June 27, 1966 alternative motion for reconsideration or for clarification/amendment of the herein
controverted order of June 15, 1966 in Civil Case 8873. 8 And again, in the affidavit of Teresita C. Yaptinchay dated
August 3, 1965, she spoke of the acquisition of properties, real and personal, in her own words, "through our joint efforts
and capital, among which properties are those situated" in "North Forbes Park." 9 All of which contradict her averment in
the amended complaint dated October 25, 1965 — also verified — in said Case 8873 to the effect that she "acquired
through her own personal funds and efforts real properties such as ... the house now standing at North Forbes Park,
Makati, Rizal." 10

But herein private respondents vehemently dispute petitioner's claim of complete or even partial ownership of the house.
They maintain that the construction of that house was undertaken by the deceased Isidro Y. Yaptinchay without her
(petitioner's) intervention and the deceased paid with his own personal funds all expenses incurred in connection with
the construction thereof. 11

It was only after hearing and considering the evidence adduced and the fact that after the death of Isidro Y.
Yaptinchay the Forbes Park house "was among the properties of the deceased placed under the administration of"
respondent Virginia Y. Yaptinchay, that respondent judge issued the injunction order of June 15, 1966 herein complained
of. Worth repeating at this point is that respondent judge, in his order of August 8, 1966, declared that defendants
(private respondents herein), "principally Virginia Y. Yaptinchay, took actual or physical possession", amongst others, of
the North Forbes Park house — "by virtue of her appointment and under her authority, as Special Administratrix."

On this score, petitioner herein is not entitled to the injunction she prayed for below.

2. As well established is the rule that the grant or denial of an injunction rests upon the sound discretion of the court, in
the exercise of which appellate courts will not interfere except in a clear case of abuse. 12

A considerate and circumspect view of the facts and circumstances in this case obtaining will not permit us to tag the
disputed order of June 15, 1966 with the vice of grave abuse of discretion. It is quite true that, in support of the allegation
that the house in North Forbes Park was her exclusive property, petitioner presented proof in the form of loans that she
had contracted during the period when said house was under construction. But evidence is wanting which would
correlate such loans to the construction work. On the contrary, there is much to the documentary proof presented by
petitioner which would tend to indicate that the loans she obtained from the Republic Bank were for purposes other
than the construction of the North Forbes Park home. And this, we gather from pages 17 to 18 of petitioner's
memorandum before this Court; and the affidavit of Teresita C. Yaptinchay, Annex A thereof, which states in its
paragraph 4 that she obtained various loans from the Republic Bank "for her own exclusive account" and that the
proceeds thereof "were also used by affiant both for her business and for the construction, completion and furnishing of
the said house at North Forbes Park", and which cites her seven promissory notes in favor of Republic Bank, Appendices 1
to 7 of said affidavit. Not one of the promissory notes mentioned reveals use of the proceeds for the construction of the
North Forbes Park house. On the contrary, there is Appendix 2, the promissory note for P54,000 which says that the
purpose of the loan for "Fishpond development"; Appendix 3 for P100,000 for the same purpose; Appendix 5 for P50,000,
"To augment working capital in buying & selling of appliances & gift items"; and Appendix 7 for P1,090,000, "For
Agricultural Development". In plain terms, the fact alone of petitioner's indebtedness to the Republic Bank does not
establish that said house was built with her own funds.

It is in the context just recited that the unsupported assertion that the North Forbes Park house is petitioner's exclusive
property may not be permitted to override the prima facie presumption that house, having been constructed on the lot
of Isidro Y. Yaptinchay (or of the conjugal partnership) at his instance, and during the existence of his marriage with
respondent Josefina Y. Yaptinchay, is part of the estate that should be under the control of the special administratrix.

3. Nor can petitioner's claim of ownership presumably based on the provisions of Article 144 of the Civil Code be
decisive. Said Article 144 says that: "When man and a woman live together as husband and wife, but they are not
married, or their marriage is void from the beginning, the property acquired by either or both of them through their work
or industry or their wages and salaries shall be governed by the rules on co-ownership." .

But stock must be taken of the fact that the creation of the civil relationship envisaged in Article 144 is circumscribed by
conditions, the existence of which must first be shown before rights provided thereunder may be deemed to
accrue. 13 One such condition is that there must be a clear showing that the petitioner had, during cohabitation, really
contributed to the acquisition of the property involved. Until such right to co-ownership is duly established, petitioner's
interests in the property in controversy cannot be considered the "present right" or title that would make available the
protection or aid afforded by a writ of injunction. 14 For, the existence of a clear positive right especially calling for judicial
protection is wanting. Injunction indeed, is not to protect contingent or future rights; 15 nor is it a remedy to enforce an
abstract right. 16

At any rate, it would seem to us that the interests of the parties would be better safeguarded if the controverted North
Forbes Park property be in the hands of the bonded administratrix in the estate proceedings. For then, her acts would be
subject to the control of the probate court.
Finding no error in the disputed orders of respondent judge, the herein petition for certiorari is hereby dismissed, and the
writ of preliminary mandatory injunction 17 issued by this Court is hereby dissolved and set aside.

Costs against petitioner. So ordered.

Reyes, J.B.L., Dizon, Zaldivar, Fernando, Capistrano, JJ., concur.

Makalintal, Teehankee and Barredo, JJ., took no part.
Concepcion, C.J., and Castro, J., are on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-8014 March 14, 1955

PEDRO V. VILAR, petitioner-appellant,

vs.
GAUDENCIO V. PARAISO, respondent-appellant.

Claro M. Recto and Jose Nava for petitioner-appellant.

Josefina R. Phodaca and Naomi P. Salvador for respondent-appellant.

BAUTISTA ANGELO, J.:

In the general elections held on November 13, 1951, Pedro V. Vilar and Gaudencio V. Paraiso were among the
candidates registered and voted for the office of mayor of Rizal, Nueva Ecija. after the canvass was made, Vilar
obtained 1,467 votes while Paraiso garnered 1,509, and as a result the municipal board of canvassers proclaimed the
latter as the mayor duly elected with a plurality of 41 votes. However, contending that Paraiso was ineligible to hold
office as mayor because he was then a minister of the United Church of Christ in the Philippines and such was
disqualified to be a candidate under section 2175 of the Revised Administrative Code, Vilar instituted the present quo
warranto proceedings praying that Paraiso be declared ineligible to assume office and that his proclamation as mayor-
elect be declared null and void. He also prayed that he be declared duly elected mayor of Rizal, Nueva Ecija, in lieu of
respondent Paraiso.

Respondent in his answer denied his ineligibility and claimed that he resigned as minister of the United Church of Christ in
the Philippines on August 21, 1951, that his resignation was accepted by the cabinet of his church at a special meeting
held in Polo, Bulacan on August 27, 1951, and that even if respondent was not eligible to the office, petitioner could not
be declared elected to take his place.

After due trial, the court found respondent to be ineligible for the office of mayor, being an ecclesiastic, and,
consequently, it declared his proclamation as mayor null and void, but refrained from declaring petitioner as mayor-
elect for lack of sufficient legal grounds to do so. from this election both parties have appealed, respondent from that
portion finding him ineligible, and petitioner from that portion holding he cannot be declared elected as mayor for lack
of sufficient legal grounds to do so.

The case was originally taken to the Court of Appeals. However, as the latter court found that while petitioner raises in his
brief only questions of law respondent raises both questions of law and fact, and both appeals are indivisible in that they
pertain to only one case, that court resolved to certify it to this Court pursuant to the provisions of sections 17 and 31 of
the Judiciary Act of 1948, upon the theory that one of the appeals is exclusively cognizable by the Supreme Court.

The only issue before us is whether respondent, being an ecclesiastic, is ineligible to hold office under section 2175 of the
Revised Administrative Code, or whether he actually resigned as minister before the date of the elections, and his
resignation duly accepted, as claimed, thereby removing his disability. As may be noted, this is a question of fact the
determination of which much depends upon the credibility and weight of the evidence of both parties.
The evidence for petitioner tends to show that respondent was ordained as minister of the Evangelical Church of the
Philippines in 1944 and as such was given license to solemnize marriages by the Bureau of Public Libraries; that since 1944
up to 1950 he acted as minister in the town of Rizal, Nueva Ecija, continuously and without interruption and has been
renewing his license to solemnize marriages as prescribed by the regulations of the Bureau of Public Libraries; that on
April 19, 1950, respondent transferred to the United Church of Christ in the Philippines, having been assigned to work in
the same place and chapel during the years 1944-1950; that on April 7, 1951, respondent applied for, and was issued, a
license to solemnize marriages by the Bureau of Public Libraries as minister of the new church up to the end of April, 1952;
that said license has never been cancelled, as neither the head of the united church nor respondent has requested for
its cancellation; and that respondent has been publicly known as minister of the United Church of Christ, but he has not
attached to his certificate of candidacy a copy of his alleged resignation as minister.

The evidence for the respondent, on the other hand, tends to show that while he was formerly a minister of the United of
Christ in the Philippines, he, however, filed his resignation as such minister on August 21, 1951, because of his desire to
engage in politics; that said resignation was accepted by the cabinet of his church at a special meeting held in Polo,
Bulacan on August 27, 1951; that respondent turned over his chapel and his office to the elder members of his religious
order on August 21, 1951, and since then he considered himself separated from his order and in fact he has refrained
ever since from conducting any religious services pertaining to that order.

Which of these versions is correct?

After careful examining the evidence of record, and after weighing its credibility and probative value, we have not
found any reason for deviating from the finding of the trial court that respondent never ceased as minister of the order to
which he belonged and that the resignation he claims to have filed months before the date of the elections is but a
mere scheme to circumvent the prohibition of the law regarding ecclesiastics who desire to run for a municipal office.
Indeed, if respondent really and sincerely intended to resign as minister of the religious organization to which he
belonged for the purpose of launching his candidacy why did he not resign in due form and have the acceptance of
his resignation registered with the Bureau of Public Libraries.1 The importance of resignation cannot be underestimated.
The purpose of registration is two-fold: to inform the public not only of the authority of the minister to discharge religious
functions, but equally to keep it informed of any change in his religious status. This information is necessary for the
protection of the public. This is specially so with regard to the authority to solemnized marriages, the registration of which
is made by the law mandatory (Articles 92-96, new Civil Code). It is no argument to say that the duty to secure the
cancellation of the requisite resignation devolves, not upon respondent, but upon the head of his organization or upon
the official in charge of such registration, upon proper showing of the reason for such cancellation, because the law
likewise imposes upon the interested party the duty of effecting such cancellation, who in the instant case is the
respondent himself. This he failed to do. And what is more, he failed to attach to his certificate of candidacy, a copy of
his alleged resignation as minister knowing full well that a minister is disqualified by law to run for a municipal office.

It is true that respondent attempted to substantiate his claim by submitting as evidence certain documents purporting to
show the alleged resignation and its acceptance by the cabinet of his church at a meeting held on August 27, 1951,
but, considering said documents in the light of the shortcomings we have pointed out above, one cannot help but
brand them as self-serving or as documents merely prepared to serve the political designs of respondent in an attempt
to obviate his disqualification under the law. And this feeling appears strengthened if we examine the so-called minute
book wherein, according to witness Jose Agpalo, are entered the minutes of all the meeting of the church, because
upon an examination thereof one would at once get the impression that it was prepared haphazardly and not with such
seriousness and solemnity that should characterize the religious activities of a well established religious order. As the trial
court aptly remarked "All these lead the court to believe with the petitioner, that the supposed resignation and
acceptance were made at a later date to cure the ineligibility of the respondent." We are therefore constrained to hold
that respondent is disqualified to hold the office of mayor as found by the trial court.

As to the question whether, respondent being ineligible, petitioner can be declared elected, having obtained second
place in the elections, our answer is simple: this Court has already declared that this cannot be done in the absence of
an express provision authorizing such declaration. Our law not only does not contain any such provision but apparently
seems to prohibit it. This is what we said in at least two cases where we laid down a ruling which is decisive of the present
case.

. . . . In the first case when the person elected is ineligible, the court cannot declare that the candidate
occupying the second place has been elected, even if he were eligible, since the law only authorizes a
declaration of election in favor of the person who has obtained a plurality of votes, and has presented his
certificate of candidacy. (Nuval vs. Guray, 52 Phil., 645.)

Section 173 of Republic Act No. 180 known as the Revised Election Code, does not provide that if the
contestee is declared ineligible the contestant will be proclaimed. Indeed it may be gathered that the law
contemplates no such result, because it permits the filing of the contest by any registered candidate
 irrespective of whether the latter occupied the next highest place or the lowest in the election returns.
(Llamoso vs. Ferrer, et al., 84 Phil., 489, 47 Off. Gaz., [No. 2] p. 727.)

Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.

Paras C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion and Reyes, J.B.L., JJ.,concur.

FIRST DIVISION

[A.M. No. MTJ-02-1390. April 11, 2002]

MERCEDITA MATA ARAES, petitioner, vs. JUDGE SALVADOR M. OCCIANO, respondent.

DECISION

PUNO, J.:

Petitioner Mercedita Mata Araes charges respondent judge with Gross Ignorance of the Law via a sworn Letter-
Complaint dated 23 May 2001. Respondent is the Presiding Judge of the Municipal Trial Court of Balatan, Camarines Sur.
Petitioner alleges that on 17 February 2000, respondent judge solemnized her marriage to her late groom Dominador B.
Orobia without the requisite marriage license and at Nabua, Camarines Sur which is outside his territorial jurisdiction.

They lived together as husband and wife on the strength of this marriage until her husband passed away. However,
since the marriage was a nullity, petitioners right to inherit the vast properties left by Orobia was not recognized. She was
likewise deprived of receiving the pensions of Orobia, a retired Commodore of the Philippine Navy.

Petitioner prays that sanctions be imposed against respondent judge for his illegal acts and unethical
misrepresentations which allegedly caused her so much hardships, embarrassment and sufferings.

On 28 May 2001, the case was referred by the Office of the Chief Justice to then Acting Court Administrator Zenaida
N. Elepao for appropriate action. On 8 June 2001, the Office of the Court Administrator required respondent judge to
comment.

In his Comment dated 5 July 2001, respondent judge averred that he was requested by a certain Juan Arroyo on 15
February 2000 to solemnize the marriage of the parties on 17 February 2000. Having been assured that all the documents
to the marriage were complete, he agreed to solemnize the marriage in his sala at the Municipal Trial Court of Balatan,
Camarines Sur. However, on 17 February 2000, Arroyo informed him that Orobia had a difficulty walking and could not
stand the rigors of travelling to Balatan which is located almost 25 kilometers from his residence in Nabua. Arroyo then
requested if respondent judge could solemnize the marriage in Nabua, to which request he acceded.

Respondent judge further avers that before he started the ceremony, he carefully examined the documents
submitted to him by petitioner. When he discovered that the parties did not possess the requisite marriage license, he
refused to solemnize the marriage and suggested its resetting to another date. However, due to the earnest pleas of the
parties, the influx of visitors, and the delivery of provisions for the occasion, he proceeded to solemnize the marriage out
of human compassion. He also feared that if he reset the wedding, it might aggravate the physical condition of Orobia
who just suffered from a stroke. After the solemnization, he reiterated the necessity for the marriage license and
admonished the parties that their failure to give it would render the marriage void. Petitioner and Orobia assured
respondent judge that they would give the license to him in the afternoon of that same day. When they failed to comply,
respondent judge followed it up with Arroyo but the latter only gave him the same reassurance that the marriage license
would be delivered to his sala at the Municipal Trial Court of Balatan, Camarines Sur.

Respondent judge vigorously denies that he told the contracting parties that their marriage is valid despite the
absence of a marriage license. He attributes the hardships and embarrassment suffered by the petitioner as due to her
own fault and negligence.

On 12 September 2001, petitioner filed her Affidavit of Desistance dated 28 August 2001 with the Office of the Court
Administrator. She attested that respondent judge initially refused to solemnize her marriage due to the want of a duly
issued marriage license and that it was because of her prodding and reassurances that he eventually solemnized the
same. She confessed that she filed this administrative case out of rage. However, after reading the Comment filed by
respondent judge, she realized her own shortcomings and is now bothered by her conscience.

Reviewing the records of the case, it appears that petitioner and Orobia filed their Application for Marriage License
on 5 January 2000. It was stamped in this Application that the marriage license shall be issued on 17 January 2000. However,
neither petitioner nor Orobia claimed it.

It also appears that the Office of the Civil Registrar General issued a Certification that it has no record of such
marriage that allegedly took place on 17 February 2000. Likewise, the Office of the Local Civil Registrar of Nabua,
Camarines Sur issued another Certification dated 7 May 2001 that it cannot issue a true copy of the Marriage Contract of
the parties since it has no record of their marriage.

On 8 May 2001, petitioner sought the assistance of respondent judge so the latter could communicate with the Office
of the Local Civil Registrar of Nabua, Camarines Sur for the issuance of her marriage license. Respondent judge wrote the
Local Civil Registrar of Nabua, Camarines Sur. In a letter dated 9 May 2001, a Clerk of said office, Grace T. Escobal,
informed respondent judge that their office cannot issue the marriage license due to the failure of Orobia to submit the
Death Certificate of his previous spouse.

The Office of the Court Administrator, in its Report and Recommendation dated 15 November 2000, found the
respondent judge guilty of solemnizing a marriage without a duly issued marriage license and for doing so outside his
territorial jurisdiction. A fine of P5,000.00 was recommended to be imposed on respondent judge.

We agree.

Under the Judiciary Reorganization Act of 1980, or B.P.129, the authority of the regional trial court judges and judges
of inferior courts to solemnize marriages is confined to their territorial jurisdiction as defined by the Supreme Court.

The case at bar is not without precedent. In Navarro vs. Domagtoy,[1] respondent judge held office and had
jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. However, he solemnized a wedding
at his residence in the municipality of Dapa, Surigao del Norte which did not fall within the jurisdictional area of the
municipalities of Sta. Monica and Burgos. We held that:

A priest who is commissioned and allowed by his local ordinance to marry the faithful is authorized to do so only within
the area or diocese or place allowed by his Bishop. An appellate court Justice or a Justice of this Court has jurisdiction
over the entire Philippines to solemnize marriages, regardless of the venue, as long as the requisites of the law are
complied with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only within said
areas and not beyond. Where a judge solemnizes a marriage outside his courts jurisdiction, there is a resultant irregularity
in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the
officiating official to administrative liability.[2] (Emphasis supplied.)

In said case, we suspended respondent judge for six (6) months on the ground that his act of solemnizing a marriage
outside his jurisdiction constitutes gross ignorance of the law. We further held that:

The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they are sworn to
apply, more than the ordinary laymen. They should be skilled and competent in understanding and applying the law. It is
imperative that they be conversant with basic legal principles like the ones involved in the instant case. x x x While
magistrates may at times make mistakes in judgment, for which they are not penalized, the respondent judge exhibited
ignorance of elementary provisions of law, in an area which has greatly prejudiced the status of married persons.[3]

In the case at bar, the territorial jurisdiction of respondent judge is limited to the municipality of Balatan, Camarines
Sur. His act of solemnizing the marriage of petitioner and Orobia in Nabua, Camarines Sur therefore is contrary to law and
subjects him to administrative liability. His act may not amount to gross ignorance of the law for he allegedly solemnized
the marriage out of human compassion but nonetheless, he cannot avoid liability for violating the law on marriage.

Respondent judge should also be faulted for solemnizing a marriage without the requisite marriage license. In People
vs. Lara,[4] we held that a marriage which preceded the issuance of the marriage license is void, and that the subsequent
issuance of such license cannot render valid or even add an iota of validity to the marriage. Except in cases provided by
law, it is the marriage license that gives the solemnizing officer the authority to solemnize a marriage. Respondent judge
did not possess such authority when he solemnized the marriage of petitioner. In this respect, respondent judge acted in
gross ignorance of the law.

Respondent judge cannot be exculpated despite the Affidavit of Desistance filed by petitioner. This Court has
consistently held in a catena of cases that the withdrawal of the complaint does not necessarily have the legal effect of
exonerating respondent from disciplinary action. Otherwise, the prompt and fair administration of justice, as well as the
discipline of court personnel, would be undermined.[5] Disciplinary actions of this nature do not involve purely private or
personal matters. They can not be made to depend upon the will of every complainant who may, for one reason or
another, condone a detestable act. We cannot be bound by the unilateral act of a complainant in a matter which
involves the Courts constitutional power to discipline judges. Otherwise, that power may be put to naught, undermine the
trust character of a public office and impair the integrity and dignity of this Court as a disciplining authority.[6]

WHEREFORE, respondent Judge Salvador M. Occiano, Presiding Judge of the Municipal Trial Court of Balatan,
Camarines Sur, is fined P5,000.00 pesos with a STERN WARNING that a repetition of the same or similar offense in the future
will be dealt with more severely.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4904 February 5, 1909

ROSALIA MARTINEZ, plaintiff-appellant,

vs.
ANGEL TAN, defendant-appellee.

Domingo Franco, for appellant.

Doroteo Karagdag, for appellee.

WILLARD, J.:

The only question in this case is whether or not the plaintiff and the defendant were married on the 25th day of
September, 1907, before the justice of the peace, Jose Ballori, in the town of Palompon in the Province of Leyte.

There was received in evidence at the trial what is called an expediente de matrimonio civil. It is written in Spanish and
consists, first, of a petition directed to the justice of the peace, dated on the 25th of September, 1907, signed by the
plaintiff and the defendant, in which they state that they have mutually agreed to enter into a contract of marriage
before the justice of the peace, and ask that the justice solemnize the marriage. Following this is a document dated on
the same day, signed by the justice of the peace, by the plaintiff, by the defendant, and by Zacarias Esmero and Pacita
Ballori. It states the presentation of the petition above mentioned; that the persons who signed it where actually present
in the office of the justice on the same day named; that they ratified under oath the contents of the petition, and that
they insisted in what they had there asked for. It also stated that being required to produce witnesses of the marriage,
the presented Zacarias Esmero as a witness for the husband and Pacita Ballori as a witness for the wife. Following this is a
certificate of marriage signed by the justice of the peace and the witnesses Zacarias Esmero and Pacita Ballori, dated
the 25th day of September, 1907, in which it is stated that the plaintiff and the defendant were legally married by the
justice of the peace in the presence of the witnesses on that day.

The court below decided the case in favor of the defendant, holding that the parties were legally married on the day
named. The evidence in support of that decision is: First. The document itself, which the plaintiff admits that she signed.
Second. The evidence of the defendant, who testifies that he and said plaintiff appeared before the justice of the
peace at the time named, together with the witness Zacarias Esmero and Pacita Ballori, and that they all signed the
document above mentioned. Third. The evidence of Zacarias Esmero, one of the above-named witnesses, who testifies
that the plaintiff, the defendant, and Pacita Ballori appeared before the justice at the time named and did sign the
document referred to. Fourth. The evidence of Pacita Ballori, who testified to the same effect. Fifth. The evidence of Jose
Santiago, the bailiff of the court of the justice of the peace, who testified that the plaintiff, the defendant, the two
witnesses above-named, and the justice of the peace were all present in the office of the justice of the peace at the
time mentioned.

The only direct evidence in favor of the plaintiff is her own testimony that she never appeared before the justice of the
peace and never was married to the defendant. She admits that she signed the document in question, but says that she
signed it in her own home, without reading it, and at the request of the defendant, who told her that it was a paper
authorizing him to ask the consent of her parents to the marriage.
There is some indirect evidence which the plaintiff claims supports her case, but which we think, when properly
considered, is not entitled to much weight. The plaintiff at the time was visiting, in the town of Palompon, her married
brother and was there for about two weeks. The wife of her brother, Rosario Bayot, testified that the plaintiff never left the
house except in her company. But she admitted on cross-examination that she herself went to school every morning and
that on one occasion the plaintiff had gone to church unaccompanied. The testimony of this witness loses its force when
the testimony of Pacita Ballori is considered. She says that at the request of the defendant on the day named, about 5
o'clock in the afternoon, she went to the store of a Chinese named Veles; that there she met the plaintiff and her
mother; that she asked the mother of the plaintiff to allow the plaintiff to accompany her, the witness, to her own house
for the purpose of examining some dress patterns; that the mother gave her consent and the two rights left the store, but
instead of going to the house of the witness they went directly to the office of the justice of the peace where the
ceremony took place; that after the ceremony had taken place, one came advising them that the mother was
approaching, and that they thereupon hurriedly left the office of the justice and went to the house of Pacita Ballori,
where the mother later found them.

The other testimony of the plaintiff relating to certain statements made by the justice of the peace, who died after the
ceremony was performed and before the trial, and certain statements made by Pacita Ballori, is not sufficient to
overcome the positive testimony of the witnesses for the defendant.

The other testimony of Pacita Ballori is severely criticized by counsel for the appellant in his brief. It appears that during
her first examination she was seized with an hysterical attack and practically collapsed at the trial. Her examination was
adjourned to a future day and was completed in her house where she was sick in bed. It is claimed by counsel that her
collapse was due to the fact that she recognized that she testified falsely in stating the office of the justice of the peace
was at the time in the municipal building, when, in fact, it was in a private house. We do not think that the record justifies
the claim of the appellant. The statement as to the location of the office of the justice of the peace was afterwards
corrected by the witness and we are satisfied that she told the facts substantially as they occurred.

There is, moreover, in the case written evidence which satisfies us that the plaintiff was not telling the truth when she said
she did not appear before the justice of the peace. This evidence consists of eight letters, which the defendant claims
were all written by the plaintiff. The plaintiff admits that she wrote letters numbered 2 and 9. The authenticity of the others
was proven. No. 9 is as follows:

ANGEL: Up to this time I did not see my father; but I know that he is very angry and if he be informed that we
have been married civilly, I am sure that he will turn me out of the house.

Do what you may deem convenient, as I don't know what to do.

Should I be able to go to-morrow to Merida, I shall do so, because I can not remain here.

Yours, ROSAL.

Letter No. 6, which bears no date, but which undoubtedly was written on the morning of the 25th of September, is as
follows:

Sr. D. ANGEL, TAN.

ANGEL: It is impossible for me to go to the house of Veles this morning because my sister in law will not let me go
there; if it suits you, I believe that this afternoon, about 5 or 6 o'clock, is the best hour.

Arrange everything, as I shall go there only for the purpose of signing, and have Pacita wait for me at the
Chinese store, because I don't like to go without Pacita.

The house must be one belonging to prudent people, and no one should know anything about it.

Yours, ROSAL.

It will be noticed that this corroborates completely the testimony of Pacita Ballori as to her meeting the plaintiff in the
afternoon at the store of the Chinese, Veles. Letter No. 7 is also undated, but was evidently written after the marriage
before the justice of the peace. It is as follows:
 Sr. D. ANGEL, TAN.

ANGEL: If you want to speak to my mother, who is also yours, come here by and by, at about 9 or 10, when you
see that the tide is high because my brother will have to go to the boat for the purpose of loading lumber.

Don't tell her that we have been civilly married, but tell her at first that you are willing to celebrate the marriage
at this time, because I don't like her to know to-day that we have been at the court-house, inasmuch as she
told me this morning that she heard that we would go to the court, and that we must not cause her to be
ashamed, and that if I insist on being married I must do it right.

Tell her also that you have asked me to carry you.

I send you herewith the letter of your brother, in order that you may do what he wishes.

Yours, ROSAL.

Letter No. 8 was also evidently written after the marriage and is in part as follows:

Sr. D. ANGEL TAN.

ANGEL: I believe it is better for you to go to Ormoc on Sunday of the steamer Rosa, for the purpose of asking
my father's permission for our marriage, and in case he fails to give it, then we shall do what we deem proper,
and, if he does not wish us to marry without his permission, you must request his consent.

Tell me who said that my sister in law knows that we are civilly married; my brother ill treatment is a matter of no
importance, as every thing may be carried out, with patience.

It was proven at the trial that the defendant did go to Ormoc on the steamer Rosa as indicated in this letter, and that
the plaintiff was on the same boat. The plaintiff testified, however, that she had no communication with the defendant
during the voyage. The plaintiff and the defendant never lived together as husband and wife, and upon her arrival in
Ormoc, after consulting with her family, she went to Cebu and commenced this action, which was brought for the
purpose of procuring the cancellation of the certificate of marriage and for damages. The evidence strongly
preponderates in favor of the decision of the court below to the effect that the plaintiff appeared before the justice of
the peace at the time named.

It is claimed by the plaintiff that what took place before the justice of the peace, even admitting all that the witnesses
for the defendant testified to, did not constitute a legal marriage. General orders, No. 68, section 6, is as follows:

No particular form from the ceremony of marriage is required, but the parties must declare in the presence of
the person solemnizing the marriage, that they take each other as husband and wife.

Zacarias Esmero, one of the witnesses, testified that upon the occasion in question the justice of the peace said nothing
until after the document was signed and then addressing himself to the plaintiff and the defendant said, "You are
married." The petition signed the plaintiff and defendant contained a positive statement that they had mutually agreed
to be married and they asked the justice of the peace to solemnize the marriage. The document signed by the plaintiff,
the defendant, and the justice of the peace, stated that they ratified under oath, before the justice, the contents of the
petition and that witnesses of the marriage were produced. A mortgage took place as shown by the certificate of the
justice of the peace, signed by both contracting parties, which certificates gives rise to the presumption that the officer
authorized the marriage in due form, the parties before the justice of the peace declaring that they took each other as
husband and wife, unless the contrary is proved, such presumption being corroborated in this case by the admission of
the woman to the effect that she had contracted the marriage certified to in the document signed by her, which
admission can only mean the parties mutually agreed to unite in marriage when they appeared and signed the said
document which so states before the justice of the peace who authorized the same. It was proven that both the plaintiff
and the defendant were able to read and write the Spanish language, and that they knew the contents of the
document which they signed; and under the circumstances in this particular case were satisfied, and so hold, that what
took place before the justice of the peace on this occasion amounted to a legal marriage.

The defendant's original answer was a general denial of the allegations contained in the complaint. Among these
allegations was a statement that the parties had obtain previously the consent of the plaintiff's parents. The defendant
was afterwards allowed to amend his answer so that it was a denial of the allegations of the complaint except that
relating to the condition in regard to the consent of the parents. The plaintiff objected to the allowance of this
amendment. After the trial had commenced the defendant was again allowed to amend his answer so that it should be
an admission of paragraphs 2 and 3 of the complaint, except that part which related to the consent of the parents. It will
be seen that this second amendment destroyed completely the first amendment and the defendants lawyer stated that
what he intended to allege in his first amendment, but by reason of the haste with which the first amendment was drawn
he had unintentionally made it exactly the opposite of what he had intended to state. After argument the court allowed
the second amendment. We are satisfied that in this allowance there was no abuse of discretion and we do not see
how the plaintiff was in any way prejudiced. She proceeded with the trial of the case without asking for a continuance.

The judgment of the court below acquitting the defendant of the complaint is affirmed, with the costs of this instance
against the appellant.

Arellano, C.J., Torres, Mapa, Johnson, and Carson, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-32473 October 6, 1930

MELECIO MADRIDEJO, assisted by his guardian ad litem, Pedro Madridejo, plaintiff-appellee,

vs.
GONZALO DE LEON, ET AL., defendants-appellants.

L. D. Abaya and S. C. Pamatmat for appellants.

Aurelio Palileo for appellee.

VILLA-REAL, J.:

This is a rehearsing of the appeal taken by the defendants, Gonzalo de Leon et al. from the judgment of the Court of First
Instance of Laguna holding as follows:

Wherefore, the court finds that Melecio Madridejo is Domingo de Leon's next of kin, and hereby orders the
defendants in case No. 5258 to restore and deliver the ownership and possession of the property described in
the complaints filed in the aforesaid case, to Melecio Madridejo, without cost. So ordered.

In support of their appeal the defendants assign the following alleged errors as committed by the trial court, to wit:

1. The lower court erred in holding that the marriage between Pedro Madridejo and Flaviana Perez is valid.

2. The lower court also erred in declaring that solely because of the subsequent marriage of his parents, the
appellee Melecio Madridejo, a natural child, was legitimated.

3. The lower court lastly erred in not rendering judgment in favor of the defendants and appellants.

The relevant facts necessary for the decision of all the questions of fact and of law raised herein are as follows:

Eulogio de Leon and Flaviana Perez, man and wife, had but one child, Domingo de Leon. The wife and son survived
Eulogio de Leon, who died in the year 1915. During her widowhood, Flaviana Perez lived with Pedro Madridejo, a
bachelor. The registry of births of the municipality of Siniloan, Laguna, shows that on June 1, 1917, a child was born to
Pedro Madridejo and Flaviana Perez, which was named Melecio Madridejo, the necessary data being furnished by
Pedro Madridejo (Exhibit B). On June 17, 1917, a 24-day old child of Siniloan, Laguna, as a son of Flaviana Perez, no
mention being made of the father (Exhibit 2). On July 8, 1920, Flaviana Perez, being at death's door, was married to
Pedro Madridejo, a bachelor, 30 years of age, by the parish priest of Siniloan (Exhibit A). She died on the following day,
July 9, 1920, leaving Domingo de Leon, her son by Eulogio de Leon, and the plaintiff-appellee Melecio Madridejo, as well
as her alleged second husband, Pedro Madridejo. Domingo de Leon died on the 2nd of May, 1928.

With regard to the first assignment of error, the mere fact that the parish priest of Siniloan, Laguna, who married Pedro
Madridejo and Flaviana Perez, failed to send a copy of the marriage certificate to the municipal secretary does not
invalidate the marriage in articulo mortis, it not appearing that the essential requisites required by law for its validity were
lacking in the ceremony, and the forwarding of a copy of the marriage certificate is not one of said essential requisites.

Touching the second assignment of error, there has been no attempt to deny that Melecio Madridejo, the plaintiff-
appellee, is the natural son of the Pedro Madridejo and Flaviana Perez, The only question to be decided is whether the
subsequent marriage of his parents legitimated him.

Article 121 of the Civil Code provides:

Art. 121. Children shall be considered as legitimated by a subsequent marriage only when they have been
acknowledged by the parents before or after the celebration thereof.

According to this legal provision, in order that a subsequent marriage may be effective as a legitimation, the natural
children born out of wedlock must have been acknowledged by the parents either before or after its celebration. The
Civil Code has established two kinds of acknowledgment: voluntary and compulsary. Article 131 provides for the
voluntary acknowledgment by the father or mother as follows:

Art. 131. The acknowledgment of a natural child must be made in the record of birth, in a will, or in some other
public document.

Article 135 provides for the compulsary acknowledgment by the father, thus:

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.

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 of that of his family.

3. In cases of rape, seduction, or abduction, the provisions of the Penal Code with regard to the
acknowledgment of the issue, shall be observed.

Article 136 providing for the compulsory acknowledgment by the mother, reads:

Art. 136. The mother may be compelled to acknowlegde her natural child:

1. When the child is, with respect to the mother, included in any of the cases mentioned in the next preceding
article.

2. When the fact of the birth and the identity of the child are fully proven.

Let us see whether the plaintiff-appellee, Melecio Madridejo, has been acknowledged by his parents Pedro Madridejo
and Flaviana Perez, under any of the provisions above quoted.

To begin with the father, no document has been adduced to show that he has voluntarily acknowledged Melecio
Madridejo as his son, except the registry certificate of birth, Exhibit B. This, of course, is not the record of birth mentioned
in the law, for it lacks the requisites of article 48 of the Law of Civil Registry. It, no doubt, is a public instrument, but it has
neither been executed nor signed by Pedro Madridejo, and contains no statement by which he acknowledges Melecio
Madridejo to be his son. Although as Pedro Madridejo testified, he furnished the municipal secretary of Siniloan with
necessary data for recording the birth of Melecio Madridejo, and although said official inscribed the data thus given in
the civil registry of births, this is not sufficient to bring it under the legal provision regarding acknowledgment by a public
document.
As to the mother, it does not appear that Flaviana Perez supplied the data set forth in the civil registry of births, Exhibit B,
or in the baptismal register, where of Exhibit 2 is a certificate, and which constitutes final proof only of the baptism, and
not of the kinship or parentage of the person baptized (Adriano vs. De Jesus, 23 Phil., 350). Furthermore, church registers
of baptism are no longer considered public documents (United States vs. Evangelista, 29 Phil., 215).

Melecio Madridejo, then, was not voluntarily acknowledged by Pedro Madridejo or Flaviana Perez, either before or after
their marriage. 1awph!l.net

Did Pedro Madridejo acknowledge Melecio Madridejo as his son, by compulsion?

The compulsory acknowledgment by the father established in article 135 of the Civil Code, and by the mother
according to article 136, requires that the natural child take judicial action against the father or mother, or against the
persons setting themselves up as the heirs of both, for the purpose of compelling them to acknowledge him as a natural
son through a judgment of the court.

In the instant action brought by Melecio Madridejo not only has he not demanded to be acknowledged as a natural
child, which is the condition precedent to establishing his legitimation by the subsequent marriage and his right to the
estate of his uterine brother, Domingo de Leon, but he has not even impleaded either his father Pedro Madridejo, or the
heirs of his mother, Flaviana Perez, in order that the court might have authority to make a valid and effective
pronouncement of his being a natural child, and to compel them to acknowledge him as such.

The plaintiff-appellee alleges that the second paragraph of the defendants' answer amounts to an admission that he is
indeed Flaviana Perez's son, and relieves him of the burden of proving that his mother acknowledged him as a son
before her marriage. Such an admission would have been affective if the present action had been brought for the
purpose of compelling Flaviana Perez or her heirs to acknowledge the appellee as her son.

In view of the foregoing, it is evident that Melecio Madridejo has not been acknowledged by Pedro Madridejo and
Flaviana Perez, either voluntarily or by compulsion, before or after their marriage, and therefore said marriage did not
legitimate him.

Wherefore, the judgment is reversed, the complaint dismissed, and the defendants absolved with costs against the
appellee without prejudice to any right he may have to establish or compel his acknowledgment as the natural son of
Pedro Madridejo and Flaviana Perez. So ordered.

Avanceña, C.J., Street, Malcolm, Villamor, Ostrand and Romualdez, JJ., concur.

Separate Opinions

JOHNS, J., dissenting:

I dissent and the judgment of the lower court should be affirmed.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 173540 January 22, 2014

PEREGRINA MACUA VDA. DE AVENIDO, Petitioner,
vs.
TECLA HOYBIA AVENIDO, Respondent.

DECISION

PEREZ, J.:

This is a Petition for Review on Certiorari under Rule 45.ofthe Rules of Court, assailing the 31 August 2005 Decision1 of the
Court of Appeals (CA) in CA-G.R. CV No. 79444, which reversed the 25 March 2003 Decision2 of the Regional Trial Court
(RTC), Branch 8 of Davao City, in a complaint for Declaration of Absolute Nullity of Marriage· docketed as Civil Case No.
26, 908-98.

The Facts

This case involves a contest between two women both claiming to have been validly married to the same man, now
deceased.

Respondent Tecla Hoybia Avenido (Tecla) instituted on 11 November 1998, a Complaint for Declaration of Nullity of
Marriage against Peregrina Macua Vda. de Avenido (Peregrina) on the ground that she (Tecla), is the lawful wife of the
deceased Eustaquio Avenido (Eustaquio). In her complaint, Tecla alleged that her marriage to Eustaquio was
solemnized on 30 September 1942 in Talibon, Bohol in rites officiated by the Parish Priest of the said town. According to
her, the fact of their marriage is evidenced by a Marriage Certificate recorded with the Office of the Local Civil Registrar
(LCR) of Talibon, Bohol. However, due to World War II, records were destroyed. Thus, only a Certification3 was issued by
the LCR.

During the existence of Tecla and Eustaquio’s union, they begot four (4) children, namely: Climaco H. Avenido, born on
30 March 1943; Apolinario H. Avenido, born on 23 August 1948; Editha A. Ausa, born on 26 July 1950, and Eustaquio H.
Avenido, Jr., born on 15 December 1952. Sometime in 1954, Eustaquio left his family and his whereabouts was not known.
In 1958, Tecla and her children were informed that Eustaquio was in Davao City living with another woman by the name
of Buenaventura Sayson who later died in 1977 without any issue.

In 1979, Tecla learned that her husband Eustaquio got married to another woman by the name of Peregrina, which
marriage she claims must be declared null and void for being bigamous – an action she sought to protect the rights of
her children over the properties acquired by Eustaquio.

On 12 April 1999, Peregrina filed her answer to the complaint with counterclaim,4 essentially averring that she is the legal
surviving spouse of Eustaquio who died on 22 September 1989 in Davao City, their marriage having been celebrated on
30 March 1979 at St. Jude Parish in Davao City. She also contended that the case was instituted to deprive her of the
properties she owns in her own right and as an heir of Eustaquio.

Trial ensued.

Tecla presented testimonial and documentary evidence consisting of:

1) Testimonies of Adelina Avenido-Ceno (Adelina), Climaco Avenido (Climaco) and Tecla herself to
substantiate her alleged prior existing and valid marriage with (sic) Eustaquio;

2) Documentary evidence such as the following:

a. Certification of Loss/Destruction of Record of Marriage from 1900 to 1944 issued by the Office of the
Civil Registrar, Municipality of Talibon, Bohol;5

b. Certification of Submission of a copy of Certificate of Marriage to the Office of the Civil Registrar
General, National Statistics Office (NSO), R. Magsaysay Blvd., Sta Mesa, Manila;6

c. Certification that Civil Registry records of births, deaths and marriages that were actually filed in the
Office of the Civil Registrar General, NSO Manila, started only in 1932;7
 d. Certification that Civil Registry records submitted to the Office of the Civil Registrar General, NSO,
from 1932 to the early part of 1945, were totally destroyed during the liberation of Manila;8

e. Certification of Birth of Apolinario Avenido;9

f. Certification of Birth of Eustaquio Avenido, Jr.;10

g. Certification of Birth of Editha Avenido;11

h. Certification of Marriage between Eustaquio Sr., and Tecla issued by the Parish Priest of Talibon,
Bohol on 30 September 1942;12

i. Certification that record of birth from 1900 to 1944 were destroyed by Second World War issued by
the Office of the Municipal Registrar of Talibon, Bohol, that they cannot furnish as requested a true
transcription from the Register of Birth of Climaco Avenido;13

j. Certificate of Baptism of Climaco indicating that he was born on 30 March 1943 to spouses
Eustaquio and Tecla;14

k. Electronic copy of the Marriage Contract between Eustaquio and Peregrina.15

On the other hand, Peregrina testified on, among others, her marriage to Eustaquio that took place in Davao City on 3
March 1979; her life as a wife and how she took care of Eustaquio when he already had poor health, as well as her
knowledge that Tecla is not the legal wife, but was once a common law wife of Eustaquio.16 Peregrina likewise set forth
documentary evidence to substantiate her allegations and to prove her claim for damages, to wit:

1) Marriage Contract17 between Pregrina and the late Eustaquio showing the date of marriage on 3 March
1979;

2) Affidavit of Eustaquio executed on 22 March 1985 declaring himself as single when he contracted marriage
with the petitioner although he had a common law relation with one Tecla Hoybia with whom he had four (4)
children namely: Climaco, Tiburcio, Editha and Eustaquio, Jr., all surnamed Avenido;18

3) Letter of Atty. Edgardo T. Mata dated 15 April 2002, addressed to the Civil Registrar of the Municipality of
Alegria, Surigao del Norte;19 and

4) Certification dated 25 April 2002 issued by Colita P. Umipig, in her capacity as the Civil Registrar of Alegria,
Surigao del Norte.20

In addition, as basis for the counterclaim, Peregrina averred that the case was initiated in bad faith so as to deprive her
of the properties she owns in her own right and as an heir of Eustaquio; hence, her entitlement to damages and
attorney’s fees.

On 25 March 2003, the RTC rendered a Decision21 denying Tecla’s petition, as well as Peregrina’s counter-claim. The
dispositive portion thereof reads:

For The Foregoing, the petition for the "DECLARATION OF NULLITY OF MARRIAGE" filed by petitioner TECLA HOYBIA
AVENIDO against respondent PEREGRINA MACUA is hereby DENIED.

The "COUNTERCLAIM" filed by respondent PEREGRINA MACUA against petitioner TECLA HOYBIA AVENIDO is hereby
DISMISSED.22

Not convinced, Tecla appealed to the CA raising as error the trial court’s alleged disregard of the evidence on the
existence of her marriage to Eustaquio.

In its 31 August 2005 Decision,23 the CA ruled in favor of Tecla by declaring the validity of her marriage to Eustaquio, while
pronouncing on the other hand, the marriage between Peregrina and Eustaquio to be bigamous, and thus, null and
void. The CA ruled:
The court a quo committed a reversible error when it disregarded (1) the testimonies of [Adelina], the sister of EUSTAQUIO
who testified that she personally witnessed the wedding celebration of her older brother EUSTAQUIO and [Tecla] on 30
September 1942 at Talibon, Bohol; [Climaco], the eldest son of EUSTAQUIO and [Tecla], who testified that his mother
[Tecla] was married to his father, EUSTAQUIO, and [Tecla] herself; and (2) the documentary evidence mentioned at the
outset. It should be stressed that the due execution and the loss of the marriage contract, both constituting the condition
sine qua non, for the introduction of secondary evidence of its contents, were shown by the very evidence the trial court
has disregarded.24

Peregrina now questions the said ruling assigning as error, among others, the failure of the CA to appreciate the validity
of her marriage to Eustaquio. For its part, the Office of the Solicitor General (OSG), in its Memorandum25dated 5 June
2008, raises the following legal issues:

1. Whether or not the court can validly rely on the "presumption of marriage" to overturn the validity of a
subsequent marriage;

2. Whether or not secondary evidence may be considered and/or taken cognizance of, without proof of the
execution or existence and the cause of the unavailability of the best evidence, the original document;

and

3. Whether or not a Certificate of Marriage issued by the church has a probative value to prove the existence
of a valid marriage without the priest who issued the same being presented to the witness stand.26

Our Ruling

Essentially, the question before us is whether or not the evidence presented during the trial proves the existence of the
marriage of Tecla to Eustaquio.

The trial court, in ruling against Tecla’s claim of her prior valid marriage to Eustaquio relied on Tecla’s failure to present
her certificate of marriage to Eustaquio. Without such certificate, the trial court considered as useless the certification of
the Office of the Civil Registrar of Talibon, Bohol, that it has no more records of marriages during the period 1900 to 1944.
The same thing was said as regards the Certification issued by the National Statistics Office of Manila. The trial court
observed:

Upon verification from the NSO, Office of the Civil Registrar General, Manila, it, likewise, issued a Certification (Exhibit "B")
stating that:

records from 1932 up to early part of 1945 were totally destroyed during the liberation of Manila on February 4, 1945.
What are presently filed in this office are records from the latter part of 1945 to date, except for the city of Manila which
starts from 1952. Hence, this office has no way of verifying and could not issue as requested, certified true copy of the
records of marriage between [Eustaquio] and [Tecla], alleged to have been married on 30th September 1942, in Talibon,
Bohol.27

In the absence of the marriage contract, the trial court did not give credence to the testimony of Tecla and her
witnesses as it considered the same as mere self-serving assertions. Superior significance was given to the fact that Tecla
could not even produce her own copy of the said proof of marriage. Relying on Section 3 (a) and Section 5, Rule 130 of
the Rules of Court, the trial court declared that Tecla failed to prove the existence of the first marriage.

The CA, on the other hand, concluded that there was a presumption of lawful marriage between Tecla and Eustaquio
as they deported themselves as husband and wife and begot four (4) children. Such presumption, supported by
documentary evidence consisting of the same Certifications disregarded by the trial court, as well as the testimonial
evidence especially that of Adelina Avenido-Ceno, created, according to the CA, sufficient proof of the fact of
marriage. Contrary to the trial court’s ruling, the CA found that its appreciation of the evidence presented by Tecla is
well in accord with Section 5, Rule 130 of the Rules of Court.

We uphold the reversal by the CA of the decision of the trial court. Quite recently, in Añonuevo v. Intestate Estate of
Rodolfo G. Jalandoni,28 we said, citing precedents, that:

While a marriage certificate is considered the primary evidence of a marital union, it is not regarded as the sole and
exclusive evidence of marriage. Jurisprudence teaches that the fact of marriage may be proven by relevant evidence
other than the marriage certificate. Hence, even a person’s birth certificate may be recognized as competent
evidence of the marriage between his parents.

The error of the trial court in ruling that without the marriage certificate, no other proof of the fact can be accepted, has
been aptly delineated in Vda de Jacob v. Court of Appeals.29 Thus:

It should be stressed that the due execution and the loss of the marriage contract, both constituting the conditio sine
qua non for the introduction of secondary evidence of its contents, were shown by the very evidence they have
disregarded. They have thus confused the evidence to show due execution and loss as "secondary" evidence of the
marriage. In Hernaez v. Mcgrath, the Court clarified this misconception thus:

x x x [T]he court below was entirely mistaken in holding that parol evidence of the execution of the instrument was
barred. The court confounded the execution and the contents of the document. It is the contents, x x x which may not
be proven by secondary evidence when the

instrument itself is accessible. Proofs of the execution are not dependent on the existence or non-existence of the
document, and, as a matter of fact, such proofs of the contents: due execution, besides the loss, has to be shown as
foundation for the inroduction of secondary evidence of the contents.

xxxx

Evidence of the execution of a document is, in the last analysis, necessarily collateral or primary. It generally consists of
parol testimony or extrinsic papers. Even when the document is actually produced, its authencity is not necessarily, if at
all, determined from its face or recital of its contents but by parol evidence. At the most, failure to produce the
document, when available, to establish its execution may effect the weight of the evidence presented but not the
admissibility of such evidence.

The Court of Appeals, as well as the trial court, tried to justify its stand on this issue by relying on Lim Tanhu v. Ramolete.
But even there, we said that "marriage may be prove[n] by other competent evidence.

Truly, the execution of a document may be proven by the parties themselves, by the swearing officer, by witnesses who
saw and recognized the signatures of the parties; or even by those to whom the parties have previously narrated the
execution thereof. The Court has also held that "[t]he loss may be shown by any person who [knows] the fact of its loss, or
by any one who ha[s] made, in the judgment of the court, a sufficient examination in the place or places where the
document or papers of similar character are usually kept by the person in whose custody the document lost was, and
has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the
instrument [has] indeed [been] lost."

In the present case, due execution was established by the testimonies of Adela Pilapil, who was present during the
marriage ceremony, and of petitioner herself as a party to the event. The subsequent loss was shown by the testimony
and the affidavit of the officiating priest, Monsignor Yllana, as relevant, competent and admissible evidence. Since the
due execution and the loss of the marriage contract were clearly shown by the evidence presented, secondary
evidence–testimonial and documentary–may be admitted to prove the fact of marriage.30

As correctly stated by the appellate court:

In the case at bench, the celebration of marriage between [Tecla] and EUSTAQUIO was established by the testimonial
evidence furnished by [Adelina] who appears to be present during the marriage ceremony, and by [Tecla] herself as a
living witness to the event. The loss was shown by the certifications issued by the NSO and LCR of Talibon, Bohol. These
are relevant, competent and admissible evidence. Since the due execution and the loss of the marriage contract were
clearly shown by the evidence presented, secondary evidence – testimonial and documentary – may be admitted to
prove the fact of marriage. In PUGEDA v. TRIAS, the

Supreme Court held that "marriage may be proven by any competent and relevant evidence. The testimony by one of
the parties to the marriage or by one of the witnesses to the marriage has been held to be admissible to prove the fact
of marriage. The person who officiated at the solemnization is also competent to testify as an eyewitness to the fact of
marriage."

xxxx
The court a quo committed a reversible error when it disregarded (1) the testimonies of [Adelina], the sister of EUSTAQUIO
who testified that she personally witnessed the wedding celebration of her older brother EUSTAQUIO and [Tecla] on 30
September 1942 at Talibon, Bohol; [Climaco], the eldest son of EUSTAQUIO and [Tecla], who testified that his mother
[Tecla] was married to his father, EUSTAQUIO, and [Tecla] herself; and (2) the documentary evidence mentioned at the
outset. It should be stressed that the due execution and the loss of the marriage contract, both constituting the condition
sine qua non for the introduction of secondary evidence of its contents, were shown by the very evidence the trial court
has disregarded.31

The starting point then, is the presumption of marriage.

As early as the case of Adong v. Cheong Seng Gee,32 this Court has elucidated on the rationale behind the
presumption:

The basis of human society throughout the civilized world is that of marriage.1âwphi1 Marriage in this jurisdiction is not
only a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested.
Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent
matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact
married. The reason is that such is the common order of society, and if the parties were not what they thus hold
themselves out as being, they would be living in the constant violation of decency and of law. A presumption
established by our Code of Civil Procedure is that a man and a woman deporting themselves as husband and wife have
entered into a lawful contract of marriage. (Sec. 334, No. 28) Semper – praesumitur pro matrimonio – Always presume
marriage.

In the case at bar, the establishment of the fact of marriage was completed by the testimonies of Adelina, Climaco and
Tecla; the unrebutted the certifications of marriage issued by the parish priest of the Most Holy Trinity Cathedral of
Talibon, Bohol.

WHEREFORE, the Petition is DENIED and the assailed Decision of the Court of Appeals in CA-G.R. CV No. 79444 is
AFFIRMED. The marriage between petitioner Peregrina Macua Avenido and the deceased Eustaquio Avenido is hereby
declared NULL and VOID. No pronouncement as to costs.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 183896 January 30, 2013

SYED AZHAR ABBAS, Petitioner,

vs.
GLORIA GOO ABBAS, Respondent.

DECISION

VELASCO, JR., J.:

This is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, questioning the Decision1 of
the Court of Appeals (CA) dated March 11, 2008 in CA-G.R. CV No. 86760, which reversed the Decision2 in Civil Case No.
03-0382-CFM dated October 5, 2005 of the Regional Trial Court (RTC), Branch 109, Pasay City, and the CA Resolution
dated July 24, 2008, denying petitioner's Motion for Reconsideration of the CA Decision.

The present case stems from a petition filed by petitioner Syed Azhar Abbas (Syed) for the declaration of nullity of his
marriage to Gloria Goo-Abbas (Gloria) with the RTC of Pasay City, docketed as Civil Case No. 03-0382-CFM, and raffled
to RTC Branch 109. Syed alleged the absence of a marriage license, as provided for in Article 4, Chapter I, Title 1 of
Executive Order No. 269, otherwise known as the Family Code of the Philippines, as a ground for the annulment of his
marriage to Gloria.

In the Marriage Contract3 of Gloria and Syed, it is stated that Marriage License No. 9969967, issued at Carmona, Cavite
on January 8, 1993, was presented to the solemnizing officer. It is this information that is crucial to the resolution of this
case.

At the trial court, Syed, a Pakistani citizen, testified that he met Gloria, a Filipino citizen, in Taiwan in 1991, and they were
married on August 9, 1992 at the Taipei Mosque in Taiwan.4 He arrived in the Philippines in December of 1992. On
January 9, 1993, at around 5 o’clock in the afternoon, he was at his mother-in-law’s residence, located at 2676 F. Muñoz
St., Malate, Manila, when his mother-in-law arrived with two men. He testified that he was told that he was going to
undergo some ceremony, one of the requirements for his stay in the Philippines, but was not told of the nature of said
ceremony. During the ceremony he and Gloria signed a document. He claimed that he did not know that the
ceremony was a marriage until Gloria told him later. He further testified that he did not go to Carmona, Cavite to apply
for a marriage license, and that he had never resided in that area. In July of 2003, he went to the Office of the Civil
Registrar of Carmona, Cavite, to check on their marriage license, and was asked to show a copy of their marriage
contract wherein the marriage license number could be found.5 The Municipal Civil Registrar, Leodivinia C. Encarnacion,
issued a certification on July 11, 2003 to the effect that the marriage license number appearing in the marriage contract
he submitted, Marriage License No. 9969967, was the number of another marriage license issued to a certain Arlindo
Getalado and Myra Mabilangan.6 Said certification reads as follows:

11 July 2003

TO WHOM IT MAY CONCERN:

This is to certify as per Registry Records of Marriage License filed in this office, Marriage License No. 9969967 was issued in
favor of MR. ARLINDO GETALADO and MISS MYRA MABILANGAN on January 19, 1993.
No Marriage License appear [sic] to have been issued to MR. SYED AZHAR ABBAS and MISS GLORIA F. GOO on January
8, 1993.

This certification is being issued to Mr. Syed Azhar Abbas for whatever legal purpose or intents it may serve.7

On cross-examination, Syed testified that Gloria had filed bigamy cases against him in 2001 and 2002, and that he had
gone to the Municipal Civil Registrar of Carmona, Cavite to get certification on whether or not there was a marriage
license on advice of his counsel.8

Petitioner also presented Norberto Bagsic (Bagsic), an employee of the Municipal Civil Registrar of Carmona, Cavite.
Bagsic appeared under a letter of authority from the Municipal Civil Registrar of Carmona, Cavite, and brought
documents pertaining to Marriage License No. 9969967, which was issued to Arlindo Getalado and Myra Mabilangan on
January 20, 1993.9

Bagsic testified that their office issues serial numbers for marriage licenses and that the numbers are issued
chronologically.10 He testified that the certification dated July 11, 2003, was issued and signed by Leodivina Encarnacion,
Registrar of the Municipality of Carmona, Cavite, certifying that Marriage License No. 9969967 was issued for Arlindo
Getalado and Myra Mabilangan on January 19, 1993, and that their office had not issued any other license of the same
serial number, namely 9969967, to any other person.11

For her part, Gloria testified on her own behalf, and presented Reverend Mario Dauz, Atty. Lorenzo Sanchez, Felicitas
Goo and May Ann Ceriola.

Reverend Mario Dauz (Rev. Dauz) testified that he was a minister of the Gospel and a barangay captain, and that he is
authorized to solemnize marriages within the Philippines.12 He testified that he solemnized the marriage of Syed Azhar
Abbas and Gloria Goo at the residence of the bride on January 9, 1993.13 He stated that the witnesses were Atty.
Lorenzo Sanchez (Atty. Sanchez) and Mary Ann Ceriola.14 He testified that he had been solemnizing marriages since
1982, and that he is familiar with the requirements.15 Rev. Dauz further testified that Atty. Sanchez gave him the marriage
license the day before the actual wedding, and that the marriage contract was prepared by his secretary.16 After the
solemnization of the marriage, it was registered with the Local Civil Registrar of Manila, and Rev. Dauz submitted the
marriage contract and copy of the marriage license with that office.17

Atty. Sanchez testified that he was asked to be the sponsor of the wedding of Syed Abbas and Gloria Goo by the
mother of the bride, Felicitas Goo.18 He testified that he requested a certain Qualin to secure the marriage license for the
couple, and that this Qualin secured the license and gave the same to him on January 8, 1993.19 He further testified that
he did not know where the marriage license was obtained.20 He attended the wedding ceremony on January 9, 1993,
signed the marriage contract as sponsor, and witnessed the signing of the marriage contract by the couple, the
solemnizing officer and the other witness, Mary Ann Ceriola.21

Felicitas Goo testified that Gloria Goo is her daughter and Syed Azhar Abbas is her son-in-law, and that she was present
at the wedding ceremony held on January 9, 1993 at her house.22 She testified that she sought the help of Atty. Sanchez
at the Manila City Hall in securing the marriage license, and that a week before the marriage was to take place, a male
person went to their house with the application for marriage license.23 Three days later, the same person went back to
their house, showed her the marriage license before returning it to Atty. Sanchez who then gave it to Rev. Dauz, the
solemnizing officer.24 She further testified that she did not read all of the contents of the marriage license, and that she
was told that the marriage license was obtained from Carmona.25 She also testified that a bigamy case had been filed
by Gloria against Syed at the Regional Trial Court of Manila, evidenced by an information for Bigamy dated January 10,
2003, pending before Branch 47 of the Regional Trial Court of Manila.26

As to Mary Ann Ceriola’s testimony, the counsels for both parties stipulated that: (a) she is one of the sponsors at the
wedding of Gloria Goo and Syed Abbas on January 9, 1993; (b) she was seen in the wedding photos and she could
identify all the persons depicted in said photos; and (c) her testimony corroborates that of Felicitas Goo and Atty.
Sanchez.

The respondent, Gloria, testified that Syed is her husband, and presented the marriage contract bearing their signatures
as proof.27 She and her mother sought the help of Atty. Sanchez in securing a marriage license, and asked him to be one
of the sponsors. A certain Qualin went to their house and said that he will get the marriage license for them, and after
several days returned with an application for marriage license for them to sign, which she and Syed did. After Qualin
returned with the marriage license, they gave the license to Atty. Sanchez who gave it to Rev. Dauz, the solemnizing
officer. Gloria testified that she and Syed were married on January 9, 1993 at their residence.28
Gloria further testified that she has a daughter with Syed, born on June 15, 1993.29

Gloria also testified that she filed a bigamy case against Syed, who had married a certain Maria Corazon Buenaventura
during the existence of the previous marriage, and that the case was docketed as Criminal Case No. 02A-03408, with
the RTC of Manila.30

Gloria stated that she and Syed had already been married on August 9, 1992 in Taiwan, but that she did not know if said
marriage had been celebrated under Muslim rites, because the one who celebrated their marriage was Chinese, and
those around them at the time were Chinese.31

The Ruling of the RTC

In its October 5, 2005 Decision, the Pasay City RTC held that no valid marriage license was issued by the Municipal Civil
Registrar of Carmona, Cavite in favor of Gloria and Syed, as Marriage License No. 9969967 had been issued to Arlindo
Getalado and Myra Mabilangan, and the Municipal Civil Registrar of Carmona, Cavite had certified that no marriage
license had been issued for Gloria and Syed.32 It also took into account the fact that neither party was a resident of
Carmona, Cavite, the place where Marriage License No. 9969967 was issued, in violation of Article 9 of the Family
Code.33 As the marriage was not one of those exempt from the license requirement, and that the lack of a valid
marriage license is an absence of a formal requisite, the marriage of Gloria and Syed on January 9, 1993 was void ab
initio.

The dispositive portion of the Decision reads as follows:

WHEREFORE, judgment is hereby rendered in favor of the petitioner, and against the respondent declaring as follows:

1. The marriage on January 9, 1993 between petitioner Syed Azhar Abbas and respondent Gloria Goo-Abbas is
hereby annulled;

2. Terminating the community of property relations between the petitioner and the respondent even if no
property was acquired during their cohabitation by reason of the nullity of the marriage of the parties.

3. The Local Civil Registrar of Manila and the Civil Registrar General, National Statistics Office, are hereby
ordered to cancel from their respective civil registries the marriage contracted by petitioner Syed Azhar Abbas
and respondent Gloria Goo-Abbas on January 9, 1993 in Manila.

SO ORDERED.34

Gloria filed a Motion for Reconsideration dated November 7, 2005, but the RTC denied the same, prompting her to
appeal the questioned decision to the Court of Appeals.

The Ruling of the CA

In her appeal to the CA, Gloria submitted the following assignment of errors:

THE LOWER COURT ERRED IN DECLARING THE MARRIAGE BETWEEN THE PETITIONER AND RESPONDENT AS NULL
AND VOID DUE TO THE ABSENCE OF A MARRIAGE LICENSE DESPITE EVIDENCE CLEARLY SHOWING THAT THERE
WAS ONE.

II

THE LOWER COURT ERRED IN NOT CONSIDERING, AS A REQUISITE OF A VALID MARRIAGE, THE OVERWHELMING
EVIDENCE SHOWING THAT A MARRIAGE CEREMONY TOOK PLACE WITH THE APPEARANCE OF THE CONTRACTING
PARTIES BEFORE THE SOLEMNIZING OFFICER AND THEIR PERSONAL DECLARATION THAT THEY TOOK EACH OTHER
AS HUSBAND AND WIFE IN THE PRESENCE OF NOT LESS THAN TWO WITNESSES OF LEGAL AGE.

III
 THE LOWER COURT ERRED IN NOT RULING ON THE ISSUE OF ESTOPPEL BY LACHES ON THE PART OF THE PETITIONER,
AN ISSUE TIMELY RAISED IN THE COURT BELOW.35

The CA gave credence to Gloria’s arguments, and granted her appeal. It held that the certification of the Municipal
Civil Registrar failed to categorically state that a diligent search for the marriage license of Gloria and Syed was
conducted, and thus held that said certification could not be accorded probative value.36 The CA ruled that there was
sufficient testimonial and documentary evidence that Gloria and Syed had been validly married and that there was
compliance with all the requisites laid down by law.37

It gave weight to the fact that Syed had admitted to having signed the marriage contract. The CA also considered that
the parties had comported themselves as husband and wife, and that Syed only instituted his petition after Gloria had
filed a case against him for bigamy.38

The dispositive portion of the CA Decision reads as follows:

WHEREFORE, premises considered, the appeal is GRANTED. The Decision dated 05 October 2005 and Order dated 27
January 2006 of the Regional Trial Court of Pasay City, Branch 109, in Civil Case No. 03-0382-CFM are REVERSED and SET
ASIDE and the Petition for Declaration of Nullity of Marriage is DISMISSED. The marriage between Shed [sic] Azhar Abbas
and Gloria Goo Abbas contracted on 09 January 1993 remains valid and subsisting. No costs.

SO ORDERED.39

Syed then filed a Motion for Reconsideration dated April 1, 200840 but the same was denied by the CA in a Resolution
dated July 24, 2008.41

Hence, this petition.

Grounds in Support of Petition

THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW IN CITING REPUBLIC VS. COURT OF
APPEALS AS THE SAME IS DIAMETRICALLY INCONSISTENT AND CONTRARY TO THE COURT’S OWN FINDINGS AND
CONCLUSIONS IN THIS CASE.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REVERSING AND SETTING ASIDE, WITHOUT ANY FACTUAL
AND LEGAL BASIS, THE DECISION OF THE REGIONAL TRIAL COURT GRANTING THE PETITION FOR DECLARATION OF
NULLITY OF MARRIAGE.42

The Ruling of this Court

The petition is meritorious.

As the marriage of Gloria and Syed was solemnized on January 9, 1993, Executive Order No. 209, or the Family Code of
the Philippines, is the applicable law. The pertinent provisions that would apply to this particular case are Articles 3, 4 and
35(3), which read as follows:

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
 (3) A marriage ceremony which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age.

Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in
Article 35(2).

A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45.

An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for
the irregularity shall be civilly, criminally and administratively liable.

Art. 35. The following marriages shall be void from the beginning:

xxxx

(3) Those solemnized without a license, except those covered by the preceding Chapter.

There is no issue with the essential requisites under Art. 2 of the Family Code, nor with the formal requisites of the authority
of the solemnizing officer and the conduct of the marriage ceremony. Nor is the marriage one that is exempt from the
requirement of a valid marriage license under Chapter 2, Title I of the Family Code. The resolution of this case, thus,
hinges on whether or not a valid marriage license had been issued for the couple. The RTC held that no valid marriage
license had been issued. The CA held that there was a valid marriage license.

We find the RTC to be correct in this instance.

Respondent Gloria failed to present the actual marriage license, or a copy thereof, and relied on the marriage contract
as well as the testimonies of her witnesses to prove the existence of said license. To prove that no such license was issued,
Syed turned to the office of the Municipal Civil Registrar of Carmona, Cavite which had allegedly issued said license. It
was there that he requested certification that no such license was issued. In the case of Republic v. Court of
Appeals43 such certification was allowed, as permitted by Sec. 29, Rule 132 of the Rules of Court, which reads:

SEC. 28. Proof of lack of record. – A written statement signed by an officer having the custody of an official record or by
his deputy that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office,
accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no
such record or entry.

In the case of Republic, in allowing the certification of the Civil Registrar of Pasig to prove the non-issuance of a marriage
license, the Court held:

The above Rule authorized the custodian of the documents to certify that despite diligent search, a particular document
does not exist in his office or that a particular entry of a specified tenor was not to be found in a register. As custodians of
public documents, civil registrars are public officers charged with the duty, inter alia, of maintaining a register book
where they are required to enter all applications for marriage licenses, including the names of the applicants, the date
the marriage license was issued and such other relevant data.44

The Court held in that case that the certification issued by the civil registrar enjoyed probative value, as his duty was to
maintain records of data relative to the issuance of a marriage license.

The Municipal Civil Registrar of Carmona, Cavite, where the marriage license of Gloria and Syed was allegedly issued,
issued a certification to the effect that no such marriage license for Gloria and Syed was issued, and that the serial
number of the marriage license pertained to another couple, Arlindo Getalado and Myra Mabilangan. A certified
machine copy of Marriage License No. 9969967 was presented, which was issued in Carmona, Cavite, and indeed, the
names of Gloria and Syed do not appear in the document.

In reversing the RTC, the CA focused on the wording of the certification, stating that it did not comply with Section 28,
Rule 132 of the Rules of Court.
The CA deduced that from the absence of the words "despite diligent search" in the certification, and since the
certification used stated that no marriage license appears to have been issued, no diligent search had been conducted
and thus the certification could not be given probative value.

To justify that deduction, the CA cited the case of Republic v. Court of Appeals.45 It is worth noting that in that particular
case, the Court, in sustaining the finding of the lower court that a marriage license was lacking, relied on the
Certification issued by the Civil Registrar of Pasig, which merely stated that the alleged marriage license could not be
located as the same did not appear in their records. Nowhere in the Certification was it categorically stated that the
officer involved conducted a diligent search, nor is a categorical declaration absolutely necessary for Sec. 28, Rule 132
of the Rules of Court to apply.

Under Sec. 3(m), Rule 131 of the Rules of Court, it is a disputable presumption that an official duty has been regularly
performed, absent contradiction or other evidence to the contrary. We held, "The presumption of regularity of official
acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty."46 No such affirmative evidence
was shown that the Municipal Civil Registrar was lax in performing her duty of checking the records of their office, thus
the presumption must stand. In fact, proof does exist of a diligent search having been conducted, as Marriage License
No. 996967 was indeed located and submitted to the court. The fact that the names in said license do not correspond to
those of Gloria and Syed does not overturn the presumption that the registrar conducted a diligent search of the records
of her office.

It is telling that Gloria failed to present their marriage license or a copy thereof to the court. She failed to explain why the
marriage license was secured in Carmona, Cavite, a location where, admittedly, neither party resided. She took no
pains to apply for the license, so she is not the best witness to testify to the validity and existence of said license. Neither
could the other witnesses she presented prove the existence of the marriage license, as none of them applied for the
license in Carmona, Cavite. Her mother, Felicitas Goo, could not even testify as to the contents of the license, having
admitted to not reading all of its contents. Atty. Sanchez, one of the sponsors, whom Gloria and Felicitas Goo
approached for assistance in securing the license, admitted not knowing where the license came from. The task of
applying for the license was delegated to a certain Qualin, who could have testified as to how the license was secured
and thus impeached the certification of the Municipal Civil Registrar as well as the testimony of her representative. As
Gloria failed to present this Qualin, the certification of the Municipal Civil Registrar still enjoys probative value.

It is also noted that the solemnizing officer testified that the marriage contract and a copy of the marriage license were
submitted to the Local Civil Registrar of Manila. Thus, a copy of the marriage license could have simply been secured
from that office and submitted to the court. However, Gloria inexplicably failed to do so, further weakening her claim
that there was a valid marriage license issued for her and Syed.

In the case of Cariño v. Cariño,47 following the case of Republic,48 it was held that the certification of the Local Civil
Registrar that their office had no record of a marriage license was adequate to prove the non-issuance of said license.
The case of Cariño further held that the presumed validity of the marriage of the parties had been overcome, and that it
became the burden of the party alleging a valid marriage to prove that the marriage was valid, and that the required
marriage license had been secured.49 Gloria has failed to discharge that burden, and the only conclusion that can be
reached is that no valid marriage license was issued. It cannot be said that there was a simple irregularity in the marriage
license that would not affect the validity of the marriage, as no license was presented by the respondent. No marriage
license was proven to have been issued to Gloria and Syed, based on the certification of the Municipal Civil Registrar of
Carmona, Cavite and Gloria’s failure to produce a copy of the alleged marriage license.

To bolster its ruling, the CA cited other evidence to support its conclusion that Gloria and Syed were validly married. To
quote the CA:

Moreover, the record is replete with evidence, testimonial and documentary, that appellant and appellee have been
validly married and there was compliance with all the requisites laid down by law. Both parties are legally capacitated
to marry. A certificate of legal capacity was even issued by the Embassy of Pakistan in favor of appellee. The parties
herein gave their consent freely. Appellee admitted that the signature above his name in the marriage contract was his.
Several pictures were presented showing appellant and appellee, before the solemnizing officer, the witnesses and
other members of appellant’s family, taken during the marriage ceremony, as well as in the restaurant where the lunch
was held after the marriage ceremony. Most telling of all is Exhibit "5-C" which shows appellee signing the Marriage
Contract.

xxxx

The parties have comported themselves as husband and wife and has [sic] one offspring, Aliea Fatima Goo Abbas, who
was born on 15 June 1993. It took appellee more than ten (10) years before he filed on 01 August 2003 his Petition for
Declaration of Nullity of Marriage under Article 4 of the Family Code. We take serious note that said Petition appears to
have been instituted by him only after an Information for Bigamy (Exhibit "1") dated 10 January 2003 was filed against him
for contracting a second or subsequent marriage with one Ma. Corazon (Maryam) T. Buenaventura. We are not ready
to reward (appellee) by declaring the nullity of his marriage and give him his freedom and in the process allow him to
profit from his own deceit and perfidy.50

All the evidence cited by the CA to show that a wedding ceremony was conducted and a marriage contract was
signed does not operate to cure the absence of a valid marriage license. Article 4 of the Family Code is clear when it
says, "The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in
Article 35(2)." Article 35(3) of the Family Code also provides that a marriage solemnized without a license is void from the
beginning, except those exempt from the license requirement under Articles 27 to 34, Chapter 2, Title I of the same
Code.51 Again, this marriage cannot be characterized as among the exemptions, and thus, having been solemnized
without a marriage license, is void ab initio.1âwphi1

As to the motive of Syed in seeking to annul his marriage to Gloria, it may well be that his motives are less than pure, that
he seeks to evade a bigamy suit. Be that as it may, the same does not make up for the failure of the respondent to
prove that they had a valid marriage license, given the weight of evidence presented by petitioner. The lack of a valid
marriage license cannot be attributed to him, as it was Gloria who took steps to procure the same. The law must be
applied. As the marriage license, a formal requisite, is clearly absent, the marriage of Gloria and Syed is void ab initio.

WHEREFORE, in light of the foregoing, the petition is hereby GRANTED. The assailed Decision dated March 11, 2008 and
Resolution dated July 24, 2008 of the Court of Appeals in CA-G.R. CV No. 86760 are hereby REVERSED and SET ASIDE. The
Decision of the Regional Trial Court, Branch 109, Pasay City dated October 5, 2005 in Civil Case No. 03-0382-CFM
annulling the marriage of petitioner with respondent on January 9, 1993 is hereby REINSTATED.

No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA
Associate Justice

ROBERTO A. ABAD JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice

FIRST DIVISION

[A.M. No. MTJ-00-1329. March 8, 2001]

HERMINIA BORJA-MANZANO, petitioner, vs. JUDGE ROQUE R. SANCHEZ, MTC, Infanta, Pangasinan, respondent.

RESOLUTION

DAVIDE, JR., C.J.:

The solemnization of a marriage between two contracting parties who were both bound by a prior existing marriage
is the bone of contention of the instant complaint against respondent Judge Roque R. Sanchez, Municipal Trial Court,
Infanta, Pangasinan. For this act, complainant Herminia Borja-Manzano charges respondent Judge with gross ignorance
of the law in a sworn Complaint-Affidavit filed with the Office of the Court Administrator on 12 May 1999.

Complainant avers that she was the lawful wife of the late David Manzano, having been married to him on 21 May
1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City.[1]Four children were born out of that marriage.[2] On
22 March 1993, however, her husband contracted another marriage with one Luzviminda Payao before respondent
Judge.[3] When respondent Judge solemnized said marriage, he knew or ought to know that the same was void and
bigamous, as the marriage contract clearly stated that both contracting parties were separated.

Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage between
Manzano and Payao he did not know that Manzano was legally married. What he knew was that the two had been living
together as husband and wife for seven years already without the benefit of marriage, as manifested in their joint
affidavit.[4] According to him, had he known that the late Manzano was married, he would have advised the latter not to
marry again; otherwise, he (Manzano) could be charged with bigamy. He then prayed that the complaint be dismissed
for lack of merit and for being designed merely to harass him.

After an evaluation of the Complaint and the Comment, the Court Administrator recommended that respondent
Judge be found guilty of gross ignorance of the law and be ordered to pay a fine of P2,000, with a warning that a repetition
of the same or similar act would be dealt with more severely.

On 25 October 2000, this Court required the parties to manifest whether they were willing to submit the case for
resolution on the basis of the pleadings thus filed. Complainant answered in the affirmative.

For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the complaint and setting
aside his earlier Comment. He therein invites the attention of the Court to two separate affidavits[5] of the late Manzano
and of Payao, which were allegedly unearthed by a member of his staff upon his instruction. In those affidavits, both David
Manzano and Luzviminda Payao expressly stated that they were married to Herminia Borja and Domingo Relos,
respectively; and that since their respective marriages had been marked by constant quarrels, they had both left their
families and had never cohabited or communicated with their spouses anymore. Respondent Judge alleges that on the
basis of those affidavits, he agreed to solemnize the marriage in question in accordance with Article 34 of the Family Code.

We find merit in the complaint.

Article 34 of the Family Code provides:

No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for
at least five years and without any legal impediment to marry each other.The contracting parties shall state the
foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also
state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the
marriage.

For this provision on legal ratification of marital cohabitation to apply, the following requisites must concur:
 1. The man and woman must have been living together as husband and wife for at least five years before the
marriage;

2. The parties must have no legal impediment to marry each other;

3. The fact of absence of legal impediment between the parties must be present at the time of marriage;

4. The parties must execute an affidavit stating that they have lived together for at least five years [and are
without legal impediment to marry each other]; and

5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the
parties and that he had found no legal impediment to their marriage.[6]

Not all of these requirements are present in the case at bar. It is significant to note that in their separate affidavits
executed on 22 March 1993 and sworn to before respondent Judge himself, David Manzano and Luzviminda Payao
expressly stated the fact of their prior existing marriage. Also, in their marriage contract, it was indicated that both were
separated.

Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment impediment, which would
make the subsequent marriage null and void.[7] In fact, in his Comment, he stated that had he known that the late
Manzano was married he would have discouraged him from contracting another marriage. And respondent Judge
cannot deny knowledge of Manzanos and Payaos subsisting previous marriage, as the same was clearly stated in their
separate affidavits which were subscribed and sworn to before him.

The fact that Manzano and Payao had been living apart from their respective spouses for a long time already is
immaterial. Article 63(1) of the Family Code allows spouses who have obtained a decree of legal separation to live
separately from each other, but in such a case the marriage bonds are not severed. Elsewise stated, legal separation does
not dissolve the marriage tie, much less authorize the parties to remarry. This holds true all the more when the separation is
merely de facto, as in the case at bar.

Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda Payao stating
that they had been cohabiting as husband and wife for seven years. Just like separation, free and voluntary cohabitation
with another person for at least five years does not severe the tie of a subsisting previous marriage. Marital cohabitation
for a long period of time between two individuals who are legally capacitated to marry each other is merely a ground for
exemption from marriage license. It could not serve as a justification for respondent Judge to solemnize a subsequent
marriage vitiated by the impediment of a prior existing marriage.

Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void and bigamous
marriage. The maxim ignorance of the law excuses no one has special application to judges,[8] who, under Rule 1.01 of
the Code of Judicial Conduct, should be the embodiment of competence, integrity, and independence. It is highly
imperative that judges be conversant with the law and basic legal principles.[9] And when the law transgressed is simple
and elementary, the failure to know it constitutes gross ignorance of the law.[10]

ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with the MODIFICATION that
the amount of fine to be imposed upon respondent Judge Roque Sanchez is increased to P20,000.

SO ORDERED.

Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

FIRST DIVISION

[G.R. No. 133778. March 14, 2000]

ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO
NIAL, JR., petitioners, vs. NORMA BAYADOG, respondent. Ncmmis

DECISION

YNARES_SANTIAGO, J.:

May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death?

Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein petitioners.
Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8 months thereafter or on December
11, 1986, Pepito and respondent Norma Badayog got married without any marriage license. In lieu thereof, Pepito and
Norma executed an affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at
least five years and were thus exempt from securing a marriage license. On February 19, 1997, Pepito died in a car
accident. After their fathers death, petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma
alleging that the said marriage was void for lack of a marriage license. The case was filed under the assumption that the
validity or invalidity of the second marriage would affect petitioners successional rights. Norma filed a motion to dismiss
on the ground that petitioners have no cause of action since they are not among the persons who could file an action
for "annulment of marriage" under Article 47 of the Family Code.

Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the petition after
finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following issues:

(1) Whether or not plaintiffs have a cause of action against defendant in asking for the declaration of
the nullity of marriage of their deceased father, Pepito G. Nial, with her specially so when at the time
of the filing of this instant suit, their father Pepito G. Nial is already dead;

(2) Whether or not the second marriage of plaintiffs deceased father with defendant is null and void
ab initio;

(3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage after it
was dissolved due to their fathers death.[1]

Thus, the lower court ruled that petitioners should have filed the action to declare null and void their fathers marriage to
respondent before his death, applying by analogy Article 47 of the Family Code which enumerates the time and the
persons who could initiate an action for annulment of marriage.[2] Hence, this petition for review with this Court grounded
on a pure question of law. Scnc m

This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of Civil Procedure, and
because "the verification failed to state the basis of petitioners averment that the allegations in the petition are true and
correct." It was thus treated as an unsigned pleading which produces no legal effect under Section 3, Rule 7, of the 1997
Rules.[3] However, upon motion of petitioners, this Court reconsidered the dismissal and reinstated the petition for
review.[4]

The two marriages involved herein having been solemnized prior to the effectivity of the Family Code (FC), the
applicable law to determine their validity is the Civil Code which was the law in effect at the time of their
celebration.[5] A valid marriage license is a requisite of marriage under Article 53 of the Civil Code,[6] the absence of
which renders the marriage void ab initio pursuant to Article 80(3)[7] in relation to Article 58.[8] The requirement and
issuance of marriage license is the States demonstration of its involvement and participation in every marriage, in the
maintenance of which the general public is interested.[9] This interest proceeds from the constitutional mandate that the
State recognizes the sanctity of family life and of affording protection to the family as a basic "autonomous social
institution."[10] Specifically, the Constitution considers marriage as an "inviolable social institution," and is the foundation of
family life which shall be protected by the State.[11] This is why the Family Code considers marriage as "a special contract
of permanent union"[12] and case law considers it "not just an adventure but a lifetime commitment."[13]

However, there are several instances recognized by the Civil Code wherein a marriage license is dispensed with, one of
which is that provided in Article 76,[14] referring to the marriage of a man and a woman who have lived together and
exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the
marriage. The rationale why no license is required in such case is to avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the
publication of every applicants name for a marriage license. The publicity attending the marriage license may
discourage such persons from legitimizing their status.[15] To preserve peace in the family, avoid the peeping and
suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law
deemed it wise to preserve their privacy and exempt them from that requirement. Sdaa miso

There is no dispute that the marriage of petitioners father to respondent Norma was celebrated without any marriage
license. In lieu thereof, they executed an affidavit stating that "they have attained the age of majority, and, being
unmarried, have lived together as husband and wife for at least five years, and that we now desire to marry each
other."[16] The only issue that needs to be resolved pertains to what nature of cohabitation is contemplated under Article
76 of the Civil Code to warrant the counting of the five year period in order to exempt the future spouses from securing a
marriage license. Should it be a cohabitation wherein both parties are capacitated to marry each other during the
entire five-year continuous period or should it be a cohabitation wherein both parties have lived together and
exclusively with each other as husband and wife during the entire five-year continuous period regardless of whether
there is a legal impediment to their being lawfully married, which impediment may have either disappeared or
intervened sometime during the cohabitation period?

Working on the assumption that Pepito and Norma have lived together as husband and wife for five years without the
benefit of marriage, that five-year period should be computed on the basis of a cohabitation as "husband and wife"
where the only missing factor is the special contract of marriage to validate the union. In other words, the five-year
common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period
of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately
before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third
party was involved at any time within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year
cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other
during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common
law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being
a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a
man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the
law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same
missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from
securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted
that a license is required in order to notify the public that two persons are about to be united in matrimony and that
anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil
registrar.[17] The Civil Code provides:

Article 63: "x x x. This notice shall request all persons having knowledge of any impediment to the
marriage to advice the local civil registrar thereof. x x x."

Article 64: "Upon being advised of any alleged impediment to the marriage, the local civil registrar
shall forthwith make an investigation, examining persons under oath. x x x" Sdaad

This is reiterated in the Family Code thus:

Article 17 provides in part: "x x x. This notice shall request all persons having knowledge of any
impediment to the marriage to advise the local civil registrar thereof. x x x."

Article 18 reads in part: "x x x. In case of any impediment known to the local civil registrar or brought to
his attention, he shall note down the particulars thereof and his findings thereon in the application for
a marriage license. x x x."

This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of multiple marriages by
the same person during the same period. Thus, any marriage subsequently contracted during the lifetime of the first
spouse shall be illegal and void,[18] subject only to the exception in cases of absence or where the prior marriage was
dissolved or annulled. The Revised Penal Code complements the civil law in that the contracting of two or more
marriages and the having of extramarital affairs are considered felonies, i.e., bigamy and concubinage and
adultery.[19] The law sanctions monogamy.

In this case, at the time of Pepito and respondents marriage, it cannot be said that they have lived with each other as
husband and wife for at least five years prior to their wedding day. From the time Pepitos first marriage was dissolved to
the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that Pepito and his first
wife had separated in fact, and thereafter both Pepito and respondent had started living with each other that has
already lasted for five years, the fact remains that their five-year period cohabitation was not the cohabitation
contemplated by law. It should be in the nature of a perfect union that is valid under the law but rendered imperfect
only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting
with respondent. It is immaterial that when they lived with each other, Pepito had already been separated in fact from
his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship
between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband
and wife". Scs daad

Having determined that the second marriage involved in this case is not covered by the exception to the requirement of
a marriage license, it is void ab initio because of the absence of such element.

The next issue to be resolved is: do petitioners have the personality to file a petition to declare their fathers marriage void
after his death?
Contrary to respondent judges ruling, Article 47 of the Family Code[20] cannot be applied even by analogy to petitions
for declaration of nullity of marriage. The second ground for annulment of marriage relied upon by the trial court, which
allows "the sane spouse" to file an annulment suit "at any time before the death of either party" is inapplicable. Article 47
pertains to the grounds, periods and persons who can file an annulment suit, not a suit for declaration of nullity of
marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage. Voidable and void
marriages are not identical. A marriage that is annulable is valid until otherwise declared by the court; whereas a
marriage that is void ab initio is considered as having never to have taken place[21] and cannot be the source of rights.
The first can be generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified.
A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be
attacked collaterally. Consequently, void marriages can be questioned even after the death of either party but
voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case
the parties and their offspring will be left as if the marriage had been perfectly valid.[22] That is why the action or defense
for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable
marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects
except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership
through actual joint contribution,[23] and its effect on the children born to such void marriages as provided in Article 50 in
relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the contrary, the property regime
governing voidable marriages is generally conjugal partnership and the children conceived before its annulment are
legitimate. Sup rema

Contrary to the trial courts ruling, the death of petitioners father extinguished the alleged marital bond between him and
respondent. The conclusion is erroneous and proceeds from a wrong premise that there was a marriage bond that was
dissolved between the two. It should be noted that their marriage was void hence it is deemed as if it never existed at all
and the death of either extinguished nothing.

Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a
marriage.[24] "A void marriage does not require a judicial decree to restore the parties to their original rights or to make
the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of good order
of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should be
ascertained and declared by the decree of a court of competent jurisdiction."[25] "Under ordinary circumstances, the
effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage had
ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in
which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at any
time, whether before or after the death of either or both the husband and the wife, and upon mere proof of the facts
rendering such marriage void, it will be disregarded or treated as non-existent by the courts." It is not like a voidable
marriage which cannot be collaterally attacked except in direct proceeding instituted during the lifetime of the parties
so that on the death of either, the marriage cannot be impeached, and is made good ab initio.[26] But Article 40 of the
Family Code expressly provides that there must be a judicial declaration of the nullity of a previous marriage, though
void, before a party can enter into a second marriage[27] and such absolute nullity can be based only on a final
judgment to that effect.[28] For the same reason, the law makes either the action or defense for the declaration of
absolute nullity of marriage imprescriptible.[29] Corollarily, if the death of either party would extinguish the cause of action
or the ground for defense, then the same cannot be considered imprescriptible. Juris

However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity.
For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of
estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of
marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the
case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of
declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment
declaring such previous marriage void" in Article 40 of the Family Code connotes that such final judgment need not be
obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City, Cebu, Branch 59,
dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is ordered REINSTATED.

SO ORDERED.

Davide, Jr., (Chairman), Puno, and Kapunan, JJ., concur. Sc juris

Pardo, J., on official business abroad.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 198780 October 16, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
LIBERTY D. ALBIOS, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules t of Court assailing the September 29, 2011 Decision1 of
the Court of Appeals (CA), in CA-G.R. CV No. 95414, which affirmed the April 25, 2008Decision2 of the Regional Trial
Court, Imus, Cavite (RTC). declaring the marriage of Daniel Lee Fringer (Fringer) and respondent Liberty Albios (A/bios) as
void from the beginning.

The facts

On October 22, 2004, Fringer, an American citizen, and Albios were married before Judge Ofelia I. Calo of the
Metropolitan Trial Court, Branch59, Mandaluyong City (MeTC), as evidenced by a Certificate of Marriage with Register
No. 2004-1588.3

On December 6, 2006, Albios filed with the RTC a petition for declaration of nullity 4 of her marriage with Fringer. She
alleged that immediately after their marriage, they separated and never lived as husband and wife because they never
really had any intention of entering into a married state or complying with any of their essential marital obligations. She
described their marriage as one made in jest and, therefore, null and void ab initio .

Summons was served on Fringer but he did not file his answer. On September 13, 2007, Albios filed a motion to set case
for pre-trial and to admit her pre-trial brief. The RTC ordered the Assistant Provincial Prosecutor to conduct an
investigation and determine the existence of a collusion. On October 2, 2007, the Assistant Prosecutor complied and
reported that she could not make a determination for failure of both parties to appear at the scheduled investigation.

At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer did not attend the hearing despite being
duly notified of the schedule. After the pre-trial, hearing on the merits ensued.

Ruling of the RTC

In its April 25, 2008 Decision,5 the RTC declared the marriage void ab initio, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring the marriage of Liberty Albios and Daniel Lee
Fringer as void from the very beginning. As a necessary consequence of this pronouncement, petitioner shall cease
using the surname of respondent as she never acquired any right over it and so as to avoid a misimpression that she
remains the wife of respondent.

xxxx

SO ORDERED.6

The RTC was of the view that the parties married each other for convenience only. Giving credence to the testimony of
Albios, it stated that she contracted Fringer to enter into a marriage to enable her to acquire American citizenship; that
in consideration thereof, she agreed to pay him the sum of $2,000.00; that after the ceremony, the parties went their
separate ways; that Fringer returned to the United States and never again communicated with her; and that, in turn, she
did not pay him the $2,000.00 because he never processed her petition for citizenship. The RTC, thus, ruled that when
marriage was entered into for a purpose other than the establishment of a conjugal and family life, such was a farce
and should not be recognized from its inception.

Petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed a motion for
reconsideration. The RTC issued the Order, 7 dated February 5, 2009, denying the motion for want of merit. It explained
that the marriage was declared void because the parties failed to freely give their consent to the marriage as they had
no intention to be legally bound by it and used it only as a means to acquire American citizenship in consideration of
$2,000.00.

Not in conformity, the OSG filed an appeal before the CA.

Ruling of the CA

In its assailed decision, dated September 29, 2011, the CA affirmed the RTC ruling which found that the essential requisite
of consent was lacking. The CA stated that the parties clearly did not understand the nature and consequence of
getting married and that their case was similar to a marriage in jest. It further explained that the parties never intended
to enter into the marriage contract and never intended to live as husband and wife or build a family. It concluded that
their purpose was primarily for personal gain, that is, for Albios to obtain foreign citizenship, and for Fringer, the
consideration of $2,000.00.

Hence, this petition.

Assignment of Error

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT HELD THAT A MARRIAGE CONTRACTED FOR THEPURPOSE
OF OBTAINING FOREIGN CITIZENSHIP WAS DONEIN JEST, HENCE, LACKING IN THE ESSENTIAL ELEMENT OFCONSENT.8

The OSG argues that albeit the intention was for Albios to acquire American citizenship and for Fringer to be paid
$2,000.00, both parties freely gave their consent to the marriage, as they knowingly and willingly entered into that
marriage and knew the benefits and consequences of being bound by it. According to the OSG, consent should be
distinguished from motive, the latter being inconsequential to the validity of marriage.

The OSG also argues that the present case does not fall within the concept of a marriage in jest. The parties here
intentionally consented to enter into a real and valid marriage, for if it were otherwise, the purpose of Albios to acquire
American citizenship would be rendered futile.

On October 29, 2012, Albios filed her Comment9 to the petition, reiterating her stand that her marriage was similar to a
marriage by way of jest and, therefore, void from the beginning.

On March 22, 2013, the OSG filed its Reply10 reiterating its arguments in its petition for review on certiorari.

Ruling of the Court

The resolution of this case hinges on this sole question of law: Is a marriage, contracted for the sole purpose of acquiring
American citizenship in consideration of $2,000.00, void ab initio on the ground of lack of consent?

The Court resolves in the negative.

Before the Court delves into its ruling, It shall first examine the phenomenon of marriage fraud for the purposes of
immigration.

Marriage Fraud in Immigration

The institution of marriage carries with it concomitant benefits. This has led to the development of marriage fraud for the
sole purpose of availing of particular benefits. In the United States, marriages where a couple marries only to achieve a
particular purpose or acquire specific benefits, have been referred to as "limited purpose" marriages.11 A common
limited purpose marriage is one entered into solely for the legitimization of a child.12 Another, which is the subject of the
present case, is for immigration purposes. Immigration law is usually concerned with the intention of the couple at the
time of their marriage,13 and it attempts to filter out those who use marriage solely to achieve immigration status.14

In 1975, the seminal case of Bark v. Immigration and Naturalization Service,15 established the principal test for
determining the presence of marriage fraud in immigration cases. It ruled that a "marriage is a sham if the bride and
groom did not intend to establish a life together at the time they were married. "This standard was modified with the
passage of the Immigration Marriage Fraud Amendment of 1986 (IMFA), which now requires the couple to instead
demonstrate that the marriage was not "entered into for the purpose of evading the immigration laws of the United
States." The focus, thus, shifted from determining the intention to establish a life together, to determining the intention of
evading immigration laws.16 It must be noted, however, that this standard is used purely for immigration purposes and,
therefore, does not purport to rule on the legal validity or existence of a marriage.

The question that then arises is whether a marriage declared as a sham or fraudulent for the limited purpose of
immigration is also legally void and in existent. The early cases on limited purpose marriages in the United States made no
definitive ruling. In 1946, the notable case of

United States v. Rubenstein17 was promulgated, wherein in order to allow an alien to stay in the country, the parties had
agreed to marry but not to live together and to obtain a divorce within six months. The Court, through Judge Learned
Hand, ruled that a marriage to convert temporary into permanent permission to stay in the country was not a marriage,
there being no consent, to wit:

x x x But, that aside, Spitz and Sandler were never married at all. Mutual consent is necessary to every contract; and no
matter what forms or ceremonies the parties may go through indicating the contrary, they do not contract if they do not
in fact assent, which may always be proved. x x x Marriage is no exception to this rule: a marriage in jest is not a
marriage at all. x x x It is quite true that a marriage without subsequent consummation will be valid; but if the spouses
agree to a marriage only for the sake of representing it as such to the outside world and with the understanding that
they will put an end to it as soon as it has served its purpose to deceive, they have never really agreed to be married at
all. They must assent to enter into the relation as it is ordinarily understood, and it is not ordinarily understood as merely a
pretence, or cover, to deceive others.18

(Italics supplied)

On the other end of the spectrum is the 1969 case of Mpiliris v. Hellenic Lines,19 which declared as valid a marriage
entered into solely for the husband to gain entry to the United States, stating that a valid marriage could not be avoided
"merely because the marriage was entered into for a limited purpose."20 The 1980 immigration case of Matter of
McKee,21 further recognized that a fraudulent or sham marriage was intrinsically different from a non subsisting one.

Nullifying these limited purpose marriages for lack of consent has, therefore, been recognized as problematic. The
problem being that in order to obtain an immigration benefit, a legal marriage is first necessary.22 At present, United
States courts have generally denied annulments involving" limited purpose" marriages where a couple married only to
achieve a particular purpose, and have upheld such marriages as valid.23

The Court now turns to the case at hand.

Respondent’s marriage not void

In declaring the respondent’s marriage void, the RTC ruled that when a marriage was entered into for a purpose other
than the establishment of a conjugal and family life, such was a farce and should not be recognized from its inception.
In its resolution denying the OSG’s motion for reconsideration, the RTC went on to explain that the marriage was
declared void because the parties failed to freely give their consent to the marriage as they had no intention to be
legally bound by it and used it only as a means for the respondent to acquire American citizenship. Agreeing with the
RTC, the CA ruled that the essential requisite of consent was lacking. It held that the parties clearly did not understand
the nature and consequence of getting married. As in the Rubenstein case, the CA found the marriage to be similar to a
marriage in jest considering that the parties only entered into the marriage for the acquisition of American citizenship in
exchange of $2,000.00. They never intended to enter into a marriage contract and never intended to live as husband
and wife or build a family.

The CA’s assailed decision was, therefore, grounded on the parties’ supposed lack of consent. Under Article 2 of the
Family Code, consent is an essential requisite of marriage. Article 4 of the same Code provides that the absence of any
essential requisite shall render a marriage void ab initio.
Under said Article 2, for consent to be valid, it must be (1) freely given and (2) made in the presence of a solemnizing
officer. A "freely given" consent requires that the contracting parties willingly and deliberately enter into the marriage.
Consent must be real in the sense that it is not vitiated nor rendered defective by any of the vices of consent under
Articles45 and 46 of the Family Code, such as fraud, force, intimidation, and undue influence.24Consent must also be
conscious or intelligent, in that the parties must be capable of intelligently understanding the nature of, and both the
beneficial or unfavorable consequences of their act.25 Their understanding should not be affected by insanity,
intoxication, drugs, or hypnotism.26

Based on the above, consent was not lacking between Albios and Fringer. In fact, there was real consent because it
was not vitiated nor rendered defective by any vice of consent. Their consent was also conscious and intelligent as they
understood the nature and the beneficial and inconvenient consequences of their marriage, as nothing impaired their
ability to do so. That their consent was freely given is best evidenced by their conscious purpose of acquiring American
citizenship through marriage. Such plainly demonstrates that they willingly and deliberately contracted the marriage.
There was a clear intention to enter into a real and valid marriage so as to fully comply with the requirements of an
application for citizenship. There was a full and complete understanding of the legal tie that would be created between
them, since it was that precise legal tie which was necessary to accomplish their goal.

In ruling that Albios’ marriage was void for lack of consent, the CA characterized such as akin to a marriage by way of
jest. A marriage in jest is a pretended marriage, legal in form but entered into as a joke, with no real intention of entering
into the actual marriage status, and with a clear understanding that the parties would not be bound. The ceremony is
not followed by any conduct indicating a purpose to enter into such a relation.27 It is a pretended marriage not
intended to be real and with no intention to create any legal ties whatsoever, hence, the absence of any genuine
consent. Marriages in jest are void ab initio, not for vitiated, defective, or unintelligent consent, but for a complete
absence of consent. There is no genuine consent because the parties have absolutely no intention of being bound in
any way or for any purpose.

The respondent’s marriage is not at all analogous to a marriage in jest.1âwphi1 Albios and Fringer had an undeniable
intention to be bound in order to create the very bond necessary to allow the respondent to acquire American
citizenship. Only a genuine consent to be married would allow them to further their objective, considering that only a
valid marriage can properly support an application for citizenship. There was, thus, an apparent intention to enter into
the actual marriage status and to create a legal tie, albeit for a limited purpose. Genuine consent was, therefore, clearly
present.

The avowed purpose of marriage under Article 1 of the Family Code is for the couple to establish a conjugal and family
life. The possibility that the parties in a marriage might have no real intention to establish a life together is, however,
insufficient to nullify a marriage freely entered into in accordance with law. The same Article 1 provides that the nature,
consequences, and incidents of marriage are governed by law and not subject to stipulation. A marriage may, thus,
only be declared void or voidable under the grounds provided by law. There is no law that declares a marriage void if it
is entered into for purposes other than what the Constitution or law declares, such as the acquisition of foreign
citizenship. Therefore, so long as all the essential and formal requisites prescribed by law are present, and it is not void or
voidable under the grounds provided by law, it shall be declared valid.28

Motives for entering into a marriage are varied and complex. The State does not and cannot dictate on the kind of life
that a couple chooses to lead. Any attempt to regulate their lifestyle would go into the realm of their right to privacy and
would raise serious constitutional questions.29 The right to marital privacy allows married couples to structure their
marriages in almost any way they see fit, to live together or live apart, to have children or no children, to love one
another or not, and so on.30 Thus, marriages entered into for other purposes, limited or otherwise, such as convenience,
companionship, money, status, and title, provided that they comply with all the legal requisites,31are equally valid. Love,
though the ideal consideration in a marriage contract, is not the only valid cause for marriage. Other considerations, not
precluded by law, may validly support a marriage.

Although the Court views with disdain the respondent’s attempt to utilize marriage for dishonest purposes, It cannot
declare the marriage void. Hence, though the respondent’s marriage may be considered a sham or fraudulent for the
purposes of immigration, it is not void ab initio and continues to be valid and subsisting.

Neither can their marriage be considered voidable on the ground of fraud under Article 45 (3) of the Family Code. Only
the circumstances listed under Article 46 of the same Code may constitute fraud, namely, (1) non- disclosure of a
previous conv1ctwn involving moral turpitude; (2) concealment by the wife of a pregnancy by another man; (3)
concealment of a sexually transmitted disease; and (4) concealment of drug addiction, alcoholism, or homosexuality.
No other misrepresentation or deceit shall constitute fraud as a ground for an action to annul a marriage. Entering into a
marriage for the sole purpose of evading immigration laws does not qualify under any of the listed circumstances.
Furthermore, under Article 47 (3), the ground of fraud may only be brought by the injured or innocent party. In the
present case, there is no injured party because Albios and Fringer both conspired to enter into the sham marriage.
Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage with Fringer to be
declared void would only further trivialize this inviolable institution. The Court cannot declare such a marriage void in the
event the parties fail to qualify for immigration benefits, after they have availed of its benefits, or simply have no further
use for it. These unscrupulous individuals cannot be allowed to use the courts as instruments in their fraudulent schemes.
Albios already misused a judicial institution to enter into a marriage of convenience; she should not be allowed to again
abuse it to get herself out of an inconvenient situation.

No less than our Constitution declares that marriage, as an in violable social institution, is the foundation of the family and
shall be protected by the State.32 It must, therefore, be safeguarded from the whims and caprices of the contracting
parties. This Court cannot leave the impression that marriage may easily be entered into when it suits the needs of the
parties, and just as easily nullified when no longer needed.

WHEREFORE, the petition is GRANTED. The September 29, 2011 Decision of the Court of Appeals in CA-G.R. CV No. 95414
is ANNULLED, and Civil Case No. 1134-06 is DISMISSED for utter lack of merit.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO* ARTURO D. BRION**

Associate Justice Associate Justice

DIOSDADO M. PERALTA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court's Division.

PRESBITER J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION
G.R. No. L-28248 March 12, 1975

LEONORA PERIDO, joined by husband MANUEL PIROTE, INOCENCIA PERIDO, ALBENIO PERIDO, PAULINO PERIDO, LETIA
PERIDO, joined by husband BIENVENIDO BALYAO, LETICIA PERIDO, joined by husband FELIX VILLARUZ, EUFEMIA PERIDO,
CONSOLACION PERIDO, ALFREDO PERIDO, GEORGE PERIDO, AMPARO PERIDO, WILFREDO PERIDO, MARGARITA PERIDO,
ROLANDO SALDE and EDUARDO SALDE, petitioners,
vs.
MARIA PERIDO, SOFRONIO PERIDO, JUAN A. PERIDO, GONZALO PERIDO, PACITA PERIDO, MAGDALENA PERIDO, ALICIA
PERIDO, JOSEFINA PERIDO, FE PERIDO, TERESA PERIDO and LUZ PERIDO, respondents.

Januario L. Jison, Jr. for petitioners.

Antonio T. de Jesus for respondents.

MAKALINTAL, C.J.:ñé+.£ªwph!1

This is an appeal by certiorari from the decision of the Court of Appeals in its CA-G.R. No. 37034-R, affirming the decision
of the Court of First Instance of Negros Occidental in Civil Case No. 6529.

Lucio Perido of Himamaylan, Negros Occidental, married twice during his lifetime. His first wife was Benita Talorong, with
whom he begot three (3) children: Felix, Ismael, and Margarita. After Benita died Lucio married Marcelina Baliguat, with
whom he had five (5) children: Eusebio, Juan, Maria, Sofronia and Gonzalo. Lucio himself died in 1942, while his second
wife died in 1943.

Of the three (3) children belonging to the first marriage only Margarita Perido is still living. Her deceased brother, Felix
Perido, is survived by his children Inocencia, Leonora, Albinio, Paulino, Letia, Leticia, and Eufemia, all surnamed Perido.
Nicanora Perido, another daughter of Felix, is also deceased, but is survived by two (2) sons, Rolando and Eduardo
Salde.

Margarita's other deceased brother, Ismael Perido, is survived by his children, namely: Consolacion, Alfredo, Wilfredo,
and Amparo. Susano Perido, another son of Ismael, is dead, but survived by his own son George Perido.

Of Lucio Perido's five (5) children by his second wife, two are already dead, namely: Eusebio and Juan. Eusebio is
survived by his children Magdalena Perido, Pacita Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz
Perido, while Juan is survived by his only child, Juan A. Perido.

On August 15, 1960 the children and grandchildren of the first and second marriages of Lucio Perido executed a
document denominated as "Declaration of Heirship and Extra-judicial Partition," whereby they partitioned among
themselves Lots Nos. 458, 471, 506, 511, 509, 513-B, 807, and 808, all of the Cadastral Survey of Himamaylan, Occidental
Negros.

Evidently the children belonging to the first marriage of Lucio Perido had second thoughts about the partition. On March
8, 1962 they filed a complaint in the Court of First Instance of Negros Occidental, which complaint was later amended
on February 22, 1963, against the children of the second marriage, praying for the annulment of the so-called
"Declaration of Heirship and Extra-Judicial Partition" and for another partition of the lots mentioned therein among the
plaintiffs alone. They alleged, among other things, that they had been induced by the defendants to execute the
document in question through misrepresentation, false promises and fraudulent means; that the lots which were
partitioned in said document belonged to the conjugal partnership of the spouses Lucio Perido and Benita Talorong,
and that the five children of Lucio Perido with Marcelina Baliguat were all illegitimate and therefore had no successional
rights to the estate of Lucio Perido, who died in 1942. The defendants denied the foregoing allegations.

After trial the lower court rendered its decision dated July 31, 1965, annulling the "Declaration of Heirship and Extra-
Judicial Partition." However, it did not order the partition of the lots involved among the plaintiffs exclusively in view of its
findings that the five children of Lucio Perido with his second wife, Marcelina Baliguat, were legitimate; that all the lots,
except Lot No. 458, were the exclusive properties of Lucio Perido; and that 11/12 of Lot No. 458 belonged to the
conjugal partnership of Lucio Perido and his second wife, Marcelina Baliguat. The dispositive portion of the decision
reads as follows:têñ.£îhqwâ£

IN VIEW OF ALL THE FOREGOING, the Court renders judgment as follows: declaring the following as the
legitimate children and grandchildren and heirs of Lucio Perido and Benita Talorong: Felix Perido,
deceased; grandchildren: Inocencia Perido, Leonora Perido, Albinio Perido, Paulino Perido, Letia
Perido, Leticia Perido, Eufemia Perido; Nicanora Perido, deceased; great grandchildren: Rolando
Salde and Eduardo Salde; Ismael Perido, deceased; grandchildren: Consolacion Perido, Alfredo
Perido, Susano Perido, deceased; great grandson: George Perido; Amparo Perido and Wilfredo
Perido; and, Margarita Perido; (2) declaring the following as the legitimate children and
grandchildren and heirs of Lucio Perido and Marcelina Baliguat: Eusebio Perido, deceased;
grandchildren: Pacita Perido, Magdalena Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa
Perido, and Luz Perido; Juan B. Perido, deceased; grandson, Juan A. Perido; Maria Perido; Sofronia
Perido; and Gonzalo Perido; (3) declaring all lots (471, 506, 511, 509, 513-part, 807, and 808) except Lot
No. 458 as exclusive properties of Lucio Perido so that each of them should be divided into eight (8)
equal parts: 1/8 belongs to Felix Perido, but because of his death leaving eight (8) children, the same
should be divided and alloted as follows: 1/64 to Inocencia Perido of age, widow; 1/64 to Leonora
Perido, of age, married to Manuel Pirote; 1/64 to Albinio Perido, of age, married to Honorata Villasana;
1/64 to Paulino Perido, of age, married to Norma Villalba 1/64 to Letia Perido, of age, married to
Bienvenido Balyac; 1/64 to Leticia Perido, of age, married to Felix Villaruz; 1/64 to Eufemia Perido, of
age, single; 1/64 to Nicanora Perido, but because she is now dead the same should be divided and
alloted as follows: 1/128 to Rolando Salde, of age, single; and 1/128 to Eduardo Salde, of age, single;
1/8 belongs to Ismael Perido, but because he is already dead leaving five children, the same should
be divided and alloted as follows: 1/40 to Consolacion Perido, of age, widow; 1/40 to Alfredo Perido,
of age married to Trinidad Tamargo; 1/40 to Susano Perido, but he is already dead with one son, the
same goes to George Perido, of age, single; 1/40 to Wilfredo Perido, of age, single; 1/8 belongs to
Margarita Perido, of age, widow; 1/8 belongs to Eusebio Perido, but because he is already dead with
seven children, the same should be divided and alloted as follows: 1/56 goes to Pacita Perido, of age,
single; 1/56 goes to Magdalena Perido, of age, single; 1/56 goes to Alicia Perido, of age, married to
Isaias Ruiz; 1/56 goes to Josefina Perido, of age, married to Leopoldo Doloroso; 1/56 goes to Fe Perido,
of age, single; 1/56 goes to Teresa Perido, of are single; 1/56 goes to Luz Perido, of age, married to
Fidel de la Cruz; 1/8 belongs to Juan B. Perido, but because he is already dead with one child, the
same 1/8 goes to Juan A. Perido, of age, married to Salud Salgado 1/8 goes to Maria Perido. of age,
married to Julio Pirote; 1/8 goes to Sofronia Perido, of age, widow; and, 1/8 goes to Gonzalo Perido, of
age, married to Lacomemoracion Estiller; (4) declaring the 11/12 shares in Lot No. 458 as conjugal
partnership property of Lucio Perido and Marcelina Baliguat, which should be divided and alloted as
follows: 11/24 goes to Lucio Perido to be divided into eight (8) equal shares and 11/24 goes to
Marcelina Baliguat to be divided into five (5) equal shares or 11/120 for each of the children and
again to be divided by the children of each child now deceased; (6) declaring Fidel Perido owner of
1/12 share in Lot 458 to be divided among his heirs to be determined accordingly later; and (6)
declaring null and void Exhibit "J" of the plaintiffs which is Exhibit "10" for the defendants, without costs
and without adjudication with respect to the counterclaim and damages, they being members of the
same family, for equity and justice.

The plaintiffs appealed to the Court of Appeals, alleging that the trial court erred: (1) in declaring that Eusebio Perido,
Juan Perido, Maria Perido, Sofronia Perido and Gonzalo Perido, were the legitimate children of Lucio Perido and his
second wife, Marcelina Baliguat; (2) in declaring that Lucio Perido was the exclusive owner of Lots Nos. 471, 506, 511,
509, 513-Part, 807, and 808 of Cadastral Survey of Himamaylan, Negros Occidental, and in not declaring that said lots
were the conjugal partnership property of Lucio Perido and his first wife, Benita Talorong; and (3) in holding that 11/12 of
Lot 458 was the conjugal partnership property of Lucio Perido and Marcelina Baliguat.

Finding no reversible error in the decision of the lower court, the Court of Appeals affirmed it in toto. The appellants
moved to reconsider but were turned down. Thereupon they instituted he instant petition for review reiterating in effect
the assignments of error and the arguments in the brief they submitted to the appellate court.

The first issue pertains to the legitimacy of the five children of Lucio Perido with Marcelina Baliguat. The petitioners insist
that said children were illegitimate on the theory that the first three were born out of wedlock even before the death of
Lucio Perido's first wife, while the last two were also born out of wedlock and were not recognized by their parents before
or after their marriage. In support of their contention they allege that Benita Talorong died in 1905, after the first three
children were born, as testified to by petitioner Margarita Perido and corroborated by petitioner Leonora Perido; that as
late as 1923 Lucio Perido was still a widower, as shown on the face of the certificates of title issued to him in said year;
and Lucio Perido married his second wife, Marcelina Baliguat, only in 1925, as allegedly established through the
testimony of petitioner Leonora Perido.
The petition cannot be sustained. The Court of Appeals found that there was evidence to show that Lucio Perido's wife,
Benita Talorong, died during the Spanish regime. This finding conclusive upon us and beyond our power of review. Under
the circumstance, Lucio Perido had no legal impediment to marry Marcelina Baliguat before the birth of their first child in
1900.

With respect to the civil status of Lucio Perido as stated in the certificates of title issued to him in 1923, the Court of
Appeals correctly held that the statement was not conclusive to show that he was not actually married to Marcelina
Baliguat. Furthermore, it is weak and insufficient to rebut the presumption that persons living together husband and wife
are married to each other. This presumption, especially where legitimacy of the issue is involved, as in this case, may be
overcome only by cogent proof on the part of those who allege the illegitimacy. In the case of Adong vs. Cheong Seng
Gee1 this Court explained the rationale behind this presumption, thus: "The basis of human society throughout the
civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an
institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans
toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any
counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order
of society, and if the parties were not what they thus hold themselves out as being, they would he living in the constant
violation of decency and of law. A presumption established by our Code of Civil Procedure is "that a man and woman
deporting themselves as husband and wife have entered into a lawful contract of marriage." (Sec. 334, No. 28) Semper
praesumitur pro matrimonio — Always presume marriage."

While the alleged marriage ceremony in 1925, if true, might tend to rebut the presumption of marriage arising from
previous cohabitation, it is to be noted that both the trial court and the appellate court did not even pass upon the
uncorroborated testimony of petitioner Leonora Perido on the matter. The reason is obvious. Said witness, when asked
why she knew that Marcelina Baliguat was married to Lucio Perido only in 1925, merely replied that she knew it because
"during the celebration of the marriage by the Aglipayan priest (they) got flowers from (their) garden and placed in the
altar." Evidently she was not even an eyewitness to the ceremony.

In view of the foregoing the Court of Appeals did not err in concluding that the five children of Lucio Perido and
Marcelina Baliguat were born during their marriage and, therefore, legitimate.

The second assignment of error refers to the determination of whether or not Lots Nos. 471, 506, 511, 509-513-Part, 807
and 808 were the exclusive properties of Lucio Perido. In disposing of the contention of the petitioners that said lots
belong to the conjugal partnership of spouses Lucio Perido and Benita Talorong, the Court of Appeals said:têñ.£îhqwâ£

... We cannot agree again with them on this point. It is to be noted that the lands covered by the
certificates of title (Exhs. B to G) were all declared in the name of Lucio Perido. Then there is evidence
showing that the lands were inherited by Lucio Perido from his grandmother (t.s.n., p. 21, Feb. 20,
1964). In other words, they were the exclusive properties of the late Lucio Perido which he brought into
the first and second marriages. By fiat of law said Properties should be divided accordingly among his
legal heirs.

The petitioners take exception to the finding of the appellate court that the aforementioned lots were inherited by Lucio
Perido from his grandmother and contend that they were able to establish through the testimonies of their witnesses that
the spouses Lucio Perido and Benita Talorong acquired them during their lifetime. Again, the petitioners cannot be
sustained. The question involves appreciation of the evidence, which is within the domain of the Court of Appeals, the
factual findings of which are not reviewable by this Court.

The third assignment of error is with regard to the ruling of the Court of Appeals sustaining the finding of the trial court
that 11/12 of Lot 458 was the conjugal partnership property of Lucio Perido and his second wife, Marcelina Baliguat. Said
the appellate court:têñ.£îhqwâ£

With respect to Lot No. 458 which is now covered by Original Certificate of Title No. 21769 issued in
1925 the same should be considered conjugally owned by Lucio Perido and his second wife,
Marcelina Baliguat. The finding of the lower court on this point need not be disturbed. It is expressly
stated in the certificate of title (Exh. L) that Lucio Perido, the registered owner, was married to
Marcelina Baliguat unlike in the previous land titles. If the law presumes a property registered in the
name of only one of the spouses to be conjugal (Guinguing vs. Abutin, 48 Phil. 144; Flores vs. Flores, 48
Phil. 288, Escutin vs. Escutin, 60 Phil. 922), the presumption becomes stronger when the document
recites that the spouse in whose name the land is registered is married to somebody else, like in the
case at bar. It appearing that the legal presumption that the No. 458 belonged to the conjugal
partnership had not been overcome by clear proofs to the contrary, we are constrained to rule, that
the same is the conjugal property of the deceased spouses Lucio Perido and Marcelina Baliguat.
In impugning the foregoing ruling, the petitioners maintain that they were able to prove that 6/12 of said Lot 458 was the
conjugal property of spouses Lucio Perido and his first wife, Benita Talorong, and that the purchase price of the
additional 5/12 of said lot came from the proceeds of sale of a lot allegedly belonging to Lucio Perido and his three
children of the first marriage. As in the second assignment of error, the issue raised here also involves appreciation of the
evidence and, consequently, the finding of the appellate court on the matter is binding on this Court. Indeed, a review
of that finding would require an examination of all the evidence introduced before the trial court, a consideration of the
credibility of witnesses and of the circumstances surrounding the case, their relevancy or relation to one another and to
the whole, as well as an appraisal of the probabilities of the entire situation. It would thus abolish the distinction between
an ordinary appeal on the one hand and review on certiorari on the other, and thus defeat the purpose for which the
latter procedure has been established.2

WHEREFORE, the decision of the Court of Appeals is hereby affirmed, with costs against the petitioners.

Castro, Teehankee, Makasiar and Esguerra, JJ., concur.1äwphï1.ñët

Muñoz Palma, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-8190 May 28, 1958

GONZALO GARCIA, plaintiff-appellant,

vs.
CONSOLACION MANZANO, defendant-appellee.

Fernandez and Benedicto and Primo L. Agsaoay for appellant.

Diokno and Sison and De Santos, Herrera and Delfino for appellee.

REYES, J.B.L., J.:

This is an action filed by husband Gonzalo Garcia against his wife Consolacion Manzano for the judicial declaration of
the separation of their conjugal partnership property (Civil Case No. 23099, Court of First Instance of Manila).

Plaintiff Gonzalo Garcia alleged in his complaint that he and defendant are husband and wife but they have been living
separately from each other since 1948, all attempts at reconciliation between them having failed; that plaintiff, a duly
licensed doctor of veterinary science, used to be employed in the slaughter-house of the City of Manila, while
defendant, with plaintiff's knowledge and consent, engaged in the business of slaughtering large cattle and selling the
fresh meat in the city; that as a result of their joint efforts, plaintiff and defendant acquired and accumulated real and
personal properties; that upon the separation of the spouses, the defendant assumed the complete management and
administration of the conjugal partnership property, has been enjoying said property as well as its accessions and fruits to
the exclusion and prejudice of plaintiff, and has even fictitiously transferred or alienated a majority of said property in
favor of third persons; that since defendant assumed the management and administration of the conjugal partnership
property, she has neglected to file any income tax returns; at defendant has failed and refused to turn over and deliver
to plaintiff his rightful share and participation in the conjugal partnership property and its fruits. Wherefore, plaintiff
prayed that judgment be rendered ordering defendant to render a complete accounting of the conjugal partnership
property and its fruits, that judicial pronouncement be made ordering the separation of the conjugal partnership
property of the spouses, and that the rightful share therein of each of them be adjudicated pursuant to law.

Upon receipt copy of the complaint and summons, defendant filed a motion to dismiss the complaint on the ground of
failure to state a cause of action because "it does not allege any of the grounds recognized by Article 191 of the new
Civil Code for decreeing a judicial separation of properties". Plaintiff vigorously opposed the motion to dismiss, claiming
that he is entitled to some relief, legal or equitable, under the allegations of his complaint, and that Article 191 of the
new Civil Code may also be availed of by the husband where the administration of the conjugal partnership property
has been forcibly taken from him by his wife and she abuses the management thereof. Acting on the motion to dismiss,
the lower court held that plaintiff's complaint is not included under the provisions of Articles 190 and 191 of the new Civil
Code providing for judicial separation of the conjugal partnership property, and that the husband being the legal
administrator of the partnership, he "continuo consuficientes remedios legales para asegurar y reafirmar su autoridad en
cuanto al manejo de log bienes gan anciales dentro de la sociedad conyugal," and ordered the dismissal of the
complaint without prejudice. Plaintiff moved for reconsideration, which was denied. Hence, his present appeal.

We agree with the court below that the complaint does not establish a case for separation of property. Consistent with
its policy of discouraging a regime of separation and not in harmony with the unity of the family and the mutual
affection and help expected of the spouses, the Civil Codes (both old and new) require that separation of property shall
not prevail unless expressly stipulated in marriage settlements before the union is solemnized or by formal judicial decree
during the existence of the marriage (Article 190, new Civil Code; Article 1432, old Code); and in the latter case, it may
only be ordered by the court for causes specified in Article 191 of the new Civil Code:

ART. 191. The husband or the wife way ask for the separation of property, and it shall be decreed when the
spouse of the petitioner; has been sentenced to a penalty which carries with it civil interdiction, or has been
declared absent, or when legal separation has been granted.

In case of abuse of powers of administration of the conjugal partnership property of the husband, or in case of
abandonment by the husband, separation of property may also be ordered by the court according to the
provisions of articles 167 and 173, No. 3.

In all these cases, it is sufficient to present the final judgment which has been entered against the guilty or
absent spouse.

The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage,
subject to judicial approval. All the creditors of the husband and of the wife, as well as of the conjugal
partnership, shall be notified of any petition for judicial approval of the voluntary dissolution of the conjugal
partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon approval of
the petition for dissolution of the conjugal partnership, the court shall take such measures as may protect the
creditors and other third persons.

After dissolution of the conjugal partnership, the provisions of Arts 214 and 215 shall apply. The provisions of this
Code concerning the effect of partition stated in Arts. 498 to 501 shall be applicable.

This enumeration must be regarded as limitative, in view of the Code's restrictive policy. The appellant recognizes that his
case does not come within the purview of the first paragraph of the Article quoted; but vigorously contends that the
provisions of the second paragraph, like those of Articles 167 and 178, should be interpreted as applicable, mutatis
matandis, to the husband, even if the letter of the statute refers to the wife exclusively.

ART. 167. In case of abuse of powers of administration of the conjugal partnership property by the husband, the
courts, on petition of the wife, may provide for a receivership, or administration by the wife, or separation of
property.

ART. 178. The separation in fact between husband and wife without judicial approval, shall not affect the
conjugal partnership, except that:

(1) In the spouse who leaves the conjugal home or refuses to live therein without just cause, shall not have a
right to be supported;

(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization
shall be necessary;

(3) If the husband has abandoned the wife without just cause for at least one year, she may petition the court
for a receivership or administration by her of the conjugal partnership property, or separation of property.

In support of his thesis, appellant argues that in case of mismanagement and maladministration by the wife, the
husband should be entitled to the same relief as the wife, otherwise there would be a void in the law. This contention
ignores the philosophy underlying the provisions in question. The wife is granted a remedy against the mismanagement
or maladministration of the husband because by express provision of law, it is the husband who has the administration of
the conjugal partnership.

ART. 165. The husband is the administrator of the conjugal partnership.

ART. 172. The wife cannot bind the conjugal partnership without the husband's consent, except in cases
provided by law.

In the system established by the Code the wife does not administer the conjugal partnership unless with the consent of
the husband, or by decree of court and under its supervision (Arts. 168, 196) "with such limitations as they (the courts)
may deem advisable" (Art. 197 in relation to Article 196). Legally, therefore, the wife can not mismanage the conjugal
partnership property or affairs, unless the husband or the courts tolerate it. In the event of such maladministration by the
wife (and disregarding the case of judicial authorization to have the wife manage the partnership, since such a case is
not involved), the remedy of the husband does not lie in a judicial separation of property but in revoking the power
granted to the wife and resume the administration of the community property and the conduct of the affairs of the
conjugal partnership. He may enforce his right of possession and control of the conjugal property against his wife (Perkins
vs. Perkins, 57 Phil., 205) and seek such ancillary remedies as may be required by the circumstances, even to the extent
of annulling or rescinding any unauthorized alienations or incumbrances, upon proper action filed for that purpose. For
this reason, the articles above quoted contemplate exclusively the remedies available to the wife (who is not the legal
administrator of the partnership) against the abuses of her husband because normally only the latter can commit such
abuses.

Appellant avers that even if separation of property is not available, the allegations of his complaint entitle him to
accounting and other relief. Unfortunately, the complaint not only expressly pleads the nature of the action as one for
separation of property, but its allegations clearly proceed on the theory that the plaintiff is entitled to such separation.
Thus, the averments regarding fictitious or fraudulent transfers are incompatible with an action between wife and
husband alone, for it is elementary that the legality of sigh transfers can not be passed upon without giving the
transferees an opportunity to be heard. .

Everything considered, we believe that the action of the court a quo in dismissing the action in view of the impropriety of
the principal remedy sought, but without prejudice to proper proceedings, would better suit the interests of equity and
justice, facilitating the clarification and simplification of the issues involved.

Wherefore, the judgment appealed from is affirmed, with costs against appellant. So ordered.

Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia and Felix, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23482 August 30, 1968

ALFONSO LACSON, petitioner,

vs.
CARMEN SAN JOSE-LACSON and THE COURT OF APPEALS, respondents.

-----------------------------

G.R. No. L-23767 August 30, 1968

CARMEN SAN JOSE-LACSON, plaintiff-appellant,

vs.
ALFONSO LACSON, defendant-appellee.

-----------------------------
G.R. No. L-24259 August 30, 1968

ALFONSO LACSON, petitioner-appellee,

vs.
CARMEN SAN JOSE-LACSON, petitioner-appellant.

Paredes, Poblador, Cruz and Nazareno for respondent-appellant Carmen San Jose-Lacson.
Norberto Quisumbing for petitioner-appellee Alfonso Lacson.

CASTRO, J.:

These three cases (G.R. L-23482, L-23767 and L-24259) involving the same parties pose a common fundamental issue the
resolution of which will necessarily and inescapably resolve all the other issues. Thus their joinder in this decision.

The antecedent facts are not disputed.

Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San Jose-Lacson (hereinafter referred to as
the respondent spouse) were married on February 14, 1953. To them were born four children, all alive.

On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara Subdivision, Bacolod City, and
commenced to reside in Manila. She filed on March 12, 1963 a complaint docketed as civil case E-00030 in the Juvenile
and Domestic Relations Court of Manila (hereinafter referred to as the JDRC) for custody of all their children as well as
support for them and herself.

However, the spouses, thru the assistance of their respective attorneys, succeeded in reaching an amicable settlement
respecting custody of the children, support, and separation of property. On April 27, 1963 they filed a joint petition dated
April 21, 1963, docketed as special proceeding 6978 of the Court of First Instance of Negros Occidental (hereinafter
referred to as the CFI).

The important and pertinent portions of the petition, embodying their amicable settlement, read as follows:

3. Petitioners have separated last January 9, 1963 when petitioner Carmen San Jose-Lacson left their conjugal
home at the Santa Clara Subdivision, Bacolod City, did not return, and decided to reside in Manila.

4. Petitioners have mutually agreed upon the dissolution of their conjugal partnership subject to judicial
approval as required by Article 191 of the Civil Code of the Philippines — the particular terms and conditions of
their mutual agreement being as follows:

(a) There will be separation of property — petitioner Carmen San Jose-Lacson hereby waiving any
and all claims for a share in property that may be held by petitioner Alfonso Lacson since they have
acquired no property of any consequence.

(b) Hereafter, each of them shall own, dispose of, possess, administer and enjoy such separate estate
as they may acquire without the consent of the other and all earnings from any profession, business or
industry as may be derived by each petitioner shall belong to that petitioner exclusively.

(c) The custody of the two elder children named Enrique and Maria Teresa shall be awarded to
petitioner Alfonso Lacson and the custody of the younger children named Gerrard and Ramon shall
be awarded to petitioner Carmen San Jose-Lacson.

(d) Petitioner Alfonso Lacson shall pay petitioner Carmen San Jose-Lacson a monthly allowance of
P300.00 for the support of the children in her custody.

(e) Each petitioner shall have reciprocal rights of visitation of the children in the custody of the other
at their respective residences and, during the summer months, the two children in the custody of
each petitioner shall be given to the other except that, for this year's summer months, all four children
shall be delivered to and remain with petitioner Carmen San Jose-Lacson until June 15, 1963 — on
which date, she shall return the two elder children Enrique and Maria Teresa to petitioner Alfonso
Lacson — this judgment of course being subject to enforcement by execution writ and contempt.
 5. Petitioners have no creditors.

WHEREFORE, they respectfully pray that notice of this petition be given to creditors and third parties pursuant to
Article 191 of the Civil Code of the Philippines and thereafter that the Court enter its judicial approval of the
foregoing agreement for the dissolution of their conjugal partnership and for separation of property, except
that the Court shall immediately approve the terms set out in paragraph 4 above and embody the same in a
judgment immediately binding on the parties hereto to the end that any non-compliance or violation of its
terms by one party shall entitle the other to enforcement by execution writ and contempt even though the
proceedings as to creditors have not been terminated.".

Finding the foregoing joint petition to be "conformable to law," the CFI (Judge Jose F. Fernandez, presiding) issued an
order on April 27, 1963, rendering judgment (hereinafter referred to as the compromise judgment) approving and
incorporating in toto their compromise agreement. In compliance with paragraph 4 (e) of their mutual agreement (par.
3[e] of the compromise judgment), the petitioner spouse delivered all the four children to the respondent spouse and
remitted money for their support.

On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein she alleged that she "entered into and signed
the ... Joint Petition as the only means by which she could have immediate custody of the ... minor children who are all
below the age of 7," and thereafter prayed that she "be considered relieved of the ... agreement pertaining to the
custody and visitation of her minor children ... and that since all the children are now in her custody, the said custody in
her favor be confirmed pendente lite." On May 24, 1963 the petitioner spouse opposed the said motion and moved to
dismiss the complaint based, among other things, on the grounds of res judicata and lis pendens. The JDRC on May 28,
1963, issued an order which sustained the petitioner spouse's plea of bar by prior judgment and lis pendens, and
dismissed the case. After the denial of her motion for reconsideration, the respondent spouse interposed an appeal to
the Court of Appeals (CA-G.R. No. 32608-R) wherein she raised, among others, the issue of validity or legality of the
compromise agreement in connection only with the custody of their minor children. On October 14, 1964 the Court of
Appeals certified the said appeal to the Supreme Court (G.R. No. L-23767), since "no hearing on the facts was ever held
in the court below — no evidence, testimonial or documentary, presented — only a question of law pends resolution in
the appeal." .

The respondent spouse likewise filed a motion dated May 15, 1963 for reconsideration of the compromise judgment
dated April 27, 1963 rendered in special proceeding 6978 of the CFI, wherein she also alleged, among others, that she
entered into the joint petition as the only means by which she could have immediate custody of her minor children, and
thereafter prayed the CFI to reconsider its judgment pertaining to the custody and visitation of her minor children and to
relieve her from the said agreement. The petitioner spouse opposed the said motion and, on June 1, 1963, filed a motion
for execution of the compromise judgment and a charge for contempt. The CFI (Judge Jose R. Querubin, presiding), in
its order dated June 22, 1963, denied the respondent spouse's motion for reconsideration, granted the petitioner spouse's
motion for execution, and ordered that upon "failure on the part of Carmen San Jose-Lacson to deliver the said children
[i.e., to return the two older children Enrique and Maria Teresa in accordance with her agreement with Alfonso Lacson]
to the special sheriff on or before June 29, 1963, she may be held for contempt pursuant to the provisions of Rule 39
sections 9 and 10, and Rule 64 section 7 of the (old) Rules of Court." From the aforesaid compromise judgment dated
April 27, 1963 and execution order dated June 22, 1963, the respondent spouse interposed an appeal to the Court of
Appeals (CA-G.R. No. 32798-R) wherein she likewise questioned the validity or legality of her agreement with the
petitioner spouse respecting custody of their children. On February 11, 1965 the Court of Appeals also certified the said
appeal to the Supreme Court (G.R. No. L-24259), since "no evidence of any kind was introduced before the trial court
and ... appellant did not specifically ask to be allowed to present evidence on her behalf." .

The respondent spouse also instituted certiorari proceedings before the Court of Appeals (CA-G.R. No. 32384R), now the
subject of an appeal by certiorari to this Court (G.R. No. L-23482). In her petition for certiorari dated June 27, 1963, she
averred that the CFI (thru Judge Querubin) committed grave abuse of discretion and acted in excess of jurisdiction in
ordering the immediate execution of the compromise judgment in its order of June 22, 1963, thus in effect depriving her
of the right to appeal. She prayed for (1) the issuance of a writ of preliminary injunction enjoining the respondents therein
and any person acting under them from enforcing, by contempt proceedings and other means, the writ of execution
issued pursuant to the order of the respondent Judge Querubin dated June 22, 1963 in special proceeding 6978 of the
CFI, (2) the setting aside, after hearing, of the compromise judgment dated April 27, 1963 and the order dated June 22,
1963, and (3) the awarding of the custody of Enrique and Maria Teresa to her, their mother. As prayed for, the Court of
Appeals issued ex parte a writ of preliminary injunction enjoining the enforcement of the order dated June 22, 1963 for
execution of the compromise judgment rendered in special proceeding 6978. The petitioner spouse filed an urgent
motion dated July 5, 1963 for the dissolution of the writ of preliminary injunction ex parte which urgent motion was denied
by the Court of Appeals in its resolution dated July 9, 1963. The petitioner spouse likewise filed his answer. After hearing,
the Court of Appeals on May 11, 1964 promulgated in said certiorari case (CA-G.R. No. 32384-R) its decision granting the
petition for certiorari and declaring null and void both (a) the compromise judgment dated April 27, 1963 in so far as it
relates to the custody and right of visitation over the two children, Enrique and Teresa, and (b) the order dated June 22,
1963 for execution of said judgment. The petitioner spouse moved to reconsider, but his motion for reconsideration was
denied by the Court of Appeals in its resolution dated July 31, 1964. From the decision dated May 11, 1964 and the
resolution dated July 31, 1964, the petitioner spouse interposed an appeal to this Court, as abovestated, and assigned
the following errors:

(1) The Court of Appeals erred in annulling thru certiorari the lower court's order of execution of the compromise
judgment.

(2) The Court of Appeals erred in resolving in the certiorari case the issue of the legality of the compromise
judgment which is involved in two appeals, instead of the issue of grave abuse of discretion in ordering its
execution.

(3) The Court of Appeals erred in ruling that the compromise agreement upon which the judgment is based
violates article 363 of the Civil Code. 1äwphï1.ñët

As heretofore adverted, the aforecited three appeals converge on one focal issue: whether the compromise
agreement entered into by the parties and the judgment of the CFI grounded on the said agreement, are conformable
to law.

We hold that the compromise agreement and the judgment of the CFI grounded on the said agreement are valid with
respect to the separation of property of the spouses and the dissolution of the conjugal partnership.

The law allows separation of property of the spouses and the dissolution of their conjugal partnership provided judicial
sanction is secured beforehand. Thus the new Civil Code provides:

In the absence of an express declaration in the marriage settlements, the separation of property between
spouses during the marriage shall not take place save in virtue of a judicial order. (Art. 190, emphasis supplied)

The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage,
subject to judicial approval. All the creditors of the husband and of the wife, as well as of the conjugal
partnership, shall be notified of any petition for judicial approval of the voluntary dissolution of the conjugal
partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon approval of
the petition for dissolution of the conjugal partnership, the court shall take such measures as may protect the
creditors and other third persons. (Art. 191, par. 4, emphasis supplied).

In the case at bar, the spouses obtained judicial imprimatur of their separation of property and the dissolution of their
conjugal partnership. It does not appeal that they have creditors who will be prejudiced by the said arrangements.

It is likewise undisputed that the couple have been separated in fact for at least five years - the wife's residence being in
Manila, and the husband's in the conjugal home in Bacolod City. Therefore, inasmuch as a lengthy separation has
supervened between them, the propriety of severing their financial and proprietary interests is manifest.

Besides, this Court cannot constrain the spouses to live together, as

[I]t 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. .. At best such an order can be effective for no other purpose
than to compel the spouse to live under the same roof; and the experience of those countries where the courts
of justice have assumed to compel the cohabitation of married couple shows that the policy of the practice is
extremely questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60).

However, in so approving the regime of separation of property of the spouses and the dissolution of their conjugal
partnership, this Court does not thereby accord recognition to nor legalize the de facto separation of the spouses, which
again in the language of Arroyo v. Vasquez de Arroyo, supra — is a "state which is abnormal and fraught with grave
danger to all concerned." We would like to douse the momentary seething emotions of couples who, at the slightest
ruffling of domestic tranquility — brought about by "mere austerity of temper, petulance of manners, rudeness of
language, a want of civil attention and accommodation, even occasional sallies of passion" without more — would be
minded to separate from each other. In this jurisdiction, the husband and the wife are obliged to live together, observe
mutual respect and fidelity, and render mutual help and support (art. 109, new Civil Code). There is, therefore, virtue in
making it as difficult as possible for married couples — impelled by no better cause than their whims and caprices — to
abandon each other's company.
 '... For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial
cohabitation may operate with great severity upon individuals, 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 they cannot shake off; they become good husbands and good wives from the necessity
of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes ..."
(Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez de Arroyo, Id., pp. 58-59).

We now come to the question of the custody and support of the children.

It is not disputed that it was the JDRC which first acquired jurisdiction over the matter of custody and support of the
children. The complaint docketed as civil case E-00030 in the JDRC was filed by the respondent spouse on March 12,
1963, whereas the joint petition of the parties docketed as special proceeding 6978 in the CFI was filed on April 27, 1963.
However, when the respondent spouse signed the joint petition on the same matter of custody and support of the
children and filed the same with the CFI of Negros Occidental, she in effect abandoned her action in the JDRC. The
petitioner spouse — who could have raised the issue of lis pendens in abatement of the case filed in the CFI, but did not
do so - had the right, therefore, to cite the decision of the CFI and to ask for the dismissal of the action filed by the
respondent spouse in the JDRC, on the grounds of res judicata and lis pendens. And the JDRC acted correctly and
justifiably in dismissing the case for custody and support of the children based on those grounds. For it is no defense
against the dismissal of the action that the case before the CFI was filed later than the action before the JDRC,
considering:.

... [T]hat the Rules do not require as a ground for dismissal of a complaint that there is a prior pending action.
They provide only that there is a pending action, not a pending prior action. 1

We agree with the Court of Appeals, however, that the CFI erred in depriving the mother, the respondent spouse, of the
custody of the two older children (both then below the age of 7).

The Civil Code specifically commands in the second sentence of its article 363 that "No mother shall be separated from
her child under seven years of age, unless the court finds compelling reasons for such measure." The rationale of this new
provision was explained by the Code Commission thus:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn
away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age.
The exception allowed by the rule has to be for "compelling reasons" for the good of the child: those cases
must indeed be rare, if the mother's heart is not to be unduly hurt. If she has erred, as in cases of adultery, the
penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her.
Moreover, her moral dereliction will not have any effect upon the baby who is as yet unable to understand the
situation." (Report of the Code Commission, p. 12).

The use of the word shall2 in article 363 of the Civil Code, coupled with the observations made by the Code Commission
in respect to the said legal provision, underscores its mandatory character. It prohibits in no uncertain: terms the
separation of a mother and her child below seven years, unless such separation is grounded upon compelling reasons as
determined by a court.

The order dated April 27, 1963 of the CFI, in so far as it awarded custody of the two older children who were 6 and 5
years old, respectively, to the father, in effect sought to separate them from their mother. To that extent therefore, it was
null and void because clearly violative of article 363 of the Civil Code.

Neither does the said award of custody fall within the exception because the record is bereft of any compelling
reason to support the lower court's order depriving the wife of her minor children's company. True, the CFI stated in its
order dated June 22, 1963, denying the respondent spouse's motion for reconsideration of its order dated April 27, 1963,
that .

... If the parties have agreed to file a joint petition, it was because they wanted to avoid the exposure of the
bitter truths which serve as succulent morsel for scandal mongers and idle gossipers and to save their children
from embarrassment and inferiority complex which may inevitably stain their lives. ..

If the parties agreed to submit the matter of custody of the minor children to the Court for incorporation in the final
judgment, they purposely suppressed the "compelling reasons for such measure" from appearing in the public records.
This is for the sake and for the welfare of the minor children.".
But the foregoing statement is at best a mere hint that there were compelling reasons. The lower court's order is
eloquently silent on what these compelling reasons are. Needless to state, courts cannot proceed on mere insinuations;
they must be confronted with facts before they can properly adjudicate.

It might be argued — and correctly — that since five years have elapsed since the filing of these cases in 1963, the ages
of the four children should now be as follows: Enrique — 11, Maria Teresa — 10, Gerrard — 9, and Ramon — 5. Therefore,
the issue regarding the award of the custody of Enrique and Maria Teresa to the petitioner spouse has become moot
and academic. The passage of time has removed the prop which supports the respondent spouse's position.

Nonetheless, this Court is loath to uphold the couple's agreement regarding the custody of the children. 1äwphï1.ñët

Article 356 of the new Civil Code provides:

Every child:

(1) Is entitled to parental care;

(2) Shall receive at least elementary education;

(3) Shall be given moral and civic training by the parents or guardian;

(4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual
development.

It is clear that the abovequoted legal provision grants to every child rights which are not and should not be dependent
solely on the wishes, much less the whims and caprices, of his parents. His welfare should not be subject to the parents'
say-so or mutual agreement alone. Where, as in this case, the parents are already separated in fact, the courts must
step in to determine in whose custody the child can better be assured the right granted to him by law. The need,
therefore, to present evidence regarding this matter, becomes imperative. A careful scrutiny of the records reveals that
no such evidence was introduced in the CFI. This latter court relied merely on the mutual agreement of the spouses-
parents. To be sure, this was not a sufficient basis to determine the fitness of each parent to be the custodian of the
children.

Besides, at least one of the children — Enrique, the eldest — is now eleven years of age and should be given the choice
of the parent he wishes to live with. This is the clear mandate of sec. 6, Rule 99 of the Rules of Court which, states, inter
alia:

... When husband and wife are divorced or living separately and apart from each other, and the question as to
the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance
by petition or as an incident to any other proceeding, the court, upon hearing testimony as may be pertinent,
shall award the care, custody and control of each such child as will be for its best interest permitting the child
to choose which parent it prefers to live with if it be over ten years of age, unless the parent so chosen be unfit
to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty...
(Emphasis supplied).

One last point regarding the matter of support for the children — assuming that the custody of any or more of the
children will be finally awarded to the mother. Although the spouses have agreed upon the monthly support of P150 to
be given by the petitioner spouse for each child, still this Court must speak out its mind on the insufficiency of this
amount. We, take judicial notice of the devaluation of the peso in 1962 and the steady skyrocketing of prices of all
commodities, goods, and services, not to mention the fact that all the children are already of school age. We believe,
therefore, that the CFI may increase this amount of P150 according to the needs of each child.

With the view that we take of this case, we find it unnecessary to pass upon the other errors assigned in the three
appeals.

ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July 31, 1964 of the Court of Appeals in CA-
G.R. 32384-R (subject matter of G.R. L-23482), and the orders dated May 28, 1963 and June 24, 1963 of the Juvenile and
Domestic Relations Court (subject matter of G.R. L-23767) are affirmed. G.R. L-24259 is hereby remanded to the Court of
First Instance of Negros Occidental for further proceedings, in accordance with this decision. No pronouncement as to
costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Angeles, JJ., concur.
Sanchez and Fernando, JJ., took no part.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-45870 May 11, 1984

MARGARET MAXEY assisted by Santiago Magbanua; FLORENCE MAXEY assisted by Ofrecinio Santos; and LUCILLE
MAXEY, petitioners,
vs.
THE HONORABLE COURT OF APPEALS and THE SPOUSES BEATO C. MACAYRA and ALACOPUE MONDAY, respondents.

Jose B. Guyo for petitioners.

Epifanio Estrellado for private respondents.

GUTIERREZ, JR., J.:

This petition for review involves the rights of a woman over properties acquired in 1912 principally through the efforts of
the man she was living with and at a time when the two were not yet legally married.

The facts of the case are briefly stated in the decision of the Court of Appeals as follows:

The record reveals that Melbourne Maxey and Regina Morales (both deceased) lived together as
husband and wife in Banganga, Davao; that out of said union were born six (6) children, among them
are the herein plaintiffs, namely: John or Carlos, Lucille, Margaret, Florence, Fred and George, all
surnamed Maxey; that during the period of their (Melbourne and Regina) cohabitation, or in 1911 and
1912, respectively, the late Melbourne Maxey acquired the parcels of land described under Par. 4 of
the com;plaint as evidenced by the documents of sale marked as Exhibits 4-a and 5-1 (same as
Exhibits Facts), Melbourne Maxey, through his attorney-in-fact Julia Pamatluan Maxey, sold in favor of
the defendants-spouses in 1953 the parcels of land under litigation which fact of sale was not
controverted by the perties (Par. 1, /stipulation of Facts); that since thereof, the defendants-spouses
have taken immediate possession thereof continuously up to the present.

Plaintiffs instituted the present case on January 26, 1962, before the Court of First Instance of Davao,
praying for the annulment of the documents of sale covering the subject parcels of land and to
recover possession thereof with damages from the herein defendants-spouses, alleging, among
others, that the aforesaid realties were common properties of their parents, having been acquired
during their lifetime and through their joint effort and capital; and that the sales of the of the said
lands in favor of the defendants-spouses in 1953, after the death of their mother, Regina Morales, was
executed by their father, Melbourne Maxey, without their knowledge and consent; and that they
came to know of the above mentioned sales only in 1961.

On the other hand, defendants-spouses deny the material allegations of the complaint and assert by
way of affirmative defenses that they are the true and lawful owners and possessors of the properties
'm question having purchased the same in good faith and for value from Melbourne Maxey during his
lifetime in 1953, based upon the reasonable belief that the latter is the me and exclusive owner of the
said parcels of land and that since then, they have been in possession thereof openly, exclusively and
continuously in concept of owners. Defendants - spouses further counter for damages and attorney's
fees and in the alternative, for the value of the improvements they have introduced in the premises.
Melbourne Maxey and Regina Morales started living together in 1903. Their children claim that their parents were united
in 1903 in a marriage performed "in the military fashion". Both the trial court and the appellate court rejected this claim of
a "military fashion" marriage.

The couple had several children. John Carlos was born in 1903, followed by Lucille, Margaret, Florence, Fred, and
George. Except for the youngest son, all the children were born before the disputed properties were acquired. The
father, Melbourne Maxey, was a member of the 1899 American occupation forces who afterwards held high positions in
the provincial government and in the Philippine public schools system.

As earlier mentioned in the cited statement of facts, the disputed properties were acquired in 1911 and 1912 before the
1919 church marriage. Regina Morales Maxey died in 1919 sometime after the church wedding. The husband remarried
and in 1953, his second wife Julia Pamatluan Maxey, using a power of attorney, sold the properties to the respondent
spouses, Mr. and Mrs. Beato C. Macayra.

The trial court applied Article 144 of the Civil Code which provides:

When a man and a woman live together as husband and wife, but they are not married, or their
marriage is void from the beginning, the property acquired by either or both of them through their
work or industry or their wages and salaries shall be governed by the rules on co-ownership.

The court stated that "when a man and a woman lived together as husband and wife, justice demands that the woman
should be entitled to the share of the property. Certainly she cannot be considered mere adornment or only for man's
comfort and passion." The dispositive portion of the decision reads:

Evidence, testimonial and document considered the Court hereby rendered judgment in favor of the
plaintiffs and against defendant declaring that:

1. Declaring the abovementioned sales as null and void;

2. Ordering defendant-spouses to return the said lands, and to pay for the value of the use of the
same at the rate of P1,000.00 a year from 1953 until delivered, together with interests corresponding
thereto at the legal rate;

3. Ordering defendant-spouses to pay to plaintiff actual damages in the sum of P500.00 and attorney
fees in the sum of P3,000.00.

Defendants counterclaim is hereby ordered dismissed.

The Court of Appeals, however, found the parcels of, land to be exclusive properties of the late Melbourne Maxey. It set
aside the decision of the trial court, decease valid the deeds of sale, and ruled that the appellants are the absolute
owners of the properties in question.

The appellate decision sustained the following arguments of the respondent spouses:

Plaintiffs' evidence is completely devoid of any showing that these properties in question were
acquired through the joint efforts of Melbourne Maxey and Regina Morales. Indeed, if at all, plaintiffs'
evidence tend to establish the fact that Melbourne Maxey by virtue of his positions as Deputy
Governor of Zamboanga (p. 36, t.s.n. de la Victoria) School Supervisor in the East Coast of Davao (p.
36, t.s.n., Id.) was more than in a position to purchase these properties by his own efforts, his own
earnings and without the help of Regina Morales. On the other hand, we have the declaration of
Juana A. Morales, a widow of 68 years of age when she testified, the sister-in-law of Regina Morales —
Juana A. Morales confirmed the fact that Melbourne Maxey held the positions of teacher, provincial
treasurer, deputy governor, district supervisor and lastly superintendent of schools, respectively (p. 203,
t.s.n., de la Victoria). But more important is her declaration that her sister-in-law Regina Morales had
no property of her own whence she could have derived any income nor was Regina gainfully
employed. (pp. 203-204, t.s.n., Id.) It must be remembered that the showing must be CLEAR that
Regina Morales contributed to the acquisition of these properties. Here the evidence is not only NOT
CLEAR, indeed, there is no evidence at all that Regina Morales contributed to the acquisition of the
properties in question. In the case of Aznar, et al vs. Garcia, et al, supra, the Supreme Court had
before it the common-law wife's own testimony — claiming that the properties in controversy were the
 product of their joint industry. Her assertions however, were completely brushed aside because aside
from her claim that she took a hand in the management and/or acquisition of the same, "there
appears no evidence to prove her alleged contribution or participation in the, acquisition of the
properties involved therein." (Id. p. 1069). In the case at bar, besides the absence of any evidence
showing that Regina Morales contributed by her efforts to the acquisition of these properties in
controversy, both plaintiffs and defendants' evidence show that it was through Melbourne Maxey's
efforts alone that these properties were acquired. Indeed, that Regina Morales had no means at all to
have contributed in any manner to all its acquisition.

The petitioners raise the following issues in this petition:

1. THE COURT OF APPEALS ERRED IN DECLARING THAT THE LATE SPOUSES MELBOURNE MAXEY AND
REGINA MORALES WERE MARRIED ONLY IN 1919, BECAUSE THE TRUTH IS THAT THEY MARRIED AS EARLY
AS 1903.

2. THE COURT OF APPEALS, LIKEWISE, ERRED IN DECLARING THE PROPERTIES IN QUESTION AS THE
EXCLUSIVE PROPERTIES OF THE LATE MELBOURNE MAXEY, TO THE EXCLUSION OF HIS WIFE REGINA
MORALES, BECAUSE THE MENTIONED PROPERTIES WERE ACTUALLY ACQUIRED BY THE JOINT EFFORTS
AND INDUSTRY OF BOTH OF THEM AND THEREFORE, THESE PROPERTIES ARE COMMON PROPERTIES.

3. THE COURT OF APPEALS FINALLY ERRED IN UNREASONABLY GIVING THE TERM "JOINT EFFORTS" NOT
ONLY A VERY, VERY LIMITED MEANING BUT A CONCEPT WHICH IS ENTIRELY ABSURD AND UNREALISTIC
BECAUSE IN CONSTRUING THE TERM, THE COURT OF APPEALS HAS REFUSED TO ACCEPT AN
INTERPRETATION WHICH IS MOST CONSISTENT WITH COMMON PRACTICE AND CUSTOMS AS WELL AS IN
ACCORD WITH THE BEST TRADITION OF THE FILIPINO WAY OF LIFE.

The Court of First Instance and the Court of Appeals correctly rejected the argument that Act No. 3613, the Revised
Marriage Law, recognized "military fashion" marriages as legal. Maxey and Morales were legally married at a church
wedding solemnized on February 16, 1919. Since Act No. 3613 was approved on December 4, 1929 and took effect six
months thereafter, it could not have applied to a relationship commenced in 1903 and legitimized in 1919 through a
marriage performed according to law. The marriage law in 1903 was General Order No. 70. There is no provision in
General Order No. 68 as amended nor in Act No. 3613 which would recognize as an exception to the general rule on
valid marriages, a so called "Military fashion" ceremony or arrangement.

The Court of First Instance and the Court of Appeals both ruled that Melbourne Maxey and Regina Morales were married
only in 1919. This is a finding of fact which we do not disturb at this stage of the case. There is no showing that this factual
finding is totally devoid of or unsupported by evidentiary basis or that it is inconsistent with the evidence of record.

The other issue raised in this Petition questions the Court of Appeals' finding that the parcels of land in question were
exclusive properties of the late Melbourne Maxey.

The petitioners argue that even assuming that the marriage of Melbourne Maxey and Regina Morales took place only in
February 17, 1919, still the properties legally and rightfully belonged in equal share to the two because the acquisition of
the said properties was through their joint efforts and industry. The second and third errors mentioned by the petitioners
are grounded on the alleged wrong interpretation given by the Court of Appeals to the phrase "joint efforts". The
petitioners suggest that their mother's efforts in performing her role as mother to them and as wife to their father were
more than sufficient contribution to constitute the parcels of land in question as common properties acquired through
the joint efforts to their parents.

The Court of Appeals, however, was of the opinion that Article 144 of the Civil Code is not applicable to the properties in
question citing the case of Aznar et al. v. Garcia (102 Phil. 1055) on non-retroactivity of codal provisions where vested
rights may be prejudiced or impaired. And, assuming that Article 144 of the Civil Code is applicable, the Court of
Appeals held that the disputed properties were exclusively those of the petitioner's father because these were not
acquired through the joint efforts of their parents. This conclusion stems from the interpretation given by the Court of
Appeals to the phrase "joint efforts" to mean "monetary contribution". According to the Court

... This view with which this ponente personally wholeheartedly agrees for some time now has been
advocated by sympathizers of equal rights for women, notably in the Commission on the Status of
Women of the United Nations. In our very own country there is strong advocacy for the passage of a
presidential decree providing that "the labors of a spouse in managing the affairs of the household
shall be credited with compensation." Unfortunately, until the happy day when such a proposal shall
 have materialized into law, Courts are bound by existing statutes and jurisprudence, which rigidly
interpret the phrase "joint efforts" as monetary contributions of the man and woman living together
without benefit of marriage, and to date, the drudgery of a woman's lifetime dedication to the
management of the household goes unremunerated, and has no monetary value. Thus, in the case
of Aznar vs. Garcia(supra) the Supreme Court held that the man and the woman have an equal
interest in the properties acquired during the union and each would be entitled to participate therein
if said properties were the product of their joint effort. In the same case it was stated that aside` from
the observation of the trial court that the appellee was an illiterate woman, there appears no
evidence to prove appellee's contribution (in terms of pesos and centavos) or participation in the
acquisition of the properties involved; therefore, following the aforecited ruling of the Court,
appellee's claim for one-half (1/2) of the properties cannot be granted.

In so concluding, the respondent Court of Appeals accepted the private respondents' argument that it was unlikely for
the petitioners' mother to have materially contributed in the acquisition of the questioned properties since she had no
property of her own nor was she gainfully engaged in any business or profession from which she could derive income
unlike their father who held the positions of teacher deputy governor, district supervisor, and superintendent of schools.

We are constrained to adopt a contrary view. Considerations of justice dictate the retroactive application of Article 144
of the Civil Code to the case at bar. Commenting on Article 2252 of the Civil Code which provides that changes made
and new provisions and rules laid down by the Code which may prejudice or impair vested or acquired rights in
accordance with the old legislation shall have no retroactive effect, the Code Commission stated:

Laws shall have no retroactive effect, unless the contrary is provided. The question of how far the new
Civil Code should be made applicable to past acts and events is attended with the utmost difficulty. It
is easy enough to understand the abstract principle that laws have no retroactive effect because
vested or acquired rights should be respected. But what are vested or acquired rights? The
Commission did not venture to formulate a definition of a vested or acquired right seeing that the
problem is extremely committed.

What constitutes a vested or acquired right well be determined by the courts as each particular issue
is submitted to them, by applying the transitional provisions set forth, and in case of doubt, by
observing Art. 9 governing the silence or obscurity of the law. In this manner, the Commission is
confident that the judiciary with its and high sense of justice will be able to decide in what cases the
old Civil Code would apply and in what cases the new one should be binding This course has been
preferred by the Commission, which did not presume to be able to foresee and adequately provide
for each and every question that may arise. (Report of the Code Commission, pp. 165-166).

Similarly, with respect to Article 2253 which provides inter alia that if a right should be declared for the first tune in the
Code, it shall be effective at once, even though the act or event which gives rise thereto may have been done or may
have occurred under the prior legislation, provided said new right does not prejudice or impair any vested or acquired
right, of the same origin, the Code Commission commented:

... But the second sentence gives a retroactive effect to newly created rights provided they do not
prejudice or impair any vested or acquired right. The retroactive character of the new right is the
result of the exercise of the sovereign power of legislation, when the lawmaking body is persuaded
that the new right is called for by considerations of justice and public policy. But such new right most
not encroach upon a vested right. (Report of the Code Commission, p. 167).

The requirement of non-impairment of vested rights is clear. It is the opinion of the Court of Appeals that vested rights
were prejudiced. We do not think so.

Prior to the effectivity of the present Civil Code on August 30, 1950, the formation of an informal civil partnership between
a man and wife not legally married and their corresponding right to an equal share in properties acquired through their
joint efforts and industry during cohabitation was recognized through decisions of this Court. (Aznar et al. vs. Garcia, 102
Phil. 1055; Flores vs. Rehabilitation Finance Corporation, 94 Phil. 451; Marata vs. Dionio, L-24449, December 31, 1925;
Lesaca v. Lesaca, 91 Phil. 135.)

With the enactment of the new Civil Code, Article 144 codified the law established through judicial precedents but with
the modification that the property governed by the rules on co-ownership may be acquired by either or both of
them through their work or industry. Even if it is only the man who works, the property acquired during the man and wife
relationship belongs through a fifty-fifty sharing to the two of them.
This new article in the Civil Code recognizes that it would be unjust and abnormal if a woman who is a wife in all aspects
of the relationship except for the requirement of a valid marriage must abandon her home and children, neglect her
traditional household duties, and go out to earn a living or engage in business before the rules on co-ownership would
apply. This article is particularly relevant in this case where the "common-law" relationship was legitimated through a
valid marriage 34 years before the properties were sold.

The provisions of the Civil Code are premised on the traditional and existing, the normal and customary gender roles of
Filipino men and women. No matter how large the income of a working wife compared to that of her husband, the
major, if not the full responsibility of running the household remains with the woman. She is the administrator of the
household. The fact that the two involved in this case were not legally married at the time does not change the nature
of their respective roles. It is the woman who traditionally holds the family purse even if she does not contribute to filling
that purse with funds. As pointed out by Dean Irene R. Cortes of the University of the Philippines, "in the Filipino family, the
wife holds the purse, husbands hand over their pay checks and get an allowance in return and the wife manages the
affairs of the household. . . . And the famous statement attributed to Governor General Leonard Wood is repeated: In
the Philippines, the best man is the woman." (Cortes, "Womens Rights Under the New Constitution". WOMAN AND THE
LAW, U.P. Law Center, p. 10.)

