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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 139789 July 19, 2001

On May 12, 2000, we dismissed the petition for habeas corpus4 for lack of merit, and granted the petition5 to nullify the Court of Appeals' ruling6 giving visitation rights to Erlinda K. Ilusorio.7 What is now before the Court is Erlinda's motion to reconsider the decision.8 On September 20, 2000, we set the case for preliminary conference on October 11, 2000, at 10:00 a. m., without requiring the mandatory presence of the parties. In that conference, the Court laid down the issues to be resolved, to wit: (a) To determine the propriety of a physical and medical examination of petitioner Potenciano Ilusorio; (b) Whether the same is relevant; and (c) If relevant, how the Court will conduct the same.9 The parties extensively discussed the issues. The Court, in its resolution, enjoined the parties and their lawyers to initiate steps towards an amicable settlement of the case through mediation and other means. On November 29, 2000, the Court noted the manifestation and compliance of the parties with the resolution of October 11, 2000.10 On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion praying that Potenciano Ilusorio be produced before the Court and be medically examined by a team of medical experts appointed by the Court.11 On March 27, 2001, we denied with finality Erlinda's motion to reconsider the Court's order of January 31 , 2001.12 The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere reiterations of her arguments that have been resolved in the decision. Nevertheless, for emphasis, we shall discuss the issues thus: First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live with her in consortium and that Potenciano's mental state was not an issue. However, the very root cause of the entire petition is her desire to have her husband's custody.13 Clearly, Erlinda cannot now deny that she wanted Potenciano Ilusorio to live with her.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO ILUSORIO, ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE DOES, respondents. x---------------------------------------------------------x G.R. No. 139808 July 19, 2001 POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, petitioners, vs. HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents. RESOLUTION PARDO, J.: Once again we see the sad tale of a prominent family shattered by conflicts on expectancy in fabled fortune. On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly inseparable from her husband some years ago, filed a petition with the Court of Appeals1 for habeas corpus to have custody of her husband in consortium. On April 5, 1999, the Court of Appeals promulgated its decision dismissing the petition for lack of unlawful restraint or detention of the subject, Potenciano Ilusorio. Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an appeal via certiorari pursuing her desire to have custody of her husband Potenciano Ilusorio.2 This case was consolidated with another case3 filed by Potenciano Ilusorio and his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing from the order giving visitation rights to his wife, asserting that he never refused to see her.

Second. One reason why Erlinda K. Ilusorio sought custody of her husband was that respondents Lin and Sylvia were illegally restraining Potenciano Ilusorio to fraudulently deprive her of property rights out of pure greed.14 She claimed that her two children were using their sick and frail father to sign away Potenciano and Erlinda's property to companies controlled by Lin and Sylvia. She also argued that since Potenciano retired as director and officer of Baguio Country Club and Philippine Oversees Telecommunications, she would logically assume his position and control. Yet, Lin and Sylvia were the ones controlling the corporations.15 The fact of illegal restraint has not been proved during the hearing at the Court of Appeals on March 23, 1999.16 Potenciano himself declared that he was not prevented by his children from seeing anybody and that he had no objection to seeing his wife and other children whom he loved. Erlinda highlighted that her husband suffered from various ailments. Thus, Potenciano Ilusorio did not have the mental capacity to decide for himself. Hence, Erlinda argued that Potenciano be brought before the Supreme Court so that we could determine his mental state. We were not convinced that Potenciano Ilusorio was mentally incapacitated to choose whether to see his wife or not. Again, this is a question of fact that has been decided in the Court of Appeals. As to whether the children were in fact taking control of the corporation, these are matters that may be threshed out in a separate proceeding, irrelevant in habeas corpus. Third. Petitioner failed to sufficiently convince the Court why we should not rely on the facts found by the Court of Appeals. Erlinda claimed that the facts mentioned in the decision were erroneous and incomplete. We see no reason why the High Court of the land need go to such length. The hornbook doctrine states that findings of fact of the lower courts are conclusive on the Supreme Court.17 We emphasize, it is not for the Court to weigh evidence all over again.18 Although there are exceptions to the rule,19 Erlinda failed to show that this is an exceptional instance. Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69 of the Family Code support her position that as spouses, they (Potenciano and Erlinda) are duty bound to live together and care for each other. We agree. The law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity.20 The sanction therefor is the "spontaneous, mutual affection between husband and wife and not any legal mandate or court order" to enforce consortium.21 Obviously, there was absence of empathy between spouses Erlinda and Potenciano, having separated from bed and board since 1972. We defined empathy as a shared

feeling between husband and wife experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. Marriage is definitely for two loving adults who view the relationship with "amor gignit amorem" respect, sacrifice and a continuing commitment to togetherness, conscious of its value as a sublime social institution.22 On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator and Supreme Judge. Let his soul rest in peace and his survivors continue the much prolonged fracas ex aequo et bono. IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate, the case has been rendered moot by the death of subject. SO ORDERED. Davide, Jr., C .J ., Puno, Kapunan and Ynares-Santiago, JJ ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 146683 November 22, 2001

CIRILA ARCABA, petitioner, vs. ERLINDA TABANCURA VDA. DE BATOCAEL, SEIGFREDO C. TABANCURA, DORIS C. TABANCURA, LUZELLI C. TABANCURA, BELEN C. TABANCURA, RAUL A. COMILLE, BERNADETTE A. COMILLE, and ABNER A. COMILLE, respondents. MENDOZA, J.: Petitioner Cirila Arcaba seeks review on certiorari of the decision1 of the Court of Appeals, which affirmed with modification the decision2 of the Regional Trial Court, Branch 10, Dipolog City, Zamboanga del Norte in Civil Case No. 4593, declaring as void a deed of donation inter vivos executed by the late Francisco T. Comille in her favor and its subsequent resolution3 denying reconsideration.

The facts are as follows: On January 16, 1956, Francisco Comille and his wife Zosima Montallana became the registered owners of Lot No. 437-A located at the corner of Calle Santa Rosa (now Balintawak Street) and Calle Rosario (now Rizal Avenue) in Dipolog City, Zamboanga del Norte. The total area of the lot was 418 square meters.4 After the death of Zosima on October 3, 1980, Francisco and his mother-in-law, Juliana Bustalino Montallana, executed a deed of extrajudicial partition with waiver of rights, in which the latter waived her share consisting of one-fourth (1/4) of the property to Francisco.5 On June 27, 1916, Francisco registered the lot in his name with the Registry of Deeds.6 Having no children to take care of him after his retirement, Francisco asked his niece Leticia Bellosillo,7 the latter's cousin, Luzviminda Paghacian,8 and petitioner Cirila Arcaba, then a widow, to take care of his house, as well as the store inside.9 Conflicting testimonies were offered as to the nature of the relationship between Cirila and Francisco. Leticia Bellosillo said Francisco and Cirila were lovers since they slept in the same room,10 while Erlinda Tabancura,11 another niece of Francisco, claimed that the latter had told her that Cirila was his mistress.12 On the other hand, Cirila said she was a mere helper who could enter the master's bedroom only when the old man asked her to and that Francisco in any case was too old for her. She denied they ever had sexual intercourse.13 It appears that when Leticia and Luzviminda were married, only Cirila was left to take care of Francisco.14 Cirila testified that she was a 34-year old widow while Francisco was a 75-year old widower when she began working for the latter; that he could still walk with her assistance at that time;15 and that his health eventually deteriorated and he became bedridden.16 Erlinda Tabancura testified that Francisco's sole source of income consisted of rentals from his lot near the public streets.17 He did not pay Cirila a regular cash wage as a househelper , though he provided her family with food and lodging.18 On January 24, 1991, a few months before his death, Francisco executed an instrument denominated "Deed of Donation Inter Vivos," in which he ceded a portion of Lot 437-A, consisting of 150 square meters, together with his house, to Cirila, who accepted the donation in the same instrument. Francisco left the larger portion of 268 square meters in his name. The deed stated that the donation was being made in consideration of "the faithful services [Cirila Arcaba] had rendered over the past ten (10) years." The deed was notarized by Atty. Vic T. Lacaya, Sr.19 and later registered by Cirila as its absolute owner .20 On October 4, 1991, Francisco died without any children. In 1993, the lot which Cirila received from Francisco had a market value of P57,105.00 and an assessed value of P28,550.00.21 On February 18, 1993, respondents filed a complaint against petitioner 'for declaration of nullity of a deed of donation inter vivos, recovery of possession, and damages.

Respondents, who are the decedent's nephews and nieces and his heirs by intestate succession, alleged that Cirila was the common-law wife of Francisco and the donation inter vivos made by Francisco in her favor is void under Article 87 of the Family Code, which provides: Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. On February 25, 1999, the trial court rendered judgment in favor of respondents, holding the donation void under this provision of the Family Code. The trial court reached this conclusion based on the testimony of Erlinda Tabancura and certain documents bearing the signature of one "Cirila Comille." The documents were (1) an application for a business permit to operate as real estate lessor, dated January 8, 1991, with a carbon copy of the signature "Cirila Comille";22 (2) a sanitary permit to operate as real estate lessor with a health certificate showing the signature "Cirila Comille" in black ink;23 and (3) the death certificate of the decedent with the signature "Cirila A. Comille" written in black ink.24 The dispositive portion of the trial court's decision states: WHEREFORE, in view of the foregoing, judgment is rendered: 1. Declaring the Deed of Donation Inter Vivos executed by the late Francisco Comille recorded as Doc. No. 7; Page No. 3; Book No. V; Series of 1991 in the Notarial Register of Notary Public Vic T. Lacaya (Annex " A " to the Complaint) null and void; 2. Ordering the defendant to deliver possession of the house and lot subject of the deed unto the plaintiffs within thirty (30) days after finality of this decision; and finally 3. Ordering the defendant to pay attorney's fees in the sum of P10,000.00. SO ORDERED.25 Petitioner appealed to the Court of Appeals, which rendered on June 19, 2000 the decision subject of this appeal. As already stated, the appeals court denied reconsideration. Its conclusion was based on (1) the testimonies of Leticia, Erlinda, and Cirila; (2) the copies of documents purportedly showing Cirila's use of Francisco's surname; (3) a pleading in another civil case mentioning payment of rentals to Cirila as Francisco's common-law wife; and (4) the fact that Cirila did not receive a regular cash wage.

Petitioner assigns the following errors as having been committed by the Court of Appeals: (a) The judgment of the Court of Appeals that petitioner was the commonlaw wife of the late Francisco Comille is not correct and is a reversible error because it is based on a misapprehension of facts, and unduly breaks the chain of circumstances detailed by the totality of the evidence, its findings being predicated on totally incompetent or hearsay evidence, and grounded on mere speculation, conjecture or possibility. (Salazar v. Gutierrez, 33 SCRA 243 and other cases; cited in Quiason, Philippine Courts and their J urisdictions, 1993 ed., p. 604) (b) The Court of Appeals erred in shifting the burden of evidence from the plaintiff to defendant. (Bunyi v. Reyes, 39 SCRA 504; Quiason, id.) (c) The Court of Appeals decided the case in away probably not in accord with law or with the applicable jurisprudence in Rodriguez v. Rodriguez, 20 SCRA 908, and Liguez v. CA, 102 Phil. 577, 584.26 The issue in this case is whether the Court of Appeals correctly applied Art. 87 of the Family Code to the circumstances of this case. After a review of the records, we rule in the affirmative. The general rule is that only questions of law may be raised in a petition for review under Rule 45 of the Rules of Court, subject only to certain exceptions: (a) when the conclusion is a finding grounded entirely on speculations, surmises, or conjectures; (b) when the inference made is manifestly mistaken, absurd, or impossible; (c) where there is grave abuse of discretion; (d) when the judgment is based on a misapprehension of facts; (e) when the findings of fact are conflicting; (f) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee; (g) when the findings of the Court of Appeals are contrary to those of the trial court; (h) when the findings of fact are conclusions without citation of specific evidence on which they are based; (i) when the finding of fact of the Court of Appeals is premised on the supposed absence of evidence but is contradicted by the evidence on record; and G) 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.27 It appearing that the Court of Appeals based its findings on evidence presented by both parties, the general rule should apply. In Bitangcor v. Tan,28 we held that the term "cohabitation" or "living together as husband and wife" means not only residing under one roof, but also having repeated sexual intercourse. Cohabitation, of course, means more than sexual intercourse, especially when one of the parties is already old and may no longer be interested in sex. At the very least, cohabitation is public assumption by a man and a woman of the marital relation, and dwelling together as man and wife, thereby holding themselves out to the public as such. Secret meetings or nights clandestinely spent together, even

if often repeated, do not constitute such kind of cohabitation; they are merely meretricious.29 In this jurisdiction, this Court has considered as sufficient proof of common-law relationship the stipulations between the parties,30 a conviction of concubinage,31 or the existence of legitimate children.32 Was Cirila Francisco's employee or his common-law wife? Cirila admitted that she and Francisco resided under one roof for a long time, It is very possible that the two consummated their relationship, since Cirila gave Francisco therapeutic massage and Leticia said they slept in the same bedroom. At the very least, their public conduct indicated that theirs was not just a relationship of caregiver and patient, but that of exclusive partners akin to husband and wife. Aside from Erlinda Tabancura's testimony that her uncle told her that Cirila was his mistress, there are other indications that Cirila and Francisco were common-law spouses. Seigfredo Tabancura presented documents apparently signed by Cirila using the surname "Comille." As previously stated, these are an application for a business permit to operate as a real estate lessor,33 a sanitary permit to operate as real estate lessor with a health certificate,34 and the death certificate of Francisco.35 These documents show that Cirila saw herself as Francisco's commonlaw wife, otherwise, she would not have used his last name. Similarly, in the answer filed by Francisco's lessees in "Erlinda Tabancura, et al. vs. Gracia Adriatico Sy and Antonio Sy," RTC Civil Case No.4719 (for collection of rentals), these lessees referred to Cirila as "the common-law spouse of Francisco." Finally, the fact that Cirila did not demand from Francisco a regular cash wage is an indication that she was not simply a caregiver-employee, but Francisco's common law spouse. She was, after all, entitled to a regular cash wage under the law.36 It is difficult to believe that she stayed with Francisco and served him out of pure beneficence. Human reason would thus lead to the conclusion that she was Francisco's common-law spouse. Respondents having proven by a preponderance of evidence that Cirila and Francisco lived together as husband and wife without a valid marriage, the inescapable conclusion is that the donation made by Francisco in favor of Cirila is void under Art. 87 of the Family Code.1âwphi1.nêt WHEREFORE, the decision of the Court of Appeals affirming the decision of the trial court is hereby AFFIRMED. SO ORDERED. Bellosillo, Quisumbing, Buena, De Leon, Jr., JJ., concur.

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 paidup 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 crossexamination, 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.

PRIMA PARTOSA-JO, petitioner, vs. THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and CONSING), respondents.

CRUZ, J.: The herein private respondent, Jose Jo, admits to having cohabited with three women and fathered fifteen children. The first of these women, the herein petitioner, claims to be his legal wife whom he begot a daughter, Monina Jo. The other women and their respective offspring are not parties of these case. In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal property, docketed as Civil Case No. 51, in addition to an earlier action for support, also against him and docketed as Civil Case No. 36, in the Regional Trial Court of Negros Oriental, Branch 35. The two cases were consolidated and tried jointly. On November 29, 1983, Judge German G. Lee, Jr. rendered an extensive decision, the dispositive portion of which read: WHEREFORE, in view of all the foregoing arguments and considerations, this court hereby holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho Hang, alias Consing, and, therefore, is entitled to support as the lawfully wedded wife and the defendant is hereby ordered to give a monthly support of P500.00 to the plaintiff Prima Partosa, to be paid on or before the 5th day of every month, and to give to the plaintiff the amount of P40,000.00 for the construction of the house in Zamboanguita, Negros Oriental where she may live separately from the defendant being entitled under the law to separate maintenance being the innocent spouse and to pay the amount of P19,200.00 to the plaintiff by way of support in arrears and to pay the plaintiff the amount of P3,000.00 in the concept of attorney's fees. As will be noticed, there was a definite disposition of the complaint for support but none of the complaint for judicial separation of conjugal property. Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial court in the complaint for support. 1 The complaint for judicial separation of conjugal property was dismissed for lack of a cause of action and on the ground that separation by agreement was not covered by Article 178 of the Civil Code.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 82606 December 18, 1992

When their motions for reconsideration were denied, both parties came to this Court for relief. The private respondent's petition for review on certiorari was dismissed for tardiness in our resolution dated February 17, 1988, where we also affirmed the legality of the marriage between Jose and Prima and the obligation of the former to support her and her daughter. This petition deals only with the complaint for judicial separation of conjugal property. It is here submitted that the Court of Appeals erred in holding that: a) the judicial separation of conjugal property sought was not allowed under Articles 175, 178 and 191 of the Civil Code; and b) no such separation was decreed by the trial court in the dispositive portion of its decision. The private respondent contends that the decision of the trial court can longer be reviewed at this time because it has a long since become final and executory. As the decretal portion clearly made no disposition of Civil Case No. 51, that case should be considered impliedly dismissed. The petitioner should have called the attention of the trial court to the omission so that the proper rectification could be made on time. Not having done so, she is now concluded by the said decision, which can no longer be corrected at this late hour. We deal first with the second ground. While admitting that no mention was made of Civil Case No. 51 in the dispositive portion of the decision of the trial court, the petitioner argues that a disposition of the case was nonetheless made in the penultimate paragraph of the decision reading as follows: It is, therefore, hereby ordered that all properties in question are considered properties of Jose Jo, the defendant in this case, subject to separation of property under Article 178, third paragraph of the Civil Code, which is subject of separate proceedings as enunciated herein. The petitioner says she believed this to be disposition enough and so did not feel it was necessary for her to appeal, particularly since the order embodied in that paragraph was in her favor. It was only when the respondent court observed that there was no dispositive portion regarding that case and so ordered its dismissal that she found it necessary to come to this Court for relief. The petitioner has a point. The dispositive portion of the decision in question was incomplete insofar as it carried no ruling on the complaint for judicial separation of conjugal property although it was extensively discussed in the body of the decision. The drafting of the decision was indeed not exactly careful. The petitioner's counsel, noting this, should have taken

immediate steps for the rectification for the omission so that the ruling expressed in the text of the decision could have been embodied in the decretal portion. Such alertness could have avoided this litigation on a purely technical issue. Nevertheless, the technicality invoked in this case should not be allowed to prevail over considerations of substantive justive. After all, the technical defect is not insuperable. We have said time and again that where there is an ambiguity caused by an omission or a mistake in the dispositive portion of the decision, this Court may clarify such an ambiguity by an amendment even after the judgment have become final. 2 In doing so, the Court may resort to the pleading filed by the parties and the findings of fact and the conclusions of law expressed in the text or body of the decision. 3 The trial court made definite findings on the complaint for judicial separation of conjugal property, holding that the petitioner and the private respondent were legally married and that the properties mentioned by the petitioner were acquired by Jo during their marriage although they were registered in the name of the apparent dummy. There is no question therefore that the penultimate paragraph of the decision of the trial court was a ruling based upon such findings and so should have been embodied in the dispositive portion. The respondent court should have made the necessary modification instead of dismissing Civil Case No. 51 and thus upholding mere form over substance. In the interest of substantive justice, and to expedite these proceedings, we hereby make such modification. And now to the merits of Civil Case No. 51. The Court of Appeals dismissed the complaint on the ground that the separation of the parties was due to their agreement and not because of abondonment. The respondent court relied mainly on the testimony of the petitioner, who declared under oath that she left Dumaguete City, where she and Jo were living together "because that was our agreement." It held that a agreement to live separately without just cause was void under Article 221 of the Civil Code and could not sustain any claim of abandonment by the aggrieved spouse. Its conclusion was that the only remedy availabe to the petitioner was legal separation under Article 175 of the Civil Code, 4 by virtue of which the conjugal partnership of property would be terminated. The petitioner contends that the respondent court has misinterpreted Articles 175, 178 and 191 of the Civil Code. She submits that the agreement between her and the private respondent was for her to temporarily live with her parents during the initial period of her pregnancy and for him to visit and support her. They never agreed to separate permanently. And even if they did, this arrangement was repudiated and ended in 1942, when she returned to him at Dumaguete City and he refused to accept her.

The petitioner invokes Article 178 (3) of the Civil Code, which reads: Art. 178. The separation in fact between husband and wife without judicial approval, shall not affect the conjugal partnership, except that: xxx xxx xxx (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. The above-quoted provision has been superseded by Article 128 of the Family Code, which states: Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, of for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to martial, parental or property relations. A spouse is deemed to have abondoned the other when he or she has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. Under the this provision, the aggrieved spouse may petition for judicial separation on either of these grounds: 1. Abondonment by a spouse of the other without just cause; and 2. Failure of one spouse to comply with his or her obligations to the family without just cause, even if she said spouse does not leave the other spouse. Abandonment implies a departure by one spouse with the avowed intent never to return, followed by prolonged absence without just cause, and without in the

meantime providing in the least for one's family although able to do so. 5 There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation. 6 This idea is clearly expressed in the above-quoted provision, which states that "a spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning." The record shows that as early as 1942, the private respondent had already rejected the petitioner, whom he denied admission to their conjugal home in Dumaguete City when she returned from Zamboanguita. The fact that she was not accepted by Jo demonstrates all too clearly that he had no intention of resuming their conjugal relationship. Moreover, beginning 1968 until the determination by this Court of the action for support in 1988, the private respondent refused to give financial support to the petitioner. The physical separation of the parties, coupled with the refusal by the private respondent to give support to the petitioner, sufficed to constitute abandonment as a ground for the judicial separation of their conjugal property. In addition, the petitioner may also invoke the second ground allowed by Article 128, for the fact is that he has failed without just cause to comply with his obligations to the family as husband or parent. Apart form refusing to admit his lawful wife to their conjugal home in Dumaguete City, Jo has freely admitted to cohabiting with other women and siring many children by them. It was his refusal to provide for the petitioner and their daughter that prompted her to file the actions against him for support and later for separation of the conjugal property, in which actions, significantly, he even denied being married to her. The private respondent has not established any just cause for his refusal to comply with his obligations to his wife as dutiful husband. Their separation thus falls also squarely under Article 135 of the Family Code, providing as follows: Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: xxx xxx xxx (6) That at the time of the petition, the spouse have been separated in fact for at least one year and reconciliation is highly improbable. The amendments introduced in the Family Code are applicable to the case before us although they became effective only on August 3, 1988. As we held in Ramirez v. Court of Appeals: 7 The greater weight of authority is inclined to the view that an appellate court, in reviewing a judgment on appeal, will dispose of a question according to the law prevailing at the term of such

disposition, and not according to the law prevailing at the time of rendition of the appealed judgement. The court will therefore reverse a judgement which was correct at the time it was originally rendered where, by statute, there has been an intermediate change in the law which renders such judgement erroneous at the time the case was finally disposed of on appeal. The order of judicial separation of the properties in question is based on the finding of both the trial and respondent courts that the private respondent is indeed their real owner. It is these properties that should now be divided between him and the petitioner, on the assumption that they were acquired during coverture and so belong to the spouses half and half. As the private respondent is a Chinese citizen, the division must include such properties properly belonging to the conjugal partnership as may have been registered in the name of other persons in violation of the AntiDummy Law. The past has caught up with the private respondent. After his extramarital flings and a succession of illegitimate children, he must now make an accounting to his lawful wife of the properties he denied her despite his promise to their of his eternal love and care. WHEREFORE, the petition is GRANTED and the assailed decision of the respondent court is MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the petitioner herein, and the conjugal property of the petitioner and the private respondent is hereby ordered divided between them, share and share alike. This division shall be implemented by the trial court after determination of all the properties pertaining to the said conjugal partnership, including those that may have been illegally registered in the name of the persons. SO ORDERED.

G.R. No. 102998 July 5, 1996 BA FINANCE CORPORATION, petitioner, vs. HON. COURT OF APPEALS and ROBERTO M. REYES, respondents.