The "real contribution" to the acquisition of property mentioned in Yaptinchay vs. Torres (28 SCRA 489) must include not
only the earnings of a woman from a profession, occupation, or business but also her contribution to the family's material
and spiritual goods through caring for the children, administering the household, husbanding scarce resources, freeing
her husband from household tasks, and otherwise performing the traditional duties of a housewife.

Should Article 144 of the Civil Code be applied in this case? Our answer is "Yes" because there is no showing that vested
rights would be impaired or prejudiced through its application.

A vested right is defined by this Court as property which has become fixed and established, and is no longer open to
doubt or controversy; an immediately fixed right of present or future enjoyment as distinguished from an expectant or
contingent right (Benguet Consolidated Mining Co. vs. Pineda, 98 Phil. 711; Balbao vs. Farrales, 51 Phil. 498). This cannot
be said of the "exclusive" right of Melbourne Maxey over the properties in question when the present Civil Code became
effective for standing against it was the concurrent right of Regina Morales or her heirs to a share thereof. The properties
were sold in 1953 when the new Civil Code was already in full force and effect. Neither can this be said of the rights of
the private respondents as vendees insofar as one half of the questioned properties are concerned as this was still open
to controversy on account of the legitimate claim of Regina Morales to a share under the applicable law.

The disputed properties were owned in common by Melbourne Maxey and the estate of his late wife, Regina Morales,
when they were sold. Technically speaking, the petitioners should return one-half of the P1,300.00 purchase price of the
land while the private respondents should pay some form of rentals for their use of one-half of the properties. Equitable
considerations, however, lead us to rule out rentals on one hand and return of P650.00 on the other.

WHEREFORE, the petition for review on certiorari is hereby granted. The judgment of the Court of Appeals is reversed and
set aside insofar as one-half of the disputed properties are concerned. The private respondents are ordered to return
one-half of said properties to the heirs of Regina Morales. No costs.

SO ORDERED.

Teehankee (Chairman), Escolin, Relova and De la Fuente, JJ., concur.

Melencio-Herrera, J., took no part.

Plana, J., I reserve my vote.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 202370 September 23, 2013

JUAN SEVILLA SALAS, JR., Petitioner,
vs.
EDEN VILLENA AGUILA, Respondent.

DECISION

CARPIO, J.:

The Case

This petition for review on certiorari1 assails the 16 March 2012 Decision2 and the 28 June 2012 Resolution3 of the Court of
Appeals (CA) in CA-G.R. CV No. 95322. The CA affirmed the 26 September 2008 Order4 of the Regional Trial Court of
Nasugbu, Batangas, Branch 14 (RTC), in Civil Case No. 787.

The Facts

On 7 September 1985, petitioner Juan Sevilla Salas, Jr. (Salas) and respondent Eden Villena Aguila (Aguila) were married.
On 7 June 1986, Aguila gave birth to their daughter, Joan Jiselle. Five months later, Salas left their conjugal dwelling.
Since then, he no longer communicated with Aguila or their daughter.

On 7 October 2003, Aguila filed a Petition for Declaration of Nullity of Marriage (petition) citing psychological incapacity
under Article 36 of the Family Code. The petition states that they "have no conjugal properties whatsoever."5 In the
Return of Summons dated 13 October 2003, the sheriff narrated that Salas instructed his mother Luisa Salas to receive the
copy of summons and the petition.6

On 7 May 2007, the RTC rendered a Decision7 declaring the nullity of the marriage of Salas and Aguila (RTC Decision).
The RTC Decision further provides for the "dissolution of their conjugal partnership of gains, if any."8

On 10 September 2007, Aguila filed a Manifestation and Motion9 stating that she discovered: (a) two 200-square-meter
parcels of land with improvements located in San Bartolome, Quezon City, covered by Transfer Certificate of Title (TCT)
No. N-259299-A and TCT No. N-255497; and (b) a 108-square-meter parcel of land with improvement located in Tondo,
Manila, covered by TCT No. 243373 (collectively, "Discovered Properties"). The registered owner of the Discovered
Properties is "Juan S.Salas, married to Rubina C. Salas." The manifestation was set for hearing on 21 September 2007.
However, Salas’ notice of hearing was returned unserved with the remark, "RTS Refused To Receive."

On 19 September 2007, Salas filed a Manifestation with Entry of Appearance10 requesting for an Entry of Judgment of the
RTC Decision since no motion for reconsideration or appeal was filed and no conjugal property was involved.

On 21 September 2007, the hearing for Aguila’s manifestation ensued, with Aguila, her counsel and the state prosecutor
present. During the hearing, Aguila testified that on 17 April 2007 someone informed her of the existence of the
Discovered Properties. Thereafter, she verified the information and secured copies of TCTs of the Discovered Properties.
When asked to clarify, Aguila testified that Rubina C. Salas (Rubina) is Salas’ common-law wife.11

On 8 February 2008, Salas filed an Opposition to the Manifestation12 alleging that there is no conjugal property to be
partitioned based on Aguila’s petition. According to Salas, Aguila’s statement was a judicial admission and was not
made through palpable mistake. Salas claimed that Aguila waived her right to the Discovered Properties. Salas likewise
enumerated properties he allegedly waived in favor of Aguila, to wit:(1) parcels of land with improvements located in
Sugar Landing Subdivision, Alangilan, Batangas City; No. 176 Brias Street, Nasugbu, Batangas; P. Samaniego Street,
Silangan, Nasugbu, Batangas; and Batangas City, financed by Filinvest; (2) cash amounting to ₱200,000.00; and (3)
motor vehicles, specifically Honda City and Toyota Tamaraw FX(collectively, "Waived Properties"). Thus, Salas contended
that the conjugal properties were deemed partitioned.

The Ruling of the Regional Trial Court

In its 26 September 2008 Order, the RTC ruled in favor of Aguila. The dispositive portion of the Order reads:

WHEREFORE, foregoing premises being considered, the petitioner and the respondent are hereby directed to partition
between themselves by proper instruments of conveyance, the following properties, without prejudice to the legitime of
their legitimate child, Joan Jisselle Aguila Salas:
 (1) A parcel of land registered in the name of Juan S. Salas married to Rubina C. Salas located in San
Bartolome, Quezon City and covered by TCT No. N-259299-A marked as Exhibit "A" and its improvements;

(2) A parcel of land registered in the name of Juan S.Salas married to Rubina C. Salas located in San Bartolome,
Quezon City and covered by TCT No. N-255497 marked as Exhibit "B" and its improvements;

(3) A parcel of land registered in the name of Juan S.Salas married to Rubina Cortez Salas located in Tondo
and covered by TCT No. 243373-Ind. marked as Exhibit "D" and its improvements.

Thereafter, the Court shall confirm the partition so agreed upon bythe parties, and such partition, together with the
Order of the Court confirming the same, shall be recorded in the Registry of Deeds of the place in which the property is
situated.

SO ORDERED.13

The RTC held that pursuant to the Rules,14 even upon entry of judgment granting the annulment of marriage, the court
can proceed with the liquidation, partition and distribution of the conjugal partnership of gains if it has not been judicially
adjudicated upon, as in this case. The RTC found that the Discovered Properties are among the conjugal properties to
be partitioned and distributed between Salas and Aguila. However, the RTC held that Salas failed to prove the existence
of the Waived Properties.

On 11 November 2008, Rubina filed a Complaint-in-Intervention, claiming that: (1) she is Rubina Cortez, a widow and
unmarried to Salas; (2) the Discovered Properties are her paraphernal properties; (3) Salas did not contribute money to
purchase the Discovered Properties as he had no permanent job in Japan; (4) the RTC did not acquire jurisdiction over
her as she was not a party in the case; and (5) she authorized her brother to purchase the Discovered Properties but
because he was not well-versed with legal documentation, he registered the properties in the name of "Juan S. Salas,
married to Rubina C. Salas."

In its 16 December 2009 Order, the RTC denied the Motion for Reconsideration filed by Salas. The RTC found that Salas
failed to prove his allegation that Aguila transferred the Waived Properties to third persons. The RTC emphasized that it
cannot go beyond the TCTs, which state that Salas is the registered owner of the Discovered Properties. The RTC further
held that Salas and Rubina were at fault for failing to correct the TCTs, if they were not married as they claimed.

Hence, Salas filed an appeal with the CA.

The Ruling of the Court of Appeals

On 16 March 2012, the CA affirmed the order of the RTC.15 The CA ruled that Aguila’s statement in her petition is not a
judicial admission. The CA pointed out that the petition was filed on 7 October 2003, but Aguila found the Discovered
Properties only on 17 April 2007 or before the promulgation of the RTC decision. Thus, the CA concluded that Aguila was
palpably mistaken in her petition and it would be unfair to punish her over a matter that she had no knowledge of at the
time she made the admission. The CA also ruled that Salas was not deprived of the opportunity to refute Aguila’s
allegations in her manifestation, even though he was not present in its hearing. The CA likewise held that Rubina cannot
collaterally attack a certificate of title.

In a Resolution dated 28 June 2012,16 the CA denied the Motion for Reconsideration17 filed by Salas. Hence, this petition.

The Issues

Salas seeks a reversal and raises the following issues for resolution:

1. The Court of Appeals erred in affirming the trial court’s decision ordering the partition of the parcels of land
covered by TCT Nos. N-259299-A and N-255497 in Quezon City and as well as the property in Manila covered by
TCT No. 243373 between petitioner and respondent.

2. The Court of Appeals erred in affirming the trial court’s decision in not allowing Rubina C. Cortez to intervene
in this case18

The Ruling of the Court

The petition lacks merit.

Since the original manifestation was an action for partition, this Court cannot order a division of the property, unless it first
makes a determination as to the existence of a co-ownership.19 Thus, the settlement of the issue of ownership is the first
stage in this action.20

Basic is the rule that the party making an allegation in a civil case has the burden of proving it by a preponderance of
evidence.21 Salas alleged that contrary to Aguila’s petition stating that they had no conjugal property, they actually
acquired the Waived Properties during their marriage. However, the RTC found, and the CA affirmed, that Salas failed to
prove the existence and acquisition of the Waived Properties during their marriage:

A perusal of the record shows that the documents submitted by [Salas] as the properties allegedly registered in the
name of [Aguila] are merely photocopies and not certified true copies, hence, this Court cannot admit the same as part
of the records of this case. These are the following:

(1) TCT No. T-65876 – a parcel of land located at Poblacion, Nasugbu, Batangas, registered in the name of
Eden A. Salas, married to Juan Salas Jr. which is cancelled by TCT No. T-105443 in the name of Joan Jiselle A.
Salas, single;

(2) TCT No. T-68066 – a parcel of land situated in the Barrio of Landing, Nasugbu, Batangas, registered in the
name of Eden A. Salas, married to Juan S. Salas Jr.

Moreover, [Aguila] submitted original copy of Certification issued by Ms. Erlinda A. Dasal, Municipal Assessor of Nasugbu,
Batangas, certifying that [Aguila] has no real property (land and improvement) listed in the Assessment Roll for taxation
purposes, as of September 17, 2008.

Such evidence, in the absence of proof to the contrary, has the presumption of regularity. x x x.

Suffice it to say that such real properties are existing and registered in the name of [Aguila], certified true copies thereof
should have been the ones submitted to this Court. Moreover, there is also a presumption that properties registered in
the Registry of Deeds are also declared in the Assessment Roll for taxation purposes.22

On the other hand, Aguila proved that the Discovered Properties were acquired by Salas during their
marriage.1âwphi1Both the RTC and the CA agreed that the Discovered Properties registered in Salas’ name were
acquired during his marriage with Aguila. The TCTs of the Discovered Properties were entered on 2 July 1999 and 29
September 2003, or during the validity of Salas and Aguila’s marriage. In Villanueva v. Court of Appeals,23 we held that
the question of whether the properties were acquired during the marriage is a factual issue. Factual findings of the RTC,
particularly if affirmed by the CA, are binding on us, except under compelling circumstances not present in this case.24

On Salas’ allegation that he was not accorded due process for failing to attend the hearing of Aguila’s manifestation,
we find the allegation untenable. The essence of due process is opportunity to be heard. We hold that Salas was given
such opportunity when he filed his opposition to the manifestation, submitted evidence and filed his appeal.

On both Salas and Rubina’s contention that Rubina owns the Discovered Properties, we likewise find the contention
unmeritorious. The TCTs state that "Juan S. Salas, married to Rubina C. Salas" is the registered owner of the Discovered
Properties. A Torrens title is generally a conclusive evidence of the ownership of the land referred to, because there is a
strong presumption that it is valid and regularly issued.25 The phrase "married to" is merely descriptive of the civil status of
the registered owner.26 Furthermore, Salas did not initially dispute the ownership of the Discovered Properties in his
opposition to the manifestation. It was only when Rubina intervened that Salas supported Rubina’s statement that she
owns the Discovered Properties.

Considering that Rubina failed to prove her title or her legal interest in the Discovered Properties, she has no right to
intervene in this case. The Rules of Court provide that only "a person who has a legal interest in the matter in litigation, or
in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action."27

In Diño v. Diño,28 we held that Article 147 of the Family Code applies to the union of parties who are legally capacitated
and not barred by any impediment to contract marriage, but whose marriage is nonetheless declared void under
Article 36 of the Family Code, as in this case. Article147 of the Family Code provides:
ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through their work or industry shall be governed by the
rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the
household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during
cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children
or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination
of the cohabitation. (Emphasis supplied)

Under this property regime, property acquired during the marriage is prima facie presumed to have been obtained
through the couple’s joint efforts and governed by the rules on co-ownership.29 In the present case, Salas did not rebut
this presumption. In a similar case where the ground for nullity of marriage was also psychological incapacity, we held
that the properties acquired during the union of the parties, as found by both the RTC and the CA, would be governed
by co-ownership.30 Accordingly, the partition of the Discovered Properties as ordered by the RTC and the CA should be
sustained, but on the basis of co-ownership and not on the regime of conjugal partnership of gains.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated16 March 2012 and the Resolution dated 28 June 2012
of the Court of Appeals in CA-G.R. CV No. 95322.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

ARTURO D. BRION
Associate Justice

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-50127-28 March 30, 1979

VICTOR JUANIZA, Heirs of Josefa P. Leus etc., et al., plaintiffs and appellees,
vs.
EUGENIO JOSE, THE ECONOMIC INSURANCE COMPANY, INC., and ROSALIA ARROYO, defendants and appellants.
Victoriano O. Javier and Ricardo A. Fabros, Jr. for appellees.

Luis Viscocho and Francisco E. Rodrigo, Jr. for appellants.

DE CASTRO, J.:

This case was certified by the Court of Appeals to this Court on the ground that the questions raised in the appeal of the
decision of the Court of First Instance of Laguna are purely questions of law.

Eugenio Jose was the registered owner and operator of the passenger jeepney involved in an accident of collision with
a freight train of the Philippine National Railways that took place on November 23, 1969 which resulted in the death to
seven (7) and physical injuries to five (5) of its passengers. At the time of the accident, Eugenio Jose was legally married
to Socorro Ramos but had been cohabiting with defendant-appellant, Rosalia Arroyo, for sixteen (16) years in a
relationship akin to that of husband and wife.

In the resulting cages for damages filed in the Court of First Instance of Laguna, decision was rendered, the dispositive
part of which reads as follows:

(4) In Civil Case No. SP-867 ordering defendants Eugenio Jose and Rosalia Arroyo jointly and severally
to pay plaintiff Victor Juaniza the sum of P1,600.00 plus legal interest from date of complaint until fully
paid and costs of suit;

(5) In Civil Case No. SP-872, ordering defendants Eugenio Jose and Rosalia Arroyo jointly and severally
to pay the respective heirs of the deceased Josefa P. Leus, Fausto Retrita, Nestor del Rosario
Añonuevo and Arceli de la Cueva in the sum of P12,000.00 for the life of each of said deceased, with
legal interest from date of complaint, and costs of suit. (pp. 47-48, Rello).

Motion for reconsideration was filed by Rosalia Arroyo praying that the decision be reconsidered insofar as it condemns
her to pay damages jointly and severally with her co-defendant, but was denied. The lower court based her liability on
the provision of Article 144 of the Civil Code which reads:

When a man and woman driving together as husband and wife, but they are not married, or their
marriage is void from the beginning, the property acquired by either or both of them through their
work or industry or their wages and salaries shall be governed by the rules on co-ownership.

Rosalia Arroyo then filed her appeal with the Court of Appeals which, as previously stated, certified the same to Us, the
question raised being purely legal as may be seen from the lone assigned error as follows:

The lower court erred in holding defendant-appellant Rosalia Arroyo liable 'for damages resulting from
the death and physical injuries suffered by the passengers' of the jeepney registered in the name of
Eugenio Jose, on the erroneous theory that Eugenio Jose and Rosalia Arroyo, having lived together as
husband and wife, without the benefit of marriage, are co- owners of said jeepney. (p. 2, Appellant's
Brief).

The issues thus to be resolved are as follows: (1) whether or not Article 144 of the Civil Code is applicable in a case where
one of the parties in a common-law relationship is incapacitated to marry, and (2) whether or not Rosalia who is not a
registered owner of the jeepney can be held jointly and severally liable for damages with the registered owner of the
same.

It has been consistently ruled by this Court that the co-ownership contemplated in Article 144 of the Civil Code requires
that the man and the woman living together must not in any way be incapacitated to contract marriage.
(Camporedondo vs. Aznar, L-11483, February 4, 1958, 102 Phil. 1055, 1068; Osmeña vs. Rodriguez, 54 OG 5526; Malajacan
vs. Rubi, 42 OG 5576). Since Eugenio Jose is legally married to Socorro Ramos, there is an impediment for him to contract
marriage with Rosalia Arroyo. Under the aforecited provision of the Civil Code, Arroyo cannot be a co-owner of the
jeepney. The jeepney belongs to the conjugal partnership of Jose and his legal wife. There is therefore no basis for the
liability of Arroyo for damages arising from the death of, and physical injuries suffered by, the passengers of the jeepney
which figured in the collision.
Rosalia Arroyo, who is not the registered owner of the jeepney can neither be liable for damages caused by its
operation. It is settled in our jurisprudence that only the registered owner of a public service vehicle is responsible for
damages that may arise from consequences incident to its operation, or maybe caused to any of the passengers
therein. (De Peralta vs. Mangusang, L-18110, July 31, 1964, 11 SCRA 598; Tamayo vs. Aquino, L-12634 and L-12720, May
29, 1959; Roque vs. Malibay Transit, L-8561, November 18,1955; Montoya vs. Ignacio, L-5868, December 29, 1953).

WHEREFORE, in view of the foregoing, Rosalia Arroyo is hereby declared free from any liability for damages and the
appealed decision is hereby modified accordingly. No costs.

Teehankee (Chairman), Makasiar, Fernandez, Guerrero, and Melencio-Herrera, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23214 June 30, 1970

OFELIA GOMEZ, as Administratrix of the Estate of the late ISIDRA GOMEZ Y AQUINO, plaintiff-appellee,
vs.
JOAQUIN P. LIPANA, defendant-appellant.

Marcelo Y. Hernandez for plaintiff-appellee.

Presentacion G. Santos for defendant-appellant.

MAKALINTAL, J.:

The defendant-appellant, Joaquin P. Lipana, contracted two marriages: the first with Maria Loreto Ancino in 1930 and
the second with Isidra Gomez y Aquino in 1935. At the time of the second marriage the first was still subsisting, which fact,
however, Lipana concealed from the second wife.

On December 17, 1943 the spouses of the second marriage acquired by purchase a piece of land in Cubao, Quezon
City, for the price of P3,000.00. The Torrens title for the property (Transfer Certificate No. 25289 of the Register of Deeds for
Quezon City) was issued on February 1, 1944, in the name of "Joaquin Lipana married to Isidra Gomez." On July 20, 1958
Isidra Gomez died intestate and childless, and survived only by her sisters as the nearest relatives. On August 7, 1961
Ofelia Gomez, judicial administratrix of her estate, commenced the present suit, praying for the forfeiture of the
husband's share in the Cubao property in favor of the said estate. Reliance is placed on Article 1417 of the old Civil
Code, the Spanish text of which provides:

La sociedad de gananciales concluye al disolverse el matrimonio o al ser declarado nulo.

El conjuge que por su mala fe hubiere sido causa de la nulidad, no tendra parte en los bienes
gananciales.

The trial court, ruling that the second marriage was void ab initio and that the husband was the one who gave cause for
its nullity, applied the aforequoted provision and declared his interest in the disputed property forfeited in favor of the
estate of the deceased second wife.

In the present appeal by the defendant he attributes two errors to the trial court: (1) in allowing a collateral attack on
the validity of the second marriage and in holding it to be bigamous and void ab initio; and (2) in holding that Article
1417 of the Spanish Civil Code is applicable in this case.
The first error has not been committed. The controlling statute is Act 3613 of the Philippine Legislature, the Marriage Law
which became effective on December 4, 1929 and was in force when the two marriages were celebrated. The pertinent
provisions are as follows:

SEC. 29. Illegal Marriages. — 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;

(a) The first marriage was annulled or dissolved;

(b) 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 the absentee being generally
considered as dead and believed to be so by the spouse present at the time of contracting such
subsequent marriage, the marriage so contracted being valid in either case until declared null and
void by a competent court.

SEC. 30. Annullable marriages. — A marriage may be annulled for any of the following causes, existing
at the time of the marriage:

xxx xxx xxx

(b) That the former husband or wife of either was living and the marriage with such former husband or
wife was then in force;

xxx xxx xxx

SEC. 31. Time for filing action for decree of nullity. — The action to obtain a decree of nullity of
marriage, for causes mentioned in the preceding section, must be commenced within the periods
and by the parties as follows:

xxx xxx xxx

(b) For causes mentioned in subdivision (b); by either party during the life of the other, or by the former
husband or wife.

xxx xxx xxx

The appellant, relying on Section 30(b) quoted above, maintains that his marriage to Isidra Gomez was valid and could
be annulled only in an action for that purpose, which in the light of Section 31 could be filed only by either party thereto,
during the lifetime of the other, or by the former spouse.

However, it is not Section 30 but Section 29 which governs in this case, particularly the first paragraph thereof, which says
that "any marriage 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." This is the general rule, to which the only exceptions
are those mentioned in subsections (a) and (b) of the same provision.<äre||anº•1àw>

There is no suggestion here that the defendant's 1930 marriage to Maria Loreto Ancino had been annulled or dissolved
when he married Isidra Gomez in 1935, and there is no proof that he did so under the conditions envisioned in sub-
section (b). The burden is on the party invoking the exception to prove that he comes under it; and the defendant has
not discharged that burden at all, no evidence whatsoever having been adduced by him at the trial. Indeed, he
contracted the second marriage less than seven years after the first, and he has not shown that his first wife was then
generally considered dead or was believed by him to be so.

The second error bears closer analysis. Is Article 1417 of the Spanish Civil Code applicable under the facts of this case?

There is one primordial fact which must be considered, namely, that since the defendant's first marriage has not been
dissolved or declared void the conjugal partnership established by that marriage has not ceased. Nor has the first wife
lost or relinquished her status as putative heir of her husband under the new Civil Code, entitled to share in his estate
upon his death should she survive him. Consequently, whether as conjugal partner in a still subsisting marriage or as such
putative heir she has an interest in the husband's share in the property here in dispute, even if it was acquired during the
second marriage, of which interest she would be deprived if his share should be declared forfeited in favor of the
second wife.

There is a difference of opinion among the members of this Court as to whether such resulting prejudice to the first wife is
within the contemplation of the Spanish Civil Code when it decrees in general terms in Article 1417 that the spouse who
in bad faith has given cause for nullity (of the marriage) shall have no share in the conjugal properties, considering that
in the present case the first marriage has not been terminated and therefore likewise impresses the conjugal stamp of
that marriage upon whatever properties are acquired during its existence. We believe, however, that it is not necessary
to resolve that question here inasmuch as the facts do not call for the application of Article 1417. The first paragraph of
this Article states two causes for the termination of the conjugal partnership: (1) dissolution of the marriage and (2)
declaration of nullity. Under the second paragraph of the same Article it is upon the termination of the partnership by
either of said causes that the forfeiture of the guilty spouse takes place. Now then, when did the conjugal partnership
formed by virtue of the marriage of the defendant to the deceased Isidra Gomez terminate? Obviously when the
marriage was dissolved by the latter's death in 1958. By that time Article 1417 was no longer in force, having been
eliminated in the new Civil Code, which took effect in 1950. The legal situation arising from these facts is that while insofar
as the second wife was concerned, she having acted in good faith, her marriage produced civil effects and gave rise,
just the same, to the formation of a conjugal partnership wherein she was entitled to an equal share upon dissolution,1 no
action lies under Article 1417 for the forfeiture of the husband's share in her favor, much less in favor of her estate, with
respect to which there are after all no children, but only collateral relatives, who are entitled to succeed.

It would not do to say that since the second marriage, in this case was void ab initio the application of Article 1417
should be reckoned as of the date it was celebrated in 1935. This article speaks from the moment of the termination of
the conjugal partnership (either by the dissolution of the marriage or by the declaration of its nullity); and it would be self-
contradictory to consider that the conjugal partnership was formed and terminated at the same time and by the same
act, that is, by the celebration itself of the marriage. Colin y Capitant2 comments on this provision as follows:

Disuelven matrimonio y, por tanto la sociedad de gananciales, la muerte de uno de los conjuges y la
declaracion de nulidad.<äre||anº•1àw>

En caso de declaracion de nulidad, la sociedad de gananciales se extingue al ser declarado nulo el

matrimonio, es decir, en el momento en que sea firme la sentencia declarativa de la nulidad.

xxx xxx xxx

It may thus be seen that if the nullity, or annulment, of the marriage is the basis for the application of Article 1417, there is
need for a judicial declaration thereof, which of course contemplates an action for that purpose. In the instant case,
however, the conjugal partnership formed by the second marriage was dissolved by the death of the second wife; and
there has been no judicial declaration of nullity except possibly in this very action, filed after dissolution by death had
taken place and when Article 1417 of the Spanish Civil Code was no longer in force.

There is, to be sure, a statement of Manresa3 that in case of nullity it is presumed, with respect to the spouse who acted in
bad faith, that neither the marriage nor the conjugal partnership ever existed, and hence such spouse has no right to a
share in the conjugal properties; but this legal effect of such presumption derives from the premise that Article 1417 is still
in force, and in any event is of doubtful application if it would be in derogation of and to the prejudice of the right of the
other spouse of the first marriage in the conjugal partnership formed thereby, which includes properties acquired by the
husband during its existence.

The only just and equitable solution in this case would be to recognize the right of the second wife to her husband, and
consider the other half as pertaining to the conjugal partnership of the first marriage.

WHEREFORE, the decision appealed from is reversed, and the complaint is dismissed, without pronouncement as to
costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28093 January 30, 1971

BASILIA BERDIN VDA. DE CONSUEGRA; JULIANA, PACITA, MARIA LOURDES, JOSE, JR., RODRIGO, LINEDA and LUIS, all
surnamed CONSUEGRA, petitioners-appellants,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, COMMISSIONER OF PUBLIC HIGHWAYS, HIGHWAY DISTRICT ENGINEER OF
SURIGAO DEL NORTE, COMMISSIONER OF CIVIL SERVICE, and ROSARIO DIAZ, respondents-appellees.

Bernardino O. Almeda for petitioners-appellants.

Binag and Arevalo, Jr. for respondent-appellee Government Service Insurance System.

Office of the Solicitor General for other respondents-appellees.

ZALDIVAR, J.:

Appeal on purely questions of law from the decision of the Court of First Instance of Surigao del Norte, dated March 7,
1967, in its Special Proceeding No. 1720.

The pertinent facts, culled from the stipulation of facts submitted by the parties, are the following:

The late Jose Consuegra, at the time of his death, was employed as a shop foreman of the office of the District Engineer
in the province of Surigao del Norte. In his lifetime, Consuegra contracted two marriages, the first with herein respondent
Rosario Diaz, solemnized in the parish church of San Nicolas de Tolentino, Surigao, Surigao, on July 15, 1937, out of which
marriage were born two children, namely, Jose Consuegra, Jr. and Pedro Consuegra, but both predeceased their
father; and the second, which was contracted in good faith while the first marriage was subsisting, with herein petitioner
Basilia Berdin, on May 1, 1957 in the same parish and municipality, out of which marriage were born seven children,
namely, Juliana, Pacita, Maria Lourdes, Jose, Rodrigo, Lenida and Luz, all surnamed Consuegra.

Being a member of the Government Service Insurance System (GSIS, for short) when Consuegra died on September 26,
1965, the proceeds of his life insurance under policy No. 601801 were paid by the GSIS to petitioner Basilia Berdin and her
children who were the beneficiaries named in the policy. Having been in the service of the government for 22.5028
years, Consuegra was entitled to retirement insurance benefits in the sum of P6,304.47 pursuant to Section 12(c) of
Commonwealth Act 186 as amended by Republic Acts 1616 and 3836. Consuegra did not designate any beneficiary
who would receive the retirement insurance benefits due to him. Respondent Rosario Diaz, the widow by the first
marriage, filed a claim with the GSIS asking that the retirement insurance benefits be paid to her as the only legal heir of
Consuegra, considering that the deceased did not designate any beneficiary with respect to his retirement insurance
benefits. Petitioner Basilia Berdin and her children, likewise, filed a similar claim with the GSIS, asserting that being the
beneficiaries named in the life insurance policy of Consuegra, they are the only ones entitled to receive the retirement
insurance benefits due the deceased Consuegra. Resolving the conflicting claims, the GSIS ruled that the legal heirs of
the late Jose Consuegra were Rosario Diaz, his widow by his first marriage who is entitled to one-half, or 8/16, of the
retirement insurance benefits, on the one hand; and Basilia Berdin, his widow by the second marriage and their seven
children, on the other hand, who are entitled to the remaining one-half, or 8/16, each of them to receive an equal share
of 1/16.

Dissatisfied with the foregoing ruling and apportionment made by the GSIS, Basilia Berdin and her children1 filed on
October 10, 1966 a petition for mandamus with preliminary injunction in the Court of First Instance of Surigao, naming as
respondents the GSIS, the Commissioner of Public Highways, the Highway District Engineer of Surigao del Norte, the
Commissioner of Civil Service, and Rosario Diaz, praying that they (petitioners therein) be declared the legal heirs and
exclusive beneficiaries of the retirement insurance of the late Jose Consuegra, and that a writ of preliminary injunction
be issued restraining the implementation of the adjudication made by the GSIS. On October 26, 1966, the trial court
issued an order requiring therein respondents to file their respective answers, but refrained from issuing the writ of
preliminary injunction prayed for. On February 11, 1967, the parties submitted a stipulation of facts, prayed that the same
be admitted and approved and that judgment be rendered on the basis of the stipulation of facts. On March 7, 1967,
the court below rendered judgment, the pertinent portions of which are quoted hereunder:

This Court, in conformity with the foregoing stipulation of facts, likewise is in full accord with the parties
with respect to the authority cited by them in support of said stipulation and which is herein-below
cited for purposes of this judgment, to wit:

"When two women innocently and in good faith are legally united in holy matrimony to the same
man, they and their children, born of said wedlock, will be regarded as legitimate children and each
family be entitled to one half of the estate. Lao & Lao vs. Dee Tim, 45 Phil. 739; Estrella vs. Laong Masa,
Inc., (CA) 39 OG 79; Pisalbon vs. Bejec, 74 Phil. 88.

WHEREFORE, in view of the above premises, this Court is of the opinion that the foregoing stipulation of
facts is in order and in accordance with law and the same is hereby approved. Judgment, therefore,
is hereby rendered declaring the petitioner Basilia Berdin Vda. de Consuegra and her co-petitioners
Juliana, Pacita, Maria Lourdes, Jose, Jr., Rodrigo, Lenida and Luis, all surnamed Consuegra,
beneficiary and entitled to one-half (1/2) of the retirement benefit in the amount of Six Thousand
Three Hundred Four Pesos and Fourty-Seven Centavos (P6,304.47) due to the deceased Jose
Consuegra from the Government Service Insurance System or the amount of P3,152.235 to be divided
equally among them in the proportional amount of 1/16 each. Likewise, the respondent Rosario Diaz
Vda. de Consuegra is hereby declared beneficiary and entitled to the other half of the retirement
benefit of the late Jose Consuegra or the amount of P3,152.235. The case with respect to the Highway
District Engineer of Surigao del Norte is hereby ordered dismissed.

Hence the present appeal by herein petitioners-appellants, Basilia Berdin and her children.

It is the contention of appellants that the lower court erred in not holding that the designated beneficiaries in the life
insurance of the late Jose Consuegra are also the exclusive beneficiaries in the retirement insurance of said deceased.
In other words, it is the submission of appellants that because the deceased Jose Consuegra failed to designate the
beneficiaries in his retirement insurance, the appellants who were the beneficiaries named in the life insurance should
automatically be considered the beneficiaries to receive the retirement insurance benefits, to the exclusion of
respondent Rosario Diaz. From the arguments adduced by appellants in their brief We gather that it is their stand that the
system of life insurance and the system of retirement insurance, that are provided for in Commonwealth Act 186 as
amended, are simply complementary to each other, or that one is a part or an extension of the other, such that
whoever is named the beneficiary in the life insurance is also the beneficiary in the retirement insurance when no such
beneficiary is named in the retirement insurance.

The contention of appellants is untenable.

It should be noted that the law creating the Government Service Insurance System is Commonwealth Act 186 which was
enacted by the National Assembly on November 14, 1936. As originally approved, Commonwealth Act 186 provided for
the compulsory membership in the Government Service Insurance System of all regularly and permanently appointed
officials and employees of the government, considering as automatically insured on life all such officials and employees,
and issuing to them the corresponding membership policy under the terms and conditions as provided in the Act.2

Originally, Commonwealth Act 186 provided for life insurance only. Commonwealth Act 186 was amended by Republic
Act 660 which was enacted by the Congress of the Philippines on June 16, 1951, and, among others, the amendatory
Act provided that aside from the system of life insurance under the Government Service Insurance System there was also
established the system of retirement insurance. Thus, We will note in Republic Act 660 that there is a chapter on life
insurance and another chapter on retirement insurance. 3 Under the chapter on life insurance are sections 8, 9 and 10 of
Commonwealth Act 186, as amended; and under the chapter on retirement insurance are sections 11, 12, 13 and 13-A.
On May 31, 1957, Republic Act 1616 was enacted by Congress, amending section 12 of Commonwealth Act 186 as
amended by Republic Act 660, by adding thereto two new subsections, designated as subsections (b) and (c). This
subsection (c) of section 12 of Commonwealth Act 186, as amended by Republic Acts 660, 1616 and 3096, was again
amended by Republic Act 3836 which was enacted on June 22, 1963.lâwphî1.ñèt The pertinent provisions of subsection
(c) of Section 12 of Commonwealth Act 186, as thus amended and reamended, read as follows:

(c) Retirement is likewise allowed to a member, regardless of age, who has rendered at least twenty
years of service. The benefit shall, in addition to the return of his personal contributions plus interest
 and the payment of the corresponding employer's premiums described in subsection (a) of Section 5
hereof, without interest, be only a gratuity equivalent to one month's salary for every year of service,
based on the highest rate received, but not to exceed twenty-four months; Provided, That the retiring
officer or employee has been in the service of the said employer or office for at least four years,
immediately preceding his retirement.

xxx xxx xxx

The gratuity is payable by the employer or office concerned which is hereby authorized to provide
the necessary appropriation to pay the same from any unexpended items of appropriations.

Elective or appointive officials and employees paid gratuity under this subsection shall be entitled to
the commutation of the unused vacation and sick leave, based on the highest rate received, which
they may have to their credit at the time of retirement.

Jose Consuegra died on September 26, 1965, and so at the time of his death he had acquired rights under the above-
quoted provisions of subsection (c) of Section 12 of Com. Act 186, as finally amended by Rep. Act 3836 on June 22, 1963.
When Consuegra died on September 26, 1965, he had to his credit 22.5028 years of service in the government, and
pursuant to the above-quoted provisions of subsection (c) of Section 12 of Com. Act 186, as amended, on the basis of
the highest rate of salary received by him which was P282.83 per month, he was entitled to receive retirement insurance
benefits in the amount of P6,304.47. This is the retirement benefits that are the subject of dispute between the appellants,
on the one hand, and the appellee Rosario Diaz, on the other, in the present case. The question posed is: to whom
should this retirement insurance benefits of Jose Consuegra be paid, because he did not, or failed to, designate the
beneficiary of his retirement insurance?

If Consuegra had 22.5028 years of service in the government when he died on September 26, 1965, it follows that he
started in the government service sometime during the early part of 1943, or before 1943. In 1943 Com. Act 186 was not
yet amended, and the only benefits then provided for in said Com. Act 186 were those that proceed from a life
insurance. Upon entering the government service Consuegra became a compulsory member of the GSIS, being
automatically insured on his life, pursuant to the provisions of Com. Act 186 which was in force at the time. During 1943
the operation of the Government Service Insurance System was suspended because of the war, and the operation was
resumed sometime in 1946. When Consuegra designated his beneficiaries in his life insurance he could not have
intended those beneficiaries of his life insurance as also the beneficiaries of his retirement insurance because the
provisions on retirement insurance under the GSIS came about only when Com. Act 186 was amended by Rep. Act 660
on June 16, 1951. Hence, it cannot be said that because herein appellants were designated beneficiaries in Consuegra's
life insurance they automatically became the beneficiaries also of his retirement insurance. Rep. Act 660 added to Com.
Act 186 provisions regarding retirement insurance, which are Sections 11, 12, and 13 of Com. Act 186, as amended.
Subsection (b) of Section 11 of Com. Act 186, as amended by Rep. Act 660, provides as follows:

(b) Survivors benefit. — Upon death before he becomes eligible for retirement, his beneficiaries as
recorded in the application for retirement annuity filed with the System shall be paid his own premiums
with interest of three per centum per annum, compounded monthly. If on his death he is eligible for
retirement, then the automatic retirement annuity or the annuity chosen by him previously shall be
paid accordingly.

The above-quoted provisions of subsection (b) of Section 11 of Commonwealth Act 186, as amended by Rep. Act 660,
clearly indicate that there is need for the employee to file an application for retirement insurance benefits when he
becomes a member of the GSIS, and he should state in his application the beneficiary of his retirement insurance.
Hence, the beneficiary named in the life insurance does not automatically become the beneficiary in the retirement
insurance unless the same beneficiary in the life insurance is so designated in the application for retirement insurance.

Section 24 of Commonwealth Act 186, as amended by Rep. Act 660, provides for a life insurance fund and for a
retirement insurance fund. There was no such provision in Com. Act 186 before it was amended by Rep. Act 660. Thus,
subsections (a) and (b) of Section 24 of Commonwealth Act 186, as amended by Rep. Act 660, partly read as follows:

(a) Life insurance fund. — This shall consist of all premiums for life insurance benefit and/or earnings
and savings therefrom. It shall meet death claims as they may arise or such equities as any member
may be entitled to, under the conditions of his policy, and shall maintain the required reserves to the
end of guaranteeing the fulfillment of the life insurance contracts issued by the System ...
 (b) Retirement insurance fund. — This shall consist of all contributions for retirement insurance benefit
and of earnings and savings therefrom. It shall meet annuity payments and establish the required
reserves to the end of guaranteeing the fulfillment of the contracts issued by the System. ...

Thus, We see that the GSIS offers two separate and distinct systems of benefits to its members — one is the life insurance
and the other is the retirement insurance. These two distinct systems of benefits are paid out from two distinct and
separate funds that are maintained by the GSIS.

In the case of the proceeds of a life insurance, the same are paid to whoever is named the beneficiary in the life
insurance policy. As in the case of a life insurance provided for in the Insurance Act (Act 2427, as amended), the
beneficiary in a life insurance under the GSIS may not necessarily be a heir of the insured. The insured in a life insurance
may designate any person as beneficiary unless disqualified to be so under the provisions of the Civil Code.4 And in the
absence of any beneficiary named in the life insurance policy, the proceeds of the insurance will go to the estate of the
insured.

Retirement insurance is primarily intended for the benefit of the employee — to provide for his old age, or incapacity,
after rendering service in the government for a required number of years. If the employee reaches the age of retirement,
he gets the retirement benefits even to the exclusion of the beneficiary or beneficiaries named in his application for
retirement insurance. The beneficiary of the retirement insurance can only claim the proceeds of the retirement
insurance if the employee dies before retirement. If the employee failed or overlooked to state the beneficiary of his
retirement insurance, the retirement benefits will accrue to his estate and will be given to his legal heirs in accordance
with law, as in the case of a life insurance if no beneficiary is named in the insurance policy.

It is Our view, therefore, that the respondent GSIS had correctly acted when it ruled that the proceeds of the retirement
insurance of the late Jose Consuegra should be divided equally between his first living wife Rosario Diaz, on the one
hand, and his second wife Basilia Berdin and his children by her, on the other; and the lower court did not commit error
when it confirmed the action of the GSIS, it being accepted as a fact that the second marriage of Jose Consuegra to
Basilia Berdin was contracted in good faith. The lower court has correctly applied the ruling of this Court in the case of
Lao, et al. vs. Dee Tim, et al., 45 Phil. 739 as cited in the stipulation of facts and in the decision appealed from.5 In the
recent case of Gomez vs. Lipana, L-23214, June 30, 1970,6 this Court, in construing the rights of two women who were
married to the same man — a situation more or less similar to the case of appellant Basilia Berdin and appellee Rosario
Diaz — held "that since the defendant's first marriage has not been dissolved or declared void the conjugal partnership
established by that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative heir of her
husband under the new Civil Code, entitled to share in his estate upon his death should she survive him. Consequently,
whether as conjugal partner in a still subsisting marriage or as such putative heir she has an interest in the husband's
share in the property here in dispute.... " And with respect to the right of the second wife, this 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 is need for judicial declaration of such nullity. And inasmuch as the conjugal partnership formed by
the second marriage was dissolved before judicial declaration of its nullity, "[t]he only lust and equitable solution in this
case would be to recognize the right of the second wife to her share of one-half in the property acquired by her and her
husband and consider the other half as pertaining to the conjugal partnership of the first marriage."

WHEREFORE, the decision appealed from is affirmed, with costs against petitioners-appellants. It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ.,
concur.
 THIRD DIVISION

G.R. No. 141529 June 6, 2001

FRANCISCO YAP, JR., aka EDWIN YAP, petitioner,

vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

GONZAGA-REYES, J.:

The right against excessive bail, and the liberty of abode and travel, are being invoked to set aside two resolutions of the
Court of Appeals which fixed bail at P5,500,000.00 and imposed conditions on change of residence and travel abroad.

For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by the Regional Trial Court
of Pasig City1 and was sentenced to four years and two months of prision correctional, as minimum to eight years
of prision mayor as maximum, "in addition to one (1) year for each additional P10,000.00 in excess of P22,000.00 but in no
case shall it exceed twenty (20) years."2 He filed a notice of appeal, and moved to be allowed provisional liberty under
the cash bond he had filed earlier in the proceedings. The motion was denied by the trial court in an order dated
February 17,1999.

After the records of the case were transmitted to the Court of Appeals, petitioner filed with the said court a Motion to Fix
Bail For the Provisional Liberty of Accused Appellant Pending Appeal, invoking the last paragraph of Section 5, Rule 114
of the 1997 Revised Rules of Court. Asked to comment on this motion, the Solicitor General opined that petitioner may
be allowed to post bail in the amount of P5,500,000.00 and be required to secure "a certification/guaranty from the
Mayor of the place of his residence that he is a resident of the area and that he will remain to be so until final judgment
is rendered or in case he transfers residence, it must be with prior notice to the court and private
complainant."3 Petitioner filed a Reply, contending that the proposed bail ofP5,500,000.00 was violative of his right
against excessive bail.

The assailed resolution of the Court of Appeals4, issued on October 6, 1999, upheld the recommendation of the Solicitor
General; thus, its dispositive portion reads:

WHEREFORE, premises considered, the "Motion to Fix Bail For Provisional Liberty of Accused-Appellant Pending
Appeal" is hereby GRANTED. Accused-appellant Francisco Yap, Jr., a.k.a. Edwin Yap is hereby ALLOWED TO
POST BAIL in the amount of Five Million Five Hundred Thousand (P5,500,000.00) Pesos, subject to the following
conditions, viz. :

(1) He (accused-appellant) secures a certification/guaranty from the Mayor of the place of his
residence that he is a resident of the area and that he will remain to be a resident therein until final
judgment is rendered or in case he transfers residence, it must be with prior notice to the court;

(2) The Commission of lmmigration and Deportation (CID) is hereby directed to issue a hold departure
order against accused-appellant; and

(3) The accused-appellant shall forthwith surrender his passport to the Division Clerk of Court for
safekeeping until the court orders its return;
 (4) Any violation of the aforesaid conditions shall cause the forfeiture of accused-appellant's bail
bond, the dismissal of appeal and his immediate arrest and confinement in jail.

SO ORDERED.5

A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by respondent court, but was
denied in a resolution issued on November 25, 1999. Hence, this petition.

Petitioner sets out the following assignments of error:

The respondent Court of Appeals committed grave abuse of discretion in fixing the bail of the provisional liberty
of petitioner pending appeal in the amount of P5 .5 million.

The respondent Court of Appeals committed grave abuse of discretion in basing the bail for the provisional
liberty of the petitioner on his civil liability.

The respondent Court of Appeals unduly restricted petitioner's constitutional liberty of abode and travel in
imposing the other conditions for the grant of bail.

Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount, effectively denied him his right to
bail. He challenges the legal basis of respondent court for fixing bail at P5,500,000.00, which is equivalent to the amount
of his civil liability to private complainant Manila Mahogany Marketing Corporation, and argues that the Rules of Court
never intended for the civil liability of the accused to be a guideline or basis for determining the amount of bail. He prays
that bail be reduced to at least P40,000.00, citing the maximum amount of bail that can be posted for the crime of
estafa under the 1996 Bail Bond Guide, or P20,000.00, equivalent to the amount of bail he posted during the trial of the
case.6

On the other hand, the Solicitor General maintains that no grave abuse of discretion could be ascribed to the Court of
Appeals for fixing the amount of bail at P5,500,000.00 considering the severity of the penalty imposed, the weight of the
evidence against petitioner, and the gravity of the offense of which petitioner was convicted by the RTC. He asserted
that the P5,500,000.00 not only corresponded to civil liability but also to the amount of fraud imputed to petitioner. The
Solicitor General further pointed out the probability of flight in case petitioner is released on bail, it having been
established that petitioner was in possession of a valid passport and visa and had in fact left the country several times
during the course of the proceedings in the lower court. It was also shown that petitioner used different names in his
business transactions and had several abodes in different parts of the country.

As for the conditions imposed by the bail bond, the Solicitor General advanced that all that the Court of Appeals
requires is notice in case of change of address; it does not in any way impair petitioner's right to change abode for as
long as the court is apprised of his change of residence during the pendency of the appeal.

Petitioner's case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of Court which states:

SEC. 5. Bail, when discretionary. -- Upon conviction by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail.

The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond
during the period to appeal subject to the consent of the bondsman.

If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than twenty (20) years,
the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the
prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;

(b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has
violated the conditions of his bail without valid justification;

(c) That the accused committed the offense while on probation, parole, or under conditional pardon;
 (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime.

The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the
adverse party.7

There is no question that in the present case the Court of Appeals exercised its discretion in favor of allowing bail to
petitioner on appeal. Respondent court stated that it was doing so for "humanitarian reasons", and despite a perceived
high risk of flight, as by petitioner's admission he went out of the country several times during the pendency of the case,
for which reason the court deemed it necessary to peg the amount of bail at P5,500,000.00.

The prohibition against requiring excessive bail is enshrined in the Constitution.8 The obvious rationale, as declared in the
leading case of De la Camara vs. Enage,9 is that imposing bail in an excessive amount could render meaningless the
right to bail. Thus, in Villaseñor vs. Abano,10 this Court made the pronouncement that it will not hesitate to exercise its
supervisory powers over lower courts should the latter, after holding the accused entitled to bail, effectively deny the
same by imposing a prohibitory sum or exacting unreasonable conditions.

xxx There is grim irony in an accused being told that he has a right to bail but at the same time being required
to post such an exorbitant sum. What aggravates the situation is that the lower court judge would apparently
yield to the command of the fundamental law. In reality, such a sanctimonious avowal of respect for a
mandate of the Constitution was on a purely verbal level. There is reason to believe that any person in the
position of petitioner would under the circumstances be unable to resist thoughts of escaping from
confinement, reduced as he must have been to a state of desperation. In the same breath as he was told he
could be bailed out, the excessive amount required could only mean that provisional liberty would be beyond
his reach. It would have been more forthright if he were informed categorically that such a right could not be
availed of. There would have been no disappointment of expectations then. It does call to mind these words of
Justice Jackson, "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a
pauper's will." XXX11

At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts to consider the following
factors in the setting of the amount of bail:

(a) Financial ability of the accused to give bail;

(b) Nature and circumstances of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that the accused was a fugitive from justice when arrested; and

(j) Pendency of other cases where the accused is on bail.

Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused may jump bail, it is certainly
not precluded from installing devices to ensure against the same. Options may include increasing the bail bond to an
appropriate level, or requiring the person to report periodically to the court and to make an accounting of his
movements.12 In the present case, where petitioner was found to have left the country several times while the case was
pending, the Court of Appeals required the confiscation of his passport and the issuance of a hold-departure order
against him.

Under the circumstances of this case, we find that appropriate conditions have been imposed in the bail bond to ensure
against the risk of flight, particularly, the combination of the hold-departure order and the requirement that petitioner
inform the court of any change of residence and of his whereabouts. Although an increase in the amount of bail while
the case is on appeal may be meritorious, we find that the setting of the amount at P5,500,000.00 is unreasonable,
excessive, and constitutes an effective denial of petitioner's right to bail.

The purpose for bail is to guarantee the appearance of the accused at the trial,13 or whenever so required by the
Court14. The amount should be high enough to assure the presence of the accused when required but no higher than is
reasonably calculated to fulfill this purpose.15 To fix bail at an amount equivalent to the civil liability of which petitioner is
charged (in this case, P5,500,000.00).is to permit the impression that the amount paid as bail is an exaction of the civil
liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a
satisfaction of civil liability which should necessarily await the judgment of the appellate court.

At the same time, we cannot yield to petitioner's submission that bail in the instant case be set at P40,000.00 based on
the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on August 29, 2000, maintains recommended bail at
P40,000.00 for estafa where the amount of fraud is P142,000.00 or over and the imposable penalty 20 years of reclusion
temporal). True, the Court has held that the Bail Bond Guide, a circular of the Department of Justice for the guidance of
state prosecutors, although technically not binding upon the courts, "merits attention, being in a sense an expression of
policy of the Executive Branch, through the Department of Justice, in the enforcement of criminal laws."16 Thus, courts
are advised that they must not only be aware but should also consider the Bail Bond Guide due to its significance in the
administration of criminal justice.17 This notwithstanding, the Court is not precluded from imposing in petitioner's case an
amount higher than P40,000.00 (based on the Bail Bond Guide) where it perceives that an appropriate increase is
dictated by the circumstances.

It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the Revised Rules of Criminal
Procedure is clear that although the grant of bail on appeal is non-capital offenses is discretionary, when the penalty
imposed on the convicted accused exceeds six years and circumstances exist that point to the probability of flight if
released on bail, then the accused must be denied bail, or his bail previously granted should be cancelled.18 In the same
vein, the Court has held that the discretion to extend bail during the course of the appeal should be exercised with
grave caution and for strong reasons, considering that the accused had been in fact convicted by the trial court.19 In an
earlier case, the Court adopted Senator Vicente J. Francisco's disquisition on why bail should be denied after judgment
of conviction as a matter of wise discretion; thus:

The importance attached to conviction is due to the underlying principle that bail should be granted only
where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is
removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried
and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and
the burden is upon the accused to show error in the conviction. From another point of view it may be properly
argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much
more likely to attempt to escape if liberated on bail than before conviction.xxx20

Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by the RTC, and due to the
serious amount of fraud involved, sentenced to imprisonment for twenty years --the maximum penalty for estafa by false
pretenses or fraudulent acts allowed by the Revised Penal Code. Although it cannot be controverted that the Court of
Appeals, despite the foregoing considerations and the possibility of flight still wielded its discretion to grant petitioner bail,
the setting of bail in the amount of P5,500,000.00 is unjustified as having no legal nor factual basis. Guided by the penalty
imposed by the lower court and the weight of the evidence against petitioner, we believe that the amount of
P200,000.00 is more reasonable.

Petitioner also contests the condition imposed by the Court of Appeals that he secure "a certification/guaranty from the
Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until
final judgment is rendered or in case he transfers residence, it must be with prior notice to the court", claiming that the
same violates his liberty of abode and travel.

Notably, petitioner does not question the hold-departure order which prevents him from leaving the Philippines unless
expressly permitted by the court which issued the order.21 In fact, the petition submits that "the hold-departure order
against petitioner is already sufficient guarantee that he will not escape. Thus, to require him to inform the court every
time he changed his residence is already unnecessary."22
The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section
6, Article III of the 1987 Constitution states:

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.

The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the
above provision.23 The condition imposed by the Court of Appeals is simply consistent with the nature and function of a
bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his
presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing
abode; he is merely required to inform the court in case he does so.

WHEREFORE, the petition is PARTIALLY GRANTED. Petitioner's bail pending appeal is reduced from P5,500,000.00 to
P200,000.00. In all other respects, the resolutions of the Court of Appeals, dated October 6, 1999 and November 25, 1999,
respectively, are AFFIRMED. No pronouncement as to costs.

SO ORDERED. 1âwphi1.nêt

Melo, Vitug, Panganiban, and Sandova/-Gutierrez, JJ. , concur.

FIRST DIVISION

G.R. No. 132529. February 2, 2001

SUSAN NICDAO CARIÑO, petitioner,

vs.
SUSAN YEE CARIÑO, respondent.

DECISION

YNARES-SANTIAGO, J.:

The issue for resolution in the case at bar hinges on the validity of the two marriages contracted by the deceased SPO4
Santiago S. Cariño, whose “death benefits” is now the subject of the controversy between the two Susans whom he
married. 1âwphi1.nêt

Before this Court is a petition for review on certiorari seeking to set aside the decision 1 of the Court of Appeals in CA-G.R.
CV No. 51263, which affirmed in toto the decision 2 of the Regional Trial Court of Quezon City, Branch 87, in Civil Case No.
Q-93-18632.

During the lifetime of the late SPO4 Santiago S. Cariño, he contracted two marriages, the first was on June 20, 1969, with
petitioner Susan Nicdao Cariño (hereafter referred to as Susan Nicdao), with whom he had two offsprings, namely,
Sahlee and Sandee Cariño; and the second was on November 10, 1992, with respondent Susan Yee Cariño (hereafter
referred to as Susan Yee), with whom he had no children in their almost ten year cohabitation starting way back in 1982.

In 1988, SPO4 Santiago S. Cariño became ill and bedridden due to diabetes complicated by pulmonary tuberculosis. He
passed away on November 23, 1992, under the care of Susan Yee, who spent for his medical and burial expenses. Both
petitioner and respondent filed claims for monetary benefits and financial assistance pertaining to the deceased from
various government agencies. Petitioner Susan Nicdao was able to collect a total of P146,000.00 from “MBAI, PCCUI,
Commutation, NAPOLCOM, [and] Pag-ibig,” 3 while respondent Susan Yee received a total of P21,000.00 from “GSIS Life,
Burial (GSIS) and burial (SSS).” 4

On December 14, 1993, respondent Susan Yee filed the instant case for collection of sum of money against petitioner
Susan Nicdao praying, inter alia, that petitioner be ordered to return to her at least one-half of the one hundred forty-six
thousand pesos (P146,000.00) collectively denominated as “death benefits” which she (petitioner) received from “MBAI,
PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig.” Despite service of summons, petitioner failed to file her answer,
prompting the trial court to declare her in default.

Respondent Susan Yee admitted that her marriage to the deceased took place during the subsistence of, and without
first obtaining a judicial declaration of nullity of, the marriage between petitioner and the deceased. She, however,
claimed that she had no knowledge of the previous marriage and that she became aware of it only at the funeral of
the deceased, where she met petitioner who introduced herself as the wife of the deceased. To bolster her action for
collection of sum of money, respondent contended that the marriage of petitioner and the deceased is void ab
initio because the same was solemnized without the required marriage license. In support thereof, respondent
presented: 1) the marriage certificate of the deceased and the petitioner which bears no marriage license
number; 5and 2) a certification dated March 9, 1994, from the Local Civil Registrar of San Juan, Metro Manila, which
reads –

This is to certify that this Office has no record of marriage license of the spouses SANTIAGO CARINO (sic) and SUSAN
NICDAO, who are married in this municipality on June 20, 1969. Hence, we cannot issue as requested a true copy or
transcription of Marriage License number from the records of this archives.

This certification is issued upon the request of Mrs. Susan Yee Cariño for whatever legal purpose it may serve. 6

On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding as follows:

WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of P73,000.00, half of the amount which was
paid to her in the form of death benefits arising from the death of SPO4 Santiago S. Cariño, plus attorney’s fees in the
amount of P5,000.00, and costs of suit.

IT IS SO ORDERED. 7

On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the decision of the trial court. Hence, the
instant petition, contending that:

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE FINDINGS OF THE LOWER COURT THAT
VDA. DE CONSUEGRA VS. GSIS IS APPLICABLE TO THE CASE AT BAR.

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY IN THE INSTANT CASE INSTEAD OF THE
CLEAR AND UNEQUIVOCAL MANDATE OF THE FAMILY CODE.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE CASE OF VDA. DE CONSUEGRA VS
GSIS TO HAVE BEEN MODIFIED, AMENDED AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILY CODE. 8
Under Article 40 of the Family Code, 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. Meaning, 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. 9 However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an
absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a
child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the
validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the
validity of said marriage, so long as it is essential to the determination of the case. 10 In such instances, evidence must be
adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an
absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage
void. 11

It is clear therefore that the Court is clothed with sufficient authority to pass upon the validity of the two marriages in this
case, as the same is essential to the determination of who is rightfully entitled to the subject “death benefits” of the
deceased.

Under the Civil Code, which was the law in force when the marriage of petitioner Susan Nicdao and the deceased was
solemnized in 1969, a valid marriage license is a requisite of marriage, 12 and the absence thereof, subject to certain
exceptions, 13 renders the marriage void ab initio. 14

In the case at bar, there is no question that the marriage of petitioner and the deceased does not fall within the
marriages exempt from the license requirement. A marriage license, therefore, was indispensable to the validity of their
marriage. This notwithstanding, the records reveal that the marriage contract of petitioner and the deceased bears no
marriage license number and, as certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no
record of such marriage license. In Republic v. Court of Appeals, 15 the Court held that such a certification is adequate
to prove the non-issuance of a marriage license. Absent any circumstance of suspicion, as in the present case, the
certification issued by the local civil registrar enjoys probative value, he being the officer charged under the law to keep
a record of all data relative to the issuance of a marriage license.

Such being the case, the presumed validity of the marriage of petitioner and the deceased has been sufficiently
overcome. It then became the burden of petitioner to prove that their marriage is valid and that they secured the
required marriage license. Although she was declared in default before the trial court, petitioner could have squarely
met the issue and explained the absence of a marriage license in her pleadings before the Court of Appeals and this
Court. But petitioner conveniently avoided the issue and chose to refrain from pursuing an argument that will put her
case in jeopardy. Hence, the presumed validity of their marriage cannot stand.

It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and the deceased, having been
solemnized without the necessary marriage license, and not being one of the marriages exempt from the marriage
license requirement, is undoubtedly void ab initio.

It does not follow from the foregoing disquisition, however, that since the marriage of petitioner and the deceased is
declared void ab initio, the “death benefits” under scrutiny would now be awarded to respondent Susan Yee. To
reiterate, under Article 40 of the Family Code, for purposes of remarriage, there must first be a prior judicial declaration of
the nullity of a previous marriage, though void, before a party can enter into a second marriage, otherwise, the second
marriage would also be void.

Accordingly, the declaration in the instant case of nullity of the previous marriage of the deceased and petitioner Susan
Nicdao does not validate the second marriage of the deceased with respondent Susan Yee. The fact remains that their
marriage was solemnized without first obtaining a judicial decree declaring the marriage of petitioner Susan Nicdao and
the deceased void. Hence, the marriage of respondent Susan Yee and the deceased is, likewise, void ab initio.

One of the effects of the declaration of nullity of marriage is the separation of the property of the spouses according to
the applicable property regime. 16 Considering that the two marriages are void ab initio, the applicable property regime
would not be absolute community or conjugal partnership of property, but rather, be governed by the provisions of
Articles 147 and 148 of the Family Code on “Property Regime of Unions Without Marriage.”

Under Article 148 of the Family Code, which refers to the property regime of bigamous marriages, adulterous
relationships, relationships in a state of concubine, relationships where both man and woman are married to other
persons, multiple alliances of the same married man, 17 -
“... [O]nly the properties acquired by both of the parties through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to their respective contributions ...”

In this property regime, the properties acquired by the parties through their actual joint contribution shall belong to the
co-ownership. Wages and salaries earned by each party belong to him or her exclusively. Then too, contributions in the
form of care of the home, children and household, or spiritual or moral inspiration, are excluded in this regime. 18

Considering that the marriage of respondent Susan Yee and the deceased is a bigamous marriage, having been
solemnized during the subsistence of a previous marriage then presumed to be valid (between petitioner and the
deceased), the application of Article 148 is therefore in order.

The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], NAPOLCOM, Commutation, Pag-ibig, and
PCCUI, are clearly renumerations, incentives and benefits from governmental agencies earned by the deceased as a
police officer. Unless respondent Susan Yee presents proof to the contrary, it could not be said that she contributed
money, property or industry in the acquisition of these monetary benefits. Hence, they are not owned in common by
respondent and the deceased, but belong to the deceased alone and respondent has no right whatsoever to claim
the same. By intestate succession, the said “death benefits” of the deceased shall pass to his legal heirs. And,
respondent, not being the legal wife of the deceased is not one of them.

As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the Family Code governs. This
article applies to unions of parties who are legally capacitated and not barred by any impediment to contract
marriage, but whose marriage is nonetheless void for other reasons, like the absence of a marriage license. Article 147 of
the Family Code reads -

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through their work or industry shall be governed by the
rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the
household.

xxx

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children
or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination
of the cohabitation.

In contrast to Article 148, under the foregoing article, wages and salaries earned by either party during the cohabitation
shall be owned by the parties in equal shares and will be divided equally between them, even if only one party earned
the wages and the other did not contribute thereto. 19 Conformably, even if the disputed “death benefits” were earned
by the deceased alone as a government employee, Article 147 creates a co-ownership in respect thereto, entitling the
petitioner to share one-half thereof. As there is no allegation of bad faith in the present case, both parties of the first
marriage are presumed to be in good faith. Thus, one-half of the subject “death benefits” under scrutiny shall go to the
petitioner as her share in the property regime, and the other half pertaining to the deceased shall pass by, intestate
succession, to his legal heirs, namely, his children with Susan Nicdao.

In affirming the decision of the trial court, the Court of Appeals relied on the case of Vda. de Consuegra v. Government
Service Insurance System, 20 where the Court awarded one-half of the retirement benefits of the deceased to the first
wife and the other half, to the second wife, holding that:

“... [S]ince the defendant’s first marriage has not been dissolved or declared void the conjugal partnership established
by that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative heir of her husband
under the new Civil Code, entitled to share in his estate upon his death should she survive him. Consequently, whether as
conjugal partner in a still subsisting marriage or as such putative heir she has an interest in the husband’s share in the
property here in dispute....” And with respect to the right of the second wife, this 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 is need for judicial declaration of such nullity. And inasmuch as the conjugal partnership formed by the second
marriage was dissolved before judicial declaration of its nullity, “[t]he only just and equitable solution in this case would
be to recognize the right of the second wife to her share of one-half in the property acquired by her and her husband,
and consider the other half as pertaining to the conjugal partnership of the first marriage.” 21

It should be stressed, however, that the aforecited decision is premised on the rule which requires a prior and separate
judicial declaration of nullity of marriage. This is the reason why in the said case, the Court determined the rights of the
parties in accordance with their existing property regime.

In Domingo v. Court of Appeals, 22 however, the Court, construing Article 40 of the Family Code, clarified that a prior and
separate declaration of nullity of a marriage is an all important condition precedent only for purposes of remarriage.
That is, if a party who is previously married wishes to contract a second marriage, he or she has to obtain first a judicial
decree declaring the first marriage void, before he or she could contract said second marriage, otherwise the second
marriage would be void. The same rule applies even if the first marriage is patently void because the parties are not free
to determine for themselves the validity or invalidity or their marriage. However, for purposes other than to remarry, like
for filing a case for collection of sum of money anchored on a marriage claimed to be valid, no prior and separate
judicial declaration of nullity is necessary. All that a party has to do is to present evidence, testimonial or documentary,
that would prove that the marriage from which his or her rights flow is in fact valid. Thereupon, the court, if material to the
determination of the issues before it, will rule on the status of the marriage involved and proceed to determine the rights
of the parties in accordance with the applicable laws and jurisprudence. Thus, in Niñal v. Bayadog, 23 the Court
explained:

[T]he court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it
is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such
need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause
“on the basis of a final judgment declaring such previous marriage void” in Article 40 of the Family Code connoted that
such final judgment need not be obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals in CA-G.R. CV No. 51263 which affirmed
the decision of the Regional Trial Court of Quezon City ordering petitioner to pay respondent the sum of P73,000.00 plus
attorney’s fees in the amount of P5,000.00, is REVERSED and SET ASIDE. The complaint in Civil Case No. Q-93-18632, is
hereby DISMISSED. No pronouncement as to costs.1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J. (Chairman), Kapunan, and Pardo, JJ., concur.

Puno J., on official leave.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 201061 July 3, 2013

SALLY GO-BANGAYAN, Petitioner,

vs.
BENJAMIN BANGAYAN, JR., Respondent.

DECISION

CARPIO, J.:

The Case
Before the Court is a petition for review1 assailing the 17 August 2011 Decision2 and the 14 March 2012 Resolution3 of the
Court of Appeals in CA-G.R. CV No. 94226.

The Antecedent Facts

On 15 March 2004, Benjamin Bangayan, Jr. (Benjamin) filed a petition for declaration of a non-existent marriage and/or
declaration of nullity of marriage before the Regional Trial Court of Manila, Branch 43 (trial court). The case was
docketed as Civil Case No. 04109401. Benjamin alleged that on 10 September 1973, he married Azucena Alegre
(Azucena) in Caloocan City. They had three children, namely, Rizalyn, Emmamylin, and Benjamin III.

In 1979, Benjamin developed a romantic relationship with Sally GoBangayan (Sally) who was a customer in the auto
parts and supplies business owned by Benjamin’s family. In December 1981, Azucena left for the United States of
America. In February 1982, Benjamin and Sally lived together as husband and wife. Sally’s father was against the
relationship. On 7 March 1982, in order to appease her father, Sally brought Benjamin to an office in Santolan, Pasig City
where they signed a purported marriage contract. Sally, knowing Benjamin’s marital status, assured him that the
marriage contract would not be registered.

Benjamin and Sally’s cohabitation produced two children, Bernice and Bentley. During the period of their cohabitation,
they acquired the following real properties:

(1) property under Transfer Certificate of Title (TCT) No. 61722 registered in the names of Benjamin and Sally as
spouses;

(2) properties under TCT Nos. 61720 and 190860 registered in the name of Benjamin, married to Sally;

(3) properties under Condominium Certificate of Title (CCT) Nos. 8782 and 8783 registered in the name of Sally,
married to Benjamin; and

(4) properties under TCT Nos. N-193656 and 253681 registered in the name of Sally as a single individual.

The relationship of Benjamin and Sally ended in 1994 when Sally left for Canada, bringing Bernice and Bentley with her.
She then filed criminal actions for bigamy and falsification of public documents against Benjamin, using their simulated
marriage contract as evidence. Benjamin, in turn, filed a petition for declaration of a non-existent marriage and/or
declaration of nullity of marriage before the trial court on the ground that his marriage to Sally was bigamous and that it
lacked the formal requisites to a valid marriage. Benjamin also asked the trial court for the partition of the properties he
acquired with Sally in accordance with Article 148 of the Family Code, for his appointment as administrator of the
properties during the pendency of the case, and for the declaration of Bernice and Bentley as illegitimate children. A
total of 44 registered properties became the subject of the partition before the trial court. Aside from the seven
properties enumerated by Benjamin in his petition, Sally named 37 properties in her answer.

After Benjamin presented his evidence, Sally filed a demurrer to evidence which the trial court denied. Sally filed a
motion for reconsideration which the trial court also denied. Sally filed a petition for certiorari before the Court of
Appeals and asked for the issuance of a temporary restraining order and/or injunction which the Court of Appeals never
issued. Sally then refused to present any evidence before the trial court citing the pendency of her petition before the
Court of Appeals. The trial court gave Sally several opportunities to present her evidence on 28 February 2008, 10 July
2008, 4 September 2008, 11 September 2008, 2 October 2008, 23 October 2008, and 28 November 2008. Despite
repeated warnings from the trial court, Sally still refused to present her evidence, prompting the trial court to consider the
case submitted for decision.

The Decision of the Trial Court

In a Decision4 dated 26 March 2009, the trial court ruled in favor ofBenjamin. The trial court gave weight to the
certification dated 21 July 2004 from the Pasig Local Civil Registrar, which was confirmed during trial, that only Marriage
License Series Nos. 6648100 to 6648150 were issued for the month of February 1982 and the purported Marriage License
No. N-07568 was not issued to Benjamin and Sally.5 The trial court ruled that the marriage was not recorded with the local
civil registrar and the National Statistics Office because it could not be registered due to Benjamin’s subsisting marriage
with Azucena.

The trial court ruled that the marriage between Benjamin and Sally was not bigamous. The trial court ruled that the
second marriage was void not because of the existence of the first marriage but because of other causes, particularly,
the lack of a marriage license. Hence, bigamy was not committed in this case. The trial court did not rule on the issue of
the legitimacy status of Bernice and Bentley because they were not parties to the case. The trial court denied Sally’s
claim for spousal support because she was not married to Benjamin. The trial court likewise denied support for Bernice
and Bentley who were both of legal age and did not ask for support.

On the issue of partition, the trial court ruled that Sally could not claim the 37 properties she named in her answer as part
of her conjugal properties with Benjamin. The trial court ruled that Sally was not legally married to Benjamin. Further, the
37 properties that Sally was claiming were owned by Benjamin’s parents who gave the properties to their children,
including Benjamin, as advance inheritance. The 37 titles were in the names of Benjamin and his brothers and the phrase
"married to Sally Go" was merely descriptive of Benjamin’s civil status in the title. As regards the two lots under TCT Nos.
61720 and 190860, the trial court found that they were bought by Benjamin using his own money and that Sally failed to
prove any actual contribution of money, property or industry in their purchase. The trial court found that Sally was a
registered co-owner of the lots covered by TCT Nos. 61722, N-193656, and 253681 as well as the two condominium units
under CCT Nos. 8782 and 8783. However, the trial court ruled that the lot under TCT No. 61722 and the two condominium
units were purchased from the earnings of Benjamin alone. The trial court ruled that the properties under TCT Nos. 61722,
61720, and 190860 and CCT Nos. 8782 and 8783 were part of the conjugal partnership of Benjamin and Azucena, without
prejudice to Benjamin’s right to dispute his conjugal state with Azucena in a separate proceeding.

The trial court further ruled that Sally acted in bad faith because she knew that Benjamin was married to Azucena.
Applying Article 148 of the Family Code, the trial court forfeited Sally’s share in the properties covered under TCT Nos. N-
193656 and 253681 in favor of Bernice and Bentley while Benjamin’s share reverted to his conjugal ownership with
Azucena.

The dispositive portion of the trial court’s decision reads:

ACCORDINGLY, the marriage of BENJAMIN BANGAYAN, JR. and SALLY S. GO on March 7, 1982 at Santolan, Pasig, Metro
Manila is hereby declared NULL and VOID AB INITIO. It is further declared NONEXISTENT.

Respondent’s claim as co-owner or conjugal owner of the thirtyseven (37) properties under TCT Nos. 17722, 17723, 17724,
17725, 126397, RT-73480, and RT-86821; in Manila, TCT Nos. 188949, 188950, 188951, 193035, 194620, 194621, 194622,
194623, 194624, 194625, 194626, 194627, 194628, 194629, 194630, 194631, 194632, 194633, 194634, 194635, 194636, 194637,
194638, 194639, 198651, 206209, 206210, 206211, 206213 and 206215 is DISMISSED for lack of merit. The registered owners,
namely: Benjamin B. Bangayan, Jr., Roberto E. Bangayan, Ricardo B. Bangayan and Rodrigo B. Bangayan are the
owners to the exclusion of "Sally Go" Consequently, the Registry of Deeds for Quezon City and Manila are directed to
delete the words "married to Sally Go" from these thirty-seven (37) titles.

Properties under TCT Nos. 61722, 61720 and 190860, CCT Nos. 8782 and 8783 are properties acquired from petitioner’s
money without contribution from respondent, hence, these are properties of the petitioner and his lawful wife.
Consequently, petitioner is appointed the administrator of these five (5) properties. Respondent is ordered to submit an
accounting of her collections of income from these five (5) properties within thirty (30) days from notice hereof. Except
for lot under TCT No. 61722, respondent is further directed within thirty (30) days from notice hereof to turn over and
surrender control and possession of these properties including the documents of title to the petitioner.

On the properties under TCT Nos. N-193656 and N-253681, these properties are under co-ownership of the parties shared
by them equally. However, the share of respondent is declared FORFEITED in favor of Bernice Go Bangayan and Bentley
Go Bangayan. The share of the petitioner shall belong to his conjugal ownership with Azucena Alegre. The liquidation,
partition and distribution of these two (2) properties shall be further processed pursuant to Section 21 of A.M. No. 02-11-10
of March 15, 2003.

Other properties shall be adjudicated in a later proceeding pursuant to Section 21 of A.M. No. 02-11-10.

Respondent’s claim of spousal support, children support and counterclaims are DISMISSED for lack of merit. Further, no
declaration of the status of the parties’ children.

No other relief granted.

Furnish copy of this decision to the parties, their counsels, the Trial Prosecutor, the Solicitor General and the Registry of
Deeds in Manila, Quezon City and Caloocan.

SO ORDERED.6
Sally filed a Verified and Vigorous Motion for Inhibition with Motion for Reconsideration. In its Order dated 27 August
2009,7 the trial court denied the motion. Sally appealed the trial court’s decision before the Court of Appeals.

The Decision of the Court of Appeals

In its 17 August 2011 Decision, the Court of Appeals partly granted the appeal. The Court of Appeals ruled that the trial
court did not err in submitting the case for decision. The Court of Appeals noted that there were six resettings of the
case, all made at the instance of Sally, for the initial reception of evidence, and Sally was duly warned to present her
evidence on the next hearing or the case would be deemed submitted for decision. However, despite the warning, Sally
still failed to present her evidence. She insisted on presenting Benjamin who was not around and was not subpoenaed
despite the presence of her other witnesses.

The Court of Appeals rejected Sally’s allegation that Benjamin failed to prove his action for declaration of nullity of
marriage. The Court of Appeals ruled that Benjamin’s action was based on his prior marriage to Azucena and there was
no evidence that the marriage was annulled or dissolved before Benjamin contracted the second marriage with Sally.
The Court of Appeals ruled that the trial court committed no error in declaring Benjamin’s marriage to Sally null and void.

The Court of Appeals ruled that the property relations of Benjamin and Sally was governed by Article 148 of the Family
Code. The Court of Appeals ruled that only the properties acquired by the parties through their actual joint contribution
of money, property or industry shall be owned by them in common in proportion to their respective contribution. The
Court of Appeals ruled that the 37 properties being claimed by Sally rightfully belong to Benjamin and his siblings.

As regards the seven properties claimed by both parties, the Court of Appeals ruled that only the properties under TCT
Nos. 61720 and 190860 registered in the name of Benjamin belong to him exclusively because he was able to establish
that they were acquired by him solely. The Court of

Appeals found that the properties under TCT Nos. N-193656 and 253681 and under CCT Nos. 8782 and 8783 were
exclusive properties of Sally in the absence of proof of Benjamin’s actual contribution in their purchase. The Court of
Appeals ruled that the property under TCT No. 61722 registered in the names of Benjamin and Sally shall be owned by
them in common, to be shared equally. However, the share of Benjamin shall accrue to the conjugal partnership under
his existing marriage with Azucena while Sally’s share shall accrue to her in the absence of a clear and convincing proof
of bad faith.

Finally, the Court of Appeals ruled that Sally failed to present clear and convincing evidence that would show bias and
prejudice on the part of the trial judge that would justify his inhibition from the case.

The dispositive portion of the Court of Appeals’ decision reads:

WHEREFORE, premises considered, the instant appeal is PARTLY GRANTED. The assailed Decision and Order dated March
26, 2009 and August 27, 2009, respectively, of the Regional Trial Court of Manila, Branch 43, in Civil Case No. 04-109401
are hereby AFFIRMED with modification declaring TCT Nos. 61720 and 190860 to be exclusively owned by the petitioner-
appellee while the properties under TCT Nos. N-193656 and 253681 as well as CCT Nos. 8782 and 8783 shall be solely
owned by the respondent-appellant. On the other hand, TCT No. 61722 shall be owned by them and common and to
be shared equally but the share of the petitioner-appellee shall accrue to the conjugal partnership under his first
marriage while the share of respondent-appellant shall accrue to her. The rest of the decision stands.

SO ORDERED.8

Sally moved for the reconsideration of the Court of Appeals’ decision. In its 14 March 2012 Resolution, the Court of
Appeals denied her motion.

Hence, the petition before this Court.

The Issues

Sally raised the following issues before this Court:

(1) Whether the Court of Appeals committed a reversible error in affirming the trial court’s ruling that Sally had
waived her right to present evidence;
 (2) Whether the Court of Appeals committed a reversible error in affirming the trial court’s decision declaring
the marriage between Benjamin and Sally null and void ab initio and non-existent; and

(3) Whether the Court of Appeals committed a reversible error in affirming with modification the trial court’s
decision regarding the property relations of Benjamin and Sally.

The Ruling of this Court

The petition has no merit.

Waiver of Right to Present Evidence

Sally alleges that the Court of Appeals erred in affirming the trial court’s ruling that she waived her right to present her
evidence. Sally alleges that in not allowing her to present evidence that she and Benjamin were married, the trial court
abandoned its duty to protect marriage as an inviolable institution.

It is well-settled that a grant of a motion for continuance or postponement is not a matter of right but is addressed to the
discretion of the trial court.9 In this case, Sally’s presentation of evidence was scheduled on28 February 2008. Thereafter,
there were six resettings of the case: on 10 July 2008, 4 and 11 September 2008, 2 and 28 October 2008, and 28
November 2008. They were all made at Sally’s instance. Before the scheduled hearing of 28 November 2008, the trial
court warned Sally that in case she still failed to present her evidence, the case would be submitted for decision. On the
date of the scheduled hearing, despite the presence of other available witnesses, Sally insisted on presenting Benjamin
who was not even subpoenaed on that day. Sally’s counsel insisted that the trial court could not dictate on the priority of
witnesses to be presented, disregarding the trial court’s prior warning due to the numerous resettings of the case. Sally
could not complain that she had been deprived of her right to present her evidence because all the postponements
were at her instance and she was warned by the trial court that it would submit the case for decision should she still fail
to present her evidence on 28 November 2008.

We agree with the trial court that by her continued refusal to present her evidence, she was deemed to have waived
her right to present them. As pointed out by the Court of Appeals, Sally’s continued failure to present her evidence
despite the opportunities given by the trial court showed her lack of interest to proceed with the case. Further, it was
clear that Sally was delaying the case because she was waiting for the decision of the Court of Appeals on her petition
questioning the trial court’s denial of her demurrer to evidence, despite the fact that the Court of Appeals did not issue
any temporary restraining order as Sally prayed for. Sally could not accuse the trial court of failing to protect marriage as
an inviolable institution because the trial court also has the duty to ensure that trial proceeds despite the deliberate
delay and refusal to proceed by one of the parties.10

Validity of the Marriage between Benjamin and Sally

Sally alleges that both the trial court and the Court of Appeals recognized her marriage to Benjamin because a
marriage could not be nonexistent and, at the same time, null and void ab initio. Sally further alleges that if she were
allowed to present her evidence, she would have proven her marriage to Benjamin. To prove her marriage to Benjamin,
Sally asked this Court to consider that in acquiring real properties, Benjamin listed her as his wife by declaring he was
"married to" her; that Benjamin was the informant in their children’s birth certificates where he stated that he was their
father; and that Benjamin introduced her to his family and friends as his wife. In contrast, Sally claims that there was no
real property registered in the names of Benjamin and Azucena. Sally further alleges that Benjamin was not the informant
in the birth certificates of his children with Azucena.

First, Benjamin’s marriage to Azucena on 10 September 1973 was duly established before the trial court, evidenced by a
certified true copy of their marriage contract. At the time Benjamin and Sally entered into a purported marriage on 7
March 1982, the marriage between Benjamin and Azucena was valid and subsisting.

On the purported marriage of Benjamin and Sally, Teresita Oliveros (Oliveros), Registration Officer II of the Local Civil
Registrar of Pasig City, testified that there was no valid marriage license issued to Benjamin and Sally. Oliveros confirmed
that only Marriage Licence Nos. 6648100 to 6648150 were issued for the month of February 1982. Marriage License No. N-
07568 did not match the series issued for the month. Oliveros further testified that the local civil registrar of Pasig City did
not issue Marriage License No. N-07568 to Benjamin and Sally. The certification from the local civil registrar is adequate to
prove the non-issuance of a marriage license and absent any suspicious circumstance, the certification enjoys probative
value, being issued by the officer charged under the law to keep a record of all data relative to the issuance of a
marriage license.11 Clearly, if indeed Benjamin and Sally entered into a marriage contract, the marriage was void from
the beginning for lack of a marriage license.12
It was also established before the trial court that the purported marriage between Benjamin and Sally was not recorded
with the local civil registrar and the National Statistics Office. The lack of record was certified by Julieta B. Javier,
Registration Officer IV of the Office of the Local Civil Registrar of the Municipality of Pasig;13 Teresita R. Ignacio, Chief of
the Archives Division of the Records Management and Archives Office, National Commission for Culture and the
Arts;14 and Lourdes J. Hufana, Director III, Civil Registration Department of the National Statistics Office.15 The
documentary and testimonial evidence proved that there was no marriage between Benjamin and Sally. As pointed out
by the trial court, the marriage between Benjamin and Sally "was made only in jest"16 and "a simulated marriage, at the
instance of Sally, intended to cover her up from expected social humiliation coming from relatives, friends and the
society especially from her parents seen as Chinese conservatives."17 In short, it was a fictitious marriage.

The fact that Benjamin was the informant in the birth certificates of Bernice and Bentley was not a proof of the marriage
between Benjamin and Sally. This Court notes that Benjamin was the informant in Bernice’s birth certificate which stated
that Benjamin and Sally were married on 8 March 198218 while Sally was the informant in Bentley’s birth certificate which
also stated that Benjamin and Sally were married on 8 March 1982.19 Benjamin and Sally were supposedly married on 7
March 1982 which did not match the dates reflected on the birth certificates.

We see no inconsistency in finding the marriage between Benjamin and Sally null and void ab initio and, at the same
time, non-existent. Under Article 35 of the Family Code, a marriage solemnized without a license, except those covered
by Article 34 where no license is necessary, "shall be void from the beginning." In this case, the marriage between
Benjamin and Sally was solemnized without a license. It was duly established that no marriage license was issued to them
and that Marriage License No. N-07568 did not match the marriage license numbers issued by the local civil registrar of
Pasig City for the month of February 1982. The case clearly falls under Section 3 of Article 3520 which made their marriage
void ab initio. The marriage between Benjamin and Sally was also non-existent. Applying the general rules on void or
inexistent contracts under Article 1409 of the Civil Code, contracts which are absolutely simulated or fictitious are
"inexistent and void from the beginning."21 Thus, the Court of Appeals did not err in sustaining the trial court’s ruling that
the marriage between Benjamin and Sally was null and void ab initio and non-existent.

Except for the modification in the distribution of properties, the Court of Appeals affirmed in all aspects the trial court’s
decision and ruled that "the rest of the decision stands."22 While the Court of Appeals did notdiscuss bigamous marriages,
it can be gleaned from the dispositive portion of the decision declaring that "the rest of the decision stands" that the
Court of Appeals adopted the trial court’s discussion that the marriage between Benjamin and Sally is not
bigamous.1âwphi1 The trial court stated:

On whether or not the parties’ marriage is bigamous under the concept of Article 349 of the Revised Penal Code, the
marriage is not bigamous. It is required that the first or former marriage shall not be null and void. The marriage of the
petitioner to Azucena shall be assumed as the one that is valid, there being no evidence to the contrary and there is no
trace of invalidity or irregularity on the face of their marriage contract. However, if the second marriage was void not
because of the existence of the first marriage but for other causes such as lack of license, the crime of bigamy was not
committed. In People v. De Lara [CA, 51 O.G., 4079], it was held that what was committed was contracting marriage
against the provisions of laws not under Article 349 but Article 350 of the Revised Penal Code. Concluding, the marriage
of the parties is therefore not bigamous because there was no marriage license. The daring and repeated stand of
respondent that she is legally married to petitioner cannot, in any instance, be sustained. Assuming that her marriage to
petitioner has the marriage license, yet the same would be bigamous, civilly or criminally as it would be invalidated by a
prior existing valid marriage of petitioner and Azucena.23

For bigamy to exist, the second or subsequent marriage must have all the essential requisites for validity except for the
existence of a prior marriage.24 In this case, there was really no subsequent marriage. Benjamin and Sally just signed a
purported marriage contract without a marriage license. The supposed marriage was not recorded with the local civil
registrar and the National Statistics Office. In short, the marriage between Benjamin and Sally did not exist. They lived
together and represented themselves as husband and wife without the benefit of marriage.

Property Relations Between Benjamin and Sally

The Court of Appeals correctly ruled that the property relations of Benjamin and Sally is governed by Article 148 of the
Family Code which states:

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the
parties through their actual joint contribution of money, property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money
and evidences of credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute
community of conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly
married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding
Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Benjamin and Sally cohabitated without the benefit of marriage. Thus, only the properties acquired by them through
their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their
respective contributions. Thus, both the trial court and the Court of Appeals correctly excluded the 37 properties being
claimed by Sally which were given by Benjamin’s father to his children as advance inheritance. Sally’s Answer to the
petition before the trial court even admitted that "Benjamin’s late father himself conveyed a number of properties to his
children and their respective spouses which included Sally x x x."25

As regards the seven remaining properties, we rule that the decision of the Court of Appeals is more in accord with the
evidence on record. Only the property covered by TCT No. 61722 was registered in the names of Benjamin and Sally as
spouses.26 The properties under TCT Nos. 61720 and 190860 were in the name of Benjamin27 with the descriptive title
"married to Sally." The property covered by CCT Nos. 8782 and 8783 were registered in the name of Sally28 with the
descriptive title "married to Benjamin" while the properties under TCT Nos. N-193656 and 253681 were registered in the
name of Sally as a single individual. We have ruled that the words "married to" preceding the name of a spouse are
merely descriptive of the civil status of the registered owner.29 Such words do not prove co-ownership. Without proof of
actual contribution from either or both spouses, there can be no co-ownership under Article 148 of the Family Code.30

Inhibition of the Trial Judge

Sally questions the refusal of Judge Roy G. Gironella (Judge Gironella) to inhibit himself from hearing the case. She cited
the failure of Judge Gironella to accommodate her in presenting her evidence. She further alleged that Judge Gironella
practically labeled her as an opportunist in his decision, showing his partiality against her and in favor of Benjamin.

We have ruled that the issue of voluntary inhibition is primarily a matter of conscience and sound discretion on the part
of the judge.31 To justify the call for inhibition, there must be extrinsic evidence to establish bias, bad faith, malice, or
corrupt purpose, in addition to palpable error which may be inferred from the decision or order itself.32 In this case, we
have sufficiently explained that Judge Gironella did not err in submitting the case for decision because of Sally’s
continued refusal to present her evidence.

We reviewed the decision of the trial court and while Judge Gironella may have used uncomplimentary words in writing
the decision, they are not enough to prove his prejudice against Sally or show that he acted in bad faith in deciding the
case that would justify the call for his voluntary inhibition.

WHEREFORE, we AFFIRM the 17 August 2011 Decision and the 14 March 2012 Resolution of the Court of Appeals in CA-
G.R. CV No. 94226.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

ARTURO D. BRION
Associate Justice

LUCAS P. BERSAMIN* MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 202932 October 23, 2013

EDILBERTO U. VENTURA JR., Petitioner,

vs.
SPOUSES PAULINO and EVANGELINE ABUDA, Respondents.

DECISION

CARPIO, J.:

The Case

This petition for review on certiorari seeks to annul the Decision1 dated 9 March 2012 of the Court of Appeals (CA) in CA-
G.R. CV No. 92330 and the Resolution2 dated 3 August 2012 denying the motion for reconsideration. The Decision and
Resolution dismissed the Appeal dated 23 October 2009 and affirmed with modification the Decision3dated 24
November 2008 of the Regional Trial Court of Manila, Branch 32 (RTC-Manila).

The Facts

The RTC-Manila and the CA found the facts to be as follows:

Socorro Torres (Socorro) and Esteban Abletes (Esteban) were married on 9 June 1980. Although Socorro and Esteban
never had common children, both of them had children from prior marriages: Esteban had a daughter named
Evangeline Abuda (Evangeline), and Socorro had a son, who was the father of Edilberto U. Ventura, Jr. (Edilberto), the
petitioner in this case.

Evidence shows that Socorro had a prior subsisting marriage to Crispin Roxas (Crispin) when she married Esteban. Socorro
married Crispin on 18 April 1952. This marriage was not annulled, and Crispin was alive at the time of Socorro’s marriage
to Esteban.

Esteban’s prior marriage, on the other hand, was dissolved by virtue of his wife’s death in 1960. According to Edilberto,
sometime in 1968, Esteban purchased a portion of a lot situated at 2492 State Alley, Bonifacio Street, Vitas, Tondo, Manila
(Vitas property). The remaining portion was thereafter purchased by Evangeline on her father’s behalf sometime in
1970.4 The Vitas property was covered by Transfer Certificate of Title No. 141782, dated 11 December 1980, issued to
"Esteban Abletes, of legal age, Filipino, married to Socorro Torres."5

Edilberto also claimed that starting 1978, Evangeline and Esteban operated small business establishments located at 903
and 905 Delpan Street, Tondo, Manila (Delpan property).6

On 6 September 1997, Esteban sold the Vitas and Delpan properties to Evangeline and her husband, Paulino Abuda
(Paulino).7 According to Edilberto:

when Esteban was diagnosed with colon cancer sometime in 1993, he decided to sell the Delpan and Vitas properties
to Evangeline. Evangeline continued paying the amortizations on the two (2) properties situated in Delpan Street. The
amortizations, together with the amount of Two Hundred Thousand Pesos (Php 200,000.00), which Esteban requested as
advance payment, were considered part of the purchase price of the Delpan properties. Evangeline likewise gave her
father Fifty Thousand Pesos (Php 50,000.00) for the purchase of the Vitas properties and she shouldered his medical
expenses.8

Esteban passed away on 11 September 1997, while Socorro passed away on 31 July 1999.

Sometime in 2000, Leonora Urquila (Leonora), the mother of Edilberto, discovered the sale. Thus, Edilberto, represented
by Leonora, filed a Petition for Annulment of Deeds of Sale before the RTC-Manila. Edilberto alleged that the sale of the
properties was fraudulent because Esteban’s signature on the deeds of sale was forged. Respondents, on the other
hand, argued that because of Socorro’s prior marriage to Crispin, her subsequent marriage to Esteban was null and
void. Thus, neither Socorro nor her heirs can claim any right or interest over the properties purchased by Esteban and
respondents.9

The Ruling of the RTC-Manila

The RTC-Manila dismissed the petition for lack of merit.

The RTC-Manila ruled that the marriage between Socorro and Esteban was void from the beginning.10 Article 83 of the
Civil Code, which was the governing law at the time Esteban and Socorro were married, provides:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person 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 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.

During trial, Edilberto offered the testimony of Socorro’s daughter-in-law Conchita Ventura (Conchita). In her first
affidavit, Conchita claimed that Crispin, who was a seaman, had been missing and unheard from for 35 years. However,
Conchita recanted her earlier testimony and executed an Affidavit of Retraction.11

The RTC-Manila ruled that the lack of a judicial decree of nullity does not affect the status of the union. It applied our
ruling in Niñal v. Badayog:12

Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a
marriage. x x x

Under ordinary circumstances, the effect of a void marriage, so far as concerns the conferring of legal rights upon the
parties, is as though no marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can
be maintained in any proceeding in which [the] fact of marriage may be material, either direct or collateral, in any civil
court between any parties at any time, whether before or after the death of either or both the husband and the wife,
and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the
courts.13
According to the RTC-Manila, the Vitas and Delpan properties are not conjugal, and are governed by Articles 144 and
485 of the Civil Code, to wit:

Art. 144. When a man and a woman live together as husband and wife, but they are not married, or their marriage is
void from the beginning, the property acquired by either or both of them through their work or industry or their wages
and salaries shall be governed by the rules on co-ownership.

Art. 485. The share of the co-owners, in the benefits as well as in the charges, shall be proportional to their respective
interests. Any stipulation in a contract to the contrary shall be void.

The portions belonging to the co-owners in the co-ownership shall be presumed equal, unless the contrary is proved.

The RTC-Manila then determined the respective shares of Socorro and Esteban in the properties. It found that:

with respect to the property located at 2492 State Alley, Bonifacio St. Vitas, Tondo, Manila covered by TCT No. 141782,
formerly Marcos Road, Magsaysay Village, Tondo, Manila, [Evangeline] declared that part of it was first acquired by her
father Esteban Abletes sometime in 1968 when he purchased the right of Ampiano Caballegan. Then, in 1970, she x x x
bought the right to one-half of the remaining property occupied by Ampiano Caballegan. However, during the survey
of the National Housing Authority, she allowed the whole lot to be registered in her father’s name. As proof thereof, she
presented Exhibits "8" to "11" x x x. These documents prove that that she has been an occupant of the said property in
Vitas, Tondo even before her father and Socorro Torres got married in June, 1980.14

Anent the parcels of land and improvements thereon 903 and 905 Del Pan Street, Tondo, Manila, x x x Evangeline
professed that in 1978, before her father met Socorro Torres and before the construction of the BLISS Project thereat, her
father [already had] a bodega of canvas (lona) and a sewing machine to sew the canvas being sold at 903 Del Pan
Street, Tondo Manila. In 1978, she was also operating Vangie’s Canvas Store at 905 Del Pan Street, Tondo, Manila, which
was evidenced by Certificate of Registration of Business Name issued in her favor on 09 November 1998 x x x. When the
BLISS project was constructed in 1980, the property became known as Units D-9 and D-10. At first, her father [paid] for the
amortizations for these two (2) parcels of land but when he got sick with colon cancer in 1993, he asked respondents to
continue paying for the amortizations x x x. [Evangeline] paid a total of ₱195,259.52 for Unit D-9 as shown by the 37
pieces of receipts x x x and the aggregate amount of ₱188,596.09 for Unit D-10, as evidenced by 36 receipts x x x.15

The RTC-Manila concluded that Socorro did not contribute any funds for the acquisition of the properties. Hence, she
cannot be considered a co-owner, and her heirs cannot claim any rights over the Vitas and Delpan properties.16

Aggrieved, Edilberto filed an appeal before the CA.

The Ruling of the CA

In its Decision17 dated 9 March 2012, the CA sustained the decision of the RTC-Manila. The dispositive portion of the CA
Decision reads:

WHEREFORE, the Appeal is hereby DENIED and the challenged Decision of the court a quo STANDS.

SO ORDERED.18

The CA ruled, however, that the RTC-Manila should have applied Article 148 of the Family Code, and not Articles 144
and 485 of the Civil Code. Article 148 of the Family Code states that in unions between a man and a woman who are
incapacitated to marry each other:

x x x only the properties acquired by both of the parties through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to
the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption
shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly
married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding
Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

The CA applied our ruling in Saguid v. Court of Appeals,19 and held that the foregoing provision applies "even if the
cohabitation or the acquisition of the property occurred before the effectivity of the Family Code."20 The CA found that
Edilberto failed to prove that Socorro contributed to the purchase of the Vitas and Delpan properties. Edilberto was
unable to provide any documentation evidencing Socorro’s alleged contribution.21

On 2 April 2012, Edilberto filed a Motion for Reconsideration,22 which was denied by the CA in its Resolution dated 3
August 2012.23

Hence, this petition.

The Ruling of this Court

We deny the petition.

Edilberto admitted that in unions between a man and a woman who are incapacitated to marry each other, the
ownership over the properties acquired during the subsistence of that relationship shall be based on the actual
contribution of the parties. He even quoted our ruling in Borromeo v. Descallar24 in his petition:

It is necessary for each of the partners to prove his or her actual contribution to the acquisition of property in order to be
able to lay claim to any portion of it. Presumptions of co-ownership and equal contribution do not apply.25

This is a reiteration of Article 148 of the Family Code, which the CA applied in the assailed decision:

Art 148. In cases of cohabitation [wherein the parties are incapacitated to marry each other], only the properties
acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by
them in common in proportion to their respective contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint
deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly
married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding
Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Applying the foregoing provision, the Vitas and Delpan properties can be considered common property if: (1) these
were acquired during the cohabitation of Esteban and Socorro; and (2) there is evidence that the properties were
acquired through the parties’ actual joint contribution of money, property, or industry.

Edilberto argues that the certificate of title covering the Vitas property shows that the parcel of land is co-owned by
Esteban and Socorro because: (1) the Transfer Certificate of Title was issued on 11 December 1980, or several months
after the parties were married; and (2) title to the land was issued to "Esteban Abletes, of legal age, married to Socorro
Torres."26

We disagree. The title itself shows that the Vitas property is owned by Esteban alone.1âwphi1 The phrase "married to
Socorro Torres" is merely descriptive of his civil status, and does not show that Socorro co-owned the property.27The
evidence on record also shows that Esteban acquired ownership over the Vitas property prior to his marriage to Socorro,
even if the certificate of title was issued after the celebration of the marriage. Registration under the Torrens title system
merely confirms, and does not vest title. This was admitted by Edilberto on page 9 of his petition wherein he quotes an
excerpt of our ruling in Borromeo:

Registration is not a mode of acquiring ownership. It is only a means of confirming the fact of its existence with notice to
the world at large. Certificates of title are not a source of right. The mere possession of a title does not make one the true
owner of the property. Thus, the mere fact that respondent has the titles of the disputed properties in her name does not
necessarily, conclusively and absolutely make her the owner. The rule on indefeasibility of title likewise does not apply to
respondent. A certificate of title implies that the title is quiet, and that it is perfect, absolute and indefeasible. However,
there are well-defined exceptions to this rule, as when the transferee is not a holder in good faith and did not acquire
the subject properties for a valuable consideration.

Edilberto claims that Esteban s actual contribution to the purchase of the Delpan property was not sufficiently proven
since Evangeline shouldered some of the amortizations.28 Thus, the law presumes that Esteban and Socorro jointly
contributed to the acquisition of the Del pan property.

We cannot sustain Edilberto s claim. Both the RTC-Manila and the CA found that the Delpan property was acquired prior
to the marriage of Esteban and Socorro.29 Furthermore, even if payment of the purchase price of the Delpan property
was made by Evangeline, such payment was made on behalf of her father. Article 1238 of the Civil Code provides:

Art. 1238. Payment made by a third person who does not intend to be reimbursed by the debtor is deemed to be a
donation, which requires the debtor s consent. But the payment is in any case valid as to the creditor who has accepted
it.

Thus, it is clear that Evangeline paid on behalf of her father, and the parties intended that the Delpan property would be
owned by and registered under the name of Esteban.

During trial, the Abuda spouses presented receipts evidencing payments of the amortizations for the Delpan
property.1âwphi1 On the other hand, Edilberto failed to show any evidence showing Socorro s alleged monetary
contributions. As correctly pointed out by the CA:

settled is the rule that in civil cases x x x the burden of proof rests upon the party who, as determined by the pleadings or
the nature of the case, asserts the affirmative of an issue. x x x. Here it is Appellant who is duty bound to prove the
allegations in the complaint which undoubtedly, he miserably failed to do so.30

WHEREFORE, the petition is DENIED. The Decision dated 9 March 2012 of the Court of Appeals in CA-G.R. CV No. 92330 is
AFFIRMED.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.*

Associate Justice

ARTURO D. BRION BIENVENIDO L. REYES**

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court s Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 11263 November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,

vs.
JOSE CAMPOS RUEDA, defendant-appellee.

Eduardo Gutierrez Repide and Felix Socias for appellant.

Sanz, Opisso and Luzuriaga for appellee.

TRENT, J.:

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 property.)

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 described.lawphil.net

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 enforcement 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.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-3047 May 16, 1951

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
GUADALUPE ZAPATA and DALMACIO BONDOC, defendants-appellees.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de los Angeles for appellant.
Francisco M. Ramos and Moises Sevilla Ocampo for appellee Dalmacio Bondoc.
Hernandez and Laquian for appellee Guadalupe Zapata.

PADILLA, J.:

In the Court of First Instance of Pampanga a complaint for adultery was filed by Andres Bondoc against Guadalupe
Zapata, his wife, and Dalmacio Bondoc, her paramour, for cohabiting and having repeated sexual intercourse during
the period from the year 1946 14 March 1947, the date of the filing of the complaint, Dalmacio Bondoc knowing his
codefendant to be a married woman (criminal case No. 426). The defendant wife entered the plea of guilty and was
sentenced to suffer four months of arresto mayor which penalty she served. In the same court, on 17 September 1948,
the offended husband filed another complaint for adulterous acts committed by his wife and her paramour from 15
March 1947 to 17 September 1948, the date of the filing of the second complaint (criminal case No. 735). On 21 February
1949, each of the defendants filed a motion to quash the complaint of the ground that they would be twice put in
jeopardy of punishment for the same offense. The trial court upheld the contention of the defendants and quashed the
second complaint. From the other sustaining the motions to quash the prosecution has appealed.

The trial court held that the adulterous acts charged in the first and second complains must be deemed one continuous
offense, the defendants in both complaints being the same and identical persons and the two sets of unlawful acts
having taken place continuously during the years 1946, 1947 and part of 1948, and that the acts or two sets of acts that
gave rise to the crimes of adultery complained of in both cases constitute one and the same offense, within the scope
and meaning of the constitutional provision that "No person shall be twice put in jeopardy of punishment for the same
offense.".

Adultery is a crime of result and not of tendency, as the Supreme Court of Spain has held (S. 10 December 1945); it is a
instantaneous crime which is consummated and exhausted or completed at the moment of the carnal union. Each
sexual intercourse constitutes a crime of adultery (Cuello Calon, Derecho Penal, Vol. II, p. 569). True, two or more
adulterous acts committed by the same defendants are against the same person — the offended husband, the same
status — the union of the husband and wife by their marriage, and the same community represented by the State for its
interest in maintaining and preserving such status. But this identity of the offended party, status society does not argue
against the commission of the crime of adultery as many times as there were carnal consummated, for as long as the
status remain unchanged, the nexus undissolved and unbroken, an encroachment or trespass upon that status
constitutes a crime. There is no constitutional or legal provision which bars the filing of as many complaints for adultery as
there were adulterous acts committed, each constituting one crime.

The notion or concept of a continuous crime has its origin in the juridical fiction favorable to the law transgressors and in
many a case against the interest of society (Cuello Calon, Derecho Penal, Vol. II, p. 521). For it to exist there would be
plurality of acts performed seperately during a period of time; unity of penal provision infringed upon or violated; and
unity of criminal intent or purpose, which means that two or more violations of the same penal provision are united in one
and the same intent leading to the perpetration of the same criminal purpose or aim (Ibid. p. 520).In the instant case the
last unity does not exist, because as already stated the culprits perpetrate the crime in every sexual intercourse and they
need not to another or other adulterous acts to consummate it. After the last acts of adultery had been committed as
charged in the first complaint, the defendants again committed adulterous acts not included in the first complaint and
for which the second complaint was filed. It was held by the Supreme Court of Spain that another crime of adultery was
committed, if the defendants, after their provincional release during the pendency of the case in which they were sent
to prison to serve the penalty imposed upon them(S. 28 February 1906; 76 Jur. Crim. pp. 208-210).

Another reason why a second complaint charging the commission of adulterous acts not included in the first complaint
does not constitute a violation of the double jeopardy clause of the constitution is that, if the second places complaint
the defendants twice in jeopardy of punishment for the same offense, the adultery committed by the male defendant
charged in the second complaint, should he be absolved from, or acquitted of, the first charge upon the evidence that
he did not know that his codefendant was a married woman, would remain or go unpunished. The defense set up by
him against the first charge upon which he was acquitted would no longer be available, because at the time of the
commission of the crime charged in the second complaint, he already knew that this defendant was a married woman
and he continued to have carnal knowledge of her. Even if the husband should pardon his adulterous wife, such pardon
would not exempt the wife and her paramour from criminal liability for adulterous acts committed after the pardon was
granted because the pardon refers to previous and not to subsequent adulterous acts(Viada [5th ed.] Vol. 5, p. 208;
Groizard [2nd ed.] Vol. 5, pp. 57-58).

The order appealed from, which quashed the second complaint for adultery, is hereby reversed and set aside, and trial
court directed to proceed with the trial of the defendants in accordance with law, with costs against the appellees.

Feria, Pablo, Tuason and Jugo, JJ., concur.

Paras, C.J., Bengzon and Montemayor, JJ., concur in the result.
Paras, C.J., Mr. Justice Reyes voted for the reversal.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 79284 November 27, 1987

FROILAN C. GANDIONCO, petitioner,

vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental, Branch 18, Cagayan de
Oro City, and TERESITA S. GANDIONCO, respondents.

PADILLA, J.:

A special civil action for certiorari, with application for injunction, to annul (1) the Order of the respondent Judge, dated
10 December 1986, ordering petitioner to pay support pendente lite to private respondent (his wife) and their child, and
(2) the Order of the same respondent Judge, dated 5 August 1987, denying petitioner's motion to suspend hearings in
the action for legal separation filed against him by private respondent as well as his motion to inhibit respondent Judge
from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court of Misamis
Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by respondent Judge, a complaint
against petitioner for legal separation, on the ground of concubinage, with a petition for support and payment of
damages. This case was docketed as Civil Case No. 10636. On 13 October 1986, private respondent also filed with the
Municipal Trial Court, General Santos City, a complaint against petitioner for concubinage, which was docketed on 23
October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for the provisional remedy of
support pendente lite, pending a decision in the action for legal separation, was filed by private respondent in the civil
case for legal separation. The respondent judge, as already stated, on 10 December 1986, ordered The payment of
support pendente lite.

In this recourse, petitioner contends that the civil action for legal separation and the incidents consequent thereto, such
as, application for support pendente lite, should be suspended in view of the criminal case for concubinage filed
against him the private respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on
Criminal Procedure, which states:

SEC. 3. Other Civil action arising from offenses. — Whenever the offended party shall have instituted
the civil action to enforce the civil liability arising from the offense. as contemplated in the first Section
1 hereof, the following rules shall be observed:

(a) After a criminal action has been commenced the pending civil action arising from the same
offense shall be suspended, in whatever stage it may be found, until final judgment in the criminal
proceeding has been rendered. . . .

The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such civil action arises
from, or is inextricably tied to the criminal action for concubinage, so that all proceedings related to legal separation will
have to be suspended to await conviction or acquittal for concubinage in the criminal case. Authority for this position is
this Court's decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1

Petitioner's contention is not correct.

In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would be proper if an
allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court
on criminal procedure, to wit:

Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law, the
following rules shall he observed:

(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the
offense charged is impliedly instituted with the criminal action, unless the offended party expressly
waives the civil action or reserves his right to institute it separately;

(b) Criminal and civil actions arising from the same offense may be instituted separately, but after the
criminal action has been commenced the civil action can not be instituted until final judgment has
been rendered in the criminal action;

(c) After a criminal action has been commenced, no civil action arising from the same offense can
be prosecuted and the same shall be suspended in whatever stage it may be found until final
judgment in the criminal proceeding has been rendered ... (Emphasis supplied)

The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended, with or upon
the filing of a criminal action, is one which is "to enforce the civil liability arising from the offense". In other words, in view
of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation, based on
concubinage, may proceed ahead of, or simultaneously with, a criminal action for concubinage, because said civil
action is not one "to enforce the civil liability arising from the offense" even if both the civil and criminal actions arise from
or are related to the same offense. Such civil action is one intended to obtain the right to live separately, with the legal
consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody of offsprings, support, and
disqualification from inheriting from the innocent spouse, among others. As correctly pointed out by the respondent
Judge in his Order dated 5 August 1987:
 The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-11935,
April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the
Rules of Court, which reads:

After a criminal action has been commenced, no civil action arising from the same
offense can be prosecuted and the same shall be suspended, in whatever stage it
may be found, until final judgment in the criminal proceeding has been rendered.
(Emphasis supplied)

The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions to enforce the
civil liability arising from the offense" as contemplated in the first paragraph of Section 1 of Rule 111-which is a civil action
"for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action
for the recovery of civil liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to
"Civil action arising from the offense."

As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at the conjugal
rights of the spouses and their relations to each other, within the contemplation of Articles 7 to 108, of the Civil Code."2

Petitioner also argues that his conviction for concubinage will have to be first secured before the action for legal
separation can prosper or succeed, as the basis of the action for legal separation is his alleged offense of concubinage.

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance of
evidence in the action for legal separation. 3 No criminal proceeding or conviction is necessary. To this end, the doctrine
in Francisco vs. Tayao 4 has been modified, as that case was decided under Act. No. 2710, when absolute divorce was
then allowed and had for its grounds the same grounds for legal separation under the New Civil Code, with the
requirement, under such former law, that the guilt of defendant spouses had to be established by final judgment in a
criminal action. That requirement has not been reproduced or adopted by the framers of the present Civil Code, and
the omission has been uniformly accepted as a modification of the stringent rule in Francisco v. Tayao.5

Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no proof of grave
abuse of discretion on the part of the respondent Judge in ordering the same. Support pendente lite, as a remedy, can
be availed of in an action for legal separation, and granted at the discretion of the judge. 6 If petitioner finds the amount
of support pendente lite ordered as too onerous, he can always file a motion to modify or reduce the same. 7

Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of supportpendente
lite and the denial of the motion to suspend hearings in the case, are taken by the petitioner as a disregard of
applicable laws and existing doctrines, thereby showing the respondent Judge's alleged manifest partiality to private
respondent.

Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a party's counsel,
as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case, on the
ground of bias and manifest partiality. This is more so, in this case, where we find the judge's disposition of petitioner's
motions to be sound and well-taken.

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Footnotes

1 G.R. No. L- 11935, 24 April 1959, 105 Phil. 1277 (1959),Unrep.

2 Rollo at 33.
 3 Petitioner himself admits this in his Rejoinder to plaintiff's Opposition to his Motion to Inhibit
Respondent Judge and Motion to Suspend Hearing wherein he states, "Concubinage is the same
criminal offense punishable under Art. 334 of the Revised Penal Code which in a case for legal
separation, the same may be proved based on preponderance of evidence". Rollo at 50.

4 50 Phil. 42 (1927)

5 Padilla, I CIVIL CODE ANNOTATED 526 (1975); Paras, I CIVIL CODE OF THE PHILIPPINES ANNOTATED
374 (1971); Tolentino, I COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES
311 (1983). Tolentino qualifies: " It is not mere sexual infidelity that constitutes the ground for legal
separation. Such infidelity must constitute adultery or concubinage as defined by the Revised Penal
Code." (Id. at 310). Further: "There would be no more legal obstacle to a decree of legal separation at
the instance of an offended wife, based on an act of infidelity for which the guilty husband has been
convicted of adultery upon the complaint of his paramour's husband so long as such act may also
constitute concubinage and can be proven in the legal separation proceedings. We submit that the
new Code, by omitting the requirement of criminal conviction of adultery or concubinage, as the
case may be, has modified the doctrine in the case of Francisco v. Tayao."(Id. at 311).

It may be noted that under Article 55(6) of the Family Code of the Philippines (Executive Order No. 209
as ammended) soon to take effect, sexual infidelity or perversion of either spouse has replaced
adultery on the part of the wife and concubinage on the part of the husband as defined by the
Revised Penal Code (Art. 97, New Civil Code) as one of the grounds for legal separation.

6 Araneta v. Concepcion, et al., 99 Phil. 709 (1956).

7 Sec. 5, Rule 61 of the Rules of Court states:

Order.- The court shall determine provisionally the pertinent facts, and shall render such order as
equity and justice may require, having due regard to the necessities of the applicant, the means of
the adverse party, the probable outcome of the case, and such other circumstances as may aid in
the proper elucidation of the question involved. If the application is granted, the court shall fix the
amount of money to be provissionally paid, and the terms of payment. If the application is denied,
the trial of the principal case on its merit shall be held as early as possible.

FELICIDAD P. MUÑOZ vs. JOSE DEL BARRIO.

No. 12506-R. April 15, 1955

FELICIDAD P. MUÑOZ, petitioner and appellant, vs. JOSE DEL BARRIO, respondent and appellee
APPEAL from a judgment of the Court of First Instance of Bulacan. Ysip, J.
Manuel Y. Macias for petitioner and appellant.
Jose del Barrio in his own behalf as respondent and appellee.
FELIX, J.:
Felicidad P. Muñoz and Jose del Barrio were married civilly before Judge Natividad Almeda Lopez of the Municipal
Court of Manila on September 24, 1942 and again canonically on October 24 of that year before the Catholic Minister
Fr. Antonio Albrecht. Since their marriage the couple lived together as husband and wife for the ensuing six months in the
house of the husband’s father at Rizal Avenue, Manila, and then moved their residence to the municipality of
Maycawayan, Bulacan. Out of this union were born Felix Luis del Barrio and Maria Teresa del Barrio who must be actually
11 and 9 years old, respectively.
It seems that during their married life this couple had frequent quarrels, on which occasions the husband maltreated his
wife by deed, and because the latter was unable to bear such punishment, in 1947 they unceremoniously separated,
the wife staying in Meycawayan and the husband in the house of his father at 2110 Rizal Avenue, Manila.
Notwithstanding this separation of dwellings they met each other in the City of Manila, and the wife claims that in
December, 1950, or January, 1951, and in September of the latter year she was again maltreated by her husband. This
moved her to institute the present action alleging in the petition filed on October 26, 1951, in the Court of First Instance of
Bulacan, among other things, that the system of conjugal partnership of gains governs her marriage to the respondent;
that no property has been acquired during the marriage of the petitioner and respondent except a portion of a
residential land located in Meycawayan, Bulacan, from which no rentals are derived; that respondent has made several
attempts on the life of the herein petitioner which compelled her to live separately and apart from the respondent since
1947; and that respondent has not provided support for petitioner and their children. Hence she prays the court:
(a) that a decree be entered for the legal separation of petitioner from respondent;
(b) that petitioner be awarded the custody of their minor children Felix del Barrio and Maria Teresa del Barrio by
herein respondent;
(c) that respondent be directed to contribute to the support of said children;
(d) that petitioner be allowed costs, plus attorney’s fees in the sum of P200 in this instance, to be charged against
the conjugal partnership property referred to in paragraph 4 above, pursuant to Article 293 of the Civil Code of the
Philippines;
(e) that whatever shall remain of said conjugal partnership property after deduction of the expenses mentioned in
the next preceding paragraph, be divided and adjudicated in equal parts to herein petitioner and respondent and the
conjugal partnership dissolved and liquidated; and
(f) that petitioner be granted such further and complete relief as may be just and equitable in the premises.
On November 12, 1951, respondent filed his answer to the petition denying the averments made in his wife’s pleading
and prayed the court that the petition be denied and dismissed for lack of merit, it being contrary to moral and good
customs and not authorized or sanctioned by statute, praying further for such other relief as provided by law, with costs
de oficio.
After the issues were joined, the court, in compliance with the provisions of Article 98 of the new Civil Code, took every
feasible step towards the reconciliation of the spouses, but His Honor failed in his purpose by reason of the determined
refusal of the wife to yield to the efforts of the Judge to that end. Hence the case proceeded with the intervention of the
office of the Provincial Fiscal of Bulacan. After hearing the Court rendered decision the dispositive part of which,
translated into English, is as follows:
“IN VIEW OF THESE CONSIDERATIONS, the Court is of the opinion and so holds that the present complaint must be, as it is
hereby, dismissed for lack of merits; without costs.”
Not satisfied with the outcome of her petition, Felicidad P. Muñoz appealed from said judgment, and in this instance her
counsel maintains that the lower court erred:
1. In not finding that respondent-appellee had made attempts on the life of petitioner-appellant;
2. In not decreeing legal separation and in dismissing petitioner-appellant’s action without costs; and
3. In not awarding attorney’s fees to petitioner-appellant.
The new Civil Code prescribes the following:
“Art. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage on the part of the husband, as defined in the Penal
Code; or
(2) An attempt by one spouse against the life of the other.”
In the case at bar the alleged maltreatments to the wife by the husband occurred before their separation a mensa et
thoro in 1947 must not have amounted to said husband’s attempts on the life of his wife, since the latter did not institute
any action for the legal separation from him upon the effectivity of the Civil Code on August 30, 1950, and this case was
only brought to court on October 26, 1951, after the alleged maltreatment of September 1951 had taken place.
Therefore, in this appeal we only have to determine whether the maltreatments that appellant suffered at the hands of
the respondent after their separation of dwelling, which allegedly occurred in December, 1950, or January, 1951, and
September of the latter year, furnish ground for the legal separation applied for under paragraph 2 of Article 97 of the
Civil Code.
In appellant’s brief mention is made of the testimonies of Jovita Faustino, a tenant of apartment No. 2068 Ipil St., Manila,
owned by appellant’s father, Felix Muñoz, of Meycawayan, Bulacan, and referring to the quarrel that the spouses had in
March of 1950; of Faustino Mallari, patrolman in the Manila Police Department, referring to the spouses’ encounter in
December, 1950, or January, 1951; of appellant’s counsel, Attorney Manuel M. Macias, relative to the occasion in which
the spouses met at his office on or about September 30, 1951; and of appellant herself. The maltreatment referred to by
Jovita Faustino consisted merely in appelle’s giving a fist blow on the face of appellant. Patrolman Mallari did not witness
the maltreatment on which he testified, for he was called by appellant to intervene in the quarrel between the spouses
when it was already over, and the only thing he noticed was that she was crying and that there were certain scratches
on her brow and cheeks and on certain points of the neck which were blackened (ecchymosis). About the quarrel
spoken of by Attorney Macias, the latter declared that appelle boxed his wife on the abdomen, pulled her hair and had
also twisted her neck when said attorney, Leoncio Santos and Jose Enriquez separated petitioner and respondent.
An attempt on the life of a person implies that the actor in the attempt is moved by an intention to kill the person against
whom the attempt is made, and after a careful examination of the evidence produced by appellant we cannot make
up our mind to declare that the alleged maltreatments of respondent to his wife were moved by such intent to kill. On
the contrary, we share the opinion of the trial judge who declared that said maltreatments cannot constitute attempts
on the life of appellant as provided in Article 97, No.2, of the Civil Code of the Philippines.
From the second edition of the Revised Penal Code by Dean Vicente J. Francisco – Book II, part 1, pp. 671-672 – we copy
the following:
“In the prosecutions for frustrated or attempted homicide, the intention to take life must be proved with the same
degree of certainty as is required with respect to other elements of the crime, and the inference of such intent should
not be drawn in the absence of circumstances sufficient to prove such intention beyond reasonable doubt (People vs.
Villanueva, 51 Phil., 448). It is absolutely necessary that the homicidal intent be evidenced by adequate acts which at
the time of their execution were unmistakably calculated to produce the death of the victim, since the crime of
frustrated or attempted homicide is one in which, more than in any other case, the penal law is based upon the material
results produced by the criminal act. It is not proper or just to attribute to the delinquent a specific intent to commit the
higher crime in the absence of proof to justify such a conclusion (U.S. vs. Taguibao, 1 Phil., 16). Conformably to this rule,
therefore, an accused who, upon seeing a man plowing the land which was the subject matter of a dispute,
immediately attacks the latter, inflicting blows upon his neck with the back of the bolo, must be convicted of physical
injuries, and not of frustrated homicide, because the mere fact that the assault was committed with the back instead of
the cutting edge of the bolo negatives the idea of homicidal intent and precludes the crime from constituting frustrated
homicide.” (U.S. vs. Taguibao, 1 Phil., 16).
“Nothing is more difficult to discover than intention, this being a mental act; we are only able to deduce it from the
external acts performed by the agent, and when these acts have naturally given a definite result, courts should not
without clear and conclusive proof, hold that some other result was intended (U.S. vs. Mendoza, 38 Phil., 691, 693)> It is
always to be remembered that ‘the first and simplest presumption which, as stated above, the law draws with respect to
human conduct, in connection with acts of violence, is that the actor intended the natural consequence of his acts;
and this presumption should be implied in a fair and rational way, with proper regard to all the details of the act, and
without the suppression of any of its elements’. *** Likewise, where the accused inflicted a scalp wound with a hatchet
and struck at his victim a second time, it should not be inferred, from the mere fact that a hatchet in the hands of an
infuriated man is a deadly weapon, that the accused really intended to kill (People vs. Villanueva, 51 Phil., 488). When
criminal liability is made to consist in the intention to perform an act which was not realized, the facts from which it is
claimed that intention sprang must be such as to exclude all contrary supposition. When this intention is not necessarily
disclosed by the acts performed by the defendant, greater importance should not be given to such acts than that
which they in themselves import, nor should the defendants’ liability be extended beyond that which is actually involved
in the material results of the act.” (U.S. vs Mendoza, 38 Phil., 691).
In the case of U.S. vs. Reyes et al., 30 Phil., 551, the Highest Tribunal of the land said the following:
“Homicide; Criminal intent. – When the case affords no good reason for holding that the assailants positively intended to
kill the injured party in spite of the persistent and repeated beatings they gave him, however much they plainly
demonstrated their intention of doing him injury, by striking him in an inhuman manner on various parts of his body, it is
improper to classify the crime as either frustrated or attempted homicide. A personal assault must be punished
according to its consequences and the harm done to the victim, for the penal law in this class of crimes is only
concerned with the material results produced by the transgression, unless the perverse intention of taking the victim’s life
be clearly manifested.”
In the maltreatments complained of in this case, the respondent only used at most his bare fists or hands and desisted
from giving further chastisement after the first blows were given at the spur of the impulse. It is argued, however, that this
is a civil case and that appellant is only bound to prove her right of action by preponderance of evidence and not by
evidence beyond reasonable doubt upon which a conviction for attempted paricide would rest, and though we may,
to a certain extent, agree with counsel for appellant on this point, yet we cannot help but declare that in so far as the
intent to kill is concerned, it must be established with clear and convincing evidence, and that in the case at bar said
intent has not been proved by such evidence. Petitioner-appellant herself should not have been so sure of her evidence
when instead of the present action she dared not cause the prosecution of her husband for attempted parricide as a
means of establishing her right to secure the legal separation she applies for in this case.
Wherefore, the decision appealed from, being in conformity with the law and the evidence of record, is hereby affirmed
without pronouncement as to costs.

It is so ordered.

Peña and Makalintal, JJ., concur.

Judgment affirmed.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-29138 May 29, 1970

ELENA CONTRERAS, plaintiff-appellant,

vs.
CESAR J. MACARAIG, defendant-appellee.

Jose T. Nery for plaintiff-appellee.

The City fiscal for defendant-appellant.

Cesar J. Macaraig in his own behalf.

DIZON, J.:

Appeal taken by Elena Contreras from a decision of the Juvenile and Domestic Relations Court of Manila in Civil Case
No. 00138 dismissing her complaint upon the ground that the same was filed more than one year from and after the
date on which she had become cognizant of the cause for legal separation.

The following, facts found by the trial court are not in dispute:

Plaintiff and defendant were married on March 16, 1952 in the Catholic Church of Quiapo, Manila.
Out of their Marriage, three children were born: Eusebio C. Macaraig, on January 11, 1953; Victoria C.
Macaraig, on March 26, 1956; and Alexander C. Macaraig, on August 4, 1958. All the children are in
the care of plaintiff wife.

Sometime in 1958, the couple acquired rights, as lessee and purchaser under a conditional sale
agreement, to own a house and lot, known as Lot 4, Block 8 of the Philamlife Homes in Quezon City
which they transferred in favor of their three children on October 29, 1958 (Exh. F). Installment
payments are being made by plaintiff's father. The spouses own no other conjugal property.

Immediately before the election of 1961, defendant was employed as manager of the printing
establishment owned by plaintiff's father known as the MICO Offset. In that capacity, defendant met
and came to know Lily Ann Alcala, who place orders with MICO Offset for propaganda materials for
Mr. Sergio Osmeña, who was then a Vice-Presidential candidate. After the elections of 1961,
defendant resigned from MICO Offset to be a special agent at Malacañang. He began to be away
so often and to come home very late. Upon plaintiff's inquiry, defendant explained that he was out on
a series of confidential missions.

In September, 1962, Avelino Lubos, driver of the family car, told plaintiff that defendant was living in
Singalong with Lily Ann Alcala. When defendant, the following October, returned to the conjugal
home, plaintiff refrained from verifying Lubos' report from defendant in her desire not to anger nor
drive defendant away. Although plaintiff, in April 1963, also received rumors that defendant was seen
with a woman who was on the family way on Dasmariñas St., she was so happy that defendant again
return to the family home in May, 1963 that she once more desisted from discussing the matter with
him because she did not wish to precipitate a quarrel and drive him away. All this while, defendant, if
and whenever he returned to the family fold, would only stay for two or three days but would be gone
for a period of about a month.

After plaintiff received reports that Lily Ann Alcala had given birth to a baby, she sent Mrs. Felicisima
Antioquia, her father's employee, to verify the reports. The latter was driven by Lubos to the house in
Singalong and between 5:00 and 6:00 o'clock that afternoon, she saw defendant was carrying a
baby in his arms. Mrs. Antioquia then went to the parish priest of Singalong where she inquired about
the child of Cesar Macaraig and Lily Ann Alcala and she was given a copy of the baptismal
certificate of Maria Vivien Mageline Macaraig (Exh. G) which she gave to plaintiff sometime in
October, 1963.

Plaintiff then entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to
convince him to return to his family. Mr. Macaraig, after talking to his son and seeking him with the
latter's child told plaintiff that he could not do anything.

In November, 1963, plaintiff requested the cooperation of defendant's older sister, Mrs. Enriqueta
Majul, and the latter obliged and arranged a meeting at her home in Buendia between plaintiff and
Lily Ann Alcala. Lily Ann said she was willing to give up defendant as she had no desire to be accused
criminally but it was defendant who refused to break relationship with her.

In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and
Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on España
Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where
plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home,
assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no longer
leave Lily Ann and refused to return to his legitimate family.
 On December 14, 1963, plaintiff instituted the present action for legal separation. When defendant
did not interpose any answer after he was served summons, the case was referred to the Office of the
City Fiscal of Manila pursuant to the provisions of Article 101 of the Civil Code. After a report was
received from Asst. Fiscal Primitivo M. Peñaranda that he believed that there was no collusion present,
plaintiff was allowed to present her evidence. Defendant has never appeared in this case.

The reasons relied upon by the trial court in dismissing the complaint are set forth in the appealed decision as follows:

Under the facts established by plaintiff's evidence, although the infidelity of the husband is apparent,
yet the case will have to be dismissed. Article 102 provides that, an action for legal separation cannot
be instituted except within one year after plaintiff "became cognizant of the cause." In the absence
of a clear-cut decision of the Supreme Court as to the exact import of the term "cognizant," the
practical application of said Article can be attended with difficulty. For one thing; that rules might be
different in case of adultery, which is an act, and for concubinage, which may be a situation or a
relationship.

In respect of concubinage, the word 'cognizant' may not connote the date when proof thereof
sufficient to establish the cause before a court of law is possessed. Otherwise, the one year period
would be meaningless for practical purposes because all a wife would have to do would be to claim
that the necessary proof was secured only within one year before the filing of the complaint. On the
other hand, it should be hard to concede that what the law envisages (and, in a way, encourages) is
the filing of a complaint within one year after the innocent spouses has received information of the
other's infidelity, howsoever baseless the report might be.

The Court believes that the correct rule lies between the two extremes. At the time a wife acquired
information, which can be reasonably relied upon as true, that her husband is living in concubinage
with another woman, the one-year period should be deemed to have started even if the wife shall
not then be in possession of proof sufficient to establish the concubinage before a court of law. The
one-year period may be viewed, inter alia, as an alloted time within which proof should be secured. It
is in the light of this rule that the Court will determine whether or not plaintiff's action for legal
separation has prescribed.

After her husband resigned from MICO Offset to be a special agent in Malacañan, subsequent to the
elections of 1961, he would seldom come home. He allayed plaintiff's suspicions with the explanation
that he had been away on 'confidential missions.' However, in September, 1962, Avelino Lubos,
plaintiff's driver, reported to plaintiff that defendant was living in Singalong with Lily Ann Alcala. As a
matter of fact, it was also Lubos who brought Mrs. F. Antioquia (when plaintiff had asked to verify the
reports) to the house in Singalong where she saw defendant, Lily Ann and the baby.

The requirement of the law that a complaint for legal separation be filed within one year after the
date plaintiff become cognizant of the cause is not of prescriptive nature, but is of the essence of the
cause of action. It is consonant with the philosophy that marriage is an inviolable social institution so
that the law provides strict requirements before it will allow a disruption of its status.

In the instant action, the Court has to find that plaintiff became cognizant of defendant's infidelity in
September, 1962. Plaintiff made successive attempts to induce the husband to amend his erring ways
but failed. Her desire to bring defendant back to the connubial fold and to preserve family solidarity
deterred her from taking timely legal action.

The only question to be resolved is whether the period of one year provided for in Article 102 of the Civil Code should be
counted, as far as the instant case is concerned from September 1962 or from December 1963. Computing the period of
one year from the former date, it is clear that plaintiff's complaint filed on December 14, 1963 came a little too late, while
the reverse would be true if said period is deemed to have commenced only in the month of December 1963.

The period of "five years from after the date when such cause occurred" is not here involved.

Upon the undisputed facts it seems clear that, in the month of September 1962, whatever knowledge appellant had
acquired regarding the infidelity of her husband, that is, of the fact that he was then living in Singalong with Lily Ann
Alcala, was only through the information given to her by Avelino Lubos, driver of the family car. Much as such hearsay
information had pained and anguished her, she apparently thought it best — and no reasonable person may justifiably
blame her for it — not to go deeper into the matter herself because in all probability even up to that time,
notwithstanding her husband's obvious neglect of his entire family, appellant still cherished the hope — however forlorn
— of his coming back home to them. Indeed, when her husband returned to the conjugal home the following October,
she purposely refrained from bringing up the matter of his marital infidelity "in her desire not to anger nor drive defendant
away" — quoting the very words of the trial court. True, appellant likewise heard in April 1963 rumors that her husband
was seen with a woman on the family way on Dasmariñas Street, but failed again to either bring up the matter with her
husband or make attempts to verify the truth of said rumors, but this was due, as the lower court itself believed, because
"she was so happy that defendant again returned to the family home in May 1963 that she once more desisted from
discussing the matter with him because she did not wish to precipitate a quarrel and drive him away." As a matter of
fact, notwithstanding all these painful informations which would not have been legally sufficient to make a case for legal
separation — appellant still made brave if desperate attempts to persuade her husband to come back home. In the
words of the lower court, she "entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to
convince him to return to his family" and also "requested the cooperation of defendant's older sister, Mrs. Enriqueta
Majul" for the same purpose, but all that was of no avail. Her husband remained obdurate.

After a careful review of the record, We are persuaded that, in the eyes of the law, the only time when appellant really
became cognizant of the infidelity of her husband was in the early part of December 1963 when, quoting from the
appealed decision, the following happened —

In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and
Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on España
Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where
plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home,
assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no longer
leave Lily Ann and refused to return to his legitimate family.

From all the foregoing We conclude that it was only on the occasion mentioned in the preceding
paragraph when her husband admitted to her that he was living with and would no longer leave Lily
Ann to return to his legitimate family that appellant must be deemed to be under obligation to
decide whether to sue or not to sue for legal separation, and it was only then that the legal period of
one year must be deemed to have commenced.

WHEREFORE, the decision appealed from is set aside and another is hereby rendered holding that appellant is entitled to
legal separation as prayed for in her complaint; and the case is hereby remanded to the lower court for appropriate
proceedings in accordance with law.

Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Concepcion, C.J., concurs in the result.

Castro, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-30977 January 31, 1972

CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,

vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.

Jose W. Diokno for petitioner-appellant.

D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the
Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on
the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the
case, abated the cause of action as well as the action itself. The dismissal order was issued over the objection of
Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to
have the case prosecuted to final judgment.

On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the
main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they had lived
together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child; that
they acquired properties during their marriage; and that she discovered her husband cohabiting with a Chinese woman
named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal
separation, which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his share of
the conjugal partnership profits.

In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special
defenses, and, along with several other claims involving money and other properties, counter-claimed for the
declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage,
celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.

Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could
be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969),
petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court
of her death.

On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation"1 on two (2) grounds, namely:
that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code;
and that the death of Carmen abated the action for legal separation.

On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario
Lapuz. Counsel for Eufemio opposed the motion.

On 29 July 1969, the court issued the order under review, dismissing the case.2 In the body of the order, the court stated
that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the
plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the
motion was denied on 15 September 1969.

After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and
domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course
and answer thereto was filed by respondent, who prayed for the affirmance of the said order.3

Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them
after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the
affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the
Eufemio-Lapuz marriage to be null and void ab initio.

But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute — for the lower court did not act on the motion
for substitution) stated the principal issue to be as follows:

When an action for legal separation is converted by the counterclaim into one for a declaration of
nullity of a marriage, does the death of a party abate the proceedings?

The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of
nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the
dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the
counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. They
are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the
counterclaim, for legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage as
a pre-condition.

The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation,
abate the action? If it does, will abatement also apply if the action involves property rights? .

An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there
being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its
Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by
providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of
legal separation already rendered. Being personal in character, it follows that the death of one party to the action
causes the death of the action itself — actio personalis moritur cum persona.

... When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved.
The heirs cannot even continue the suit, if the death of the spouse takes place during the course of
the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass.
req., May 8, 1933, D. H. 1933, 332.")4 .

Marriage is a personal relation or status, created under the sanction of law, and an action for divorce
is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of
a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such
action abates the action, for the reason that death has settled the question of separation beyond all
controversy and deprived the court of jurisdiction, both over the persons of the parties to the action
and of the subject-matter of the action itself. For this reason the courts are almost unanimous in
holding that the death of either party to a divorce proceeding, before final decree, abates the
action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of
Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich,
620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185,
45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5

The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1
Corpus Juris 208).

A review of the resulting changes in property relations between spouses shows that they are solely the effect of the
decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. On the
point, Article 106 of the Civil Code provides: .

Art. 106. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not
be severed; .

(2) The conjugal partnership of gains or the absolute conjugal community of property shall be
dissolved and liquidated, but the offending spouse shall have no right to any share of the profits
earned by the partnership or community, without prejudice to the provisions of article 176;

(3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise
directed by the court in the interest of said minors, for whom said court may appoint a guardian;

(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent one
shall be revoked by operation of law.

From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute
community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or
community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of
testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by
the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and
intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is
not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant
continuation of the action through a substitute of the deceased party.

Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of the deceased to appear and to be substituted
for the deceased, within a period of thirty (30) days, or within such time as may be granted...

The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in
Section 1, Rule 87, of the Revised Rules of Court:

SECTION 1. Actions which may and which may not be brought against executor or administrator. No
action upon a claim for the recovery of money or debt or interest thereon shall be commenced
against the executor or administrator; but actions to recover real or personal property, or an interest
therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to
person or property, real or personal, may be commenced against him.

Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration..

A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are
involved, is that these rights are mere effects of decree of separation, their source being the decree itself; without the
decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in
expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing
a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain
unborn.

As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz, it
is apparent that such action became moot and academic upon the death of the latter, and there could be no further
interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights
acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined
in a proper action for partition by either the appellee or by the heirs of the appellant.

In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of
the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for
seven consecutive years, or when she had been generally believed dead, still the action for annulment became
extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code,
requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And
furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be
carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment proceeding.

ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No
special pronouncement as to costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Footnotes

1 Per Annex "G" to Petition, rollo, pages 96-98, being the motion to dismiss.

2 Per Annex "I" to Petition, rollo, pages 132-137, being the order of dismissal.

3 Answer, rollo, pages 174-182.

4 Planiol, Civil Law Treatise, Vol. 1, Part 1, pages 658-659.

5 Bushnell v. Cooper, 124 N. E. 521, 522.

 6 "Art. 144. When a man and a woman live together as husband and wife, but they are not married,
or that marriage is void from the beginning, the property acquired by either or both of them through
their work or industry or their wages and salaries shall be governed by the rules on co-ownership."

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-11766 October 25, 1960

SOCORRO MATUBIS, plaintiff-appellant,

vs.
ZOILO PRAXEDES, defendant-appellee.

Luis N. de Leon for appellant.

Lucio La. Margallo for appellee.

PAREDES, J.:

Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the Court of First Instance of Camarines
Sur, on April 24, 1956, a complaint for legal Separation and changed of surname against her husband defendant Zoilo
Praxedes.

The allegations of the complaint were denied by defendant spouse, who interposed the defense that it was plaintiff who
left the conjugal home.

During the trial, wherein the plaintiff alone introduced oral as well as documentary evidence, the following facts were
established:.

Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For failure to agree on how they
should live as husband and wife, the couple, on May 30, 1944, agreed to live separately from each other, which status
remained unchanged until the present. On April 3, 1948, plaintiff and defendant entered into an agreement (Exhibit B),
the significant portions of which are hereunder reproduced..

. . . (a) That both of us relinquish our right over the other as legal husband and wife.

(b) That both without any interference by any of us, nor either of us can prosecute the other for adultery or
concubinage or any other crime or suit arising from our separation.

(c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he may received
thereafter, nor I the husband is not entitled for anything from my wife.

(d) That neither of us can claim anything from the other from the time we verbally separated, that is from May
30, 1944 to the present when we made our verbal separation into writing.

In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September 1, 1955, said Asuncion
gave birth to a child who was recorded as the child of said defendant (Exh. C.).It was shown also that defendant and
Asuncion deported themselves as husband and wife and were generally reputed as such in the community.

After the trial, without the defendant adducing any evidence, the court a quo rendered judgment holding that the acts
of defendant constituted concubinage, a ground for legal separation. It however, dismissed the complaint by stating:

While this legal ground exist, the suit must be dismissed for two reasons, viz:

Under Art. 102 of the new Civil Code, an action for legal separation cannot be filed except within one year
from and after the date on which the plaintiff became cognizant of the cause and within five years from and
 after the date when the cause occurred. The plaintiff became aware of the illegal cohabitation of her
husband with Asuncion Rebulado in January, 1955. The complaint was filed on April 24, 1956. The present action
was, therefore, filed out of time and for that reason action is barred.

Article 100 of the new Civil Code provides that the legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent to the adultery or concubinage. As shown in
Exhibit B, the plaintiff has consented to the commission of concubinage by her husband. Her consent is clear
from the following stipulations:

(b) That both of us is free to get any mate and live with as husband and wife without any interference
by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime
or suit arising from our separation. (Exh. B).

This stipulation is an unbridled license she gave her husband to commit concubinage. Having consented to the
concubinage, the plaintiff cannot claim legal separation.

The above decision is now before us for review, plaintiff- appellant claiming that it was error for the lower court to have
considered that the period to bring the action has already elapsed and that there was consent on the part of the
plaintiff to the concubinage. The proposition, therefore, calls for the interpretation of the provisions of the law upon
which the lower court based its judgment of dismissal.

Article 102 of the new Civil Code provides:

An action for legal separation cannot be filed except within one year from and after the date on which the
plaintiff became cognizant of the cause and within five years from after the date when cause occurred.

The complaint was filed outside the periods provided for by the above Article. By the very admission of plaintiff, she
came to know the ground (concubinage) for the legal separation in January, 1955. She instituted the complaint only on
April 24, 1956. It is to be noted that appellant did not even press this matter in her brief.

The very wording of the agreement Exhibit B. gives no room for interpretation other than that given by the trial judge.
Counsel in his brief submits that the agreement is divided in two parts. The first part having to do with the act of living
separately which he claims to be legal, and the second part — that which becomes a license to commit the ground for
legal separation which is admittedly illegal. We do not share appellant's view. Condonation and consent on the part of
plaintiff are necessarily the import of paragraph 6(b) of the agreement. The condonation and consent here are not only
implied but expressed. The law (Art. 100 Civil Code), specifically provides that legal separation may be claimed only by
the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Having
condoned and/or consented in writing, the plaintiff is now undeserving of the court's sympathy (People vs.
Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the complaint should be dismissed. He claims
however, that the grounds for the dismissal should not be those stated in the decision of the lower court, "but on the
ground that plaintiff and defendant have already been legally separated from each other, but without the marital bond
having been affected, long before the effectivity of the new Civil Code" (appellants brief, pp. 7-8). Again, we cannot
subscribed to counsel's contention, because it is contrary to the evidence.

Conformably with the foregoing, we find that the decision appealed from is in accordance with the evidence and the
law on the matter. The same is hereby affirmed, with costs.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, and Gutierrez David, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10033 December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,

vs.
LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant.
Numeriano Tanopo, Jr. for appellee.

FELIX, J.:

This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the defendant,
the case was dismissed. The order of dismissal was appealed to the Court of Appeals, but said Tribunal certified the case
to the Court on the ground that there is absolutely no question of fact involved, the motion being predicated on the
assumption as true of the very facts testified to by plaintiff-husband.

The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United States Navy, was
married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately
after their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila. After some time, or about
July, 1951, Leonila Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone to
reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local
college there.

As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister-in-law) and
some from anonymous writers(which were not produced at the hearing) informing him of alleged acts of infidelity of his
wife which he did not even care to mention. On cross-examination, plaintiff admitted that his wife also informed him by
letter, which she claims to have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in
October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him and his
wife on account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal
department.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one Mrs.
Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro Bugayong, a
cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they
repaired to the plaintiff's house and again passed the night therein as husband and wife. On the second day, Benjamin
Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but
Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of
infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to find her,
he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".

On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal
separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the averments of the
complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was not
possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6
witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for the
dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to
answer the same.

The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the allegations of the
commission of "acts of rank infidelity amounting to adultery", the cause of action, if any, is barred by the statute of
limitations; (2) That under the same assumption, the act charged have been condoned by the plaintiff-husband; and (3)
That the complaint failed to state a cause of action sufficient for this court to render a valid judgment.

The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the motion to
dismiss i. e., condonation, ordered the dismissal of the action. After the motion for reconsideration filed by plaintiff was
denied, the case was taken up for review to the Court of Appeals, appellant's counsel maintaining that the lower court
erred:

(a) In so prematurely dismissing the case;

(b) In finding that there were condonation on the part of plaintiff-appellant; and
 (c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a
motion to dismiss.

As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case to Superiority.

The Civil Code provides:

ART. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the
Penal Code; or

(2) An attempt by one spouse against the life of the other.

ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot by either of them. Collusion between the parties to obtain legal separation shall cause the
dismissal of the petition.

ART. 102. An action for legal separation cannot be filed except within one year from and after the date on
which the plaintiff became cognizant of the cause and within five years from and after the date when such
cause occurred.

As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of adultery
that the plaintiff-husband had preferred in the complaint against his wife, We will disregard the other 2 grounds of the
motion to dismiss, as anyway they have not been raised in appellant's assignment of errors.

Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouver's
Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a matrimonial
offense which the latter has committed". It is to be noted, however, that in defendant's answer she vehemently and
vigorously denies having committed any act of infidelity against her husband, and even if We were to give full weight to
the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and link such evidence
with the averments of the complaint, We would have to conclude that the facts appearing on the record are far from
sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery"
preferred against the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law Valeriana
Polangco, which must have been too vague and indefinite as to defendant's infidelity to deserve its production in
evidence; nor the anonymous letters which plaintiff also failed to present; nor the alleged letter that, according to
plaintiff, his wife addressed to him admitting that she had been kissed by one Eliong, whose identity was not established
and which admission defendant had no opportunity to deny because the motion to dismiss was filed soon after plaintiff
finished his testimony in Court, do not amount to anything that can be relied upon.

But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the assumption that
he really believed his wife guilty of adultery. What did he do in such state of mind. In August, 1952, he went to
Pangasinan and looked for his wife and after finding her they lived together as husband and wife for 2 nights and 1 day,
after which he says that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain his
purpose because his wife, instead of answering his query on the matter, preferred to desert him, probably enraged for
being subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude of
sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to a condonation of
her previous and supposed adulterous acts? In the order appealed from, the Court a quo had the following to say on
this point:

In the hearing of the case, the plaintiff further testified as follows:

Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this Hon. Court
why you want to separate from your wife? — A. I came to know that my wife is committing adultery, I consulted
the chaplain and he told me to consult the legal adviser. (p. 11, t.s.n.)

Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to the house of our
god-mother, and as a husband I went to her to come along with me in our house but she refused. (p. 12,
t.s.n.)lawphil.net
Q. What happened next? — A. I persuaded her to come along with me. She consented but I did not bring her
home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)

Q. How long did you remain in the house of your cousin Pedro Bugayong? — A. One day and one night. (p. 12.
t.s.n.)

Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did you slept
together? — A. Yes, sir. (p. 19, t.s.n.)

Q. On the next night, when you slept in your own house, did you sleep together also as husband and wife? —
A. Yes, sir. (p. 19. t.s.n.)

Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)

Q. How many nights did you sleep together as husband and wife? — A. Only two nights. (p. 19, t.s.n.)

The New Civil Code of the Philippines, in its Art. 97, says:

A petition for legal separation may be filed:

(1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the Penal
Code.

and in its Art. 100 it says:lawphil.net

The legal separation may be claimed only by the innocent spouse, provided there has been no condonation
of or consent to the adultery or concubinage. Where both spouses are offenders, legal separation cannot be
claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of
the petition.

A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above,
clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank infidelity
amounting to adultery" committed by defendant-wife. Admitting for the sake of argument that the infidelities
amounting to adultery were committed by the defendant, a reconciliation was effected between her and the
plaintiff. The act of the latter in persuading her to come along with him, and the fact that she went with him
and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as
husband and wife for one day and one night, and the further fact that in the second night they again slept
together in their house likewise as husband and wife — all these facts have no other meaning in the opinion of
this court than that a reconciliation between them was effected and that there was a condonation of the wife
by the husband. The reconciliation occurred almost ten months after he came to know of the acts of infidelity
amounting to adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is implied from
sexual intercourse after knowledge of the other infidelity. such acts necessary implied forgiveness. It is entirely
consonant with reason and justice that if the wife freely consents to sexual intercourse after she has full
knowledge of the husband's guilt, her consent should operate as a pardon of his wrong."

In Tiffany's Domestic and Family Relations, section 107 says:

Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the
right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer
shall not again commit the offense; and also that he shall thereafter treat the other spouse with
conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce.
Condonation may be express or implied.

It has been held in a long line of decisions of the various supreme courts of the different states of the U. S. that 'a
single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily
sufficient to constitute condonation, especially as against the husband'. (27 Corpus Juris Secundum, section 61
and cases cited therein).
 In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the
various decisions above-cited, the inevitable conclusion is that the present action is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of
the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the offended
spouse, of any action for legal separation against the offending wife, because his said conduct comes within the
restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the
offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to conclusive
evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73).

If there had been cohabitation, to what extent must it be to constitute condonation?

Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation,
and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation
(27 C. J. S., section 6-d).

A divorce suit will not be granted for adultery where the parties continue to live together after it was known
(Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of
adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl.
401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The
resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to
the contrary, from the fact of the living together as husband and wife, especially as against the husband
(Marsh vs. Marsh, 14 N. J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in the
decisions of the various supreme courts of the United States above quoted.

There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for
dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the second ground of the
motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet that
motion serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of plaintiff
himself (section 4, Rule 17 of the Rules of Court).

Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs against
appellant. It is so ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.

EN BANC

[G.R. No. 996. October 13, 1902. ]

LUIS R. YANGCO, Petitioner, v. WILLIAM J. ROHDE, judge of the Court of First Instance of Manila, Respondent.

Francisco Ortigas, for Petitioner.

Fred. G. Waite, for Respondent.

SYLLABUS
1. MARRIAGE AND DIVORCE; ALIMONY; PROHIBITION. — Where the answer to a complaint alleging marriage and praying
for a divorce denies the fact of marriage, the court exceeds its jurisdiction in granting alimony, and the enforcement of
an order granting it will be restrained by the writ of prohibition.

2. ID.; ID. — The right of a wife to support depends upon her status as such, and where the existence of the status is put in
issue by the pleading it can not be presumed to exist for the purpose of granting alimony.

Per COOPER, J., dissenting:chanrob1es virtual 1aw library

3. ID.; ID.; PROHIBITION. — The Courts of First Instance have jurisdiction over suits for divorce, and the granting of alimony
pendente lite is incidental to this jurisdiction; consequently, an order granting alimony, even if erroneous, is not an excess
of jurisdiction, and its enforcement can not be restrained by prohibition.

DECISION

ARELLANO, C.J. :

The petitioner, Luis R. Yangco, filed in this court a petition for a writ of prohibition, alleging that before Judge William J.
Rohde, of the Court of First instance of the city of Manila, a complaint had been filed by Victorina Obin against the
petitioner praying that she be declared the lawful wife of the said Yangco, and that she be granted a divorce, an
allowance for alimony, and attorney’s fees during the pendency of the suit; that the demurrer filed by the petitioner was
overruled by the said judge, said ruling being in part as follows: "I am of the opinion that the marriage alleged in the
complaint is valid under the laws in force, although the question is not clear nor without doubt. The facts alleged in the
complaint compel me to resolve the doubt in favor of the plaintiff;" and that the petitioner, in answer to the complaint,
denied the principal allegation of fact therein, to wit, the mutual agreement to be husband and wife alleged by the
plaintiff to have been entered into before witnesses; that while the case was in this condition the plaintiff filed a motion
for a monthly allowance as alimony, costs, and attorney’s fees; that on the 22d of July last the said judge ordered the
petitioner to pay the plaintiff, in advance, a monthly allowance of 250 Mexican pesos from and after the 11th of March
last past, and to pay on the 1st day of August following all accrued allowances, in addition to the allowance for the said
month, amounting to the sum of 1,500 pesos; that the plaintiff in the said action owns no property, and the judge not
having required from her any security, it is certain that the petitioner, defendant in the said action below, should
judgment be rendered in his favor, would be unable to recover such sums as the judge might compel him to disburse;
that against the ruling of the court he has no right of appeal or any plain, speedy, or adequate remedy; therefore he
prays the court to render judgment declaring the Hon. William J. Rohde, judge of the Court of First Instance of Manila,
has acted in excess of his jurisdiction in attempting to oblige petitioner to pay to the said Victorina Obin the said
allowance, and to direct that a writ of prohibition issue to the said William J. Rohde prohibiting him from attempting to
compel petitioner to pay the said amount.

Against this petition the attorney for the respondent, William J. Rohde, filed a demurrer and motion to dismiss upon the
following grounds: (1) That this court is without jurisdiction over the subject-matter of the action; (2) that the petition does
not state facts sufficient to constitute a cause of action. It is to be observed that in the oral argument and brief filed no
denial was made, but on the contrary the fact alleged by the petitioner was affirmed in that the ruling on the demurrer
in the Court of First Instance the respondent had expressed his opinion that "the question (as to the alleged marriage) is
not clear nor free from doubt."cralaw virtua1aw library

"Nevertheless," he says, "this being so, the said Victorina Obin acquired a right to all conjugal rights, and in particular to
the allowance of alimony pendente lite." And upon this supposition he cited articles of the Civil Code as to rights
enjoyed by a married woman by virtue of the marriage, and those which she may further exercise by reason of divorce
pending litigation and those granted to her finally in case of a favorable judgment.

The entire theory developed by the demurrer now before us may be expressed in the following terms: The respondent
judge had jurisdiction to try the divorce case and its incidents, among others that of alimony; in an interlocutory ruling he
held that the alleged matrimony existed, although it appeared to him to be a matter not clear or free from doubt; in
another interlocutory order, notwithstanding the fact that the existence of the marriage is not clear or free from doubt,
he directed an allowance of alimony pendente lite in favor of the plaintiff; against this interlocutory order no appeal lies
on behalf of the alleged husband who is to pay this allowance; this alleged husband must pay it without any guaranty of
recovery in the event that the proof should establish a contrary condition of affairs to that assumed to be correct,
notwithstanding the fact that the question is not clear or free from doubt; and as the judge is not devoid of jurisdiction,
and as no appeal lies against an interlocutory order, that such an opinion, such an interlocutory order so rendered,
although erroenous and causing irreparable damage, can not be reviewed by any other court during the course of the
trial.

Such a theory was not possible in these Islands under its former Law of Civil Procedure, nor is it possible now under the
present Code of Civil Procedure. Under article 1591 of the old Code any person believing himself entitled to that
provisional alimony or support was required to file with the complaint documents proving conclusively the title by virtue
of which the same was sued for. If the title was based upon a right created by law, it was necessary to present the
documents establishing the bond of relationship between the plaintiff and defendant or the circumstances which gave
a right to the alimony, such evidence to be completed by the testimony of witnesses if necessary. The judge, under
article 1592, could not admit the complaint unless the documents referred to in the preceding article were submitted. it
is evident from this that under the provisions of the law then in force a suit for alimony could not prosper upon the mere
opinion of the judge expressed, not in a final judgment causing status, but in an interlocutory order which has no other
purpose than to facilitate the continuance of the trial. This, apart from the fact that under the former procedural law
every interlocutory order not merely of practice was appealable, and consequently the case of one finding himself
prejudiced by an order capable of causing him irreparable damage, such as that of paying an allowance without
security or possibility of recovery, could never arise under that system of legislation.

The necessity of founding the action for support or alimony on a title, and a title supported by documentary evidence, is
a consequence of the precepts of article 143 of the Civil Code cited by the respondent judge himself. In this article the
right to support is granted (1) to spouses inter se; (2) to legitimate descendants and ascendants inter se; (3) to parents
and certain legitimated and acknowledged natural children; (4) to other illegitimate children, and (5) to brothers and
sisters. In all these cases it is a civil status or a juridical relation which is the basis of the action for support — the civil status
of marriage or that of relationship.

In the present case the action for the support or alimony is brought by a woman who alleges that she is a wife; therefore
it is necessary for her to prove possession of the civil status of a spouse — that is, a marriage, without which one has no
right to the title of husband or wife. Marriages celebrated before the adoption of the Civil Code must be proven by the
means established by the former laws (art. 53). "Marriages celebrated before the operation of the Code," says Q. Mucius
Scaevola, "Must be proven by the canonical certificate." (Vol. 2, p. 137.) "Before the Council of Trent," says manresa, "no
absolute provision of law required the parish priests to make entries in their books with regard to the birth, marriage, or
death of their parishioners . . . The council required the parish priests to open books in which to record baptisms,
marriages, and deaths . . . The state, the attention of which was called for the first time to the importance of the records
established by the provisions of the council, gave evidence of its interest by issuing the royal order of March 21, 1749,
according to which the prelates of the Kingdom were directed to require the evidence referred to be kept exclusively in
the churches." (Commentaries, vol. 1, p. 262.)

This evidence being lacking, and the civil status of marriage being in litigation, it is evident that nothing can be taken for
granted upon the point in issue. There is no law or reason which authorizes the granting of alimony to a person who
claims to be a spouse in the same manner as to a person who conclusively establishes by legal proof that he or she is
such spouse, and sues for divorce or separation. In this case the legal evidence raises a presumption of law; in the former
there is no presumption, there is nothing but a mere allegation — a fact in issue — and a simple fact in issue must not be
confounded with an established right recognized by a final judgment or based upon a legal presumption. The civil status
of marriage being denied, and this civil status, from which the right to support is derived, being in issue, it is difficult to see
how any effect can be given to such a claim until an authoritative declaration has been made as to the existence of
the cause. It is evident that there is of necessity a substantial difference between the capacity of a person after the
rendition of a final judgment in which that person is declared to be in possession of the status of marriage and his
capacity prior to such time when nothing exists other than his suit or claim to be declared in possession of such status of
marriage. Any other view would render useless all the legal effects which flow from the authority of res adjudicata.

Nor can such a theory be sustained under the Code of Civil Procedure now in force. It is true that an interlocutory order
such as that rendered by the respondent judge in the present case is not appealable during the course of the trial, but
only after a final judgment has been rendered therein; but it is none the less true that it can not be the intention of the
law, when prohibiting an appeal against interlocutory orders, to give executory force to all kinds of interlocutory orders
which the judge may see fit to make in the course of a trial, and still less when the effect would be to cause irreparable
damage, such as that alleged by the petitioner in the present case, by reason of the insolvency of the person in whose
favor the granting of alimony has been ordered, and which allegation has not been objected to or denied by
the Respondent. It is indeed a wise rule of procedure which refuses to permit the interruption of a trial by means of
incidental appeals; but, if the judge incidentally in the course of a trial proceeds without or in excess of his jurisdiction,
this rule which prohibits an appeal does not leave the party aggrieved without remedy. The same Code of Civil
Procedure establishes several means by which such excess may be prevented.

In this case the remedy of prohibition is invoked. (Art. 516 in relation with 226.) This remedy must be based upon a lack of
jurisdiction or an excess in the exercise of jurisdiction in order that the judge may be prohibited from continuing the
proceedings. This remedy having been established by the Code of Civil Procedure now in force, it is not allowable to
apply the theories and principles concerning the lack of jurisdiction or an excess in its exercise which prevailed in the law
of these Islands prior to the promulgation of that Code. We must of necessity apply the theories and principles which
prevail in the law which has established the remedy, or the authorities, which, in the American law, establish the doctrine
upon the subject, and more especially the views prevailing in the State of California, whose Code of Procedure is strictly
in accord with the Code in these Islands as to the remedy in question, with respect to which it may be said that the
California Code is its true legal precedent.
To this end and as an illustration of the case as to the propriety of the remedy by prohibition, we may cite a decision of
the supreme court of California of July 9, 1890. (Havemeyer & Co., Petitioners, v. the Superior Court, Judge
Wallace, Respondent.)

This was a case of quo warranto brought by the attorney-general of the State against a California corporation, the
American Sugar Refinery Company, for the cancellation of its charter, and in which case judgment was rendered on the
8th of January, 1890; an incident having arisen as to the appointment of a receiver to take charge of the property of the
company pending the taking of an appeal or to proceed to distribute the same according to law in case an appeal
should not be taken, inasmuch as the corporation had been dissolved and its corporate rights forfeited, the judge made
an order appointing a receiver. The receiver attempted to take possession of the sugar refinery, which he found in the
possession of Messrs. Havemeyer & Co., who claimed to have purchased it in the month of March, 1889, and asserted
that since that time they had been in full and complete possession as absolute owners in their own exclusive right. After
several other incidental proceedings the judge made an order directing the sheriff to put the receiver in possession of
the locus in quo. Havemeyer & Co. then applied to the supreme court for a writ of prohibition, which was issued. "The
question now remains," says the court in its decision, "whether the superior court had jurisdiction to make an order
appointing the receiver and ordering him to take from the possession of the petitioners certain property, the petitioners
not having been a party to the quo warranto proceedings and alleging a right of their own to the said property."cralaw
virtua1aw library

In disposing of this question the court holds that the judge was without jurisdiction to make this order, and continues: "We
now come to the question as to the remedy. Prohibition arrests the proceedings of an inferior judicial tribunal or officer
when such proceedings are without or in excess of the jurisdiction of such tribunal or officer, and the writ issues in all
cases where there is not a plain, speedy, and adequate remedy in the ordinary course of the law. We have shown that
the superior court in appointing a receiver exceeded its jurisdiction, and there is no question that the petitioners are
seriously injured by the enforcement of the order. If then they have no plain, speedy, and adequate remedy in the
ordinary course of law, they are clearly entitled to the benefit of the writ of prohibition to arrest the proceedings under
the void order." The court, to fortify its decision, takes up and discusses various objections, such as the following: (1) That
the petitioners might have bowed to the authority of the receiver, giving him possession, and then obtained leave from
the court to sue him in ejectment; (2) that the order appointing the receiver was appealable, and that, therefore, the
remedy for prohibition would not lie; (3) that before availing themselves of this remedy petitioners should show that an
objection to the order in question had been overruled. With respect to the first point the court says: "It is true petitioners
might have done this, but the remedy would have been neither speedy nor adequate. They had the right not merely to
get their property back after a long and expensive litigation — they had a right to keep it. The wrong with which they
were threatened when they applied for the writ and when the writ issued was the deprivation of the possession and the
use of their property. To give the property up in the hope of being allowed by the superior court to sue for it and to
recover it after years of litigation was neither an adequate nor speedy remedy. It would be as reasonable to say that an
injunction should never issue to restrain a threatened injury because the injured party may always have his action for
damages." As to the second point the court states: "There must not only be a right of appeal but the appeal must furnish
an adequate remedy in order to prevent the issuance of the writ. A number of cases have been decided in this court in
which writs of prohibition have been refused because there was a right of appeal, but in all of those cases the appeal
afforded a complete and adequate remedy for the threatened excess of jurisdiction."cralaw virtua1aw library

With respect to the third point the court says that "the following propositions applicable to the case are fully supported
by the decision in the case of the Mayor of London v. Cox, L. R., H. L., 278-280: (1) If a want of jurisdiction is apparent on
the face of the proceedings in the lower court, no plea or preliminary objection is necessary before suing out the writ of
prohibition. (20 If the proceeding in the lower court is not on its face without the jurisdiction of such court, but is so in fact
by reason of the existence of some matter not disclosed, such matter ought to be averred in some proper form in order
to make the want of jurisdiction of the superior court to grant prohibition. it is only laches which may or may not be
excused, according to circumstances.