VITUG, J.:p The case at bar is a suit for replevin and damages. The petition for review on certiorari assails the decision of the Court of Appeals 1 in CA-G.R. CV No. 23605 affirming that of the Regional Trial Court of Manila, Branch XX, 2 which has disposed of its Civil Case No. 87-42270 in this wise: WHEREFORE, the case against defendant-spouses (sic) Reynaldo Manahan is hereby dismissed without prejudice, for failure to prosecute. Plaintiff having failed to show the liability of defendant John Doe in the person of Roberto M. Reyes, the case against the latter should likewise be dismissed. Moreover, plaintiff is hereby directed to return the vehicle seized by virtue of the order of seizure issued by this Court with all its accessories to the said Roberto M. Reyes. 3 The decisions of both the appellate court and the court a quo are based on a like finding of the facts hereinafter briefly narrated. The spouses Reynaldo and Florencia Manahan executed, on 15 May 1980, a promissory note 4 binding themselves to pay Carmasters, Inc., the amount of P83,080.00 in thirty-six monthly installments commencing 01 July 1980. To secure payment, the Manahan spouses executed a deed of chattel mortgage 5 over a motor vehicle, a Ford Cortina 1.6 GL, with motor and serial number CUBFWE-801010. Carmasters later assigned 6 the promissory note and the chattel mortgage to petitioner BA Finance Corporation with the conformity of the Manahans. When the latter failed to pay the due installments, petitioner sent demand letters. The demands not having been heeded, petitioner, on 02 October 1987, filed a complaint for replevin with damages against the spouses, as well as against a John Doe, praying for the recovery of the vehicle with an alternative prayer for the payment of a sum of money should the vehicle not be returned. Upon petitioner's motion and the filing of a bond in the amount of P169,161.00 the lower court issued a writ of replevin. The court, however, cautioned petitioner that should summons be not served on the defendants within thirty (30) days from the writ's issuance, the case would be dismissed to failure to prosecute. 7 The warning was based on what the court perceived to be the deplorable practice of some mortgagees of "freezing (the) foreclosure or replevin cases" which they would so "conveniently utilize as a leverage for the collection of unpaid installments on mortgaged chattels." 8

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

The service of summons upon the spouses Manahan was caused to be served by petitioner at No. 35 Lantana St., Cubao, Quezon City. The original of the summons had the name and the signature of private respondent Roberto M. Reyes indicating that he received, on 14 October 1987, a copy of the summons and the complaint. 9 Forthwith, petitioner, through its Legal Assistant, Danilo E. Solano, issued a certification to the effect that it had received from Orson R. Santiago, the deputy sheriff of the Regional Trial Court of Manila, Branch 20, the Ford Cortina seized from private respondent Roberto M. Reyes, the John Doe referred to in the complaint, 10 in Sorsogon, Sorsogon.11 On 20 October 1987, the lower court came out with an order of seizure. Alleging possession in good faith, private respondent filed, on 26 October 1987, a motion for an extension of time within which to file his answer and/or a motion for intervention. The court granted the motion. A few months later, or on 18 February 1988, the court issued an order which, in part, stated: Perusal of the record shows that an order for the seizure of personal property was issued on October 20, 1987 in pursuance to a previous order of the Court dated October 13, 1987. However, to date, there is no showing that the principal defendants were served with summons inspite of the lapse of four (4) months. Considering, this is a replevin case and to forestall the evils that arise from this practice, plaintiff failing to heed the Order dated October 13, 1987, particularly second paragraph thereof, the above-entitled case is hereby ordered DISMISSED for failure to prosecute and further ordering the plaintiff to return the property seized with all its accessories to defendant John Doe in the person of Roberto M. Reyes. SO ORDERED. 12 On 26 February 1988, petitioner filed a notice of dismissal of the case "without prejudice and without pronouncement as to costs, before service of Summons and Answer, under Section 1, Rule 17, of the Rules of Court." 13 It also sought in another motion the withdrawal of the replevin bond. In view of the earlier dismissal of the case (for petitioner's failure to prosecute), the court, on 02 March 1988, merely noted the notice of dismissal and denied the motion to withdraw the replevin bond considering that the writ of replevin had meanwhile been implemented. 14 On 09 March 1988, private respondent filed a motion praying that petitioner be directed to comply with the court order requiring petitioner to return the vehicle to him. In turn, petitioner filed, on 14 March 1988, a motion for the reconsideration of the orders of 18 February 1988 and 02 March 1988 contending that: (a) the dismissal of

the case was tantamount to adjudication on the merits that thereby deprived it with the remedy to enforce the promissory note, the chattel mortgage and the deed of assignment, under Section 3, Rule 117, of the Rules of Court; (b) the order to return the vehicle to private respondent was a departure from jurisprudence recognizing the right of the mortgagor to foreclose the property to respond to the unpaid obligation secured by the chattel mortgage, and (c) there were no legal and factual bases for the court's view that the filing of the replevin case was "characterized (by) evil practices." 15 On 20 April 1988, the court granted petitioner's motion for reconsideration and accordingly recalled the order directing the return of the vehicle to private respondent, set aside the order dismissing the case, directed petitioner "to cause the service of summons together with a copy of the complaint on the principal defendants within five (5) days from receipt" 16 thereof at petitioner's expense, and ordered private respondent to answer the complaint. A few months later, or on 02 August 1988, petitioner filed a motion to declare private respondent in default. The court granted the motion on that same day and declared private respondent "in default for his failure to file the . . . answer within the reglementary period." 17 The court likewise granted petitioner's motion to set the case for the presentation, ex parte, of evidence. Petitioner, thereupon, submitted the promissory note, the deed of chattel mortgage, the deed of assignment, a statement of account in the name of Florencia Manahan and two demand letters. On 27 February 1989, the trial court rendered a decision dismissing the complaint against the Manahans for failure of petitioner to prosecute the case against them. It also dismissed the case against private respondent for failure of petitioner to show any legal basis for said respondent's liability. The court ratiocinated: . . . . Roberto M. Reyes is merely ancillary debtor in this case. The defendant spouses Manahan being the principal debtor(s) and as there is no showing that the latter has been brought before the jurisdiction of this court, it must necessarily follow that the plaintiff has no cause of action against said Roberto M. Reyes herein before referred to as defendant John Doe. Under the circumstances, it is incumbent upon the plaintiff to return the seized vehicle unto the said Roberto M. Reyes. 18 In its appeal to the Court of Appeals, petitioner has asserted that a suit for replevin aimed at the foreclosure of the chattel is an action quasi in rem which does not necessitate the presence of the principal obligors as long as the court does not render any personal judgment against them. This argument did not persuade the appellate court, the latter holding that — . . . . In action quasi in rem an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property, such as

proceedings having for their sole object the sale or disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy (Sandejas vs. Robles, 81 Phil. 421). In the case at bar, the court cannot render any judgment binding on the defendants spouses for having allegedly violated the terms and conditions of the promissory note and the contract of chattel mortgage on the ground that the court has no jurisdiction over their persons no summons having been served on them. That judgment, it rendered, is void for having denied the defendants spouses due process of law which contemplates notice and opportunity to be heard before judgment is rendered, affecting one's person or property (Macabingkil vs. Yatco, 26 SCRA 150, 157). It is next contended by appellant that as between appellant, as mortgagee, and John Doe, whose right to possession is dubious if not totally non-existent, it is the former which has the superior right of possession. We cannot agree. It is an undisputed fact that the subject motor vehicle was taken from the possession of said Roberto M. Reyes, a third person with respect to the contract of chattel mortgage between the appellant and the defendants spouses Manahan. The Civil Code expressly provides that every possessor has a right to be respected in his possession (Art. 539, New Civil Code); that good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof (Art. 527, ibid.); and that the possession of movable property acquired in good faith is equivalent to a title; nevertheless, one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same (Art. 559, ibid.). Thus, it has been held that a possessor in good faith is entitled to be respected and protected in his possession as if he were the true owner thereof until a competent court rules otherwise (Chus Hai vs. Kapunan, 104 Phil. 110; Yu, et al. vs. Hon. Honrado, etc., et al., 99 SCRA 237). In the case at bar, the trial court did not err in holding that the complaint does not state any cause of action against Roberto M. Reyes, and in ordering the return of the subject chattel to him. 19 The appellate court, subsequently, denied petitioner's motion for reconsideration.

In the instant appeal, petitioner insists that a mortgagee can maintain an action for replevin against any possessor of the object of a chattel mortgage even if the latter were not a party to the mortgage. Replevin, broadly understood, is both a form of principal remedy and of a provisional relief. It may refer either to the action itself, i.e., to regain the possession of personal chattels being wrongfully detained from the plaintiff by another, or to the provisional remedy that would allow the plaintiff to retain the thing during the pendency of the action and hold it pendente lite. 20 The action is primarily possessory in nature and generally determines nothing more than the right of possession. Replevin is so usually described as a mixed action, being partly in rem and partly in personam — in rem insofar as the recovery of specific property is concerned, and in personam as regards to damages involved. As an "action in rem," the gist of the replevin action is the right of the plaintiff to obtain possession of specific personal property by reason of his being the owner or of his having a special interest therein. 21 Consequently, the person in possession of the property sought to be replevied is ordinary the proper and only necessary party defendant, and the plaintiff is not required to so join as defendants other persons claiming a right on the property but not in possession thereof. Rule 60 of the Rules of Court allows an application for the immediate possession of the property but the plaintiff must show that he has a good legal basis, i.e., a clear title thereto, for seeking such interim possession. Where the right of the plaintiff to the possession of the specific property is so conceded or evident, the action need only be maintained against him who so possesses the property. In rem actio est per quam rem nostram quae ab alio possidetur petimus, et semper adversus eum est qui rem possidet. In Northern Motors, Inc. vs. Herrera, 22the Court has said: There can be no question that persons having a special right of property in the goods the recovery of which is sought; such as a chattel mortgagee, may maintain an action for replevin therefor. Where the mortgage authorizes the mortgagee to take possession of the property on default, he may maintain an action to recover possession of the mortgaged chattels from the mortgagor or from any person in whose hands he may find them. 23 In effect then, the mortgagee, upon the mortgagor's default, is constituted an attorney-in-fact of the mortgagor enabling such mortgagee to act for and in behalf of the owner. Accordingly, that the defendant is not privy to the chattel mortgage should be inconsequential. By the fact that the object of replevin is traced to his possession, one properly can be a defendant in an action for replevin. It is here assumed that the plaintiffs right to possess the thing is not or cannot be disputed. In case the right of possession on the part of the plaintiff, or his authority to claim such possession or that of his principal, is put to great doubt (a contending party might contest the legal bases for plaintiffs cause of action or an adverse and independent

claim of ownership or right of possession is raised by that party), it could become essential to have other persons involved and accordingly impleaded for a complete determination and resolution of the controversy. For instance, in Servicewide Specialists, Inc., vs. Court of Appeals, et al., G.R. No. 103301, 08 December 1995, this Court ruled. While, in its present petition for review on certiorari, Servicewide has raised a number of points, the crucial issue still remains, however, to be whether or not an action filed by the mortgagee for replevin to effect a foreclosure of the property covered by the chattel mortgage would require that the mortgagor be so impleaded as an indispensable party thereto. Rule 60 of the Rules of Court allows a plaintiff, in an action for the recovery of possession of personal property, to apply for a writ of replevin if it can be shown that he is the owner of the property claimed . . . or is entitled to the possession thereof.' The plaintiff need not be the owner so long as he is able to specify his right to the possession of the property and his legal basis therefor. The question then, insofar as the matter finds relation to the instant case, is whether or not the plaintiff (herein petitioner) who has predicated his right on being the mortgagee of a chattel mortgage should implead the mortgagor in his complaint that seeks to recover possession of the encumbered property in order to effect its foreclosure. The answer has to be in the affirmative. In a suit for replevin, a clear right of possession must be established. A foreclosure under a chattel mortgage may properly be commenced only once there is default on the part of the mortgagor of his obligation secured by the mortgage. The replevin in the instant case has been sought to pave the way for the foreclosure of the object covered by the chattel mortgage. The conditions essential for that foreclosure would be to show, firstly, the existence of the chattel mortgage and, secondly, the default of the mortgagor. These requirements must be established since the validity of the plaintiffs exercise of the right of foreclosure are inevitably dependent thereon. It would thus seem, considering particularly an adverse and independent claim of ownership by private respondent that the lower court acted improvidently when it granted the dismissal of the complaint against Dollente, albeit on petitioner's (then plaintiff) plea, on the ground that the "non-service of summons upon Ernesto Dollente (would) only delay the determination of the merits of the case, to the prejudice of the parties." In Imson v. Court of Appeals, we have explained: . . . . An indispensable party is one whose interest will be affected by the court's action

in the litigation, and without whom no final determination of the case can be had. The party's interest in the subject matter of the suit and in the relief sought are so inextricably intertwined with the other parties' that his legal presence as a party to the proceeding is an absolute necessity. In his absence there cannot be a resolution of the dispute of the parties before the court which is effective, complete, or equitable. Conversely, a party is not indispensable to the suit if his interest in the controversy or subject matter is distinct and divisible from the interest of the other parties and will not necessarily be prejudiced by a judgment which does complete justice to the parties in court. He is not indispensable if his presence would merely permit complete relief between him and those already parties to the action or will simply avoid multiple litigation. Without the presence of indispensable parties to a suit or proceeding, a judgment of a court cannot attain real finality. (Footnotes omitted.) A chattel mortgagee, unlike a pledgee, need not be in, nor entitled to the possession of the property unless and until the mortgagor defaults and the mortgagee thereupon seeks to foreclose thereon. Since the mortgagee's right of possession is conditioned upon the actual fact of default which itself may be controverted, the inclusion of other parties like the debtor or the mortgagor himself, may be required in order to allow a full and conclusive determination of the case. When the mortgagee seeks a replevin in order to effect the eventual foreclosure of the mortgage, it is not only the existence of, but also the mortgagor's default on, the chattel mortgage that, among other things, can properly uphold the right to replevy the property. The burden to establish a valid justification for that action lies with the plaintiff. An adverse possessor, who is not the mortgagor, cannot just be deprived of his possession, let alone be bound by the terms of the chattel mortgage contract, simply because the mortgagee brings up an action for replevin. The appellate court, accordingly, acted well in arriving at its now questioned judgment. WHEREFORE, the decision of the Court of Appeals is AFFIRMED No costs. SO ORDERED.

137. 4 The respondent appellate Court found the antecedent facts, to be as follows: 5 Republic of the Philippines SUPREME COURT Manila THIRD DIVISION The plaintiff-respondent Johnson & Johnson (Phils.), Incorporated (hereinafter referred to as the corporation) is engaged in the manufacturing and selling of various cosmetics, health, and body care products, as well as medical drugs. On several occasions in the year 1982, the defendant, Delilah Vinluan, purchased products of the plaintiff-respondent corporation, as she was also engaged in the business of retailing Johnson products, among others. The defendants, under the name and style of "Vinluan Enterprises," thus incurred an obligation of Two Hundred ThirtyFive Thousand Eight Hundred Eighty Pesos and Eighty-Nine (P235,880.89) Centavos, for which she issued seven (7) Philippine Banking Corporation checks of varying amounts and due dates. When presented on their respective due dates, however, the checks given in payment of the obligation bounced and were dishonored for having been drawn against insufficient funds. Several demands thereafter for payment were to no avail, despite the accommodations given by the plaintiff-respondent corporation by granting several extensions to the defendant spouses to settle the obligation. It was only on January 5, 1983 that the defendants made a partial payment of Five Thousand (P5,000.00) Pesos, thereby reducing their principal obligation to P230,880.89. When no further payments were made to settle the obligation despite repeated demands, the plaintiff-respondent corporation was constrained to file a complaint (Annex "A") on June 8, 1983 against defendant spouses Vinluan, for collection of the principal obligation plus interest, with damages. Filed before the respondent Regional Trial Court of Makati, Branch 137, it was docketed as Civil Case No. 4186. After trial on the merits, on February 5, 1985, the respondent court rendered its Decision (Annex "C"), the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered sentencing the defendant DELILAH A. VINLUAN to pay plaintiff Johnson & Johnson (Phils.), Inc, the sum of P242,482.40 with interest and penalty charges at the rate of 2% per month from 30 January 1983 until fully paid, and the sum of

G.R. No. 102692 September 23, 1996 JOHNSON & JOHNSON (PHILS.), INC., petitioner, vs. COURT OF APPEALS and ALEJO M. VINLUAN, respondents.

PANGANIBAN, J.: May a husband be held liable for the debts of his wife which were incurred without his consent and which did not benefit the conjugal partnership? May a judgment declaring a wife solely liable, be executed uponconjugal property, over the objection of the husband? These are the main questions raised in the instant petition for review on certiorari under Rule 45 of the Rules of Court which seeks nullification of the Decision 1 in CA-G.R. SP No. 19178 of the Court of Appeals,2 the dispositive portion of which reads: WHEREFORE, in view of all the foregoing, the instant petition is hereby GRANTED, and the orders dated July 24, 1989 and October 4, 1989 of the Regional Trial Court of Makati, Branch 137, in Civil Case No. 4186, as well as the notices of levy issued by the Provincial Sheriff of Rizal dated February 8, 1989, are hereby declared null and void and set aside. No costs. The Facts This case was initiated in the trial court by a complaint 3 filed by petitioner against spouses Delilah A. Vinluan, owner of Vinluan Enterprises, and her husband Capt. Alejo M. Vinluan (the private respondent before us), for collection of a sum of money with damages, which was docketed as Civil Case No. 4186 and tried in the Regional Trial Court of Makati, Branch

P30,000.00 as attorney's fees, and to pay the costs. Defendants' counterclaim is hereby dismissed for lack of sufficient merit. In arriving at the sole liability of defendant Delilah A. Vinluan, the trial court found after "meticulous scrutiny and careful evaluation of the evidence on record" that there was "no privity of contract, whether direct or indirect, between plaintiff and defendant-husband regarding the obligations incurred by defendant-wife." According to the trial court, "(i)n fact, the acts performed, and the statements made, by defendant-husband, and from which plaintiff derived the notion that said defendant is a co-owner of VINLUAN ENTERPRISES, took place after the obligation involved in this action had been incurred or contracted by the defendant-wife, albeit without the husband's knowledge or consent, as there was no allegation in the complaint that said obligations were incurred by defendant-wife with her husband's consent, or that it was incurred for the benefit of the family. . . ." 6 The trial court also found that private respondent never intimated in his conversations or meetings with, or in any of his letters to, petitioner that "he was a co-owner of VINLUAN ENTERPRISES, much less did he represent himself as such co-owner, to the plaintiff and to plaintiff's counsel . . . ." When private respondent personally negotiated with petitioner and proposed a settlement of the subject obligations, these actuations were not to be considered as admission of co-ownership of VINLUAN ENTERPRISES for "(a)fter all, common sense and our inborn mores of conduct dictate that a husband must give aid and comfort to his distressed wife." 7 The trial court further held that the defendant spouses had sufficiently established that the defendant wife was sole owner of the business venture, that the conjugal partnership never derived any benefit therefrom, and that the same closed due to continued losses. In sum, the court a quo held that private respondent could not legally be held liable for the obligations contracted by the wife. Thus, the court below issued a writ of execution 8 on February 3, 1989, directing the Provincial Sheriff of Rizal to execute the judgment on the properties of the defendant-wife. However, the two notices of levy on execution 9 issued on February 8, 1989 covered not only her exclusive or paraphernal properties, but also the real and personal properties of the conjugal partnership of the spouses Vinluan. The next day, her husband (herein private respondent) filed a third-party claim 10 seeking the lifting of the levy on the conjugal properties, followed by another third-party claim reiterating the same demand with threat of possible lawsuit. Subsequently, petitioner corporation filed a motion dated February 14, 1989 asking the court to fix the value of the properties levied upon by the sheriff. In response

to the third-party claims of private respondent, a comment and/or opposition dated March 6, 1989 was filed by petitioner. Private respondent moved on July 1, 1989 to quash the levy on execution on the ground that the notices of levy on execution did not conform to the final decision of the court and to the writ of execution. As expected, petitioner opposed the motion. On July 24, 1989, the trial court issued the first assailed Order fixing the value of the levied personal properties at P300,000.00, and denying the third-party claim and the motion to quash the levy on execution. Citing the last sentence of Article 117 11 of the Civil Code, the court a quoruled that: 12 Since Alejo Vinluan did not seek the intervention of the Court to air his objections in his wife's engaging in business, coupled by the fact that he made several representations for the settlement of his wife's account, Alejo Vinluan's consent thereto became evident. As such, even his own capital may be liable, together with the conjugal and paraphernal property (I Paras 363, 1987 ed., p. 6; Art. 6-10, Code of Commerce). Withal, Article 172 of the New Civil Code categorically declares that — The wife cannot bind the conjugal partnership without the husband's consent, except in the cases provided by law. Granting arguendo that Alejo Vinluan did not give his consent, expressly or impliedly, the paraphernal and conjugal property may still be held liable but not his capital (I Paras 363, 1978 ed.). Petitioner's motion for reconsideration of the abovequoted first order (on the ground that it directly contravened the decision itself which had already become final and executory) was denied via the second contested Order dated October 4, 1989, where the trial court ruled: 13 The Court finds untenable movant-defendant's assertion that Art. 172 of the New Civil Code is not in point. The consent of the husband is indeed vital in determining what properties shall be subsidiarily liable in the event the paraphernal properties of Delilah Vinluan should turn out to be insufficient to cover the judgment debt, as fully explained in the Order dated 24 July 1989. Art. 122 of the Family Code which party provides that — Art. 122. The 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. xxx xxx xxx is not applicable in that — This Code (Family 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 (Art. 255, Family Code; emphasis supplied). Plaintiff (petitioner herein), having acquired a vested right prior to the effectivity of the Family Code, said code is not a propos (sic). Even granting arguendo that the same is befitting, movant defendant failed to realize that although Delilah Vinluan suffered losses in her legitimate business, the experience she has gained redounded to the benefit of the family, and as such, the conjugal partnership must bear the indebtedness and losses (I Paras 464, 1981 ed.). Moreover, had the business Delilah Vinluan engaged in been a success, all profits would have been considered conjugal; it is therefore but fair that the risks of the business should be borne by the conjugal partnership (Miravite, Bar Review Materials in Commercial Law, 1986 ed., p. 89; J.N. Nolledo, Commercial Law Reviewer, 1986 ed., pp. 6, 7; U.P. Law Complex, Answers to Bar Questions In Commercial Law, 1986 ed., pp. 174, 175; Vitug, Commercial Law Reviewer, 1984, ed., p. 5). There is a wide-embracing oversight when movant-defendant asserted that to hold the conjugal partnership property liable for the indebtedness incurred solely by his wife would in effect modify the Decision dated 5 Feb 1985 which is now final and executory. As afore-discussed, the conjugal property is subsidiarily liable. As indicated above, the private respondent elevated the matter to the respondent appellate Court, charging the trial court with grave abuse of discretion for effectively reversing its own final judgment. The respondent Court upheld the private respondent in its now-assailed Decision, and denied herein petitioner's subsequent motion for reconsideration. Thus, petitioner is now before us seeking review under Rule 45. The Issues

Petitioner raised the following "issues of law" for consideration of this Court, to wit: 14 1. Whether or not the decision of the honorable trial court dated February 5, 1985 exonerating (sic) defendant husband, private respondent herein, from the obligation contracted by the wife in the pursuit of her business also absolves the conjugal partnership from liability. 2. Whether or not the subsequent order of the honorable trial court dated July 24, 1989 and October 4, 1989 is a reversal of its own original decision as found out by the honorable public respondent. The pivotal issues in this case may be re-stated thus: whether or not the order of the trial court denying private respondent's third-party claim and motion to quash levy on execution in effect amended the dispositive portion of the trial court's decision which had long become final and executory, and if so, whether same is proper or not. These issues shall be ruled upon together. The Court's Ruling Petitioner contends 15 that the purpose of impleading private respondent as co-defendant in petitioner's complaint was to bind not only the defendantspouses' conjugal partnership but also private respondent's capital. The trial court resolved that it was not necessary that private respondent (as husband) be joined as party-defendant in the suit below. Inasmuch as it appeared from the allegations in the complaint that private respondent may be a co-owner of Vinluan Enterprises, the trial court nonetheless did not exclude private respondent but passed upon the issue of such co-ownership to determine whether he may be held liable in the same manner as his wife. Petitioner insists that the trial court in its decision merely made a finding that the private respondent husband was not a co-owner of the business venture of his wife, which conclusion ("exoneration") only exempted his capital from the adjudged liability, but not the conjugal properties of the spouses. Petitioner further argues that nowhere in the trial court's decision can there be found any pronouncement absolving the conjugal property from liability, contrary to the findings of the respondent Court. Also, petitioner reasons that the enforcement of the decision against the conjugal property is merely compliance with law, and that this Court in a long line of cases 16 held that a judgment is not confined to what appears upon the face of the decision but also those necessarily included therein or necessary thereto. 17 Additionally, petitioner pleads that the trial court's order did not modify its final and executory decision but only clarified an

ambiguity in the decision as to what properties are liable. As authority, it citesRepublic vs. De los Angeles. 18 Petitioner's contentions are devoid of merit. Respondent Court correctly ruled that the trial court cannot, in the guise of deciding the third-party claim, reverse its final decision. Commenting on the trial court's very patent "about-face" on the issues of consent of the husband, benefit to the family, and the husband's liability for obligations contracted by his wife, the appellate Court held, and we quote: 19 We see in these stark contradictions an attempt by the respondent Court to reverse itself, even when the decision sought to be executed had already become final. The respondent Court has no authority to modify or vary the terms and conditions of a final and executory judgment (Vda. de Nabong vs. Sadang, 167 SCRA 232) and this attempt to thwart the rules cannot be allowed to pass. Even if the respondent Court feels that it needed to reverse its findings to correct itself, the decision, whether erroneous or not, has become the law of the case between the parties upon attaining finality (Balais vs. Balais, 159 SCRA 37). the respondent Court has no choice but to order the execution of the final decision according to what is ordained and decreed in the dispositive portion of the decision (National Steel Corp. vs. NLRC, 165 SCRA 452). The dispositive portion of the decision charges the defendant Delilah Vinluan alone to pay the plaintiff corporation, having already declared that the defendant-husband cannot be held legally liable for his wife's obligations. Perhaps, when it was later discovered that the defendant Delilah Vinluan did not have sufficient property of her own to settle the obligation, the conjugal properties of the defendant-spouses became the object of the levy. But in order to bind the conjugal partnership and its properties, the New Civil Code provides that the debts and obligations contracted by the husband (or the wife) must be for the benefit of the conjugal partnership (Article 161, par. 1); and that the husband must consent to his wife's engaging in business (Article 117). Thus, we see a belated effort on the part of the respondent Court to reverse itself by declaring that the obligations incurred by the defendant wife redounded to the benefit of the family and that the defendant husband had given his consent, in order to bind the conjugal partnership.

As We stated earlier, this cannot be done because the decision, along with the respondent Court's original findings, had already become final and indisputable. The respondent Court already found that the defendant husband did not give his consent; neither did the obligation incurred by the defendant wife redound to the benefit of the family. Hence, the conjugal partnership, as well as the defendant husband, cannot be held liable. As originally decreed by the Court, only the defendant wife and her paraphernal property can be held liable. Since the power of the court in execution of judgments extends only to properties unquestionably belonging to the judgment debtor alone (Republic vs. Enriquez, 166 SCRA 608), the conjugal properties and the capital of the defendant husband cannot be levied upon. The settled rule is that a judgment which has acquired finality becomes immutable and unalterable, and hence may no longer be modified in any respect except only to correct clerical errors or mistakes — all the issues between the parties being deemed resolved and laid to rest. 20 This is meant to preserve the stability of decisions rendered by the courts, and to dissuade parties from trifling with court processes. One who has submitted his case to a regular court necessarily commits himself to abide by whatever decision the court may render. Any error in the decision which has not been considered in a timely motion for reconsideration or appeal cannot be impugned when such error becomes apparent only during execution. This rule applies with more force in the case of to decision judge who has limited prerogative during execution of the judgment. For as correctly held by herein public respondent, aside from ordering the enforcement of the dispositive portion of the decision, the trial judge can do nothing about the errors in the ratiocination of the decision or even alter the dispositive portion by mere order issued subsequent to the finality of the decision. The issue having been laid to rest, the court cannot on the pretext of determining the validity of the third-party claim and the motion to quash levy on execution alter the scope of the dispositive portion of the decision sought to be implemented. Petitioner's arguments notwithstanding, the trial court's order cannot be said to be merely clarificatory in nature. There is no ambiguity at all in the decision, for it categorically declared defendant Delilah A. Vinluan solely liable, without any recourse provided against her husband. Thus, the case of Republic vs. Delos Angeles, 21 holding that doubtful or ambiguous judgments are to have a reasonable intendment to do justice and avoid wrong, does not apply here. as was later held in Filinvest Credit Corporation vs. Court of Appeals, 22 "(w)here there is an ambiguity, a judgment shall be read in connection with the entire record and construed accordingly. In such a case, it is proper to consider the pleadings and the evidence." (Emphasis supplied). But the text of the trial court's decision points to no other person liable but Delilah Vinluan, and in fact made a rather lengthy discussion on the exemption from liability of the conjugal partnership; hence, there can be no ambiguity to speak of in the decision.