"Accordingly, we find that frequently a failure to plead in the lower court was excused for the reason that it appeared
that the plea would have been rejected if made."cralaw virtua1aw library

By judgment of the 12th of December, 1891, the same supreme court in a similar proceeding against the superior court
of San Francisco, Judge Wallace used the following language:jgc:chanrobles.com.ph

"Prohibition lies in all cases where there have been proceedings ’without or in excess’ of jurisdiction, and there ’is not a
plain, speedy, and adequate remedy in the ordinary course of law.’ Jurisdiction is usually defined as ’the power to hear
and determine;’ but, of course, it is difficult to express in abstract terms a statement of the distinction between error in
exercising jurisdiction and jurisdiction itself that can be readily applied to all cases as they may arise. The law endeavors
to fix definitely everything that can in its nature be so fixed, so as to leave as little as possible to the judgment or caprice
of those who administer it. But as many future events can not, in the nature of things, be foreseen and provided for, it
follows necessarily that much must be left to the discretion of courts and other tribunals."cralaw virtua1aw library

This doctrine was applied to the procedure of the judge who had taken action upon a void information presented by a
grand jury which by reason of its defective organization was not regarded as a legally existing body, and the court
decided "that the jury not being a legal body and the so-called indictment being void, the court below was without
jurisdiction to try the accused upon such an indictment, hence the attempted action of the court was without and in
excess of its jurisdiction." As to whether the petitioner had any other prompt, speedy, and adequate remedy in the
ordinary course of law, the court said:jgc:chanrobles.com.ph

"If there be such remedy, it must be by appeal. But it would be a difficult proposition to maintain that a defendant in a
criminal case, forced through all the stages of a trial for felony without any indictment against him, or, which is the same
thing in effect, upon a void indictment, would have a plain, speedy, and adequate remedy, because, after conviction
and judgment, and perhaps after suffering the ignominy of imprisonment in the state prison, he could have the illegal
proceeding reversed on appeal . . . We are of opinion, therefore, that there is no jurisdiction in the respondent to
proceed with the trial of petitioner; that the latter has no ’plain, speedy, and adequate remedy in the ordinary course of
law,’ and that prohibition is the proper remedy."cralaw virtua1aw library

Mr. Justice Garmette added:jgc:chanrobles.com.ph

"The case of Quimbo Appo v. People, 20 N. Y., 542, received an exhaustive consideration from the court of that State,
and, after referring to many authorities upon the question as to when the writ of prohibition should issue, it said: ’These
cases prove that the writ lies to prevent the exercise of any unauthorized power in a cause or proceeding of which the
subordinate tribunal has jurisdiction, no less than when the entire cause is without the jurisdiction.’ And again: ’This shows
that the writ was never governed by any narrow, technical rules, but was resorted to as a convenient mode of exercising
a wholesome control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better
to prevent the exercise of unauthorized power than to be driven to the necessity of correcting the error after it is
committed.’"

In its decision of December 8, 1890, the same supreme court in a proceeding similar to that now before us, instituted, by
J. M. McDowell against Aaron Bell, judge of the superior court of Shasta County, upon the ground that this judge in an
incidental proceeding similar to that which now occupies our attention directed that certain property claimed by a third
person be subjected to the satisfaction of a judgment rendered against the grantee, held as
follows:jgc:chanrobles.com.ph

"In this the respondent exceeded his jurisdiction and the jurisdiction of his court. His only power in the premises was to
make an order authorizing the judgment creditor to institute an action in the proper court against the parties claiming
the property for the recovery of the property and the subjection of the same to the satisfaction of the debt, and
forbidding a transfer of the property until such action could be commenced and prosecuted to judgment."cralaw
virtua1aw library

This indicates what is meant by an act without or in excess of jurisdiction in accordance with the principles upon which
article 226 of the present Code of Civil Procedure is based.

The court below had jurisdiction to try the divorce suit, but he was without jurisdiction to grant alimony when the right to
claim alimony had not accrued in accordance with the provisions of the Civil Code. This Code only grants the right to
alimony to a wife. This status not appearing by a final judgment, the court is without jurisdiction to make any order in the
matter. Therefore mandamus is the proper remedy upon the facts related.

It is not necessary to decide at this time if an exception could be made with respect to a case in which the fact of the
marriage is admitted of record by the defendant. In the case before us this fact was denied. The motion and demurrer
are overruled and the defendant is authorized to answer the complaint within twenty days from this date.

Torres, Willard and Ladd, JJ., concur.

Smith and Mapa, JJ., did not sit in this case.

Separate Opinions

COOPER, J., dissenting:chanrob1es virtual 1aw library

The petition for the writ of prohibition presents a case in which the Court of First Instance of Manila in an action for
divorce has, by an interlocutory order upon application of the alleged wife after a hearing had thereon, granted the
alleged wife, the plaintiff in the suit, alimony pendente lite. The defendant bases his application for a writ of prohibition,
staying and annulling the order granting the alimony, on the grounds that the Court of First Instance in granting alimony
pendente lite has acted in excess of its jurisdiction; that the alleged wife, the plaintiff in the divorce suit, has no resources
whatever, and that the judge not having required of her security for the return of the money to be received as alimony,
in the event of the rendition of judgment against her upon the final trial the money will be lost to him, and that the
remedy by appeal is not a plain, speedy, and adequate remedy. A demurrer was presented to the application which
has been overruled by this court. The reasons of the court for overruling are summarized as follows: (1) The Court of First
Instance had jurisdiction in the matter of divorce; (2) in this suit the power to grant alimony depends exclusively upon the
provisions of the Civil Code, and that this does not permit the granting of such alimony except in favor of a wife; and (3)
that such status not having been established by a final judgment the court lacks jurisdiction to pass any judgment upon
the matter of alimony.

I regard this decision as establishing an inequitable rule in cases of alimony, and also a practice in the granting of writs of
prohibition not authorized by law.

The learned Chief of Justice in his opinion seems to have in view the practice prevailing in the ecclesiastical tribunals
formerly existing here, but which have passed out with the Spanish domination.

These courts having ceased to exist, the practice peculiar to them has been abolished.

The jurisdiction of the ecclesiastical courts depended upon a canonical marriage, proof of which was jurisdictional and
was the prerequisite to an action. Only one kind of proof was admissible — this was the evidence contained in the
registers of the church. If this character of proof was not forthcoming and the marriage was disputed the party was sent
to the civil tribunal to establish the marriage; the action would not be admitted otherwise. Again, alimony could not be
granted in the ecclesiastical court, the court which had cognizance of the main suit, because the ecclesiastical decree
produced no civil effects whatever; therefore, in order that it might be granted, the matter was remitted to the civil
tribunals which had power to deal with the property of the parties, and this was usually done under the provisions of
articles 1591-1599 of the Code of Civil Procedure formerly in force in these Islands. These provisions are for temporary
maintenance and apply generally to all cases where the applicant is entitled to support under the law.

Actions for divorce were invariably brought in the ecclesiastical courts, but this was on account of the universal custom
of the celebration of canonical marriages. The ecclesiastical courts, as stated, exercise jurisdiction only in cases of a
canonical marriage. They had no jurisdiction in cases of civil marriage or any other form of marriage such as marriages
under foreign laws. The civil tribunals had jurisdiction of divorce suits and suits for nullity of marriage in these cases, and
not only had jurisdiction of the main suit but they were also given jurisdiction of the proceedings for alimony pendente
lite. Articles 103 and 107 of the Civil Code, which vest this jurisdiction, read as follows:jgc:chanrobles.com.ph

"(103) The civil tribunal shall take cognizance of the suits for nullity of marriages celebrated in conformity with the
provisions of this chapter (regulating civil marriages) and shall adopt the measures indicated in article 68 (the article
providing for alimony pendente lite), and shall give sentence definitely."cralaw virtua1aw library

Article 107 is as follows:jgc:chanrobles.com.ph

"The provisions of article 103 shall be applicable to suits for divorce and their incidents."cralaw virtua1aw library

From this it will be seen that the ecclesiastical courts and the civil tribunals admitted suits in their respective jurisdictions
on different principles — the former only where the marriage was not contested or where the status of marriage had
been established in a civil tribunal. The latter did not require proof of marriage as a prerequisite to the exercise of its
jurisdiction; marriage was only one of the issues involved in the suit. The decrees of the ecclesiastical courts produced no
civil effects whatever, and it was necessary to call to their aid the civil tribunals in order to deal with the property of a
party. On the other hand, the civil tribunal might settle the whole dispute in one proceeding, they having the power
both to adjudge and to enforce their decrees upon the property of the parties. A party in this tribunal would never have
been remitted to any other proceeding to establish the civil status of the wife, nor to any other proceeding to enforce its
decrees against the property. Consequently the civil tribunals having the full power to adjudge every matter in dispute
between the parties after taking cognizance of the cause would retain it until its final termination and the fruits of the
judgment had been secured. In the clear language of the statute, it has jurisdiction of divorce suits and its incidents and
the granting of the alimony; the law in express terms gives it this jurisdiction.

While section 68 of the Civil Code gives alimony to the wife, the jurisdiction of the court can not be made to depend
upon this article, nor can the word "wife" in any manner be regarded as a word of limitation on the power to adjudicate
alimony.

Nor do we apprehend that the Court of First Instance as now organized, with general jurisdiction and with its admitted
power to hear divorce suits, can be circumscribed in its power by any such reasons as that the civil status of the wife is a
prerequisite to its power to adjudicate the case.

If it is intended to be asserted in the decision that in order to obtain alimony it is necessary that the parties should resort
to the special proceedings as provided in article 1591, a serious objection to such position is that it is probable these
provisions of law are no longer in force. Our present Code of Civil Procedure contains a sweeping clause in the repeal of
all other procedure. It reads as follows:jgc:chanrobles.com.ph
"SEC. 795. All codes, statutes, acts, decrees, and orders or parts thereof heretofore promulgated, enacted, or in force in
the Philippine Islands prescribed in the Procedure in Civil Actions or Special Proceedings in any court or tribunal are
hereby repealed, and the procedure in all civil actions and special proceedings and all courts and tribunals shall
hereafter be in accordance with the provisions of this Act."cralaw virtua1aw library

However this may be, the courts organized under our present laws of procedure pursue their course in the exercise of
jurisdiction in accordance with American laws. The Spanish system of procedure is scarcely recognized among its
enactments.

In divorce suits, according to American practice, alimony is regarded as an incident to the suit and the granting of
alimony as an auxiliary proceeding. (Encl Pl. and Prac., 408, alimony; 2 Am. and Eng. Encl. Law, 93.) Such a practice as
dividing up the suit and trying the issues in the divorce suit in a separate and distinct action from the proceedings for
alimony would not be tolerated in an American court. (Bennett v. Southard, 35 Cal., 691.) Nor would it be practicable to
separate the two proceedings. Alimony being a provision for the wife pendente lite, if the granting of it was separated
from the main suit its adjudication might not reach a final conclusion until long after the principal suit, in aid of which it is
supposed to be granted, has been disposed of; besides, it would require a multiplicity of suits without any compensating
benefit whatever.

The proper parties being duly before the court and the court having the power to hear and determine the matter at
issue between them constitutes its jurisdiction. The Court of First Instance in this case clearly had the power to hear and
determine all the issues involved in the main suit and in the application for alimony, and having the power to hear and
determine these questions, in both of which marriage is an issue, it did not exceed its jurisdiction, and prohibition will not
lie to correct any errors that may have been committed in the hearing.

If it be admitted that the court was not acting without or in excess of its jurisdiction the language of our statute
authorizing prohibition seems too plain for controversy. Section 226 reads as follows:jgc:chanrobles.com.ph

"When the complainant in an action pending in any Court of First Instance alleges that the proceedings of any inferior
tribunal, corporation, board, or person where exercising functions judicial or ministerial were without or in excess of the
jurisdiction of such tribunal, corporation, board, or person, and the court on trial shall find that the allegations of the
complainant are true and that the plaintiff has no other plain, speedy, and adequate remedy in the ordinary course of
law, it shall render a judgment in favor of the complainant including an order commanding the defendant absolutely to
desist or refrain from further proceeding in the action or matter specified therein."cralaw virtua1aw library

In order for a party to avail himself of this remedy the inferior tribunal must be acting without or in excess of its jurisdiction,
and in addition to this there must be no other plain, speedy, and adequate remedy in the ordinary course of law.

As we have attempted to show, the Court of First Instance had the jurisdiction to hear and determine the issues upon
which the right to alimony depended, and whether the remedy by an appeal from an erroneous exercise of this
jurisdiction is a plain, speedy, and adequate remedy it is unnecessary to determine. It is the only remedy that has been
provided, and if cases occur in which it does not afford adequate relief it is the fault of the legislative power and it rests
with it to provide additional remedies. The case of Havemeyer v. Superior Court, 84 Cal, 327, is in no way in conflict with
these views, but rather supports them. The same may be said of the other cases cited.

Let us now examine the nature of alimony pendente lite and the principles upon which it is granted. Article 68 of the Civil
Code provides that after a petition for a nullity of marriage or for a divorce has been interposed and admitted certain
provisions shall be adopted during the pendency of the suit, among which is a provision for the support of the wife and
such children as do not remain under the power of the husband. This provision of law contemplates a separation of the
consorts in every case. This character of suit is generally marked by obstinacy and bitterness. For here is found property
and the offspring as the stake at issue. Passions engendered by resentment, pride, cupidity, and affection find scope in
the action.

The husband and wife thus involved in litigation and their position as to the right and wrong of the matter being as yet
unascertained, we find with reference to their resources the law has placed them in the following condition: The wife’s
estate consists of her dowry, paraphernalia, and one-half of the conjugal community property. Her dowry is composed
of the property and rights brought as such by her to the marriage at the time of contracting it and those which she
acquires during the marriage by donation, inheritance, or legacy as total property. The dowry may have been
obligatory, i.e., such as the law has required the parents to give to their legitimate daughter on marriage. Now, dowry, if
it be an estimated dowry — that is, if the property of which it consists was appraised at the time of its constitution — is
transferred in ownership to the husband, who only upon the dissolution of the marriage is pledged to return its value. Of
this he has absolute control and power of disposition.

The ownership of the dowry not estimated is retained by the wife, but she can alienate, encumber, or mortgage it only
with the license of the husband, who, in case of such litigation, is not likely to consent. Of this part of the dowry the
husband is the administrator and usufructuary.
The paraphernalia is the property which the wife brings to the marriage, not included in the dowry and what she
acquires after the constitution of the same, and which is not added to the dowry; of this the wife still retains the dominion
as well as its management, unless she has delivered the same to the husband with the intent that he may administer it.
This property she can not alienate, encumber, or mortgage without the like permission of her husband, and when it
consists of available property, such as money or public stocks, or valuable personal property, the husband has the right
to require that it be deposited or invested in such a way that the alienation of the same should be impossible without his
consent.

With reference to the conjugal community property, which is the earnings or profits indiscriminately obtained by either of
the consorts during the marriage and which belongs to the husband and wife share and share alike, when the marriage
is dissolved she finds herself in no better position, for the husband is the administrator of his property and has the exclusive
disposition of it.

So we find that the husband at the beginning of this litigation, in which a separation is contemplated, has all of his
individual separate property brought to the marriage or acquired during the marriage by him with the absolute power of
control and disposition; he is the administrator of the conjugal community property and has the power of its control and
disposition; he is the owner, and has the control and disposition over the wife’s estimated dowry, and is administrator and
usufructuary of the dowry not estimated; he has a veto power upon the right of the wife to alienate, encumber, or
mortgage the dowry not estimated and the paraphernalia. The wife has been shorn of power over all of that which she
possesses in her separate right as well as that held in her conjugal community right.

In this situation she turns in despair to the law and finds that it has done her scant justice by making provisions for her
alimony.

But this court so construes the law as to substantially deprive her of this benefit. She asks for support while she carries on
the litigation; she is told that she must institute an independent action to establish her status as a wife, and that this
action must be prosecuted to final judgment. Upon her is thus imposed the additional burden of another suit, in which no
provision has been made for alimony; and further, this second suit being commenced subsequent to the divorce suit
and the judgment being alike appealable, according to the natural course of events, will probably not reach a final
determination until the main suit has been settled; as a result alimony pendente lite is made impossible.

She is also met by another objection, which is that she is totally without resources and will be unable to return the amount
of the alimony received from the husband in the event that she fails in the litigation unless she gives security for it. We
have seen that the law absolutely prohibits her from encumbering, without the license of her husband, that part of her
separate property which it has not taken from her and given to the husband.

The law thus mocks her in the helplessness in which it has placed her. She asks for bread, a stone is given her.

Conclusions leading to such inequitable results ought not to be readily adopted by a court of justice.

For the reasons stated I dissent from the opinion of the court.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-13982 July 31, 1920

DIEGO DE LA VIÑA, petitioner,

vs.
ANTONIO VILLAREAL, as Auxiliary Judge of First Instance, and NARCISA GEOPANO, respondents.

Del Rosario and Del Rosario and W. F. Mueller for petitioner.

J. Lopez Vito for respondents.

JOHNSON, J.:

This is an original petition presented in the Supreme Court. Its purpose is to obtain an order declaring: (a) That the
respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the province of
Iloilo, has no jurisdiction to take cognizance of a certain action for divorce instituted in said court by the respondent
Narcisa Geopano against her husband, Diego de la Viña, the petitioner herein; (b) that the said respondent judge has
exceeded his power and authority in issuing, in said action, a preliminary injunction against the said petitioner prohibiting
him from alienating or encumbering any part of the conjugal property during the pendency of the action; and (c) that
all the proceedings theretofore had in said court were null and void.

It appears from the record that on September 17, 1917, Narcisa Geopano filed a complaint in the Court of First Instance
of the Province of Iloilo against Diego de la Viña, alleging: (1) That she was a resident of the municipality of Iloilo,
Province of Iloilo, and that the defendant was a resident of the municipality of Vallehermoso, Province of Oriental
Negros; (2) that she was the legitimate wife of the defendant, having been married to him in the municipality of
Guijulñgan, Province of Negros Oriental, in the year 1888; (3) that since their said marriage plaintiff and defendant had
lived as husband and wife and had nine children, three of whom were living and were already of age; (4) that during
their marriage plaintiff and defendant had acquired property, real and personal, the value of which was about P300,000
and all of which was under the administration of the defendant; (5) that since the year 1913 and up to the date of the
complaint, the defendant had been committing acts of adultery with one Ana Calog, sustaining illicit relations with her
and having her as his concubine, with public scandal and in disgrace of the plaintiff; (6) that because of said illicit
relations, the defendant ejected the plaintiff from the conjugal home, for which reason she was obliged to live in the city
of Iloilo, where she had since established her habitual residence; and (7) that the plaintiff, scorned by her husband, the
defendant, had no means of support and was living only at the expense of one of her daughters. Upon said allegations
she prayed for (a) a decree of divorce, (b) the partition of the conjugal property, and (c) alimony pendente lite in the
sum of P400 per month.

Subsequent to the filing of the said complaint, Narcisa Geopano, the plaintiff therein, presented a motion, which was
later amended, alleging, among other things, that since the filing of her complaint she had personal knowledge that the
defendant was trying to alienate or encumber the property which belonged to the conjugal partnership between the
plaintiff and the defendant, to the prejudice of the plaintiff, and prayed that a preliminary injunction be issued against
the defendant restraining and prohibiting him in the premises.

The defendant Diego de la Viña, petitioner herein, opposed the said motion for a preliminary injunction, and,
subsequently, demurred to the complaint upon the ground that the court had no jurisdiction to take cognizance of the
cause, "nor over the person of the defendant."

After hearing the respective parties the respondent judge, in to separate orders, dated November 1 and November 2,
1917, respectively, overruled the defendant's demurrer, and granted the preliminary injunction prayed for by the
plaintiff.

Thereafter and on April 27, 1918, the defendant, Diego de la Viña filed the present petition for certiorari in this court,
upon the ground that the respondent judge had no jurisdiction to take cognizance of the action in question, and had
exceeded his power and authority in issuing said preliminary injunction.

The questions arising out of the foregoing facts are as follows:

1. May a married woman ever acquire a residence or domicile separate from that of her husband during the existence
of the marriage?

2. In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal property is
also prayed for, may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from
alienating or encumbering any part of the conjugal property during the pendency of the action?

I.

The petitioner contends that the Court of First Instance of Iloilo had no jurisdiction to take cognizance of the said action
for divorce because the defendant therein was a resident of the Province of Negros Oriental and the plaintiff, as the wife
of the defendant, must also be considered a resident of the same province inasmuch as, under the law, the domicile of
the husband is also the domicile of the wife; that the plaintiff could not acquire a residence in Iloilo before the arriage
between her and the defendant was legally dissolved.

This contention of the petitioner is not tenable. It is true, as a general of law, that the domicile of the wife follows that of
her husband. This rule is founded upon the theoretic identity of person and of interest between the husband and the
wife, and the presumption that, from the nature of the relation, the home of the one is that of the other. It is intended to
promote, strenghten, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But
the authorities are unanimous in holding that this is not an absolute rule. "Under modern laws it is clear that many
exceptions to the rule that the domicile from of the wife is determined by that of her husband must obtain. Accordingly,
the wife may acquire another and seperate domicile from that of her husband where the theorical unity of husband
and wife is is dissolved, as it is by the institution of divorce proceedings; or where the husband has given cause for
divorce; or where there is a separation of the parties by agreement, or a permanent separation due to desertion of the
wife by the husband or attributable to cruel treatment on the part of the husband; or where there has been a forfeiture
by the wife of the benefit of the husband's domicile." (9 R. C. L., 545.)

The case of Narcisa Geopano comes under one of the many exceptions above-mentioned, to wit: "Where the husband
has given cause for divorce, the wife may acquire another and seperate domicile from that of her husband." In support
of this proposition there is a formidable array of authorities. We shall content ourselves with illustrative quotations from a
few of them, as follows:

Although the law fixes the domicile of the wife as being that of her husband, universal jurisprudence recognizes
an exception to the rule in the case where the husband's conduct has been such as to furnish lawful ground for
a divorce, which justifies her in leaving him, and, therefore, necessarily authorities her to live elsewhere and to
acquire a separate domicile. Cheever vs. Wilson, 9 Wall. (U. S.), 108; Barber vs. Barber, 21 How. (U. S.), 582; 2
Bishop, Mar. and Div., 475; Schouler, Hus. and Wife, sec. 574; 5 Am. and Eng. Encyc. of Law, p. 756." (Smith vs.
Smith, 43 La. Ann., 1140, 1146.)

The matrimonial domicile of the wife is usually that of the husband, but if she is justified in leaving him because
his conduct has been such as to entitle her to a divorce, and she thereupon does leave him and go into
another state for the purpose of there permanently residing, she acquires a domicile in the latter state.
(Atherton vs. Atherton, 155 N. Y., 129; 63 Am. St. Rep., 650.)

The law will recognize a wife as having a separate existence, and separate interests, and separate rights, in
those cases where the express object of all proceedings is to show that the relation itself ougth to be dissolved,
or so modified as to establish separate interests, and especially a separate domicile and home, bed and board
being put, apart for the whole, as expressive of the idea of home. Otherwise the parties, in this respect, would
stand upon very unequal ground, it being in the power of the husband to change his domicile at will, but not in
that of the wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25 Am. Dec., 372, 375-376.)

Under the pauper laws, and upon general principles, the wife is regarded as having the domicile of her
husband; hut this results from his marital rights, and the duties of the wife. If the husband has forfeited those
rights be misbehavior, and has left and deserted the wife, they may have different domiciles, in the view of the
law regulating divorces. (Harding vs. Alden, 9 Greenl. [Me.], 140; 23 Am. Dec., 549, 552.)

Though as a general principle of law the domicile of the husband is regarded as the domicile of the wife,
according to the prevailing view a wife may acquire a residence or domicile separate from her husband so as
to confer jurisdiction upon the courts of the state, in which her domicile or residence is established, to decree a
divorce in her favor. (9 R. C. L. 400-401, citing various cases.)

The law making the domicile of the husband that of the wife is applicable only to their relations with third
parties, and has no application in cases of actual separation and controversy between themselves as to the
temporary or permanent severance of the marriage ties by judicial proceedings. Vence vs. Vence, 15 How. Pr.,
497; Schonwald vs. Schonwald, 55 N. C., 367; Cheever vs. Wilson, 76 U. S. (9 Wall.), 109; 19 L. ed., 605. (Notes, p.
498, 16 L. R. A.)

In the case of Schonwald vs. Schonwald (55 N. C., 343), the plaintiff tried to do what the petitioner in this case insists the
respondent Narcisa Geopano should have done. In that case the wife filed a bill of divorce in a court in North Carolina,
where her husband resided. She herself had not resided in that state for three years previous to the filing of the suit, as
required by the statute; but she claimed that the domicile of her husband was also her domicile and, inasmuch as her
husband, the defendant, had been a resident of North Carolina for more than three years, she had also been a resident
of that state during that time. The court dismissed the bill, holding that the legal maxim that "her domicile is that of her
husband" would not avail in the stead of an actual residence. The court said:

It is true that for many purpose the domicile of the husband is the domicile of the wife, but it is not so for every
purpose. The maxim that the domicile of the wife follows that of the husband cannot be applied to oust the
court of its jurisdiction; neither, from party of reasons can it give jurisdiction. (P. 344.)

Turning to the Spanish authorities, we find that they agree with the American authorities in holding that the maxim or rule
that the domicile of the wife follows that of the husband, is not an absolute one. Scaevola, commenting on article 40 of
the Civil Code (which is the only legal provision or authority relied upon by the petitioner in this case), says:
 Although article 64 of the Law of Civil Procedure provides that the domicile of a married woman, not legally
separated from her husband, is that of the latter, yet, when the tacit consent of the husband and other
circumstances justify it, for the purpose of determining jurisdiction, the habitual residence of the woman should
be considered as her domicile where her right may be exercised in accordance with article 63. (Scaevola, Civil
Code, p. 354.)

Manresa, commenting upon the same article (art. 40) says:

The domicile of married women not legally separated from their husband shall be that of the latter. This
principle, maintained by the Supreme Court in numerous decisions, was modified in a particular case by the
decision of June 17, 1887, and in conformity with this last decision, three others were afterwards rendered on
October 13, 23, and 28, 1899, in all of which it is declared that when married women as well as children subject
to parental authority live, with the acquiescence of their husbands or fathers, in a place distinct from where the
latter live, they have their own independent domicile, which should be considered in determining jurisdiction in
cases of provisional support guardianship of persons, etc. (1 Manresa, 233.)

If the wife can acquire a separate residence when her husband consents or acquiesces, we see no reason why the law
will not allow her to do so when, as alleged in the present case, the husband unlawfully ejects her from the conjugal
home in order that he may freely indulge in his illicit relations with another woman. Under no other circumstance could a
wife be more justified in establishing a separate residence from that of her husband. For her to continue living with him,
even if he had permitted it, would have been a condonation of his flagrant breach of fidelity and marital duty.
Furthermore, in this case no longer was there an "identity of persons and of interest between the husband and the wife."
Therefore the law allowed her to acquire a separate residence. For, "it would do violence to the plainest principle of
common sense and common justice of to call this residence of the guilty husband, where the wife is forbidden to come,
. . . the domicile of the wife." (Champon vs. Champon, 40 La. Ann., 28.)

It is clear, therefore, that a married woman may acquire a residence or domicile separate from that of her husband,
during the existence of the marriage, where the husband has given cause for divorce.

II.

We come now to the second question — whether or not the respondent judge exceeded his power in issuing the
preliminary injunction complained of by the petitioner.

Section 164 of Act No. 190 provides:

A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the
satisfaction of the judge granting it:

1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining
the commission or continuance of the acts complained of either for a limited period or perpetually;

2. That the commission or continuance of some act complained of during the litigation would probably work
injustice to the plaintiff;

3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be done, some act
probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the
judgment ineffectual.

The petitioner quotes the foregoing section and argues that the respondent Narcisa Geopano was not entitled to have
a preliminary injunction issued against her husband because contrary to the requirement of the first paragraph of said
section, she was not entitled to the relief demanded, which consisted in restraining the power and authority which the
law confers upon the husband; that under articles 1412 and 1413 of the Civil Code, the husband is the manager of the
conjugal partnership and, as such, is empowered to alienate and encumber and conjugal property without the consent
of the wife; that neither could the wife obtain a preliminary injunction under paragraph 3 of said section, upon the
ground that the defendant was committing some acts in violation of the plaintiff's rights, because the plaintiff, as the wife
of the defendant, had nor right to intervene in the administration of the conjugal property, and therefore no right of hers
was violated.
We cannot subscribe to that argument of counsel. The law making the husband the sole administrator of the property of
the conjugal partnership is founded upon necessity and convenience as well as upon the presumption that, from the
very nature of the relating between husband and wife, the former will promote and not injure the interests of the latter.
So long as this harmonious relation, as contemplated by law, continues, the wife cannot and should not interfere with
the husband in his judicious administration of the conjugal property. But when that relation ceases and, in a proper
action, the wife seeks to dissolve the marriage and to partition the conjugal property, it is just and proper, in order to
protect the interests of the wife, that the husband's power of administration be curtailed, during the pendency of the
action, insofar as alienating or encumbering the conjugal property is concerned.

In her motion for a preliminary injunction, Narcisa Geopano alleged that the defendant was about to alienate or
encumber the property belonging to the conjugal partnerships, with the object of injuring her interests; and this
allegation does not appear to have been controverted by the defendant either in this court or in the court below. In
view of this fact, we are of the opinion that under both paragraphs 2 and 3 of section 164 of Act No. 190, above quoted,
the respondent judge was empowered and justified in granting the preliminary injunction prayed for by her. It cannot be
doubted that, if the defendant should dispose of all or any part of the conjugal property during the pendency of the
action for divorce, and squander or fraudulently conceal the proceeds, that act "would probably work injustice to the
plaintiff," or that it would probably be "in violation of the plaintiff's rights, respecting the subject of the action, and
tending to render the judgment ineffectual." In this case the plaintiff's rights sought to be protected by said paragraph 3
is not the right to administer the conjugal property, as counsel for the petitioner believes, but the right to share in the
conjugal property upon the dissolution of the conjugal partnership.

The case under consideration, then, is covered or contemplated by the statute (sec. 164, Act No. 190), so that there can
be no question, in our opinion, as to the power of the respondent judge to issue the preliminary injunction complained of
by the petitioner. Indeed, even in a case not covered by the statute this court had upheld the power of Court of First
Instance to grant preliminary injunctions. In the case of Manila Electric Railroad and Light Company vs. Del Rosario and
Jose (22 Phil., 433), Doroteo Jose asked for, and the Court of First Instance granted ex parte, a writ of preliminary
mandatory injunction directing the Manila Electric Railroad and Light Company to continue furnishing electricity to Jose.
Thereupon the Light Company filed in this court a petition for the writ of certiorari against Judge S. del Rosario upon the
ground that Courts of First Instance in these Islands are wholly without jurisdiction to issue preliminary mandatory
injunctions under any circumstances whatever. This court denied that petition, determining the power of the Courts of
First Instance to issue preliminary injunction, as follows:

The power to grant preliminary injunctions, both preventative and mandatory, is a logical and necessary
incident of the general powers conferred upon Courts of First Instance in these Islands, as courts of record of
general and unlimited original jurisdiction, both legal and equitable.

Insofar as the statute limits or prescribes the exercise of this power it must be followed: but beyond this, and in
cases not covered by or contemplated by the statute, these courts must exercise their jurisdiction in the
issuance of preliminary injunctions upon sound principles applicable to the circumstances of each particular
case, having in mind the nature of the remedy, and the doctrine and practice established in the courts upon
which our judicial is modeled.

The only limitation upon the power of Courts of First Instance to issue preliminary injunctions, either mandatory of
preventative, is that they are to be issued in the "manner" or according to the "method" provided therefor in the
Code of Civil Procedure.

We conclude, therefore, that in an action for divorce brought by the wife against the husband, in which the partition of
the conjugal property is also prayed for, the wife may obtain a preliminary injunction against the husband, prohibiting
the latter from alienating or encumbering any part of the conjugal property during the pendency of the action.

It follows from all of the foregoing that the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the
Court of First Instance of the Province of Iloilo, had jurisdiction to hear and determine the action for divorce instituted in
said court by the respondent Narcisa Geopano, and that he did not exceed his power and authority in issuing a
preliminary injunction against the defendant, prohibiting him from alienating or encumbering any part of the conjugal
property during the pendency of the action.

Therefore, the petition should be and is hereby denied, with costs against the petitioner. So ordered.

Mapa, C.J., Carson, Araullo, Malcolm, Avanceña, Moir and Villamor, JJ., concur.

EN BANC
 [G.R. No. L-9667. July 31, 1956.]

LUIS MA. ARANETA, Petitioner, vs. HONORABLE HERMOGENES CONCEPCION, as judge of the Court of First Instance of
Manila, Branch VI and EMMA BENITEZ ARANETA, Respondents.

DECISION

LABRADOR, J.:
The main action was brought by Petitioner against his wife, one of the Respondent herein, for legal separation on the
ground of adultery. After the issues were joined Defendant therein filed an omnibus petition to secure custody of their
three minor children, a monthly support of P5,000 for herself and said children, and the return of her passport, to
enjoin Plaintiff from ordering his hirelings from harassing and molesting her, and to have Plaintiff therein pay for the fees of
her attorney in the action. The petition is supported by her affidavit. Plaintiff opposed the petition, denying the misconduct
imputed to him and alleging that Defendant had abandoned the children; chan roblesvirtualawlibraryalleging that
conjugal properties were worth only P80,000, not one million pesos as alleged by Defendant; chan
roblesvirtualawlibrarydenying the taking of her passport or the supposed vexation, and contesting her right to attorney’s
fees. Plaintiff prayed that as the petition for custody and support cannot be determined without evidence, the parties be
required to submit their respective evidence. He also contended that Defendant is not entitled to the custody of the
children as she had abandoned them and had committed adultery, that by her conduct she had become unfit to
educate her children, being unstable in her emotions and unable to give the children the love, respect and care of a true
mother and without means to educate them. As to the claim for support, Plaintiff claims that there are no conjugal assets
and she is not entitled to support because of her infidelity and that she was able to support herself. Affidavits and
documents were submitted both in support and against the omnibus petition.
The Respondent judge resolved the omnibus petition, granting the custody of the children to Defendant and a monthly
allowance of P2,300 for support for her and the children, P300 for a house and P2,000 as attorney’s fees. Upon refusal of
the judge to reconsider the order, Petitionerfiled the present petition for certiorari against said order and for mandamus to
compel the Respondent judge to require the parties to submit evidence before deciding the omnibus petition. We
granted a writ of preliminary injunction against the order.
The main reason given by the judge, for refusing Plaintiff’s request that evidence be allowed to be introduced on the
issues, is the prohibition contained in Article 103 of the Civil Code, which reads as follows:chanroblesvirtuallawlibrary

“ART. 103. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of
the petition.”
Interpreting the spirit and policy of the provision the trial judge says:chanroblesvirtuallawlibrary

“This provision of the code is mandatory. This case cannot be tried within the period of six months from the filing of the
complaint. The court understands that the introduction of any evidence, be it on the merits of the case or on any incident,
is prohibited. The law, up to the last minute, exerts efforts at preserving the family and the home from utter ruin. Interpreting
the intent of said article, the court understands that every step it should take within the period of six months above stated
should be taken toward reconciling the parties. Admitting evidence now will make reconciliation difficult if not impossible.
In this case the court should act as if nothing yet had happened. The children must be given for custody to him or her who
by family custom and tradition is the custodian of the children. The court should ignore that Defendant had committed
any act of adultery or the Plaintiff, any act of cruelty to his wife. The status quo of the family must be restored as much as
possible. In this country, unlike perhaps in any other country of the globe, a family or a home is a petite corporation. The
father is the administrator who earns the family funds, dictates rules in the home for all to follow, and protects all members
of his family. The mother keeps home, keeps children in her company and custody, and keeps the treasure of that family.
In a typical Filipino family, the wife prepares home budget and makes little investment without the knowledge of her
husband. A husband who holds the purse is un-Filipino. He is shunned in Filipino community. The court therefore, in taking
action on petition No. 1 should be guided by the above considerations.” (pp. 116-117, Record on Appeal.)

It may be noted that since more than six months have elapsed since the filing of the petition the question offered may not
be allowed. It is, however, believed that the reasons for granting the preliminary injunction should be given that the scope
of the article cited may be explained.

It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as a cooling off
period to make possible a reconciliation between the spouses. The recital of their grievances against each other in court
may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give them
opportunity for dispassionate reflection. But this practical expedient, necessary to carry out legislative policy, does not
have the effect of overriding other provisions such as the determination of the custody of the children and alimony and
support pendente lite according to the circumstances. (Article 105, Civil Code.) The law expressly enjoins that these should
be determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual
facts, rank in justice may be caused.

Take the case at bar, for instance. Why should the court ignore the claim of adultery by Defendantin the face of express
allegations under oath to that effect, supported by circumstantial evidence consisting of letter the authenticity of which
cannot be denied. And why assume that the children are in the custody of the wife, and that the latter is living at the
conjugal dwelling, when it is precisely alleged in the petition and in the affidavits, that she has abandoned the conjugal
abode? Evidence of all these disputed allegations should be allowed that the discretion of the court as to the custody
and alimony pendente lite may be lawfully exercised.
The rule is that all the provisions of the law even if apparently contradictory, should be allowed to stand and given effect
by reconciling them if necessary.
“The practical inquiry in litigation is usually to determine what a particular provision, clause or word means. To answer it
one must proceed as he would with any other composition — construe it with reference to the leading idea or purpose of
the whole instrument. A statute is passed as a whole and not in parts or sections and is animated by one general purpose
and intend. Consequently, each part of section should be construed in connection with every other part or section so as
to produce a harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed.”
(Southerland, Statutory Construction section 4703, pp. 336-337.)
Thus the determination of the custody and alimony should be given effect and force provided it does not go to the extent
of violating the policy of the cooling off period. That is, evidence not affecting the cause of the separation, like the actual
custody of the children, the means conducive to their welfare and convenience during the pendency of the case, these
should be allowed that the court may determine which is best for their custody.

The writ prayed for is hereby issued and the Respondent judge or whosoever takes his place is ordered to proceed on the
question of custody and support pendente lite in accordance with this opinion. The court’s order fixing the alimony and
requiring payment is reversed. Without costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes A., Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-34132 July 29, 1972

LUCY SOMOSA-RAMOS, petitioner,

vs.
THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the Court of First Instance of Negros Oriental and CLEMEN
G. RAMOS, respondents.

T. R. Reyes & Associates for petitioner.

Soleto J. Erames for respondents.

FERNANDO, J.:p

The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the hearing of an
action for legal separation before the lapse of six months from the filing of the petition, would likewise preclude the court
from acting on a motion for preliminary mandatory injunction applied for as an ancillary remedy to such a suit.
Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros Oriental, answered the question in the
affirmative, in view of the absolute tenor of such Civil Code provision, which reads thus: "An action for legal separation
shall in no case be tried before six months shall have elapsed since the filing of the petition." He therefore ordered the
suspension, upon the plea of the other respondent the husband Clemente G. Ramos, of the hearing on a motion for a
writ of preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation was instituted.
Petitioner, Lucy Somosa-Ramos, the wife who brought the action for legal separation would dispute such a ruling. Hence,
this certiorari proceeding. As will be shown later there is justification for such a move on the part of petitioner. The
respondent Judge ought to have acted differently. The plea for a writ of certiorari must be granted.
The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of respondent Judge against
respondent Clemente Ramos for legal separation, on concubinage on the respondent's part and an attempt by him
against her life being alleged. She likewise sought the issuance of a writ of preliminary mandatory injunction for the return
to her of what she claimed to be her paraphernal and exclusive property, then under the administration and
management of respondent Clemente Ramos. There was an opposition to the hearing of such a motion, dated July 3,
1971, based on Article 103 of the Civil Code. It was further manifested by him in a pleading dated July 16, 1971, that if
the motion asking for preliminary mandatory injunction were heard, the prospect of the reconciliation of the spouses
would become even more dim. Respondent Judge ordered the parties to submit their respective memoranda on the
matter. Then on September 3, 1971, petitioner received an order dated August 4, 1971 of respondent Judge granting the
motion of respondent Ramos to suspend the hearing of the petition for a writ of mandatory preliminary injunction. That is
the order complained of in this petition for certiorari. Respondents were required to answer according to our resolution of
October 5, 1971. The answer was filed December 2 of that year. Then on January 12, 1972 came a manifestation from
parties in the case submitting the matter without further arguments.

After a careful consideration of the legal question presented, it is the holding of this Court that Article 103 the Civil Code
is not an absolute bar to the hearing motion for preliminary injunction prior to the expiration of the six-month period.

1. It is understandable why there should be a period during which the court is precluded from acting. Ordinarily of
course, no such delay is permissible. Justice to parties would not thereby be served. The sooner the dispute is resolved,
the better for all concerned. A suit for legal separation, however, is something else again. It involves a relationship on
which the law for the best reasons would attach the quality of permanence. That there are times when domestic felicity
is much less than it ought to be is not of course to be denied. Grievances, whether fancied or real, may be entertained
by one or both of the spouses. There may be constant bickering. The loss affection on the part of one or both may be
discernible. Nonetheless, it will not serve public interest, much less the welfare of the husband or the wife, to allow them
to go their respective ways. Where there are offspring, the reason for maintaining the conjugal union is even more
imperative. It is a mark of realism of the law that for certain cases, adultery on the part of the wife and concubinage on
the part of the husband, or an attempt of one spouse against the life of the other,1 it recognizes, albeit reluctantly, that
the couple is better off apart. A suit for legal separation lies. Even then, the hope that the parties may settle their
differences is not all together abandoned. The healing balm of time may aid in the process. Hopefully, the guilty parties
may mend his or her ways, and the offended party may in turn exhibit magnanimity. Hence, the interposition of a six-
month period before an action for legal separation is to be tried.

The court where the action is pending according to Article 103 is to remain passive. It must let the parties alone in the
meanwhile. It is precluded from hearing the suit. There is then some plausibility for the view of the lower court that an
ancillary motion such as one for preliminary mandatory injunction is not to be acted on. If it were otherwise, there would
be a failure to abide by the literal language of such codal provision. That the law, however, remains cognizant of the
need in certain cases for judicial power to assert itself is discernible from what is set forth in the following article. It reads
thus: "After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each other
and manage their respective property. The husband shall continue to manage the conjugal partnership property but if
the court deems it proper, it may appoint another to manage said property, in which case the administrator shall have
the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except in
accordance with the orders of the court."2 There would appear to be then a recognition that the question of
management of their respective property need not be left unresolved even during such six-month period. An
administrator may even be appointed for the management of the property of the conjugal partnership. The absolute
limitation from which the court suffers under the preceding article is thereby eased. The parties may in the meanwhile be
heard. There is justification then for the petitioner's insistence that her motion for preliminary mandatory injunction should
not be ignored by the lower court. There is all the more reason for this response from respondent Judge, considering that
the husband whom she accused of concubinage and an attempt against her life would in the meanwhile continue in
the management of what she claimed to be her paraphernal property, an assertion that was not specifically denied by
him. What was held by this Court in Araneta v. Concepcion,3 thus possesses relevance: "It is conceded that the period of
six months fixed therein Article 103 (Civil Code) is evidently intended as a cooling off period to make possible a
reconciliation between the spouses. The recital of their grievances against each other in court may only fan their already
inflamed passions against one another, and the lawmaker has imposed the period to give them opportunity for
dispassionate reflection. But this practical expedient, necessary to carry out legislative policy, does not have the effect
of overriding other provisions such as the determination of the custody of the children and alimony and support
pendente lite according to the circumstance ... The law expressly enjoins that these should be determined by the court
according to the circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may be
caused."4 At any rate, from the time of the issuance of the order complained of on August 4, 1971, more than six months
certainly had elapsed. Thus there can be no more impediment for the lower court acting on the motion of petitioner for
the issuance of a writ of preliminary mandatory injunction.

WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of respondent Court of August 4, 1971,
suspending the hearing on the petition for a writ of preliminary mandatory injunction is set aside. Respondent Judge is
directed to proceed without delay to hear the motion for preliminary mandatory injunction. Costs against respondent
Clemente G. Ramos.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

Separate Opinions

Reyes, J.B.L.,. J., concurring:

Concurs, specially in view of the ruling in De la Viña vs. Villareal, 41 Phil. 13, 24.

Separate Opinions

Reyes, J.B.L.,. J., concurring:

Concurs, specially in view of the ruling in De la Viña vs. Villareal, 41 Phil. 13, 24.

158 Phil. 1076

MAKALINTAL, C.J.:

Before Us for resolution are: (1) the petition for review by certiorari filed by Teodoro E. Lerma on March 21, 1971 to set
aside the resolution of the respondent Court of Appeals in CA-G.R. No. 44906-R dismissing his petition for certiorari and
prohibition with preliminary injunction filed therein; and (2) the petitioner's motion for reconsideration of our resolution
dated February 8, 1974 denying his urgent motion for the issuance of a writ of preliminary injunction and/or restraining
order to enjoin the enforcement of certain orders of the Juvenile and Domestic Relations Court of Quezon City
(hereinafter referred to as the lower court) ordering the petitioner to pay support pendente lite to Concepcion Diaz, the
private respondent herein.

Petitioner Lerma and respondent Diaz are husband and wife. They married on May 19, 1951. On August 22, 1969 the
petitioner filed a complaint for adultery against the respondent and a certain Teodoro Ramirez (Crim. Case No. 0519 of
the Court of First Instance of Rizal.) On November 18, 1969 the respondent filed with the lower court, presided by Judge
Leonor Ines Luciano, a complaint[1] against the petitioner for legal separation and/or separation of properties, custody of
their children[2] and support, with an urgent petition for support pendente lite for her and their youngest son, Gregory,
who was then and until now is in her custody. The respondent's complaint for legal separation is based on two
grounds: concubinage and attempt against her life.

The petitioner filed his opposition to the respondent's application for support pendente lite, setting up as defense the
adultery charge he had filed against the respondent.

Judge Luciano granted the respondent's application for support pendente lite in an order dated December 24, 1969,
which she amended in an order dated February 15, 1979 to the following effect: (1) the respondent was declared
entitled to support pendente lite from the date of the filing of the complaint; and (2) the amount of such monthly
support was reduced from P2,250.00 to P1,820.00.

On March 12, 1970 the petitioner filed with respondent Court of Appeals a petition for certiorari and prohibition with
preliminary injunction to annul the aforementioned orders on the ground that they were issued with grave abuse of
discretion. The next day the respondent court gave due course to the petition and issued a writ of preliminary injunction
to stop Judge Luciano from enforcing said orders.

The respondent court, in its decision of October 8, 1970, set aside the assailed orders and granted the petitioner an
opportunity to present evidence before the lower court in support of his defense against the application for
support pendente lite.

The respondent moved to reconsider the decision on the ground that the petitioner had not asked that he be allowed
to present evidence in the lower court. The respondent court, in its resolution of January 20, 1971, set aside the decision
of October 8 and rendered another, dismissing the petition. This is now the subject of the instant proceeding for review.

On January 23, 1974 the petitioner filed an urgent motion for a writ of preliminary injunction and/or restraining order,
alleging (1) that during the pendency of this appeal and until December 5, 1973 the respondent had never sought the
enforcement of the assailed orders of the lower court granting support pendente lite; (2) that on December 5, 1973 the
respondent filed with the lower court an urgent motion praying that the petitioner be ordered to pay the awarded
support pendente lite, both current and in arrears, on the ground that in the absence of an injunction from this Court the
assailed orders should be executed; (3) that the petitioner filed his opposition to the motion, pointing out that for the
previous three years the respondent did not ask for the enforcement of the orders and her belated move came only
"after petitioner had filed new adultery charges against her and her second paramour" and after the petitioner had
sought custody of their son Gregory; (4) that in connection with the first adultery charge, the respondent and her co-
accused, Teddy Ramirez, had been convicted by the Court of First Instance of Rizal in its decision rendered on
September 26, 1972 and said judgment of conviction was pending appeal in the Court of Appeals; (5) that Judge
Luciano issued an order dated January 19, 1974, ordering the petitioner to pay the respondent the awarded
support pendente lite within 15 days; and (6) that unless the lower court was enjoined from enforcing its assailed orders,
the present petition would be rendered moot and academic, to the prejudice of the petitioner.

On January 28, 1974 this Court, acting on the petitioner's motion, resolved "to issue a temporary restraining order
effective immediately and until further orders from this Court." The order was addressed to Judge Luciano, her agents
and representatives.

Required to comment on the petitioner's urgent motion for preliminary injunction, the respondent filed an opposition,
with a prayer for the immediate lifting of the temporary restraining order issued ex-parte. The opposition reiterated the
grounds of her motion dated December 5, 1973 filed in the lower court, to wit: (1) that an order granting
support pendente lite, although interlocutory, is immediately executory even if appealed, unless enjoined; (2) that the
dismissal of the petition by the respondent Court of Appeals rendered functus oficio the writ of preliminary injunction it
had previously issued; and (3) that under Article 292 of the New Civil Code, which provides that "during the proceedings
for legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal
partnership property . . .," such support is mandatory even if there be a showing that the wife is guilty of adultery.

In a minute resolution dated February 8, 1974 We denied the petitioner's urgent motion for a writ of preliminary
injunction. On February 28, 1974 the petitioner filed this instant motion for reconsideration. On March 6, 1974 We issued
another resolution setting aside the resolution of February 8, 1974 and reinstated the temporary restraining order
previously issued until further orders. On the same, day the respondent filed her opposition to the motion for
reconsideration and later asked that it be set for oral argument. The petitioner's pending motion was set for hearing on
April 22, 1974 and then reset for May 20, 1974. On the latter date counsel for both parties appeared. In lieu, however, of
oral argument the Court allowed them to file memoranda.

The petition assails the resolution of the respondent Court of Appeals on two main grounds:

"I. IT IS ERROR FOR THE COURT OF APPEALS TO HOLD THAT THE LOWER COURT, IN GRANTING SUPPORT PENDENTE LITE TO
RESPONDENT CONCEPCION DIAZ, DID NOT COMMIT A GRAVE ABUSE OF DISCRETION.

II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE PROVISIONS OF ARTICLE 292 OF THE CIVIL CODE MAKE IT
MANDATORY DURING THE PENDENCY OF LEGAL SEPARATION PROCEEDINGS TO GRANT SUPPORT PENDENTE LITE TO
HEREIN RESPONDENT."
The foregoing alleged errors refer to the two aspects, procedural and substantive, of the disputed orders granting
support pendente lite.

As correctly stated by the respondent court in its decision (which was later reconsidered in its resolution under review),
the procedural law on support pendente lite is Rule 61 of the Revised Rules of Court, specifically Section 5 thereof, which
partly provides:
"The court shall determine provisionally the pertinent facts, and shall render such order as equity and justice may require,
having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the
case, and such other circumstances as may aid in the proper elucidation of the questions involved. x x x"
The petitioner maintains that the above-quoted provision was disregarded by the lower court when it issued the disputed
orders without provisionally determining the pertinent facts of the case, particularly insofar as they might have a bearing
on its probable outcome, merely relying on the bare allegations of the complaint. The petitioner also claims he was
deprived of the opportunity to present evidence in support of his defense of adultery against the respondent's
application for support pendente lite.

The question of whether or not the petitioner should be allowed to present evidence in the lower court in support of his
defense that his wife had committed adultery has become moot and academic. The petitioner, in his motion filed
February 28, 1974 for reconsideration of the denial by this Court of his petition for preliminary injunction, manifested that
on September 26, 1972 the Court of First Instance of Rizal decided the adultery case of the respondent and found her
and her co-accused, Teodoro Ramirez, guilty of the charge, sentencing them to a term of imprisonment. This has not
been denied by the respondent. Neither is it denied that on March 30, 1970, as a result of the adulterous relations with
Teodoro Ramirez for which she was later on convicted, the said respondent gave birth prematurely to a baby boy, who
however died the same day. When the respondent entered the hospital for delivery, she registered under the assumed
name of "Gloria Santos," and when the child died had it falsely identified in the death certificate as the child of one
Rosario E. Salita, a close friend of hers. 'For the falsification thus committed Rosario E. Salita was criminally charged and
convicted, although the respondent herself was acquitted on reasonable doubt. The petitioner's motion of February 28
also states, without denial on the part of the respondent, that after, Teodoro Ramirez another man, this time a Manila
policeman by the name of Jose Gochangco, became her paramour, as a consequence of which criminal charges of
adultery have been filed against them before the City Fiscal of Manila. Photographs of the two, showing them in an
intimate pose, were submitted to this Court. Their veracity has not been disputed.

The legal issue posed by the foregoing, facts is whether adultery is a good defense against the respondent's claim for
support pendente Iite. In Quintana vs. Lerma, 24 Phil. 285, which was an action by the wife against the husband for
support, based upon a written contract, this Court held that adultery is a good defense. This ruling was reiterated in the
subsequent cases of Sanchez vs. Zulueta, 68 Phil. 110, and Mangoma vs. Macadaeg, et al., 90 Phil. 508. See also Olayvar
vs. Olayvar, 98 Phil. 52.

The respondent Court of Appeals, in upholding the questioned orders of the lower court, relied on Article 292 of the Civil
Code which reads:

"ART. 292. During the proceedings for legal separation, or for annulment of marriage, the spouses and children shall be
supported from the conjugal partnership property. After the final judgment of legal separation, or of annulment of
marriage, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court
may order that the guilty spouse shall give support to the innocent one, the judgment specifying the terms of such
order."
It is suggested that while adultery may be a defense in an action for personal support, that is, support of the wife by the
husband from his own funds, it is not a defense when the support is to be taken from the conjugal partnership property.

We do not see that the distinction is material in this case. In the first place Article 292 is not in itself the source of the legal
right to receive support. It merely state that the support, not only of the spouses but also of the children, shall be taken
from the conjugal property during the pendency of the legal separation proceeding. It does not preclude the loss of
such right in certain cases. In the second place, the said article contemplates the pendency of a court action and,
inferentially at least, a prima facie showing that the action will prosper. For if the action is shown to be groundless the
mere filing thereof will not necessarily set Article 292 in operation. This is also the sense of Section 5 of Rule 61, supra,
which requires, among other things, when support pendente lite is applied for, that the court determine provisionally "the
probable outcome of the case."

Article 100 of the Civil Code provides that "the legal separation may be claimed only by the innocent spouse, provided
there has been no condonation of or consent to the adultery or concubinage . . . (and) where both spouses are
offenders, a legal separation cannot be claimed by either of them . . ."

In a provisional sense at least, within the meaning of Rule 61 (Section 5), the probable failure of the respondent's suit for
legal separation can he foreseen since she is not an innocent spouse, having been convicted of adultery by the Court
of First Instance. It is true that the judgment of conviction is on appeal in the Court of Appeals, but the same
undoubtedly satisfies the standard of provisional showing set by the aforesaid Rule. If legal separation cannot be
claimed by the guilty spouse in the first place, the fact that an action for that purpose is filed anyway should not be
permitted to be used as a means to obtain support pendente lite which, without such action, would be denied on the
strength of the decisions of this Court recognizing adultery as a good defense. Otherwise, as pointed out by the
petitioner, all that an erring spouse has to do to circumvent such defense would be to file a suit for legal separation no
matter how groundless.

The right to separate support or maintenance, even from the conjugal partnership property, presupposes the existence
of a justifiable cause for the spouse claiming such right to live separately. This is implicit in Article 104 of the Civil Code,
which states that after the filing of the petition for legal separation the spouses shall be entitled to live separately from
each other. A petition in bad faith, such as that filed by one who is himself or herself guilty of an act which constituted a
ground for legal separation at the instance of the other spouse, cannot be considered as within the intendment of the
law granting separate support. In fact under Article 303 of the same Code the obligation to give support shall cease
"when the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance;" and under
Article 921 one of the causes for disinheriting a spouse is "when the spouse has given cause for legal separation." The loss
of the substantive right to support in such a situation is incompatible with any claim for support pendente lite.

What has been said above, of course, is not meant to be a prejudgment of either the legal separation proceeding
pending in the lower court or the criminal case for adultery pending in the Court of Appeals. It is to be understood only
in the light of Rule 61, Section 5, of the Rules of Court, which specifically governs the subject of support pendente lite.

WHEREFORE, the resolution of respondent Court of Appeals of January 20, 1971 and the orders of respondent Juvenile
and Domestic Relations Court herein complained of, dated December 24, 1969 and February 15, 1970, all are set aside
and their enforcement enjoined, without prejudice to such judgment as may be rendered in the pending action for
legal separation between the parties. No pronouncement as to costs.

Castro, (Chairman), Teehankee, Makasiar, and Muñoz Palma, JJ., concur.

Esguerra, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-11766 October 25, 1960

SOCORRO MATUBIS, plaintiff-appellant,

vs.
ZOILO PRAXEDES, defendant-appellee.

Luis N. de Leon for appellant.

Lucio La. Margallo for appellee.

PAREDES, J.:

Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the Court of First Instance of Camarines
Sur, on April 24, 1956, a complaint for legal Separation and changed of surname against her husband defendant Zoilo
Praxedes.

The allegations of the complaint were denied by defendant spouse, who interposed the defense that it was plaintiff who
left the conjugal home.

During the trial, wherein the plaintiff alone introduced oral as well as documentary evidence, the following facts were
established:.

Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For failure to agree on how they
should live as husband and wife, the couple, on May 30, 1944, agreed to live separately from each other, which status
remained unchanged until the present. On April 3, 1948, plaintiff and defendant entered into an agreement (Exhibit B),
the significant portions of which are hereunder reproduced..

. . . (a) That both of us relinquish our right over the other as legal husband and wife.

(b) That both without any interference by any of us, nor either of us can prosecute the other for adultery or
concubinage or any other crime or suit arising from our separation.
 (c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he may received
thereafter, nor I the husband is not entitled for anything from my wife.

(d) That neither of us can claim anything from the other from the time we verbally separated, that is from May
30, 1944 to the present when we made our verbal separation into writing.

In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September 1, 1955, said Asuncion
gave birth to a child who was recorded as the child of said defendant (Exh. C.).It was shown also that defendant and
Asuncion deported themselves as husband and wife and were generally reputed as such in the community.

After the trial, without the defendant adducing any evidence, the court a quo rendered judgment holding that the acts
of defendant constituted concubinage, a ground for legal separation. It however, dismissed the complaint by stating:

While this legal ground exist, the suit must be dismissed for two reasons, viz:

Under Art. 102 of the new Civil Code, an action for legal separation cannot be filed except within one year
from and after the date on which the plaintiff became cognizant of the cause and within five years from and
after the date when the cause occurred. The plaintiff became aware of the illegal cohabitation of her
husband with Asuncion Rebulado in January, 1955. The complaint was filed on April 24, 1956. The present action
was, therefore, filed out of time and for that reason action is barred.

Article 100 of the new Civil Code provides that the legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent to the adultery or concubinage. As shown in
Exhibit B, the plaintiff has consented to the commission of concubinage by her husband. Her consent is clear
from the following stipulations:

(b) That both of us is free to get any mate and live with as husband and wife without any interference
by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime
or suit arising from our separation. (Exh. B).

This stipulation is an unbridled license she gave her husband to commit concubinage. Having consented to the
concubinage, the plaintiff cannot claim legal separation.

The above decision is now before us for review, plaintiff- appellant claiming that it was error for the lower court to have
considered that the period to bring the action has already elapsed and that there was consent on the part of the
plaintiff to the concubinage. The proposition, therefore, calls for the interpretation of the provisions of the law upon
which the lower court based its judgment of dismissal.

Article 102 of the new Civil Code provides:

An action for legal separation cannot be filed except within one year from and after the date on which the
plaintiff became cognizant of the cause and within five years from after the date when cause occurred.

The complaint was filed outside the periods provided for by the above Article. By the very admission of plaintiff, she
came to know the ground (concubinage) for the legal separation in January, 1955. She instituted the complaint only on
April 24, 1956. It is to be noted that appellant did not even press this matter in her brief.

The very wording of the agreement Exhibit B. gives no room for interpretation other than that given by the trial judge.
Counsel in his brief submits that the agreement is divided in two parts. The first part having to do with the act of living
separately which he claims to be legal, and the second part — that which becomes a license to commit the ground for
legal separation which is admittedly illegal. We do not share appellant's view. Condonation and consent on the part of
plaintiff are necessarily the import of paragraph 6(b) of the agreement. The condonation and consent here are not only
implied but expressed. The law (Art. 100 Civil Code), specifically provides that legal separation may be claimed only by
the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Having
condoned and/or consented in writing, the plaintiff is now undeserving of the court's sympathy (People vs.
Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the complaint should be dismissed. He claims
however, that the grounds for the dismissal should not be those stated in the decision of the lower court, "but on the
ground that plaintiff and defendant have already been legally separated from each other, but without the marital bond
having been affected, long before the effectivity of the new Civil Code" (appellants brief, pp. 7-8). Again, we cannot
subscribed to counsel's contention, because it is contrary to the evidence.
Conformably with the foregoing, we find that the decision appealed from is in accordance with the evidence and the
law on the matter. The same is hereby affirmed, with costs.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, and Gutierrez David, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-37720 March 27, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
URSULA SENSANO and MARCELO RAMOS, defendants-appellants.

Emilio L. Medina for appellants.

Attorney-General Jaranilla for appellee.

BUTTE, J.:

The appellants were sentenced by the Court of First Instance of Ilocos Norte for the crime of adultery to three years, six
months and twenty-one days of prision correccional and appealed to this court, assigning the following error: "The court
below erred in not holding that the offended husband contested to the adultery committed by his wife Ursula Sensano in
that he refused to live with her after she extinguished her previous sentence for the same offense, and by telling her then
that she could go where she wanted to and do what she pleased, and by his silence for seven years notwithstanding
that he was informed of said adultery."

The facts briefly stated as follows:

Ursula Sensano and Mariano Ventura were married on April 29, 1919. They had one child. Shortly after the birth of his
child, the husband left his wife to go to the Province of Cagayan where he remained for three years without writing to his
wife or sending her anything for the support of herself and their son. Poor and illiterate, without relatives upon whom she
could call, she struggled for an existence for herself and her son until a fatal day when she met the accused Marcelo
Ramos who took her and the child to live with him. On the return of the husband (in 1924), he filed a charge against his
wife and Marcelo Ramos for adultery and both were sentenced to four months and one day of arresto mayor. The court,
in its decision, stated the following: "In the opinion of the court, the husband of the accused has been somewhat cruel in
his treatment of his wife having abandoned her as he did." After completing her sentence, the accused left her
paramour. She thereupon appealed to this municipal president and the justice of the peace to send for her husband so
that she might ask his pardon and beg him to take her back. At the house of the president she begged his pardon and
promised to be a faithful wife it he would take care her back. He refused to pardon her to live with her and said she
could go where she wished, that he would have nothing more to do with her, and she could do as she pleased.
Abandoned for the second time, she and her child went back to her coaccused Marcelo Ramos (this was in the year
1924) and they have lived with him ever since. The husband, knowing that she resumed living with her codefendant in
1924, did nothing to interfere with their relations or to assert his rights as husband. Shortly thereafter he left for the Territory
of Hawaii where she remained for seven years completely abandoning his said wife and child. On his return to these
Islands, he presented the second charge of adultery here involved with the sole purpose, as he declared, of being able
to obtain a divorce under the provisions of Act No. 2710.

Article 344 of the Revised Penal Code, paragraphs 1 and 2, are as follows:

Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. —
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties, if they are
both alive, nor, in any case, if he shall have consented or pardoned the offenders.
Apart from the fact that the husband in this case was assuming a mere pose when he signed the complaint as the
"offended" spouse, we have come to the conclusion that the evidence in this case and his conduct warrant the
inference that he consented to the adulterous relations existing between the accused and therefore he is not authorized
by law to institute this criminal proceeding.

We cannot accept the argument of the Attorney-General that the seven years of acquiescence on his part in the
adultery of his wife is explained by his absence from the Philippine Islands during which period it was impossible for him to
take any action against the accused. There is no merit in the argument that it was impossible for the husband to take
any action against the accused during the said seven years.

The judgment below is reversed with costs de oficio.

Street and Ostrand, JJ., concur.

Footnotes

1Published by authority of Court's Resolution of March 30, 1933.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-48183 November 10, 1941

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODOLFO A. SCHNECKENBURGER, ET AL., defendants-appellants.

Cardenas & Casal for appellants.

Office of the Solicitor-General Ozaeta and Acting Solicitor Luciano for appellee.

MORAN, J.:

On March 16, 1926, the accused Rodolfo A. Schneckenburger married the compliant Elena Ramirez Cartagena and
after seven years of martial life, they agreed, for reason of alleged incompatibility of character, to live separately each
other and on May 25, 1935 they executed a document which in part recites as follows:

Que ambos comparecientes convienen en vivir separados el uno del otro por el resto de su vida y se
comprometen, y obligan reciprocamente a no molastarse ni intervenir ni mezclarse bajo ningun concepto en
la vida publica o privada de los mismos, entre si, quendado cada uno de los otorgantes en completa libertad
de accion en calquier acto y todos concepto.

On June 15, 1935, the accused Schneckenburger, without leaving the Philippines, secured a decree of divorce from the
civil court of Juarez, Bravos District, State of Chihuahua, Mexico. On May 11, 1936, he contracted another marriage with
his co-accused, Julia Medel, in the justice of the peace court of Malabon, Rizal, and since then they lived together as
husband and wife in the city of Manila. Because of the nullity of the divorce decreed by the Mexico Court, complaint
herein instituted two actions against the accused, one for bigamy in the Court of First Instance of Rizal and the other
concubinage in the court of First Instance of Manila. The first culminated in the conviction of the accused for which he
was sentenced to penalty of two months and one day of arresto mayor. On the trial for the offense of concubinage
accused interposed the plea of double jeopardy, and the case was dismissed; but, upon appeal by the fiscal, this Court
held the dismissal before the trial to be premature this was under the former procedure and without deciding the
question of double jeopardy, remanded the case to the trial court for trial on the merits. Accused was convicted of
concubinage through reckless imprudence and sentenced to a penalty of two months and one day of arresto mayor.
Hence this appeal.

As to appellant's plea of double jeopardy, it need only be observed that the office of bigamy for which he was
convicted and that of concubinage for which he stood trial in the court below are two distinct offenses in law and in
fact as well as in the mode of their prosecution. The celebration of the second marriage, with the first still existing,
characterizes the crime of bigamy; on the other hand, in the present case, mere cohabitation by the husband with a
woman who is not his wife characterizes the crime of concubinage. The first in an offense against civil status which may
be prosecuted at the instance of the state; the second, an offense against chastity and may be prosecuted only at the
instance of the offended party. And no rule is more settled in law than that, on the matter of double jeopardy, the test is
not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the
same offense. (Diaz v. U. S., 223 U. S., 422; People v. Cabrera, 43 Phil., 82)

Upon the other hand, we believe and so hold that the accused should be acquitted of the crime of concubinage. The
document executed by and between the accused and the complaint in which they agreed to be "en completa
libertad de accion en cualquier acto y en todos conceptos," while illegal for the purpose for which it was executed,
constitutes nevertheless a valid consent to the act of concubinage within the meaning of section 344 of the Revised
Penal Code. There can be no doubt that by such agreement, each party clearly intended to forego to illicit acts of the
other.

We said before (People vs. Guinucod, 58 Phil., 621) that the consent which bars the offended party from instituting a
criminal prosecution in cases of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness is that
which has been given expressly or impliedly after the crime has been committed. We are now convinced that this is a
narrow view in way warranted by the language, as well as the manifest policy, of the law. The second paragraph of
article 344 of the Revised Penal Code provides:

The offended party cannot institute criminal prosecution without including both the guilty parties, if they are
both alive, nor, in any case, if he shall have consented or pardoned the offenders. (Emphasis ours.)

As the term "pardon" unquestionably refers to the offense after its commission, "consent" must have been intended
agreeably with its ordinary usage, to refer to the offense prior to its commission. No logical difference can indeed be
perceived between prior and subsequent consent, for in both instances as the offended party has chosen to
compromise with his/her dishonor, he/she becomes unworthy to come to court and invoke its aid in the vindication of
the wrong. For instance, a husband who believers his wife another man for adultery, is as unworthy, if not more, as where,
upon acquiring knowledge of the adultery after its commission, he says or does nothing. We, therefore, hold that the
prior consent is as effective as subsequent consent to bar the offended party from prosecuting the offense.

In this arriving at this conclusion we do not with to be misconstrued as legalizing an agreement to do an illicit act, in
violation of law. Our view must be taken only to mean that an agreement of the tenor entered into between the parties
herein, operates, within the plain language and manifest policy of the law, to bar the offended party from prosecuting
the offense. If there is anything morally condemnatory in a situation of his character, the remedy lies not with us but with
the legislative department of the government. What the law is, not what it should be, defines the limits of our authority.

Judgment is reversed and the accused is hereby acquitted, without costs.

Avanceña, C.J., Abad Santos, Diaz and Horilleno, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10033 December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,

vs.
LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant.
Numeriano Tanopo, Jr. for appellee.

FELIX, J.:

This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the defendant,
the case was dismissed. The order of dismissal was appealed to the Court of Appeals, but said Tribunal certified the case
to the Court on the ground that there is absolutely no question of fact involved, the motion being predicated on the
assumption as true of the very facts testified to by plaintiff-husband.

The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United States Navy, was
married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately
after their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila. After some time, or about
July, 1951, Leonila Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone to
reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local
college there.

As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister-in-law) and
some from anonymous writers(which were not produced at the hearing) informing him of alleged acts of infidelity of his
wife which he did not even care to mention. On cross-examination, plaintiff admitted that his wife also informed him by
letter, which she claims to have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in
October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him and his
wife on account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal
department.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one Mrs.
Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro Bugayong, a
cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they
repaired to the plaintiff's house and again passed the night therein as husband and wife. On the second day, Benjamin
Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but
Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of
infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to find her,
he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".

On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal
separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the averments of the
complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was not
possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6
witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for the
dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to
answer the same.

The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the allegations of the
commission of "acts of rank infidelity amounting to adultery", the cause of action, if any, is barred by the statute of
limitations; (2) That under the same assumption, the act charged have been condoned by the plaintiff-husband; and (3)
That the complaint failed to state a cause of action sufficient for this court to render a valid judgment.

The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the motion to
dismiss i. e., condonation, ordered the dismissal of the action. After the motion for reconsideration filed by plaintiff was
denied, the case was taken up for review to the Court of Appeals, appellant's counsel maintaining that the lower court
erred:

(a) In so prematurely dismissing the case;

(b) In finding that there were condonation on the part of plaintiff-appellant; and
 (c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a
motion to dismiss.

As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case to Superiority.

The Civil Code provides:

ART. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the
Penal Code; or

(2) An attempt by one spouse against the life of the other.

ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot by either of them. Collusion between the parties to obtain legal separation shall cause the
dismissal of the petition.

ART. 102. An action for legal separation cannot be filed except within one year from and after the date on
which the plaintiff became cognizant of the cause and within five years from and after the date when such
cause occurred.

As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of adultery
that the plaintiff-husband had preferred in the complaint against his wife, We will disregard the other 2 grounds of the
motion to dismiss, as anyway they have not been raised in appellant's assignment of errors.

Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouver's
Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a matrimonial
offense which the latter has committed". It is to be noted, however, that in defendant's answer she vehemently and
vigorously denies having committed any act of infidelity against her husband, and even if We were to give full weight to
the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and link such evidence
with the averments of the complaint, We would have to conclude that the facts appearing on the record are far from
sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery"
preferred against the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law Valeriana
Polangco, which must have been too vague and indefinite as to defendant's infidelity to deserve its production in
evidence; nor the anonymous letters which plaintiff also failed to present; nor the alleged letter that, according to
plaintiff, his wife addressed to him admitting that she had been kissed by one Eliong, whose identity was not established
and which admission defendant had no opportunity to deny because the motion to dismiss was filed soon after plaintiff
finished his testimony in Court, do not amount to anything that can be relied upon.

But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the assumption that
he really believed his wife guilty of adultery. What did he do in such state of mind. In August, 1952, he went to
Pangasinan and looked for his wife and after finding her they lived together as husband and wife for 2 nights and 1 day,
after which he says that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain his
purpose because his wife, instead of answering his query on the matter, preferred to desert him, probably enraged for
being subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude of
sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to a condonation of
her previous and supposed adulterous acts? In the order appealed from, the Court a quo had the following to say on
this point:

In the hearing of the case, the plaintiff further testified as follows:

Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this Hon. Court
why you want to separate from your wife? — A. I came to know that my wife is committing adultery, I consulted
the chaplain and he told me to consult the legal adviser. (p. 11, t.s.n.)

Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to the house of our
god-mother, and as a husband I went to her to come along with me in our house but she refused. (p. 12,
t.s.n.)lawphil.net
Q. What happened next? — A. I persuaded her to come along with me. She consented but I did not bring her
home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)

Q. How long did you remain in the house of your cousin Pedro Bugayong? — A. One day and one night. (p. 12.
t.s.n.)

Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did you slept
together? — A. Yes, sir. (p. 19, t.s.n.)

Q. On the next night, when you slept in your own house, did you sleep together also as husband and wife? —
A. Yes, sir. (p. 19. t.s.n.)

Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)

Q. How many nights did you sleep together as husband and wife? — A. Only two nights. (p. 19, t.s.n.)

The New Civil Code of the Philippines, in its Art. 97, says:

A petition for legal separation may be filed:

(1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the Penal
Code.

and in its Art. 100 it says:lawphil.net

The legal separation may be claimed only by the innocent spouse, provided there has been no condonation
of or consent to the adultery or concubinage. Where both spouses are offenders, legal separation cannot be
claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of
the petition.

A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above,
clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank infidelity
amounting to adultery" committed by defendant-wife. Admitting for the sake of argument that the infidelities
amounting to adultery were committed by the defendant, a reconciliation was effected between her and the
plaintiff. The act of the latter in persuading her to come along with him, and the fact that she went with him
and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as
husband and wife for one day and one night, and the further fact that in the second night they again slept
together in their house likewise as husband and wife — all these facts have no other meaning in the opinion of
this court than that a reconciliation between them was effected and that there was a condonation of the wife
by the husband. The reconciliation occurred almost ten months after he came to know of the acts of infidelity
amounting to adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is implied from
sexual intercourse after knowledge of the other infidelity. such acts necessary implied forgiveness. It is entirely
consonant with reason and justice that if the wife freely consents to sexual intercourse after she has full
knowledge of the husband's guilt, her consent should operate as a pardon of his wrong."

In Tiffany's Domestic and Family Relations, section 107 says:

Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the
right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer
shall not again commit the offense; and also that he shall thereafter treat the other spouse with
conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce.
Condonation may be express or implied.

It has been held in a long line of decisions of the various supreme courts of the different states of the U. S. that 'a
single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily
sufficient to constitute condonation, especially as against the husband'. (27 Corpus Juris Secundum, section 61
and cases cited therein).
 In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the
various decisions above-cited, the inevitable conclusion is that the present action is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of
the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the offended
spouse, of any action for legal separation against the offending wife, because his said conduct comes within the
restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the
offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to conclusive
evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73).

If there had been cohabitation, to what extent must it be to constitute condonation?

Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation,
and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation
(27 C. J. S., section 6-d).

A divorce suit will not be granted for adultery where the parties continue to live together after it was known
(Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of
adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl.
401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The
resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to
the contrary, from the fact of the living together as husband and wife, especially as against the husband
(Marsh vs. Marsh, 14 N. J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in the
decisions of the various supreme courts of the United States above quoted.

There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for
dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the second ground of the
motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet that
motion serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of plaintiff
himself (section 4, Rule 17 of the Rules of Court).

Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs against
appellant. It is so ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.

DIVISION

[ GR No. 190995, Aug 09, 2017 ]

BENJAMIN A. KO v. VIRGINIA DY ARAMBURO +

DECISION

TIJAM, J.:

This is a Petition for Review on Certiorari[1] under Rule 45, assailing the Decision[2] dated September 22, 2009 of the Court
of Appeals (CA) in CA-G.R. CV No. 89611, affirming the Decision dated February 16, 2006 of the Regional Trial Court
(RTC) of Tabaco City, Branch 15, in Civil Case No. T-1693.
Factual and Procedural Antecedents
Respondent Virginia Dy Aramburo (Virginia) is Corazon Aramburo Ko's (Corazon) sister-in-law, the former being the wife
of the latter's brother, Simeon Aramburo (Simeon). Corazon and Simeon have another sibling, Augusto Aramburo
(Augusto), who predeceased them. Virginia's co respondents herein are the heirs of Augusto, while the petitioners in the
instant case are the heirs of Corazon who substituted the latter after she died while the case was pending before the
CA.[3]

On November 26, 1993, Virginia, together with her co-respondents herein, filed a Complaint for Recovery of Ownership
with Declaration of Nullity and/or Alternatively Reconveyance and Damages with Preliminary Injunction against
Corazon, docketed as Civil Case No. T-1693.[4]

Subject of this case are seven parcels of land located in Tabaco City, Albay, to wit: (1) Transfer Certificate of Title (TCT)
No. T-41187 with an area of 176,549 square meters, more or less; (2) TCT No. T-41183 with an area of 217,732 sq m, more or
less; (3) TCT No. T-41184 with an area of 39,674 sq m, more or less; (4) TCT No. T-28161 with an area of 86,585 sq m, more or
less; (5) TCT No. T-41186 with an area of 4,325 sq m, more or less; (6) TCT No. 49818 with an area of 27,281 sq m, more or
less; and (7) TCT No. 49819 with an area of 35,760 sq m, more or less (subject properties), now all under the name of
Corazon.[5]

The complaint alleged that Virginia and her husband Simeon (Spouses Simeon and Virginia), together with Corazon and
her husband Felix (Spouses Felix and Corazon), acquired the subject properties from Spouses Eusebio and Epifania
Casaul (Spouses Eusebio and Epifania) through a Deed of Cession dated April 10, 1970.[6]

On April 13, 1970, Spouses Simeon and Virginia and Spouses Felix and Corazon executed a Deed of Cession in favor of
Augusto's heirs, subject of which is the one-third pro-indiviso portion of the subject properties.[7]

However, allegedly with the use of falsified documents, Corazon was able to have the entire subject properties
transferred exclusively to her name, depriving her co-owners Virginia and Augusto's heirs of their pro-indiviso share, as
well as in the produce of the same.[8]

For her part, Corazon admitted having acquired the subject properties through cession from their uncle and auntie,
Spouses Eusebio and Epifania. She, however, intimated that although the said properties were previously registered
under Spouses Eusebio and Epifania's name, the same were, in truth, owned by their parents, Spouses Juan and Juliana
Aramburo (Spouses Juan and Juliana). Hence, when her parents died, Spouses Eusebio and Epifania allegedly merely
returned the said properties to Spouses Juan and Juliana by ceding the same to their children, Corazon and Simeon. She
further averred that the said properties were ceded only to her and Simeon, in that, her husband Felix's name and
Virginia's name appearing in the Deed were merely descriptive of her and Simeon's civil status, being married to Felix
and Virginia, respectively.[9]

Corazon alleged that she and Simeon thought of sharing a third of the subject properties with the heirs of their brother
Augusto who predeceased them, hence they executed a Deed of Cession on April 13, 1970 but later on decided to
recall and not implement the same. In fine, thus, Corazon insisted that only she and Simeon share one-half portion each
of the subject properties. [10]

Corazon further alleged that on December 14, 1974, Simeon sold and conveyed his entire one-half share in the co-
owned properties in her favor. Hence, Corazon became the sole owner thereof and consequently, was able to transfer
the titles of the same to her name. Corazon argued that the subject properties belong to Simeon's exclusive property,
hence, Virginia's conformity to such sale was not necessary.[11]

Corazon also raised in her Answer to the complaint, that respondents' action was barred by prescription.[12]

Ruling of the RTC

During trial, it was established that Simeon and Virginia's marriage had been on bad terms. In fact, since February 4, 1973
Simeon and Virginia had lived separately. Simeon lived with his sister Corazon in Tabaco City, Albay, while Virginia and
their children lived in Paco, Manila. From these circumstances, the trial court deduced that it is highly suspicious that
thereafter, Virginia would sign a deed of sale, consenting to her husband's decision to sell their conjugal assets to
Corazon. Virginia vehemently disowned the signature appearing in the December 14, 1974 Deed of Absolute Sale. Verily,
the National Bureau of Investigation (NBI) examination report concluded that the questioned signature and the
specimen signatures of Virginia were not written by one and the same person and thus, the former is a forgery. [13]

Without the conformity of Virginia, according to the trial court, Simeon cannot alienate or encumber any real property of
the conjugal partnership.[14]

The trial court concluded, thus, that the December 14, 1974 Deed of Absolute Sale, being falsified, is not a valid
instrument to transfer the one third share of the subject properties.[15]

The trial court also did not accept Corazon's allegation that the April 13, 1970 Deed of Cession in favor of Augusto's heirs
as to the other one third portion of the subject properties, was cancelled and not implemented. The trial court noted
Corazon's testimony during trial that she was merely administering the said portion for Augusto's heirs, her nephews and
nieces, who were still minors at that time.[16]

On February 16, 2006, the trial court rendered a Decision in favor of herein respondents, thus:

WHEREFORE, foregoing premises considered, judgment is hereby rendered in favor of the plaintiffs:
Declaring the plaintiffs Virginia Dy-Arambulo and Vicky Aramburo-Lee together with the interested parties the
(1)
owner of ONE-THIRD (1/3) portion of the property subject mater of this case;

Declaring the co-plaintiffs (heirs of Augusto Aramburo) likewise the owners of One-third (1/3) portion of the
(2)
property subject matter of this case;

Ordering the Cancellation of [TCT] Nos. T-41187,T-41183, T-41184, T-41185, T-41186, T-48918[4] [sic] and T-49819 and
another ones issued upon proper steps taken in the names of the plaintiffs and interested parties; and the other
(3)
plaintiffs, Heirs of Augusto Aramburo, conferring ownership over TWO-THIRDS (2/3) PORTION of the properties
subject matter of this case;

Ordering the defendant to reimburse the plaintiffs TWO-THIRDS (2/3) of the produce of the properties, subject
(4) matter of this case from the time she appropriated it to herself in 1974 until such time as the 2/3 share are duly
delivered to them; and

Ordering the defendant to pay plaintiffs by way of damages the amount of Fifty Thousand (P50,000.00) as
(5)
attorney's fees; and

(6) To pay the cost of suit.

SO ORDERED.[17]

Ruling of the CA
On appeal, Corazon maintained that the subject properties are not part of Spouses Simeon and Virginia's conjugal
properties. This, according to her, is bolstered by the fact that the subject properties are not included in the case for
dissolution of conjugal partnership docketed as Special Proceeding No. 67, and in the separation of properties case
docketed as Civil Case No. T-1032 between Simeon and Virginia.[18]

Respondents argued otherwise. Particularly, Virginia insisted that only a third portion of the subject properties is owned by
Simeon and that the same is conjugally-owned by her and Simeon since it was acquired during their marriage. As such,
the disposition by Simeon of the one-half portion of the subject properties in favor of Corazon is not only void but also
fictitious not only because Simeon does not own the said one-half portion, but also because Virginia's purported
signature in the December 14, 1974 Deed of Absolute Sale as the vendor's wife was a forgery as found by the NBI, which
was upheld by the trial court.[19]

In its September 22, 2009 assailed Decision,[20] the CA affirmed the trial court's findings and conclusion in its entirety, thus:

WHEREFORE, the present appeal is DISMISSED. Consequently, the Decision of the [RTC], Branch 15, Tabaco City, in Civil
Case No. T-1693 is hereby AFFIRMED in toto.

SO ORDERED.[21]
Petitioners then, substituting deceased Corazon, filed a Motion for Reconsideration,[22] which was likewise denied by the
CA in its Resolution[23] dated January 13, 2010:

WHEREFORE, there being no cogent reason for US to depart from Our assailed Decision, WE hereby DENY the Motion for
Partial Reconsideration.

SO ORDERED.[24]
Hence, this petition.

Issue

Did the CA correctly sustain the RTC decision, declaring the parties as co-owners of the subject properties? In the
affirmative, may the subject titles be nullified and transferred to the parties as to their respective portions?

This Court's Ruling

The petition is partly meritorious.

At the outset, let it be stated that the law which governs the instant case is the Old Civil Code, not the Family Code, as
the circumstances of this case all occurred before the effectivity of the Family Code on August 3, 1988.

Proceeding, thus, to the issue of ownership, We find no reason to depart from the RTC's ruling as affirmed by the CA.
Augusto's heirs own one-third pro-indiviso share in the
subject properties
Respondents' (Augusto's heirs) claim concerning one-third of the subject properties, is anchored upon the April 13, 1970
Deed of Cession executed by Spouses Felix and Corazon and Spouses Simeon and Virginia in favor of Augusto's children.
Petitioners, however, maintain that the said deed was never given effect as it was recalled by the said spouses.

The courts a quo found that the said deed, ceding a third of the subject properties to Augusto's heirs, was in fact
implemented as evidenced by Corazon's testimony that she was merely administering the said properties for Augusto's
heirs as her nephews and nieces were still minors at that time.

We find no cogent reason to depart from the the courts a quo's findings as to the existence and effectivity of the April
13, 1970 Deed of Cession giving rights to Augusto's children over the one-third portion of the subject property. For one,
basic is the rule that factual findings of the trial court, especially if affirmed by the appellate court, are binding and
conclusive upon this Court absent any clear showing of abuse, arbitrariness, or capriciousness committed by the trial
court.[25] In addition, We are not convinced of Corazon's bare assertion that the said document was cancelled merely
because she and her brother . Simeon decided not to implement it anymore. Moreover, as can be gleaned from the
testimony of respondent July Aramburo, one of Augusto's heirs, which was notably quoted by the petitioners in this
petition, it is clear that he, together with his co-heirs, are co-owners of the subject properties along with Spouses Simeon
and Virginia and Spouses Felix and Corazon, by virtue of the Deed of Cession executed in their favor. The said testimony
clearly stated that Simeon was also merely administering the subject properties.[26]

Simeon's heirs, which include Virginia, also own one-third

pro-indiviso share in the subject properties
Respondent Virginia's claim as to the other one-third portion of the subject properties is ultimately anchored upon the
April 10, 1970 Deed of Cession. Corazon, however, countered that inasmuch as her husband Felix's name in the said
Deed of Cession was merely descriptive of her status as being married to the latter, Virginia's name likewise appeared in
the said Deed of Cession merely to describe Simeon's status as being married to Virginia. In fine, Corazon argued that
the properties subject of the said Deed were given exclusively to her and Simeon. Consequently, the one-half portion
thereof pertains to Simeon's exclusive property and does not belong to Simeon and Virginia's conjugal property. This,
according to Corazon, was bolstered by the fact that Simeon's share in the subject properties was not included in the
petition for separation of properties between Virginia and Simeon. Petitioners maintain this argument.

We uphold the courts a quo's conclusion that one-third portion of the subject properties is indeed part of Simeon and
Virginia's conjugal properties.

It is undisputed that the subject properties were originally registered in the name of Spouses Eusebio and Epifania. It is
also undisputed that in a Deed of Cession dated April 10, 1970, these parcels of land were ceded to Spouses Felix and
Corazon, and Spouses Simeon and Virginia. There is likewise no question that the subject properties were ceded to the
said spouses during Spouses Simeon and Virginia's marriage.

Article 160 of the Old Civil Code, which is the applicable provision since the property was acquired prior to the
enactment of the Family Code as stated above, provides that "all property of the marriage is presumed to belong to the
conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife."[27] This presumption in
favor of conjugality is rebuttable, but only with a strong, clear and convincing evidence; there must be a strict proof of
exclusive ownership of one of the spouses,[28] and the burden of proof rests upon the party asserting it.[29]

Thus, in this case, the subject properties, having been acquired during the marriage, are still presumed to belong to
Simeon and Virginia's conjugal properties.

Unfortunately, Corazon, or the petitioners for that matter, failed to adduce ample evidence that would convince this
Court of the exclusive character of the properties.

Petitioners' argument that Virginia's name was merely descriptive of Simeon's civil status is untenable. It bears stressing
that if proof obtains on the acquisition of the property during the existence of the marriage, as in this case, then the
presumption of conjugal ownership remains unless a strong, clear and convincing proof was presented to prove
otherwise. In fact, even the registration of a property in the name of one spouse does not destroy its conjugal nature.
What is material is the time when the property was acquired.[30]

We also give scant consideration on petitioners' bare allegation that the subject properties were actually from the estate
of Simeon and Corazon's parents, intimating that the same were inherited by Simeon and Corazon, hence, considered
their exclusive properties. The records are bereft of any proof that will show that the subject properties indeed belonged
to Simeon and Corazon's parents. Again, what is established is that the subject properties were originally registered under
Spouses Eusebio and Epifania's name and thus, ceded by the latter. Petitioners' bare allegation on the matter is so
inadequate for the Court to reach a conclusion that the acquisition of the subject properties was in a nature of
inheritance than a cession.

Likewise, the fact that the subject properties were not included in the cases for separation of properties between Simeon
and Virginia does not, in any way, prove that the same are not part of Simeon and Virginia's conjugal properties. Such
fact cannot be considered as a strong, clear and convincing proof that the said properties exclusively belong to
Simeon. Besides, We note respondents' allegation in their Comment to this petition that the case for separation of
properties between Simeon and Virginia was not resolved by the trial court on the merits as Simeon died during the
pendency thereof, and also because there was actually a disagreement as to the inventory the properties included
therein. This could mean that precisely, other properties may be part of the said spouses' conjugal properties and were
not included in the said case. Notably, such allegation was not denied by the petitioners.

At any rate, the question of whether petitioners were able to adduce proof to overthrow the presumption of conjugality
is a factual issue best addressed by the trial court. It cannot be over-emphasized that factual determinations of the trial
courts, especially when confirmed by the appellate court, are accorded great weight by the Court and, as a rule, will
not be disturbed on appeal, except for the most compelling reasons, which We do not find in the case at bar.[31]

Simeon could not have validly sold the one-third share of

Augusto's heirs, as well as the one-third portion of his and
Virginia's conjugal share without the latter's consent, to
Corazon
We now proceed to determine the validity of the December 14, 1974 Deed of Absolute Sale executed by Simeon in
favor of Corazon, covering one-half of the subject properties which was his purported share.

As for the one-third portion of the subject properties pertaining to Augusto's heirs, We are one with the CA in ruling that
the Deed of Absolute Sale is void as the said portion is owned by Augusto's heirs as above-discussed and thus, Simeon
had no right to sell the same. It is basic that the object of a valid sales contract must be owned by the seller.[32] Nemo
dat quod non habet, as an ancient Latin maxim says. One cannot give what one does not have.[33]

However, as to the one-third portion commonly-owned by Spouses Simeon and Virginia, Simeon's alienation of the same
through sale without Virginia's conformity is merely voidable.

Article 166[34] of the Old Civil Code explicitly requires the consent of the wife before the husband may alienate or
encumber any real property of the conjugal partnership except when there is a showing that the wife is incapacitated,
under civil interdiction, or in like situations.

In this case, Virginia vehemently denies having conformed to the December 14, 1974 sale in favor of Corazon. In fact,
during trial, it has already been satisfactorily proven, through the NBI's findings as upheld by the trial court, that Virginia's
signature appearing on the said Deed of Absolute Sale is a forgery. Concedingly, a finding of forgery does not depend
entirely on the testimonies of handwriting experts as even this Court may conduct an independent examination of the
questioned signature in order to arrive at a reasonable conclusion as to its authenticity. We, however, do not have any
means to evaluate the questioned signature in this case as even the questioned Deed of Absolute Sale is not available
in the records before Us. Hence, We are constrained to the general rule that the factual findings of the RTC as affirmed
by the CA should not be disturbed by this Court unless there is a compelling reason to deviate therefrom.

In addition, as correctly observed by the courts a quo, We cannot turn a blind eye on the circumstances surrounding the
execution of the said Deed of Absolute Sale. The CA, quoting the RTC, held thus:

[T]he dubiety of its execution at a time that [Virginia] and her husband's marital relationship was already stale is not to be
taken for granted. It is a fact that [Virginia] had lived separately from bed and board with her husband [Simeon] as of
February 4, 1973. It is, therefore, highly suspicious that [later on], x x x she would consent to her husband's decision selling
their conjugal assets to [Corazon]. Precisely, her signature appearing in said Deed of Absolute Sale dated December 14,
1974 x x x is being disowned by her as being a forgery. Undoubtedly, the NBI Examination report anent this x x x
conducted by Sr. Document Examiner Rhoda B. Flores gave the conclusion that the questioned and the
standard/sample signatures of "[Virginia]" was not written by one and the same person. x x x.[35]
The CA also correctly observed that the forgery, as found by the RTC, is evident from the admitted fact of strained
marital relationship between Simeon and Virginia and the fact that at the time the question Deed of Absolute Sale was
executed, Simeon had been living with Corazon in Tabaco City, Albay, while Virginia and her children were living in
Paco, Manila.[36]

Accordingly, without Virginia's conformity, the Deed of Absolute Sale executed on December 14, 1974 between Simeon
and Corazon purportedly covering one-half of the subject properties is voidable.

As for Augusto's heirs, the action to nullify the sale of their

share, being void is imprescriptible; as for Virginia, the
action to nullify the sale of her share, being merely
voidable, is susceptible to prescription
At this juncture, We differ from the CA's pronouncement that since the deed of sale involved is a void contract, the
action to nullify the same is imprescriptible.

We qualify.
For the share of Augusto's heirs sold by Simeon in the December 14, 1974 Deed of Absolute Sale, the sale of the same is
void as the object of such sale, not being owned by the seller, did not exist at the time of the transaction.[37] Being a void
contract, thus, the CA correctly ruled that the action to impugn the sale of the same is imprescriptible pursuant to Article
1410[38] of the New Civil Code (NCC).

As for the share pertaining to Simeon and Virginia, We must emphasize that the governing law in this case is the Old Civil
Code. Under the said law, while the husband is prohibited from selling the commonly-owned real property without his
wife's consent, still, such sale is not void but merely voidable.[39] Article 173 thereof gave Virginia the right to have the sale
annulled during the marriage within ten years from the date of the sale. Failing in that, she or her heirs may demand,
after dissolution of the marriage, only the value of the property that Simeon erroneously sold.[40] Thus:

Art. 173. The wife may, during the marriage, and within ten years from the transaction questioned, ask the courts for the
annulment of any contract of the husband entered into without her consent, when such consent is required, or any act
or contract of the husband which tends to defraud her or impair her interest in the conjugal partnership property. Should
the wife fail to exercise this right, she or her heirs, after the dissolution of the marriage, may demand the value of property
fraudulently alienated by the husband.
In contrast, the Family Code does not provide a period within which the wife who gave no consent may assail her
husband's sale of real property. It simply provides that without the other spouse's written consent or a court order
allowing the sale, the same would be void.[41] Thus, the provisions of the NCC governing contracts is applied as regards
the issue on prescription. Under the NCC, a void or inexistent contract has no force and effect from the very beginning,
and this rule applies to contracts that are declared void by positive provision of law as in the case of a sale of conjugal
property without the other spouse's written consent.[42] Under Article 1410 of the NCC, the action or defense for the
declaration of the inexistence of a contract does not prescribe.

As this case, as far as Virginia is concerned, falls under the provisions of the Old Civil Code, the CA erred in ruling that the
subject Deed of Absolute Sale is void for the lack of the wife's conformity thereto and thus, applying Article 1410 of the
NCC stating that the action to question a void contract is imprescriptible. Again, Simeon's sale of their conjugal property
without his wife's conformity under the Old Civil Code is merely voidable not void. The imprescriptibility of an action
assailing a void contract under Article 1410 of the NCC, thus, does not apply in such case. The 10-year prescriptive
period under Article 173 of the Old Civil Code, therefore, should be applied in this case.

Here, the invalid sale was executed on December 14, 1974 while the action questioning the same was filed in 1993,
which is clearly way beyond the 10-year period prescribed under Article 173 of the Old Civil Code. Virginia's recourse is,
therefore, to demand only the value of the property, i.e., the one-third portion of the subject properties invalidly sold by
Simeon without Virginia's conformity pursuant to the same provision.

In fine, while We uphold the courts a quo's findings that the parties herein are co-owners of the subject properties, We
reverse and set aside the said courts' ruling, ordering the cancellation of titles of the entire subject properties and the
transfer of the two-thirds portion of the same to the respondents. While Augusto's heirs are entitled to the recovery of their
share in the subject properties, Virginia is only entitled to demand the value of her share therefrom pursuant to Article 173
of the Old Civil Code above-cited.

WHEREFORE, premises considered, the petition is PARTLY GRANTED. The Decision dated September 22, 2009 of the Court
of Appeals in CA-G.R. CV No. 89611, affirming the Decision dated February 16, 2006 of the Regional Trial Court of Tabaco
City, Branch 15, in Civil Case No. T-1693 is hereby AFFIRMED in all aspects EXCEPT insofar as it ordered the cancellation of
the titles of the entire subject properties.

Accordingly, petitioners Heirs of Corazon Aramburo Ko, respondents Virginia Dy Aramburo and all persons claiming
under her, as Heirs of Simeon Aramburo, and respondents Heirs of Augusto Aramburo are deemed co-owners pro-
indiviso of the subject properties in equal one-third (1/3) share. As such, the titles over the subject properties
are ORDERED cancelled insofar as the heirs of Augusto Aramburo's share is concerned. Virginia Dy Aramburo and all
persons claiming under her have the right to demand for the value of their one-third (1/3) share in a proper case.

SO ORDERED.

Velasco, Jr., (Chairperson), Peralta,[*] Bersamin, and Jardeleza, JJ., concur.

October 19, 2017

NOTICE OF JUDGMENT

Sirs/Mesdames:
Please take notice that on August 9, 2017 a Decision, copy attached hereto, was rendered by the Supreme Court in the
above-entitled case, the original of which was received by this Office on October 19, 2017 at 10:05 a.m.

Very truly yours,

(SGD.) WILFREDO V. LAPITAN

Division Clerk of Court

Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION

SPOUSES ATTY. ERLANDO A. ABRENICA and JOENA B. G.R. No. 180572

ABRENICA
Petitioners, Present:

CARPIO, Chairperson,
- versus - BRION,
PEREZ,
SERENO, and
LAW FIRM OF ABRENICA, TUNGOL and TIBAYAN, ATTYS. REYES, JJ.
ABELARDO M. TIBAYAN and DANILO N. TUNGOL,
Respondents. Promulgated:

June 18, 2012

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

SERENO, J.:

The present case is a continuation of G.R. No. 169420[1] decided by this Court on 22 September 2006. For brevity,

we quote the relevant facts narrated in that case:

Petitioner Atty. Erlando A. Abrenica was a partner of individual respondents, Attys. Danilo N.
Tungol and Abelardo M. Tibayan, in the Law Firm of Abrenica, Tungol and Tibayan (the firm).

In 1998, respondents filed with the Securities and Exchange Commission (SEC) two cases
against petitioner. The first was SEC Case No. 05-98-5959, for Accounting and Return and Transfer of
Partnership Funds With Damages and Application for Issuance of Preliminary Attachment, where they
alleged that petitioner refused to return partnership funds representing profits from the sale of a parcel
of land in Lemery, Batangas. The second was SEC Case No. 10-98-6123, also for
Accounting and Return and Transfer of Partnership Funds where respondents sought to recover from
petitioner retainer fees that he received from two clients of the firm and the balance of the cash
advance that he obtained in 1997.

The SEC initially heard the cases but they were later transferred to the Regional Trial Court of
Quezon City pursuant to Republic Act No. 8799, which transferred jurisdiction over intra-corporate
controversies from the SEC to the courts. In a Consolidated Decision dated November 23, 2004, the
Regional Trial Court of Quezon City, Branch 226, held that:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered as follows:

 CIVIL CASE NO. Q01-42948

1. Ordering the respondent Atty. Erlando Abrenica to render full accounting of the
amounts he received as profits from the sale and resale of the Lemery property in the amount
of ₱4,524,000.00;

2. Ordering the respondent Atty. Erlando Abrenica to remit to the law firm the said
amount of ₱4,524,000.00 plus interest of 12% per annum from the time he received the same
and converted the same to his own personal use or from September 1997 until fully paid; and

3. To pay the costs of suit.

CIVIL CASE NO. Q01-42959

1. Ordering Atty. Erlando Abrenica to render a full accounting of the amounts he

received under the retainer agreement between the law firm and Atlanta Industries Inc. and
Atlanta Land Corporation in the amount of ₱320,000.00.

2. Ordering Atty. Erlando Abrenica to remit to the law firm the amount received by
him under the Retainer Agreement with Atlanta Industries, Inc. and Atlanta Land Corporation
in the amount of ₱320,000.00 plus interests of 12% per annum from June 1998 until fully paid;

3. Ordering Atty. Erlando Abrenica to pay the law firm his balance on his cash
advance in the amount of ₱25,000.00 with interest of 12% per annum from the date this
decision becomes final; and

4. To pay the costs of suit.

SO ORDERED.

Petitioner received a copy of the decision on December 17, 2004. On December 21, 2004, he
filed a notice of appeal under Rule 41 and paid the required appeal fees.

Two days later, respondents filed a Motion for Issuance of Writ of Execution pursuant to A.M.
01-2-04-SC, which provides that decisions in intra-corporate disputes are immediately executory and
not subject to appeal unless stayed by an appellate court.

On January 7, 2005, respondents filed an Opposition (To Defendant's Notice of Appeal) on the
ground that it violated A.M. No. 04-9-07-SC[2] prescribing appeal by certiorari under Rule 43 as the
correct mode of appeal from the trial courts decisions on intra-corporate disputes.

Petitioner thereafter filed a Reply with Manifestation (To the Opposition to Defendant's Notice
of Appeal) and an Opposition to respondents motion for execution.

On May 11, 2005, the trial court issued an Order requiring petitioner to show cause why it should
take cognizance of the notice of appeal in view of A.M. No. 04-9-07-SC. Petitioner did not comply with
the said Order. Instead, on June 10, 2005, he filed with the Court of Appeals a Motion for Leave of Court
to Admit Attached Petition for Review under Rule 43 of the Revised Rules of Court. Respondents
opposed the motion.

The Court of Appeals denied petitioner's motion in its assailed Resolution dated June 29, 2005
x x x.

xxxxxxxxx

The Court of Appeals also denied petitioner's motion for reconsideration in its August 23, 2005
Resolution.
 Given the foregoing facts, we dismissed the Petition in G.R. No. 169420 on the ground that the appeal filed by

petitioner was the wrong remedy. For that reason, we held as follows:[3]

Time and again, this Court has upheld dismissals of incorrect appeals, even if these were timely
filed. In Lanzaderas v. Amethyst Security and General Services, Inc., this Court affirmed the dismissal by
the Court of Appeals of a petition for review under Rule 43 to question a decision because the proper
mode of appeal should have been a petition for certiorari under Rule 65. x x x.

xxxxxxxxx

Indeed, litigations should, and do, come to an end. Public interest demands an end to every
litigation and a belated effort to reopen a case that has already attained finality will serve no purpose
other than to delay the administration of justice. In the instant case, the trial court's decision became
final and executory on January 3, 2005. Respondents had already acquired a vested right in the effects
of the finality of the decision, which should not be disturbed any longer.

WHEREFORE, the petition is DENIED. The Court of Appeals Resolutions dated June 29, 2005 and
August 23, 2005 in CA-G.R. SP No. 90076 denying admission of petitioners Petition for Review
are AFFIRMED.

Thus, respondents sought the execution of the judgment. On 11 April 2007, G.R. No. 169420 became final and

executory.[4]

Apparently not wanting to be bound by this Courts Decision in G.R. No. 169420, petitioners Erlando and Joena

subsequently filed with the Court of Appeals (CA) a Petition for Annulment of Judgment with prayer for the issuance of a

writ of preliminary injunction and/or temporary restraining order, docketed as CA-G.R. SP No. 98679. The Petition for

Annulment of Judgment assailed the merits of the RTCs Decision in Civil Case Nos. Q-01-42948 and Q-01-42959, subject of

G.R. No. 169420. In that Petition for Annulment, Petitioners raised the following grounds:

I. The lower court erred in concluding that both petitioners and respondents did not present
direct documentary evidence to substantiate [their] respective claims.

II. The lower court erred in concluding that both petitioners and respondents relied mainly on
testimonial evidence to prove their respective position[s].

III. The lower court erred in not ruling that the real estate transaction entered into by said
petitioners and spouses Roman and Amalia Aguzar was a personal transaction and not a law
partnership transaction.

IV. The lower court erred in ruling that the testimonies of the respondents are credible.

V. The lower court erred in ruling that the purchase price for the lot involved was ₱3 million and
not ₱8 million.

VI. The lower court erred in ruling that petitioners retainer agreement with Atlanta Industries, Inc.
was a law partnership transaction.

VII. The lower court erred when it failed to rule on said petitioners permissive counterclaim relative
to the various personal loans secured by respondents.

VIII. The lower court not only erred in the exercise of its jurisdiction but more importantly it acted
without jurisdiction or with lack of jurisdiction. [5]
 We note that petitioners were married on 28 May 1998. The cases filed with the Securities and Exchange

Commission (SEC) on 6 May 1998 and 15 October 1998 were filed against petitioner Erlando only. It was with the filing of

CA-G.R. SP No. 98679 on 24 April 2007 that Joena joined Erlando as a co-petitioner.

On 26 April 2007, the CA issued a Resolution[6] dismissing the Petition. First, it reasoned that the remedy of

annulment of judgment under Rule 47 of the Rules of Court is available only when the ordinary remedies of new trial,

appeal, petition for relief or other appropriate remedies are no longer available through no fault of

petitioners.[7] Considering that the dismissal of the appeal was directly attributable to them, the remedy under Rule 47 was

no longer available.

Second, the CA stated that the grounds alleged in the Petition delved on the merits of the case and the

appreciation by the trial court of the evidence presented to the latter. Under Rule 47, the grounds for annulment are

limited only to extrinsic fraud and lack of jurisdiction.

Lastly, the CA held that the fact that the trial court was not designated as a special commercial court did not

mean that the latter had no jurisdiction over the case. The appellate court stated that, in any event, petitioners could

have raised this matter on appeal or through a petition for certiorari under Rule 65, but they did not do so.

Petitioners filed an Amended Petition for Annulment of Judgment dated 2 May 2007, but the CA had by then

already issued the 26 April 2007 Resolution dismissing the Petition.

On 24 May 2007, the 26 April 2007 Resolution in CA-G.R. SP No. 98679 became final and executory.[8]

Petitioners did not give up. They once again filed a 105-page Petition for Annulment of Judgment with the CA

dated 25 May 2007[9] docketed as CA-G.R. SP No. 99719. This time, they injected the ground of extrinsic fraud into what

appeared to be substantially the same issues raised in CA-G.R. SP No. 98679. The following were the grounds raised in CA-

G.R. SP No. 99719:

A. Extrinsic fraud and/or collusion attended the rendition of the Consolidated Decision x x x based on
the following badges of fraud and/or glaring errors deliberately committed, to wit:

I. The lower court deliberately erred in concluding that both petitioners and respondents
did not present direct documentary evidence to substantiate their respective claims, as
it relied purely on the gist of what its personnel did as regards the transcript of
stenographic notes the latter [sic] in collusion with the respondents.

II. The lower court deliberately erred in concluding that both petitioners and respondents
relied mainly on testimonial evidence to prove their respective positions by relying totally
on what was presented to it by its personnel who drafted the Consolidated Decision in
collusion with the respondents.

III. The lower court deliberately erred in not ruling that the real estate transaction entered into
by said petitioners and spouses Roman and Amalia Aguzar was a personal transaction
 and not a law partnership transaction for the same reasons as stated in Nos. 1 and II
above.

IV. The lower court deliberately erred in ruling that the testimonies of the respondents are
credible as against the petitioner Erlando Abrenica and his witnesses for the same reasons
as stated in Nos. I and II above.

V. The lower court deliberately erred in ruling that the purchase price for the lot involved was
₱3 million and not ₱8 million for the same reasons as stated in Nos. 1 and II above.

VI. The lower court deliberately erred in ruling that petitioners retainer agreement with Atlanta
Industries, Inc. was a law partnership transaction for the same reasons as stated in Nos. 1
and II above.

VII. The lower court deliberately erred when it failed to rule on said petitioners permissive
counterclaim relative to the various personal loans secured by respondents also for the
same reasons as the above.

B. As an incident of the extrinsic fraud[,] the lower court[,] despite full knowledge of its incapacity[,]
rendered/promulgated the assailed Consolidated Decision x x x without jurisdiction or with lack of
jurisdiction.[10] (Underscoring in the original.)

On 2 August 2007, the CA issued the first assailed Resolution[11] dismissing the Petition in CA-G.R. SP No. 99719,

which held the Petition to be insufficient in form and substance. It noted the following:

x x x. Readily noticeable is that CA-G.R. SP No. 90076 practically contained the prayer for the
annulment of the subject consolidated Decision premised on the very same allegations, grounds or
issues as the present annulment of judgment case.

xxxxxxxxx

Annulment of judgment is a recourse equitable in character, allowed only in exceptional

cases as where there is no available or other adequate remedy (Espinosa vs. Court of Appeals, 430
SCRA 96[2004]). Under Section 2 of Rule 47 of the Revised Rules of Court, the only grounds for an
annulment of judgment are extrinsic fraud and lack of jurisdiction (Cerezo vs. Tuazon, 426 SCRA
167 [2004]). Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed
of, in a motion for new trial or petition for relief.

xxxxxxxxx

x x x. In the case at bar, not only has the court a quo jurisdiction over the subject matter and
over the persons of the parties, what petitioner is truly complaining [of] here is only a possible error in
the exercise of jurisdiction, not on the issue of jurisdiction itself. Where there is jurisdiction over the person
and the subject matter (as in this case), the decision on all other questions arising in the case is but an
exercise of the jurisdiction. And the errors which the court may commit in the exercise of jurisdiction are
merely errors of judgment which are the proper subject of
an appeal (Republic vs. G Holdings, supra, citing Tolentino vs. Leviste, supra). (Emphasis supplied.)

Subsequently, petitioners filed a Humble Motion for Reconsideration[12] on 28 August 2007.

While the 28 August 2007 motion was pending, on 13 September 2007, petitioner Erlando filed an Urgent Omnibus

Motion[13] with Branch 226, alleging that the sheriff had levied on properties belonging to his children and petitioner Joena.
In addition, Erlando alleged that the trial court still had to determine the manner of distribution of the firms assets and the

value of the levied properties. Lastly, he insisted that the RTC still had to determine the issue of whether the Rule 41 appeal

was the correct remedy.

On the same day, Joena filed an Affidavit of Third Party Claim[14] also with Branch 226 of the RTC of Quezon City,

alleging that she[15] and her stepchildren[16] owned a number of the personal properties sought to be levied. She also

insisted that she owned half of the two (2) motor vehicles as well as the house and lot covered by Transfer Certificate of

Title (TCT) No. 216818, which formed part of the absolute community of property. She likewise alleged that the real property,

being a family home, and the furniture and the utensils necessary for housekeeping having a depreciated combined

value of one hundred thousand pesos (₱100,000) were exempt from execution pursuant to Rule 39, Section 13 of the Rules

of Court. Thus, she sought their discharge and release and likewise the immediate remittance to her of half of the proceeds,

if any.

Accordingly, the RTC scheduled[17] a hearing on the motion. On 17 October 2007, however, petitioner Erlando

moved to withdraw his motion on account of ongoing negotiations with respondents.[18]

Thereafter, petitioner Erlando and respondent Abelardo Tibayan, witnessed by Sheriff Nardo de Guzman, Jr. of

Branch 226 of the RTC of Quezon City, executed an agreement to postpone the auction sale of the property covered by

TCT No. 216818 in anticipation of an amicable settlement of the money judgment.[19]

Finally, on 30 October 2007, the CA in CA-G.R. SP No. 99719 issued the second assailed Resolution[20] denying

petitioners Motion for Reconsideration for having been filed out of time, as the last day for filing was on 27 August 2007.

Moreover, the CA found that the grounds stated in the motion were merely recycled and rehashed propositions, which

had already been dispensed with.

Petitioners are now assailing the CA Resolutions dated 2 August 2007 and 30 October 2007, respectively, in CA-

G.R. SP No. 99719. They insist that there is still a pending issue that has not been resolved by the RTC. That issue arose from

the Order[21] given by the trial court to petitioner Erlando to explain why it should take cognizance of the Notice of Appeal

when the proper remedy was a petition for review under Rule 43 of the Rules of Court.

Further, petitioners blame the trial and the appellate courts for the dismissal of their appeal despite this Courts

explanation in G.R. No. 169420 that the appeal was the wrong remedy and was thus correctly dismissed by the CA. Instead

of complying with the show-cause Order issued by the RTC, petitioners went directly to the CA and insisted that the remedy

they had undertaken was correct.

 Petitioners also contend that there was extrinsic fraud in the appreciation of the merits of the case. They raise in

the present Petition the grounds they cited in the three (3) Petitions for Annulment of Judgment (including the Amended

Petition) quoted above.

Next, they assert that petitioner Joenas right to due process was also violated when she was not made a party-

in-interest to the proceedings in the lower courts, even if her half of the absolute community of property was included in

the execution of the judgment rendered by Branch 226 of the RTC of Quezon City.

Finally, they insist that their Humble Motion for Reconsideration was filed on time, since 27 August 2007 was a

holiday. Therefore, they had until 28 August 2007 to file their motion.

Since then, it appears that a Sheriffs Certificate of Sale was issued on 3 January 2008 in favor of the law firm for

the sum of ₱5 million for the property covered by TCT No. 216818.

On 18 March 2009, while the case was pending with this Court, petitioners filed a Complaint[22] with a prayer for

the issuance of a writ of preliminary injunction before the RTC of Marikina City against herein respondents and Sheriff Nardo

I. de Guzman, Jr. of Branch 226 of the RTC of Quezon City. The case was docketed as Civil Case No. 09-1323-MK and was

raffled to Branch 273 of the RTC of Marikina City.[23] Petitioners sought the nullification of the sheriffs sale on execution of

the Decision in the consolidated cases rendered by Branch 226, as well as the payment of damages. They alleged that

the process of the execution sale was conducted irregularly, unlawfully, and in violation of their right to due process.

On 2 July 2009, Branch 273 of the RTC of Marikina City issued a Writ of Preliminary Injunction enjoining respondents

and/or their agents, and the Register of Deeds of Marikina City from consolidating TCT No. 216818.[24]

The filing of the Complaint with the RTC of Marikina City prompted respondents to file a Motion[25] before us to

cite for contempt petitioner spouses and their counsel, Atty. Antonio R. Bautista. This Motion was on the ground that

petitioners committed forum shopping when they filed the Complaint pending with Branch 273 of the RTC of Marikina City,

while the present case was also still pending.

Meanwhile, on 22 September 2009, respondents filed before Branch 226 an Ex Parte Motion for Issuance of Writ

of Possession.[26] That Motion was granted by Branch 226 through a Resolution[27] issued on 10 November 2011. This

Resolution then became the subject of a Petition for Certiorari[28] under Rule 65 filed by petitioners before the CA docketed

as CA-G.R. SP No. 123164.

Soon after, on 6 March 2012, petitioners filed with the CA an Urgent Motion for Issuance of Temporary Restraining

Order (T.R.O.)[29] after Sheriff De Guzman, Jr. served on them a Notice to Vacate within five days from receipt or until 11
March 2012. As of the writing of this Decision, the CA has not resolved the issue raised in the Petition in CA-G.R. SP No.

123164.

Our Ruling

Petitioners elevated this case to this Court, because they were allegedly denied due process when the CA

rejected their second attempt at the annulment of the Decision of the RTC and their Humble Motion for Reconsideration.

We DENY petitioners claims.

The rules of procedure were formulated to achieve the ends of justice, not to thwart them. Petitioners may not

defy the pronouncement of this Court in G.R. No. 169420 by pursuing remedies that are no longer available to them. Twice,

the CA correctly ruled that the remedy of annulment of judgment was no longer available to them, because they had

already filed an appeal under Rule 41. Due to their own actions, that appeal was dismissed.

It must be emphasized that the RTC Decision became final and executory through the fault of petitioners

themselves when petitioner Erlando (1) filed an appeal under Rule 41 instead of Rule 43; and (2) filed a Petition for Review

directly with the CA, without waiting for the resolution by the RTC of the issues still pending before the trial court.

In Enriquez v. Court of Appeals,[30] we said:

It is true that the Rules should be interpreted so as to give litigants ample opportunity to prove
their respective claims and that a possible denial of substantial justice due to legal technicalities should
be avoided. But it is equally true that an appeal being a purely statutory right, an appealing party must
strictly comply with the requisites laid down in the Rules of Court. In other words, he who seeks to avail
of the right to appeal must play by the rules. x x x. (Emphasis supplied.)

With regard to the allegation of petitioner Joena that her right to due process was violated, it must be recalled

that after she filed her Affidavit of Third Party Claim on 13 September 2007 and petitioner Erlando filed his Urgent Omnibus

Motion raising the same issues contained in that third-party claim, he subsequently filed two Motions withdrawing his Urgent

Omnibus Motion. Petitioner Joena, meanwhile, no longer pursued her third-party claim or any other remedy available to

her. Her failure to act gives this Court the impression that she was no longer interested in her case. Thus, it was through her

own fault that she was not able to ventilate her claim.
 Furthermore, it appears from the records that petitioner Erlando was first married to a certain Ma. Aline Lovejoy

Padua on 13 October 1983. They had three children: Patrik Erlando (born on 14 April 1985), Maria Monica Erline (born on 9

September 1986), and Patrik Randel (born on 12 April 1990).

After the dissolution of the first marriage of Erlando, he and Joena got married on 28 May 1998.[31] In her Affidavit,

Joena alleged that she represented her stepchildren; that the levied personal properties in particular, a piano with a chair,

computer equipment and a computer table were owned by the latter. We note that two of these stepchildren were

already of legal age when Joena filed her Affidavit. As to Patrik Randel, parental authority over him belongs to his parents.

Absent any special power of attorney authorizing Joena to represent Erlandos children, her claim cannot be sustained.

Petitioner Joena also asserted that the two (2) motor vehicles purchased in 1992 and 1997, as well as the house

and lot covered by TCT No. 216818 formed part of the absolute community regime. However, Art. 92, par. (3) of the Family

Code excludes from the community property the property acquired before the marriage of a spouse who has legitimate

descendants by a former marriage; and the fruits and the income, if any, of that property. Neither these two vehicles nor

the house and lot belong to the second marriage.

We now proceed to discuss the Motion for contempt filed by respondents.

Respondents claim that petitioners and their present counsel, Atty. Antonio R. Bautista, were guilty of forum

shopping when the latter filed Civil Case No. 09-1323-MK with the RTC of Marikina City while the case was still pending

before us. In Executive Secretary v. Gordon,[32] we explained forum shopping in this wise:

Forum-shopping consists of filing multiple suits involving the same parties for the same cause
of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. Thus,
it has been held that there is forum-shopping

(1) whenever as a result of an adverse decision in one forum, a party seeks a favorable
decision (other than by appeal or certiorari) in another, or

(2) if, after he has filed a petition before the Supreme Court, a party files another before the
Court of Appeals since in such case he deliberately splits appeals in the hope that even as one case in
which a particular remedy is sought is dismissed, another case (offering a similar remedy) would still be
open, or

(3) where a party attempts to obtain a preliminary injunction in another court after failing to
obtain the same from the original court.

Civil Case No. 09-1323-MK was filed to question the proceedings undertaken by the sheriff in executing the

judgment in Civil Case Nos. Q01-42948 and Q01-42959. On the other hand, the present case questions the merits of the

Decision itself in Civil Case Nos. Q01-42948 and Q01-42959. These cases have different causes of action. Thus, it cannot be

said that petitioners were clearly guilty of forum shopping when they filed the Complaint before the RTC of Marikina City.
 WHEREFORE, in view of the foregoing, the Petition is hereby DENIED. The Resolutions dated 2 August 2007 and 30

October 2007 issued by the Court of Appeals in CA-G.R. SP No. 99719 are AFFIRMED.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice
Chairperson

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the

writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296,
The Judiciary Act of 1948, as amended)

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 196049 June 26, 2013

MINORU FUJIKI, PETITIONER,
vs.
MARIA PAZ GALELA MARINAY, SHINICHI MAEKARA, LOCAL CIVIL REGISTRAR OF QUEZON CITY, AND THE ADMINISTRATOR
AND CIVIL REGISTRAR GENERAL OF THE NATIONAL STATISTICS OFFICE,RESPONDENTS.

DECISION

CARPIO, J.:

The Case

This is a direct recourse to this Court from the Regional Trial Court (RTC), Branch 107, Quezon City, through a petition for
review on certiorari under Rule 45 of the Rules of Court on a pure question of law. The petition assails the Order1 dated 31
January 2011 of the RTC in Civil Case No. Q-11-68582 and its Resolution dated 2 March 2011 denying petitioner’s Motion
for Reconsideration. The RTC dismissed the petition for "Judicial Recognition of Foreign Judgment (or Decree of Absolute
Nullity of Marriage)" based on improper venue and the lack of personality of petitioner, Minoru Fujiki, to file the petition.

The Facts

Petitioner Minoru Fujiki (Fujiki) is a Japanese national who married respondent Maria Paz Galela Marinay (Marinay) in the
Philippines2 on 23 January 2004. The marriage did not sit well with petitioner’s parents. Thus, Fujiki could not bring his wife
to Japan where he resides. Eventually, they lost contact with each other.

In 2008, Marinay met another Japanese, Shinichi Maekara (Maekara). Without the first marriage being dissolved, Marinay
and Maekara were married on 15 May 2008 in Quezon City, Philippines. Maekara brought Marinay to Japan. However,
Marinay allegedly suffered physical abuse from Maekara. She left Maekara and started to contact Fujiki.3

Fujiki and Marinay met in Japan and they were able to reestablish their relationship. In 2010, Fujiki helped Marinay obtain
a judgment from a family court in Japan which declared the marriage between Marinay and Maekara void on the
ground of bigamy.4 On 14 January 2011, Fujiki filed a petition in the RTC entitled: "Judicial Recognition of Foreign
Judgment (or Decree of Absolute Nullity of Marriage)." Fujiki prayed that (1) the Japanese Family Court judgment be
recognized; (2) that the bigamous marriage between Marinay and Maekara be declared void ab initiounder Articles
35(4) and 41 of the Family Code of the Philippines;5 and (3) for the RTC to direct the Local Civil Registrar of Quezon City
to annotate the Japanese Family Court judgment on the Certificate of Marriage between Marinay and Maekara and to
endorse such annotation to the Office of the Administrator and Civil Registrar General in the National Statistics Office
(NSO).6

The Ruling of the Regional Trial Court

A few days after the filing of the petition, the RTC immediately issued an Order dismissing the petition and withdrawing
the case from its active civil docket.7 The RTC cited the following provisions of the Rule on Declaration of Absolute Nullity
of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC):

Sec. 2. Petition for declaration of absolute nullity of void marriages. –

(a) Who may file. – A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or
the wife.

xxxx

Sec. 4. Venue. – The petition shall be filed in the Family Court of the province or city where the petitioner or the
respondent has been residing for at least six months prior to the date of filing, or in the case of a non-resident
respondent, where he may be found in the Philippines, at the election of the petitioner. x x x

The RTC ruled, without further explanation, that the petition was in "gross violation" of the above provisions. The trial court
based its dismissal on Section 5(4) of A.M. No. 02-11-10-SC which provides that "[f]ailure to comply with any of the
preceding requirements may be a ground for immediate dismissal of the petition."8 Apparently, the RTC took the view
that only "the husband or the wife," in this case either Maekara or Marinay, can file the petition to declare their marriage
void, and not Fujiki.
Fujiki moved that the Order be reconsidered. He argued that A.M. No. 02-11-10-SC contemplated ordinary civil actions
for declaration of nullity and annulment of marriage. Thus, A.M. No. 02-11-10-SC does not apply. A petition for
recognition of foreign judgment is a special proceeding, which "seeks to establish a status, a right or a particular
fact,"9 and not a civil action which is "for the enforcement or protection of a right, or the prevention or redress of a
wrong."10 In other words, the petition in the RTC sought to establish (1) the status and concomitant rights of Fujiki and
Marinay as husband and wife and (2) the fact of the rendition of the Japanese Family Court judgment declaring the
marriage between Marinay and Maekara as void on the ground of bigamy. The petitioner contended that the
Japanese judgment was consistent with Article 35(4) of the Family Code of the Philippines11 on bigamy and was
therefore entitled to recognition by Philippine courts.12

In any case, it was also Fujiki’s view that A.M. No. 02-11-10-SC applied only to void marriages under Article 36 of the
Family Code on the ground of psychological incapacity.13 Thus, Section 2(a) of A.M. No. 02-11-10-SC provides that "a
petition for declaration of absolute nullity of void marriages may be filed solely by the husband or the wife." To apply
Section 2(a) in bigamy would be absurd because only the guilty parties would be permitted to sue. In the words of Fujiki,
"[i]t is not, of course, difficult to realize that the party interested in having a bigamous marriage declared a nullity would
be the husband in the prior, pre-existing marriage."14 Fujiki had material interest and therefore the personality to nullify a
bigamous marriage.

Fujiki argued that Rule 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court is applicable.
Rule 108 is the "procedural implementation" of the Civil Register Law (Act No. 3753)15 in relation to Article 413 of the Civil
Code.16 The Civil Register Law imposes a duty on the "successful petitioner for divorce or annulment of marriage to send
a copy of the final decree of the court to the local registrar of the municipality where the dissolved or annulled marriage
was solemnized."17 Section 2 of Rule 108 provides that entries in the civil registry relating to "marriages," "judgments of
annulments of marriage" and "judgments declaring marriages void from the beginning" are subject to cancellation or
correction.18 The petition in the RTC sought (among others) to annotate the judgment of the Japanese Family Court on
the certificate of marriage between Marinay and Maekara.

Fujiki’s motion for reconsideration in the RTC also asserted that the trial court "gravely erred" when, on its own, it dismissed
the petition based on improper venue. Fujiki stated that the RTC may be confusing the concept of venue with the
concept of jurisdiction, because it is lack of jurisdiction which allows a court to dismiss a case on its own. Fujiki
cited Dacoycoy v. Intermediate Appellate Court19 which held that the "trial court cannot pre-empt the defendant’s
prerogative to object to the improper laying of the venue by motu proprio dismissing the case."20Moreover, petitioner
alleged that the trial court should not have "immediately dismissed" the petition under Section 5 of A.M. No. 02-11-10-SC
because he substantially complied with the provision.

On 2 March 2011, the RTC resolved to deny petitioner’s motion for reconsideration. In its Resolution, the RTC stated that
A.M. No. 02-11-10-SC applies because the petitioner, in effect, prays for a decree of absolute nullity of marriage.21 The
trial court reiterated its two grounds for dismissal, i.e. lack of personality to sue and improper venue under Sections 2(a)
and 4 of A.M. No. 02-11-10-SC. The RTC considered Fujiki as a "third person"22 in the proceeding because he "is not the
husband in the decree of divorce issued by the Japanese Family Court, which he now seeks to be judicially recognized,
x x x."23 On the other hand, the RTC did not explain its ground of impropriety of venue. It only said that "[a]lthough the
Court cited Sec. 4 (Venue) x x x as a ground for dismissal of this case[,] it should be taken together with the other ground
cited by the Court x x x which is Sec. 2(a) x x x."24

The RTC further justified its motu proprio dismissal of the petition based on Braza v. The City Civil Registrar of Himamaylan
City, Negros Occidental.25 The Court in Braza ruled that "[i]n a special proceeding for correction of entry under Rule 108
(Cancellation or Correction of Entries in the Original Registry), the trial court has no jurisdiction to nullify marriages x x
x."26 Braza emphasized that the "validity of marriages as well as legitimacy and filiation can be questioned only in a direct
action seasonably filed by the proper party, and not through a collateral attack such as [a] petition [for correction of
entry] x x x."27

The RTC considered the petition as a collateral attack on the validity of marriage between Marinay and Maekara. The
trial court held that this is a "jurisdictional ground" to dismiss the petition.28 Moreover, the verification and certification
against forum shopping of the petition was not authenticated as required under Section 529 of A.M. No. 02-11-10-SC.
Hence, this also warranted the "immediate dismissal" of the petition under the same provision.

The Manifestation and Motion of the Office of the Solicitor General and the Letters of Marinay and Maekara

On 30 May 2011, the Court required respondents to file their comment on the petition for review.30 The public
respondents, the Local Civil Registrar of Quezon City and the Administrator and Civil Registrar General of the NSO,
participated through the Office of the Solicitor General. Instead of a comment, the Solicitor General filed a
Manifestation and Motion.31
The Solicitor General agreed with the petition. He prayed that the RTC’s "pronouncement that the petitioner failed to
comply with x x x A.M. No. 02-11-10-SC x x x be set aside" and that the case be reinstated in the trial court for further
proceedings.32 The Solicitor General argued that Fujiki, as the spouse of the first marriage, is an injured party who can sue
to declare the bigamous marriage between Marinay and Maekara void. The Solicitor General cited Juliano-Llave v.
Republic33 which held that Section 2(a) of A.M. No. 02-11-10-SC does not apply in cases of bigamy. In Juliano-Llave, this
Court explained:

[t]he subsequent spouse may only be expected to take action if he or she had only discovered during the connubial
period that the marriage was bigamous, and especially if the conjugal bliss had already vanished. Should parties in a
subsequent marriage benefit from the bigamous marriage, it would not be expected that they would file an action to
declare the marriage void and thus, in such circumstance, the "injured spouse" who should be given a legal remedy is
the one in a subsisting previous marriage. The latter is clearly the aggrieved party as the bigamous marriage not only
threatens the financial and the property ownership aspect of the prior marriage but most of all, it causes an emotional
burden to the prior spouse. The subsequent marriage will always be a reminder of the infidelity of the spouse and the
disregard of the prior marriage which sanctity is protected by the Constitution.34

The Solicitor General contended that the petition to recognize the Japanese Family Court judgment may be made in a
Rule 108 proceeding.35 In Corpuz v. Santo Tomas,36 this Court held that "[t]he recognition of the foreign divorce decree
may be made in a Rule 108 proceeding itself, as the object of special proceedings (such as that in Rule 108 of the Rules
of Court) is precisely to establish the status or right of a party or a particular fact."37 While Corpuzconcerned a foreign
divorce decree, in the present case the Japanese Family Court judgment also affected the civil status of the parties,
especially Marinay, who is a Filipino citizen.

The Solicitor General asserted that Rule 108 of the Rules of Court is the procedure to record "[a]cts, events and judicial
decrees concerning the civil status of persons" in the civil registry as required by Article 407 of the Civil Code. In other
words, "[t]he law requires the entry in the civil registry of judicial decrees that produce legal consequences upon a
person’s legal capacity and status x x x."38 The Japanese Family Court judgment directly bears on the civil status of a
Filipino citizen and should therefore be proven as a fact in a Rule 108 proceeding.

Moreover, the Solicitor General argued that there is no jurisdictional infirmity in assailing a void marriage under Rule 108,
citing De Castro v. De Castro39 and Niñal v. Bayadog40 which declared that "[t]he validity of a void marriage may be
collaterally attacked."41

Marinay and Maekara individually sent letters to the Court to comply with the directive for them to comment on the
petition.42 Maekara wrote that Marinay concealed from him the fact that she was previously married to Fujiki.43Maekara
also denied that he inflicted any form of violence on Marinay.44 On the other hand, Marinay wrote that she had no
reason to oppose the petition.45 She would like to maintain her silence for fear that anything she say might cause
misunderstanding between her and Fujiki.46

The Issues

Petitioner raises the following legal issues:

(1) Whether the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC) is applicable.

(2) Whether a husband or wife of a prior marriage can file a petition to recognize a foreign judgment nullifying
the subsequent marriage between his or her spouse and a foreign citizen on the ground of bigamy.

(3) Whether the Regional Trial Court can recognize the foreign judgment in a proceeding for cancellation or
correction of entries in the Civil Registry under Rule 108 of the Rules of Court.

The Ruling of the Court

We grant the petition.

The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-
SC) does not apply in a petition to recognize a foreign judgment relating to the status of a marriage where one of the
parties is a citizen of a foreign country. Moreover, in Juliano-Llave v. Republic,47 this Court held that the rule in A.M. No.
02-11-10-SC that only the husband or wife can file a declaration of nullity or annulment of marriage "does not apply if the
reason behind the petition is bigamy."48

I.

For Philippine courts to recognize a foreign judgment relating to the status of a marriage where one of the parties is a
citizen of a foreign country, the petitioner only needs to prove the foreign judgment as a fact under the Rules of Court.
To be more specific, a copy of the foreign judgment may be admitted in evidence and proven as a fact under Rule 132,
Sections 24 and 25, in relation to Rule 39, Section 48(b) of the Rules of Court.49 Petitioner may prove the Japanese Family
Court judgment through (1) an official publication or (2) a certification or copy attested by the officer who has custody
of the judgment. If the office which has custody is in a foreign country such as Japan, the certification may be made by
the proper diplomatic or consular officer of the Philippine foreign service in Japan and authenticated by the seal of
office.50

To hold that A.M. No. 02-11-10-SC applies to a petition for recognition of foreign judgment would mean that the trial
court and the parties should follow its provisions, including the form and contents of the petition,51 the service of
summons,52 the investigation of the public prosecutor,53 the setting of pre-trial,54 the trial55 and the judgment of the trial
court.56 This is absurd because it will litigate the case anew. It will defeat the purpose of recognizing foreign judgments,
which is "to limit repetitive litigation on claims and issues."57 The interpretation of the RTC is tantamount to relitigating the
case on the merits. In Mijares v. Rañada,58 this Court explained that "[i]f every judgment of a foreign court were
reviewable on the merits, the plaintiff would be forced back on his/her original cause of action, rendering immaterial the
previously concluded litigation."59

A foreign judgment relating to the status of a marriage affects the civil status, condition and legal capacity of its parties.
However, the effect of a foreign judgment is not automatic. To extend the effect of a foreign judgment in the Philippines,
Philippine courts must determine if the foreign judgment is consistent with domestic public policy and other mandatory
laws.60 Article 15 of the Civil Code provides that "[l]aws relating to family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of the Philippines, even though living abroad." This is the rule of lex
nationalii in private international law. Thus, the Philippine State may require, for effectivity in the Philippines, recognition
by Philippine courts of a foreign judgment affecting its citizen, over whom it exercises personal jurisdiction relating to the
status, condition and legal capacity of such citizen.

A petition to recognize a foreign judgment declaring a marriage void does not require relitigation under a Philippine
court of the case as if it were a new petition for declaration of nullity of marriage. Philippine courts cannot presume to
know the foreign laws under which the foreign judgment was rendered. They cannot substitute their judgment on the
status, condition and legal capacity of the foreign citizen who is under the jurisdiction of another state. Thus, Philippine
courts can only recognize the foreign judgment as a fact according to the rules of evidence.

Section 48(b), Rule 39 of the Rules of Court provides that a foreign judgment or final order against a person creates a
"presumptive evidence of a right as between the parties and their successors in interest by a subsequent title." Moreover,
Section 48 of the Rules of Court states that "the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact." Thus, Philippine courts exercise
limited review on foreign judgments. Courts are not allowed to delve into the merits of a foreign judgment. Once a
foreign judgment is admitted and proven in a Philippine court, it can only be repelled on grounds external to its
merits, i.e. , "want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact." The rule on
limited review embodies the policy of efficiency and the protection of party expectations,61 as well as respecting the
jurisdiction of other states.62

Since 1922 in Adong v. Cheong Seng Gee,63 Philippine courts have recognized foreign divorce decrees between a
Filipino and a foreign citizen if they are successfully proven under the rules of evidence.64 Divorce involves the dissolution
of a marriage, but the recognition of a foreign divorce decree does not involve the extended procedure under A.M. No.
02-11-10-SC or the rules of ordinary trial. While the Philippines does not have a divorce law, Philippine courts may,
however, recognize a foreign divorce decree under the second paragraph of Article 26 of the Family Code, to
capacitate a Filipino citizen to remarry when his or her foreign spouse obtained a divorce decree abroad.65

There is therefore no reason to disallow Fujiki to simply prove as a fact the Japanese Family Court judgment nullifying the
marriage between Marinay and Maekara on the ground of bigamy. While the Philippines has no divorce law, the
Japanese Family Court judgment is fully consistent with Philippine public policy, as bigamous marriages are declared
void from the beginning under Article 35(4) of the Family Code. Bigamy is a crime under Article 349 of the Revised Penal
Code. Thus, Fujiki can prove the existence of the Japanese Family Court judgment in accordance with Rule 132, Sections
24 and 25, in relation to Rule 39, Section 48(b) of the Rules of Court.
 II.

Since the recognition of a foreign judgment only requires proof of fact of the judgment, it may be made in a special
proceeding for cancellation or correction of entries in the civil registry under Rule 108 of the Rules of Court. Rule 1,
Section 3 of the Rules of Court provides that "[a] special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact." Rule 108 creates a remedy to rectify facts of a person’s life which are recorded by the
State pursuant to the Civil Register Law or Act No. 3753. These are facts of public consequence such as birth, death or
marriage,66 which the State has an interest in recording. As noted by the Solicitor General, in Corpuz v. Sto. Tomas this
Court declared that "[t]he recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself, as
the object of special proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the status or right
of a party or a particular fact."67

Rule 108, Section 1 of the Rules of Court states:

Sec. 1. Who may file petition. — Any person interested in any act, event, order or decree concerning the civil status of
persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any
entry relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located.
(Emphasis supplied)

Fujiki has the personality to file a petition to recognize the Japanese Family Court judgment nullifying the marriage
between Marinay and Maekara on the ground of bigamy because the judgment concerns his civil status as married to
Marinay. For the same reason he has the personality to file a petition under Rule 108 to cancel the entry of marriage
between Marinay and Maekara in the civil registry on the basis of the decree of the Japanese Family Court.

There is no doubt that the prior spouse has a personal and material interest in maintaining the integrity of the marriage
he contracted and the property relations arising from it. There is also no doubt that he is interested in the cancellation of
an entry of a bigamous marriage in the civil registry, which compromises the public record of his marriage. The interest
derives from the substantive right of the spouse not only to preserve (or dissolve, in limited instances68) his most intimate
human relation, but also to protect his property interests that arise by operation of law the moment he contracts
marriage.69 These property interests in marriage include the right to be supported "in keeping with the financial capacity
of the family"70 and preserving the property regime of the marriage.71

Property rights are already substantive rights protected by the Constitution,72 but a spouse’s right in a marriage extends
further to relational rights recognized under Title III ("Rights and Obligations between Husband and Wife") of the Family
Code.73 A.M. No. 02-11-10-SC cannot "diminish, increase, or modify" the substantive right of the spouse to maintain the
integrity of his marriage.74 In any case, Section 2(a) of A.M. No. 02-11-10-SC preserves this substantive right by limiting the
personality to sue to the husband or the wife of the union recognized by law.

Section 2(a) of A.M. No. 02-11-10-SC does not preclude a spouse of a subsisting marriage to question the validity of a
subsequent marriage on the ground of bigamy. On the contrary, when Section 2(a) states that "[a] petition for
declaration of absolute nullity of void marriage may be filed solely by the husband or the wife"75—it refers to the husband
or the wife of the subsisting marriage. Under Article 35(4) of the Family Code, bigamous marriages are void from the
beginning. Thus, the parties in a bigamous marriage are neither the husband nor the wife under the law. The husband or
the wife of the prior subsisting marriage is the one who has the personality to file a petition for declaration of absolute
nullity of void marriage under Section 2(a) of A.M. No. 02-11-10-SC.

Article 35(4) of the Family Code, which declares bigamous marriages void from the beginning, is the civil aspect of
Article 349 of the Revised Penal Code,76 which penalizes bigamy. Bigamy is a public crime. Thus, anyone can initiate
prosecution for bigamy because any citizen has an interest in the prosecution and prevention of crimes.77 If anyone can
file a criminal action which leads to the declaration of nullity of a bigamous marriage,78 there is more reason to confer
personality to sue on the husband or the wife of a subsisting marriage. The prior spouse does not only share in the public
interest of prosecuting and preventing crimes, he is also personally interested in the purely civil aspect of protecting his
marriage.

When the right of the spouse to protect his marriage is violated, the spouse is clearly an injured party and is therefore
interested in the judgment of the suit.79 Juliano-Llave ruled that the prior spouse "is clearly the aggrieved party as the
bigamous marriage not only threatens the financial and the property ownership aspect of the prior marriage but most of
all, it causes an emotional burden to the prior spouse."80 Being a real party in interest, the prior spouse is entitled to sue in
order to declare a bigamous marriage void. For this purpose, he can petition a court to recognize a foreign judgment
nullifying the bigamous marriage and judicially declare as a fact that such judgment is effective in the Philippines. Once
established, there should be no more impediment to cancel the entry of the bigamous marriage in the civil registry.
 III.

In Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental, this Court held that a "trial court has no
jurisdiction to nullify marriages" in a special proceeding for cancellation or correction of entry under Rule 108 of the Rules
of Court.81 Thus, the "validity of marriage[] x x x can be questioned only in a direct action" to nullify the marriage.82 The
RTC relied on Braza in dismissing the petition for recognition of foreign judgment as a collateral attack on the marriage
between Marinay and Maekara.

Braza is not applicable because Braza does not involve a recognition of a foreign judgment nullifying a bigamous
marriage where one of the parties is a citizen of the foreign country.

To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to
invalidate a marriage. A direct action is necessary to prevent circumvention of the substantive and procedural
safeguards of marriage under the Family Code, A.M. No. 02-11-10-SC and other related laws. Among these safeguards
are the requirement of proving the limited grounds for the dissolution of marriage,83 support pendente lite of the spouses
and children,84 the liquidation, partition and distribution of the properties of the spouses,85 and the investigation of the
public prosecutor to determine collusion.86 A direct action for declaration of nullity or annulment of marriage is also
necessary to prevent circumvention of the jurisdiction of the Family Courts under the Family Courts Act of 1997 (Republic
Act No. 8369), as a petition for cancellation or correction of entries in the civil registry may be filed in the Regional Trial
Court "where the corresponding civil registry is located."87 In other words, a Filipino citizen cannot dissolve his marriage by
the mere expedient of changing his entry of marriage in the civil registry.

However, this does not apply in a petition for correction or cancellation of a civil registry entry based on the recognition
of a foreign judgment annulling a marriage where one of the parties is a citizen of the foreign country. There is neither
circumvention of the substantive and procedural safeguards of marriage under Philippine law, nor of the jurisdiction of
Family Courts under R.A. No. 8369. A recognition of a foreign judgment is not an action to nullify a marriage. It is an
action for Philippine courts to recognize the effectivity of a foreign judgment, which presupposes a case which was
already tried and decided under foreign law. The procedure in A.M. No. 02-11-10-SC does not apply in a petition to
recognize a foreign judgment annulling a bigamous marriage where one of the parties is a citizen of the foreign country.
Neither can R.A. No. 8369 define the jurisdiction of the foreign court.

Article 26 of the Family Code confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to
a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. The second
paragraph of Article 26 of the Family Code provides that "[w]here a marriage between a Filipino citizen and a foreigner
is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under Philippine law." In Republic v. Orbecido,88 this Court
recognized the legislative intent of the second paragraph of Article 26 which is "to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino
spouse"89 under the laws of his or her country. The second paragraph of Article 26 of the Family Code only authorizes
Philippine courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow
divorce. Philippine courts cannot try the case on the merits because it is tantamount to trying a case for divorce.

The second paragraph of Article 26 is only a corrective measure to address the anomaly that results from a marriage
between a Filipino, whose laws do not allow divorce, and a foreign citizen, whose laws allow divorce. The anomaly
consists in the Filipino spouse being tied to the marriage while the foreign spouse is free to marry under the laws of his or
her country. The correction is made by extending in the Philippines the effect of the foreign divorce decree, which is
already effective in the country where it was rendered. The second paragraph of Article 26 of the Family Code is based
on this Court’s decision in Van Dorn v. Romillo90 which declared that the Filipino spouse "should not be discriminated
against in her own country if the ends of justice are to be served."91

The principle in Article 26 of the Family Code applies in a marriage between a Filipino and a foreign citizen who obtains
a foreign judgment nullifying the marriage on the ground of bigamy. The Filipino spouse may file a petition abroad to
declare the marriage void on the ground of bigamy. The principle in the second paragraph of Article 26 of the Family
Code applies because the foreign spouse, after the foreign judgment nullifying the marriage, is capacitated to remarry
under the laws of his or her country. If the foreign judgment is not recognized in the Philippines, the Filipino spouse will be
discriminated—the foreign spouse can remarry while the Filipino spouse cannot remarry.

Under the second paragraph of Article 26 of the Family Code, Philippine courts are empowered to correct a situation
where the Filipino spouse is still tied to the marriage while the foreign spouse is free to marry. Moreover, notwithstanding
Article 26 of the Family Code, Philippine courts already have jurisdiction to extend the effect of a foreign judgment in the
Philippines to the extent that the foreign judgment does not contravene domestic public policy. A critical difference
between the case of a foreign divorce decree and a foreign judgment nullifying a bigamous marriage is that bigamy, as
a ground for the nullity of marriage, is fully consistent with Philippine public policy as expressed in Article 35(4) of the
Family Code and Article 349 of the Revised Penal Code. The Filipino spouse has the option to undergo full trial by filing a
petition for declaration of nullity of marriage under A.M. No. 02-11-10-SC, but this is not the only remedy available to him
or her. Philippine courts have jurisdiction to recognize a foreign judgment nullifying a bigamous marriage, without
prejudice to a criminal prosecution for bigamy.

In the recognition of foreign judgments, Philippine courts are incompetent to substitute their judgment on how a case
was decided under foreign law. They cannot decide on the "family rights and duties, or on the status, condition and
legal capacity" of the foreign citizen who is a party to the foreign judgment. Thus, Philippine courts are limited to the
question of whether to extend the effect of a foreign judgment in the Philippines. In a foreign judgment relating to the
status of a marriage involving a citizen of a foreign country, Philippine courts only decide whether to extend its effect to
the Filipino party, under the rule of lex nationalii expressed in Article 15 of the Civil Code.

For this purpose, Philippine courts will only determine (1) whether the foreign judgment is inconsistent with an overriding
public policy in the Philippines; and (2) whether any alleging party is able to prove an extrinsic ground to repel the
foreign judgment, i.e. want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. If
there is neither inconsistency with public policy nor adequate proof to repel the judgment, Philippine courts should, by
default, recognize the foreign judgment as part of the comity of nations. Section 48(b), Rule 39 of the Rules of Court
states that the foreign judgment is already "presumptive evidence of a right between the parties." Upon recognition of
the foreign judgment, this right becomes conclusive and the judgment serves as the basis for the correction or
cancellation of entry in the civil registry. The recognition of the foreign judgment nullifying a bigamous marriage is a
subsequent event that establishes a new status, right and fact92 that needs to be reflected in the civil registry. Otherwise,
there will be an inconsistency between the recognition of the effectivity of the foreign judgment and the public records
in the Philippines.1âwphi1

However, the recognition of a foreign judgment nullifying a bigamous marriage is without prejudice to prosecution for
bigamy under Article 349 of the Revised Penal Code.93 The recognition of a foreign judgment nullifying a bigamous
marriage is not a ground for extinction of criminal liability under Articles 89 and 94 of the Revised Penal Code. Moreover,
under Article 91 of the Revised Penal Code, "[t]he term of prescription [of the crime of bigamy] shall not run when the
offender is absent from the Philippine archipelago."

Since A.M. No. 02-11-10-SC is inapplicable, the Court no longer sees the need to address the questions on venue and the
contents and form of the petition under Sections 4 and 5, respectively, of A.M. No. 02-11-10-SC.

WHEREFORE, we GRANT the petition. The Order dated 31 January 2011 and the Resolution dated 2 March 2011 of the
Regional Trial Court, Branch 107, Quezon City, in Civil Case No. Q-11-68582 are REVERSED and SET ASIDE. The Regional
Trial Court is ORDERED to REINSTATE the petition for further proceedings in accordance with this Decision.

SO ORDERED.

Brion, Del Castillo, Perez, and Perlas-Bernabe, JJ., concur.

Footnotes

1 Penned by Judge Jose L. Bautista Jr.

2 In Pasay City, Metro Manila.

3See rollo, p. 88; Trial Family Court Decree No. 15 of 2009, Decree of Absolute Nullity of Marriage between
Maria Paz Galela Marinay and Shinichi Maekara dated 18 August 2010. Translated by Yoshiaki Kurisu, Kurisu
Gyoseishoshi Lawyer’s Office (see rollo, p. 89).

4 Id.

5 FAMILY CODE OF THE PHILIPPINES (E.O. No. 209 as amended):

 Art. 35. The following marriages shall be void from the beginning:

xxxx

(4) Those bigamous or polygamous marriages not falling under Article 41;

xxxx

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years
shall be sufficient.

6 Rollo, pp. 79-80.

7 The dispositive portion stated:

WHEREFORE, the instant case is hereby ordered DISMISSED and WITHDRAWN from the active civil docket of this
Court. The RTC-OCC, Quezon City is directed to refund to the petitioner the amount of One Thousand Pesos
(₱1,000) to be taken from the Sheriff’s Trust Fund.

8Rollo, pp. 44-45. Section 5 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC) provides:

Sec. 5. Contents and form of petition. – (1) The petition shall allege the complete facts constituting the
cause of action.

(2) It shall state the names and ages of the common children of the parties and specify the regime
governing their property relations, as well as the properties involved.

If there is no adequate provision in a written agreement between the parties, the petitioner may
apply for a provisional order for spousal support, custody and support of common children, visitation
rights, administration of community or conjugal property, and other matters similarly requiring urgent
action.

(3) It must be verified and accompanied by a certification against forum shopping. The verification
and certification must be signed personally by the petitioner. No petition may be filed solely by
counsel or through an attorney-in-fact.

If the petitioner is in a foreign country, the verification and certification against forum shopping shall
be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general,
consul or vice-consul or consular agent in said country.

(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the
Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of
its filing and submit to the court proof of such service within the same period.

Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of
the petition.

9 RULES OF COURT, Rule 1, Sec. 3(c). See rollo, pp. 55-56 (Petitioner’s Motion for Reconsideration).

10 RULES OF COURT, Rule 1, Sec. 3(a).

11 FAMILY CODE (E.O. No. 209 as amended), Art. 35. The following marriages shall be void from the beginning:
 xxxx

(4) Those bigamous or polygamous marriages not falling under Article 41;

xxxx

12 Rollo, p. 56.

13FAMILY CODE, Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be
void even if such incapacity becomes manifest only after its solemnization.

14 Rollo, p. 68.

15 Enacted 26 November 1930.

16CIVIL CODE, Art. 413. All other matters pertaining to the registration of civil status shall be governed by special
laws.

17Act No. 3753, Sec. 7. Registration of marriage. - All civil officers and priests or ministers authorized to solemnize
marriages shall send a copy of each marriage contract solemnized by them to the local civil registrar within the
time limit specified in the existing Marriage Law.

In cases of divorce and annulment of marriage, it shall be the duty of the successful petitioner for
divorce or annulment of marriage to send a copy of the final decree of the court to the local civil
registrar of the municipality where the dissolved or annulled marriage was solemnized.

In the marriage register there shall be entered the full name and address of each of the contracting
parties, their ages, the place and date of the solemnization of the marriage, the names and
addresses of the witnesses, the full name, address, and relationship of the minor contracting party or
parties or the person or persons who gave their consent to the marriage, and the full name, title, and
address of the person who solemnized the marriage.

In cases of divorce or annulment of marriages, there shall be recorded the names of the parties
divorced or whose marriage was annulled, the date of the decree of the court, and such other details
as the regulations to be issued may require.

18 RULES OF COURT, Rule 108, Sec. 2. Entries subject to cancellation or correction. — Upon good and valid
grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c)
deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void
from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization;
(k) election, loss or recovery of citizenship; (1) civil interdiction; (m) judicial determination of filiation; (n)
voluntary emancipation of a minor; and (o) changes of name.

19 273 Phil. 1 (1991).

20 Id. at 7. See rollo, pp. 65 and 67.

21 Rollo, p. 47.

22 Id. at 46.

23 Id. at 48.

24 Id.

25 G.R. No. 181174, 4 December 2009, 607 SCRA 638.

26 Id. at 641.

27 Id. at 643.

28 See rollo, p. 49.

29 Section 5 of A.M. No. 02-11-10-SC states in part:

Contents and form of petition. – x x x

xxxx

(3) It must be verified and accompanied by a certification against forum shopping. The verification
and certification must be signed personally by the petitioner. No petition may be filed solely by
counsel or through an attorney-in-fact.

If the petitioner is in a foreign country, the verification and certification against forum shopping shall
be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general,
consul or vice-consul or consular agent in said country.

xxxx

Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of
the petition.

30 Resolution dated 30 May 2011. Rollo, p. 105.

31 Under Solicitor General Jose Anselmo I. Cadiz.

32Rollo, p. 137. The "Conclusion and Prayer" of the "Manifestation and Motion (In Lieu of Comment)" of the
Solicitor General stated:

In fine, the court a quo’s pronouncement that the petitioner failed to comply with the requirements provided in
A.M. No. 02-11-10-SC should accordingly be set aside. It is, thus, respectfully prayed that Civil Case No. Q-11-
68582 be reinstated for further proceedings.

Other reliefs, just and equitable under the premises are likewise prayed for.

33 G.R. No. 169766, 30 March 2011, 646 SCRA 637.

34 Id. at 656. Quoted in the Manifestation and Motion of the Solicitor General, pp. 8-9. See rollo, pp. 132-133.

35 Rollo, p. 133.

36 G.R. No. 186571, 11 August 2010, 628 SCRA 266.

37 Id. at 287.

38 Rollo, p. 133.

39 G.R. No. 160172, 13 February 2008, 545 SCRA 162.

40 384 Phil. 661 (2000).

41 De Castro v. De Castro, supra note 39 at 169.

42 Supra note 30.

43 See rollo, p. 120.

44 Id.

45 See rollo, p. 146.

46 Id.

47 Supra note 33.

48 Supra note 33 at 655.

49RULES OF COURT, Rule 132, Sec. 24. Proof of official record. — The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If
the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the
seal of his office.

Sec. 25. What attestation of copy must state. — Whenever a copy of a document or record is
attested for the purpose of evidence, the attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may be. The attestation must be
under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a
seal, under the seal of such court.

Rule 39, Sec. 48. Effect of foreign judgments or final orders. — The effect of a judgment or final order of
a tribunal of a foreign country, having jurisdiction to render the judgment or final order, is as follows:

(a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive
upon the title of the thing; and

(b) In case of a judgment or final order against a person, the judgment or final order is presumptive
evidence of a right as between the parties and their successors in interest by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want
of notice to the party, collusion, fraud, or clear mistake of law or fact.

50 See RULES OF COURT, Rule 132, Sec. 24-25. See also Corpuz v. Santo Tomas, supra note 36 at 282.

51 A.M. No. 02-11-10-SC, Sec. 5.

52 Id., Sec. 6.

53 Id., Sec. 9.

54 Id., Sec. 11-15.

55 Id., Sec. 17-18.

56 Id., Sec. 19 and 22-23.

57Mijares v. Rañada, 495 Phil. 372, 386 (2005) citing Eugene Scoles & Peter Hay, Conflict of Laws 916 (2nd ed.,
1982).
58 Id.

59 Id. at 386.

60 Civil Code, Art. 17. x x x

xxxx

Prohibitive laws concerning persons, their acts or property, and those which have for their object
public order, public policy and good customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country.

61Mijares v. Rañada, supra note 57 at 386. "Otherwise known as the policy of preclusion, it seeks to protect
party expectations resulting from previous litigation, to safeguard against the harassment of defendants, to
insure that the task of courts not be increased by never-ending litigation of the same disputes, and – in a larger
sense – to promote what Lord Coke in the Ferrer’s Case of 1599 stated to be the goal of all law: ‘rest and
quietness.’" (Citations omitted)

62Mijares v. Rañada, supra note 57 at 382. "The rules of comity, utility and convenience of nations have
established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction
are reciprocally respected and rendered efficacious under certain conditions that may vary in different
countries." (Citations omitted)

63 43 Phil. 43 (1922).

64Corpuz v. Sto. Tomas, G.R. No. 186571, 11 August 2010, 628 SCRA 266, 280; Garcia v. Recio, 418 Phil. 723
(2001); Adong v. Cheong Seng Gee, supra.

65 FAMILY CODE, Art. 26. x x x

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.

66Act No. 3753, Sec. 1. Civil Register. — A civil register is established for recording the civil status of persons, in
which shall be entered: (a) births; (b) deaths; (c) marriages; (d) annulments of marriages; (e) divorces; (f)
legitimations; (g) adoptions; (h) acknowledgment of natural children; (i) naturalization; and (j) changes of
name.

Cf. RULES OF COURT, Rule 108, Sec. 2. Entries subject to cancellation or correction. — Upon good and
valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments
declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (1) civil interdiction; (m)
judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

67 Corpuz v. Sto. Tomas, supra note 36 at 287.

68 FAMILY CODE, Art. 35-67.

69 FAMILY CODE, Art. 74-148.

70 FAMILY CODE, Art. 195 in relation to Art. 194.

71 See supra note 69.

72CONSTITUTION, Art. III, Sec. 1: "No person shall be deprived of life, liberty, or property without due process of
law x x x."
73 FAMILY CODE, Art. 68-73.

74 CONSTITUTION, Art. VIII, Sec. 5(5). The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and
legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. x x x

x x x x (Emphasis supplied)

75 Emphasis supplied.

76Revised Penal Code (Act No. 3815, as amended), Art. 349. Bigamy. - The penalty of prisión mayor shall be
imposed upon any person who shall contract a second or subsequent marriage before the former marriage
has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceedings.

77 See III RAMON AQUINO, THE REVISED PENAL CODE (1997), 518.

78 RULES OF COURT, Rule 111, Sec. 1. Institution of criminal and civil actions. — (a) When a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed
instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute
it separately or institutes the civil action prior to the criminal action.

xxxx

79Cf. RULES OF COURT, Rule 3, Sec. 2. Parties in interest. — A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest.

80 Juliano-Llave v. Republic, supra note 33.

81 Supra note 25.

82 Supra note 25.

83 See supra note 68.

84 FAMILY CODE, Art. 49. During the pendency of the action and in the absence of adequate provisions in a
written agreement between the spouses, the Court shall provide for the support of the spouses and the custody
and support of their common children. The Court shall give paramount consideration to the moral and material
welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX.
It shall also provide for appropriate visitation rights of the other parent.

Cf. RULES OF COURT, Rule 61.

85FAMILY CODE, Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article
44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment
under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution of the
properties of the spouses, the custody and support of the common children, and the delivery of third
presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.
 All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be
notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in
accordance with the provisions of Articles 102 and 129.

A.M. No. 02-11-10-SC, Sec. 19. Decision.— (1) If the court renders a decision granting the petition, it
shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the
court only after compliance with Articles 50 and 51 of the Family Code as implemented under the
Rule on Liquidation, Partition and Distribution of Properties.

xxxx

86FAMILY CODE, Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall
order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that evidence is not fabricated or suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of
facts or confession of judgment.

A.M. No. 02-11-10-SC, Sec. 9. Investigation report of public prosecutor. — (1) Within one month after
receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall
submit a report to the court stating whether the parties are in collusion and serve copies thereof on
the parties and their respective counsels, if any.

(2) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The
parties shall file their respective comments on the finding of collusion within ten days from receipt of a
copy of the report The court shall set the report for hearing and if convinced that the parties are in
collusion, it shall dismiss the petition.

(3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It
shall be the duty of the public prosecutor to appear for the State at the pre-trial.

87 RULES OF COURT, Rule 108, Sec. 1.

88 509 Phil. 108 (2005).

89 Id. at 114.

90 223 Phil. 357 (1985).

91 Id. at 363.

92 See RULES OF COURT, Rule 1, Sec. 3(c).

93See RULES OF COURT, Rule 72, Sec. 2. Applicability of rules of civil actions. — In the absence of special
provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special
proceedings.

Rule 111, Sec. 2. When separate civil action is suspended. — x x x

If the criminal action is filed after the said civil action has already been instituted, the latter shall be
suspended in whatever stage it may be found before judgment on the merits. The suspension shall last
until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is
rendered in the civil action, the same may, upon motion of the offended party, be consolidated with
the criminal action in the court trying the criminal action. In case of consolidation, the evidence
already adduced in the civil action shall be deemed automatically reproduced in the criminal action
without prejudice to the right of the prosecution to cross-examine the witnesses presented by the
 offended party in the criminal case and of the parties to present additional evidence. The
consolidated criminal and civil actions shall be tried and decided jointly.

During the pendency of the criminal action, the running of the period of prescription of the civil action
which cannot be instituted separately or whose proceeding has been suspended shall be tolled.

The extinction of the penal action does not carry with it extinction of the civil action. However, the civil
action based on delict shall be deemed extinguished if there is a finding in a final judgment in the
criminal action that the act or omission from which the civil liability may arise did not exist.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 189121 July 31, 2013

AMELIA GARCIA-QUIAZON, JENNETH QUIAZON and MARIA JENNIFER QUIAZON, Petitioners,

vs.
MA. LOURDES BELEN, for and in behalf of MARIA LOURDES ELISE QUIAZON, Respondent.

DECISION

PEREZ, J.:

This is a Petition for Review on Certiorari filed pursuant to Rule 45 of the Revised Rules of Court, primarily assailing the 28
November 2008 Decision rendered by the Ninth Division of the Court of Appeals in CA-G.R. CV No. 88589,1the decretal
portion of which states:

WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed Decision dated March 11, 2005, and the
Order dated March 24, 2006 of the Regional Trial Court, Branch 275, Las Piñas City are AFFIRMED in toto.2

The Facts

This case started as a Petition for Letters of Administration of the Estate of Eliseo Quiazon (Eliseo), filed by herein
respondents who are Eliseo’s common-law wife and daughter. The petition was opposed by herein petitioners Amelia
Garcia-Quaizon (Amelia) to whom Eliseo was married. Amelia was joined by her children, Jenneth Quiazon (Jenneth)
and Maria Jennifer Quiazon (Jennifer).

Eliseo died intestate on 12 December 1992.

On 12 September 1994, Maria Lourdes Elise Quiazon (Elise), represented by her mother, Ma. Lourdes Belen (Lourdes), filed
a Petition for Letters of Administration before the Regional Trial Court (RTC) of Las Piñas City.3 In her Petition docketed as
SP Proc. No. M-3957, Elise claims that she is the natural child of Eliseo having been conceived and born at the time when
her parents were both capacitated to marry each other. Insisting on the legal capacity of Eliseo and Lourdes to marry,
Elise impugned the validity of Eliseo’s marriage to Amelia by claiming that it was bigamous for having been contracted
during the subsistence of the latter’s marriage with one Filipito Sandico (Filipito). To prove her filiation to the decedent,
Elise, among others, attached to the Petition for Letters of Administration her Certificate of Live Birth4 signed by Eliseo as
her father. In the same petition, it was alleged that Eliseo left real properties worth ₱2,040,000.00 and personal properties
worth ₱2,100,000.00. In order to preserve the estate of Eliseo and to prevent the dissipation of its value, Elise sought her
appointment as administratrix of her late father’s estate.

Claiming that the venue of the petition was improperly laid, Amelia, together with her children, Jenneth and Jennifer,
opposed the issuance of the letters of administration by filing an Opposition/Motion to Dismiss.5 The petitioners asserted
that as shown by his Death Certificate, 6 Eliseo was a resident of Capas, Tarlac and not of Las Piñas City, at the time of his
death. Pursuant to Section 1, Rule 73 of the Revised Rules of Court,7 the petition for settlement of decedent’s estate
should have been filed in Capas, Tarlac and not in Las Piñas City. In addition to their claim of improper venue, the
petitioners averred that there are no factual and legal bases for Elise to be appointed administratix of Eliseo’s estate.

In a Decision8 dated 11 March 2005, the RTC directed the issuance of Letters of Administration to Elise upon posting the
necessary bond. The lower court ruled that the venue of the petition was properly laid in Las Piñas City, thereby
discrediting the position taken by the petitioners that Eliseo’s last residence was in Capas, Tarlac, as hearsay. The
dispositive of the RTC decision reads:

Having attained legal age at this time and there being no showing of any disqualification or incompetence to serve as
administrator, let letters of administration over the estate of the decedent Eliseo Quiazon, therefore, be issued to
petitioner, Ma. Lourdes Elise Quiazon, after the approval by this Court of a bond in the amount of ₱100,000.00 to be
posted by her.9

On appeal, the decision of the trial court was affirmed in toto in the 28 November 2008 Decision10 rendered by the Court
of Appeals in CA-G.R.CV No. 88589. In validating the findings of the RTC, the Court of Appeals held that Elise was able to
prove that Eliseo and Lourdes lived together as husband and wife by establishing a common residence at No. 26
Everlasting Road, Phase 5, Pilar Village, Las Piñas City, from 1975 up to the time of Eliseo’s death in 1992. For purposes of
fixing the venue of the settlement of Eliseo’s estate, the Court of Appeals upheld the conclusion reached by the RTC that
the decedent was a resident of Las Piñas City. The petitioners’ Motion for Reconsideration was denied by the Court of
Appeals in its Resolution11 dated 7 August 2009.

The Issues

The petitioners now urge Us to reverse the assailed Court of Appeals Decision and Resolution on the following grounds:

I. THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THAT ELISEO QUIAZON WAS A RESIDENT OF LAS PIÑAS
AND THEREFORE, THE PETITION FOR LETTERS OF ADMINISTRATION WAS PROPERLY FILED WITH THE RTC OF LAS
PIÑAS;

II. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT AMELIA GARCIA-QUIAZON WAS NOT LEGALLY
MARRIED TO ELISEO QUIAZON DUE TO PREEXISTING MARRIAGE; AND

III. THE COURT OF APPEALS OVERLOOKED THE FACT THAT ELISE QUIAZON HAS NOT SHOWN ANY INTEREST IN THE
PETITION FOR LETTERS OF ADMINISTRATION.12

The Court’s Ruling

We find the petition bereft of merit.

Under Section 1, Rule 73 of the Rules of Court, the petition for letters of administration of the estate of a decedent should
be filed in the RTC of the province where the decedent resides at the time of his death:

Sec. 1. Where estate of deceased persons settled. – If the decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in
the Court of First Instance now Regional Trial Court in the province in which he resides at the time of his death, and if he is
an inhabitant of a foreign country, the Court of First Instance now Regional Trial Court of any province in which he had
estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that
court, in the original case, or when the want of jurisdiction appears on the record. (Emphasis supplied).

The term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term
"resides," like the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose
of the statute or rule in which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the
Revised Rules of Court is of such nature – residence rather than domicile is the significant factor.13 Even where the statute
uses word "domicile" still it is construed as meaning residence and not domicile in the technical sense.14 Some cases
make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms
are synonymous, and convey the same meaning as the term "inhabitant."15 In other words, "resides" should be viewed or
understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or
place of abode.16 It signifies physical presence in a place and actual stay thereat.17 Venue for ordinary civil actions and
that for special proceedings have one and the same meaning.18 As thus defined, "residence," in the context of venue
provisions, means nothing more than a person’s actual residence or place of abode, provided he resides therein with
continuity and consistency.19

Viewed in light of the foregoing principles, the Court of Appeals cannot be faulted for affirming the ruling of the RTC that
the venue for the settlement of the estate of Eliseo was properly laid in Las Piñas City. It is evident from the records that
during his lifetime, Eliseo resided at No. 26 Everlasting Road, Phase 5, Pilar Village, Las Piñas City. For this reason, the
venue for the settlement of his estate may be laid in the said city.

In opposing the issuance of letters of administration, the petitioners harp on the entry in Eliseo’s Death Certificate that he
is a resident of Capas, Tarlac where they insist his estate should be settled. While the recitals in death certificates can be
considered proofs of a decedent’s residence at the time of his death, the contents thereof, however, is not binding on
the courts. Both the RTC and the Court of Appeals found that Eliseo had been living with Lourdes, deporting themselves
as husband and wife, from 1972 up to the time of his death in 1995. This finding is consistent with the fact that in 1985,
Eliseo filed an action for judicial partition of properties against Amelia before the RTC of Quezon City, Branch 106, on the
ground that their marriage is void for being bigamous.20 That Eliseo went to the extent of taking his marital feud with
Amelia before the courts of law renders untenable petitioners’ position that Eliseo spent the final days of his life in Tarlac
with Amelia and her children. It disproves rather than supports petitioners’ submission that the lower courts’ findings arose
from an erroneous appreciation of the evidence on record. Factual findings of the trial court, when affirmed by the
appellate court, must be held to be conclusive and binding upon this Court.21

Likewise unmeritorious is petitioners’ contention that the Court of Appeals erred in declaring Amelia’s marriage to Eliseo
as void ab initio. In a void marriage, it was though no marriage has taken place, thus, it cannot be the source of rights.
Any interested party may attack the marriage directly or collaterally. A void marriage can be questioned even beyond
the lifetime of the parties to the marriage.22 It must be pointed out that at the time of the celebration of the marriage of
Eliseo and Amelia, the law in effect was the Civil Code, and not the Family Code, making the ruling in Niñal v.
Bayadog23 applicable four-square to the case at hand. In Niñal, the Court, in no uncertain terms, allowed therein
petitioners to file a petition for the declaration of nullity of their father’s marriage to therein respondent after the death of
their father, by contradistinguishing void from voidable marriages, to wit:

Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be
assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring
will be left as if the marriage had been perfectly valid. That is why the action or defense for nullity is imprescriptible, unlike
voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper
interested party may attack a void marriage.24

It was emphasized in Niñal that in a void marriage, no marriage has taken place and it cannot be the source of rights,
such that any interested party may attack the marriage directly or collaterally without prescription, which may be filed
even beyond the lifetime of the parties to the marriage.25

Relevant to the foregoing, there is no doubt that Elise, whose successional rights would be prejudiced by her father’s
marriage to Amelia, may impugn the existence of such marriage even after the death of her father. The said marriage
may be questioned directly by filing an action attacking the validity thereof, or collaterally by raising it as an issue in a
proceeding for the settlement of the estate of the deceased spouse, such as in the case at bar. Ineluctably, Elise, as a
compulsory heir,26 has a cause of action for the declaration of the absolute nullity of the void marriage of Eliseo and
Amelia, and the death of either party to the said marriage does not extinguish such cause of action.

Having established the right of Elise to impugn Eliseo’s marriage to Amelia, we now proceed to determine whether or not
the decedent’s marriage to Amelia is void for being bigamous.

Contrary to the position taken by the petitioners, the existence of a previous marriage between Amelia and Filipito was
sufficiently established by no less than the Certificate of Marriage issued by the Diocese of Tarlac and signed by the
officiating priest of the Parish of San Nicolas de Tolentino in Capas, Tarlac. The said marriage certificate is a competent
evidence of marriage and the certification from the National Archive that no information relative to the said marriage
exists does not diminish the probative value of the entries therein. We take judicial notice of the fact that the first
marriage was celebrated more than 50 years ago, thus, the possibility that a record of marriage can no longer be found
in the National Archive, given the interval of time, is not completely remote. Consequently, in the absence of any
showing that such marriage had been dissolved at the time Amelia and Eliseo’s marriage was solemnized, the
inescapable conclusion is that the latter marriage is bigamous and, therefore, void ab initio.27

Neither are we inclined to lend credence to the petitioners’ contention that Elise has not shown any interest in the
Petition for Letters of Administration.
Section 6, Rule 78 of the Revised Rules of Court lays down the preferred persons who are entitled to the issuance of
letters of administration, thus:

Sec. 6. When and to whom letters of administration granted. — If no executor is named in the will, or the executor or
executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be
granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or
to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and
willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death
of the person to apply for administration or to request that administration be granted to some other person, it
may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the
court may select.

Upon the other hand, Section 2 of Rule 79 provides that a petition for Letters of Administration must be filed by an
interested person, thus:

Sec. 2. Contents of petition for letters of administration. — A petition for letters of administration must be filed by an
interested person and must show, so far as known to the petitioner:

(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of the
decedent;

(c) The probable value and character of the property of the estate;

(d) The name of the person for whom letters of administration are prayed.

But no defect in the petition shall render void the issuance of letters of administration.

An "interested party," in estate proceedings, is one who would be benefited in the estate, such as an heir, or one who
has a claim against the estate, such as a creditor. Also, in estate proceedings, the phrase "next of kin" refers to those
whose relationship with the decedent Is such that they are entitled to share in the estate as distributees.28

In the instant case, Elise, as a compulsory heir who stands to be benefited by the distribution of Eliseo’s estate, is deemed
to be an interested party. With the overwhelming evidence on record produced by Elise to prove her filiation to Eliseo,
the petitioners’ pounding on her lack of interest in the administration of the decedent’s estate, is just a desperate
attempt to sway this Court to reverse the findings of the Court of Appeals. Certainly, the right of Elise to be appointed
administratix of the estate of Eliseo is on good grounds. It is founded on her right as a compulsory heir, who, under the
law, is entitled to her legitimate after the debts of the estate are satisfied.29 Having a vested right in the distribution of
Eliseo’s estate as one of his natural children, Elise can rightfully be considered as an interested party within the purview of
the law.

WHEREFORE, premises considered, the petition is DENIED for lack of merit. Accordingly, the Court of Appeals assailed 28
November 2008 Decision and 7 August 2009 Resolution, arc AFFIRMED in toto.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:
 ANTONIO T. CARPIO
Associate Justic
Chairpersone

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation be lore the case was assigned to the
writer or the opinion or the Court’s Division.

ATONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the case was assigned to the writer or the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 189538 February 10, 2014

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
MERLINDA L. OLAYBAR, Respondent.

DECISION

PERALTA, J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court are the Regional Trial Court1(RTC)
Decision2 dated May 5, 2009 and Order3 dated August 25, 2009 in SP. Proc. No. 16519-CEB. The assailed decision granted
respondent Merlinda L. Olaybar's petition for cancellation of entries in the latter's marriage contract; while the assailed
order denied the motion for reconsideration filed by petitioner Republic of the Philippines through the Office of the
Solicitor General (OSG).

The facts of the case are as follows:

Respondent requested from the National Statistics Office (NSO) a Certificate of No Marriage (CENOMAR) as one of the
requirements for her marriage with her boyfriend of five years. Upon receipt thereof, she discovered that she was already
married to a certain Ye Son Sune, a Korean National, on June 24, 2002, at the Office of the Municipal Trial Court in Cities
(MTCC), Palace of Justice. She denied having contracted said marriage and claimed that she did not know the alleged
husband; she did not appear before the solemnizing officer; and, that the signature appearing in the marriage
certificate is not hers.4 She, thus, filed a Petition for Cancellation of Entries in the Marriage Contract, especially the entries
in the wife portion thereof.5 Respondent impleaded the Local Civil Registrar of Cebu City, as well as her alleged
husband, as parties to the case.

During trial, respondent testified on her behalf and explained that she could not have appeared before Judge Mamerto
Califlores, the supposed solemnizing officer, at the time the marriage was allegedly celebrated, because she was then in
Makati working as a medical distributor in Hansao Pharma. She completely denied having known the supposed
husband, but she revealed that she recognized the named witnesses to the marriage as she had met them while she
was working as a receptionist in Tadels Pension House. She believed that her name was used by a certain Johnny Singh,
who owned a travel agency, whom she gave her personal circumstances in order for her to obtain a
passport.6 Respondent also presented as witness a certain Eufrocina Natinga, an employee of MTCC, Branch 1, who
confirmed that the marriage of Ye Son Sune was indeed celebrated in their office, but claimed that the alleged wife
who appeared was definitely not respondent.7 Lastly, a document examiner testified that the signature appearing in the
marriage contract was forged.8

On May 5, 2009, the RTC rendered the assailed Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered, the petition is granted in favor of the petitioner, Merlinda L. Olaybar. The
Local Civil Registrar of Cebu City is directed to cancel all the entries in the WIFE portion of the alleged marriage contract
of the petitioner and respondent Ye Son Sune.

SO ORDERED.9

Finding that the signature appearing in the subject marriage contract was not that of respondent, the court found basis
in granting the latter’s prayer to straighten her record and rectify the terrible mistake.10

Petitioner, however, moved for the reconsideration of the assailed Decision on the grounds that: (1) there was no clerical
spelling, typographical and other innocuous errors in the marriage contract for it to fall within the provisions of Rule 108 of
the Rules of Court; and (2) granting the cancellation of all the entries in the wife portion of the alleged marriage contract
is, in effect, declaring the marriage void ab initio.11

In an Order dated August 25, 2009, the RTC denied petitioner’s motion for reconsideration couched in this wise:

WHEREFORE, the court hereby denies the Motion for Reconsideration filed by the Republic of the Philippines. Furnish
copies of this order to the Office of the Solicitor General, the petitioner’s counsel, and all concerned government
agencies.

SO ORDERED.12

Contrary to petitioner’s stand, the RTC held that it had jurisdiction to take cognizance of cases for correction of entries
even on substantial errors under Rule 108 of the Rules of Court being the appropriate adversary proceeding required.
Considering that respondent’s identity was used by an unknown person to contract marriage with a Korean national, it
would not be feasible for respondent to institute an action for declaration of nullity of marriage since it is not one of the
void marriages under Articles 35 and 36 of the Family Code.13

Petitioner now comes before the Court in this Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking
the reversal of the assailed RTC Decision and Order based on the following grounds:

I.

RULE 108 OF THE REVISED RULES OF COURT APPLIES ONLY WHEN THERE ARE ERRORS IN THE ENTRIES SOUGHT TO BE
CANCELLED OR CORRECTED.

II.

GRANTING THE CANCELLATION OF "ALL THE ENTRIES IN THE WIFE PORTION OF THE ALLEGED MARRIAGE CONTRACT," IS IN
EFFECT DECLARING THE MARRIAGE VOID AB INITIO.14

Petitioner claims that there are no errors in the entries sought to be cancelled or corrected, because the entries made in
the certificate of marriage are the ones provided by the person who appeared and represented herself as Merlinda L.
Olaybar and are, in fact, the latter’s personal circumstances.15 In directing the cancellation of the entries in the wife
portion of the certificate of marriage, the RTC, in effect, declared the marriage null and void ab initio.16Thus, the petition
instituted by respondent is actually a petition for declaration of nullity of marriage in the guise of a Rule 108
proceeding.17

We deny the petition.

At the outset, it is necessary to stress that a direct recourse to this Court from the decisions and final orders of the RTC
may be taken where only questions of law are raised or involved. There is a question of law when the doubt arises as to
what the law is on a certain state of facts, which does not call for the examination of the probative value of the
evidence of the parties.18 Here, the issue raised by petitioner is whether or not the cancellation of entries in the marriage
contract which, in effect, nullifies the marriage may be undertaken in a Rule 108 proceeding. Verily, petitioner raised a
pure question of law.

Rule 108 of the Rules of Court sets forth the rules on cancellation or correction of entries in the civil registry, to wit:

SEC. 1. Who may file petition. – Any person interested in any act, event, order or decree concerning the civil
status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or
correction of any entry relating thereto, with the Regional Trial Court of the province where the corresponding
civil registry is located.

SEC. 2. Entries subject to cancellation or correction. – Upon good and valid grounds, the following entries in the
civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of
a minor; and (o) changes of name.

SEC. 3. Parties. – When cancellation or correction of an entry in the civil register is sought, the civil registrar and
all persons who have or claim any interest which would be affected thereby shall be made parties to the
proceeding.

SEC. 4. Notice and Publication. – Upon the filing of the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in
the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the province.

SEC. 5. Opposition. – The civil registrar and any person having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.

SEC. 6. Expediting proceedings. – The court in which the proceedings is brought may make orders expediting
the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties
pending such proceedings.

SEC. 7. Order. – After hearing, the court may either dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same in his record.

Rule 108 of the Rules of Court provides the procedure for cancellation or correction of entries in the civil registry. The
proceedings may either be summary or adversary. If the correction is clerical, then the procedure to be adopted is
summary. If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial, and the
procedure to be adopted is adversary. Since the promulgation of Republic v. Valencia19 in 1986, the Court has
repeatedly ruled that "even substantial errors in a civil registry may be corrected through a petition filed under Rule 108,
with the true facts established and the parties aggrieved by the error availing themselves of the appropriate adversarial
proceeding."20 An appropriate adversary suit or proceeding is one where the trial court has conducted proceedings
where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity
to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered.21
It is true that in special proceedings, formal pleadings and a hearing may be dispensed with, and the remedy [is]
granted upon mere application or motion. However, a special proceeding is not always summary. The procedure laid
down in Rule 108 is not a summary proceeding per se. It requires publication of the petition; it mandates the inclusion as
parties of all persons who may claim interest which would be affected by the cancellation or correction; it also requires
the civil registrar and any person in interest to file their opposition, if any; and it states that although the court may make
orders expediting the proceedings, it is after hearing that the court shall either dismiss the petition or issue an order
granting the same. Thus, as long as the procedural requirements in Rule 108 are followed, it is the appropriate adversary
proceeding to effect substantial corrections and changes in entries of the civil register.22

In this case, the entries made in the wife portion of the certificate of marriage are admittedly the personal circumstances
of respondent. The latter, however, claims that her signature was forged and she was not the one who contracted
marriage with the purported husband. In other words, she claims that no such marriage was entered into or if there was,
she was not the one who entered into such contract. It must be recalled that when respondent tried to obtain a
CENOMAR from the NSO, it appeared that she was married to a certain Ye Son Sune. She then sought the cancellation
of entries in the wife portion of the marriage certificate.

In filing the petition for correction of entry under Rule 108, respondent made the Local Civil Registrar of Cebu City, as well
as her alleged husband Ye Son Sune, as parties-respondents. It is likewise undisputed that the procedural requirements
set forth in Rule 108 were complied with. The Office of the Solicitor General was likewise notified of the petition which in
turn authorized the Office of the City Prosecutor to participate in the proceedings. More importantly, trial was
conducted where respondent herself, the stenographer of the court where the alleged marriage was conducted, as
well as a document examiner, testified. Several documents were also considered as evidence. With the testimonies and
other evidence presented, the trial court found that the signature appearing in the subject marriage certificate was
different from respondent’s signature appearing in some of her government issued identification cards.23 The court thus
made a categorical conclusion that respondent’s signature in the marriage certificate was not hers and, therefore, was
forged. Clearly, it was established that, as she claimed in her petition, no such marriage was celebrated.

Indeed the Court made a pronouncement in the recent case of Minoru Fujiki v. Maria Paz Galela Marinay, Shinichi
Maekara, Local Civil Registrar of Quezon City, and the Administrator and Civil Registrar General of the National Statistics
Office24 that:

To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for an action to
invalidate a marriage. A direct action is necessary to prevent circumvention of the substantive and procedural
safeguards of marriage under the Family Code, A.M. No. 02-11-10-SC and other related laws. Among these safeguards
are the requirement of proving the limited grounds for the dissolution of marriage, support pendente lite of the spouses
and children, the liquidation, partition and distribution of the properties of the spouses and the investigation of the public
prosecutor to determine collusion. A direct action for declaration of nullity or annulment of marriage is also necessary to
prevent circumvention of the jurisdiction of the Family Courts under the Family Courts Act of 1997 (Republic Act No.
8369), as a petition for cancellation or correction of entries in the civil registry may be filed in the Regional Trial Court
where the corresponding civil registry is located. In other words, a Filipino citizen cannot dissolve his marriage by the
mere expedient of changing his entry of marriage in the civil registry.

Aside from the certificate of marriage, no such evidence was presented to show the existence of
marriage.1âwphi1 Rather, respondent showed by overwhelming evidence that no marriage was entered into and that
she was not even aware of such existence. The testimonial and documentary evidence clearly established that the only
"evidence" of marriage which is the marriage certificate was a forgery. While we maintain that Rule 108 cannot be
availed of to determine the validity of marriage, we cannot nullify the proceedings before the trial court where all the
parties had been given the opportunity to contest the allegations of respondent; the procedures were followed, and all
the evidence of the parties had already been admitted and examined. Respondent indeed sought, not the nullification
of marriage as there was no marriage to speak of, but the correction of the record of such marriage to reflect the truth
as set forth by the evidence. Otherwise stated, in allowing the correction of the subject certificate of marriage by
cancelling the wife portion thereof, the trial court did not, in any way, declare the marriage void as there was no
marriage to speak of.

WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Regional Trial Court Decision dated May 5,
2009 and Order dated August 25, 2009 in SP. Proc. No. 16519-CEB, are AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

ROBERTO A. ABAD JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 131, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-53703 August 19, 1986

LILIA OLIVA WIEGEL, petitioner,

vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile and Domestic Relations Court of Caloocan
City) and KARL HEINZ WIEGEL, respondents.

Dapucanta, Dulay & Associates for petitioner.

Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

PARAS, J.:

In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic Relations Court of Caloocan City,
herein respondent Karl Heinz Wiegel (plaintiff therein) asked for the declaration of Nullity of his marriage (celebrated on
July, 1978 at the Holy Catholic Apostolic Christian Church Branch in Makati, Metro Manila) with herein petitioner Lilia
Oliva Wiegel (Lilia, for short, and defendant therein) on the ground of Lilia's previous existing marriage to one Eduardo A.
Maxion, the ceremony having been performed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia,
while admitting the existence of said prior subsisting marriage claimed that said marriage was null and void, she and the
first husband Eduardo A. Maxion having been allegedly forced to enter said marital union. In the pre-trial that ensued,
the issue agreed upon by both parties was the status of the first marriage (assuming the presence of force exerted
against both parties): was said prior marriage void or was it merely voidable? Contesting the validity of the pre-trial
order, Lilia asked the respondent court for an opportunity to present evidence-

(1) that the first marriage was vitiated by force exercised upon both her and the first husband; and

(2) that the first husband was at the time of the marriage in 1972 already married to someone else.

Respondent judge ruled against the presentation of evidence because the existence of force exerted on both parties of
the first marriage had already been agreed upon. Hence, the present petition for certiorari assailing the following Orders
of therespondent Judge-

(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case for resolution based on
"agreed facts;" and

(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in her favor.

We find the petition devoid of merit.

There is no need for petitioner to prove that her first marriage was vitiated by force committed against both parties
because assuming this to be so, the marriage will not be void but merely viodable (Art. 85, Civil Code), and therefore
valid until annulled. Since no annulment has yet been made, it is clear that when she married respondent she was still
validly married to her first husband, consequently, her marriage to respondent is VOID (Art. 80, Civil Code).

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 1 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.

WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders complained of are hereby AFFIRMED.
Costs against petitioner.

SO ORDERED.

Feria (Chairman), Fernan Alampay and Gutierrez, Jr., JJ., concur.

Footnotes

1 Vda. de Consuegra vs. GSIS, 37 SCRA 315.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 2349 July 3, 1992

DOROTHY B. TERRE, complainant,
vs.
ATTY. JORDAN TERRE, respondent.

PER CURIAM:

In a sworn complaint filed with this Court on 24 December 1981, complainant Dorothy B. Terre charged respondent
Jordan Terre, a member of the Philippine Bar with "grossly immoral conduct," consisting of contracting a second
marriage and living with another woman other than complainant, while his prior marriage with complainant remained
subsisting.

The Court resolved to require respondent to answer the complaint. 1 Respondent successfully evaded five (5) attempts
to serve a copy of the Court's Resolution and of the complaint by moving from one place to another, such that he could
not be found nor reached in his alleged place of employment or residence. 2 On 24 April 1985, that is after three (3)
years and a half, with still no answer from the respondent, the Court noted respondent's success in evading service of the
complaint and the Court's Resolution and thereupon resolved to "suspend respondent Atty. Jordan Terre from the
practice of law until after he appears and/or files his answer to the complaint against him" in the instant
case. 3

On 28 September 1985, respondent finally filed an Answer with a Motion to Set Aside and/or Lift Suspension Order. In his
Answer, Atty. Terre averred that he had contracted marriage with complainant Dorothy Terre on 14 June 1977 upon her
representation that she was single; that he subsequently learned that Dorothy was married to a certain Merlito A.
Bercenilla sometime in 1968; that when he confronted Dorothy about her prior marriage, Dorothy drove him out of their
conjugal residence; that Dorothy had mockingly told him of her private meetings with Merlito A. Bercenilla and that the
child she was then carrying (i.e., Jason Terre) was the son of Bercenilla; that believing in good faith that his marriage to
complainant was null and void ab initio, he contracted marriage with Helina Malicdem at Dasol, Pangasinan. 4

In her Reply, complainant Dorothy denied that Jason Terre was the child of Merlito A. Bercenilla and insisted that Jason
was the child of respondent Jordan Terre, as evidenced by Jason's Birth Certificate and physical resemblance to
respondent. Dorothy further explained that while she had given birth to Jason Terre at the PAFGH registered as a
dependent of Merlito Bercenilla, she had done so out of extreme necessity and to avoid risk of death or injury to the
fetus which happened to be in a difficult breech position. According to Dorothy, she had then already been
abandoned by respondent Jordan Terre, leaving her penniless and without means to pay for the medical and hospital
bills arising by reason of her pregnancy.

The Court denied respondent's Motion to Set Aside or Lift the Suspension Order and instead referred; by a Resolution
dated 6 January 1986, the complaint to the Office of the Solicitor General for investigation, report and
recommendation. 5

Then Solicitor Pio C. Guerrero was appointed investigator by the Office of the Solicitor General. He set the case for
hearing on 7 July 1986 with notice to both parties. On 7 July 1986, complainant Dorothy appeared and presented her
evidence ex parte, since respondent did not so appear. 6 The Investigating Solicitor scheduled and held another
hearing on 19 August 1986, where he put clarificatory questions to the complainant; respondent once again did not
appear despite notice to do so. Complainant finally offered her evidence and rested her case. The Solicitor set still
another hearing for 2 October 1986, notifying respondent to present his evidence with a warning that should he fail once
more to appear, the case would be deemed submitted for resolution. Respondent did not appear on 2 October 1986.
The Investigating Solicitor accordingly considered respondent to have waived his right to present evidence and
declared the case submitted for resolution. The parties were given time to submit their respective memoranda.
Complainant Dorothy did so on 8 December 1986. Respondent Terre did not file his memorandum.

On 26 February 1990, the Office of the Solicitor General submitted its "Report and Recommendation" to this Court. The
Report summarized the testimony of the complainant in the following manner:

Complainant Dorothy Terre took the witness stand and testified substantially as follows: she and
respondent met for the first time in 1979 as fourth year high school classmates in Cadiz City High
School (tsn, July 7, 1986, p. 9); she was then married to Merlito Bercenilla, while respondent was single
(id.); respondent was aware of her marital status (ibid, p. 14); it was then that respondent started
courting her but nothing happened of the courtship (ibid, p. 10); they [complainant and respondent]
moved to Manila were they respectively pursued their education, respondent as a law student at the
 Lyceum University (tsn, July 7, 1986, p. 12, 15-16); respondent continued courting her, this time with
more persistence (ibid, p. 11); she decided nothing would come of it since she was married but he
[respondent] explained to her that their marriage was void ab initio since she and her first husband
were first cousins (ibid, p. 12); convinced by his explanation and having secured favorable advice
from her mother and
ex-in-laws, she agreed to marry him [respondent] (ibid, 12-13, 16); in their marriage license, despite her
[complainant's] objection, he [respondent] wrote "single" as her status explaining that since her
marriage was void ab initio, there was no need to go to court to declare it as such (ibid, 14-15); they
were married before Judge Priscilla Mijares of the City Court of Manila on June 14, 1977 (Exhibit A; tsn,
July 7, 1986, pp. 16-17); Jason Terre was born of their union on June 25, 1981 (Exhibit B, tsn, July 7, 1986,
p. 18); all through their married state up to the time he [respondent] disappeared in 1981,
complainant supported respondent, in addition to the allowance the latter was getting from his
parents (ibid, pp. 19-20); she was unaware of the reason for his disappearance until she found out
later that respondent married a certain Vilma [sic] Malicdem (Exhibit C, tsn, July 7, 1986, pp. 21-22);
she then filed a case for abandonment of minor with the City Fiscal of Pasay City (ibid, p. 23) which
was subsequently filed before Branch II of the City Court of Pasay City as Criminal Case No. 816159
(Exhibit D; tsn, July 7, 1986, p. 24); she likewise filed a case for bigamy against respondent and Helina
Malicdem with the office of the Provincial Fiscal of Pangasinan, where a prima facie case was found
to exist (Exhibit E; tsn, July 7, pp. 25-26); additionally, complainant filed an administrative case against
respondent with the Commission on Audit where he was employed, which case however was
considered closed for being moot and academic when respondent was considered automatically
separated from the service for having gone on absence without official leave (Exhibit F; tsn, July 7,
1986, pp. 28-29). 7

There is no dispute over the fact that complainant Dorothy Terre and respondent Jordan Terre contracted marriage on
14 July 1977 before Judge Priscilla Mijares. There is further no dispute over the fact that on 3 May 1981, respondent
Jordan Terre married Helina Malicdem in Dasol, Pangasinan. When the second marriage was entered into, respondent's
prior marriage with complainant was subsisting, no judicial action having been initiated or any judicial declaration
obtained as to the nullity of such prior marriage of respondent with complainant.

Respondent Jordan Terre sought to defend himself by claiming that he had believed in good faith that his prior marriage
with complainant Dorothy Terre was null and void ab initio and that no action for a judicial declaration of nullity was
necessary.

The Court considers this claim on the part of respondent Jordan Terre as a spurious defense. In the first place, respondent
has not rebutted complainant's evidence as to the basic facts which underscores the bad faith of respondent Terre. In
the second place, that pretended defense is the same argument by which he had inveigled complainant into believing
that her prior marriage to Merlito A. Bercenilla being incestuous and void ab initio (Dorothy and Merlito being allegedly
first cousins to each other), she was free to contract a second marriage with the respondent. Respondent Jordan Terre,
being a lawyer, knew or should have known that such an argument ran counter to the prevailing case law of this Court
which holds 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. 8 Even if we were to assume, arguendo merely,
that Jordan Terre held that mistaken belief in good faith, the same result will follow. For if we are to hold Jordan Terre to
his own argument, his first marriage to complainant Dorothy Terre must be deemed valid, with the result that his second
marriage to Helina Malicdem must be regarded as bigamous and criminal in character.

That the moral character of respondent Jordan Terre was deeply flawed is shown by other circumstances. As noted, he
convinced the complainant that her prior marriage to Bercenilla was null and void ab initio, that she was still legally
single and free to marry him. When complainant and respondent had contracted their marriage, respondent went
through law school while being supported by complainant, with some assistance from respondent's parents. After
respondent had finished his law course and gotten complainant pregnant, respondent abandoned the complainant
without support and without the wherewithal for delivering his own child safely in a hospital.

Thus, we agree with the Solicitor General that respondent Jordan Terre, by his actions, "eloquently displayed, not only his
unfitness to remain as a member of the Bar, but likewise his inadequacy to uphold the purpose and responsibility of his
gender" because marriage is a basic social institution. 9

In Pomperada v. Jochico, 10 the Court, in rejecting a petition to be allowed to take the oath as a member of the Bar
and to sign the Roll of Attorneys, said through Mme. Justice Melencio-Herrera:

It is evident that respondent fails to meet the standard of moral fitness for membership in the legal
profession. Whether the marriage was a joke as respondent claims, or a trick played on her as
claimed by complainant, it does not speak well of respondent's moral values. Respondent had made
 a mockery of marriage, a basic social institution which public policy cherishes and protects (Article
216, Civil Code). 11

In Bolivar v. Simbol, 12 the Court found the respondent there guilty of "grossly immoral conduct" because he made a
dupe of complainant, living on her bounty and allowing her to spend for his schooling and other personal necessities
while dangling before her the mirage of a marriage, marrying another girl as soon as he had finished his studies, keeping
his marriage a secret while continuing to demand money from complainant. . . . ." The Court held such acts "indicative of
a character not worthy of a member of the Bar." 13

We believe and so hold that the conduct of respondent Jordan Terre in inveigling complainant Dorothy Terre to contract
a second marriage with him; in abandoning complainant Dorothy Terre after she had cared for him and supported him
through law school, leaving her without means for the safe delivery of his own child; in contracting a second marriage
with Helina Malicdem while his first marriage with complainant Dorothy Terre was subsisting, constituted "grossly immoral
conduct" under Section 27 of Rule 138 of the Rules of Court, affording more than sufficient basis for disbarment of
respondent Jordan Terre. He was unworthy of admission to the Bar in the first place. The Court will correct this error
forthwith.

WHEREFORE, the Court Resolved to DISBAR respondent Jordan Terre and to STRIKE OUT his name from the Roll of
Attorneys. A copy of this decision shall be spread on the personal record of respondent Jordan Terre in the Bar
Confidant's Office. A copy of this resolution shall also be furnished to the Integrated Bar of the Philippines and shall be
circularized to all the courts of the land.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr.,
Romero, Nocon and Bellosillo, JJ., concur.

Footnotes

1 Resolution, 16 June 1992. Rollo, p. 6.

2 Three (3) attempts were made by registered mail: the first two (2), at respondent's address at
Abelardo Street, Cadiz City, Negros Occidental, and the third, at respondent's employment address
at Commission on Audit, Cadiz City. Another attempt was made at respondent's address at Bliss
Project Daga, Cadig City, through the assistance of the P.C. Command at Bacolod City; and another
at Lumbunao Calinog Sugar Mill, Iloilo (Court's Resolution dated 24 April 1985, Rollo, p. 47).

3 Resolution, 24 April 1985. Rollo, p. 52.

4 Rollo, p. 53.

5 Id., p. 70.

6 In his Answer with Motion to Set Aside and/or Lift Suspension Order, respondent Jordan Terre stated
his address as "c/o 4th Floor, PAIC Building, 105 Paseo de Roxas, Makati, Metro Manila." Court papers
sent to him at that address were, however, returned unserved with the notation "not known at given
address" (Rollo, p. 63). It thus appears that Jordan Terre once more submerged to evade service of
legal papers on him.

7 Rollo, p. 73.

8 Gomez v. Lipana, 33 SCRA 615 (1970); Vda. de Consuegra v. Government Service Insurance System,
37 SCRA 316 (1971); Wiegel v. Hon. Alicia Sempio-Diy, etc., et al, 143 SCRA 499 (1986). This rule has
been cast into statutory form by Article 40 of the Family Code (Executive Order No. 209, dated 6 July
1987).

9 Arroyo v. Court of Appeals, et al., G.R. Nos. 96602 and 96715, 19 November 1991.

10 133 SCRA 309 (1984).

 11 133 SCRA at 316. See also Cordova v. Cordova, 179 SCRA 680 (1989) and Laguitan v. Tinio, 179
SCRA 837 (1989).

12 16 SCRA 623 (1966).

13 16 SCRA 630.

SECOND DIVISION

[G.R. No. 145226. February 06, 2004]

LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari seeks to reverse the decision[1] dated October 21, 1999 of the Court of Appeals
in CA-G.R. CR No. 20700, which affirmed the judgment[2] dated August 5, 1996 of the Regional Trial Court (RTC) of Bohol,
Branch 4, in Criminal Case No. 8688. The trial court found herein petitioner Lucio Morigo y Cacho guilty beyond reasonable
doubt of bigamy and sentenced him to a prison term of seven (7) months of prision correccional as minimum to six (6)
years and one (1) day of prision mayor as maximum. Also assailed in this petition is the resolution[3] of the appellate court,
dated September 25, 2000, denying Morigos motion for reconsideration.

The facts of this case, as found by the court a quo, are as follows:

Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran City, Province
of Bohol, for a period of four (4) years (from 1974-1978).

After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other.

In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former replied and after an
exchange of letters, they became sweethearts.

In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they maintained
constant communication.

In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada. Both agreed to
get married, thus they were married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol.

On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind.

On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against appellant which
was granted by the court on January 17, 1992 and to take effect on February 17, 1992.

On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago[4] at the Virgen sa Barangay Parish,
Tagbilaran City, Bohol.

On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the Regional Trial
Court of Bohol, docketed as Civil Case No. 6020. The complaint seek (sic) among others, the declaration of nullity of
accuseds marriage with Lucia, on the ground that no marriage ceremony actually took place.

On October 19, 1993, appellant was charged with Bigamy in an Information[5] filed by the City Prosecutor of Tagbilaran
[City], with the Regional Trial Court of Bohol.[6]
 The petitioner moved for suspension of the arraignment on the ground that the civil case for judicial nullification of
his marriage with Lucia posed a prejudicial question in the bigamy case. His motion was granted, but subsequently denied
upon motion for reconsideration by the prosecution. When arraigned in the bigamy case, which was docketed as Criminal
Case No. 8688, herein petitioner pleaded not guilty to the charge. Trial thereafter ensued.

On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688, as follows:

WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty beyond reasonable
doubt of the crime of Bigamy and sentences him to suffer the penalty of imprisonment ranging from Seven (7) Months
of Prision Correccional as minimum to Six (6) Years and One (1) Day of Prision Mayor as maximum.

SO ORDERED.[7]

In convicting herein petitioner, the trial court discounted petitioners claim that his first marriage to Lucia was null and
void ab initio. Following Domingo v. Court of Appeals,[8]the trial court ruled that want of a valid marriage ceremony is not
a defense in a charge of bigamy. The parties to a marriage should not be allowed to assume that their marriage is void
even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be
allowed to marry again.

Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur,[9] which held that the court of
a country in which neither of the spouses is domiciled and in which one or both spouses may resort merely for the purpose
of obtaining a divorce, has no jurisdiction to determine the matrimonial status of the parties. As such, a divorce granted
by said court is not entitled to recognition anywhere. Debunking Lucios defense of good faith in contracting the second
marriage, the trial court stressed that following People v. Bitdu,[10] everyone is presumed to know the law, and the fact that
one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.

Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR No. 20700.

Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate court, the trial
court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initio since no
marriage ceremony actually took place. No appeal was taken from this decision, which then became final and executory.

On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows:

WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto.

SO ORDERED.[11]

In affirming the assailed judgment of conviction, the appellate court stressed that the subsequent declaration of
nullity of Lucios marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The reason is that what is sought to be
punished by Article 349[12] of the Revised Penal Code is the act of contracting a second marriage before the first marriage
had been dissolved. Hence, the CA held, the fact that the first marriage was void from the beginning is not a valid defense
in a bigamy case.

The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the Canadian court could
not be accorded validity in the Philippines, pursuant to Article 15[13] of the Civil Code and given the fact that it is contrary
to public policy in this jurisdiction. Under Article 17[14] of the Civil Code, a declaration of public policy cannot be rendered
ineffectual by a judgment promulgated in a foreign jurisdiction.

Petitioner moved for reconsideration of the appellate courts decision, contending that the doctrine in Mendiola v.
People,[15] allows mistake upon a difficult question of law (such as the effect of a foreign divorce decree) to be a basis for
good faith.

On September 25, 2000, the appellate court denied the motion for lack of merit.[16] However, the denial was by a
split vote. The ponente of the appellate courts original decision in CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined
in the opinion prepared by Justice Bernardo P. Abesamis. The dissent observed that as the first marriage was validly
declared void ab initio, then there was no first marriage to speak of. Since the date of the nullity retroacts to the date of
the first marriage and since herein petitioner was, in the eyes of the law, never married, he cannot be convicted beyond
reasonable doubt of bigamy.

The present petition raises the following issues for our resolution:

A.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE
REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT THE COURT OF
APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONERS LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE
SECOND MARRIAGE.

B.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS
APPLICABLE TO THE CASE AT BAR.

C.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE
FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT.[17]

To our mind, the primordial issue should be whether or not petitioner committed bigamy and if so, whether his defense
of good faith is valid.

The petitioner submits that he should not be faulted for relying in good faith upon the divorce decree of the Ontario
court. He highlights the fact that he contracted the second marriage openly and publicly, which a person intent upon
bigamy would not be doing. The petitioner further argues that his lack of criminal intent is material to a conviction or
acquittal in the instant case. The crime of bigamy, just like other felonies punished under the Revised Penal Code, is mala
in se, and hence, good faith and lack of criminal intent are allowed as a complete defense. He stresses that there is a
difference between the intent to commit the crime and the intent to perpetrate the act. Hence, it does not necessarily
follow that his intention to contract a second marriage is tantamount to an intent to commit bigamy.

For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the instant case is a
convenient but flimsy excuse. The Solicitor General relies upon our ruling in Marbella-Bobis v. Bobis,[18] which held that
bigamy can be successfully prosecuted provided all the elements concur, stressing that under Article 40[19] of the Family
Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or not the petitioner was aware of
said Article 40 is of no account as everyone is presumed to know the law. The OSG counters that petitioners contention
that he was in good faith because he relied on the divorce decree of the Ontario court is negated by his act of filing Civil
Case No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia.

Before we delve into petitioners defense of good faith and lack of criminal intent, we must first determine whether
all the elements of bigamy are present in this case. In Marbella-Bobis v. Bobis,[20] we laid down the elements of bigamy
thus:

(1) the offender has been legally married;

(2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not
been judicially declared presumptively dead;

(3) he contracts a subsequent marriage; and

(4) the subsequent marriage would have been valid had it not been for the existence of the first.

Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R. CR No. 20700, the RTC
of Bohol Branch 1, handed down the following decision in Civil Case No. 6020, to wit:

WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment of the marriage entered into
by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol and further directing the Local Civil
Registrar of Pilar, Bohol to effect the cancellation of the marriage contract.

SO ORDERED.[21]

The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a
solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence
of a solemnizing officer. The trial court thus held that the marriage is void ab initio, in accordance with Articles 3[22] and
4[23] of the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, This simply means that there
was no marriage to begin with; and that such declaration of nullity retroacts to the date of the first marriage. In other
words, for all intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to the
date of the celebration of the first marriage, the accused was, under the eyes of the law, never married.[24] The records
show that no appeal was taken from the decision of the trial court in Civil Case No. 6020, hence, the decision had long
become final and executory.

The first element of bigamy as a crime requires that the accused must have been legally married. But in this case,
legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the
principle of retroactivity of a marriage being declared void ab initio, the two were never married from the beginning. The
contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes,
petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the
validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said
offense cannot be sustained where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of
the instant charge.

The present case is analogous to, but must be distinguished from Mercado v. Tan.[25] In the latter case, the judicial
declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated. We
held therein that:

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted.
One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This
principle applies even if the earlier union is characterized by statutes as void.[26]

It bears stressing though that in Mercado, the first marriage was actually solemnized not just once, but twice: first
before a judge where a marriage certificate was duly issued and then again six months later before a priest in religious
rites. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio.

In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer.
Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage
contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without
more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy
unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage.

The law abhors an injustice and the Court is mandated to liberally construe a penal statute in favor of an accused
and weigh every circumstance in favor of the presumption of innocence to ensure that justice is done. Under the
circumstances of the present case, we held that petitioner has not committed bigamy. Further, we also find that we need
not tarry on the issue of the validity of his defense of good faith or lack of criminal intent, which is now moot and academic.

WHEREFORE, the instant petition is GRANTED. The assailed decision, dated October 21, 1999 of the Court of Appeals
in CA-G.R. CR No. 20700, as well as the resolution of the appellate court dated September 25, 2000, denying herein
petitioners motion for reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED from
the charge of BIGAMY on the ground that his guilt has not been proven with moral certainty.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

EN BANC

G.R. No. 150758 February 18, 2004

VERONICO TENEBRO, petitioner
vs.
THE HONORABLE COURT OF APPEALS, respondent.

DECISION

YNARES-SANTIAGO, J.:

We are called on to decide the novel issue concerning the effect of the judicial declaration of the nullity of a second or
subsequent marriage, on the ground of psychological incapacity, on an individual’s criminal liability for bigamy. We hold
that the subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not
retroact to the date of the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an
individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable
for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of
psychological incapacity.

Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia Ancajas on April 10,
1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas
lived together continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he
had been previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy
of a marriage contract between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the
conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes.1

On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda Villegas, before Judge
German Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15.2 When Ancajas learned of this third marriage, she
verified from Villareyes whether the latter was indeed married to petitioner. In a handwritten letter,3 Villareyes confirmed
that petitioner, Veronico Tenebro, was indeed her husband.

Ancajas thereafter filed a complaint for bigamy against petitioner.4 The Information,5 which was docketed as Criminal
Case No. 013095-L, reads:

That on the 10th day of April 1990, in the City of Lapu-lapu, Philippines, and within the jurisdiction of this Honorable Court,
the aforenamed accused, having been previously united in lawful marriage with Hilda Villareyes, and without the said
marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second
marriage with LETICIA ANCAJAS, which second or subsequent marriage of the accused has all the essential requisites for
validity were it not for the subsisting first marriage.

CONTRARY TO LAW.

When arraigned, petitioner entered a plea of "not guilty".6

During the trial, petitioner admitted having cohabited with Villareyes from 1984-1988, with whom he sired two children.
However, he denied that he and Villareyes were validly married to each other, claiming that no marriage ceremony
took place to solemnize their union.7 He alleged that he signed a marriage contract merely to enable her to get the
allotment from his office in connection with his work as a seaman.8 He further testified that he requested his brother to
verify from the Civil Register in Manila whether there was any marriage at all between him and Villareyes, but there was
no record of said marriage.9

On November 10, 1997, the Regional Trial Court of Lapu-lapu City, Branch 54, rendered a decision finding the accused
guilty beyond reasonable doubt of the crime of bigamy under Article 349 of the Revised Penal Code, and sentencing
him to four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision
mayor, as maximum.10 On appeal, the Court of Appeals affirmed the decision of the trial court. Petitioner’s motion for
reconsideration was denied for lack of merit.

Hence, the instant petition for review on the following assignment of errors:

I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED, AND THIS ERROR IS CORRECTIBLE IN THIS APPEAL – WHEN
IT AFFIRMED THE DECISION OF THE HONORABLE COURT A QUOCONVICTING THE ACCUSED FOR (sic) THE CRIME
OF BIGAMY, DESPITE THE NON-EXISTENCE OF THE FIRST MARRIAGE AND INSUFFICIENCY OF EVIDENCE.
 II. THE COURT ERRED IN CONVICTING THE ACCUSED FOR (sic) THE CRIME OF BIGAMY DESPITE CLEAR PROOF THAT
THE MARRIAGE BETWEEN THE ACCUSED AND PRIVATE COMPLAINANT HAD BEEN DECLARED NULL AND VOID AB
INITIO AND WITHOUT LEGAL FORCE AND EFFECT.11

After a careful review of the evidence on record, we find no cogent reason to disturb the assailed judgment.

Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy are:

(1) that the offender has been legally married;

(2) that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent
spouse could not yet be presumed dead according to the Civil Code;

(3) that he contracts a second or subsequent marriage; and

(4) that the second or subsequent marriage has all the essential requisites for validity.12

Petitioner’s assignment of errors presents a two-tiered defense, in which he (1) denies the existence of his first marriage to
Villareyes, and (2) argues that the declaration of the nullity of the second marriage on the ground of psychological
incapacity, which is an alleged indicator that his marriage to Ancajas lacks the essential requisites for validity, retroacts
to the date on which the second marriage was celebrated.13 Hence, petitioner argues that all four of the elements of
the crime of bigamy are absent, and prays for his acquittal.14

Petitioner’s defense must fail on both counts.

First, the prosecution presented sufficient evidence, both documentary and oral, to prove the existence of the first
marriage between petitioner and Villareyes. Documentary evidence presented was in the form of: (1) a copy of a
marriage contract between Tenebro and Villareyes, dated November 10, 1986, which, as seen on the document, was
solemnized at the Manila City Hall before Rev. Julieto Torres, a Minister of the Gospel, and certified to by the Office of the
Civil Registrar of Manila;15 and (2) a handwritten letter from Villareyes to Ancajas dated July 12, 1994, informing Ancajas
that Villareyes and Tenebro were legally married.16

To assail the veracity of the marriage contract, petitioner presented (1) a certification issued by the National Statistics
Office dated October 7, 1995;17 and (2) a certification issued by the City Civil Registry of Manila, dated February 3,
1997.18 Both these documents attest that the respective issuing offices have no record of a marriage celebrated
between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986.

To our mind, the documents presented by the defense cannot adequately assail the marriage contract, which in itself
would already have been sufficient to establish the existence of a marriage between Tenebro and Villareyes.

All three of these documents fall in the category of public documents, and the Rules of Court provisions relevant to
public documents are applicable to all. Pertinent to the marriage contract, Section 7 of Rule 130 of the Rules of Court
reads as follows:

Sec. 7. Evidence admissible when original document is a public record. – When the original of a document is in the
custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the
public officer in custody thereof (Emphasis ours).

This being the case, the certified copy of the marriage contract, issued by a public officer in custody thereof, was
admissible as the best evidence of its contents. The marriage contract plainly indicates that a marriage was celebrated
between petitioner and Villareyes on November 10, 1986, and it should be accorded the full faith and credence given
to public documents.

Moreover, an examination of the wordings of the certification issued by the National Statistics Office on October 7, 1995
and that issued by the City Civil Registry of Manila on February 3, 1997 would plainly show that neither document attests
as a positive fact that there was no marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on
November 10, 1986. Rather, the documents merely attest that the respective issuing offices have no record of such a
marriage. Documentary evidence as to the absence of a record is quite different from documentary evidence as to the
absence of a marriage ceremony, or documentary evidence as to the invalidity of the marriage between Tenebro and
Villareyes.

The marriage contract presented by the prosecution serves as positive evidence as to the existence of the marriage
between Tenebro and Villareyes, which should be given greater credence than documents testifying merely as to
absence of any record of the marriage, especially considering that there is absolutely no requirement in the law that a
marriage contract needs to be submitted to the civil registrar as a condition precedent for the validity of a marriage. The
mere fact that no record of a marriage exists does not invalidate the marriage, provided all requisites for its validity are
present.19 There is no evidence presented by the defense that would indicate that the marriage between Tenebro and
Villareyes lacked any requisite for validity, apart from the self-serving testimony of the accused himself. Balanced against
this testimony are Villareyes’ letter, Ancajas’ testimony that petitioner informed her of the existence of the valid first
marriage, and petitioner’s own conduct, which would all tend to indicate that the first marriage had all the requisites for
validity.

Finally, although the accused claims that he took steps to verify the non-existence of the first marriage to Villareyes by
requesting his brother to validate such purported non-existence, it is significant to note that the certifications issued by
the National Statistics Office and the City Civil Registry of Manila are dated October 7, 1995 and February 3, 1997,
respectively. Both documents, therefore, are dated after the accused’s marriage to his second wife, private respondent
in this case.

As such, this Court rules that there was sufficient evidence presented by the prosecution to prove the first and second
requisites for the crime of bigamy.

The second tier of petitioner’s defense hinges on the effects of the subsequent judicial declaration20 of the nullity of the
second marriage on the ground of psychological incapacity.

Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of the marriage to
Ancajas. As such, he argues that, since his marriage to Ancajas was subsequently declared void ab initio, the crime of
bigamy was not committed.21

This argument is not impressed with merit.

Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological
incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the
second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws
are concerned.

As a second or subsequent marriage contracted during the subsistence of petitioner’s valid marriage to Villareyes,
petitioner’s marriage to Ancajas would be null and void ab initio completely regardless of petitioner’s psychological
capacity or incapacity.22 Since a marriage contracted during the subsistence of a valid marriage is automatically void,
the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently,
Article 349 of the Revised Penal Code criminalizes "any person who shall contract a second or subsequent marriage
before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively
dead by means of a judgment rendered in the proper proceedings". A plain reading of the law, therefore, would
indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the
subsistence of a valid marriage.

Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first
marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for
distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent
marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as
criminal liability for bigamy is concerned. The State’s penal laws protecting the institution of marriage are in recognition
of the sacrosanct character of this special contract between spouses, and punish an individual’s deliberate disregard of
the permanent character of the special bond between spouses, which petitioner has undoubtedly done.

Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an
indicator that petitioner’s marriage to Ancajas lacks the essential requisites for validity. The requisites for the validity of a
marriage are classified by the Family Code into essential (legal capacity of the contracting parties and their consent
freely given in the presence of the solemnizing officer)23 and formal (authority of the solemnizing officer, marriage
license, and marriage ceremony wherein the parties personally declare their agreement to marry before the solemnizing
officer in the presence of at least two witnesses).24 Under Article 5 of the Family Code, any male or female of the age of
eighteen years or upwards not under any of the impediments mentioned in Articles 3725 and 3826 may contract
marriage.27

In this case, all the essential and formal requisites for the validity of marriage were satisfied by petitioner and Ancajas.
Both were over eighteen years of age, and they voluntarily contracted the second marriage with the required license
before Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses.

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the
date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to
note that said marriage is not without legal effects. Among these effects is that children conceived or born before the
judgment of absolute nullity of the marriage shall be considered legitimate.28 There is therefore a recognition written into
the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal
consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s penal laws on bigamy
completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner,
and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with
the promise of futurity and commitment.

As such, we rule that the third and fourth requisites for the crime of bigamy are present in this case, and affirm the
judgment of the Court of Appeals.

As a final point, we note that based on the evidence on record, petitioner contracted marriage a third time, while his
marriages to Villareyes and Ancajas were both still subsisting. Although this is irrelevant in the determination of the
accused’s guilt for purposes of this particular case, the act of the accused displays a deliberate disregard for the
sanctity of marriage, and the State does not look kindly on such activities. Marriage is a special contract, the key
characteristic of which is its permanence. When an individual manifests a deliberate pattern of flouting the foundation of
the State’s basic social institution, the State’s criminal laws on bigamy step in.

Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of bigamy is prision mayor, which
has a duration of six (6) years and one (1) day to twelve (12) years. There being neither aggravating nor mitigating
circumstance, the same shall be imposed in its medium period. Applying the Indeterminate Sentence Law, petitioner
shall be entitled to a minimum term, to be taken from the penalty next lower in degree, i.e., prision correccional which
has a duration of six (6) months and one (1) day to six (6) years. Hence, the Court of Appeals correctly affirmed the
decision of the trial court which sentenced petitioner to suffer an indeterminate penalty of four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The assailed decision of the Court of
Appeals in CA-G.R. CR No. 21636, convicting petitioner Veronico Tenebro of the crime of Bigamy and sentencing him to
suffer the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor, as maximum, is AFFIRMED in toto.

SO ORDERED.

Davide, Jr., C.J. (Chairman), Panganiban, Sandoval-Gutierrez, Corona, and Azcuna, JJ., concur.
Puno, J., join the opinion of J. Vitug.
Vitug, J., see separate opinion.
Quisumbing, J., join the dissent in view of void nuptia.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., join the dissent of J. Carpio.
Carpio-Morales, J., join the dissent of J. Carpio.
Tinga, J., join the dissent of J. Carpio.
Callejo, Sr., J., see separate dissent.

SEPARATE OPINION>

VITUG, J.:
Veronico Tenebro has been charged with bigamy for contracting, while still being married to Hilda Villareyes, a second
marriage with private complainant Leticia Ancajas. Tenebro argues that since his second marriage with Ancajas has
ultimately been declared void ab initio on the ground of the latter’s psychological incapacity, he should be acquitted
for the crime of bigamy.

The offense of bigamy is committed when one contracts "a second or subsequent marriage before the former marriage
has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceedings".1 Bigamy presupposes a valid prior marriage and a subsequent marriage,
contracted during the subsistence of the prior union, which would have been binding were it not for its being bigamous.

Would the absolute nullity of either the first or the second marriage, prior to its judicial declaration as being void,
constitute a valid defense in a criminal action for bigamy?

I believe that, except for a void marriage on account of the psychological incapacity of a party or both parties to the
marriage under Article 36 of the Family Code (as so hereinafter explained), the answer must be in the affirmative. Void
marriages are inexistent from the very beginning, and no judicial decree is required to establish their nullity.2 As early as
the case of People vs. Aragon3 this Court has underscored the fact that the Revised Penal Code itself does not, unlike
the rule then prevailing in Spain, require the judicial declaration of nullity of a prior void marriage before it can be raised
by way of a defense in a criminal case for bigamy. Had the law contemplated otherwise, said the Court, " an express
provision to that effect would or should have been inserted in the law, (but that in) its absence, (the courts) are bound
by (the) rule of strict interpretation" of penal statutes. In contrast to a voidable marriage which legally exists until judicially
annulled (and, therefore, not a defense in a bigamy charge if the second marriage were contracted prior to the decree
of annulment)4 the complete nullity, however, of a previously contracted marriage, being void ab initio and legally
inexistent, can outrightly be defense in an indictment of bigamy.

It has been held that, by virtue of Article 40 of the Family Code, a person may be convicted of bigamy although the first
marriage is ultimately adjudged void ab initio if, at the time the second marriage is contracted, there has as yet no
judicial declaration of nullity of the prior marriage.5 I maintain strong reservations to this ruling. Article 40 of the Family
Code reads:

"Article 40. The absolute nullity of the previous marriage may be invoked for purposes of remarriage on the basis solely of
the final judgment declaring such previous marriage void."

It is only "for purpose of remarriage" that the law has expressed that the absolute nullity of the previous marriage may be
invoked "on the basis solely of the final judgment declaring such previous marriage void." It may not be amiss to state
that under the regime of the Civil Code of 1950, the Supreme Court, in Wiegel vs. Judge Sempio-Diy,6 has held that a
subsequent marriage of one of the spouses of a prior void marriage is itself (the subsequent marriage) void if it were
contracted before a judicial declaration of nullity of the previous marriage. Although this pronouncement has been
abandoned in a later decision of the court in Yap vs. Court of Appeals,7 the Family Code, however has seen it fit to
adopt the Wiegel rule but only for purpose of remarriage which is just to say that the subsequent marriage shall itself be
considered void. There is no clear indication to conclude that the Family Code has amended or intended to amend the
Revised penal Code or to abandon the settled and prevailing jurisprudence on the matter.8

A void marriage under Article 36 of the Family Code is a class by itself. The provision has been from Canon law primarily
to reconcile the grounds for nullity of marriage under civil law with those of church laws.9 The "psychological incapacity
to comply" with the essential marital obligations of the spouses is completely distinct from other grounds for nullity which
are confined to the essential or formal requisites of a marriage, such as lack of legal capacity or disqualification of the
contracting parties, want of consent, absence of a marriage license, or the like.

The effects of a marriage attended by psychological incapacity of a party or the parties thereto may be said to have
the earmarks of a voidable, more than a void, marriage, remaining to be valid until it is judicially decreed to be a nullity.
Thus, Article 54 of the Family Code considers children conceived or born of such a void marriage before its judicial
declaration of nullity to be legitimate similar to the rule on a voidable marriage. It is expected, even as I believe it safe to
assume, that the spouses’ rights and obligations, property regime and successional rights would continue unaffected, as
if it were a voidable marriage, unless and until the marriage is judicially declared void for basically two reasons: First,
psychological incapacity, a newly-added ground for the nullity of a marriage under the Family Code, breaches neither
the essential nor the formal requisites of a valid marriages;10 and second, unlike the other grounds for nullity of marriage
(i.e., relationship, minority of the parties, lack of license, mistake in the identity of the parties) which are capable of
relatively easy demonstration, psychological incapacity, however, being a mental state, may not so readily be as
evident.11 It would have been logical for the Family Code to consider such a marriage explicitly voidable rather than
void if it were not for apparent attempt to make it closely coincide with the Canon Law rules and nomenclature.
Indeed, a void marriage due to psychological incapacity appears to merely differ from a voidable marriage in that,
unlike the latter, it is not convalidated by either cohabitation or prescription. It might be recalled that prior to republic
Act No. 8533, further amending the Family Code, an action or defense of absolute nullity of marriage falling under Article
36, celebrated before the effectivity of the Code, could prescribe in ten years following the effectivity of the Family
Code. The initial provision of the ten-year period of prescription seems to betray a real consciousness by the framers that
marriages falling under Article 36 are truly meant to be inexistent.

Considerations, both logical and practical, would point to the fact that a "void" marriage due to psychological
incapacity remains, for all intents and purposes, to be binding and efficacious until judicially declared otherwise. Without
such marriage having first been declared a nullity (or otherwise dissolved), a subsequent marriage could constitute
bigamy. Thus, a civil case questioning the validity of the first marriage would not be a prejudicial issue much in the same
way that a civil case assailing a prior "voidable" marriage (being valid until annulled) would not be a prejudicial question
to the prosecution of a criminal offense for bigamy.

In cases where the second marriage is void on grounds other than the existence of the first marriage, this Court has
declared in a line of cases that no crime of bigamy is committed.12 The Court has explained that for a person to be held
guilty of bigamy, it must, even as it needs only, be shown that the subsequent marriage has all the essential elements of
a valid marriage, were it not for the subsisting first union. Hence, where it is established that the second marriage has
been contracted without the necessary license and thus void,13 or that the accused is merely forced to enter into the
second (voidable) marriage,14 no criminal liability for the crime of bigamy can attach. In both and like instances,
however, the lapses refers to the elements required for contracting a valid marriage. If, then, all the requisites for the
perfection of the contract marriage, freely and voluntarily entered into, are shown to be extant, the criminal liability for
bigamy can unassailably arise.

Since psychological incapacity, upon the other hand, does not relate to an infirmity in the elements, either essential or
formal, in contacting a valid marriage, the declaration of nullity subsequent to the bigamous marriage due to that
ground, without more, would be inconsequential in a criminal charge for bigamy. The judicial declaration of nullity of a
bigamous marriage on the ground of psychological incapacity merely nullifies the effects of the marriage but it does not
negate the fact of perfection of the bigamous marriage. Its subsequent declaration of nullity dissolves the relationship of
the spouses but, being alien to the requisite conditions for the perfection of the marriage, the judgment of the court is no
defense on the part of the offender who had entered into it.

Accordingly, I vote to dismiss the petition.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 183805 July 3, 2013

JAMES WALTER P. CAPILI, PETITIONER,

vs.
PEOPLE OF THE PHILIPPINES AND SHIRLEY TISMO-CAPILI, RESPONDENTS.

DECISION

PERALTA, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the
Decision1 dated February 1, 2008 and Resolution2 dated July 24, 2008 of the Court of Appeals (CA) in CA-G.R. CR No.
30444.

The factual antecedents are as follows:

On June 28, 2004, petitioner was charged with the crime of bigamy before the Regional Trial Court (RTC) of Pasig City in
an Information which reads:
On or about December 8, 1999, in Pasig City, and within the jurisdiction of this Honorable Court, the accused being
previously united in lawful marriage with Karla Y. Medina-Capili and without said marriage having been legally dissolved
or annulled, did then and there willfully, unlawfully and feloniously contract a second marriage with Shirley G. Tismo, to
the damage and prejudice of the latter.

Contrary to law.3

Petitioner thereafter filed a Motion to Suspend Proceedings alleging that: (1) there is a pending civil case for declaration
of nullity of the second marriage before the RTC of Antipolo City filed by Karla Y. Medina-Capili; (2) in the event that the
marriage is declared null and void, it would exculpate him from the charge of bigamy; and (3) the pendency of the civil
case for the declaration of nullity of the second marriage serves as a prejudicial question in the instant criminal case.

Consequently, the arraignment and pre-trial were reset by the RTC of Pasig City, in view of the filing of the Motion to
Suspend Proceedings filed by petitioner.

In the interim, the RTC of Antipolo City rendered a decision declaring the voidness or incipient invalidity of the second
marriage between petitioner and private respondent on the ground that a subsequent marriage contracted by the
husband during the lifetime of the legal wife is void from the beginning.

Thereafter, the petitioner accused filed his Manifestation and Motion (to Dismiss) praying for the dismissal of the criminal
case for bigamy filed against him on the ground that the second marriage between him and private respondent had
already been declared void by the RTC.

In an Order4 dated July 7, 2006, the RTC of Pasig City granted petitioner’s Manifestation and Motion to Dismiss, to wit:

The motion is anchored on the allegation that this case should be dismissed as a decision dated December 1, 2004 had
already been rendered by the Regional Trial Court of Antipolo City, Branch 72 in Civil Case No. 01-6043 (entitled: "Karla
Medina-Capili versus James Walter P. Capili and Shirley G. Tismo," a case for declaration of nullity of marriage) nullifying
the second marriage between James Walter P. Capili and Shirley G. Tismo and said decision is already final.

In the opposition filed by the private prosecutor to the motion, it was stated, among others, that the issues raised in the
civil case are not similar or intimately related to the issue in this above-captioned case and that the resolution of the
issues in said civil case would not determine whether or not the criminal action may proceed.

WHEREFORE, after a judicious evaluation of the issue and arguments of the parties, this Court is of the humble opinion
that there is merit on the Motion to dismiss filed by the accused as it appears that the second marriage between James
Walter P. Capili and Shirley G. Tismo had already been nullified by the Regional Trial Court, Branch 72 of Antipolo City
which has declared "the voidness, non-existent or incipient invalidity" of the said second marriage. As such, this Court
submits that there is no more bigamy to speak of.

SO ORDERED.

Aggrieved, private respondent filed an appeal before the CA.

Thus, in a Decision5 dated February 1, 2008, the CA reversed and set aside the RTC’s decision. The fallo reads:

WHEREFORE, premises considered, the Order dated 07 July 2006 of the Regional Trial Court of Pasig City, Branch 152 in
Crim. Case No. 128370 is REVERSED and SET ASIDE. The case is remanded to the trial court for further proceedings. No
costs.

SO ORDERED.6

Petitioner then filed a Motion for Reconsideration against said decision, but the same was denied in a Resolution[7]
dated July 24, 2008.

Accordingly, petitioner filed the present petition for review on certiorari alleging that:
 THERE IS NO LEGAL BASIS FOR THE COURT OF APPEALS TO DISREGARD EXISTING JURISPRUDENCE PRONOUNCED
BY THIS HONORABLE SUPREME COURT AND TO REVERSE THE ORDER DATED JULY 7, 2006 OF THE TRIAL COURT
(REGIONAL TRIAL COURT, PASIG CITY, BRANCH 152) ISSUED IN CRIMINAL CASE NO. 128370 GRANTING THE
MOTION TO DISMISS THE CASE OF BIGAMY AGAINST PETITIONER, INASMUCH AS THE ISSUANCE OF THE SAID
ORDER IS BASED ON THE FINDINGS AND/OR FACTS OF THE CASE IN THE DECISION OF THE REGIONAL TRIAL COURT
OF ANTIPOLO CITY, BRANCH 72, IN CIVIL CASE NO. 01-6043 AND THE CONCLUDING AND DISPOSITIVE PORTION IN
THE SAID DECISION WHICH STATES THAT, AFTER PERUSAL OF THE EVIDENCE ON RECORD AND THE TESTIMONIES OF
WITNESSES X X X, THE MARRIAGE BETWEEN PETITIONER JAMES WALTER P. CAPILI AND PRIVATE RESPONDENT
SHIRLEY G. TISMO, IS HEREBY NULL AND VOID.

THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION IN
HOLDING THAT THE DECLARATION OF NULLITY OF MARRIAGE BETWEEN PETITIONER JAMES WALTER P. CAPILI AND
SHIRLEY G. TISMO BY THE REGIONAL TRIAL COURT OF ANTIPOLO CITY, BRANCH 72 IN ITS DECISION IN CIVIL CASE
NO. 01-6043, IS ON THE GROUND THAT IT IS BIGAMOUS IN NATURE, DESPITE THE ABSENCE OF ANY SUCH FINDINGS
OR FACTS ON WHICH IT IS BASED IN VIOLATION OF ARTICLE VIII, SECTION 14 OF THE 1987 CONSTITUTION, AND IN
CONCLUDING THAT THE SAID DECLARATION OF NULLITY OF MARRIAGE IS NOT A GROUND FOR DISMISSAL OF THE
BIGAMY CASE AGAINST THE PETITIONER, WHICH RULING IS NOT IN ACCORDANCE WITH THE FACTS OF THE CASE
OF THE SAID DECISION AND WHICH IS CONTRARY TO APPLICABLE LAWS AND ESTABLISHED JURISPRUDENCE.

THE CASE OF TENEBRO V. COURT OF APPEALS SPEAKS FOR ITSELF. IT IS AN EXCEPTION TO EXISTING
JURISPRUDENCE INVOLVING DECLARATION OF NULLITY OF MARRIAGE AND IS APPLICABLE ONLY TO THE SET OF
FACTS IN THE SAID CASE, AND THE GROUND FOR DECLARATION OF NULLITY OF MARRIAGE IS PSYCHOLOGICAL
INCAPACITY, HENCE, THERE IS NO LEGAL BASIS FOR ABANDONING EXISTING JURISPRUDENCE AS WHERE IN THE
INSTANT CASE THE GROUND FOR DECLARATION OF NULLITY OF MARRIAGE IS VIOLATIVE OF ARTICLE 3 IN
RELATION TO ARTICLE 4 OF THE FAMILY CODE.

THE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE USE BY RESPONDENT SHIRLEY G. TISMO OF
THE SURNAME "CAPILI" IS ILLEGAL INASMUCH AS THE DECISION OF THE REGIONAL TRIAL COURT OF ANTIPOLO
CITY, BRANCH 72 IN CIVIL CASE NO. 01-6043 DECLARING NULL AND VOID THE MARRIAGE BETWEEN JAMES
WALTER P. CAPILI AND SHIRLEY G. TISMO HAD LONG BECOME FINAL AND UNAPPEALABLE AS OF THE DATE OF THE
SAID DECISION ON DECEMBER 1, 2004 AND DULY RECORDED IN THE RECORDS OF ENTRIES IN THE
CORRESPONDING BOOK IN THE OFFICE OF THE CIVIL REGISTRAR OF PASIG CITY AND THE NATIONAL STATISTICS
OFFICE.8

In essence, the issue is whether or not the subsequent declaration of nullity of the second marriage is a ground for
dismissal of the criminal case for bigamy.

We rule in the negative.

Article 349 of the Revised Penal Code defines and penalizes the crime of bigamy as follows:

Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall contract a second or
subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment rendered in the proper proceedings.

The elements of the crime of bigamy, therefore, are: (1) the offender has been legally married; (2) the marriage has not
been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead
according to the Civil Code; (3) that he contracts a second or subsequent marriage; and (4) that the second or
subsequent marriage has all the essential requisites for validity.9

In the present case, it appears that all the elements of the crime of bigamy were present when the Information was filed
on June 28, 2004.

It is undisputed that a second marriage between petitioner and private respondent was contracted on December 8,
1999 during the subsistence of a valid first marriage between petitioner and Karla Y. Medina-Capili contracted on
September 3, 1999. Notably, the RTC of Antipolo City itself declared the bigamous nature of the second marriage
between petitioner and private respondent. Thus, the subsequent judicial declaration of the second marriage for being
bigamous in nature does not bar the prosecution of petitioner for the crime of bigamy.
Jurisprudence is replete with cases holding that the accused may still be charged with the crime of bigamy, even if
there is a subsequent declaration of the nullity of the second marriage, so long as the first marriage was still subsisting
when the second marriage was celebrated.

In Jarillo v. People,10 the Court affirmed the accused’s conviction for bigamy ruling that the crime of bigamy is
consummated on the celebration of the subsequent marriage without the previous one having been judicially declared
null and void, viz.:

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of
nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of
bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke
the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

The outcome of the civil case for annulment of petitioner’s marriage to [private complainant] had no bearing upon the
determination of petitioner’s innocence or guilt in the criminal case for bigamy, because all that is required for the
charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a
judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab
initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.11

In like manner, the Court recently upheld the ruling in the aforementioned case and ruled that what makes a person
criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid first
marriage. It further held that the parties to the marriage should not be permitted to judge for themselves its nullity, for the
same must be submitted to the judgment of competent courts and only when the nullity of the marriage is so declared
can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore,
he who contracts a second marriage before the judicial declaration of the first marriage assumes the risk of being
prosecuted for bigamy.12

Finally, it is a settled rule that the criminal culpability attaches to the offender upon the commission of the offense, and
from that instant, liability appends to him until extinguished as provided by law.13 It is clear then that the crime of bigamy
was committed by petitioner from the time he contracted the second marriage with private respondent. Thus, the finality
of the judicial declaration of nullity of petitioner’s second marriage does not impede the filing of a criminal charge for
bigamy against him.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated February 1, 2008 and Resolution dated July
24, 2008 of the Court of Appeals in CA-G.R. CR No. 30444 are hereby AFFIRMED.

SO ORDERED.

Velasco, Jr., (Chairperson), Abad, Mendoza, and Leonen, JJ., concur.

July 16, 2013

N O T I C E OF J U D G M E N T

Sirs/Mesdames:

Please take notice that on ___July 3, 2013___ a Decision, copy attached herewith, was rendered by the Supreme Court
in the above-entitled case, the original of which was received by this Office on July 16, 2013 at 2:30 a.m.

Very truly yours,

(SGD)
LUCITA ABJELINA SORIANO
Division Clerk of Court
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 191566 July 17, 2013

PEOPLE OF PHILIPPINES, Petitioner,

vs.
EDGARDO V. ODTUHAN, Respondent.

DECISION

PERALTA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner People of the Philippines,
represented by the Office of the Solicitor General, against respondent Edgardo V. Odtuhan assailing the Court of
Appeals Decision1 dated December 17, 2009 and Resolution2 dated March 4, 2010 in CA-G.R. SP No. 108616. The assailed
decision granted the petition for certiorari filed by respondent, and ordered the Regional Trial Court (RTC) of Manila,
Branch 27, to give due course to and receive evidence on respondent's motion to quash and resolve the case with
dispatch, while the assailed resolution denied petitioner's motion for reconsideration.

The facts of the case follow:

On July 2, 1980, respondent married Jasmin Modina (Modina).3 On October 28, 1993, respondent married Eleanor A.
Alagon (Alagon).4 Sometime in August 1994, he filed a petition for annulment of his marriage with Modina.5 On February
23, 1999, the RTC of Pasig City, Branch 70 granted respondent’s petition and declared his marriage with Modina void ab
initio for lack of a valid marriage license.6 On November 10, 2003, Alagon died. In the meantime, in June 2003, private
complainant Evelyn Abesamis Alagon learned of respondent’s previous marriage with Modina.7She thus filed a
Complaint-Affidavit8 charging respondent with Bigamy.

On April 15, 2005, respondent was indicted in an Information9 for Bigamy committed as follows:

That on or about October 28, 1993, in the City of Manila, Philippines, the said accused being then legally married to
JASMIN MODINA and without such marriage having been legally dissolved, did then and there willfully, unlawfully and
feloniously contract a second or subsequent marriage with ELEANOR A. ALAGON, which second/subsequent marriage
has all the essential requisites for validity.

Contrary to law.10

On February 5, 2008, respondent filed an Omnibus Motion11 praying that he be allowed to present evidence to support
his motion; that his motion to quash be granted; and that the case be dismissed. Respondent moved for the quashal of
the information on two grounds, to wit: (1) that the facts do not charge the offense of bigamy; and (2) that the criminal
action or liability has been extinguished.12

On September 4, 2008, the RTC13 issued an Order14 denying respondent’s Omnibus Motion. The RTC held that the facts
alleged in the information – that there was a valid marriage between respondent and Modina and without such
marriage having been dissolved, respondent contracted a second marriage with Alagon – constitute the crime of
bigamy. The trial court further held that neither can the information be quashed on the ground that criminal liability has
been extinguished, because the declaration of nullity of the first marriage is not one of the modes of extinguishing
criminal liability. Respondent’s motion for reconsideration was likewise denied in an Order15 dated February 20, 2009.

Aggrieved, respondent instituted a special civil action on certiorari under Rule 65 of the Rules of Court16 before the CA,
assailing the denial of his motion to quash the information despite the fact that his first marriage with Modina was
declared null and void ab initio prior to the filing of the bigamy case.17

On December 17, 2009, the CA rendered the assailed decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the instant petition for certiorari is hereby GRANTED. The RTC, Branch 27, Manila is
hereby ordered to give due course to and receive evidence on the petitioner’s motion to quash and resolve the case
with dispatch.

SO ORDERED.18

The CA applied the conclusion made by the Court in Morigo v. People,19 and held that there is cogent basis in looking
into the motion to quash filed by respondent, for if the evidence would establish that his first marriage was indeed void
ab initio, one essential element of the crime of bigamy would be lacking.20 The appellate court further held that
respondent is even better off than Morigo which thus calls for the application of such doctrine, considering that
respondent contracted the second marriage after filing the petition for the declaration of nullity of his first marriage and
he obtained the favorable declaration before the complaint for bigamy was filed against him.21 The CA thus concluded
that the RTC gravely abused its discretion in denying respondent’s motion to quash the information, considering that the
facts alleged in the information do not charge an offense.22

With the denial of the motion for reconsideration before the CA, petitioner filed a petition before the Court in this petition
for review on certiorari under Rule 45 of the Rules of Court based on the following grounds:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT RENDERED ITS DECISION DATED DECEMBER 17, 2009
GRANTING RESPONDENT’S PETITION FOR CERTIORARI AND THE RESOLUTION DATED MARCH 4, 2010 DENYING PETITIONER’S
MOTION FOR RECONSIDERATION, CONSIDERING THAT:

I.

THE INFORMATION CHARGING RESPONDENT OF BIGAMY SUFFICIENTLY ALLEGES ALL THE ELEMENTS CONSTITUTING SAID
OFFENSE.

II.

THE SUBSEQUENT COURT JUDGMENT DECLARING RESPONDENT’S FIRST MARRIAGE VOID AB INITIO DID NOT EXTINGUISH
RESPONDENT’S CRIMINAL LIABILITY WHICH ALREADY ATTACHED PRIOR TO SAID JUDGMENT.23

The petition is meritorious.

The issues are not novel and have been squarely ruled upon by this Court in Montañez v. Cipriano,24 Teves v.
People,25 and Antone v. Beronilla.26

In Montañez, respondent Cipriano married Socrates in April 1976, but during the subsistence of their marriage on January
24, 1983, respondent married Silverio. In 2001, respondent filed a petition for the annulment of her marriage with Socrates
on the ground of psychological incapacity which was granted on July 18, 2003. On May 14, 2004, petitioner filed a
complaint for bigamy against respondent. The latter, however, moved for the quashal of the information and dismissal of
the criminal complaint alleging that her first marriage had already been declared void ab initio prior to the filing of the
bigamy case.

In Teves, petitioner married Thelma on November 26, 1992. During the subsistence of their marriage on December 10,
2001, he again married Edita. On May 4, 2006, petitioner obtained a declaration of her marriage with Thelma null and
void on the ground that the latter is physically incapacitated to comply with her marital obligations. On June 8, 2006, an
Information for Bigamy was filed against petitioner. The court eventually convicted petitioner of the crime charged.

In Antone, petitioner married respondent in 1978, but during the subsistence of their marriage, respondent contracted a
second marriage in 1991. On April 26, 2007, respondent obtained a declaration of nullity of her first marriage which
decision became final and executory on May 15, 2007. On June 21, 2007, the prosecution filed an information for
bigamy against respondent which the latter sought to be quashed on the ground that the facts charged do not
constitute an offense.

The present case stemmed from similar procedural and factual antecedents as in the above cases. As in Antone and
Montañez, respondent moved to quash the information on the grounds that the facts do not charge the offense of
bigamy and that his criminal liability has been extinguished both because of the declaration of nullity of the first
marriage. The RTC refused to quash the information. On petition for certiorari, the CA, however, reached a different
conclusion.
As defined in Antone, "a motion to quash information is the mode by which an accused assails the validity of a criminal
complaint or information filed against him for insufficiency on its face in point of law, or for defects which are apparent in
the face of the information." It is a hypothetical admission of the facts alleged in the information. The fundamental test in
determining the sufficiency of the material averments in an Information is whether or not the facts alleged therein, which
are hypothetically admitted, would establish the essential elements of the crime defined by law. Evidence aliunde or
matters extrinsic of the information are not to be considered.27 To be sure, a motion to quash should be based on a
defect in the information which is evident on its fact.28 Thus, if the defect can be cured by amendment or if it is based on
the ground that the facts charged do not constitute an offense, the prosecution is given by the court the opportunity to
correct the defect by amendment.29 If the motion to quash is sustained, the court may order that another complaint or
information be filed30 except when the information is quashed on the ground of extinction of criminal liability or double
jeopardy.31

An examination of the information filed against respondent, however, shows the sufficiency of the allegations therein to
constitute the crime of bigamy as it contained all the elements of the crime as provided for in Article 34932 of the Revised
Penal Code, to wit:

(1) That the offender has been legally married;

(2) That the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent
spouse could not yet be presumed dead according to the Civil Code;

(3) That he contracts a second or subsequent marriage; and

(4) That the second or subsequent marriage has all the essential requisites for validity.33

Here, the information contained the following allegations: (1) that respondent is legally married to Modina; (2) that
without such marriage having been legally dissolved; (3) that respondent willfully, unlawfully, and feloniously contracted
a second marriage with Alagon; and (4) that the second marriage has all the essential requisites for validity.
Respondent’s evidence showing the court’s declaration that his marriage to Modina is null and void from the beginning
because of the absence of a marriage license is only an evidence that seeks to establish a fact contrary to that alleged
in the information that a first valid marriage was subsisting at the time he contracted the second marriage. This should
not be considered at all, because matters of defense cannot be raised in a motion to quash.34It is notproper, therefore,
to resolve the charges at the very outset without the benefit of a full blown trial. The issues require a fuller examination
and it would be unfair to shut off the prosecution at this stage of the proceedings and to quash the information on the
basis of the document presented by respondent.35 With the presentation of the court decree, no facts have been
brought out which destroyed the prima facie truth accorded to the allegations of the information on the hypothetical
admission thereof.

Respondent’s motion to quash was founded on the trial court’s declaration that his marriage with Modina is null and void
ab initio. He claims that with such declaration, one of the elements of the crime is wanting. Thus, the allegations in the
information do not charge the offense of bigamy, or at the very least, such court decree extinguished his criminal
liability. Both respondent and the CA heavily relied on the Court’s pronouncement in Morigo v. People36where the
accused therein was acquitted because the elements of the crime of bigamy were incomplete. In said case, the first
marriage was declared null and void, because the parties only signed the marriage contract without the presence of a
solemnizing officer. Considering, therefore, that the declaration of nullity retroacts to the date of the first marriage, the
Court held that there was no marriage to speak of when the accused contracted the second marriage. Logically, the
accused was acquitted.

The Family Code has settled once and for all the conflicting jurisprudence on the matter.1âwphi1 A declaration of the
absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense.37 It has been
held in a number of cases that a judicial declaration of nullity is required before a valid subsequent marriage can be
contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral.38

What makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the
subsistence of a valid marriage.39 Parties to the marriage should not be permitted to judge for themselves its nullity, for
the same must be submitted to the judgment of competent courts and only when the nullity of the marriage is so
declared can it be held as void, and so long as there is no such declaration, the presumption is that the marriage exists.
Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the
risk of being prosecuted for bigamy.40 If we allow respondent’s line of defense and the CA’s ratiocination, a person who
commits bigamy can simply evade prosecution by immediately filing a petition for the declaration of nullity of his earlier
marriage and hope that a favorable decision is rendered therein before anyone institutes a complaint against him.41
Respondent, likewise, claims that there are more reasons to quash the information against him, because he obtained
the declaration of nullity of marriage before the filing of the complaint for bigamy against him. Again, we cannot sustain
such contention. In addition to the discussion above, settled is the rule that criminal culpability attaches to the offender
upon the commission of the offense and from that instant, liability appends to him until extinguished as provided by law
and that the time of filing of the criminal complaint or information is material only for determining prescription.42

Thus, as held in Antone:

To conclude, the issue on the declaration of nullity of the marriage between petitioner and respondent only after the
latter contracted the subsequent marriage is, therefore, immaterial for the purpose of establishing that the facts alleged
in the information for Bigamy does not constitute an offense. Following the same rationale, neither may such defense be
interposed by the respondent in his motion to quash by way of exception to the established rule that facts contrary to
the allegations in the information are matters of defense which may be raised only during the presentation of
evidence.43

In view of the foregoing, the CA erred in granting the petition for certiorari filed by respondent. The RTC did not commit
grave abuse of discretion in denying his motion to quash and to allow him to present evidence to support his omnibus
motion.

WHEREFORE, the petition is hereby GRANTED. The Court of Appeals Decision dated December 17, 2009 and Resolution
dated March 4, 2010 in CA-G.R. SP No. 108616 are SET ASIDE. Criminal Case No. 05-235814 is REMANDED to the Regional
Trial Court of Manila, Branch 27 for further proceedings.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

ROBERTO A. ABAD JOSE CATRAL MENDOZA

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 201061 July 3, 2013

SALLY GO-BANGAYAN, Petitioner,

vs.
BENJAMIN BANGAYAN, JR., Respondent.

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review1 assailing the 17 August 2011 Decision2 and the 14 March 2012 Resolution3 of the
Court of Appeals in CA-G.R. CV No. 94226.

The Antecedent Facts

On 15 March 2004, Benjamin Bangayan, Jr. (Benjamin) filed a petition for declaration of a non-existent marriage and/or
declaration of nullity of marriage before the Regional Trial Court of Manila, Branch 43 (trial court). The case was
docketed as Civil Case No. 04109401. Benjamin alleged that on 10 September 1973, he married Azucena Alegre
(Azucena) in Caloocan City. They had three children, namely, Rizalyn, Emmamylin, and Benjamin III.

In 1979, Benjamin developed a romantic relationship with Sally GoBangayan (Sally) who was a customer in the auto
parts and supplies business owned by Benjamin’s family. In December 1981, Azucena left for the United States of
America. In February 1982, Benjamin and Sally lived together as husband and wife. Sally’s father was against the
relationship. On 7 March 1982, in order to appease her father, Sally brought Benjamin to an office in Santolan, Pasig City
where they signed a purported marriage contract. Sally, knowing Benjamin’s marital status, assured him that the
marriage contract would not be registered.

Benjamin and Sally’s cohabitation produced two children, Bernice and Bentley. During the period of their cohabitation,
they acquired the following real properties:

(1) property under Transfer Certificate of Title (TCT) No. 61722 registered in the names of Benjamin and Sally as
spouses;

(2) properties under TCT Nos. 61720 and 190860 registered in the name of Benjamin, married to Sally;

(3) properties under Condominium Certificate of Title (CCT) Nos. 8782 and 8783 registered in the name of Sally,
married to Benjamin; and

(4) properties under TCT Nos. N-193656 and 253681 registered in the name of Sally as a single individual.

The relationship of Benjamin and Sally ended in 1994 when Sally left for Canada, bringing Bernice and Bentley with her.
She then filed criminal actions for bigamy and falsification of public documents against Benjamin, using their simulated
marriage contract as evidence. Benjamin, in turn, filed a petition for declaration of a non-existent marriage and/or
declaration of nullity of marriage before the trial court on the ground that his marriage to Sally was bigamous and that it
lacked the formal requisites to a valid marriage. Benjamin also asked the trial court for the partition of the properties he
acquired with Sally in accordance with Article 148 of the Family Code, for his appointment as administrator of the
properties during the pendency of the case, and for the declaration of Bernice and Bentley as illegitimate children. A
total of 44 registered properties became the subject of the partition before the trial court. Aside from the seven
properties enumerated by Benjamin in his petition, Sally named 37 properties in her answer.

After Benjamin presented his evidence, Sally filed a demurrer to evidence which the trial court denied. Sally filed a
motion for reconsideration which the trial court also denied. Sally filed a petition for certiorari before the Court of
Appeals and asked for the issuance of a temporary restraining order and/or injunction which the Court of Appeals never
issued. Sally then refused to present any evidence before the trial court citing the pendency of her petition before the
Court of Appeals. The trial court gave Sally several opportunities to present her evidence on 28 February 2008, 10 July
2008, 4 September 2008, 11 September 2008, 2 October 2008, 23 October 2008, and 28 November 2008. Despite
repeated warnings from the trial court, Sally still refused to present her evidence, prompting the trial court to consider the
case submitted for decision.

The Decision of the Trial Court

In a Decision4 dated 26 March 2009, the trial court ruled in favor ofBenjamin. The trial court gave weight to the
certification dated 21 July 2004 from the Pasig Local Civil Registrar, which was confirmed during trial, that only Marriage
License Series Nos. 6648100 to 6648150 were issued for the month of February 1982 and the purported Marriage License
No. N-07568 was not issued to Benjamin and Sally.5 The trial court ruled that the marriage was not recorded with the local
civil registrar and the National Statistics Office because it could not be registered due to Benjamin’s subsisting marriage
with Azucena.

The trial court ruled that the marriage between Benjamin and Sally was not bigamous. The trial court ruled that the
second marriage was void not because of the existence of the first marriage but because of other causes, particularly,
the lack of a marriage license. Hence, bigamy was not committed in this case. The trial court did not rule on the issue of
the legitimacy status of Bernice and Bentley because they were not parties to the case. The trial court denied Sally’s
claim for spousal support because she was not married to Benjamin. The trial court likewise denied support for Bernice
and Bentley who were both of legal age and did not ask for support.

On the issue of partition, the trial court ruled that Sally could not claim the 37 properties she named in her answer as part
of her conjugal properties with Benjamin. The trial court ruled that Sally was not legally married to Benjamin. Further, the
37 properties that Sally was claiming were owned by Benjamin’s parents who gave the properties to their children,
including Benjamin, as advance inheritance. The 37 titles were in the names of Benjamin and his brothers and the phrase
"married to Sally Go" was merely descriptive of Benjamin’s civil status in the title. As regards the two lots under TCT Nos.
61720 and 190860, the trial court found that they were bought by Benjamin using his own money and that Sally failed to
prove any actual contribution of money, property or industry in their purchase. The trial court found that Sally was a
registered co-owner of the lots covered by TCT Nos. 61722, N-193656, and 253681 as well as the two condominium units
under CCT Nos. 8782 and 8783. However, the trial court ruled that the lot under TCT No. 61722 and the two condominium
units were purchased from the earnings of Benjamin alone. The trial court ruled that the properties under TCT Nos. 61722,
61720, and 190860 and CCT Nos. 8782 and 8783 were part of the conjugal partnership of Benjamin and Azucena, without
prejudice to Benjamin’s right to dispute his conjugal state with Azucena in a separate proceeding.

The trial court further ruled that Sally acted in bad faith because she knew that Benjamin was married to Azucena.
Applying Article 148 of the Family Code, the trial court forfeited Sally’s share in the properties covered under TCT Nos. N-
193656 and 253681 in favor of Bernice and Bentley while Benjamin’s share reverted to his conjugal ownership with
Azucena.

The dispositive portion of the trial court’s decision reads:

ACCORDINGLY, the marriage of BENJAMIN BANGAYAN, JR. and SALLY S. GO on March 7, 1982 at Santolan, Pasig, Metro
Manila is hereby declared NULL and VOID AB INITIO. It is further declared NONEXISTENT.

Respondent’s claim as co-owner or conjugal owner of the thirtyseven (37) properties under TCT Nos. 17722, 17723, 17724,
17725, 126397, RT-73480, and RT-86821; in Manila, TCT Nos. 188949, 188950, 188951, 193035, 194620, 194621, 194622,
194623, 194624, 194625, 194626, 194627, 194628, 194629, 194630, 194631, 194632, 194633, 194634, 194635, 194636, 194637,
194638, 194639, 198651, 206209, 206210, 206211, 206213 and 206215 is DISMISSED for lack of merit. The registered owners,
namely: Benjamin B. Bangayan, Jr., Roberto E. Bangayan, Ricardo B. Bangayan and Rodrigo B. Bangayan are the
owners to the exclusion of "Sally Go" Consequently, the Registry of Deeds for Quezon City and Manila are directed to
delete the words "married to Sally Go" from these thirty-seven (37) titles.

Properties under TCT Nos. 61722, 61720 and 190860, CCT Nos. 8782 and 8783 are properties acquired from petitioner’s
money without contribution from respondent, hence, these are properties of the petitioner and his lawful wife.
Consequently, petitioner is appointed the administrator of these five (5) properties. Respondent is ordered to submit an
accounting of her collections of income from these five (5) properties within thirty (30) days from notice hereof. Except
for lot under TCT No. 61722, respondent is further directed within thirty (30) days from notice hereof to turn over and
surrender control and possession of these properties including the documents of title to the petitioner.

On the properties under TCT Nos. N-193656 and N-253681, these properties are under co-ownership of the parties shared
by them equally. However, the share of respondent is declared FORFEITED in favor of Bernice Go Bangayan and Bentley
Go Bangayan. The share of the petitioner shall belong to his conjugal ownership with Azucena Alegre. The liquidation,
partition and distribution of these two (2) properties shall be further processed pursuant to Section 21 of A.M. No. 02-11-10
of March 15, 2003.

Other properties shall be adjudicated in a later proceeding pursuant to Section 21 of A.M. No. 02-11-10.

Respondent’s claim of spousal support, children support and counterclaims are DISMISSED for lack of merit. Further, no
declaration of the status of the parties’ children.

No other relief granted.

Furnish copy of this decision to the parties, their counsels, the Trial Prosecutor, the Solicitor General and the Registry of
Deeds in Manila, Quezon City and Caloocan.

SO ORDERED.6

Sally filed a Verified and Vigorous Motion for Inhibition with Motion for Reconsideration. In its Order dated 27 August
2009,7 the trial court denied the motion. Sally appealed the trial court’s decision before the Court of Appeals.

The Decision of the Court of Appeals

In its 17 August 2011 Decision, the Court of Appeals partly granted the appeal. The Court of Appeals ruled that the trial
court did not err in submitting the case for decision. The Court of Appeals noted that there were six resettings of the
case, all made at the instance of Sally, for the initial reception of evidence, and Sally was duly warned to present her
evidence on the next hearing or the case would be deemed submitted for decision. However, despite the warning, Sally
still failed to present her evidence. She insisted on presenting Benjamin who was not around and was not subpoenaed
despite the presence of her other witnesses.

The Court of Appeals rejected Sally’s allegation that Benjamin failed to prove his action for declaration of nullity of
marriage. The Court of Appeals ruled that Benjamin’s action was based on his prior marriage to Azucena and there was
no evidence that the marriage was annulled or dissolved before Benjamin contracted the second marriage with Sally.
The Court of Appeals ruled that the trial court committed no error in declaring Benjamin’s marriage to Sally null and void.

The Court of Appeals ruled that the property relations of Benjamin and Sally was governed by Article 148 of the Family
Code. The Court of Appeals ruled that only the properties acquired by the parties through their actual joint contribution
of money, property or industry shall be owned by them in common in proportion to their respective contribution. The
Court of Appeals ruled that the 37 properties being claimed by Sally rightfully belong to Benjamin and his siblings.

As regards the seven properties claimed by both parties, the Court of Appeals ruled that only the properties under TCT
Nos. 61720 and 190860 registered in the name of Benjamin belong to him exclusively because he was able to establish
that they were acquired by him solely. The Court of

Appeals found that the properties under TCT Nos. N-193656 and 253681 and under CCT Nos. 8782 and 8783 were
exclusive properties of Sally in the absence of proof of Benjamin’s actual contribution in their purchase. The Court of
Appeals ruled that the property under TCT No. 61722 registered in the names of Benjamin and Sally shall be owned by
them in common, to be shared equally. However, the share of Benjamin shall accrue to the conjugal partnership under
his existing marriage with Azucena while Sally’s share shall accrue to her in the absence of a clear and convincing proof
of bad faith.

Finally, the Court of Appeals ruled that Sally failed to present clear and convincing evidence that would show bias and
prejudice on the part of the trial judge that would justify his inhibition from the case.
The dispositive portion of the Court of Appeals’ decision reads:

WHEREFORE, premises considered, the instant appeal is PARTLY GRANTED. The assailed Decision and Order dated March
26, 2009 and August 27, 2009, respectively, of the Regional Trial Court of Manila, Branch 43, in Civil Case No. 04-109401
are hereby AFFIRMED with modification declaring TCT Nos. 61720 and 190860 to be exclusively owned by the petitioner-
appellee while the properties under TCT Nos. N-193656 and 253681 as well as CCT Nos. 8782 and 8783 shall be solely
owned by the respondent-appellant. On the other hand, TCT No. 61722 shall be owned by them and common and to
be shared equally but the share of the petitioner-appellee shall accrue to the conjugal partnership under his first
marriage while the share of respondent-appellant shall accrue to her. The rest of the decision stands.

SO ORDERED.8

Sally moved for the reconsideration of the Court of Appeals’ decision. In its 14 March 2012 Resolution, the Court of
Appeals denied her motion.

Hence, the petition before this Court.

The Issues

Sally raised the following issues before this Court:

(1) Whether the Court of Appeals committed a reversible error in affirming the trial court’s ruling that Sally had
waived her right to present evidence;

(2) Whether the Court of Appeals committed a reversible error in affirming the trial court’s decision declaring
the marriage between Benjamin and Sally null and void ab initio and non-existent; and

(3) Whether the Court of Appeals committed a reversible error in affirming with modification the trial court’s
decision regarding the property relations of Benjamin and Sally.

The Ruling of this Court

The petition has no merit.

Waiver of Right to Present Evidence

Sally alleges that the Court of Appeals erred in affirming the trial court’s ruling that she waived her right to present her
evidence. Sally alleges that in not allowing her to present evidence that she and Benjamin were married, the trial court
abandoned its duty to protect marriage as an inviolable institution.

It is well-settled that a grant of a motion for continuance or postponement is not a matter of right but is addressed to the
discretion of the trial court.9 In this case, Sally’s presentation of evidence was scheduled on28 February 2008. Thereafter,
there were six resettings of the case: on 10 July 2008, 4 and 11 September 2008, 2 and 28 October 2008, and 28
November 2008. They were all made at Sally’s instance. Before the scheduled hearing of 28 November 2008, the trial
court warned Sally that in case she still failed to present her evidence, the case would be submitted for decision. On the
date of the scheduled hearing, despite the presence of other available witnesses, Sally insisted on presenting Benjamin
who was not even subpoenaed on that day. Sally’s counsel insisted that the trial court could not dictate on the priority of
witnesses to be presented, disregarding the trial court’s prior warning due to the numerous resettings of the case. Sally
could not complain that she had been deprived of her right to present her evidence because all the postponements
were at her instance and she was warned by the trial court that it would submit the case for decision should she still fail
to present her evidence on 28 November 2008.

We agree with the trial court that by her continued refusal to present her evidence, she was deemed to have waived
her right to present them. As pointed out by the Court of Appeals, Sally’s continued failure to present her evidence
despite the opportunities given by the trial court showed her lack of interest to proceed with the case. Further, it was
clear that Sally was delaying the case because she was waiting for the decision of the Court of Appeals on her petition
questioning the trial court’s denial of her demurrer to evidence, despite the fact that the Court of Appeals did not issue
any temporary restraining order as Sally prayed for. Sally could not accuse the trial court of failing to protect marriage as
an inviolable institution because the trial court also has the duty to ensure that trial proceeds despite the deliberate
delay and refusal to proceed by one of the parties.10

Validity of the Marriage between Benjamin and Sally

Sally alleges that both the trial court and the Court of Appeals recognized her marriage to Benjamin because a
marriage could not be nonexistent and, at the same time, null and void ab initio. Sally further alleges that if she were
allowed to present her evidence, she would have proven her marriage to Benjamin. To prove her marriage to Benjamin,
Sally asked this Court to consider that in acquiring real properties, Benjamin listed her as his wife by declaring he was
"married to" her; that Benjamin was the informant in their children’s birth certificates where he stated that he was their
father; and that Benjamin introduced her to his family and friends as his wife. In contrast, Sally claims that there was no
real property registered in the names of Benjamin and Azucena. Sally further alleges that Benjamin was not the informant
in the birth certificates of his children with Azucena.

First, Benjamin’s marriage to Azucena on 10 September 1973 was duly established before the trial court, evidenced by a
certified true copy of their marriage contract. At the time Benjamin and Sally entered into a purported marriage on 7
March 1982, the marriage between Benjamin and Azucena was valid and subsisting.

On the purported marriage of Benjamin and Sally, Teresita Oliveros (Oliveros), Registration Officer II of the Local Civil
Registrar of Pasig City, testified that there was no valid marriage license issued to Benjamin and Sally. Oliveros confirmed
that only Marriage Licence Nos. 6648100 to 6648150 were issued for the month of February 1982. Marriage License No. N-
07568 did not match the series issued for the month. Oliveros further testified that the local civil registrar of Pasig City did
not issue Marriage License No. N-07568 to Benjamin and Sally. The certification from the local civil registrar is adequate to
prove the non-issuance of a marriage license and absent any suspicious circumstance, the certification enjoys probative
value, being issued by the officer charged under the law to keep a record of all data relative to the issuance of a
marriage license.11 Clearly, if indeed Benjamin and Sally entered into a marriage contract, the marriage was void from
the beginning for lack of a marriage license.12

It was also established before the trial court that the purported marriage between Benjamin and Sally was not recorded
with the local civil registrar and the National Statistics Office. The lack of record was certified by Julieta B. Javier,
Registration Officer IV of the Office of the Local Civil Registrar of the Municipality of Pasig;13 Teresita R. Ignacio, Chief of
the Archives Division of the Records Management and Archives Office, National Commission for Culture and the
Arts;14 and Lourdes J. Hufana, Director III, Civil Registration Department of the National Statistics Office.15 The
documentary and testimonial evidence proved that there was no marriage between Benjamin and Sally. As pointed out
by the trial court, the marriage between Benjamin and Sally "was made only in jest"16 and "a simulated marriage, at the
instance of Sally, intended to cover her up from expected social humiliation coming from relatives, friends and the
society especially from her parents seen as Chinese conservatives."17 In short, it was a fictitious marriage.

The fact that Benjamin was the informant in the birth certificates of Bernice and Bentley was not a proof of the marriage
between Benjamin and Sally. This Court notes that Benjamin was the informant in Bernice’s birth certificate which stated
that Benjamin and Sally were married on 8 March 198218 while Sally was the informant in Bentley’s birth certificate which
also stated that Benjamin and Sally were married on 8 March 1982.19 Benjamin and Sally were supposedly married on 7
March 1982 which did not match the dates reflected on the birth certificates.

We see no inconsistency in finding the marriage between Benjamin and Sally null and void ab initio and, at the same
time, non-existent. Under Article 35 of the Family Code, a marriage solemnized without a license, except those covered
by Article 34 where no license is necessary, "shall be void from the beginning." In this case, the marriage between
Benjamin and Sally was solemnized without a license. It was duly established that no marriage license was issued to them
and that Marriage License No. N-07568 did not match the marriage license numbers issued by the local civil registrar of
Pasig City for the month of February 1982. The case clearly falls under Section 3 of Article 3520 which made their marriage
void ab initio. The marriage between Benjamin and Sally was also non-existent. Applying the general rules on void or
inexistent contracts under Article 1409 of the Civil Code, contracts which are absolutely simulated or fictitious are
"inexistent and void from the beginning."21 Thus, the Court of Appeals did not err in sustaining the trial court’s ruling that
the marriage between Benjamin and Sally was null and void ab initio and non-existent.

Except for the modification in the distribution of properties, the Court of Appeals affirmed in all aspects the trial court’s
decision and ruled that "the rest of the decision stands."22 While the Court of Appeals did notdiscuss bigamous marriages,
it can be gleaned from the dispositive portion of the decision declaring that "the rest of the decision stands" that the
Court of Appeals adopted the trial court’s discussion that the marriage between Benjamin and Sally is not
bigamous.1âwphi1 The trial court stated:
On whether or not the parties’ marriage is bigamous under the concept of Article 349 of the Revised Penal Code, the
marriage is not bigamous. It is required that the first or former marriage shall not be null and void. The marriage of the
petitioner to Azucena shall be assumed as the one that is valid, there being no evidence to the contrary and there is no
trace of invalidity or irregularity on the face of their marriage contract. However, if the second marriage was void not
because of the existence of the first marriage but for other causes such as lack of license, the crime of bigamy was not
committed. In People v. De Lara [CA, 51 O.G., 4079], it was held that what was committed was contracting marriage
against the provisions of laws not under Article 349 but Article 350 of the Revised Penal Code. Concluding, the marriage
of the parties is therefore not bigamous because there was no marriage license. The daring and repeated stand of
respondent that she is legally married to petitioner cannot, in any instance, be sustained. Assuming that her marriage to
petitioner has the marriage license, yet the same would be bigamous, civilly or criminally as it would be invalidated by a
prior existing valid marriage of petitioner and Azucena.23

For bigamy to exist, the second or subsequent marriage must have all the essential requisites for validity except for the
existence of a prior marriage.24 In this case, there was really no subsequent marriage. Benjamin and Sally just signed a
purported marriage contract without a marriage license. The supposed marriage was not recorded with the local civil
registrar and the National Statistics Office. In short, the marriage between Benjamin and Sally did not exist. They lived
together and represented themselves as husband and wife without the benefit of marriage.

Property Relations Between Benjamin and Sally

The Court of Appeals correctly ruled that the property relations of Benjamin and Sally is governed by Article 148 of the
Family Code which states:

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the
parties through their actual joint contribution of money, property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money
and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute
community of conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly
married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding
Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Benjamin and Sally cohabitated without the benefit of marriage. Thus, only the properties acquired by them through
their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their
respective contributions. Thus, both the trial court and the Court of Appeals correctly excluded the 37 properties being
claimed by Sally which were given by Benjamin’s father to his children as advance inheritance. Sally’s Answer to the
petition before the trial court even admitted that "Benjamin’s late father himself conveyed a number of properties to his
children and their respective spouses which included Sally x x x."25

As regards the seven remaining properties, we rule that the decision of the Court of Appeals is more in accord with the
evidence on record. Only the property covered by TCT No. 61722 was registered in the names of Benjamin and Sally as
spouses.26 The properties under TCT Nos. 61720 and 190860 were in the name of Benjamin27 with the descriptive title
"married to Sally." The property covered by CCT Nos. 8782 and 8783 were registered in the name of Sally28 with the
descriptive title "married to Benjamin" while the properties under TCT Nos. N-193656 and 253681 were registered in the
name of Sally as a single individual. We have ruled that the words "married to" preceding the name of a spouse are
merely descriptive of the civil status of the registered owner.29 Such words do not prove co-ownership. Without proof of
actual contribution from either or both spouses, there can be no co-ownership under Article 148 of the Family Code.30

Inhibition of the Trial Judge

Sally questions the refusal of Judge Roy G. Gironella (Judge Gironella) to inhibit himself from hearing the case. She cited
the failure of Judge Gironella to accommodate her in presenting her evidence. She further alleged that Judge Gironella
practically labeled her as an opportunist in his decision, showing his partiality against her and in favor of Benjamin.

We have ruled that the issue of voluntary inhibition is primarily a matter of conscience and sound discretion on the part
of the judge.31 To justify the call for inhibition, there must be extrinsic evidence to establish bias, bad faith, malice, or
corrupt purpose, in addition to palpable error which may be inferred from the decision or order itself.32 In this case, we
have sufficiently explained that Judge Gironella did not err in submitting the case for decision because of Sally’s
continued refusal to present her evidence.

We reviewed the decision of the trial court and while Judge Gironella may have used uncomplimentary words in writing
the decision, they are not enough to prove his prejudice against Sally or show that he acted in bad faith in deciding the
case that would justify the call for his voluntary inhibition.

WHEREFORE, we AFFIRM the 17 August 2011 Decision and the 14 March 2012 Resolution of the Court of Appeals in CA-
G.R. CV No. 94226.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

ARTURO D. BRION
Associate Justice

LUCAS P. BERSAMIN* MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23433 February 10, 1968

GLORIA G. JOCSON, plaintiff-appellee,

vs.
RICARDO R. ROBLES, defendant-appellant.
REYES J.B.L., J.:

On February 4, 1963, Gloria G. Jocson commenced in the Juvenile & Domestic Relations Court an action for the
annulment of her marriage to Ricardo R. Robles (Civ. Case No. E-00013), on the ground that it was bigamous. It was
alleged in the amended complaint that previous to his marriage to plaintiff on May 27, 1958, defendant Robles had
contracted a first marriage with Josefina Fausto, who had instituted a criminal action for Bigamy against the same
defendant in the Court of First Instance of Manila (Crim. Case No. 64124). Plaintiff also demanded from the defendant
moral and exemplary damages, attorneys' fees, and costs, claiming that during their cohabitation, she was subjected to
physical maltreatment by her husband, resulting in the premature birth of their first child, who died three days later.

In his answer, defendant also assailed the validity of the marriage. But he charged plaintiffs' parents with having
compelled him by force, threat and intimidation, to contract that marriage with her, notwithstanding their knowledge
that he is a married man; and that said threat and intimidation allegedly persisted until January, 1963 when he was finally
able to get away and live apart from the plaintiff.

Thereafter, defendant filed a motion for summary judgment, on the ground that no genuine issue of fact is involved
in the case. It was claimed that defendant's contention, that his consent to the marriage was secured by force and
intimidation employed upon his person by the relatives of plaintiff, was allegedly supported by the joint affidavit of
plaintiff's father and brother, dated October 28, 1963, attached to the motion (pp. 22-32, Record on Appeal). Plaintiff, on
the other hand, submitted the case for judgment on the pleadings.

On December 23, 1963, defendant's motion for summary judgment was denied, the court ruling that before it can
pass upon plaintiff's prayer for the declaration of nullity of her marriage to defendant, there is necessity for proof that
when he contracted marriage with plaintiff, defendant Robles had a previous and subsisting valid marriage. The
evidentiary requirement to establish these facts, according to the court, was not met in the motion for summary
judgment. Defendant's plea to have his marriage declared as having been brought about by force and intimidation,
was also denied, the court finding indications of collusion between the parties in their attempt to secure the nullification
of said marriage. Reconsideration of this order, sought by defendant, was denied on January 18, 1964. And, when both
parties failed to appear at the scheduled hearing on March 9, 1964, the court directed the dismissal of the action.

On April 17, 1964, defendant notified the court below of his intention to appeal to this Court from the
abovementioned orders of December 23, 1963, January 18, 1964, and March 9, 1964. The appeal bond and amended
record on appeal, dated April 15, 1964, were thereafter approved.

It is noted that, as specified in the notice of appeal, defendant is taking exception from the lower court's orders of
December 23, 1963, January 18, 1964, and March 9, 1964; however, there is no indication or certification or proof that
the filing of the appeal notice, bond and record on appeal on April 17, 1964 were made within the reglementary period,
as required by the provisions of Section 6, Revised Rule 41 of the Rules of Court. Thereunder, the record on appeal must
contain, not only the full names of all the parties to the proceeding, as well as the pleadings, petitions, motions and
orders related to the order or judgment subject of the appeal and which are necessary for the proper understanding of
the issue involved therein, but also "such data as will show that the appeal was perfected on time." This requirement,
incorporated in the new Rules of Court to enable the appellate courts to determine without protracted inquiry whether
an appeal was timely made or not, was held to be jurisdictional, failure to comply with which shall cause the dismissal of
the appeal. 1 There is here no showing that the present appeal was perfected within the reglementary period, which
datum should have appeared in the record on appeal.

On the merits, we are satisfied that the Court of Domestic Relations correctly denied the motion for summary
judgment in view of the first paragraph of Articles 88 and 1011 of the Civil Code of the Philippines, that expressly prohibit
the rendition of a decree of annulment of a marriage upon a stipulation of facts or a confession of judgment. The
affidavits annexed to the petition for summary judgment practically amount to these methods not countenanced by the
Civil Code.

FOR THE FOREGOING REASONS, this proceeding is hereby dismissed, conformable to Section (a) of Revised Rule 50
of the Rules of Court, and the judgment appealed from is affirmed. Costs against the appellant.

Concepcion, C.J., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ.,
concur. 1äwphï1.ñët

Footnotes
 1Atlas
Consolidated Mining & Development Corporation vs. Progressive Labor Association, G.R. No. L-27125,
September 15, 1967.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-23264 March 15, 1974

ROMULO TOLENTINO, petitioner,

vs.
HELEN VILLANUEVA and HONORABLE CORAZON JULIANO AGRAVA, Judge of the Juvenile and Domestic Relations
Court, respondents.

Magno T. Bueser for petitioner.

MAKASIAR, J.:p

Petitioner prays for the nullification of the order dated July 29, 1963 of the respondent Judge of the Juvenile and
Domestic Relations Court of Manila.

On April 26, 1962, petitioner Romulo Tolentino filed a suit for annulment of his marriage to private respondent Helen
Villanueva, alleging that his consent was obtained through fraud because immediately after the marriage celebration,
he discovered that private respondent was pregnant despite the fact that he had no sexual relations with her prior to
the marriage ceremony; and that they did not live as husband and wife as immediately after the marriage celebration,
Helen Villanueva left his house and her whereabouts remained unknown to him until January, 1962 when he discovered
that she is residing in San Francisco, Cebu. Said marriage was solemnized by Quezon City Judge Mariano R. Virtucio on
September 28, 1959. Said case was docketed as Civil Case No, 43347 of the Juvenile and Domestic Relations Court of
Manila.

Despite the fact that she was served with summons and copy of the complaint, Helen failed to file a responsive
pleading, for which reason petitioner filed on June 13, 1962 a motion to declare her in default and to set the date for the
presentation of his evidence.

In an order dated June 28, 1962, respondent Judge declared private respondent in default, but, pursuant to the
provision of Articles 88 and 101 of the Civil Code of the Philippines, referred the case to the City Fiscal of Manila for
investigation to determine whether collusion exists between the parties, directing the City Fiscal to submit his report within
sixty (60) days from receipt thereof, and, in the event of a negative finding, to represent the State at the trial of the case
to prevent fabrication of evidence; and likewise directed herein petitioner to furnish the City Fiscal with copies of the
complaint and such other documents necessary for the City Fiscal's information and guidance.

On July 3, 1962, thru counsel, petitioner submitted to the City Fiscal only a copy of his complaint.

Assistant City Fiscal Rafael A. Jose, assigned to the case, issued a subpoena to petitioner's counsel requiring him to bring
petitioner with him as well as copies of other documents in connection with the annulment case on August 27, 1962 at
10:00 A.M.

Plaintiff's counsel, in a letter dated August 24, 1962, informed Assistant City Fiscal Jose that he could not comply with the
subpoena for it will unnecessarily expose his evidence.

In a motion dated and filed on October 29, 1962, petitioner, thru counsel, prayed the respondent Judge to set the date
for the reception of his evidence on the ground that the City Fiscal had not submitted a report of his findings despite the
lapse of sixty (60) days from July 10, 1962 when he submitted to the City Fiscal a copy of the complaint.
On November 6, 1962, respondent Judge denied the aforesaid motion of petitioner unless he submits himself for
interrogation by the City Fiscal to enable the latter to report whether or not there is collusion between the parties.

In an order dated July 29, 1963, respondent Judge dismissed the complaint in view of the fact that petitioner is not willing
to submit himself for interrogation by the City Fiscal pursuant to the provisions of the second paragraph of Article 101 of
the New Civil Code.

His motions for the reconsideration of the aforesaid order having been denied on July 29, 1963 and on April 11, 1964,
petitioner now files his petition to annul said order of July 29, 1963 and to compel the respondent Judge to receive his
evidence.

Articles 88 and 101 of the Civil Code of the Philippines expressly prohibit the rendition of a decision in suits for annulment
of marriage and legal separation based on a stipulation of facts or by confession of judgment and direct that in case of
non-appearance of defendant, the court shall order the prosecuting attorney to inquire whether or not collusion
between the parties exists, and if none, said prosecuting attorney shall intervene for the State to prevent fabrication of
evidence for the plaintiff. Thus, Articles 88 and 101 state:

ART. 88. No judgment annulling a marriage shall be promulgated upon a stipulation of facts or by
confession of judgment.

In case of non-appearance of the defendant, the provisions of article 101, paragraph 2, shall be
observed.

ART. 101. No decree of legal separation shall be promulgated upon a stipulation of facts or by
confession of judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire
whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney
shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated.

Even the 1940 Rules of Court, which preceded the 1950 Civil Code of the Philippines, direct that actions for the
annulment of marriage or divorce shall not be decided unless the material facts alleged in the complaint are proved
(Sec. 10, Rule 35, 1940 Rules of Court). The same rule is reiterated in Section 1 of Rule 19 of the 1964 Revised Rules, with
"legal separation" being substituted for "divorce", obviously because the present Civil Code does not authorize absolute
divorce.

The prohibition expressed in the aforesaid laws and rules is predicated on the fact that the institutions of marriage and of
the family are sacred and therefore are as much the concern of the State as of the spouses; because the State and the
public have vital interest in the maintenance and preservation of these social institutions against desecration by collusion
between the parties or by fabricated evidence. The prohibition against annulling a marriage based on the stipulation of
facts or by confession of judgment or by non-appearance of the defendant stresses the fact that marriage is more than
a mere contract between the parties; and for this reason, when the defendant fails to appear, the law enjoins the court
to direct the prosecuting officer to intervene for the State in order to preserve the integrity and sanctity of the marital
bonds (De Ocampo vs. Florenciano, 107 Phil. 35, 38-40; Brown vs. Yambao, 102 Phil. 168, 172; Bigornia de Cardenas vs.
Cardenas, et al., 98 Phil. 73, 78-79; Roque vs. Encarnacion, et al., 95 Phil. 643, 646).

Hence, the inevitable conclusion is that the petition is without merit.

WHEREFORE, THE ORDER DATED JULY 29, 1963 IS HEREBY AFFIRMED AND THE PETITION IS HEREBY DISMISSED. WITH COSTS
AGAINST PETITIONER.

Makalintal, C.J., Castro, Teehankee, Esguerra and Muñoz Palma, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. 47101 April 25, 1941

GODOFREDO BUCCAT, demandante-apelante,

vs.
LUIDA MANGONON DE BUCCAT, demandada-apelada.

D. Feliciano Leviste, D. Tomas P. Panganiban y Doña Sotera N. Megia en representacion del apelante.
Doña Luida Mangonon de Buccat en su propia representacion.

HORRILLENO, J.:

Este asunto se ha elevado a esta Superioridad por el Juzgado de Primera Instancia de Baguio, ya que solo suscita una
cuestion puramente de derecho.

El 20 de marzo de 1939 el demandante inico la presento causa, en la que no comparecio la demandada, no obstante
haber sido debidamente emplazada. Por lo que, permitido el demandante a presentar sus pruebas, el Juzgado inferior
fallo el asunto a favor de la demandada. De ahi esta apelacion.

El demandante pide la anulacion de su matrimonio habido con la demandada Luida Mangonon de Buccat el 26 de
noviembre de 1938, en la Ciudad de Baguio, fundandose en que, al consentir en dicho matrimonio, lo hizo porque la
demandada le habia asegurado que ella era virgen.

De la decision del Juzgado inferior se desprenden los siguientes hechos:

El demandante conocio a la demandada el mes de marzo de 1938. Despues de varias entrevistas, ambos quedaron
comprometidos el 19 de septiembre del mismo año. El 26 de noviembre de igual año, el demandante contrajo
matrimonio con la demandada en la catedrla catolica de la Ciudad de Baguio. Desoues de convivir maritalmente por
espacio de ochenta y nueve dias, la demandada dio a luz un niño de nueve meses, el 23 de febrero de 1939. De
resultas de este acontecimiento, el demandante abandono a la demandada y no volvio a hacer vida marital con ella.

No vemos razon alguna para revocar la sentencia apelada. En efecto, es inverosimil la alegacion del demandante y
apelante que el ni siguiera habia sospechado el estado gravido de la demandada, estando esta, como queda
probado, en condicion preñada muy avanzada. Por lo que no ha lugar a estimar el fraude de que habla el apelante.
Lo alegado por este en el sentido de que no ses raro hallar a personas de abdomen desarrollado, nos parece pueril
para merecer nuestra consideracion, tanto mas cuanto que el demandante era estudiante de primer año de derecho.

El matrimonio es una institucion sacratisima: es el cimiento en que descansa la sociedad. Para anularlo, son menester
pruebas claras y fehacientes. En este asunto no existen tales pruebas.

Hallando la sentencia apelada ajustada a derecho, debe ser confirmada, como por la presente la confirmamos, en
todas sus partes, con las costas al apelante. Asi se ordena.

Avanceña, Pres., Imperial, Diaz y Laurel, MM., estan conformes.

[ No. 47101 . April 25, 1941 ]

GODOFREDO BUCCAT , plaintiff and appellant, against LUIDA Mangonon OF BUCCAT , demanded and appealed.
MARRIAGE ; Validity. - Marriage is a most sacred institution is the foundation upon which the society. You can stop this
are necessary clear and convincing evidence. In this case there are no such evidence.
APPEAL from a judgment of the Court of First Instance of Baguio. Carlos, J.
The facts are stated in the Court's decision.
D. Feliciano Leviste , D. Thomas P. Panganiban and Mrs. N. Sotera Megia for appellant.
Doña Luida Mangonon of Buccat on its own behalf.
HORRILLENO , M .:
This matter has been raised to this superiority by the Court of First Instance of Baguio, since only raises an issue purely of
law.
The March 20, 1939 the plaintiff commenced the present case, where the defendant did not appear, despite having
been duly summoned. So, I allowed the applicant to submit its evidence, the lower court ruled the case in favor of the
defendant. Hence this appeal.

20

20
PHILIPPINE ANNOTATED REPORTS
Buccat vs. Buccat
The applicant seeks the annulment of his marriage with the defendant been Luida Buccat Mangonon of the November
26, 1938, in Baguio City, on the ground that, in consenting to the marriage, he did it because the defendant had assured
him that she was virgin.
The decision of the lower court the following facts:
The claimant knew the defendant March 1938. After several interviews, both were committed on 19 September of the
same year. On 26 November the same year, the plaintiff married the defendant in the Catholic cathedral in the city of
Baguio. After living cohabiting for a period of eighty-nine days the defendant gave birth to a child for nine months, on 23
February 1939. As a result of this event, the plaintiff gave the defendant and did not make marital life it.
We see no reason to overturn the original ruling. Indeed, it is unlikely the appellant plaintiff's claim and he had not even
suspected the gravid state of the defendant, being this, as is proved in pregnant condition well advanced. So there is no
need to estimate the fraud speaking the appellant. The allegations of this in the sense that it is not rare to find people
tuck developed, it seems puerile to deserve our consideration, especially as the applicant was freshman of law.
Marriage is a most sacred institution: the foundation upon which the society. You can stop this are necessary clear and
convincing evidence. In this case there are no such evidence.
Finding the original ruling in accordance with law, it should be confirmed, as hereby confirm it, in its entirety, with costs to
the appellant. So it is ordered.
Avanceña , Pres., Imperial , Diaz, and Laurel , JJ., concur.
It is confirmed the sentence. [Buccat vs. Buccat, 72 Phil. 19(1941)]

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-15853 July 27, 1960

FERNANDO AQUINO, petitioner,

vs.
CONCHITA DELIZO, respondent.

GUTIERREZ DAVID, J.:

This is a petition for certiorari to review a decision of the Court of Appeals affirming that of the Court of First Instance of
Rizal which dismissed petitioner's complaint for annulment of his marriage with respondent Conchita Delizo.

The dismissed complaint, which was filed on September 6, 1955, was based on the ground of fraud, it being alleged,
among other things, that defendant Conchita Delizo, herein respondent, at the date of her marriage to plaintiff, herein
petitioner Fernando Aquino, on December 27, 1954, concealed from the latter that fact that she was pregnant by
another man, and sometime in April, 1955, or about four months after their marriage, gave birth to a child. In her answer,
defendant claimed that the child was conceived out of lawful wedlock between her and the plaintiff.

At the trial, the attorney's for both parties appeared and the court a quo ordered Assistant Provincial Fiscal Jose Goco to
represent the State in the proceedings to prevent collusion. Only the plaintiff however, testified and the only
documentary evidence presented was the marriage contract between the parties. Defendant neither appeared nor
presented any evidence despite the reservation made by her counsel that he would present evidence on a later date.

On June 16, 1956, the trial court — noting that no birth certificate was presented to show that the child was born within
180 days after the marriage between the parties, and holding that concealment of pregnancy as alleged by the
plaintiff does not constitute such fraud sa would annul a marriage — dismissed the complaint. Through a verified "petition
to reopen for reception of additional evidence", plaintiff tried to present the certificates of birth and delivery of the child
born of the defendant on April 26, 1955, which documents, according to him, he had failed to secure earlier and
produce before the trial court thru excusable negligence. The petition, however, was denied.

On appeal to the Court of Appeals, that court held that there has been excusable neglect in plaintiff's inability to
present the proof of the child's birth, through her birth certificate, and for that reason the court a quo erred in denying
the motion for reception of additional evidence. On the theory, however, that it was not impossible for plaintiff and
defendant to have had sexual intercourse during their engagement so that the child could be their own, and finding
unbelievable plaintiff's claim that he did not notice or even suspect that defendant was pregnant when he married her,
the appellate court, nevertheless, affirmed the dismissal of the complaint.

On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or, if such reconsideration be
denied, that the case be remanded to the lower court for new trial. In support of the motion, plaintiff attached as
annexes thereof the following documents:

1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's brother, with whom defendant
was living at the time plaintiff met, courted and married her, and with whom defendant has begotten two
more children, aside from her first born, in common-law relationship) admitting that he is the father of
defendant's first born, Catherine Bess Aquino, and that he and defendant hid her pregnancy from plaintiff at
the time of plaintiff's marriage to defendant;

2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by Cesar Aquino, her brother-in-
law and plaintiff's own brother, at the time of her marriage to plaintiff and her having hidden this fact from
plaintiff before and up to the time of their marriage;

3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and defendant lived together as
husband and wife before December 27, 1954, the date of plaintiff's marriage to defendant;

4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her date of birth to be April 26, 1955;

5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of defendant with Cesar Aquino, her
brother-in-law;

6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar Aquino and defendant; and

7. Pictures of defendant showing her natural plumpness as early as 1952 to as late as November, 1954, the
November, 1954 photo itself does not show defendant's pregnancy which must have been almost four months
old at the time the picture was taken.

Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and Assistant Provincial Fiscal of
Rizal, who was representing the Government, to answer the motion for reconsideration, and deferred action on the
prayer for new trial until after the case is disposed of. As both the defendant and the fiscal failed to file an answer, and
stating that it "does not believe the veracity of the contents of the motion and its annexes", the Court of Appeals, on
August 6, 1959, denied the motion. From that order, the plaintiff brought the case to this Court thru the present petition
for certiorari.

After going over the record of the case, we find that the dismissal of plaintiff's complaint cannot be sustained.

Under the new Civil Code, concealment by the wife of the fact that at the time of the marriage, she was pregnant by a
man other than her husband constitutes fraud and is ground for annulment of marriage. (Art. 85, par. (4) in relation to Art.
86, par. (3). In the case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be reviewed, which was also an
action for the annulment of marriage on the ground of fraud, plaintiff's claim that he did not even suspect the
pregnancy of the defendant was held to be unbelievable, it having been proven that the latter was already in an
advanced stage of pregnancy (7th month) at the time of their marriage. That pronouncement, however, cannot apply
to the case at bar. Here the defendant wife was alleged to be only more than four months pregnant at the time of her
marriage to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily apparent, especially
since she was "naturally plump" or fat as alleged by plaintiff. According to medical authorities, even on the 5th month of
pregnancy, the enlargement of a woman's abdomen is still below the umbilicus, that is to say, the enlargement is limited
to the lower part of the abdomen so that it is hardly noticeable and may, if noticed, be attributed only to fat formation
on the lower part of the abdomen. It is only on the 6th month of pregnancy that the enlargement of the woman's
abdomen reaches a height above the umbilicus, making the roundness of the abdomen more general and apparent.
(See Lull, Clinical Obstetrics, p. 122) If, as claimed by plaintiff, defendant is "naturally plump", he could hardly be
expected to know, merely by looking, whether or not she was pregnant at the time of their marriage more so because
she must have attempted to conceal the true state of affairs. Even physicians and surgeons, with the aid of the woman
herself who shows and gives her subjective and objective symptoms, can only claim positive diagnosis of pregnancy in
33% at five months. and 50% at six months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10).

The appellate court also said that it was not impossible for plaintiff and defendant to have had sexual intercourse before
they got married and therefore the child could be their own. This statement, however, is purely conjectural and finds no
support or justification in the record.

Upon the other hand, the evidence sought to be introduced at the new trial, taken together with what has already
been adduced would, in our opinion, be sufficient to sustain the fraud alleged by plaintiff. The Court of Appeals should,
therefore, not have denied the motion praying for new trial simply because defendant failed to file her answer thereto.
Such failure of the defendant cannot be taken as evidence of collusion, especially since a provincial fiscal has been
ordered of represent the Government precisely to prevent such collusion. As to the veracity of the contents of the
motion and its annexes, the same can best be determined only after hearing evidence. In the circumstance, we think
that justice would be better served if a new trial were ordered.

Wherefore, the decision complained of is set aside and the case remanded to the court a quo for new trial. Without
costs.

Paras, C.J., Bengzon, Montemayor, Labrador, Concepcion, and Reyes, J.B.L., JJ., concur.
Barrera, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-27930 November 26, 1970

AURORA A. ANAYA, plaintiff-appellant,

vs.
FERNANDO O. PALAROAN, defendant-appellee.

Isabelo V. Castro for plaintiff-appellant.

Arturo A. Romero for defendant-appellee.

REYES, J.B.L., J.:

Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic Relations Court, Manila, of a
complaint for annulment of marriage, docketed therein as Civil Case No. E-00431, entitled "Aurora A. Anaya, plaintiff vs.
Fernando O. Palaroan, defendant."

The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and defendant Fernando were
married on 4 December 1953; that defendant Fernando filed an action for annulment of the marriage on 7 January 1954
on the ground that his consent was obtained through force and intimidation, which action was docketed in the Court of
First Instance of Manila as Civil Case No. 21589; that judgment was rendered therein on 23 September 1959 dismissing the
complaint of Fernando, upholding the validity of the marriage and granting Aurora's counterclaim; that (per paragraph
IV) while the amount of the counterclaim was being negotiated "to settle the judgment," Fernando had divulged to
Aurora that several months prior to their marriage he had pre-marital relationship with a close relative of his; and that
"the non-divulgement to her of the aforementioned pre-marital secret on the part of defendant that definitely wrecked
their marriage, which apparently doomed to fail even before it had hardly commenced ... frank disclosure of which,
certitude precisely precluded her, the Plaintiff herein from going thru the marriage that was solemnized between them
constituted 'FRAUD', in obtaining her consent, within the contemplation of No. 4 of Article 85 of the Civil Code" (sic)
(Record on Appeal, page 3). She prayed for the annulment of the marriage and for moral damages.

Defendant Fernando, in his answer, denied the allegation in paragraph IV of the complaint and denied having had pre-
marital relationship with a close relative; he averred that under no circumstance would he live with Aurora, as he had
escaped from her and from her relatives the day following their marriage on 4 December 1953; that he denied having
committed any fraud against her. He set up the defenses of lack of cause of action and estoppel, for her having prayed
in Civil Case No. 21589 for the validity of the marriage and her having enjoyed the support that had been granted her.
He counterclaimed for damages for the malicious filing of the suit. Defendant Fernando did not pray for the dismissal of
the complaint but for its dismissal "with respect to the alleged moral damages."

Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged:

(1) that prior to their marriage on 4 December 1953, he paid court to her, and pretended to shower
her with love and affection not because he really felt so but because she merely happened to be the
first girl available to marry so he could evade marrying the close relative of his whose immediate
members of her family were threatening him to force him to marry her (the close relative);

(2) that since he contracted the marriage for the reason intimated by him, and not because he loved
her, he secretly intended from the very beginning not to perform the marital duties and obligations
appurtenant thereto, and furthermore, he covertly made up his mind not to live with her;

(3) that the foregoing clandestine intentions intimated by him were prematurely concretized for him,
when in order to placate and appease the immediate members of the family of the first girl (referent
being the close relative) and to convince them of his intention not to live with plaintiff, carried on a
courtship with a third girl with whom, after gaining the latter's love cohabited and had several children
during the whole range of nine years that Civil Case No. 21589, had been litigated between them
(parties); (Record on Appeal, pages 10-11)

Failing in its attempt to have the parties reconciled, the court set the case for trial on 26 August 1966 but it was
postponed. Thereafter, while reviewing the expendiente, the court realized that Aurora's allegation of the fraud was
legally insufficient to invalidate her marriage, and, on the authority of Brown vs. Yambao, 102 Phil. 168, holding:

It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take
cognizance thereof, because actions seeking a decree of legal separation, or annulment of
marriage, involve public interest, and it is the policy of our law that no such decree be issued if any
legal obstacles thereto appear upon the record. —

the court a quo required plaintiff to show cause why her complaint should not be dismissed. Plaintiff
Aurora submitted a memorandum in compliance therewith, but the court found it inadequate and
thereby issued an order, dated 7 October 1966, for the dismissal of the complaint; it also denied
reconsideration.

The main issue is whether or not the non-disclosure to a wife by her husband of his pre-marital relationship with another
woman is a ground for annulment of marriage.

We must agree with the lower court that it is not. For fraud as a vice of consent in marriage, which may be a cause for its
annulment, comes under Article 85, No. 4, of the Civil Code, which provides:

ART. 85. A marriage may be annulled for any of the following causes, existing at the time of the
marriage:

xxx xxx xxx

 (4) That the consent of either party was obtained by fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his
wife, as the case may be;

This fraud, as vice of consent, is limited exclusively by law to those kinds or species of fraud
enumerated in Article 86, as follows:

ART. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the
preceding article:

(1) Misrepresentation as to the identity of one of the contracting parties;

(2) Non-disclosure of the previous conviction of the other party of a crime involving
moral turpitude, and the penalty imposed was imprisonment for two years or more;

(3) Concealment by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband.

No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of marriage.

The intention of Congress to confine the circumstances that can constitute fraud as ground for annulment of marriage to
the foregoing three cases may be deduced from the fact that, of all the causes of nullity enumerated in Article 85, fraud
is the only one given special treatment in a subsequent article within the chapter on void and voidable marriages. If its
intention were otherwise, Congress would have stopped at Article 85, for, anyway, fraud in general is already mentioned
therein as a cause for annulment. But Article 86 was also enacted, expressly and specifically dealing with "fraud referred
to in number 4 of the preceding article," and proceeds by enumerating the specific frauds (misrepresentation as to
identity, non-disclosure of a previous conviction, and concealment of pregnancy), making it clear that Congress
intended to exclude all other frauds or deceits. To stress further such intention, the enumeration of the specific frauds was
followed by the interdiction: "No other misrepresentation or deceit as to character, rank, fortune or chastity shall
constitute such fraud as will give grounds for action for the annulment of marriage."

Non-disclosure of a husband's pre-marital relationship with another woman is not one of the enumerated circumstances
that would constitute a ground for annulment; and it is further excluded by the last paragraph of the article, providing
that "no other misrepresentation or deceit as to ... chastity" shall give ground for an action to annul a marriage. While a
woman may detest such non-disclosure of premarital lewdness or feel having been thereby cheated into giving her
consent to the marriage, nevertheless the law does not assuage her grief after her consent was solemnly given, for upon
marriage she entered into an institution in which society, and not herself alone, is interested. The lawmaker's intent being
plain, the Court's duty is to give effect to the same, whether it agrees with the rule or not.

But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement" (the word chosen by her) of
the pre-marital relationship of her husband with another woman as her cause of action, but that she has, likewise,
alleged in her reply that defendant Fernando paid court to her without any intention of complying with his marital duties
and obligations and covertly made up his mind not to live with her. Plaintiff-appellant contends that the lower court
erred in ignoring these allegations in her reply.

This second set of averments which were made in the reply (pretended love and absence of intention to perform duties
of consortium) is an entirely new and additional "cause of action." According to the plaintiff herself, the second set of
allegations is "apart, distinct and separate from that earlier averred in the Complaint ..." (Record on Appeal, page 76).
Said allegations were, therefore, improperly alleged in the reply, because if in a reply a party-plaintiff is not permitted to
amend or change the cause of action as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason
not to allow such party to allege a new and additional cause of action in the reply. Otherwise, the series of pleadings of
the parties could become interminable.

On the merits of this second fraud charge, it is enough to point out that any secret intention on the husband's part not to
perform his marital duties must have been discovered by the wife soon after the marriage: hence her action for
annulment based on that fraud should have been brought within four years after the marriage. Since appellant's
wedding was celebrated in December of 1953, and this ground was only pleaded in 1966, it must be declared already
barred.
FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Dizon and Makasiar, JJ., are on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12790 August 31, 1960

JOEL JIMENEZ, plaintiff-appellee,

vs.
REMEDIOS CAÑIZARES, defendant.
Republic of the Philippines, intervenor-appellant.

Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for appellant.
Climaco, Ascarraga and Silang for appellee.

PADILLA, J.:

In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the plaintiff Joel Jimenez prays for a
decree annulling his marriage to the defendant Remedios Cañizares contracted on 3 August 1950 before a judge of the
municipal court of Zamboanga City, upon the ground that the office of her genitals or vagina was to small to allow the
penetration of a male organ or penis for copulation; that the condition of her genitals as described above existed at the
time of marriage and continues to exist; and that for that reason he left the conjugal home two nights and one day after
they had been married. On 14 June 1955 the wife was summoned and served a copy of the complaint. She did not file
an answer. On 29 September 1956, pursuant to the provisions of article 88 of the Civil Code, the Court directed the city
attorney of Zamboanga to inquire whether there was a collusion, to intervene for the State to see that the evidence for
the plaintiff is not a frame-up, concocted or fabricated. On 17 December 1956 the Court entered an order requiring the
defendant to submit to a physical examination by a competent lady physician to determine her physical capacity for
copulation and to submit, within ten days from receipt of the order, a medical certificate on the result thereof. On 14
March 1957 the defendant was granted additional five days from notice to comply with the order of 17 December 1956
with warning that her failure to undergo medical examination and submit the required doctor's certificate would be
deemed lack of interest on her part in the case and that judgment upon the evidence presented by her husband would
be rendered.

After hearing, at which the defendant was not present, on 11 April 1957 the Court entered a decree annulling the
marriage between the plaintiff and the defendant. On 26 April 1957 the city attorney filed a motion for reconsideration
of the decree thus entered, upon the ground, among others, that the defendant's impotency has not been satisfactorily
established as required by law; that she had not been physically examined because she had refused to be examined;
that instead of annulling the marriage the Court should have punished her for contempt of court and compelled her to
undergo a physical examination and submit a medical certificate; and that the decree sought to be reconsidered
would open the door to married couples, who want to end their marriage to collude or connive with each other by just
alleging impotency of one of them. He prayed that the complaint be dismissed or that the wife be subjected to a
physical examination. Pending resolution of his motion, the city attorney timely appealed from the decree. On 13 May
1957 the motion for reconsideration was denied.

The question to determine is whether the marriage in question may be annulled on the strength only of the lone
testimony of the husband who claimed and testified that his wife was and is impotent. The latter did not answer the
complaint, was absent during the hearing, and refused to submit to a medical examination.

Marriage in this country is an institution in which the community is deeply interested. The state has surrounded it with
safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely
dependent upon it. It is the interest of each and every member of the community to prevent the bringing about of a
condition that would shake its foundation and ultimately lead to its destruction. The incidents of the status are governed
by law, not by will of the parties. The law specifically enumerates the legal grounds, that must be proved to exist by
indubitable evidence, to annul a marriage. In the case at bar, the annulment of the marriage in question was decreed
upon the sole testimony of the husband who was expected to give testimony tending or aiming at securing the
annulment of his marriage he sought and seeks. Whether the wife is really impotent cannot be deemed to have been
satisfactorily established, becase from the commencement of the proceedings until the entry of the decree she had
abstained from taking part therein. Although her refusal to be examined or failure to appear in court show indifference
on her part, yet from such attitude the presumption arising out of the suppression of evidence could not arise or be
inferred because women of this country are by nature coy, bashful and shy and would not submit to a physical
examination unless compelled to by competent authority. This the Court may do without doing violence to and
infringing in this case is not self-incrimination. She is not charged with any offense. She is not being compelled to be a
witness against herself.1 "Impotency being an abnormal condition should not be presumed. The presumption is in favor of
potency."2 The lone testimony of the husband that his wife is physically incapable of sexual intercourse is insufficient to
tear asunder the ties that have bound them together as husband and wife.

The decree appealed from is set aside and the case remanded to the lower court for further proceedings in
accordance with this decision, without pronouncement as to costs.

Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David, and Dizon,
JJ. concur.

Footnotes

1 Section 1, paragraph 18, Article III of the Constitution.

2 Marciano vs. San Jose, 89 Phil., 62.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-20825 December 28, 1964

AMALIA PLATA, petitioner,

vs.
HON. NICASIO YATCO, Judge, Court of First Instance of Rizal, Branch V; BENITO MACROHON, Sheriff of Quezon City and
The Spouses CESAREA E. VILLANUEVA and GREGORIO LEAÑO respondents.

Rosales & Montesa for petitioner.

Venida & Demonteverda Law Offices for respondents.

REYES J.B.L., J.:

Amalia Plata resorts to this Supreme Court for a writ of certiorari against the Court of First Instance of Rizal, Branch V,
Quezon City, to annul and set aside its order of 4 January 1963, issued in its Civil Case No. Q-6250 (Cesarea Villanueva, et
al. vs. Gaudencio Begosa) finding petitioner Plata in contempt of court for refusing to vacate certain property, and
sentencing her to pay a fine of P100, with subsidiary imprisonment in case of insolvency, with a warning of more drastic
action should she persist in disobeying the writ issued by said court.

At petitioner's instance, a writ of preliminary injunction was issued to stay enforcement of the order complained of, and
respondents required to answer.
The pleadings and other papers on record disclose that Amalia Plata, in 1954, had purchased a parcel of land (Lot. 23,
Block 4-M, of Subdivision plan PSD-59) in Caloocan, Rizal, for which the Provincial Register of Deeds issued Torrens
Certificate of Title (Transfer) No. 25855 in the name of Amalia Plata, single, Filipino citizen. On 13 February 1958, she sold
the property to one Celso Saldaña who obtained TCT No. 40459 therefor; but seven months afterwards, on 24 September
1958, Saldaña resold the same property to Amalia Plata, married to Gaudencio Begosa," (Ans. Exh. 3) and a new
certificate of Title No. 43520 was issued to the vendee, Amalia Plata (Exh. 3a).

On the same date, 24 September 1958, "Amalia Plata of legal age, Filipino, married to Gaudencio Begosa," in
consideration of a loan of P3,000, mortgaged to Cesarea Villanueva married to Gregorio Leaño, the identical property
and its improvements "of which the mortgagor declares to be hers as the absolute owner thereof." The mortgage was
also signed by Gaudencio Begosa, as co-mortgagor (Exh. 4).

For failure to pay the mortgage, the same was extrajudicially foreclosed under Act 3135, and sold on 12 April 1960 to the
mortgagee as the highest bidder; on 13 May 1961, the Sheriff issued a final deed of sale on the strength of which the
Register of Deeds issued the buyer TCT, No. 55949 (Exhs. 5, 6, 7). Subsequently, the respondent, Villanueva, sued
Gaudencio Begosa alone for illegal detainer (Annex C. Petition) in Case No. Q-6250, and obtained judgment against
him in the court of first instance, that became final (Annex D, Petition). A writ of execution was duly issued, but Amalia
Plata resisted all efforts to eject her from the property, and she filed a third party claim, averring ownership of the
property (Annex E). Upon motion of the judgment creditors, the court below cited both Begosa and Plata for contempt
(Annex H), and, finding her explanation (Annex I) unsatisfactory, found her guilty and sentenced her, as stated at the
beginning of this decision.

The issue here is whether the petitioner, Amalia Plata, is bound by the detainer judgment against Gaudencio Begosa in
Civil Case No. Q-6250. Petitioner denies it, claiming that she was never lawfully married to Begosa, and that she had
acquired the property while still single, and was in possession thereof when the Sheriff of Rizal attempted to enforce the
writ of ejectment. Respondent Villanueva and her husband maintain, on the other hand, that Plata had repeatedly
acknowledged being married to Begosa; that she had lived with him openly as his wife, and their marriage is presumed;
that, therefore, she is to be deemed as holding under Begosa, and is bound by the judgment against the latter.

We are constrained to uphold as meritorious the petitioner's stand. Granting that the evidence before us against the
marriage of petitioner Amalia Plata to Gaudencio Begosa is weak, considering the admissions of married status in public
documents (Answer, Exhs. 3 and 4); the well known presumption that persons openly living together as husband and wife
are legally married to each other, and that the prior marriage of Begosa to someone else does not necessarily exclude
the possibility of a valid subsequent marriage to herein petitioner; still the respondents Villanueva could not ignore the
paraphernal character of the property in question, which had been unquestionably acquired by Plata while still single,
as shown by Transfer Certificate of Title No. 25855 of Rizal (Art. 148 of the New Civil Code). The subsequent conveyance
thereof to Celso Saldaña, and the reconveyance of her several months afterward of the same property, did not
transform it from paraphernal to conjugal property, there being no proof that the money paid to Saldaña came from
common or conjugal funds (Civ. Code, Art 153). The deed of mortgage in favor of respondents Villanueva actually
recites that the petitioner was the owner of the tenement in question and so does the conveyance of it by Saldaña to
her (Ans., Exhs. 3 and 4).

It is true that Gaudencio Begosa signed the mortgage (Exh. 4) as a co-mortgagor; but by itself alone that circumstance
would not suffice to convert the land into conjugal property, considering that it was paraphernal in origin. This is
particularly the case where the addition of Begosa as co-mortgagor was clearly an after thought, the text of the deed
showing that Plata was the sole mortgagor.

Since the property was paraphernal, and the creditors and purchasers were aware of it, the fact being clearly spread on
the land records, it is plain that Plata's possession, therefore, was not derived from Gaudencio Begosa. The illegal
detainer judgment against the husband alone cannot bind nor affect the wife's possession of her paraphernal, which by
law she holds and administers independently, and which she may even encumber or alienate without his knowledge or
consent (Civ. Code, Arts. 136. 137, 140). Hence, as she was not made party defendant in the eviction suit, the petitioner-
wife could validly ignore the judgment of eviction against her husband, and it was no contempt of court for her to do so,
because the writ of execution was not lawful against her (Chanco vs. Madrilejos, 9 Phil. 356; A. Jose Realty vs. Galao, et
al., 76 Phil. 201; Segarro vs. Maronilla, L-14428, July 26, 1960; Weigall vs. Shuster, 11 Phil. 340).

We need not decide here whether the property was validly conveyed to respondents Villanueva, since that issue is the
subject of an independent proceeding in the Court of First Instance of Quezon City, Civil. Case No. Q6510 (Petition,
Annex F).

The writ of certiorari prayed for is granted, and the order of the lower court, dated 4 January 1963, is annulled and set
aside. The preliminary injunction is made permanent, with costs against private respondents Villanueva.
Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Paredes, Dizon, Makalintal, Bengzon, J.P., and Zaldivar,
JJ., concur.

Regala, J., took no part.

EN BANC

G.R. No. 2904 January 11, 1907

LUIS LIM, administrator,Plaintiff-Appellant, vs. ISABEL GARCIA, widow of Hilario Lim,Defendant-Appellee.

Marshall Dawson for appellant.

F. W. Redding for appellee.

CARSON, J.:

This is an appeal from an order of the Court of First Instance of Zamboanga distributing the estate of Hilario Lim,
deceased, on the consolidated petition of Luis Lim, administrator, the children of Hilario Lim, deceased, and the
defendant Isabel Garcia, his widow.chanroblesvirtualawlibrary chanrobles virtual law library

Hilario Lim died intestate some time in the year 1903, leaving a widow and nine children and an interest in an estate
valued at some 50,000 pesos.chanroblesvirtualawlibrary chanrobles virtual law library

The trial court was of opinion that the entire estate as shown in the inventory prepared by the administrator was conjugal
property, except a house and lot on Calle Magallanes, Zamboanga, and the sum of 10,000 pesos which, it was
admitted, had been brought to the marriage by the said Hilario Lim, and except, furthermore, 700 pesos, the purchase
price paid by said Lim for a certain lot which it was also admitted had been brought by him to his marriage, and which
was sold in the course of the administration of his estate, together with the improvements made thereon during the
period of coverture.chanroblesvirtualawlibrary chanrobles virtual law library

Counsel for the administrator, and for the surviving children, contends that none of the said property should be treated
as the property of the conjugal partnership, because, as they allege, the deceased Hilario Lim, brought to the marriage
property worth more than double the amount of the intestate estate, and the defendant, his widow, brought nothing to
the conjugal partnership, either at the time of the marriage or at any time
thereafter.chanroblesvirtualawlibrary chanrobles virtual law library

The trial court was of opinion that the evidence offered in support of this contention was no sufficient to overcome the
presumption established in article 1407 of the Civil Code, which provides that all the estate of the married couple will be
considered as conjugal partnership property ( bienes gananciales) unless and until it is proven that it is a part of the
separate estate of the husband or the wife, and we think after a careful examination of the record that this finding must
be sustained.chanroblesvirtualawlibrary chanrobles virtual law library

The setting aside of 700 pesos (which appears to have been taken as the value of the lot sold during the administration)
as the separate property of the husband who brought the lot to the marriage, and the treatment of the balance of the
price received for this lot, together with the buildings thereon, as conjugal partnership property, it appearing from the
record that these buildings were constructed out of the conjugal partnership funds, was in entire accordance with the
provisions of article 1404, which provides that "the buildings erected during coverture on land belonging to one of the
married couple will be considered as conjugal partnership property, after allowing the owner of the land the value
thereof." chanrobles virtual law library

The foregoing disposes of all the errors assigned by counsel for the appellant, except the alleged error of the trial court in
refusing to order the inclusion in the inventory of the estate of the deceased of three parcels of land, held in the name of
the appellee and claimed as her separate estate. It is contended by the appellant that these parcels of land were
conveyed to the appellee during the coverture by the said Hilario Lim either as a gift or for valuable consideration, and
that in either in event such conveyance was void under the provisions of articles 1334 and 1458 of the Civil
Code.chanroblesvirtualawlibrary chanrobles virtual law library

It appears from the evidence, however, that these parcels of land were not acquired by the appellee by conveyance
from her husband, and that they were in fact conveyed to her by third parties by way of exchange for certain property
inherited by her from her father's estate during the coverture, and they are, therefore, her separate property under the
provisions of paragraph 3 of article 1396, which provides that property acquired by exchange for other property
belonging separately to one of the married couple is the separate property of the owner of the property for which it is
exchanged.chanroblesvirtualawlibrary chanrobles virtual law library

The trial court speaks of this property as dowry of the appellee, but there is nothing in the record which tends to prove
that it was acquired as a part of her dowry, and indeed the evidence strongly supports the presumption that it was and
continued to be a part of her separate estate (paraphernalia) which never acquired the "dotal" character. For the
purpose of this decision, however, it is not necessary to determine the precise character of the estate of the appellee in
this property because there can be no double that it was her separate estate, and whether dowry or paraphernalia, the
trial court properly excluded it from the inventory of the property of the deceased which was to be distributed among his
legitimate heirs.chanroblesvirtualawlibrary chanrobles virtual law library

No error was assigned by either party touching the amount of the usufructuary interest in the estate of her husband
allowed to the widow by the trial court, and we can not, therefore, review the action of the trial court in this
connection.chanroblesvirtualawlibrary chanrobles virtual law library

The judgment of the trial court should be and is hereby affirmed, with the costs of this instance against the appellant.
After the expiration of twelve days let judgment be entered in accordance herewith and ten days thereafter the record
remanded to the court below for proper action. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Arellano, C.J., Torres, Mapa, Johnson, Willard and Tracey, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-8715 October 24, 1914

MARIANO VELOSO, plaintiff-appellant,

vs.
LUCIA MARTINEZ, personally and as administratrix of the estate of Domingo Franco, deceased-appellee.

Martin M. Levering for appellant.

Pantaleon E. del Rosario for appellee.

JOHNSON, J.:

On the 1st day of July, 1911, the plaintiff commenced an action in the Court of First Instance of the Province of Cebu to
recover of the defendant, personally and as administratrix of the estate of Domingo Franco, deceased, the possession of
a certain parcel of land particularly described in the second paragraph of the complaint, together with the sum of P125
per month, from the 1st day of June, 1911.
The defendant presented a demurrer to said complaint, which was overruled. No exception was taken to the ruling of
the court upon the demurrer. Later the defendant answered, setting up a general denial and a special defense. The
special defense consisted —

First. Of a counterclaim in the sum of P18,500, as attorney's fees for services rendered by the deceased, Domingo Franco,
to the plaintiff; and, second, for the recovery of certain jewelry, of the value of P6,000, particularly described in the
answer of the defendant, alleged to be in the possession of the plaintiff.

The first special defense, relating to attorney's fees, was later withdrawn by the defendant. The only questions left for
litigation were: .

First. Whether the plaintiff was entitled to the recovery of the parcel of land in question; and, second, whether the
defendant was entitled to recover from the plaintiff the jewelry described in her answer.

After hearing the evidence, the Honorable Adoph Wislizenus, judge, in a carefully prepared opinion, found that the
plaintiff was entitled to recover the possession of the land in question, together with the sum of P100 for each month from
the month of June, 1911, until the possession of the land was returned to him.

The lower court further found that the defendant was entitled to the possession of said jewelry, and ordered the plaintiff
to return the same to her and in case of the plaintiff's failure to return said jewelry to the defendant, then and in that
case, he shall pay to the defendant, for such failure, the sum of P6,000.

From the judgment of the lower court, each of the parties, plaintiff and defendant, appealed to this court. Later the
defendant withdrew her appeal, thereby allowing that part of the judgment relating to the plaintiff's right to the
possession of the land in question, together with damages, to become final. The only question remaining, therefore, for
this court to decide is as to the ownership and right of possession of said jewels. It is admitted that the jewels in question,
before the possession of the same was given to the plaintiff, belonged to the defendant personally and that she had
inherited the same from her mother. The defendant, Lucia Martinez, is the widow of Domingo Franco, and after the
death of her husband she was appointed administratrix of his estate. The record further shows (Exhibit C) that a short time
before the death of Domingo Franco he borrowed from the plaintiff the sum of P4,500 and gave as security for the
payment of said sum the jewelry described in the complaint. The money was borrowed on the 7th day of April, 1911,
under promise to repay the same, with 12 per cent interest, on the 7th day of May, 1911. It is not clear whether or not the
jewelry, at the time of the execution of said document (Exhibit C), was in fact delivered to the plaintiff. Said exhibit states
that the jewelry was contained "dentro de una caja que queda cerrada despues de demonstradas las alhajas a D.
Mariano Veloso" (in a box which remains closed after the jewels were shown to Mariano Veloso). The document further
admits the "la llava quedara en poder de D. Domingo Franco" (the key shall remain in possession of Domingo Franco).
After the death of Domingo Franco it appears that said jewelry was found in the same "caja" and that the key was in the
possession of the defendant. It is very doubtful, indeed, under the facts, whether the plaintiff ever obtained the actual
possession of the jewelry. His possession, however, seems to be admitted by the defendant in the present action. So far
as the record shows the jewelry was in the same box where it was found at the time of the execution and delivery of said
Exhibit C and that the defendant still has the key to said box.