And even more clearly, the body of the decision of the trial court expressly exempted private respondent from liability by categorically ruling that "the defendant-husband cannot, together, with co-defendant, legally be held liable for the obligations contracted by the wife." 23 Further, the trial court expounded: 24 . . . . What is more, it is an admitted fact that the subject obligations had partially been paid by the defendant-wife herself. Thus, plaintiff implicitly averred that "defendant Delilah Vinluan, ding business under the name and style of VINLUAN ENTERPRISES is one of the various customers of the plaintiff's products' (Cf. p. 1, Plaintiff's Pre-Trial Brief); that "Delilah Vinluan . . . purchased different Johnson products . . . , thus incurring an obligation of P235,880.89" (Cf. par. III, Complaint); that "defendant Delilah Vinluan tried to pay (her) obligations . . . when she issued Philippine Banking Checks . . . , but which checks upon presentment to the Bank were dishonored for the reason "Drawn Against Insufficient Funds" (Cf. par. V, id.); that " . . . , defendant Delilah A. Vinluan appealed to the company and also represented that she be given an opportunity to settle the accountability" (Cf. par. VI, id.); that "defendant sent a letter to the company where she alleged that payment cannot be made because they are "victims of some bad practices in the trade and that they are working on some means to settle their accounts and all that they ask is time to settle." (Cf. par. VI, id.). We take this occasion to reiterate the ruling of this Court in an early case 25 that litigations must end and terminate sometime and somewhere, it being essential to the effective and efficient 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. Hence, courts must guard against any scheme calculated to bring about that result, for, constituted as they are to put an end to controversies, courts should frown upon any attempt to prolong them. Furthermore, public policy and sound practice demand that at the risk of occasional errors, judgments of courts should become final and irrevocable at some definite date fixed by law. And this is better observed if the court executing the judgment would refrain from creating further controversy by effectively modifying and altering the dispositive portion of the decision, thus further delaying the satisfaction of the judgment. No matter how just the intention of the trial court, it cannot legally reverse what has already been settled. Holding the conjugal partnership liable in the order after the finality of the decision is evidently not just correcting a mere clerical error; it goes into the merits of the case. And this is prohibited by the rules and jurisprudence. We have elsewhere ruled that "should judgment of lower courts — which may normally be subject to review by higher tribunals — become final and executory before, or without, exhaustion of all recourse of appeal, they, too, become inviolable, impervious to modification. They may, then, no longer be

reviewed, or in any way modified directly or indirectly, by a higher court, not even by the Supreme Court, much less by any other official, branch or department of Government." 26 . . . (N)othing is more settled in the law than that when a final judgment becomes executory, it thereby becomes immutable and unalterable. The judgment 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, and regardless of whether the modification is attempted to be made by the Court rendering it or by the highest Court of land. They only recognized exceptions are the correction of clerical errors or the making of so-called nunc pro tunc entries which cause no prejudice to any party, and, of course, where the judgment is void. Furthermore, "(a)ny amendment or alteration which substantially affects a final and executory judgment is null and void for lack of jurisdiction, including the entire proceedings held for that purpose." 27 The respondent Court also commented on the sheriff's actuations as follows: 28 Furthermore, it is the duty of the sheriff to ensure that only that portion of the decision ordained and decreed in the dispositive part should be the subject of the execution (Cunanan vs. Cruz, 167 SCRA 674). The writ of execution itself states that only the properties of the defendant wife were to be levied upon. There was no mention even of conjugal properties. Hence, in levying on the properties that did not exclusively belong to the judgment debtor, the notices of levy failed to conform to the decree of the decision, and are, therefore, irregular and contrary to the Rules (Canlas vs. CA, 164 SCRA 160). It is a rule firmly established in our jurisprudence that a sheriff is not authorized to attach or levy on property not belonging to the judgment debtor. 29 A sheriff even incurs liability if he wrongfully levies upon the property of a third person. 30 A sheriff has no authority to attach the property of any person under execution except that of the judgment debtor. The sheriff maybe liable for enforcing execution on property belonging to a third party. 31 If he does so, the writ of execution affords him no justification, for the action is not in obedience to the mandate of the writ. WHEREFORE, in view of the foregoing considerations, the herein petition is hereby DENIED, and the Decision of the respondent Court is AFFIRMED. Costs against petitioner.

SO ORDERED.

3. The lower court erred in not holding that one-half (½) of the proceeds of the policy in question is community property and that therefore no inheritance tax can be levied, at least on one-half (½) of the said proceeds. 4. The lower court erred in not declaring that it would be unconstitutional to impose an inheritance tax upon the insurance policy here in question as it would be a taking of property without due process of law. Republic of the Philippines SUPREME COURT Manila EN BANC The present complaint seeks to recover from the defendant Juan Posadas, Jr., Collector of Internal Revenue, the amount of P1,209 paid by the plaintiff under protest, in its capacity of administrator of the estate of the late Adolphe Oscar Schuetze, as inheritance tax upon the sum of P20,150, which is the amount of an insurance policy on the deceased's life, wherein his own estate was named the beneficiary. At the hearing, in addition to documentary and parol evidence, both parties submitted the following agreed statement of facts of the court for consideration: It is hereby stipulated and agreed by and between the parties in the aboveentitled action through their respective undersigned attorneys: 1. That the plaintiff, Rosario Gelano Vda. de Schuetze, window of the late Adolphe Oscar Schuetze, is of legal age, a native of Manila, Philippine Islands, and is and was at all times hereinafter mentioned a resident of Germany, and at the time of the death of her husband, the late Adolphe Oscar Schuetze, she was actually residing and living in Germany; 2. That the Bank of the Philippine Islands, is and was at all times hereinafter mentioned a banking institution duly organized and existing under and by virtue of the laws of the Philippine Islands; 3. That on or about August 23, 1928, the herein plaintiff before notary public Salvador Zaragoza, drew a general power appointing the above-mentioned Bank of the Philippine Islands as her attorney-in-fact, and among the powers conferred to said attorney-in-fact was the power to represent her in all legal actions instituted by or against her; 4. That the defendant, of legal age, is and at all times hereinafter mentioned the duly appointed Collector of Internal Revenue with offices at Manila, Philippine Islands; 5. That the deceased Adolphe Oscar Schuetze came to the Philippine Islands for the first time of March 31, 1890, and worked in the several German firms as a mere employee and that from the year 1903 until the year 1918 he was partner in the business of Alfredo Roensch;

G.R. No. L-34583

October 22, 1931

THE BANK OF THE PHILIPPINE ISLANDS, administrator of the estate of the late Adolphe Oscar Schuetze,plaintiff-appellant, vs. JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellee. Araneta, De Joya, Zaragoza and Araneta for appellant. Attorney-General Jaranilla for appellee.

VILLA-REAL, J.: The Bank of the Philippine Islands, as administrator of the estate of the deceased Adolphe Oscar Schuetze, has appealed to this court from the judgment of the Court of First Instance of Manila absolving the defendant Juan Posadas, Jr., Collector of Internal Revenue, from the complaint filed against him by said plaintiff bank, and dismissing the complaint with costs. The appellant has assigned the following alleged errors as committed by the trial court in its judgment, to wit: 1. The lower court erred in holding that the testimony of Mrs. Schuetze was inefficient to established the domicile of her husband. 2. The lower court erred in holding that under section 1536 of the Administrative Code the tax imposed by the defendant is lawful and valid.

6. That from 1903 to 1922 the said Adolphe Oscar Schuetze was in the habit of making various trips to Europe; 7. That on December 3, 1927, the late Adolphe Oscar Schuetze coming from Java, and with the intention of going to Bremen, landed in the Philippine Islands where he met his death on February 2, 1928; 8. That on March 31, 1926, the said Adolphe Oscar Schuetze, while in Germany, executed a will, in accordance with its law, wherein plaintiff was named his universal heir; 9. That the Bank of the Philippine Islands by order of the Court of First Instance of Manila under date of May 24, 1928, was appointed administrator of the estate of the deceased Adolphe Oscar Schuetze; 10. That, according to the testamentary proceedings instituted in the Court of First Instance of Manila, civil case No. 33089, the deceased at the time of his death was possessed of not only real property situated in the Philippine Islands, but also personal property consisting of shares of stock in nineteen (19) domestic corporations; 11. That the fair market value of all the property in the Philippine Islands left by the deceased at the time of his death in accordance with the inventory submitted to the Court of First Instance of Manila, civil case No. 33089, was P217,560.38; 12. That the Bank of the Philippine Islands, as administrator of the estate of the deceased rendered its final account on June 19, 1929, and that said estate was closed on July 16, 1929; 13. That among the personal property of the deceased was found lifeinsurance policy No. 194538 issued at Manila, Philippine Islands, on January 14, 1913, for the sum of $10,000 by the Sun Life Assurance Company of Canada, Manila branch, a foreign corporation duly organized and existing under and by virtue of the laws of Canada, and duly authorized to transact business in the Philippine Islands; 14. That in the insurance policy the estate of the said Adolphe Oscar Schuetze was named the beneficiary without any qualification whatsoever; 15. That for five consecutive years, the deceased Adolphe Oscar Schuetze paid the premiums of said policy to the Sun Life Assurance Company of Canada, Manila branch;

16. That on or about the year 1918, the Sun Life Assurance Company of Canada, Manila branch, transferred said policy to the Sun Life Assurance Company of Canada, London branch; 17. That due to said transfer the said Adolphe Oscar Schuetze from 1918 to the time of his death paid the premiums of said policy to the Sun Life Assurance Company of Canada, London Branch; 18. That the sole and only heir of the deceased Adolphe Oscar Schuetze is his widow, the plaintiff herein; 19. That at the time of the death of the deceased and at all times thereafter including the date when the said insurance policy was paid, the insurance policy was not in the hands or possession of the Manila office of the Sun Life Assurance Company of Canada, nor in the possession of the herein plaintiff, nor in the possession of her attorney-in-fact the Bank of the Philippine Islands, but the same was in the hands of the Head Office of the Sun Life Assurance Company of Canada, at Montreal, Canada; 20. That on July 13, 1928, the Bank of the Philippine Islands as administrator of the decedent's estate received from the Sun Life Assurance Company of Canada, Manila branch, the sum of P20,150 representing the proceeds of the insurance policy, as shown in the statement of income and expenses of the estate of the deceased submitted on June 18, 1929, by the administrator to the Court of First Instance of Manila, civil case No. 33089; 21. That the Bank of the Philippine Islands delivered to the plaintiff herein the said sum of P20,150; 22. That the herein defendant on or about July 5, 1929, imposed an inheritance tax upon the transmission of the proceeds of the policy in question in the sum of P20,150 from the estate of the late Adolphe Oscar Schuetze to the sole heir of the deceased, or the plaintiff herein, which inheritance tax amounted to the sum of P1,209; 23. That the Bank of the Philippine Islands as administrator of the decedent's estate and as attorney-in-fact of the herein plaintiff, having been demanded by the herein defendant to pay inheritance tax amounting to the sum of P1,209, paid to the defendant under protest the above-mentioned sum; 24. That notwithstanding the various demands made by plaintiff to the defendant, said defendant has refused and refuses to refund to plaintiff the above mentioned sum of P1,209;

25. That plaintiff reserves the right to adduce evidence as regards the domicile of the deceased, and so the defendant, the right to present rebuttal evidence; 26. That both plaintiff and defendant submit this stipulation of facts without prejudice to their right to introduce such evidence, on points not covered by the agreement, which they may deem proper and necessary to support their respective contentions. In as much as one of the question raised in the appeal is whether an insurance policy on said Adolphe Oscar Schuetze's life was, by reason of its ownership, subject to the inheritance tax, it would be well to decide first whether the amount thereof is paraphernal or community property. According to the foregoing agreed statement of facts, the estate of Adolphe Oscar Schuetze is the sole beneficiary named in the life-insurance policy for $10,000, issued by the Sun Life Assurance Company of Canada on January 14, 1913. During the following five years the insured paid the premiums at the Manila branch of the company, and in 1918 the policy was transferred to the London branch. The record shows that the deceased Adolphe Oscar Schuetze married the plaintiff-appellant Rosario Gelano on January 16, 1914. With the exception of the premium for the first year covering the period from January 14, 1913 to January 14, 1914, all the money used for paying the premiums, i. e., from the second year, or January 16, 1914, or when the deceased Adolphe Oscar Schuetze married the plaintiff-appellant Rosario Gelano, until his death on February 2, 1929, is conjugal property inasmuch as it does not appear to have exclusively belonged to him or to his wife (art. 1407, Civil Code). As the sum of P20,150 here in controversy is a product of such premium it must also be deemed community property, because it was acquired for a valuable consideration, during said Adolphe Oscar Schuetze's marriage with Rosario Gelano at the expense of the common fund (art. 1401, No. 1, Civil Code), except for the small part corresponding to the first premium paid with the deceased's own money. In his Commentaries on the Civil Code, volume 9, page 589, second edition, Manresa treats of life insurance in the following terms, to wit: The amount of the policy represents the premiums to be paid, and the right to it arises the moment the contract is perfected, for at the moment the power of disposing of it may be exercised, and if death occurs payment may be demanded. It is therefore something acquired for a valuable consideration during the marriage, though the period of its fulfillment, depend upon the death of one of the spouses, which terminates the partnership. So considered, the question may be said to be decided by articles 1396 and 1401: if the premiums are paid with the exclusive property of husband or wife, the policy belongs to the owner; if with conjugal

property, or if the money cannot be proved as coming from one or the other of the spouses, the policy is community property. The Supreme Court of Texas, United States, in the case of Martin vs. Moran (11 Tex. Civ. A., 509) laid down the following doctrine: COMMUNITY PROPERTY — LIFE INSURANCE POLICY. — A husband took out an endowment life insurance policy on his life, payable "as directed by will." He paid the premiums thereon out of community funds, and by his will made the proceeds of the policy payable to his own estate. Held, that the proceeds were community estate, one-half of which belonged to the wife. In In re Stan's Estate, Myr. Prob. (Cal.), 5, the Supreme Court of California laid down the following doctrine: A testator, after marriage, took out an insurance policy, on which he paid the premiums from his salary. Held that the insurance money was community property, to one-half of which, the wife was entitled as survivor. In In re Webb's Estate, Myr. Prob. (Cal.), 93, the same court laid down the following doctrine: A decedent paid the first third of the amount of the premiums on his life-insurance policy out of his earnings before marriage, and the remainder from his earnings received after marriage. Held, that one-third of the policy belonged to his separate estate, and the remainder to the community property. Thus both according to our Civil Code and to the ruling of those North American States where the Spanish Civil Code once governed, the proceeds of a life-insurance policy whereon the premiums were paid with conjugal money, belong to the conjugal partnership. The appellee alleges that it is a fundamental principle that a life-insurance policy belongs exclusively to the beneficiary upon the death of the person insured, and that in the present case, as the late Adolphe Oscar Schuetze named his own estate as the sole beneficiary of the insurance on his life, upon his death the latter became the sole owner of the proceeds, which therefore became subject to the inheritance tax, citing Del Val vs. Del Val (29 Phil., 534), where the doctrine was laid down that an heir appointed beneficiary to a life-insurance policy taken out by the deceased, becomes the absolute owner of the proceeds of such policy upon the death of the insured. The estate of a deceased person cannot be placed on the same footing as an individual heir. The proceeds of a life-insurance policy payable to the estate of the insured passed to the executor or administrator of such estate, and forms part of its

assets (37 Corpus Juris, 565, sec. 322); whereas the proceeds of a life-insurance policy payable to an heir of the insured as beneficiary belongs exclusively to said heir and does not form part of the deceased's estate subject to administrator. (Del Val vs. Del Val, supra; 37 Corpus Juris, 566, sec. 323, and articles 419 and 428 of the Code of Commerce.) Just as an individual beneficiary of a life-insurance policy taken out by a married person becomes the exclusive owner of the proceeds upon the death of the insured even if the premiums were paid by the conjugal partnership, so, it is argued, where the beneficiary named is the estate of the deceased whose life is insured, the proceeds of the policy become a part of said estate upon the death of the insured even if the premiums have been paid with conjugal funds. In a conjugal partnership the husband is the manager, empowered to alienate the partnership property without the wife's consent (art. 1413, Civil Code), a third person, therefore, named beneficiary in a life-insurance policy becomes the absolute owner of its proceeds upon the death of the insured even if the premiums should have been paid with money belonging to the community property. When a married man has his life insured and names his own estate after death, beneficiary, he makes no alienation of the proceeds of conjugal funds to a third person, but appropriates them himself, adding them to the assets of his estate, in contravention of the provisions of article 1401, paragraph 1, of the Civil Code cited above, which provides that "To the conjugal partnership belongs" (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." Furthermore, such appropriation is a fraud practised upon the wife, which cannot be allowed to prejudice her, according to article 1413, paragraph 2, of said Code. Although the husband is the manager of the conjugal partnership, he cannot of his own free will convert the partnership property into his own exclusive property. As all the premiums on the life-insurance policy taken out by the late Adolphe Oscar Schuetze, were paid out of the conjugal funds, with the exceptions of the first, the proceeds of the policy, excluding the proportional part corresponding to the first premium, constitute community property, notwithstanding the fact that the policy was made payable to the deceased's estate, so that one-half of said proceeds belongs to the estate, and the other half to the deceased's widow, the plaintiff-appellant Rosario Gelano Vda. de Schuetze. The second point to decide in this appeal is whether the Collector of Internal Revenue has authority, under the law, to collect the inheritance tax upon one-half of the life-insurance policy taken out by the late Adolphe Oscar Schuetze, which belongs to him and is made payable to his estate. According to the agreed statement of facts mentioned above, the plaintiffappellant, the Bank of the Philippine Islands, was appointed administrator of the late Adolphe Oscar Schuetze's testamentary estate by an order dated March 24, 1928, entered by the Court of First Instance of Manila. On July 13, 1928, the Sun Life Assurance Company of Canada, whose main office is in Montreal, Canada, paid

Rosario Gelano Vda. de Schuetze upon her arrival at Manila, the sum of P20,150, which was the amount of the insurance policy on the life of said deceased, payable to the latter's estate. On the same date Rosario Gelano Vda. de Schuetze delivered the money to said Bank of the Philippine Islands, as administrator of the deceased's estate, which entered it in the inventory of the testamentary estate, and then returned the money to said widow. Section 1536 of the Administrative Code, as amended by section 10 of Act No. 2835 and section 1 of Act No. 3031, contains the following relevant provision: SEC. 1536. Conditions and rate of taxation. — Every transmission by virtue of inheritance, devise, bequest, gift mortis causa or advance in anticipation of inheritance, devise, or bequest of real property located in the Philippine Islands and real rights in such property; of any franchise which must be exercised in the Philippine Islands; of any shares, obligations, or bonds issued by any corporation or sociedad anonimaorganized or constituted in the Philippine Islands in accordance with its laws; of any shares or rights in any partnership, business or industry established in the Philippine Islands or of any personal property located in the Philippine Islands shall be subject to the following tax: xxx xxx xxx

In as much as the proceeds of the insurance policy on the life of the late Adolphe Oscar Schuetze were paid to the Bank of the Philippine Islands, as administrator of the deceased's estate, for management and partition, and as such proceeds were turned over to the sole and universal testamentary heiress Rosario Gelano Vda. de Schuetze, the plaintiff-appellant, here in Manila, the situs of said proceeds is the Philippine Islands. In his work "The Law of Taxation," Cooley enunciates the general rule governing the levying of taxes upon tangible personal property, in the following words: GENERAL RULE. — The suits of tangible personal property, for purposes of taxation may be where the owner is domiciled but is not necessarily so. Unlike intangible personal property, it may acquire a taxation situs in a state other than the one where the owner is domiciled, merely because it is located there. Its taxable situs is where it is more or less permanently located, regardless of the domicile of the owner. It is well settled that the state where it is more or less permanently located has the power to tax it although the owner resides out of the state, regardless of whether it has been taxed for the same period at the domicile of the owner, provided there is statutory authority for taxing such property. It is equally well settled that the state where the owner is domiciled has no power to tax it where the property has acquired an actual situs in another state by reason of its more or less permanent location in that state. ... (2 Cooley, The Law of Taxation, 4th ed., p. 975, par. 451.)

With reference to the meaning of the words "permanent" and "in transit," he has the following to say: PERMANENCY OF LOCATION; PROPERTY IN TRANSIT. — In order to acquire a situs in a state or taxing district so as to be taxable in the state or district regardless of the domicile of the owner and not taxable in another state or district at the domicile of the owner, tangible personal property must be more or less permanently located in the state or district. In other words, the situs of tangible personal property is where it is more or less permanently located rather than where it is merely in transit or temporarily and for no considerable length of time. If tangible personal property is more or less permanently located in a state other than the one where the owner is domiciled, it is not taxable in the latter state but is taxable in the state where it is located. If tangible personal property belonging to one domiciled in one state is in another state merely in transitu or for a short time, it is taxable in the former state, and is not taxable in the state where it is for the time being. . . . . Property merely in transit through a state ordinarily is not taxable there. Transit begins when an article is committed to a carrier for transportation to the state of its destination, or started on its ultimate passage. Transit ends when the goods arrive at their destination. But intermediate these points questions may arise as to when a temporary stop in transit is such as to make the property taxable at the place of stoppage. Whether the property is taxable in such a case usually depends on the length of time and the purpose of the interruption of transit. . . . . . . . It has been held that property of a construction company, used in construction of a railroad, acquires a situs at the place where used for an indefinite period. So tangible personal property in the state for the purpose of undergoing a partial finishing process is not to be regarded as in the course of transit nor as in the state for a mere temporary purpose. (2 Cooley, The Law of Taxation, 4th ed., pp. 982, 983 and 988, par. 452.) If the proceeds of the life-insurance policy taken out by the late Adolphe Oscar Schuetze and made payable to his estate, were delivered to the Bank of the Philippine Islands for administration and distribution, they were not in transit but were more or less permanently located in the Philippine Islands, according to the foregoing rules. If this be so, half of the proceeds which is community property, belongs to the estate of the deceased and is subject to the inheritance tax, in accordance with the legal provision quoted above, irrespective of whether or not the late Adolphe Oscar Schuetze was domiciled in the Philippine Islands at the time of his death. By virtue of the foregoing, we are of opinion and so hold: (1) That the proceeds of a life-insurance policy payable to the insured's estate, on which the premiums were paid by the conjugal partnership, constitute community property, and belong one-half to the husband and the other half to the wife, exclusively; (2) that if the premiums were paid partly with paraphernal and partly conjugal funds, the proceeds are likewise in

like proportion paraphernal in part and conjugal in part; and (3) that the proceeds of a life-insurance policy payable to the insured's estate as the beneficiary, if delivered to the testamentary administrator of the former as part of the assets of said estate under probate administration, are subject to the inheritance tax according to the law on the matter, if they belong to the assured exclusively, and it is immaterial that the insured was domiciled in these Islands or outside.1awphil.net Wherefore, the judgment appealed from is reversed, and the defendant is ordered to return to the plaintiff the one-half of the tax collected upon the amount of P20,150, being the proceeds of the insurance policy on the life of the late Adolphe Oscar Schuetze, after deducting the proportional part corresponding to the first premium, without special pronouncement of costs. So ordered. Avanceña, C.J., Johnson, Street, Malcolm, Villamor, and Ostrand, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 146504 April 9, 2002

HONORIO L. CARLOS, petitioner, vs. MANUEL T. ABELARDO, respondent. 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 latter’s 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 The amount was in full payment of the property. 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 petitioner’s 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, attorney’s 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 defendant’s 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 wife’s love and affection, attorney’s 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 attorney’s 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 court’s 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 respondent’s 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 RESPONDENT’S 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) respondent’s 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 Banker’s 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 respondent’s wife on July 31, 1991 acknowledging her and her husband’s 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 respondent’s 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 petitioner’s claim that the amount of US$25,000.00 was really in the nature of a loan. Respondent tried to rebut petitioner’s 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 petitioner’s company, were all in the account of H.L. Carlos Construction.17 On the other hand, the Banker’s 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 respondent’s 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 defendanthusband’s share in the profits of the corporation, the checks should come from the corporation’s account and not from the plaintiff’s personal account, considering that the corporation has a personality separate and distinct from that of its stockholders and officers.1âwphi1.nêt 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 defendanthusband’s 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 respondent’s 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. Petitioner’s 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 respondent’s 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 xxx Q And what happened when Manuel Abelardo refused to sign that letter coming from the other defendant? A xxx Q Where were you at the time when this defendant Manuel Abelardo prepared this letter? A Q A In his house, sir. He made me wait and he prepared a letter to Mr. Honorio Carlos, sir. No, 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 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 xxx Q A May we know from you the reason why you did not mail said letter? Because Engr. Carlos might become frightened, sir. What did you do with that letter, although you did not mail it? I kept it, sir. I got the envelope but I did not mail it, sir. He instructed me to mail the letter which he prepared, sir.

And where did he actually prepare that letter? Q At the dining table, sir. A

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.

xxx Q A And what did you do next after keeping the letter for several days? I gave the letter personally to Engr. Carlos, sir.

Q And do you know where in, what particular paper did Mr. Abelardo prepare or write this letter? A 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. He wrote it in a Manila envelope, sir.

Q What prompted you to give that letter to Engr. Carlos instead of mailing it? A x So that Engr. Carlos can prepare, sir. x x20

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 Q A xxx Q Will you please narrate to this Honorable Court that unusual incident? I was at B.F. Homes, Paranaque, sir. What were you doing at that time? I was waiting for Sargie Cornista, sir.

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 A Q A Q What else if any did he tell you at that time? He asked me who instructed me, sir. Instructed you about what? To run away with the children, sir. And what was your reply?

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 A Q A Q A And what was your answer to him?

A None, he was the one who said "was it your Ate Puppet?" But I did not answer, sir. Q A What happened next when you failed to answer? "Or my father in law?"

I told him it was Sargie, sir. And what was his reply if any? He again asked me if I have in my company one of his children, sir. What was your reply? I answered none, sir. 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 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?

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?

Q How about you where were you approximately at that particular time when he narrated that message to you threatening the herein plaintiff? A 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 I was outside looking in his vehicle at Aguirre St., sir.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

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 respondent’s 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 attorney’s fees are likewise reduced to P20,000.00 andP50,000.00, 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 attorney’s fees.1âwphi1.nêt SO ORDERED.

G.R. No. 136803 June 16, 2000 EUSTAQUIO MALLILIN, JR., petitioner, vs. MA. ELVIRA CASTILLO, respondent.