During the trial of the cause the plaintiff attempted to show that the jewels in question were pawned to him by Domingo
Franco, with the full knowledge and consent of the defendant. And not only that, the plaintiff further attempts to show
that after the death of Domingo Franco, the defendant promised to pay the amount for which the said jewels were
pawned. The defendant positively denies that she knew that her husband had pawned her jewels or that she promised
to redeem the same by paying the amount due. No explanation is contained in the record why the jewels were placed
in said box (presumably a money safe). In view of the fact, however, that the record shows that the jewels were the sole
and separate property of the wife, acquired from her mother, and in the absence of further proof, we must presume that
they constituted a part of her paraphernal property. As such paraphernal property she exercised dominion over the
same. (Article 1382, Civil Code.) She had the exclusive control and management of the same, until and unless she had
delivered it to her husband, before a notary public, with the intent that the husband might administer it properly. (Article
1384, Civil Code.) There is no proof in the record that she had ever delivered the same to her husband, in any manner, or
for any purpose. That being true, she could not be deprived of the same by any act of her husband, without her
consent, and without compliance with the provisions of the Civil Code above cited.1awphil.net

For the foregoing reasons, we find that the defendant is entitled to the possession of said jewels, or to their value,
amounting to P6,000.

The judgment of the lower court is therefore affirmed, with costs.

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

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-45038 April 30, 1987

MANOTOK REALTY, INC., petitioner,

vs.
THE HON. COURT OF APPEALS and FELIPE MADLANGAWA, respondents.

Romeo J. Calejo for petitioner.

Mantanggot C. Gunigundo for private respondent.

GUTIERREZ, JR., J.:

This is a petition for certiorari by way of appeal seeking to set aside the decision of the Court of Appeals which upheld
the dismissal of the petitioner's complaint for reinvidicatory action with damages against the private respondent and
ordered the petitioner to accept the payment of the balance of P2,551.85 from said respondent, and thereafter, to
execute the corresponding deed of sale of Lot 227, Block I in favor of the latter.

The private respondent Felipe Madlangawa claims that he has been occupying a parcel of land in the Clara de
Tambunting de Legarda Subdivision since 1949 upon permission being obtained from Andres Ladores, then an overseer
of the subdivision, with the understanding that the respondent would eventually buy the lot.

On April 2, 1950, the owner of the lot, Clara Tambunting, died and her entire estate, including her paraphernal properties
which covered the lot occupied by the private respondent were placed under custodia legis.

On April 22, 1950, the private respondent made a deposit for the said lot in the sum of P1,500.00 which was received by
Vicente Legarda, husband of the late owner. As evidenced by the receipt issued by Vicente Legarda, the lot consisted
of an area of 240 square meters and was sold at P30.00 per square meter. There, thus, remained an unpaid balance of
P5,700.00 but the private respondent did not pay or was unable to pay this balance because after the death of the
testatrix, Clara Tambunting de Legarda, her heirs could not settle their differences. Apart from the initial deposit, no
further payments were made from 1950.

On April 28, 1950, Don Vicente Legarda was appointed as a special administrator of the estate. Meanwhile the private
respondent remained in possession of the lot in question.

Subsequently, the petitioner became the successful bidder and vendee of the Tambunting de Legarda Subdivision
consisting of 44 parcels of land spread out in the districts of Tondo and Sta. Cruz, Manila, pursuant to the deeds of sale
executed in its favor by the Philippine Trust Company on March 13 and 20, 1959, as administrator of the Testate Estate of
Clara Tambunting de Legarda, in Special Proceeding No. 10809 of the Manila probate court. The lot in dispute was one
of those covered by the sale. The Deed of Sale, among others, provided for the following terms and conditions:

1. — The VENDEE assumes the risk and expenses of ejecting the tenants or squatters on the said
parcels of land if it decides to eject them. Any rentals or damages that may be due or collectible
from the said tenants or squatters for the period subsequent to the date of this deed of sale shall
belong to the VENDEE but rentals due from the said tenants or squatters prior to the execution of this
deed of sale shall belong to the VENDOR.
 xxx xxx xxxx x x

3. — The VENDEE renounces the right to warranty in case of eviction with the knowledge of the risks of
eviction and assumes its consequences with respect not only to the lots subject-of the above
mentioned cases and claims but also with respect to any other lots subject of contracts of sale or
promises to sell that may have been executed by the deceased, Clara Tambunting de Legarda
and/or Vicente L. Legarda, and it hereby relieves the estate of Clara Tambunting de Legarda and the
Philippine Trust Company, in its capacity as Administrator thereof, of any and all liability with respect
thereto in case of eviction. All sums of money that have been paid to the deceased Clara
Tambunting de Legarda and/or Vicente L. Legarda and/or the administrator of Clara Tambunting de
Legarda on account of the purchase price of said lots shall belong to the estate, but any sums of
money that are or may be due as the balance of the purchase price of said lots shall belong to the
VENDEE. (pp. 27-28, Rollo).

xxx xxx xxx

In its effort to clear the Tambunting Subdivision of its squatters and occupants, the petitioner caused the publication of
several notices in the Manila Times issues of January 1, 1966 and the Taliba issues of January 2, and March 16, 1966,
advising the occupants to vacate their respective premises, otherwise, court action with damages would follow. In
addition to these notices by publication, the petitioner sent circulars to the occupants to vacate.

The private respondent was one of the many occupants who refused to vacate the lots they were occupying, so that on
April 26, 1968, the petitioner filed the action below to recover the said lot.

The trial court dismissed the petitioner's action after finding that the Identity of the parcel of land described in the
complaint had not been sufficiently established as the very same piece of land in the material and physical possession
of the private respondent.

On appeal, the respondent Court of Appeals found the Identity of the lot sought to be recovered by the petitioner to be
the same as that in the physical possession of the private respondent and ruled that the only right remaining to the
petitioner is to enforce the collection of the balance because accordingly, it stepped into the shoes of its predecessor;
and that since the area now in possession of the petitioner which is that involved in the present case is only 115 square
meters, the balance after deducting the deposit of P1,500.00 is P2,551.85, and as per order of the Court of First Instance
of Manila, the said balance should be paid in 18 equal monthly installments.

In this petition, the petitioner maintains that the Court of Appeals committed a reversible error in holding that the sale by
Don Vicente Legarda in favor of the private respondent is valid, binding, and enforceable against the petitioner.

The petitioner contends that since there is no dispute that the property in question was the paraphernal property of
Clara Tambunting, who died on April 2, 1950, Vicente Legarda had no authority whatsoever to sell the said property to
the private respondent on May 12, 1950 since the former was appointed as administrator of the estate of Clara
Tambunting only on August 28, 1950. Therefore, the questioned sale could not have bound Clara Tambunting's estate
because the vendor Vicente Legarda neither acted as the owner nor the administrator of the subject property when the
alleged sale took place. As regards the provision in the deed of sale which it executed with the Philippine Trust Company
wherein it bound itself to respect the contracts of sale or promises to sell that may have been executed by Vicente
Legarda and renounced the right to warranty in case of eviction, the petitioner argues that this re-required respect only
for those valid sales executed by the deceased Clara Tambunting and by persons vested with authority to act on behalf
of the estate.

On the other hand, the private respondent contends that the aforequoted provisions of the deed of sale are a
declaration or admission against the interest of the petitioner, and shows that the acts of Vicente Legarda had been
ratified by the Philippine Trust Company and approved by the probate court. The petitioner, therefore, is allegedly
estopped from questioning the authority of Vicente Legarda in selling the property in dispute.

It is an undisputed fact that the lot in dispute is the paraphernal property of Dona Clara Tambunting and that at the time
of the sale thereof, the owner was already dead. Thus, the only question to be resolved in this petition is: in what
capacity did the husband of the deceased, Don Vicente Legarda, dispose of the lot?

Articles 136 and 137 of the Civil Code of the Philippines provide:
 Art. 136. The wife retains the ownership of the paraphernal property.

Art. 137. The wife shall have the administration of the paraphernal property, unless she delivers the
same to the husband by means of a public instrument empowering him to administer it.

In this case, the public instrument shall be recorded in the Registry of Property. As for the movables,
the husband shall give adequate security.

There is nothing in the records that wig show that Don Vicente Legarda was the administrator of the paraphernal
properties of Dona Clara Tambunting during the lifetime of the latter. Thus, it cannot be said that the sale which was
entered into by the private respondent and Don Vicente Legarda had its inception before the death of Dona Clara
Tambunting and was entered into by the former for and on behalf of the latter, but was only consummated after her
death. Don Vicente Legarda, therefore, could not have validly disposed of the lot in dispute as a continuing
administrator of the paraphernal properties of Dona Clara Tambunting.

It is also undisputed that the probate court appointed Don Vicente Legarda as administrator of the estate only on
August 28, 1950, more than three months after the questioned sale had taken place.

We are, therefore, led to the inevitable conclusion that the sale between Don Vicente Legarda and the private
respondent is void ab initio, the former being neither an owner nor administrator of the subject property. Such being the
case, the sale cannot be the subject of the ratification by the Philippine Trust Company or the probate court. As was
held in the case of Arsenal v. Intermediate Appellate Court (143 SCRA 40, 49):

Under the provisions of the Civil Code, a void contract is inexistent from the beginning. It cannot be
ratified neither can the right to set up the defense of its illegality be waived. (Art. 1409, Civil Code .

To further distinguish this contract from the other kinds of contract, a commentator has stated that.

The right to set up the nullity of a void or non-existent contract is not limited to the
parties as in the case of annuable or voidable contracts, it is extended to third
persons who are directly affected by the contract. (Tolentino, Civil Code of the
Philippines, Vol. IV, p. 604, [1973]).

Any person may invoke the inexistence of the contract whenever juridical affects
founded thereon are asserted against him. (Id. P. 595).

Section 1, Rule 89 of the Revised Rules of Court provides for the procedure on how a property in custodia legis can be
disposed of by sale:

Order of sale of personalty. — Upon the application of the executor or administrator, and on written
notice to the heirs and other persons interested, the court may order the whole or a part of the
personal estate to be sold, if it appears necessary for the purpose of paying debts, expenses of
administration, or legacies, or for the preservation of the property.

After the appointment of Don Vicente Legarda as administrator of the estate of Dona Clara Tambunting, he should
have applied before the probate court for authority to sell the disputed property in favor of the private respondent. If the
probate court approved the request, then Don Vicente Legarda would have been able to execute a valid deed of sale
in favor of the respondent. Unfortunately, there was no effort on the part of the administrator to comply with the above-
quoted rule of procedure nor on that of the respondent to protect his interests or to pay the balance of the installments
to the court appointed administrator.

As was held in Kline v. Shoup (226 Pacific Reporter 729, 731), which we find applicable in the case at bar:

There are, however, certain steps to be taken in the administration of an estate which the law deems
of sufficient importance to have placed without the power of the probate court to effect under the
jurisdiction acquired over the general subject matter by law and over the estate and those interested
therein, by the filing and due service of the petition for the appointment of an administrator and the
order of appointment and issuance of letters, and at least one of such steps is the sale of the real
property of an estate for the payment of the debts of the deceased. C.S. 7603, provides that —
 No sale of any property of an estate of a decedent is valid unless made under order of the probate
court. ...

From the foregoing, it cannot be denied that the law recognizes the issuance of an order of sale as
an indispensable requisite in effecting a valid sale of the property of a decedent's estate. ...

Considering the location of the disputed lot, we find a monthly rental of Twenty Centavos (P0.20) per square meter to be
more than fair to the private respondent for his use of the premises. The petitioner, however, should return the P 1,500.00
received by Mr. Legarda, with legal interest, to the respondent.

WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby REVERSED and SET ASIDE. The private
respondent is ordered to SURRENDER the material and physical possession of Lot No. 277, Block I to the petitioner and to
pay the latter the rentals as stated above from May, 1950 until he surrenders the said lot. The petitioner shall reimburse
the private respondent the amount of P1,500.00 with legal interest from May, 1950 or offset said amount from the rentals
due to it. Costs against the private respondent.

SO ORDERED.

Fernan (Chairman), Paras, Padilla, Bidin and Cortes, JJ , concur.

EN BANC

G.R. No. L-3695 October 16, 1907

ALEJANDRA PALANCA,Plaintiff-Appellant, vs. SMITH, BELL & CO. AND EMILIANO BONCAN,Defendants-Appellees.

Marcelo Caringal, for appellant.

Kinney and Lawrence, for appellees.

JOHNSON, J.:

On some date not mentioned in the record, Smith, Bell & Co., in case No. 4391, pending in the Court of First Instance of
the city of Manila, obtained a judgment against the said Emiliano Boncan for a sum of money, the amount of which also
does not appear of record in this case.chanroblesvirtualawlibrary chanrobles virtual law library

Later the said Smith, Bell & Co. obtained an execution out of said court which was levied upon the property in question
in this case, which property was known as No. 16, situated in an alley without name running toward the old Santa Mesa
race track, upon property belonging to the hacienda of Tuason & Co.chanroblesvirtualawlibrary chanrobles virtual law
library

After said execution was levied upon the property in question, the plaintiff and appellant herein commenced an action
in the Court of First Instance of the city of Manila against the defendant herein, asking that said court dictate a sentence
declaring her to be the only and exclusive owner of the property described in the complaint, with a right to the
possession of the same, and that said attachment be dissolved. To this petition the defendants filed a general
denial.chanroblesvirtualawlibrary chanrobles virtual law library
After hearing the evidence adduced during the trial of the cause, the lower court denied the prayer of the petition of
the plaintiff and appellant, absolving the defendants therefrom and charged the plaintiff with the costs. From this
decision the plaintiff appealed to this court and made the following assignment of errors:

1. The court erred in not allowing as proven the transfer of property No. 16, above described, made on September 20,
1904, by Emiliano Boncan Yap in favor of his wife, Alejandra Palanca de Boncan, and in not finding that she is the sole
and exclusive owner thereof, Emiliano Boncan Yap having no interest whatever in the property in
question.chanroblesvirtualawlibrary chanrobles virtual law library

2. In regarding Smith, Bell & Co. as an intervening party under the provisions of the Mortgage
Law.chanroblesvirtualawlibrary chanrobles virtual law library

3. In disregarding the effects of the public document of transfer, exhibited by the plaintiff and dated September 20,
1904.chanroblesvirtualawlibrary chanrobles virtual law library

4. In dismissing the complaint and absolving the defendants.

An examination of the evidence brought to this court shows that the said Alejandra Palanca was the owner of certain
property in the city of Manila, which was given by the said Emiliano Boncan, with the consent of the said Alejandra
Palanca, as a guaranty for the payment of the sum of P14,000, which Emiliano Boncan borrowed from the International
Banking Corporation. With the money so borrowed the said Emiliano Boncan constructed the house in question, and
later, by a public document executed on the 20th of September, 1904, conveyed the house in question to the plaintiff
and appellant herein as a guaranty for the payment of the debt to the International Banking Corporation, for the
guaranty of the payment of which the said plaintiff and appellant had given her private property. This P14,000, borrowed
by the said Emiliano Boncan upon the credit of the property of his wife, became conjugal property (paragraph 3, art.
1401, Civil Code), and when the same was reinvested in the construction of a house, the house became conjugal
property and was liable for the payment of the debts of the husband. (Art. 1408, Civil Code.) chanrobles virtual law
library

Believing that the foregoing conclusions in effect answer the assignments of error made by the appellant, and without
discussing the same in detail, we are of the opinion, and so hold, that the judgment of the lower court should be
affirmed, with costs. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Arellano, C.J., Torres, Willard and Tracey, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-47507 December 19, 1940

ROSARIO LIM QUECO, demandante,

vs.
ELENA RAMIREZ DE CARTAGENA, demandada-apelada.
RODOLFO A. SCHNECKENBURGER, apelante.

Sres. Cardenas y Casal en representacion del apelante.

D. Jose Ma. Cavanna en representacion del demandada-apelada.

DIAZ, J.:

No sabiendo la demandante a quien de los dos demandados efectuar los pagos de ciertos plazos mensuales que
estaba obligada a hacer en viturd de un contrato que con ellos celebrara el 11 de agosto de 1933, promovio esta
causa en el Juzgado de Primera Instancia de Manila, de conformidad con las disposiciones del articulo 120 de la Ley
No. 190, para pedir que se les obligase a probar en juicio quien de ellos tiene mejor derecho a recibir pagos. Despues
del juicio, el Juzgado declaro que la demandada Elena Ramirez de Cartagena tenia mejor derecho a recibirlos, y
ordeno en su consecuencia, que ella los efectuase a dicha demandada hasta que su obligacion este totalmente
satisfecha. El demandado Rodolfo A. Schneckenburger que no estaba conforme con el fallo del Juzgado, interpuso
apelacion contra el mismo, alegando haber incurrido el ultimo, en los siguientes errores:

I. Al declarar que no existen bienes gananciales.

II. Al declarar que las acciones acumulativas, distintas de las acciones de amortizacion existentes en el Ahorra
Insular, pertenecen y deben corresponder a Elena R. de los P3,650 que valen las cuatro parcelas de su bienes
parafernales.

III. Al no aplicar en todas sus partes lo acordado, estipulado y escriturado por Elena R. De Cartegena y su
esposo, en el convenio de separacion Exhibit C, de echa 25 de mayo de 1935; ylawphil.net

IV. Al ordenar a la demandante que pague hasta la liquidacion final de su deuda todas mensualidades que
vayan venciendo a Elena Ramirez de Cartegana.

Los hechos que se deben tener en cuenta en esta instancia, para resolver las cuestiones planteadas por las partes, son
los que se desprenden de la decision del Juzgado a quo pudiendo relatarse los mismos, brevemente, del modo
siguiente: Los dos demandados son marido y mujer y como tales vivieron juntos desde que contrajeron matrimonio
valido, el mes de marzo de 1926, hasta poco despues del mesde agosto de 1933. El dia 11 de dichos mes y año, la
mujer celebro un contrato con la demandante para vender a ella las cuatro fincas urbanas contiguas entre si, de su
propiedad, descritas en el Exhibit A. y en los Certificados de Transferencia de Titulos Nos. 24536 y 24263, adquiridas todas
ellas durante su solteria, bajo las condiciones que se diran mas adelante, con la aquiescencia y consentimiento expreso
del varon, incluyendo la casa enclavada en las mismas que entonces acababa de construirse. Debido a que no se
entendian, por incompatibilidad de caracter, se separaron poco despues de haberse otorgado el contrato de venta
de que se ha hecho mencion; y en el ultimo covenio formal que celebraron los dos con intervencion de Notario, el 25
de mayo de 1935, estipularon, entre otras cosas lo siguiente:

Que los comparecientes convienen en disolver y por la presente dan por disuelta la sociedad de gananciales
que haya quedado establecida entre los mismos, en virtud del matrimonio contraido, la cual sociedad de
gananciales la dan por liquidada enteramente entre ambos y se comprometen y obligan a renunciar el
derecho que haya podido crear el vinculo matrimonial sobre los bienes del uno y del otro; y a este efecto
estipulan y convienen que cualquier clase de bienes que adquiera cada uno de los otorgantes en lo sucesivo,
no seran considerados como gananciales, sino como bienes propios y exclusivos de quien los hubiera
adquirido.

Escasamente un mes despues, o se el 15 de junio de 1935, sin salir de Filipinas, el apelante obtuvo un dereto de divorcio
contra la apelada, en el Juzgado de la Ciudad de Juarez, Estado de Chinhuahua, Mexico, gracias a los oficios de un
abogado de aquel pais; y un año mas tarde contrajo segundas nupcias en el Juzgado de Paz de Malabon de la
Provincia de Rizal, con una mujer llamada Julia Medel y Pinzon con la cual esta viviendo desde entonces hasta estos
dias. Sabedora la apelada de esto que hizo el apelante casandose con otra mujer, estando ella aun viva, le acuso de
concubinato en el Juzgado de Primera Instancia de la Ciudad de Manila, no diciendose sin embargo, en la decision
apelada, como termino la causa.

Mientras estaban viviendo en armonia, el apelante y la apelada, hicieron construir una casa en las referidas cuatro
fincas urbanas de la ultima; pero, para ello, hubo necesidad de que ella solicitase y obtuviese de "El Ahorro Insular" que
es una sociedad mutua de construccion y prestamos, el 24 de febrero de 1933, un prestamo de P3,500. No recibio sin
embargo, de esta suma, sino solamente la cantidad de P2,884.10 porque el resto se habia invertido en el pago por
adelantado de intereses, y en el de ciertas primas, y en el de los demas gastos incidentales de la transaccion. Para
garantizar el pago del referido prestamo, la apelada hipoteco a su acreedora "El Ahorro Insular" con el consentimiento
del apelante sus mencionadas Cuatro fincas.

Costo la construccion de la casa P3,680 habiendo tenido que poner por dicha razon el apelant y la apelada, del
propio peculio de ambos, la cantidad de P795.90 para completar los referidos P2,884.10 a P3,680.

La apelada, contando con el consentimiento marital del apelante, vendio sus fincas de que antes se ha hecho
mencion, juntamente con la casa que se construyo en las mismas, el 11 de agosto de 1933, a la demandante, bajo
estas condiciones: que de las P7,500, precio convenido de dichas propiedades, la demandante pagaria al firmar la
escritura., como en efecto pago, la cantidad de P500; y que el resto, montante a P7,000, mas sus intereses al tipo de 10
por ciento al año, se pagaria por ella a plazos mensuales, dando P92.54 cada mes hasta satisfacer por completo toda
su obligacion. La compradora fue cumpliendo desde el siguiente mes su obligacion con regularidad hasta el 20 de abril
de 1935; pero, desde entonces y por un arreglo habido entre las partes interesadas, es decir, los demandados, la
demandante, y "El Ahorro Insular", los pagos se hicieron de este otro modo: P49:35 a "El Ahorro Insular", y P43.19 a los
demandados. Desde el 30 de octubre de 1933 hasta el 25 de mayo de 1935, fue el apelante quien estuvo recibiendo
de la demandante las cantidades, que debieron entregarse a la apelada, aprovechandose asi el solo de dichas
cantidades, las cuales dicho sea paso, montaron exactamente a P820.61. Los pagos que la demandante hizo el mes
de abril de 1935 y el mes de mayo de 1936 fueron recibidos por la apelada; y los pagos mensuales hechos entre dichos
dos meses lo fueron integramente a The Mercantile & Credit Agency, Inc. a quien el apelante y la apelada nombraron
como su fideicomisaria. A partir del mes de mayo de 1936, los plazos mensuales fueron pagandose en la siguiente
forma; los que correspondian a "El Ahorro Insular", a dicha corporacion; y el resto, es decir, los que correspondian a la
apelada fueron depositandose en la Escribania el Juzgado de Primera Instancia de Manila, para estar a las resultas del
pleito entre las dos partes interesadas.

Invocando las disposiciones del articulo 1412 del Codigo Civil, el apelante dice que llos pagos deben hacerse a el
porque, siendo marido, le corresponde el derecho de administrar los bienes de la sociedad de gananciales; y dice
ademas que la casa que se construyo en las cuatro fincas urbanas de la apelada lo mismo que sus alquileres son un
bien ganancial. La demandada y apelada contiende por su parte que siendo suyas exclusivamente las referidas cuatro
parcelas por lo mismo que las tenia ya siendo aun soltera, deben considerarse las mismas como bien parafernal, y que
por dicha razon los pagos deben hacerse a ella; y para mejor insistir en su contencion, hace resaltar el hecho de que el
apelante se separo de ella, obtuvo divorcio de ella, y en la actualidad esta viviendo maritalmente con Julia Medel y
Pinzon. Parte el apelante del supuesto de que aun queda un bien ganancial que debe ser administrado por el, como
marido; pero tal supuesto no existe porque al matrimonio no aparece en autos haber aportado mas que una parte de
los P795.90 con que el y la apelada completaron el precio de costo de la casa objeto de cuestion; y dicha casa ya ha
sido inajenada a la demandante, con pleno conocimiento y con el expreso consentimiento del apelante.

El articulo 1384 del Codigo Civil provee que la adminstracion de los bienes parafernales de la mujer, debe estar en
manos de ella, excepto cuando los hubiese entregado al marido ante Notario Publico, con intencion de que los
administre. El Juzgado a quo declara que no se ha presentado prueba alguna que demuestre que la apelada haya
entregado jamas la administracion de sus bienes parafernales al apelante. Se infiere por el contrario, de las escrituras
de hipoteca y de venta que la apelada otorgo con el consentimiento del apelante, que ella misma tenia la
administracion de sus bienes y que no los entrego al apelante.

No hay por que decir nada de la cantidad obtenida por via de prestamo de "El Ahorro Insular", porque la misma no
puede en modo alguno ser considerada como un bien ganancial. Es en todo caso bien parafernal de la apelada,
porque si la obtuvo, fue poniendo en garantia de su pgao, sus propios bienes parafernales; y de estos dice la ley que
son todos aquellos bienes que la mujer aporta al matrimonio sin incluirlos en la dote, y los que adquiere despues de
constituida la misma sin agregarlos a ella. Y no vale decir que la expresada cantidad es talmente un fruto de los bienes
parafernales de la apelada, porque en puridad no lo es, en el sentido en que la frase "frutos" esta usada en los articulos
1385 y 1401 del Codigo Civil.

Lo dicho hasta aqui, mas las circunstancias de que el apelante y la apelada disolvieron sus sociedad de ganaciales, y
de que el apelado al recibir para su propio y exclusivo beneficio, la cantidad de P820.61 de los pagos mensuales que la
demandante habia estado haciendo desde octubre de 1933 hasta mayo de 1935, a cuenta del contrato de ella, de
compraventa con la apelada, cobro mas que con creces lo que habia aportado para pagar totalmente el costo de la
construccion de la casa de que se ha venido hablando, de muestra lo insostenible e injustificada que es la apelacion
de dicho apelante.

Por tanto, confirmamos la decision y el fallo apelados, con las costas al apelante. Asi se ordena.

Avanceña, Pres., Imperial, Laurel, y Horrilleno, MM., estan conformes.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-27843 October 11, 1979

CLARA TORELA AND SILVERIANA TORELA, appellants-petitioners,
vs.
FELIMON TORELA, MARCIANA GEPANAGO AND MARCOS MAHILUM AND THE COURT OF APPEALS, appellees-respondents.

ABAD SANTOS, J.:

Petitioners, whose complaint was dismissed both in the Court of First Instance of Negros Occidental and in the Court of
Appeals, would have us reverse the decision of the latter and declare the land in litigation as the conjugal property of
their parents so that they wig be entitled to their mother's share who had died.

The decision of the Court of Appeals which was penned by Mr. Justice Hermogenes Concepcion, Jr., now a
distinguished member of this Court, is reproduced hereunder in its material aspects for the factual background of the -
case and to enable us to Identify the legal problem.

It appears that on December 21, 1929, Decree No. 440157 was issued by the Court of First Instance of
Occidental Negros in favor of Felimon Torela, married to Graciana Gallego, decreeing that he is the
owner of a certain parcel of land (Lot No. 3770 of the Cad. Survey of Cauayan) described therein,
and ordering that the same be registered in the name of said Felimon Torela in accordance with the
provision of Land Registration Act (Exh. 3 also Exh. 4). Consequently, Original Certificate of Title No.
29257 covering said Lot No. 3770 of the Cauayan Cadastre was issued in favor of Felimon Torela. As
the certificate of title (O.C.T. No. 29257) was either lost or destroyed during the last world war, Felimon
Torela filed a verified petition for reconstitution, dated December 28, 1953, praying that after due
publication thereof in the Official Gazette, as provided for by law, an order be issued setting the
petition for hearing (Exh. A). Thereafter an order was issued on July 8, 1957, the dispositive portion of
which is as follows -

WHEREFORE, the Court, pursuant to section 13 of Republic Act No. 26, hereby
orders the Register of Deeds of this province to reconstitute the original as well as
the owner's duplicate of Original Certificate of Title No. 29257, covering Lot No.
3770 of Cauayan Cadastre, this province, on the basis of the above-mentioned
Decree No. 440157 (Exh. D) for the said lot. All liens and incumbrances affecting the
above state lot which appeared noted on the certificate of title sought to be
reconstituted at the time of its loss or destruction. shall be an annotated on the
reconstituted certificate of title. Once the reconstitution herein ordered is duly
accomplished, let a second owner's duplicate certificate be issued to the
petitioner.

Thus, Original Certificate of Title No. RO-6898 (29257) was issued in favor of Felimon Torela, in lieu of the
lost and/or destroyed one (Exh. D, p. 125, Rec.).

On March 5, 1958, Felimon Torela, filed a Motion Ex-Parte alleging that Lot No. 3770 of the Cauayan
Cadastre having been acquired by him by way of inheritance prior to his marriage to his first wife,
Graciana Gallego, the Cadastral court ordered that said land be registered in the name of Felimon
Torela, married to Graciana Gallego; that his first wife died many years ago; and that he is married by
second nuptial to Marciana Gepanago. He, therefore, prayed that the court order the Register of
Deeds of Negros Occidental to change his (movant's) civil status, appearing on the face of the
original certificate of title, "from Felimon Torela, married to Graciana Gallego to Felimon Torela,
married to Marciana Gepanago" (Exh. E). Acting upon the Motion Ex-Parte, the court, finding no
opposition thereto and with the conformity of Clara Torela, daughter of Felimon Torela by first
marriage, granted the motion and ordered the Register of Deeds to change the civil status of the
movant from "Felimon Torela, married to Marciana Gepanago", which is the actual civil status of the
movant, upon payment of the required fees. (Order of March 10, 1958, Exh. F.)

On March 4, 1958, Felimon, Torela executed a definite deed of sale (EXH 1), whereby, for and in
consideration of P3,000.00, he sold Lot No. 3770 of the Cadastral Survey of Cauayan to Marcos P.
Mahilum and Maria Luna Mahilum He also stated in the deed of sale that he was a widower by first
marriage to Graciana Gallego, and now married to Marciana Gepanago; that he is the registered
owner of said Lot No. 3770, having acquired it by inheritance from his parents before his marriage to
Graciana Gallego, deceased. The document (Exh. 1) was acknowledged before Notary Public Jose T.
 Tabuga. Upon registration of Exhibit 1, Transfer Certificate of Title No. T-23078 was issued to said
spouses (Exh. 2)

According, however, to the plaintiffs while in their youth they had seen their father Felimon and their
mother Graciana Gallego clean the lot in question, as it was there, forested. And when their mother
died, their father married Marciana Gepanago. In other words, the plaintiffs want us to believe that
the parcel of land is a conjugal property of their father and mother (Felimon and Graciana), And
since their father succeeded in changing his status and in conveying the land to another, they now
assert their right to the estate appertaining to their mother, alleging that they were deprived of their
corresponding share from the property thus sold.

Under the conflicting claims of the plaintiffs and their father, defendant Felimon Torela, the decisive
question is whether or not the parcel of land herein involved is a conjugal property of the spouses
Felimon Torela and Graciana Gallego (plaintiffs' mother).

Felimon Torela declared that he and his first wife Graciana were married in 1915 (t. s. n., p. 18). And
the land in question was decreed in the name of Felimon Torela, married to Graciana Gallego, (Exh.
B, which is also Exh. 4). According to Article 1401 of the Old Civil Code, the following properties belong
to the conjugal partnership:

1. Property acquired for a valuable consideration during the marriage at the expense of the common
fund, whether the acquisition is made for the partnership or for one of the spouses only;

2. Property obtained by the industry, wages or work of the spouses or of either of them;

3. The fruits, income, or interest collected or accrued during the marriage, derived from the
partnership property., or from that which belongs separately to either of the spouses.

Felimon Torela testified that he inherited the contested property from his parents, Pedro Torela and
Soperiana Magbanua. True enough that plaintiff Silveriana Torela and Miguel Pedrosa declared that
the land in question was jointly cleared by Felimon Torela and his first wife Graciana Gallego, but the
trial court did not give credence to their testimonies for the simple reason that Silveriana was not yet
born at the time when said Felimon, together with his father, started living in the land in 1905 (t.s.n., p.
18); while Miguel Pedrosa was only one year old then, considering that he was 55 years of age when
he testified on February 10, 1959. It is thus plainly obvious that Silveriana and Miguel could not have
known when defendant Felimon and his father moved to the land in 1905. Considering that Felimon
was 81 years old when he testified on February 10, 1959, he was already 27 years in 1905, in which
case he must have already helped his father in cleaning and tilling that land. As a matter of fact at
the time of his marriage with his first wife, Graciana Gallego, a portion of said land had already been
cultivated by him. Asked what was the condition of the land in 1915 (the date of his first marriage), he
answered: "Only a portion of the lot was plowed by me." (t.s.n., p. 18.)

In the light of the foregoing, the property in question is not one of those enumerated in Article 1401 of
the Old Civil Code. On the other hand, as it was inherited by Felimon from his parents and brought to
the marriage with his first wife, the same is deemed his separate property (Art, 1396, Old Civil Code).
For these reasons, defendant Felimon Torela had lawfully disposed of his property to the exclusion of
his children by his first marriage. Accordingly, plaintiffs' complaint was correctly dismissed by the court
below.

Petitioners allege that the Court of Appeals failed to take into account Article 1407 of the Spanish Civil Code, which now
correspond to Article 160 of the New Civil Code, and which reads as follows:

Art. 1407, All 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.

Petitioners claim that since the lot in question was registered in the name of Felimon Torela, married to Graciana
Gallego, it must be presumed to be the conjugal property of Felimon and Graciana so that one-half thereof should be
adjudicated to them as their inheritance from their mother.
While it is true that all property of the marriage is presumed to be conjugal, as above stated, nonetheless the party who
invokes the presumption must first prove that the property was acquired during the marriage. This proof is a
condition sine qua non for the application of the presumption. (Cobb-Perez vs. Lantin, L-22320, May 22, 1968, 23 SCRA
637; Ponce de Leon vs. RFC, L-24571, Dec. 18,1970; 36 SCRA 289.)

In the instant case there is nothing in the record to show that the lot in question was acquired during the marriage of
Felimon Torela and Graciana Gallego. On the contrary, the factual finding of the Court of Appeals is to the effect that
Felimon acquired the land through inheritance and this conclusion is bolstered by that fact that one of the petitioners
herein, Clara Torela, gave her conformity to her father's Ex-Parte Motion of March 5, 1958, wherein it was recited, inter
alia, that Felimon Torela had acquired the property by way of inheritance prior to his marriage to his first wife, Graciana
Gallego.

The circumstance that Decree No. 440157 of the Court of First Instance of Negros Occidental which confirmed the
ownership of Felimon Torela over the land in question described him as married to Graciana Gallego was merely
descriptive of his civil status at that time and cannot be taken as proof that the land was acquired during their
coverture. The further circumstance that the land was registered during their marriage cannot in itself constitute proof
that it was acquired during their marriage for land registration under Act No. 496, as amended, does not confer title; it
merely confirms a title already existing and which is registerable.

WHEREFORE, finding no reversible error in the decision of the Court of Appeals, the same is hereby affirmed without any
special pronouncement as to costs.

SO ORDERED.

Santos and De Castro * JJ., concur.

Separate Opinions

BARREDO (Chairman), J., concurring:

Putting it otherwise, what appears in Torrens title is a presumption that can be rebutted by contrary proof which exerts in
this case.

AQUINO, J., concurring:

If the land in question was conjugal property of the spouses Graciana Gallego and Felimon Torela, who were married in
1915, it should have been indicated in the Original Certificate of Title No. 29257, issued to Felimon Torela, as well as in the
decree of registration issued in 1929. that it was the said spouses conjugal property and it should have been registered in
their names. The fact that it was registered during the marriage in the husband's name alone was an indication that it
was the husband's separate property (Stuart vs. Yatco, 114 Phil. 1083).

# Separate Opinions

BARREDO (Chairman), J., concurring:

Putting it otherwise, what appears in Torrens title is a presumption that can be rebutted by contrary proof which exerts in
this case.
AQUINO, J., concurring:

If the land in question was conjugal property of the spouses Graciana Gallego and Felimon Torela, who were married in
1915, it should have been indicated in the Original Certificate of Title No. 29257, issued to Felimon Torela, as well as in the
decree of registration issued in 1929. that it was the said spouses conjugal property and it should have been registered in
their names. The fact that it was registered during the marriage in the husband's name alone was an indication that it
was the husband's separate property (Stuart vs. Yatco, 114 Phil. 1083).

#Footnotes

* Mr. Justice Felix Q. Antonio is on officail leave while Mr. Justice Hermogenes Concepcion, Jr. is
disqualified for being the ponente of the Court of Appeals' decision under review and Mr. Justice
Pacifico P. de castro has been temporarily sit with the second division.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-26001 October 29, 1968

PHILIPPINE NATIONAL BANK, petitioner,

vs.
THE COURT OF APPEALS and PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, respondents.

Tomas Besa, Jose B. Galang and Juan C. Jimenez for petitioner.

San Juan, Africa & Benedicto for respondents.

CONCEPCION, C.J.:

The Philippine National Bank — hereinafter referred to as the PNB — seeks the review by certiorari of a decision of the
Court of Appeals, which affirmed that of the Court of First Instance of Manila, dismissing plaintiff's complaint against the
Philippine Commercial and Industrial Bank — hereinafter referred to as the PCIB — for the recovery of P57,415.00.

A partial stipulation of facts entered into by the parties and the decision of the Court of Appeals show that, on about
January 15, 1962, one Augusto Lim deposited in his current account with the PCIB branch at Padre Faura, Manila, GSIS
Check No. 645915- B, in the sum of P57,415.00, drawn against the PNB; that, following an established banking practice in
the Philippines, the check was, on the same date, forwarded, for clearing, through the Central Bank, to the PNB, which
did not return said check the next day, or at any other time, but retained it and paid its amount to the PCIB, as well as
debited it against the account of the GSIS in the PNB; that, subsequently, or on January 31, 1962, upon demand from the
GSIS, said sum of P57,415.00 was re-credited to the latter's account, for the reason that the signatures of its officers on the
check were forged; and that, thereupon, or on February 2, 1962, the PNB demanded from the PCIB the refund of said
sum, which the PCIB refused to do. Hence, the present action against the PCIB, which was dismissed by the Court of First
Instance of Manila, whose decision was, in turn, affirmed by the Court of Appeals.

It is not disputed that the signatures of the General Manager and the Auditor of the GSIS on the check, as drawer
thereof, are forged; that the person named in the check as its payee was one Mariano D. Pulido, who purportedly
indorsed it to one Manuel Go; that the check purports to have been indorsed by Manuel Go to Augusto Lim, who, in
turn, deposited it with the PCIB, on January 15, 1962; that, thereupon, the PCIB stamped the following on the back of the
check: "All prior indorsements and/or Lack of Endorsement Guaranteed, Philippine Commercial and Industrial Bank,"
Padre Faura Branch, Manila; that, on the same date, the PCIB sent the check to the PNB, for clearance, through the
Central Bank; and that, over two (2) months before, or on November 13, 1961, the GSIS had notified the PNB, which
acknowledged receipt of the notice, that said check had been lost, and, accordingly, requested that its payment be
stopped.

In its brief, the PNB maintains that the lower court erred: (1) in not finding the PCIB guilty of negligence; (2) in not finding
that the indorsements at the back of the check are forged; (3) in not finding the PCIB liable to the PNB by virtue of the
former's warranty on the back of the check; (4) in not holding that "clearing" is not "acceptance", in contemplation of
the Negotiable Instruments law; (5) in not finding that, since the check had not been accepted by the PNB, the latter is
entitled to reimbursement therefor; and (6) in denying the PNB's right to recover from the PCIB.

The first assignment of error will be discussed later, together with the last,with which it is interrelated.

As regards the second assignment of error, the PNB argues that, since the signatures of the drawer are forged, so must
the signatures of the supposed indorsers be; but this conclusion does not necessarily follow from said premise. Besides,
there is absolutely no evidence, and the PNB has not even tried to prove that the aforementioned indorsements are
spurious. Again, the PNB refunded the amount of the check to the GSIS, on account of the forgery in the
signatures, not of the indorsers or supposed indorsers, but of the officers of the GSIS as drawer of the instrument. In other
words, the question whether or not the indorsements have been falsified is immaterial to the PNB's liability as a drawee,
or to its right to recover from the PCIB,1 for, as against the drawee, the indorsement of an intermediate bank does not
guarantee the signature of the drawer,2 since the forgery of the indorsement is notthe cause of the loss.3

With respect to the warranty on the back of the check, to which the third assignment of error refers, it should be noted
that the PCIB thereby guaranteed "all prior indorsements," not the authenticity of the signatures of the officers of the GSIS
who signed on its behalf, because the GSIS is not an indorser of the check, but its drawer.4 Said warranty is irrelevant,
therefore, to the PNB's alleged right to recover from the PCIB. It could have been availed of by a subsequent
indorsee5 or a holder in due course6 subsequent to the PCIB, but, the PNB is neither.7 Indeed, upon payment by the PNB,
as drawee, the check ceased to be a negotiable instrument, and became a mere voucher or proof of payment.8

Referring to the fourth and fifth assignments of error, we must bear in mind that, in general, "acceptance", in the sense in
which this term is used in the Negotiable Instruments Law9 is not required for checks, for the same are payable on
demand.10 Indeed, "acceptance" and "payment" are, within the purview of said Law, essentially different things, for the
former is "a promise to perform an act," whereas the latter is the "actual performance" thereof.11 In the words of the
Law,12 "the acceptance of a bill is the signification by the drawee of his assent to the order of the drawer," which, in the
case of checks, is the payment, on demand, of a given sum of money. Upon the other hand, actual payment of the
amount of a check implies not only an assent to said order of the drawer and a recognition of the drawer's obligation to
pay the aforementioned sum, but, also, a compliance with such obligation.

Let us now consider the first and the last assignments of error. The PNB maintains that the lower court erred in not finding
that the PCIB had been guilty of negligence in not discovering that the check was forged. Assuming that there had
been such negligence on the part of the PCIB, it is undeniable, however, that the PNB has, also, been negligent, with the
particularity that the PNB had been guilty of a greater degree of negligence, because it had a previous and formal
notice from the GSIS that the check had been lost, with the request that payment thereof be stopped. Just as important,
if not more important and decisive, is the fact that the PNB's negligence was the main or proximate cause for the
corresponding loss.

In this connection, it will be recalled that the PCIB did not cash the check upon its presentation by Augusto Lim; that the
latter had merely deposited it in his current account with the PCIB; that, on the same day, the PCIB sent it, through the
Central Bank, to the PNB, for clearing; that the PNB did not return the check to the PCIB the next day or at any other
time; that said failure to return the check to the PCIB implied, under the current banking practice, that the PNB
considered the check good and would honor it; that, in fact, the PNB honored the check and paid its amount to the
PCIB; and that only then did the PCIB allow Augusto Lim to draw said amount from his aforementioned current account.

Thus, by not returning the check to the PCIB, by thereby indicating that the PNB had found nothing wrong with the
check and would honor the same, and by actually paying its amount to the PCIB, the PNB induced the latter, not only to
believe that the check was genuine and good in every respect, but, also, to pay its amount to Augusto Lim. In other
words, the PNB was the primary or proximate cause of the loss, and, hence, may not recover from the PCIB.13

It is a well-settled maxim of law and equity that when one of two (2) innocent persons must suffer by the wrongful act of
a third person, the loss must be borne by the one whose negligence was the proximate cause of the loss or who put it
into the power of the third person to perpetrate the wrong.14

Then, again, it has, likewise, been held that, where the collecting (PCIB) and the drawee (PNB) banks are equally at
fault, the court will leave the parties where it finds them.15

Lastly, Section 62 of Act No. 2031 provides:

 The acceptor by accepting the instrument engages that he will pay it according to the tenor of his
acceptance; and admits:

(a) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the
instrument; and

(b) The existence of the payee and his then capacity to indorse.

The prevailing view is that the same rule applies in the case of a drawee who pays a bill without having previously
accepted it.16

WHEREFORE, the decision appealed from is hereby affirmed, with costs against the Philippine National Bank. It is so
ordered.

Reyes, J.B.L., Dizon, Makalintal, Sanchez, Castro, Angeles, Fernando and Capistrano, JJ., concur.
Zaldivar, J., took no part.

Footnotes

1 First National Bank of Wichita Falls v. First National Bank of Borger, 37 S.W. (2d) 802.

2 VI Banks & Banking, Zollmann, 378.

3 First National Bank of Marshalltown v. Marshalltown State Bank, 77 N.W. 1045.

4 First National Bank of Wichita Falls v. First National Bank of Borger, supra.

5 American Hominy Co. v. Millikin National Bank, 273 F. 550, 556.

6 Wells Fargo Bank & Union Trust Co. v. Bank of Italy, 4 P (2d) 781, 784-785.

7The PNB had previous notice of the infirmity of the check when it came into its possession. Art. 52 (d), Act No.
2031.

8 National Bank of Commerce of Seattle v. Seattle Nat. Bank, 187 P. 342, 346.

9 Section 132, Act No. 2031.

Sections 143 and 185, Act No. 2031; Phil. Nat. Bank v. Nat. City Bank of New York, 63 Phil. 711; I Morse on Banks
10

and Banking, 6th ed. 898, 899; Wachtel v. Rosen, 249 N. Y. 386, 164 N.E. 326.

11 First National Bank of Washington v. Whitman, 94 U.S. 343, 347, 24 L. ed. 229.

12 Section 132 thereof.

13Marlin National Bank v. Reed, 164 S.W. (2d) 260; First National Bank of Wichita Falls v. First National Bank of
Borger, 37 S.W. (2d) 802. See, also, Commerce-Guardian Bank v. Toledo Trust Co., 21 N.E. (2d) 173, 176; National
Bank of Rolla v. First National Bank of Salem, 125 S.W. 513, 516; Philippine National Bank v. National City Bank of
NY, supra; VIII Banks and Banking, Zollman, 421.

14 Blondeau v. Nano, 61 Phil. 625, 631, 632.

15 VI Banks and Banking by Zollman, 416.

 First National Bank of Portland v. United States National Bank of Portland, 197 P. 547; Fidelity & Casualty Co. of
16

New York v. Planenscheck, 227 NW 387; US v. Bank of NY, National Banking Association, 219 F. 648; US Fidelity &
Guaranty Co. v. First Nat. Bank of Omaha, 260 NW 798; First National Bank of Cottage Grove v. Bank of Cottage
Grove, 117 F. 293.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 73733 December 16, 1986

EPIFANIA MAGALLON, petitioner,

vs.
HON. ROSALINA L. MONTEJO, in her Official Capacity as Presiding Judge of Regional Trial Court of Davao del Sur, Branch
XXI, CONCEPCION LACERNA, ELECERIA LACERNA and PURITA LACERNA, respondents.

Latasa, Cagas and Aranune Law & Surveying Office for petitioner.

Alberto Lumakang for private respondents.

NARVASA, J.:

The petition before this Court sinks the annulment of a writ of execution issued by the respondent Judge in Civil Case No.
727 of her court (RTC Davao del Sur). Said case was instituted by the plaintiffs (private respondents herein) against Martin
Lacerna to compel partition of parcel of land located in Barrio Kasuga Municipality of Magsaysay, Davao del Sur, to
which said defendant had perfected a claim by homestead. The plaintiffs, claiming to be the common children of
Martin Lacerna and his wife, Eustaquia Pichan, who died in 1953, asserted a right to one-half of the land as their mother's
share in her conjugal partnership with Martin. While said defendant denied having contracted marriage with Eustaquia
Pichan — although he admitted living with her without benefit of marriage until she allegedly abandoned him — as well
as paternity of two of the plaintiffs who, he claimed, were fathered by other men, the Trial Court gave his denials no
credence. Said Court, on the basis of the evidence presented to it, found that Martin had in fact been married to
Eustaquia, and that the plaintiffs were his children with her. The Trial Court further found that Martin had begun working
the homestead, and his right to a patent to the land accrued, during his coverture with Eustaquia. On the basis of these
findings, the plaintiffs were declared entitled to the half of the land claimed by them. 1

Martin Lacerna appealed to the Intermediate Appellate Court AC-G.R. No. 59900-R). That Court affirmed, in a Decision
promulgated on August 31, 1984 which has since become final.2

It appears that at the time the case was brought, and while it was being heard in the Trial Court, no certificate of title to
the land had yet been issued to Martin Lacerna, although he had already complied with all the conditions necessary to
a grant thereof. Original Certificate of Title No. P-11 568 (issued on the basis of Homestead Patent No. 148869) was issued
only on November 22, 1978, while Lacerna's appeal was pending in the Intermediate Appellate Court. While it is not
disputed that said certificate of title refers to the same land homesteaded by Lacerna during his coverture with
Eustaquia Pichan, for reasons to which the record before the Court offers no clear clue, it states on its face that it is
issued in the name of " ... MARTIN LACERNA, Filipino, of legal age, married to Epifania Magallon ... ," the latter being the
present petitioner.3

It appears further that on November 26, 1985, after the confirmative Decision of the Intermediate Appellate Court had
become final and executory, the respondent Judge, on motion of the plaintiffs issued an alias writ of execution
commanding the Provincial Sheriff::

... to order the defendant Martin Lacerna to divide and partition the property located at Casuga,
Magsaysay, Davao del Sur, consisting of 10 hectares designated as Lot No. 5098 Cad. No. 275
covered by H.A. No. 20-13378 (E-20-12748), ½ of which is the share of Eustaquia Pichan in the conjugal
property, and plaintiffs being Pichan's children are also entitled thereto; and deliver portion of 5
 hectares of the aforedescribed lot to the plaintiffs as their share to satisfy the said judgment and your
fees thereon. 4

Apparently, said writ was served on both Martin Lacerna and petitioner herein, for on December 17, 1985, the latter filed
with the Trial Court a "Motion for Intervention and to Stay Execution" alleging that the land subject of the writ was
conjugal property of herself and Martin Lacerna under a certificate of title (OCT No. P-11568) ... issued way back 1978
(sic) without legal impediments, and ... now incontestable," as well as ... valid, binding and legal unless declared
otherwise in an independent proceedings, ... and praying that ... the property of herein intervenor be excluded from the
enforcement of the writ of execution." 5 Said motion was denied, as also was a motion for reconsideration of the order of
denial. Hence, the present petition.

The facts found by the lower courts which, in view of the finality of the latter's decisions, are binding upon this Court and
can no longer be controverted, as wen as the pertinent allegations of the petition, leave no doubt that the land in
question, which rightfully pertained to the conjugal partnership of Martin Lacerna and Eustaquia Pichan, the plaintiff's
mother, and should have been titled in the names of said spouses, was, through fraud or mistaken, registered in the
names of Martin Lacerna and petitioner herein, Epifania Magallon In such a situation, the property should be regarded
as impressed with an implied, or a constructive, trust for the party rightfully entitled thereto. The Civil Code provides that:

If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered
a trustee of an implied trust for the benefit of the person from whom the property comes. 6

The provision restates one of the principles upon which the general law of trust is founded, expressed in equity
jurisprudence thus:

A constructive trust is a creature of equity, defined supra (sec. 15) as a remedial device by which the
holder of legal title is held to be a trustee for the benefit of another who in good conscience is entitled
to the beneficial interest. So. the doctrine of constructive trust is an instrument of equity for the
maintenance of justice, good faith, and good conscience, resting on a sound public policy requiring
that the law should not become the instrument of designing persons to be used for the purpose of
fraud. In this respect constructive trusts have been said to arise through the application of the
doctrine of equitable estoppel or under the broad doctrine that equity regards and treats as done
what in good conscience ought to be done.

Where, through a mistake of fact, title to, and apparent ownership of, property rightfully belonging to
one person is obtained by another, a constructive trust ordinarily arises in favor of the rightful owner of
such property

It is a general principle that one who acquires land or other property by fraud, misrepresentation,
imposition, or concealment, or under any such other circumstances as to render it inequitable for him
to retain the property, is in equity to be regarded as a trustee ex maleficio thereof for a person who
suffers by reason of the fraud or other wrong, and is equitably entitled to the property, even though
such beneficiary may never have any legal estate therein. It is to be observed, however, that in the
absence of equitable considerations or a fiduciary relationship, fraud alone, either actual or
constructive, will not give rise to a trust, since, as has been pointed out, if it were otherwise all persons
claiming property under defective titles would be trustee for the 'true' owners.7

Under proper circumstances, mistake, although unconnected with fraud, will warrant relief under the
Code providing that one who gains a thing by fraud, accident, mistake, undue influence, the
violation of a trust, or other wrongful act is, unless he has come better title thereto, an involuntary
trustee of the thing gained for the benefit of the person who would otherwise have had it. 8

As stated by Justice Cardozo, a constructive trust is the formula through which the conscience of
equity finds expression and when property has been acquired in such circumstances that the holder
of the legal title may not in good conscience retain the beneficial interest; equity converts him into a
trustee. 9

In an early case in this jurisdiction, land of the plaintiff had, by mistake, been included in the title of an adjoining owner
who was afterwards sued by his creditors, the latter obtaining writs of execution and procuring their annotation on said
title. In an action by the plaintiff to enjoin the sale of his property, annul the levies thereon and secure a new title without
those encumbrances, this Court affirmed judgment of the lower court in the plaintiff's favor, despite the fact that he had
done nothing to protect his interests in the land during a period of almost six years following the issuance of the decree
of registration in favor of the adjoining owner. The Court, noting that the titular (ostensible) owner had never laid claim to
the property mistakenly registered in his name and that he had in fact acquiesced to judgment in a separate action
declaring the plaintiff the real owner of the property, refused to apply the one-year limitation period for disputing the title
and held that in the circumstances, the former merely held title to the property in trust for the plaintiff. 10

In Bueno vs. Reyes, 11 where property belonging to an ancestor of whom plaintiffs' parents were the intestate heirs was,
though mistake or in bad faith, registered in cadastral proceedings in the name of other parties who had no right
thereto, this Court reaffirmed the principles already cited, holding that:

If any trust can be deduced at all from the foregoing facts it was an implied one, arising by operation
of law not from any presumed intention of the parties but to satisfy the demands of justice and equity
and as a protection against unfair dealing or downright fraud. Indeed, in this kind of implied trust,
commonly denominated constructive, as distinguished from resulting, trust, there exists a certain
antagonism between the cestui que trust and the trustee. Thus, for instance, under Article 1456 of the
Civil Code, 'if property is acquired through mistake or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of the person from whom the property comes.'
In a number of cases this Court has held that registration of property by one person in his name,
whether by mistake or fraud, the real owner being another per- son, impresses upon the title so
acquired the character of a constructive trust for the real owner, which would justify an action for
reconveyance. 12

Clearly, therefore, the petitioner herein, as the trustee of a constructive trust, has an obligation to convey to the private
respondents that part of the land in question to which she now claims an ostensible title, said portion rightfully pertaining
to the respondents' deceased mother as her share in the conjugal partnership with Martin Lacerna.

The question is whether that obligation may be enforced by execution in the action at bar, which was brought and
prosecuted to judgment against Martin Lacerna only, without impleading the petitioner. 13 Stated otherwise, is petitioner
bound by final judgment rendered in an action to which she was not made a party?

There are no clear precedents on the matter in our law. Reference to American law for any persuasive ruling shows that
even there the question seems to be an open one.

"The authorities are in conflict as to whether a wife, not a party to an action is bound by a judgment therein for or
against her husband with respect to community or homestead property or property held as an estate in entirety.

Community property. It has been held that a judgment against the husband in an action involving community property,
is conclusive on the wife even if she is not a party, but it has also been held that a judgment against either husband or
wife with respect to community property in an action to which the other spouse is not a party does not prevent the other
spouse from subsequently having his or her day in court, although, of course, a judgment against both husband and wife
is binding on both.

Estate by entirety. It has been both affirmed and denied that a wife is in such privity with her husband in respect of
property held by them as an estate in entirety that a judgment for or against him respecting such property in a suit to
which she is not a party is binding on her.

Homestead. A judgment affecting a homestead is, according to some authorities, not binding on a spouse who is not a
party to the action in which it is rendered, unless the homestead is community property or the homestead claim or
interest would not defeat the action; but, according to other authorities, where the husband sets up and litigates a claim
for the homestead, an adjudication for or against him is binding on the wife. 14

As to her community interest in real property, a wife is in privity with her husband and is represented by
him in an action as fully as though she had expressly been made a party thereto. Cutting vs. Bryan,
274 P. 326, 206 Cal. 254, certiorari denied 50 S. Ct. 16, 280 U.S. 556,74 L.Ed 611. 15

In the particular circumstances obtaining here, the Court can as it does in good conscience and without doing violence
to doctrine, adopt the affirmative view and hold the petitioner bound by the judgment against Martin Lacerna, despite
her not having in fact been impleaded in the action against the latter. This ruling presumes that petitioner is, as she
claims, the legal wife of Lacerna though, as observed by the Intermediate Appellate Court, no marriage contract was
presented by Lacerna to prove his marriage to the petitioner either before or after the death of Eustaquia Pichan.
Indeed, it is clear that the petitioner cannot assert any claim to the land other than by virtue of her supposed marriage
to Lacerna. As a mere mistress, she cannot pretend to any right thereto.
But whether the petitioner is a lawful wife or a mere "live-in" partner, the Court simply cannot believe that she never
became aware of the litigation concerning the land until presented with the writ of execution. What is far more
probable and credible is that she has known of the lawsuit since 1956 when Martin Lacerna "married" her. 16 Her silence
and inaction since then and until barely a year ago bespeak more than anything else, a confession that she had and
has no right to the land and no defense to offer to the action, either on her part or on the part of Martin Lacerna. Had
she even the semblance of a right, there is no doubt she would have lost no time asserting it.

From the averments of the petition, it is evident that the petitioner relies mainly, if not solely, on the fact that the
certificate of title to the land carries her name as the "wife" of the owner named therein, Martin Lacerna. As already
observed, such entry on the certificate of title has been established by evidence no longer disputable as resulting from a
mistake if, indeed, it was not procured through fraud. Moreover, on the authority of Litam vs. Rivera 17 and Stuart vs.
Yatco, 18 the phrase "married to Epifania Magallon written after the name of Martin Lacerna in said certificate of title is
merely descriptive of the civil status of Martin Lacerna, the registered owner, and does not necessarily prove that the
land is "conjugal" property of Lacerna and petitioner hereyn. Neither can petitioner invoke the presumption established
in Article 160 of the Civil Code that property acquired during the marriage belongs to the conjugal partnership, there
being no proof of her alleged marriage to Martin Lacerna except that which arises by implication from the aforestated
entry in the certificate of title and for the far more compelling reason that the homestead claim on the land was shown
to have been perfected during Martin Lacerna's marriage to Eustaquia Pichan, mother of the private respondents. The
ruling in Maramba vs. Lozano 19 that the presumption does not operate where there is no showing as to when property
alleged to be conjugal was acquired applies with even greater force here.

The writ of execution, however, must be set aside, though not for the reasons urged in the petition. The judgment of the
respondent Trial Court which was affirmed by the Intermediate Appellate Court merely declared the private
respondents entitled to one-half of the land in question, without specifically ordering partition and delivery to them of
said half portion. A writ of execution cannot vary the terms of the judgment it is issued to satisfy, or afford relief different
from, or not clearly included in, what is awarded by said judgment. Even if the judgment in question is construable as
authorizing or directing a partition of the land, the mechanics of an actual partition should follow the procedure laid
down in Rule 69 of the Rules of Court which does not contemplate or provide for the intervention of the sheriff in the
manner prescribed in the writ complained of.

Both the Trial Court, in rendering the judgment in question, and the Intermediate Appellate Court, in affirming the same,
appear to have overlooked the fact that the surviving spouse is the legal and compulsory heir of the deceased husband
or wife; otherwise, consistent with the finding that the half portion of the land sued for pertained to the late Eustaquia
Pichan as her share in the conjugal partnership with Martin Lacerna, they should have ruled that Martin Lacerna
concurred with the three private respondents in the succession to said portion, each of them taking an equal
share. 20 Unfortunately, said error is beyond review because Martin Lacerna allowed the judgment to become final and
executory without raising that point of law, even on appeal.

WHEREFORE, the writ of execution complained of is set aside and annulled. Instead of enforcing said writ, the respondent
Trial Court is ordered to effect the partition of the land in question in accordance with the terms of its now final and
executory decision and the provisions of Rule 69 of the Rules of Court. No pronouncement as to costs in this instance.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Cruz and Feliciano, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 72321 December 8, 1988

DIOSDIDIT, BALDOMERO, FILOMENO, ELPIDIO, AIDA, all surnamed CUENCA, petitioners,

vs.
RESTITUTO CUENCA, MELADORA CUENCA and COURT OF APPEALS, respondents.
De Castro & Cagampang Law Offices for petitioners.

Cipriano C. Alvizo, Sr. for respondents.

GUTIERREZ, JR., J.:

This petition for review on certiorari seeks the reversal of the resolutions of the then Intermediate Appellate Court, now
Court of Appeals, denying the petitioners' motion for new trial on the ground of newly discovered evidence.

Private respondents Restituto Cuenca and Meladora Cuenca filed a complaint for recovery of real property and
damages against the petitioners before the then Court of First Instance of Davao del Norte. The case was docketed as
Civil Case No. 1240.

After trial, the lower court rendered a decision in favor of the petitioners. The lower court dismissed the complaint.

The private respondents appealed the decision to the then Intermediate Appellate Court.

On November 26, 1984, the appellate court reversed and set aside the decision of the lower court. It rendered a
decision in favor of the private respondents the dispositive portion of which reads:

WHEREFORE, the decision appealed from is hereby set aside and another one entered declaring
plaintiff Restituto Cuenca the absolute and exclusive owner of that parcel of land known as Lot 3063
Pls-22 of the Cadastral Survey of the Municipality of Butuan, Province of Agusan located at Bo.
Pinamangculan containing an area of six (6) hectares, more or less, declared in the name of Restituto
Cuenca; ordering the defendants to restore to said plaintiff Restituto Cuenca the possession of said
parcel of land; declaring the parcel of land described as Lot 3060 Pls-22 of the Cadastral Survey of the
Municipality of Butuan, Province of Agusan, located at Barrio Pinamangculan Butuan, Agusan,
containing an area of 17 hectares, 732 centares, more or less, declared in the name of Restituto
Cuenca as conjugal partnership property of deceased spouses Agripino Cuenca and Maria
Bangahon in effect declaring one half portion of said parcel of conjugal partnership property the
share of the deceased Maria Bangahon to be divided exclusively share and share alike between the
plaintiffs Restituto Cuenca and Meladora Cuenca as the heirs of Maria Bangahon; declaring the other
half portion of said parcel as the share of the late Agripino Cuenca also with plaintiffs as the only
surviving heirs of the said Agripino Cuenca entitled to divide exclusively between themselves share
and share alike the said one half portion of Agripino Cuenca, and the other one half of the share of
Agripino Cuenca to be divided among the plaintiffs Restituto Cuenca and Meladora Cuenca and
defendant Engracia Basadre in equal shares under Article 892 of the New Civil Code. The other claim
of the plaintiffs for damages and accounting of the value of the produce corresponding to their
shares is not granted for lack of evidence. The counterclaim of defendants is likewise dismissed for
lack of merit. (Rollo, pp. 37-38)

On December 3, 1984, the petitioners received a copy of the appellate court's decision.

On December 14, 1984, the petitioners filed a motion for reconsideration of the decision.

On February 22, 1985, the petitioners filed a Supplemental Motion for Reconsideration and/or Motion for New Trial on the
ground of newly discovered evidence.

In a Resolution dated August 6, 1985, the appellate court denied the motion for reconsideration for lack of merit and the
supplemental motion for reconsideration and/or new trial for having been filed out of time. The court ruled that under
section 1, Rule 37 of the Revised Rules of Court, a motion for new trial on the ground of newly discovered evidence must
be filed only within thirty (30) days after notice of the decision is received.

The petitioners filed a motion for reconsideration of the August 6, 1985 resolution insofar as the same held that the motion
for new trial was filed out of time. The motion was denied for lack of merit and legal basis.

Hence, this petition.

In a resolution dated September 14, 1987, we gave due course to the petition.

The sole issue raised in the instant petition pertains to the period when a party may file a motion for new trial before the
appellate court.

The Rules of Court under Rule 37 and Rule 53 provide two (2) instances when a party may file a motion for new trial on
the ground of newly discovered evidence. Rule 37, Section 1 states:

SECTION 1. Grounds of and period for filing motion for new trial within the period for perfecting
appeal, the aggrieved party may move the trial court to set aside the judgment and giant a new trial
for one or more of the following causes materially affecting the substantial rights of said party.

xxx xxx xxx

b) Newly discovered evidence, which he could not, with reasonable diligence have discovered, and
produced at the trial and which if presented would probably alter the result; (emphasis supplied)

xxx xxx xxx

while section 1, Rule 53 states:

SECTION 1. Petition before a final order or judgment rendered by the Court of Appeals becomes
executory, a motion for new trial may be filed on the ground of newly discovered evidence which
could not have been discovered prior to the trial in the court below by the exercise of due diligence
and which is of such a character as would probably change the result. The motion shall be
accompanied by affidavits showing the facts constituting the grounds therefor and the newly
discovered evidence. (Emphasis supplied)

The rules are clear and leave no room for interpretation, Rule 37 speaks of a trial court while Rule 53 speaks of the Court
of Appeals. Undoubtedly, the appellate court erred in denying the petitioners' motion for new trial on the ground that it
was filed out of time pursuant to Rule 37. The applicable law is Rule 53 and since the motion for new trial was filed before
the appellate court's judgment could become final and executory, the motion was filed within the reglementary period.

With these findings, the usual procedure would be to remand the case to the appellate court. Nevertheless, since all the
relevant facts needed to resolve the issue as to whether or not the petitioners' motion for new trial is meritorious are
before us, we find no need to refer the case back to the appellate court. (See Tejones v. Gironella, et al., G.R. No. L-
35506 March 21, 1988; Alger Electric, Inc. v. Court of Appeals (135 SCRA 37 [1985]), and Beautifont, Inc., et al. v. Court of
Appeals, et al. (G.R. No. 50141, January 29, 1988).

Civil Case No. 1240 had for its subject matter parcels of land which were claimed by- two sets of families. Private
respondents Restituto Cuenca and Meladora Cuenca claimed ownership over the subject parcels of land on the
ground that they are the legitimate children of Agripino Cuenca and Maria Bangahon, both deceased, owners of the
subject parcels of land. They alleged that some of the parcels are paraphernal property of Maria while all the others are
conjugal properties of Maria and Agripino They also alleged that Agripino Cuenca and Engracia Basadre were not
legally married because at the time they lived together Agripino was married to a certain Jesusa Pagar.

On the other hand, the petitioners (defendants below) Diosdidit, Baldomero, Filomeno Elpidio, Aida, Anita and Engracia
Vda. de Cuenca denied the legitimacy of the marriage between Agripino Cuenca and Maria Bangahon as well as the
legitimacy of the plaintiffs as children of the couple. They claimed that Agripino Cuenca and their mother Engracia
Basadre were legally married and that they are the legitimate children of the couple. They contend that the subject
parcels of lands are conjugal properties of Agripino and Engracia.

The appellate court stated its findings as follows:

The records show that defendant Bartolome Sanchez upon manifestation of his counsel is no longer a
necessary party as Engracia Basadre-Cuenca has repurchased that portion of the land in question
sold to Bartolome Sanchez making plaintiffs' claim against defendant Bartolome Sanchez moot and
academic.
 Our review of the evidence shows that Agripino Cuenca in his lifetime expressed in the extrajudicial
settlement of the estate of Maria Bangahon executed on June 13, 1950 before Notary Public
Francisco Ro. Cupin (Exh. "C") that:

Parcel of agricultural land situated in Pinamangculan Butuan, Agusan, planted to coconut, under the
present possession of the heirs of Maria Bangahon, bounded on the North, Lot No. 3062, Lucio Plaza,
Lot No. 4319, A. Cuenca, portion of Lot No. 3063, in the possession of A. Cuenca, on the south Road,
on the West by Lot No. 3057, S. Dumanon 3058, B. Adormio, 3059, A. Cuenca and east portion of Lot
No. 3063, containing an area of six (6) hectares, more or less (This is a portion of Lot No. 3063, Pls-22 of
Cad. of Municipality of Butuan which parcel of land belongs exclusively to Maria Bangahon during her
lifetime and which property is separate from the conjugal property of the marriage of said Maria
Bangahon and Agripino Cuenca.

That parcel of land situated in Rendon, Butuan, Agusan, planted to rice with irrigation under the present possession of
the heirs, bounded on the North by Mariano Agagdang on the East by Clerencia Tagonsod on the South by Suatan River
and on the West by Mariano Agagdang containing an area of 1.2500 hectares, more or less, under Tax Dec. 3055,
assessed at P250.00 by the property records of Agusan.

That parcel of land situated in Rendon, Butuan, Agusan, planted to coconut, under the present possession of the heirs,
bounded on the North by Maximo Bangahon, on the East, by Sergio Pagar, on the South, by Macaria Agagdang on the
West, by Folgencio Buyan, containing an area of 1.1722 hectares, more or less, assessed at P670.00 by Tax Dec. No. 4026
of Agusan."

belong to Maria Bangahon as her inheritance from her parents. This declaration against interest is further reiterated by
Agripino Cuenca in that judicial settlement and sale executed by him on October 19, 1950. These two documents, as
rightly contended by the plaintiffs, are ample proofs that the properties in question described in par. 2 of the complaint,
belong exclusively to Maria Bangahon as her paraphernal property, a fact declared by no less than the husband himself
in a declaration against his interest. It was error for the trial court to unceremoniously brush aside the importance of the
declaration of Agripino Cuenca in the extrajudicial settlement of the estate of Maria Bangahon. These public
documents carry sufficient evidentiary weight to prove the origin of the properties in question and the nature of their
ownership as properties brought into the marriage by Maria Bangahon to Agripino Cuenca as against the bare
testimony of the defendants and their witnesses, More importantly, Juan Buyan and former Judge Francisco Ro. Cupin
parties who participated in the execution of the two documents the first as an instrumental witness to the documents
and the other the intervening Notary Public testified to the due execution of the said documents. These witnesses
likewise proved the genuineness of Exhibits C and D.

The ownership of Maria Bangahon of the three parcels of land was testified to further by Adel Ras who declared
unrebutted that Maria Bangahon was the daughter of Isidro Bangahon, the at cousin of his father; that the three parcels
of land in question were inherited by Maria Bangahon from her parents; that Maria Bangahon later married Agripino
Cuenca bringing into their marriage the properties which she inherited from her father, Isidro Bangahon. These pieces of
evidence established the fact that the plaintiffs are the forced heirs of Maria Bangahon and Agripino Cuenca, who by
law should succeed to the possession and ownership of the properties in question. On the other hand, defendants'
evidence consist only of the oral testimonies of Marta Legaspi, Engracia Basadre-Cuenca, Baldomero Cuenca and
Diosdidit Cuenca which proved nothing concrete as they merely are inferences and deductions conveniently tailored to
support their claim that Agripino Cuenca married Engracia Basadre-Cuenca; that the properties in question were
acquired during their marriage without, however, presenting any document to prop up their pretense; that they are the
legitimate children of Agripino Cuenca and Engracia Basadre-Cuenca who succeeded to the properties in litigation.
We find no evidentiary value in the extrajudicial settlement of the estate of Agripino Cuenca executed by the
defendants of Engracia Basadre-Cuenca and her children. It is self-serving and proves nothing.

In passing, We note that the defendants presented tax declaration (Exhibits 3-17-A), pieces of evidence which have
been ruled in a long line of decisions by our Supreme Court to be not real evidence at all sufficient to prove ownership or
possession.

After considering the evidence of both parties, in sum, We find convincing evidence to show that Agripino Cuenca and
Maria Bangahon were legally married with Restituto Cuenca and Meladora Cuenca as their issues; that Maria Bangahon
brought properties into her marriage; that the couple acquired properties during the marriage; that by virtue of the
extrajudicial settlement executed by Agripino Cuenca and his children, Restituto is the absolute owner of the parcels of
land described in paragraph 2(a) (b) and (c) of the complaint; that one half of the land described in par. 6 of the
complaint belongs to Agripino Cuenca and the other half to Maria Bangahon the same having been acquired by
Agripino Cuenca and Maria Bangahon during their marriage-conjugal partnership property. Therefore, upon the
dissolution of the conjugal relationship by the death of spouses Agripino Cuenca and Maria Bangahon, one half goes to
Agripino Cuenca which portion after the death of Agripino Cuenca goes to his alleged third wife, Engracia Basadre-
Cuenca together with the plaintiffs as forced heirs of Agripino Cuenca (Arts. 185 & 189, New Civil Code).

From the evidence of the plaintiffs, We find the present appeal impressed with merit." (Rollo, pp. 33-37)

In their motion for new trial the petitioners alleged:

1. There are newly discovered evidence consisting of ancient, authentic records which establish
beyond reasonable doubt, the status of defendants-appellees as legitimate children of the deceased
Agripino Cuenca whose estate is the subject matter of this case.

2. There is documentary proof beyond doubt that Agripino Cuenca was never married to Jesusa
Pagar.

3. The totality of defendants-appellees' evidence prove that Engracia A. Basadre was married legally
to Agripino Cuenca in 1920 and that defendant-appellees are legitimate children of Agripino Cuenca
and legitimate half-brother/half-sisters of plaintiffs- appellants who are entitled to equal shares of their
father's estate.

4. There is sufficient documentary evidence to prove that the lands in question were conjugal
properties of Agripino Cuenca and Engracia A. Basadre acquired during their marriage. (Rollo, p. 60)

The petitioners wanted to prove that Engracia Basadre was legally married to their father Agripino Cuenca and that all
the other petitioners were the legitimate children of the couple. In this connection, the petitioners attached to their
motion an alleged newly discovered evidence consisting of a certified true copy of the Register of Birth of petitioner
Diosdidit Cuenca, first child of Agripino Cuenca and petitioner Engracia Basadre issued by the National Archives or
Bureau of Records Management which discloses that Diosdidit is a legitimate child of the couple and a notarized public
document dated August 13,1948 which discloses that Jesusa Pagar was married to Santiago Barkowel disproving the
respondents' evidence that Jesusa Pagar was married to Agripino Cuenca

The issue as to whether or not petitioner Engracia Basadre was legally married to Agripino Cuenca was settled by the
appellate court in this wise:

After considering the evidence of both parties, in sum, We find convincing evidence to show that
Agripino Cuenca and Maria Bangahon were legally married with Restituto Cuenca and Meladora
Cuenca as their issues; that Maria Bangahon brought properties into her marriage; that the couple
acquired properties during the marriage; that by virtue of the extrajudicial settlement executed by
Agripino Cuenca and his children, Restituto is the absolute owner of the parcels of land described in
paragraph 2(a) (b) and (c) of the complaint; that one half of the land described in par. 6 of the
complaint belongs to Agripino Cuenca and the other half to Maria Bangahon the same having been
acquired by Agripino Cuenca and Maria Bangahon during their marriage-conjugal partnership
property. Therefore, upon the dissolution of the conjugal relationship by the death of spouses Agripino
Cuenca and Maria Bangahon, one half goes to Agripino Cuenca which portion after the death of
Agripino Cuenca goes to his alleged third wife, Engracia Basadre-Cuenca together with the plaintiffs
as forced heirs of agripino Cuenca (Arts. 185 & 189, New Civil Code). (Rollo, pp. 36-37) (Emphasis
supplied)

The dispositive portion of the decision states that petitioner Engracia Basadre was entitled to inherit from Agripino
Cuenca together with the latter's legitimate children by Maria Bangahon, the private respondents herein in accordance
with Article 892 of the New Civil Code.

Accordingly, the appellate court declared Engracia Basadre as surviving spouse. There was, therefore no need to prove
the legality of marriage between petitioners Engracia Basadre and Agripino Cuenca much less to prove the legitimacy
of the other petitioners who are undoubtedly the children of Agripino and Engracia.

The petitioners also alleged the finding of newly discovered evidence to prove that the subject parcels of land were
conjugal properties of Agripino Cuenca and petitioner Engracia Basadre. These consist of eight (8) sketch maps
obtained on December 27, 1984 from the Regional Office of the Bureau of Lands in Cagayan de Oro City "after
extensive research." The petitioners alleged that these parcels were surveyed for Agripino Cuenca and approved when
Agripino Cuenca was already married to Engracia as indicated in the documents, hence, there is the presumption that
these are conjugal properties and therefore petitioners have hereditary rights over these properties.

Article 160 of the New Civil Code provides that "All property of the marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains exclusively to the husband or to the wife," In the cases of Philippine
National Bank v. Court of Appeals, (153 SCRA 435 [August 31, 1987); Magallon v. Montejo (146 SCRA 282 [December 16,
1986]) and Maramba v. Lozano (20 SCRA 474 [June 29, 1967]) this Court ruled that the presumption refers only to the
property acquired during marriage and does not operate when there is no showing as to when property alleged to be
conjugal was acquired.

In the case at bar, the documents sought to be presented as newly discovered evidence do not show that the claims to
the subject parcels consisting of homestead lands were perfected during the marriage of Agripino Cuenca and
petitioner Engracia Basadre. The perfection of the homestead claims is considered the time of acquisition of the
properties. (See Magallon v. Montejo, supra) The fact that these parcels were surveyed for Agripino Cuenca and
approved during the marriage of Agripino Cuenca and petitioner Engracia Basadre is not determinative of the issue as
to whether or not the parcels were the conjugal properties of Agripino and Engracia. Moreover, the documents show
that 5 of the 8 parcels covered by the documents are titled in the name of either respondent Meladora Cuenca or
respondent Restituto Cuenca. The presumption cannot prevail "when the title is in the name of only one spouse and the
rights of innocent third parties are involved. (Philippine National Bank v. Court of Appeals, supra citing Nable Jose v.
Nable Jose, 41 Phil. 713) Under the circumstances of this case, the non-applicablility of the presumption should also be
upheld.

In the light of these findings a new trial would only be an unnecessary exercise and ineffective. The documents sought to
be presented during a new trial would not in any way change the result. The motion for new trial was correctly denied
although not for the reason given by the respondent court.

WHEREFORE, the instant petition is DISMISSED. The questioned resolutions of the appellate court are AFFIRMED. For non-
compliance with this Court's Resolution dated March 2, 1988, ordering him to show cause for his failure to file a
memorandum within the period given to him, Atty. Cipriano C. Alvizo, Sr. is fined Five Hundred (P500.00) Pesos. If he fails
to pay the fine within ten (10) days from notice of this decision, he shall be imprisoned for five (5) days.

SO ORDERED.

Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur.

SECOND DIVISION

ANTONIA R. DELA PEA and ALVIN JOHN B. DELA PEA, G.R. No. 187490
Petitioners,

Present:

- versus - CARPIO, J.,

Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.

GEMMA REMILYN C. AVILA and FAR EAST BANK &

TRUST CO.,
Respondents.

Promulgated:
February 8, 2012
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
PEREZ, J.:

Filed pursuant to Rule 45 of the 1997 Rules of Civil Procedure, this petition for review on certiorari seeks the reversal and

setting aside of the Decision[1] dated 31 March 2009 rendered by the then Second Division of the Court of Appeals in CA-

G.R. CV No. 90485,[2] the dispositive portion of which states:

WHEREFORE, premises considered, the appeal is GRANTED and the assailed Decision, dated December
18, 2007, of the Regional Trial Court of Marikina City, Branch 272, is hereby REVERSED and SET ASIDE. The
Deed of Absolute Sale in favor of Gemma Avila dated November 4, 1997 and the subsequent sale on
auction of the subject property to FEBTC (now Bank of the Philippine Islands) on March 15, 1999 are
upheld as valid and binding.

SO ORDERED.[3]

The Facts

The suit concerns a 277 square meter parcel of residential land, together with the improvements thereon, situated in

Marikina City and previously registered in the name of petitioner Antonia R. Dela Pea (Antonia), married to Antegono A.

Dela Pea (Antegono) under Transfer Certificate of Title (TCT) No. N-32315 of the Registry of Deeds of Rizal.[4] On 7 May 1996,

Antonia obtained from A.C. Aguila & Sons, Co. (Aguila) a loan in the sum of P250,000.00 which, pursuant to the Promissory

Note the former executed in favor of the latter, was payable on or before 7 July 1996, with interest pegged at 5% per

month.[5] On the very same day, Antonia also executed in favor of Aguila a notarized Deed of Real Estate Mortgage over

the property, for the purpose of securing the payment of said loan obligation. The deed provided, in part, that (t)his

contract is for a period of Three (3) months from the date of this instrument.[6]

On 4 November 1997, Antonia executed a notarized Deed of Absolute Sale over the property in favor of respondent

Gemma Remilyn C. Avila (Gemma), for the stated consideration of P600,000.00.[7] Utilizing the document, Gemma caused

the cancellation of TCT No. N-32315 as well as the issuance of TCT No. 337834 of the Marikina City Registry of Deeds, naming

her as the owner of the subject realty.[8] On 26 November 1997, Gemma also constituted a real estate mortgage over said

parcel in favor of respondent Far East Bank and Trust Company [now Bank of the Philippine Islands] (FEBTC-BPI), to secure

a loan facility with a credit limit of P1,200,000.00.[9] As evidenced by the Promissory Notes she executed from 12 December

1997 to 10 March 1998,[10] Gemma obtained the following loans from Visayas Avenue Branch of the FEBTC-BPI, in the

aggregate sum of P1,200,000.00, to wit:

 Promissory Note Date Amount Maturity

BDS#970779 12/02/97 P300,000.00 04/30/98

BDS#970790 12/15/97 P100,000.00 04/14/98

BDS#980800 01/16/98 P100,000.00 04/30/98

BDS#980805 02/06/98 P100,000.00 04/30/98

BDS#980817 02/27/98 P150,000.00 04/30/98

BDS#980821 03/10/98 P450,000.00 04/30/98

On 3 March 1998, in the meantime, Antonia filed with the Register of Deeds of Marikina an Affidavit of Adverse Claim to

the effect, among others, that she was the true and lawful owner of the property which had been titled in the name of

Gemma under TCT No. 32315; and, that the Deed of Absolute Sale Gemma utilized in procuring her title was

simulated.[11] As a consequence, Antonias Affidavit of Adverse Claim was inscribed on TCT No. 337834 as Entry No. 501099

on 10 March 1998.[12] In view of Gemmas failure to pay the principal as well as the accumulated interest and penalties on

the loans she obtained, on the other hand, FEBTC-BPI caused the extrajudicial foreclosure of the real estate mortgage

constituted over the property. As the highest bidder at the public auction conducted in the premises,[13] FEBTC-BPI later

consolidated its ownership over the realty and caused the same to be titled in its name under TCT No. 415392 of

the Marikinaregistry.[14]

On 18 May 1998, Antonia and her son, petitioner Alvin John B. Dela Pea (Alvin), filed against Gemma the complaint for

annulment of deed of sale docketed before Branch 272 of the Regional Trial Court (RTC) of Marikina City as Civil Case No.

98-445-MK. Claiming that the subject realty was conjugal property, the Dela Peas alleged, among other matters, that the

7 May 1996 Deed of Real Estate Mortgage Antonia executed in favor of Aguila was not consented to by Antegono who

had, by then, already died; that despite its intended 1998 maturity date, the due date of the loan secured by the

mortgage was shortened by Gemma who, taking advantage of her proximate relationship with Aguila, altered the same

to 1997; and, that the 4 November 1997 Deed of Absolute Sale in favor of Gemma was executed by Antonia who was

misled into believing that the transfer was necessary for the loan the former promised to procure on her behalf from FEBTC-

BPI. In addition to the annulment of said Deed of Absolute Sale for being simulated and derogatory of Alvins successional

rights, the Dela Peas sought the reconveyance of the property as well as the grant of their claims for moral and exemplary

damages, attorneys fees and the costs.[15]

Served with summons, Gemma specifically denied the material allegations of the foregoing complaint in her 1 July 1998

answer. Maintaining that the realty was the exclusive property of Antonia who misrepresented that her husband was still

alive, Gemma averred that the former failed to pay the P250,000.00 loan she obtained from Aguila on its stipulated 7 July

1996 maturity; that approached to help prevent the extrajudicial foreclosure of the mortgage constituted on the property,

she agreed to settle the outstanding obligation to Aguila and to extend Antonia a P50,000.00 loan, with interest pegged

at 10% per month; that to pay back the foregoing accommodations, Antonia agreed to the use of the property as

collateral for a loan to be obtained by her from FEBTC-BPI, hence, the execution of the impugned Deed of Absolute Sale;

and, that conformably with the foregoing agreement, she obtained loans in the total sum of P1,200,000.00 from FEBTC-BPI

and applied the proceeds thereof to the sums owed by Antonia. Together with the dismissal of the complaint, Gemma

also prayed for the grant of her counterclaims for moral and exemplary damages, attorneys fees, litigation expenses and

the costs.[16]

On 25 September 1999, the Dela Peas filed a supplemental complaint, impleading FEBTC-BPI as additional

defendant. Calling attention to Antonias 3 March 1998 Affidavit of Adverse Claim and the Notice of Lis Pendens they

purportedly caused to be annotated on TCT No. 337834 on 10 December 1999, the Dela Peas alleged that FEBTC-BPI was

in bad faith when it purchased the property at public auction on 15 March 1999.[17] In their 12 November 1999 answer,

FEBTC-BPI, in turn, asserted that the property was already titled in Gemmas name when she executed the 26 November

1997 real estate mortgage thereon, to secure the payment of the loans she obtained in the sum of P1,200,000.00; and,

that not being privy to Antonias transaction with Gemma and unaware of any adverse claim on the property, it was a

mortgagee in good faith, entitled to foreclose the mortgage upon Gemmas failure to pay the loans she obtained. Seeking

the dismissal of the complaint and the grant of its counterclaims for damages against the Dela Peas, FEBTC-BPI alternatively

interposed cross-claims against Gemma for the payment of the subject loans, the accumulated interests and penalties

thereon as well as such sums for which it may be held liable in the premises.[18]

On 14 April 2000, the RTC issued the order terminating the pre-trial stage and declaring Gemma in default for

failure to attend the pre-trial settings and to engage the services of a new lawyer despite due notice and the withdrawal

of her counsel of record.[19] In support of their complaint, Antonia[20] and Alvin[21]both took the witness stand and, by way

of corroborative evidence, presented the testimony of one Alessandro Almoden[22] who claimed to have referred Antonia

to Gemma for the purpose of obtaining a loan. By way of defense evidence, on the other hand, FEBTC-BPI adduced the

oral evidence elicited from Eleanor Abellare, its Account Officer who handled Gemmas loans,[23] and Zenaida Torres, the

National Bureau of Investigation (NBI) Document Examiner who, after analyzing Antonias specimen signatures on the 7

May 1996 Deed of Real Estate Mortgage and 4 November 1997 Deed of Absolute Sale,[24] issued NBI Questioned
Documents Report No. 482-802 to the effect, among others, that said signatures were written by one and the same

person.[25]

On 18 December 2007, the RTC went on to render a Decision finding that the subject property was conjugal in

nature and that the 4 November 1997 Deed of Absolute Sale Antonia executed in favor of Gemma was void as a

disposition without the liquidation required under Article 130 of the Family Code. Brushing aside FEBTC-BPIs claim of good

faith,[26] the RTC disposed of the case in the following wise:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in favor of the plaintiffs and
against the defendants, as follows:

1). Declaring the Deed of Absolute dated November 04, 1997 in favor of defendant,
[Gemma] as null and void;

2). Ordering defendant [FEBTC-BPI] to execute a deed of reconveyance in favor of

the [Dela Peas] involving the subject property now covered by Transfer Certificate
of Title No. 415392 in the name of [FEBTC-BPI];

3). Ordering [Gemma] to pay the [Dela Peas] the following:

a). the amount of P200,000.00 as moral damages; and
b). the amount of P20,000.00 as and for attorneys fees; and
c). costs of the suit

On the cross-claim, [Gemma] is hereby ordered to pay [FEBTC-BPI] the amount of P2,029,317.17 as of
November 10, 1999, with twelve (12%) percent interest per annum until fully paid.

SO ORDERED.[27]

Aggrieved, FEBTC-BPI perfected the appeal which was docketed before the CA as CA-G.R. CV No. 90485. On

31 March 2009 the CAs Second Division rendered the herein assailed decision, reversing the RTCs appealed decision, upon

the following findings and conclusions: (a) the property was paraphernal in nature for failure of the Dela Peas to prove

that the same was acquired during Antonias marriage to Antegono; (b) having misled Gemma into believing that the

property was exclusively hers, Antonia is barred from seeking the annulment of the 4 November 1997 Deed of Absolute

Sale; (c) Antonias claim that her signature was forged is belied by her admission in the pleadings that she was misled by

Gemma into executing said Deed of Absolute Sale and by NBI Questioned Document Report No. 482-802; and, (d) FEBTC-

BPI is a mortgagee in good faith and for value since Gemmas 26 November 1997 execution of the real estate mortgage

in its favor predated Antonias 3 March 1998 Affidavit of Adverse Claim and the 10 December 1999 annotation of a Notice

of Lis Pendens on TCT No. 337834.[28]

 The Issues

The Dela Peas seek the reversal of the assailed 31 March 2009 CA decision upon the affirmative of following

issues, to wit:

1) Whether or not the CA erred in reversing the RTC holding the house and lot covered by TCT
No. N-32315 conjugal property of the spouses Antegono and Antonia Dela Pea;

2) Whether or not the CA erred in reversing the RTC declaring null and void the Deed of
Absolute Sale executed by Antonia to (Gemma); and

3. Whether or not the CA erred in reversing the RTC holding (FEBTC-BPI) a mortgagee/purchaser
in bad faith.[29]

The Courts Ruling

The petition is bereft of merit.

Pursuant to Article 160 of the Civil Code of the Philippines, all property of the marriage is presumed to belong to

the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the wife. Although it is not

necessary to prove that the property was acquired with funds of the partnership,[30] proof of acquisition during the marriage

is an essential condition for the operation of the presumption in favor of the conjugal partnership.[31] In the case

of Francisco vs. Court of Appeals,[32] this Court categorically ruled as follows:

Article 160 of the New Civil Code provides that "all property of the marriage is presumed to
belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to
the wife." However, the party who invokes this presumption must first prove that the property in
controversy was acquired during the marriage. Proof of acquisition during the coverture is a
condition sine qua non for the operation of the presumption in favor of the conjugal partnership. The
party who asserts this presumption must first prove said time element. Needless to say, the presumption
refers only to the property acquired during the marriage and does not operate when there is no showing
as to when property alleged to be conjugal was acquired. Moreover, this presumption in favor of
conjugality is rebuttable, but only with strong, clear and convincing evidence; there must be a strict
proof of exclusive ownership of one of the spouses.[33]

As the parties invoking the presumption of conjugality under Article 160 of the Civil Code, the Dela Peas did not even

come close to proving that the subject property was acquired during the marriage between Antonia and

Antegono. Beyond Antonias bare and uncorroborated assertion that the property was purchased when she was already

married,[34] the record is bereft of any evidence from which the actual date of acquisition of the realty can be
ascertained. When queried about the matter during his cross-examination, even Alvin admitted that his sole basis for

saying that the property was owned by his parents was Antonias unilateral pronouncement to the effect.[35] Considering

that the presumption of conjugality does not operate if there is no showing of when the property alleged to be conjugal

was acquired,[36] we find that the CA cannot be faulted for ruling that the realty in litigation was Antonias exclusive

property.

Not having established the time of acquisition of the property, the Dela Peas insist that the registration thereof in the name

of Antonia R. Dela Pea, of legal age, Filipino, married to Antegono A. Dela Pea should have already sufficiently established

its conjugal nature. Confronted with the same issue in the case Ruiz vs. Court of Appeals,[37] this Court ruled, however, that

the phrase married to is merely descriptive of the civil status of the wife and cannot be interpreted to mean that the

husband is also a registered owner. Because it is likewise possible that the property was acquired by the wife while she was

still single and registered only after her marriage, neither would registration thereof in said manner constitute proof that the

same was acquired during the marriage and, for said reason, to be presumed conjugal in nature. Since there is no showing

as to when the property in question was acquired, the fact that the title is in the name of the wife alone is determinative

of its nature as paraphernal, i.e., belonging exclusively to said spouse.[38]

Viewed in light of the paraphernal nature of the property, the CA correctly ruled that the RTC reversibly erred in nullifying

Antonias 4 November 1997 sale thereof in favor of Gemma, for lack of the liquidation required under Article 130 of

the Family Code.[39] That Antonia treated the realty as her own exclusive property may, in fact, be readily gleaned from

her utilization thereof as security for the payment of the P250,000.00 loan she borrowed from Aguila.[40] Despite Gemmas

forfeiture of the right to present evidence on her behalf, her alleged alteration of the 7 May 1996 Deed of Real Estate

Mortgage to shorten the maturity of the loan secured thereby was also properly brushed aside by the CA. The double lie

inherent in Antonias assertion that the same deed was altered by Gemma to shorten the maturity of the loan to 1997

instead of 1998 is instantly evident from paragraph 1 of the document which, consistent with 7 July 1996 maturity date

provided in the Promissory Note she executed,[41] specifically stated that (t)his contract is for a period of Three (3) months

from the date of this instrument.[42]

Antonias evident lack of credibility also impels us to uphold the CAs rejection of her version of the circumstances

surrounding the execution of the 4 November 1997 Deed of Absolute Sale in favor of Gemma. In disavowing authorship of

the signature appearing on said deed,[43] Antonia contradicted the allegation in the Dela Peas complaint that she was

misled by Gemma into signing the same document.[44] The rule is well-settled that judicial admissions like those made in

the pleadings are binding and cannot be contradicted, absent any showing that the same was made thru palpable

mistake.[45] Alongside that appearing on the Deed of Real Estate Mortgage she admitted executing in favor of Aguila,

Antonias signature on the Deed of Absolute Sale was, moreover, found to have been written by one and the same person

in Questioned Document Report No. 482-802 prepared by Zenaida Torres, the NBI Document Examiner to whom said
specimen signatures were submitted for analysis.[46] Parenthetically, this conclusion is borne out by our comparison of the

same signatures.

For all of Antonias denial of her receipt of any consideration for the sale of the property in favor of Gemma,[47] the evidence

on record also lend credence to Gemmas version of the circumstances surrounding the execution of the assailed 4

November 1997 Deed of Absolute Sale. Consistent with Gemmas claim that said deed was executed to facilitate the loans

she obtained from FEBTC-BPI which were agreed to be used as payment of the sums she expended to settle the

outstanding obligation to Aguila and the P50,000.00 she loaned Antonia,[48] the latter admitted during her direct

examination that she did not pay the loan she obtained from Aguila.[49] Presented as witness of the Dela Peas, Alessandro

Almoden also admitted that Gemma had extended a loan in the sum of P50,000.00 in favor of Antonia. Notably,

Alessandro Almodens claim that the title to the property had been delivered to Gemma as a consequence of the

transaction[50] is at odds with Antonias claim that she presented said document to the Registry of Deeds when she verified

the status of the property prior to the filing of the complaint from which the instant suit originated.[51]

With the material contradictions in the Dela Peas evidence, the CA cannot be faulted for upholding the validity of the

impugned 4 November 1997 Deed of Absolute Sale. Having been duly notarized, said deed is a public document which

carries the evidentiary weight conferred upon it with respect to its due execution.[52] Regarded as evidence of the facts

therein expressed in a clear, unequivocal manner,[53] public documents enjoy a presumption of regularity which may only

be rebutted by evidence so clear, strong and convincing as to exclude all controversy as to falsity.[54] The burden of proof

to overcome said presumptions lies with the party contesting the notarial document[55] like the Dela Peas who,

unfortunately, failed to discharge said onus. Absent clear and convincing evidence to contradict the same, we find that

the CA correctly pronounced the Deed of Absolute Sale was valid and binding between Antonia and Gemma.

Since foreclosure of the mortgage is but the necessary consequence of non-payment of the mortgage debt,[56] FEBTC-BPI

was, likewise, acting well within its rights as mortgagee when it foreclosed the real estate mortgage on the property upon

Gemmas failure to pay the loans secured thereby. Executed on 26 November 1997, the mortgage predated Antonias

filing of an Affidavit of Adverse Claim with the Register of Deeds of Marikina on 3 March 1998 and the annotation of

a Notice of Lis Pendens on TCT No. 337834 on 10 December 1999. The mortgage directly and immediately subjects the

property upon which it is imposed, whoever the possessor may be, to the fulfilment of the obligation for whose security it

was constituted.[57] When the principal obligation is not paid when due, the mortgagee consequently has the right to

foreclose the mortgage, sell the property, and apply the proceeds of the sale to the satisfaction of the unpaid loan.[58]

Finally, the resolution of this case cannot be affected by the principles that banks like FEBTC-BPI are expected to

exercise more care and prudence than private individuals in that their dealings because their business is impressed with

public interest[59] and their standard practice is to conduct an ocular inspection of the property offered to be mortgaged

and verify the genuineness of the title to determine the real owner or owners thereof, hence, the inapplicability of the
general rule that a mortgagee need not look beyond the title does not apply to them.[60] The validity of the Deed of

Absolute Sale executed by Antonia in favor of Gemma having been upheld, FEBTC-BPIs supposed failure to ascertain the

ownership of the property has been rendered immaterial for the purpose of determining the validity of the mortgage

executed in its favor as well as the subsequent extrajudicial foreclosure thereof.

WHEREFORE, premises considered, the petition is DENIED for lack of merit and the assailed CA Decision dated 31 March

2009 is, accordingly, AFFIRMED in toto.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIA LOURDES P. A. SERENO

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 171904 August 7, 2013

BOBBY TAN, PETITIONER,

vs.
GRACE ANDRADE, PROCESO ANDRADE, JR., CHARITY A. SANTIAGO, HENRY ANDRADE, ANDREW ANDRADE, JASMIN BLAZA,
GLORY ANDRADE, MIRIAM ROSE ANDRADE, AND JOSEPH ANDRADE,RESPONDENTS.

x-----------------------x

G.R. No. 172017

GRACE ANDRADE, CHARITY A. SANTIAGO, HENRY ANDRADE, ANDREW ANDRADE, JASMIN BLAZA, MIRIAM ROSE ANDRADE,
AND JOSEPH ANDRADE, PETITIONERS,
vs.
BOBBY TAN, RESPONDENT.

DECISION

PERLAS-BERNABE, J.:

Before the Court are consolidated petitions for review on certiorari1 assailing the Decision2 dated July 26, 2005 and
Resolution3 dated March 3, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 71987 which affirmed with modification
the Judgment[4] dated April 6, 2001 of the Regional Trial Court of Cebu City, Branch 19 (RTC) in Civil Case No. CEB 20969.

The Facts

Rosario Vda. De Andrade (Rosario) was the registered owner of four parcels of land known as Lots 17, 18, 19, and
205 situated in Cebu City (subject properties) which she mortgaged to and subsequently foreclosed by one Simon6Diu
(Simon).7 When the redemption period was about to expire, Rosario sought the assistance of Bobby Tan (Bobby) who
agreed to redeem the subject properties.8 Thereafter, Rosario sold the same to Bobby and her son, Proceso Andrade, Jr.
(Proceso, Jr.), for ₱100,000.00 as evidenced by a Deed of Absolute Sale9 dated April 29, 1983 (subject deed of sale). On
July 26, 1983, Proceso, Jr. executed a Deed of Assignment,10 ceding unto Bobby his rights and interests over the subject
properties in consideration of ₱50,000.00. The Deed of Assignment was signed by, among others, Henry Andrade (Henry),
one of Rosario’s sons, as instrumental witness. Notwithstanding the aforementioned Deed of Assignment, Bobby
extended an Option to Buy11 the subject properties in favor of Proceso, Jr., giving the latter until 7:00 in the evening of
July 31, 1984 to purchase the same for the sum of ₱310,000.00. When Proceso, Jr. failed to do so, Bobby consolidated his
ownership over the subject properties, and the TCTs12 therefor were issued in his name.

On October 7, 1997, Rosario’s children, namely, Grace, Proceso, Jr., Henry, Andrew, Glory, Miriam Rose, Joseph (all
surnamed Andrade), Jasmin Blaza, and Charity A. Santiago (Andrades), filed a complaint13 for reconveyance and
annulment of deeds of conveyance and damages against Bobby before the RTC, docketed as Civil Case No. CEB
20969. In their complaint, they alleged that the transaction between Rosario and Bobby (subject transaction) was not
one of sale but was actually an equitable mortgage which was entered into to secure Rosario’s indebtedness with
Bobby. They also claimed that since the subject properties were inherited by them from their father, Proceso Andrade, Sr.
(Proceso, Sr.), the subject properties were conjugal in nature, and thus, Rosario had no right to dispose of their respective
shares therein. In this light, they argued that they remained as co-owners of the subject properties together with Bobby,
despite the issuance of the TCTs in his name.

In his defense, Bobby contended that the subject properties were solely owned by Rosario per the TCTs issued in her
name14 and that he had validly acquired the same upon Proceso, Jr.’s failure to exercise his option to buy back the
subject properties.15 He also interposed the defenses of prescription and laches against the Andrades.16

The RTC Ruling

On April 6, 2001, the RTC rendered a Judgment17 dismissing the Andrades’ complaint.

It ruled that the subject transaction was a bona fide sale and not an equitable mortgage as can be gleaned from its
terms and conditions, noting further that the subject deed of sale was not even questioned by the Andrades at the time
of its execution. As Proceso, Jr. failed to exercise his option to buy back the subject properties, the titles thereto were
validly consolidated in Bobby’s favor, resulting to the issuance of TCTs in his name which are deemed to be conclusive
proof of his ownership thereto.18 As regards the nature of the subject properties, the RTC found that they "appeared to
be the exclusive properties of Rosario."19 Finally, it found that the Andrades’ claim over the subject properties had
already prescribed and that laches had already set in.20

Dissatisfied, the Andrades elevated the matter on appeal.

The CA Ruling

On July 26, 2005, the CA rendered the assailed Decision21 upholding in part the RTC’s ruling.

It found that the subject deed of sale was indeed what it purports to be, i.e., a bona fide contract of sale. In this accord,
it denied the Andrades’ claim that the subject transaction was an equitable mortgage since their allegation that the
purchase price was unusually low was left unsupported by any evidence. Also, their averment that they have been in
continuous possession of the subject properties was belied by the testimony of Andrew Andrade (Andrew) who stated
that Bobby was already in possession of the same. 22

Nevertheless, the CA ruled that the subject properties belong to the conjugal partnership of Rosario and her late
husband, Proceso, Sr., and thus, she co-owned the same together with her children, the Andrades.23 In this respect, the
sale was valid only with respect to Rosario’s pro-indiviso share in the subject properties and it cannot prejudice the share
of the Andrades since they did not consent to the sale.24 In effect, a resulting trust was created between Bobby and the
Andrades25 and, as such, prescription and/or laches has yet to set in so as to bar them from instituting the instant
case.26 Accordingly, the CA ordered Bobby to reconvey to the Andrades their share in the subject properties.27

In view of the CA’s pronouncement, the parties filed their respective motions for reconsideration. For the Andrades’ part,
they sought the reconsideration of the CA’s finding as to its characterization of the subject transaction as one of sale,
insisting that it is actually an equitable mortgage.28 As for Bobby’s part, he maintained that the sale should have covered
the entirety of the subject properties and not only Rosario’s pro-indiviso share.29 Both motions for reconsideration were,
however, denied by the CA in a Resolution30 dated March 3, 2006.

Hence, the present consolidated petitions.

 Issues Before the Court

The present controversy revolves around the CA’s characterization of the subject properties as well as of the subject
transaction between Rosario and Bobby.

In G.R. No. 172017, the Andrades submit that the CA erred in ruling that the subject transaction is in the nature of a sale,
while in G.R. No. 171904, Bobby contends that the CA erred in ruling that the subject properties are conjugal in nature.

The Court’s Ruling

A. Characterization of the subject transaction.

Settled is the rule that when the trial court's factual findings have been affirmed by the CA, said findings are generally
conclusive and binding upon the Court, and may no longer be reviewed on Rule 45 petitions.31 While there exists
exceptions to this rule – such as when the CA’s and RTC’s findings are in conflict with each other32 – the Court observes
that none applies with respect to the ruling that the subject transaction was one of sale and not an equitable mortgage.
Records readily reveal that both the RTC and the CA observed that there is no clear and convincing evidence to show
that the parties agreed upon a mortgage. Hence, absent any glaring error therein or any other compelling reason to
hold otherwise, this finding should now be deemed as conclusive and perforce must stand. As echoed in the case of
Ampo v. CA:33

x x x Factual findings of the Court of Appeals are conclusive on the parties and not reviewable by this Court – and they
carry even more weight when the Court of Appeals affirms the factual findings of the trial court, and in the absence of
any showing that the findings complained of are totally devoid of support in the evidence on record, or that they are so
glaringly erroneous as to constitute serious abuse of discretion, such findings must stand.34

Consequently, the Andrades’ petition in G.R. No. 172017 must therefore be denied.

B. Characterization of the subject properties.

With respect to the nature of the subject properties, the courts a quo were at variance such that the RTC, on the one
hand, ruled that the said properties were exclusive properties of Rosario,35 while the CA, on the other hand, pronounced
that they are conjugal in nature.36 In this regard, the consequent course of action would be for the Court to conduct a
re-examination of the evidence if only to determine which among the two is correct, 37 as an exception to the
proscription in Rule 45 petitions.

Pertinent to the resolution of this second issue is Article 160 of the Civil Code38 which states that "[a]ll property of the
marriage is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the
husband or to the wife." For this presumption to apply, the party invoking the same must, however, preliminarily prove
that the property was indeed acquired during the marriage. As held in Go v. Yamane:39

x x x As a condition sine qua non for the operation of [Article 160] in favor of the conjugal partnership, the party who
invokes the presumption must first prove that the property was acquired during the marriage.

In other words, the presumption in favor of conjugality does not operate if there is no showing of when the property
alleged to be conjugal was acquired. Moreover, the presumption may be rebutted only with strong, clear, categorical
and convincing evidence. There must be strict proof of the exclusive ownership of one of the spouses, and the burden of
proof rests upon the party asserting it.40 (Citations omitted)

Corollarily, as decreed in Valdez v. CA,41 the presumption under Article 160 cannot be made to apply where there is no
showing as to when the property alleged to be conjugal was acquired:

x x x The issuance of the title in the name solely of one spouse is not determinative of the conjugal nature of the property,
since there is no showing that it was acquired during the marriage of the Spouses Carlos Valdez, Sr. and Josefina L.
Valdez. The presumption under Article 160 of the New Civil Code, that property acquired during marriage is conjugal,
does not apply where there is no showing as to when the property alleged to be conjugal was acquired. The
presumption cannot prevail when the title is in the name of only one spouse and the rights of innocent third parties are
involved. Moreover, when the property is registered in the name of only one spouse and there is no showing as to when
the property was acquired by same spouse, this is an indication that the property belongs exclusively to the said spouse.
In this case, there is no evidence to indicate when the property was acquired by petitioner Josefina.1âwphi1 Thus, we
agree with petitioner Josefina’s declaration in the deed of absolute sale she executed in favor of the respondent that
she was the absolute and sole owner of the property. x x x.42

In this case, records reveal that the conjugal partnership of Rosario and her husband was terminated upon the latter’s
death on August 7, 197843 while the transfer certificates of title over the subject properties were issued on September 28,
1979 and solely in the name of "Rosario Vda. de Andrade, of legal age, widow, Filipino."44 Other than their bare
allegation, no evidence was adduced by the Andrades to establish that the subject properties were procured during
the coverture of their parents or that the same were bought with conjugal funds. Moreover, Rosario’s declaration that
she is the absolute owner of the disputed parcels of land in the subject deed of sale45 was not disputed by her son
Proceso, Jr., who was a party to the same. Hence, by virtue of these incidents, the Court upholds the RTC’s finding46 that
the subject properties were exclusive or sole properties of Rosario.

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

Records disclose that the Andrades took 14 years before filing their complaint for reconveyance in 1997. The argument
that they did not know about the subject transaction is clearly belied by the facts on record. It is undisputed that
Proceso, Jr. was a co-vendee in the subject deed of sale,48 while Henry was an instrumental witness to the Deed of
Assignment49 and Option to Buy50 both dated July 26, 1983. Likewise, Rosario’s sons, Proceso, Jr. and Andrew, did not
question the execution of the subject deed of sale made by their mother to Bobby.51 These incidents can but only lead
to the conclusion that they were well-aware of the subject transaction and yet only pursued their claim 14 years after
the sale was executed.

Due to the above-stated reasons, Bobby’s petition in G.R. No. 171904 is hereby granted.

WHEREFORE, the Court hereby (a) GRANTS the petition of Bobby Tan in G.R. No. 171904; and (b) DENIES the petition of
Grace Andrade, Charity A. Santiago, Henry Andrade, Andrew Andrade, Jasmin Blaza, Miriam Rose Andrade, and
Joseph Andrade in G.R. No. 172017. Accordingly, the Decision dated July 26, 2005 and Resolution dated March 3, 2006
of the Court of Appeals in CA-G.R. CV No. 71987 are hereby REVERSED and SET ASIDE, and the April 6, 2001 Decision of
the Regional Trial Court of Cebu City, Branch 19 in Civil Case No. CEB 20969 is REINSTATED.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the cases were assigned to
the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the cases were assigned to the writer of the
opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-28589 January 8, 1973

RAFAEL ZULUETA, ET AL., plaintiffs-appellees,

vs.
PAN AMERICAN WORLD AIRWAYS, INC., defendant-appellant.

Alfredo L. Benipayo for plaintiffs-appellee Rafael Zulueta and Carolina Zulueta.

Justo L. Albert for plaintiff-appellee Telly Albert Zulueta.

V.E. del Rosario and Associates and Salcedo, Del Rosario, Bito, Misa and Lozada for defendant-appellant.

RESOLUTION

CONCEPCION, C.J.:

Both parties in this case have moved for the reconsideration of the decision of this Court promulgated on February 29,
1972. Plaintiffs maintain that the decision appealed from should be affirmed in toto. The defendant, in turn, prays that
the decision of this Court be "set aside ... with or without a new trial, ... and that the complaint be dismissed, with costs;
or, in the alternative, that the amount of the award embodied therein be considerably reduced." .

Subsequently to the filing of its motion for reconsideration, the defendant filed a "petition to annul proceedings and/or to
order the dismissal of plaintiffs-appellees' complaint" upon the ground that "appellees' complaint actually seeks the
recovery of only P5,502.85 as actual damages, because, for the purpose of determining the jurisdiction of the lower
court, the unspecified sums representing items of alleged damages, may not be considered, under the settled doctrines
of this Honorable Court," and "the jurisdiction of courts of first instance when the complaint in the present case was filed
on Sept. 30, 1965" was limited to cases "in which the demand, exclusive of interest, or the value of the property in
controversy amounts to more than ten thousand pesos" and "the mere fact that the complaint also prays for unspecified
moral damages and attorney's fees, does not bring the action within the jurisdiction of the lower court."

We find no merit in this contention. To begin with, it is not true that "the unspecified sums representing items or other
alleged damages, may not be considered" — for the purpose of determining the jurisdiction of the court — "under the
settled doctrines of this Honorable Court." In fact, not a single case has been cited in support of this allegation.

Secondly, it has been held that a clam for moral damages is one not susceptible of pecuniary estimation.1 In fact, Article
2217 of the Civil Code of the Philippines explicitly provides that "(t)hough incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of the defendant's wrongful act or omission." Hence, "(n)o
proof pecuniary loss necessary" — pursuant to Article 2216 of the same Code — "in order that moral ... damages may be
adjudicated." And "(t)he assessment of such damages ... is left to the discretion of the court" - said article adds -
"according to the circumstances of each case." Appellees' complaint is, therefore, within the original jurisdiction of courts
of first instance, which includes "all civil actions in which the subject of the litigation is not capable of pecuniary
estimation."2

Thirdly, in its answer to plaintiffs' original and amended complainants, defendant had set up a counterclaim in the
aggregate sum of P12,000, which is, also, within the original jurisdiction of said courts, thereby curing the alleged defect if
any, in plaintiffs' complaint.3

We need not consider the jurisdictional controversy as to the amount the appellant sues to recover
because the counterclaim interposed establishes the jurisdiction of the District Court. Merchants' Heat
& Light Co. v. James B. Clow & Sons, 204 U.S. 286, 27 S. Ct. 285, 51 L. Ed. 488; O. J. Lewis Mercantile Co.
v. Klepner, 176 F. 343 (C.C.A. 2), certiorari denied 216 U.S. 620, 30 S Ct. 575, 54 L. Ed. 641. ... .4

... courts have said that "when the jurisdictional amount is in question, the tendering of a counterclaim
in an amount which in itself, or added to the amount claimed in the petition, makes up a sum equal
to the amount necessary to the jurisdiction of this court, jurisdiction is established, whatever may be
the state of the plaintiff's complaint." American Sheet & Tin Plate Co. v. Winzeler (D.C.) 227 F. 321, 324.5

Thus, in Ago v. Buslon,6 We held:

... . Then, too, petitioner's counterclaim for P37,000.00 was, also, within the exclusive original jurisdiction
of the latter courts, and there are ample precedents to the effect that "although the original claim
involves less than the jurisdictional amount, ... jurisdiction can be sustained if the counterclaim (of the
compulsory type)" — such as the one set up by petitioner herein, based upon the damages allegedly
suffered by him in consequence of the filing of said complaint — "exceeds the jurisdictional amount."
(Moore Federal Practice, 2nd ed. [1948], Vol. 3, p. 41; Ginsburg vs. Pacific Mutual Life Ins. Co. of
California, 69 Fed. [2d] 97; Home Life Ins. Co. vs. Sipp., 11 Fed. [2d]474; American Sheet & Tin Plate Co.
vs. Winzeler [D.C.], 227 Fed. 321, 324; Brix vs. People's Mutual Life Ins. Co., 41 P. 2d. 537, 2 Cal. 2d. 446;
Emery vs. Pacific Employees Ins. Co., 67 P. 2d. 1046, 8 Cal. 2d. 663).

Needless to say, having not only failed to question the jurisdiction of the trial court — either in that court or in this Court,
before the rendition of the latter's decision, and even subsequently thereto, by filing the aforementioned motion for
reconsideration and seeking the reliefs therein prayed for — but, also, urged both courts to exercise jurisdiction over the
merits of the case, defendant is now estopped from impugning said jurisdiction.7

Before taking up the specific questions raised in defendant's motion for reconsideration, it should be noted that the same
is mainly predicated upon the premise that plaintiffs' version is inherently incredible, and that this Court should accept
the theory of the defense to the effect that petitioner was off-loaded because of a bomb-scare allegedly arising from his
delay in boarding the aircraft and subsequent refusal to open his bags for inspection. We need not repeat here the
reasons given in Our decision for rejecting defendant's contention and not disturbing the findings of fact of His Honor, the
Trial Judge, who had the decided advantage — denied to Us — of observing the behaviour of the witnesses in the
course of the trial and found those of the plaintiffs worthy of credence, not the evidence for the defense.

It may not be amiss however, to stress the fact that, in his written report, made in transit from Wake to Manila —
or immediately after the occurrence and before the legal implications or consequences thereof could have been the
object of mature deliberation, so that it could, in a way, be considered as part of the res gestae — Capt. Zentner stated
that Zulueta had been off-loaded "due to drinking" and "belligerent attitude," thereby belying the story of the defense
about said alleged bomb-scare, and confirming the view that said agent of the defendant had acted out of
resentment because his ego had been hurt by Mr. Zulueta's adamant refusal to be bullied by him. Indeed, had there
been an iota of truth in said story of the defense, Capt. Zentner would have caused every one of the passengers to be
frisked or searched and the luggage of all of them examined — as it is done now — before resuming the flight from
Wake Island. His failure to do so merely makes the artificious nature of defendant's version more manifest. Indeed, the
fact that Mrs. Zulueta and Miss Zulueta were on board the plane shows beyond doubt that Mr. Zulueta could not possibly
have intended to blow it up.

The defense tries to explain its failure to introduce any evidence to contradict the testimony of Mr. Zulueta as to why he
had gone to the beach and what he did there, alleging that, in the very nature of things, nobody else could have
witnessed it. Moreover, the defense insists, inter alia, that the testimony of Mr. Zulueta is inherently incredible because he
had no idea as to how many toilets the plane had; it could not have taken him an hour to relieve himself in the beach;
there were eight (8) commodes at the terminal toilet for men ; if he felt the need of relieving himself, he would have seen
to it that the soldiers did not beat him to the terminal toilets; he did not tell anybody about the reason for going to the
beach, until after the plane had taken off from Wake.

We find this pretense devoid of merit. Although Mr. Zulueta had to look for a secluded place in the beach to relieve
himself, beyond the view of others, defendant's airport manager, whom Mr. Zulueta informed about it, soon after the
departure of the plane, could have forthwith checked the veracity of Mr. Zulueta's statement by asking him to indicate
the specific place where he had been in the beach and then proceeding thereto for purposes of verification.

Then, again, the passenger of a plane seldom knows how many toilets it has. As a general rule, his knowledge is limited
to the toilets for the class — first class or tourist class — in which he is. Then, too, it takes several minutes for the passengers
of big aircrafts, like those flying from the U.S. to the Philippines, to deplane. Besides, the speed with which a given
passenger may do so depends, largely, upon the location of his seat in relation to the exit door. He cannot go over the
heads of those nearer than he thereto. Again, Mr. Zulueta may have stayed in the toilet terminal for some time,
expecting one of the commodes therein to be vacated soon enough, before deciding to go elsewhere to look for a
place suitable to his purpose. But he had to walk, first, from the plane to the terminal building and, then, after vainly
waiting therein for a while, cover a distance of about 400 yards therefrom to the beach, and seek there a place not
visible by the people in the plane and in the terminal, inasmuch as the terrain at Wake Island is flat. What is more, he
must have had to takeoff part, at least, of his clothing, because, without the facilities of a toilet, he had to wash himself
and, then, dry himself up before he could be properly attired and walk back the 400 yards that separated him from the
terminal building and/or the plane. Considering, in addition to the foregoing, the fact that he was not feeling well, at
that time, We are not prepared to hold that it could not have taken him around an hour to perform the acts narrated by
him.

But, why — asks the defendant — did he not reveal the same before the plane took off? The record shows that, even
before Mr. Zulueta had reached the ramp leading to the plane, Capt. Zentner was already demonstrating at him in an
intemperate and arrogant tone and attitude ("What do you think you are?), thereby impelling Mr. Zulueta to answer
back in the same vein. As a consequence, there immediately ensued an altercation in the course of which each
apparently tried to show that he could not be cowed by the other. Then came the order of Capt. Zentner to off-load all
of the Zuluetas, including Mrs. Zulueta and the minor Miss Zulueta, as well as their luggage, their overcoats and other
effects handcarried by them; but, Mr. Zulueta requested that the ladies be allowed to continue the trip. Meanwhile, it
had taken time to locate his four (4) pieces of luggage. As a matter of fact, only three (3) of them were found, and the
fourth eventually remained in the plane. In short, the issue between Capt. Zentner and Mr. Zulueta had been limited to
determining whether the latter would allow himself to be browbeaten by the former. In the heat of the altercation,
nobody had inquired about the cause of Mr. Zulueta's delay in returning to the plane, apart from the fact that it was
rather embarrassing for him to explain, in the presence and within the hearing of the passengers and the crew, then
assembled around them, why he had gone to the beach and why it had taken him some time to answer there a call of
nature, instead of doing so in the terminal building.

Defendant's motion for reconsideration assails: (1) the amount of damages awarded as excessive; (2) the propriety of
accepting as credible plaintiffs' theory; (3) plaintiffs' right to recover either moral or exemplary damages; (4) plaintiffs'
right to recover attorney's fees; and (5) the non-enforcement of the compromise agreement between the defendant
and plaintiff's wife, Mrs. Zulueta. Upon the other hand, plaintiffs' motion for reconsideration contests the decision of this
Court reducing the amount of damages awarded by the trial court to approximately one-half thereof, upon the ground,
not only that, contrary to the findings of this Court, in said decision, plaintiff had not contributed to the aggravation of his
altercation or incident with Capt. Zentner by reacting to his provocation with extreme belligerency thereby allowing
himself to be dragged down to the level on which said agent of the defendant had placed himself, but, also, because
the purchasing power of our local currency is now much lower than when the trial court rendered its appealed decision,
over five (5) years ago, on July 5, 1967, which is an undeniable and undisputed fact. Precisely, for this reason,
defendant's characterization as exorbitant of the aggregate award of over P700,000 by way of damages, apart from
attorney's fees in the sum of P75,000, is untenable. Indeed, said award is now barely equivalent to around 100,000 U. S.
dollars.

It further support of its contention, defendant cites the damages awarded in previous cases to passengers of airlines,8 as
well as in several criminal cases, and some cases for libel and slander. None of these cases is, however, in point. Said
cases against airlines referred to passengers who were merely constrained to take a tourist class accommodation,
despite the fact that they had first class tickets, and that although, in one of such cases, there was proof that the airline
involved had acted as it did to give preference to a "white" passenger, this motive was not disclosed until the trial in
court. In the case at bar, plaintiff Rafael Zulueta was "off-loaded" at Wake Island, for having dared to retort to
defendant's agent in a tone and manner matching, if not befitting his intemperate language and arrogant attitude. As
a consequence, Capt. Zentner's attempt to humiliate Rafael Zulueta had boomeranged against him (Zentner), in the
presence of the other passengers and the crew. It was, also, in their presence that defendant's agent had referred to
the plaintiffs as "monkeys," a racial insult not made openly and publicly in the abovementioned previous cases against
airlines.
In other words, Mr. Zulueta was off-loaded, not to protect the safety of the aircraft and its passengers, but to retaliate
and punish him for the embarrassment and loss of face thus suffered by defendant's agent. This vindictive motive is
made more manifest by the note delivered to Mr. Zulueta by defendant's airport manager at Wake Island, Mr. Sitton,
stating that the former's stay therein would be "for a minimum of one week," during which he would be charged $13.30
per day. This reference to a "minimum of one week" revealed the intention to keep him there stranded that long, for no
other plane, headed for Manila, was expected within said period of time, although Mr. Zulueta managed to board, days
later, a plane that brought him to Hawaii, whence he flew back to the Philippines, via Japan.

Neither may criminal cases, nor the cases for libel and slander cited in the defendant's motion for reconsideration, be
equated with the present case. Indeed, in ordinary criminal cases, the award for damages is, in actual practice, of
purely academic value, for the convicts generally belong to the poorest class of society. There is, moreover, a
fundamental difference between said cases and the one at bar. The Zuluetas had a contract of carriage with the
defendant, as a common carrier, pursuant to which the latter was bound, for a substantial monetary considerationpaid
by the former, not merely to transport them to Manila, but, also, to do so with "extraordinary diligence" or "utmost
diligence."9 The responsibility of the common carrier, under said contract, as regards the passenger's safety, is of such a
nature, affecting as it does public interest, that it "cannot be dispensed with" or even "lessened by stipulation, by the
posting of notices, by statements on tickets, or otherwise." 10 In the present case, the defendant did not only fail to
comply with its obligation to transport Mr. Zulueta to Manila, but, also, acted in a manner calculated to humiliate him, to
chastise him, to make him suffer, to cause to him the greatest possible inconvenience, by leaving him in a desolate
island, in the expectation that he would be stranded there for a "minimum of one week" and, in addition thereto,
charged therefor $13.30 a day.

It is urged by the defendant that exemplary damages are not recoverable in quasi-delicts, pursuant to Article 2231 of
our Civil Code, except when the defendant has acted with "gross negligence," and that there is no specific finding that
it had so acted. It is obvious, however, that in off-loading plaintiff at Wake Island, under the circumstances heretofore
adverted to, defendant's agents had acted with malice aforethought and evident bad faith. If "gross negligence"
warrants the award of exemplary damages, with more reason is its imposition justified when the act performed is
deliberate, malicious and tainted with bad faith. Thus, in Lopez v. PANAM, 11 We held:

The rationale behind exemplary or corrective damages is, as the name implies, to provide an
example or correction for public good. Defendant having breached its contracts in bad faith, the
court, as stated earlier, may award exemplary damages in addition to moral damages (Articles 2229,
2232, New Civil Code.)

Similarly, in NWA v. Cuenca, 12 this Court declared that an award for exemplary damages was justified by the fact that
the airline's "agent had acted in a wanton, reckless and oppressive manner" in compelling Cuenca, upon arrival at
Okinawa, to transfer, over his objection, from the first class, where he was accommodated from Manila to Okinawa, to
the tourist class, in his trip to Japan, "under threat of otherwise leaving him in Okinawa," despite the fact that he had paid
in full the first class fare and was issued in Manila a first class ticket.

Defendant cites Rotea v. Halili, 13 in support of the proposition that a principal is not liable for exemplary damages owing
to acts of his agent unless the former has participated in said acts or ratified the same. Said case involved, however, the
subsidiary civil liability of an employer arising from criminal acts of his employee, and "exemplary damages ... may be
imposed when the crime was committed with one or more aggravating circumstances." 14Accordingly, the Rotea case is
not in point, for the case at bar involves a breach of contract, as well as a quasi-delict.

Neither may the case of Palisoc v. Brillantes, 15 invoked by the defendant, be equated with the case at bar. The Palisoc
case dealt with the liability of school officials for damages arising from the death of a student (Palisoc) due to fist blows
given by another student (Daffon), in the course of a quarrel between them, while in a laboratory room of the Manila
Technical Institute. In an action for damages, the head thereof and the teacher in charge of said laboratory were held
jointly and severally liable with the student who caused said death, for failure of the school to provide "adequate
supervision over the activities of the students in the school premises," to protect them "from harm, whether at the hands
of fellow students or other parties." Such liability was predicated upon Article 2180 of our Civil Code, the pertinent part of
which reads:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by
their pupils and students or apprentices, so long as they remain in their custody.
 xxx xxx xxx

Obviously, the amount of damages warded in the Palisoc case is not and cannot serve as the measure of the damages
recoverable in the present case, the latter having been caused directly and intentionally by an employee or agent of
the defendant, whereas the student who killed the young Palisoc was in no wise an agent of the school. Moreover, upon
her arrival in the Philippines, Mrs. Zulueta reported her husband's predicament to defendant's local manager and asked
him to forthwith have him (Mr. Zulueta) brought to Manila, which defendant's aforementioned manager refused to do,
thereby impliedly ratifying the off-loading of Mr. Zulueta at Wake Island.

It is next urged that, under the contract of carriage with the defendant, Mr. Zulueta was bound to be present at the time
scheduled for the departure of defendant's plane and that he had, consequently, violated said contract when he did
not show up at such time. This argument might have had some weight had defendant's plane taken off beforeMr.
Zulueta had shown up. But the fact is that he was ready, willing and able to board the plane about two hours before it
actually took off, and that he was deliberately and maliciously off-loaded on account of his altercation with Capt.
Zentner. It should, also, be noted that, although Mr. Zulueta was delayed some 20 to 30 minutes, the arrival or departure
of planes is often delayed for much longer periods of time. Followed to its logical conclusion, the argument adduced by
the defense suggests that airlines should be held liable for damages due to the inconvenience and anxiety, aside from
actual damages, suffered by many passengers either in their haste to arrive at the airport on scheduled time just to find
that their plane will not take off until later, or by reason of the late arrival of the aircraft at its destination.

PANAM impugns the award of attorney's fees upon the ground that no penalty should be imposed upon the right to
litigate; that, by law, it may be awarded only in exceptional cases; that the claim for attorney's fees has not been
proven; and that said defendant was justified in resisting plaintiff's claim "because it was patently exorbitant."

Nothing, however, can be farther from the truth. Indeed apart from plaintiff's claim for actual damages, the amount of
which is not contested, plaintiffs did not ask any specific sum by way of exemplary and moral damages, as well as
attorney's fees, and left the amount thereof to the "sound discretion" of the lower court. This, precisely, is the reason why
PANAM, now, alleges — without justification that the lower court had no jurisdiction over the subject matter of the
present case.

Moreover, Article 2208 of our Civil Code expressly authorizes the award of attorney's fees "when exemplary damages are
awarded," — as they are in this case —as well as "in any other case where the court deems it just and equitable that
attorney's fees ... be recovered," and We so deem it just and equitable in the present case, considering the "exceptional"
circumstances obtaining therein, particularly the bad faith with which defendant's agent had acted, the place where
and the conditions under which Rafael Zulueta was left at Wake Island, the absolute refusal of defendant's manager in
Manila to take any step whatsoever to alleviate Mr. Zulueta's predicament at Wake and have him brought to Manila —
which, under their contract of carriage, was defendant's obligation to discharge with "extra-ordinary" or "utmost"
diligence — and, the "racial" factor that had, likewise, tainted the decision of defendant's agent, Capt. Zentner, to off-
load him at Wake Island.

As regards the evidence necessary to justify the sum of P75,000 awarded as attorney's fees in this case, suffice it to say
that the quantity and quality of the services rendered by plaintiffs' counsel appearing on record, apart from the nature
of the case and the amount involved therein, as well as his prestige as one of the most distinguished members of the
legal profession in the Philippines, of which judicial cognizance may be taken, amply justify said award, which is a little
over 10% of the damages (P700,000) collectible by plaintiffs herein. Indeed, the attorney's fees in this case is
proportionally much less than that adjudged in Lopez v. PANAM 16 in which the judgment rendered for attorney's fees
(P50,000) was almost 20% of the damages (P275,000) recovered by the plaintiffs therein.

The defense assails the last part of the decision sought to be reconsidered, in which — relying upon Article 172 of our Civil
Code, which provides that "(t)he wife cannot bind the conjugal partnership without the husband's consent, except in
cases provided by law," and it is not claimed that this is one of such cases — We denied a motion, filed by Mrs. Zulueta,
for the dismissal of this case, insofar as she is concerned - she having settled all her differences with the defendant, which
appears to have paid her the sum of P50,000 therefor - "without prejudice to this sum being deducted from the award
made in said decision." Defendant now alleges that this is tantamount to holding that said compromise agreement is
both effective and ineffective.

This, of course, is not true. The payment is effective, insofar as it is deductible from the award, and, because it is due (or
part of the amount due) from the defendant, with or without its compromise agreement with Mrs. Zulueta. What is
ineffective is the compromise agreement, insofar as the conjugal partnership is concerned. Mrs. Zulueta's motion was for
the dismissal of the case insofar as she was concerned, and the defense cited in support thereof Article 113 of said
Code, pursuant to which "(t)he husband must be joined in all suits by or against the wife except: ... (2) If they have in fact
been separated for at least one year." This provision, We held, however, refers to suits in which the wife is the principal or
real party in interest, not to the case at bar, "in which the husband is the main party in interest, both as the person
principally aggrieved and as administrator of the conjugal partnership ... he having acted in this capacity in entering into
the contract of carriage with PANAM and paid the amount due to the latter, under the contract, with funds of the
conjugal partnership," to which the amounts recoverable for breach of said contract, accordingly, belong. The
damages suffered by Mrs. Zulueta were mainly an in accident of the humiliation to which her husband had been
subjected. The Court ordered that said sum of P50,00 paid by PANAM to Mrs. Zulueta be deducted from the aggregate
award in favor of the plaintiffs herein for the simple reason that upon liquidation of the conjugal partnership, as provided
by law, said amount would have to be reckoned with, either as part of her share in the partnership, or as part of the
support which might have been or may be due to her as wife of Rafael Zulueta. It would surely be inane to sentence the
defendant to pay the P700,000 due to the plaintiffs and to direct Mrs. Zulueta to return said P50,000 to the defendant.

In this connection, it is noteworthy that, for obvious reasons of public policy, she is not allowed by law to waive her share
in the conjugal partnership, before the dissolution thereof. 17 She cannot even acquire any property by gratuitous title,
without the husband's consent, except from her ascendants, descendants, parents-in-law, and collateral relatives within
the fourth degree. 18

It is true that the law favors and encourages the settlement of litigations by compromise agreement between the
contending parties, but, it certainly does not favor a settlement with one of the spouses, both of whom are plaintiffs or
defendants in a common cause, such as the defense of the rights of the conjugal partnership, when the effect, even if
indirect, of the compromise is to jeopardize "the solidarity of the family" — which the
law 19 seeks to protect — by creating an additional cause for the misunderstanding that had arisen between such
spouses during the litigation, and thus rendering more difficult a reconciliation between them.

It is urged that there is no proof as to the purpose of the trip of the plaintiffs, that neither is there any evidence that the
money used to pay the plane tickets came from the conjugal funds and that the award to Mrs. Zulueta was for her
personal suffering or injuries. There was, however, no individual or specific award in favor of Mrs. Zulueta or any of the
plaintiffs. The award was made in their favor collectively. Again, in the absence of said proof, the presumption is that the
purpose of the trip was for the common benefit of the plaintiffs and that the money had come from the conjugal funds,
for, unless there is proof to the contrary, it is presumed "(t)hat things have happened according to the ordinary course of
nature and the ordinary habits of life." 20 In fact Manresa maintains 21 that they are deemed conjugal, when the source
of the money used therefor is not established, even if the purchase had been made by the wife. 22 And this is the rule
obtaining in the Philippines. Even property registered, under the Torrens system, in the name of one of the spouses, or in
that of the wife only, if acquired during the marriage, is presumed to belong to the conjugal partnership, unless there is
competent proof to the contrary. 23

PANAM maintains that the damages involved in the case at bar are not among those forming part of the conjugal
partnership pursuant to Article 153 of the Civil Code, reading:

ART. 153. The following are conjugal partnership property:

(1) That which is acquired by onerous title during the marriage at the expense of the common fund,
whether the acquisition be for the partnership, or for only one of the spouses;

(2) That which is obtained by the industry, or work, or as salary of the spouses, or of either of them;

(3) The fruits, rents or interests received or due during the marriage, coming from the common
property or from the exclusive property of each spouse.

Considering that the damages in question have arisen from, inter alia, a breach of plaintiffs' contract of carriage with the
defendant, for which plaintiffs paid their fare with funds presumably belonging to the conjugal partnership, We hold that
said damages fall under paragraph (1) of said Article 153, the right thereto having been "acquired by onerous title
during the marriage ... ." This conclusion is bolstered up by Article 148 of our Civil Code, according to which:

ART. 148. The following shall be the exclusive property of each spouse:

(1) That which is brought to the marriage as his or her own;

(2) That which each acquires, during the marriage, by lucrative title;
 (3) That which is acquired by right of redemption or by exchange with other property belonging to
only one of the spouses;

(4) That which is purchased with exclusive money of the wife or of the husband.

The damages involved in the case at bar do not come under any of these provisions or of the other provisions forming
part of Chapter 3, Title VI, of Book I of the Civil Code, which chapter is entitled "Paraphernal Property." What is more, if
"(t)hat which is acquired by right of redemption or by exchange with other property belonging to only one of the
spouses," and "(t)hat which is purchased with exclusive money of the wife or of the husband," 24 belong exclusively to
such wife or husband, it follows necessarily that that which is acquired with money of the conjugal partnership belongs
thereto or forms part thereof. The rulings in Maramba v. Lozano 25 and Perez v. Lantin, 26 cited in defendant's motion for
reconsideration, are, in effect, adverse thereto. In both cases, it was merely held that the presumption under Article 160
of our Civil Code — to the effect that all property of the marriage belong to the conjugal partnership — does not apply
unless it is shown that it was acquired during marriage. In the present case, the contract of carriage was concededly
entered into, and the damages claimed by the plaintiffs were incurred, during marriage. Hence, the rights accruing from
said contract, including those resulting from breach thereof by the defendant, are presumed to belong to the conjugal
partnership of Mr. and Mrs. Zulueta. The fact that such breach of contract was coupled, also, with a quasi-delict
constitutes an aggravating circumstance and can not possibly have the effect of depriving the conjugal partnership of
such property rights.

Defendant insists that the use of conjugal funds to redeem property does not make the property redeemed conjugal if
the right of redemption pertained to the wife. In the absence, however, of proof that such right of redemption pertains
to the wife — and there is no proof that the contract of carriage with PANAM or the money paid therefor belongs to Mrs.
Zulueta — the property involved, or the rights arising therefrom, must be presumed, therefore, to form part of the
conjugal partnership.

It is true that in Lilius v. Manila Railroad Co., 27 it was held that the "patrimonial and moral damages" awarded to a young
and beautiful woman by reason of a scar — in consequence of an injury resulting from an automobile accident — which
disfigured her face and fractured her left leg, as well as caused a permanent deformity, are her paraphernal property.
Defendant cites, also, in support of its contention the following passage from Colin y Capitant:

No esta resuelta expresamente en la legislacion española la cuestion de si las indemnizaciones

debidas por accidentes del trabaho tienen la consideracion de gananciales, o son bienes
particulares de los conyuges.

Inclinan a la solucion de que estas indemnizaciones deben ser consideradas como gananciales, el
hecho de que la sociedad pierde la capacidad de trabajocon el accidente, que a ella le
pertenece, puesto que de la sociedad son losfrutos de ese trabajo; en cambio, la consideracion de
que igual manera que losbienes que sustituyen a los que cada conyuge lleva al matrimonio como
propiostienen el caracter de propios, hace pensar que las indemnizaciones que vengana suplir la
capacidad de trabajo aportada por cada conyuge a la sociedad, debenser juridicamente
reputadas como bienes propios del conyuge que haya sufrido elaccidente. Asi se llega a la misma
solucion aportada por la jurisprudencia francesca. 28

This opinion is, however, undecisive, to say the least. It should be noted that Colin y Capitant were commenting on
the French Civil Code; that their comment referred to indemnities due in consequence of "accidentes del trabajo
"resulting in physical injuries sustained by one of the spouses (which Mrs. Zulueta has not suffered); and that said
commentators admit that the question whether or not said damages are paraphernal property or belong to the
conjugal partnership is not settled under the Spanish law. 29 Besides, the French law and jurisprudence — to which the
comments of Planiol and Ripert, likewise, refer — are inapposite to the question under consideration, because they differ
basically from the Spanish law in the treatment of the property relations between husband and wife. Indeed, our Civil
Code, like the Spanish Civil Code, favors the system of conjugal partnership of gains. Accordingly, the former provides
that, "(i)n the absence of marriage settlements, or when the same are void, the system of relative community or conjugal
partnership of gains ... shall govern the property relations between" the spouses. 30Hence, "(a)ll property of the marriage
is presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband or to the
wife." 31

No similar rules are found in the French Civil Code. What is more, under the provisions thereof, the conjugal partnership
exists only when so stipulated in the "capitulaciones matrimoniales" or by way of exception. In the language of Manresa
—
 Prescindimos de los preceptos de los Condigos de Francia, Italia, Holanda, Portugal, Alemania y
Suiza, porsue solo excepcionalmente, o cuando asi se pacta en las capitulaciones, admiten el
sistema de gananciales. 32

Again, Colin y Capitant, as well as the Lilius case, refer to damages recovered for physical injuries suffered by the wife. In
the case at bar, the party mainly injured, although not physically, is the husband.

Accordingly, the other Philippine cases 33 and those from Louisiana — whose civil law is based upon the French Civil
Code — cited by the defendant, which similarly refer to moral damages due to physical injuries suffered by the wife, are,
likewise, inapplicable to the case at bar.

We find, therefore, no plausible reason to disturb the views expressed in Our decision promulgated on February 29, 1972.

WHEREFORE, the motions for reconsideration above-referred to should be, as they are hereby denied.

Makalintal, Zaldivar, Fernando, Makasiar, Antonio and Esguerra, JJ., concur.

Castro and Teehankee, JJ., took no part.

Barredo, J., voted to modify the judgment by reducing the amount of the awarded damages and individualizing the
same, and now reserves the filing of a separate concurring and dissenting opinion in support of his vote.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-31618 August 17, 1983

EFREN R. MENDOZA and INOCENCIA R. DE MENDOZA, petitioner,

vs.
PONCIANO S. REYES and THE COURT OF APPEALS, respondents.

G.R. No. L-31625 August 17, 1983

JULIA R. DE REYES, petitioner,

vs.
PONCIANO S. REYES and COURT OF APPEALS, respondents.

Conrado B. Enriquez and Elpidio G. Navarro for petitioners.

Pacifico M. Castro for respondents.

GUTIERREZ, JR., J.:

Questioned in these consolidated petitions for review on certiorari is the decision of the Court of Appeals, now
Intermediate Appellate Court, reversing the decision of the Court of First Instance of Rizal, Quezon City Branch. The
dispositive portion of the appellate decision reads:

WHEREFORE, (a) the judgment appealed from is hereby reversed; (b) the deed of sale executed by
appellee Julia de Reyes on March 3, 1961 in favor of appellees Efren V. Mendoza and Inocencia R.
Mendoza, covering lots 5 and 6, Block No. 132 of Subdivision Plan Psd. 14841, situated at Retiro Street,
 Quezon City, is hereby declared null and void with respect to one- half share of appellant therein; (c)
the Register of Deeds of Quezon City is hereby directed to cancel TCT Nos. 5611 0 and 56111, now
covering said lots, and to issue, in lieu thereof, certificates of title in favor of appellant Ponciano S.
Reyes for one-half (1/2) pro-indiviso and the spouses Efren V. Mendoza and Inocencia Mendoza for
one-half (1/2) also pro-indiviso; (d) the appellees Mendozas are hereby ordered to pay unto the
appellant the accrued rentals of style properties in litigation due to the share corresponding to said
appellant, at the rate of P350.00 a month from March 3, 1961 until the finality of this decision, with
legal interest thereon; and (e) said appellees are likewise ordered to pay unto the appellant the
amount of THREE THOUSAND (P3,000.00) PESOS as attorney's fees, plus the costs in both instances.

This case originated with the filing of a complaint by Ponciano S. Reyes with the Court of First Instance of Rizal docketed
as Civil Case No. Q-6905, for the annulment of a deed of sale of two parcels of land with their improvements, executed
by his wife, Julia R. De Reyes as vendor and the spouses Efren V. Mendoza and Inocencia R. De Mendoza, as vendees.
Ponciano S. Reyes averred that said properties were conjugal properties of himself and his wife and that she had sold
them to petitioners "all by herself" and without his knowledge or consent.

Petitioners Efren V. Mendoza and Inocencia R. De Mendoza alleged in their answer that the properties were
paraphernal properties of Julia R. de Reyes and that they had purchased the same in good faith and for adequate
consideration. In a separate answer, petitioner Julia R. De Reyes, supported the spouses Mendozas' contentions.

In its decision, the Court of First Instance of Rizal dismissed the complaint and declared the properties in question
exclusive and paraphernal properties of petitioner Julia R. De Reyes. It ruled that she could validly dispose of the same
without the consent of her husband and that the Mendozas are innocent purchasers.

As earlier stated, the Court of Appeals reversed the decision of the court a quo.

The petitioners filed separate petitions for review on certiorari. Efren V. Mendoza and Inocencia R. De Mendoza raised
the following assignments of errors:

THE COURT OF APPEALS ERRED NOT MERELY IN GIVING CREDENCE, BUT IN FACT IN CONSIDERING AT
ALL, PROOF OF THE ALLEGED CONJUGAL CHARACTER OF THE PROPERTIES l-, QUESTION, AND IN NOT
INVOKING THE DOCTRINE -E OF ESTOPPEL TO RULE OUT ANY AND ALL SUCH PROOF ALTOGETHER.

II

THE COURT OF APPEALS ERRED IN FINDING PETITIONERS GUILTY OF BAD FAITH IN PURCHASING THE
PROPERTIES LITIGATED FOR WITHOUT EVIDENCE OF SUCH FACT BEING PRESENTED AND, ON THE
STRENGTH MERELY OF A SIMPLE PRESUMPTION UNWARRANTEDLY DRAWN FROM ONE OF ITS OWN
OBSCURE AND HARDLY AUTHORITATIVE RULINGS, AND AGAINST ABUNDANT, POSITIVE AND
UNCONTRADICTED PROOF OF GOOD FAITH.

III

THE COURT OF APPEALS ERRED UPON EQUITABLE GROUNDS IN, IN EFFECT, GIVING JUDICIAL FLAT To THE
UNJUST ENRICHMENT OR BENEFIT OF ONE PERSON AT THE EXPENSE OF ANOTHER OR OTHERS.

On the other hand, Julia R. De Reyes made the following assignments of errors in her petition for review.

THE COURT OF APPEALS ERRED IN DECLARING THAT THE PROPERTIES IN QUESTION ARE THE CONJUGAL
PROPERTIES OF THE RESPONDENT PONCIANO S. REYES AND THE PETITIONER IN SPITE OF THE
CATEGORICAL JUDICIAL DECLARATION AND ADMISSION BY SAID RESPONDENT THAT THE SAID
PROPERTIES ARE THE EXCLUSIVE AND PARAPHERNAL PROPERTIES OF HIS WIFE, THE PETITIONER HEREIN.

THE COURT OF APPEALS ERRED IN HAVING DECIDED THE CASE NOT IN ACCORDANCE WITH LAW AND
THE APPLICABLE DECISIONS ON THE MATTER IN THE SENSE, PARTICULARLY, THAT THE ACT AND
DECLARATION OF A PARTY AGAINST HIS INTERESTS CAN NOT BE CONTRADICTED BY HIM, AND IN SO
DOING THE DECISION AMOUNTED TO SANCTIONING A PERJURED TESTIMONY.
On the first issue regarding the alleged paraphernal character of the disputed properties, we find that the records
sustain the findings of the Court of Appeals

The fact are:

xxx xxx xxx

... Ponciano Reyes and Julia de Reyes-to be herein referred to as Ponciano and Julia alone for brevity-
were married in 1915. The properties in question consisting of Lots 5 and 6, Block No. 132, situated at
Retiro Street, Quezon City-plus the buildings erected thereon, were bought from J. M. Tuason & Co.,
represented by Gregorio Araneta, Inc. to be herein mentioned as "Araneta"-February, 1947 on
installment basis. (Testimony of Julia, t.s.n., p. 74, February 15, 1963). The first installment on Lot No. 5
was P69.96 and on Lot No. 6 was P102.00 (Exh. 'H' and uncontradicted testimony of Ponciano, t.s.n., p.
4, July 20, 1964).

The spouses were always in arrears in the payment of the installments to Araneta due to lack of
money (t.s.n., pp. 5-7, July 20, 1964) so they had to borrow money from the Rehabilitation Finance
Corporation-herein after referred to as RFC for short. Thus, on November 26, 1948, they jointly obtained
a loan of P12,000.00 from the RFC for the following exclusive purposes only: 'to complete the
construction of one-storey residential building on 9th Street, La Loma Quezon City; and to pay the
balance of the price of the lot offered as security' which is Lot 5, (Deed of Mortgage, Exh. 'A') l'). Out
of this loan, the amount of P5,292.00 was paid to Araneta as price of Lot 5. The corresponding deed of
absolute sale thereof was executed by Araneta on November 27, 1948 (Exh. 'A'). On October 2, 1952,
the spouses secured an additional loan of P8,000.00 from the RFC 'to pay the balance of the lot herein
offered (Lot No. 6) as additional security, and to defray the expenses incurred in the repairs of the
building' as the deed of mortgage so recites (Exh. 'B- l'). From the amount of this loan, the sum of
P7,719.60, as price of Lot No. 6, was paid and the deed of absolute sale was forthwith executed by
Araneta (Exh. 'B'). In the deed of sale, the vendee named is 'Julia de Reyes'. Her signatures appear
over the caption vendee and those of Ponciano under the phrase: 'with my marital consent.

As a result of these sales, Transfer Certificates of Title Nos. 8550 (Exh. 'F') and 19998 (Exh. 'G') were
issued for Lots 5 and 6, respectively, by the Register of Deeds of Quezon City, in the name of "JULIA
REYES married to PONCIANO REYES." The mortgage contracts (Exhs. 'A-1' and 'B-1') executed by the
spouses in favor of the RFC were duly registered and annotated on the said transfer Certificates of Title
(Exhs. 'F' and 'G').

As promised to the RFC, the spouses built a house and later a camarin on the two lots. The camarin
was leased as a school building to the Quezon City Elementary School of La Loma for the period of
two years (1950-51) at P500.00 a month. When the school was transferred to another place, the
camarin was leased on December 10, 1952 to Mr. and Mrs. Mendoza, appellees, for ten years at
P600.00 a month for the first year and P700.00 for the remaining nine years. The contract of lease was
signed by Julia as lessor, with the marital consent of Ponciano. The camarin was converted into a
movie house and used as such by the lessees. (Exh. 'G').

In spite of the good rentals they had been receiving for the building, the spouses failed to pay
seasonably their obligations to the RFC so, as late as November 28, 1958, they had to ask for an
extension of 5 years from the Development Bank of the Philippines or DBP, as successor of the RFC, for
the payment of an outstanding balance of P7,876.13 (Exh. 'D').

On March 3, 1961, while Ponciano was absent attending his farm in Arayat, Pampanga, Julia sold
absolutely the lots in question, together with their improvements to appellees Mendozas for the sum of
P80,000.00 without the knowledge and consent of Ponciano (Exh. 'I'-Mendoza). At the same time the
spouses were living separately and were not in speaking terms. By virtue of such sale, Transfer
Certificates of Title Nos. 561 10 and 56111 were subsequently issued in the name of the Mendozas.

The applicable provision of law is Article 153 of the Civil Code which provides:

ART. 153. The following are conjugal partnership property:

(1) That which is acquired by onerous title during the marriage at the expense of the common fund,
whether the acquisition be for the partnership, or for only one of the spouses;
 xxx xxx xxx

The presumption found in Article 160 of the Civil Code must also be overcome by one who contends that the disputed
property is paraphernal Article 160 provides:

ART. 160. All property of the marriage is presumed to belong to the conjugal partnership, unless it be
proved that it pertains exclusively to the husband or to the wife.

The presumption is a strong one. As stated in Camia de Reyes v. Reyes de Ilano (63 Phil. 629, 639), "it is sufficient to prove
that the property was acquired during the marriage in order that the same may be deemed conjugal property." And
in Laluan v. Malpaya (65 SCRA 494, 504) we stated, "proof of acquisition of the property in dispute during the marriage
suffices to render the statutory presumption operative."

There is no question that the disputed property was acquired by onerous title during the marriage. But were the funds
used to buy the lot and build the improvements at the expense of the common fund?

The records show that the funds came from loans obtained by the spouses from the Rehabilitation Finance Corporation.
Under Article 161 of the Civil Code, all debts and obligations contracted by the husband and the wife for the benefit of
the conjugal partnership are liabilities of the partnership.

As stated in Castillo, Jr. vs. Pasco (1 1 SCRA 102, 107):

... The position thus taken by appellants is meritorous, for the reason that the deeds show the loans to
have been made by Dr. Nicanor Jacinto and by Gabriel and Purificacion Gonzales, to both spouses
Marcelo Castillo and Macaria Pasco, as joint borrowers. The loans thus became obligations of the
conjugal partnership of both debtor spouses and the money loaned is logically conjugal property.

Citing Palanca v. Smith Bell & Co. (9 Phil. 13 1) interpreting Par. 3, Article 1401 of the old Civil Code, the Court in Castillo v.
Pasco stated:

If money borrowed by the husband alone on the security of his wife's property is conjugal in
character, a fortiori should it be conjugal when borrowed by both spouses. The reason obviously is
that the loan becomes an obligation of the conjugal partnership which is the one primarily bound for
its repayment.

To rebut the presumption and the evidence of the conjugal character of the property, the petitioners have only the
testimony of Julia de Reyes to offer.

Mrs. Reyes testified that she bought the two parcels of land on installment basis and that the first payment of a little less
than P2,000.00 came from her personal funds: The receipt issued by Araneta, however, shows that the first installment on
one lot was only P69.96 and on the other lot, P102.00. Mrs. Reyes also testified that she paid the entire purchase price
and the construction of the buildings from her personal funds and money borrowed from the Philippine National Bank.
The mortgage contracts, however, show that the properties were paid out of the loan from RFC.

As a matter of fact, Mrs. Reyes' testimony about a loan from Mrs. Rosa Borja, the sale of a lot in Cabiao, Nueva Ecija
given by her mother, and the loan from PNB only emphasize the conjugal nature of the disputed properties because she
stated that these sums were also used to put up their gravel and sand business, a poultry farm, and a banana plantation
plus a jeepney transportation line although according to her, every business venture handled by her husband failed. The
two were establishing businesses and buying properties together as husband and wife, in happier times.

The Court of Appeals ruled upon the testimony of Julia De Reyes as follows:

Julia's testimony that she had sold her Cabiao property to Rosa Borja is not supported by the deed of
sale (Exh. 'I') which shows that the property was sold to Encarnacion Goco and Mariano Robles.
Again, her claim that said Cabiao property was donated to her by her mother is negated by the
deeds of sale (Exhs. 'J' and 'K') which show that said property was donated to her and her two
brothers, Pablo and Jose del Rosario, who afterwards sold their participation thereof to the spouses,
Ponciano and Julia.
 Her claim of exclusive ownership is further belied by the Income Tax Returns (Exhs. 'N' to 'N'- 3') which
she herself prepared and filed in behalf of the conjugal partnership wherein she made the statement
that the rentals paid by her co-appellees were income of the conjugal partnership; and by the
Income Tax Returns (Exhs. 'O' to '0-4') also filed by her for the conjugal partnership, were she made to
appear the properties in question as capital assets of the conjugal partnership. It should be noted that
Julia did not care to deny the truth of said statements. Neither did she endeavor to offer any
explanation for such damaging averments.

Petitioners also raised the issue of estoppel in their assignments of errors. They alleged:

Even so, petitioners would have small legal cause to dispute the respondent Court's giving credence
to the husband's pretensions did there not also exist in the record plain and indisputable evidence
that he had on a former occasion both solemnly confirmed the paraphernal character of the very
properties now in question and disclaimed the existence of any conjugal partnership funds or
properties of himself and his wife. (Petitioner's Brief, L-31616, p. 7).

It turns out that in 1948, Ponciano Reyes was sued in the then Municipal Court of Manila for ejectment from a leased
hotel that he was then operating. Judgment was rendered against Reyes in favor of the lessors, the brothers named
Gocheco Having failed in a bid to garnish the rentals of the disputed buildings because the municipal court stated that
it had no jurisdiction to decide the paraphernal or conjugal nature of the properties, the Gocheco brothers filed Civil
Case No. 24772 for revival of judgment with the Court of First Instance of Manila.

It was in this latter case where Mr. Reyes stated in his special defenses that he and his wife never had any kind of fund
which could be called conjugal partnership funds, that they acted independently from one another whenever either
one engaged in any business, and-

That the herein plaintiff has not limited his action in the present case against defendant Ponciano S.
Reyes as he did in the original case above-mentioned, that is, Civil Case No. 7524 of the Manila
Municipal Court which the instant case derived from, but has included the defendant's wife Julia
Reyes, with the only intended purpose and design of going over and against the paraphernal
properties of said Julia Reyes. (par. 4, Special Defenses, Answer, Exh. II; Petitioner's Brief, L-31618, pp. 9-
10).

Article 1437 of the Civil Code on estoppel involving immovable property provides:

Art. 1437. When in a contract between third persons concerning immovable property, one of them is
misled by a person with respect to the ownership or real right over the real estate, the latter is
precluded from asserting his legal title or interest therein, provided all these requisites are present:

(1) There must be fraudulent representation or wrongful concealment of facts known to the party
estopped;

(2) The party precluded must intend that the other should act upon the facts as misrepresented;

(3) The party misled must have been unaware of the true facts; and

(4) The party defrauded must have acted in accordance with the representation.

The principle of estoppel rests on the rule that whenever a party has, by his declaration, act or omission, intentionally and
deliberately led the other to believe a particular thing true and to act, upon such belief he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to falsify it. (Sotto v. Teves, 86 SCRA 154.)

Estoppel can only be invoked between the person making the misrepresentation and the person to whom it was
addressed. It is essential that the latter shag have relied upon the misrepresentation and had been influenced and
misled thereby.

There is no showing that the respondent had intentionally and deliberately led the petitioners Mendozas to believe what
was contained in the pleading, "Exh. 11", and to make them act upon it. As observed by the respondent, they were not
even a party in the case where the said pleadin was filed. Neither is there any assertion by the Mendozas that the said
pleading was shown to them or that they happened to see it or to have any knowledge about it before they purchased
the properties in question. The alleged representation was never addressed to the petitioners, much less made with the
intention that they would act upon it. Moreover, there is no specific and clear reference to the disputed lots as
paraphernal in the cited answer. The petitioners cannot invoke estoppel in these petitions.

May the Mendoza spouses be considered buyers in good faith?

The proof that the petitioners in L-31618 are purchasers in good faith comes from the testimony of Mrs. Inocencia
Mendoza herself. Mrs. Mendoza testified that Mrs. Julia R. De Reyes assured her that the properties were paraphernal
that her lawyer verified the titles being in the name of Mrs. Julia R. De Reyes, and that she never dealt with Mr. Ponciano
Reyes when she and her husband were still renting the properties they later purchased. On cross-examination, Mrs.
Mendoza admitted that she learned of the RFC mortgage when the lots were about to be purchased.

Property acquired during a marriage is presumed to be conjugal and the fact that the land is later registered in the
name of only one of the spouses does not destroy its conjugal nature. (Bucoy v. Paulino, 23 SCRA 249). Section 46 of P.D.
1529, the Property Registration Decree, reiterates the proviso in Section 70 of the former Land Registration Act that
registration cannot be construed to relieve registered land or the owners thereof from any rights incident to the relation
of husband and wife. (See also: Marigsa v. Macabuntoc 17 Phil. 107, 109; Romero de Pratts v. Menzi & Co., Inc., 53 Phil.
51, 54; Padilla v. Padilla, 74 Phil. 377, 382-384; Vitug v. Montemayor, 91 Phil. 286, 290, 291, citing Guinguing v. Abuton, 48
Phil. 144; Sideco v. Aznar, 92 Phil. 952, 961-962, citing Flores v. Flores, 48 Phil. 288; Guinoo v. Court of Appeals, 97 Phil. 235,
238; Silos v. Ramos, 97 Phil. 263, 270, citing Commonwealth v. Sandiko 72 Phil. 258, 260; and Alvarez v. Espiritu, 14 SCRA
893).

If the fact that property acquired during marriage was registered in the name of the husband alone does not affect its
conjugal nature, neither does registration in the name of the wife. Any person who buys land registered in the married
name of the wife is put on notice about its conjugal nature.

The mortgage contracts (Exhs. "A-1 " and "B-1 ") executed by the spouses Ponciano S. Reyes and Julia Reyes in favor of
RFC were duly registered in the Registry of Deeds of Quezon City and seasonably annotated on transfer certificates of
title Nos. 8550 (Exh. "F") and 19998 (Exh. "G"), which were issued in the name of Julia Reyes "married to Ponciano Reyes".
Their dates of inscription were November 29, 1948 and October 11, 1952, respectively. On December 10, 1952, the lots
and the building were leased by Julia, with the marital consent of Ponciano to the petitioners Mendozas The contract of
lease was registered in the Registry of Deeds and was annotated in the transfer certificates of title on May 5, 1952. At
that time, the RFC mortgages were already noted at the back of the transfer certificates of title. The petitioners,
therefore, are unquestionably charged with notice of the existence and contents of said mortgages, their joint execution
by the spouses Ponciano Reyes and Julia Reyes and the application of the loans to the payment to Araneta of the
purchase price of the lots in question.

Furthermore, the consent of the Ponciano Reyes to the mere lease of the properties was demanded by the Mendozas
allegedly for their own protection, yet when it came to the deed of sale which entailed a greater transfer of rights such
consent was not required.

The final argument refers to the alleged unjust enrichment by Ponciano Reyes if the deed of sale is nullified This
petitioners admit that the benefit including that represented by one-half of the purchase price, accrued not to the
respondent but to his wife. Since Mr. Reyes did not receive any part of the proceeds of the sale and his wife has been
aligning herself with the Mendoza couple, there could be no unjust enrichment as alleged. The assignments of errors
have no merit.

WHEREFORE, the petitions for review on certiorari are hereby DENIED for lack of merit. The judgment of the Court of
Appeals is affirmed.

SO ORDERED.

Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
 FIRST DIVISION

G.R. No. L-57499 June 22, 1984

MERCEDES CALIMLIM- CANULLAS, petitioner,

vs.
HON. WILLELMO FORTUN, Judge, Court of First instance of Pangasinan, Branch I, and CORAZON DAGUINES, respondents.

Fernandez Law Offices for petitioner.

Francisco Pulido for respondents.

MELENCIO-HERRERA, J.:

Petition for Review on certiorari assailing the Decision, dated October 6, 1980, and the Resolution on the Motion for
Reconsideration, dated November 27, 1980, of the then Court of First Instance of Pangasinan, Branch I, in Civil Case No.
15620 entitled "Corazon DAGUINES vs. MERCEDES Calimlim-Canullas," upholding the sale of a parcel of land in favor of
DAGUINES but not of the conjugal house thereon'

The background facts may be summarized as follows: Petitioner MERCEDES Calimlim-Canullas and FERNANDO Canullas
were married on December 19, 1962. They begot five children. They lived in a small house on the residential land in
question with an area of approximately 891 square meters, located at Bacabac, Bugallon, Pangasinan. After
FERNANDO's father died in 1965, FERNANDO inherited the land.

In 1978, FERNANDO abandoned his family and was living with private respondent Corazon DAGUINES. During the
pendency of this appeal, they were convicted of concubinage in a judgment rendered on October 27, 1981 by the
then Court of First Instance of Pangasinan, Branch II, which judgment has become final.