MENDOZA, J.: This is a petition for review of the amended decision 1 of the Court of Appeals dated May 7, 1998 in CA G.R. CV No. 48443 granting respondent's motion for reconsideration of its decision dated November 7, 1996, and of the resolution dated December 21, 1998 denying petitioner's motion for reconsideration. The factual and procedural antecedents are as follows: On February 24, 1993, petitioner Eustaquio Mallilin, Jr. filed a complaint 2 for "Partition and/or Payment of Co-Ownership Share, Accounting and Damages" against respondent Ma. Elvira Castillo. The complaint, docketed as Civil Case No. 93-656 at the Regional Trial Court in Makati City, alleged that petitioner and respondent, both married and with children, but separated from their respective spouses, cohabited after a brief courtship sometime in 1979 while their respective marriages still subsisted. During their union, they set up the Superfreight Customs Brokerage Corporation, with petitioner as president and chairman of the board of directors, and respondent as vice-president and treasurer. The business flourished and petitioner and respondent acquired real and personal properties which were registered solely in respondent's name. In 1992, due to irreconcilable differences, the

couple separated. Petitioner demanded from respondent his share in the subject properties, but respondent refused alleging that said properties had been registered solely in her name.1âwphi1.nêt In her Amended Answer, 3 respondent admitted that she engaged in the customs brokerage business with petitioner but alleged that the Superfreight Customs Brokerage Corporation was organized with other individuals and duly registered with the Securities and Exchange Commission in 1987. She denied that she and petitioner lived as husband and wife because the fact was that they were still legally married to their respective spouses. She claimed to be the exclusive owner of all real personal properties involved in petitioner's action for partition on the ground that they were acquired entirely out of her own money and registered solely in her name. On November 25, 1994, respondent filed a Motion for Summary Judgment, 4 in accordance with Rule 34 of the Rules of Court. 5 She contended that summary judgment was proper, because the issues raised in the pleadings were sham and not genuine, to wit: A. The main issue is — Can plaintiff validly claim the partition and/or payment of co-ownership share, accounting and damages, considering that plaintiff and defendant are admittedly both married to their respective spouses under still valid and subsisting marriages, even assuming as claimed by plaintiff, that they lived together as husband and wife without benefit of marriage? In other words, can the parties be considered as co-owners of the properties, under the law, considering the present status of the parties as both married and incapable of marrying each other, even assuming that they lived together as husband and wife (?) B. As a collateral issue, can the plaintiff be considered as an unregistered co-owner of the real properties under the Transfer Certificates of Title duly registered solely in the name of defendant Ma. Elvira Castillo? This issue is also true as far as the motor vehicles in question are concerned which are also registered in the name of defendant. 6 On the first point, respondent contended that even if she and petitioner actually cohabited, petitioner could not validly claim a part of the subject real and personal properties because Art. 144 of the Civil Code, which provides that the rules on coownership shall govern the properties acquired by a man and a woman living together as husband and wife but not married, or under a marriage which is void ab initio, applies only if the parties are not in any way incapacitated to contract marriage. 7 In the parties' case, their union suffered the legal impediment of a prior subsisting

marriage. Thus, the question of fact being raised by petitioner, i.e., whether they lived together as husband and wife, was irrelevant as no co-ownership could exist between them. As to the second issue, respondent maintained that petitioner cannot be considered an unregistered co-owner of the subject properties on the ground that, since titles to the land are solely in her name, to grant petitioner's prayer would be to allow a collateral attack on the validity of such titles. Petitioner opposed respondent's Motion for Summary Judgment. 8 He contended that the case presented genuine factual issues and that Art. 144 of the Civil Code had been repealed by the Family Code which now allows, under Art. 148, a limited coownership even though a man and a woman living together are not capacitated to marry each other. Petitioner also asserted that an implied trust was constituted when he and respondent agreed to register the properties solely in the latter's name although the same were acquired out of the profits made from their brokerage business. Petitioner invoked the following provisions of the Civil Code: Art. 1452. If two or more persons agree to purchase property and by common consent the legal title is taken in the name of one of them for the benefit of all, a trust is created by force of law in favor of the others in proportion to the interest of each. Art. 1453. When the property is conveyed to a person in reliance upon his declared intention to hold it for, or transfer it to another grantor, there is an implied trust in favor of the person whose benefit is contemplated. On January 30, 1995, the trial court rendered its decision 9 granting respondent's motion for summary judgment. It ruled that an examination of the pleadings shows that the issues involved were purely legal. The trial court also sustained respondent's contention that petitioner's action for partition amounted to a collateral attack on the validity of the certificates of title covering the subject properties. It held that even if the parties really had cohabited, the action for partition could not be allowed because an action for partition among co-owners ceases to be so and becomes one for title if the defendant, as in the present case, alleges exclusive ownership of the properties in question. For these reasons, the trial court dismissed Civil Case No. 93-656. On appeals, the Court of Appeals on November 7, 1996, ordered the case remanded to the court of origin for trial on the merits. It cited the decision in Roque v. Intermediate Appellate Court 10 to the effect that an action for partition is at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the properties involved. If the defendant asserts exclusive title over the property, the action for partition should not be dismissed. Rather, the court should resolve the case and if the plaintiff is unable to sustain his claimed status as a co-owner, the court should dismiss the action, not because the wrong remedy was availed of, but because no basis exists for requiring the defendant to submit to

partition. Resolving the issue whether petitioner's action for partition was a collateral attack on the validity of the certificates of title, the Court of Appeals held that since petitioner sought to compel respondent to execute documents necessary to effect transfer of what he claimed was his share, petitioner was not actually attacking the validity of the titles but in fact, recognized their validity. Finally, the appellate court upheld petitioner's position that Art. 144 of the Civil Code had been repealed by Art. 148 of the Family Code. Respondent moved for reconsideration of the decision of Court of Appeals. On May 7, 1998, nearly two years after its first decision, the Court of Appeals granted respondent's motion and reconsidered its prior decision. In its decision now challenged in the present petition, it held — Prefatorily, and to better clarify the controversy on whether this suit is a collateral attack on the titles in issue, it must be underscored that plaintiff-appellant alleged in his complaint that all the nine (9) titles are registered in the name of defendantappellee, Ma. Elvira T. Castillo, except one which appears in the name of Eloisa Castillo (see par. 9, Complaint). However, a verification of the annexes of such initiatory pleading shows some discrepancies, to wit: 1. TCT No. 149046 (Annex A) = Elvira T. Castillo, single 2. TCT No. 168208 (Annex B) = — do — 3. TCT No. 37046 (Annex C) = — do — 4. TCT No. 37047 (Annex D) = — do — 5. TCT No. 37048 (Annex E) = — do — 6. TCT No. 30368 (Annex F) = Steelhaus Realty & Dev. Corp. 7. TCT No. 30369 (Annex G) = — do — 8. TCT No. 30371 (Annex F) = — do — 9. TCT No. (92323) 67881 (Annex I) = Eloisa Castillo In this action, plaintiff-appellant seeks to be declared as 1/2 coowner of the real properties covered by the above listed titles and eventually for their partition [par. (a), Prayer; p. 4 Records]. Notably, in order to achieve such prayer for a joint co-ownership

declaration, it is unavoidable that the individual titles involved be altered, changed, cancelled or modified to include therein the name of the appellee as a registered 1/2 co-owner. Yet, no cause of action or even a prayer is contained filed. Manifestly,absent any cause or prayer for the alteration, cancellation, modification or changing of the titles involved, the desired declaration of coownership and eventual partition will utterly be an indirect or collateral attack on the subject titled in this suit. It is here that We fell into error, such that, if not rectified will surely lead to a procedural lapse and a possible injustice. Well settled is the rules that a certificate of title cannot be altered, modified or cancelled except in a direct proceeding in accordance with law. In this jurisdiction, the remedy of the landowner whose property has been wrongfully or erroneously registered in another name is, after one year from the date of the decree, not to set aside the decree, but respecting it as incontrovertible and no longer open to review, to bring an action for reconveyance or, if the property had passed into the hands of an innocent purchaser for value, for damages. Verily, plaintiff-appellant should have first pursued such remedy or any other relief directly attacking the subject titles before instituting the present partition suit. Apropos, the case at bench appears to have been prematurely filed. Lastly, to grant the partition prayed for by the appellant will in effect rule and decide against the properties registered in the names of Steelhouse Realty and Development Corporation and Eloisa Castillo, who are not parties in the case. To allow this to happen will surely result to injustice and denial of due process of law. . . .11 Petitioner moved for reconsideration but his motion was denied by the Court of Appeals in its resolution dated December 21, 1998. Hence this petition. Petitioner contends that: (1) the Court of Appeals, in its first decision of November 7, 1996, was correct in applying the Roque ruling and in rejecting respondent's claim that she was the sole owner of the subject properties and that the partition suit was a collateral attack on the titles; (2) the Court of Appeals correctly rules in its first decision that Art. 148 of the Family Code governs the co-ownership between the parties, hence, the complaint for partition is proper; (3) with respect to the properties registered in the name of Steelhouse Realty, respondent admitted ownership thereof and, at the very least, these properties could simply be excluded and the partition limited to the remaining real and personal properties; and (4) the Court of Appeals erred in not holding that under the Civil Code, there is an implied trust in his favor. 12

The issue in this case is really whether summary judgment, in accordance with Rule 35 of the Rules of Court, is proper. We rule in the negative. First. Rule 35, §3 of the Rules of Court provides that summary judgment is proper only when, based on the pleadings, depositions, and admissions on file, and after summary hearing, it is shown that except as to the amount of damages, there is no veritable issue regarding any material fact in the action and the movant is entitled to judgment as a matter of law. 1 Conversely, where the pleadings tender a genuine issue, i.e., an issue of fact the resolution of which calls for the presentation of evidence, as distinguished from an issue which is sham, fictitious, contrived, set-up in bad faith, or patently unsubstantial, summary judgment is not proper. 14 In the present case, we are convinced that genuine issues exist. Petitioner anchors his claim of co-ownership on two factual grounds: first, that said properties were acquired by him and respondent during their union from 1979 to 1992 from profits derived from their brokerage business; and second, that said properties were registered solely in respondent's name only because they agreed to that arrangement, thereby giving rise to an implied trust in accordance with Art. 1452 and Art. 1453 of the Civil Code. These allegations are denied by respondent. She denies that she and petitioner lived together as husband and wife. She also claims that the properties in question were acquired solely by her with her own money and resources. With such conflicting positions, the only way to ascertain the truth is obviously through the presentation of evidence by the parties. The trial court ruled that it is immaterial whether the parties actually lived together as husband and wife because Art. 144 of the Civil Code can not be made to apply to them as they were both incapacitated to marry each other. Hence, it was impossible for a co-ownership to exist between them. We disagree. Art. 144 of the Civil Code provides: When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership. This provision of the Civil Code, applies only to cases in which a man and a woman live together as husband and wife without the benefit of marriage provided they are not incapacitated or are without impediment to marry each other, 15 or in which the marriage is void ab initio, provided it is not bigamous. Art. 144, therefore, does not cover parties living in an adulterous relationship. However, Art. 148 of the Family Code now provides for a limited co-ownership in cases where the parties in union are incapacitated to marry each other. It states:

In cases of cohabitation not falling under the preceding article, 16 only the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credits. If one of the parties is validly married to another, his or her share in the 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. It was error for the trial court to rule that, because the parties in this case were not capacitated to marry each other at the time that they were alleged to have been living together, they could not have owned properties in common. The Family Code, in addition to providing that a co-ownership exists between a man and a woman who live together as husband and wife without the benefit of marriage, likewise provides that, if the parties are incapacitated to marry each other, properties acquired by them through their joint contribution of money, property or industry shall be owned by them in common in proportion to their contributions which, in the absence of proof to the contrary, is presumed to be equal. There is thus co-ownership eventhough the couple are not capacitated to marry each other. In this case, there may be a co-ownership between the parties herein. Consequently, whether petitioner and respondent cohabited and whether the properties involved in the case are part of the alleged co-ownership are genuine and material. All but one of the properties involved were alleged to have been acquired after the Family Code took effect on August 3, 1988. With respect to the property acquired before the Family Code took effect if it is shown that it was really acquired under the regime of the Civil Code, then it should be excluded. Petitioner also alleged in paragraph 7 of his complaint that: Due to the effective management, hardwork and enterprise of plaintiff assisted by defendant, their customs brokerage business grew and out of the profits therefrom, the parties acquired real and personal properties which were, upon agreement of the parties, listed and registered in defendant's name with plaintiff as the unregistered co-owner of all said properties. 17

On the basis of this, he contends that an implied trust existed pursuant to Art. 1452 of the Civil Code which provides that "(I)f two or more persons agree to purchase property and by common consent the legal title is taken in the name of one of them for the benefit of all, a trust is created by force of law in favor of the others in proportion to the interest of each." We do not think this is correct. The legal relation of the parties is already specifically covered by Art. 148 of the Family Code under which all the properties acquired by the parties out of their actual joint contributions of money, property or industry shall constitute a co-ownership. Co-ownership is a form of trust and every co-owner is a trustee for the other. 18 The provisions of Art. 1452 and Art. 1453 of the Civil Code, then are no longer material since a trust relation already inheres in a co-ownership which is governed under Title III, Book II of the Civil Code. Second. The trial court likewise dismissed petitioner's action on the ground that the same amounted to a collateral attack on the certificates of title involved. As already noted, at first, the Court of Appeals ruled that petitioner's action does not challenge the validity of respondent's titles. However, on reconsideration, it reversed itself and affirmed the trial court. It noted that petitioner's complaint failed to include a prayer for the alteration, cancellation, modification, or changing of the titles involved. Absent such prayer, the appellate court ruled that a declaration of co-ownership and eventual partition would involve an indirect or collateral attack on the titles. We disagree. A torrens title, as a rule, is conclusive and indefeasible. Proceeding from this, P.D. No. 1529, 19 §48 provides that a certificate of title shall not be subject to collateral attack and can not be altered, modified, or canceled except in a direct proceeding. When is an action an attack on a title? It is when the object of the action or proceeding is to nullify the title, and thus challenge the judgment pursuant to which the title was decreed. The attack is direct when the object of an action or proceeding is to annul or set aside such judgment, or enjoin its enforcement. On the other hand, the attack is indirect or collateral when, in an action to obtain a different relief, an attack on the judgment is nevertheless made as an incident thereof. 20 In his complaint for partition, consistent with our ruling in Roque regarding the nature of an action for partition, petitioner seeks first, a declaration that he is a co-owner of the subject properties; and second, the conveyance of his lawful shares. He does not attack respondent's titles. Petitioner alleges no fraud, mistake, or any other irregularity that would justify a review of the registration decree in respondent's favor. His theory is that although the subject properties were registered solely in respondent's name, but since by agreement between them as well as under the Family Code, he is coowner of these properties and as such is entitled to the conveyance of his shares. On the premise that he is a co-owner, he can validly seek the partition of the properties in co-ownership and the conveyance to him of his share. Thus, in Guevara v. Guevara, 21 in which a parcel of land bequeathed in a last will and testament was registered in the name of only one of the heirs, with the understanding that he would deliver to the others their shares after the debts of the original owner had been paid, this Court ruled that notwithstanding the registration of the land in the name of only one of the heirs, the other heirs can claim their shares in "such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator." 22

Third. The Court of Appeals also reversed its first decision on the ground that to order partition will, in effect, rule and decide against Steelhouse Realty Development Corporation and Eloisa Castillo, both strangers to the present case, as to the properties registered in their names. This reasoning, however, ignores the fact that the majority of the properties involved in the present case are registered in respondent's name, over which petitioner claims rights as a co-owner. Besides, other than the real properties, petitioner also seeks partition of a substantial amount of personal properties consisting of motor vehicles and several pieces of jewelry. By dismissing petitioner's complaint for partition on grounds of due process and equity, the appellate court unwittingly denied petitioner his right to prove ownership over the claimed real and personal properties. The dismissal of petitioner's complaint is unjustified since both ends may be amply served by simply excluding from the action for partition the properties registered in the name of Steelhouse Realty and Eloisa Castillo. WHEREFORE, the amended decision of the Court of Appeals, dated May 7, 1998, is REVERSED and the case is REMANDED to the Regional Trial Court, Branch 59, Makati City for further proceedings on the merits. SO ORDERED.1âwphi1.nêt

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 122749 July 31, 1996 ANTONIO A. S. VALDEZ, petitioner, vs. REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and CONSUELO M. GOMEZ-VALDEZ, respondents.

VITUG, J.:p The petition for new bewails, purely on the question of law, an alleged error committed by the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the court a quo has failed to apply the correct law that should govern the disposition of a

family dwelling in a situation where a marriage is declared void ab initio because of psychological incapacity on the part of either or both parties in the contract. The pertinent facts giving rise to this incident are, by large, not in dispute. Antonio Valdez and Consuelo Gomez were married on 05 January 1971. Begotten during the marriage were five children. In a petition, dated 22 June 1992, Valdez sought the declaration of nullity of the marriage pursuant to Article 36 of the Family code (docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon City, Branch 102). After the hearing the parties following the joinder of issues, the trial court, 1 in its decision of 29 July 1994, granted the petition, viz: WHEREFORE, judgment is hereby rendered as follows: (1) The marriage of petitioner Antonio Valdez and respondent Consuelo Gomez-Valdez is hereby declared null and void under Article 36 of the Family Code on the ground of their mutual psychological incapacity to comply with their essential marital obligations; (2) The three older children, Carlos Enrique III, Antonio Quintin and Angela Rosario shall choose which parent they would want to stay with. Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother, herein respondent Consuelo Gomez-Valdes. The petitioner and respondent shall have visitation rights over the children who are in the custody of the other. (3) The petitioner and the respondent are directed to start proceedings on the liquidation of their common properties as defined by Article 147 of the Family Code, and to comply with the provisions of Articles 50, 51, and 52 of the same code, within thirty (30) days from notice of this decision. Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong, Metro Manila, for proper recording in the registry of marriages. 2 (Emphasis ours.) Consuelo Gomez sought a clarification of that portion of the decision directing compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no provisions on the procedure for the liquidation of common property in "unions without marriage." Parenthetically, during the hearing of the motion, the children filed a joint affidavit expressing their desire to remain with their father, Antonio Valdez, herein petitioner. In an order, dated 05 May 1995, the trial court made the following clarification:

Consequently, considering that Article 147 of the Family Code explicitly provides that the property acquired by both parties during their union, in the absence of proof to the contrary, are presumed to have been obtained through the joint efforts of the parties and will be owned by them in equal shares, plaintiff and defendant will own their "family home" and all their properties for that matter in equal shares. In the liquidation and partition of properties owned in common by the plaintiff and defendant, the provisions on ownership found in the Civil Code shall apply. 3 (Emphasis supplied.) In addressing specifically the issue regarding the disposition of the family dwelling, the trial court said: Considering that this Court has already declared the marriage between petitioner and respondent as null and void ab initio, pursuant to Art. 147, the property regime of petitioner and respondent shall be governed by the rules on ownership. The provisions of Articles 102 and 129 of the Family Code finds no application since Article 102 refers to the procedure for the liquidation of the conjugal partnership property and Article 129 refers to the procedure for the liquidation of the absolute community of property. 4 Petitioner moved for a reconsideration of the order. The motion was denied on 30 October 1995. In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the Family Code should be held controlling: he argues that: I Article 147 of the Family Code does not apply to cases where the parties are psychologically incapacitated. II Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern the disposition of the family dwelling in cases where a marriage is declared void ab initio, including a marriage declared void by reason of the psychological incapacity of the spouses. III

Assuming arguendo that Article 147 applies to marriages declared void ab initio on the ground of the psychological incapacity of a spouse, the same may be read consistently with Article 129. IV It is necessary to determine the parent with whom majority of the children wish to stay. 5 The trial court correctly applied the law. In a void marriage, regardless of the cause thereof, the property relations of the parties during the period of cohabitation is governed by the provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is a remake of Article 144 of the Civil Code as interpreted and so applied in previous cases; 6 it 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 coownership. 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 in 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 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 innocent party. In all cases, the forfeiture shall take place upon the termination of the cohabitation. This particular kind of co-ownership applies when a man and a woman, suffering no illegal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first paragraph of the law) refers to the legal capacity of a party

to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38" 7 of the Code. Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall be considered as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance of the family household." 8 Unlike the conjugal partnership of gains, the fruits of the couple's separate property are not included in the co-ownership. Article 147 of the Family Code, in the substance and to the above extent, has clarified Article 144 of the Civil Code; in addition, the law now expressly provides that — (a) Neither party can dispose or encumber by act intervivos his or her share in coownership property, without consent of the other, during the period of cohabitation; and (b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the co-ownership in favor of their common children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation 9 or declaration of nullity of the marriage. 10 When the common-law spouses suffer from a legal impediment to marry or when they do not live exclusively with each other (as husband and wife), only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned in common and in proportion to their respective contributions. Such contributions and corresponding shares, however, are prima facie presumed to be equal. The share of any party who is married to another shall accrue to the absolute community or conjugal partnership, as the case may be, if so existing under a valid marriage. If the party who has acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner already heretofore expressed. 11 In deciding to take further cognizance of the issue on the settlement of the parties' common property, the trial court acted neither imprudently nor precipitately; a court which has jurisdiction to declare the marriage a nullity must be deemed likewise clothed in authority to resolve incidental and consequential matters. Nor did it commit a reversible error in ruling that petitioner and private respondent own the "family home" and all their common property in equal shares, as well as in concluding that, in the liquidation and partition of the property owned in common by them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and 129, 12 of the Family Code, should aptly prevail. The rules set up to govern the liquidation of either the absolute community or the conjugal partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case

until the contract is annulled), are irrelevant to the liquidation of the co-ownership that exists between common-law spouses. The first paragraph of Articles 50 of the Family Code, applying paragraphs (2), (3), (4) and 95) of Article 43, 13 relates only, by its explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 40 14 of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. The latter is a special rule that somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. It is not then illogical for the provisions of Article 43, in relation to Articles 41 15 and 42, 16 of the Family Code, on the effects of the termination of a subsequent marriage contracted during the subsistence of a previous marriage to be made applicable pro hac vice. In all other cases, it is not to be assumed that the law has also meant to have coincident property relations, on the one hand, between spouses in valid and voidable marriages (before annulment) and, on the other, between common-law spouses or spouses of void marriages, leaving to ordain, on the latter case, the ordinary rules on co-ownership subject to the provisions of the Family Code on the "family home," i.e., the provisions found in Title V, Chapter 2, of the Family Code, remain in force and effect regardless of the property regime of the spouses. WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of the trial court are AFFIRMED. No costs.

CALLEJO, SR., J.: Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. No. CV No. 59045, which reversed and set aside the Decision2 of the Regional Trial Court (RTC) of Parañaque, Metro Manila, Branch 260, in Civil Case No. 94-2260 and the Resolution of the CA denying the petitioner’s motion for reconsideration of the said decision. Josefina Castillo was only 24 years old when she and Eduardo G. Francisco were married on January 15, 1983.3 Eduardo was then employed as the vice president in a private corporation. A little more than a year and seven months thereafter, or on August 31, 1984, the Imus Rural Bank, Inc. (Imus Bank) executed a deed of absolute sale for P320,000.00 in favor of Josefina Castillo Francisco, married to Eduardo Francisco, covering two parcels of residential land with a house thereon located at St. Martin de Porres Street, San Antonio Valley I, Sucat, Parañaque, Metro Manila. One of the lots was covered by Transfer Certificate of Title (TCT) No. 36519, with an area of 342 square meters, while the other lot, with an area of 360 square meters, was covered by TCT No. 36518.4 The purchase price of the property was paid to the Bank via Check No. 002334 in the amount of P320,000.00 drawn and issued by the Commercial Bank of Manila, for which the Imus Bank issued Official Receipt No. 121408 on August 31, 1984.5 On the basis of the said deed of sale, TCT Nos. 36518 and 36519 were cancelled and, on September 4, 1984, the Register of Deeds issued TCT Nos. 87976 (60550) and 87977 (60551) in the name of "Josefina Castillo Francisco married to Eduardo G. Francisco."6 On February 15, 1985, the Register of Deeds made of record Entry No. 85-18003 at the dorsal portion of the said titles. This referred to an Affidavit of Waiver executed by Eduardo where he declared that before his marriage to Josefina, the latter purchased two parcels of land, including the house constructed thereon, with her own savings, and that he was waiving whatever claims he had over the property.7 On January 13, 1986, Josefina mortgaged the said property to Leonila Cando for a loan of P157,000.00.8 It appears that Eduardo affixed his marital conformity to the deed.9

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 151967 February 16, 2005

On June 11, 1990, Eduardo, who was then the General Manager and President of Reach Out Trading International, bought 7,500 bags of cement worth P768,750.00 from Master Iron Works & Construction Corporation (MIWCC) but failed to pay for the same. On November 27, 1990, MIWCC filed a complaint against him in the RTC of Makati City for the return of the said commodities, or the value thereof in the amount of P768,750.00. The case was docketed as Civil Case No. 90-3251. On January 8, 1992, the trial court rendered judgment in favor of MIWCC and against Eduardo. The fallo of the decision reads: Accordingly, the Court renders judgment in favor of the plaintiff Master Iron Works And Construction Corporation against the defendant [Eduardo] Francisco ordering the latter as follows:

JOSEFINA C. FRANCISCO, petitioner, vs. MASTER IRON WORKS & CONSTRUCTION CORPORATION and ROBERTO V. ALEJO, Sheriff IV, Regional Trial Court of Makati City, Branch 142, respondents. DECISION

1. To replace to plaintiff 7,500 bags at 50 kilos/bag of Portland cement or, in the alternative, to pay the plaintiff the amount ofP768,750.00; 2. In either case, to pay liquidated damages by way of interest at 12% per annum from June 21, 1990 until fully paid; 3. To pay P50,000.00 as actual damages; and 4. To pay attorney’s fees of P153,750.00 and litigation expenses of P20,000.00. SO ORDERED.10 The decision in Civil Case No. 90-3251 became final and executory and, on June 7, 1994, the court issued a writ of execution.11 On June 14, 1994, Sheriff Roberto Alejo sold at a public auction one stainless, owner-type jeep for P10,000.00 to MIWCC.12 Sheriff Alejo issued a Notice of Levy on Execution/Attachment over the lots covered by TCT No. 87976 (60550) and 87977 (60551) for the recovery of the balance of the amount due under the decision of the trial court in Civil Case No. 903251.13 On June 24, 1994, the sale of the property at a public auction was set to August 5, 1994.14 On July 3, 1994, Josefina executed an Affidavit of Third Party Claim15 over the two parcels of land in which she claimed that they were her paraphernal property, and that her husband Eduardo had no proprietary right or interest over them as evidenced by his affidavit of waiver, a copy of which she attached to her affidavit. She, likewise, requested Sheriff Alejo to cause the cancellation of the notice of levy on execution/attachment earlier issued by him. On July 7, 1994, Josefina filed the said Affidavit of Third Party Claim in the trial court and served a copy thereof to the sheriff. MIWCC then submitted an indemnity bond16 in the amount of P1,361,500.00 issued by the Prudential Guarantee and Assurance, Inc. The sale at public auction proceeded. MIWCC made a bid for the property for the price of P1,350,000.00.17 On July 28, 1994, Josefina filed a Complaint against MIWCC and Sheriff Alejo in the RTC of Parañaque for damages with a prayer for a writ of preliminary injunction or temporary restraining order, docketed as Civil Case No. 94-2260. She alleged then that she was the sole owner of the property levied on execution by Sheriff Alejo in Civil Case No. 90-3251; hence, the levy on execution of the property was null and void. She reiterated that her husband, the defendant in Civil Case No. 90-3251, had no right or proprietary interest over the said property as evidenced by his affidavit of waiver annotated at the dorsal portion of the said title. Josefina prayed that the court issue a temporary restraining order/writ of preliminary injunction to enjoin MIWCC from causing the sale of the said property at public auction. Considering that no temporary restraining order had as yet been issued by the trial court, the sheriff sold the subject

property at public auction to MIWCC forP1,350,000.00 on August 5, 1994.18 However, upon the failure of MIWCC to remit the sheriff’s commission on the sale, the latter did not execute a sheriff’s certificate of sale over the property. The RTC of Parañaque, thereafter, issued a temporary restraining order19 on August 16, 1994. When Josefina learned of the said sale at public auction, she filed an amended complaint impleading MIWCC, with the following prayer: WHEREFORE, premises considered, it is most respectfully prayed to this Honorable Court that, after hearing, judgment be rendered in favor of the plaintiff and against the defendants and the same be in the following tenor: 1. Ordering the defendants, jointly and severally, to pay the plaintiff the following amounts: A. The sum of P50,000.00 representing as actual damages; B. The sum of P200,000.00 representing as moral damages; C. The sum of P50,000.00 or such amount which this Honorable Court deems just as exemplary damages; D. The sum of P60,000.00 as and for attorney’s fees. 2. Declaring the levying and sale at public auction of the plaintiff’s properties null and void; 3. To issue writ of preliminary injunction and makes it permanent; 4. Order the cancellation of whatever entries appearing at the titles as a result of the enforcement of the writ of execution issued in Civil Case No. 90-3251. Plaintiff further prays for such other reliefs as may be just under the premises.20 In its answer to the complaint, MIWCC cited Article 116 of the Family Code of the Philippines and averred that the property was the conjugal property of Josefina and her husband Eduardo, who purchased the same on August 31, 1984 after their marriage on January 14, 1983. MIWCC asserted that Eduardo executed the affidavit of waiver to evade the satisfaction of the decision in Civil Case No. 90-3251 and to place the property beyond the reach of creditors; hence, the said affidavit was null and void.

Before she could commence presenting her evidence, Josefina filed a petition to annul her marriage to Eduardo in the RTC of Parañaque, Metro Manila, on the ground that when they were married on January 15, 1983, Eduardo was already married to one Carmelita Carpio. The case was docketed as Civil Case No. 95-0169. Josefina and Carmelita testified in Civil Case No. 95-0169. Josefina declared that during her marriage to Eduardo, she acquired the property covered by TCT Nos. 87976 (60550) and 87977 (60551), through the help of her sisters and brother, and that Eduardo had no participation whatsoever in the said acquisition. She added that Eduardo had five children, namely, Mary Jane, Dianne, Mary Grace Jo, Mark Joseph and Mary Cecille, all surnamed Francisco. On September 9, 1996, the RTC of Parañaque rendered judgment21 in Civil Case No. 95-0169, declaring the marriage between Josefina and Eduardo as null and void for being bigamous. In the meantime, Josefina testified in Civil Case No. 94-2260, declaring, inter alia, that she was able to purchase the property from the Bank when she was still single with her mother’s financial assistance; she was then engaged in recruitment when Eduardo executed an affidavit of waiver; she learned that he was previously married when they already had two children; nevertheless, she continued cohabiting with him and had three more children by him; and because of Eduardo’s first marriage, she decided to have him execute the affidavit of waiver. Eduardo testified that when his wife bought the property in 1984, he was in Davao City and had no knowledge of the said purchases; he came to know of the purchase only when Josefina informed him a week after his arrival from Davao;22 Josefina’s sister, Lolita Castillo, told him that she would collect from him the money his wife borrowed from her and their mother to buy the property;23 when he told Lolita that he had no money, she said that she would no longer collect from him, on the condition that he would have no participation over the property,24which angered Eduardo;25 when Josefina purchased the property, he had a gross monthly income of P10,000.00 and gave P5,000.00 to Josefina for the support of his family;26 Josefina decided that he execute the affidavit of waiver because her mother and sister gave the property to her.27 On December 20, 1997, the trial court rendered judgment finding the levy on the subject property and the sale thereof at public auction to be null and void. The fallo of the decision reads: WHEREFORE, PREMISES CONSIDERED, THIS COURT finds the Levying and sale at public auction of the plaintiff’s properties null and void. The court orders the defendants to, jointly and severally, pay plaintiff the following amounts:

a. The sum of P50,000.00 as actual damages; b. The sum of P50,000.00 representing as moral damages; c. The sum of P50,000.00 as exemplary damages; d. The sum of P60,000.00 as and for attorney’s fees. The court orders the cancellation of whatever entries appearing at the Titles as a result of the enforcement of the writ of execution issued in Civil Case No. 90-3251. SO ORDERED.28 The trial court held that the property levied by Sheriff Alejo was the sole and exclusive property of Josefina, applying Articles 144, 160, 175 and 485 of the New Civil Code. The trial court also held that MIWCC failed to prove that Eduardo Francisco contributed to the acquisition of the property. MIWCC appealed the decision to the CA in which it alleged that: I. THE TRIAL COURT ERRED IN RULING THAT THE REAL ESTATE PROPERTIES SUBJECT OF THE AUCTION SALE ARE PARAPHERNAL PROPERTIES OWNED BY PLAINTIFF-APPELLEE JOSEFINA FRANCISCO; II. THE TRIAL COURT ERRED IN ALLOWING THE RECEPTION OF REBUTTAL EVIDENCE WITH REGARD TO THE ANNULMENT OF PLAINTIFF-APPELLEE’S MARRIAGE WITH EDUARDO FRANCISCO; III. THE TRIAL COURT ERRED IN RULING THAT THE LEVY ON EXECUTION OF PLAINTIFF-APPELLEE’S PROPERTIES SUBJECT OF THE PRESENT CONTROVERSY IS NULL AND VOID; IV. THE TRIAL COURT ERRED IN ORDERING DEFENDANT-APPELLANT TO PAY DAMAGES TO PLAINTIFF-APPELLEE FOR ALLEGED IMPROPER LEVY ON EXECUTION.29 The CA rendered judgment setting aside and reversing the decision of the RTC on September 20, 2001. The fallo of the decision reads: WHEREFORE, premises considered, the Decision, dated 20 December 1997, of the Regional Trial Court of Parañaque, Branch 260, is hereby REVERSED and SETASIDE and a new one entered dismissing Civil Case No. 94-0126.

SO ORDERED.30 The CA ruled that the property was presumed to be the conjugal property of Eduardo and Josefina, and that the latter failed to rebut such presumption. It also held that the affidavit of waiver executed by Eduardo was contrary to Article 146 of the New Civil Code and, as such, had no force and effect. Josefina filed a motion for reconsideration of the decision, which was, likewise, denied by the CA. Josefina, now the petitioner, filed the present petition for review, alleging that: A. THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THERE EXISTS A CONJUGAL PARTNERSHIP BETWEEN PETITIONER AND EDUARDO FRANCISCO; B. THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE SUBJECT PROPERTIES WERE NOT PARAPHERNAL PROPERTIES OF PETITIONER; C. THE HONORABLE COURT OF APPEALS ERRED IN DISTURBING THE FINDINGS OF FACTS AND CONCLUSION BY THE TRIAL COURT IN ITS DECISION OF DECEMBER 20, 1997, THE SAME BEING IN ACCORDANCE WITH LAW AND JURISPRUDENCE.31 The threshold issues for resolution are as follows: (a) whether or not the subject property is the conjugal property of Josefina Castillo and Eduardo Francisco; and (b) whether or not the subject properties may be held to answer for the personal obligations of Eduardo. We shall deal with the issues simultaneously as they are closely related. The petitioner asserts that inasmuch as her marriage to Eduardo is void ab initio, there is no occasion that would give rise to a regime of conjugal partnership of gains. The petitioner adds that to rule otherwise would render moot and irrelevant the provisions on the regime of special co-ownership under Articles 147 and 148 of the Family Code of the Philippines, in relation to Article 144 of the New Civil Code. The petitioner avers that since Article 148 of the Family Code governs their property relationship, the respondents must adduce evidence to show that Eduardo actually contributed to the acquisition of the subject properties. The petitioner asserts that she purchased the property before her marriage to Eduardo with her own money without any contribution from him; hence, the subject property is her paraphernal property.l^vvphi1.net Consequently, such property is not liable for the debts of Eduardo to private respondent MIWCC.

The respondents, on the other hand, contend that the appellate court was correct in ruling that the properties are conjugal in nature because there is nothing in the records to support the petitioner’s uncorroborated claim that the funds she used to purchase the subject properties were her personal funds or came from her mother and sister. The respondents point out that if, as claimed by the petitioner, the subject properties were, indeed, not conjugal in nature, then, there was no need for her to obtain marital (Eduardo’s) consent when she mortgaged the properties to two different parties sometime in the first quarter of 1986, or after Eduardo executed the affidavit of waiver. We note that the only questions raised in this case are questions of facts. Under Rule 45 of the Rules of Court, only questions of law may be raised in and resolved by the Court. The Court may, however, determine and resolve questions of facts in cases where the findings of facts of the trial court and those of the CA are inconsistent, where highly meritorious circumstances are present, and where it is necessary to give substantial justice to the parties. In the present action, the findings of facts and the conclusions of the trial court and those of the CA are opposite. There is thus an imperative need for the Court to delve into and resolve the factual issues, in tandem with the questions of law raised by the parties. The petition has no merit. The petitioner failed to prove that she acquired the property with her personal funds before her cohabitation with Eduardo and that she is the sole owner of the property. The evidence on record shows that the Imus Bank executed a deed of absolute sale over the property to the petitioner on August 31, 1984 and titles over the property were, thereafter, issued to the latter as vendee on September 4, 1984 after her marriage to Eduardo on January 15, 1983.1ªvvphi1.nét We agree with the petitioner that Article 144 of the New Civil Code does not apply in the present case. This Court in Tumlos v. Fernandez32held that Article 144 of the New Civil Code applies only to a relationship between a man and a woman who are not incapacitated to marry each other, or to one in which the marriage of the parties is void from the very beginning. It does not apply to a cohabitation that is adulterous or amounts to concubinage, for it would be absurd to create a co-ownership where there exists a prior conjugal partnership or absolute community between the man and his lawful wife. In this case, the petitioner admitted that when she and Eduardo cohabited, the latter was incapacitated to marry her. Article 148 of the Family Code of the Philippines, on which the petitioner anchors her claims, provides as follows: 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 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. Indeed, the Family Code has filled the hiatus in Article 144 of the New Civil Code by expressly regulating in Article 148 the property relations of couples living in a state of adultery or concubinage. Under Article 256 of the Family Code, the law can be applied retroactively if it does not prejudice vested or acquired rights. The petitioner failed to prove that she had any vested right over the property in question.33 Since the subject property was acquired during the subsistence of the marriage of Eduardo and Carmelita, under normal circumstances, the same should be presumed to be conjugal property.34 Article 105 of the Family Code of the Philippines provides that the Code shall apply to conjugal partnership established before the code took effect, without prejudice to vested rights already acquired under the New Civil Code or other laws.35 Thus, even if Eduardo and Carmelita were married before the effectivity of the Family Code of the Philippines, the property still cannot be considered conjugal property because there can only be but one valid existing marriage at any given time.36 Article 148 of the Family Code also debilitates against the petitioner’s claim since, according to the said article, a co-ownership may ensue in case of cohabitation where, for instance, one party has a pre-existing valid marriage provided that the parents prove their actual joint contribution of money, property or industry and only to the extent of their proportionate interest thereon.37 We agree with the findings of the appellate court that the petitioner failed to adduce preponderance of evidence that she contributed money, property or industry in the acquisition of the subject property and, hence, is not a co-owner of the property: First of all, other than plaintiff-appellee’s bare testimony, there is nothing in the record to support her claim that the funds she used to purchase the subject properties came from her mother and sister. She did not, for instance, present the testimonies of her mother and sister who could have corroborated her claim. Furthermore, in her Affidavit of Third-Party Claim (Exh. "C"), she stated that the subject properties "are my own paraphernal properties, including the improvements thereon, as such are the fruits of my own exclusive efforts …," clearly implying that she used her own money and contradicting her later claim that the funds were provided by her mother and sister. She also stated in her affidavit that she acquired the subject properties before her marriage to Eduardo Francisco on 15 January 1983, a claim later belied by the presentation of the Deed of Absolute Sale clearly indicating that she bought the properties from Imus Rural Bank on 31 August 1984, or one year and seven months after her marriage (Exh. "D"). In the face of all these contradictions, plaintiff-appellee’s uncorroborated testimony that she acquired the subject properties with funds provided by her mother and sister should not have been given any weight by the lower court.

It is to be noted that plaintiff-appellee got married at the age of 23. At that age, it is doubtful if she had enough funds of her own to purchase the subject properties as she claimed in her Affidavit of Third Party Claim. Confronted with this reality, she later claimed that the funds were provided by her mother and sister, clearly an afterthought in a desperate effort to shield the subject properties from appellant Master Iron as judgment creditor.38 Aside from her bare claims, the petitioner offered nothing to prove her allegation that she borrowed the amount of P320,000.00 from her mother and her sister, which she paid to the Imus Bank on August 31, 1984 to purchase the subject property. The petitioner even failed to divulge the name of her mother and the sources of her income, if any, and that of her sister. When she testified in Civil Case No. 95-0169, the petitioner declared that she borrowed part of the purchase price of the property from her brother,39 but failed to divulge the latter’s name, let alone reveal how much money she borrowed and when. The petitioner even failed to adduce any evidence to prove that her mother and sister had P320,000.00 in 1984, which, considering the times, was then quite a substantial amount. Moreover, the petitioner’s third-party-claim affidavit stating that the properties "are the fruits of my own exclusive effort before I married Eduardo Francisco" belies her testimony in the trial court and in Civil Case No. 95-0169.1awphi1.nét We note that, as gleaned from the receipt issued by the Imus Bank, the payment for the subject property was drawn via Check No. 002334 and issued by the Commercial Bank of Manila in the amount of P320,000.00.40 The petitioner failed to testify against whose account the check was drawn and issued, and whether the said account was owned by her and/or Eduardo Francisco or her mother, sister or brother. She even failed to testify whether the check was a manager’s check and, if so, whose money was used to purchase the same. We also agree with the findings of the CA that the affidavit of waiver executed by Eduardo on February 15, 1985, stating that the property is owned by the petitioner, is barren of probative weight. We are convinced that he executed the said affidavit in anticipation of claims by third parties against him and hold the property liable for the said claims. First, the petitioner failed to prove that she had any savings before her cohabitation with Eduardo. Second, despite Eduardo’s affidavit of waiver, he nevertheless affixed his marital conformity to the real estate mortgage executed by the petitioner over the property in favor of Leonila on January 13, 1986.41 Third, the petitioner testified that she borrowed the funds for the purchase of the property from her mother and sister.42 Fourth, the petitioner testified that Eduardo executed the affidavit of waiver because she discovered that he had a first marriage.43 Lastly, Eduardo belied the petitioner’s testimony when he testified that he executed the affidavit of waiver because his mother-in-law and sister-in-law had given the property to the petitioner.44 IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the Court of Appeals reversing the decision of the Regional Trial Court is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

(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, L11483, 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

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:

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.

deemed co-owners of a property acquired during the cohabitation only upon proof that each made an actual contribution to its acquisition. Hence, mere cohabitation without proof of contribution will not result in a co-ownership. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the November 19, 1998 Decision of the Court of Appeals 1 (CA), which reversed the October 7, 1997 Order of the Regional Trial Court (RTC). 2The dispositive part of the CA Decision reads: WHEREFORE, the instant petition is GRANTED, and the questioned orders of the court a quo dated October 7, 1997 and November 11, 1997, are hereby REVERSED and SET ASIDE. The judgment of the court a quodated June 5, 1997 is hereby REINSTATED. Costs against the private respondents. 3 The assailed Order of the RTC disposed as follows: Wherefore, the decision of this Court rendered on June 5, 1997 affirming in toto the appealed judgment of the [MTC] is hereby reconsidered and a new one is entered reversing said decision of the [MTC] and dismissing the complaint in the above-entitled case. 4 Petitioner also assails the February 14, 1999 CA Resolution denying the Motion for Reconsideration. The Facts The Court of Appeals narrates the facts as follows:

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 137650 April 12, 2000 GUILLERMA TUMLOS, petitioner, vs. SPOUSES MARIO FERNANDEZ and LOURDES FERNANDEZ, respondents.

PANGANIBAN, J.: Under Article 148 of the Family Code, a man and a woman who are not legally capacitated to marry each other, but who nonetheless live together conjugally, may be

[Herein respondents] were the plaintiffs in Civil Case No. 6756, an action for ejectment filed before Branch 82 of the MTC of Valenzuela, Metro Manila against [herein Petitioner] Guillerma Tumlos, Toto Tumlos, and Gina Tumlos. In their complaint dated July 5, 1996, the said spouses alleged that they are the absolute owners of an apartment building located at ARTE SUBDIVISION III, Lawang Bato, Valenzuela, Metro Manila; that through tolerance they had allowed the defendants-private respondents to occupy the apartment building for the last seven (7) years, since 1989, without the payment of any rent; that it was agreed upon that after a few months, defendant Guillerma Tumlos will pay P1,600.00 a month while the other defendants promised to pay P1,000.00 a month, both as rental, which agreement was not complied with by the said defendants; that they have demanded

several times [that] the defendants . . . vacate the premises, as they are in need of the property for the construction of a new building; and that they have also demanded payment of P84,000.00 from Toto and Gina Tumlos representing rentals for seven (7) years and payment of P143,600.00 from Guillerma Tumlos as unpaid rentals for seven (7) years, but the said demands went unheeded. They then prayed that the defendants be ordered to vacate the property in question and to pay the stated unpaid rentals, as well as to jointly pay P30,000.00 in attorney’s fees. [Petitioner] Guillerma Tumlos was the only one who filed an answer to the complaint. She averred therein that the Fernandez spouses had no cause of action against her, since she is a coowner of the subject premises as evidenced by a Contract to Sell wherein it was stated that she is a co-vendee of the property in question together with [Respondent] Mario Fernandez. She then asked for the dismissal of the complaint. After an unfruitful preliminary conference on November 15, 1996, the MTC required the parties to submit their affidavits and other evidence on the factual issues defined in their pleadings within ten (10) days from receipt of such order, pursuant to section 9 of the Revised Rule on Summary Procedure. [Petitioner] Guillerma Tumlos submitted her affidavit/position paper on November 29, 1996, while the [respondents] filed their position paper on December 5, 1996, attaching thereto their marriage contract, letters of demand to the defendants, and the Contract to Sell over the disputed property. The MTC thereafter promulgated its judgment on January 22, 1997[.] xxx xxx xxx Upon appeal to the [RTC], [petitioner and the two other] defendants alleged in their memorandum on appeal that [Respondent] Mario Fernandez and [Petitioner] Guillerma had an amorous relationship, and that they acquired the property in question as their "love nest." It was further alleged that they lived together in the said apartment building with their two (2) children for around ten (10) years, and that Guillerma administered the property by collecting rentals from the lessees of the other apartments, until she discovered that [Respondent Mario] deceived her as to the annulment of his marriage. It was also during the early part of 1996 when [Respondent Mario] accused her of being unfaithful and demonstrated his baseless [jealousy]. In the same memorandum, [petitioner and the two other] defendants further averred that it was only recently that Toto

Tumlos was temporarily accommodated in one of the rooms of the subject premises while Gina Tumlos acted as a nanny for the children. In short, their presence there [was] only transient and they [were] not tenants of the Fernandez spouses. On June 5, 1997, the [RTC] rendered a decision affirming in toto the judgment of the MTC. The [petitioner and the two other defendants] seasonably filed a motion for reconsideration on July 3, 1997, alleging that the decision of affirmance by the RTC was constitutionally flawed for failing to point out distinctly and clearly the findings of facts and law on which it was based vis-à-vis the statements of issues they have raised in their memorandum on appeal. They also averred that the Contract to Sell presented by the plaintiffs which named the buyer as "Mario P. Fernandez, of legal age, married to Lourdes P. Fernandez," should not be given credence as it was falsified to appear that way. According to them, the Contract to Sell originally named "Guillerma Fernandez" as the spouse of [Respondent Mario]. As found by the [RTC] in its judgment, a new Contract to Sell was issued by the sellers naming the [respondents] as the buyers after the latter presented their marriage contract and requested a change in the name of the vendee-wife. Such facts necessitate the conclusion that Guillerma was really a co-owner thereof, and that the [respondents] manipulated the evidence in order to deprive her of her rights to enjoy and use the property as recognized by law. xxx xxx xxx The [RTC], in determining the question of ownership in order to resolve the issue of possession, ruled therein that the Contract to Sell submitted by the Fernandez spouses appeared not to be authentic, as there was an alteration in the name of the wife of [Respondent] Mario Fernandez. Hence, the contract presented by the [respondents] cannot be given any weight. The court further ruled that Guillerma and [Respondent Mario] acquired the property during their cohabitation as husband and wife, although without the benefit of marriage. From such findings, the court concluded that [Petitioner] Guillerma Tumlos was a co-owner of the subject property and could not be ejected therefrom. The [respondents] then filed a motion for reconsideration of the order of reversal, but the same was denied by the [RTC]. 5 As earlier stated, the CA reversed the RTC. Hence, this Petition filed by Guillerma Tumlos only. 6

Ruling of the Court of Appeals The CA rejected petitioner's claim that she and Respondent Mario Fernandez were co-owners of the disputed property. The CA ruled: From the inception of the instant case, the only defense presented by private respondent Guillerma is her right as a coowner of the subject property[.] xxx xxx xxx This claim of co-ownership was not satisfactorily proven by Guillerma, as correctly held by the trial court. No other evidence was presented to validate such claim, except for the said affidavit/position paper. As previously stated, it was only on appeal that Guillerma alleged that she cohabited with the petitioner-husband without the benefit of marriage, and that she bore him two (2) children. Attached to her memorandum on appeal are the birth certificates of the said children. Such contentions and documents should not have been considered by the . . . (RTC), as they were not presented in her affidavit/position paper before the trial court (MTC). xxx xxx xxx However, even if the said allegations and documents could be considered, the claim of co-ownership must still fail. As [herein Respondent] Mario Fernandez is validly married to [Respondent] Lourdes Fernandez (as per Marriage Contract dated April 27, 1968, p. 45, Original Record), Guillerma and Mario are not capacitated to marry each other. Thus, the property relations governing their supposed cohabitation is that found in Article 148 of Executive Order No. 209, as amended, otherwise known as the Family Code of the Philippines[.] xxx xxx xxx It is clear that actual contribution is required by this provision, in contrast to Article 147 of the Family Code which states that efforts in the care and maintenance of the family and household are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry (Agapay v. Palang, 276 SCRA 340). The care given by one party [to] the home, children, and household, or spiritual or moral inspiration provided to the other, is not included in Article 148 (Handbook on the Family Code of the Philippines by Alicia V. Sempio-Diy, 1988

ed., p. 209). Hence, if actual contribution of the party is not proved, there will be no co-ownership and no presumption of equal shares (Agapay, supra at p. 348, citing Commentaries and Jurisprudence on the Civil Code of the Philippines Volume I by Arturo M. Tolentino, 1990 ed., p. 500). In the instant case, no proof of actual contribution by Guillerma Tumlos in the purchase of the subject property was presented. Her only evidence was her being named in the Contract to Sell as the wife of [Respondent] Mario Fernandez. Since she failed to prove that she contributed money to the purchase price of the subject apartment building, We find no basis to justify her coownership with [Respondent Mario]. The said property is thus presumed to belong to the conjugal partnership property of Mario and Lourdes Fernandez, it being acquired during the subsistence of their marriage and there being no other proof to the contrary (please see Article 116 of the Family Code). The court a quo (RTC) also found that [Respondent Mario] has two (2) children with Guillerma who are in her custody, and that to eject them from the apartment building would be to run counter with the obligation of the former to give support to his minor illegitimate children, which indispensably includes dwelling. As previously discussed, such finding has no leg to stand on, it being based on evidence presented for the first time on appeal. xxx xxx xxx Even assuming arguendo that the said evidence was validly presented, the RTC failed to consider that the need for support cannot be presumed. Article 203 of the Family Code expressly provides that the obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. . . .1âwphi1.nêt In contrast to the clear pronouncement of the Supreme Court, the RTC instead presumed that Guillerma and her children needed support from [Respondent Mario]. Worse, it relied on evidence not properly presented before the trial court (MTC). With regard to the other [defendants], Gina and Toto Tumlos, a close perusal of the records shows that they did not file any responsive pleading. Hence, judgment may be rendered against them as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein, as provided for in Section 6 of the Revised Rules on Summary Procedure. There

was no basis for the public respondent to dismiss the complaint against them. 7 (emphasis in the original) The Issues In her Memorandum, petitioner submits the following issues for the consideration of the Court: I. The Court of Appeals gravely erred and abused its discretion in not outrightly dismissing the petition for review filed by respondents. II. The Court of Appeals erred in finding that petitioner is not the co-owner of the property in litis. III. Corollary thereto, the Court of Appeals erred in applying Art. 148 of the Family Code in the case at bar. IV. The Court of Appeals erred in disregarding the substantive right of support vis-à-vis the remedy of ejectment resorted to by respondents. 8 In resolving this case, we shall answer two questions: (a) Is the petitioner a co-owner of the property? (b) Can the claim for support bar this ejectment suit? We shall also discuss these preliminary matters: (a) whether the CA was biased in favor of respondents and (b) whether the MTC had jurisdiction over the ejectment suit. The Court’s Ruling The Petition has no merit. Preliminary Matters Petitioner submits that the CA exhibited partiality in favor of herein respondents. This bias, she argues, is manifest in the following: 1. The CA considered the respondents’ Petition for Review 9 despite their failure to attach several pleadings as well as the explanation for the proof of service, despite the clear mandate of Section 11 10 of Rule 13 of the Revised Rules of Court and despite the ruling in Solar Team Entertainment, Inc. v. Ricafort. 11

2. It allowed respondents to submit the pleadings that were not attached. 3. It considered respondents' Reply dated May 20, 1998, which had allegedly been filed out of time. 4. It declared that the case was submitted for decision without first determining whether to give due course to the Petition, pursuant to Section 6, Rule 42 of the Rules of Court. 12 The CA, for its part, succinctly dismissed these arguments in this wise: It is too late in the day now to question the alleged procedural error after we have rendered the decision. More importantly, when the private respondent filed their comment to the petition on April 26, 1998, they failed to question such alleged procedural error. Neither have they questioned all the resolutions issued by the Court after their filing of such comment. They should, therefore, be now considered in estoppel to question the same.13 We agree with the appellate court. Petitioner never raised these matters before the CA. She cannot be allowed now to challenge its Decision on grounds of alleged technicalities being belatedly raised as an afterthought. In this light, she cannot invoke Solar 14 because she never raised this issue before the CA. More important, we find it quite sanctimonious indeed on petitioner’s part to rely, on the one hand, on these procedural technicalities to overcome the appealed Decision and, on the other hand, assert that the RTC may consider the new evidence she presented for the first time on appeal. Such posturing only betrays the futility of petitioner's assertion, if not its absence of merit. One other preliminary matter. Petitioner implies that the court of origin, the Municipal Trial Court (MTC), did not have jurisdiction over the "nature of the case," alleging that the real question involved is one of ownership. Since the issue of possession cannot be settled without passing upon that of ownership, she maintains that the MTC should have dismissed the case. This contention is erroneous. The issue of ownership may be passed upon by the MTC to settle the issue of possession. 15 Such disposition, however, is not final insofar as the issue of ownership is concerned, 16 which may be the subject of another proceeding brought specifically to settle that question. Having resolved these preliminary matters, we now move on to petitioner’s substantive contentions.