On April 15, 1980, FERNANDO sold the subject property with the house thereon to DAGUINES for the sum of P2,000.00. In
the document of sale, FERNANDO described the house as "also inherited by me from my deceased parents."

Unable to take possession of the lot and house, DAGUINES initiated a complaint on June 19, 1980 for quieting of title and
damages against MERCEDES. The latter resisted and claimed that the house in dispute where she and her children were
residing, including the coconut trees on the land, were built and planted with conjugal funds and through her industry;
that the sale of the land together with the house and improvements to DAGUINES was null and void because they are
conjugal properties and she had not given her consent to the sale,

In its original judgment, respondent Court principally declared DAGUINES "as the lawful owner of the land in question as
well as the one-half () of the house erected on said land." Upon reconsideration prayed for by MERCEDES, however,
respondent Court resolved:

WHEREFORE, the dispositive portion of the Decision of this Court, promulgated on October 6, 1980, is
hereby amended to read as follows:

(1) Declaring plaintiff as the true and lawful owner of the land in question and the 10 coconut trees;

(2) Declaring as null and void the sale of the conjugal house to plaintiff on April 15, 1980 (Exhibit A)
including the 3 coconut trees and other crops planted during the conjugal relation between
Fernando Canullas (vendor) and his legitimate wife, herein defendant Mercedes Calimlim- Canullas;

xxx xxx xxx

The issues posed for resolution are (1) whether or not the construction of a conjugal house on the exclusive property of
the husband ipso facto gave the land the character of conjugal property; and (2) whether or not the sale of the lot
together with the house and improvements thereon was valid under the circumstances surrounding the transaction.
The determination of the first issue revolves around the interpretation to be given to the second paragraph of Article 158
of the Civil Code, which reads:

xxx xxx xxx

Buildings constructed at the expense of the partnership during the marriage on land belonging to one
of the spouses also pertain to the partnership, but the value of the land shall be reimbursed to the
spouse who owns the same.

We hold that pursuant to the foregoing provision both the land and the building belong to the conjugal partnership but
the conjugal partnership is indebted to the husband for the value of the land. The spouse owning the lot becomes a
creditor of the conjugal partnership for the value of the lot, 1 which value would be reimbursed at the liquidation of the
conjugal partnership. 2

In his commentary on the corresponding provision in the Spanish Civil Code (Art. 1404), Manresa stated:

El articulo cambia la doctrine; los edificios construidos durante el matrimonio en suelo propio de uno
de los conjuges son gananciales, abonandose el valor del suelo al conj uge a quien pertenezca.

It is true that in the case of Maramba vs. Lozano, 3 relied upon by respondent Judge, it was held that the land belonging
to one of the spouses, upon which the spouses have built a house, becomes conjugal property only when the conjugal
partnership is liquidated and indemnity paid to the owner of the land. We believe that the better rule is that enunciated
by Mr. Justice J.B.L. Reyes in Padilla vs. Paterno, 3 SCRA 678, 691 (1961), where the following was explained:

As to the above properties, their conversion from paraphernal to conjugal assets should be deemed
to retroact to the time the conjugal buildings were first constructed thereon or at the very latest, to the
time immediately before the death of Narciso A. Padilla that ended the conjugal partnership. They
can not be considered to have become conjugal property only as of the time their values were paid
to the estate of the widow Concepcion Paterno because by that time the conjugal partnership no
longer existed and it could not acquire the ownership of said properties. The acquisition by the
partnership of these properties was, under the 1943 decision, subject to the suspensive condition that
their values would be reimbursed to the widow at the liquidation of the conjugal partnership; once
paid, the effects of the fulfillment of the condition should be deemed to retroact to the date the
obligation was constituted (Art. 1187, New Civil Code) ...

The foregoing premises considered, it follows that FERNANDO could not have alienated the house and lot to DAGUINES
since MERCEDES had not given her consent to said sale. 4

Anent the second issue, we find that the contract of sale was null and void for being contrary to morals and public
policy. The sale was made by a husband in favor of a concubine after he had abandoned his family and left the
conjugal home where his wife and children lived and from whence they derived their support. That sale was subversive
of the stability of the family, a basic social institution which public policy cherishes and protects. 5

Article 1409 of the Civil Code states inter alia that: contracts whose cause, object, or purpose is contrary to law, morals,
good customs, public order, or public policy are void and inexistent from the very beginning.

Article 1352 also provides that: "Contracts without cause, or with unlawful cause, produce no effect whatsoever. The
cause is unlawful if it is contrary to law, morals, good customs, public order, or public policy."

Additionally, the law emphatically prohibits the spouses from selling property to each other subject to certain
exceptions.6 Similarly, donations between spouses during marriage are prohibited. 7 And this is so because if transfers or
con conveyances between spouses were allowed during marriage, that would destroy the system of conjugal
partnership, a basic policy in civil law. It was also designed to prevent the exercise of undue influence by one spouse
over the other,8 as well as to protect the institution of marriage, which is the cornerstone of family law. The prohibitions
apply to a couple living as husband and wife without benefit of marriage, otherwise, "the condition of those who
incurred guilt would turn out to be better than those in legal union." Those provisions are dictated by public interest and
their criterion must be imposed upon the wig of the parties. That was the ruling in Buenaventura vs. Bautista, also penned
by Justice JBL Reyes (CA) 50 O.G. 3679, and cited in Matabuena vs. Cervantes. 9 We quote hereunder the pertinent
dissertation on this point:
 We reach a different conclusion. While Art. 133 of the Civil Code considers as void a donation
between the spouses during the marriage, policy considerations of the most exigent character as wen
as the dictates of morality require that the same prohibition should apply to a common-law
relationship.

As announced in the outset of this opinion, a 1954 Court of Appeals decision, Buenaventura vs.
Bautista, 50 OG 3679, interpreting a similar provision of the old Civil Code speaks unequivocally. If the
policy of the law is, in the language of the opinion of the then Justice J.B.L. Reyes of that Court, 'to
prohibit donations in favor of the other consort and his descendants because of fear of undue
influence and improper pressure upon the donor, a prejudice deeply rooted in our ancient law, ...,
then there is every reason to apply the same prohibitive policy to persons living together as husband
and wife without benefit of nuptials. For it is not to be doubted that assent to such irregular
connection for thirty years bespeaks greater influence of one party over the other, so that the danger
that the law seeks to avoid is correspondingly increased'. Moreover, as pointed out by Ulpian (in his lib
32 ad Sabinum, fr. 1), "It would not be just that such donations — should subsist, lest the conditions of
those who incurred guilt should turn out to be better." So long as marriage remains the cornerstone of
our family law, reason and morality alike demand that the disabilities attached to marriage should
likewise attach to concubinage (Emphasis supplied),

WHEREFORE, the Decision of respondent Judge, dated October 6, 1980, and his Resolution of November 27, 1980 on
petitioner's Motion for Reconsideration, are hereby set aside and the sale of the lot, house and improvements in
question, is hereby declared null and void. No costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., and De la Fuente, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-21533 June 29, 1967

HERMOGENES MARAMBA, plaintiff-appellant,

vs.
NIEVES DE LOZANO, ET AL., defendants-appellees.

N. Tanopo, Jr. and Millora for plaintiff-appellant.

Manuel Ancheta and Bausa, Ampil and Suarez for defendants-appellees.

MAKALINTAL., J.:

Appeal from an order of the Court of First Instance of Dagupan City in its Civil Case No. 10485, dated June 28, 1961. This
case was originally brought to the Court of Appeals, but subsequently certified to Us on the ground that the issues raised
are purely legal.

It appears that on November 3, 1948, the plaintiff filed an action against the defendant Nieves de Lozano and her
husband Pascual Lozano for the collection of a sum of money. After trial, the court a quo on June 23, 1959 rendered its
decision, the dispositive part of which is as follows:

WHEREFORE, the court hereby renders judgment, sentencing the defendants herein, Nieves de Lozano and
Pascual Lozano, to pay unto the herein plaintiff, Hermogenes Maramba, the total sum of Three Thousand Five
Hundred Pesos and Seven Centavos (P3,500.07), with legal interest thereon from date of the filing of the instant
complaint until fully paid.
 With costs against the said defendants.

Not satisfied with the judgment, the defendants interposed an appeal to the Court of Appeals but the appeal was
dismissed on March 30, 1960 for failure of the defendants to file their brief on time. After the record the case was
remanded to the court a quo, a writ of execution was issued, and on August 18, 1960 levy was made upon a parcel of
land covered by transfer certificate title No. 8192 of Pangasinan in the name of Nieves de Lozano. The notice of sale at
public auction was published in accordance with law and scheduled for September 16, 1960.

On that date, however, defendant Nieves de Lozano made a partial satisfaction of the judgment in the amount
P2,000.00, and requested for an adjournment of the sale to October 26, 1960. On October 17, 1960, she filed amended
motion, dated October 14, alleging that on November 11, 1952, during the pendency of the case, defendant Pascual
Lozano died and that the property levied upon was her paraphernal property, and praying that her liability be fixed at
one-half (½) of the amount awarded in the judgment and that pending the resolution of the issue an order be issued
restraining the Sheriff from carrying out the auction sale scheduled on October 26, 1960.

On that date the sale proceeded anyway, and the property of Nieves de Lozano which has been levied upon was sold
to the judgment creditor, as the highest bidder, for the amount of P4,175.12, the balance of the judgment
debt.1äwphï1.ñët

On October 27, 1960, plaintiff filed an opposition to the defendant's amended motion dated October 14, 1960. And on
June 28, 1961, the trial court issued the questioned order, the dispositive part of which is as follows:

WHEREFORE, the court hereby grants the motion of counsel for defendant Nieves de Lozano, dated October 5,
1960, which was amended on October 14, 1960, and holds that the liability of the said defendant under the
judgment of June 23, 1959, is only joint, or P1,750.04, which is one-half (½) of the judgment debt of P3,500.07
awarded to the plaintiff and that the writ of execution be accordingly modified in the sense that the liability of
defendant Nieves de Lozano be only P1,750.04 with legal interest from the date of the filing of the complaint on
November 5, 1948 until fully paid, plus the amount of P21.28 which is also one-half (½) of the costs taxed by the
Clerk of Court against the defendant spouses. Let the auction sale of the above-mentioned property of
defendant Nieves de Lozano proceed to satisfy her liability of P1,750.04 with legal interest as above stated and
the further sum of P21.28 representing the costs, unless she voluntarily pays the same to the judgment creditor
(herein plaintiff).

Plaintiff interposed an appeal from the above-quoted order and assigned several errors, which present three major
issues, to wit:

(a) whether or not the decision of the lower court dated June 23, 1959 could still be questioned;

(b) whether or not the judgment was joint or solidary; and

(c) whether or not the judgment debt could be satisfied from the proceeds of the properties sold at public
auction.

Plaintiff-appellant submits that a "nunc pro tunc" order should have been issued by the trial court dismissing, as of
November 11, 1952, the case against the late Pascual Lozano by reason of his death, and that the lower court should
have corrected its decision of June 23, 1959, by striking out the letter "s" in the word "defendants" and deleting the words
"and Pascual Lozano."

We do not think that the action suggested would be legally justified. It would entail a substantial amendment of the
decision of June 23, 1959, which has long become final and in fact partially executed. A decision which has become
final and executory can no longer be amended or corrected by the court except for clerical errors or mistakes,1 and
however erroneous it may be, cannot be disobeyed;2 otherwise litigations would be endless and no questions could be
considered finally settled.3 The amendment sought by appellee involves not merely clerical errors but the very substance
of the controversy. And it cannot be accomplished by the issuance of a "nunc pro tunc" order such as that sought in this
case. The purpose of an "nunc pro tunc" is to make a present record of an which the court made at a previous term, but
which not then recorded. It can only be made when the ordered has previously been made, but by inadvertence not
been entered. In the instant case there was no order previously made by the court and therefore there is no now to be
recorded.
Now then, it is clear that the decision of June 23, 1959 does not specify the extent of the liability of each defendant. The
rule is that when the judgment does not order the defendants to pay jointly and severally their liability is merely joint, and
none of them may be compelled to satisfy the judgment in full. This is in harmony with Articles 1137 and 1138 of the Civil
Code.

Plaintiff-appellant contends that in any event the entire judgment debt can be satisfied from the proceeds the property
sold at public auction in view of the presumption that it is conjugal in character although in the of only one of the
spouses. The contention is incorrect. The presumption under Article 160 of the Civil Code to property acquired during the
marriage. But in the instant case there is no showing as to when the property in question was acquired and hence the
fact that the title is in the wife's name alone is determinative. Furthermore, appellant himself admits in his brief (p. 17) that
the property in question is paraphernal.

Appellant next points out that even if the land levied upon were originally paraphernal, it became conjugal property by
virtue of the construction of a house thereon at the expense of the common fund, pursuant to Article 158 paragraph 2 of
the Civil Code. However, it has been by this Court that the construction of a house at conjugal expense on the exclusive
property of one of the spouses doe not automatically make it conjugal. It is true that meantime the conjugal partnership
may use both in the land and the building, but it does so not as owner but in the exercise of the right of usufruct. The
ownership of the land remains the same until the value thereof is paid, and this payment can only be demanded in the
liquidation of the partnership (Coingco vs. Flores, 82 Phil. 284; Paterno vs. Bibby Vda. de Padilla, 74 Phil. 377; Testate
Estate of Narciso Padilla, G.R.No. L-8748, Dec. 26, 1961). The record does not show that there has already been a
liquidation of the conjugal partnership between the late Pascual Lozano and Nieves de Lozano. Consequently, the
property levied upon, being the separate property of defendant Nieves de Lozano, cannot be made to answer for the
liability of the other defendant.

On May 18, 1967 counsel for defendants-appellees filed with Us a petition alleging, inter alia; that prior to the expiration
of the redemption period and pursuant to an order of the lower court defendants filed a surety bond in the amount of
P3,175.12 as the redemption price, which bond was duly approved by the lower court; that sometime last September
1966, defendants filed a petition before the lower court praying that the sheriff of Pangasinan be ordered to execute the
corresponding deed of redemption in favor of defendant Nieves de Lozano represented by her judicial administrator or
that, in the alternative, the Register of Deeds of Dagupan City be directed to cancel Entries Nos. 19234 and 20042 at the
back of TCT No. 8192; and that said petition was denied by the lower court. The same prayer made below is reiterated in
the said petition of May 18, 1967.

The foregoing petition of May 18, 1967 alleges facts which occurred after the perfection of the present appeal and
which should therefore be submitted to and passed upon by the trial court in connection with the implementation of the
order appealed from, which is hereby affirmed, with costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-9984 March 23, 1916

PETRONA JAVIER, plaintiff-appellee,

vs.
LAZARO OSMEÑA, as administrator of the estate of the deceased Tomas Osmeña, defendant-appellant.

Haussermann, Cohn and Fisher for appellant.

Southworth, Hargis, Adams and Jordain for appellee.

ARELLANO, C.J.:

Florentino Collantes, husband of Petrona Javier, became indebted to the estate of Tomas Osmeña in the sum of
P26,467.94. On June 15, 1913, judgment for this amount was rendered in behalf of the estate and the sheriff executed it
by selling at public auction all the right, title, interest or share which the judgment debtor, Collantes, had or might have in
two parcels of improved real estate situated in this city of Manila, and especially the usufructuary interest therein of
Pascuala Santos, the surviving widow of Felix Javier y Sanchez, which interest was acquired by Petrona Javier, Collantes'
wife, on March 20, 1911.

Petrona Javier, Collantes' wife, was the only daughter of Felix Javier and Matea Corunan, the latter of whom died in
1901, and the former ion 1908. Felix Javier, after the death of his wife Matea Corunan, married Pascuala Santos. It was in
the year 1890 that Florentino Collantes and Petrona Javier had contracted marriage. Felix Javier and his wife Matea
Corunan left at their death, as an inheritance to their only daughter Petrona Javier, two urban properties situated one
on Calle Carriedo, and the other on Calle San Sebastian. For the purpose of consolidating her full ownership in and to
both properties, Petrona Javier acquired from her father's second wife, Pascuala Santos, the latter's usufructuary right in
her deceased husband's estate for the sum of P3,000, which amount, it appears, Javier was obliged to borrow, giving as
security for the loan a mortgage on the property she had inherited.

These properties that were inherited by Petrona Javier from her parents were those levied upon by the sheriff in the
execution of the judgment against Florentino Collantes, and notwithstanding her protests the sale was carried out. The
successful bidder therein was the Osmeña estate itself which paid P500 for each parcel of property, that is, P1,000 for
Collantes' right in both parcels and in the usufructuary interest acquired by his wife from Pascuala Santos.

Inasmuch as Petrona Javier claimed that her husband Collantes had no rights whatever in said two pieces of property or
in the usufructuary interest acquired by her, she filed claim of intervention in order to recover her ownership of the
properties and her right to usufruct after the sheriff's sale should be annulled.

The defendant Osmeña estate, in answer to the complaint, admitted plaintiff's exclusive right of ownership in the said
two aforementioned parcels of real estate, subject to the usufructuary right of the second wife of plaintiff's father, and
also admitted the purchase of this right by plaintiff. Defendant claimed, however, that the money with which said
usufructuary interest was purchased belonged to the conjugal partnership and therefore that the right of usufruct so
acquired belonged to the said conjugal partnership. Defendant concluded by praying that the court rendered
judgment holding that the revenues from both properties are conjugal partnership property of the married couple
Collantes and Javier; that said revenues be made liable for the payment of the judgment rendered in behalf of the
Osmeña estate; that for this purpose a receiver be appointed to take charge of said two properties and manage them
with the object of applying the revenues obtained therefrom to the payment of the judgment obtained by the Osmeña
estate against Collantes.

The Court of First Instance of Manila rendered judgment annulling only the sale of the two properties and ordering the
cancellation of their registration in the property registry, with the costs of the suit.

Defendant appealed.

The question raised in this appeal is whether the sum owed by the husband to the Osmeña estate can and should be
paid out of the fruits and revenues of the two aforementioned parcels of real estate that exclusively belong to the wife,
the herein plaintiff, as prayed for by the appellant in his written answer.

To decide this question the nature of the debt must be inquired into the defined. The appellee herself, in this instance,
describes it thus:

A short while prior to 1892, Collantes was employed by appellee's father, Felix Javier, in a commission business
which the latter conducted in Manila. In 1902, Felix Javier retired from the business and was succeeded therein
by Collantes who, as a consequence, changed his commercial status as an employee of his father-in-law to
that of an independent commission merchant, and continued that business for six years, or until 1908. One of
the chief clients (principals) both of Javier and Collantes, was Thomas Osmeña , a merchant of Cebu, whom
Javier, and later Collantes, had represented as his agents in Manila for the sale of tobacco consigned to them
by Osmeña from Cebu and for the investment of the profits, in Osmeña 's name and as his agent in Manila, in
merchandise which these agents consigned to him at Cebu (record, p. 2). When Javier retired from the
commission business in 1902, it appears that he was indebted to Tomas Osmeña in the sum of four or five
thousand pesos, and that this debt was assumed by this successor Collantes. How this debt originated, the
record does not show. In 1908, Collantes rendered a statement (they probably were accounts) to Osmeña
which showed that his debt to the latter amounted to fourteen or fifteen thousand pesos. No steps were taken
by Osmeña during his lifetime to collect this debt, but after his death a judgment for the same was obtained by
the administrator of his estate in June, 1913. This judgment was founded on the statement made by Collantes in
1908 in which he admitted is debt, together with interest thereon at the rate of 12 per centum per annum.
 Although the appellee admits that the debt arose out of the business conducted by her father and
subsequently by her husband, there is no evidence that throws any light on the particular transaction which
was the cause of the indebtedness . . . . It must be observed that there is the natural presumption of fact that
whatever he (Collantes) may have contributed toward defraying the expenses of his family, was contributed
by him out of what he earned by the commission paid him for the services he rendered to his clients as a broker
(as commission merchant). It has not been proven or alleged that any part of the debt to Osmeña was
originated by Collantes' having paid the family expenses as they are defined in paragraph 5 of article 1408 of
the Civil Code. (Appellee's brief, pp. 3 and 4.)

The appellee herself having set forth the origin of the debt, which is none other than the balance against Collantes
resulting from the accounts rendered by him as commission-merchant to his principal Osmeña ; and the appellee also
having set forth that "there is the natural presumption of fact what whatever Collantes contributed by him out of what he
earned by the commission paid him for the services he rendered to his clients as commission merchant," it is decisive and
conclusive that the debt must be paid out of the community property of the marriage, since, article 1408 of the Civil
Code provides:

The conjugal partnership shall be liable for:

1. All the debts and obligations contracted during the marriage by the husband,

xxx xxx xxx

5. The support of the family . . . .

And inasmuch as "the fruits, revenue, or interest collected or accrued during the marriage coming from the partnership
property, or from that which belongs to either one of the spouses," is community property, according to article 1401; and,
further, as the law expressly provides that "the fruits of the paraphernal property form a part of the assets of the conjugal
partnership, and are liable for the payment of the marriage expenses" (art. 1385), hence it follows that the creditor of the
husband may bring his action, not against the paraphernal property, but against the fruits and revenues of this private
property of the wife.

This conclusion is not barred by the provision of article 1386, to wit, that "the personal obligation of the husband cannot
be paid out of the fruits of the paraphernal property unless it be proven that they were incurred for the benefit of the
family." It is chiefly upon this article that appellee's whole brief is based.

The antecedents of this article of the Civil Code are not only the laws embraced in some of the codes enacted prior
thereto, but principally the numerous cases decided by the supreme court of Spain which interpret the old law which
the appellee says is identical with article 1386 of the present Civil Code. Among the various decisions which might be
cited, the most important is that of June 9, 1883, because it covers the entire question at issue in this case: Quirico
Casanovas was a creditor of Jose Gimiso for the value of certain drafts protested for nonpayment; he brought suit to
recover and attached various properties belonging to the marriage partnership, for Gimiso was married, and also
several parcels of real estate that belonged to the debtor's wife, Antonia Carruana. The latter filed a third party claim
and alleged that this real estate was her paraphernal property and that the fruits thereof were subject to the payment
of the marriage expenses; that the husband could dispose of such fruits only after the payment of such expenses,
among which his personal debts were not included; that this doctrine was sanctioned by the decisions of the supreme
court of March 1, 1867, and June 20, 1879, which hold that the rights in the dowry and paraphernal fruits or revenue,
granted by law to the husband as the head of the family and manager of the conjugal partnership, are understood to
be subordinate to the preferred obligation of paying the marriage partnership expenses with such fruits or revenue.
Casanovas answered the complaint alleging, among other reasons, that Gimiso's debt arose from shipments of paper
and other articles connected with the business in which he was engaged, and that the supreme court itself, in its
decisions of October 26, 1863, November 25, 1864, October 8, 1866, and March 1 and October 27, 1867, had laid down
the rule that, although the management of the wife's paraphernal property pertains to her, it is understood to be without
prejudice to the husband's collecting and disposing of the products of such property, as the head of the family and for
the purpose of attending to its needs. The Audiencia of Valencia decided the suit in favor of Casanovas. But Carruana
took it in cassation to the supreme court, alleging that it violated (second assignment of error) "The well-established rule
reaffirmed by the supreme court in its decision of February 21, 1881, and several others, to the effect that in order that a
creditor may secure preference over the rights of the wife with respect to the products and revenue of the paraphernal
property, he must prove at trial that the debt, the payment of which he demands, was contracted by the husband to
meet obligations of the conjugal partnership; that this was not proven in the case at bar, and it is insufficient to say, as it
is said in the judgment appealed from, that among the resources declared by the husband and those for which the
revenue from the wife's property is liable, should be included the credit, that is, the debts, for, according to well-settled
jurisprudence of that supreme court, any money or sums borrowed by the husband must by invested in business of the
conjugal partnership."

The decision of the supreme court did not sustain the appeal in cassation:

Considering that the debts contracted by the husband during the marriage, for and in the exercise of the
industry or profession by which he contributes toward the support of his family, cannot be deemed his personal
and private debts, nor consequently, can they be excepted from payment out of the products or revenue of
the wife's own property which are liable, like those of her husband's, for the discharge of the liabilities of the
marriage couple; and considering that the debt claimed by Don Quirico Casanovas, for the payment of which
attachment has been levied on certain property belonging to the petitioner, is of this nature, inasmuch as it
was contracted in the exercise of the industry or business carried on by her husband; therefore, the doctrine
cited in the second assignment of error of the appeal, is inapplicable, and has not been violated by the
judgment appealed from, in holding, as it does, that intervention prayed for by the wife, cannot be allowed.

The appellee herself established the presumption that whatever the husband contributed toward the support of his
family, he gave out of what he earned from his commissions and profession. In conformity, then, with the aforecited
decision on cassation, the debts contracted for and in the exercise of such industry or profession cannot be considered
as his personal and private debts, nor can they be excepted from payment out of the products or revenue of the wife's
own property, which, like that of her husband's, is liable for the discharge of the marriage liabilities. So far were they from
being personal debts of the husband, that the wife herself avers that the payment to Osmeña of four or five thousand
pesos of the twenty-six and odd thousand pesos of the total debt, had been assumed by her husband, relieving her
father therefrom. He would not have assumed the payment for private purposes of his own, for his purely personal
satisfaction, and in the eyes of the law, notwithstanding his having assumed payment, relieving her father-in-law
therefrom, he was a perfect creditor of the latter's heir in the settlement of her father's estate and could have deducted
the amount of that credit of four or five thousand pesos from her entire inheritance, that is, from that same property,
subsequently called paraphernal, that his wife inherited intact.

Subrogation transfers to the subrogated the credit, with the corresponding rights, either against the debtor or
against third persons, be they sureties or holders of mortgages. (Art. 1212, Civ. Code.)

It is undeniable that if in the same manner as the 26,000 and odd pesos were a loss, the had been a gain, the husband
would not have been permitted to call the amount his personal and private gain; in the same way, the debts or losses
resulting from the business cannot be called his personal and private debts or losses.

The petition of the defendant in his answer to the complaint, to wit, that the sum owed by the husband to the Osmeña
estate can and ought to be paid out of the fruits or revenue of the two parcels of real estate mentioned, which belong
exclusively to the wife, now the plaintiff, is proper and in accordance with the law.

Defendant also prayed in his answer that a receiver be appointed to take charge of the management of the said two
properties and apply their revenue to the payment of the judgment rendered in behalf of the Osmeña estate against
Collantes.

According to article 1384, the wife shall have the management of her paraphernal property. Pursuant to article 1412, the
husband is the administrator of the community property of the conjugal partnership and of the conjugal capital in
general, and we have already said that the fruits of the paraphernal property form a part of the assets of the conjugal
partnership (art. 1385). To confide the management of the property and of its revenue to a receiver would be to deprive
the husband and the wife of their respective rights. In the case at bar, the wife has given no cause for being deprived,
nor has any reason whatever been advanced for depriving her, of her right to manage her own property. The same may
be said of the husband with respect to the community property of the marriage. There is no reason to change the
present status of affairs. Neither has any sufficient reason been offered for the appointment of a receiver, nor has any of
the cases enumerated in section 174 of the Code of Civil Procedure, been invoked.

Therefore, the appellant's petition for the appointment of a receiver must be denied.

The lower court having failed to make any ruling on the declaration and the appointment prayed for by appellant, the
judgment appealed from is reversed in so far as regards this omission, and we hold that the fruits and revenue from the
two properties belonging to the wife, described in the judgment appealed from, are liable for the payment of the debt
owing by the husband, the judgment debtor, and that there is no need for the appointment of a receiver. Without
special finding as to costs, it is so ordered.
Torres, Trent, and Araullo, JJ., concur.
Moreland, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-56479 November 15, 1982

SOCORRO L. VDA. DE STA. ROMANA, petitioner,
vs.
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK and HON. SANCHO Y. INSERTO, as Judge of Branch I, COURT OF FIRST
INSTANCE OF ILOILO, respondents.

German M. Lopez for petitioner.

Tirol & Tirol Law Offices for private respondent.

VASQUEZ, J.:

In this petition for review by certiorari, petitioner seeks to annul and set aside an Order of the respondent Judge of the
Court of First Instance of Iloilo, Branch I, which dismissed Civil Case No. 13533, entitled Socorro L. Vda. de Sta. Romana,
Plaintiff, versus The Philippine Commercial and Industrial Bank, et al., Defendants. The petition was given due course in
the Resolution dated July 29, 1981 and the parties have submitted their respective memoranda.

Civil Case No. 13533 is an offshoot of Civil Case No. 7678, entitled "PCIB, et al. versus Ramon. Sta. Romana" which was
filed way back on August 6, 1968. Civil Case No. 7678 was an action for rescission with damages filed by herein private
respondent PCIB as Administrator of the estate of the deceased C.N. Hodges, and for the recovery of a parcel of land
known as Lot No. 1258-G which Ramon Sta. Romana purchased from the late C. N. Hodges under a Contract to Sell. On
motion of private respondent PCIB, a writ of preliminary attachment was issued in said case by virtue of which the Sheriff
levied on August 23, 1968 on the rights and interests of Ramon Sta. Romana over Lot No. 1258-F and the improvements
existing thereon, which lot Ramon Sta. Romana also purchased from C. N, Hodges under another Contract to Sell. A third
party claim was filed by a certain Emilio Sta. Romana who claimed that Lot No. 1258-F and its improvements had been
sold to him by Ramon Sta. Romana on August 16,1963.

The trial court rendered its decision in Civil Case No. 7678 on June 16, 1975 rescinding the Contract to Sell and ordering
Ramon Sta. Romana to return the possession of Lot No. 1258-G to the herein private respondent, as well as to pay rentals
or damages for use and occupation thereof. The decision was appealed to the Court of Appeals which affirmed the
same and further ordered Ramon Sta. Romana to pay the land taxes and the interest thereon.

On October 5, 1979, the trial judge issued a writ of execution by virtue of which the Sheriff issued a notice of sale at
public auction of the rights and interests of Ramon Sta. Romana as defendant in the case over Lot No. 1258-F and its
improvements for the satisfaction of the damages awarded in the decision.

Ramon Sta. Romana died intestate on October 21, 1979. On November 26, 1949, herein petitioner Socorro L. Vda. de
Sta. Romana, the surviving spouse of Ramon Sta. Romana, filed a motion to quash the writ of execution alleging
principally that the proceedings in Civil Case No. 7678 did not affect her rights and interests over Lot No. 1258-G and Lot
No. 1258-F inasmuch as she was not a party in said action. The trial court denied the said motion to quash the writ of
execution. The public auction sale was held and the private respondent was issued the corresponding certificate of sale.
A Motion for Reconsideration filed by the herein petitioner was likewise denied in the Order dated May 15, 1980.

On September 1, 1980, herein petitioner instituted Civil Case No. 13533 praying therein that the writ of execution and the
levy on execution made on Lot No. 1258-F and the improvements existing thereon be annulled insofar as her ONE HALF
(1/2) share in the said properties is concerned, and that she be declared the lawful and absolute owner of said ONE-
HALF (1/2) share of the said properties. Private respondent filed a motion to dismiss the complaint in Civil Case No. 13533
on the ground of res judicata. After the petitioner filed her opposition to the motion to dismiss, the respondent court, in its
Order dated November 30, 1980, granted the motion to dismiss on the grounds of res judicata and laches. This is the
order that the petitioner seeks to annul in the present proceeding.

Petitioner assails the pronouncement by the respondent court that Civil Case No. 13533 is barred by res judicata on the
principal ground that, not being a party in Civil Case No. 7678, she could not be bound by the judgment rendered in
said case and, consequently, the writ of attachment and the consequent writ of execution which levied on Lot No. 1258-
F, together with its existing improvements, are null and void insofar as her ONE-HALF (1/2) interest in said properties is
concerned.

We find no merit in this contention of the petitioner.

The action filed by private respondent against the petitioner Ramon Sta. Romana was clearly a suit to enforce an
obligation of the conjugal partnership. Civil Case No. 7678 arose out of the failure of Ramon Sta. Romana to pay the
purchase price of a lot he bought from C. N. Hodges presumably in behalf of the conjugal partnership. Petitioner does
not deny the conjugal nature of both Lots Nos. 1258-G and 1258-F. Indeed, she bases her contention on the claim that at
least Lot No. 1258-F, together with its improvements existing thereon, constitutes property of the conjugal partnership. It
may not be denied, therefore, that the liability incurred by Ramon Sta. Romana is chargeable against the conjugal
partnership assets, it being undisputed that the said obligation was contracted by the husband for the benefit of the
conjugal partnership. (Art. 161 [1], Civil Code.)

The non-inclusion of the herein petitioner as a party-defendant in Civil Case No. 7678 is immaterial. There is no rule or law
requiring that in a suit against the husband to enforce an obligation, either pertaining to him alone or one chargeable
against the conjugal partnership, the defendant husband must be joined by his wife. The contrary rule is prescribed in
Section 4, Rule 3, of the Rules of Court and Article 113 of the Civil Code, but not the other way around, obviously in
recognition of the legal status of the husband as the administrator of the conjugal partnership. (Art. 112, Civil Code.)
There was, therefore, no need of including the petitioner as a party in Civil Case No. 7678 for the purpose of binding the
conjugal partnership properties for the satisfaction of the judgment that could be rendered therein.

We likewise agree with the view that the issues raised by the petitioner in Civil Case No. 13533 may not be litigated
anew, if not by the principle of res judicata but at least by conclusiveness of judgment. The record reveals that the
contentions being raised by the petitioner in Civil Case No. 13533 were squarely placed before and ruled upon by the
respondent court in connection with the execution proceedings in Civil Case No. 7678. After the writ of execution was
issued on October 5, 1979 (Annex E, Petition), herein petitioner filed a motion to quash the said writ of execution (Annex
F, Petition), In said motion, the petitioner raised the following issues:

xxx xxx xxx

3. That as will be noted from the records, the herein movant as spouse of the defendant was not
impleaded as a defendant in the above entitled case;

4. That on the other hand, it would appear from Exh. A, contract to sell dated October 6, 1956, that
the property in question, having been transacted and/or bought by the defendant during his
marriage life with the herein movant is a sort of a conjugal property or asset of the defendant and the
herein movant:

5. That accordingly, the herein movant would have been an indispensable party in the case at bar;
specially when the aforesaid transaction was perfected at the time the Civil Code of the Philippines
had already taken effect;

6. That the herein movant having been not impleaded in the case at bar; no jurisdiction over his
person had been vested in the proceedings; therefore whatever acts of levy on the property of which
she is or presumed to be a co-owner and which has never been liquidated yet is an ultra
vires following a well-known principle that a person who is not a party in a given case cannot be
reached by any process or order of the given court;

7. Thus, the rule is well-settled in this jurisdiction that"on the contention that at least one-half of the
conjugal partnership belongs to the husband, and therefore could be validly levied upon to satisfy the
money judgment against said husband, it must be said that as long as the conjugal partnership
subsists, there can be no one-half share of the husband or the wife. Only when the conjugal
partnership is dissolved and liquidated between husband and wife. In the meantime, the interest of
 each in the conjugal partnership property is inchoate and is a mere expectancy. Therefore, any levy
on the conjugal partnership property to satisfy the money judgment against the husband is null and
void.(Quintos Ansaldo vs. Sheriff of Manila, 64 Phil. 116). Conformably to the foregoing doctrine, it is
therefore respectfully submitted that the writ of execution, notice of levy if one has been made and
the notice of sale in public auction are null and void. (Rollo, pp. 38-39.)

The respondent court ruled on this motion by issuing the Order dated March 5, 1980 denying the same for lack of merit.
(Annex B, Petition, Rollo, p. 41.) The petitioner did not seek a further review of the said order of denial either in the
respondent court or in any other tribunal; instead, she resorted to the remedy of filing on June 10, 1980 Civil Case No.
13533.

Technically speaking, if may be said that the judgment rendered in the main action Civil Case No. 7678 does not
constitute res judicata with respect to Civil Case No. 13533. The causes of action in the two (2) cases are not the same;
neither is there Identity of the subject-matter involved. Civil Case No. 7678 was essentially an action to rescind the
Contract to Sell Lot No. 1258-G and to recover Possession thereof plus damages. Civil Case No. 13533, on the other
hand, is to annul the levy and execution sale of Lot No. 1258-F and the improvements existing thereon with respect to the
ONE- HALF (1/2) interest claimed by the petitioner.

However, it may not be denied that the issues raised by the petitioner in Civil Case No. 13533 had already been litigated
and finally decided in the subsequent proceedings taken to enforce the judgment in Civil Case No. 7678. The parties
involved in said proceedings are the same, and so are the subject-matter involved and the cause of action relied upon
by the petitioner in Civil Case No. 13533. The only possible doubt as to whether res judicata may be utilized as a bar to
the filing of Civil Case No. 13533 is that the pronouncement constituting the bar to a new action was not in the main
judgment in Civil Case No. 7678 but only in a subsequent incident therein.

It is Our considered opinion that such circumstance does not militate against the existence of res judicata if all the
requisites for its application are otherwise present. The order denying the petitioner's motion to quash the writ of
execution issued in Civil Case No. 7678 is not merely an interlocutory order. It attained finality due to the failure of the
petitioner to appeal or seek a review of the same. It is not questioned that the trial court had jurisdiction to take
cognizance of the motion to quash the writ of execution and over the parties litigating the same. The order of denial is
on the merits of the motion. There was also Identity of parties involved in the motion to quash the writ of execution,
Identity of subject-matter and Identity of causes of action. The requisites of res judicata being all present in the incident
concerning the issuance of the writ of execution, We feel no hesitancy in declaring that the filing of Civil Case No. 13533
is barred by the principle of res judicata, The underlying philosophy of this doctrine is:

... that parties ought not to be permitted to litigate the same issue more than once; that, when a right
or fact has been judicially tried and determined by a court of competent jurisdiction, or an
opportunity for such trial has been given the judgment of the court, so long as it remains unreversed,
should be conclusive upon the parties and those in privity with them in law or estat........ (2 Moran Rules
of Court, p. 362, citing Sta. Ana v. Narvades, L-24390, Nov. 28, 1969, 30 SCRA 454, 463.)

To sanction the filing of Civil Case No. 13533 is to nullify altogether the proceedings had in connection with the
petitioner's motion to quash the writ of execution and the ruling made by the respondent court thereon which had
already attained the status of finality.

In the least, the institution of Civil Case No. 13533 may be deemed barred by the principle of conclusiveness of judgment
which is expressed in the Rules in the following terms:

Effect of judgments. — The effect of a judgment or final order rendered by a court or judge of the
Philippines, having jurisdiction to pronounce the judgment or order, may be as follows:

xxx xxx xxx

(c) In any other litigation between the same parties or their successors in interest, that only is deemed
to have an adjudged in a former judgment which appears upon its face to have been so adjudged,
or which was actually and necessarily included therein or necessary thereto. (SEC. 49, Rule 39, New
Rules of Court.)

Even assuming, therefore, that Civil Case No. 13533 is on a different cause of action than that involved in Civil Case No.
7678, the ruling in the latter on the motion for the quashing of the levy on execution made on Lot 1258- F which involved
the same subject-matter and parties litigating Civil Case No. 13533 is rendered conclusive under the doctrine of
conclusiveness of judgment.

Petitioner has further argued that her having filed the motion to quash the writ of execution in Civil Case No. 7678 to
assert her claim over ONE- HALF (1/2) interest in Lot No. 1258-F and its improvements does not preclude her from filing a
separate civil action to pursue the same claim. She cites the case of Manila Fidelity and Surety Company vs. Teodoro, et
al., 20 SCRA 463, which holds that "'a third party claim is not an exclusive remedy; the same rule (Section 17, Rule 29),
provides that nothing therein shall prevent such third person from vindicating his claim to the property by any proper
action.'"

We find no merit in this argument. The petitioner did not merely file a third party claim on the property levied upon in
connection with the writ of execution issued in Civil Case No. 7678. Instead of a third party claim which, under the rules,
must be filed with the "officer making the levy and a copy thereof upon the judgment creditor" (Sec. 17, Rule 39, Rules of
Court), the petitioner filed a "Motion to Quash Writ of Execution and All Subsequent Proceedings" (Record on Appeal, p.
17) to which private respondent filed its Opposition (Ibid, pp. 20-24), and to which in turn the petitioner filed her Reply to
Opposition (Ibid, pp. 25-31). When the respondent court issued its Order dated May 5, 1980 denying the aforesaid Motion
to Quash Execution for lack of merit (Ibid, p. 32), the petitioner filed a Motion for Reconsideration (Ibid, pp. 33-34) which
was opposedly the private respondent in writing (Ibid, pp. 35-35-B) and which in turn a Reply to Opposition, was filed by
the petitioner (Ibid., pp. 36-38). In said motions, oppositions and replies repeatedly filed by the parties, the same issues
sought to be reopened by the petitioner in Civil Case No, 13533 had been fully and exhaustively ventilated. It was in the
basis of such exposure of those issues that the respondent court issued its Order denying the motion to quash the writ of
execution, and also the Order denying a motion for a reconsideration of the same.

WHEREFORE, the Petition is DENIED, and the Orders of the respondent Judge issued in Civil Case No. 13533 dated March
5, 1980 and May 15, 1980 are hereby AFFIRMED. With costs against the petitioner.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and Gutierrez, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-48889 May 11, 1989

DEVELOPMENT BANK OF THE PHILIPPINES (DBP), petitioner,

vs.
THE HONORABLE MIDPAINTAO L. ADIL, Judge of the Second Branch of the Court of First Instance of Iloilo and SPOUSES
PATRICIO CONFESOR and JOVITA VILLAFUERTE, respondents.

GANCAYCO, J.:

The issue posed in this petition for review on certiorari is the validity of a promissory note which was executed in
consideration of a previous promissory note the enforcement of which had been barred by prescription.

On February 10, 1940 spouses Patricio Confesor and Jovita Villafuerte obtained an agricultural loan from the Agricultural
and Industrial Bank (AIB), now the Development of the Philippines (DBP), in the sum of P2,000.00, Philippine Currency, as
evidenced by a promissory note of said date whereby they bound themselves jointly and severally to pay the account in
ten (10) equal yearly amortizations. As the obligation remained outstanding and unpaid even after the lapse of the
aforesaid ten-year period, Confesor, who was by then a member of the Congress of the Philippines, executed a second
promissory note on April 11, 1961 expressly acknowledging said loan and promising to pay the same on or before June
15, 1961. The new promissory note reads as follows —
 I hereby promise to pay the amount covered by my promissory note on or before June 15, 1961. Upon
my failure to do so, I hereby agree to the foreclosure of my mortgage. It is understood that if I can
secure a certificate of indebtedness from the government of my back pay I will be allowed to pay the
amount out of it.

Said spouses not having paid the obligation on the specified date, the DBP filed a complaint dated September 11, 1970
in the City Court of Iloilo City against the spouses for the payment of the loan.

After trial on the merits a decision was rendered by the inferior court on December 27, 1976, the dispositive part of which
reads as follows:

WHEREFORE, premises considered, this Court renders judgment, ordering the defendants Patricio
Confesor and Jovita Villafuerte Confesor to pay the plaintiff Development Bank of the Philippines,
jointly and severally, (a) the sum of P5,760.96 plus additional daily interest of P l.04 from September 17,
1970, the date Complaint was filed, until said amount is paid; (b) the sum of P576.00 equivalent to ten
(10%) of the total claim by way of attorney's fees and incidental expenses plus interest at the legal
rate as of September 17,1970, until fully paid; and (c) the costs of the suit.

Defendants-spouses appealed therefrom to the Court of First Instance of Iloilo wherein in due course a decision was
rendered on April 28, 1978 reversing the appealed decision and dismissing the complaint and counter-claim with costs
against the plaintiff.

A motion for reconsideration of said decision filed by plaintiff was denied in an order of August 10, 1978. Hence this
petition wherein petitioner alleges that the decision of respondent judge is contrary to law and runs counter to decisions
of this Court when respondent judge (a) refused to recognize the law that the right to prescription may be renounced or
waived; and (b) that in signing the second promissory note respondent Patricio Confesor can bind the conjugal
partnership; or otherwise said respondent became liable in his personal capacity. The petition is impressed with merit. The
right to prescription may be waived or renounced. Article 1112 of Civil Code provides:

Art. 1112. Persons with capacity to alienate property may renounce prescription already obtained,
but not the right to prescribe in the future.

Prescription is deemed to have been tacitly renounced when the renunciation results from acts which
imply the abandonment of the right acquired.

There is no doubt that prescription has set in as to the first promissory note of February 10, 1940. However, when
respondent Confesor executed the second promissory note on April 11, 1961 whereby he promised to pay the amount
covered by the previous promissory note on or before June 15, 1961, and upon failure to do so, agreed to the
foreclosure of the mortgage, said respondent thereby effectively and expressly renounced and waived his right to the
prescription of the action covering the first promissory note.

This Court had ruled in a similar case that –

... when a debt is already barred by prescription, it cannot be enforced by the creditor. But a new
contract recognizing and assuming the prescribed debt would be valid and enforceable ... . 1

Thus, it has been held —

Where, therefore, a party acknowledges the correctness of a debt and promises to pay it after the
same has prescribed and with full knowledge of the prescription he thereby waives the benefit of
prescription. 2

This is not a mere case of acknowledgment of a debt that has prescribed but a new promise to pay the debt. The
consideration of the new promissory note is the pre-existing obligation under the first promissory note. The statutory
limitation bars the remedy but does not discharge the debt.

A new express promise to pay a debt barred ... will take the case from the operation of the statute of
limitations as this proceeds upon the ground that as a statutory limitation merely bars the remedy and
does not discharge the debt, there is something more than a mere moral obligation to support a
 promise, to wit a – pre-existing debt which is a sufficient consideration for the new the new promise;
upon this sufficient consideration constitutes, in fact, a new cause of action. 3

... It is this new promise, either made in express terms or deduced from an acknowledgement as a
legal implication, which is to be regarded as reanimating the old promise, or as imparting vitality to
the remedy (which by lapse of time had become extinct) and thus enabling the creditor to recover
upon his original contract. 4

However, the court a quo held that in signing the promissory note alone, respondent Confesor cannot thereby bind his
wife, respondent Jovita Villafuerte, citing Article 166 of the New Civil Code which provides:

Art. 166. Unless the wife has been declared a non compos mentis or a spend thrift, or is under civil
interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real
property of the conjugal partnership without, the wife's consent. If she ay compel her to refuses
unreasonably to give her consent, the court m grant the same.

We disagree. Under Article 165 of the Civil Code, the husband is the administrator of the conjugal partnership. As such
administrator, all debts and obligations contracted by the husband for the benefit of the conjugal partnership, are
chargeable to the conjugal partnership. 5 No doubt, in this case, respondent Confesor signed the second promissory
note for the benefit of the conjugal partnership. Hence the conjugal partnership is liable for this obligation.

WHEREFORE, the decision subject of the petition is reversed and set aside and another decision is hereby rendered
reinstating the decision of the City Court of Iloilo City of December 27, 1976, without pronouncement as to costs in this
instance. This decision is immediately executory and no motion for extension of time to file motion for reconsideration
shall be granted.

SO ORDERED.

Narvasa and Cruz, JJ., concur.

Griño-Aquino, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-49084 October 10, 1985

MATILDE ALAVADO in her own right and as natural guardian of IDA VILMA, IMELDA AND ROLANDO, all surnamed
ALAVADO petitioner,
vs.
CITY GOVERNMENT OF TACLOBAN (ENGINEER'S OFFICE AND WORKMEN'S COMPENSATION COMMISSION, now the LABOR
APPEALS AND REVIEW STAFF), respondents.

Bonifacio L. Ramo for petitioner.

Francisco C. Pedrosa for respondent City Government.

Ernesto H. Cruz and Emilia Andres for respondent labor.

CUEVAS, J.:
Assailed in the instant petition is the decision1 dated November 29, 1975 of the defunct Workmen's Compensation
Commission which dismissed petitioner's death benefits claim for the death of her husband, Ricardo Alavado, a former
employee of the City Engineer's Office in Tacloban City.

The evidence on record discloses that the late Ricardo A. Alavado was employed as a carpenter-foreman by the City
Engineer's Office, Tacloban City with a daily wage of P13.12. His last day of service was on April 19, 1974 since he was on
leave from April 23, 1974 to May 23, 1974. On August 6, 1974 when he reported for work, he was no longer under the
supervision of respondent city. He suffered severe headache when he was supervising laborers on a construction project
in Tolosa, Leyte. He died the following day of CVA-Cerebral Hemorrhage.

Petitioner, the surviving spouse, filed a claim for death benefits in her own behalf and in behalf of her minor children.
Respondent city filed a notice of controversion of the claimant's right to compensation on December 10, 1974. On
March 31, 1975, the hearing officer of Regional Office No. 9 in 'Tacloban City issued an award granting petitioner the
sum of P5,200.00 as death benefits and P200.00 as reimbursement of burial expenses.

Respondent city appealed. On November 29, 1975, a decision was rendered by the Commission dismissing petitioner's
death benefits claim, holding that—

xxx xxx xxx

While it is true that the deceased has suffered from the ailment which resulted in his death while he
wall the performance of his work as a Carpenter Foreman this case must be denied on tile ground of
lack of filiation between the herein claimant and the deceased. It is a settled rule that the status of
dependency of a spouse arises from the fact that a marriage exists. A showing of marital status is
essential. In this case the herein claimant Matilde Alvarado presented a marriage certificate issued by
the Sto. Nino Parish of Tacloban City as proof of her marriage to t he deceased. This certification is not
an authentic proof of marital status. To prove filiation as a spouse and, therefore claim as a
dependent 'within the meaning of the Act, the suviving spouse-claimant must show either the original
of the marriage contract or the marriage certificate duly issued by the local Civil Registrar of the
place where the marriage was solemnized. In the absence thereof, as when the records are
destroyed or not available due to fire or other causes, secondary evidence may be presented
consisting of an affidavit of the claimant and at least three witnesses to the marriage cohabitation. As
to the filiation of the children the same is establish by the presentation of the birth certificate. In this
case only the baptismal certificates of all the children were presented in evidence by the claimant. A
baptismal certificate is not sufficient because it merely proves the fact that originated its execution,
and the date of the same, namely the administration of the sacrament of baptism on the date
specified. It is not an authentic proof as to the statements made therein respecting the kinsfolk of the
person baptized and the presentation of such baptismal certificate does not prove filiation for the
purpose of establishing the status of dependency.

Dissatisfied with respondent Commission's decision, claimant spouse filed the instant petition raising the following issues:

May a marriage certificate attesting to the fact that claimant and deceased were in fact married be
considered satisfactory proof of marital status in the absence of any evidence to the contrary? and

II

Whether or not the respondent commission committed a grave abuse of discretion amounting to lack
of jurisdiction on the matter.

The petition is impressed with merit. Its grant is therefore in order. While admitting the compensability of the claim,
respondent Commission nevertheless dismissed the same due to the alleged failure of petitioner claimant to prove that
she was legally married to the deceased. In making the said pronouncement, respondent Commission relied solely on
the absence of a copy, or a certified copy of petitioner's marriage contract with the deceased Alavado. What was
submitted by her is a mere copy issued by the church authorities where the questioned marriage was solemnized. 2 The
said document shows that petitioner claimant and the deceased were married on August 9, 1939. Since then, they lived
together as man and wife continuously for a period of 35 years in their conjugal abode up to the time of Alavado's
death.
Section 5(bb) of Rule 31 of the Rules of Court provides:

Sec. 5. Disputable Presumptions.—The following presumptions are satisfactory if uncontradicted, but

may be contradicted and overcome by other evidence.

xxx xxx xxx

That a man and a woman deporting themselves as husband and wife have entered into a lawful
contract of marriage.

xxx xxx xxx

Courts look upon this presumption with great favor and it could not be lightly repelled. It may be rebutted only by
cogent proof to the contrary or by evidence of a higher than ordinary quality. The rationale behind this presumption
could be found in the case of Adong vs. Cheong Seng Gee,3 which runs this wise—

The basis of human society throughout the civilized world is that of marriage. Marriage in this
jurisdiction is not only a civil contract but it is a new relation, an institution in the maintenance of which
the public is deeply interested. Consequently, every intendment of the law leans toward legalizing
matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any
counter-presumption or evidence special to the case, to be in fact married. The reason is that such is
the common order of society, and if the parties qwere not what they thus hold themselves out as
being, they would be living in the constant violation of decency and of law. A presumption
established by our Code of Civil Procedure is 'that a man and a woman deporting themselves as
husband and wife have entered into a lawful contract of marriage. (Sec. 334, No. 28) Semper —
praesumitur pro matrimonio —Always presume marriage.

So much so that once a man and a woman have lived as husband and wife and such relationship is not denied nor
contradicted the presumption of their being married must be admitted as a fact. 4

Likewise, the declaration of the husband is competent evidence to show the fact of marriage. Similarly a witness who
was present at the time the marriage was solemnized, is a competent witness to establish the existence of said
marriage. 5 Indeed, public and open cohabitation as husband and wife, birth and baptismal certificates of children born
unto them after the celebration of the questioned marriage, and a statement of such marriage in subsequent document
were held to be competent evidence as proof of said marriage . 6

A review of the records of this case failed to disclose any evidence whatsoever which will overthrow the aforementioned
presumption in favor of claimant's marriage to the deceased Alavado. But what wrote finish to this issue-legality of the
claimant's marriage to the deceased is the marriage certificate submitted later by the claimant.7In the said document.
the contracting parties appeared to be Ricardo Alavado and Matilde Valdesco The marriage was solemnized on
August 19, 1939 by Fr. Ignacio Mora, priest of Tacloban, Leyte. It is certified to be a true copy of the original issued by the
local Civil Registrar of the City of Tacloban. The said document indubitably establishes claimant marriage to the
deceased Alavado,

In the answer filed by City Fiscal Pedroza for respondent City, he averred that Alavado was on longer an employee of
respondent city government at the time of his death, hence the city is not liable to pay compensation benefits.

We find respondent city's contention untenable. Such a defense should have been raised before the Commission within
the period prescribed by the Workmen's Compensation Act 8 within fourteen (14) days from death or within ten (10) days
from knowledge thereof. Having failed to controvert the said claim within the prescribed reglementary period, its
compensability is now beyond challenge. Respondent city's failure to controvert the claim within the aforesaid period is
a waiver of its right to do so.9

The Workmen's Compensation Act, being a social legislation, aimed at protecting the rights of the workingmen in
consonance with the social justice guarantee of the Constitution, its provision must be interpreted liberally in favor of
laborers or workers. This basic mandate should guide all tribunals and agencies in the resolution of cases of this nature
more specially those involving poor claimants who have come to court as pauper litigants.

WHEREFORE, the decision dated November 29, 1979 of the defunct Workmen's Compensation Commission is hereby SET
ASIDE. The award of the Hearing Officer of Regional Office No. 9 of Tacloban City is REINSTATED.
SO ORDERED.

Makasiar, C.J., Concepcio, Jr., Abad Santos, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente, Alampay and Patajo, JJ.,
concur.

Teehankee, J., in the result.

Aquino J., took no part.

Melencio Herrera is on leave.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 96602 November 19, 1991

EDUARDO ARROYO, JR., petitioner,

vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 96715 November 19, 1991

RUBY VERA-NERI, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS, respondents.

Efren C. Carag for Eduardo C. Arroyo, Jr.

Singson, Valdes & Associates for Ruby Vera Neri.

RESOLUTION

FELICIANO, J.:

In G.R. No. 96602, the Court summarized the facts of the case in this manner:

Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial Court (RTC), Branch 4, of
Benguet against his wife, Ruby Vera Neri, and Eduardo Arroyo committed on 2 November 1982 in the City of
Baguio.

Both defendants pleaded not guilty and after trial, the RTC convicted petitioner and Mrs. Ruby Vera Neri of
adultery as defined under Article 333 of the Revised Penal Code.

The essential facts of the case, as found by the trial court and the Court of Appeals, are as follows:

... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company of Mrs. Linda Sare and witness
Jabunan, took the morning plane to Baguio. Arriving at around 11:00 a.m., they dropped first at the
house of Mrs. Vera, mother of Ruby Vera at Crystal Cave, Baguio City then proceeded to the Mines
View Park Condominium of the Neri spouses. At around 7:00 o' clock in the evening, accused Eduardo
 Arroyo arrived at the Neris' condominium. Witness opened the door for Arroyo who entered, he went
down to and knocked at the master's bedroom where accused Ruby Vera Neri and her companion
Linda Sare were. On accused Ruby Vera Neri's request, Linda Sare left the master's bedroom and
went upstairs to the sala leaving the two accused. About forty-five minutes later, Arroyo Jr. came up
and told Linda Sare that she could already come down. Three of them, thereafter, went up to the
sala then left the condominium. (Court of Appeals Decision, p. 4) 1

Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals' Decision. Petitioner Ruby Vera Neri also moved for reconsideration or a new trial, contending that a
pardon had been extended by her husband, private complain ant Dr. Jorge B. Neri, and that her husband had later con traded marriage with another woman with whom he is
presently co-habiting. Both motions were denied by the Court of Appeals.

Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February 1991 which this court denied in a Resolution dated 24 April 1991.

In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715) dated 19 February 1991.

Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion dated 23 May 1991 for consolidation o G.R. No. 96602 with G.R. No. 96715.

On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third Division in accordance with long-stand ing practice of the Court.

On 29 July 1991, the Third Division deliberated upon the case which was then assigned to the ponente for the writing of the Court's Resolution. 2

On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying that the case against petitioners be dismissed as he had
"tacitly consented" to his wife's infidelity. 4

Petitioners then filed their respective motions praying for the dismissal or for the granting of new trial of the case
claiming a basis for their motions Dr. Neri's manifestation. The Solicitor General was then asked to comment on
the manifestation; hi comment was filed with this Court on 18 October 1991. 5

In October 1991, the consolidated cases were, again in accordance with long-standing practice of the Court, assigned to the First Division upon the assignment of the ponente to
that division. On 4 November 1991, the consolidated cases were re deliberated upon by the members of the First Division who reached the same conclusion as the members of
the Third Division of the Court.

In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the following contentions:

1. Dr. Neri's affidavit of desistance which states that the case was filed out of "pure misunderstanding' raises questions as to the truth of the alleged admission made
by Mrs. Neri;

2. The other prosecution witnesses' corroborative testimonies merely proved the existence of an illicit affair but not that adultery was committed on the date and
place in question;

3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged subsequent marriage to another woman which, if proven would preclude either of the
spouses from filing charges of adultery or concubinage against each other.

In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Appeals:

1. The Honorable Court of Appeals gravely erred in not granting the motion for reconsideration and/or new trial of the petitioner;

2. The Honorable Court of Appeals gravely erred by violating the constitutional rights of petitioner against self-incrimination;
 3. The Honorable Court of Appeals erred in failing to take into consideration the material inconsistencies of the testimony of the complaining witness; and

4. The Honorable Court of Appeals gravely erred in discarding medical testimony as to the physical impossibility of the petitioner to have committed the crime
charged. 6

The issues in the consolidated cases may be summarized as follows:

1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable doubts on his credibility;

2. Whether or not Mrs. Neri's constitutional right against self-incrimination had been violated;

3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing the criminal complaint on the ground of pari delicto; and

4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a new trial.

Deliberating on the:

1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner Arroyo has failed to show any ground that would warrant the Court reversing its Resolution dated
24 April 1991; and on the

2. Petition for Review docketed as G.R. No. 96715, the Court considers that petitioner Ruby Vera Neri has failed to show reversible error on the part of the Court of Appeals in
issuing its Decision dated 21 May 1990 and its Resolution, dated 18 December 1990.

Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the criminal case on the basis of Dr. Neri's pardon. He, together with petitioner Neri, now cites the same
affidavit in the effort to cast doubts on the credibility of Dr. Neri's testimony given before the trial court. However, in the Court's Resolution, dated 24 April 1991, dismissing the
Petition for certiorari in G.R. No. 96602, the Court held that:

It has been our constant holding that:

In certiorari proceedings under Rule 45, the findings of fact of the lower court as well its conclusions on credibility of witnesses are generally not
disturbed, the question before the court being limited to questions of law (Rule 45, Sec. 2). Specifically, the conclusions of the trial court on the
credibility of witnesses are given considerable weight, since said court is in the best position to observe the demeanor, conduct and attitude of
witnesses at the trial. (Aguirre v. People, 155 SCRA 337 [1987]; emphasis supplied)

Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this stage. Besides, the Court does not believe that such an admission by an unfaithful wife was
inherently improbable or impossible. 7 (Emphasis supplied)

The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim that Mrs. Neri's constitutional right against self-incrimination had been disregarded when her
admission to her husband in the privacy of their conjugal home that she had indeed lain with petitioner Arroyo was taken into account by the trial court, to wit:

Dr. Jorge Neri was also presented as a witness and he testified that sometime in December of 1982, he surprised his wife while she was looking at some photographs
in their bedroom in their house in Dasmariñas Village, Makati. Accused Ruby Vera Neri then turned pale and started for the door. Struck by this unusual behavior, Dr.
Neri started looking around the dressing room and he came upon a Kodak envelope with film negatives inside. He took the negatives for printing and a few days
 later, armed with the photographs which showed his wife in intimate bedroom poses with another man, confronted Ruby Vera Neri. It was at this point that Ruby
Vera Neri admitted to her husband that Eduardo Arroyo was her lover and that they went to bed in Baguio on 2 and 3 November 1982.

xxx xxx xxx

As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988]) that:

The right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or
confession or admissions from respondent-accused.(emphasis supplied)

In the present case, Dr. Neri was not a peace officer nor an investigating officer conducting a custodial interrogation, hence, petitioner cannot now claim that Mrs.
Neri's admission should have been rejected.

In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:

The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him.

The rule is that any person, otherwise competent as witness, who heard the confession, is competent to testify as to substance of what he heard if he
heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance.

Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous statement, not elicited through
questioning, but given in an ordinary manner, whereby the accused orally admitted having slain the victim.

We also note that the husband is not precluded under the Rules of Court from testifying against his wife in criminal cases for a crime committed by one against the
other (Section 22, Rule 129, Revised Rules of Court).

In short, the trial court and the Court of Appeals did not err in admitting Dr. Neri's testimony as he was a competent witness. Neither was said testimony rendered
inadmissible by the constitutional provision on the right to remain silent and the right to counsel of a "person under investigation for the commission of an offense."

Petitioner next claims that the trial court erred in convicting him on the basis of the failure of Ruby Vera Neri to take the witness stand. In People v. Gargoles (83
SCRA 282 [1978]), it was held that:

We have held that an accused has the right to decline to testify at the trial without having any inference of guilt drawn from his failure to go on the
witness stand. Thus, a verdict of conviction on the basis, solely or mainly, of the failure or refusal of the accused to take the witness stand to deny the
charges against him is a judicial heresy which cannot be countenanced. Invariably, any such verdict deserves to be reserved.

Such situation does not obtain, however, in the case at bar. For while the trial court took note of the failure of defendant to take the witness stand to
deny the charge against him, the same was not the main reason, much less the sole basis, of the trial court in holding, as credible the testimony of
complainant, and in ultimately concluding that the crime of rape had been committed by the accused-appellant. (Emphasis supplied)

Examination of the trial court decision here shows that said failure to testify was not the sole nor the main basis of the conviction. Aside from accused's failure to
deny Dr. Neri's testimony, the trial court also considered the testimonies of Dr. Neri and other prosecution witnesses and the photographs of the two accused in
intimate poses (and three of which showed them half naked in bed). 8 (Emphasis supplied)

We turn to the contention that pari-delicto "is a valid defense to a prosecution for adultery and concubinage and that in such a case "it would be only a hypocritical pretense for
such spouse to appear in court as the offended spouse." 9

In the first place, the case cited does not support petitioner Neri's position. In the Guinucud case, the Court found that the complaining husband, by entering into an agreement
with his wife that each of them were to live separately and could marry other persons and by filing complaint only about a year after discovering his wife's infidelity, had
"consented to, and acquiesced in, the adulterous relations existing between the accused, and he is, therefore, not authorized by law to institute the criminal proceedings." In fine,
the Guinucud case refers not to the notion of pari delicto but to consent as a bar to the institution of the criminal proceedings. In the present case, no such acquiescence can be
implied: the accused did not enter into any agreement with Dr. Neri allowing each other to marry or cohabit with other persons; and Dr. Neri promptly filed his complaint after
discovering the illicit affair.
Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article 1411 of the Civil Code. The Court notes that Article 1411 of the Civil Code relates

The case at bar does not involve any illegal contract which either of the
only to contracts with illegal consideration. 10

contracting parties is now seeking to enforce.

Petitioners also contend that Dr. Neri's manifestation which reads:

2. Even before I filed the complaint in court and before the pardon that I had extended to my wife
and her co-accused, I was in reality aware of what was going on between and therefore, tacitly
consented to my wife's infidelity, ...

should result in the dismissal of the case or, at the very least, in the remand of the case for new trial claiming
that in People v. Camara 11 it was held that "the consent of the spouse is valid defense to a prosecution for
adultery and/or concubinage." 12

Dr. Neri's manifestation amounts in effect to an attempted recantation of testimony given by him before the
trial court. It is settled that not all recantations by witnesses should result in the granting of a new
trial. 13 In People v. Follantes and Jacinto, 14 it was held that:

... [R]ecantation by witnesses called on behalf of the prosecution does not necessarily entitle
defendant to a new trial. The question whether a new trial shall be granted on this ground depends
on all the circumstances of the case, including the testimony of the witnesses submitted on the motion
for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the
court to deny a new trial where it is not satisfied that such testimony is true. ... 15 (Emphasis supplied)

Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated recantation. Dr. Neri had two (2) previous occasions to make the claim contained in his

dated 16 February 1989 submitted before the Regional Trial Court of Makati,
manifestation: first, in the compromise agreement 16

Branch 149 in relation to Civil Case No. M-001; and second, his affidavit 17 dated 23 November 1988 submitted
to the Court of Appeals. Instead, however, these two (2) documents merely stated that Dr. Neri had pardoned
petitioners 18 and the complaint was filed out of "pure misunderstanding" 19 without hinting that Dr. Neri knew of
the adulterous relations. It appears to the Court that Dr. Neri's manifestation was so worded as to attempt to
cure the deficiency noted by the Court in the two (2) previous documents in the disposition of the petition in
G.R. No. 96602:

Petitioner will find no solace in the cases he cites, in support of his prayer to dismiss the case based on
Dr. Neri's pardon. People v. Camara (100 Phil. 1098 (1957) is inapplicable as the affidavit there
expressly stated that the wife had consented to the illicit relationship. In Gomez v. Intermediate
Appellate Court (135 SCRA 620 [1985]) a case involving estafa, the criminal case was dismissed as the
affidavit of desistance specifically stated that the accused had nothing to do whatsoever with the
crime charged. In the present case, the pardon did not state that Dr. Neri had consented to the illicit
relationship petitioner and Mrs. Neri. Neither did it state that the case was filed against the wrong
parties. 20

Moreover, while the manifestation is dated 14 May 1991, which incidentally is also the date of petitioner Arroyo's motion for reconsideration, it was subscribed to only on 23 August
1991.

Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the compromise agreement operate as a pardon meriting a new trial. The Court notes that the cases
of People v. Camara (supra) and Gomez v. Intermediate Appellate Court (supra) were the very same cases which petitioner Arroyo cited in G.R. No. 96602 which the Court has
already held to be inapplicable in the present case.

The rule on pardon is found in Article 344 of the Revised Penal Code which provides:

ART. 344. ... — The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both parties, if they are both alive, nor in any case, if he shall have consented
or pardoned the offenders.
 xxx xxx xxx

While there is a conceptual difference between consent and pardon in the sense that consent is granted prior to the adulterous act while pardon is given after the illicit

nevertheless, for either consent or pardon to benefit the accused, it must be given prior to the filing of a
affair, 21

criminal complaint. 22 In the present case, the affidavit of desistance was executed only on 23 November 1988
while the compromise agreement was executed only on 16 February 1989, after the trial court had already
rendered its decision dated 17 December 1987 finding petitioners guilty beyond reasonable doubt. Dr. Neri's
manifestation is both dated and signed after issuance of our Resolution in G.R. No. 96602 on 24 April 1991.

It should also be noted that while Article 344 of the Revise Penal Code provides that the crime of adultery
cannot be prosecuted without the offended spouse's complaint, once the complaint has been filed, the
control of the case passes to the public prosecutor. 23 Enforcement of our law on adultery is not exclusively, nor
even principally, a matter of vindication of the private honor of the offended spouse; much less is it a matter
merely of personal or social hypocrisy. Such enforcement relates, more importantly, to protection of the basic
social institutions of marriage and the family in the preservation of which the State has the strongest interest; the
public policy here involved is of the most fundamental kind. In Article II, Section 12 of the Constitution there is
set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect find strengthen the family as a basic
autonomous social institution ...

The same sentiment has been expressed in the Family Code o the Philippines in Article 149:

The family, being the foundation of the ration, is a basic social institution which public policy cherishes
and protects. Consequently, family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given effect.

In U.S. v. Topiño, 24 the Court held that:

... The husband being the head of the family and the only person who could institute the prosecution
and control its effects, it is quite clear that the principal object in penalizing the offense by the state
was to protect the purity of the family and the honor of the husband, but now the conduct of the
prosecution, after it is once commenced by the husband, and the enforcement of the penalties
imposed is also a matter of public policy in which the Government is vitally interested to the extent of
preserving the public peace and providing for the general welfare of the community. ... 25 (Emphasis
supplied)

As to the claim that it was impossible for petitioner Neri to engage in sexual intercourse a month after her ceasarian operation, the Court agrees with the Solicitor General that this
is a question of fact which cannot be raised at this stage. In any case, we find no reason to overturn the Court of Appeals' finding that "a woman who has the staying power to
volley tennis bags for fifteen minutes at the [John Hay] tennis court would not be incapable of doing the sexual act" which ball play was followed, as noted by the Court of
Appeals "by a picture taking of both accused in different intimate poses." 26

ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED for lack of merit and this denial is FINAL. The Petition for Review in G.R. No. 96715 is hereby
similarly DENIED for lack of merit. Costs against petitioners.

Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed on 23 August 1991 be forwarded to the Department of Justice for inquiry into the possible liability
of Dr. Neri for perjury.

Narvasa (Chairman), Cruz, Griño-Aquino and Medialdea, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28394 November 26, 1970

PEDRO GAYON, plaintiff-appellant,

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

German M. Lopez for plaintiff-appellant.

Pedro R. Davila for defendants-appellees.

CONCEPCION, C.J.:

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

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

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

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

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

A reconsideration of this order having been denied, plaintiff interposed the present appeal, which is well taken.
Said order is manifestly erroneous and must be set aside. To begin with, it is not true that Mrs. Gayon "has nothing to do
with the land subject of plaintiff's complaint." As the widow of Silvestre Gayon, she is one of his compulsory heirs2and has,
accordingly, an interest in the property in question. Moreover, her own motion to dismiss indicated merely "a necessity of
amending the complaint," to the end that the other successors in interest of Silvestre Gayon, instead of the latter, be
made parties in this case. In her opposition to the aforesaid motion for reconsideration of the plaintiff, Mrs. Gayon
alleged, inter alia, that the "heirs cannot represent the dead defendant, unless there is a declaration of heirship."
Inasmuch, however, as succession takes place, by operation of law, "from the moment of the death of the
decedent"3 and "(t)he inheritance includes all the property, rights and obligations of a person which are not extinguished
by his death,"4 it follows that if his heirs were included as defendants in this case, they would be sued, not as
"representatives" of the decedent, but as owners of an aliquot interest in the property in question, even if the precise
extent of their interest may still be undetermined and they have derived it from the decent. Hence, they may be sued
without a previous declaration of heirship, provided there is no pending special proceeding for the settlement of the
estate of the decedent.5

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

No suit shall be filed or maintained between members of the same family unless it should appear that
earnest efforts toward a compromise have been made, but that the same have failed, subject to the
limitations in article 2035.

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

Family relations shall include those:

(1) Between husband and wife;

(2) Between parent and child;

(3) Among other ascendants and their descendants;

(4) Among brothers and sisters.

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

WHEREFORE, the order appealed from is hereby set aside and the case remanded to the lower court for the inclusion, as
defendant or defendants therein, of the administrator or executor of the estate of Silvestre Gayon, if any, in lieu of the
decedent, or, in the absence of such administrator or executor, of the heirs of the deceased Silvestre Gayon, and for
further proceedings, not inconsistent with this decision, with the costs of this instance against defendant-appellee,
Genoveva de Gayon. It is so ordered.

Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

Dizon and Makasiar, JJ., are on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-25609 November 27, 1968

MARGARET ANN WAINRIGHT VERSOZA, JOSE MA. VERSOZA, JR., CHARLES JOHN VERSOZA and VIRGINIA FELICE
VERSOZA, plaintiffs-appellants,
vs.
JOSE MA. VERSOZA, defendant-appellee.

William H. Quasha and Associates for plaintiffs-appellants.

Deogracias T. Reyes and Associates and Jose M. Luison for defendant-appellee.

SANCHEZ, J.:

The question before us, framed in legal setting, is the correctness of the lower court's order dismissing, without prejudice,
the complaint seeking, inter alia, future support upon the ground that there is no allegation therein that earnest efforts
toward a compromise were made but that the same have failed, in infringement of Article 222 of the Civil Code.

With this problem in mind, we turn to the pivotal facts.

On March 4, 1964, a verified complaint, later amended, for P1,500.00 monthly support, support in arrears, and damages,
and custody of children, with a petition for support pendente lite1 was lodged against Jose Ma. Versoza by his wife,
Margaret Ann Wainright Versoza, and their three minor children, Jose Ma. Versoza, Jr., Charles John Versoza and Virginia
Felice Versoza. Reasons given are that defendant has abandoned plaintiffs without providing for their support and
maintains illicit relations with another woman.

Defendant's answer attacked the complaint on the claim that it is premature and/or that it states no cause of action.
Because, the complaint which involves members of the same family2 does allege earnest efforts toward a compromise
before the complaint was filed as set forth in the statute mentioned at the start of this opinion. Then followed defendant's
motion for preliminary hearing on jurisdiction. Defendant there argued that compliance with Article 222 of the Civil Code
aforesaid was a condition precedent and should have been alleged in the complaint.

On February 22, 1965, following appropriate proceedings, the lower court came out with its first appealed order. It there
resolved to dismiss the complaint without prejudice, upon the ground that there was no showing that efforts have been
exerted to settle the case amicably before suit was started.

Plaintiffs moved to reconsider. Annexed to its motion was an affidavit of their counsel to the effect that before court
action was taken efforts were made to settle the case amicably, but which were fruitless.

On March 30, 1965, the lower court brushed aside this motion.

In an effort to conform to the position taken by the lower court, plaintiffs filed a second motion for the reconsideration of
the orders of February 22, and March 30, 1965. Plaintiffs at the same time sought admission of their second amended
complaint in which the required averment was made to obviate the objection to their complaint. They there alleged
that before starting the present suit, they sought amicable settlement but were unsuccessful.

On June 22, 1965, the second motion for reconsideration was likewise denied by the lower court "(f)or lack of merit."

The dismissal orders are now the subject of appeal.

1. Plaintiffs argue that the Civil Code requirement of attempt to reach a compromise and of its failure need not be
alleged in the complaint. They claim that some such fact may be proved either at the main hearing or at the preliminary
hearing on the motion to dismiss.

The text of Article 222 of the Civil Code is this: "No suit shall be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a compromise have been made, but that the same have
failed, subject to the limitations in article 2035."3 The requirement in Article 222 has been given more teeth by Section 1(j),
Rule 16 of the Rules of Court, which states as ground for a motion to dismiss that "(t)he suit is between members of the
same family and no earnest efforts towards a compromise have been made."
The cumulative impact of the statute and the rule just adverted to is that earnest efforts to reach a compromise and
failure thereof must — ordinarily — be alleged in the complaint. The Civil Code provision that "(n)o suit shall be filed or
maintained" simply means that the attempt to compromise and inability to arrive thereat is a condition precedent to the
filing of the suit. As such it is a part of plaintiffs' cause of action. Justice J.B.L. Reyes and Judge Puno4bolstered this view
with their statement that "(t)he terms of article 222 require express allegation of an attempt to compromise and its failure;
otherwise there is no cause of action stated."

2. The foregoing, however, is but a statement of the general rule. Future support operates outside the ambit thereof.
Mucius Scaevola5 expresses the view that no objection can be made to a compromise "cuando el derecho es
renunciable, eminentemente privado." Scaevola, however, emphasizes: "(P)ero el derecho a la vida no lo es." This brings
us to the legal provision Scaevola commented upon, namely, Article 1814 of the Spanish Civil Code of 1889, which
reads:

Art. 1814. No puede transigir sobre el estado civil de las personas, ni sobre las cuestiones matrimoniales, ni
sobre alimentos futuros.6

So it is, that Colin y Capitant7 observed: "Una cosa es que la transaccion sea en principio un acto licito, con exclusion de
aquellas materias a que se refiere el art. 1814 del Codigo civil.

The philosophy behind the rule is best expressed by Manresa8 in the following terms:

Aunque el Codigo no lo diga expresamente, desde luego se comprende que, por regla general, pueden ser
objeto de transaccion todas las cosas que estan en el comercio de los hombres, siempre que no se halle
prohibido por la ley. Esta es la regla general; pero hay casos en que, por razones de moralidad o por otras
consideraciones no menos atendibles, no puede admitirse la transaccion, como sucede, por ejemplo, en
materia de estado civil de las personas, de cuestiones matrimoniales y de alimentos, y otros que tampoco son
susceptibles de transaccion por afectar al interes publico o social y no estar en el dominio o en la potestad de
los particulares el sustraerlos, a los efectos rigurosos de la ley, segun ocurre con los delitos y demas
transgresiones punibles del derecho.

xxx xxx xxx

Restanos ocuparnos de otra prohibicion impuesta tambien por el art. 1814 en su ultima parte. Nos referimos a
la establecida por el mismo respecto de la transaccion sobre los alimentos futuros; prohibicion que se funda
en poderosas razones de moralidad que no pueden ocultarse, ni pasar desapercibidas para nadie que
detenidamente medite sobre ello.

En efecto, en rigor de principios, la lay concede los alimentos en razon a la necesidad que de ellos tiene el
alimentista pora vivir, y es evidente que transigir sobre ellos, equivaldria a renunciar en parte a la vida, como
ha dicho un autor ("Coleccion de las Instituciones jurisdicas politicas de los pueblos modernos," Tomo 13, pag.
792); y si no le fueran necesarios pudiendo por tal motivo renunciarlos, no cabria tampoco transaccion,
porque no tendria derecho a percibirlos.

The foregoing but emphasizes the concept of support. For, support is, amongst others, everything that is indispensable for
sustenance.9 The right to support cannot be: (1) renounced; (2) transmitted to third persons; nor (3) compensated with
what the recipient owes the obligor.10 Compensation may not even be set up against a creditor who has a claim for
support due by gratuitous title.11 Of course, support in arrears is a different thing altogether. It may be compensated,
renounced and transmitted by onerous or gratuitous title.12 In Coral vs. Gallego,13 the Court of Appeals has had occasion
to declare that the right to support is not susceptible of future transactions under Article 1814 of the old Civil Code.

Article 1814 of the Spanish Civil Code was reproduced in Article 2035 of the new Civil Code — in an expanded form — as
follows:

ART. 2035. No compromise upon the following questions shall be valid:

(1) The civil status of persons;

(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
 (5) The jurisdiction of courts;
(6) Future legitime.

It thus appears that Article 2035 has roots deeper than Article 222. For, whereas Article 222 is inserted as a new concept
in the present Code in a laudable effort to obviate a sad and tragic spectacle occasioned by a litigation between
members of the same family. Article 2035 firmly maintains the ancient injunction against compromise on matters
involving future support. And this is as it should be. For, even as Article 222 requires earnest efforts at a compromise and
inability to reach one as a condition precedent to the filing and maintenance of a suit "between the members of the
same family", that same article took good care to add: "subject to the limitations in article 2035."

Plaintiffs ask for support past, present and future. There is also the prayer for alimony pendente lite. Since the present
action also revolves on the right to future support and because compromise on future support is prescribed,14 then the
conclusion is irresistible that an attempt at compromise of future support and failure thereof is not a condition precedent
to the filing of the present suit. It need not be alleged in the complaint. The very opening statement in Article 2035
unmistakably confirms our view. It says that "(n)o compromise upon the following question shall be valid: ... (4) Future
support."15 We cannot afford to give a loose view to this controlling statute. We may not disregard it. To do so is to
misread the law, to write off an explicit congressional will, to cross the line which circumscribes courts of justice and step
into legislative area.

Mendoza vs. Court of Appeals, 1967B Phild. 82, is to be read as controlling here. In that case, the wife filed in the Court of
First Instance of Nueva Ecija an action for support against her husband who was then employed in a hospital in the
United States. Defendant, by counsel, moved to dismiss, for the reason that the complaint failed to state a cause of
action "because it contained no allegation that earnest efforts toward a compromise have been made before the filing
of the suit, and invoking the provisions of Article 222 of the Civil Code of the Philippines." The Court of First Instance
refused to entertain the motion to dismiss. Defendant petitioned the Court of Appeals for a writ of prohibition. The
appellate court denied the writ prayed for Defendant petitioned this Court for review. We affirmed. In that first judicial
test, this Court, speaking thru Mr. Justice J.B.L. Reyes, held:

While we agree that petitioner's position represents a correct statement of the general rule on the matter, we
are nevertheless constrained to hold that the Court of Appeals and the Court of First Instance committed no
error in refusing to dismiss the complaint, for on its face, the same involved a claim for future support that under
Article 2035 of the Civil Code of the Philippines can not be subject of a valid compromise, and is, therefore,
outside the sphere of application of Article 222 of the Code upon which petitioner relies. This appears from the
last proviso of said Article 222, already quoted....

xxx xxx xxx

Since no valid compromise is possible on these issues, a showing of previous efforts to compromise them would
be superfluous.

It may be that the complaint asks for both future support and support in arrears, as petitioner contends. But, the
possibility of compromise on the latter does not negate the existence of a valid cause of action for future
support, to which Article 222 can not apply.16

Although the complaint herein seeks custody of minor children and damages as well, the prime object is support. And,
of importance, of course, is future support. The reliefs sought are intimately related to each other. They all spring from the
fact that husband and wife are separated from each other. So it is, that expediency dictates that they be, as they are
now, placed together in one complaint. For, multiplicity of suits is not favored in law. Since one of the causes of action,
that for future support, may be lodged in court without the compromise requisite in Article 222 of the Civil Code, the
complaint herein, as we have ruled in Mendoza, may not be dismissed.

We, accordingly, hold that the lower court erred in dismissing the complaint.

3. But even on the assumption that it was error on the part of plaintiffs to have failed to so allege, plaintiffs should not be
barred from making an amendment to correct it.

Parenthetically, after a responsive pleading has been served, amendments may be made only upon leave of
court.17 But, in the furtherance of justice, the court "should be liberal in allowing amendments to pleadings to avoid
multiplicity of suits and in order that the real controversies between the parties are presented, their rights determined and
the case decided on the merits without unnecessary delay."18
Thus, the instances wherein this Court considered allowance of an amendment not justified are limited. As defendant
correctly points out, a proposed amendment may be refused when it confers jurisdiction on the court in which it is filed, if
the cause of action originally set forth was not within that court's jurisdiction.19 An amendment may also be refused when
the cause of action is substantially altered.20

A typical case which merited refusal of an amendment is Rosario vs. Carandang, supra. There, the original complaint
was one for forcible entry and detainer over which the Court of First Instance, where the complaint was filed, had no
jurisdiction. The amendment sought by plaintiff was the inclusion of an allegation that the defendants were claiming
ownership over the land in dispute. The proposed amendment would thus convert the case from one of forcible entry
and detainer into one of recovery of possession, which is within the jurisdiction of the Court of First Instance. The court
properly denied the amendment.

The alleged defect is that the present complaint does not state a cause of action. The proposed amendment seeks to
complete it. An amendment to the effect that the requirements of Article 222 have been complied with does not confer
jurisdiction upon the lower court. With or without this amendment, the subject-matter of the action remains as one for
support, custody of children, and damages, cognizable by the court below.

To illustrate, Tamayo vs. San Miguel Brewery, Inc.,21 allowed an amendment which "merely corrected a defect in the
allegation of plaintiff-appellant's cause of action, because as it then stood, the original complaint stated no cause of
action." We there ruled out as inapplicable the holding in Campos Rueda Corporation vs. Bautista, supra, that an
amendment cannot be made so as to confer jurisdiction on the court.

The lower court, in the interest of justice, should have allowed plaintiffs to amend their complaint instead of granting the
motion to dismiss. This it could have done under Section 3 of Rule 16 of the Rules of Court. For, the defect in the
complaint is curable.

For the reasons given —

(1) the orders of the lower court of February 22, 1965, March 30, 1965, and June 22, 1965 are hereby set aside; and

(2) the record of this case is hereby remanded to the Court of First Instance of Rizal, Quezon City, Branch IX, with
instructions to admit the second amended complaint and to conduct further proceedings not inconsistent with the
opinion herein. Costs against defendant. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando and Capistrano, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 185922 January 15, 2014

HEIRS OF DR. MARIANO FAVIS SR. represented by their co-heirs and Attorneys-in-Fact MERCEDES A. FAVIS and NELLY
FAVIS- VILLAFUERTE, Petitioners,
vs.
JUANA GONZALES, her son MARIANO G. FAVIS, MA. THERESA JOANA D. FAVIS, JAMES MARK D. FAVIS, all minors
represented herein by their parents SPS. MARIANO FAVIS and LARCELITA D. FAVIS,Respondents.

DECISION

PEREZ, J.:

Before this Court is a petition for review assailing the 10 April 2008 Decision1 and 7 January 2009 Resolution2 of the Court
of Appeals in CA-G.R. CV No. 86497 dismissing petitioners’ complaint for annulment of the Deed of Donation for failure to
exert earnest efforts towards a compromise.
Dr. Mariano Favis, Sr. (Dr. Favis) was married to Capitolina Aguilar (Capitolina) with whom he had seven children named
Purita A. Favis, Reynaldo Favis, Consolacion Favis-Queliza, Mariano A. Favis, Jr., Esther F. Filart, Mercedes A. Favis, and
Nelly Favis-Villafuerte. When Capitolina died in March 1944, Dr. Favis took Juana Gonzales (Juana) as his common-law
wife with whom he sired one child, Mariano G. Favis (Mariano). When Dr. Favis and Juana got married in 1974, Dr. Favis
executed an affidavit acknowledging Mariano as one of his legitimate children. Mariano is married to Larcelita D. Favis
(Larcelita), with whom he has four children, named Ma. Theresa Joana D. Favis, Ma. Cristina D. Favis, James Mark D.
Favis and Ma. Thea D. Favis.

Dr. Favis died intestate on 29 July 1995 leaving the following properties:

1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan, Ilocos Sur, consisting an area of 898 square
meters, more or less, bounded on the north by Salvador Rivero; on the East by Eleutera Pena; on the South by
Bonifacio St., and on the West by Carmen Giron; x x x;

2. A commercial building erected on the aforesaid parcel of land with an assessed value of ₱126,000.00; x x x;

3. A parcel of residential land located in Brgy. VII, Vigan, Ilocos Sur, containing an area of 154 sq. ms., more or
less, bounded on the North by the High School Site; on the East by Gomez St., on the South by Domingo [G]o;
and on the West by Domingo Go; x x x;

4. A house with an assessed value of ₱17,600.00 x x x;

5. A parcel of orchard land located in Brgy. VI, Vigan, Ilocos Sur, containing an area of 2,257 sq. ma. (sic) more
or less, bounded on the North by Lot 1208; on the East by Mestizo River; on the South by Lot 1217 and on the
West by Lot 1211-B, 1212 and 1215 x x x.3

Beginning 1992 until his death in 1995, Dr. Favis was beset by various illnesses, such as kidney trouble, hiatal hernia,
congestive heart failure, Parkinson’s disease and pneumonia. He died of "cardiopulmonary arrest secondary to multi-
organ/system failure secondary to sepsis secondary to pneumonia."4

On 16 October 1994, he allegedly executed a Deed of Donation5 transferring and conveying properties described in (1)
and (2) in favor of his grandchildren with Juana.

Claiming that said donation prejudiced their legitime, Dr. Favis’ children with Capitolina, petitioners herein, filed an
action for annulment of the Deed of Donation, inventory, liquidation and partition of property before the Regional Trial
Court (RTC) of Vigan, Ilocos Sur, Branch 20 against Juana, Spouses Mariano and Larcelita and their grandchildren as
respondents.

In their Answer with Counterclaim, respondents assert that the properties donated do not form part of the estate of the
late Dr. Favis because said donation was made inter vivos, hence petitioners have no stake over said properties.6

The RTC, in its Pre-Trial Order, limited the issues to the validity of the deed of donation and whether or not respondent
Juana and Mariano are compulsory heirs of Dr. Favis.7

In a Decision dated 14 November 2005, the RTC nullified the Deed of Donation and cancelled the corresponding tax
declarations. The trial court found that Dr. Favis, at the age of 92 and plagued with illnesses, could not have had full
control of his mental capacities to execute a valid Deed of Donation. Holding that the subsequent marriage of Dr. Favis
and Juana legitimated the status of Mariano, the trial court also declared Juana and Mariano as compulsory heirs of Dr.
Favis. The dispositive portion reads:WHEREFORE, in view of all the foregoing considerations, the Deed of Donation dated
October 16, 1994 is hereby annulled and the corresponding tax declarations issued on the basis thereof cancelled. Dr.
Mariano Favis, Sr. having died without a will, his estate would result to intestacy. Consequently, plaintiffs Heirs of Dr.
Mariano Favis, Sr., namely Purita A. Favis, Reynaldo A. Favis, Consolacion F. Queliza, Mariano A. Favis, Jr., Esther F. Filart,
Mercedes A. Favis, Nelly F. Villafuerte and the defendants Juana Gonzales now deceased and Mariano G. Favis, Jr. shall
inherit in equal shares in the estate of the late Dr. Mariano Favis, Sr. which consists of the following:

1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan City, Ilocos Sur, consisting an area of 89 sq.
meters more or less, bounded on the north by Salvador Rivero; on the East by Eleutera Pena; on the South by
Bonifacio St., and on the West by Carmen Giron;

2. A commercial building erected on the aforesaid parcel of land with an assessed value of ₱126,000.00;
 3. One-half (1/2) of the house located in Brgy. VI, Vigan City, Ilocos Sur[,] containing an area of 2,257 sq. meters
more or less, bounded on the north by Lot 1208; on the east by Mestizo River; on the South by Lot 1217 and on
the West by Lot 1211-B, 1212 and 1215.

4. The accumulated rentals of the new Vigan Coliseum in the amount of One Hundred Thirty [Thousand]
(₱130,000.00) pesos per annum from the death of Dr. Mariano Favis, Sr.8

Respondents interposed an appeal before the Court of Appeals challenging the trial court’s nullification, on the ground
of vitiated consent, of the Deed of Donation in favor of herein respondents. The Court of Appeals ordered the dismissal
of the petitioners’ nullification case. However, it did so not on the grounds invoked by herein respondents as appellant.

The Court of Appeals motu proprio ordered the dismissal of the complaint for failure of petitioners to make an averment
that earnest efforts toward a compromise have been made, as mandated by Article 151 of the Family Code. The
appellate court justified its order of dismissal by invoking its authority to review rulings of the trial court even if they are not
assigned as errors in the appeal.

Petitioners filed a motion for reconsideration contending that the case is not subject to compromise as it involves future
legitime.

The Court of Appeals rejected petitioners’ contention when it ruled that the prohibited compromise is that which is
entered between the decedent while alive and compulsory heirs. In the instant case, the appellate court observed that
while the present action is between members of the same family it does not involve a testator and a compulsory heir.
Moreover, the appellate court pointed out that the subject properties cannot be considered as "future legitime" but are
in fact, legitime, as the instant complaint was filed after the death of the decedent.

Undaunted by this legal setback, petitioners filed the instant petition raising the following arguments:

1. The Honorable Court of Appeals GRAVELY and SERIOUSLY ERRED in DISMISSING the COMPLAINT.

2. Contrary to the finding of the Honorable Court of Appeals, the verification of the complaint or petition is not
a mandatory requirement.

3. The Honorable Court of Appeals seriously failed to appreciate that the filing of an intervention by Edward
Favis had placed the case beyond the scope of Article 151 of the Family Code.

4. Even assuming arguendo without admitting that the filing of intervention by Edward Favis had no positive
effect to the complaint filed by petitioners, it is still a serious error for the Honorable Court of Appeals to utterly
disregard the fact that petitioners had substantially complied with the requirements of Article 151 of the Family
Code.

5. Assuming arguendo that petitioners cannot be construed as complying substantially with Article 151 of the
Family Code, still, the same should be considered as a non-issue considering that private respondents are in
estoppel.

6. The dismissal of the complaint by the Honorable Court of Appeals amounts to grave abuse of discretion
amounting to lack and excess of jurisdiction and a complete defiance of the doctrine of primacy of
substantive justice over strict application of technical rules.

7. The Honorable Court of Appeals gravely and seriuosly erred in not affirming the decision of the Court a quo
that the Deed of Donation is void.9

In their Comment, respondents chose not to touch upon the merits of the case, which is the validity of the deed of
donation. Instead, respondents defended the ruling the Court of Appeals that the complaint is dismissible for failure of
petitioners to allege in their complaint that earnest efforts towards a compromise have been exerted.

The base issue is whether or not the appellate court may dismiss the order of dismissal of the complaint for failure to
allege therein that earnest efforts towards a compromise have been made. The appellate court committed egregious
error in dismissing the complaint. The appellate courts’ decision hinged on Article 151 of the Family Code, viz:
Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or
petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no
such efforts were in fact made, the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise under the Civil Code.

The appellate court correlated this provision with Section 1, par. (j), Rule 16 of the 1997 Rules of Civil Procedure, which
provides:

Section 1. Grounds. — Within the time for but before filing the answer to the complaint or pleading asserting a claim, a
motion to dismiss may be made on any of the following grounds:

xxxx

(j) That a condition precedent for filing the claim has not been complied with.

The appellate court’s reliance on this provision is misplaced. Rule 16 treats of the grounds for a motion to dismiss the
complaint. It must be distinguished from the grounds provided under Section 1, Rule 9 which specifically deals with
dismissal of the claim by the court motu proprio. Section 1, Rule 9 of the 1997 Rules of Civil Procedure provides:

Section 1. Defenses and objections not pleaded. − Defenses and objections not pleaded either in a motion to dismiss or
in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the
same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.

Section 1, Rule 9 provides for only four instances when the court may motu proprio dismiss the claim, namely: (a) lack of
jurisdiction over the subject matter; (b) litis pendentia ; (c) res judicata ; and (d) prescription of action.10Specifically in
Gumabon v. Larin,11 cited in Katon v. Palanca, Jr.,12 the Court held:

x x x [T]he motu proprio dismissal of a case was traditionally limited to instances when the court clearly had no jurisdiction
over the subject matter and when the plaintiff did not appear during trial, failed to prosecute his action for an
unreasonable length of time or neglected to comply with the rules or with any order of the court. Outside of these
instances, any motu proprio dismissal would amount to a violation of the right of the plaintiff to be heard. Except for
qualifying and expanding Section 2, Rule 9, and Section 3, Rule 17, of the Revised Rules of Court, the amendatory 1997
Rules of Civil Procedure brought about no radical change. Under the new rules, a court may motu proprio dismiss a
claim when it appears from the pleadings or evidence on record that it has no jurisdiction over the subject matter; when
there is another cause of action pending between the same parties for the same cause, or where the action is barred
by a prior judgment or by statute of limitations. x x x.13

The error of the Court of Appeals is evident even if the consideration of the issue is kept within the confines of the
language of Section 1(j) of Rule 16 and Section 1 of Rule 9. That a condition precedent for filing the claim has not been
complied with, a ground for a motion to dismiss emanating from the law that no suit between members from the same
family shall prosper unless it should appear from the verified complaint that earnest efforts toward a compromise have
been made but had failed, is, as the Rule so words, a ground for a motion to dismiss. Significantly, the Rule requires that
such a motion should be filed "within the time for but before filing the answer to the complaint or pleading asserting a
claim." The time frame indicates that thereafter, the motion to dismiss based on the absence of the condition precedent
is barred. It is so inferable from the opening sentence of Section 1 of Rule 9 stating that defense and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived. There are, as just noted, only four exceptions
to this Rule, namely, lack of jurisdiction over the subject matter; litis pendentia ; res judicata ; and prescription of action.
Failure to allege in the complaint that earnest efforts at a compromise has been made but had failed is not one of the
exceptions. Upon such failure, the defense is deemed waived.

It was in Heirs of Domingo Valientes v. Ramas14 cited in P.L. Uy Realty Corporation v. ALS Management and Development
Corporation15 where we noted that the second sentence of Section 1 of Rule 9 does not only supply exceptions to the
rule that defenses not pleaded either in a motion to dismiss or in the answer are deemed waived, it also allows courts to
dismiss cases motu propio on any of the enumerated grounds. The tenor of the second sentence of the Rule is that the
allowance of a motu propio dismissal can proceed only from the exemption from the rule on waiver; which is but logical
because there can be no ruling on a waived ground.
Why the objection of failure to allege a failed attempt at a compromise in a suit among members of the same family is
waivable was earlier explained in the case of Versoza v. Versoza,16 a case for future support which was dismissed by the
trial court upon the ground that there was no such allegation of infringement of Article 222 of the Civil Code, the origin of
Article 151 of the Family Code. While the Court ruled that a complaint for future support cannot be the subject of a
compromise and as such the absence of the required allegation in the complaint cannot be a ground for objection
against the suit, the decision went on to state thus:

The alleged defect is that the present complaint does not state a cause of action. The proposed amendment seeks to
complete it. An amendment to the effect that the requirements of Article 222 have been complied with does not confer
jurisdiction upon the lower court. With or without this amendment, the subject-matter of the action remains as one for
support, custody of children, and damages, cognizable by the court below.

To illustrate, Tamayo v. San Miguel Brewery, Inc.,17 allowed an amendment which " merely corrected a defect in the
allegation of plaintiff-appellant’s cause of action, because as it then stood, the original complaint stated no cause of
action." We there ruled out as inapplicable the holding in Campos Rueda Corporation v. Bautista,18 that an amendment
cannot be made so as to confer jurisdiction on the court x x x. (Italics supplied).

Thus was it made clear that a failure to allege earnest but failed efforts at a compromise in a complaint among
members of the same family, is not a jurisdictional defect but merely a defect in the statement of a cause of action.
Versoza was cited in a later case as an instance analogous to one where the conciliation process at the barangay level
was not priorly resorted to. Both were described as a "condition precedent for the filing of a complaint in Court."19 In such
instances, the consequence is precisely what is stated in the present Rule. Thus:

x x x The defect may however be waived by failing to make seasonable objection, in a motion to dismiss or answer, the
defect being a mere procedural imperfection which does not affect the jurisdiction of the court.20 (Underscoring
supplied).

In the case at hand, the proceedings before the trial court ran the full course. The complaint of petitioners was answered
by respondents without a prior motion to dismiss having been filed. The decision in favor of the petitioners was appealed
by respondents on the basis of the alleged error in the ruling on the merits, no mention having been made about any
defect in the statement of a cause of action. In other words, no motion to dismiss the complaint based on the failure to
comply with a condition precedent was filed in the trial court; neither was such failure assigned as error in the appeal
that respondent brought before the Court of Appeals.

Therefore, the rule on deemed waiver of the non-jurisdictional defense or objection is wholly applicable to
respondent.1âwphi1 If the respondents as parties-defendants could not, and did not, after filing their answer to
petitioner’s complaint, invoke the objection of absence of the required allegation on earnest efforts at a compromise,
the appellate court unquestionably did not have any authority or basis to motu propio order the dismissal of petitioner’s
complaint.

Indeed, even if we go by the reason behind Article 151 of the Family Code, which provision as then Article 222 of the
New Civil Code was described as "having been given more teeth"21 by Section 1(j), Rule 16 of the Rule of Court, it is safe
to say that the purpose of making sure that there is no longer any possibility of a compromise, has been served. As cited
in commentaries on Article 151 of the Family Code –

This rule is introduced because it is difficult to imagine a sudden and more tragic spectacle than a litigation between
members of the same family. It is necessary that every effort should be made towards a compromise before a litigation is
allowed to breed hate and passion in the family. It is known that a lawsuit between close relatives generates deeper
bitterness than between strangers.22

The facts of the case show that compromise was never an option insofar as the respondents were concerned. The
impossibility of compromise instead of litigation was shown not alone by the absence of a motion to dismiss but on the
respondents’ insistence on the validity of the donation in their favor of the subject properties. Nor could it have been
otherwise because the Pre-trial Order specifically limited the issues to the validity of the deed and whether or not
respondent Juana and Mariano are compulsory heirs of Dr. Favis. Respondents not only confined their arguments within
the pre-trial order; after losing their case, their appeal was based on the proposition that it was error for the trial court to
have relied on the ground of vitiated consent on the part of Dr. Favis.

The Court of Appeals ignored the facts of the case that clearly demonstrated the refusal by the respondents to
compromise. Instead it ordered the dismissal of petitioner’s complaint on the ground that it did not allege what in fact
was shown during the trial. The error of the Court of Appeals is patent.
Unfortunately for respondents, they relied completely on the erroneous ruling of the Court of Appeals even when
petitioners came to us for review not just on the basis of such defective motu propio action but also on the proposition
that the trial court correctly found that the donation in question is flawed because of vitiated consent. Respondents did
not answer this argument. The trial court stated that the facts are:

x x x To determine the intrinsic validity of the deed of donation subject of the action for annulment, the mental
state/condition of the donor Dr. Mariano Favis, Sr. at the time of its execution must be taken into account. Factors such
as his age, health and environment among others should be considered. As testified to by Dr. Mercedes Favis,
corroborated by Dr. Edgardo Alday and Dra. Ofelia Adapon, who were all presented as expert witnesses, Dr. Mariano
Favis, Sr. had long been suffering from Hiatal Hernia and Parkinson’s disease and had been taking medications for years.
That a person with Parkinson’s disease for a long time may not have a good functioning brain because in the later stage
of the disease, 1/3 of death develop from this kind of disease, and or dementia. With respect to Hiatal Hernia, this is a
state wherein organs in the abdominal cavity would go up to the chest cavity, thereby occupying the space for the
lungs causing the lungs to be compromised. Once the lungs are affected, there is less oxygenation to the brain. The
Hernia would cause the heart not to pump enough oxygen to the brain and the effect would be chronic, meaning,
longer lack of oxygenation to the brain will make a person not in full control of his faculties. Dr. Alday further testified that
during his stay with the house of Dr. Mariano Favis, Sr. (1992-1994), he noticed that the latter when he goes up and down
the stairs will stop after few seconds, and he called this pulmonary cripple – a very advanced stage wherein the lungs
not only one lung, but both lungs are compromised. That at the time he operated on the deceased, the left and right
lung were functioning but the left lung is practically not even five (5%) percent functioning since it was occupied by
abdominal organ. x x x.

Dr. Mariano Favis, Sr. during the execution of the Deed of Donation was already 92 years old; living with the defendants
and those years from 1993 to 1995 were the critical years when he was sick most of the time. In short, he’s dependent on
the care of his housemates particularly the members of his family. It is the contention of the defendants though that Dr.
Mariano Favis, Sr. had full control of his mind during the execution of the Deed of Donation because at that time, he
could go on with the regular way of life or could perform his daily routine without the aid of anybody like taking a bath,
eating his meals, reading the newspaper, watching television, go to the church on Sundays, walking down the plaza to
exercise and most importantly go to the cockpit arena and bet. Dr. Ofelia Adapon, a neurology expert however,
testified that a person suffering from Parkinson’s disease when he goes to the cockpit does not necessarily mean that
such person has in full control of his mental faculties because anyone, even a retarded person, a person who has not
studied and have no intellect can go to the cockpit and bet. One can do everything but do not have control of his
mind. x x x That Hiatal Hernia creeps in very insidiously, one is not sure especially if the person has not complained and no
examination was done. It could be there for the last time and no one will know. x x x.

The Deed of Donation in favor of the defendants Ma. Theresa, Joana D. Favis, Maria Cristina D. Favis, James Mark D.
Favis and Maria Thea D. Favis, all of whom are the children of Mariano G. Favis, Jr. was executed on [16 October] 1994,
seven (7) months after Dra. Mercedes Favis left the house of Dr. Favis, Sr. at Bonifacio St., Vigan City, Ilocos Sur, where she
resided with the latter and the defendants.

Putting together the circumstances mentioned, that at the time of the execution of the Deed of Donation, Dr. Mariano
Favis, Sr. was already at an advanced age of 92, afflicted with different illnesses like Hiatal hernia, Parkinsons’ disease
and pneumonia, to name few, which illnesses had the effects of impairing his brain or mental faculties and the deed
being executed only when Dra. Mercedes Favis had already left his father’s residence when Dr. Mariano Favis, Sr. could
have done so earlier or even in the presence of Dra. Mercedes Favis, at the time he executed the Deed of Donation was
not in full control of his mental faculties. That although age of senility varies from one person to another, to reach the age
of 92 with all those medications and treatment one have received for those illnesses, yet claim that his mind remains
unimpaired, would be unusual. The fact that the Deed of Donation was only executed after Dra. Mercedes Favis left his
father's house necessarily indicates that they don't want the same to be known by the first family, which is an indicia of
bad faith on the part of the defendant, who at that time had influence over the donor.23

The correctness of the finding was not touched by the Court of Appeals. The respondents opted to rely only on what the
appellate court considered, erroneously though, was a procedural infirmity. The trial court's factual finding, therefore,
stands unreversed; and respondents did not provide us with any argument to have it reversed.

The issue of the validity of donation was fully litigated and discussed by the trial court. Indeed, the trial court's findings
were placed at issue before the Court of Appeals but the appellate court chose to confine its review to the procedural
aspect. The judgment of the Court of Appeals, even if it dealt only with procedure, is deemed to have covered all issues
including the correctness of the factual findings of the trial court. Moreover, remanding the case to the Court of Appeals
would only constitute unwarranted delay in the final disposition of the case.

WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the Judgment of the Regional Trial
Court of Vigan, Ilocos Sur, Branch 20 is AFFIRMED.
SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 86355 May 31, 1990

JOSE MODEQUILLO, petitioner,

vs.
HON. AUGUSTO V. BREVA FRANCISCO SALINAS, FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF
FERNANDO PLATA respondents.

Josefina Brandares-Almazan for petitioner.

ABC Law Offices for private respondents.

GANCAYCO, J.:
The issue in this petition is whether or not a final judgment of the Court of Appeals in an action for damages may be
satisfied by way of execution of a family home constituted under the Family Code.

The facts are undisputed.

On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV No. 09218 entitled "Francisco
Salinas, et al. vs. Jose Modequillo, et al.," the dispositive part of which read as follows:

WHEREFORE, the decision under appeal should be, as it is hereby, reversed and set aside. Judgment is
hereby rendered finding the defendants-appellees Jose Modequillo and Benito Malubay jointly and
severally liable to plaintiffs-appellants as hereinbelow set forth. Accordingly, defendants-appellees are
ordered to pay jointly and severally to:

1. Plaintiffs-appellants, the Salinas spouses:

a. the amount of P30,000.00 by way of compensation for the death of their son Audie Salinas;

b. P10,000.00 for the loss of earnings by reason of the death of said Audie Salinas;

c. the sum of P5,000.00 as burial expenses of Audie Salinas; and

d. the sum of P5,000.00 by way of moral damages.

2. Plaintiffs-appellants Culan-Culan:

a. the sum of P5,000.00 for hospitalization expenses of Renato Culan- Culan; and

b. P5,000.00 for moral damages.

3. Both plaintiff-appellants Salinas and Culan-Culan, P7,000.00 for attorney's fees and litigation
expenses.

All counterclaims and other claims are hereby dismissed. 1

The said judgment having become final and executory, a writ of execution was issued by the Regional Trial Court of
Davao City to satisfy the said judgment on the goods and chattels of the defendants Jose Modequillo and Benito
Malubay at Malalag, Davao del Sur.

On July 7, 1988, the sheriff levied on a parcel of residential land located at Poblacion Malalag, Davao del Sur containing
an area of 600 square meters with a market value of P34,550.00 and assessed value of P7,570.00 per Tax Declaration No.
87008-01359, registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur; and a
parcel of agricultural land located at Dalagbong Bulacan, Malalag, Davao del Sur containing an area of 3 hectares
with a market value of P24,130.00 and assessed value of P9,650.00 per Tax Declaration No. 87-08-01848 registered in the
name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur. 2

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

In an order dated August 26, 1988, the trial court denied the motion. A motion for reconsideration thereof was filed by
defendant and this was denied for lack of merit on September 2, 1988.
Hence, the herein petition for review on certiorari wherein it is alleged that the trial court erred and acted in excess of its
jurisdiction in denying petitioner's motion to quash and/or to set aside levy on the properties and in denying petitioner'
motion for reconsideration of the order dated August 26, 1988. Petitioner contends that only a question of law is involved
in this petition. He asserts that the residential house and lot was first occupied as his family residence in 1969 and was duly
constituted as a family home under the Family Code which took effect on August 4, 1988. Thus, petitioner argues that the
said residential house and lot is exempt from payment of the obligation enumerated in Article 155 of the Family Code;
and that the decision in this case pertaining to damages arising from a vehicular accident took place on March 16, 1976
and which became final in 1988 is not one of those instances enumerated under Article 155 of the Family Code when
the family home may be levied upon and sold on execution. It is further alleged that the trial court erred in holding that
the said house and lot became a family home only on August 4, 1988 when the Family Code became effective, and
that the Family Code cannot be interpreted in such a way that all family residences are deemed to have been
constituted as family homes at the time of their occupancy prior to the effectivity of the said Code and that they are
exempt from execution for the payment of obligations incurred before the effectivity of said Code; and that it also erred
when it declared that Article 162 of the Family Code does not state that the provisions of Chapter 2, Title V have a
retroactive effect.

Articles 152 and 153 of the Family Code provide as follows:

Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of
a family, is the dwelling house where they and their family reside, and the land on which it is situated.

Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a
family residence. From the time of its constitution and so long as any of its beneficiaries actually
resides therein, the family home continues to be such and is exempt from execution, forced sale or
attachment except as hereinafter provided and to the extent of the value allowed by law.

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

Article 155 of the Family Code also provides as follows:

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

(1) For non-payment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such constitution; and

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

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

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

The contention of petitioner that it should be considered a family home from the time it was occupied by petitioner and
his family in 1969 is not well- taken. Under Article 162 of the Family Code, it is provided that "the provisions of this Chapter
shall also govern existing family residences insofar as said provisions are applicable." It does not mean that Articles 152
and 153 of said Code have a retroactive effect such that all existing family residences are deemed to have been
constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and are exempt
from execution for the payment of obligations incurred before the effectivity of the Family Code. Article 162 simply
means that all existing family residences at the time of the effectivity of the Family Code, are considered family homes
and are prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not
state that the provisions of Chapter 2, Title V have a retroactive effect.

Is the family home of petitioner exempt from execution of the money judgment aforecited No. The debt or liability which
was the basis of the judgment arose or was incurred at the time of the vehicular accident on March 16, 1976 and the
money judgment arising therefrom was rendered by the appellate court on January 29, 1988. Both preceded the
effectivity of the Family Code on August 3, 1988. This case does not fall under the exemptions from execution provided in
the Family Code.

As to the agricultural land subject of the execution, the trial court correctly ruled that the levy to be made by the sheriff
shall be on whatever rights the petitioner may have on the land.

WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.

Narvasa (Chairman), Cruz and Medialdea, JJ., concur. Griño-Aquino, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-13281 August 31, 1960

SIARI VALLEY ESTATES, INC., petitioner,

vs.
FILEMON LUCASAN, ET AL., respondents.

Orendain and Sarmiento for petitioner.

Barrios, Lucasan and Lucasan for respondents.

BAUTISTA ANGELO, J.:

On January 30, 1952, the Court of First Instance of Zamboanga del Norte rendered decision ordering Filemon Lucasan to
deliver to the Siari Valley Estates, Inc. the cattle inside the former's pasture or pay its value amounting to P40,000.00 and
damages in another sum of P40,000.00, This decision was affirmed in toto by the Supreme Court, and when the same
became final and executory, a writ of execution was issued. In carrying out this writ, the sheriff proceeded to levy on
certain parcels of lands belonging to defendant. These lands were sold by the sheriff at public auction to the
corporation as the highest bidder on January 14, 1956. The judgment debtor having failed to redeem the land within the
period of one year, on January 26, 1957, the sheriff issued in favor of the purchaser the final certificate of sale, copy of
which was registered in the Office of the Register of Deeds of Zamboanga. On February 16, 1957, upon petition of the
corporation, a writ of possession was issued directing the sheriff to place said corporation in possession thereof.
Notwithstanding said writ, however, the corporation failed to take possession of the lands, hence it filed a motion
reiterating its petition that it be placed in their possession.

This time judgment debtor Filemon Lucasan filed an opposition alleging that he was in possession of one of the parcels of
land sold at public auction on which he has erected a house and which he has extra judicially constituted as a family
home, the rest being in possession of third parties. On April 30, 1957, the court, overruling the opposition, issued an order
directing the sheriff to place the corporation in possession of the lands sold to it. On August 7, 1957, debtor Lucasan filed
a motion for reconsideration which was denied, the court reiterating its previous order with little amendment, but on
August 23, 1957 issued another order allowing the corporation to take possession of all lands sold, with the exception of
parcel 1 on which the family home was constituted, holding that the levy and sale made by the sheriff with regard to
said parcel were not made in accordance with law and so are null and void. Having failed to have this last order
reconsidered, the corporation interposed the present petition for certiorari.
It appears that parcel 1 is a registered land covered by Certificate of Title No. OCT-2492, Patent No. 50967, duly
registered in the Office of the Register of Deeds of Zamboanga del Norte in the name of Filemon Lucasan. On this land
stands a big house of mixed materials which is asserted in the amount of P23,270.00 as evidenced by Tax Declaration No.
7653. It also 37 3 appears that Filemon Lucasan and his wife constituted this house and the lot on which stands into a
family home, the pertinent document having been registered in the office of the register of deeds on June 21, 1955. In
opposing the petition of the corporation for a writ of possession insofar as this property is concerned, Lucasan
contended that said lot and house having been constituted as a family home are beyond the reach of judicial
execution. He contended that the levy made by the sheriff on said property is legally ineffective because it was not
effected in accordance with what is prescribed in Section 14, Rule 39, in relation to Section 7, Rule 59, of the Rules of
Court.

There is merit in this contention. The evidence shows that when this property was levied on execution by the sheriff to
satisfy the judgment rendered against Filemon Lucasan in favor of petitioner corporation the notice of levy merely
described the property as unregistered land and the same was registered under Act 3344 in the office of the register of
deeds. It also appears that in the notice of sale the property was merely described according to the boundaries and
area appearing in the tax declaration and not according to what appears in the certificate of title. On the other hand,
the rule provides that real property shall "be levied on in like manner and with like effect as under an order of
attachment" (Section 14, Rule 39), and the provision regarding attachment of real property postulates that the
attachment shall be made "by filing with the register of deeds a copy of the order, together with the description of the
property attached, and a notice that it is attached, and by leaving a copy of said order, description, and notice with
the occupant of the property, if any there be," and that "Where the property has been brought under the operation of
the Land Registration Act, the notice shall contain a reference to the number of the certificate of title and the volume
and page in the registration book where the certificate is registered" (Section 7 [a], Rule 59).

These provisions should be strictly construed if their purpose has to be accomplished. The requirement that the notice of
levy should contain a reference to the number of the certificate of title and the volume and page in the registration
book where the certificate is registered is made in order that the debtor as well as a third person may be properly
informed of the particular land or property that is under the custody of the court. This can only be accomplished by
making a reference to the certificate of title covering the property. The situation differs if the land is unregistered in which
case it is enough that the notice be registered under Act 3344. This conclusion finds support in the following authorities:

An attachment levied on real estate not duly recorded in the registry of property is not an encumbrance on
the attached property, nor can such attachment, unrecorded in the registry, serve as a ground for decreeing
the annulment of the sale of the property, at the request of another creditor. (Gonzales Diez vs. Delgado and
Imperial, 37 Phil., 389)

... In conformity with the provisions of section 71 of the Land Registration Act, the sheriff of the City of Manila
filed a notice of the levy with the register of deeds, which notice was entered in the primary entry book of the
register's office, but was afterwards, on May 20, 1920, returned to the sheriff with the information that the
property was registered in the name of Buenaventura Dizon, having been conveyed to the latter by the
defendant in execution, Celerino Arellano, and that, therefore, no memorandum of the notice had been
entered upon the outstanding certificate of title. It may be noted that the notice contained no "reference to
the number of the certificate of title of the land to be effected and the volume and page in the registry book
where the certificate is registered, and that t that extent, the notice did not meet the requirements of said
section 71. (De Ocampo vs. Treasurer of the Philippine Islands, 50 Phil., 140, 141; Emphasis supplied).

Since the notice of levy made by the sheriff as regards parcel number 1 which is a registered land contains no reference
to the number of its certificate of title and the volume and page in the registry book where the title is registered, it follows
that said notice is legally ineffective and as such did not have the effect of binding the property for purposes of
execution. Consequently, the sale carried out by virtue of said levy is also invalid and of no legal effect.

The second issue raised is: Is the family home extra judicially established by respondent on the lot and house in question
exempt from execution?

Respondent sustains the affirmative considering that the money judgment rendered against him was appealed to the
Supreme Court in which event, he contends, the same could not be considered as a debt at the time the family home
was constituted for it was still inchoate and as such cannot come under the provisions of Article 243 (2) of the new Civil
Code.

The article above referred to provides that "The family home extra judicially formed shall be exempt from execution"
except "for debts incurred before the declaration was recorded in the Registry of Property." What if the meaning of the
word debt used in this article? Does it refer to a debt that is undisputed, or may it also refer to any pecuniary obligation
even if the same has not yet been finally determined? In other words, can a judgment for a sum of money be
considered a debt within the meaning of this provision even if said judgment is still pending appeal?

We are inclined to uphold the affirmative considering the real purpose of the law. The reason why a family home
constituted after a debt had been incurred is not exempt from execution is to protect the creditor against a debtor who
may act in bad faith by resorting to such declaration just to defeat the claim against him. If the purpose is to protect the
creditor from fraud it would be immaterial if the debt incurred be undisputed or inchoate, for a debtor acting in good
faith would prefer to wait until his case is definitely decided before constituting the family home. Indeed, it may result, as
in this case, that the Supreme Court may affirm the judgment of the lower court. If the contention of respondent be
sustained a debtor may be allowed to circumvent this provision of the law to the prejudice of the creditor. This the Court
cannot countenance. Hence, we are persuaded to conclude that the money judgment in question comes within the
purview of the word debt used in Article 243 (2) of the new Civil Code.

WHEREFORE, the order appealed from is hereby affirmed, without prejudice of the part of petitioner to file a new petition
for execution following strictly the requirements of the rule on the matter. No pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Labrador, Reyes, J.B.L., Barrera, and Gutierrez David, JJ., concur.
Concepcion, J., concurs in the result.

Republic of the Philippines

Supreme Court

Manila

SECOND DIVISION

SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE MESA, G.R. No. 185064

Petitioner,

Present:

CARPIO, J.,

Chairperson,

- versus - PEREZ,

SERENO,

REYES, and
 BERNABE, JJ. *

SPOUSES CLAUDIO D. ACERO, JR. and MA. RUFINA D. ACERO,

SHERIFF FELIXBERTO L. SAMONTE and REGISTRAR ALFREDO SANTOS, Promulgated:

Respondents.

January 16, 2012

x-----------------------------------------------------------------------------------------x

DECISION

REYES, J.:

Nature of the Petition

This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by the Spouses Araceli Oliva-De

Mesa (Araceli) and Ernesto S. De Mesa (Ernesto), assailing the Court of Appeals’ (CA) Decision1 dated June 6, 2008 and

Resolution2 dated October 23, 2008 in CA-G.R. CV No. 79391 entitled “Spouses Araceli Oliva-De Mesa and Ernesto De

Mesa v. Spouses Claudio Acero, Jr., et al.”

The Antecedent Facts

 This involves a parcel of land situated at No. 3 Forbes Street, Mount Carmel Homes Subdivision, Iba,

Meycauayan, Bulacan, which was formerly covered by Transfer Certificate of Title (TCT) No. T-76.725 (M) issued by the

Register of Deeds of Meycauayan, Bulacan and registered under Araceli’s name. The petitioners jointly purchased the

subject property on April 17, 1984 while they were still merely cohabiting before their marriage. A house was later

constructed on the subject property, which the petitioners thereafter occupied as their family home after they got

married sometime in January 1987.

Sometime in September 1988, Araceli obtained a loan from Claudio D. Acero, Jr. (Claudio) in the amount

of P100,000.00, which was secured by a mortgage over the subject property. As payment, Araceli issued a check drawn

against China Banking Corporation payable to Claudio.

When the check was presented for payment, it was dishonored as the account from which it was drawn had

already been closed. The petitioners failed to heed Claudio’s subsequent demand for payment.

Thus, on April 26, 1990, Claudio filed with the Prosecutor's Office of Malolos, Bulacan a complaint for violation of

Batas Pambansa Blg. 22 (B.P. 22) against the petitioners. After preliminary investigation, an information for violation of B.P.

22 was filed against the petitioners with the Regional Trial Court (RTC) of Malolos, Bulacan.

On October 21, 1992, the RTC rendered a Decision3 acquitting the petitioners but ordering them to pay Claudio

the amount of P100,000.00 with legal interest from date of demand until fully paid.

On March 15, 1993, a writ of execution was issued and Sheriff Felixberto L. Samonte (Sheriff Samonte) levied

upon the subject property. On March 9, 1994, the subject property was sold on public auction; Claudio was the highest

bidder and the corresponding certificate of sale was issued to him.

 Sometime in February 1995, Claudio leased the subject property to the petitioners and a certain Juanito Oliva

(Juanito) for a monthly rent of P5,500.00. However, the petitioners and Juanito defaulted in the payment of the rent and

as of October 3, 1998, their total accountabilities to Claudio amounted to P170,500.00.

Meanwhile, on March 24, 1995, a Final Deed of Sale4 over the subject property was issued to Claudio and on

April 4, 1995, the Register of Deeds of Meycauayan, Bulacan cancelled TCT No. T-76.725 (M) and issued TCT No. T-221755

(M)5 in his favor.

Unable to collect the aforementioned rentals due, Claudio and his wife Ma. Rufina Acero (Rufina) (collectively

referred to as Spouses Acero) filed a complaint for ejectment with the Municipal Trial Court (MTC) of Meycauayan,

Bulacan against the petitioners and Juanito. In their defense, the petitioners claimed that Spouses Acero have no right

over the subject property. The petitioners deny that they are mere lessors; on the contrary, they are the lawful owners of

the subject property and, thus cannot be evicted therefrom.

On July 22, 1999, the MTC rendered a Decision,6 giving due course to Spouses Acero’s complaint and ordering

the petitioners and Juanito to vacate the subject property. Finding merit in Spouses Acero’s claims, the MTC dismissed

the petitioners' claim of ownership over the subject property. According to the MTC, title to the subject property belongs

to Claudio as shown by TCT No. T-221755 (M).

The MTC also stated that from the time a Torrens title over the subject property was issued in Claudio’s name up

to the time the complaint for ejectment was filed, the petitioners never assailed the validity of the levy made by Sheriff

Samonte, the regularity of the public sale that was conducted thereafter and the legitimacy of Claudio’s Torrens title

that was resultantly issued.

The petitioners appealed the MTC’s July 22, 1999 Decision to the RTC. This appeal was, however, dismissed in a

Decision dated November 22, 1999 due to the petitioners’ failure to submit their Memorandum. The petitioners sought

reconsideration of the said decision but the same was denied in an Order dated January 31, 2000.
 Consequently, the petitioners filed a petition for review7 with the CA assailing the RTC’s November 22, 1999

Decision and January 31, 2000 Order. In a December 21, 2006 Decision,8 the CA denied the petitioner’s petition for

review. This became final on July 25, 2007.9

In the interregnum, on October 29, 1999, the petitioners filed against the respondents a complaint10 to nullify

TCT No. T-221755 (M) and other documents with damages with the RTC of Malolos, Bulacan. Therein, the petitioners

asserted that the subject property is a family home, which is exempt from execution under the Family Code and, thus,

could not have been validly levied upon for purposes of satisfying the March 15, 1993 writ of execution.

On September 3, 2002, the RTC rendered a Decision,11 which dismissed the petitioners’ complaint. Citing Article

155(3) of the Family Code, the RTC ruled that even assuming that the subject property is a family home, the exemption

from execution does not apply. A mortgage was constituted over the subject property to secure the loan Araceli

obtained from Claudio and it was levied upon as payment therefor.

The petitioners sought reconsideration of the RTC’s September 3, 2002 Decision but this was denied in a

Resolution12 dated January 14, 2003.

On appeal, the CA affirmed the RTC’s disposition in its Decision13 dated June 6, 2008. The CA ratiocinated that

the exemption of a family home from execution, attachment or forced sale under Article 153 of the Family Code is not

automatic and should accordingly be raised and proved to the Sheriff prior to the execution, forced sale or attachment.

The appellate court noted that at no time did the petitioners raise the supposed exemption of the subject property from

execution on account of the same being a family home.

The petitioners then sought reconsideration of the said June 6, 2008 Decision but the same was denied by the

CA in its Resolution14 dated October 23, 2008.

 Aggrieved, the petitioners filed the instant petition for review, praying for the cancellation of TCT No. T-221755

(M). They insist that the execution sale that was conducted is a nullity considering that the subject property is a family

home. The petitioners assert that, contrary to the disposition of the CA, a prior demonstration that the subject property is

a family home is not required before it can be exempted from execution.

In their Comment,15 Spouses Acero claimed that this petition ought to be denied on the ground of forum-

shopping as the issues raised had already been determined by the MTC in its July 22, 1999 Decision on the complaint for

ejectment filed by them, which had already become final and executory following the petitioner’s failure to appeal the

CA’s December 21, 2006 Decision affirming it.

Issues

The threshold issues for resolution are the following: (a) whether the petitioners are guilty of forum-shopping; and

(b) whether the lower courts erred in refusing to cancel Claudio’s Torrens title TCT No. T-221755 (M) over the subject

property.

The Court’s Ruling

First Issue: Forum-Shopping

On the first issue, we find that the petitioners are not guilty of forum-shopping.
 There is forum-shopping when as a result of an adverse decision in one forum, or in anticipation thereof, a party

seeks a favorable opinion in another forum through means other than an appeal or certiorari. Forum-shopping exists

when two or more actions involve the same transactions, essential facts, and circumstances; and raise identical causes

of action, subject matter, and issues.16

Forum-shopping exists where the elements of litis pendentia are present, and where a final judgment in one

case will amount to res judicata in the other. The elements of forum-shopping are: (a) identity of parties, or at least such

parties as would represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief

being founded on the same facts; and (c) identity of the two preceding particulars such that any judgment rendered in

the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.17

There is no identity of issues and reliefs prayed for in the ejectment case and in the action to cancel TCT No. T-

221755 (M). Verily, the primordial issue in the ejectment case is who among the contending parties has a better right of

possession over the subject property while ownership is the core issue in an action to cancel a Torrens title.

It is true that the petitioners raised the issue of ownership over the subject property in the ejectment case.

However, the resolution thereof is only provisional as the same is solely for the purpose of determining who among the

parties therein has a better right of possession over the subject property.

Accordingly, a judgment rendered in an ejectment case is not a bar to action between the same parties

respecting title to the land or building. Neither shall it be conclusive as to the facts therein. This issue is far from being

novel and there is no reason to depart from this Court’s previous pronouncements. In Malabanan v. Rural Bank of

Cabuyao, Inc.,18 this Court had previously clarified that a decision in an ejectment case is not res judicata in an

annulment of title case and vice-versa given the provisional and inconclusive nature of the determination of the issue of

ownership in the former.

Forum-shopping exists where the elements of litis pendentia are present, namely: (a) identity
of parties or at least such as representing the same interests in both actions; (b) identity of rights
asserted and reliefs prayed for, the relief being founded on the same facts; and (c) the identity in the
two cases should be such that the judgment that may be rendered in one would, regardless of which
party is successful, amounts to res judicata in the other.

Petitioner and respondent are the same parties in the annulment and ejectment cases. The
issue of ownership was likewise being contended, with same set of evidence being presented in both
cases. However, it cannot be inferred that a judgment in the ejectment case would amount to res
judicata in the annulment case, and vice-versa.

This issue is hardly a novel one. It has been laid to rest by heaps of cases iterating the
principle that a judgment rendered in an ejectment case shall not bar an action between the same
parties respecting title to the land or building nor shall it be conclusive as to the facts therein found in
a case between the same parties upon a different cause of action involving possession.

It bears emphasizing that in ejectment suits, the only issue for resolution is the physical or
material possession of the property involved, independent of any claim of ownership by any of the
party litigants. However, the issue of ownership may be provisionally ruled upon for the sole purpose of
determining who is entitled to possession de facto. Therefore, the provisional determination of
ownership in the ejectment case cannot be clothed with finality.

Corollarily, the incidental issue of whether a pending action for annulment would abate an
ejectment suit must be resolved in the negative.

A pending action involving ownership of the same property does not bar the filing or
consideration of an ejectment suit, nor suspend the proceedings. This is so because an ejectment
case is simply designed to summarily restore physical possession of a piece of land or building to one
who has been illegally or forcibly deprived thereof, without prejudice to the settlement of the parties'
opposing claims of juridical possession in appropriate proceedings.19 (citations omitted)

Second Issue: Nullification of TCT No. T-221755 (M)

 Anent the second issue, this Court finds that the CA did not err in dismissing the petitioners’ complaint for

nullification of TCT No. T-221755 (M).

The subject property is a family home.

The petitioners maintain that the subject property is a family home and, accordingly, the sale thereof on

execution was a nullity. In Ramos v. Pangilinan,20 this Court laid down the rules relative to exemption of family homes

from execution:

For the family home to be exempt from execution, distinction must be made as to what law
applies based on when it was constituted and what requirements must be complied with by the
judgment debtor or his successors claiming such privilege. Hence, two sets of rules are applicable.

If the family home was constructed before the effectivity of the Family Code or before
August 3, 1988, then it must have been constituted either judicially or extra-judicially as provided
under Articles 225, 229-231 and 233 of the Civil Code. Judicial constitution of the family home requires
the filing of a verified petition before the courts and the registration of the court’s order with the
Registry of Deeds of the area where the property is located. Meanwhile, extrajudicial constitution is
governed by Articles 240 to 242 of the Civil Code and involves the execution of a public instrument
which must also be registered with the Registry of Property. Failure to comply with either one of these
two modes of constitution will bar a judgment debtor from availing of the privilege.

On the other hand, for family homes constructed after the effectivity of the Family Code on
August 3, 1988, there is no need to constitute extrajudicially or judicially, and the exemption is
effective from the time it was constituted and lasts as long as any of its beneficiaries under Art. 154
actually resides therein. Moreover, the family home should belong to the absolute community or
conjugal partnership, or if exclusively by one spouse, its constitution must have been with consent of
the other, and its value must not exceed certain amounts depending upon the area where it is
located. Further, the debts incurred for which the exemption does not apply as provided under Art.
155 for which the family home is made answerable must have been incurred after August 3,
1988.21 (citations omitted)
 In the earlier case of Kelley, Jr. v. Planters Products, Inc.,22 we stressed that:

Under the Family Code, there is no need to constitute the family home judicially or
extrajudicially. All family homes constructed after the effectivity of the Family Code (August 3, 1988)
are constituted as such by operation of law. All existing family residences as of August 3, 1988 are
considered family homes and are prospectively entitled to the benefits accorded to a family home
under the Family Code.23 (emphasis supplied and citation omitted)

The foregoing rules on constitution of family homes, for purposes of exemption from execution, could be

summarized as follows:

First, family residences constructed before the effectivity of the Family Code or before August 3, 1988 must be

constituted as a family home either judicially or extrajudicially in accordance with the provisions of the Civil Code in

order to be exempt from execution;

Second, family residences constructed after the effectivity of the Family Code on August 3, 1988 are

automatically deemed to be family homes and thus exempt from execution from the time it was constituted and lasts as

long as any of its beneficiaries actually resides therein;

Third, family residences which were not judicially or extrajudicially constituted as a family home prior to the

effectivity of the Family Code, but were existing thereafter, are considered as family homes by operation of law and are

prospectively entitled to the benefits accorded to a family home under the Family Code.

Here, the subject property became a family residence sometime in January 1987. There was no showing,

however, that the same was judicially or extrajudicially constituted as a family home in accordance with the provisions
of the Civil Code. Still, when the Family Code took effect on August 3, 1988, the subject property became a family home

by operation of law and was thus prospectively exempt from execution. The petitioners were thus correct in asserting

that the subject property was a family home.

The family home’s exemption from execution must be set up and

proved to the Sheriff before the sale of the property at public
auction.

Despite the fact that the subject property is a family home and, thus, should have been exempt from

execution, we nevertheless rule that the CA did not err in dismissing the petitioners’ complaint for nullification of TCT No.

T-221755 (M). We agree with the CA that the petitioners should have asserted the subject property being a family home

and its being exempted from execution at the time it was levied or within a reasonable time thereafter. As the CA aptly

pointed out:

In the light of the facts above summarized, it is evident that appellants did not assert their
claim of exemption within a reasonable time. Certainly, reasonable time, for purposes of the law on
exemption, does not mean a time after the expiration of the one-year period provided for in Section
30 of Rule 39 of the Rules of Court for judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of
execution – to put an end to litigation. x x x.24

The foregoing disposition is in accord with the Court’s November 25, 2005 Decision in Honrado v. Court of

Appeals,25 where it was categorically stated that at no other time can the status of a residential house as a family home

can be set up and proved and its exemption from execution be claimed but before the sale thereof at public auction:

While it is true that the family home is constituted on a house and lot from the time it is
occupied as a family residence and is exempt from execution or forced sale under Article 153 of the
Family Code, such claim for exemption should be set up and proved to the Sheriff before the sale of
the property at public auction. Failure to do so would estop the party from later claiming the
exemption. As this Court ruled in Gomez v. Gealone:
 Although the Rules of Court does not prescribe the period within which to
claim the exemption, the rule is, nevertheless, well-settled that the right of
exemption is a personal privilege granted to the judgment debtor and as such, it
must be claimed not by the sheriff, but by the debtor himself at the time of the levy
or within a reasonable period thereafter;

“In the absence of express provision it has variously held

that claim (for exemption) must be made at the time of the levy
if the debtor is present, that it must be made within a reasonable
time, or promptly, or before the creditor has taken any step
involving further costs, or before advertisement of sale, or at any
time before sale, or within a reasonable time before the sale, or
before the sale has commenced, but as to the last there is
contrary authority.”

In the light of the facts above summarized, it is self-evident that appellants

did not assert their claim of exemption within a reasonable time. Certainly,
reasonable time, for purposes of the law on exemption, does not mean a time after
the expiration of the one-year period provided for in Section 30 of Rule 39 of the
Rules of Court for judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on execution and defeat the
very purpose of execution—to put an end to litigation. We said before, and We
repeat it now, that litigation must end and terminate sometime and somewhere,
and it is essential to an effective administration of justice that, once a judgment has
become final, the winning party be not, through a mere subterfuge, deprived of
the fruits of the verdict. We now rule that claims for exemption from execution of
properties under Section 12 of Rule 39 of the Rules of Court must be presented
before its sale on execution by the sheriff.26 (citations omitted)

Reiterating the foregoing in Spouses Versola v. Court of Appeals,27 this Court stated that:

Under the cited provision, a family home is deemed constituted on a house and lot from the
time it is occupied as a family residence; there is no need to constitute the same judicially or
extrajudicially.

The settled rule is that the right to exemption or forced sale under Article 153 of the Family
Code is a personal privilege granted to the judgment debtor and as such, it must be claimed not by
the sheriff, but by the debtor himself before the sale of the property at public auction. It is not sufficient
 that the person claiming exemption merely alleges that such property is a family home. This claim for
exemption must be set up and proved to the Sheriff. x x x.28 (emphasis supplied and citations omitted)

Having failed to set up and prove to the sheriff the supposed exemption of the subject property before the sale

thereof at public auction, the petitioners now are barred from raising the same. Failure to do so estop them from later

claiming the said exemption.

Indeed, the family home is a sacred symbol of family love and is the repository of cherished memories that last

during one’s lifetime.29 It is likewise without dispute that the family home, from the time of its constitution and so long as

any of its beneficiaries actually resides therein, is generally exempt from execution, forced sale or attachment.30

The family home is a real right, which is gratuitous, inalienable and free from attachment. It cannot be seized by

creditors except in certain special cases.31 However, this right can be waived or be barred by laches by the failure to set

up and prove the status of the property as a family home at the time of the levy or a reasonable time thereafter.

In this case, it is undisputed that the petitioners allowed a considerable time to lapse before claiming that the

subject property is a family home and its exemption from execution and forced sale under the Family Code. The

petitioners allowed the subject property to be levied upon and the public sale to proceed. One (1) year lapsed from the

time the subject property was sold until a Final Deed of Sale was issued to Claudio and, later, Araceli’s Torrens title was

cancelled and a new one issued under Claudio’s name, still, the petitioner remained silent. In fact, it was only after the

respondents filed a complaint for unlawful detainer, or approximately four (4) years from the time of the auction sale,

that the petitioners claimed that the subject property is a family home, thus, exempt from execution.

For all intents and purposes, the petitioners’ negligence or omission to assert their right within a reasonable time

gives rise to the presumption that they have abandoned, waived or declined to assert it. Since the exemption under

Article 153 of the Family Code is a personal right, it is incumbent upon the petitioners to invoke and prove the same
within the prescribed period and it is not the sheriff’s duty to presume or raise the status of the subject property as a

family home.

The petitioners’ negligence or omission renders their present assertion doubtful; it appears that it is a mere

afterthought and artifice that cannot be countenanced without doing the respondents injustice and depriving the fruits

of the judgment award in their favor. Simple justice and fairness and equitable considerations demand that Claudio’s

title to the property be respected. Equity dictates that the petitioners are made to suffer the consequences of their

unexplained negligence.

WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The assailed Decision dated

June 6, 2008 of the Court of Appeals in CA-G.R. CV No. 79391, which affirmed the Decision of the Regional Trial Court of

Malolos, Bulacan, Branch 22, in Civil Case No. 1058-M-99 and dismissed the complaint for declaration of nullity of TCT No.

221755 (M) and other documents, and the October 23, 2008 Resolution denying reconsideration, are AFFIRMED.

SO ORDERED.

BIENVENIDO L. REYES Associate Justice

WE CONCUR:
 ANTONIO T. CARPIO

Associate Justice

JOSE PORTUGAL PEREZ MARIA LOURDES P. A. SERENO

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.
 ANTONIO T. CARPIO

Associate Justice

Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-28248 March 12, 1975

LEONORA PERIDO, joined by husband MANUEL PIROTE, INOCENCIA PERIDO, ALBENIO PERIDO, PAULINO PERIDO, LETIA
PERIDO, joined by husband BIENVENIDO BALYAO, LETICIA PERIDO, joined by husband FELIX VILLARUZ, EUFEMIA PERIDO,
CONSOLACION PERIDO, ALFREDO PERIDO, GEORGE PERIDO, AMPARO PERIDO, WILFREDO PERIDO, MARGARITA PERIDO,
ROLANDO SALDE and EDUARDO SALDE, petitioners,
vs.
MARIA PERIDO, SOFRONIO PERIDO, JUAN A. PERIDO, GONZALO PERIDO, PACITA PERIDO, MAGDALENA PERIDO, ALICIA
PERIDO, JOSEFINA PERIDO, FE PERIDO, TERESA PERIDO and LUZ PERIDO, respondents.
Januario L. Jison, Jr. for petitioners.

Antonio T. de Jesus for respondents.

MAKALINTAL, C.J.:ñé+.£ªwph!1

This is an appeal by certiorari from the decision of the Court of Appeals in its CA-G.R. No. 37034-R, affirming the decision
of the Court of First Instance of Negros Occidental in Civil Case No. 6529.

Lucio Perido of Himamaylan, Negros Occidental, married twice during his lifetime. His first wife was Benita Talorong, with
whom he begot three (3) children: Felix, Ismael, and Margarita. After Benita died Lucio married Marcelina Baliguat, with
whom he had five (5) children: Eusebio, Juan, Maria, Sofronia and Gonzalo. Lucio himself died in 1942, while his second
wife died in 1943.

Of the three (3) children belonging to the first marriage only Margarita Perido is still living. Her deceased brother, Felix
Perido, is survived by his children Inocencia, Leonora, Albinio, Paulino, Letia, Leticia, and Eufemia, all surnamed Perido.
Nicanora Perido, another daughter of Felix, is also deceased, but is survived by two (2) sons, Rolando and Eduardo
Salde.

Margarita's other deceased brother, Ismael Perido, is survived by his children, namely: Consolacion, Alfredo, Wilfredo,
and Amparo. Susano Perido, another son of Ismael, is dead, but survived by his own son George Perido.

Of Lucio Perido's five (5) children by his second wife, two are already dead, namely: Eusebio and Juan. Eusebio is
survived by his children Magdalena Perido, Pacita Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz
Perido, while Juan is survived by his only child, Juan A. Perido.

On August 15, 1960 the children and grandchildren of the first and second marriages of Lucio Perido executed a
document denominated as "Declaration of Heirship and Extra-judicial Partition," whereby they partitioned among
themselves Lots Nos. 458, 471, 506, 511, 509, 513-B, 807, and 808, all of the Cadastral Survey of Himamaylan, Occidental
Negros.

Evidently the children belonging to the first marriage of Lucio Perido had second thoughts about the partition. On March
8, 1962 they filed a complaint in the Court of First Instance of Negros Occidental, which complaint was later amended
on February 22, 1963, against the children of the second marriage, praying for the annulment of the so-called
"Declaration of Heirship and Extra-Judicial Partition" and for another partition of the lots mentioned therein among the
plaintiffs alone. They alleged, among other things, that they had been induced by the defendants to execute the
document in question through misrepresentation, false promises and fraudulent means; that the lots which were
partitioned in said document belonged to the conjugal partnership of the spouses Lucio Perido and Benita Talorong,
and that the five children of Lucio Perido with Marcelina Baliguat were all illegitimate and therefore had no successional
rights to the estate of Lucio Perido, who died in 1942. The defendants denied the foregoing allegations.

After trial the lower court rendered its decision dated July 31, 1965, annulling the "Declaration of Heirship and Extra-
Judicial Partition." However, it did not order the partition of the lots involved among the plaintiffs exclusively in view of its
findings that the five children of Lucio Perido with his second wife, Marcelina Baliguat, were legitimate; that all the lots,
except Lot No. 458, were the exclusive properties of Lucio Perido; and that 11/12 of Lot No. 458 belonged to the
conjugal partnership of Lucio Perido and his second wife, Marcelina Baliguat. The dispositive portion of the decision
reads as follows:têñ.£îhqwâ£

IN VIEW OF ALL THE FOREGOING, the Court renders judgment as follows: declaring the following as the
legitimate children and grandchildren and heirs of Lucio Perido and Benita Talorong: Felix Perido,
deceased; grandchildren: Inocencia Perido, Leonora Perido, Albinio Perido, Paulino Perido, Letia
Perido, Leticia Perido, Eufemia Perido; Nicanora Perido, deceased; great grandchildren: Rolando
Salde and Eduardo Salde; Ismael Perido, deceased; grandchildren: Consolacion Perido, Alfredo
Perido, Susano Perido, deceased; great grandson: George Perido; Amparo Perido and Wilfredo
Perido; and, Margarita Perido; (2) declaring the following as the legitimate children and
grandchildren and heirs of Lucio Perido and Marcelina Baliguat: Eusebio Perido, deceased;
grandchildren: Pacita Perido, Magdalena Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa
 Perido, and Luz Perido; Juan B. Perido, deceased; grandson, Juan A. Perido; Maria Perido; Sofronia
Perido; and Gonzalo Perido; (3) declaring all lots (471, 506, 511, 509, 513-part, 807, and 808) except Lot
No. 458 as exclusive properties of Lucio Perido so that each of them should be divided into eight (8)
equal parts: 1/8 belongs to Felix Perido, but because of his death leaving eight (8) children, the same
should be divided and alloted as follows: 1/64 to Inocencia Perido of age, widow; 1/64 to Leonora
Perido, of age, married to Manuel Pirote; 1/64 to Albinio Perido, of age, married to Honorata Villasana;
1/64 to Paulino Perido, of age, married to Norma Villalba 1/64 to Letia Perido, of age, married to
Bienvenido Balyac; 1/64 to Leticia Perido, of age, married to Felix Villaruz; 1/64 to Eufemia Perido, of
age, single; 1/64 to Nicanora Perido, but because she is now dead the same should be divided and
alloted as follows: 1/128 to Rolando Salde, of age, single; and 1/128 to Eduardo Salde, of age, single;
1/8 belongs to Ismael Perido, but because he is already dead leaving five children, the same should
be divided and alloted as follows: 1/40 to Consolacion Perido, of age, widow; 1/40 to Alfredo Perido,
of age married to Trinidad Tamargo; 1/40 to Susano Perido, but he is already dead with one son, the
same goes to George Perido, of age, single; 1/40 to Wilfredo Perido, of age, single; 1/8 belongs to
Margarita Perido, of age, widow; 1/8 belongs to Eusebio Perido, but because he is already dead with
seven children, the same should be divided and alloted as follows: 1/56 goes to Pacita Perido, of age,
single; 1/56 goes to Magdalena Perido, of age, single; 1/56 goes to Alicia Perido, of age, married to
Isaias Ruiz; 1/56 goes to Josefina Perido, of age, married to Leopoldo Doloroso; 1/56 goes to Fe Perido,
of age, single; 1/56 goes to Teresa Perido, of are single; 1/56 goes to Luz Perido, of age, married to
Fidel de la Cruz; 1/8 belongs to Juan B. Perido, but because he is already dead with one child, the
same 1/8 goes to Juan A. Perido, of age, married to Salud Salgado 1/8 goes to Maria Perido. of age,
married to Julio Pirote; 1/8 goes to Sofronia Perido, of age, widow; and, 1/8 goes to Gonzalo Perido, of
age, married to Lacomemoracion Estiller; (4) declaring the 11/12 shares in Lot No. 458 as conjugal
partnership property of Lucio Perido and Marcelina Baliguat, which should be divided and alloted as
follows: 11/24 goes to Lucio Perido to be divided into eight (8) equal shares and 11/24 goes to
Marcelina Baliguat to be divided into five (5) equal shares or 11/120 for each of the children and
again to be divided by the children of each child now deceased; (6) declaring Fidel Perido owner of
1/12 share in Lot 458 to be divided among his heirs to be determined accordingly later; and (6)
declaring null and void Exhibit "J" of the plaintiffs which is Exhibit "10" for the defendants, without costs
and without adjudication with respect to the counterclaim and damages, they being members of the
same family, for equity and justice.

The plaintiffs appealed to the Court of Appeals, alleging that the trial court erred: (1) in declaring that Eusebio Perido,
Juan Perido, Maria Perido, Sofronia Perido and Gonzalo Perido, were the legitimate children of Lucio Perido and his
second wife, Marcelina Baliguat; (2) in declaring that Lucio Perido was the exclusive owner of Lots Nos. 471, 506, 511,
509, 513-Part, 807, and 808 of Cadastral Survey of Himamaylan, Negros Occidental, and in not declaring that said lots
were the conjugal partnership property of Lucio Perido and his first wife, Benita Talorong; and (3) in holding that 11/12 of
Lot 458 was the conjugal partnership property of Lucio Perido and Marcelina Baliguat.

Finding no reversible error in the decision of the lower court, the Court of Appeals affirmed it in toto. The appellants
moved to reconsider but were turned down. Thereupon they instituted he instant petition for review reiterating in effect
the assignments of error and the arguments in the brief they submitted to the appellate court.

The first issue pertains to the legitimacy of the five children of Lucio Perido with Marcelina Baliguat. The petitioners insist
that said children were illegitimate on the theory that the first three were born out of wedlock even before the death of
Lucio Perido's first wife, while the last two were also born out of wedlock and were not recognized by their parents before
or after their marriage. In support of their contention they allege that Benita Talorong died in 1905, after the first three
children were born, as testified to by petitioner Margarita Perido and corroborated by petitioner Leonora Perido; that as
late as 1923 Lucio Perido was still a widower, as shown on the face of the certificates of title issued to him in said year;
and Lucio Perido married his second wife, Marcelina Baliguat, only in 1925, as allegedly established through the
testimony of petitioner Leonora Perido.

The petition cannot be sustained. The Court of Appeals found that there was evidence to show that Lucio Perido's wife,
Benita Talorong, died during the Spanish regime. This finding conclusive upon us and beyond our power of review. Under
the circumstance, Lucio Perido had no legal impediment to marry Marcelina Baliguat before the birth of their first child in
1900.

With respect to the civil status of Lucio Perido as stated in the certificates of title issued to him in 1923, the Court of
Appeals correctly held that the statement was not conclusive to show that he was not actually married to Marcelina
Baliguat. Furthermore, it is weak and insufficient to rebut the presumption that persons living together husband and wife
are married to each other. This presumption, especially where legitimacy of the issue is involved, as in this case, may be
overcome only by cogent proof on the part of those who allege the illegitimacy. In the case of Adong vs. Cheong Seng
Gee1 this Court explained the rationale behind this presumption, thus: "The basis of human society throughout the
civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an
institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans
toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any
counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order
of society, and if the parties were not what they thus hold themselves out as being, they would he living in the constant
violation of decency and of law. A presumption established by our Code of Civil Procedure is "that a man and woman
deporting themselves as husband and wife have entered into a lawful contract of marriage." (Sec. 334, No. 28) Semper
praesumitur pro matrimonio — Always presume marriage."

While the alleged marriage ceremony in 1925, if true, might tend to rebut the presumption of marriage arising from
previous cohabitation, it is to be noted that both the trial court and the appellate court did not even pass upon the
uncorroborated testimony of petitioner Leonora Perido on the matter. The reason is obvious. Said witness, when asked
why she knew that Marcelina Baliguat was married to Lucio Perido only in 1925, merely replied that she knew it because
"during the celebration of the marriage by the Aglipayan priest (they) got flowers from (their) garden and placed in the
altar." Evidently she was not even an eyewitness to the ceremony.

In view of the foregoing the Court of Appeals did not err in concluding that the five children of Lucio Perido and
Marcelina Baliguat were born during their marriage and, therefore, legitimate.

The second assignment of error refers to the determination of whether or not Lots Nos. 471, 506, 511, 509-513-Part, 807
and 808 were the exclusive properties of Lucio Perido. In disposing of the contention of the petitioners that said lots
belong to the conjugal partnership of spouses Lucio Perido and Benita Talorong, the Court of Appeals said:têñ.£îhqwâ£

... We cannot agree again with them on this point. It is to be noted that the lands covered by the
certificates of title (Exhs. B to G) were all declared in the name of Lucio Perido. Then there is evidence
showing that the lands were inherited by Lucio Perido from his grandmother (t.s.n., p. 21, Feb. 20,
1964). In other words, they were the exclusive properties of the late Lucio Perido which he brought into
the first and second marriages. By fiat of law said Properties should be divided accordingly among his
legal heirs.

The petitioners take exception to the finding of the appellate court that the aforementioned lots were inherited by Lucio
Perido from his grandmother and contend that they were able to establish through the testimonies of their witnesses that
the spouses Lucio Perido and Benita Talorong acquired them during their lifetime. Again, the petitioners cannot be
sustained. The question involves appreciation of the evidence, which is within the domain of the Court of Appeals, the
factual findings of which are not reviewable by this Court.

The third assignment of error is with regard to the ruling of the Court of Appeals sustaining the finding of the trial court
that 11/12 of Lot 458 was the conjugal partnership property of Lucio Perido and his second wife, Marcelina Baliguat. Said
the appellate court:têñ.£îhqwâ£

With respect to Lot No. 458 which is now covered by Original Certificate of Title No. 21769 issued in
1925 the same should be considered conjugally owned by Lucio Perido and his second wife,
Marcelina Baliguat. The finding of the lower court on this point need not be disturbed. It is expressly
stated in the certificate of title (Exh. L) that Lucio Perido, the registered owner, was married to
Marcelina Baliguat unlike in the previous land titles. If the law presumes a property registered in the
name of only one of the spouses to be conjugal (Guinguing vs. Abutin, 48 Phil. 144; Flores vs. Flores, 48
Phil. 288, Escutin vs. Escutin, 60 Phil. 922), the presumption becomes stronger when the document
recites that the spouse in whose name the land is registered is married to somebody else, like in the
case at bar. It appearing that the legal presumption that the No. 458 belonged to the conjugal
partnership had not been overcome by clear proofs to the contrary, we are constrained to rule, that
the same is the conjugal property of the deceased spouses Lucio Perido and Marcelina Baliguat.

In impugning the foregoing ruling, the petitioners maintain that they were able to prove that 6/12 of said Lot 458 was the
conjugal property of spouses Lucio Perido and his first wife, Benita Talorong, and that the purchase price of the
additional 5/12 of said lot came from the proceeds of sale of a lot allegedly belonging to Lucio Perido and his three
children of the first marriage. As in the second assignment of error, the issue raised here also involves appreciation of the
evidence and, consequently, the finding of the appellate court on the matter is binding on this Court. Indeed, a review
of that finding would require an examination of all the evidence introduced before the trial court, a consideration of the
credibility of witnesses and of the circumstances surrounding the case, their relevancy or relation to one another and to
the whole, as well as an appraisal of the probabilities of the entire situation. It would thus abolish the distinction between
an ordinary appeal on the one hand and review on certiorari on the other, and thus defeat the purpose for which the
latter procedure has been established.2
WHEREFORE, the decision of the Court of Appeals is hereby affirmed, with costs against the petitioners.

Castro, Teehankee, Makasiar and Esguerra, JJ., concur.1äwphï1.ñët

Muñoz Palma, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 77867 February 6, 1990

ISABEL DE LA PUERTA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and CARMELITA DE LA PUERTA, respondents.

Isabel de la Puerta for and in her own behalf.

Gilbert D. Camaligan for private respondent.

CRUZ, J.:

The basic issue involved in this case is the filiation of private respondent Carmelita de la Puerta, who claims successional
lights to the estate of her alleged grandmother.

Dominga Revuelta died on July 3, 1966, at the age of 92, with a will leaving her properties to her three surviving children,
namely, Alfredo, Vicente and Isabel, all surnamed de la Puerta. Isabel was given the free portion in addition to her
legitime and was appointed executrix of the will.1

The petition for the probate of the will filed by Isabel was opposed by her brothers, who averred that their mother was
already senile at the time of the execution of the will and did not fully comprehend its meaning. Moreover, some of the
properties listed in the inventory of her estate belonged to them exclusively. 2

Meantime, Isabel was appointed special administratrix by the probate court. 3 Alfredo subsequently died, leaving
Vicente the lone oppositor. 4

On August 1, 1974, Vicente de la Puerta filed with the Court of First Instance of Quezon a petition to adopt Carmelita de
la Puerta. After hearing, the petition was granted. 5 However, the decision was appealed by Isabel to the Court of
Appeals. During the pendency of the appeal, Vicente died, prompting her to move for the dismissal of the case 6

On November 20, 1981, Carmelita, having been allowed to intervene in the probate proceedings, filed a motion for the
payment to her of a monthly allowance as the acknowledged natural child of Vicente de la Puerta.7 At the hearing on
her motion, Carmelita presented evidence to prove her claimed status to which Isabel was allowed to submit counter-
evidence.

On November 12,1982, the probate court granted the motion, declaring that it was satisfied from the evidence at hand
that Carmelita was a natural child of Vicente de la Puerta and was entitled to the amounts claimed for her support. The
court added that "the evidence presented by the petitioner against it (was) too weak to discredit the same.8
On appeal, the order of the lower court was affirmed by the respondent court,9 which is now in turn being challenged in
this petition before us.

The petitioner's main argument is that Carmelita was not the natural child of Vicente de la Puerta, who was married to
Genoveva de la Puerta in 1938 and remained his wife until his death in 1978. Carmelita's real parents are Juanita Austrial
and Gloria Jordan.

Invoking the presumption of legitimacy, she argues that Carmelita was the legitimate child of Juanita Austrial and Gloria
Jordan, who were legally or presumably married. Moreover, Carmelita could not have been a natural child of Vicente
de la Puerta because he was already married at the time of her birth in 1962.

To prove her point, Isabel presented Amado Magpantay, who testified that he was a neighbor of Austrial and Jordan.
According to him, the two were living as husband and wife and had three children, including a girl named "Puti,"
presumably Carmelita. He said though that he was not sure if the couple was legally married.10

Another witness, Genoveva de la Puerta, Identified herself as Vicente de la Puerta's wife but said they separated two
years after their marriage in 1938 and were never reconciled. In 1962, Gloria Jordan started living with Vicente de la
Puerta in his house, which was only five or six houses away from where she herself was staying. Genoveva said that the
relationship between her husband and Gloria was well known in the community.11

In finding for Carmelita, the lower court declared that:

. . . By her evidence, it was shown to the satisfaction of the Court that she was born on December 18,
1962 per her birth certificate (Exh. A); that her father was Vicente de la Puerta and her mother is Gloria
Jordan who were living as common law husband and wife until his death on June 14, 1978; that
Vicente de la Puerta was married to, but was separated from, his legal wife Genoveva de la Puerta;
that upon the death of Vicente de la Puerta on June 14, 1978 without leaving a last will and
testament, she was the only child who survived him together with his spouse Genoveva de la Puerta
with whom he did not beget any child; that she was treated by Vicente de la Puerta as a true child
from the time of her birth until his father died; that the fact that she was treated as a child of Vicente
de la Puerta is shown by the family pictures showing movant with Vicente de la Puerta (Exhs. D, D-1
and D-2) and school records wherein he signed the report cards as her parent (Exh. E and E-1); that
during the hearing of her adoption case in Special Proceeding No. 0041 in Branch V of this Court at
Mauban, Quezon, Vicente de la Puerta categorically stated in court that Carmelita de la Puerta is his
daughter with Gloria Jordan (Exhs. B and B-1); that it was Vicente de la Puerta during his lifetime who
spent for her subsistence, support and education; . . . 12

This is a factual finding that we do not see fit to disturb, absent any of those circumstances we have laid down in a long
line of decisions that will justify reversal.13 Among these circumstances are: (1) the conclusion is a finding grounded
entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court
of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant and
appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of facts
are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as
well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of the
Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.

The petitioner insists on the application of the following provisions of the Civil Code to support her thesis that Carmelita is
not the natural child of Vicente de la Puerta but the legitimate child of Juanito Austrial and Gloria Jordan:

Art. 255. Children born after one hundred and eighty days following the celebration of the marriage,
and before three hundred days following its dissolution or the separation of the spouses shall be
presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical impossibility of
the husband's having access to his wife within the first one hundred and twenty days of the three
hundred which preceded the birth of the child.

This physical impossibility may be caused:

 (1) By the impotence of the husband;

(2) By the fact that the husband and wife were living separately in such a way that access was not
possible;

(3) By the serious illness of the husband.

Art. 256. The child shall be presumed legitimate, although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.

These rules are in turn based on the presumption that Juanito and Gloria were married at the time of Carmelita's birth in
1962, pursuant to Rule 131, Sec. 5(bb) of the Rules of Court, providing that:

Sec. 5. Disputable presumptions.—The following presumptions are satisfactory if uncontradicted, but

may be contradicted and overcome by other evidence:

xxx xxx xxx

(bb) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;

But this last-quoted presumption is merely disputable and may be refuted with evidence to the contrary. As the Court
sees it, such evidence has been sufficiently established in the case at bar.

The cases 14 cited by the petitioner are not exactly in point because they involve situations where the couples lived
continuously as husband and wife and so could be reasonably presumed to be married. In the case before us, there was
testimony from Vicente's own wife that her husband and Gloria lived together as a married couple, thereby rebutting
the presumption that Gloria was herself the lawful wife of Juanita Austrial.

Such testimony would for one thing show that Juanito and Gloria did not continuously live together as a married couple.
Moreover, it is not explained why, if he was really married to her, Juanito did not object when Gloria left the conjugal
home and started openly consorting with Vicente, and in the same neighborhood at that. That was unnatural, to say the
least. It was different with Genoveva for she herself swore that she had separated from Vicente two years after their
marriage and had long lost interest in her husband. In fact, she even renounced in open court any claim to Vicente's
estate.15

The presumption of marriage between Juanito and Gloria having been destroyed, it became necessary for the
petitioner to submit additional proof to show that the two were legally married. She did not.

Turning now to the evidence required to prove the private respondent's filiation, we reject the petitioner's contention
that Article 278 of the Civil Code is not available to Carmelita. It is error to contend that as she is not a natural child but a
spurious child (if at all) she cannot prove her status by the record of birth, a will, a statement before a court of record, or
any authentic writing. On the contrary, it has long been settled that:

The so-called spurious children or illegitimate children other than natural children, commonly known as
bastards, include adulterous children or those born out of wedlock to a married woman cohabiting
with a man other than her husband or to a married man cohabiting with a woman other than his wife.
They are entitled to support and successional rights (Art. 287, CC). But their filiation must be duly
proven.(Ibid, Art. 887)

How should their filiation be proven? Article 289 of the Civil Code allows the investigation of the
paternity or maternity of spurious children under the circumstances specified in Articles 283 and 284 of
the Civil Code. The implication is that the rules on compulsory recognition of natural children are
applicable to spurious children.

Spurious children should not be in a better position than natural children. The rules on proof of filiation
of natural children or the rule on voluntary and compulsory acknowledgment for natural children may
be applied to spurious children. 16
This being so, we need not rule now on the admissibility of the private respondent's certificate of birth as proof of her
filiation. That status was sufficiently established by the sworn testimony of Vicente de la Puerta at the hearing of the
petition for adoption on September 6, 1976, where he categorically declared as follows:

Q What relation if any do you have with Carmelita de la Puerta?

A She is my daughter. 17

Finally, we move to the most crucial question, to wit: May Carmelita de la Puerta claim support and successional rights to
the estate of Dominga Revuelta?

According to Article 970 of the Civil Code:

Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is
raised to the place and the degree of the person represented, and acquires the rights which the
latter would have if he were living or if he could have inherited.

The answer to the question posed must be in the negative. The first reason is that Vicente de la Puerta did not
predecease his mother; and the second is that Carmelita is a spurious child.

It is settled that —

In testamentary succession, the right of representation can take place only in the following cases: first,
when the person represented dies before the testator; second, when the person represented is
incapable of succeeding the testator; and third, when the person represented is disinherited by the
testator. In all of these cases, since there is a vacancy in the inheritance, the law calls the children or
descendants of the person represented to succeed by right of representation. 18

xxx xxx xxx

The law is clear that there is representation only when relatives of a deceased person try to succeed
him in his rights which he would have had if still living. In the present case, however, said deceased
had already succeeded his aunt, the testatrix herein. . . . It is a fact that at the time of the death of the
testatrix, Reynaldo Cuison was still alive. He died two months after her (testatrix's) death. And upon his
death, he transmitted to his heirs, the petitioners herein Elisa Cuison et al., the legacy or the right to
succeed to the legacy. . . . In other words, the herein petitioners-appellants are not trying to succeed
to the right to the property of the testatrix, but rather to the right of the legatee Reynaldo Cuison in
said property. 19

Not having predeceased Dominga Revuelta, her son Vicente had the right to inherit from her directly or in his own right.
No right of representation was involved, nor could it be invoked by Carmelita upon her father's death, which came after
his own mother's death. It would have been different if Vicente was already dead when Dominga Revuelta died.
Carmelita could then have inherited from her in representation of her father Vicente, assuming the private respondent
was a lawful heir.

But herein lies the crux, for she is not. As a spurious child of Vicente, Carmelita is barred from inheriting from Dominga
because of Article 992 of the Civil Code, which lays down the barrier between the legitimate and illegitimate families.
This article provides quite clearly:

Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and
relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the
illegitimate child.

Applying this rule in Leonardo v. Court of Appeals, 20 this Court declared:

. . . even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by right of
representation, claim a share of the estate left by the deceased Francisca Reyes considering that, as
found again by the Court of Appeals, he was born outside wedlock as shown by the fact that when
he was born, his alleged putative father and mother were not yet married, and what is more, his
 alleged father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who
has no right to inherit ab intestato from the legitimate children and relatives of his father, like the
deceased Francisca Reyes.

The reason for this rule was explained in the recent case of Diaz v. Intermediate Appellate Court, 21 thus:

Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child and the legitimate children and relatives of the
father or mother of said legitimate child. They may have a natural tie of blood, but this is not
recognized by law for the purpose of Article 992. Between the legitimate family and the illegitimate
family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is
disgracefully looked down upon by the legitimate family; the family is in turn, hated by the illegitimate
child the latter considers the privileged condition of the former, and the resources of which it is
thereby deprived; the former in turn sees in the illegitimate child nothing but the product of sin,
palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by
avoiding further ground of resentment. 22

Indeed, even as an adopted child, Carmelita would still be barred from inheriting from Dominga Revuelta for there
would be no natural kindred ties between them and consequently, no legal ties to bind them either. As aptly pointed out
by Dr. Arturo M. Tolentino:

If the adopting parent should die before the adopted child, the latter cannot represent the former in
the inheritance from the parents or ascendants of the adopter. The adopted child is not related to the
deceased in that case, because the filiation created by fiction of law is exclusively between the
adopter and the adopted. "By adoption, the adopters can make for themselves an heir, but they
cannot thus make one for their kindred. 23

The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has successional rights to the intestate
estate of her father but not to the estate of Dominga Revuelta. Her claims for support and inheritance should therefore
be filed in the proceedings for the settlement of her own father's
estate 24 and cannot be considered in the probate of Dominga Revuelta's Will.

WHEREFORE, the petition is GRANTED and the appealed decision is hereby REVERSED and SET ASIDE, with costs against
the private respondent. It is so ordered.

Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

SECOND DIVISION

[A.C. No. 2115. November 27, 1990.]

FELICIDAD BARIÑAN TAN, Complainant, v. ATTY. GALILEO J. TROCIO, Respondent.

Jose A. Tolentino, Jr., for complainant.

SYLLABUS

1. LEGAL ETHICS; DISBARMENT OF LAWYERS; CHARGE OF IMMORALITY, NOT ESTABLISHED IN THE CASE AT BAR. — The issue
for determination is whether or not Respondent should be disbarred for immoral conduct. This, in turn, hinges on the
question of whether he had, in fact, sexually assault the Complainant, as a consequence of which the latter begot a
child by him. We find insufficient basis to sustain Complainant’s charge. The outrage allegedly took place during the last
week of April, 1971. Yet, no criminal charge was filed, and it was only about eight years later, on 5 November 1979, that
an administrative complaint was presented before this Court. Complainant’s explanation that Respondent’s threat to
cause the deportation of her alien husband should she report to anyone made her desist from filing a charge is not
credible as she had admitted having lost contact with her husband when he learned of respondent’s transgression that
very same evening (p. 3, TSN, 16 October 1980, p. 46, Rollo). The fear that she speaks of, therefore, had become
inexistent. Another factor that engenders doubt in the mind of the Court is the fact that after the alleged incident, she
continued having dealings with the Respondent as if nothing had happened. Thus, by Respondent’s own account,
which was left uncontroverted by the Complainant, the former assisted her mother and sisters prosecute a robbery case.
Then in March, 1976, she secured respondent’s services in claiming indemnity from three insurance companies when a
fire burned the school down. Finally, respondent was retained as a collaborating attorney by complainant’s family in an
inheritance case. These subsequent dealings are far from being the normal reaction of a woman who has been
wronged. Complainant’s contention that Respondent continued supporting the child for several years for which reason
she desisted from charging him criminally, has not been substantiated. Truth to tell, the fact that she kept her peace for
so many years can even be construed as a condonation of his alleged "immoral conduct." It is likewise strange that an
unwanted son, as the child would normally have been, should, of all names, be called "Jewel."cralaw virtua1aw library

2. CIVIL LAW; PATERNITY AND FILIATION; PROOF OF FILIATION; UNUSUAL CLOSENESS AND PHYSICAL LIKENESS, CONSIDERED
INCONCLUSIVE EVIDENCE. — The testimonies of Complainant and witness Marilou Pangandaman, another maid, to show
unusual closeness between Respondent and Jewel, like playing with him and giving him toys, are not convincing enough
to prove paternity, as Complainant would want us to believe. The same must be said of Exhibits A, A1, B and B1, which
are pictures of Jewel and the Respondent showing allegedly their physical likeness to each other. Such evidence is
inconclusive to prove paternity, and much less would it prove violation of Complainant’s person and honor.

3. ID.; ID.; LEGITIMATE CHILDREN; PRESUMPTION OF LEGITIMACY, NOT OVERCOME BY ADEQUATE AND CONVINCING
PROOF IN THE CASE AT BAR. — More importantly, Jewel Tan was born in 1972, during wedlock of Complainant and her
husband and the presumption should be in favor of legitimacy unless physical access between the couple was
impossible. From the evidence on hand, the presumption has not been overcome by adequate and convincing proof.
In fact, Jewel was registered in his birth certificate the legitimate child of the Complainant and her husband, Tan Le Pok.

DECISION

MELENCIO-HERRERA, J.:

In a verified complaint, filed on 9 November 1979, complainant Felicidad Bariñan Tan seeks the disbarment of
respondent Atty. Galileo J. Trocio for immorality and conduct unbecoming of a lawyer.

Complainant, owner and directress of Harlyn Vocational School in Baroy, Lanao del Norte, declares that sometime in
April, 1971, at about 8:30 PM, after classes were dismissed, respondent, who is the legal counsel of the school,
overpowered her inside the office and, against her will, succeeded in having carnal knowledge of her. As a result, she
begot a son on 5 February 1972 whom she named and registered as Jewel Tan. She avers that respondent used to
support Jewel but subsequently lost interest in doing so thereby neglecting to defray the needed expenses for Jewel’s
well-being. Complainant also alleges that the respondent threatened her with the deportation of her alien husband if
she complained to the authorities since she was violating the Anti-Dummy Law in operating the vocational school. This
threat, aside from the fact that Complainant is a married woman with eight children and a school directress at the time
of the sexual assault, made her desist from filing a charge against the Respondent. However, after eight years and
thorough soul-searching, she decided to file this administrative complaint.chanrobles virtual lawlibrary

Respondent, in his Answer, admits having acted as a lawyer of the vocational school. In fact, he contends that he had
also served as the lawyer of the Complainant, her family and her parents-in-law. Thus, in 1971, he helped prosecute a
case for robbery committed against Complainant’s mother and sisters. Also, in March of 1976, when a fire of unknown
origin gutted the school, he assisted the complainant in collecting P10,000.00 from FGU Insurance Group, and P40,000.00
from Fortune Insurance Corporation as indemnities. With regard to the same case, he also represented complainant in a
suit involving a P130,000.00 claim against the Workmen’s Insurance Corporation before the then Court of First Instance of
Lanao del Norte. Then in 1978, he was retained as a collaborating attorney by Complainant’s family in an inheritance
case. Further, her father-in-law had always consulted him in matters affecting the former’s store.

But respondent vehemently denies that he had sexually assaulted the Complainant. He argues that her motivation in
filing this charge was to get even with him after having been humiliated when he declined her request to commit a
"breach of trust." He states that in the inheritance case he handled for her family, Complainant insisted that he report to
her mother and sisters that he had charged a fee of P15,000.00 instead of the P2,500.00 he actually received so that she
could pocket the difference. He refused and told the Complainant to look for another lawyer. She tried twice to make
peace with him but was unsuccessful. Rebuffed, she promised to get even with him. Thus, this
complaint.chanrobles.com:cralaw:red

Another reason why Complainant filed the present case, respondent claims, is to escape her indebtedness to him
representing his services as legal counsel of the school which were unpaid since 1974 and the accumulated honoraria
from her fire insurance claims. These obligations were left unpaid despite demand made when respondent learned that
Complainant had sold a piece of land in Agusan.

On 2 June 1980, the Court, acting upon the Complaint and the Answer already filed, referred the case to the Office of
the Solicitor General for investigation, report and recommendation.

On 19 August 1980, said Office, upon the request of the Complainant that the investigation be held in Lanao del Norte
as she and her witnesses could not afford to come to Manila, referred the case to the Provincial Fiscal of said province
for the necessary proceedings.

Between September and October of 1980, hearings were conducted on the case. In a Report and Recommendation,
dated 16 January 1981, the Provincial Fiscal stated that respondent failed to attend the hearing despite the issuance of
subpoena; that there was prima facie evidence showing that respondent had committed acts violative of his
professional decorum; and, that he was recommending disciplinary action against him. The records of the case were
then forwarded to the Office of the Solicitor General.

On 1 September 1982, the Office of the Solicitor General returned the records to the Provincial Fiscal of Lanao del Norte
for re-investigation on the ground that the investigation was conducted in the absence of respondent, who did not
appear despite subpoenas sent to him. Thus, further proceedings were conducted by the Provincial Fiscal wherein
Respondent was allowed to submit a sworn letter, dated 13 December 1985, amplifying on the defenses contained in his
Answer.

On 13 February 1986, the Provincial Fiscal of Lanao del Norte issued a Resolution adopting his previous Report and
Recommendation of 16 January 1981, which found prima facie evidence to hold Respondent administratively liable. On
the same day, the records of the case were referred back to the Office the Solicitor General.

On 16 May 1986, the Office of the Solicitor General came up with its own Report recommending that Respondent be
disbarred for gross immoral conduct. On 17 July 1986, as directed by the Court, the Solicitor General filed a formal
Complaint for disbarment against Respondent. On 29 May 1990, the case was raffled to this Second Division and was
included in the latter’s agenda on 13 June 1990.

Respondent has filed an Answer, Complainant her Reply, while Respondent’s Rejoinder, as required by the Court, was
received on 3 October 1990. The required pleadings being complete, this case is now ripe for resolution.

The issue for determination is whether or not Respondent should be disbarred for immoral conduct. This, in turn, hinges on
the question of whether he had, in fact, sexually assault the Complainant, as a consequence of which the latter begot a
child by him.

We find insufficient basis to sustain Complainant’s charge.

The outrage allegedly took place during the last week of April, 1971. Yet, no criminal charge was filed, and it was only
about eight years later, on 5 November 1979, that an administrative complaint was presented before this Court.
Complainant’s explanation that Respondent’s threat to cause the deportation of her alien husband should she report to
anyone made her desist from filing a charge is not credible as she had admitted having lost contact with her husband
when he learned of respondent’s transgression that very same evening (p. 3, TSN, 16 October 1980, p. 46, Rollo). The fear
that she speaks of, therefore, had become inexistent.chanrobles.com:cralaw:red

Another factor that engenders doubt in the mind of the Court is the fact that after the alleged incident, she continued
having dealings with the Respondent as if nothing had happened. Thus, by Respondent’s own account, which was left
uncontroverted by the Complainant, the former assisted her mother and sisters prosecute a robbery case. Then in
March, 1976, she secured respondent’s services in claiming indemnity from three insurance companies when a fire
burned the school down. Finally, respondent was retained as a collaborating attorney by complainant’s family in an
inheritance case. These subsequent dealings are far from being the normal reaction of a woman who has been
wronged.

Complainant’s contention that Respondent continued supporting the child for several years for which reason she
desisted from charging him criminally, has not been substantiated. Truth to tell, the fact that she kept her peace for so
many years can even be construed as a condonation of his alleged "immoral conduct." It is likewise strange that an
unwanted son, as the child would normally have been, should, of all names, be called "Jewel."cralaw virtua1aw library

During the investigation before the Provincial Fiscal, the complainant, aside from herself, presented two other witnesses,
Eleuteria Garcia and Marilou Pangandaman, both her domestic help, to testify. Among the three, it was Eleuteria who
tried to establish the manner in which the sexual assault took place. Thus:chanrobles virtual lawlibrary

"x x x

"Q You stated in your affidavit marked Annex A that you heard Felicidad Bariñan Tan shouted (sic) for help on the
evening of last week of April, 1971, can you tell me or do you know why Mrs. Tan shouted for help?

"A Yes sir. When I responded to the shout for help of Tan I noticed that Atty. Galileo Trocio, hurriedly left the office leaving
behind Mrs. Felicidad Bariñan Tan.

"Q Did you ask Mrs. Felicidad Bariñan Tan why she was shouting for help?

"A Before I could ask her the reason why she shouted for help, she told me and Marilou Pangandaman that she was
sexually abused by Atty. Galileo J. Trocio.

"Q What did you notice of Mrs. Felicidad Bariñan Tan when you responded to her shout for help?

"A She was crying and trying to fix her dress.." . . (p. 52-53, Rollo)."cralaw virtua1aw library

However, how near to the crime scene said witness was, considering that it allegedly happened in school premises, has
not been shown. Her credibility is thus also put in issue.

The testimonies of Complainant and witness Marilou Pangandaman, another maid, to show unusual closeness between
Respondent and Jewel, like playing with him and giving him toys, are not convincing enough to prove paternity, as
Complainant would want us to believe. The same must be said of Exhibits A, A1, B and B1, which are pictures of Jewel
and the Respondent showing allegedly their physical likeness to each other. Such evidence is inconclusive to prove
paternity, and much less would it prove violation of Complainant’s person and honor.chanrobles.com : virtual law library

More importantly, Jewel Tan was born in 1972, during wedlock of Complainant and her husband and the presumption
should be in favor of legitimacy unless physical access between the couple was impossible. From the evidence on hand,
the presumption has not been overcome by adequate and convincing proof. In fact, Jewel was registered in his birth
certificate the legitimate child of the Complainant and her husband, Tan Le Pok.

WHEREFORE, this Complaint for disbarment must be, and is hereby DISMISSED, for lack of convincing substantiation.

SO ORDERED.

Paras, Padilla, Sarmiento and Regalado, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18407 June 26, 1963

ELAINE A. MOORE, petitioner-appellant,

vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellee.

Fidel A. Sandoval for petitioner-appellant.

Office of the Solicitor General for oppositor-appellee.

BAUTISTA ANGELO, J.:

Elaine A. Moore filed a petition before the Court of First Instance of Rizal praying that her child by a former marriage,
William Michael Velarde, be permitted to change his name so as to read William Michael Velarde Moore.

After publishing the petition as required by law, trial was held during which the parties submitted a stipulation of facts.
Thereafter, the trial court issued an order denying the petition whereupon petitioner interposed the present appeal.
Petitioner is an American citizen formerly married to Joseph P. Velarde, also an American citizen, out of whose wedlock
a child by the name of William Michael Velarde was born. This child, now 14 years old, was born on January 19, 1947 at
Los Angeles, California, U.S.A.

The marriage of petitioner to Velarde was subsequently dissolved by a decree of divorce issued by the Superior Court of
the State of California on May 31, 1949. After said decree became final, petitioner contracted a second marriage with
Don C. Moore on September 29, 1956 at Los Angeles, California, U.S.A., and thereafter the minor lived continuously with
the spouses up to the present time. He was supported by Moore who has always treated him with love and affection as if
he were his true father. In view of this harmonious relation it is petitioner's desire that the minor be able to use the name
Moore after his family name Velarde.

The government opposes the petition and now poses the following issues: (1) whether under our laws a minor may be
permitted to adopt and use the surname of the second husband of his mother; (2) whether justifiable reasons exist to
allow such change of name; and whether petitioner, as mother of the minor, has the authority or personality to ask for
such a change.

Anent the first issue, the government sustains a negative stand for the reason that our laws do not authorize a legitimate
child to use the surname of a person who is not his father, for, as a matter of fact, Article 364 of Civil Code specifically
provides that legitimate children shall principally use the surname of their father. Mention is also made of Article 369 of
the same Code which provides that in case of annulment of avoidable marriage the children conceived before the
annulment she principally use the surname of the father, and considering by analogy the effect of a decree of divorce,
it concluded that the children who are conceived before such a decree should also be understood as carrying the
surname of the real father, which, in this case, is Velarde.

We find tenable this observation of government's counsel. Indeed, if a child born out of a lawful wedlock be allowed to
bear the surname of the second husband of the mother, should the first husband die or be separated by a decree of
divorce, there may result a confusion to his real paternity. In the long run the change may redound to the prejudice of
the child in the community.

While the purpose which may have animated petitioner is plausible and may run along the feeling of cordiality and
spiritual relationship that pervades among the members of the Moore family, our hand is deferred by a legal barrier
which we cannot at present overlook or brush aside.1äwphï1.ñët

Another factor to be reckoned with is the fact that the child concerned is still a minor who for the present cannot fathom
what would be his feeling when he comes to mature age. Any way, if the time comes, he may decide the matter for
himself and take such action as our law may permit. For the present we deem the action taken by petitioner premature.

WHEREFORE, the order appealed from is affirmed. No costs.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-55538 March 15, 1982

In the Matter of the Change of Names of DIONESIO DIVINAGRACIA, JR., and BOMBI ROBERTO DIVINAGRACIA to DIONESIO
NALDOZA and BOMBI ROBERTO NALDOZA, respectively. ZOSIMA NALDOZA, as natural guardian and guardian ad litem of
said minors, petitioner-appellant,
vs.
REPUBLIC OF THE PHILIPPINES and JUDGE FERNANDO S. RUIZ of the Court of First Instance of Bohol, Branch IV, respondents-
appellees.
AQUINO, J.:

The issue in this case is whether two minors should be allowed to discontinue using their father's surname and should use
only their mother's surname.

Zosima Naldoza was married to Dionesio Divinagracia on May 30, 1970. They begot two children named Dionesio, Jr.
and Bombi Roberto who were born on October 23, 1970 and July 22, 1973, respectively.

Zosima's husband left her after she confronted him with his previous marriage with another woman. He never returned to
the conjugal abode. He allegedly swindled Congressman Maglana in the sum of P50,000.00, one Galagar in the sum of
P10,000.00 also Eloy Gallentes and other persons.

The classmates of Dionesio, Jr. and Bombi Roberto allegedly teased them about their father being a swindler. Two
criminal cases for estafa were filed in court against the father.

Desirous of obliterating any connection between her two minor children and their scapegrace father, Zosima, on August
10, 1978, filed in the Court of First Instance of Bohol a petition wherein she prayed that the surname of her two children
be changed from Divinagracia to Naldoza, her surname (Special Proceeding No. 768). After due publication and
hearing, the trial court dismissed the petition.

The trial court did not consider as sufficient grounds for change of surname the circumstances that the children's father
was a swindler, that he had abandoned them and that his marriage to Zosima was a second marriage which, however,
had not been annulled nor declared bigamous. It reasoned that the children's adoption of their mother's surname would
give a false impression of family relationship.

From that decision, Zosima Naldoza appealed to this Court under Republic Act No. 5440. Appellant's seven assignments
of error may be reduced to the question of whether there is a justification for the two children to drop their father's
surname and use their mother's surname only.

The minors Dionesio, Jr. and Bombi Roberto, who are presumably legitimate, are supposed to bear principally the
surname Divinagracia, their father's surname (Art. 364, Civil Code).

To allow them, at their mother's behest, to bear only their mother's surname (which they are entitled to use together with
their father's surname) and to discard altogether their father's surname thus removing the prima-facie evidence of their
paternal provenance or ancestry, is a serious matter in which, ordinarily, the minors and their father should be consulted.
The mother's desire should not be the sole consideration.

The change of name is allowed only when there are proper and reasonable causes for such change (Sec. 5, Rule 103,
Rules of Court). Where, as in this case, the petitioners are minors, the courts should take into account whether the
change of name would redound their welfare or would prejudice them.

Where the petitioner, a legitimate daughter of a Filipino mother and a Japanese, elected Philippine citizenship, and her
older brother and sister were using their mother's surname, and the petitioner felt embarrassed in using her Japanese
father's surname (Oshita) because of the ill-feeling harbored by some Filipinos against the Japanese, and there was no
showing that her desire to use the maternal surname (Bartolome) was motivated by any fraudulent purpose or that the
change of surname would prejudice public interest, her petition to change her surname from Oshita to Bartolome was
granted (Oshita vs. Republic, L-21180, March 31, 1967, 19 SCRA 700).

Where the petitioner's name in the civil registry is Maria Estrella Veronica Primitiva Duterte, Duterte being the surname of
her father Filomeno, who was married to her mother, Estrella Alfon, but the petitioner since infancy has used the name
Estrella S. Alfon, particularly in the school and voting records, there is reasonable ground for allowing her to change her
surname from Duterte to Alfon. Such a change would avoid confusion (Alfon vs. Republic, G.R. No. 51201, May 29,
1980,97 SCRA 858).

The instant case is easily distinguishable from the Oshita and AIfon cases where the petitioners were already of age.

We hold that the trial court did not err in denying the petition for change of name. The reasons adduced for eliminating
the father's surname are not substantial enough to justify the petition. To allow the change of surname would cause
confusion as to the minors' parentage and might create the impression that the minors are illegitimate since they would
carry the maternal surname only. That would be inconsistent with their legitimate status as indicated in their birth records
(Exh. C and D).

As was said in that In re Epstein 200 N.Y.S. 897, "the child should, and in the course of time must, know of his parentage. "
If, when he fully appreciates the circumstances and is capable of selecting a name for himself, he wants to use his
mother's surname only and to avoid using his father's surname, then he should be the one to apply for a change of
surname. See Anno., 53 ALR2d 914.

WHEREFORE, the lower court's decision is affirmed. No costs.

SO ORDERED.

Concepcion, Jr., Abad Santos, De Castro, Ericta and Escolin JJ., concur.

Separate Opinions

BARREDO, J., concurring:

At the worst, Dionesio Jr. and Bombito should be considered as natural children by legal fiction having the same status,
rights and obligations of acknowledged natural children, (Art. 29, Civil Code). among which is the right to bear the
surname of their father. (Art. 28 (1), Civil Code).

Separate Opinions

BARREDO, J., concurring:

At the worst, Dionesio Jr. and Bombito should be considered as natural children by legal fiction having the same status,
rights and obligations of acknowledged natural children, (Art. 29, Civil Code). among which is the right to bear the
surname of their father. (Art. 28 (1), Civil Code).

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 71994 May 31, 1990

EDNA PADILLA MANGULABNAN as guardian ad litem for minor ALFIE ANGELO ACERO, petitioner,
vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT AND AMBROCIO TAN CHEW ACERO, respondents.
GANCAYCO, J.:

This is a case of an illegitimate child who was denied support pendente lite by the appellate court. The child is confused
as to what he is supposed to do. Petitioner pictured a big man eating a small child which will not fail to repel and horrify
all decent men. She contends that this very image readily forms itself in the mind when we consider this case.

Petitioner filed in the Regional Trial Court of Quezon City an action for actual, compensatory and moral damages and
support for her child Alfie Angelo. Pending the litigation an application for support pendente lite was filed to which an
opposition was filed by private respondent. On November 2, 1984 the trial court ordered private respondent to pay
monthly support in the amount of P1,500.00 to the minor child, Alfie. Private respondent moved for a reconsideration but
his motion was denied on December 5, 1984.

Hence, a petition for certiorari was filed in the Court of Appeals questioning the said order of the trial court.

In a decision dated March 29, 1984 1 the petition was granted and the orders of the trial court dated November 2, 1984
were annulled without pronouncement as to costs. A motion for reconsideration thereof filed by petitioner was denied
on September 12, 1985.

Hence, the herein appeal by way of certiorari wherein petitioner raises the following issues:

THE QUESTIONED JUDGMENT INSISTED IN IGNORING THE STATUTORY DISTINCTION BETWEEN A NATURAL
CHILD AND OTHER ILLEGITIMATE CHILDREN;

II

THE APPELLATE COURT REFUSED TO ACCEPT THAT THE BIRTH CERTIFICATE IN THIS CASE CONSTITUTED
VOLUNTARY RECOGNITION;

III

THE APPELLATE COURT IN ONE STROKE PUT TO NAUGHT THE REMEDY OR RELIEF PROVIDED BY
SUPPORT PENDENTE LITE. 2

The petition is impressed with merit.

In the questioned decision of the appellate court, the following disquisitions were made:

The petitioner's contention is well taken. While the child's paternity appears to have been established
by the affidavits of the respondent Edna Padilla Mangulabnan as well as by the affidavits of her two
witnesses, this fact alone would not be sufficient to order the petitioner to pay support to the child. In
addition, it is necessary to prove that the petitioner has recognized the child. For these are two distinct
questions. (Crisolo v. Macadaeg, 94 Phil. 862 [1954]; Cruz v. Castillo, 28 SCRA 719 [1969]).

As the civil status of the child is the source from which the right to support is derived, there must be a
declaration to that effect before support can be ordered. Such a declaration may be provisional, it
being sufficient that affidavits are considered. (Crisolo v. Macadaeg, supra; Mangoma v. Macadaeg,
90 Phil. 508 [1951]; Sanchez v. Francisco, 68 Phil. 110 [1939]). But the question must nevertheless be
squarely resolved. It may be that the birth certificate is prima facie evidence of acknowledgment of
the child, so that until it is finally shown to be spurious it must be upheld. (Civil Code, Art. 410; Art. No.
3753, sec. 13). On the other hand, it may be that its probative value is impaired by the verified
opposition of the petitioner. These are, however questions for the trial court to resolve in passing on the
application for support pendente lite

In the subsequent resolution dated September 12, 1985, the appellate court also made the following observations:
 The contention has no merit. Although Art. 291, in enumerating those entitled to support, refers in
paragraph 3 to 'acknowledged natural children,' and in paragraph 5 simply to 'illegitimate children
who are not natural' nonetheless there is a need for the latter class of children (spurious) to be
recognized either voluntarily or by judicial decree, otherwise they cannot demand support. The
private respondent contends that the cases cited in the decision (Crisolo v. Macadaeg, 94 Phil. 862
[1954]; Cruz v. Castillo, 28 SCRA 719 [l969]) refer to the right of natural children to support. The
principle, however, is the same. Thus in Paulino v. Paulino, 113 Phil. 697 [1961], which involves a claim
to inheritance by a spurious child, it was held:

An illegitimate (spurious) child to be entitled to support and successional rights from his putative or
presumed parents must prove his filiation to them. Filiation may be established by the voluntary or
compulsory recognition of the illegitimate (spurious) child. Recognition is voluntary when made in the
record of birth, a will, a statement before a court of record, or in any authentic writing.' It is
compulsory when by court action the child brings about his recognition.

Article 291 of the Civil Code provides as follows:

ART 291. The following are obliged to support each other to the whole extent set forth in the
preceding article:

(1) The spouses;

(2) Legitimate ascendants and descendants;

(3) Parents and acknowledged natural children and the legitimate descendants of
the latter;

(4) Parents and natural children by legal fiction and the legitimate and illegitimate
descendants of the latter;

(5) Parents and illegitimate children who are not natural.

Brothers and sisters owe their legitimate and natural brothers and sisters, although they are only of the half blood, the
necessaries of life when by a physical or mental defect, or any other cause not imputable to the recipients, the latter
cannot secure their subsistence. This assistance includes, in a proper case, expenses necessary for elementary education
and for professional or vocational training.

From the foregoing provision it is clear that parents and illegitimate children who are not natural children are also
obliged to support each other as specified in paragraph No. 5 abovecited. It is to be distinguished from the obligation to
support each other as between the parents and acknowledged natural children and the legitimate or illegitimate
children of the latter; and that between parents and natural children by legal fiction and the legitimate and illegitimate
descendants of the latter under paragraphs (3) and (4) abovecited.

Under Article 287 of the Civil Code it is provided:

ART. 287. Illegitimate children other than natural in accordance with Article 269 and other than natural
children by legal fiction are entitled to support and such successional rights as are granted in this
Code.

In this case petitioner established the paternity of the child, Alfie not only by her own affidavit but also by the affidavits of
two (2) witnesses. In addition thereto petitioner submitted a birth certificate of the child. The private respondent claims
that the same is spurious as it was sworn before a notary public in Manila when the child was born in Cavite Maternity
Clinic in Las Pinas Rizal.

There must be a declaration of the status of the child from which the right to support is derived and before support can
be ordered. Such a declaration may be provisional, that is, by affidavits. 3
While the appellate court claims that the birth certificate is prima facie evidence of acknowledgment of the child, and
that until it is finally proved to be spurious it must be upheld, 4 it nevertheless observed that its probative value is impaired
by the verified opposition of the private respondent.

Petitioner contends, however, that the child is entitled to support upon proof of filiation to private respondent without
need of acknowledgment.

The appellate court disagrees and holds that even as to illegitimate children who are not natural children, there is a
need for the latter class of children (spurious children) to be recognized either voluntarily or by judicial decree, otherwise
they cannot demand support, as in the case of an acknowledged natural child.

The Court disagrees. The requirement for recognition by the father or mother jointly or by only one of them as provided
by law refers in particular to a natural child under Article 276 of the Civil Code. Such a child is presumed to be the
natural child of the parents recognizing it who had the legal capacity to contract marriage at the time of
conception. 5 Thus, an illegitimate child like the minor Alfie in this case whose father, the private respondent herein, is
married and had no legal capacity to contract marriage at the time of his conception is not a natural child but an
illegitimate child or spurious child in which case recognition is not required before support may be granted. 6

However, under Article 887 of the Civil Code, in all cases of illegitimate children, their filiation must be proved. Such
filiation may be proved by the voluntary or compulsory recognition of the illegitimate (spurious child). Recognition is
voluntary when made in the record of birth, a will, a statement before a court of record or in any authentic writing. 7 It is
compulsory when by court action the child brings out his recognition. 8

As above related the affidavits of petitioner and the two (2) witnesses were presented to prove the paternity of the child,
and a birth certificate was also presented to corroborate the same. The Court agrees with the court a quo that the
status of the minor child had been provisionally established.

Indeed, in response to the resolution of this Court dated February 14, 1989, if the parties are still interested in prosecuting
this case, petitioner in a manifestation filed on March 22, 1990, asserted that she is still interested and that in fact the
Regional Trial Court in Civil Case No. A-39985 has rendered a decision dated April 9, 1987 granting to petitioner-
appellant minor a monthly support of P5,000.00 to be paid on or before the fifth day of every month. 9

WHEREFORE, the petition is GRANTED. The questioned decision of the appellate court dated March 29, 1985 and its
resolution dated September 12, 1985 are hereby REVERSED AND SET ASIDE and the order of the trial court dated
November 2, 1984 granting a monthly support pendente lite in favor of the minor child, Alfie in the amount of P1,500.00 is
reinstated and AFFIRMED with costs against private respondent.

SO ORDERED.

Narvasa (Chairman), Cruz and Medialdea, JJ., concur.

Griño-Aquino, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1261 August 2, 1949

CATALINA OSMEÑA DE VALENCIA, ET AL., plaintiffs-appellants,

vs.
EMILIA RODRIGUEZ, ET AL., defendants-appellees.

Sato and Repollo for appellants.

Filemon Sotto for appellees.
PARAS, J.:

In an action instituted in the Court of First Instance of Cebu, the plaintiffs prayed for an injunction restraining the
defendants, from using the surname "Valencia." The defendants filed a motion to dismiss, and this sustained by the lower
court. Hence this appeal by the plaintiffs.

The plaintiffs allege, on the hand, that they (except Catalina Osmeña) are the legitimate children of the defendant Pio
E. Valencia in the latter's lawful wedlock with plaintiff Catalina Osmeña; and, upon the other hand, that the defendants,
(except Emilia Rodriguez and Pio E. Valencia) are the illegitimate children of Pio E. Valencia with his common-law-wife,
defendant Emilia Rodriguez. It is accordingly contended by the plaintiffs that they alone have the right to bear the
surname "Valencia," in accordance with article 114 of the Civil Code which provides that legitimate children have the
right to bear the surname of the father. To complete their argument, the plaintiffs point out that, under articles 139 and
845 of the Civil Code, illegitimate children (who are not natural) are entitled only to support.

We concede that the plaintiffs may use the surname of their farther as a matter of right by reason of the mere fact that
they are legitimate children; but we cannot agree to the view that article 114 of the Civil Code, without more, grants
monopolistic proprietary control to legitimate children over the surname of their father. In other words, said article has
marked a right of which legitimate children may not be deprived, but it cannot be interpreted as a prohibition against
the use by others of what may happen to be the surname of their father. If plaintiff's theory were correct, they can stop
countless inhabitants from bearing the surname "Valencia."

The defendants' case becomes the stronger when it is remembered that, from all appearances, Pio E. Valencia (the
father) acquiesces in the adoption of his surname by the defendants. But even if he objects, the defendants can still use
the surname "Valencia," in the absence of any law granting exclusive ownership over a surname.

The appealed order is affirmed, and it is so ordered with costs against the plaintiffs and appellants.

Moran, C.J., Perfecto, Bengzon, Padilla, Tuason, Montemayor and Reyes, JJ., concur.
Feria, J., concurs in the result.

Separate Opinions

OZAETA,. J., concurring and dissenting:

I concur in the affirmance of the order appealed from on the following ground: It appears from paragraph 5 of the
complaint that the defendant Pio E. Valencia has allowed his illegitimate children by his codefendant Emilia Rodriguez
to bear his surname even after they had reached the age of reason. From this allegation it may be inferred that since
their birth these illegitimate children have been given and have borne the surname of their father with the latter's
consent. The plaintiffs predicate their case upon Articles 114, 139, and 845 of the Civil Code and Rule 103 of the Rules of
Court. Article 114 says that legitimate children shall have the right to bear the surnames of their father and mother; and
articles 139 and 845 say that illegitimate children who have not the status of natural children shall be entitled only to
support. Rule 103 of the Rules of Court prescribes the procedure for change of name. Upon the facts alleged in the
complaint, these statutory provisions are not sufficient, in my opinion, to entitle the plaintiffs to the relief sought by their
complaint. The mere fact that legitimate children have the right to bear the surnames of their parents and illegitimate
children are entitled only to support, does not necessarily imply that the father may not voluntarily permit his illegitimate
children to bear his surname. Rule 103 is not applicable because it is not alleged in the complaint that the twelve
defendants who are alleged to be illegitimate children of their codefendant Pio E. Valencia have illegally changed their
surname from some other to that of Valencia. On the contrary we infer from the complaint that since their birth they
have always borne that surname with the knowledge and consent of their putative father.

I dissent from so much of the majority opinion a may convey the idea (1) that a person who claims to be the illegitimate
child of another may use or adopt the surname of the latter even against his will and without his consent, and without
authorization from the court; and (2) that any person is free to use any surname he may have a fancy for without the
authorization of the court even though he may not have originally borne that surname. Concerning the first idea, I am of
the opinion that a person cannot adjudicate to himself a status which adversely affects another without the latter's
consent or without the intervention of the court. And as to the second idea, it is clear from Rule 103 that a person cannot
adopt a new name, or use one other than that he has originally borne, without complying with the requisites provided
for in said rule.
 SECOND DIVISION

August 7, 2017

G.R. No. 222095

IN THE MATTER OF PETITION FOR CANCELLATION OF CERTIFICATES OF LIVE BIRTH OFYUHARES JAN BARCELOTE TINITIGAN
AND AVEE KYNNA NOELLE BARCELOTE TINITIGAN JONNA KARLA BAGUIO BARCELOTE, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, RICKY O. TINITIGAN, and LOCAL CIVIL REGISTRAR, DAVAO CITY,Respondents,

DECISION

CARPIO, J.:

The Case

This petition for review1 assails the 5 March 2015 Decision2 and the3 December 2015 Resolution3 of the Court of Appeals
(CA) in CA-G.R. CV No. 03223-MIN reversing the 28 February 2013 Decision4 of the Regional Trial Court of Davao City,
Branch 15 (RTC) in SPC. PROC. No. 12,007-12.

The Facts

In an Amended Petition5 dated 20 September 2012 filed before the RTC, petitioner Jonna Karla Baguio Barcelote
(Barcelote) stated the following facts:

On 24 June 2008, she bore a child out of wedlock with a married man named Ricky O. Tinitigan (Tinitigan) in her relative's
residence in Sibulan, Santa Cruz, Davao del Sur. She was not able to register the birth of their child, whom she named
Yohan Grace Barcelote, because she did not give birth in a hospital. To hide her relationship with Tinitigan, she remained
in Santa Cruz, Davao del Sur while Tinitigan lived with his legitimate family in Davao City and would only visit her. On 24
August 2011, she bore another child with Tinitigan, whom she named as Joshua Miguel Barcelote. Again, she did not
register his birth to avoid humiliation, ridicule, and possible criminal charges. Thereafter, she lost contact with Tinitigan
and she returned to Davao City.

When her first child needed a certificate of live birth for school admission, Barcelote finally decided to register the births
of both children. She, then, returned to Santa Cruz, Davao del Sur to register their births. The Local Civil Registrar of Santa
Cruz approved the late registration of the births of Yohan Grace Barcelote and Joshua Miguel Barcelote, with Registry
Nos. 2012-1344 and 2012-1335, respectively, after submitting proof that the National Statistics Office (NSO) has no record
of both births on file.

However, upon submission of the copies of the late registration of the births to the NSO, Barcelote was informed that
there were two certificates of live birth (subject birth certificates) with the same name of the mother and the years of
birth of the children in their office. The subject birth certificates registered by the Local Civil Registrar of Davao City state
the following:
 1. Birth Certificate with Registry No. 2008-21709:

a. Name: Avee Kyna Noelle Barcelote Tinitigan;

b. Date of Birth: June 4, 2008;

c. Place of Birth: EUP Family Care Clinic, Holy Cross Agdao Davao City;

d. Informant: Ricky O. Tinitigan.

2. Birth Certificate with Registry No. 2011-28329:

a. Name: Yuhares Jan Barcelote Tinitigan;

b. Date of Birth: August 14, 20116

c. Place of Birth: EUP Family Care Clinic, Holy Cross Agdao Davao City;

d. Informant: Ricky O. Tinitigan.

Thus, Barcelote filed a petition with the RTC for the cancellation of the subject birth certificates registered by Tinitigan
without her knowledge and participation, and for containing erroneous entries.

After complying with the jurisdictional requirements, Barcelote was allowed to present evidence ex parte. In her
testimony, Barcelote reiterated her allegations in the petition and emphasized that the subject birth certificates were
registered by her children's biological father, Tinitigan, without her knowledge. She also testified that the subject birth
certificates reflected wrong entries, but she did not present any other evidence.

The Ruling of the RTC

On 28 February 2013, the RTC ruled in favor of Barcelote and ordered the cancellation of the subject birth certificates, to
wit:

WHEREFORE, premises considered, the petition is hereby GRANTED. Accordingly, the registration of the Certificate of Live
Birth of Yuhares Jan Barcelote Tinitigan and Avee Kynna Noelle Barcelote Tinitigan, respectively intended for Joshua
Miguel Barcelote and Yohan Grace Barcelote, by their putative father Ricky Tinitigan at the Local Civil Registrar of
Davao City without the con[ s ]ent or knowledge of their mother, herein petitioner, Jonna Karla Baguio Barcelote, is
hereby ordered cancelled.

The Civil Registrar of the Office of the Local Civil Registry of Davao City is directed/ordered to cause the cancellation of:

[i] the birth certificate of Avee Kynna Noelle Barcelote Tinitigan under Registry No. 2008-21709, and

[ii] the certificate of live birth of Yuhares Jan Barcelote Tinitigan under Registry No. 2011-28329.

SO ORDERED.7

The RTC ruled that the subject birth certificates are legally infirm, because they were registered unilaterally by Tinitigan
without the knowledge and signature of Barcelote in violation of Section 5, Act No. 3753. The RTC also held that the
subject birth certificates contain void and illegal entries, because the children use the surname of Tinitigan, contrary to
the mandate of Article 176 of the Family Code stating that illegitimate children shall use the surname of their mother.

Moreover, the RTC found that it is not for the best interest of the children to use the surname of their father, for there is
always a possibility that the legitimate children or wife may ask the illegitimate children to refrain from using the surname
of their father. The RTC further held that the subject birth certificates are not reflective of the correct personal
circumstances of the children because of the glaring differences in the names and other vital information entered in it.
 The Ruling of the CA

On 5 March 2015, the CA reversed and set aside the decision of the RTC. The CA ruled that the registrations of the
children's births, caused by Tinitigan and certified by a registered midwife, Erlinda Padilla, were valid under Act No. 3753,
and such registrations did not require the consent of Barcelote. The CA further ruled that the children can legally and
validly use the surname of Tinitigan, since Republic Act No. (RA) 9255, amending Article 176 of the Family Code, allows
illegitimate children to use the surname of their father if the latter had expressly recognized them through the record of
birth appearing in the civil register,. such as in this case where Barcelote admitted that Tinitigan personally registered the
children's births and affixed his surname on the subject birth certificates.

Moreover, the CA found that Barcelote failed to discharge the burden of proving the falsity of the entries in the subject
birth certificates and to adduce evidence that the information she provided in the late registration are the true personal
circumstances of her children.

The dispositive portion of the decision states:

FOR THESE REASONS, the Decision dated 28 February 201[3] of the Regional Trial Court, Branch 15, Davao City is
REVERSED and SET ASIDE. The Amended Petition docketed as Special Proceedings No. 12,007-12 for cancellation of
certificates of live birth of her children, registered as Yuhares Jan Barcelote Tinitigan and Avee Kynna Noelle Barcelote
Tinitigan in the records of the Local Civil Registrar of Davao City is DISMISSED for lack of merit.

SO ORDERED.8

In a Resolution dated 3 December 2015, the CA denied the motion for reconsideration.9

Hence, this present petition.

The Issues

Barcelote raises the following issues for resolution:

The CA erred in not cancelling the certificates of live birth for YUHARES JAN BARCELOTE TINITIGAN and AVEE KYNNA
BARCELOTE TINITIGAN.

A. Under the Family Code, illegitimate children shall use the surname and shall be under the parental authority
of their mother. Being the mother with parental authority, [Barcelote]'s choice of names for her children upon
birth should prevail.

B. The CA gravely erred and abused its discretion when it ruled that the RTC did not have basis for its ruling that
the certificates of birth registered by [Tinitigan] are not reflective of the true and correct personal
circumstances of the [children].

C. The CA misinterpreted the provisions of Act No. 3753, otherwise known as the Law on Registry of Civil Status. It
is clear under this law that in case of an illegitimate child, the birth certificate must be signed and sworn to by
the mother. Since the certificates of live birth registered by [Tinitigan] were not signed by [Barcelote], the same
are void.

D. The cancellation of the certificates of live birth, registered by a father who is married to another and who
abandoned his illegitimate children, is for the interest and welfare of [the children].

II.

In the alternative, the CA was incorrect in dismissing the petition for cancellation on the procedural ground that
[Barcelote] could have filed a petition for correction of entries under Rule 108 of the Rules of Court. In this case, the
petition for cancellation was filed under Rule 108 of the Rules of Court, which governs both "Petition for Cancellation or
Correction of Entries in the Civil Registry". Under this rule, even ubstantial errors in a civil register may be corrected and
the true facts established, provided the party aggrieved by the error avail of the appropriate adversary proceeding,
which [Barcelote] did. Instead ofdismissing the petition outright, considering that the jurisdictional requirements for
correction [have] also been complied with, at the very least, the CA should have treated the petition for cancellation as
one for correction and ordered the necessary corrections, especially as to thenames of [the children].10

We grant the petition.

Prior to its amendment, Article 176 of the Family Code11 reads:

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled
to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall
remain in force. (Emphasis supplied)

This has been implemented in the National Statistics Office Administrative Order No. 1-93 or the Implementing Rules and
Regulations of Act No. 3753 and Other Laws on Civil Registration (IRR of Act No. 3753),12 to wit:

RULE 23. Birth Registration of Illegitimate children. - (1) Children conceived or born during the marriage of the parents are
legitimate. Children conceived and born outside a valid marriage unless otherwise provided in the Family Code are
illegitimate.

(2) An illegitimate child born before 3 August 1988 and acknowledged by both parents shall principally use the surname
of the father. If recognized by only one of the parents, the illegitimate child shall carry the surname of the
acknowledging parent. If no parent acknowledged the child, he shall carry the surname of the mother.

(3) The name/s of the acknowledging parent/s, shall be indicated in the Certificate of Live Birth.

(4) An illegitimate child born on or after 3 August 1988 shall bear the surname of the mother.(Emphasis supplied)

Upon the effectivity of RA 9255,13 the provision that illegitimate children shall use the surname and shall be under the
parental authority of their mother was retained, with an added provision that they may use the surname of their father if
their filiation has been expressly recognized by their father. Thus, Article 176 of the Family Code, as amended by RA 9255,
provides:

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled
to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation
has been expressly recognized by their father through the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten instrument is made by the father. Provided, the father has the
right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each
illegitimate child shall consist of one-half of the legitime of a legitimate child. (Emphasis supplied)

In Grande v. Antonio, 14 we held that "the use of the word 'may' in [Article 176 of the Family Code, as amended by RA
9255] readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate
father. The word 'may' is permissive and operates to confer discretion upon the illegitimate children."15Thus, the Revised
Implementing Rules and Regulations (IRR) of RA 9255, which apply to all illegitimate children born during the effectivity of
RA 9255, state:

Rule 8. Effects of Recognition.

8.1 As a rule, an illegitimate child not acknowledged by the father shall use the surname of the mother.

8.2 Illegitimate child acknowledged by the father shall use the surname of the mother if no [Affidavit to Use the Surname
of the Father] (AUSF) is executed.1âwphi1

8.3 An illegitimate child aged 0-6 years old acknowledged by the father shall use the surname of the father, if the mother
or the guardian, in the absence of the mother, executes the AUSF.

8.4 An illegitimate child aged 7 to 17 years old acknowledged by the father shall use the surname of the father if the
child executes an AUSF fully aware of its consequence as attested by the mother or guardian.
8.5 Upon reaching the age of majority, an illegitimate child acknowledged by the father shall use the surname of his
father provided that he executes an AUSF without need of any attestation.

The law is clear that illegitimate children shall use the surname and shall be under the parental authority of their mother.
The use of the word "shall" underscores its mandatory character. The discretion on the part of the illegitimate child to use
the surname of the father is conditional upon proof of compliance with RA 9255 and its IRR.

Since the undisputed facts show that the children were born outside a valid marriage after 3 August 1988, specifically in
June 2008 and August 2011, respectively, then they are the illegitimate children of Tinitigan and Barcelote. The children
shall use the surname of their mother, Barcelote. The entry in the subject birth certificates as to the surname of the
children is therefore incorrect; their surname should have been "Barcelote" and not "Tinitigan."

We do not agree with the CA that the subject birth certificates are the express recognition of the children's filiation by
Tinitigan, because they were not duly registered in accordance with the law.

Act No. 3753, otherwise known as the Civil Registry Law,16 states:

Section 5. Registration and Certification of Birth. -The declaration of the physician or midwife in attendance at the birth
or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a
birth in the civil register. Such declaration shall be exempt from the documentary stamp tax and shall be sent to the local
civil registrar not later than thirty days after the birth, by the physician, or midwife in attendance at the birth or by either
parent of the newly born child.

In such declaration, the persons above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex
and nationality of infant; (c) names, citizenship, and religion of parents or, in case the father is not known, of the mother
alone; (d) civil status of parents; (e) place where the infant was born; (f) and such other data may be required in the
regulation to be issued.

In the case of an exposed child, the person who found the same shall report to the local civil registrar the place, date
and hour of finding and other attendant circumstances.

In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only
the mother if the father refuses.

In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to
acknowledge the child, or to give therein any information by which such father could be identified.

Any fetus having human features which dies after twenty four hours of existence completely disengaged from the
maternal womb shall be entered in the proper registers as having been born and having died. (Emphasis supplied)

In Calimag v. Heirs of Macapaz, 17 we held that "under Section 5 of Act No. 3753, the declaration of either parent of the
[newborn] legitimate child shall be sufficient for the registration of his birth in the civil register, and only in the registration
of birth of an illegitimate child does the law require that the birth certificate be signed and sworn to jointly by the parents
of the infant, or only by the mother if the father refuses to acknowledge the child."18

The first paragraph of Section 5 of Act No. 3753 assumes that the newborn child is legitimate since our law accords a
strong presumption in favor of legitimacy of children.19 On the other hand, the fourth paragraph of Section 5 specifically
provides that in case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the
infant or only the mother if the father refuses. The fourth paragraph of Section 5 specifically applies to an illegitimate
child and likewise underscores its mandatory character with the use of the word "shall." Lex special is derogat
generali. Where there is in the same statute a particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and
the general enactment must be taken to affect only such cases within its general language which are not within the
provision of the particular enactment.20

Thus, it is mandatory that the mother of an illegitimate child signs the birth certificate of her child in all cases, irrespective
of whether the father recognizes the child as his or not. The only legally known parent of an illegitimate child, by the fact
of illegitimacy, is the mother of the child who conclusively carries the blood of the mother.21 Thus, this provision ensures
that individuals are not falsely named as parents.22
The mother must sign and agree to the information entered in the birth certificate because she has the parental
authority and custody of the illegitimate child. In Briones v. Miguel, 23 we held that an illegitimate child is under the sole
parental authority of the mother, and the mother is entitled to have custody of the child. The right of custody springs
from the exercise of parental authority.24 Parental authority is a mass of rights and obligations which the law grants to
parents for the purpose of the children's physical preservation and development, as well as the cultivation of their
intellect and the education of their heart and senses.25

Since it appears on the face of the subject birth certificates that the mother did not sign the documents, the local civil
registrar had no authority to register the subject birth certificates. Under the IRR of Act No. 3753, the civil registrar shall see
to it that the Certificate of Live Birth presented for registration is properly and completely filled up, and the entries are
correct.26 In case the entries are found incomplete or incorrect, the civil registrar shall require the person concerned to fill
up the document completely or to correct the entries, as the case may be.27

Clearly, the subject birth certificates were not executed consistent with the provisions of the law respecting the
registration of birth of illegitimate children.1âwphi1 Aside from the fact that the entry in the subject birth certificates as to
the surname of the children is incorrect since it should have been that of the mother, the subject birth certificates are
also incomplete as they lacked the signature of the mother.

Acts executed against the provisions of mandatory or prohibitory laws shall be void.28 In Babiera v. Catotal, 29 we
declared as void and cancelled a birth certificate, which showed that the mother was already 54 years old at the time
of the child's birth and which was not signed either by the civil registrar or by the supposed mother.

Accordingly, we declare the subject birth certificates void and order their cancellation for being registered against the
mandatory provisions of the Family Code requiring the use of the mother's surname for her illegitimate children and Act
No. 3753 requiring the signature of the mother in her children's birth certificates.

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.30

WHEREFORE, we GRANT the petition. We REVERSE and SET ASIDE the 5 March 2015 Decision and the 3 December 2015
Resolution of the Court of Appeals in CA-G.R. CV No. 03223-MIN. We REINSTATE the 28 February 2013 Decision of the
Regional Trial Court of Davao City, Branch 15, in SPC. PROC. No. 12,007-12. The Civil Registrar of the Office of the Local
Civil Registry of Davao City is ordered to CANCEL: (1) the Certificate of Live Birth of Avee Kynna Noelle Barcelote Tinitigan
under Registry No. 2008-21709 and (2) the Certificate of Live Birth of Yuhares Jan Barcelote Tinitigan under Registry No.
2011-28329.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA
Associate Justice

JOSE CATRAL MENDOZA MARVIC M.V.F. LEONEN

Associate Justice Associate Justice

SAMUEL R. MARTIRES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-2474 May 30, 1951

MARIANO ANDAL, assisted by mother Maria Dueñas as guardian ad litem, and MARIA DUEÑAS, plaintiffs,
vs.
EDUVIGIS MACARAIG, defendant.

Reyes and Dy-Liaco for appellants.

Tible, Tena and Borja for appellees.

BAUTISTA ANGELO, J.:

Mariano Andal, a minor, assisted by his mother Maria Dueñas, as guardian ad litem, brought an action in the Court of
First Instance of Camarines Sur for the recovery of the ownership and possession of a parcel of land situated in the barrio
of Talacop, Calabanga, Camarines Sur.

The complaint alleges that Mariano Andal is the surviving son of Emiliano Andal and Maria Dueñas; that Emiliano Andal
died on September 24, 1942; that Emiliano Andal was the owner of the parcel of land in question having acquired it from
his mother Eduvigis Macaraig by virtue of a donation propter nuptias executed by the latter in favor of the former; that
Emiliano Andal had been in possession of the land from 1938 up to 1942, when Eduvigis Macaraig, taking advantage of
the abnormal situation then prevailing, entered the land in question.

The lower court rendered judgment in favor of the plaintiffs (a) declaring Mariano Andal the legitimate son of Emiliano
Andal and such entitled to inherit the land in question; (b) declaring Mariano Andal owner of said land; and (c) ordering
the defendant to pay the costs of suit. Defendant took the case to this Court upon the plea that only question of law are
involved.

It appears undisputed that the land in question was given by Eduvigis Macaraig to her son Emiliano Andal by virtue of a
donation propter nuptias she has executed in his favor on the occasion of his marriage to Maria Dueñas. If the son born
to the couple is deemed legitimate, then he is entitled to inherit the land in question. If otherwise, then the land should
revert back to Eduvigis Macaraig as the next of kin entitled to succeed him under the law. The main issue, therefore, to
be determined hinges on the legitimacy of Mariano Andal in so far as his relation to Emiliano Andal is concerned. The
determination of this issue much depends upon the relationship that had existed between Emiliano Andal and his wife
during the period of conception of the child up to the date of his birth in connection with the death of the alleged
father Emiliano Andal.

The following facts appear to have been proven: Emiliano Andal became sick of tuberculosis in January 1941. Sometime
thereafter, his brother, Felix, went to live in his house to help him work his house to help him work his farm. His sickness
became worse that on or about September 10, 1942, he became so weak that he could hardly move and get up from
his bed. On September 10, 1942, Maria Duenas, his wife, eloped with Felix, and both went to live in the house of Maria's
father, until the middle of 1943. Since May, 1942, Felix and Maria had sexual intercourse and treated each other as
husband and wife. On January 1, 1943, Emiliano died without the presence of his wife, who did not even attend his
funeral. On June 17, 1943, Maria Dueñas gave birth to a boy, who was given the name of Mariano Andal. Under these
facts, can the child be considered as the legitimate son of Emiliano?

Article 108 of the Civil Code provides:

Children born after the one hundred and eighty days next following that of the celebration of marriage or
within the three hundred days next following its dissolution or the separation of the spouses shall be presumed
to be legitimate.

This presumption may be rebutted only by proof that it was physically impossible for the husband to have had
access to his wife during the first one hundred and twenty days of the three hundred next preceding the birth
of the child.

Since the boy was born on June 17, 1943, and Emiliano Andal died on January 1, 1943, that boy is presumed to be the
legitimate son of Emiliano and his wife, he having been born within three hundred (300) days following the dissolution of
the marriage. This presumption can only be rebutted by proof that it was physically impossible for the husband to have
had access to his wife during the first 120 days of the 300 next preceding the birth of the child. Is there any evidence to
prove that it was physically impossible for Emiliano to have such access? Is the fact that Emiliano was sick of tuberculosis
and was so weak that he could hardly move and get up from his bed sufficient to overcome this presumption?

Manresa on this point says:

Impossibility of access by husband to wife would include (1) absence during the initial period of conception, (2)
impotence which is patent, continuing and incurable, and (3) imprisonment, unless it can be shown that
cohabitation took place through corrupt violation of prison regulations. Manresa, 492-500, Vol. I, cited by Dr.
Arturo Tolentino in his book "Commentaries and Jurisprudence on the Civil Code, Vol. 1, p.90)."

There was no evidence presented that Emiliano Andal was absent during the initial period of conception, specially
during the period comprised between August 21, 1942 and September 10, 1942, which is included in the 120 days of the
300 next preceding the birth of the child Mariano Andal. On the contrary, there is enough evidence to show that during
that initial period, Emiliano Andal and his wife were still living under the marital roof. Even if Felix, the brother, was living in
the same house, and he and the wife were indulging in illicit intercourse since May, 1942, that does not preclude
cohabitation between Emiliano and his wife. We admit that Emiliano was already suffering from tuberculosis and his
condition then was so serious that he could hardly move and get up from bed, his feet were swollen and his voice
hoarse. But experience shows that this does not prevent carnal intercourse. There are cases where persons suffering from
this sickness can do the carnal act even in the most crucial stage because they are more inclined to sexual intercourse.
As an author has said, "the reputation of the tuberculosis towards eroticism (sexual propensity) is probably dependent
more upon confinement to bed than the consequences of the disease." (An Integrated Practice of Medicine, by
Hyman, Vol. 3, p.2202). There is neither evidence to show that Emiliano was suffering from impotency, patent, continuous
and incurable, nor was there evidence that he was imprisoned. The presumption of legitimacy under the Civil Code in
favor of the child has not, therefore, been overcome.

We can obtain the same result viewing this case under section 68, par. (c) of Rule 123, of the Rules of Court, which is
practically based upon the same rai'son d'etre underlying the Civil Code. Said section provides:

The issue of a wife cohabiting with the husband who is not impotent, is indisputably presumed to be legitimate,
if not born within one hundred eighty days immediately succeeding the marriage, or after the expiration of
three hundred days following its dissolution.

We have already seen that Emiliano and his wife were living together, or at least had access one to the other, and
Emiliano was not impotent, and the child was born within three (300) days following the dissolution of the marriage.
Under these facts no other presumption can be drawn than that the issue is legitimate. We have also seen that this
presumption can only be rebutted by clear proof that it was physically or naturally impossible for them to indulge in
carnal intercourse. And here there is no such proof. The fact that Maria Dueñas has committed adultery can not also
overcome this presumption (Tolentino's Commentaries on the Civil Code, Vol. I, p. 92).

In view of all the foregoing, we are constrained to hold that the lower court did not err in declaring Mariano Andal as the
legitimate son of the spouses Emiliano Andal and Maria Dueñas.
Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.

Paras, C. J., Feria, Pablo, Tuason, Montemayor, Reyes and Jugo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-49542 September 12, 1980

ANTONIO MACADANGDANG, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and ELIZABETH MEJIAS, respondents.

MAKASIAR, J.:

This petition for review seeks to set aside the decision of the Court of Appeals in CA-G.R. No. 54618-R which reversed the
decision of the Court of First Instance of Davao, Branch IX dismissing the action for recognition and support filed by
respondent Elizabeth Mejias against petitioner Antonio Macadangdang, and which found minor Rolando to be the
illegitimate son of petitioner who was ordered to give a monthly support of P350.00 until his alleged son reaches the age
of majority (p. 47, rec.; p. 10, ROA).

The records show that respondent Elizabeth Mejias is a married woman, her husband being Crispin Anahaw (pp. 61-62,
t.s.n., Sept. 21, 1972; pp. 10-11, Brief for Respondent [P. 198, rec.]) She allegedly had intercourse with petitioner Antonio
Macadangdang sometime in March, 1967 (p. 38, t.s.n., June 7, 1972 in CC No. 109). She also alleges that due to the
affair, she and her husband separated in 1967 (p. 63, t.s.n., Sept. 21, 1972). On October 30, 1967 (7 months or 210 days
following the illicit encounter), she gave birth to a baby boy who was named Rolando Macadangdang in baptismal rites
held on December 24,1967 (Annex "A", List of Exhibits).

The records also disclose that on April 25, 1972, respondent (then plaintiff) filed a complaint for recognition and support
against petitioner (then defendant) with the Court of First Instance of Davao, Branch IX. This case was docketed as Civil
Case No. 263 (p. 1, ROA).

Defendant (now petitioner) Macadangdang filed his answer on June 30, 1972, opposing plaintiff's claim and praying for
its dismissal (p. 3, ROA).

On August 9, 1972, the lower court in a pre-trial conference, issued a Pre-trial Order formalizing certain stipulations,
admissions and factual issues on which both parties agreed (pp. 4, 5, and 6, ROA). Correspondingly, upon agreement of
the parties, an amended complaint was filed by plaintiff on October 17, 1972 (pp. 7,8 and 9, ROA).

In its decision rendered on February 27, 1973, the lower court dismissed the complaint,. The decision invoked positive
provisions of the Civil Code and Rules of Court and authorities (pp. 10-18, ROA).

On April 18, 1973, plaintiff appealed the CFI decision to the Court of Appeals (p. 59, In her appeal, appellant assigned
these errors:

1. The Honorable Trial Court erred in applying in the instant case the provisions of Arts. 255 and 256 of
the Civil Code and Secs. 4[a], 4[b] and 4[c], Rule 131, of the Revised Rules of Court (p. 18, rec.);

2. The Honorable Trial Court erred in holding that plaintiff-appellant cannot validly question the
legitimacy of her son, Rolando Macadangdang, by a collateral attack without joining her legal
husband as a party in the instant case (p. 18, rec.).
In its decision handed down on June 2, 1978, the Court of Appeals reversed the lower court's decision (p. 47, and thus
declared minor Rolando to be an illegitimate son of Antonio Macadangdang (p. 52, rec.).

On November 6, 1978, the Court of Appeals denied appellant's motions for reconsideration for lack of merit. (p. 56, rec.).

Hence, petitioner filed this petition on January 12, 1979.

The issues boil down to:

1. Whether or not the child Rolando is conclusively presumed the legitimate issue of the spouses
Elizabeth Mejias and Crispin Anahaw; and

2. Whether or not the wife may institute an action that would bastardize her child without giving her
husband, the legally presumed father, an opportunity to be heard.

The crucial point that should be emphasized and should be straightened out from the very beginning is the fact that
respondent's initial illicit affair with petitioner occurred sometime in March, 1967 and that by reason thereof, she and her
husband separated. This fact surfaced from the testimony of respondent herself in the hearing of September 21, 1972
when this case was still in the lower court. The pertinent portions of her testimony are thus quoted:

By Atty. Fernandez:

Q — What did you feel as a result of the incident where Antonio Macadangdang used pill
and took advantage of your womanhood?

A — I felt worried, mentally shocked and humiliated.

Q — If these feelings: worries, mental shock and humiliation, if estimated in monetary figures,
how much win be the amount?

A — Ten thousand pesos, sir.

Q — And because of the incidental what happened to your with Crispin Anahaw.

xxx xxx xxx

WITNESS:

A — We separate, sir. (pp. 61-63, T.s.n., Civil Case No. 263, Sept. 21, 1972; emphasis supplied).

From the foregoing line of questions and answers, it can be gleaned that respondent's answers were given with
spontaneity and with a clear understanding of the questions posed. There cannot be any other meaning or
interpretation of the word "incident" other than that of the initial contact between petitioner and respondent. Even a
layman would understand the clear sense of the question posed before respondent and her categorical and
spontaneous answer which does not leave any room for interpretation. It must be noted that the very question of her
counsel conveys the assumption of an existing between respondent and her husband.

The finding of the Court of Appeals that respondent and her husband were separated in 1965 cannot therefore be
considered conclusive and binding on this Court. It is based solely on the testimony of respondent which is self-serving.
Nothing in the records shows that her statement was confirmed or corroborated by another witness and the same
cannot be treated as borne out by the record or that which is based on substantial evidence. It is not even confirmed by
her own husband, who was not impleaded.

In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167 [1974], this Court restated that the findings of facts of the
Court of Appeals are conclusive on the parties and on the Supreme Court, unless (1) the conclusion is a finding
grounded entirely on speculation, surmise, and conjectures; (2) the inference made is manifestly mistaken; (3) there is
grave abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the Court of Appeals went beyond
the issues of the case and its findings are contrary to the admission of both appellant and appellee; (6) the findings of
facts of the Court of Appeals are contrary to those of the trial court; (7) said findings of facts are conclusions without
citation of specific evidence on which they are based; (8) the facts set forth in the petition as well as in the petitioner's
main and reply briefs are not disputed by the respondent; and (9) when the finding of facts of the Court of Appeals is
premised on the absence of evidence and is contradicted by evidence on record [Pioneer Insurance and Surety
Corporation vs. Yap, L-36232, December 19, 1974; Roque vs. Buan, L-22459, 21 SCRA 642 (1967); Ramos vs. Pepsi-cola
Bottling Company of the Philippines, L-225533, 19 SCRA 289 (1967); emphasis supplied].

Again, in Roque vs. Buan, supra, this Court reiterated the aforestated doctrine adding four more exceptions to the
general rule. This case invoked the same ruling in the previous case of Ramos vs. Pepsi-Cola Bottling Company, etc.,
supra.

In the recent case of Francisca Alsua-Betts, et al. vs. Court of Appeals, et al. (L-46430-31, July 30, 1979), which petitioner
aptly invokes, this Court thus emphasized:

... But what should not be ignored by lawyers and litigants alike is the more basic principle that the
"findings of fact" described as "final" or "conclusive" are those borne out by the record or those which
are based upon substantial evidence. The general rule laid down by the Supreme Court does not
declare the absolute correctness of all the findings of fact made by the Court of Appeals. There are
exceptions to the general rule, where we have reviewed the findings of fact of the Court of Appeals
... (emphasis supplied).

The following provisions of the Civil Code and the Rules of Court should be borne in mind:

Art. 255. Children born after one hundred and eighty days following the celebration of the marriage,
and before three hundred days following its dissolution or the separation of the spouses shall be
presumed to be legitimate.

Against this presumption, no evidence shall be admitted other than that of the physical impossibility of
the husband's having access to his wife within the first one hundred and twenty days of the three
hundred which preceded the birth of the child.

This physical impossibility may be caused:

(1) By the impotence of the husband;

(2) By the fact that the husband and wife were separately, in such a way that access was not
possible;

(3) By the serious illness of the husband.

Art. 256. The child shall be presumed legitimate, although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.

Art. 257. Should the wife commit adultery at or about the time of the conception of the child, but
there was no physical impossibility of access between her and her husband as set forth in article 255,
the child is prima facie presumed to be illegitimate if it appears highly improbable, for ethnic reasons,
that the child is that of the husband. For the purposes of this article, the wife's adultery need not be
proved in a criminal case.

xxx xxx xxx

Sec. 4. Quasi-conclusive presumptions of legitimacy —

(a) Children born after one hundred eighty days following the celebration of the marriage, and
before three hundred days following its dissolution or the separation of the spouses shall be presumed
legitimate.
 Against presumption no evidence be admitted other than that of the physical impossibility of the
husband's having access to his wife within the first one hundred and twenty days of the three hundred
which preceded the birth of the child.

This physical impossibility may be caused:

[1] By the impotence of the husband

[2] By the fact that the husband and the wife were living separately, in such a way that access was
not possible;

[3] By the serious illness of the husband;

(b) The child shall be presumed legitimate although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.

(c) Should the wife commit adultery at or about the time of the conception of the child, but there was
no physical impossibility of access between her and her husband as set forth above, the child is
presumed legitimate, unless it appears highly improbable, for ethnic reasons, that the child is that of
the husband. For the purpose of the rule, the wife's adultery need not be proved in a criminal case. ...
(Rule 131, Rules of Court).

Whether or not respondent and her husband were separated would be immaterial to the resolution of the status of the
child Rolando. What should really matter is the fact that during the initial one hundred twenty days of the three hundred
which preceded the birth of the renamed child, no concrete or even substantial proof was presented to establish
physical impossibility of access between respondent and her spouse. From her very revealing testimony, respondent
declared that she was bringing two sacks of rice to Samal for her children; that her four children by her husband in her
mother's house in the said town; that her alleged estranged husband also lived in her mother's place (p. 73, pp. 21 & 22,
64 & 65, t.s.n., Sept. 21, 1972). It should also be noted that even during her affair with petitioner and right after her
delivery, respondent went to her mother's house in Samal for treatment. Thus, in the direct examination of Patrocinia
Avila (the boy's yaya), the following came out:

Q — Why were you taking care of the child Rolando, where was Elizabeth Mejias?

A — Because Elizabeth went to her parents in Same Davao del Norte for treatment because
she had a relapse (p. 13, t.s.n., of Sept. 21, 1972).

From the foregoing and since respondent and her husband continued to live in the same province, the fact remains that
there was always the possibility of access to each other. As has already been pointed out, respondent's self-serving
statements were never corroborated nor confirmed by any other evidence, more particularly that of her husband.

The baby boy subject of this controversy was born on October 30, 1967, only seven (7) months after March, 1967 when
the "incident" or first illicit intercourse between respondent and petitioner took place, and also, seven months from their
separation (if there really was a separation). It must be noted that as of March, 1967, respondent and Crispin Anahaw
had already four children; hence, they had been married years before such date (t.s.n., pp. 21-22, Sept. 21, 1972). The
birth of Rolando came more than one hundred eighty 180 days following the celebration of the said marriage and
before 300 days following the alleged separation between aforenamed spouses.

Under the aforequoted Article 255 of the Civil Code, the child Rolando is conclusively presumed to be the legitimate son
of respondent and her husband.

The fact that the child was born a mere seven (7) months after the initial sexual contact between petitioner and
respondent is another proof that the said child was not of petitioner since, from indications, he came out as a normal full-
term baby.

It must be stressed that the child under question has no birth certificate of Baptism (attached in the List of Exhibits) which
was prepared in the absence of the alleged father [petitioner]. Note again that he was born on October 30, 1967.
Between March, 1967 and October 30, 1967, the time difference is clearly 7 months. The baby Rolando could have been
born prematurely. But such is not the case. Respondent underwent a normal nine-month pregnancy. Respondent herself
and the yaya, Patrocinia Avila, declared that the baby was born in the rented house at Carpenter Street, which birth
was obvisouly normal; that he was such a healthy baby that barely 5 days after his birth, he was already cared for by
said yaya when respondent became sick (pp. 28, 29 & 43, t.s.n., Sept. 21, 1972); and that when he was between 15 days
and 2 months of age, respondent left him to the care of the yaya when the former left for Samal for treatment and
returned only in February, 1968 (pp. 30-32, t.s.n., Sept. 21, 1972). From the aforestated facts, it can be indubitably said
that the child was a full-term baby at birth, normally delivered, and raised normally by the yaya. If it were otherwise or if
he were born prematurely, he would have needed special care like being placed in an incubator in a clinic or hospital
and attended to by a physician, not just a mere yaya. These all point to the fact that the baby who was born on
October 30, 1967 or 7 months from the first sexual encounter between petitioner and respondent was conceived as early
as January, 1967. How then could he be the child of petitioner?

In Our jurisprudence, this Court has been more definite in its pronouncements on the value of baptismal certificates. It
thus ruled that while baptismal and marriage certificates may be considered public documents, they are evidence only
to prove the administration of the sacraments on the dates therein specified — but not the veracity of the states or
declarations made therein with respect to his kinsfolk and/or citizenship (Paa vs. Chan, L-25945, Oct. 31, 1967). Again, in
the case of Fortus vs. Novero (L-22378, 23 SCRA 1331 [1968]), this Court held that a baptismal administered, in conformity
with the rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the
declarations and statements contained in the certificate that concern the relationship of the person baptized. Such
declarations and statements, in order that their truth may be admitted, must indispensably be shown by proof
recognized by law.

The child Rolando is presumed to be the legitimate son of respondent and her spouse. This presumption becomes
conclusive in the absence of proof that there was physical impossibility of access between the spouses in the first 120
days of the 300 which preceded the birth of the child. This presumption is actually quasi-conclusive and may be rebutted
or refuted by only one evidence — the physical impossibility of access between husband and wife within the first 120
days of the 300 which preceded the birth of the child. This physical impossibility of access may be caused by any of
these:

1. Impotence of the husband;

2. Living separately in such a way that access was impossible and

3. Serious illness of the husband.

This presumption of legitimacy is based on the assumption that there is sexual union in marriage, particularly during the
period of conception. Hence, proof of the physical impossibility of such sexual union prevents the application of the
presumption (Tolentino, Commentaries & Jurisprudence on the Civil Code, Vol. 1, p. 513 citing Bevilaqua, Familia p. 311).

The modern rule is that, in order to overthrow the presumption of legitimacy, it must be shown beyond reasonable
doubt that there was no access as could have enabled the husband to be the father of the child. Sexual intercourse is
to be presumed where personal access is not disproved, unless such presumption is rebutted by evidence to the
contrary; where sexual intercourse is presumed or proved, the husband must be taken to be the father of the child
(Tolentino, citing Madden, Persons and Domestic Relations, pp. 340-341).

To defeat the presumption of legitimacy, therefore, there must be physical impossibility of access by the husband to the
wife during the period of conception. The law expressly refers to physical impossibility. Hence, a circumstance which
makes sexual relations improbable, cannot defeat the presumption of legitimacy; but it may be proved as a
circumstance to corroborate proof of physical impossibility of access (Tolentino, citing Bonet 352; 4 Valverde 408).

Impotence refers to the inability of the male organ to copulation, to perform its proper function (Bouvier's Law Dictionary
514). As defined in the celebrated case of Menciano vs. San Jose (89 Phil. 63), impotency is the physical inability to have
sexual intercourse. It is not synonymous with sterility. Sterility refers to the inability to procreate, whereas, impotence refers
to the physical inability to perform the act of sexual intercourse. In respect of the impotency of the husband of the
mother of a child, to overcome the presumption of legitimacy on conception or birth in wedlock or to show illegitimacy,
it has been held or recognized that the evidence or proof must be clear or satisfactory: clear, satisfactory and
convincing, irresistible or positive (S.C. — Tarleton vs. Thompson, 118 S.E. 421, 125 SC 182, cited in 10 C.J.S. 50).

The separation between the spouses must be such as to make sexual access impossible. This may take place when they
reside in different countries or provinces, and they have never been together during the period of conception (Estate of
Benito Marcelo, 60 Phil. 442). Or, the husband may be in prison during the period of conception, unless it appears that
sexual union took place through corrupt violation of or allowed by prison regulations (1 Manresa 492-500).
The illness of the husband must be of such a nature as to exclude the possibility of his having sexual intercourse with his
wife; such as, when because of a injury, he was placed in a plaster cast, and it was inconceivable to have sexual
intercourse without the most severe pain (Tolentino, citing Commissioner vs. Hotel 256 App. Div. 352, 9 N.Y. Supp. p. 515);
or the illness produced temporary or permanent impotence, making copulation impossible (Tolentino, citing Q. Bonet
352).

Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this Court ruled that just because tuberculosis is advanced in a man
does not necessarily mean that he is incapable of sexual intercourse. There are cases where persons suffering from
tuberculosis can do the carnal act even in the most crucial stage of health because then they seemed to be more
inclined to sexual intercourse. The fact that the wife had illicit intercourse with a man other than her husband during the
initial period, does not preclude cohabitation between said husband and wife.

Significantly American courts have made definite pronouncements or rulings on the issues under consideration. The
policy of the law is to confer legitimacy upon children born in wedlock when access of the husband at the time of
conception was not impossible (N.Y. Milone vs. Milone, 290 N.Y. S. 863, 160 Misc. 830) and there is the presumption that a
child so born is the child of the husband and is legitimate even though the wife was guilty of infidelity during the possible
period of conception (N.Y. Dieterich vs. Dieterich, 278 N.Y. S. 645, Misc. 714; both cited in 10 C.J.S., pp. 18,19 & 20).

So firm was this presumption originally that it cannot be rebutted unless the husband was incapable of procreation or
was absent beyond the four seas, that is, absent from the realm, during the whole period of the wife's pregnancy (10
C.J.S. p. 20).

The presumption of legitimacy of children born during wedlock obtains, notwithstanding the husband and wife
voluntarily separate and live apart, unless the contrary is shown (Ala. Franks vs. State, 161 So. 549, 26 . App. 430) and this
includes children born after the separation [10 C.J.S. pp. 23 & 24; emphasis supplied].

It must be stressed that Article 256 of the Civil Code which provides that the child is presumed legitimate although the
mother may have declared against its legitimacy or may have been sentenced as an adulteress has been adopted for
two solid reasons. First, in a fit of anger, or to arouse jealousy in the husband, the wife may have made this declaration
(Power vs. State, 95 N.E., 660). Second, the article is established as a guaranty in favor of the children whose condition
should not be under the mercy of the passions of their parents. The husband whose honor if offended, that is, being
aware of his wife's adultery, may obtain from the guilty spouse by means of coercion, a confession against the
legitimacy of the child which may really be only a confession of her guilt. Or the wife, out of vengeance and spite, may
declare the as not her husband's although the statement be false. But there is another reason which is more powerful,
demanding the exclusion of proof of confession or adultery, and it is, that at the moment of conception, it cannot be
determined when a woman cohabits during the same period with two men, by whom the child was begotten, it being
possible that it be the husband himself (Manresa, Vol. I, pp. 503-504).

Hence, in general, good morals and public policy require that a mother should not be permitted to assert the
illegitimacy of a child born in wedlock in order to obtain some benefit for herself (N.Y. — Flint vs. Pierce, 136 N.Y. S. 1056,
cited in 10 C.J.S. 77).

The law is not willing that the child be declared illegitimate to suit the whims and purposes of either parent, nor Merely
upon evidence that no actual act of sexual intercourse occurred between husband and wife at or about the time the
wife became pregnant. Thus, where the husband denies having any intercourse with his wife, the child was still presumed
legitimate (Lynn vs. State, 47 Ohio App. 158,191 N.E. 100).

With respect to Article 257 aforequoted, it must be emphasized that adultery on the part of the wife, in itself, cannot
destroy the presumption of legitimacy of her child, because it is still possible that the child is that of the husband
(Tolentino, citing 1 Vera 170; 4 Borja 23-24).

It has, therefore, been held that the admission of the wife's testimony on the point would be unseemly and scandalous,
not only because it reveals immoral conduct on her part, but also because of the effect it may have on the child, who is
in no fault, but who nevertheless must be the chief sufferer thereby (7 Am. Jur. Sec. 21, pp. 641-642).

In the case of a child born or conceived in wedlock, evidence of the infidelity or adultery of the wife and mother is not
admissible to show illegitimacy, if there is no proof of the husband's impotency or non-access to his wife (Iowa — Craven
vs. Selway, 246 N.W. 821, cited in 10 C.J.S. 36).

At this juncture, it must be pointed out that only the husband can contest the legitimacy of a child born to his wife. He is
the one directly confronted with the scandal and ridicule which the infidelity of his wife produces; and he should decide
whether to conceal that infidelity or expose it, in view of the moral or economic interest involved (Tolentino, citing
Bevilaqua, Familia, p. 314).

The right to repudiate or contest the legitimacy of a child born in wedlock belongs only to the alleged father, who is the
husband of the mother and can be exercised only by him or his heirs, within a fixed time, and in certain cases, and only
in a direct suit brought for the purpose (La — Ducasse vs. Ducasse, 45 So. 565, 120 La. 731; Saloy's Succ. 10 So. 872, 44 La.
Ann., cited in 10 C.J.S. 77; emphasis supplied).

Thus the mother has no right to disavow a child because maternity is never uncertain; she can only contest the Identity
of the child (La — Eloi vs. Mader, 1 Rollo. 581, 38 Am. D. 192).

Formerly, declarations of a wife that her husband was not the father of a child in wedlock were held to be admissible in
evidence; but the general rule now is that they are inadmissible to bastardize the child, regardless of statutory provisions
obviating incompetency on the ground of interest, or the fact that the conception was antenuptial. The rule is said to be
founded in decency, morality and public policy (Wallace vs. Wallace 137 Iowa 37,114 N.W. 527,14 L.R.A. [N.S.] 544,126
Am. St. Rep. 253,15 Ann. Cas. 761, Am. Jur. 26).

From the foregoing, particularly the testimony of respondent and her witnesses, this Court has every reason to believe
that Crispin Anahaw was not actually separated from Elizabeth Mejias; that he was a very potent man, having had four
children with his wife; that even if he and were even separately (which the latter failed to prove anyway) and assuming,
for argument's sake, that they were really separated, there was the possibility of physical access to each other
considering their proximity to each other and considering further that respondent still visited and recuperated in her
mother's house in Samal where her spouse resided with her children. Moreover, Crispin Anahaw did not have any serious
illness or any illness whatsoever which would have rendered him incapable of having sexual act with his wife. No
substantial evidence whatsoever was brought out to negate the aforestated facts.

Crispin Anahaw served as a refuge after respondent's reckless and immoral pursuits or a "buffer" after her flings. And she
deliberately did not include nor present her husband in this case because she could not risk her scheme. She had to be
certain that such scheme to bastardize her own son for her selfish motives would not be thwarted.

This Court finds no other recourse except to deny respondent's claim to declare her son Rolando the illegitimate child of
petitioner. From all indications, respondent has paraded herself as a woman of highly questionable character. A married
woman who, on first meeting, rides with a total stranger who is married towards nightfall, sleeps in his house in the
presence of his children, then lives with him after their initial sexual contact — the atmosphere for which she herself
provided — is patently immoral and hedonistic. Although her husband was a very potent man, she readily indulged in an
instant illicit relationship with a married man she had never known before.

Respondent had shown total lack of or genuine concern for her child (Rolando) for, even after birth, she left him in the
care of a yaya for several months. This is not the normal instinct and behavior of a mother who has the safety and
welfare of her child foremost in her mind. The filing of this case itself shows how she is capable of sacrificing the psycho-
social future (reputation) of the child in exchange for some monetary consideration. This is blatant shamelessness.

It also appears that her claim against petitioner is a disguised attempt to evade the responsibility and consequence of
her reckless behavior at the expense of her husband, her illicit lover and above all — her own son. For this Court to allow,
much less consent to, the bastardization of respondent's son would give rise to serious and far-reaching consequences
on society. This Court will not tolerate scheming married women who would indulge in illicit affairs with married men and
then exploit the children born during such immoral relations by using them to collect from such moneyed paramours. This
would be the form of wrecking the stability of two families. This would be a severe assault on morality.

And as between the paternity by the husband and the paternity by the paramour, all the circumstances being equal,
the law is inclined to follow the former; hence, the child is thus given the benefit of legitimacy.

Finally, Article 220 of the Civil Code reinforces the aforesaid principle when it provides thus:

Art. 220. In case of doubt, an presumptions favor the solidarity of the family. Thus, every of law or facts
leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of
children the community of property during marriage, the authority of parents over their children, and
the validity of defense for any member of the family in case of unlawful aggression.
WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED JUNE 2, 1978, AND ITS RESOLUTION DATED NOVEMBER 6,
1978 ARE HEREBY REVERSED AND SET ASIDE. COSTS AGAINST PRIVATE RESPONDENT.

SO ORDERED.

Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.

SECOND DIVISION

[A.C. No. 2115. November 27, 1990.]

FELICIDAD BARIÑAN TAN, Complainant, v. ATTY. GALILEO J. TROCIO, Respondent.

Jose A. Tolentino, Jr., for complainant.

SYLLABUS

1. LEGAL ETHICS; DISBARMENT OF LAWYERS; CHARGE OF IMMORALITY, NOT ESTABLISHED IN THE CASE AT BAR. — The issue
for determination is whether or not Respondent should be disbarred for immoral conduct. This, in turn, hinges on the
question of whether he had, in fact, sexually assault the Complainant, as a consequence of which the latter begot a
child by him. We find insufficient basis to sustain Complainant’s charge. The outrage allegedly took place during the last
week of April, 1971. Yet, no criminal charge was filed, and it was only about eight years later, on 5 November 1979, that
an administrative complaint was presented before this Court. Complainant’s explanation that Respondent’s threat to
cause the deportation of her alien husband should she report to anyone made her desist from filing a charge is not
credible as she had admitted having lost contact with her husband when he learned of respondent’s transgression that
very same evening (p. 3, TSN, 16 October 1980, p. 46, Rollo). The fear that she speaks of, therefore, had become
inexistent. Another factor that engenders doubt in the mind of the Court is the fact that after the alleged incident, she
continued having dealings with the Respondent as if nothing had happened. Thus, by Respondent’s own account,
which was left uncontroverted by the Complainant, the former assisted her mother and sisters prosecute a robbery case.
Then in March, 1976, she secured respondent’s services in claiming indemnity from three insurance companies when a
fire burned the school down. Finally, respondent was retained as a collaborating attorney by complainant’s family in an
inheritance case. These subsequent dealings are far from being the normal reaction of a woman who has been
wronged. Complainant’s contention that Respondent continued supporting the child for several years for which reason
she desisted from charging him criminally, has not been substantiated. Truth to tell, the fact that she kept her peace for
so many years can even be construed as a condonation of his alleged "immoral conduct." It is likewise strange that an
unwanted son, as the child would normally have been, should, of all names, be called "Jewel."cralaw virtua1aw library

2. CIVIL LAW; PATERNITY AND FILIATION; PROOF OF FILIATION; UNUSUAL CLOSENESS AND PHYSICAL LIKENESS, CONSIDERED
INCONCLUSIVE EVIDENCE. — The testimonies of Complainant and witness Marilou Pangandaman, another maid, to show
unusual closeness between Respondent and Jewel, like playing with him and giving him toys, are not convincing enough
to prove paternity, as Complainant would want us to believe. The same must be said of Exhibits A, A1, B and B1, which
are pictures of Jewel and the Respondent showing allegedly their physical likeness to each other. Such evidence is
inconclusive to prove paternity, and much less would it prove violation of Complainant’s person and honor.

3. ID.; ID.; LEGITIMATE CHILDREN; PRESUMPTION OF LEGITIMACY, NOT OVERCOME BY ADEQUATE AND CONVINCING
PROOF IN THE CASE AT BAR. — More importantly, Jewel Tan was born in 1972, during wedlock of Complainant and her
husband and the presumption should be in favor of legitimacy unless physical access between the couple was
impossible. From the evidence on hand, the presumption has not been overcome by adequate and convincing proof.
In fact, Jewel was registered in his birth certificate the legitimate child of the Complainant and her husband, Tan Le Pok.

DECISION
MELENCIO-HERRERA, J.:

In a verified complaint, filed on 9 November 1979, complainant Felicidad Bariñan Tan seeks the disbarment of
respondent Atty. Galileo J. Trocio for immorality and conduct unbecoming of a lawyer.

Complainant, owner and directress of Harlyn Vocational School in Baroy, Lanao del Norte, declares that sometime in
April, 1971, at about 8:30 PM, after classes were dismissed, respondent, who is the legal counsel of the school,
overpowered her inside the office and, against her will, succeeded in having carnal knowledge of her. As a result, she
begot a son on 5 February 1972 whom she named and registered as Jewel Tan. She avers that respondent used to
support Jewel but subsequently lost interest in doing so thereby neglecting to defray the needed expenses for Jewel’s
well-being. Complainant also alleges that the respondent threatened her with the deportation of her alien husband if
she complained to the authorities since she was violating the Anti-Dummy Law in operating the vocational school. This
threat, aside from the fact that Complainant is a married woman with eight children and a school directress at the time
of the sexual assault, made her desist from filing a charge against the Respondent. However, after eight years and
thorough soul-searching, she decided to file this administrative complaint.chanrobles virtual lawlibrary

Respondent, in his Answer, admits having acted as a lawyer of the vocational school. In fact, he contends that he had
also served as the lawyer of the Complainant, her family and her parents-in-law. Thus, in 1971, he helped prosecute a
case for robbery committed against Complainant’s mother and sisters. Also, in March of 1976, when a fire of unknown
origin gutted the school, he assisted the complainant in collecting P10,000.00 from FGU Insurance Group, and P40,000.00
from Fortune Insurance Corporation as indemnities. With regard to the same case, he also represented complainant in a
suit involving a P130,000.00 claim against the Workmen’s Insurance Corporation before the then Court of First Instance of
Lanao del Norte. Then in 1978, he was retained as a collaborating attorney by Complainant’s family in an inheritance
case. Further, her father-in-law had always consulted him in matters affecting the former’s store.

But respondent vehemently denies that he had sexually assaulted the Complainant. He argues that her motivation in
filing this charge was to get even with him after having been humiliated when he declined her request to commit a
"breach of trust." He states that in the inheritance case he handled for her family, Complainant insisted that he report to
her mother and sisters that he had charged a fee of P15,000.00 instead of the P2,500.00 he actually received so that she
could pocket the difference. He refused and told the Complainant to look for another lawyer. She tried twice to make
peace with him but was unsuccessful. Rebuffed, she promised to get even with him. Thus, this
complaint.chanrobles.com:cralaw:red

Another reason why Complainant filed the present case, respondent claims, is to escape her indebtedness to him
representing his services as legal counsel of the school which were unpaid since 1974 and the accumulated honoraria
from her fire insurance claims. These obligations were left unpaid despite demand made when respondent learned that
Complainant had sold a piece of land in Agusan.

On 2 June 1980, the Court, acting upon the Complaint and the Answer already filed, referred the case to the Office of
the Solicitor General for investigation, report and recommendation.

On 19 August 1980, said Office, upon the request of the Complainant that the investigation be held in Lanao del Norte
as she and her witnesses could not afford to come to Manila, referred the case to the Provincial Fiscal of said province
for the necessary proceedings.

Between September and October of 1980, hearings were conducted on the case. In a Report and Recommendation,
dated 16 January 1981, the Provincial Fiscal stated that respondent failed to attend the hearing despite the issuance of
subpoena; that there was prima facie evidence showing that respondent had committed acts violative of his
professional decorum; and, that he was recommending disciplinary action against him. The records of the case were
then forwarded to the Office of the Solicitor General.

On 1 September 1982, the Office of the Solicitor General returned the records to the Provincial Fiscal of Lanao del Norte
for re-investigation on the ground that the investigation was conducted in the absence of respondent, who did not
appear despite subpoenas sent to him. Thus, further proceedings were conducted by the Provincial Fiscal wherein
Respondent was allowed to submit a sworn letter, dated 13 December 1985, amplifying on the defenses contained in his
Answer.

On 13 February 1986, the Provincial Fiscal of Lanao del Norte issued a Resolution adopting his previous Report and
Recommendation of 16 January 1981, which found prima facie evidence to hold Respondent administratively liable. On
the same day, the records of the case were referred back to the Office the Solicitor General.

On 16 May 1986, the Office of the Solicitor General came up with its own Report recommending that Respondent be
disbarred for gross immoral conduct. On 17 July 1986, as directed by the Court, the Solicitor General filed a formal
Complaint for disbarment against Respondent. On 29 May 1990, the case was raffled to this Second Division and was
included in the latter’s agenda on 13 June 1990.

Respondent has filed an Answer, Complainant her Reply, while Respondent’s Rejoinder, as required by the Court, was
received on 3 October 1990. The required pleadings being complete, this case is now ripe for resolution.

The issue for determination is whether or not Respondent should be disbarred for immoral conduct. This, in turn, hinges on
the question of whether he had, in fact, sexually assault the Complainant, as a consequence of which the latter begot a
child by him.

We find insufficient basis to sustain Complainant’s charge.

The outrage allegedly took place during the last week of April, 1971. Yet, no criminal charge was filed, and it was only
about eight years later, on 5 November 1979, that an administrative complaint was presented before this Court.
Complainant’s explanation that Respondent’s threat to cause the deportation of her alien husband should she report to
anyone made her desist from filing a charge is not credible as she had admitted having lost contact with her husband
when he learned of respondent’s transgression that very same evening (p. 3, TSN, 16 October 1980, p. 46, Rollo). The fear
that she speaks of, therefore, had become inexistent.chanrobles.com:cralaw:red

Another factor that engenders doubt in the mind of the Court is the fact that after the alleged incident, she continued
having dealings with the Respondent as if nothing had happened. Thus, by Respondent’s own account, which was left
uncontroverted by the Complainant, the former assisted her mother and sisters prosecute a robbery case. Then in
March, 1976, she secured respondent’s services in claiming indemnity from three insurance companies when a fire
burned the school down. Finally, respondent was retained as a collaborating attorney by complainant’s family in an
inheritance case. These subsequent dealings are far from being the normal reaction of a woman who has been
wronged.

Complainant’s contention that Respondent continued supporting the child for several years for which reason she
desisted from charging him criminally, has not been substantiated. Truth to tell, the fact that she kept her peace for so
many years can even be construed as a condonation of his alleged "immoral conduct." It is likewise strange that an
unwanted son, as the child would normally have been, should, of all names, be called "Jewel."cralaw virtua1aw library

During the investigation before the Provincial Fiscal, the complainant, aside from herself, presented two other witnesses,
Eleuteria Garcia and Marilou Pangandaman, both her domestic help, to testify. Among the three, it was Eleuteria who
tried to establish the manner in which the sexual assault took place. Thus:chanrobles virtual lawlibrary

"x x x

"Q You stated in your affidavit marked Annex A that you heard Felicidad Bariñan Tan shouted (sic) for help on the
evening of last week of April, 1971, can you tell me or do you know why Mrs. Tan shouted for help?

"A Yes sir. When I responded to the shout for help of Tan I noticed that Atty. Galileo Trocio, hurriedly left the office leaving
behind Mrs. Felicidad Bariñan Tan.

"Q Did you ask Mrs. Felicidad Bariñan Tan why she was shouting for help?

"A Before I could ask her the reason why she shouted for help, she told me and Marilou Pangandaman that she was
sexually abused by Atty. Galileo J. Trocio.

"Q What did you notice of Mrs. Felicidad Bariñan Tan when you responded to her shout for help?

"A She was crying and trying to fix her dress.." . . (p. 52-53, Rollo)."cralaw virtua1aw library

However, how near to the crime scene said witness was, considering that it allegedly happened in school premises, has
not been shown. Her credibility is thus also put in issue.

The testimonies of Complainant and witness Marilou Pangandaman, another maid, to show unusual closeness between
Respondent and Jewel, like playing with him and giving him toys, are not convincing enough to prove paternity, as
Complainant would want us to believe. The same must be said of Exhibits A, A1, B and B1, which are pictures of Jewel
and the Respondent showing allegedly their physical likeness to each other. Such evidence is inconclusive to prove
paternity, and much less would it prove violation of Complainant’s person and honor.chanrobles.com : virtual law library

More importantly, Jewel Tan was born in 1972, during wedlock of Complainant and her husband and the presumption
should be in favor of legitimacy unless physical access between the couple was impossible. From the evidence on hand,
the presumption has not been overcome by adequate and convincing proof. In fact, Jewel was registered in his birth
certificate the legitimate child of the Complainant and her husband, Tan Le Pok.
WHEREFORE, this Complaint for disbarment must be, and is hereby DISMISSED, for lack of convincing substantiation.

SO ORDERED.

Paras, Padilla, Sarmiento and Regalado, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-49162 July 28, 1987

JANICE MARIE JAO, represented by her mother and guardian ad litem, ARLENE S. SALGADO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and PERICO V. JAO, respondents.

PADILLA, J.:

Appeal by certiorari from the decision* of the Court of Appeals in CA-G.R. No. 51078-R, dated 29 August 1978, which
dismissed petitioner"s action for recognition and support against private respondent, and from the respondent Court"s
resolution, dated 11 October 1978, denying petitioner"s motion for reconsideration of said decision.

On 28 October 1968, petitioner Janice Marie Jao, then a minor, represented by her mother and guardian-ad-litemArlene
Salgado, filed a case for recognition and support with the Juvenile and Domestic Relations Court against private
respondent Perico V. Jao. The latter denied paternity so the parties agreed to a blood grouping test which was in due
course conducted by the National Bureau of Investigation (NBI) upon order of the trial court. The result of the blood
grouping test, held 21 January 1969, indicated that Janice could not have been the possible offspring of Perico V. Jao
and Arlene S. Salgado.1

The trial court initially found the result of the tests legally conclusive but upon plaintiff"s (herein petitioner"s) second
motion for reconsideration, it ordered a trial on the merits, after which, Janice was declared the child of Jao, thus
entitling her to his monthly support.

Jao appealed to the Court of Appeals, questioning the trial court"s failure to appreciate the result of the blood grouping
tests. As there was no showing whatsoever that there was any irregularity or mistake in the conduct of the tests, Jao
argued that the result of the tests should have been conclusive and indisputable evidence of his non-paternity.

The Court of Appeals upheld Jao"s contentions and reversed the trial court"s decision. In its decision, the Court of
Appeals held:

From the evidence of the contending parties, it appears undisputed that JAO was introduced to ARLENE at the
Saddle and Sirloin, Bay Side Club, by Melvin Yabut. After this meeting, JAO dated and courted ARLENE. Not
long thereafter, they had their first sexual intercourse and subsequently, they lived together as husband and
wife. ...

It further appears undisputed that in April 1968, JAO accompanied ARLENE to the Marian General Hospital for
medical check-up and her confinement was with JAO"s consent. JAO paid the rentals where they lived, the
salaries of the maids, and other household expenses. ...

The record discloses that ARLENE gave birth to JANICE on August 16, 1968, after completing 36 weeks of
pregnancy, which indicates that ARLENE must have conceived JANICE on or about the first week of
December, 1967. "Thus, one issue to be resolved in this appeal is whether on or about that time, JAO and
ARLENE had sexual intercourse and were already living with one another as husband and wife.

In this connection, ARLENE contends that she first met JAO sometime in the third or fourth week of November,
1967 at the Saddle and Sirloin, Bayside Club; that after several dates, she had carnal knowledge with him at her
 house at 30 Long beach, Merville, Paranaque. Rizal in the evening of November 30, 1967, and that he started
to live with her at her dwelling after December 16, 1967, the date they finished their cruise to Mindoro Island.

On the other hand, JAO, albeit admitting that he met ARLENE at the Saddle and Sirloin, Bayside Club, however,
maintains that this was on December 14, 1967 because the day following, he and his guests: ARLENE, Melvin
Yabut, Didi Crescini and Charlie Litonjua went to Mindoro by boat. He dated ARLENE four times in January,
1968. He remembered he had carnal knowledge of her for the first time on January 18, 1968, because that was
a week after his birthday and it was only in May, 1968 that he started cohabiting with her at the Excelsior
Apartments on Roxas Boulevard.

These conflicting versions of the parties emphasize, in resolving the paternity of JANICE, the role of the blood
grouping tests conducted by the NBI and which resulted in the negative finding that in a union with ARLENE,
JAO could not be the father of JANICE.

We cannot sustain the conclusion of the trial court that the NBI is not in a position to determine with
mathematical precision the issue of parentage by blood grouping test, considering the rulings of this Court ...
where the blood grouping tests of the NBI were admitted; especially where, in the latter case, it was Dr. Lorenzo
Sunico who conducted the test and it appears that in the present case, the same Dr. Sunico approved the
findings and report. ... In Co Tao vs. Court of Appeals, 101 Phil. 188, the Supreme Court had given weight to the
findings of the NBI in its blood grouping test. Thus, it cannot be gainsaid that the competency of the NBI to
conduct blood grouping tests has been recognized as early as the 1950"s.

The views of the Court on blood grouping tests may be stated as follows:

Paternity — Science has demonstrated that by the analysis of blood samples of the mother, the child,
and the alleged father, it can be established conclusively that the man is not the father of the child.
But group blood testing cannot show that a man is the father of a particular child, but at least can
show only a possibility that he is. Statutes in many states, and courts in others, have recognized the
value and the limitations of such tests. Some of the decisions have recognized the conclusive
presumption of non-paternity where the results of the test, made in the prescribed manner, show the
impossibility of the alleged paternity. This is one of the few cases in which the judgment of the Court
may scientifically be completely accurate, and intolerable results avoided, such as have occurred
where the finding is allowed to turn on oral testimony conflicting with the results of the test.

The findings of such blood tests are not admissible to prove the fact of paternity as they show only a
possibility that the alleged father or any one of many others with the same blood type may have
been the father of the child. But the Uniform Act recognizes that the tests may have some probative
value to establish paternity where the blood type and the combination in the child is shown to be
rare, in which case the judge is given discretion to let it in (I Jones on Evidence, 5th Ed., pp. 193-194).

In one specific biological trait, viz, blood groups, scientific opinion is now in accord in accepting the
fact that there is a causative relation between the trait of the progenitor and the trait of the progeny.
In other words, the blood composition of a child may be some evidence as to the child"s paternity.
But thus far this trait (in the present state of scientific discovery as generally accepted) can be used
only negativelyi.e. to evidence that a particular man F is not the father of a particular child C. (I
Wigmore on Evidence 3rd Ed., pp. 610-611).

In a last ditch effort to bar the admissibility and competency of the blood test, JANICE claims that probative
value was given to blood tests only in cases where they tended to establish paternity; and that there has been
no case where the blood test was invoked to establish non-paternity, thereby implying that blood tests have
probative value only when the result is a possible affirmative and not when in the negative. This contention is
fallacious and must be rejected. To sustain her contention, in effect, would be recognizing only the possible
affirmative finding but not the blood grouping test itself for if the result were negative, the test is regarded
worthless. Indeed, this is illogical. .... As an admitted test, it is admissible in subsequent similar proceedings
whether the result be in the negative or in the affirmative. ...

The Court of Appeals also found other facts that ran contrary to petitioner"s contention that JAO"s actions before and
after JANICE was born were tantamount to recognition. Said the respondent appellate court:

On the contrary, after JANICE was born, JAO did not recognize her as his own. In fact, he filed a petition that his
name as father of JANICE in the latter"s certificate of live birth be deleted, evidencing his repudiation, rather
 than recognition. The mere acts of JAO in cohabiting with ARLENE, the attention given to her during her
pregnancy and the financial assistance extended to her cannot overcome the result of the blood grouping
test. These acts of JAO cannot be evaluated as recognizing the unborn JANICE as his own as the possession of
such status cannot be founded on conjectures and presumptions, especially so that, We have earlier said, JAO
refused to acknowledge JANICE after the latter"s birth.

JAO cannot be compelled to recognize JANICE based on paragraph 2 of Article 283 in relation to Article 289 of
the New Civil Code which provides: "When the child is in continuous possession of status of a child of the
alleged father by the direct acts of the latter.

Nor can there be compulsory recognition under paragraphs 3 or 4 of said article which states:

(3) When the child was conceived during the time when the mother cohabited with the supposed
father;

(4) When the child has in his favor any evidence or proof that the defendant is his father.

As aptly appreciated by the court below, JANICE could have been conceived from November 20, 1967 to
December 4, 1967. Indeed, ARLENE claims that her first sexual intercourse with JAO was on November 30, 1967
while the latter avers it was one week after January 18, 1968. However, to satisfy paragraph 3 as above-
quoted, JANICE must have been conceived when ARLENE and JAO started to cohabit with one another. Since
ARLENE herself testified that their cohabitation started only after December 16, 1967, then it cannot be gainsaid
that JANICE was not conceived during this cohabitation. Hence, no recognition will lie. Necessarily, recognition
cannot be had under paragraph 4 as JANICE has no other evidence or proof of her alleged paternity.

Apart from these, there is the claim of JAO that, at the critical time of conception, ARLENE had carnal
knowledge with two other men: "Oying" Fernandez and Melvin Yabut, which was not even rebutted; and
considering that it was Melvin Yabut, who introduced ARLENE to JAO at the Bayside Club. Moreover, the
testimony of ARLENE is not wholly reliable. When the trial court said that "the Court is further convinced of
plaintiff"s cause by ARLENE"s manner of testifying in a most straight-forward and candid manner," the fact that
ARLENE was admittedly a movie actress may have been overlooked so that not even the trial court could
detect, by her acts, whether she was lying or not.

WHEREFORE, the judgment appealed from is hereby set aside and a new one entered dismissing plaintiff-
appellee"s complaint. Without pronouncement as to costs. SO ORDERED.

The petitioner now brings before this Court the issue of admissibility and conclusiveness of the result of blood grouping
tests to prove non-paternity.

In this jurisdiction, the result of blood tests, among other evidence, to, affirm paternity was dealt with in Co Tao v. Court of
Appeals,2 an action for declaration of filiation, support and damages. In said case, the NBI expert"s report of the blood
tests stated that "from their blood groups and types, the defendant Co Tao is a possible father of the child." From this
statement the defendant contended that the child must have been the child of another man. The Court noted: "For
obvious reasons, the NBI expert cannot give assurance that the appellant was the father of the child; he can only give
his opinion that he is a "possible father." This possibility, coupled with the other facts and circumstances brought out
during the trial, tends to definitely establish that appellant Co Tao is the father of the child Manuel."3

Where the issue is admissibility and conclusiveness of blood grouping tests to disprove paternity, rulings have been much
more definite in their conclusions. For the past three decades, the use of blood typing in cases of disputed parentage
has already become an important legal procedure. There is now almost universal scientific agreement that blood
grouping tests are conclusive as to non-paternity, although inconclusive as to paternity — that is, the fact that the blood
type of the child is a possible product of the mother and alleged father does not conclusively prove that the child is born
by such parents; but, if the blood type of the child is not the possible blood type when the blood of the mother and that
of the alleged father are crossmatched, then the child cannot possibly be that of the alleged father.4

In jurisdictions like the United States, the admissibility of blood tests results to prove non-paternity has already been
passed upon in several cases. In Gilpin v. Gilpin5 the positive results of blood tests excluding paternity, in a case in which it
was shown that proper safeguards were drawn around the testing procedures, were recognized as final on the question
of paternity. In Cuneo v. Cuneo6 evidence of non-paternity consisting of the result of blood grouping tests was admitted
despite a finding that the alleged father had cohabited with the mother within the period of gestation. The Court said
that the competent medical testimony was overwhelmingly in favor of the plaintiff, and to reject such testimony would
be tantamount to rejecting scientific fact. Courts, it was stated, should apply the results of science when competently
obtained in aid of situations presented, since to reject said result was to deny progress.7 This ruling was also echoed
in Clark v. Rysedorph,8 a filiation proceeding where an uncontradicted blood grouping test evidence, excluding
paternity, was held conclusive.9 Legislation expressly recognizing the use of blood tests is also in force in several
states.10 Tolentino,11 affirms this rule on blood tests as proof of non-paternity, thus —

Medical science has shown that there are four types of blood in man which can be transmitted through
heredity. Although the presence of the same type of blood in two persons does not indicate that one was
begotten by the other, yet the fact that they are of different types will indicate the impossibility of one being
the child of the other. Thus, when the supposed father and the alleged child are not in the same blood group,
they cannot be father and child by consanguinity. The Courts of Europe today regard a blood test exclusion as
an unanswerable and indisputable proof of non-paternity. 12

Moreover,

The cohabitation between the mother and the supposed father cannot be a ground for compulsory
recognition if such cohabitation could not have produced the conception of the child. This would be the case,
for instance, if the cohabitation took place outside of the period of conception of the child. Likewise, if it can
be proved by blood tests that the child and the supposed father belong to different blood groups, the
cohabitation by itself cannot be a ground for recognition. 13

Petitioner has attempted to discredit the result of the blood grouping tests in the instant case by impugning the
qualifications of the NBI personnel who performed the tests and the conduct of the tests themselves. Her allegations, in
this regard, appear to be without merit. The NBI"s forensic chemist who conducted the tests is also a serologist, and has
had extensive practice in this area for several years. The blood tests were conducted six (6) times using two (2)
scientifically recognized blood grouping systems, the MN Test and the ABO System,14 under witness and supervision.15

Even the allegation that Janice was too young at five months to have been a proper subject for accurate blood tests
must fall, since nearly two years after the first blood test, she, represented by her mother, declined to undergo the same
blood test to prove or disprove their allegations, even as Jao was willing to undergo such a test again.16 1avvphi1

Accordingly, the Court affirms the decision of the Court of Appeals and holds that the result of the blood grouping tests
involved in the case at bar, are admissible and conclusive on the non-paternity of respondent Jao vis-a-vis petitioner
Janice. No evidence has been presented showing any defect in the testing methods employed or failure to provide
adequate safeguards for the proper conduct of the tests. The result of such tests is to be accepted therefore as
accurately reflecting a scientific fact.

In view of the findings of fact made by the Court of Appeals, as heretofore quoted, which are binding on this Court, we
do not find it necessary to further pass upon the issue of recognition raised by petitioner.

WHEREFORE, the instant petition for review is hereby denied. Without pronouncement as to costs.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-83942 December 29, 1988

ROMEO S. AMURAO, petitioner,

vs.
HON. COURT OF APPEALS and ROMUEL JEROME BUENAVENTURA, represented by her natural mother and guardian ad
litem FE ROSARIO BUENAVENTURA, respondents.

GRINO-AQUINO, J.:

The petitioner was sued for support by the offspring of his illicit relations with a 19-year old college student. The petitioner
denied paternity and refused to give support.

At the commencement of the trial on July 25, 1977, the trial court made a
last-minute effort to simplify the issues by calling the parties and their counsel to a conference in her chambers. The result
was an agreement of the parties, a gist of which was written down in the minutes of the hearing, duly signed by the
parties and their counsel, attested by the Deputy Clerk of Court, and embodied in the court's order of September 26,
1977 as follows:

When this case was called for trial this morning, parties jointly moved for a conference in chambers.
The same was granted. After said conference, parties agreed to submit themselves to a blood-
grouping test to determine the paternity of plaintiff before the National Bureau of Investigation; and to
be bound by the results of the said government agency in the following manner: a) if the finding is to
the effect that herein plaintiff may be the offspring of defendant, paternity shall be admitted and this
case will proceed for trial only on the issue of amount of support; and b) if the finding is negative, then
this case shall be dismissed without further trial. The Court finds the same well taken.

WHEREFORE, plaintiff-minor. his natural mother and defendant are hereby ordered to submit
themselves to a blood-grouping test before the National Bureau of Investigation on or before October
17, 1977 at 10:00 o'clock in the morning for a determination of plaintiffs paternity. (Emphasis supplied.)
(pp. 29-30, Original Records; p. 20, Rollo.)

On the basis of the blood grouping tests performed by the National Bureau of Investigation (NBI), the NBI submitted to
the Court Report No. 77-100 dated October 17, 1977, finding that:

The said child (Romuel Jerome Buenaventura) is a possible offspring of the alleged father Romeo
Amurao with Fe Rosario Buenaventura as the natural mother. (p. 20, Rollo.)

Exactly one year later, on September 26, 1978, the petitioner filed a motion for reconsideration of the court's order dated
September 26, 1977, impugning its validity. The motion was denied by the trial court. The petitioner sought a review of the
order by the Supreme Court through a petition for certiorari (G.R. No. 51407). The petition was denied by this Court on
May 4, 1980.

A motion to declare the petitioner in contempt of court for failure to pay support pendente lite was filed by the private
respondent minor. At the hearing of the contempt motion the parties presented evidence on the petitioner's capability
to give support. After the hearing on the contempt motion, the case was set for trial on July 8, 1983, with due notice to
both parties, for the presentation of further evidence by the petitioner (defendant) on the main case. However, neither
the petitioner, nor his counsel, appeared at the hearing. The court declared the case submitted for decision. On August
8, 1985, it rendered judgment for the private respondent ordering the petitioner to pay the former support of P500 per
month plus attorney's fees of P3,000, and costs.

Petitioner appealed to the Court of Appeals (CA-G.R. No. CV 07645) which rendered judgment on March 7, 1988, as
follows:

WHEREFORE, judgment appealed from is hereby AFFIRMED with the modification that the support
fixed in the judgment appealed from is increased to One Thousand Five Hundred (P1,500.00) Pesos,
payable within the first five days of each month at the plaintiffs residence. Defendant-appellant is
hereby ordered to pay support pendente lite of P200.00 in arrears since October 1978 up to the
termination of this appeal. Costs against defendant-appellant. (p. 24, Rollo.)

Once more, the case is before Us for review upon a petition alleging that the Court of Appeals erred:
 1. in finding that the petitioner had admitted his paternity in relation to the minor Romuel Jerome
Buenaventura and that hence said minor is entitled to receive support from him;

2. in upholding the trial court's decision based on the evidence (consisting among others of the
petitioner's balance sheets, audit reports and admissions regarding his income) presented by the
parties at the hearing of the plaintiffs contempt motion;

3. in increasing the amount of support granted by the trial court; and

4. in applying Article 290 of the Civil Code instead of Articles 296 and 297 of the same Code.

The petition for review is devoid of merit.

The first, second, third, and fourth issues raised by the petition are factual issues which this Court may not review under
Rule 45 of the Rules of Court.

Whether or not the petitioner made an admission of paternity under the terms of the trial court's order dated September
26, 1977, thereby binding himself to give support to his child, the private respondent herein, is a finding of fact.

So is the Court's determination of the amount of support payable to the private respondent. It was perfectly proper for
the Court to consider the evidence presented by the parties at the hearing of the plaintiff s contempt motion against
the defendant, as evidence also on the merits of the main case. The parties did not have to repeat the ritual of
presenting the same evidence all over again to the court. The defendant (herein petitioner), by failing to appear at the
hearing of the main case on July 8, 1983 (p. 17, Rollo), waived his right to adduce additional evidence. Hence, he may
not be heard to complain that he was denied due process.

Whether or not the Court of Appeals correctly determined that the minor, who filed his action for support in 1977 when
he was only an infant five (5) months old, is now (as an 11-year old student) entitled to an increase in the amount of
support awarded to him by the trial court, is also a factual issue which We may not re-examine and review.

In any event, We find no reversible error in the decision of the Court of Appeals. The increase in the child's support is
proper and is sanctioned by the provisions of Articles 290, 296 and 297 of the Civil Code.

WHEREFORE, the petition is denied for lack of merit. This decision is immediately executory.

SO ORDERED.

Cruz, * Gancayco and Medialdea, JJ., concur.

Narvasa, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-75377 February 17, 1988

CHUA KENG GIAP, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT and CHUA LIAN KING respondents.

CRUZ, J.:
We are faced once again with still another bid by petitioner for the status of a legitimate heir. He has failed before, and
he will fail again.

In this case, the petitioner insists that he is the son of the deceased Sy Kao and that it was error for the respondent court
to reject his claim. He also says his motion for reconsideration should not have been denied for tardiness because it was
in fact filed on time under the Habaluyas ruling. 1

This case arose when Chua Keng Giap filed on May 19, 1983, a petition for the settlement of the estate of the late Sy Kao
in the regional trial court of Quezon City. The private respondent moved to dismiss for lack of a cause of action and of
the petitioner's capacity to file the petition. The latter, it was claimed, had been declared as not the son of the spouses
Chua Bing Guan and Sy Kao in S.P. No. Q-12592, for the settlement of the estate of the late Chua Bing Guan. The
decision in that case had long become final and executory.2

The motion was denied by Judge Jose P. Castro, who held that the case invoked decided the paternity and not the
maternity of the petitioner. 3 Holding that this was mere quibbling, the respondent court reversed the trial judge in a
petition for certiorari filed by the private respondent.4 The motion for reconsideration was denied for late filing.5 The
petitioner then came to this Court to challenge these rulings.

The petitioner argues at length that the question to be settled in a motion to dismiss based on lack of a cause of action is
the sufficiency of the allegation itself and not whether these allegations are true or not, for their truth is hypothetically
admitted. 6 That is correct. He also submits that an order denying a motion to dismiss is merely interlocutory and therefore
reversible not in a petition for certiorari but on appeal.7 That is also correct Even so, the petition must be and is hereby
denied.

The petitioner is beating a dead horse. The issue of his claimed filiation has long been settled, and with finality, by no less
than this Court. That issue cannot be resurrected now because it has been laid to rest in Sy Kao v. Court of
Appeals, 8 decided on September 28, 1984. In that case, Sy Kao flatly and unequivocally declared that she was not the
petitioner's mother.

The Court observed through Justice Hugo E. Gutierrez, Jr.

Petitioner Sy Kao denies that respondent Chua Keng Giap is her son by the deceased Chua Bing
Guan. Thus, petitioner's opposition filed on December 19, 1968, is based principally on the ground that
the respondent was not the son of Sy Kao and the deceased but of a certain Chua Eng Kun and his
wife Tan Kuy.

After hearing on the merits which lasted for ten years, the court dismissed the respondent's petition on
March 2, 1979 on a finding that he is not a son of petitioner Sy Kao and the deceased, and therefore,
had no lawful interest in the estate of the latter and no right to institute the intestacy proceedings.

The respondent tried to appeal the court's resolution but his appeal was denied by the lower court for
having been filed out of time. He then filed a mandamus case with the Court of appeals but the same
was dismissed. Respondent, therefore, sought relief by filing a petition for certiorari, G.R. No. 54992,
before this Court but his petition was likewise dismissed on January 30, 1982, for lack of merit. His
subsequent motions for reconsideration met a similar fate.

xxx xxx xxx

To allow the parties to go on with the trial on the merits would not only subject the petitioners to the
expense and ordeal of obligation which might take them another ten years, only to prove a point
already decided in Special Proceeding No. Q-12592, but more importantly, such would violate the
doctrine of res judicata which is expressly provided for in Section 49, Rule 39 of the Rules of Court.

There is no point in prolonging these proceedings with an examination of the procedural objections to the grant of the
motion to dismiss. In the end, assuming denial of the motion, the resolution of the merits would have to be the same
anyway as in the aforesaid case. The petitioner's claim of filiation would still have to be rejected.

Discussion of the seasonableness of the motion for reconsideration is also unnecessary as the motion would have been
validly denied just the same even if filed on time.
Who better than Sy Kao herself would know if Chua Keng Giap was really her son? More than any one else, it was Sy Kao
who could say — as indeed she has said these many years--that Chua Keng Giap was not begotten of her womb.

WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered.

Teehankee, C.J., Narvasa, Gancayco and Griño-Aquino, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-69679 October 18, 1988

VIOLETA CABATBAT LIM, LIM BIAK CHIAO and CALASIAO BIJON FACTORY, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, CONSORCIA FRIANEZA GOLEA, MARIA FRIANEZA VERGARA, BENEDICTA FRIANEZA
MAYUGBA BONIFACIA FRIANEZA HEIRS OF DOMINGO FRIANEZA namely, DECIDERIA Q. VDA. DE FRIANEZA FRANCISCO,
DONA, VILMA and DECIDERIA, all surnamed FRIANEZA HEIRS OF DANIEL FRIANEZA namely, ADELA V. VDA. DE FRIANEZA in
her behalf and as Guardian ad litem of Minors, DARLENE, DANIEL JR., DUSSEL and DAISY GLEN, all surnamed
FRIANEZA respondents.

Ethelwoldo R. de Guzman for petitioners.

Tomas B. Tadeo, Sr. for private respondents.

GRIÑO-AQUINO, J.:

This case involves a contest over the estate of the late Dra. Esperanza Cabatbat wherein the protagonists are her sisters
and the children of her deceased brothers on one hand, and the petitioner Violeta Cabatbat Lim who claims to be her
only child.

Petitioners Violeta Cabatbat Lim, her husband Liam Biak Chiao, and the Calasiao Bijon Factory assail the decision dated
October 25, 1984 of the Intermediate Appellate Court, now Court of Appeals (AC-G.R. No. CV 67055), which affirmed
the trial court's decision finding that petitioner Violeta Cabatbat Lim is not the off-spring, hence, not a legal heir of the
late Esperanza Cabatbat.

The private respondents, sisters of the late Esperanza Frianeza-Cabatbat, filed a complaint in the Court of First Instance
of Pangasinan (Civil Case No. D-3841), praying for the partition of the estate of Esperanza Frianeza Cabatbat, who died
without issue on April 23, 1977. Part of her estate was her interest in the business partnership known as Calasiao Bijon
Factory, now in the possession of Violeta Cabatbat Lim who claims to be the child of the spouses Esperanza and Proceso
Cabatbat.

Esperanza Frianeza-Cabatbat was survived by her husband, Proceso Cabatbat, her sisters, Consorcia Maria, Benedicta,
Bonifacia, all surnamed Frianeza and the children of her deceased brothers Daniel and Domingo. In their complaint, the
private respondents alleged that Violeta Cabatbat Lim is not a child of Esperanza, but was only a ward (ampon) of the
spouses Esperanza and Proceso Cabatbat who sheltered and supported her from childhood, without benefit of formal
adoption proceedings.

Private respondents' evidence on the non-filiation of Violeta to Esperanza Cabatbat were: 1) the absence of any record
that Esperanza Cabatbat was admitted in the hospital where Violeta was born and that she gave birth to Violeta on the
day the latter was born; 2) the absence of the birth certificate of Violeta Cabatbat in the files of certificates of live births
of the Pangasinan Provincial Hospital for the years 1947 and 1948, when Violeta was supposedly born; 3) certification
dated March 9, 1977, of the Civil Registry coordinator Eugenio Venal of the Office of the Civil Registrar General, that his
office has no birth record of Violeta Cabatbat alleged to have been born on May 26, 1948 or 1949 in Calasiao,
Pangasinan; 4) certification dated June 16, 1977 of Romeo Gabriana, Principal II, that when Violeta studied in the
Calasiao Pilot Central School, Proceso Cabatbat and Esperanza Cabatbat were listed as her guardians only, not as her
parents; 5) testimony of Amparo Reside that she was in the Pangasinan Provincial Hospital on May 21,1948 to watch a
cousin who delivered a child there and that she became acquianted with a patient named Benita Lastimosa who gave
birth on May 26, 1948 to a baby girl who grew up to be known as Violeta Cabatbat.

Pitted against the evidence of the plaintiffs are the evidence of herein petitioners consisting of. 1) Violeta Cabatbat's
birth record which was filed on June 15,1948 showing that she was born on May 26, 1948 at the Pangasinan Provincial
Hospital and that she is a legitimate child of the spouses Proceso and Esperanza Cabatbat; 2) testimony of Proceso
Cabatbat that Violeta is his child with the deceased Esperanza Frianeza; 3) testimony of Benita Lastimosa denying that
she delivered a child in the Pangasinan Provincial Hospital and that Violeta Cabatbat Lim is that child; 4) the marriage
contract of Violeta and Lim Biak Chiao where Esperanza appeared as the mother of the bride; 5) Deed of Sale dated
May 14, 1960, wherein the vendee Violeta Cabatbat, then a minor, was represented and assisted by her "mother," Dra.
Esperanza Cabatbat; and 6) another Deed of Absolute Sale dated April 21, 1961, wherein Violeta Cabatbat was assisted
and represented by her "father," Proceso Cabatbat.

Upon the evidence, the trial court held on August 10, 1979 that Violeta Cabatbat is not a child by nature of the spouses
Esperanza and Proceso Cabatbat and that hence, she is not a legal heir of the deceased Esperanza Cabatbat. The
dispositive portion of the trial court's decision reads:

WHEREFORE, judgment is hereby rendered as follows:

(1) Finding that defendant VIOLETA CABATBAT LIM is not a child by nature of the spouses, decedent
Esperanza Frianeza and defendant Proceso Cabatbat, and not a compulsory heir of the said
decedent;

(2) Declaring that the heirs of the decedent are her surviving husband, defendant Proceso Cabatbat
and her sisters, plaintiffs Consorcia MARIA, BENEDICTA alias JOVITA, and BONIFACIA alias ANASTACIA,
all surnamed FRIANEZA her brothers deceased DANIEL FRIANEZA represented by his surviving spouse,
Adela Vda. de Frianeza, and their children, Darlene, Daniel, Jr., Dussel and Daisy Glen, all surnamed
FRIANEZA and deceased DOMINGO FRIANEZA represented by his surviving spouse Decideria Q. Vda.
de Frianeza and their children, Francisco, Dona, Vilma and Decideria, all surnamed FRIANEZA

(3) Finding that the estate left by the decedent are the thirty properties enumerated and described at
pages 13 to 19 supra and an equity in the Calasiao Bijon Factory in the sum of P37,961.69 of which
P13,221.69 remains after advances obtained by the deceased during her lifetime and lawful
deductions made after her death;

(4) That of the real properties adverted to above, three-fourth (3/4) pro- indiviso is the share of
defendant Proceso Cabatbat, as the surviving spouse, one-half (½) as his share of the conjugal estate
and one-half (½) of the remaining one-half as share as heir from his wife (decedent's) estate, while the
remaining one-half (½) of the other half is the group share of the heirs of the brothers and sisters of his
wife and of the children of the latter if deceased, whose names are already enumerated
hereinbefore in the following proportions: one-sixth (1/6) each pro-indiviso to Consorcia Maria,
Benedicta alias Jovita, and Bonifacia alias Anastacia; one-sixth (1/6) to Adela B. Vda. de Fraineza
Darlene, Daniel, Jr., Dussel and Daisy Glen, as a group in representation of deceased brother DANIEL
FRIANEZA and one. sixth (1/6) to Decideria Q. Vda. de Frianeza, Francisco, Dona, Vilma and Decideria
as a group in representation of deceased brother DOMINGO FRIANEZA

(5) That of the balance of the equity of the deceased in the CALASIAO BIJON FACTORY in the sum of
P13,221.69, three-fourths (3/4) or P9,916.29 is the share of Proceso Cabatbat as surviving spouse and as
heir of his deceased wife, and the remaining one-fourth (1/4) to the plaintiffs under the sharing
already stated in the preceding paragraph; (a) but because defendant Proceso Cabatbat has
overdrawn his share he is ordered to return to the estate the sum of P796.34 by depositing the same
with the Clark of Court; and (b) defendant Violeta Cabatbat Lim, not being an heir, is ordered to
return to the estate the sum of P2,931.13 half of what she and her codefendant Proceso Cabatbat
withdrew from the equity of the deceased under Exhibit 29, receipt dated April 30, 1977;

(6) Ordering jointly defendant a Proceso Cabatbat and Violeta Cabatbat Lim to pay attorney's fees in
the sum of P5,000.00, the sum of P4,000.00 from defendant Proceso Cabatbat and Pl,000.00 from
defendant Violeta Cabatbat Lim, and litigation expenses in the sum of Pl,000.00 from defendant
Proceso Cabatbat and P200.00 from defendant Violeta Cabatbat Lim, to the plaintiffs, and to pay the
costs.
 SO ORDERED. (pp. 236-239, Record on Appeal.)

Petitioners appealed to the Intermediate Appellate Court which affirmed the decision of the trial court on October 25,
1984.

A motion for reconsideration filed by the petitioners was denied by the Intermediate Appellate Court.

Petitioners have elevated the decision to Us for review on certiorari, alleging that the Intermediate Appellate Court
erred:

1. In finding that petitioner is not the child of Prospers and Esperanza Cabatbat;

2. In ignoring the provisions of Section 22 of Rule 132, Rules of Court;

3. In not considering the provision of Article 263 of the New Civil Code;

4. In disregarding Exhibits 8, 9, 10, and 11 of petitioner Violeta Cabatbat Lim

Petitioners' first and fourth assignments of error raise factual issues. The finding of the trial court and the Court of Appeals
that Violeta Cabatbat was not born of Esperanza Cabatbat is a factual finding based on the evidence presented at the
trial, hence, it is conclusive upon Us. Well entrenched is the rule that "factual findings of the trial court and the Court of
Appeals are entitled to great respect" (Vda. de Roxas vs. IAC, 143 SCRA 77; Republic vs. IAC, 144 SCRA 705). Section 22,
Rule 132 of the Rules of Court which provides that: "Where a private writing is more than thirty years old, is produced from
a custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of
suspicion, no other evidence of its execution and authenticity need be given" does not apply to petitioners' Exhibit "5,"
the supposed birth registry record of defendant Violeta Cabatbat showing that she was born on May 26,1948, at the
Pangasinan Provincial Hospital in Dagupan City, and that her father and mother are Proceso Cabatbat and Esperanza
Frianeza, respectively. In rejecting that document, the trial court pointedly observed:

This is very strange and odd because the Registry Book of admission of the hospital does not show that
Esperanza Frianeza was ever a patient on May 26, 1948. Indeed, Esperanza Frianeza was never
admitted in the hospital as an obstetrics case before or after May 26, 1948, that is from December 1,
1947 to June 15, 1948 (Stipulation of Facts, Pre-Trial Order of May 23, 1977, Record on Appeal, p. 117).

On May 26, 1948, the day defendant Violeta Cabatbat was alleged to have been delivered by
Esperanza Frianeza in the Pangasinan Provincial Hospital, the records of the hospital show that only
one woman by the same of the Benita Lastimosa of Tagudin, Ilocos Sur, not Esperanza Frianeza, gave
birth to an illegitimate child who was named by her mother Benita Lastimosa as Baby Girl Lastimosa
(Exhibit S. Plaintiffs' Folder of Exhibits, p. 39, Record on Appeal, pp. 117-118). Furthermore, the record of
birth certificates of Pangasinan Provincial Hospital for the years 1947 and 1948 does not carry the birth
certificate of defendant Violeta Cabatbat and the only birth certificate in the file of birth certificates
of the hospital for May 26, 1948 is that of Baby Girl Lastimosa whose mother's name is Benita Lastimosa.
(pp. 3-4, CA Decision, pp. 13-14, Record on Appeal.)

Furthermore, the absence of a record of the birth of petitioner Violeta Cabatbat in the Office of the Civil Registrar
General, puts a cloud on the genuineness of her Exhibit 5.

Petitioners' recourse to Article 263 of the New Civil Code is not well-taken. This legal provision refers to an action to
impugn legitimacy. It is inapplicable to this case because this is not an action to impugn the legitimacy of a child, but an
action of the private respondents to claim their inheritance as legal heirs of their childless deceased aunt. They do not
claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedent's
child at all. Being neither a legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of
Esperanza Cabatbat, Violeta is not a legal heir of the deceased.

WHEREFORE, the petition is denied for lack of merit. The appealed decision is affirmed, but with modification of
paragraphs 2 and 4 of the dispositive portion thereof, by excluding the widows Adela B. Vda. de Frianeza and Decideria
Q. Vda. de Frianeza, who are not legal heirs of Esperanza Frianeza Cabatbat from participating with their children and
the surviving sisters of the deceased in the one-fourth share of the estate pertaining to the latter under Article 1001 of the
Civil Code.
SO ORDERED.

Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

SECOND DIVISION

[G.R. No. 138961. March 7, 2002]

WILLIAM LIYAO, JR., represented by his mother Corazon Garcia, petitioner, vs. JUANITA TANHOTI-LIYAO, PEARL MARGARET
L. TAN, TITA ROSE L. TAN AND LINDA CHRISTINA LIYAO, respondents.

DECISION

DE LEON, JR., J.:

Before us is a petition for review on certiorari assailing the decision dated June 4, 1999 of the Court of Appeals in CA-
G.R. C.V. No. 45394[1] which reversed the decision of the Regional Trial Court (RTC) of Pasig, Metro Manila, Branch 167 in
declaring William Liyao, Jr. as the illegitimate (spurious) son of the deceased William Liyao and ordering Juanita Tanhoti-
Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao to recognize and acknowledge William Liyao, Jr. as
a compulsory heir of the deceased William Liyao and entitled to all successional rights as such and to pay the costs of the
suit.

On November 29,1976, William Liyao, Jr., represented by his mother Corazon G. Garcia, filed Civil Case No. 24943
before the RTC of Pasig, Branch 167 which is an action for compulsory recognition as the illegitimate (spurious) child of the
late William Liyao against herein respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda
Christina Liyao.[2] The complaint was later amended to include the allegation that petitioner was in continuous possession
and enjoyment of the status of the child of said William Liyao, petitioner having been recognized and acknowledged as
such child by the decedent during his lifetime."[3]

The facts as alleged by petitioner are as follows:

Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo for more than ten (10) years at the
time of the institution of the said civil case. Corazon cohabited with the late William Liyao from 1965 up to the time of
Williams untimely demise on December 2, 1975. They lived together in the company of Corazons two (2) children from her
subsisting marriage, namely:

Enrique and Bernadette, both surnamed Yulo, in a succession of rented houses in Quezon City and Manila. This was
with the knowledge of William Liyaos legitimate children, Tita Rose L. Tan and Linda Christina Liyao-Ortiga, from his subsisting
marriage with Juanita Tanhoti Liyao. Tita Rose and Christina were both employed at the Far East Realty Investment, Inc. of
which Corazon and William were then vice president and president, respectively.

Sometime in 1974, Corazon bought a lot from Ortigas and Co. which required the signature of her husband, Ramon
Yulo, to show his consent to the aforesaid sale. She failed to secure his signature and, had never been in touch with him
despite the necessity to meet him. Upon the advice of William Liyao, the sale of the parcel of land located at the Valle
Verde Subdivision was registered under the name of Far East Realty Investment, Inc.

On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal Santos Memorial Hospital. During her three
(3) day stay at the hospital, William Liyao visited and stayed with her and the new born baby, William, Jr. (Billy). All the
medical and hospital expenses, food and clothing were paid under the account of William Liyao. William Liyao even asked
his confidential secretary, Mrs. Virginia Rodriguez, to secure a copy of Billys birth certificate. He likewise instructed Corazon
to open a bank account for Billy with the Consolidated Bank and Trust Company[4] and gave weekly amounts to be
deposited therein.[5] William Liyao would bring Billy to the office, introduce him as his good looking son and had their
pictures taken together.[6]

During the lifetime of William Liyao, several pictures were taken showing, among others, William Liyao and Corazon
together with Billys godfather, Fr. Julian Ruiz, William Liyaos legal staff and their wives while on vacation in Baguio.[7] Corazon
also presented pictures in court to prove that that she usually accompanied William Liyao while attending various social
gatherings and other important meetings.[8] During the occasion of William Liyaos last birthday on November 22, 1975 held
at the Republic Supermarket, William Liyao expressly acknowledged Billy as his son in the presence of Fr. Ruiz, Maurita
Pasion and other friends and said, Hey, look I am still young, I can still make a good looking son."[9] Since birth, Billy had
been in continuous possession and enjoyment of the status of a recognized and/or acknowledged child of William Liyao
by the latters direct and overt acts. William Liyao supported Billy and paid for his food, clothing and other material needs.
However, after William Liyaos death, it was Corazon who provided sole support to Billy and took care of his tuition fees at
La Salle, Greenhills. William Liyao left his personal belongings, collections, clothing, old newspaper clippings and
laminations at the house in White Plains where he shared his last moments with Corazon.

Testifying for the petitioner, Maurita Pasion declared that she knew both Corazon G. Garcia and William Liyao who
were godparents to her children. She used to visit Corazon and William Liyao from 1965-1975. The two children of Corazon
from her marriage to Ramon Yulo, namely, Bernadette and Enrique (Ike), together with some housemaids lived with
Corazon and William Liyao as one family. On some occasions like birthdays or some other celebrations, Maurita would
sleep in the couples residence and cook for the family. During these occasions, she would usually see William Liyao in
sleeping clothes. When Corazon, during the latter part of 1974, was pregnant with her child Billy, Maurita often visited her
three (3) to four (4) times a week in Greenhills and later on in White Plains where she would often see William Liyao. Being
a close friend of Corazon, she was at the Cardinal Santos Memorial Hospital during the birth of Billy. She continuously visited
them at White Plains and knew that William Liyao, while living with her friend Corazon, gave support by way of grocery
supplies, money for household expenses and matriculation fees for the two (2) older children, Bernadette and Enrique.
During William Liyaos birthday on November 22, 1975 held at the Republic Supermarket Office, he was carrying Billy and
told everybody present, including his two (2) daughters from his legal marriage, Look, this is my son, very guapo and
healthy.[10] He then talked about his plan for the baptism of Billy before Christmas. He intended to make
it engrande and make the bells of San Sebastian Church ring.[11] Unfortunately, this did not happen since William Liyao
passed away on December 2, 1975. Maurita attended Mr. Liyaos funeral and helped Corazon pack his clothes. She even
recognized a short sleeved shirt of blue and gray[12] which Mr. Liyao wore in a photograph[13] as well as another shirt of lime
green[14] as belonging to the deceased. A note was also presented with the following inscriptions: To Cora, Love From
William.[15] Maurita remembered having invited the couple during her mothers birthday where the couple had their pictures
taken while exhibiting affectionate poses with one another. Maurita knew that Corazon is still married to Ramon Yulo since
her marriage has not been annulled nor is Corazon legally separated from her said husband. However, during the entire
cohabitation of William Liyao with Corazon Garcia, Maurita had not seen Ramon Yulo or any other man in the house when
she usually visited Corazon.

Gloria Panopio testified that she is the owner of a beauty parlor and that she knew that Billy is the son of her neighbors,
William Liyao and Corazon Garcia, the latter being one of her customers. Gloria met Mr. Liyao at Corazons house in Scout
Delgado, Quezon City in the Christmas of 1965. Gloria had numerous occasions to see Mr. Liyao from 1966 to 1974 and
even more so when the couple transferred to White Plains, Quezon City from 1974-1975. At the time Corazon was
conceiving, Mr. Liyao was worried that Corazon might have another miscarriage so he insisted that she just stay in the
house, play mahjong and not be bored. Gloria taught Corazon how to play mahjong and together with Atty. Brillantes
wife and sister-in-law, had mahjong sessions among themselves. Gloria knew that Mr. Liyao provided Corazon with a rented
house, paid the salary of the maids and food for Billy. He also gave Corazon financial support. Gloria knew that Corazon
is married but is separated from Ramon Yulo although Gloria never had any occasion to see Mr. Yulo with Corazon in the
house where Mr. Liyao and Corazon lived.

Enrique Garcia Yulo testified that he had not heard from his father, Ramon Yulo, from the time that the latter
abandoned and separated from his family. Enrique was about six (6) years old when William Liyao started to live with them
up to the time of the latters death on December 2, 1975. Mr. Liyao was very supportive and fond of Enriques half brother,
Billy. He identified several pictures showing Mr. Liyao carrying Billy at the house as well as in the office. Enriques testimony
was corroborated by his sister, Bernadette Yulo, who testified that the various pictures showing Mr. Liyao carrying Billy could
not have been superimposed and that the negatives were in the possession of her mother, Corazon Garcia.

Respondents, on the other hand, painted a different picture of the story.

Linda Christina Liyao-Ortiga stated that her parents, William Liyao and Juanita Tanhoti-Liyao, were legally
married.[16] Linda grew up and lived with her parents at San Lorenzo Village, Makati, Metro Manila until she got married;
that her parents were not separated legally or in fact and that there was no reason why any of her parents would institute
legal separation proceedings in court. Her father lived at their house in San Lorenzo Village and came home regularly.
Even during out of town business trips or for conferences with the lawyers at the office, her father would change his clothes
at home because of his personal hygiene and habits. Her father reportedly had trouble sleeping in other peoples homes.
Linda described him as very conservative and a strict disciplinarian. He believed that no amount of success would
compensate for failure of a home. As a businessman, he was very tough, strong, fought for what he believed in and did
not give up easily. He suffered two strokes before the fatal attack which led to his death on December 2, 1975. He suffered
a stroke at the office sometime in April-May 1974 and was attended by Dr. Santiago Co. He then stayed in the house for
two (2) to three (3) months for his therapy and acupuncture treatment. He could not talk, move, walk, write or sign his
name. In the meantime, Linda and her sister, Tita Rose Liyao-Tan, ran the office. She handled the collection of rents while
her sister referred legal matters to their lawyers. William Liyao was bedridden and had personally changed. He was not
active in business and had dietary restrictions. Mr. Liyao also suffered a milder stroke during the latter part of September to
October 1974. He stayed home for two (2) to three (3) days and went back to work. He felt depressed, however, and was
easily bored. He did not put in long hours in the office unlike before and tried to spend more time with his family.
 Linda testified that she knew Corazon Garcia is still married to Ramon Yulo. Corazon was not legally separated from
her husband and the records from the Local Civil Registrar do not indicate that the couple obtained any annulment[17] of
their marriage. Once in 1973, Linda chanced upon Ramon Yulo picking up Corazon Garcia at the company garage.
Immediately after the death of Lindas father, Corazon went to Lindas office for the return of the formers alleged
investments with the Far East Realty Investment, Inc. including a parcel of land sold by Ortigas and Company. Linda added
that Corazon, while still a Vice-President of the company, was able to take out documents, clothes and several laminated
pictures of William Liyao from the office. There was one instance when she was told by the guards, Mrs. Yulo is leaving and
taking out things again.[18] Linda then instructed the guards to bring Mrs. Yulo to the office upstairs but her sister, Tita Rose,
decided to let Corazon Garcia go. Linda did not recognize any article of clothing which belonged to her father after
having been shown three (3) large suit cases full of mens clothes, underwear, sweaters, shorts and pajamas.

Tita Rose Liyao-Tan testified that her parents were legally married and had never been separated. They resided at
No. 21 Hernandez Street, San Lorenzo Village, Makati up to the time of her fathers death on December 2, 1975.[19] Her
father suffered two (2) minor cardio-vascular arrests (CVA) prior to his death. During the first heart attack sometime
between April and May 1974, his speech and hands were affected and he had to stay home for two (2) to three (3) months
under strict medication, taking aldomet, serpadil and cifromet which were prescribed by Dr. Bonifacio Yap, for high blood
pressure and cholesterol level control.[20] Tita Rose testified that after the death of Mr. Liyao, Corazon Garcia was paid the
amount of One Hundred Thousand Pesos (P100,000.00) representing her investment in the Far East Realty Investment Inc.
Tita Rose also stated that her family never received any formal demand that they recognize a certain William Liyao, Jr. as
an illegitimate son of her father, William Liyao. After assuming the position of President of the company, Tita Rose did not
come across any check signed by her late father representing payment to lessors as rentals for the house occupied by
Corazon Garcia. Tita Rose added that the laminated photographs presented by Corazon Garcia are the personal
collection of the deceased which were displayed at the latters office.

The last witness who testified for the respondents was Ramon Pineda, driver and bodyguard of William Liyao from
1962 to 1974, who said that he usually reported for work at San Lorenzo Village, Makati to pick up his boss at 8:00 oclock in
the morning. At past 7:00 oclock in the evening, either Carlos Palamigan or Serafin Villacillo took over as night shift driver.
Sometime between April and May 1974, Mr. Liyao got sick. It was only after a month that he was able to report to the
office. Thereafter, Mr. Liyao was not able to report to the office regularly. Sometime in September 1974, Mr. Liyao suffered
from another heart attack. Mr. Pineda added that as a driver and bodyguard of Mr. Liyao, he ran errands for the latter
among which was buying medicine for him like capasid and aldomet. On December 2, 1975, Mr. Pineda was called inside
the office of Mr. Liyao. Mr. Pineda saw his employer leaning on the table. He tried to massage Mr. Liyaos breast and
decided later to carry and bring him to the hospital but Mr. Liyao died upon arrival thereat. Mrs. Liyao and her daughter,
Linda Liyao-Ortiga were the first to arrive at the hospital.

Mr. Pineda also declared that he knew Corazon Garcia to be one of the employees of the Republic Supermarket.
People in the office knew that she was married. Her husband, Ramon Yulo, would sometimes go to the office. One time,
in 1974, Mr. Pineda saw Ramon Yulo at the office garage as if to fetch Corazon Garcia. Mr. Yulo who was also asking about
cars for sale, represented himself as car dealer.

Witness Pineda declared that he did not know anything about the claim of Corazon. He freely relayed the
information that he saw Mr. Yulo in the garage of Republic Supermarket once in 1973 and then in 1974 to Atty. Quisumbing
when he went to the latters law office. Being the driver of Mr. Liyao for a number of years, Pineda said that he remembered
having driven the group of Mr. Liyao, Atty. Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio for a vacation
together with the lawyers wives. During his employment, as driver of Mr. Liyao, he does not remember driving for Corazon
Garcia on a trip to Baguio or for activities like shopping.

On August 31, 1993, the trial court rendered a decision, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants as follows:

(a) Confirming the appointment of Corazon G. Garcia as the guardian ad litem of the minor William Liyao,
Jr.;

(b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son of the deceased William Liyao;

(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Christian Liyao,
to recognize, and acknowledge the minor William Liyao, Jr. as a compulsory heir of the deceased William
Liyao, entitled to all succesional rights as such; and

(d) Costs of suit.[21]

In ruling for herein petitioner, the trial court said it was convinced by preponderance of evidence that the deceased
William Liyao sired William Liyao, Jr. since the latter was conceived at the time when Corazon Garcia cohabited with the
deceased. The trial court observed that herein petitioner had been in continuous possession and enjoyment of the status
of a child of the deceased by direct and overt acts of the latter such as securing the birth certificate of petitioner through
his confidential secretary, Mrs. Virginia Rodriguez; openly and publicly acknowledging petitioner as his son; providing
sustenance and even introducing herein petitioner to his legitimate children.

The Court of Appeals, however, reversed the ruling of the trial court saying that the law favors the legitimacy rather
than the illegitimacy of the child and the presumption of legitimacy is thwarted only on ethnic ground and by proof that
marital intimacy between husband and wife was physically impossible at the period cited in Article 257 in relation to Article
255 of the Civil Code. The appellate court gave weight to the testimonies of some witnesses for the respondents that
Corazon Garcia and Ramon Yulo who were still legally married and have not secured legal separation, were seen in each
others company during the supposed time that Corazon cohabited with the deceased William Liyao. The appellate court
further noted that the birth certificate and the baptismal certificate of William Liyao, Jr. which were presented by petitioner
are not sufficient to establish proof of paternity in the absence of any evidence that the deceased, William Liyao, had a
hand in the preparation of said certificates and considering that his signature does not appear thereon. The Court of
Appeals stated that neither do family pictures constitute competent proof of filiation. With regard to the passbook which
was presented as evidence for petitioner, the appellate court observed that there was nothing in it to prove that the same
was opened by William Liyao for either petitioner or Corazon Garcia since William Liyaos signature and name do not
appear thereon.

His motion for reconsideration having been denied, petitioner filed the present petition.

It must be stated at the outset that both petitioner and respondents have raised a number of issues which relate
solely to the sufficiency of evidence presented by petitioner to establish his claim of filiation with the late William Liyao.
Unfortunately, both parties have consistently overlooked the real crux of this litigation: May petitioner impugn his own
legitimacy to be able to claim from the estate of his supposed father, William Liyao?

We deny the present petition.

Under the New Civil Code, a child born and conceived during a valid marriage is presumed to be legitimate.[22] The
presumption of legitimacy of children does not only flow out from a declaration contained in the statute but is based on
the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded in a policy to
protect innocent offspring from the odium of illegitimacy.[23]

The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by
evidence to the contrary. Hence, Article 255 of the New Civil Code[24] provides:

Article 255. Children born after one hundred and eighty days following the celebration of the marriage, and before
three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband
having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of
the child.

This physical impossibility may be caused:

1) By the impotence of the husband;

2) By the fact that husband and wife were living separately in such a way that access was not possible;

3) By the serious illness of the husband.

Petitioner insists that his mother, Corazon Garcia, had been living separately for ten (10) years from her husband,
Ramon Yulo, at the time that she cohabited with the late William Liyao and it was physically impossible for her to have
sexual relations with Ramon Yulo when petitioner was conceived and born. To bolster his claim, petitioner presented a
document entitled, Contract of Separation,[25] executed and signed by Ramon Yulo indicating a waiver of rights to any
and all claims on any property that Corazon Garcia might acquire in the future.[26]

The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at the time petitioner was
conceived and born is of no moment. While physical impossibility for the husband to have sexual intercourse with his wife
is one of the grounds for impugning the legitimacy of the child, it bears emphasis that the grounds for impugning the
legitimacy of the child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in proper cases,
his heirs under the conditions set forth under Article 262 of the Civil Code.[27] Impugning the legitimacy of the child is a
strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he is the one directly
confronted with the scandal and ridicule which the infidelity of his wife produces and he should be the one to decide
whether to conceal that infidelity or expose it in view of the moral and economic interest involved.[28] It is only in
exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases, none - even his heirs - can
impugn legitimacy; that would amount o an insult to his memory.[29]

It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian ad litem of the then minor,
herein petitioner, to compel recognition by respondents of petitioner William Liyao, Jr, as the illegitimate son of the late
William Liyao cannot prosper. It is settled that a child born within a valid marriage is presumed legitimate even though the
mother may have declared against its legitimacy or may have been sentenced as an adulteress.[30] We cannot allow
petitioner to maintain his present petition and subvert the clear mandate of the law that only the husband, or in
exceptional circumstances, his heirs, could impugn the legitimacy of a child born in a valid and subsisting marriage. The
child himself cannot choose his own filiation. If the husband, presumed to be the father does not impugn the legitimacy
of the child, then the status of the child is fixed, and the latter cannot choose to be the child of his mothers alleged
paramour. On the other hand, if the presumption of legitimacy is overthrown, the child cannot elect the paternity of the
husband who successfully defeated the presumption.[31]

Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon Garcia with Ramon Yulo, in testifying
for herein petitioner amount to impugnation of the legitimacy of the latter?

We think not. As earlier stated, it is only in exceptional cases that the heirs of the husband are allowed to contest the
legitimacy of the child. There is nothing on the records to indicate that Ramon Yulo has already passed away at the time
of the birth of the petitioner nor at the time of the initiation of this proceedings. Notably, the case at bar was initiated by
petitioner himself through his mother, Corazon Garcia, and not through Enrique and Bernadette Yulo. It is settled that the
legitimacy of the child can be impugned only in a direct action brought for that purpose, by the proper parties and within
the period limited by law.

Considering the foregoing, we find no reason to discuss the sufficiency of the evidence presented by both parties
on the petitioners claim of alleged filiation with the late William Liyao. In any event, there is no clear, competent and
positive evidence presented by the petitioner that his alleged father had admitted or recognized his paternity.

WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals in CA-G.R. CV No. 45394 is
hereby AFFIRMED. No costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 165166 August 15, 2012

CHARLES GOTARDO, Petitioner,

vs.
DIVINA BULING, Respondent.

VILLARAMA, JR.,*

DECISION

BRION, J.:

We resolve the petition for review on certiorari, 1 filed by petitioner Charles Gotardo, to challenge the March 5, 2004
decision2 and the July 27, 2004 resolution3 of the Court of Appeals (CA) in CA GR CV No. 76326. The CA decision ordered
the petitioner to recognize and provide legal support to his minor son, Gliffze 0. Buling. The CA resolution denied the
petitioner's subsequent motion for reconsideration.

FACTUAL BACKGROUND
On September 6, 1995, respondent Divina Buling filed a complaint with the Regional Trial Court (RTC) of Maasin, Southern
Leyte, Branch 25, for compulsory recognition and support pendente lite, claiming that the petitioner is the father of her
child Gliffze.4

In his answer, the petitioner denied the imputed paternity of Gliffze.5 For the parties’ failure to amicably settle the dispute,
the RTC terminated the pre-trial proceedings.6 Trial on the merits ensued.

The respondent testified for herself and presented Rodulfo Lopez as witness. Evidence for the respondent showed that
she met the petitioner on December 1, 1992 at the Philippine Commercial and Industrial Bank, Maasin, Southern Leyte
branch where she had been hired as a casual employee, while the petitioner worked as accounting supervisor.7 The
petitioner started courting the respondent in the third week of December 1992 and they became sweethearts in the last
week of January 1993.8 The petitioner gave the respondent greeting cards on special occasions, such as on Valentine’s
Day and her birthday; she reciprocated his love and took care of him when he was ill.9

Sometime in September 1993, the petitioner started intimate sexual relations with the respondent in the former’s rented
room in the boarding house managed by Rodulfo, the respondent’s uncle, on Tomas Oppus St., Agbao, Maasin,
Southern Leyte.10 The petitioner rented the room from March 1, 1993 to August 30, 1994.11 The sexual encounters occurred
twice a month and became more frequent in June 1994; eventually, on August 8, 1994, the respondent found out that
she was pregnant.12 When told of the pregnancy, the petitioner was happy and made plans to marry the
respondent.13 They in fact applied for a marriage license.14 The petitioner even inquired about the costs of a wedding
reception and the bridal gown.15 Subsequently, however, the petitioner backed out of the wedding plans.16

The respondent responded by filing a complaint with the Municipal Trial Court of Maasin, Southern Leyte for damages
against the petitioner for breach of promise to marry.17 Later, however, the petitioner and the respondent amicably
settled the case.18

The respondent gave birth to their son Gliffze on March 9, 1995.19 When the petitioner did not show up and failed to
provide support to Gliffze, the respondent sent him a letter on July 24, 1995 demanding recognition of and support for
their child.20 When the petitioner did not answer the demand, the respondent filed her complaint for compulsory
recognition and support pendente lite.21

The petitioner took the witness stand and testified for himself. He denied the imputed paternity,22 claiming that he first
had sexual contact with the respondent in the first week of August 1994 and she could not have been pregnant for
twelve (12) weeks (or three (3) months) when he was informed of the pregnancy on September 15, 1994.23

During the pendency of the case, the RTC, on the respondent’s motion,24 granted a ₱2,000.00 monthly child support,
retroactive from March 1995.25

THE RTC RULING

In its June 25, 2002 decision, the RTC dismissed the complaint for insufficiency of evidence proving Gliffze’s filiation. It
found the respondent’s testimony inconsistent on the question of when she had her first sexual contact with the
petitioner, i.e., "September 1993" in her direct testimony while "last week of January 1993" during her cross-testimony, and
her reason for engaging in sexual contact even after she had refused the petitioner’s initial marriage proposal. It ordered
the respondent to return the amount of support pendente lite erroneously awarded, and to pay ₱ 10,000.00 as
attorney’s fees.26

The respondent appealed the RTC ruling to the CA.27

THE CA RULING

In its March 5, 2004 decision, the CA departed from the RTC's appreciation of the respondent’s testimony, concluding
that the latter merely made an honest mistake in her understanding of the questions of the petitioner’s counsel. It noted
that the petitioner and the respondent had sexual relationship even before August 1994; that the respondent had only
one boyfriend, the petitioner, from January 1993 to August 1994; and that the petitioner’s allegation that the respondent
had previous relationships with other men remained unsubstantiated. The CA consequently set aside the RTC decision
and ordered the petitioner to recognize his minor son Gliffze. It also reinstated the RTC order granting a ₱ 2,000.00
monthly child support.28
When the CA denied29 the petitioner’s motion for reconsideration,30 the petitioner filed the present petition for review
on certiorari.

THE PETITION

The petitioner argues that the CA committed a reversible error in rejecting the RTC’s appreciation of the respondent’s
testimony, and that the evidence on record is insufficient to prove paternity.

THE CASE FOR THE RESPONDENT

The respondent submits that the CA correctly explained that the inconsistency in the respondent’s testimony was due to
an incorrect appreciation of the questions asked, and that the record is replete with evidence proving that the
petitioner was her lover and that they had several intimate sexual encounters during their relationship, resulting in her
pregnancy and Gliffze’s birth on March 9, 1995.

THE ISSUE

The sole issue before us is whether the CA committed a reversible error when it set aside the RTC’s findings and ordered
the petitioner to recognize and provide legal support to his minor son Gliffze.

OUR RULING

We do not find any reversible error in the CA’s ruling.

We have recognized that "[f]iliation proceedings are usually filed not just to adjudicate paternity but also to secure a
legal right associated with paternity, such as citizenship, support (as in this case) or inheritance. [In paternity cases, the
burden of proof] is on the person who alleges that the putative father is the biological father of the child."31

One can prove filiation, either legitimate or illegitimate, through the record of birth appearing in the civil register or a
final judgment, an admission of filiation in a public document or a private handwritten instrument and signed by the
parent concerned, or the open and continuous possession of the status of a legitimate or illegitimate child, or any other
means allowed by the Rules of Court and special laws.32 We have held that such other proof of one's filiation may be a
"baptismal certificate, a judicial admission, a family bible in which his name has been entered, common reputation
respecting [his] pedigree, admission by silence, the [testimonies] of witnesses, and other kinds of proof admissible under
Rule 130 of the Rules of Court."33

In Herrera v. Alba,34 we stressed that there are four significant procedural aspects of a traditional paternity action that
parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance
between the putative father and the child.35 We explained that a prima facie case exists if a woman declares —
supported by corroborative proof — that she had sexual relations with the putative father; at this point, the burden of
evidence shifts to the putative father.36 We explained further that the two affirmative defenses available to the putative
father are: (1) incapability of sexual relations with the mother due to either physical absence or impotency, or (2) that
the mother had sexual relations with other men at the time of conception.37

In this case, the respondent established a prima facie case that the petitioner is the putative father of Gliffze through
testimony that she had been sexually involved only with one man, the petitioner, at the time of her conception.38 Rodulfo
corroborated her testimony that the petitioner and the respondent had intimate relationship.39

On the other hand, the petitioner did not deny that he had sexual encounters with the respondent, only that it occurred
on a much later date than the respondent asserted, such that it was physically impossible for the respondent to have
been three (3) months pregnant already in September 1994 when he was informed of the pregnancy.40 However, the
petitioner failed to substantiate his allegations of infidelity and insinuations of promiscuity. His allegations, therefore,
cannot be given credence for lack of evidentiary support. The petitioner’s denial cannot overcome the respondent’s
clear and categorical assertions.

The petitioner, as the RTC did, made much of the variance between the respondent’s direct testimony regarding their
first sexual contact as "sometime in September 1993" and her cross-testimony when she stated that their first sexual
contact was "last week of January 1993," as follows:
 ATTY. GO CINCO:

When did the defendant, according to you, start courting you?

A Third week of December 1992.

Q And you accepted him?

A Last week of January 1993.

Q And by October you already had your sexual intercourse?

A Last week of January 1993.

COURT: What do you mean by accepting?