First Issue: Petitioner as Co-owner Petitioner’s central theory and main defense against respondents' action for ejectment is her claim of co-ownership over the property with Respondent Mario Fernandez. At the first instance before the MTC, she presented a Contract to Sell indicating that she was his spouse. The MTC found this document insufficient to support her claim. The RTC, however, after considering her allegation that she had been cohabiting with Mario Fernandez as shown by evidence presented before it, 17 ruled in her favor. On the other hand, the CA held that the pieces of evidence adduced before the RTC could no longer be considered because they had not been submitted before the MTC. Hence, the appellate court concluded that "[t]he claim of co-ownership was not satisfactorily proven . . ." 18 We agree with the petitioner that the RTC did not err in considering the evidence presented before it. Nonetheless, we reject her claim that she was a co-owner of the disputed property. Evidence Presented on Appeal Before the RTC In ruling that the RTC erred in considering on appeal the evidence presented by petitioner, the CA relied on the doctrine that issues not raised during trial could not be considered for the first time during appeal. 19 We disagree. In the first place, there were no new matters or issues belatedly raised during the appeal before the RTC. The defense invoked by petitioner at the very start was that she was a co-owner. To support her claim, she presented a Contract to Sell dated November 14, 1986, which stated that Mario Fernandez was legally married to her. The allegation that she was cohabiting with him was a mere elaboration of her initial theory. In the second place, procedural rules are generally premised on considerations of fair play. Respondents never objected when the assailed evidence was presented before the RTC. Thus, they cannot claim unfair surprise or prejudice. Petitioner Not a Co-Owner Under Article 144 of the Civil Code

Even considering the evidence presented before the MTC and the RTC, we cannot accept petitioner's submission that she is a co-owner of the disputed property pursuant to Article 144 of the Civil Code. 20 As correctly held by the CA, the applicable law is not Article 144 of the Civil Code, but Article 148 of the Family Code which provides: Art. 148. In cases of cohabitation not falling under the preceding Article, 21 only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the 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. Art. 144 of the Civil Code applies only to a relationship between a man and a woman who are not incapacitated to marry each other, 22 or to one in which the marriage of the parties is void 23 from the beginning. 24 It does not apply to a cohabitation that amounts to adultery or concubinage, for it would be absurd to create a co-ownership where there exists a prior conjugal partnership or absolute community between the man and his lawful wife. 25 Based on evidence presented by respondents, as well as those submitted by petitioner herself before the RTC, it is clear that Mario Fernandez was incapacitated to marry petitioner because he was legally married to Lourdes Fernandez. It is also clear that, as readily admitted by petitioner, she cohabited with Mario in a state of concubinage. Therefore, Article 144 of the Civil Code is inapplicable. As stated above, the relationship between petitioner and Respondent Mario Fernandez is governed by Article 148 of the Family Code. Justice Alicia V. Sempio-Diy points out 26 that "[t]he Family Code has filled the hiatus in Article 144 of the Civil Code by expressly regulating in its Article 148 the property relations of couples living in a state of adultery or concubinage. Hence, petitioner’s argument — that the Family Code is inapplicable because the cohabitation and the acquisition of the property occurred before its effectivity — deserves scant consideration. Suffice it to say that the law itself states that it can be

applied retroactively if it does not prejudice vested or acquired rights. 27 In this case, petitioner failed to show any vested right over the property in question. Moreover, to resolve similar issues, we have applied Article 148 of the Family Code retroactively. 28 No Evidence of Actual Joint Contribution Another consideration militates against petitioner’s claim that she is a co-owner of the property. In Agapay, 29 the Court ruled: Under Article 148, only the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be owned by them in common in proportion to their respective contributions. It must be stressed that the actual contribution is required by this provision, in contrast to Article 147 which states that efforts in the care and maintenance of the family and household, are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry. If the actual contribution of the party is not proved, there will be no co-ownership and no presumption of equal shares. (emphasis ours) In this case, petitioner fails to present any evidence that she had made an actual contribution to purchase the subject property. Indeed, she anchors her claim of coownership merely on her cohabitation with Respondent Mario Fernandez. Likewise, her claim of having administered the property during the cohabitation is unsubstantiated. In any event, this fact by itself does not justify her claim, for nothing in Article 148 of the Family Code provides that the administration of the property amounts to a contribution in its acquisition. Clearly, there is no basis for petitioner’s claim of co-ownership. The property in question belongs to the conjugal partnership of respondents. Hence, the MTC and the CA were correct in ordering the ejectment of petitioner from the premises. Second Issue: Support versus Ejectment Petitioner contends that since Respondent Mario Fernandez failed to repudiate her claim regarding the filiation of his alleged sons, Mark Gil and Michael Fernandez, his silence on the matter amounts to an admission. Arguing that Mario is liable for support, she advances the theory that the children’s right to support, which necessarily includes shelter, prevails over the right of respondents to eject her.

We disagree. It should be emphasized that this is an ejectment suit whereby respondents seek to exercise their possessory right over their property. It is summary in character and deals solely with the issue of possession of the property in dispute. Here, it has been shown that they have a better right to possess it than does the petitioner, whose right to possess is based merely on their tolerance.1âwphi1.nêt Moreover, Respondent Mario Fernandez' alleged failure to repudiate petitioner's claim of filiation is not relevant to the present case. Indeed, it would be highly improper for us to rule on such issue. Besides, it was not properly taken up below. 30 In any event, Article 298 31 of the Civil Code requires that there should be an extrajudicial demand. 32 None was made here. The CA was correct when it said: Even assuming arguendo that the said evidence was validly presented, the RTC failed to consider that the need for support cannot be presumed. Article [298] of the [New Civil Code] expressly provides that the obligation to give support shall be demandable from the time the person who has a right to receive the same need it for maintenance, but it shall not be paid except from the date of judicial and extrajudicial demand. 33 WHEREFORE, the Petition is DENIED and the appealed Decision AFFIRMED. Costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Baguio City THIRD DIVISION G.R. No. 140153 March 28, 2001

ANTONIO DOCENA and ALFREDA DOCENA, petitioners, vs. HON. RICARDO P. LAPESURA, in his capacity as Presiding Judge of the RTC, Branch III, Guian, Eastern Samar; RUFINO M. GARADO, Sheriff IV; and CASIANO HOMBRIA,respondents. GONZAGA-REYES, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking the nullification of the Court of Appeals1 Resolutions dated June 18, 1999 and September 9, 1999 which dismissed the Petition for Certiorari and Prohibition2 under Rule 65 and denied the corresponding motion for reconsideration, respectively. The antecedent facts are as follows: On June 1, 1977, private respondent Casiano Hombria filed a Complaint .for the recovery of a parcel of land against his lessees, petitioner-spouses Antonio and Alfreda Docena.3The petitioners claimed ownership of the land based on occupation since time immemorial.4 A certain Guillermo Abuda intervened in the case. In a Decision dated November 24, 1989, the trial court ruled in favor of the petitioners and the intervenor Abuda.5 On appeal, the Court of Appeals reversed the judgment of the trial court and ordered the petitioners "to vacate the land they have leased from the plaintiff-appellant [private respondent Casiano Hombria], excluding the portion which the petitioners reclaimed from the sea and forms part of the shore, as shown in the Commissioner's Report, and to pay the plaintiff-appellant the agreed rental of P1.00 per year from the date of the filing of the Complaint until they shall have actually vacated the premises."6 The Complaint in Intervention of Abuda was dismissed.7 On May 22, 1995, private respondent Hombria filed a Motion for Execution of the above decision which has already become final and executory.8 The motion was granted by the public respondent judge, and a Writ of Execution was issued therefor. However, the public respondent sheriff subsequently filed a Manifestation requesting that he "be clarified in the determination of that particular portion which is sought to be excluded prior to the delivery of the land adjudged in favor of plaintiff Casiano Hombria" in view of the defects in the Commissioner's Report and the Sketches attached thereto.9 After requiring the parties to file their Comment on the sheriff's Manifestation, the public respondent judge, in a Resolution dated August 30, 1996, held that "xxx no attempt should be made to alter or modify the decision of the Court of Appeals. What should be delivered therefore to the plaintiff xxx is that portion leased by the defendant-appellees from the plaintiff-appellant excluding the portion that the defendant-appellee have reclaimed from the sea and forms part of the shore as shown in the commissioner's report xxx."10 Pursuant to the Resolution, the public respondent sheriff issued an alias Writ of Demolition. The petitioners filed a Motion to Set Aside or Defer the Implementation of Writ of Demolition. This motion was denied by the public respondent judge in an Order dated November 18, 1998, a copy of which was received by the petitioners on December 29, 1998.11 Also on December 29, 1998, the public respondent judge, in open court, granted the petitioners until January 13, 1999 to file a Motion for Reconsideration.12 On January 13, 1999, petitioners moved for an extension of the period to file a motion for reconsideration until January 28, 1999.13 The motion was finally filed by the petitioners on January 27, 1999, but was denied by the trial court in an Order dated March 17, 1999.14 A copy of the Order was received by the petitioners on May 4, 1999.15 A Petition for Certiorari and Prohibition was filed by the petitioners with the Court of Appeals, alleging grave abuse of discretion on the part of the trial court judge in issuing the Orders dated November 18, 1998 and March 17, 1999, and of the sheriff in

issuing the alias Writ of Demolition. In a Resolution dated 4 June 18, 1999, the Court of Appeals dismissed the petition on the grounds that the petition was filed beyond the 60-day period provided under Section 4 of Rule 65 of the 1997 Revised Rules of Civil Procedure as amended by Bar Matter No. 803 effective September 1, 1998, and that the certification of non-forum shopping attached thereto was signed by only one of the petitioners.16 The Motion for Reconsideration filed by the petitioners was denied by the Court of Appeals in a Resolution dated September 9, 1999.17 Hence this petition. 1âwphi1.nêt The sole issue in this case is whether or not the Court of Appeals erred in dismissing the Petition for Certiorari and Prohibition. The petition is meritorious. The Court of Appeals dismissed the Petition for Certiorari upon the following grounds, viz: (1) the petition was filed beyond the 60-day period provided under Sec. 4, Rule 65 of the 1997 Revised Rules of Civil Procedure as amended by Bar Matter No. 803 effective September l, 1998; and (2) the certification of non-forum shopping was signed by only one of the petitioners. Upon the first ground, the Court of Appeals stated in its Resolution dated June 18, 1999 that: xxx the 60-day period is counted not from the receipt of the Order denying their Motion for Reconsideration but from the date of receipt of the Order of November 18, 1998 which was on December 29, 1998, interrupted by the filing of the Motion for Reconsideration on January 27, 1999. The Motion for "Reconsideration was denied in an Order dated March 17, 1999 received by the petitioners on May 4, 1999. Counting the remaining period, this petition should have been filed on June 4, 1999 but it was filed only on June 14, 1999 or ten (10) days beyond the 60-day period computed in accordance with Bar Matter No. 803. xxx xxx xxx18

The petitioners agree that the counting of the 60-day period should commence on December 29, 1998, the date of the receipt by the petitioners of the assailed trial court order, interrupted by the filing of a motion for reconsideration on January 27, 1999, and resume upon receipt by the petitioners of the denial of the motion by the trial court on May 4, 1999; however, the petitioners contend that from December 29, 1998 up to January 27, 1999, only the 15-day period allowed for the filing of a motion for reconsideration19 should be deemed to have elapsed considering the grant by the trial court of an extension of the period to file the motion until January 13, 1999. Hence, on May 4, 1999, .the petitioners still had 45 days to file a petition for certiorari and/or prohibition, and the filing made on June 14, 1999 was timely.

We hold that the Petition for Certiorari and Prohibition has been timely filed. A.M. No. 00-2-03-SC, which took effect on September 1, 2000, amended Section 4 of Rule 65 of the 1997 Revised Rules of Civil Procedure20 to provide thus: SEC. 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 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 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. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. [Emphasis ours] In the case of Systems Factors Corporation versus NLRC,21 we held that the abovequoted Resolution, being procedural in nature, is applicable to actions pending and undetermined at the time of their passage. The retroactive application of procedural laws such as this Resolution is not violative of any right of a person who may feel adversely affected thereby, as no vested right may attach to nor arise from procedural laws.22 The ruling in the Systems Factors case was reiterated in the recent case of Unity Fishing Development Corporation, et. al. vs. Court of Appeals, et. al.23 Applying the Resolution to the case at bar, the 60-day period for the filing of a petition for certiorari and prohibition should be reckoned from the date of receipt of the order denying the motion for reconsideration, i.e., May 4, 1999, and thus, the filing made on June 14, 1999 was well within the 60-day reglementary period. Anent the ground that the certification of non-forum shopping was signed by only one of the petitioners, it is the contention of the petitioners that the same is sufficient compliance with the requirements of Sections 1 and 2 of Rule 65 (Petition for Certiorari and Prohibition) in relation to Section 3 of Rule 46 (Original Cases Filed in the Court of Appeals). The petitioners argue that since they are spouses with joint or indivisible interest over the alleged conjugal property subject of the original action which gave rise to the petition for certiorari and prohibition, the signing of the certificate of non-forum shopping by only one of them would suffice, especially considering the long distance they had to travel just to sign the said certificate.24 Moreover, there is substantial compliance with the Rules of Court where

the certification was signed by the husband who is the statutory administrator of the conjugal property.25 It has been our previous ruling that the certificate of non-forum shopping should be signed by all the petitioners or plaintiffs in a case, and that the signing by only one of them is insufficient. In the case of Efren Loquias, et. al. vs. Office of the Ombudsman, et. al.,26 we held that the signing of the Verification and the Certification on Non-Forum Shopping by only one of the petitioners constitutes a defect in the petition.27 The attestation contained in the certification on non- forum shopping requires personal knowledge by the party executing the same,28 and the lone signing petitioner cannot be presumed to have personal knowledge of the filing or non-filing by his copetitioners of any action or claim the same as or similar to the current petition. To merit the Court's consideration, petitioners must show reasonable cause for failure to personally sign the certification. In the case at bar, however, we hold that the subject Certificate of Non-Forum Shopping signed by the petitioner Antonio Docena alone should be deemed to constitute substantial compliance with the rules.29 There are only two petitioners in this case and they are husband and wife. Their residence is the subject property alleged to be conjugal in the instant verified petition. The Verification/Certification on Non-Forum Shopping30 attached to the Petition for Certiorari and Prohibition was signed only by the husband who certified, inter alia,that he and his wife have not commenced any other action or proceeding involving the same issues raised in the petition in any court, tribunal or quasi- judicial agency; that to the best of their knowledge no such action is pending therein; and that he and his wife undertake to inform the Court within five (5) days from notice of any similar action or proceeding which may have been filed. The property subject of the original action for recovery is conjugal. Whether it is conjugal under the New Civil Code or the Family Code, a fact that cannot be determined from the records before us, it is believed that the certificate on non-forum shopping filed in the Court of Appeals constitutes sufficient compliance with the rules on forum-shopping. Under the New Civil Code, the husband is the administrator of the conjugal partnership.31 In fact, he is the sole administrator, and the wife is not entitled as a matter of right to join him in this endeavor.32 The husband may defend the conjugal partnership in a suit or action without being joined by the wife. 33 Corollarily, the husband alone may execute the necessary certificate of non-forum shopping to accompany the pleading. The husband as the statutory administrator of the conjugal property could have filed the petition for certiorari and prohibition34 alone, without the concurrence of the wife. If suits to defend an interest in the conjugal properties may be filed by the husband alone, with more reason, he may sign the certificate of non-forum shopping to be attached to the petition. Under the Family Code, the administration of the conjugal property belongs to the husband and the wife jointly.35 However, unlike an act of alienation or encumbrance where the consent of both spouses is required, joint management or administration

does not require that the husband and wife always act together. Each spouse may validly exercise full power of management alone, subject to the intervention of the court in proper cases as provided under Article 124 of the Family Code.36 It is believed that even under the provisions of the Family Code, the husband alone could have filed the petition for certiorari and prohibition to contest the writs of demolition issued against the conjugal property with the Court of Appeals without being joined by his wife. The signing of the attached certificate of non-forum shopping only by the husband is not a fatal defect. More important, the signing petitioner here made the certification in his behalf and that of his wife. The husband may reasonably be presumed to have personal knowledge of the filing or non-filing by his wife of any action or claim similar to the petition for certiorari and prohibition given the notices and legal processes involved in a legal proceeding involving real property. We also see no justifiable reason why he may not lawfully undertake together with his wife to inform the court of any similar action or proceeding which may be filed. If anybody may repudiate the certification or undertaking for having been incorrectly made, it is the wife who may conceivably do so. In view of the circumstances of this case, namely, the property involved is a conjugal property, the petition questioning the writ of demolition thereof originated from an action for recovery brought against the spouses, and is clearly intended for the benefit of the conjugal partnership, and the wife, as pointed out in the Motion for Reconsideration in respondent court, was in the province of Guian, Samar, whereas the petition was prepared in Metro Manila, a rigid application of the rules on forum shopping that would disauthorize a husband's signing the certification in his behalf and that of his wife is too harsh and is clearly uncalled for. It bears stressing that the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective.37 The petitioner's motion for the issuance of a temporary restraining order to put on hold the demolition of the subject property is principally anchored on their alleged right to the nullification of the assailed orders and writs issued by the public respondents.38 As the existence of the right being asserted by the petitioners is a factual issue proper for determination by the Court of Appeals, the motion based thereon should likewise be addressed to the latter court. WHEREFORE, premises considered, the petition is hereby GRANTED. The Court of Appeals Resolutions dated June 18, 1999 and September 9, 1999 are hereby SET ASIDE and the case is REMANDED to the Court of Appeals for further proceedings. SO ORDERED. In May 1995, Daniel, Sr. suffered a stroke which resulted in the paralysis of the right side of his body. Natividad died on October 26, 1996.4 Daniel, Sr. passed away on October 6, 1997.5 Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 162084 June 28, 2005

APRIL MARTINEZ, FRITZ DANIEL MARTINEZ and MARIA OLIVIA MARTINEZ, petitioners, vs. RODOLFO G. MARTINEZ, respondent. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 59420 setting aside and reversing the decision of the Regional Trial Court (RTC) of Manila, Branch 30, in Civil Case No. 00-96962 affirming, on appeal, the decision of the Metropolitan Trial Court (MTC) of Manila in Civil Case No. 164761 (CV) for ejectment. The Antecedents The spouses Daniel P. Martinez, Sr. and Natividad de Guzman-Martinez were the owners of a parcel of land identified as Lot 18-B-2 covered by Transfer Certificate of Title (TCT) No. 54334, as well as the house constructed thereon.2 On March 6, 1993, Daniel, Sr. executed a Last Will and Testament3 directing the subdivision of the property into three lots, namely, Lots 18-B-2-A, 18-B-2-B and 18-B-2-C. He then bequeathed the three lots to each of his sons, namely, Rodolfo, Manolo and Daniel, Jr.; Manolo was designated as the administrator of the estate.

On September 16, 1998, Rodolfo found a deed of sale purportedly signed by his father on September 15, 1996, where the latter appears to have sold Lot 18-B-2 to Manolo and his wife Lucila.6 He also discovered that TCT No. 237936 was issued to the vendees based on the said deed of sale.7 Rodolfo filed a complaint8 for annulment of deed of sale and cancellation of TCT No. 237936 against his brother Manolo and his sister-in-law Lucila before the RTC. He also filed a criminal complaint for estafa through falsification of a public document in the Office of the City Prosecutor against Manolo, which was elevated to the Department of Justice.9 On motion of the defendants, the RTC issued an Order10 on March 29, 1999, dismissing the complaint for annulment of deed of sale on the ground that the trial court had no jurisdiction over the action since there was no allegation in the complaint that the last will of Daniel Martinez, Sr. had been admitted to probate. Rodolfo appealed the order to the CA.11 On October 4, 1999, Rodolfo filed a Petition with the RTC of Manila for the probate of the last will of the deceased Daniel Martinez, Sr.12 In the meantime, the spouses Manolo and Lucila Martinez wrote Rodolfo, demanding that he vacate the property. Rodolfo ignored the letter and refused to do so. This prompted the said spouses to file a complaint for unlawful detainer against Rodolfo in the MTC of Manila. They alleged that they were the owners of the property covered by TCT No. 237936, and that pursuant to Presidential Decree (P.D.) No. 1508, the matter was referred to thebarangay for conciliation and settlement, but none was reached. They appended the certification to file action executed by the barangay chairman to the complaint. In his Answer to the complaint filed on October 11, 1999, Rodolfo alleged, inter alia, that the complaint failed to state a condition precedent, namely, that earnest efforts for an amicable settlement of the matter between the parties had been exerted, but that none was reached. He also pointed out that the dispute had not been referred to the barangay before the complaint was filed. On October 20, 1999, the spouses Martinez filed an Amended Complaint in which they alleged that earnest efforts toward a settlement had been made, but that the same proved futile. Rodolfo filed his opposition thereto, on the ground that there was no motion for the admission of the amended complaint. The trial court failed to act on the matter. The spouses Martinez alleged in their position paper that earnest efforts toward a compromise had been made and/or exerted by them, but that the same proved futile.14 No amicable settlement was, likewise, reached by the parties during the preliminary conference because of irreconcilable differences. The MTC was, thus, impelled to terminate the conference.15
13

On February 21, 2000, the trial court rendered judgment in favor of the spouses Martinez. The fallo of the decision reads: WHEREFORE, premises considered, judgment is rendered in favor of plaintiff. The defendant, including any person claiming right under him, is ordered: 1) To vacate the subject premises; 2) To pay plaintiff the sum of P10,000.00 a month starting July 17, 1999, the date of last demand until he vacates the same; 3) To pay the sum of P10,000.00 as and for attorney’s fees; and 4) Costs of suit. SO ORDERED.16 The trial court declared that the spouses Martinez had substantially complied with Article 151 of the Family Code of the Philippines17 based on the allegations of the complaint and the appended certification to file action issued by the barangay captain. Rodolfo appealed the decision to the RTC. On May 31, 2000, the RTC rendered judgment affirming the appealed decision. He then filed a petition for review of the decision with the CA, alleging that: 1. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND WITHOUT MERIT THE DEFENSE OF PETITIONER THAT THERE IS NO ALLEGATION IN THE COMPLAINT THAT PETITIONER HAS UNLAWFULLY WITHHELD POSSESSION OF THE PROPERTY FROM RESPONDENTS – A REQUIREMENT IN [AN] UNLAWFUL DETAINER SUIT. 2. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT PETITIONER’S POSSESSION OF THE PROPERTY IS BY MERE TOLERANCE OF RESPONDENTS. 3. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE RESPONDENTS HAVE A CAUSE OF ACTION. 4. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH DID NOT RESOLVE THE SIXTH ISSUE, TO WIT, "Whether or not this Court has jurisdiction over this case considering that the allegations in the complaint makes out a case of accion publiciana."

5. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH HAS NO JURISDICTION OVER THE CASE. 6. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE MANDATORY REQUIREMENT OF CONCILIATION HAS BEEN COMPLIED WITH. 7. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THERE WAS SUBSTANTIAL COMPLIANCE WITH THE KATARUNGANG PAMBARANGAY LAW. 8. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE PENDENCY OF CIVIL CASE NO. 98-91147 AND SPECIAL PROCEEDINGS NO. 99-95281, INVOLVING THE PETITIONER AND RESPONDENTS AND INVOLVING THE SAME PROPERTY DID NOT DIVEST THE MTC OF AUTHORITY TO DECIDE THE CASE. 9. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH GRANTED THE RELIEF PRAYED FOR BY THE RESPONDENTS. 10. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC.18 On November 27, 2003, the CA rendered judgment granting the petition and reversing the decision of the RTC. The appellate court ruled that the spouses Martinez had failed to comply with Article 151 of the Family code. The CA also held that the defect in their complaint before the MTC was not cured by the filing of an amended complaint because the latter pleading was not admitted by the trial court. Upon the denial of their motion for reconsideration of the said decision, the spouses Martinez filed the present petition for review on certiorari, in which they raise the following issues: I. WHETHER OR NOT THE CERTIFICATION TO FILE ACTION AND THE ALLEGATIONS IN THE COMPLAINT THAT THE CASE PASSED [THROUGH] THE BARANGAY BUT NO SETTLEMENT WAS REACHED, ARE SUFFICIENT COMPLIANCE TO PROVE THAT, INDEED, EARNEST EFFORTS WERE, IN FACT, MADE BUT THE SAME HAVE FAILED PRIOR TO THE FILING OF THE COMPLAINT. II. WHETHER OR NOT THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN FINDING THAT THERE WAS NON-COMPLIANCE WITH THE

REQUIREMENT PROVIDED FOR UNDER ARTICLE 151 OF THE FAMILY CODE, CONSIDERING THAT ONE OF THE PARTIES TO A SUIT IN THIS CASE IS NOT A MEMBER OF THE SAME FAMILY.19 The petitioners alleged that they substantially complied with Article 151 of the Family Code, since they alleged the following in their original complaint: 2. In compliance with P.D. 1508, otherwise known as the "Katarungang Pambarangay," this case passed [through] the Barangay and no settlement was forged between plaintiffs and defendant as a result of which Certification to File Action was issued by Barangay 97, Zone 8, District I, Tondo, Manila. xxx" (Underscoring supplied)20 Further, the petitioners averred, they alleged in their position paper that they had exerted earnest efforts towards a compromise which proved futile. They also point out that the MTC resolved to terminate the preliminary conference due to irreconcilable difference between the parties. Besides, even before they filed their original complaint, animosity already existed between them and the respondent due to the latter’s filing of civil and criminal cases against them; hence, the objective of an amicable settlement could not have been attained. Moreover, under Article 150 of the Family Code, petitioner Lucila Martinez had no familial relations with the respondent, being a mere sister-in-law. She was a stranger to the respondent; hence, there was no need for the petitioners21 to comply with Article 151 of the Family Code. The petition is meritorious. Article 151 of the Family Code provides: 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 phrase "members of the family" must be construed in relation to Article 150 of the Family Code, to wit: Art. 150. Family relations include those: (1) Between husband and wife; (2) Between parents and children;

(3) Among other ascendants and descendants; and (4) Among brothers and sisters, whether of the full or half-blood. Article 151 of the Family code must be construed strictly, it being an exception to the general rule. Hence, a sister-in-law or brother-in-law is not included in the enumeration.22 As pointed out by the Code Commission, it is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the same family. It is necessary that every effort should be made toward a compromise before a litigation is allowed to breed hate and passion in the family and it is known that a lawsuit between close relatives generates deeper bitterness than between strangers.23 Thus, a party’s failure to comply with Article 151 of the Family Code before filing a complaint against a family member would render such complaint premature. In this case, the decision of the CA that the petitioners were mandated to comply with Article 151 of the Family code and that they failed to do so is erroneous. First. Petitioner Lucila Martinez, the respondent’s sister-in-law, was one of the plaintiffs in the MTC. The petitioner is not a member of the same family as that of her deceased husband and the respondent: 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 betweenmembers 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.24 Second. The petitioners were able to comply with the requirements of Article 151 of the Family Code because they alleged in their complaint that they had initiated a proceeding against the respondent for unlawful detainer in theKatarungang Pambarangay, in compliance with P.D. No. 1508; and that, after due proceedings, no amicable settlement was arrived at, resulting in the barangay chairman’s issuance of a certificate to file action.25 The Court rules that such allegation in the complaint, as well as the certification to file action by the barangay chairman, is sufficient compliance with article 151 of the Family Code. It bears stressing that under Section 412(a) of Republic Act No. 7160, no complaint involving any matter within the authority of the Lupon shall be instituted or filed directly in court for adjudication unless there has been a confrontation between the parties and no settlement was reached.26 IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 59420 is REVERSED AND SET ASIDE. The Decision of the Metropolitan Trial Court of Manila, as affirmed on appeal by the Regional Trial Court of Manila, Branch 30, in Civil Case No. 164761(CV) is REINSTATED. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

brothers; that the decision of the Intermediate Appellate Court in Land Registration Case No. N-581-25 was null and void since it was based upon a ground which was not passed upon by the trial court; that petitioners' claim for damages was barred by prescription with respect to claims before 1984; that there were no rentals due since private respondent Hontiveros was a possessor in good faith and for value; and that private respondent Ayson had nothing to do with the case as she was not married to private respondent Gregorio Hontiveros and did not have any proprietary interest in the subject property. Private respondents prayed for the dismissal of the complaint and for an order against petitioners to pay damages to private respondents by way of counterclaim, as well as reconveyance of the subject land to private respondents. 3 On May 16, 1991, petitioners filed an Amended Complaint to insert therein an allegation that "earnest efforts towards a compromise have been made between the parties but the same were unsuccessful." In due time, private respondents filed an Answer to Amended Complaint with Counterclaim, in which they denied, among other things, that earnest efforts had been made to reach a compromise but the parties was unsuccessful. On July 19, 1995, petitioners moved for a judgment on the pleadings on the ground that private respondents' answer did not tender an issue or that it otherwise admitted the material allegations of the complaint. 4 Private respondents opposed the motion alleging that they had denied petitioners' claims and thus tendered certain issues of fact which could only be resolved after trial. 5 On November 23, 1995, the trial court denied petitioners' motion. At the same time, however, it dismissed the case on the ground that the complaint was not verified as required by Art. 151 of the Family Code and, therefore, it did not believe that earnest efforts had been made to arrive at a compromise. The order of the trial court reads: 6 The Court, after an assessment of the diverging views and arguments presented by both parties, is of the opinion and so holds that judgment on the pleadings is inappropriate not only for the fact that the defendants in their answer, particularly in its paragraph 3 to the amended complaint, specifically denied the claim of damages against them, but also because of the ruling in De Cruz vs. Cruz, G.R. No. 27759, April 17, 1970 (32 SCRA 307), citing Rili vs. Chunaco, 98 Phil. 505, which ruled that the party claiming damages must satisfactorily prove the amount thereof and that though the rule is that failure to specifically deny the allegations in the complaint or counter-claim is deemed an admission of said allegations, there is however an exception to it, that is, that when the allegations refer to the amount of damages, the allegations must still be proved. This ruling is in accord with the provision of Section 1, Rule 9 of the Rules of Court.