A I accepted his offer of love.41

We find that the contradictions are for the most part more apparent than real, having resulted from the failure of the
respondent to comprehend the question posed, but this misunderstanding was later corrected and satisfactorily
explained. Indeed, when confronted for her contradictory statements, the respondent explained that that portion of the
transcript of stenographic notes was incorrect and she had brought it to the attention of Atty. Josefino Go Cinco (her
former counsel) but the latter took no action on the matter.42

Jurisprudence teaches that in assessing the credibility of a witness, his testimony must be considered in its entirety instead
of in truncated parts. The technique in deciphering a testimony is not to consider only its isolated parts and to anchor a
conclusion based on these parts. "In ascertaining the facts established by a witness, everything stated by him on direct,
cross and redirect examinations must be calibrated and considered."43 Evidently, the totality of the respondent's
testimony positively and convincingly shows that no real inconsistency exists. The respondent has consistently asserted
that she started intimate sexual relations with the petitioner sometime in September 1993.44

Since filiation is beyond question, support follows as a matter of obligation; a parent is obliged to support his child,
whether legitimate or illegitimate.45 Support consists of everything indispensable for sustenance, dwelling, clothing,
medical attendance, education and transportation, in keeping with the financial capacity of the family.46 Thus, the
amount of support is variable and, for this reason, no final judgment on the amount of support is made as the amount
shall be in proportion to the resources or means of the giver and the necessities of the recipient.47 It may be reduced or
increased proportionately according to the reduction or increase of the necessities of the recipient and the resources or
means of the person obliged to support.48

In this case, we sustain the award of ₱ 2,000.00 monthly child support, without prejudice to the filing of the proper motion
in the RTC for the determination of any support in arrears, considering the needs of the child, Gliffze, during the
pendency of this case.

WHEREFORE, we hereby DENY the petition for lack of merit. The March 5, 2004 decision and the July 27, 2004 resolution of
the Court of Appeals in CA GR CV No. 76326 are hereby AFFIRMED. Costs against the petitioner.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Senior Associate Justice
Chairperson
 MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296,
The Judiciary Act of 1948, as amended)

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 172471 November 12, 2012

ANTONIO PERLA, Petitioner,

vs.
MIRASOL BARING and RANDY PERLA, Respondents.

DECISION

DEL CASTILLO, J.:

"An order for x x x support x x x must be issued only if paternity or filiation is established by clear and convincing
evidence."1

Assailed in this Petition for Review on Certiorari2 is the March 31, 2005 Decision3 of the Court of Appeals (CA) in CA-G.R.
CV No. 79312 which dismissed petitioner Antonio Perla’s (Antonio) appeal from the February 26, 2003 Decision4 of the
Regional Trial Court (RTC) of Antipolo City, Branch 71 in Civil Case No. 96-3952, ordering him to give monthly support to
respondent Randy Perla (Randy). Likewise assailed is the CA’s May 5, 2006 Resolution5 denying the motion for
reconsideration thereto.

Factual Antecedents

Respondent Mirasol Baring (Mirasol) and her then minor son, Randy (collectively respondents), filed before the RTC a
Complaint6 for support against Antonio.

They alleged in said Complaint that Mirasol and Antonio lived together as common-law spouses for two years. As a result
of said cohabitation, Randy was born on November 11, 1983. However, when Antonio landed a job as seaman, he
abandoned them and failed to give any support to his son. Respondents thus prayed that Antonio be ordered to
support Randy.

In his Answer with Counterclaim,7 Antonio, who is now married and has a family of his own, denied having fathered
Randy. Although he admitted to having known Mirasol, he averred that she never became his common-law wife nor
was she treated as such. And since Mirasol had been intimidating and pestering him as early as 1992 with various suits by
insisting that Randy is his son, Antonio sought moral and exemplary damages by way of counterclaim from respondents.
During trial, Mirasol testified that from 1981 to 1983, she lived in Upper Bicutan, Taguig where Antonio was a neighbor.8 In
the first week of January 1981, Antonio courted her9 and eventually became her first boyfriend.10 Antonio would then visit
her everyday until 1982.11 Upon clarificatory question by the court whether she and Antonio eventually lived together as
husband and wife, Mirasol answered that they were just sweethearts.12

When Mirasol became pregnant in 1983, Antonio assured her that he would support her.13 Eventually, however, Antonio
started to evade her.14 Mirasol last saw Antonio in 1983 but could not remember the particular month.15

On November 11, 1983, Mirasol gave birth to Randy.16 She presented Randy’s Certificate of Live Birth17 and Baptismal
Certificate18 indicating her and Antonio as parents of the child. Mirasol testified that she and Antonio supplied the
information in the said certificates.19 Antonio supplied his name and birthplace after Erlinda Balmori (Erlinda), the "hilot"
who assisted in Mirasol’s delivery of Randy, went to his house to solicit the said information.20 Mirasol also claimed that it
was Erlinda who supplied the date and place of marriage of the parents so that the latter can file the birth
certificate.21 Mirasol likewise confirmed that she is the same "Mirasol Perla" who signed as the informant therein.22

Next to take the witness stand was Randy who at that time was just 15 years old.23 Randy claimed that he knew Antonio
to be the husband of her mother and as his father.24 He recounted having met him for the first time in 1994 in the house of
his Aunt Lelita, Antonio’s sister, where he was vacationing.25 During their encounter, Randy called Antonio "Papa" and
kissed his hand while the latter hugged him.26 When Randy asked him for support, Antonio promised that he would
support him.27 Randy further testified that during his one-week stay in his Aunt Lelita’s place, the latter treated him as
member of the family.28

For her part, Aurora Ducay testified that she knew both Mirasol and Antonio as they were neighbors in Upper Bicutan,
Taguig. Presently, Antonio is still her neighbor in the said place.29 According to her, she knew of Mirasol’s and Antonio’s
relationship because aside from seeing Antonio frequenting the house of Mirasol, she asked Antonio about it.30 She
further narrated that the two have a son named Randy31 and that Antonio’s mother even tried to get the child from
Mirasol.32

Testifying as an adverse witness for the respondents, Antonio admitted having sexual intercourse with Mirasol in February
and August33 of 1981.34 When shown with Randy’s Certificate of Live Birth and asked whether he had a hand in the
preparation of the same, Antonio answered in the negative.35

Testifying for himself, Antonio denied having courted Mirasol on January 5, 1981 because during that time, he was
studying in Iloilo City. He graduated from the Iloilo Maritime Academy in March of 198136 as shown by his diploma.37 It was
only in May 1981 or after his graduation that he came to Manila. Further, he denied having any relationship with
Mirasol.38 He claimed that he had sexual intercourse with Mirasol only once which happened in the month of September
or October of 1981.39

Antonio came to know that he was being imputed as the father of Randy only when Mirasol charged him with
abandonment of minor in 1994, which was also the first time he saw Randy.40 Prior to that, neither Mirasol nor her sister,
Norma, whom he met a few times told him about the child.41

Anent Randy’s Certificate of Live Birth, Antonio testified as to several inaccuracies in the entries thereon. According to
him, his middle initial is "E" and not "A" as appearing in the said certificate of live birth.42 Also, he is not a protestant and a
laborer as indicated in said certificate.43 Antonio likewise alleged that Mirasol only made up the entries with respect to
their marriage on October 28, 1981.44

Daisy Balmori Rodriguez (Daisy), for her part, testified that she came to know Mirasol through her mother Erlinda who was
the "hilot" when Mirasol gave birth to Randy.45 She narrated that her mother asked Mirasol the details to be entered in the
child’s Certificate of Live Birth such as the names of the parents, date and place of marriage, and the intended name of
the child.46 Her mother also told her that Mirasol’s son has no acknowledged father.47 Daisy likewise claimed that Mirasol
later left to her care the then infant Randy until Mirasol took him away without permission when the child was almost five
years old.48

Ruling of the Regional Trial Court

After trial, the RTC rendered a Decision49 dated February 26, 2003 ordering Antonio to support Randy.

The RTC ruled that Mirasol and Randy are entitled to the relief sought since Antonio himself admitted that he had sex
with Mirasol. It also noted that when the 15-year old Randy testified, he categorically declared Antonio as his father. The
RTC opined that Mirasol would not have gone through the trouble of exposing herself to humiliation, shame and ridicule
of public trial if her allegations were untrue. Antonio’s counterclaim was denied due to the absence of bad faith or ill-
motive on the part of Mirasol and Randy.

The dispositive portion of the RTC Decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff Randy Perla and against the defendant Antonio Perla,
ordering the latter to give a reasonable monthly support of P5,000.00 to Randy Perla for his sustenance and support to be
given to him from the time of the filing of this Complaint.

Defendant’s counterclaim is DISMISSED.

SO ORDERED.50

Antonio filed a Notice of Appeal51 which was given due course by the RTC.52

Ruling of the Court of Appeals

In its Decision53 of March 31, 2005, the CA upheld Randy’s illegitimate filiation based on the certified true copies of his
birth certificate and of his baptismal certificate identifying Antonio as his father. According to the appellate court, while
these documents do not bear the signature of Antonio, they are proofs that Antonio is the known, imputed and
identified father of Randy. The CA also affirmed the trial court’s findings on the credibility of the witnesses and its
appreciation of facts, as there was nothing to suggest that the RTC erred in such respects. It highlighted Antonio’s
vacillation in his testimony regarding the number of times he had sex with Mirasol and concluded that the same is a
clear badge of his lack of candor - a good reason to disregard his denials. Thus:

WHEREFORE, the appeal is DISMISSED and the appealed Decision is AFFIRMED.

SO ORDERED.54

Antonio filed a Motion for Reconsideration55 which was denied by the CA in its Resolution56 of May 5, 2006.

Hence, this Petition for Review on Certiorari.

Issue

The pivotal issue to be resolved in this case is whether the lower courts correctly ordered Antonio to support Randy.

Our Ruling

There is merit in the petition.

A re-examination of the factual findings

of the RTC and the CA is proper in this
case.

"Generally, factual findings of trial courts, when affirmed by the CA, are binding on this Court."57 However, this rule admits
of certain exceptions such as when the finding is grounded entirely on speculations, surmises or conjectures or when the
judgment of the CA is based on misapprehension of facts.58 As this case falls under these exceptions, the Court is
constrained to re-examine the factual findings of the lower courts.

Since respondents’ complaint for support

is anchored on Randy’s alleged
illegitimate filiation to Antonio, the lower
courts should have first made a
determination of the same.
Respondents’ Complaint for support is based on Randy’s alleged illegitimate filiation to Antonio. Hence, for Randy to be
entitled for support, his filiation must be established with sufficient certainty. A review of the Decision of the RTC would
show that it is bereft of any discussion regarding Randy’s filiation. Although the appellate court, for its part, cited the
applicable provision on illegitimate filiation, it merely declared the certified true copies of Randy’s birth certificate and
baptismal certificate both identifying Antonio as the father as good proofs of his filiation with Randy and nothing more.
This is despite the fact that the said documents do not bear Antonio’s signature. "Time and again, this Court has ruled
that a high standard of proof is required to establish paternity and filiation. An order for x x x support may create an
unwholesome situation or may be an irritant to the family or the lives of the parties so that it must be issued only if
paternity or filiation is established by clear and convincing evidence."59

Respondents failed to establish Randy’s

illegitimate filiation to Antonio.

The rules for establishing filiation are found in Articles 172 and 175 of the Family Code which provide as follows:

Article 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by
the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

xxxx

Article 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.

xxxx

Respondents presented the Certificate of Live Birth of Randy identifying Antonio as the father. However, said certificate
has no probative value to establish Randy’s filiation to Antonio since the latter had not signed the same.60 It is settled that
"a certificate of live birth purportedly identifying the putative father is not competent evidence of paternity when there is
no showing that the putative father had a hand in the preparation of said certificate."61 We also cannot lend credence
to Mirasol’s claim that Antonio supplied certain information through Erlinda. Aside from Antonio’s denial in having any
participation in the preparation of the document as well as the absence of his signature thereon, respondents did not
present Erlinda to confirm that Antonio indeed supplied certain entries in Randy’s birth certificate. Besides, the several
unexplained discrepancies in Antonio’s personal circumstances as reflected in the subject birth certificate are
manifestations of Antonio’s non-participation in its preparation. Most important, it was Mirasol who signed as informant
thereon which she confirmed on the witness stand.

Neither does the testimony of Randy establish his illegitimate filiation. That during their first encounter in 1994 Randy
called Antonio "Papa" and kissed his hand while Antonio hugged him and promised to support him; or that his Aunt Lelita
treated him as a relative and was good to him during his one-week stay in her place, cannot be considered as
indications of Randy’s open and continuous possession of the status of an illegitimate child under the second paragraph
of Article 172(1). "[T]o prove open and continuous possession of the status of an illegitimate child, there must be
evidence of the manifestation of the permanent intention of the supposed father to consider the child as his, by
continuous and clear manifestations of parental affection and care, which cannot be attributed to pure
charity.1âwphi1 Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the
apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but
continuously."62 Here, the single instance that Antonio allegedly hugged Randy and promised to support him cannot be
considered as proof of continuous possession of the status of a child. To emphasize, "[t]he father’s conduct towards his
son must be spontaneous and uninterrupted for this ground to exist."63 Here, except for that singular occasion in which
they met, there are no other acts of Antonio treating Randy as his son.64 Neither can Antonio’s paternity be deduced
from how his sister Lelita treated Randy. To this Court, Lelita’s actuations could have been done due to charity or some
other reasons.

Anent Randy’s baptismal certificate, we cannot agree with the CA that the same is a good proof of Antonio’s paternity
of Randy. Just like in a birth certificate, the lack of participation of the supposed father in the preparation of a baptismal
certificate renders this document incompetent to prove paternity.65 And "while a baptismal certificate may be
considered a public document, it can only serve as evidence of the administration of the sacrament on the date
specified but not the veracity of the entries with respect to the child’s paternity. Thus, x x x baptismal certificates are per
se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to
prove the same."66

This Court cannot likewise agree with the RTC’s conclusion that Antonio fathered Randy merely on the basis of his
admission that he had sexual encounters with Mirasol. Neither does it agree with the CA that the inconsistencies in
Antonio’s testimony with regard to the number of times he had sexual intercourse with Mirasol are good reasons to
disregard his denials and uphold the respondents’ claims. It is well to stress that as plaintiff, Mirasol has the burden of
proving her affirmative allegation that Antonio is the father of her son Randy.67 She must rely on the strength of her
evidence and not on the weakness of the defense.68 As Randy was born on November 11, 1983, it was incumbent upon
Mirasol to prove that she had sexual intercourse with Antonio prior to the usual period of pregnancy or nine months
before the birth of Randy. This crucial period therefore is during the early part of the first quarter of 1983. However,
nothing from Mirasol’s testimony indicates that she had sexual intercourse with Antonio during that time.

She merely testified that she last met with Antonio in 1983 but could not remember the particular month.69 Plainly, this
hardly means anything not only because it was not established that the said meeting took place during that crucial
period but also because Mirasol never mentioned that they had sexual contact during their meeting.

Antonio’s admission of sexual intercourse with Mirasol does not likewise by any means strengthen respondents’ theory
that he fathered Randy. When Antonio testified as an adverse witness for the respondents, he stated that he had sexual
intercourse with Mirasol in February and August of 1981. Later testifying as witness for his own behalf, he mentioned that
he had a one night affair with Mirasol which happened in the month of September or October of 1981. Assuming that he
indeed had sexual contact with Mirasol on the dates mentioned, still, none of these sexual congresses could have led to
the conception of Randy who was born two years later in 1983.

All told, it is clear that respondents failed to establish Randy’s illegitimate filiation to Antonio. Hence, the order for Antonio
to support Randy has no basis.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The assailed Decision dated March 31, 2005 and Resolution
dated May 5, 2006 of the Court of Appeals in CA-G.R. CV No. 79312 are REVERSED and SER ASIDE and the Decision
dated February 26, 2003 of the Regional Trial Court of Antipolo City, Branch 71, in Civil Case No. 96-3952 is VACATED. A
new one is entered DISMISSING the Complaint for Support filed by Mirasol Baring and Randy Perla against Antonio Perla.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the C8SC W8S assigned to
the writer of the opinion of tile Court’s Division.

MARIA LOURDES P. A. SERENO

Chief Justice

SECOND DIVISION

[G.R. No. 118492. August 15, 2001]

GREGORIO H. REYES and CONSUELO PUYAT-REYES, petitioners, vs. THE HON. COURT OF APPEALS and FAR EAST BANK AND
TRUST COMPANY, respondents.

DECISION

DE LEON, JR., J.:

Before us is a petition for review of the Decision[1] dated July 22, 1994 and Resolution[2] dated December 29, 1994 of
the Court of Appeals[3] affirming with modification the Decision[4]dated November 12, 1992 of the Regional Trial Court of
Makati, Metro Manila, Branch 64, which dismissed the complaint for damages of petitioners spouses Gregorio H. Reyes
and Consuelo Puyat-Reyes against respondent Far East Bank and Trust Company.

The undisputed facts of the case are as follows:

In view of the 20th Asian Racing Conference then scheduled to be held in September, 1988 in Sydney, Australia, the
Philippine Racing Club, Inc. (PRCI, for brevity) sent four (4) delegates to the said conference. Petitioner Gregorio H. Reyes,
as vice-president for finance, racing manager, treasurer, and director of PRCI, sent Godofredo Reyes, the clubs chief
cashier, to the respondent bank to apply for a foreign exchange demand draft in Australian dollars.

Godofredo went to respondent banks Buendia Branch in Makati City to apply for a demand draft in the amount
One Thousand Six Hundred Ten Australian Dollars (AU$1,610.00) payable to the order of the 20th Asian Racing Conference
Secretariat of Sydney, Australia. He was attended to by respondent banks assistant cashier, Mr. Yasis, who at first denied
the application for the reason that respondent bank did not have an Australian dollar account in any bank in
Sydney. Godofredo asked if there could be a way for respondent bank to accommodate PRCIs urgent need to remit
Australian dollars to Sydney. Yasis of respondent bank then informed Godofredo of a roundabout way of effecting the
requested remittance to Sydney thus: the respondent bank would draw a demand draft against Westpac Bank in Sydney,
Australia (Westpac-Sydney for brevity) and have the latter reimburse itself from the U.S. dollar account of the respondent
in Westpac Bank in New York, U.S.A (Westpac-New York for brevity). This arrangement has been customarily resorted to
since the 1960s and the procedure has proven to be problem-free. PRCI and the petitioner Gregorio H. Reyes, acting
through Godofredo, agreed to this arrangement or approach in order to effect the urgent transfer of Australian dollars
payable to the Secretariat of the 20th Asian Racing Conference.

On July 28, 1988, the respondent bank approved the said application of PRCI and issued Foreign Exchange Demand
Draft (FXDD) No. 209968 in the sum applied for, that is, One Thousand Six Hundred Ten Australian Dollars (AU$1,610.00),
payable to the order of the 20th Asian Racing Conference Secretariat of Sydney, Australia, and addressed to Westpac-
Sydney as the drawee bank.

On August 10, 1988, upon due presentment of the foreign exchange demand draft, denominated as FXDD No.
209968, the same was dishonored, with the notice of dishonor stating the following: xxx No account held with Westpac.
Meanwhile, on August 16, 1988, Westpac-New York sent a cable to respondent bank informing the latter that its dollar
account in the sum of One Thousand Six Hundred Ten Australian Dollars (AU$1,610.00) was debited. On August 19, 1988, in
response to PRCIs complaint about the dishonor of the said foreign exchange demand draft, respondent bank informed
Westpac-Sydney of the issuance of the said demand draft FXDD No. 209968, drawn against the Westpac-Sydney and
informing the latter to be reimbursed from the respondent banks dollar account in Westpac-New York. The respondent
bank on the same day likewise informed Westpac-New York requesting the latter to honor the reimbursement claim of
Westpac-Sydney. On September 14, 1988, upon its second presentment for payment, FXDD No. 209968 was again
dishonored by Westpac-Sydney for the same reason, that is, that the respondent bank has no deposit dollar account with
the drawee Westpac-Sydney.

On September 17, 1988 and September 18, 1988, respectively, petitioners spouses Gregorio H. Reyes and Consuelo
Puyat-Reyes left for Australia to attend the said racing conference. When petitioner Gregorio H. Reyes arrived in Sydney in
the morning of September 18, 1988, he went directly to the lobby of Hotel Regent Sydney to register as a conference
delegate. At the registration desk, in the presence of other delegates from various member countries, he was told by a
lady member of the conference secretariat that he could not register because the foreign exchange demand draft for
his registration fee had been dishonored for the second time. A discussion ensued in the presence and within the hearing
of many delegates who were also registering.Feeling terribly embarrassed and humiliated, petitioner Gregorio H. Reyes
asked the lady member of the conference secretariat that he be shown the subject foreign exchange demand draft that
had been dishonored as well as the covering letter after which he promised that he would pay the registration fees in
cash. In the meantime he demanded that he be given his name plate and conference kit. The lady member of the
conference secretariat relented and gave him his name plate and conference kit. It was only two (2) days later, or on
September 20, 1988, that he was given the dishonored demand draft and a covering letter. It was then that he actually
paid in cash the registration fees as he had earlier promised.

Meanwhile, on September 19, 1988, petitioner Consuelo Puyat-Reyes arrived in Sydney. She too was embarrassed
and humiliated at the registration desk of the conference secretariat when she was told in the presence and within the
hearing of other delegates that she could not be registered due to the dishonor of the subject foreign exchange demand
draft. She felt herself trembling and unable to look at the people around her. Fortunately, she saw her husband coming
toward her. He saved the situation for her by telling the secretariat member that he had already arranged for the payment
of the registration fees in cash once he was shown the dishonored demand draft. Only then was petitioner Puyat-Reyes
given her name plate and conference kit.

At the time the incident took place, petitioner Consuelo Puyat-Reyes was a member of the House of Representatives
representing the lone Congressional District of Makati, Metro Manila.She has been an officer of the Manila Banking
Corporation and was cited by Archbishop Jaime Cardinal Sin as the top lady banker of the year in connection with her
conferment of the Pro-Ecclesia et Pontifice Award. She has also been awarded a plaque of appreciation from the
Philippine Tuberculosis Society for her extraordinary service as the Societys campaign chairman for the ninth (9th)
consecutive year.

On November 23, 1988, the petitioners filed in the Regional Trial Court of Makati, Metro Manila, a complaint for
damages, docketed as Civil Case No. 88-2468, against the respondent bank due to the dishonor of the said foreign
exchange demand draft issued by the respondent bank. The petitioners claim that as a result of the dishonor of the said
demand draft, they were exposed to unnecessary shock, social humiliation, and deep mental anguish in a foreign country,
and in the presence of an international audience.

On November 12, 1992, the trial court rendered judgment in favor of the defendant (respondent bank) and against
the plaintiffs (herein petitioners), the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered in favor of the defendant, dismissing plaintiffs complaint, and ordering
plaintiffs to pay to defendant, on its counterclaim, the amount of P50,000.00, as reasonable attorneys fees. Costs against
the plaintiff.

SO ORDERED.[5]

The petitioners appealed the decision of the trial court to the Court of Appeals. On July 22, 1994, the appellate court
affirmed the decision of the trial court but in effect deleted the award of attorneys fees to the defendant (herein
respondent bank) and the pronouncement as to the costs. The decretal portion of the decision of the appellate court
states:

WHEREFORE, the judgment appealed from, insofar as it dismisses plaintiffs complaint, is hereby AFFIRMED, but is hereby
REVERSED and SET ASIDE in all other respect. No special pronouncement as to costs.

SO ORDERED.[6]
 According to the appellate court, there is no basis to hold the respondent bank liable for damages for the reason
that it exerted every effort for the subject foreign exchange demand draft to be honored. The appellate court found and
declared that:

xxx xxx xxx

Thus, the Bank had every reason to believe that the transaction finally went through smoothly, considering that its New
York account had been debited and that there was no miscommunication between it and Westpac-New York. SWIFT is
a world wide association used by almost all banks and is known to be the most reliable mode of communication in the
international banking business. Besides, the above procedure, with the Bank as drawer and Westpac-Sydney as drawee,
and with Westpac-New York as the reimbursement Bank had been in place since 1960s and there was no reason for the
Bank to suspect that this particular demand draft would not be honored by Westpac-Sydney.

From the evidence, it appears that the root cause of the miscommunications of the Banks SWIFT message is the
erroneous decoding on the part of Westpac-Sydney of the Banks SWIFT message as an MT799 format. However, a closer
look at the Banks Exhs. 6 and 7 would show that despite what appears to be an asterisk written over the figure before 99,
the figure can still be distinctly seen as a number 1 and not number 7, to the effect that Westpac-Sydney was responsible
for the dishonor and not the Bank.

Moreover, it is not said asterisk that caused the misleading on the part of the Westpac-Sydney of the numbers 1 to 7,
since Exhs. 6 and 7 are just documentary copies of the cable message sent to Westpac-Sydney. Hence, if there was
mistake committed by Westpac-Sydney in decoding the cable message which caused the Banks message to be sent to
the wrong department, the mistake was Westpacs, not the Banks. The Bank had done what an ordinary prudent person
is required to do in the particular situation, although appellants expect the Bank to have done more. The Bank having
done everything necessary or usual in the ordinary course of banking transaction, it cannot be held liable for any
embarrassment and corresponding damage that appellants may have incurred.[7]

xxx xxx xxx

Hence, this petition, anchored on the following assignment of errors:

THE HONORABLE COURT OF APPEALS ERRED IN FINDING PRIVATE RESPONDENT NOT NEGLIGENT BY ERRONEOUSLY
APPLYING THE STANDARD OF DILIGENCE OF AN ORDINARY PRUDENT PERSON WHEN IN TRUTH A HIGHER DEGREE OF
DILIGENCE IS IMPOSED BY LAW UPON THE BANKS.

II

THE HONORABLE COURT OF APPEALS ERRED IN ABSOLVING PRIVATE RESPONDENT FROM LIABILITY BY OVERLOOKING
THE FACT THAT THE DISHONOR OF THE DEMAND DRAFT WAS A BREACH OF PRIVATE RESPONDENTS WARRANTY AS THE
DRAWER THEREOF.

III

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT AS SHOWN OVERWHELMINGLY BY THE EVIDENCE,
THE DISHONOR OF THE DEMAND DRAFT WAS DUE TO PRIVATE RESPONDENTS NEGLIGENCE AND NOT THE DRAWEE
BANK.[8]

The petitioners contend that due to the fiduciary nature of the relationship between the respondent bank and its
clients, the respondent bank should have exercised a higher degree of diligence than that expected of an ordinary
prudent person in the handling of its affairs as in the case at bar. The appellate court, according to petitioners, erred in
applying the standard of diligence of an ordinary prudent person only. Petitioners also claim that the respondent bank
violated Section 61 of the Negotiable Instruments Law[9] which provides the warranty of a drawer that xxx on due
presentment, the instrument will be accepted or paid, or both, according to its tenor xxx. Thus, the petitioners argue that
respondent bank should be held liable for damages for violation of this warranty. The petitioners pray this Court to re-
examine the facts to cite certain instances of negligence.

It is our view and we hold that there is no reversible error in the decision of the appellate court.

Section 1 of Rule 45 of the Revised Rules of Court provides that (T)he petition (for review) shall raise only questions of
law which must be distinctly set forth. Thus, we have ruled that factual findings of the Court of Appeals are conclusive on
the parties and not reviewable by this Court and they carry even more weight when the Court of Appeals affirms the
factual findings of the trial court.[10]

The courts a quo found that respondent bank did not misrepresent that it was maintaining a deposit account with
Westpac-Sydney. Respondent banks assistant cashier explained to Godofredo Reyes, representating PRCI and petitioner
Gregorio H. Reyes, how the transfer of Australian dollars would be effected through Westpac-New York where the
respondent bank has a dollar account to Westpac-Sydney where the subject foreign exchange demand draft (FXDD No.
209968) could be encashed by the payee, the 20th Asian Racing Conference Secretatriat. PRCI and its Vice-President for
finance, petitioner Gregorio H. Reyes, through their said representative, agreed to that arrangement or procedure. In other
words, the petitioners are estopped from denying the said arrangement or procedure. Similar arrangements have been a
long standing practice in banking to facilitate international commercial transactions. In fact, the SWIFT cable message
sent by respondent bank to the drawee bank, Westpac-Sydney, stated that it may claim reimbursement from its New York
branch, Westpac-New York where respondent bank has a deposit dollar account.

The facts as found by the courts a quo show that respondent bank did not cause an erroneous transmittal of its SWIFT
cable message to Westpac-Sydney. It was the erroneous decoding of the cable message on the part of Westpac-Sydney
that caused the dishonor of the subject foreign exchange demand draft. An employee of Westpac-Sydney in Sydney,
Australia mistakenly read the printed figures in the SWIFT cable message of respondent bank as MT799 instead of as
MT199. As a result, Westpac-Sydney construed the said cable message as a format for a letter of credit, and not for a
demand draft. The appellate court correctly found that the figure before 99 can still be distinctly seen as a number 1 and
not number 7. Indeed, the line of a 7 is in a slanting position while the line of a 1 is in a horizontal position. Thus, the number
1 in MT199 cannot be construed as 7.[11]

The evidence also shows that the respondent bank exercised that degree of diligence expected of an ordinary
prudent person under the circumstances obtaining. Prior to the first dishonor of the subject foreign exchange demand
draft, the respondent bank advised Westpac-New York to honor the reimbursement claim of Westpac-Sydney and to
debit the dollar account[12] of respondent bank with the former. As soon as the demand draft was dishonored, the
respondent bank, thinking that the problem was with the reimbursement and without any idea that it was due to
miscommunication, re-confirmed the authority of Westpac-New York to debit its dollar account for the purpose of
reimbursing Westpac-Sydney.[13] Respondent bank also sent two (2) more cable messages to Westpac-New York inquiring
why the demand draft was not honored.[14]

With these established facts, we now determine the degree of diligence that banks are required to exert in their
commercial dealings. In Philippine Bank of Commerce v. Court of Appeals[15]upholding a long standing doctrine, we ruled
that the degree of diligence required of banks, is more than that of a good father of a family where the fiduciary nature
of their relationship with their depositors is concerned. In other words banks are duty bound to treat the deposit accounts
of their depositors with the highest degree of care. But the said ruling applies only to cases where banks act under their
fiduciary capacity, that is, as depositary of the deposits of their depositors. But the same higher degree of diligence is not
expected to be exerted by banks in commercial transactions that do not involve their fiduciary relationship with their
depositors.

Considering the foregoing, the respondent bank was not required to exert more than the diligence of a good father
of a family in regard to the sale and issuance of the subject foreign exchange demand draft. The case at bar does not
involve the handling of petitioners deposit, if any, with the respondent bank. Instead, the relationship involved was that of
a buyer and seller, that is, between the respondent bank as the seller of the subject foreign exchange demand draft, and
PRCI as the buyer of the same, with the 20th Asian Racing Conference Secretariat in Sydney, Australia as the payee
thereof. As earlier mentioned, the said foreign exchange demand draft was intended for the payment of the registration
fees of the petitioners as delegates of the PRCI to the 20th Asian Racing Conference in Sydney.

The evidence shows that the respondent bank did everything within its power to prevent the dishonor of the subject
foreign exchange demand draft. The erroneous reading of its cable message to Westpac-Sydney by an employee of the
latter could not have been foreseen by the respondent bank. Being unaware that its employee erroneously read the said
cable message, Westpac-Sydney merely stated that the respondent bank has no deposit account with it to cover for the
amount of One Thousand Six Hundred Ten Australian Dollar (AU$1610.00) indicated in the foreign exchange demand
draft. Thus, the respondent bank had the impression that Westpac-New York had not yet made available the amount for
reimbursement to Westpac-Sydney despite the fact that respondent bank has a sufficient deposit dollar account with
Westpac-New York. That was the reason why the respondent bank had to re-confirm and repeatedly notify Westpac-New
York to debit its (respondent banks) deposit dollar account with it and to transfer or credit the corresponding amount to
Westpac-Sydney to cover the amount of the said demand draft.

In view of all the foregoing, and considering that the dishonor of the subject foreign exchange demand draft is not
attributable to any fault of the respondent bank, whereas the petitioners appeared to be under estoppel as earlier
mentioned, it is no longer necessary to discuss the alleged application of Section 61 of the Negotiable Instruments Law to
the case at bar. In any event, it was established that the respondent bank acted in good faith and that it did not cause
the embarrassment of the petitioners in Sydney, Australia. Hence, the Court of Appeals did not commit any reversable
error in its challenged decision.
 WHEREFORE, the petition is hereby DENIED, and the assailed decision of the Court of Appeals is AFFIRMED. Costs
against the petitioners.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-50974-75 May 31, 1989

JUAN CASTRO and FELICIANA CASTRO, petitioners,

vs.
HON. COURT OF APPEALS, CIPRIANO NAVAL and BENITA C. NAVAL, respondents.

Luis R. Reyes for petitioners.

Marcelino U. Aganon for private respondents.

GUTIERREZ, JR., J.:

This petition for review on certiorari seeks the reversal of the decision of the Court of Appeals in CA-G.R. Nos. 47262 and
47263-R, which affirmed the decision of the then Court of First Instance of Tarlac in Civil Case Nos. 3762-3763. The
dispositive portion of the trial court's decision reads as follows:

WHEREFORE, judgment is hereby rendered in favor of defendants and against plaintiffs in the above-
entitled cases:

1) Declaring defendant Benita Castro Naval a duly acknowledged and recognized illegitimate child
of Eustaquio Castro;

2) Awarding the sum of P2,000.00 to defendants by way of attorney's fee and expenses of litigation
(one-half to be paid by plaintiffs, jointly and severally, in Civil Case No. 3762 and one-half by plaintiff in
Civil Case No. 3763); and

3) Pending the partition or distribution of the properties involved herein in appropriate proceedings or
by mutual agreement, and so as to preserve the status quo, the writ of preliminary injunction of
February 10, 1967 shall continue to remain in full force and effect.

With costs against plaintiffs, one-half chargeable to plaintiffs in Civil Case No. 3762 and the other half
to plaintiff in Civil Case No. 3763. (Record on Appeal, pp. 137-138)

Petitioners Juan Castro and Feliciana Castro are the brother and sister of the late Eustaquio Castro while respondent
Benita Castro Naval is the only child of Eustaquio. Respondent Cipriano Naval is the husband of Benita Castro.

The Court of Appeals correctly summarized the facts of the case as follows:

In Civil Case No. 3762 entitled Juan Castro and Feliciana Castro v. Benita Castro, the plaintiffs filed an
action for partition of properties against the defendant alleging, among other things that they are the
forced heirs of Pedro Castro who died in Mayantoc, Tarlac on May 27, 1923 (p. 6, Record on Appeal).
In Civil Case No. 3763 plaintiff Marcelina Bautista also filed an action for partition of properties against
defendant Benita Castro Naval alleging, among other things, that they are also compulsory heirs of
Eustaquio Castro who died in Mayantoc, Tarlac on August 24, 1961 and that they are entitled to the
partition of the properties of said deceased (p. 32, Record on Appeal).

The defendants in their amended answer in both cases allege that Benita Castro Naval is the only
child of the deceased Eustaquio and that said Eustaquio Castro is the son of Pedro Castro, therefore,
the complaint for partition has no cause of action (p. 25, Record on Appeal).

With leave of Court, plaintiffs filed their amended complaints whereby they converted the original
action for partition into an action for quieting of title. Defendant's husband Cipriano Naval was
forthwith impleaded as party-defendant (p. 32, Record on Appeal).

In the meantime, defendant Benita Naval filed a petition for appointment as receiver and for
preliminary injunction in Civil Case No. 3762. The trial court, however, denied said petition for
appointment of receiver, but granted the petition for writ of preliminary injunction and also adjudged
Marcelina Bautista who is the plaintiff in Civil Case No. 3762 guilty of contempt and ordering her to
pay a fine of P100. 00 (p. 97, Record on Appeal).

Considering that evidence in these incidents of appointing a receiver and preliminary injunction as
well as the motion for contempt were related to the merits of the case, the parties stipulated that
evidence therein be considered as evidence in the trial on the merits.

During the pre-trial the parties agreed that the main issue to be resolved in this case is as to whether or
not defendant Benita Castro Naval is the acknowledged natural child of Eustaquio Castro. In view of
this stipulation, defendant Benita Naval was allowed to introduce evidence to show that she was
indeed the acknowledged natural child of Eustaquio Castro.

The evidence on record shows that Juan Castro and Feliciana Castro, plaintiffs in Civil Case No. 3762
and Eustaquio Castro who was already dead were the children of the deceased spouses Pedro
Castro and Cornelia Santiago. Marcelina Bautista, one of the plaintiffs in Civil Case No. 3763, is the
surviving spouse of the deceased Eustaquio Castro. Eustaquio Castro died on August 23, 1961 and
Pricola Maregmen died on September 11, 1924.

It appears that defendant Benita Castro Naval, a child of Eustaquio Castro and Pricola Maregmen,
was born on March 27, 1919 in San Bartolome, Tarlac (Exhibit A). Eustaquio Castro, who caused the
registration of said birth gave the date indicated in the civil registry that he was the father. Benita
Castro was later baptized in the Roman Catholic Church of Camiling, Tarlac, wherein the baptismal
certificate appeared that her parents are deceased Eustaquio Castro and Pricola Maregmen (Exhibit
C). When Eustaquio Castro died, pictures were taken wherein the immediate members of the family in
mourning were present, among whom was Benita Castro Naval (Exhibits D and D-1). On this score, the
plaintiffs in their complaint in Civil Case No. 3762 admitted that defendant Benita C. Naval is the
forced heir of Eustaquio Castro and a compulsory heir of Eustaquio Castro in Civil Case No. 3763.

The evidence further shows that Pricola Maregmen, the natural mother of Benita C. Naval who was a
resident of Mayantoc, Tarlac, was wedded to Felix de Maya of Anoling Canaling, Tarlac against her
wishes on May 23, 1913. While the celebration of the wedding in Anong, Camiling, Tarlac was going
on, the guests soon found out that Pricola Maregmen surreptitiously left the party and went to the
house of her first cousin Bernarda Pagarigan at Barrio Malacampa, also in Anoling Camiling, Tarlac,
and there she cried that she did not want to get married to Felix de Maya. That evening Pricola
proceeded to Barrio San Bartolome, Mayantoc, Tarlac, where she united with her real sweetheart,
Eustaquio Castro, the father of Benita Castro Naval.

Antonio Maregmen, the brother'. of Pricola Maregmen who was then in the wedding party learned of
the disappearance of his sister. He finally found her living with Eustaquio Castro. A few days later
Eustaquio Castro accompanied by two persons went to the parents of Pricola Maregmen at
Mayantoc, Tarlac and informed them that Pricola was already living with him as husband and wife.
Pricola's parents merely submitted to their daughter's wishes, so Eustaquio Castro and Pricola
Maregmen lived as husband and wife until the death of Pricola on September 11, 1924.
 There is no dispute that Eustaquio Castro at the time he lived with Pricola Maregmen, was a widower,
and was, therefore, free to marry Pricola. As a result of their cohabitation Benita Castro Naval, herein
defendant, was born on March 27, 1919. After the death of her mother, when she was only five years
old, she continued to live with her father Eustaquio Castro until his death on August 22, 1961 (Exhibit
11). Moreover, when Benita Castro Naval got married to Cipriano Naval, it was Eustaquio Castro who
gave her away in marriage. Even after Benita's marriage, she was taken care of by her father. (Rollo,
pp. 11-13).

The trial court ruled that respondent Benita Castro Naval is the acknowledged and recognized child of Eustaquio Castro
and is, therefore, entitled to participate in the partition of the properties left by him. These properties are the subject of
the civil cases. As stated earlier, the Court of Appeals affirmed the trial court's decision.

The main issue raised in this petition is whether or not respondent Benita Castro Naval is the acknowledged and
recognized illegitimate child of Eustaquio Castro.

The Court of Appeals justified its pronouncement that the private respondent is an acknowledged and recognized child
of Eustaquio Castro in the following manner:

xxx xxx xxx

. . . The recognition of Benita Castro as a natural child of Eustaquio Castro appears in the records of
birth and partition. Recognition shall be made in the record of birth, a will, a statement before a court
of record, or any authentic writing (Art. 278, Civil Code). It was a voluntary recognition already
established which did not need any judicial pronouncement (Gut, 68 Phil. 385; Root v. Root, (CA), 71
O.G. 3061). In Javelona v. Onteclaro, 74 Phil. 393, the Supreme Court clarified the distinction between
voluntary recognition and compulsory recognition. In the first place, a voluntary recognition is made in
a public document, whereas in the indubitable writing under Article 135 is a private document.
(Manresa, Vol. 1, p. 579). The father would ordinarily be more careful about what he said in a public
document than in a private writing, so that even an incidental mention of the child as his in a public
document deserves full faith and credit. In the second place, in an action on Article 131 (voluntary
recognition) the natural child merely asks for a share in the inheritance in virtue of his having been
acknowledged as such, and is not trying to compel the father or his heirs to make the
acknowledgment, whereas the action based on Article 135 is to compel the father or his heirs to
recognize the child. In the former case, acknowledgment has been formally and legally
accomplished because the public character of the document makes judicial pronouncement
unnecessary, while in the latter case, recognition is yet to be ordered by the courts because a private
writing, lacking the stronger guaranty and higher authenticity of a public document is not self-
executory. A judgment in favor of the status of a natural child according to Art. 135 must therefore be
based on an express recognition so found and declared by the court after hearing. At this juncture, it
is to be noted that an action based on voluntary acknowledgment may be brought after the death
of the father, but. not an action to compel acknowledgment, as a general rule, (Art. 137, Civil Code)
which shows the liberality of the law as to voluntary recognition, and its strictness toward compulsory
acknowledgment.

While it is true that Pricola Maregmen, Benita's mother was married to Naval (sic), it is the rule,
however, that in case the recognition is made by only one of the parents, it will be presumed that the
child is natural if the parents recognizing it had the legal capacity to contract marriage at the time of
the conception (Art. 277, Civil Code; Borres and Barza v. Municipality of Panay, 42 Phil. 643;
Capistrano v. Gabino, 8 Phil. 135). The presumption arises from the act of recognition.

What is more is that plaintiffs in their amended complaint admitted that Benita Castro was the
compulsory heir of Eustaquio Castro. They cannot now contradict their own allegations (Cunanan v.
Amparo, 80 Phil. 232). (Rollo, pp. 14-15)

The Court of Appeals has correctly stated the principles but the petitioners contend that it erred in applying these
principles to the facts of this case.

The law which now governs paternity and filiation is Title VI of the Family Code of the Philippines, Executive Order No. 209,
July 6,1987 as amended by Executive Order No. 227, July 17, 1987. We have to examine the earlier provisions, however,
because the Family Code provides in its Article 256 that:
 This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws. (Emphasis supplied)

There is no question that the private respondent is an illegitimate child of Eustaquio Castro. Her father Eustaquio was a
widower when Pricola Maregmen, her mother, went to live with him. The two could not validly enter into a marriage
because when Pricola fled from her own wedding party on May 23, 1913, the wedding rites to Felix de Maya had
already been solemnized. In other words, the marriage was celebrated although it could not be consummated because
the bride hurriedly ran away to join the man she really loved.

Under the Civil Code, whether "new" or "old", illegitimate children or those who are conceived and born out of wedlock
were generally classified into two groups: (1) Natural, whether actual or by fiction, were those born outside of lawful
wedlock of parents who, at the time of conception of the child, were not disqualified by any impediment to marry each
other. (Article 119, old Civil Code; Article 269, new Civil Code) and (2) Spurious, whether incestuous, adulterous or illicit,
were those born of parents who, at the time of conception, were disqualified to marry each other on account of certain
legal impediments.

Since Eustaquio Castro was a widower when Benita was conceived, Benita is Ms natural child. (See Borres and Barza v.
Municipality of Panay, 42 Phil. 643,647 [1922]). However, from the viewpoint of the mother who had a subsisting marriage
to Felix de Maya, Benita was her spurious child.

Under the Civil Code, for an illegitimate child other than natural to inherit, she must first be recognized voluntarily or by
court action. (Berciles v. Government Service Insurance System, 128 SCRA 53 [1984]; Divinagracia v. Rovira, 72 SCRA 307
[1976]; Vda. de Clemena v. Clemena 24 SCRA 720 [1968]; Noble v. Noble, 18 SCRA 1104 [1966]; Republic v. Workmen's
Compensation Commission, 13 SCRA 272 [1965]; Paulino v. Paulino 3 SCRA 730 [1961]; Barles, et al. v. Ponce Enrile, 109
Phil. 522 [1960]; and Reyes v. Court of Appeals, 135 SCRA 439 [1985]). This arises from the legal principle that an
unrecognized spurious child like a natural child has no rights from her parents or to their estate because her rights spring
not from the filiation or blood relationship but from the child's acknowledgment by the parent. (Alabat v. Vda. de
Alabat, 21 SCRA 1479 [1967]; Mise v. Rodriguez, 95 Phil. 396 [1954]; Magallanes, et al.v. Court of Appeals, et al., 95 Phil.
795 [1954]; Canales v. Arrogante, et al., 91 Phil. 6 [1952]; Malonda v. Malonda, 61 Phil. 149 [1948]; Buenaventura v.
Urbano, et al., 5 Phil. 1 [1905]; and Reyes v. Court of Appeals, supra). In other words, the rights of an illegitimate child
arose not because she was the true or real child of her parents but because under the law, she had been recognized or
acknowledged as such a child.

This brings us to the question whether or not the private respondent is an acknowledged and recognized illegitimate
child of Eustaquio Castro.

Under the Civil Code, there are two kinds of acknowledgment — voluntary and compulsory. The provisions on
acknowledgement are applied to natural as well as spurious children (Clemena v. Clemena supra; Reyes v. Court of
Appeals, supra).

Article 131 of the old Civil Code provides for voluntary acknowledgment by the father or mother, while Article 135 and
Article 136 of the same Code provide for the compulsory acknowledgment by the father and mother respectively.
Article 131 of the old Civil Code states that "The acknowledgment of a natural child must be made in the record of birth,
in a will or in some other public document."

In these cases, the appellate court ruled that the private respondent was voluntarily recognized by her father, Eustaquio
Castro through the record of birth, hence there was no need for any judicial pronouncement.

The record of birth referred to by the appellate court is actually the birth certificate of the private respondent. It appears
in the certificate that Eustaquio Castro is the respondent's father.

The petitioners take exception to the respondent court's ruling on voluntary recognition.

Strictly speaking, a birth certificate to be sufficient for purposes of recognizing a child must be signed by the father and
mother jointly and if the father refuses, by the mother alone otherwise she may be penalized. (Section 5, Article 3753;
Madridejo v. de Leon, 55 Phil. 1 [1930]). What is signed is a loose form whose contents are later transferred by a municipal
employee to the local registry book of births which is preserved. An examination of Exhibition F, Birth Certificate of Benita
Castro, Folder of Exhibits, p. 112, shows that this "birth certificate" was in turn copied on October 17, 1961 from Book page
No. 28, and Registry No. 47 of the book bound records where "Eustaquio Castro" appears under the column "Remarks."
This is no question that Eustaquio himself reported the birth of his daughter but this record is not determinative of whether
or not he also signed the easily lost looseleaf form of the certificate from where the entry in book bound or logbook
record was taken in March, 1919.

The ruling in Roces v. Local Civil Registrar of Manila (102 Phil. 1050 [1958]) and Berciles v. Government Service Insurance
System (128 SCRA 53 [1984]) that if the father did not sign in the birth certificate, the placing of his name by the mother,
doctor, registrar, or other person is incompetent evidence of paternity does not apply to this case because it was
Eustaquio himself who went to the municipal building and gave all the data about his daughter's birth. In Berciles we find
no participation whatsoever in the registration by Judge Pascual Berciles, the alleged father.

We likewise see no application of the statement in Madridejo v. de Leon (supra), that the father, apart from furnishing
the necessary data must also sign the certificate itself In that case, Pedro Madridejo, the father was still alive when the
1930 case was brought to court. Pedro himself testified that Melecio Madridejo was conceived and born to him, a
bachelor, and Flaviana Perez, a widow. The two were validly maried when Flaviana was about to die. If the situation of
Benita Castro Naval were similar, there would be no need to even discuss whether or not the father signed the birth
certificate. Under the present law, the subsequent wedding of a man and woman whose child was conceived when
there were no legal impediments to a valid marriage gives that child the lights of a legitimate off-spring. The situation is
different in the present case.

We apply the more liberal provisions of the new Family Code considering the facts and equities of this case.

First, Benita Castro Naval is unquestionably the daughter of the late Eustaquio Castro who was qualified to legally marry
when she was conceived and born. From her birth on March 27, 1919 until the father's death on August 22, 1961 or for 42
years, Benita lived with her father and enjoyed the love and care that a parent bestows on an only child. The private
respondents, themselves, admitted in their complaint in Civil Case No. 3762 that Benita is a forced heir of Eustaquio
Castro.

Second, the rule on separating the legitimate from the illegitimate family is of no special relevance here because Benita
and her mother Pricola Maregmen were the only immediate family of Eustaquio. There are no legitimate children born of
a legitimate wife contesting the inheritance of Benita.

Third, it was Eustaquio himself who had the birth of Benita reported and registered. There is no indication in the records
that Eustaquio should have known in 1919 that apart from reporting the birth of a child, he should also have signed the
certificate and seen to it that it was preserved for 60 years. Or that he should have taken all legal steps including judicial
action to establish her status as his recognized natural child during the reglementary period to do so.

Fourth, it was Eustaquio who gave away Benita during her wedding to Cipriano Naval. The couple continued to live with
the father even after the wedding and until the latter's death.

Fifth, the certificate of baptism and the picture of the Castro family during the wake for Eustaquio may not be sufficient
proof of recognition under the Civil Code (Reyes v. Court of Appeals, supra; People v. Villeza. 127 SCRA 349 [1984]; Cid v.
Burnaman, 24 SCRA 434 [1968]; Capistrano, et al. v. Gabino, 8 Phil. 135 [1907]) but they add to the equities of this case
favoring the petitioner.

To remove any possible doubts about the correctness of the findings and conclusions of the trial court and the Court of
Appeals, we, therefore, apply the provision of the Family Code which states that it shall have retroactive effect since the
respondents have no clear vested rights in their favor.

Under the Code's Title VI on Paternity and Filiation there are only two classes of children — legitimate and illegitimate.
The fine distinctions among various types of illegitimate children have been eliminated.

Article 175 provides that "Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children." (Emphasis supplied).

Articles 172 and 173 on establishing the filiation of legitimate children provide:

Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or
 (2) An admission of legitimate filiation in a public document or a private handwritten instrument and
signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws. (265a, 266a; 267a)

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall
be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases,
the heirs shall have a period of five years within which to institute the action.

The action already commenced by the child shall survive notwithstanding the death of either or both
of the parties. (268a)

There can be no dispute that Benita Castro enjoyed the open and continuous possession of the status of an illegitimate
child of Eustaquio Castro and that the action of Benita in defending her status in this case is similar to an "action to claim
legitimacy" brought during her lifetime.

WHEREFORE, the petition is hereby DISMISSED for lack of merit. The questioned decision of the Court of Appeals is
AFFIRMED.

SO ORDERED.

Fernan , C.J. (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-63132 July 30, 1987

ELIAS S. MENDOZA and EUSTIQUIA S. MENDOZA, petitioners,

vs.
HON. INTERMEDIATE APPELLATE COURT, BUENAVENTURA GABUYA and SEVERA FERNANDEZ,respondents.

FERNAN, J.:

Petitioners-spouses Elias and Eustiquia Mendoza seek a review of the decision dated September 8, 1982 of the Court of
Appeals in CA-G.R. Nos. 58815-58816-17-R entitled Elias Mendoza, et al., Plaintiffs-Appellants, versus Buenaventura
Gabuya, et al., Defendants-Appellees" as well as the resolution of January 3, 1983, denying their motion for
reconsideration.

The antecedents are as follows:

Sometime in November and December of 1969, three [3] complaints were filed before the then Court of First Instance of
Cebu; viz: 11 Civil Case No. R-11485 instituted by herein petitioners-spouses Mendoza against private respondents-
spouses Buenaventura Gabuya and Severa Fernandez for partition of Lot No. 3597 of the Cadastral Survey of Cebu,
located at Pardo, Cebu City, with an area of 2,992 square meters, more or less, and covered by Transfer Certificate of
Title No. 43910 issued in the names of "Buenaventura Gabuya, married to Severa Fernandez ... and Elias S. Mendoza,
married to Eustiquia S. Mendoza ... with one-half [1/2] share each"1 and damages; 2) Civil Case No. R-11486 commenced
by spouses Modesta Gabuya and Dominador Delima, likewise against private respondents-spouses Buenaventura
Gabuya and Severa Fernandez for partition of Lot No. 3506 of the Cadastral Survey of Cebu, located at Pardo, Cebu,
with an area of 2,799 square meters, more or less, and covered by Transfer Certificate of Title No. 43909 issued in the
names of Buenaventura Gabuya, married to Severa Fernandez and Modesta Gabuya, married to Dominador Delima,
and damages; and, 3] Civil Case No. R-1152 filed by private respondents-spouses Buenaventura Gabuya and Severa
Fernandez against the spouses Modesta Gabuya and Dominador Delima and petitioners-spouses Mendoza for the
annulment of: a) the extra-judicial settlement of the estate of the late Evaristo Gabuya, dated March 12, 1969 covering
Lot Nos. 3506 and 3597, Cebu Cadastre; b) the sale of one-half [1/2] portion of Lot No. 3597 dated December 31, 1968 in
favor of spouses Mendoza; and, c) Transfer Certificates of Title Nos. 43909 and 43910, covering Lot Nos. 3506 and 3597,
respectively; and damages.

Because they involved the same parties and properties, the cases were heard and tried jointly.

Thereafter, on September 12, 1972, the trial court rendered a decision, the dispositive portion of which reads as follows:

WHEREFORE, based on all the foregoing considerations, judgment is hereby rendered in favor of the plaintiff
Buenaventura Gabuya in the third case and against defendant-spouses Modesta Gabuya and Dominador
Delima and Atty. Elias S. Mendoza and Eustiquia S. Mendoza:

1] Declaring null and void and without force and effect:

a) The Deed of Extrajudicial Settlement of the Estate of Evaristo Gabuya insofar as the shares of
defendant Modesta Gabuya in Lot Nos. 3506 and 3597 are concerned;

b) The Deed of Absolute Sale Modesta Gabuya executed on December 31, 1968 in favor of her co-
defendants-spouses Atty. Elias S. Mendoza and Eustiquia S. Mendoza, covering Lot No. 3597 without
prejudice to the rights of the latter spouses-vendors to demand from Modesta Gabuya reimbursement
of any amounts they have paid on account of the sale;

c) Transfer Certificates of Title Nos. 43909 and 43910 insofar as the respective recorded one-half [1/2]
undivided shares of the spouses Modesta Gabuya married to Dominador Delima and Atty. Elias S.
Mendoza married to Eustiquia S. Mendoza in each of Lot Nos. 3506 and 3597 with plaintiff
Buenaventura Gabuya married to Severa Fernandez are concerned;

2] Condemning the two defendants-spouses to pay jointly and severally to the plaintiff the amount of P500.00
as moral damages, P750.00 as attorney's fees; and,

3] To pay the costs.

The Register of Deeds of Cebu is hereby directed to cancel the recorded one-half [1/2] share each of the
defendants-spouses Modesta Gabuya married to Dominador Delima and Atty. Elias S. Mendoza married to
Eustiquia S. Mendoza in Lot Nos. 3506 and 3597 covered by Transfer Certificates of Title Nos. 43909 and 43910,
respectively. 2

Dissatisfied with said decision, the spouses Mendoza and the spouses Delima appealed to the Court of Appeals, which,
however, affirmed in toto the decision of the trial court. Their motion for reconsideration likewise proved
unavailing.1awphil

Thus, on February 14, 1983, within the extended period granted, the spouses Mendoza filed the petition at bar. After
private respondents had filed their comment thereon, and petitioners, their Reply to said comment, the Court, on
September 19, 1983, gave due course to the petition.3 In due time, the parties submitted their respective memoranda.

On July 10, 1985, Atty. Paterno S. Compra entered his appearance as counsel for spouses Modesta Gabuya and
Dominador Delima, and on July 19, 1985, filed a Notice of Death, informing this Court that respondent Buenaventura
Gabuya died on October 21, 1981 and that Severa Fernandez likewise died on October 14, 1983, allegedly leaving no
legal heirs except Modesta Gabuya.4

Acting on said Notice of Death, the Court resolved on September 18, 1985, "to Direct [1] the legal representatives of the
deceased respondents Buenaventura Gabuya and Severa Fernandez to appear and to be substituted for the latter,
within a period of thirty [30] days from notice; and [2] the petitioners to amend their petition within ten [10] days from
receipt of the notice of appearance and substitution by the legal representatives of the aforesaid respondents, so as to
conform with the latest development in the case."5
It appears that sometime between September 18, 1985 and November 27, 1985, Venerando Gabuya, a sixth degree
collateral relative of Buenaventura Gabuya, filed a motion dated October 31, 1985 to substitute the latter in the case at
bar. While the motion itself does not appear in the rollo, the same was granted by the Court in its resolution of November
27, 1985.

Meanwhile, on November 20, 1985, the petitioners filed an Amended Petition, naming the spouses Modesta Gabuya
and Dominador Delima as co-petitioners therein. Said "petitioners" Modesta Gabuya and Dominador Delima prayed in
the Amended Petition that Modesta Gabuya be declared the sole legal heir of Buenaventura Gabuya. Said spouses
Delima likewise filed a motion for reconsideration of the resolution of November 27, 1985, which granted Venerando
Gabuya's motion for substitution. However, since the resolution of the motion for reconsideration would entail going into
the merits of the case, its resolution was held in abeyance.

The sole issue presented by the petition is couched by petitioners, thus:

Whether or not under the Civil Code of Spain, a natural child without any judicial decree or deed of
acknowledgment in his favor by his natural parent may succeed said natural parent under certain
circumstances. 6

The factual backdrop of this legal query, as found by the trial court and sustained by the appellate court, is as follows:

That Buenaventura, Nicolasa and Teresa, all surnamed Gabuya, are the legitimate children of the spouses
Evaristo Gabuya and Susana Sabandija, who died intestate many years ago, the first in 1926 and the second in
1912; that both Nicolasa and Teresa died single, the first in 1943 and the second in 1964; that Modesta Gabuya
is the illegitimate daughter of Nicolasa [Exhs. G & 7-B-Gabuya]; that Lot Nos. 3506 and 3597 of the Cebu
Cadastre were some of the original properties left by the late Evaristo Gabuya both located at Pardo, Cebu
City, formerly covered by Original Certificate [sic] of Title Nos. 6353 and 6597 in the name of Evaristo Gabuya
and containing 2,799 square meters and 2,992 square meters, respectively; that sometime in February, 1969,
Modesta Gabuya accompanied by Atty. Elias S. Mendoza went to the house of Buenaventura Gabuya who
wanted to see the titles of these two parcels of land and Buenaventura was instructed by Modesto to look for
them so that they be reconstituted; that some days later the two, Modesta Gabuya and Elias S. Mendoza
visited him again at his house and Mode took the titles but this time Buenaventura went with them to the Cebu
Capitol Building; that Buenaventura and Modesto signed a document and acknowledged before Atty.
Salvador B. Mendoza but the latter did not read to the signatories the contents of the document; that this
document dated March 12, 1969 turned out to be an Extrajudicial settlement of the Estate of Evaristo Gabuya
[Exhs. A and 1-B-Gabuya] whereby Buenaventura and Modesto appear to have divided and partitioned
between themselves pro visio and share and share alike [1/2 each] Lot Nos. 3506 and 3597; that this
Extrajudicial settlement of the Estate of Evaristo Gabuya was duly published [Exh. B] in the Morning Times and
registered with the Register of Deeds [Exhs. B-1 & B-2] and the document itself was also similarly registered [Exhs.
A-1 and A-2]; that on December 31, 1968, prior to the execution of the Extra-Judicial Settlement document, a
Deed of Absolute Sale [Exhs. 2-B-Gabuya] was executed by Modesta Gabuya in favor of the spouses Atty. and
Mrs. Elias S. Mendoza covering her alleged one-half [1/2] undivided share in Lot No. 3597 for a consideration of
P10,000.00; that pursuant to the Deed of Extrajudicial Settlement [Exhs. A & 1-B-Gabuya], and the Deed of
Absolute Sale [Exh. 2-B-Gabuya], Original Certificates of Title Nos. 6353 and 6597 in the name of the late Evaristo
Gabuya, father of Buenaventura Gabuya, were cancelled and in liue thereof were issued Transfer Certificates
of Title Nos. 43909 and 43910 [Exh. C] The first in the names of spouses Buenaventura Gabuya married to Severa
Fernandez, and Modesta Gabuya married to Dominador Delima and the second, in the names of
Buenaventura Gabuya married to Severa Fernandez and Atty. Elias S. Mendoza married to Eustiquia S.
Mendoza; that Atty. Elias S. Mendoza and Modesta Gabuya have respectively asked from Buenaventura
Gabuya the partition of the lots which they are co-owners of the undivided one-half [1/2] portions; and that
Buenaventura refused to do so claiming that ModestaGabuya is not entitled to inherit from the estate of his late
father Evaristo Gabuya. 7

Under the Civil Code of Spain, the law in force at the time of the death in 1943 of Nicolasa Gabuya, the mother of
Modesta, full successional rights were granted only to legitimate and legitimated children [Arts. 114 and 122,
respectively]. Acknowledged natural children were given limited successional rights in that they were entitled to inherit
only from the acknowledging parent [Art. 134], while illegitimate children who did not possess the status of natural
children had no successional rights whatsoever [Art. 139]. The latter were only entitled to support. Adopted children
become heirs of the adopting parents only if the adopting parents had agreed to confer the adopted children such
rights in the deed of adoption, or had instituted them as heirs in a will.8

Recognition or acknowledgment of a natural child under said Code must be made in a record of birth, a will, a
statement before a court of record, or in some other public document.9 In the case at bar, the only document
presented by Modesta Gabuya to prove that she was recognized by her mother was the certificate of birth and baptism
signed by Rev. Fr. Filomeno Singson, Assistant Parish Priest of Pardo, Cebu City, stating therein that Modesta Gabuya is an
illegitimate daughter of Nicolasa Gabuya.10 However, Philippine jurisprudence is consistent and uniform in ruling that the
canonical certificate of baptism is not sufficient to prove recognition.11 The rationale for this ruling, enunciated in the
case of Civ v. Burnaman, 24 SCRA 434, is that while the baptismal certificate in the parish records was a public
document before the effectivity of General Order No. 68 and Act 190, this certificate did not constitute a sufficient act of
acknowledgment, since the latter must be executed by the child's father or mother, and the parish priest can not
acknowledge in their stead.

Neither could the alleged continuous possession by Modesta Gabuya of the status of a natural child improve her
condition. In Alabat v. vda. de Alabat, 21 SCRA 1479, 1481, it was stressed that:

It is an elementary and basic principle in our law of succession that the rights of a natural child spring not from
the filiation itself but from the child's acknowledgment by the natural parent, made voluntarily or by court
decree. Equally basic and elementary . . . is the fact that possession or enjoyment of the status of natural child
is per se not a sufficient operative acknowledgment but only a ground to compel the parent to acknowledge
the child.

The case of Ramos, et al. v. Ramos, et al., 61 SCRA 284, heavily relied upon by petitioners, does not apply to the case at
bar. Unlike in said case, Modesta Gabuya failed to prove by clear and convincing evidence that she was in continuous
possession of the status of a natural child.

That this petition must fail is a foregone conclusion. Modesta Gabuya, not having been acknowledged in the manner
provided by law by her mother, Nicolasa, was not entitled to succeed the latter. The extrajudicial settlement of the
estate of Evaristo Gabuya is, therefore, null and void insofar as Modesta Gabuya is concerned per Article 1105 of the
New Civil Code which states:

A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to
such person.

Since the ownership of the one-half [1/2] pro indiviso portion of Lot No. 3597 never passed on to Modesta Gabuya, it
follows that the sale thereof to petitioners-spouses Elias and Eustiquia Mendoza is likewise null and void.12

One last point. During the pendency of this case, the spouses Modesta Gabuya and Dominador Delima joined the
spouses Mendoza as petitioners in this case by submitting an amended petition, ostensibly in compliance with Our
resolution of September 18, 1985. In said Amended Petition, aforementioned spouses Delima prayed that Modesta
Gabuya Delima be declared the sole heir of the deceased private respondent Buenaventura Gabuya, to the exclusion
of substitute Venerando Gabuya. It must be remembered, however, that the Delima spouses not having joined
petitioners-spouses Mendoza in the instant petition for review. the decision of the Court of Appeals in CA-G.R. Nos.
58815-58816-17-R has become final and executory as to said spouses Delima. With the pronouncement of the appellate
court that Modesta Gabuya-Delima was not entitled to inherit from her mother, in conjunction with our affirmance
thereof, it is clear that her prayer in the amended petition cannot be granted.

WHEREFORE, the instant petition is hereby denied. The decision of the appellate court in CA-G.R. Nos. 58815-5881617-R, is
affirmed in toto. Costs against petitioners.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION
G.R. No. L-19872 December 3, 1974

EMILIANO B. RAMOS, ET AL., plaintiffs-appellants,

vs.
GREGORIA T. RAMOS, ET AL., defendants-appellants.

Humberto V. Quisumbing and Maximino M. San Diego for plaintiffs-appellants.

Hilado and Hilado for defendants-appellants.

AQUINO, J.:p

The parties appealed from the decision of the Court of First Instance of Negros Occidental, dismissing plaintiffs' complaint
and holding that the intestate estate of Martin Ramos was settled in Civil Case No. 217, which was terminated on March
4,1914, and that the judgment therein is res judicata and bars any litigation regarding the same estate (Civil Case no.
4522).

The documentary evidence reveals the following facts:

The spouses Martin Ramos and Candida Tanate died on October 4, 1906 and October 26, 1888, respectively. They were
survived by their three legitimate children named Jose, Agustin and Granada. Martin Ramos was also survived by his
seven natural children named Atanacia, Timoteo, Modesto, Manuel, Emiliano, Maria and Federico.

On December 10, 1906 a special proceeding was instituted in the Court of First Instance of Negros Occidental for the
settlement of the intestate estate of the said spouses. The case was docketed as Civil Case No. 217 (its expediente is still
existing). Rafael O. Ramos, a brother of Martin, was appointed administrator. The estate was administered for more than
six years (Exh. F, G, H, I and J).

A project of partition dated April 25, 1913 was submitted. It was signed by the three legitimate children, Jose, Agustin
and Granada; by the two natural children, Atanacia and Timoteo, and by Timoteo Zayco in representation of the other
five natural children who were minors. It was sworn to before the justice of the peace (Exh. 3).

In the project of partition the conjugal hereditary estate was appraised at P74,984.93. It consisted of eighteen parcels of
land, some head of cattle and the advances to the legitimate children(Exh. 3).

Under that project of partition, the following adjudications were made to the heirs:

Legitimate children: Value

1. To Jose Ramos: (a) Hacienda Calaza

with an area of 328 hectares,
(b) a one-hectare town lot, (c) a
23-hectare lot in Sitio Bingig, and
(d) some head of cattle P25,291.66

2. To Granada Ramos: (a) a

parcel of riceland with a capacity
of 16 cavans of seedlings, located
in Barrio Binicuel, Kabankalan,
Negros Occidental and (b) some
head of cattle 1,891.66

3. To Agustin Ramos: (a) the

remaining fourteen (14) lots out of
the eighteen lots described in the
inventory, which included the Hacienda
 Ylaya with an area of 185 hectares and
(b) some head of cattle 36,291.68

Natural children:

4. To each of the seven (7) natural

children named Atanacia, Modesto,
Timoteo, Federico, Manuel, Emiliano
and Maria, were adjudicated personal
properties valued at P1,785.35 consisting
of (a) cash amounting to P1,760.35 and
(b) P25, representing a one-seventh (1/7)
of a one-sixth (1/6) portion in certain head
of cattle allegedly representing one-third
of the free portion of the estate of Martin
Ramos, with an aggregate value of 12,497.51
Total adjudications P75,972.51

It was agreed in the project of partition that Jose Ramos would pay the cash adjudications to Atanacia, Timoteo and
Manuel, while Agustin Ramos would pay the cash adjudications to Modesto, Federico, Emiliano and Maria. It was further
agreed that Jose Ramos and Agustin Ramos would pay their sister, Granada, the sums of P3,302.36 and P14,273.78,
respectively (Exh. 3).

The record does not show whether assessed or market values were used in appraising the eighteen parcels of land. By
way of explanation, it may be stated that, inasmuch as the ganancial estate had an appraised value of P74,984.93,
one-half thereof or the sum of P37,492.46 represented the estate of Martin Ramos. One-third thereof was the free portion
or P12,497.48. The shares of the seven natural children were to be taken from that one-third free portion. Dividing
P12,497.48 by seven gives a result of P1,783.35 which represented the one-seventh share of each natural child in the free
portion of the estate of their putative father, Martin Ramos. The partition was made in accordance with the old Civil
Code which provides:

ART. 840. When the testator leaves legitimate children or descendants, and also natural children,
legally acknowledged, each of the latter shall be entitled to one-half of the portion pertaining to
each of the legitimate children not bettered, provided that it can be included within the third for free
disposal, from which it must betaken, after deducting the burial and funeral expenses.

The legitimate children may satisfy the portion pertaining to the natural children in cash, or in other
property of the estate, at a fair valuation.

The sum of P1,785.35, as the legal share of each natural child, was the amount which was indicated in the project of
partition(Exh. 3) and which was to be satisfied in cash. The second paragraph of article 840 gives the legitimate children
the right to satisfy in cash the hereditary portions of the natural children. (Article 840 was applied in the project of
partition when it stated that each natural child had "una septima partede un sexto de semovientes" but the statement in
the project of partition that each legitimate child was entitled to "un tercio delos cinco quintos de los semovientes" is
erroneous. It should be "un tercii de los cinco sextos de los semovientes").

Judge Richard Campbell, in his "decision" dated April 28,1913, approved the project of partition as well as the
intervention of Timoteo Zayco as guardian of the five heirs, who were minors. The court declared that the proceeding
would be considered closed and the record should be archived as soon as proof was submitted that each heir had
received the portion adjudicated to him (Exh. 4).

In an order dated February 3, 1914 Judge V. Nepomuceno asked the administrator to submit a report, complete with the
supporting evidence, showing that the shared of the heirs had been delivered to them as required in the decision of
April 28,1913 (Exh. 5). In a manifestation dated February 24, 1914, which was signed by Jose, Agustin, Granada, Atanacia
and Timoteo all surnamed Ramos, and by Timoteo Zayco, the guardian, and which was sworn to before the justice of
the peace on March 2 (not 4), 1914 and filed in court on March 5,1914, they acknowledged:

... hemos recibido del Administrador Judicial Rafael O. Ramostodas y cada una de las
participaciones a que respectivamente tenemos derecho en los bienes relictor de los finados esposos
Martin Ramos y Candida Tanate, completo acuerto y conformidad con elproyecto de reparticion
que nosotros mismo sometemos al Juzgado en 25 de Abril de 1913 ... . (Exh. 6).
Note that Granada Ramos and the natural children were assumed to have received their shares from the administrator
although according to the object of partition, Jose Ramos and Agustin Ramos (not the administrator) were supposed to
pay the cash adjudications to each of them. No receipts were attached to the manifestation, Exhibit 6. Apparently, the
manifestation was not in strict conformity with the terms of judge Nepomuceno's order and with the project of partition
itself.

Lots Nos. 1370, 1371, 1372, 1375, 2158, 2159, 2161 and 2163(eight lots) of the Himamaylan cadastre (page 8 of the Record
on Appeal does not mention Lot 1370), which are involved in this case were registered (as of 1958) in equal shares in the
names of Gregoria Ramos and her daughter, Granada Ramos, as shown below (Exh. 8):

Original
Lot No Registration Present title Date
1370 Aug. 29, 1923 TCT No. RT-2238 Dec. 1, 1933
1371 — do — TCT No. RT-2235 — do —
1372 — do — TCT No. RT-2237 — do —
1375 — do — TCT No. RT-2236 — do —
2158 Sept. 10, 1923 TCT No. RT-2230 — do —
2159 — do — TCT No. RT-2233 — do —
2161 — do — TCT No. RT-2232 — do —
2163 — do — TCT No. RT-2231 — do —

Plaintiffs' version of the case. — A summary of plaintiffs' oral evidence is found in pages 4 to 13 of their well-written brief. It
is reproduced below (omitting the citations of the transcript):

Martin Ramos, who died in 1906 in the municipality of Himamaylan, Negros Occidental, left considerable real estate, the
most valuable of which were the Hacienda Calaza and Hacienda Ylaya, both located in Himamaylay, Negros
Occidental. Hacienda Calaza consists of sugar land, palay land and nipa groves with an area of 400 hectares and with
a sugar quota allotment of 10,000 piculs, more or less, and having as its present actual value P500,000 more or less.

"All the children of martin Ramos, whether legitimate or acknowledged natural, lived together in Hacienda Ylaya during
his lifetime and were under his care. Even defendant Gregoria Ramos, widow of Jose Ramos, admitted that she dealt
with plaintiffs as family relations, especially seeing them during Sundays in church as they lived with their father, and
maintained close and harmonious relations with them even after the death of their father. All said children continued to
live in said house of their father for years even after his death.

"Upon their father's death, his properties were left under the administration of Rafael Ramos, the younger brother of their
father and their uncle, Rafael Ramos continued to administer those properties of their father, giving plaintiffs money as
their shares of the produce of said properties but plaintiffs not receiving any property or piece of land however, until 1913
when Rafael Ramos gathered all the heirs, including plaintiffs, in the house of their father, saying he would return the
administration of the properties. He turned over Hacienda Ylaya to Agustin Ramos and Hacienda Calaza to Jose Ramos.

"All said children, defendants and plaintiffs alike, continued to live in the same house of their father in Hacienda Ylaya,
now under the support of Agustin Ramos. Plaintiff Modesto Ramos who 'could understand Spanish a little', only left said
house in 1911; plaintiff Manuel stayed there for one year and lived later with Jose Ramos for four years. Plaintiff Maria
Ramos, who herself testified that she has 'a very low educational attainment', lived there until 1916 when she got
married. Plaintiff Emiliano lived there with Agustin, helping him supervise the work in Hacienda Ylaya, until he transferred
to Hacienda Calaza where he helped Jose Ramos supervise the work in said hacienda.

"Agustin Ramos supported plaintiffs, getting the money from the produce of Hacienda Ylaya, the only source of income
of Agustin coming from said hacienda. Plaintiffs asked money from Agustin pertaining to their share in the produce of
Hacienda Ylaya and received varied amounts, sometimes around P50 at a time, getting more when needed, and
receiving P90 or P100 more or less a year.

"Jose Ramos gave plaintiffs also money as their shares from the products of Hacienda Calaza. Even Maria Ramos who
upon her marriage in 1916 lived in La Cartota with her husband was given money whenever she went to Himamaylan.
Plaintiffs received varied amounts or sums of money from Jose as their shares in the produce of Hacienda Ylaya more or
less about P100 a year, mostly during the milling season every year while he was alive up to his death in 1930. Emiliano
Ramos, now deceased and substituted by his widow, Rosario Tragico, moreover, received P300 from Jose Ramos in 1918
taken from the products of Hacienda Calaza when he went to the United States to study.
"Upon Jose Ramos death his widow Gregoria Ramos, herself, his first cousin, their father and mother, respectively being
brother and sister, continued to give plaintiffs money pertaining to their shares in the products of Hacienda Calaza. She
however stopped doing so in 1951, telling them that the lessee Estanislao Lacson was not able to pay the lease rental.

"There was never any accounting made to plaintiffs by Jose Ramos, plaintiffs reposing confidence in their elder brother,
Nor was any accounting made by his widow, defendant Gregoria Ramos, upon his death, plaintiff Manuel Ramos
moreover having confidence in her.

"Before the survey of these properties by the Cadastral Court, plaintiff Modesto Ramos was informed by the Surveying
Department that they were going to survey these properties. Plaintiffs then went to see their elder brother Jose to inform
him that there was a card issued to them regarding the survey and gave him 'a free hand to do something as an
administrator'. They therefore did not intervene in the said cadastral proceedings because they were promised that
they(defendants Jose and Agustin) would 'be the ones responsible to have it registered in the names of the heirs'.
Plaintiffs did not file and cadastral answer because defendants Jose and Agustin told them 'not to worry about it as they
have to answer for all the heirs'. Plaintiffs were 'assured' by defendants brothers.

"Plaintiffs did not know that intestate proceedings were instituted for the distribution of the estate of their father. Neither
did plaintiffs Modesto, Manuel, Emiliano and Maria know (that) Timoteo Zayco, their uncle and brother-in-law of
defendant widow Gregoria was appointed their guardian. There was an express admission by defendant Gregoria
Ramos that Timoteo Zayco was her brother-in-law.

"Plaintiffs did not know of any proceedings of Civil Case No. 217. They never received any sum of money in cash — the
alleged insignificant sum of P1,785.35 each — from said alleged guardian as their supposed share in the estate of their
father under any alleged project of partition.

"Neither did Atanacia Ramos nor her husband, Nestor Olmedo, sign any project of partition or any receipt of share
in(the) inheritance of Martin Ramos in cash. Nestor Olmedo did not sign any receipt allegedly containing the signatures
of Atanacia assisted by himself as husband, Timoteo Ramos, and Timoteo Zayco as guardian ad-litem of the minors
Modesto, Manual, Federico, Emiliano and Maria. As a matter of fact, plaintiffs Modesto and Manuel were in 1913 no
longer minors at the time of the alleged project of partition of the estate being approved, both being of age at that
time. No guardian could in law act on their behalf.

"Plaintiffs only discovered later on that the property administered by their elder brother Jose had a Torrens Title in the
name of his widow, Gregoria, and daughter, Candida, when plaintiff Modesto's children insisted and inquired from the
Register of Deeds sometime in 1956 or 1957. Plaintiffs did not intervene in the intestate proceedings for (the) settlement of
the estate of their brother Jose as they did not know of it.

"Plaintiffs were thus constrained to bring the present suit before the Court of First Instance of Negros Occidental on
September 5, 1957 seeking for the reconveyance in their favor by defendants Gregoria and daughter Candida and
husband Jose Bayot of their corresponding participations in said parcels of land in accordance with article 840 of the old
Civil Code and attorney's fees in the sum of P10,000 plus costs and expenses of this litigation". (4-13 Brief).

Proceedings in the lower court. — The instant action was filed on September 5, 1957 against defendants Agustin Ramos,
Granada Ramos and the heirs of Jose Ramos for the purpose of securing a reconveyance of the supposed
participations of plaintiffs Atanacia, Emiliano, Manuel, Maria and Modesto, all surnamed Ramos, in the aforementioned
eight (8) lots which apparently form part of Hacienda Calaza. (The plaintiffs did not specify that the said shares would
amount to one-sixth of the said eight cadastral lots. One-sixth represented the one-third free portion of Martin Ramos'
one-half shares in the said lots. And the said one-sixth portion was the share of his seven legally acknowledged natural
children under article 840 of the old Civil Code).

The action is really directed against the heirs of Jose Ramos, namely, his wife Gregoria and his daughter Candida in
whose names the said eight lots are now registered as shown in Exhibit 8 and in page 4 hereof. It is predicated on the
theory that plaintiffs' shares were held in trust by the defendants. No deed of trust was alleged and proven.

The defendants denied the existence of a trust. They pleaded the defenses of (a) release of claim as shown in the
project of partition, the decision and the receipt of shares forming part of the expediente of Civil Case No. 217 (Exh. 3, 4
and 6), (b) lack of cause of action, (c) res judicata and (d) prescription.

Timoteo Ramos, who was joined as a co-plaintiff, manifested that he had already received his own share of the
inheritance, that he did not authorized anyone to include him as a plaintiff and that he did not want to be a party in this
case. He moved that his name be stricken out of the complaint (44-45 Rec. or Appeal; Exh. 7).
Emiliano Ramos, who died in 1958, was substituted by his widow and their ten children (Exh. E, 61-64 Rec. on Appeal).The
complaint is silent as to the fate of Federico Ramos, the seventh natural child of Martin Ramos.

As already noted, after trial, the lower court dismissed the complaint on the ground of res judicata. The plaintiffs as well
as the defendants appealed.

Plaintiffs' appeal. — The plaintiffs contend that the trial court erred (1) in dismissing their complaint, (2) in denying their
right to share in their father's estate and (3) in holding that the action was barred by res judicata or the prior judgment in
the special proceeding for the settlement of Martin Ramos' intestate estate, Civil Case No. 217 of the Court of First
Instance of Negros Occidental, Abintesdado de los finados esposos Martin Ramos y Candida Tanate(Exh. F to J and 1 to
6).

The plaintiffs vigorously press on this Court their theory that the plaintiffs, as acknowledged natural children, were
grievously prejudiced by the partition and that the doctrine of res judicata should not bar their action.

A preliminary issue, which should first be resolved, is the correctness of the trial court's "inexorable conclusion" that the
plaintiffs were the legally acknowledged natural children of Martin Ramos. Plaintiffs' action is anchored on that premise.

The defendants failed to impugn that conclusion in their appellants' brief. Not having done so, it may be regarded as
conclusive against them. That is the proposition advanced by the plaintiffs in their reply-brief.

The defendants in their appellees' brief assail that conclusion. It is true that an appellee may make an assignment of error
in his brief but that rule refers to an appellee who is not an appellant (Saenz vs. Mitchell, 60 Phil. 69, 80). However, since
an appellee is allowed to point out the errors committed by the trial court against him (Relativo vs. Castro, 76 Phil. 563;
Lucero vs. De Guzman, 45 Phil. 852), defendants' contention that the plaintiffs were not legally acknowledged natural
children may just as well be passed upon.

The defendants, in contesting the lower court's finding that the plaintiffs were legally acknowledged children, assume
that the legitimate children committed a mistake in conferring successional rights on the plaintiffs.

We hold that the trial court's conclusion is correct. It is true that the acknowledgment of the plaintiffs is not evidenced by
a record of birth, will or other public document (Art. 131, Old Civil Code). But the record of Civil Case No. 217, which is
relied upon by the defendants to support their defense of res judicata, indubitably shows that the plaintiffs were treated
as acknowledged natural children of Martin Ramos. The reasonable inference is that they were in the continuous
possession of the status of natural children of Martin Ramos, as evidenced by his direct acts and the acts of his family
(Art. 135, Old Civil Code).

Unacknowledged natural children have no rights whatsoever(Buenaventura vs. Urbano, 5 Phil. 1; Siguiong vs. Siguiong, 8
Phil. 5, 11; Infante vs. Figueras, 4 Phil. 738; Crisolo vs. Macadaeg, 94 Phil. 862). The fact that the plaintiffs, as natural
children of Martin Ramos, received shares in his estate implies that they were acknowledged. Obviously, defendants
Agustin Ramos and Granada Ramos and the late Jose Ramos accorded successional rights to the plaintiffs because
martin Ramos and members of his family had treated them as his children. Presumably, that fact was well-known in the
community. Under the circumstances, Agustin Ramos and Granada Ramos and the heirs of Jose Ramos are estopped
from attacking plaintiffs' status as acknowledged natural children (See Arts. 283[4] and 2266[3], New Civil Code).

Even the lower court, after treating the plaintiffs in 1913 in the intestate proceeding as acknowledged natural children,
had no choice but to reaffirm that same holding in its 1961 decision in this case.

The crucial issue is prescription. With it the question of res judicata and the existence of a trust are inextricably
interwoven. Inasmuch as trust is the main thrust of plaintiffs' action, it will be useful to make a brief disgression of the
nature of trusts (fideicomisos) and on the availability of prescription and laches to bar the action for reconveyance of
property allegedly held in trust.

"In its technical legal sense, a trust is defined as the right, enforceable solely in equity, to the beneficial enjoyment of
property, the legal title to which is vested in another, but the words 'trust' is frequently employed to indicate duties,
relations, and responsibilities which are not strictly technical trusts." (89 C.J.S. 712).

"A person who establishes a trust is called the trust or; one in whom confidence is reposed is known as the trustee; and
the person for whose benefit the trust has been created is referred to as the beneficiary" (Art. 1440, Civil Code). There is a
fiduciary relation between the trustee and the cestui que trust as regards certain property, real, personal, money or
choses inaction (Pacheco vs. Arro, 85 Phil. 505).

"Trusts are either express or implied. Express trusts are created by the intention of the trust or of the parties. Implied trusts
come into being by operation of law." (Art. 1144, Civil Code). "No express trusts concerning an immovable or any interest
therein may be proven by oral evidence. An implied trust may be proven by oral evidence" (Ibid, Arts. 1443 and 1457).

"No particular words are required for the creation of an express trust, it being sufficient that a trust is clearly intended"
(Ibid, Art. 1444; Tuason de Perez vs. Caluag, 96 Phil. 981; Julio vs. Dalandan, L-19012, October 30, 1967, 21 SCRA 543, 546).
"Express trusts are those which are created by the direct and positive acts of the parties, by some writing or deed, or will,
or by words either expressly or impliedly evincing an intention to create a trust" (89 C.J.S. 722).

"Implied trust are those which, without being expressed, are deducible from the nature of the transaction as matters of
intent, or which are super induced on the transaction by operation of law as matters of equity, independently of the
particular intention of the parties" (89 C.J.S. 724). They are ordinarily subdivided into resulting and constructive trusts (89
C.J.S. 722).

"A resulting trust is broadly defined as a trust which is raised or created by the act or construction of law, but in its more
restricted sense it is a trust raised by implication of law and presumed always to have been contemplated by the parties,
the intention as to which is to be found in the nature of their transaction, but not expressed in the deed or instrument of
conveyance" (89 C.J.S. 725). Examples of resulting trusts are found in article 1448 to 1455 of the Civil Code. See Padilla vs.
Court of Appeals, L-31569, September 28, 1973, 53 SCRA 168,179).

On the other hand, a constructive trust is a trust "raised by construction of law, or arising by operation of law". In a more
restricted sense and as contra distinguished from a resulting trust, a constructive trust is "a trust not created by any words,
either expressly or impliedly evincing a direct intention to create a trust, but by the construction of equity in order to
satisfy the demands of justice. It does not arise by agreement or intention but by operation of law." (89 C.J.S. 7260727). "If
a person obtains legal title to property by fraud or concealment, courts of equity will impress upon the title a so-called
constructive trust in favor of the defrauded party." A constructive trust is not a trust in the technical sense(Gayondato vs.
Treasurer of the P.I., 49 Phil. 244; See Art. 1456, Civil Code).

There is a rule that a trustee cannot acquire by prescription the ownership of property entrusted to him (Palma vs.
Cristobal, 77 Phil. 712), or that an action to compel a trustee to convey property registered in his name in trust for the
benefit of the cestui qui trust does not prescribed (Manalang vs. Canlas, 94 Phil. 776; Cristobal vs. Gomez, 50 Phil. 810), or
that the defense of prescription cannot be set up in an action to recover property held by a person in trust for the
benefit of another(Sevilla vs. De los Angeles, 97 Phil. 875), or that property held in trust can be recovered by the
beneficiary regardless of the lapse of time (Marabilles vs. Quito, 100 Phil. 64; Bancairen vs. Diones, 98 Phil. 122, 126 Juan
vs. Zuniga, 62 O.g. 1351; 4 SCRA 1221; Jacinto, L-17957, May 31, 1962. See Tamayo vs. Callejo, 147 Phil. 31, 37).

That rule applies squarely to express trusts. The basis of the rule is that the possession of a trustee is not adverse. Not being
adverse, he does not acquire by prescription the property held in trust. Thus, section 38 of Act 190 provides that the law
of prescription does not apply "in the case of a continuing and subsisting trust" (Diaz vs. Gorricho and Aguado, 103 Phil.
261,266; Laguna vs. Levantino, 71 Phil. 566; Sumira vs. Vistan, 74 Phil. 138; Golfeo vs. Court of Appeals, 63 O.G. 4895, 12
SCRA 199; Caladiao vs. Santos, 63 O.G. 1956, 10 SCRA 691).

The rule of imprescriptibility of the action to recover property held in trust may possibly apply to resulting trusts as long as
the trustee has not repudiated the trust (Heirs of Candelaria vs. Romero, 109 Phil. 500, 502-3; Martinez vs. Grano, 42 Phil.
35; Buencamino vs. Matias, 63 O. G. 11033, 16 SCRA 849).

The rule of imprescriptibility was misapplied to constructive trusts (Geronimo and Isidoro vs. Nava and Aquino, 105 Phil.
145, 153. Compare with Cuison vs. Fernandez and Bengzon, 105 Phil. 135, 139; De Pasion vs. De Pasion, 112 Phil. 403, 407).

Acquisitive prescription may bar the action of the beneficiary against the trustee in an express trust for the recovery of
the property held in trust where (a) the trustee has performed unequivocal acts of repudiation amounting to an ouster of
the cestui qui trust; (b) such positive acts of repudiation have been made known to the cestui qui trustand(c) the
evidence thereon is clear and conclusive (Laguna vs. Levantino, supra; Salinas vs. Tuason, 55 Phil. 729. Compare with the
rule regarding co-owners found in the last paragraph of article 494, Civil Code; Casanas vs. Rosello, 50 Phil. 97; Gerona
vs. De Guzman, L-19060, May 29, 1964, 11 SCRA 153,157).

With respect to constructive trusts, the rule is different. The prescriptibility of an action for reconveyance based on
constructive trust is now settled (Alzona vs. Capunitan, L-10228, February 28, 1962, 4 SCRA 450; Gerona vs. De
Guzman, supra; Claridad vs. Henares, 97 Phil. 973; Gonzales vs. Jimenez, L-19073, January 30, 1965, 13 SCRA 80; Bonaga
vs. Soler, 112 Phil. 651; J. M. Tuason & Co., vs. Magdangal, L-15539, January 30, 1962, 4 SCRA 84). Prescription may
supervene in an implied trust (Bueno vs. Reyes, L-22587, April 28, 1969, 27 SCRA 1179; Fabian vs. Fabian, L-20449, January
29, 1968; Jacinto vs. Jacinto, L-17957, May 31, 1962, 5 SCRA 371).

And whether the trust is resulting or constructive, its enforcement may be barred by laches (90 C.J.S. 887-889; 54 Am Jur.
449-450; Diaz vs. Gorricho and Aguado, supra. Compare with Mejia vs. Gampona, 100 Phil. 277).

The plaintiffs did not prove any express trust in this case. The expediente of the intestate proceeding, Civil Case No. 217,
particularly the project of partition, the decision and the manifestation as to the receipt of shares (Exh. 3, 4 and
6)negatives the existence of an express trust. Those public documents prove that the estate of Martin Ramos was settled
in that proceeding and that adjudications were made to his seven natural children. A trust must be proven by clear,
satisfactory, and convincing evidence. It cannot rest on vague and uncertain evidence or on loose, equivocal or
indefinite declarations (De Leon vs. Peckson, 62 O. G. 994). As already noted, an express trust cannot be proven by parol
evidence(Pascual vs. Meneses, L-18838, May 25, 1967, 20 SCRA 219, 228; Cuaycong vs. Cuaycong, L-21616, December
11, 1967, 21 SCRA 1192).

Neither have the plaintiffs specified the kind of implied trust contemplated in their action. We have stated that whether it
is a resulting or constructive trust, its enforcement may be barred by laches.

In the cadastral proceedings, which supervened after the closure of the intestate proceeding, the eight lots involved
herein were claimed by the spouses Jose Ramos and Gregoria T. Ramos to the exclusion of the plaintiffs (Exh. 8 to 19).
After the death of Jose Ramos, the said lots were adjudicated to his widow and daughter (Exh. 8). In 1932 Gregoria T.
Ramos and Candida Ramos leased the said lots to Felix Yulo (Exh. 20).Yulo in 1934 transferred his lease rights over
Hacienda Calazato Juan S. Bonin and Nestor Olmedo, the husband of plaintiff Atanacia Ramos (Exh. 22). Bonin and
Olmedo in 1935 sold their lease rights over Hacienda Calaza to Jesus S. Consing (Exh. 23).

Those transactions prove that the heirs of Jose Ramos had repudiated any trust which was supposedly constituted over
Hacienda Calaza in favor of the plaintiffs.

Under Act 190, whose statute of limitations applies to this case (Art. 116, Civil Code), the longest period of extinctive
prescription was only ten years Diaz vs. Gorricho and Aguado, supra.).

Atanacia, Modesto and Manuel, all surnamed Ramos, were already of age in 1914 (Exh. A to D). From that year, they
could have brought the action to annul the partition. Maria Ramos and Emiliano Ramos were both born in 1896. They
reached the age of twenty-one years in 1917. They could have brought the action from that year.

The instant action was filed only in 1957. As to Atanacia, Modesto and Manuel, the action was filed forty-three years
after it accrued and, as to Maria and Emiliano, the action was filed forty years after it accrued. The delay was
inexcusable. The instant action is unquestionably barred by prescription and res judicata.

This case is similar to Go Chi Gun vs. Co, 96 Phil. 622, where a partition judicially approved in 1916 was sought to be
annulled in 1948 on the ground of fraud. it was contended that there was fraud because the real properties of the
decedent were all adjudicated to the eldest son, while the two daughters, who were minors, were given only cash and
shares of stocks. This Court, in upholding the petition, said:

"In any case, the partition was given the stamp of judicial approval, and as a matter of principle and policy we should
sustain its regularity, in the absence of such cause or reason that the law itself fixes as a ground for invalidity" (on page
634). "As the administration proceedings ended in the year 1916, the guardianship proceedings in 1931, and the action
was brought only in the year 1948, more than 32 years from the time of the distribution and 27 years from the termination
of guardianship proceedings", the action was barred by laches (on page 637). See Lopez vs. Gonzaga, L-18788, January
31, 1964, 10 SCRA 167; Cuaycong vs. Cuaycong, supra).

The leading case of Severino vs. Severino, 44 Phil. 343, repeatedly cited by the plaintiffs, does not involve any issue of
prescription or laches. In that case, the action for reconveyance was seasonably brought. The alleged trustee was an
overseer who secured title in his name for the land of his brother which was under his administration. He could not have
acquired it by prescription because his possession was not adverse. On certain occasions, he had admitted that he was
merely the administrator of the land and not its true owner.
More in point is the Cuaycong case, supra, where the action for the reconveyance of property held in trust accrued in
1936 and it was filed only in 1961 or after the lapse of twenty-five years. That action was barred.

On its face, the partition agreement was theoretically correct since the seven natural children were given their full
legitime, which under article 942 of the old Civil Code was their share as legal heirs. But is was possible that the lands
were undervalued or were not properly appraised at their fair market value and, therefore, the natural children were
short-changed in the computation of the value of their shares which the legitimate children could pay in case as
allowed in article 840 of the old Civil Code. It is of common knowledge that anyone who received lands in the partition
of a decedent's estate would ultimately have an advantage over the one who received cash because lands increase in
value as time goes by while money is easily spent.

As pointed out in the statement if facts, it was anomalous that the manifestation, evidencing the alleged receipt by the
natural children of their shares, should recite that they received their shares from the administrator, when in the project of
partition itself, as approved by the probate court (Exh. 3 to 6),it was stipulated that Jose Ramos and Agustin Ramos
would be the ones to pay the cash settlement for their shares. No receipts were submitted to the court to prove that
Jose Ramos and Agustin Ramos paid to the plaintiffs the cash adjudicated to them in the project of partition.

The plaintiffs pinpoint certain alleged irregularities in the intestate proceeding. The aver that Modesto Ramos and
Manuel Ramos were already of age in 1913 and could not therefore have been represented by Timoteo Zayco as
guardian ad litem and that, consequently, the two were denied due process. The plaintiffs accused Zayco of not having
competently protected the interests of the minors, Maria Ramos and Emiliano Ramos. The allege that Atanacia Ramos
signed the project of partition and the "receipt" of share (Exh. 3 and 6)without understanding those documents which
were in Spanish. They assert that the lopsided and defective partition was not implemented.

In short, the plaintiffs contend that the partition was not binding on them (Note that their brother, Timoteo, considered
himself bound by that partition). They ask that the case be remanded to the lower court for the determination and
adjudication of their rightful shares.

All those contentions would have a semblance of cogency and would deserve serious consideration if the plaintiffs had
not slept on their rights. They allowed more than forty years to elapse before they woke up and complained that they
were much aggrieved by the partition. Under the circumstances, their claims can hardly evoke judicial
compassion. Vigilantibus et non dormientibus jura subveniunt. "If eternal vigilance is the price of safety, one cannot sleep
on one's right for more than a tenth of a century and except it to be preserved in its pristine purity" (Ozaeta, J. in
Association Cooperativa de Credito Agricola de Miagao vs. Monteclaro, 74 Phil. 281, 283).

The plaintiffs have only themselves to blame if the courts at this late hour can no longer afford them relief against the
inequities allegedly vitiating the partition of their father's estate.

In connection with the res judicata aspect of the case, it maybe clarified that in the settlement of a decedent's estate it
is not de rigueur for the heirs to sign a partition agreement. "It is the judicial decree of distribution, once final, that vests
title in the distributees" (Reyes vs. Barretto-Datu, L-17818, January 25,1967, 19 SCRA 85, 91) which in this case was Judge
Campbell's decision (Exh. 4).

A judgment in an intestate proceeding may be considered asa judgment in rem (Varela vs. Villanueva, 95 Phil. 248, 267.
See Sec. 49[a], Rule 39, Rules of Court). There is a ruling that "if that decree of distribution was erroneous or not in
conformity with law or the testament, the same should have been corrected by opportune appeal; but once it had
become final; its binding effect is like that of any other judgment in rem, unless properly set aside for lack of jurisdiction or
fraud". A partition approved by the court in 1939 could no longer be contested in 1956 on the ground of fraud. The
action had already prescribed. "The fact that one of the distributees was a minor at the time the court issued the decree
of distribution does not imply that the court had no jurisdiction to enter the decree of distribution." (Reyes vs. Barretto-
Datu, supra, citing Ramos vs. Ortuzar, 89 Phil. 742). "A final order of distribution of the estate of a deceased person vests
the title to the land of the estate in the distributes" (Syllabus, Santos vs. Roman Catholic Bishop of Nueva Caceres, 45 Phil.
895, 900).

Parenthetically, it may be noted that the filing of the instant case long after the death of Jose Ramos and other persons
involved in the intestate proceeding renders it difficult to determine with certitude whether the plaintiffs had really been
defrauded. What Justice Street said in Sinco vs. Longa, 51 Phil. 507, 518-9 is relevant to this case.

In passing upon controversies of this character experience teaches the danger of accepting lightly
charged of fraud made many years after the transaction in question was accomplished, when death
may have sealed the lips of the principal actors and changes effected by time may have given a
 totally different color to the cause of controversy. In the case before us the guardia, Emilio Tevez, is
dead. The same is true of Trinidad Diago, mother of the defendant Agueda Longa; while Agapito
Longa is now living in Spain. It will be borne in mind also that, insofar as oral proof is concerned, the
charge of fraud rests principally on the testimony of a single witness who, if fraud was committed, was
a participant therein and who naturally would now be anxious, so far as practicable, to put the blame
on others. In this connection it is well to bear in mind the following impressive language of Mr. Justice
Story:

... But length of time necessarily obscures all human evidence; and as it thus removed from the parties
all the immediate means to verify the nature of the original transactions, it operates by way of
presumption, in favor of innocence, and against imputation of fraud. It would be unreasonable, after
a great length of time, to require exact proof of all the minute circumstances of any transaction, or to
expect a satisfactory explanation of every difficulty, real or apparent with which it may be
incumbered. The most that can fairly be expected, in such cases, if the parties are living, from the
frailty of memory, and human infirmity, is, that the material facts can be given with certainty to a
common intent; and, if the parties are dead, and the cases rest in confidence, and in parol
agreements, the most that we can hope is to arrive at probable conjectures, and to substitute
general presumption of law, for exact knowledge. Fraud, or breach of trust, ought not lightly to be
imputed to the living, for, the legal presumption is the other way; as to the dead, are not here to
answer for themselves, it would be the height of injustice and cruelty, to disturb their ashes, and
violate the sanctity of the grave, unless the evidence of fraud be clear, beyond a reasonable doubt
(Prevost vs. Gratz, 6 Wheat. [U.S.],481, 498).

Defendants' appeal. — Defendants Granada Ramos, Gregoria T. Ramos, Candida Ramos, Jose Bayor and Agustin
Ramos appealed from the lower court's decision insofar as it ignored their counterclaim for P50,000 as moral damages
and P10,000 as attorney's fees. In their brief the claim for attorney's fees was increased to P20,000. They prayed for
exemplary damages.

The defendants argue that plaintiffs' action was baseless and was filed in gross and evident bad faith. It is alleged that
the action caused defendants mental anguish, wounded feelings, moral shock and serious anxiety and compelled them
to hire the service of counsel and incur litigation expenses.

Articles 2219 and 2220 (also 1764 and 2206) of the Civil Code indicate the cases where morel damages may be
recovered. The instant litigation does not fall within any of the enumerated cases. Nor can it be regarded as analogous
to any of the cases mentioned in those articles. Hence, defendants' claim for moral damages cannot be sustained
(Ventanilla vs. Centeno, 110 Phil. 811, 814). The worries and anxiety of a defendant in a litigation that was not maliciously
instituted are not the moral damages contemplated in the law (Solis & Yarisantos vs. Salvador, L-17022, August 14, 1965,
14 SCRA 887).

"The adverse result of an action does not per se make the act wrongful and subject the actor to the payment of moral
damages. The law could not have meant to impose a penalty on the right to litigate, such right is so precious that moral
damages may not be charged on those who may exercise it erroneously." (Barretto vs. Arevalo, 99 Phil. 771, 779).

On the other hand, the award of reasonable attorney's fees is governed by article 2208 of the Civil Code which lays
down the general rule that, in the absence of stipulation, attorney's fees and litigation expenses cannot be recovered.
Article 2208 specifies eleven instances where attorney's fees may be recovered. The defendants did not point out the
specific provision of article 2208 on which their counterclaim may be predicated.

What may possibly apply to defendants' counterclaim are paragraphs four and eleven which respectively provide that
attorney's fees may be recovered "in case of a clearly unfounded civil action or proceeding against the
plaintiff"(defendant is a plaintiff in his counterclaim) or "in any other cases where the court deems it just and equitable"
that attorney's fees should be awarded.

We hold that, notwithstanding the dismissal of the action, no attorney's fees should be granted to the defendants. Under
the facts of the case, it cannot be asseverated with dogmatic finality that plaintiffs' action was manifestly unfounded or
was maliciously filed to harass and embarrass the defendants. All indications point to the fact that the plaintiffs honestly
thought that they had a good cause of action. They acted in evident good faith. (See Herrera vs. Luy Kim Guan, 110 Phil.
1020, 1028; Rizal Surety & Insurance Co., Inc. vs. Court of Appeals, L-23729, May 16, 1967, 20 SCRA 61).

Inasmuch as some of the plaintiffs were minors when the partition of their father's landed estate was made, and
considering that they were not allotted even a few square meters out of the hundreds of hectares of lands, which
belonged to him, they had reason to feel aggrieved and to seek redress for their grievances. Those circumstances as
well as the marked contrast between their indigence and the affluence of the heirs of their half-brother, Jose Ramos,
might have impelled them to ask the courts to reexamine the partition of their father's estate.

It is not sound public policy to set a premium on the right to litigate. An adverse decision does not ipso facto justify the
award of attorney's fees to the winning party (Herrera vs. Luy Kim, supra; Heirs of Justiva vs. Gustilo, 61 O. G. 6959. Cf.
Lazatin vs. Twano and Castro, 112 Phil. 733, 741).

Since no compensatory and moral damages have been awarded in this case, defendants' claim for exemplary
damages, which was ventilated for the first time in their appellants' brief, may be as an afterthought, cannot be
granted(Art. 2229, Civil Code).

WHEREFORE, the trial court's judgment is affirmed with the clarification that defendants' counterclaim is dismissed. No
costs.

SO ORDERED.

Makalintal, C.J., Barredo, Antonio and Fernandez, JJ., concur.

Fernando, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-55538 March 15, 1982

In the Matter of the Change of Names of DIONESIO DIVINAGRACIA, JR., and BOMBI ROBERTO DIVINAGRACIA to DIONESIO
NALDOZA and BOMBI ROBERTO NALDOZA, respectively. ZOSIMA NALDOZA, as natural guardian and guardian ad litem of
said minors, petitioner-appellant,
vs.
REPUBLIC OF THE PHILIPPINES and JUDGE FERNANDO S. RUIZ of the Court of First Instance of Bohol, Branch IV, respondents-
appellees.

AQUINO, J.:

The issue in this case is whether two minors should be allowed to discontinue using their father's surname and should use
only their mother's surname.

Zosima Naldoza was married to Dionesio Divinagracia on May 30, 1970. They begot two children named Dionesio, Jr.
and Bombi Roberto who were born on October 23, 1970 and July 22, 1973, respectively.

Zosima's husband left her after she confronted him with his previous marriage with another woman. He never returned to
the conjugal abode. He allegedly swindled Congressman Maglana in the sum of P50,000.00, one Galagar in the sum of
P10,000.00 also Eloy Gallentes and other persons.

The classmates of Dionesio, Jr. and Bombi Roberto allegedly teased them about their father being a swindler. Two
criminal cases for estafa were filed in court against the father.

Desirous of obliterating any connection between her two minor children and their scapegrace father, Zosima, on August
10, 1978, filed in the Court of First Instance of Bohol a petition wherein she prayed that the surname of her two children
be changed from Divinagracia to Naldoza, her surname (Special Proceeding No. 768). After due publication and
hearing, the trial court dismissed the petition.
The trial court did not consider as sufficient grounds for change of surname the circumstances that the children's father
was a swindler, that he had abandoned them and that his marriage to Zosima was a second marriage which, however,
had not been annulled nor declared bigamous. It reasoned that the children's adoption of their mother's surname would
give a false impression of family relationship.

From that decision, Zosima Naldoza appealed to this Court under Republic Act No. 5440. Appellant's seven assignments
of error may be reduced to the question of whether there is a justification for the two children to drop their father's
surname and use their mother's surname only.

The minors Dionesio, Jr. and Bombi Roberto, who are presumably legitimate, are supposed to bear principally the
surname Divinagracia, their father's surname (Art. 364, Civil Code).

To allow them, at their mother's behest, to bear only their mother's surname (which they are entitled to use together with
their father's surname) and to discard altogether their father's surname thus removing the prima-facie evidence of their
paternal provenance or ancestry, is a serious matter in which, ordinarily, the minors and their father should be consulted.
The mother's desire should not be the sole consideration.

The change of name is allowed only when there are proper and reasonable causes for such change (Sec. 5, Rule 103,
Rules of Court). Where, as in this case, the petitioners are minors, the courts should take into account whether the
change of name would redound their welfare or would prejudice them.

Where the petitioner, a legitimate daughter of a Filipino mother and a Japanese, elected Philippine citizenship, and her
older brother and sister were using their mother's surname, and the petitioner felt embarrassed in using her Japanese
father's surname (Oshita) because of the ill-feeling harbored by some Filipinos against the Japanese, and there was no
showing that her desire to use the maternal surname (Bartolome) was motivated by any fraudulent purpose or that the
change of surname would prejudice public interest, her petition to change her surname from Oshita to Bartolome was
granted (Oshita vs. Republic, L-21180, March 31, 1967, 19 SCRA 700).

Where the petitioner's name in the civil registry is Maria Estrella Veronica Primitiva Duterte, Duterte being the surname of
her father Filomeno, who was married to her mother, Estrella Alfon, but the petitioner since infancy has used the name
Estrella S. Alfon, particularly in the school and voting records, there is reasonable ground for allowing her to change her
surname from Duterte to Alfon. Such a change would avoid confusion (Alfon vs. Republic, G.R. No. 51201, May 29,
1980,97 SCRA 858).

The instant case is easily distinguishable from the Oshita and AIfon cases where the petitioners were already of age.

We hold that the trial court did not err in denying the petition for change of name. The reasons adduced for eliminating
the father's surname are not substantial enough to justify the petition. To allow the change of surname would cause
confusion as to the minors' parentage and might create the impression that the minors are illegitimate since they would
carry the maternal surname only. That would be inconsistent with their legitimate status as indicated in their birth records
(Exh. C and D).

As was said in that In re Epstein 200 N.Y.S. 897, "the child should, and in the course of time must, know of his parentage. "
If, when he fully appreciates the circumstances and is capable of selecting a name for himself, he wants to use his
mother's surname only and to avoid using his father's surname, then he should be the one to apply for a change of
surname. See Anno., 53 ALR2d 914.

WHEREFORE, the lower court's decision is affirmed. No costs.

SO ORDERED.

Concepcion, Jr., Abad Santos, De Castro, Ericta and Escolin JJ., concur.

Separate Opinions
BARREDO, J., concurring:

At the worst, Dionesio Jr. and Bombito should be considered as natural children by legal fiction having the same status,
rights and obligations of acknowledged natural children, (Art. 29, Civil Code). among which is the right to bear the
surname of their father. (Art. 28 (1), Civil Code).

Separate Opinions

BARREDO, J., concurring:

At the worst, Dionesio Jr. and Bombito should be considered as natural children by legal fiction having the same status,
rights and obligations of acknowledged natural children, (Art. 29, Civil Code). among which is the right to bear the
surname of their father. (Art. 28 (1), Civil Code).

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18284 April 30, 1963

IN THE MATTER OF THE ADOPTION OF THE MINOR, ANA ISABEL HENRIETTE ANTONIA CONCEPCION GEORGIANA, ISABEL
VALDES JOHNSTON, petitioner-appellant,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellee.

Domingo T. Zavalla for oppositor-appellee.

LABRADOR, J.:

Appeal taken by petitioner-appellant Isabel Valdes Johnston from the decision of the Court of First Instance of Rizal
dated September 19, 1960 and its order of October 31, 1960, Hon. Andres Reyes, presiding, prescribing the use of the
surname Valdes by the adopted child instead of Valdes Johnston petitioner's married name at the time of the filing of
the petition.

On June 24, 1960, petitioner-appellant Isabel Valdes Johnston, filed a petition for the adoption of one Ana Isabel
Henriette Antonio Concepcion Georgiana, 2 years and 10 months old, then under the custody of the Hospicio de San
Jose, an orphanage situated in the city of Manila. The petition shows that petitioner-appellant is 48 years old, married to
Raymond Arthur Johnston, Filipino, residing at 12 San Lorenzo Drive, Makati, Rizal; that the couple are childless; that the
consent of the Mother Superior of the orphanage and the husband of petitioner-appellant was obtained.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this
Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this
stipulation of facts. 1äwphï1.ñët

Notice of the hearing of the petition was issued and duly published as required by law, and after hearing, the lower
court rendered a decision granting the petition, with the following dispositive part:
 IN VIEW OF THE FOREGOING, the petition is granted declaring the child Ana Isabel Henriette Antonia
Concepcion Georgiana freed from all legal obligations and obedience and maintenance with respect to its
natural parents and is, to all legal intents and purposes, the child of the petitioner, with the corresponding
change of surname VALDES, which is the surname of petitioner.

The petitioner-appellant filed a motion on October 24, 1960, praying that the surname given to the minor be "Valdes
Johnston", instead of "Valdes" only, but this motion was denied by the lower court in its order of October 31, 1960. Hence,
this appeal.

Petitioner-appellant argues that since she is now using the surname of her husband by virtue of Article 370, par. 1 of the
new Civil Code, and because that is the surname (Valdes Johnston) she used in filing the petition in the present case,
under which she testified at the time of the trial, and under which she is now known to all her relatives, friends and
acquaintances, she had to be known by her maiden surname, and the lower court should have decreed that the minor
whom she adopted should be allowed to bear the surname she is now using. She also argues that the use of the
surname "Valdes" by the adopted child, as prescribed by the lower court, will create the impression that she is the
illegitimate child of petitioner-appellant begotten before her marriage, a situation which is humiliating to both adopter
and adopted.

The Solicitor General in reply argues that while it is true that a married woman is permitted to add to her surname her
husband's surname, the fact remains that appellant's surname is Valdes and not Johnston; that a married woman has a
surname of her own to which may be added her husband's surname if she so chooses; that if the minor be permitted to
use the surname Valdes Johnston, much confusion would result because the public would be misled into believing that
she was adopted by appellant's husband also, which is not true in this case.

We agree with the decision of the lower court authorizing or prescribing the use of the surname Valdes by the adopted
child. The provision of law (Art. 341, par. 4, Civil Code) which entitles the adopted minor to the use of the adopter's
surname, refers to the adopter's own surname and not to her surname acquired by virtue of marriage. Petitioner-
appellant's real surname is Valdes and not Johnston, and as she made the adoption singly without the concurrence of
her husband, and not as a married woman, her name as adopter was her maiden name. The adoption created a
personal relationship between the adopter and the adopted, and the consent of Raymond Johnston, Isabel Valdes'
husband, to the adoption by her individually, did not have the effect of making him an adopting father, so as to entitle
the child to the use of Johnston's own surname.

Since adoption gives the person adopted the same rights and duties as if he were a legitimate child of the adopter (Art.
341, par. 1, Civil Code), much confusion would indeed result, as correctly pointed out by the Solicitor General, if the
minor child herein were allowed to use the surname of the spouse who did not join in the adoption.

For one thing, to allow the minor to adopt the surname of the husband of the adopter, would mislead the public into
believing that he had also been adopted by the husband, which is not the case. And when later, questions of
successional rights arise, the husband's consent to the adoption might be presented to prove that he had actually joined
in the adoption.

It is to forestall befuddling situations pointed out above and other possible confusing situations that may arise in the
future, that this Court is inclined to apply strictly the provision of the Civil Code to the effect that an adopted child use
the surname of the adopter himself or herself, and not that which is acquired by marriage.

FOR ALL THE FOREGOING, the order of the court below prescribing the use of the surname "Valdes" by the adopted
minor Ana Isabel Henriette Antonio Concepcion Georgiana, is hereby affirmed. Without costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
Padilla, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION
G.R. No. L-32054 May 15, 1974

TERESITA LLANETA (known also as TERESITA LLANETA FERRER and TERESITA FERRER), petitioner,
vs.
The Honorable CORAZON JULIANO AGRAVA, as Presiding Judge of the Juvenile and Domestic Relations Court of
Manila, respondent.

Pascual G. Mier for petitioner.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L. Pronove, Jr. and Trial Attorney
Quirino B. Maglente, Jr. for respondent.

CASTRO, J.:p

From the denial by the respondent Juvenile and Domestic Relations Court of Manila, in its special proceeding H-00237, of
her petition for change of name, Teresita Llaneta has come to this Court on appeal by certiorari.

Teresita's mother, one Atanacia Llaneta, was once married to Serafin Ferrer with whom she had but one child named
Victoriano Ferrer. In 1942 Serafin Ferrer died, and about four years later Atanacia had relations with another man out of
which Teresita was born. Shortly after Teresita's birth, Atanacia brought her and Victoriano to Manila where all of them
lived with Atanacia's mother-in-law, Victoria vda. de Ferrer. Teresita was raised in the household of the Ferrer's, using the
surname of Ferrer in all her dealings and throughout her schooling. When she was about twenty years old, she applied for
a copy of her birth certificate in Irosin, Sorsogon, where she was born, as she was required to present it in connection with
a scholarship granted to her by the Catholic Charities. It was then that she discovered that her registered surname is
Llaneta — not Ferrer — and that she is the illegitimate child of Atanacia and an unknown father.

On the ground that her use thenceforth of the surname Llaneta, instead of Ferrer which she had been using since she
acquired reason, would cause untold difficulties and confusion, Teresita petitioned the court below on March 18, 1969
for change of her name from Teresita Llaneta to Teresita Llaneta Ferrer. After trial duly had, the respondent judge denied
her petition; hence the present recourse.

The petitioner has established that she has been using the surname Ferrer for as long as she can remember; that all her
records, in school and elsewhere, put her name down as Teresita Ferrer; that her friends and associates know her only as
Teresita Ferrer; and that even the late Serafin Ferrer's nearest of kin (who apparently have kept Teresita's illegitimacy a
secret from her) have tolerated and still approve of her use of the surname Ferrer. Indeed, a sudden shift at this time by
the petitioner to the name Teresita Llaneta (in order to conform to that appearing in her birth certificate) would result in
confusion among the persons and entities she deals with and entail endless and vexatious explanations of the
circumstances of her new surname.1 In her official dealings, this would likewise mean a lifelong fending with the
necessary affidavits. Moreover, it is a salutary law that would allow Teresita, inspite of her illegitimate birth, to carry on in
society without her unfortunate status being bandied about at every turn.2

The respondent court places reliance on the doctrine, expounded in three decisions of this Court,3 that disallows such
change of name as would give the false impression of family relationship. The principle remains valid but only to the
extent that the proposed change of name would in great probability cause prejudice or future mischief to the family
whose surname it is that is involved or to the community in general. In the case at bar, however, the late Serafin Ferrer's
widowed mother, Victoria, and his two remaining brothers, Nehemias and Ruben, have come forward in earnest support
of the petition. Adequate publication of the proceeding has not elicited the slightest opposition from the relatives and
friends of the late Serafin Ferrer. Clearances from various Government agencies show that Teresita has a spotless record.
And the State (represented by the Solicitor General's Office), which has an interest in the name borne by every citizen
within its realm for purposes of identification, interposed no opposition at the trial after a searching cross-examination, of
Teresita and her witnesses. Whether the late Serafin Ferrer, who died some five years before Teresita was born, would
have consented or objected to her use of his surname is open to speculation. One thing, however, is beyond cavil: those
living who possess the right of action to prevent the surname Ferrer from being smeared are proud to share it with her.
ACCORDINGLY, the judgment a quo is reversed, and the petition of Teresita Llaneta for change of her name to Teresita
Llaneta Ferrer is hereby granted. Let a copy of this decision be forwarded to the civil registrar of Irosin, Sorsogon, for this
information and proper action. No costs.

Makalintal, C.J., Teehankee, Esguerra and Muñoz Palma, JJ., concur.

Makasiar, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-41427 June 10, 1988

CONSTANCIA C. TOLENTINO, petitioner,

vs.
COURT OF APPEALS and CONSUELO DAVID, respondents.

GUTIERREZ, JR., J.:

The issue in this petition for review on certiorari is whether or not a woman who has been legally divorced from her
husband may be enjoined by the latter's present wife from using the surname of her former husband.

A complaint was filed by petitioner Constancia C. Tolentino with the then Court of First Instance of Quezon City against
Consuelo David for the purpose of stopping and enjoining her by injunction from using the surname Tolentino. The
complaint also contained a claim for damages which the petitioner, however, waived. An application for a writ of
preliminary injunction was filed as well.

On January 13, 1972 respondent Consuelo David filed her answer admitting she has been using and continues to use the
surname Tolentino.

The application for the writ was heard with both parties presenting evidence in support of their respective claims.

On January 18, 1972, the trial court issued an order granting the petitioner's action for a writ of preliminary injunction with
the actual writ being issued on January 20, 1972. The order granting said writ reads:

NOW, THEREFORE, it is hereby ordered by the undersigned Judge of the Court of First Instance of Rizal,
Branch XVI, Quezon City, that, until further orders, you CONSUELO DAVID, your agents and/or
representatives and/or persons acting under your control, direction, instruction and/or supervision, ARE
ENJOINED from using, employing and/or applying, in any manner, form or means whatsoever, the
surname TOLENTINO. (p. 17, Original Record On Appeal)

On February 2, 1972, respondent Consuelo filed a motion for leave to file a third party complaint against her former
husband. The motion was granted on March 18,1972. Thereafter, third party defendant Arturo Tolentino filed his answer
on April 19,1972.

After the hearings, the trial court rendered a decision in favor of the petitioner. The dispositive portion of the decision
reads:

WHEREFORE, premises considered, judgment is hereby rendered confirming the preliminary injunction
and making the same permanent and perpetual-restraining and enjoining defendant, her agents
and/or representatives and/or persons acting under her control, direction, instruction and/or
 supervision, from using, employing and/or applying, in any manner, form or means whatsoever, the
surname" TOLENTINO."

No pronouncement as to costs, the same having been waived by the plaintiff.

The third-party complaint is hereby dismissed, without pronouncement as to costs. (p. 93, Original
Record on Appeal)

The private respondent appealed the decision to the Court of Appeals raising several issues, among them, the
prescription of the plaintiff's cause of action and the absence of a monopolistic proprietary right of the plaintiff over the
use of the surname Tolentino.

On June 25, 1975, the Court of Appeals reversed the decision of the trial court.

The dispositive portion of the decision reads as follows:

IN VIEW WHEREOF, sustaining Error 1, this Court is constrained to reverse, as it now reverses, judgment
appealed from, complaint is dismissed, with costs. (p. 76, Petitioner's Brief)

The petitioner filed a motion for reconsideration but the same was denied in a resolution dated August 29,1975.

Hence, this appeal by the petitioner.

The uncontroverted facts of the case are:

The petitioner is the present legal wife of Arturo Tolentino, their marriage having been celebrated on April 21, 1945 in
Manila. The union produced three children.

Respondent Consuelo David was legally married to Arturo Tolentino on February 8, 1931. Their marriage likewise
produced children. The marriage was dissolved and terminated pursuant to the law during the Japanese occupation on
September 15, 1943 by a decree of absolute divorce granted by the Court of First Instance of Manila in Divorce Case No.
R-619 entitled "Arturo Tolentino v. Consuelo David" on the ground of desertion and abandonment by the wife. The trial
court granted the divorce on its finding that Arturo Tolentino was abandoned by Consuelo David for at least three (3)
continuous years.

Thereafter, Arturo Tolentino married a certain Pilar Adorable, who however, died soon after their marriage. Tolentino
subsequently married Constancia on April 21, 1945.

Consuelo David, on the other hand, continued using the surname Tolentino after the divorce and up to the time of the
filing of this complaint.

The third party defendant, in his answer, admitted that the use of the surname Tolentino by the private respondent was
with his and his family's (brothers and sisters) consent.

The petition mainly revolves around two issues:

1. Whether or not the petitioner's cause of action has already prescribed, and

2. Whether or not the petitioner can exclude by injunction Consuelo David from using the surname of her former
husband from whom she was divorced.

The petitioner's contention that her cause of action is imprescriptible is without merit. In fact, it is contradictory to her own
claim. The petitioner insists that the use by respondent Consuelo David of the surname Tolentino is a continuing
actionable wrong and states that every use of the surname constitutes a new crime. The contention cannot be
countenanced because the use of a surname by a divorced wife for a purpose not criminal in nature is certainly not a
crime. The rule on prescription in civil cases such as the case at bar is different. Art. 1150 of the Civil Code provides: "The
time for prescription for all kinds of actions, when there is no special provision which ordains otherwise, shall be counted
from the day they may be brought."
All actions, unless an exception is provided, have a prescriptive period. Unless the law makes an action imprescriptible, it
is subject to bar by prescription and the period of prescription is five (5) years from the time the right of action accrues
when no other period is prescribed by law (Civil Code, Art. 1149). The Civil Code provides for some rights which are not
extinguished by prescription but an action as in the case before us is not among them. Neither is there a special law
providing for imprescriptibility.

Moreover, the mere fact that the supposed violation of the petitioner's right may be a continuous one does not change
the principle that the moment the breach of right or duty occurs, the right of action accrues and the action from that
moment can be legally instituted (Soriano v. Sternberg, 41 Phil. 210).

The respondent Court of Appeals, on the other hand, is of the opinion that the period of prescription should be four (4)
years, since it appears to be an action based on quasi-delict. — hatever the period, it cannot be denied that the action
has long prescribed whether the cause accrued on April 21, 1945 when the petitioner and Arturo Tolentino got married,
or on August 30, 1950, when the present Civil Code took effect, or in 1951 when Constancia Tolentino came to know of
the fact that Consuelo David was still using the surname Tolentino. It is the legal possibility of bringing the action which
detemines the starting point for the computation of the period of prescription (Espanol v. Phil. Veterans Administration,
137 SCRA 314).

The petitioner should have brought legal action immediately against the private respondent after she gained
knowledge of the use by the private respondent of the surname of her former husband. As it is, action was brought only
on November 23, 1971 with only verbal demands in between and an action to reconstitute the divorce case. The
petitioner should have filed her complaint at once when it became evident that the private respondent would not
accede to her demands instead of waiting for twenty (20) years.

As aptly stated by the Court of Appeals, "where the plaintiff fails to go to the Court within the prescriptive period, he loses
his cause, but not because the defendant had acquired ownership by adverse possession over his name but because
the plaintiffs cause of action had lapsed thru the statute of limitations." (p. 37, Rollo)

On the principal issue of whether or not a divorced woman may continue using the surname of her former husband,
Philippine law is understandably silent. We have no provisions for divorce in our laws and consequently, the use of
surnames by a divorced wife is not provided for.

There is no merit in the petitioner's claim that to sustain the private respondent's stand is to contradict Articles 370 and
371 of the Civil Code.

It is significant to note that Senator Tolentino himself in his commentary on Art. 370 of the Civil Code states that "the wife
cannot claim an exclusive right to use the husband's surname. She cannot be prevented from using it; but neither can
she restrain others from using it." (Tolentino, Civil Code, 1974 ed., P. 681).

Art. 371 is not applicable to the case at bar because Art. 371 speaks of annulment while the case before us refers to
absolute divorce where there is a severance of valid marriage ties. The effect of divorce is more akin to the death of the
spouse where the deceased woman continues to be referred to as the Mrs. of her husband even if the latter has
remarried rather than to annulment since in the latter case, it is as if there had been no marriage at all.

The private respondent has established that to grant the injunction to the petitioner would be an act of serious
dislocation to her. She has given proof that she entered into contracts with third persons, acquired properties and
entered into other legal relations using the surname Tolentino. The petitioner, on the other hand, has failed to show that
she would suffer any legal injury or deprivation of legal rights inasmuch as she can use her husband's surname and be
fully protected in case the respondent uses the surname Tolentino for illegal purposes.

There is no usurpation of the petitioner's name and surname in this case so that the mere use of the surname Tolentino by
the Private respondent cannot be said to have injured the petitioner's rights. "The usurpation of name implies some injury
to the interests of the owner of the name. It consists in the possibility of confusion of Identity ... between the owner and
the usurper. It exists when a person designates himself by another name ... The following are the elements of usurpation
of a name: 1) there is an actual use of another's name by the defendant; 2) the use is unauthorized; and 3) the use of
another's name is to designate personality or Identify a person" (Tolentino, supra, p. 685). None of these elements exists in
the case at bar and neither is there a claim by the petitioner that the private respondent impersonated her. In fact, it is
of public knowledge that Constancia Tolentino is the legal wife of Arturo Tolentino so that all invitations for Senator and
Mrs. Tolentino are sent to Constancia. Consuelo never represented herself after the divorce as Mrs. Arturo Tolentino but
simply as Mrs. Consuelo David-Tolentino. The private respondent has legitimate children who have every right to use the
surname Tolentino. She could not possibly be compelled to use the prefix "Miss" or use the name Mrs. David, different
from the surnames of her children. The records do not show that she has legally remarried.

In Silva, et al. v. Peralta (110 Phil. 57) cited by the petitioner, it was not the mere use of the surname that was enjoined
but the defendant's representation that she was the wife of Saturnino Silva. There was, therefore, a usurpation of the
wife's status which is absent in the case at bar.

We rule that the use of the surname Tolentino does not impinge on the rights of the petitioner.

Considering the circumstances of this petition, the age of the respondent who may be seriously prejudiced at this stage
of her life, having to resort to further legal procedures in reconstituting documents and altering legal transactions where
she used the surname Tolentino, and the effects on the private respondent who, while still not remarried, will have to use
a surname different from the surnames of her own children, we find it just and equitable to leave things as they are, there
being no actual legal injury to the petitioner save a deep hurt to her feelings which is not a basis for injunctive relief.

WHEREFORE, the petition is hereby DISMISSED for lack of merit. The decision of the Court of Appeals is AFFIRMED. The writs
of preliminary and mandatory injunction issued by the trial court are SET ASIDE.

SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-63817 August 28, 1984

CORAZON LEGAMIA y RIVERA, petitioner,

vs.
INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

Felipe O. Pascual for petitioner.

The Solicitor General for respondent Appellate Court.

ABAD SANTOS, J.:

This is an appeal by certiorari to review and reverse a decision of the Intermediate Appellate Court.

In the defunct Court of First Instance of Manila, Corazon Legamia was accused of using an alias in violation of
Commonwealth Act No. 142, as amended. The information against her reads:

That on or about November 4th, 1974, and for sometime prior and subsequent thereto, in the City of
Manila, Philippines, the said accused did then and there wilfully and unlawfully use the substitute or
alias name CORAZON L. REYES, which is different from Corazon Legamia y Rivera with which she was
christened or by which she has been known since childhood, nor as a pseudonym for literary purpose
and without having been previously authorized by a competent Court to do so; that it was discovered
only on or about November 4th, 1974. (Rollo, pp. 11-12.)

She was convicted by the trial court which sentenced her to an indeterminate prison term of only (1) year, as minimum,
to two (2) years, as maximum; to pay a fine a fine of
P5,000.00, with subsidiary imprisonment; and to pay the costs. The trial court recommended, however, that she be
extended executive clemency. On appeal to the Intermediate Appellate Court, the sentence was affirmed in toto.
Hence the instant petition.

The facts:

Corazon Legamia lived with Emilio N. Reyes for 19 years from November 8, 1955 to September 26, 1974, when Emilio died.
During their live-in arrangement they produced a boy who was named Michael Raphael Gabriel L. Reyes. He was born
on October 18, 1971.

From the time Corazon and Emilio lived together until the latter's death, Corazon was known as Corazon L. Reyes; she
styled herself as Mrs. Reyes; and Emilio introduced her to friends as Mrs. Reyes.

Emilio was Branch Claim Manager Naga Branch, of the Agricultural Credit Administration when he died. On October 29,
1974, or shortly after Emilio's death, Corazon filed a letter in behalf of Michael with the Agricultural Credit Administration
for death benefits. The letter was signed "Corazon L. Reyes." The voucher evidencing payment of Michael's claim in the
amount of P2,648.76 was also signed "Corazon L. Reyes."

For using the name Reyes although she was not married to Emilio, Felicisima Reyes who was married to Emilio filed a
complaint which led to Corazon's prosecution. Parenthetically, the amount paid to Michael is "equivalent to 2/5 of that
which is due to each legitimate child in accordance with the provisions of the Civil Code" per advice given by Atty.
Diomedes A. Bragado of the Agricultural Credit Administration to Felicisima. (Rollo, pp. 14-15.)

The law:

Commonwealth Act No. 142 provides in Section 1:

Section 1. Except as a pseudonym solely for literary, cinema, television, radio or other entertainment
purposes and in athletic events where the use of pseudonym is a normally accepted practice, no
person shall use any name different from the one with which he was registered at birth in the office of
the local civil registry, or with which he was baptized for the first time, or in case of an alien, with which
he was registered in the Bureau of Immigration upon entry; or such substitute name as may have been
authorized by a competent court: Provided, That persons, whose births have not been registered in
any local civil registry and who have not been baptized have one year from the approval of this act
within which to register their names in the civil registry of their residence. The name shall comprise the
patronymic name and one or two surnames. (As amended by R.A. No. 6085.)

The issue:

Did the petitioner violate the law in the light of the facts abovestated?

The resolution:

It is not uncommon in Philippine society for a woman to represent herself as the wife and use the name of the man she is
living with despite the fact that the man is married to another woman. The practice, to be sure, is not encouraged but
neither is it unduly frowned upon. A number of women can be Identified who are living with men prominent in political,
business and social circles. The woman publicly holds herself out as the man's wife and uses his family name blithely
ignoring the fact that he is not her husband. And yet none of the women has been charged of violating the C.A. No. 142
because ours is not a bigoted but a tolerant and understanding society. It is in the light of our cultural environment that
the law must be construed.

In the case at bar, Corazon had been living with Emilio for almost 20 years. He introduced her to the public as his wife
and she assumed that role and his name without any sinister purpose or personal material gain in mind. She applied for
benefits upon his death not for herself but for Michael who as a boy of tender years was under her guardianship. Surely,
the lawmakers could not have meant to criminalize what Corazon had done especially because some of them
probably had their own Corazons.

WHEREFORE, the decision under review is hereby set aside; the petitioner is acquitted of the charge. No costs.

SO ORDERED.
Concepcion, Jr., Escolin and Cuevas, JJ., concur.

Makasiar (Chairman) and Guerrero, JJ., are on leave.

Separate Opinions

AQUINO, J., concurring:

I concur especially for the sake of the son. But the practice should not be encouraged. If there is no impediment,
common-law husbands must marry their wives.

Separate Opinions

AQUINO, J., concurring:

I concur especially for the sake of the son. But the practice should not be encouraged. If there is no impediment,
common-law husbands must marry their wives.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-32026 January 16, 1986

RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L. REYES. ERLINDA REYNOSO REYES, petitioner,
vs.
HON, JOSE P. ALEJANDRO, in his capacity as Judge, Court of First Instance of Cavite, Branch II, Cavite City, respondents.

PATAJO, J.:

This is an appeal from an order of the Court of First Instance of Cavite dismissing the petition filed by petitioner-appellant
Erlinda Reynoso Reyes to have her husband Roberto Reyes declared an absentee.

In a petition filed on October 25, 1969 Erlinda Reynoso prayed for the declaration of the absence of her husband
Roberto L. Reyes alleging that her husband had been absent from their conjugal dwelling since April 1962 and since then
had not been heard from and his whereabouts unknown. The petition further alleged that her husband left no will nor
any property in his name nor any debts.

The evidence presented by petitioner in support of her petition established that she and Roberto L. Reyes were married
on March 20, 1960; that sometime in April 1962 her husband left the conjugal home due to some misunderstanding over
personal matters; that since then petitioner has not received any news about the whereabouts of her husband; that they
have not acquired any properties during their marriage and that they have no outstanding obligation in favor of
anyone; that her only purpose in filing the petition is to establish the absence of her husband, invoking the provisions of
Rule 107 of the New Rules of Court and Article 384 of the Civil Code.

After hearing the Court a quo dismissed the petition on the ground that since Roberto L. Reyes left no properties there
was no necessity to declare him judicially an absentee. It said:

A perusal of Rule 107 of the Rules of Court on absentees reveals that it is based on the provisions of
Title XIV of the New Civil Code on absence. And the reason and purpose of the provisions of the New
Civil Code on absence (Arts. 381 to 396) are: (1) The interest of the person himself who has
disappeared; (2) The rights of third parties against the absentee, especially those who have rights
which would depend upon the death of the absentee; and (3) The general interest of society which
may require that property does not remain abandoned without someone representing it and without
an owner (Civil Code by Francisco, Vol. 2, pp. 930- 931, 1953 Ed.).

It will thus be noted that said provisions of the New Civil Code are concerned with absence only with
reference to its effects on property (2 Manresa, 101-102, Civil Code by Francisco, Vol. 2, p. 932. 1953
Ed.). Article 384, New Civil Code, which is reproduced from Article 184 of the old Code, and relied
upon by herein petitioner, refers to the second period or stage of absence, and specifically indicates
the precise moment when the same may begin. Thus, this article provides that after the lapse of two
(2) years without any news about the absentee or since the receipt of the last news, and five (5) years
in case the absentee has left a person in charge of the administration of his property, his absence
may be declared by the Court. The primordial purpose of this declaration is to provide for an
administrator of the property of the absentee. It cannot be said that because of the comma (,)
between the words 'news' and 'and', the two-year period mentioned in the first part of the law has no
reference to or bearing on the property of the absentee. Manresa states that the only reason for the
different periods is because in one case (2 years) the absentee has not left a person in charge of the
administration of his property, and in the other case (5 years) the absentee has provided for his
absence by appointing an administrator of his property dispensing in a way the giving of news about
himself (2 Manresa, 127-128). It is worth to note, in this connection, that the first period or stage of
absence as covered by Article 381 of the New Civil Code provides for provisional measures-the
appointment by the Court of a person to represent the absentee' in all that may be necessary'-when
a mere presumption of his absence arises. It should be noted that the appointment of a
'representative' of the absentee is for the protection of the interest of the latter. This is clear from the
provisions of Article 382 which enjoins the judge to 'take the necessary measures to safeguard the
rights and interests of the absentee. ... Moreover, it is not enough that a person is declared an
absentee. The law (see Articles 381, 382 and 383) requires the judge to appoint a representative for
the absentee precisely to safeguard the property or interest of the latter. It is thus imperative that the
declaration of absence be for a specific purpose, and that purpose can be no other than the
protection of the interest or property of the absentee. Castan, in his commentary, emphatically states
that there must be an immediate necessity for the representation of the absentee in some specific
urgent matters (Vol. 1, pp. 182-183).

The same observation and commentary can be said of the corresponding complimenting provisions
of Rule 107 of the Rules of Court, particularly Sections 6 and 7 thereof which make it mandatory upon
the Court to appoint a representative, trustee or administrator who shall safeguard the rights and
interest of the absentee.

Considering that neither the petition alleges, nor the evidence shows, that Roberto L. Reyes has any
rights, interest or property in the Philippines, there is no point in judicially declaring him an absentee.

We affirm the order of the lower Court dismissing the petition. As this Court said in Jones vs. Hortiguela, 64 Phil. 197:

... For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially
declared an absentee. The declaration of absence made in accordance with the provisions of the
Civil Code has for its sole purpose to enable the taking of the necessary precautions for the
administration of the estate of the absentee. For the celebration of civil marriage, however, the law
only requires that the former spouse has been absent for seven consecutive years at the time of the
second marriage, that the spouse present does not know his or her former spouse to he living, that
such former spouse is generally reputed to be dead and the spouse present so believes at the time of
the celebration of the marriage (section III, paragraph 2, General Orders, No. 68). (On page 183).
The need to have a person judicially declared an absentee is when he has properties which have to be taken cared of
or administered by a representative appointed by the Court (Article 384, Civil Code); the spouse of the absentee is
asking for separation of property (Article 191, Civil Code) or his wife is asking the Court that the administration of an
classes of property in the marriage be transferred to her (Article 196, Civil Code). The petition to declare the husband an
absentee and the petition to place the management of the conjugal properties in the hands of the wife may be
combined and adjudicated in the same proceedings, Peyer vs. Martinez, 88 Phil. 72, 80).

IN VIEW OF THE FOREGOING, judgment is hereby rendered AFFIRMING the order of the lower Court dismissing the petition
to declare Roberto L. Reyes an absentee. With costs against petitioner-appellant.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova Gutierrez, Jr. and De la Fuente, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-60101 August 31, 1983

EASTERN SHIPPING LINES, INC., petitioner,

vs.
JOSEPHINE LUCERO, respondents.

Valera, Cainglet & Dala Law Office for petitioner.

Jose R. Millares for private respondent.

ESCOLIN, J.:

Petition for review filed by the Eastern Shipping Lines, Inc. to set aside the decision of the National Labor Relations
Commission, which affirmed the judgment rendered by the National Seamen Board, the dispositive portion of which
reads as follows:

WHEREFORE, respondent is hereby ordered to pay complainant her monthly allotments from March,
1980 up to the amount of P54,562.00 within ten (10) days from receipt of this decision. Respondent is
likewise further ordered to pay complainant her future monthly allotment up to the arrival of the M/V
EASTERN MINICON in the port of Manila or after four (4) years when the presumptive death established
by law takes effect.

The material facts that gave rise to this petition are as follows: On October 31, 1979, Capt. Julio J. Lucero, Jr. was
appointed by petitioner Eastern Shipping Lines, Inc., Company for short, as master/captain to its vessel M/V Eastern
Minicon plying the HongkongManila route, with the salary of P5,560.00 exclusive of ship board allowances and other
benefits. Under the contract, his employment was good for one (1) round trip only, i.e., the contract would automatically
terminate upon arrival of the vessel at the Port of Manila, unless renewed. It was further agreed that part of the captain's
salary, while abroad, should be paid to Mrs. Josephine Lucero, his wife, in Manila.

On February 16, 1980, while the vessel was enroute from Hongkong to Manila where it was expected to arrive on
February 18, 1980, Capt. Lucero sent three (3) messages to the Company's Manila office:

First Message: 1
 February l6,1980 0700 GMT Via Intercom

EMINICON

Urgent Eastship Manila

REGRET TO INFORM YOU ENCOUNTERED BOISTEROUS WEATHER WITH STRONG NORTHEASTERLY WINDS
WITH GAIL FORCE CAUSING THE VESSEL ROLLING AND PITCHING VIOLENTLY VESSEL NOW INCLINING 15
TO 20 DEGREES PORT FEARING MIGHT JETTISON CARGO ON DECK IF EVERYTHING COME TO WORSE
SITUATION HOWEVER TRYING UTMOST BEST TO FACILITATE EVERYTHING IN ORDER STOP NO FIX POSITIONS
FROM NOON 15th UP TO 0600 HRS TO DATE NEED ASSISTANCE APPROXIMATE DR POSITIONS AT 0600 HRS
10TH WITHIN THE VICINITY LATITUDE 20-02, ON LONGTITUDE 110-02, OE COURSE 120 DEGREES REGARDS
...

LUCERO

Second Message: 2

February l6/80 1530 GMT VIA INTERCOM

EMICON

EAST SHIP MANILA

RYC NOTED ACCORDINGLY SINCE WASTE PAPER CARGO ON PORT SIDE AND HAD BEEN WASH OUT
VESSEL AGAIN LISTING ON STARBOARD SIDE REGRET WE HAVE TO JETTISON STARBOARD SIDE WASTE
PAPER CARGO IN ORDER TO BALANCE THE VESSEL NOW ALMOST BACK TO NORMAL POSITION
HOWEVER VESSEL STILL LABORING VIOLENTLY REGARDS

LUCERO

Third Message: 3

FEBRUARY 16/80 2150 HRS

PHILIPPINE COAST GUARD

NEED IMMEDIATE ASSISTANCE POSITION 19-35 N 116-40 E SEAWATER ENTERING INSIDE HATCH VESSEL
INCLINING 15 TO 20 DEGREES PORT IF POSSIBLE SEND IMMEDIATE ASSISTANCE VESSEL IN DANGER
PREPARING TO ABANDON ANYTIME

MASTER

Acting on these radio messages, the Company, respondent below, took the following steps:

RESPONDENT informed of the grave situation, immediately reported the matter to the Philippine Coast
Guard for search and rescue operation and the same was coordinated with the U.S. Air Force based
at Clark Air Base. Respondent also released radio messages to all vessels passing the
Hongkong/Manila route requesting them to be very cautious and vigilant for possible survivors and to
scan the area whether there are signs of debris from the ill-fated vessel "EASTERN MINICON" which has
foundered In the meantime, two (2) vessels of the respondent were also dispatched to the area last
reported by the Master for search and rescue operation, but the collective efforts of all parties
concerned yielded negative results, (p. 79, Rollo)

Subsequently, the Lloyds of London, insurer of the M/V Eastern Minicon through its surveyors, confirmed the loss of the
vessel. Thereafter, the Company paid the corresponding death benefits to the heirs of the crew members, except
respondent Josephine Lucero, who refused to accept the same.
On July 16, 1980, Mrs. Lucerofiled a complaint with -the National Seamen Board, Board for short, for payment of her
accrued monthly allotment of P3,183.00, which the Company had stopped since March 1980 and for continued
payment of said allotments until the M/V Minicon shall have returned to the port of Manila. She contended that the
contract of employment entered into by her husband with the Company was on a voyage-to-voyage basis, and that
the same was to terminate only upon the vessel's arrival in Manila.

Upon the other hand, the Company maintained that Mrs. Lucero was no longer entitled to such allotments because: [a]
the Lloyds of London had already confirmed the total loss of the vessel and had in fact settled the company's insurance
claim and [b] the Company, with the approval of the Board, had likewise paid the corresponding death benefits to the
heirs of the other seamen The Company further invoked the provisions of Article 643 of the Code of Commerce, to wit:

Art. 643. If the vessel and her cargo should be totally lost, by reason of capture or wreck, all rights shall
be extinguished, both as regards the crew to demand any wages whatsoever, and as regards the
ship agent to recover the advances made.

xxx xxx xxx

On May 19, 1981, the Board rendered the aforecited judgment in favor of Mrs. Josephine Lucero and against petitioner
Company. The Board held that the presumption of death could not be applied because the four-year period provided
for by Article 391(l) of the Civil Code had not yet expired; and that the payment of death benefits to the heirs of the
other crew 'members was based upon a voluntary agreement entered into by and between the heirs and the
Company, and did not bind respondent Mrs. Lucero who was not a party thereto.

On appeal, the respondent National Labor Relations Conunission affirmed the said decision. It held that:

Within the context of the foregoing circumstances, the only recourse is to presume the vessel totally
lost and its crew members dead. But in this connection, the question that comes to the fore is: When
will the presumption arise? Article 391 of the Civil Code provides the answer, to wit:

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate
among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for four years since the loss of the vessel or aeroplane;...

By the aforequoted law, it is quite clear that the person to be presumed dead should first "not been
heard of for four years since the loss of the vessel" before he can be presumed dead for all purposes.
Applied to Capt. LUCERO, it is evidently premature to presume him dead as four years has not yet
expired. Thus, even in Judge Advocate General vs. Gonzales, et al., (CA) 48 O.G. 5329, the very case
cited by the respondent herein, the court Id. in the case of the missing soldier that although nothing
was heard of him since 7 May 1942, the fact of his death is not presumed until seven years after 1942.

Since Capt. LUCERO cannot yet be presumed dead as demonstrated hereinabove, it logically follows
that as of now, he is presumed have It is of no moment to Us that the vessel was conceded by the
Lloyds of London to have been totally lost which, in the first place, was admittedly merely based on
presumption as even the whereabouts of the vessel remains unknown. Similarly, even the agreement,
which formed the basis of the Decision of the NSB ordering payment of death benefits to the heirs of
some of the crew must have been predicated upon a presumption of death of the crew members
concerned. Such circumstances do not suffice to establish the actual death of Capt. LUCERO.

xxx xxx xxx

Indeed, by the terms of the appointment of Capt. LUCERO, his engagement terminates upon the
return of the vessel at the Port of Manila. He is considered to be still working entitling his spouse to
allotment until the vessel returns or until it is officially declared totally lost, or until the presumption of his
death becomes effective in which case the burden of proving that he is alive is shifted to his wife for
purposes of continuing her allotment.

We are unable to agree with the reasoning and conclusion of the respondent NLRC.

It is undisputed that on February 16, 1980, the Company received three (3) radio messages from Capt. Lucero on board
the M/V Eastern Minicon the last of which, received at 9:50 p.m. of that day, was a call for immediate assistance in view
of the existing "danger": "sea water was entering the hatch"; the vessel "was listing 50 to 60 degrees port," and they were
"preparing to abandon the ship any time.' After this message, nothing more has been heard from the vessel or its crew
until the present time.

There is thus enough evidence to show the circumstances attending the loss and disappearance of the M/V Eastern
Minicon and its crew. The foregoing facts, quite logically. are sufficient to lead Us to a moral certainty that the vessel had
sunk and that the persons aboard had perished with it. upon this premise, the rule on presumption of death under Article
391 (1) of the Civil Code must yield to the rule of preponderance of evidence. As this Court said in Joaquin vs.
Navarro 4 "Where there are facts, known or knowable, from which a rational conclusion can be made, the presumption
does not step in, and the rule of preponderance of evidence controls."

Of similar import is the following pronouncement from American Jurisprudence:5

Loss of Vessel.— Where a vessel sets out on a voyage and neither the vessel nor those who went in her
are afterward heard of, the presumption arises, after the utmost limit of time for her to have
completed the voyage and for news of her arrival at any commercial port of the world to have been
received, that the vessel has been lost and that all on board have perished. The presumption of death
in such cases does not rest on the fact alone that the person in question has been absent and
unheard from for a specific length of time, but also on the fact that the vessel has not been heard
front The question, moreover, is not whether it is impossible that the person may be alive, but whether
the circumstances do not present so strong a probability of his death that a court should act thereon.
The presumption of death from absence of tidings of the vessel on which the absentee sailed is
strengthened by proof of a storm to which the vessel probably was exposed. The presumption is even
stronger where it appears affirmatively that the vessel was lost at sea, that nothing has been heard of
a particular person who sailed thereon, and that a sufficient time has elapsed to permit the receipt of
news of any possible survivors of the disaster.

In People vs. Ansang 6 where, in open sea, the appellant aboard a vinta ignited three home-made bombs and threw
them at the boat occupied by the victims, and the said boat was later washed ashore and the passengers thereof were
never heard or seen again by anybody, this Court convicted the appellant of multiple murder, holding that the victims
were dead.

Similarly, in People vs. Sasota, 7 the claim of the appellants therein that there was no conclusive evidence of death of the
victim because his body was never found was overruled by this Court in this wise:

In a case of murder or homicide, it is not necessary to recover the body or to show where it can be
found. 'Mere are cases like death at sea, where the finding or recovery of the body is impossible. It is
enough that the death and the criminal agency be proven. There are even cases where said death
and the intervention of the criminal agency that caused it may be presumed or established by
circumstantial evidence.

Moreover, it may be remembered that in several treason cages decided by this Court, where besides
the act of treason the accused is held responsible for the death of persons he had or tortured and
later taken away, where the victims were never later seen or heard from, it has been presumed that
they were lulled or otherwise criminally disposed of or liquidated by the accused this, for the purpose
of fixing the penalty.

If in the foregoing criminal cases, where the proof required for conviction must be beyond reasonable doubt, the rule of
presumption was not applied and the fact of death was deemed established, with more reason is this Court justified in
entering a finding of death. Indeed, We cannot permit Article 391 to override, or be substituted for, the facts established
in this case which logically indicate to a moral certainty that Capt. Lucero died shortly after he had sent his last radio
message at 9:50 p.m. on February 16, 1980.

In view of the conclusion arrived at above, We deem it unnecessary to discuss the other issued raised in this case, they
being mere adjuncts to the principa issue already disposed of.

WHEREFORE, the decision of the NLRC subject of this petition is hereby set aside, and the complaint of respondent
Josephine Lucero dismissed. However, Mrs. Lucero is entitled to death benefits. No costs.

SO ORDERED.
Makasiar (Chairman), Concepcion, Jr., Guerrero and Gutierrez, Jr., JJ., concur.

Aquino, J., I concur. Mrs. Lucero is entitled to death benefits.

De Castro, J., and Abad Santos, J., are on leave.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 84250 July 20, 1992

DAYA MARIA TOL-NOQUERA, petitioner,

vs.
HON. ADRIANO R. VILLAMOR, Presiding Judge, Branch XVI, Regional Trial Court, 8th Judicial Region, Naval, Leyte, and
DIOSDADO TOL, respondents.

CRUZ, J.:

Questioned in this action is the dismissal of a petition filed by Daya Maria Tol-Noquera for appointment as administratrix
of the property of the absentee Remigio Tol.

In Special Proceedings No. P-056, which was filed in December 1986, Daya Maria Tol alleged that she was the
acknowledged natural child of Remigio Tol, who had been missing since 1984. She claimed that a certain Diosdado Tol
had fraudulently secured a free patent over Remigio's property and had obtained title thereto in his name. She was
seeking the administration of the absentee's estate in order that she could recover the said property.

The petition was opposed by Diosdado Tol, who argued that Daya Maria Tol was not an acknowledged natural child of
the absentee and that the property sought to be administered was covered by an original certificate of title issued in his
name.

On March 31, 1987, the trial court dismissed the petition on the ground that it was a collateral attack on a Torrens title.
The court also declared in effect that it was useless to appoint an administrator in view of the claim of a third person that
he was the owner of the absentee's property.

The petitioner's motion for reconsideration having been denied, she filed a notice of appeal with this Court on June 4,
1984. However, inasmuch as only questions of law were involved, we resolved to require the petitioner to seek review
on certiorari under Rule 45 of the Rules of Court within 15 days from notice.

In the petition now before us, it is argued that the original petition in the trial court was not intended as a collateral
attack on a Torrens title; hence, Art. 389 of the Civil Code 1 was not applicable.

The private respondent, on the other hand, contends that since the petitioner claims she is an illegitimate child of
Remigio Tol, she is prohibited under Art. 992 of the Civil Code 2 from inheriting ab intestato from the relatives of her father.

The private respondent likewise questions the necessity of her appointment for the purpose only of having the title
annulled. He adds that in view of her allegations of fraud, she should have sued for the annulment of the title within a
period of one year, which had already expired. Lastly, the decision of the trial court had already become final and
executory because 76 days had already elapsed from the date of receipt of the said decision on May 21, 1987, to the
date the petition was filed before this Court on August 5, 1987.

A study of the record reveals that the lower court was rather hasty in dismissing the petition.
As we see it, the petition was not a collateral attack on a Torrens title. The petitioner did say there was a need to appoint
an administrator to prevent the property from being usurped, but this did not amount to a collateral attack on the title.
The alleged fraudulent issuance of title was mentioned as a justification for her appointment as administrator. But there
was nothing in the petition to indicate that the petitioner would attack the title issued to Diosdado in the same
proceeding. In fact, the petitioner declared that whatever remedy she might choose would be pursued in another
venue, in a proceeding entirely distinct and separate from her petition for appointment as administratrix.

Regarding the Torrens certificate of title to the disputed property which was presented to defeat the petitioner's
appointment, we feel that the position of trial court was rather ambivalent. For while relying on such title to justify the
dismissal of the petition, it suggested at the same time that it could be attacked as long as this was not done in the
proceeding before it.

The private respondent's arguments that the petitioner cannot inherit ab intestato from the legitimate parents of the
absentee is immaterial to this case. Her disqualification as an heir to her supposed grandparents does not inhibit her from
petitioning for a declaration of absence or to be appointed as an administratrix of the absentee's estate.

The relevant laws on the matter are found in the following provisions of the Civil Code:

Art. 381. When a person disappears from his domicile his whereabouts being unknown, and without
leaving an agent to administer his property the judge, at the instance of an interested party, a
relative, or a friend, may appoint a person to represent him in all that may be necessary.

This same rule shall be observed when under similar circumstances the power conferred by the
absentee has expired.

Art. 382. The appointment referred to in the preceding article having been made, the judge shall take
the necessary measures to safeguard the rights and interest of the absentee and shall specify the
powers, obligations and remuneration of his representatives, regulating them according to the
circumstances, by the rules concerning guardians.

Art. 383. In the appointment of a representative, the spouse present shall be preferred when there is
no legal separation.

If the absentee left no spouse, or if the spouse present is a minor, any competent person may be
appointed by the court.

Art. 384. Two years having elapsed without any news about the absentee or since the receipt of the
last news, and five years in case the absentee has left a person in charge of the administration of his
property, his absence may be declared.

Art. 385. The following may ask for the declaration of absence:

(1) The spouse present;

(2) The heirs instituted in a will, who may present an authentic copy of the same;

(3) The relatives who may succeed by the law of intestacy;

(4) Those who may have over the property of the absentee some right subordinated to the condition
of his death.

Art. 386. The judicial declaration of absence shall not take effect until six months after its publication in
a newspaper of general circulation.

It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for
administration. This was the ruling in Reyes v. Alejandro, 3 reiterating Pejer v. Martinez. 4 In the latter case, the court
declared that the petition to declare the husband an absentee and the petition to place the management of the
conjugal properties in the hands of the wife could be combined and adjudicated in the same proceeding.
The purpose of the cited rules is the protection of the interests and property of the absentee, not of the administrator.
Thus, the question of whether the administrator may inherit the property to be administered is not controlling. What is
material is whether she is one of those allowed by law to seek the declaration of absence of Remigio Tol and whether
she is competent to be appointed as administratrix of his estate.

The issue of whether or not the property titled to Diosdado Tol is really owned by him should be resolved in another
proceeding. The right of Daya Maria Tol to be appointed administratrix cannot be denied outright by reason alone of
such issue.

Even if it be assumed that the title obtained by Diosdado Tol is already indefeasible because of the lapse of the one-
year period for attacking it on the ground of fraud, there are still other remedies available to one who is unjustly deprived
on his property. One of these is a claim for reconveyance, another a complaint for damages. 5 The petitioner can avail
herself of such remedies if she is appointed administratrix of the estate of the absentee.

Finally, we find that the appeal was perfected seasonably. Notice of appeal was filed on June 4, 1987, within the 15-day
extension of the period to appeal as granted by this Court in its resolution dated July 8, 1987.

WHEREFORE, the petition is GRANTED. This case is hereby REMANDED to the court of origin for determination of the legal
personality of Daya Maria Tol to petition the declaration of Remigio Tol's absence and of her competence to be
appointed as administratrix of his estate.

SO ORDERED.

Griño-Aquino, Medialdea and Bellosillo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 85140 May 17, 1990

TOMAS EUGENIO, SR., petitioner,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, DEPUTY SHERIFF
JOHNSON TAN, JR., Deputy Sheriff of Branch 20, Regional Trial Court, Cagayan de Oro City, and the Private Respondents,
the petitioners in Sp. Proc. No. 88-55, for "Habeas Corpus", namely: CRISANTA VARGAS-SANCHEZ, SANTOS and NARCISA
VARGAS-BENTULAN, respondents.

G.R. No. 86470 May 17, 1990.

TOMAS EUGENIO, petitioner-appellant,

vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20, Cagayan de Oro City, CRISANTA VARGAS-
SANCHEZ, FELIX VARGAS, ERNESTO VARGAS, NATIVIDAD VARGAS-CAGAPE, NENITA VARGAS-CADENAS, LUDIVINA
VARGAS-DE LOS SANTOS and NARCISA VARGAS-BENTULAN, respondents-appellees.

Maximo G. Rodriguez for petitioner.

Erasmo B. Damasing and Oliver Asis Improso for respondents.

PADILLA, J.:

On 5 October 1988, petitioner came to this Court with a petition for certiorari and prohibition with application for
restraining order and/or injunction (docketed as G.R. No. 85140) seeking to enjoin respondent Judge from proceeding
with the Habeas Corpus case (Sp. Proc. No. 88- 55, RTC, Branch 20, Cagayan de Oro City), * the respondent Sheriff from
enforcing and implementing the writ and orders of the respondent Judge dated 28, 29, and 30 September 1988, and to
declare said writ and orders as null and void. In a resolution issued on 11 October 1988, this Court required comment
from the respondents on the petition but denied the application for a temporary restraining order.

The records disclose the following:

Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her full blood brothers and sisters,
herein private respondents (Vargases', for brevity) filed on 27 September 1988, a petition for habeas corpusbefore the
RTC of Misamis Oriental (Branch 20, Cagayan de Oro City) alleging that Vitaliana was forcibly taken from her residence
sometime in 1987 and confined by herein petitioner in his palacial residence in Jasaan, Misamis Oriental. Despite her
desire to escape, Vitaliana was allegedly deprived of her liberty without any legal authority. At the time the petition was
filed, it was alleged that Vitaliana was 25 years of age, single, and living with petitioner Tomas Eugenio.

The respondent court in an order dated 28 September 1988 issued the writ of habeas corpus, but the writ was returned
unsatisfied. Petitioner refused to surrender the body of Vitaliana (who had died on 28 August 1988) to the respondent
sheriff, reasoning that a corpse cannot be the subject of habeas corpus proceedings; besides, according to petitioner,
he had already obtained a burial permit from the Undersecretary of the Department of Health, authorizing the burial at
the palace quadrangle of the Philippine Benevolent Christian Missionary, Inc. (PBCM), a registered religious sect, of
which he (petitioner) is the Supreme President and Founder.

Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in his residence on 28 August
1988. As her common law husband, petitioner claimed legal custody of her body. These reasons were incorporated in an
explanation filed before the respondent court. Two (2) orders dated 29 and 30 September 1988 were then issued by
respondent court, directing delivery of the deceased's body to a funeral parlor in Cagayan de Oro City and its autopsy.

Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to dismiss the petition therein,
claiming lack of jurisdiction of the court over the nature of the action under sec. 1(b) of Rule 16 in relation to sec. 2, Rule
72 of the Rules of Court.1 A special proceeding for habeas corpus, petitioner argued, is not applicable to a dead person
but extends only to all cases of illegal confinement or detention of a live person.

Before resolving the motion to dismiss, private respondents (as petitioners below) were granted leave to amend their
petition. 2 Claiming to have knowledge of the death of Vitaliana only on 28 September 1988 (or after the filing of
the habeas corpus petition), private respondents (Vargases') alleged that petitioner Tomas Eugenia who is not in any
way related to Vitaliana was wrongfully interfering with their (Vargases') duty to bury her. Invoking Arts. 305 and 308 of
the Civil Code, 3 the Vargases contended that, as the next of kin in the Philippines, they are the legal custodians of the
dead body of their sister Vitaliana. An exchange of pleadings followed. The motion to dismiss was finally submitted for
resolution on 21 October 1988.

In the absence of a restraining order from this Court, proceedings continued before the respondent court; the body was
placed in a coffin, transferred to the Greenhills Memorial Homes in Cagayan de Oro City, viewed by the presiding Judge
of respondent court, and examined by a duly authorized government pathologist. 4

Denying the motion to dismiss filed by petitioner, the court a quo held in an order, 5 dated 17 November 1988, that:

It should be noted from the original petition, to the first amended petition, up to the second amended
petition that the ultimate facts show that if the person of Vitaliana Vargas turns out to be dead then