G.R. No. 125465 June 29, 1999 SPOUSES AUGUSTO HONTIVEROS and MARIA HONTIVEROS, petitioners, vs. REGIONAL TRIAL COURT, Branch 25, Iloilo City and SPOUSES GREGORIO HONTIVEROS and TEODORA AYSON, respondents.

MENDOZA, J.: On December 3, 1990, petitioners, the spouses Augusto and Maria Hontiveros, filed a complaint for damages against private respondents Gregorio Hontiveros and Teodora Ayson before the Regional Trial Court of Iloilo City, Branch 25, where it was docketed as Civil Case No. 19504. In said complaint, petitioners alleged that they are the owners of a parcel of land, in the town of Jamindan, Province of Capiz, as shown by OCT No. 0-2124, issued pursuant to the decision of the Intermediate. Appellate Court, dated April 12, 1984, which modified the decision of the Court of First Instance of Capiz, dated January 23, 1975, in a land registration case 1 filed by private respondent Gregorio Hontiveros; that petitioners were deprived of income from the land as a result of the filing of the land registration case; that such income consisted of rentals from tenants of the land in the amount of P66,000.00 per year from 1968 to 1987, and P595,000.00 per year thereafter; and that private respondents filed the land registration case and withheld possession of the land from petitioners in bad faith. 2 In their answer, private respondents denied that they were married and alleged that private respondent Hontiveros was a widower while private respondent Ayson was single. They denied that they had deprived petitioners of possession of and income from the land. On the contrary, they alleged that possession of the property in question had already been transferred to petitioners on August 7, 1985, by virtue of a writ of possession, dated July 18, 1985, issued by the clerk of court of the Regional Trial Court of Capiz, Mambusao, the return thereof having been received by petitioners' counsel; that since then, petitioners have been directly receiving rentals from the tenants of the land, that the complaint failed to state a cause of action since it did not allege that earnest efforts towards a compromise had been made, considering that petitioner Augusto Hontiveros and private respondent Gregorio Hontiveros are

That while the plaintiffs in their amended complaint alleged that earnest efforts towards a compromise with the defendants were made, the fact is that their complaint was not verified as provided in Article 151 of the Family Code. Besides, it is not believed that there were indeed earnest efforts made to patch up and/or reconcile the two feuding brothers, Gregorio and Augusto, both surnamed Hontiveros. The submission of the plaintiffs that, assuming no such earnest efforts were made, the same is not necessary or jurisdictional in the light of the ruling in Rufino Magbaleta, et al., petitioner, vs. Hon. Arsenio M. Ganong, et al., respondents, No. L-44903, April 22, 1977, is, to the mind of this Court, not applicable to the case at bar for the fact is the rationale in that case is not present in the instant case considering these salient points: a) Teodora Ayson, the alleged wife of defendant Gregorio Hontiveros and allegedly not a member of the Hontiveros Family, is not shown to be really the wife of Gregorio also denied in their verified answer to the amended complaint. b) Teodora Ayson has not been shown to have acquired any proprietary right or interest in the land that was litigated by Gregorio and Augusto, unlike the cited case of Magbaleta where it was shown that a stranger to the family acquired certain right; c) In the decision rendered by the appellate court no mention was made at all of the name of Teodora Ayson as part-awardee of Lot 37 that was adjudged to Gregorio other than himself who was therein described as a widower. Moreover, Teodora was never mentioned in said decision, nor in the amended complaint and in the amended motion for judgment on the pleadings that she ever took any part in the act of transaction that gave rise to the damages allegedly suffered by the plaintiffs for which they now claim some compensation. WHEREFORE, in the light of all the foregoing premises, the Court orders, as it hereby orders, the dismissal of this case with cost against the plaintiffs. SO ORDERED. Petitioners moved for a reconsideration of the order of dismissal, but their motion was denied. 7 Hence, this petition for review on certiorari. Petitioner contend:

I. THE REGIONAL TRIAL COURT PALPABLY ERRED IN DISMISSING THE COMPLAINT ON THE GROUND THAT IT DOES NOT ALLEGE UNDER OATH THAT EARNEST EFFORTS TOWARD A COMPROMISE WERE MADE PRIOR TO THE FILING THEREOF AS REQUIRED BY ARTICLE 151 OF THE FAMILY CODE. II. THE REGIONAL TRIAL COURT PALPABLY ERRED IN NOT DENYING THE MOTION FOR JUDGMENT ON THE PLEADINGS AND ORDERING A TRIAL ON THE MERITS. Private respondents raise a preliminary question. They argue that petitioners should have brought this case on appeal to the Court of Appeals since the order of the trial court judge was actually a decision on the merits. On the other hand, even if petition for certiorari were the proper remedy, they contend that the petition is defective because the judge of the trial court has not been impleaded as a respondent. 8 Private respondents' contention is without merit. The petition in this case was filed pursuant to Rule 45 of the Rules of Court. As explained in Atlas Consolidated Mining Development Corporation v. Court of Appeals: 9 Under Section 5, subparagraph (2)(e), Article VIII of the 1987 Constitution, the Supreme Court is vested with the power to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in all cases in which only an error or question of law is involved. A similar provision is contained in Section 17, fourth paragraph, subparagraph (4) of the Judiciary Act of 1948, as amended by Republic Act No. 5440. And, in such cases where only questions of law are involved, Section 25 of the Interim Rules and Guidelines implementing Batas Pambansa Blg. 129, in conjunction with Section 3 of Republic Act No. 5440, provides that the appeal to the Supreme Court shall be taken by petition for certiorari which shall be governed by Rule 45 of the Rules of Court. The rule, therefore, is that direct appeals to this Court from the trial court on questions of law have to be through the filing of a petition for review on certiorari. It has been held that: . . . when a CFI (RTC) adjudicates a case in the exercise of its original jurisdiction, the correct mode of elevating the judgment to the

Court of Appeals is by ordinary appeal, or appeal by writ of error, involving merely the filing of a notice of appeal — except only if the appeal is taken in special proceedings and other cases wherein multiple appeals are allowed under the law, in which even the filing of a record on appeal is additionally required. Of course, when the appeal would involve purely questions of law or any of the other cases (except criminal cases as stated hereunder) specified in Section 5(2), Article X of the Constitution, it should be taken to the Supreme Court by petition for review oncertiorari in accordance with Rules 42 and 45 of the Rules of Court. By way of implementation of the aforestated provisions of law, this Court issued on March 9, 1930 Circular No. 2-90, paragraph 2 of which provides: 2. Appeals from Regional Courts to the Supreme Court. — Except in criminal cases where the penalty imposed is life imprisonment or reclusion perpetua, judgments of regional trial courts may be appealed to the Supreme Court only by petition for review oncertiorari in accordance with Rule 45 of the Rules of Court in relation to Section 17 of the Judiciary Act of 1948, as amended, this being the clear intendment of the provision of the Interim Rules that (a)ppeals to the Supreme Court shall be taken by petition for certiorariwhich shall be governed by Rule 45 of the Rules of Court. Under the foregoing considerations, therefore, the inescapable conclusion is that herein petitioner adopted the correct mode of appeal in G.R. No. 88354 by filing with this Court petition to review oncertiorari the decision of the Regional Trail Court of Pasig in Civil Case No. 25528 and raising therein purely questions of law. In Meneses v. Court of Appeals, it was held: 10 It must also be stressed that the trial court's order of 5 June 1992 dismissing the petitioner's complaint was, whether it was right or wrong, a final order because it had put an end to the particular matter resolved, or settled definitely the matter therein disposed

of and left nothing more to be done by the trial court except the execution of the order. It is a firmly settled rule that the remedy against such order is the remedy of appeal and not certiorari. That appeal may be solely on questions of law, in which case it may be taken only to this Court; or on questions of fact and law, in which case the appeal should be brought to the Court of Appeals. Pursuant to Murillo v. Consul, the appeal to this Court should be by petition for review on certiorari in accordance with Rule 45 of the Rules of Court. As private respondents themselves admit, the order of November 23, 1995 is a final order from which an appeal can be taken. It is final in the sense that it disposes of the pending action before the court and puts an end to the litigation so that nothing more was left for the trial court to do. 11 Furthermore, as the questions raised as the questions of law, petition for review on certiorari is the proper mode of appeal. These questions are: (1) whether after denying petitioners' motion for judgment on the pleadings, the trial court could dismiss their complaint motu proprio for failure to comply with Art. 151 of the Family Code which provides that no suit between members of the same family shall prosper unless it appears from the complaint, which must be verified, that earnest efforts towards a compromise have been made but the same have failed; and (2) whether Art. 151 applies to this case. These questions do not require an examination of the probative value of evidence presented and the truth or falsehood of facts asserted which questions of fact would entail. 12 On the other hand, petitioners contend that the trial court erred in dismissing the complaint when no motion to that effect was made by any of the parties. They point out that, in opposing the motion for judgment on the pleadings, private respondents did not seek the dismissal of the case but only the denial of petitioners' motion. Indeed, what private respondents asked was that trial be held on the merits. Of course, there are instances when the trial court may order the dismissal of the case even without a motion to that effect filed by any of the parties. In Baja v. Macandog, 13 this Court mentioned these cases, to wit: The court cannot dismiss a case motu proprio without violating the plaintiff's right to be heard, except in the following instances: if the plaintiff fails to appear at the time of the trial; if he fails to prosecute his action for unreasonable length of time; or if he fails to comply with the rules or any order of the court; or if the court finds that it has no jurisdiction over the subject matter of the suit. However, none of these exceptions appears in this case. Moreover, the trial court itself found that "judgment on the pleadings is inappropriate not only for the fact that [private respondents] in their answer . . . specifically denied the claim of damages against them, but also because of the [rule] . . . that the party

claiming damages must satisfactorily prove the amount thereof. . . . " Necessarily, a trial must be held. Rule 19 of the Rules of Court provides: 14 Sec. 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or otherwise admits the material allegation of the adverse party's pleadings, the court may, on motion of the party, direct judgment on such pleading. But in actions for annulment of marriage or for legal separation the material facts alleged in the complaint shall always be proved. Under the rules, if there is no controverted matter in the case after the answer is filed, the trial court has the discretion to grant a motion for judgment on the pleadings filed by a party. 15 When there are actual issues raised in the answer, such as one involving damages, which require the presentation of evidence and assessment thereof by the trial court, it is improper for the judge to render judgment based on the pleadings alone. 16 In this case, aside from the amount of damages, the following factual issues have to be resolved, namely, (1) private respondent Teodora Ayson's participation and/or liability, if any to petitioners and (2) the nature, extent, and duration of private respondents' possession of the subject property. The trial court, therefore, correctly denied petitioners' motion for judgment on the pleadings. However, the trial court erred in dismissing petitioners' complaint on the ground that, although it alleged that earnest efforts had been made toward the settlement of the case but they proved futile, the complaint was not verified for which reason the trial court could not believe the veracity of the allegation. The absence of the verification required in Art. 151 does not affect the jurisdiction of the court over the subject matter of the complaint. The verification is merely a formal requirement intended to secure an assurance that matters which are alleged are true and correct. If the court doubted the veracity of the allegations regarding efforts made to settle the case among members of the same family, it could simply have ordered petitioners to verify them. As this Court has already ruled, the court may simply order the correction of unverified pleadings or act on it and waive strict compliance with the rules in order that the ends of justice may be served. 17 Otherwise, mere suspicion or doubt on the part of the trial court as to the truth of the allegation that earnest efforts had been made toward a compromise but the parties' efforts proved unsuccessful is not a ground for the dismissal of an action. Only if it is later shown that such efforts had not really been exerted would the court be justified in dismissing the action. Thus, Art. 151 provides: No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that

the same have failed. It if is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. Moreover, as petitioners contend, Art. 151 of the Family Code does not apply in this case since the suit is not exclusively among the family members. Citing several cases 18 decided by this Court, petitioners claim that whenever a stranger is a party in the case involving the family members, the requisite showing the earnest efforts to compromise is no longer mandatory. They argue that since private respondent Ayson is admittedly a stranger to the Hontiveros family, the case is not covered by the requirements of Art. 151 of the Family Code. We agree with petitioners. The inclusion of private respondent Ayson as defendant and petitioner Maria Hontiveros as plaintiff takes the case out of the ambit of Art. 151 of the Family Code. Under this provision, the phrase "members of the same family" refers to the husband and wife, parents and children, ascendants and descendants, and brothers and sisters, whether full or half-blood. 19 As this Court held in Guerrero v. RTC, Ilocos Norte, Br. XVI: 20 As early as two decades ago, we already ruled in Gayon v. Gayon that the enumeration of "brothers and sisters" as member of the same family does not comprehend "sisters-in-law." In that case, then Chief Justice Concepcion emphasized that "sisters-inlaw" (hence, also "brother-in-law") are not listed under Art. 217 of the New Civil Code as members of the same family. Since Art. 150 of the Family Code repeats essentially the same enumeration of "members of the family," we find no reason to alter existing jurisprudence on the mater. Consequently, the court a quo erred in ruling that petitioner Guerrero, being a brother-in-law of private respondent Hernando, was required to exert earnest efforts towards a compromise before filing the present suit. Religious relationship and relationship by affinity are not given any legal effect in this jurisdiction. 21 Consequently, private respondent Ayson, who is described in the complaint as the spouse of respondent Hontiveros, and petitioner Maria Hontiveros, who is admittedly the spouse of petitioner Augusto Hontiveros, are considered strangers to the Hontiveros family, for purposes of Art. 151. Petitioners finally question the constitutionality of Art. 151 of the Family Code on the ground that it in effect amends the Rules of Court. This, according to them, cannot be done since the Constitution reserves in favor of the Supreme Court the power to promulgate rules of pleadings and procedure. Considering the conclusion we have reached in this case, however, it is unnecessary for present purposes to pass upon

this question. Courts do not pass upon constitutional questions unless they are the very lis mota of the case. WHEREFORE, the petition is GRANTED and the Order, dated November 23, 1995 of the Regional Trial Court of Iloilo City, Branch 25 is SET ASIDE and the case is remanded to the trial court for further proceedings not inconsistent with this decision.1âwphi1.nêt SO ORDERED.

Troadio Manalo, a resident of 1996 Maria Clara Street, Sampaloc, Manila died intestate on February 14, 1992. He was survived by his wife, Pilar S. Manalo, and his eleven (11) children, namely: Purita M. Jayme, Antonio Manalo, Milagros M. Terre, Belen M. Orillano, Isabelita Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo, Orlando Manalo and Imelda Manalo, who are all of legal age.1âwphi1.nêt At the time of his death on February 14, 1992, Troadio Manalo left several real properties located in Manila and in the province of Tarlac including a business under the name and style Manalo's Machine Shop with offices at No. 19 Calavite Street, La Loma, Quezon City and at NO. 45 General Tinio Street, Arty Subdivision, Valenzuela, Metro Manila. On November 26, 1992, herein respondents, who are eight (8) of the surviving children of the late Troadio Manalo, namely; Purita, Milagros, Belen Rocalina, Romeo, Roberto, Amalia, and Imelda filed a petition 6 with the respondent Regional Trial Court of Manila 7 of the judicial settlement of the estate of their late father, Troadio Manalo, and for the appointment of their brother, Romeo Manalo, as administrator thereof.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. NO. 129242 January 16, 2001

On December 15, 1992, the trial court issued an order setting the said petition for hearing on February 11, 1993 and directing the publication of the order for three (3) consecutive weeks in a newspaper of general circulation in Metro Manila, and further directing service by registered mail of the said order upon the heirs named in the petition at their respective addresses mentioned therein. On February 11, 1993, the date set for hearing of the petition, the trial court issued an order 'declaring the whole world in default, except the government," and set the reception of evidence of the petitioners therein on March 16, 1993. However, the trial court upon motion of set this order of general default aside herein petitioners (oppositors therein) namely: Pilar S. Vda. De Manalo, Antonio, Isabelita and Orlando who were granted then (10) days within which to file their opposition to the petition. Several pleadings were subsequently filed by herein petitioners, through counsel, culminating in the filling of an Omnibus Motion8 on July 23, 1993 seeking; (1) to seat aside and reconsider the Order of the trial court dated July 9, 1993 which denied the motion for additional extension of time file opposition; (2) to set for preliminary hearing their affirmative defenses as grounds for dismissal of the case; (3) to declare that the trial court did not acquire jurisdiction over the persons of the oppositors; and (4) for the immediate inhibition of the presiding judge. On July 30, 1993, the trial court issued an order9 which resolved, thus: A. To admit the so-called Opposition filed by counsel for the oppositors on July 20, 1993, only for the purpose of considering the merits thereof;

PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S. MANALO, and ISABELITA MANALO ,petitioners, vs. HON. COURT OF APPEALS, HON. REGIONAL TRIAL COURT OF MANILA (BRANCH 35), PURITA S. JAYME, MILAGROS M. TERRE, BELEN M. ORILLANO, ROSALINA M. ACUIN, ROMEO S. MANALO, ROBERTO S. MANALO, AMALIA MANALO and IMELDA MANALO, respondents. DE LEON, JR., J.: This is a petition for review on certiorari filed by petitioners Pilar S. Vda De Manalo, et. Al., seeking to annul the Resolution 1 of the Court of Appeals 2 affirming the Orders 3 of the Regional Trial Court and the Resolution 4 which denied petitioner' motion for reconsideration. The antecedent facts are as follows:
5

B. To deny the prayer of the oppositors for a preliminary hearing of their affirmative defenses as ground for the dismissal of this proceeding, said affirmative defenses being irrelevant and immaterial to the purpose and issue of the present proceeding; C. To declare that this court has acquired jurisdiction over the persons of the oppositors; D. To deny the motion of the oppositors for the inhibition of this Presiding Judge; E. To set the application of Romeo Manalo for appointment as regular administrator in the intestate estate of the deceased Troadio Manalo for hearing on September 9, 1993 at 2:00 o'clock in the afternoon. Herein petitioners filed a petition for certiorari under Rule 65 of the Rules of Court with the Court of Appeals, docketed as CA-G.R. SP. No. 39851, after the trial court in its Order 10dated September 15, 1993. In their petition for improperly laid in SP. PROC. No. 92-63626; (2) the trial court did not acquire jurisdiction over their persons; (3) the share of the surviving spouse was included in the intestate proceedings; (4) there was absence of earnest efforts toward compromise among members of the same family; and (5) no certification of non-forum shopping was attached to the petition. Finding the contentions untenable, the Court of Appeals dismissed the petition for certiorari in its Resolution11 promulgated on September 30, 1996. On May 6, 1997 the motion for reconsideration of the said resolution was likewise dismissed.12 The only issue raised by herein petitioners in the instant petition for review is whether or not the respondent Court of Appeals erred in upholding the questioned orders of the respondent trial court which denied their motion for the outright dismissal of the petition for judicial settlement of estate despite the failure of the petitioners therein to aver that earnest efforts toward a compromise involving members of the same family have been made prior to the filling of the petition but that the same have failed. Herein petitioners claim that the petition in SP. PROC. No. 92-63626 is actually an ordinary civil action involving members of the same family. They point out that it contains certain averments, which, according to them, are indicative of its adversarial nature, to wit: X X X

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

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

Par. 14. For the protection of their rights and interests, petitioners were compelled to bring this suit and were forced to litigate and incur expenses and will continue to incur expenses of not less than, P250,000.00 and engaged the services of herein counsel committing to pay P200,000.00 as and attorney's fees plus honorarium of P2,500.00 per appearance in court xxx.13 Consequently, according to herein petitioners, the same should be dismissed under Rule 16, Section 1(j) of the Revised Rules of Court which provides that a motion to dismiss a complaint may be filed on the ground that a condition precedent for filling the claim has not been complied with, that is, that the petitioners therein failed to aver in the petition in SP. PROC. No. 92-63626, that earnest efforts toward a compromise have been made involving members of the same family prior to the filling of the petition pursuant to Article 222 14 of the Civil Code of the Philippines. The instant petition is not impressed with merit. It is a fundamental rule that in the determination of the nature of an action or proceeding, the averments15 and the character of the relief sought 16 in the complaint, or petition, as in the case at bar, shall be controlling. A careful srutiny of the Petition for Issuance of Letters of Administration, Settlement and Distribution of Estatein SP. PROC. No. 92-63626 belies herein petitioners' claim that the same is in the nature of an ordinary civil action. The said petition contains sufficient jurisdictional facts required in a petition for the settlement of estate of a deceased person such as the fat of death of the late Troadio Manalo on February 14, 1992, as well as his residence in the City of Manila at the time of his said death. The fact of death of the decedent and of his residence within he country are foundation facts upon which all the subsequent proceedings in the administration of the estate rest.17 The petition is SP.PROC No. 9263626 also contains an enumeration of the names of his legal heirs including a tentative list of the properties left by the deceased which are sought to be settled in the probate proceedings. In addition, the relief's prayed for in the said petition leave no room for doubt as regard the intention of the petitioners therein (private respondents herein) to seek judicial settlement of the estate of their deceased father, Troadio Manalo, to wit;

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

PRAYER WHEREFORE, premises considered, it is respectfully prayed for of this Honorable Court: a. That after due hearing, letters of administration be issued to petitioner ROMEO MANALO for the administration of the estate of the deceased TROADIO MANALO upon the giving of a bond in such reasonable sum that this Honorable Court may fix. b. That after all the properties of the deceased TROADIO MANALO have been inventoried and expenses and just debts, if any, have been paid and the legal heirs of the deceased fully determined, that the said estate of TROADIO MANALO be settled and distributed among the legal heirs all in accordance with law. c. That the litigation expenses of these proceedings in the amount of P250,000.00 and attorney's fees in the amount of P300,000.00 plus honorarium of P2,500.00 per appearance in court in the hearing and trial of this case and costs of suit be taxed solely against ANTONIO MANALO.18 Concededly, the petition in SP. PROC. No. 92-63626 contains certain averments which may be typical of an ordinary civil action. Herein petitioners, as oppositors therein, took advantage of the said defect in the petition and filed their so-called Opposition thereto which, as observed by the trial court, is actually an Answer containing admissions and denials, special and affirmative defenses and compulsory counterclaims for actual, moral and exemplary damages, plus attorney's fees and costs 19 in an apparent effort to make out a case of an ordinary civil action and ultimately seek its dismissal under Rule 16, Section 1(j) of the Rules of Court vis-àvis, Article 222 of civil of the Civil Code. It is our view that herein petitioners may not be allowed to defeat the purpose of the essentially valid petition for the settlement of the estate of the late Troadio Manalo by raising matters that as irrelevant and immaterial to the said petition. It must be emphasized that the trial court, siting as a probate court, has limited and special jurisdiction 20 and cannot hear and dispose of collateral matters and issues which may be properly threshed out only in an ordinary civil action. In addition, the rule has always been to the effect that the jurisdiction of a court, as well as the concomitant nature of an action, is determined by the averments in the complaint and not by the defenses contained in the answer. If it were otherwise, it would not be too difficult to have a case either thrown out of court or its proceedings unduly delayed by simple strategem.21 So it should be in the instant petition for settlement of estate. Herein petitioners argue that even if the petition in SP. PROC. No. 92-63626 were to be considered as a special proceeding for the settlement of estate of a deceased person, Rule 16, Section 1(j) of the Rules of Court vis-à-vis Article 222 of the Civil Code of the Philippines would nevertheless apply as a ground for the dismissal of the

same by virtue of ule 1, Section 2 of the Rules of Court which provides that the 'rules shall be liberally construed in order to promote their object and to assist the parties in obtaining just, speedy and inexpensive determination of every action and proceedings.' Petitioners contend that the term "proceeding" is so broad that it must necessarily include special proceedings. The argument is misplaced. Herein petitioners may not validly take refuge under the provisions of Rule 1, Section 2, of the Rules of Court to justify the invocation of Article 222 of the Civil Code of the Philippines for the dismissal of the petition for settlement of the estate of the deceased Troadio Manalo inasmuch as the latter provision is clear enough. To wit: Art. 222. No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, but that the same have failed, subject to the limitations in Article 2035(underscoring supplied).22 The above-quoted provision of the law is applicable only to ordinary civil actions. This is clear from the term 'suit' that it refers to an action by one person or persons against another or other in a court of justice in which the plaintiff pursues the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity. 23 A civil action is thus an action filed in a court of justice, whereby a party sues another for the enforcement of a right, or the prevention or redress of a wrong.24 Besides, an excerpt form the Report of the Code Commission unmistakably reveals the intention of the Code Commission to make that legal provision applicable only to civil actions which are essentially adversarial and involve members of the same family, thus: It is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the same family. It is necessary that every effort should be made toward a compromise before litigation is allowed to breed hate and passion in the family. It is know that lawsuit between close relatives generates deeper bitterness than stranger.25 It must be emphasized that the oppositors (herein petitioners) are not being sued in SP. PROC. No. 92-63626 for any cause of action as in fact no defendant was imploded therein. The Petition for issuance of letters of Administration, Settlement and Distribution of Estate in SP. PROC. No. 92-63626 is a special proceeding and, as such, it is a remedy whereby the petitioners therein seek to establish a status, a right, or a particular fact. 26 the petitioners therein (private respondents herein) merely seek to establish the fat of death of their father and subsequently to be duly recognized as among the heirs of the said deceased so that they can validly exercise their right to participate in the settlement and liquidation of the estate of the decedent consistent with the limited and special jurisdiction of the probate court.1âwphi1.nêt WHEREFORE, the petition in the above-entitled case, is DENIED for lack of merit, Costs against petitioners.

SO ORDERED.

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). 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). 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). 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). Respondent Gapusan as a member of the bar should be censured for having notarized the void separation agreement already mentioned. 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. Albano said that Freddie Gapusan, an accused in the first criminal case abovementioned and a complaining witness in the other case against Albano, is a relative of

Republic of the Philippines SUPREME COURT Manila 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. 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. 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.

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". 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". 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. G.R. No. 86355 May 31, 1990 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. 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). 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. The second charge should be dismissed for being speculative and unfair to Judge Crispin. (He retired in September, 1975). WHEREFORE, the respondent, as a member of the bar, is for having notarized the above-mentioned void agreement. The second charge is dismissed. SO ORDERED. JOSE MODEQUILLO, petitioner, vs. HON. AUGUSTO V. BREVA FRANCISCO SALINAS, FLORIPER ABELLANSALINAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF FERNANDO PLATA respondents. Josefina Brandares-Almazan for petitioner. ABC Law Offices for private respondents.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

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. 8700801359, 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.

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. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2474 May 30, 1951

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.

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.

The facts show that the spouses Vicente Benitez and Isabel Chipongian owned various properties especially in Laguna. Isabel died on April 25, 1982. Vicente followed her in the grave on November 13, 1989. He died intestate. The fight for administration of Vicente's estate ensued. On September 24, 1990, private respondents Victoria Benitez-Lirio and Feodor Benitez Aguilar (Vicente's sister and nephew, respectively) instituted Sp. Proc. No. 797 (90) before the RTC of San Pablo City, 4th Judicial Region, Br. 30. They prayed for the issuance of letters of administration of Vicente's estate in favor of private respondent Aguilar. They alleged, inter alia, viz.: xxx xxx xxx 4. The decedent is survived by no other heirs or relatives be they ascendants or descendants, whether legitimate, illegitimate or legally adopted; despite claims or representation to the contrary, petitioners can well and truly establish, given the chance to do so, that said decedent and his spouse Isabel Chipongian who predeceased him, and whose estate had earlier been settled extrajudicial, were without issue and/or without descendants whatsoever, and that one Marissa Benitez-Badua who was raised and cared by them since childhood is, in fact, not related to them by blood, nor legally adopted, and is therefore not a legal heir; . . . On November 2, 1990, petitioner opposed the petition. She alleged that she is the sole heir of the deceased Vicente Benitez and capable of administering his estate. The parties further exchanged reply and rejoinder to buttress their legal postures.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 105625 January 24, 1994 MARISSA BENITEZ-BADUA, petitioner, vs. COURT OF APPEALS, VICTORIA BENITEZ LIRIO AND FEODOR BENITEZ AGUILAR, respondents. Reynaldo M. Alcantara for petitioner. Augustus Cesar E. Azura for private respondents.

The trial court then received evidence on the issue of petitioner's heirship to the estate of the deceased. Petitioner tried to prove that she is the only legitimate child of the spouses Vicente Benitez and Isabel Chipongian. She submitted documentary evidence, among others: (1) her Certificate of Live Birth (Exh. 3); (2) Baptismal Certificate (Exh. 4); (3) Income Tax Returns and Information Sheet for Membership with the GSIS of the late Vicente naming her as his daughter (Exhs. 10 to 21); and (4) School Records (Exhs. 5 & 6). She also testified that the said spouses reared an continuously treated her as their legitimate daughter. On the other hand, private respondents tried to prove, mostly thru testimonial evidence, that the said spouses failed to beget a child during their marriage; that the late Isabel, then thirty six (36) years of age, was even referred to Dr. Constantino Manahan, a noted obstetriciangynecologist, for treatment. Their primary witness, Victoria Benitez-Lirio, elder sister of the late Vicente, then 77 years of age, 2 categorically declared that petitioner was not the biological child of the said spouses who were unable to physically procreate. On December 17, 1990, the trial court decided in favor of the petitioner. It dismissed the private respondents petition for letters and administration and declared petitioner as the legitimate daughter and sole heir of the spouses Vicente O. Benitez and Isabel Chipongian. The trial court relied on Articles 166 and 170 of the Family Code.

PUNO, J.: This is a petition for review of the Decision of the 12th Division of the Court of Appeals in CA-G.R. No. CV No. 30862 dated May 29, 1992. 1

On appeal, however, the Decision of the trial court was reversed on May 29, 1992 by the 17th Division of the Court of Appeals. The dispositive portion of the Decision of the appellate court states: WHEREFORE, the decision appealed from herein is REVERSED and another one entered declaring that appellee Marissa Benitez is not the biological daughter or child by nature of the spouse Vicente O. Benitez and Isabel Chipongian and, therefore, not a legal heir of the deceased Vicente O. Benitez. Her opposition to the petition for the appointment of an administrator of the intestate of the deceased Vicente O. Benitez is, consequently, DENIED; said petition and the proceedings already conducted therein reinstated; and the lower court is directed to proceed with the hearing of Special proceeding No. SP-797 (90) in accordance with law and the Rules. Costs against appellee. SO ORDERED. In juxtaposition, the appellate court held that the trial court erred in applying Articles 166 and 170 of the Family Code. In this petition for review, petitioner contends: 1. The Honorable Court of Appeals committed error of law and misapprehension of facts when it failed to apply the provisions, more particularly, Arts. 164, 166, 170 and 171 of the Family Code in this case and in adopting and upholding private respondent's theory that the instant case does not involve an action to impugn the legitimacy of a child; 2. Assuming arguendo that private respondents can question or impugn directly or indirectly, the legitimacy of Marissa's birth, still the respondent appellate Court committed grave abuse of discretion when it gave more weight to the testimonial evidence of witnesses of private respondents whose credibility and demeanor have not convinced the trial court of the truth and sincerity thereof, than the documentary and testimonial evidence of the now petitioner Marissa Benitez-Badua; 3. The Honorable Court of Appeals has decided the case in a way not in accord with law or with applicable decisions of the supreme Court, more particularly, on prescription or laches. We find no merit to the petition.

Petitioner's insistence on the applicability of Articles 164, 166, 170 and 171 of the Family Code to the case at bench cannot be sustained. These articles provide: Art. 164. Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. Art. 166. Legitimacy of child may be impugned only on the following grounds: 1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: a) the physical incapacity of the husband to have sexual intercourse with his wife; b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or c) serious illness of the husband, which absolutely prevented sexual intercourse. 2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband except in the instance provided in the second paragraph of Article 164; or 3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case,

any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, which ever is earlier. Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding Article only in the following case: 1) If the husband should die before the expiration of the period fixed for bringing his action; 2) If he should die after the filing of the complaint, without having desisted therefrom; or 3) If the child was born after the death of the husband. A careful reading of the above articles will show that they do not contemplate a situation, like in the instant case, where a child is alleged not to be the child of nature or biological child of a certain couple. Rather, these articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. Thus, under Article 166, it is the husband who can impugn the legitimacy of said child by proving: (1) it was physically impossible for him to have sexual intercourse, with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child; (2) that for biological or other scientific reasons, the child could not have been his child; (3) that in case of children conceived through artificial insemination, the written authorization or ratification by either parent was obtained through mistake, fraud, violence, intimidation or undue influence. Articles 170 and 171 reinforce this reading as they speak of the prescriptive period within which the husband or any of his heirs should file the action impugning the legitimacy of said child. Doubtless then, the appellate court did not err when it refused to apply these articles to the case at bench. For the case at bench is not one where the heirs of the late Vicente are contending that petitioner is not his child by Isabel. Rather, their clear submission is that petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned decision is apropos, viz.: Petitioners' recourse to Article 263 of the New Civil Code [now Article 170 of the Family 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 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. We now come to the factual finding of the appellate court that petitioner was not the biological child or child of nature of the spouses Vicente Benitez and Isabel Chipongian. The appellate court exhaustively dissected the evidence of the parties as follows: . . . And on this issue, we are constrained to say that appellee's evidence is utterly insufficient to establish her biological and blood kinship with the aforesaid spouses, while the evidence on record is strong and convincing that she is not, but that said couple being childless and desirous as they were of having a child, the late Vicente O. Benitez took Marissa from somewhere while still a baby, and without he and his wife's legally adopting her treated, cared for, reared, considered, and loved her as their own true child, giving her the status as not so, such that she herself had believed that she was really their daughter and entitled to inherit from them as such. The strong and convincing evidence referred to us are the following: First, the evidence is very cogent and clear that Isabel Chipongian never became pregnant and, therefore, never delivered a child. Isabel's own only brother and sibling, Dr. Lino Chipongian, admitted that his sister had already been married for ten years and was already about 36 years old and still she has not begotten or still could not bear a child, so that he even had to refer her to the late Dr. Constantino Manahan, a well-known and eminent obstetrician-gynecologist and the OB of his mother and wife, who treated his sister for a number of years. There is likewise the testimony of the elder sister of the deceased Vicente O. Benitez, Victoria Benitez Lirio, who then, being a teacher, helped him (he being the only boy and the youngest of the children of their widowed mother) through law school, and whom Vicente and his wife highly respected and consulted on family matters, that her brother Vicente and his wife Isabel being childless, they wanted to adopt her youngest daughter and when she refused, they looked for a baby to adopt elsewhere, that Vicente found two baby boys but Isabel wanted a baby girl as she feared a boy might grow up unruly and uncontrollable, and that Vicente finally brought home a baby girl and told his elder sister Victoria he would register the baby as his and his wife's child. Victoria Benitez Lirio was already

77 years old and too weak to travel and come to court in San Pablo City, so that the taking of her testimony by the presiding judge of the lower court had to be held at her residence in Parañaque, MM. Considering, her advanced age and weak physical condition at the time she testified in this case, Victoria Benitez Lirio's testimony is highly trustworthy and credible, for as one who may be called by her Creator at any time, she would hardly be interested in material things anymore and can be expected not to lie, especially under her oath as a witness. There were also several disinterested neighbors of the couple Vicente O. Benitez and Isabel Chipongian in Nagcarlan, Laguna (Sergio Fule, Cecilia Coronado, and Benjamin C. Asendido) who testified in this case and declared that they used to see Isabel almost everyday especially as she had drugstore in the ground floor of her house, but they never saw her to have been pregnant, in 1954 (the year appellee Marissa Benitez was allegedly born, according to her birth certificate Exh. "3") or at any time at all, and that it is also true with the rest of their townmates. Ressureccion A. Tuico, Isabel Chipongian's personal beautician who used to set her hair once a week at her (Isabel's) residence, likewise declared that she did not see Isabel ever become pregnant, that she knows that Isabel never delivered a baby, and that when she saw the baby Marissa in her crib one day she went to Isabel's house to set the latter's hair, she was surprised and asked the latter where the baby came from, and "she told me that the child was brought by Atty. Benitez and told me not to tell about it" (p. 10, tsn, Nov. 29, 1990). The facts of a woman's becoming pregnant and growing big with child, as well as her delivering a baby, are matters that cannot be hidden from the public eye, and so is the fact that a woman never became pregnant and could not have, therefore, delivered a baby at all. Hence, if she is suddenly seen mothering and caring for a baby as if it were her own, especially at the rather late age of 36 (the age of Isabel Chipongian when appellee Marissa Benitez was allegedly born), we can be sure that she is not the true mother of that baby. Second, appellee's birth certificate Exh. "3" with the late Vicente O. Benitez appearing as the informant, is highly questionable and suspicious. For if Vicente's wife Isabel, who wads already 36 years old at the time of the child's supposed birth, was truly the mother of that child, as reported by Vicente in her birth certificate, should the child not have been born in a hospital under the experienced, skillful and caring hands of Isabel's obstetriciangynecologist Dr. Constantino Manahan, since delivery of a child at that late age by Isabel would have been difficult and quite risky to her health and even life? How come, then, that as appearing in appellee's birth certificate, Marissa was supposedly born at the

Benitez home in Avenida Rizal, Nagcarlan, Laguna, with no physician or even a midwife attending? At this juncture, it might be meet to mention that it has become a practice in recent times for people who want to avoid the expense and trouble of a judicial adoption to simply register the child as their supposed child in the civil registry. Perhaps Atty. Benitez, though a lawyer himself, thought that he could avoid the trouble if not the expense of adopting the child Marissa through court proceedings by merely putting himself and his wife as the parents of the child in her birth certificate. Or perhaps he had intended to legally adopt the child when she grew a little older but did not come around doing so either because he was too busy or for some other reason. But definitely, the mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption, does not confer upon the child the status of an adopted child and the legal rights of such child, and even amounts of simulation of the child's birth or falsification of his or her birth certificate, which is a public document. Third, if appellee Marissa Benitez is truly the real, biological daughter of the late Vicente O. Benitez and his wife Isabel Chipongian, why did he and Isabel's only brother and sibling Dr. Nilo Chipongian, after Isabel's death on April 25, 1982, state in the extrajudicial settlement Exh. "E" that they executed her estate, "that we are the sole heirs of the deceased ISABEL CHIPONGIAN because she died without descendants or ascendants?" Dr. Chipongian, placed on a witness stand by appellants, testified that it was his brother-in-law Atty. Vicente O. Benitez who prepared said document and that he signed the same only because the latter told him to do so (p. 24, tsn, Nov. 22, 1990). But why would Atty. Benitez make such a statement in said document, unless appellee Marissa Benitez is not really his and his wife's daughter and descendant and, therefore, not his deceased wife's legal heir? As for Dr. Chipongian, he lamely explained that he signed said document without understanding completely the meaning of the words "descendant and ascendant" (p. 21, tsn, Nov. 22, 1990). This we cannot believe, Dr. Chipongian being a practicing pediatrician who has even gone to the United States (p. 52, tsn, Dec. 13, 1990). Obviously, Dr. Chipongian was just trying to protect the interests of appellee, the foster-daughter of his deceased sister and brother-in-law, as against those of the latter's collateral blood relatives. Fourth, it is likewise odd and strange, if appellee Marissa Benitez is really the daughter and only legal heir of the spouses Vicente O. Benitez and Isabel Chipongian, that the latter, before her death, would write a note to her husband and Marissa stating that:

even without any legal papers, I wish that my husband and my child or only daughter will inherit what is legally my own property, in case I die without a will, and in the same handwritten note, she even implored her husband — that any inheritance due him from my property — when he die — to make our own daughter his sole heir. This do [sic] not mean what he legally owns or his inherited property. I leave him to decide for himself regarding those. (Exhs. "F-1", "F-1-A" and "F-1-B") We say odd and strange, for if Marissa Benitez is really the daughter of the spouses Vicente O. Benitez and Isabel Chipongian, it would not have been necessary for Isabel to write and plead for the foregoing requests to her husband, since Marissa would be their legal heir by operation of law. Obviously, Isabel Chipongian had to implore and supplicate her husband to give appellee although without any legal papers her properties when she dies, and likewise for her husband to give Marissa the properties that he would inherit from her (Isabel), since she well knew that Marissa is not truly their daughter and could not be their legal heir unless her (Isabel's) husband makes her so. Finally, the deceased Vicente O. Benitez' elder sister Victoria Benitez Lirio even testified that her brother Vicente gave the date December 8 as Marissa's birthday in her birth certificate because that date is the birthday of their (Victoria and Vicente's) mother. It is indeed too much of a coincidence for the child Marissa and the mother of Vicente and Victoria to have the same birthday unless it is true, as Victoria testified, that Marissa was only registered by Vicente as his and his wife's child and that they gave her the birth date of Vicente's mother. We sustain these findings as they are not unsupported by the evidence on record. The weight of these findings was not negated by documentary evidence presented by the petitioner, the most notable of which is her Certificate of Live Birth (Exh. "3") purportedly showing that her parents were the late Vicente Benitez and Isabel Chipongian. This Certificate registered on December 28, 1954 appears to have been signed by the deceased Vicente Benitez. Under Article 410 of the New Civil Code, however, "the books making up the Civil Registry and all documents relating thereto shall be considered public documents and shall be prima facieevidence of the facts therein stated." As related above, the totality of contrary

evidence, presented by the private respondents sufficiently rebutted the truth of the content of petitioner's Certificate of Live Birth. of said rebutting evidence, the most telling was the Deed of Extra-Judicial Settlement of the Estate of the Deceased Isabel Chipongian (Exh. "E") executed on July 20, 1982 by Vicente Benitez, and Dr. Nilo Chipongian, a brother of Isabel. In their notarized document, they stated that "(they) are the sole heirs of the deceased Isabel Chipongian because she died without descendants or ascendants". In executing this Deed, Vicente Benitez effectively repudiated the Certificate of Live Birth of petitioner where it appeared that he was petitioner's father. The repudiation was made twenty-eight years after he signed petitioner's Certificate of Live Birth. IN VIEW WHEREOF, the petition for review is dismissed for lack of merit. Costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 157037 May 20, 2004

ROSALINA P. ECETA, petitioner, vs. MA. THERESA VELL LAGURA ECETA, respondent. DECISION YNARES-SANTIAGO, J.: This petition for review on certiorari assails the Decision1 of the Court of Appeals in CA-G.R. CV No. 50449 which affirmed with modification the trial court’s ruling that respondent Maria Theresa Vell Lagura Eceta is entitled to one-eight (1/8) portion of the disputed property. The antecedent facts are as follows:

Petitioner Rosalina P. Vda. De Eceta was married to Isaac Eceta sometime in 1926. During the subsistence of their marriage, they begot a son, Vicente. The couple acquired several properties, among which is the disputed property located at Stanford, Cubao, Quezon City covered by Transfer Certificate of Title No. 61036. Isaac died in 1967 leaving behind Rosalina and Vicente as his compulsory heirs. In 1977, Vicente died. During his lifetime, however, he sired Maria Theresa, an illegitimate daughter. Thus at the time of his death, his compulsory heirs were his mother, Rosalina, and illegitimate child, Maria Theresa. In 1991, Maria Theresa filed a case before the Regional Trial Court of Quezon City, Branch 218, for "Partition and Accounting with Damages"2 against Rosalina alleging that by virtue of her father’s death, she became Rosalina’s co-heir and co-owner of the Cubao property. The case was docketed as Civil Case No. Q-91-8922. In her answer, Rosalina alleged that the property is paraphernal in nature and thus belonged to her exclusively. During the pre-trial conference, the parties entered into a stipulation of facts wherein they both admitted their relationship to one another,i.e., that Rosalina is Maria Theresa’s grandmother.3 After trial on the merits, the court a quo rendered judgment, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: a) Theresa Eceta and Rosalina Eceta are the only surviving coheirs and co-owners over the parcel of land and improvements thereon subject of this case; b) Maria Theresa Eceta is entitled to one fourth share of said property; c) Rosalina Eceta is ordered to account for the value corresponding to the one-fourth undivided share of Theresa Eceta in the monthly rentals of the property with interest and must commence from the filing of this case; d) Parties are ordered within fifteen days from receipt of this decision to amicably agree upon a written partition and to submit the same for approval, parties shall appoint a commissioner to effect said partition of the property between the parties;

e) The counterclaim by defendant Rosalina is hereby dismissed.4 Rosalina appealed the decision to the Court of Appeals, which affirmed with modification the trial court’s ruling, thus: WHEREFORE, premises considered, the appealed Decision is hereby AFFIRMED subject to the MODIFICATION that the one-fourth (1/4) share erroneously decreed to Appellee is hereby REDUCED to one-eight (1/8) undivided share of the entire disputed property, covered by TCT No. 61036, in accordance with law. Her motion for reconsideration having been denied, Rosalina is now before us by way of petition for review wherein she submits the following issues: a. Whether the certified xerox copy from a xerox copy of the certificate of live birth (Exhibit A) is competent evidence to prove the alleged filiation of the respondent as an "illegitimate daughter" of her alleged father Vicente Eceta. b. Whether the admission made by petitioner that respondent is her granddaughter is enough to prove respondent’s filiation with Vicente Eceta, the only son of petitioner. c. Whether the action for recognition has already prescribed. The petition has no merit. We note Rosalina’s attempt to mislead the Court by representing that this case is one for compulsory recognition, partition and accounting with damages.5 Notably, what was filed and tried before the trial court and the Court of Appeals is one for partition and accounting with damages only. The filiation, or compulsory recognition by Vicente Eceta of Maria Theresa, was never put in issue. In fact, both parties have already agreed and admitted, as duly noted in the trial court’s pre-trial order,6 that Maria Theresa is Rosalina’s granddaughter. Notwithstanding, Maria Theresa successfully established her filiation with Vicente by presenting a duly authenticated birth certificate.7Vicente himself signed Maria Theresa’s birth certificate thereby acknowledging that she is his daughter. By this act alone, Vicente is deemed to have acknowledged his paternity over Maria Theresa, thus: The filiation of illegitimate children, like legitimate children, is established by (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

thereof, 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. The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgement of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval.8 In view of the foregoing, we find no necessity to discuss the other issues submitted. WHEREFORE, the petition for review on certiorari is DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 50449, which affirmed with modification the decision of the Regional Trial Court of Quezon City, Branch 218 in Civil Case No. Q91-8922, is AFFIRMED in toto. SO ORDERED.

Bienvinido D. Cariaga for private respondent.

BIDIN, J.: This is a petition for review on certiorari questioning the decision 1 dated April 30, 1981 of the Court of Appeals in CA-G.R. No. 61552-R which dismissed petitioner's complaint and set aside the resolution 2 dated October 21, 1976 of the then Court of First Instance of Davao, 16th Judicial District, amending the dispositive portion of its decision dated June 21, 1976 and ordering private respondent Ivan Mendez: (1) to acknowledge the minor Michael Constantino as his illegitimate child; (2) to give a monthly support of P300.00 to the minor child; (3) to pay complainant Amelita Constantino the sum of P8,200.00 as actual and moral damages; and (4) to pay attorney's fees in the sum of P5,000 plus costs. It appears on record that on June 5, 1975, petitioner Amelita Constantino filed an action for acknowledgment, support and damages against private respondent Ivan Mendez. The case was filed with the then CFI of Davao, 10th Judicial District and docketed as Civil Case No. 8881. In her complaint, Amelita Constantino alleges, among others, that sometime in the month of August, 1974, she met Ivan Mendez at Tony's Restaurant located at Sta. Cruz, Manila, where she worked as a waitress; that the day following their first meeting, Ivan invited Amelita to dine with him at Hotel Enrico where he was billeted; that while dining, Ivan professed his love and courted Amelita; that Amelita asked for time to think about Ivan's proposal; that at about 11:00 o'clock in the evening, Amelita asked Ivan to bring her home to which the latter agreed, that on the pretext of getting something, Ivan brought Amelita inside his hotel room and through a promise of marriage succeeded in having sexual intercourse with the latter; that after the sexual contact, Ivan confessed to Amelita that he is a married man; that they repeated their sexual contact in the months of September and November, 1974, whenever Ivan is in Manila, as a result of which Amelita got pregnant; that her pleas for help and support fell on deaf ears; that Amelita had no sexual relations with any other man except Ivan who is the father of the child yet to be born at the time of the filing of the complaint; that because of her pregnancy, Amelita was forced to leave her work as a waitress; that Ivan is a prosperous businessman of Davao City with a monthly income of P5,000 to P8,000. As relief, Amelita prayed for the recognition of the unborn child, the payment of actual, moral and exemplary damages, attorney's fees plus costs. In his answer dated August 5, 1975, Ivan admitted that he met Amelita at Tony's Cocktail Lounge but denied having sexual knowledge or illicit relations with her. He prayed for the dismissal of the complaint for lack of cause of action. By way of counterclaim, he further prayed for the payment of exemplary damages and litigation expense including attorney's fees for the filing of the malicious complaint.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 57227 May 14, 1992 AMELITA CONSTANTINO and MICHAEL CONSTANTINO, the latter represented herein by the former, his mother and natural guardian, petitioners, vs. IVAN MENDEZ and the HONORABLE COURT OF APPEALS, respondents. Roberto M. Sarenas for petitioners.

On September 1, 1975, Amelita Constantino filed a motion for leave to amend the complaint impleading as co-plaintiff her son Michael Constantino who was born on August 3, 1975. In its order dated September 4, 1975, the trial court admitted the amended complaint. On September 11, 1975, Ivan Mendez filed his answer to the amended complaint reiterating his previous answer denying that Michael Constantino is his illegitimate son. After hearing, the trial court rendered a decision dated June 21, 1976, the dispositive portion of which reads, viz: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of plaintiff Amelita Constantino and against defendant Ivan Mendez, ordering the latter to pay Amelita Constantino the sum of P8,000.00 by way of actual and moral damages; and, the sum of P3,000.00, as and by way of attorney's fees. The defendant shall pay the costs of this suit. SO ORDERED. From the above decision, both parties filed their separate motion for reconsideration. Ivan Mendez anchored his motion on the ground that the award of damages was not supported by evidence. Amelita Constantino, on the other hand, sought the recognition and support of her son Michael Constantino as the illegitimate son of Ivan Mendez. In its resolution dated October 21, 1976, the trial court granted Amelita Constantino's motion for reconsideration, and amended the dispositive portion of its decision dated June 21, 1976 to read as follows, viz: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of plaintiff Amelita Constantino and plaintiff-minor Michael Constantino, and against defendant Ivan Mendez ordering the latter to pay Amelita Constantino the sum of P8,000.00 by way of actual and moral damages and the sum of P200.00 as and by way of payment of the hospital and medical bills incurred during the delivery of plaintiff-minor Michael Constantino; to recognize as his own illegitimate child the plaintiff-minor Michael Constantino who shall be entitled to all the rights, privileges and benefits appertaining to a child of such status; to give a permanent monthly support in favor of plaintiff Michael Constantino the amount of P300.00; and the sum of P5,000.00 as and by way of attorney's fees. The defendant shall pay the costs of this suit.

Let this Order form part of the decision dated June 21, 1976. SO ORDERED. On appeal to the Court of Appeals, the above amended decision was set aside and the complaint was dismissed. Hence, this petition for review. Basically, the issue to be resolved in the case at bar is whether or not the Court of Appeals committed a reversible error in setting aside the decision of the trial court and in dismissing the complaint. Petitioners contend that the Court of Appeals erred in reversing the factual findings of the trial and in not affirming the decision of the trial court. They also pointed out that the appellate court committed a misapprehension of facts when it concluded that Ivan did not have sexual access with Amelita during the first or second week of November, 1976 (should be 1974), the time of the conception of the child. It must be stressed at the outset that factual findings of the trial court have only a persuasive and not a conclusive effect on the Court of Appeals. In the exercise of its appellate jurisdiction, it is the duty of the Court of Appeals to review the factual findings of the trial court and rectify the errors it committed as may have been properly assigned and as could be established by a reexamination of the evidence on record. It is the factual findings of the Court of Appeals, not those of the trial court, that as a rule are considered final and conclusive even on this Court (Hermo v. Hon. Court of Appeals, et al., 155 SCRA 24 [1987]). This being a petition for certiorari under Rule 45 of the Rules of Court, this Court will review only errors of law committed by the Court of Appeals. It is not the function of this Court to re-examine all over again the oral and documentary evidence submitted by the parties unless the findings of facts of the Court of Appeals is not supported by the evidence on record or the judgment is based on misapprehension of facts (Remalante v. Tibe, et al., 158 SCRA 138 [1988]; Hernandez v. Court of Appeals, et al., 149 SCRA 97 [1987]). It is the conclusion of the Court of Appeals, based on the evidence on record, that Amelita Constantino has not proved by clear and convincing evidence her claim that Ivan Mendez is the father of her son Michael Constantino. Such conclusion based on the evaluation of the evidence on record is controlling on this Court as the same is supported by the evidence on record. Even the trial court initially entertained such posture. It ordered the recognition of Michael as the illegitimate son of Ivan only when acting on the motions for reconsideration, it reconsidered, on October 21, 1976, its earlier decision dated June 21, 1976. Amelita's testimony on cross-examination that she had sexual contact with Ivan in Manila in the first or second week of November, 1974 (TSN, December 8, 1975, p. 108) is inconsistent with her response that she could not remember the date of their last sexual intercourse in November, 1974 (Ibid, p. 106). Sexual contact of Ivan and Amelita in the first or second week of November, 1974 is the crucial

point that was not even established on direct examination as she merely testified that she had sexual intercourse with Ivan in the months of September, October and November, 1974. Michael Constantino is a full-term baby born on August 3, 1975 (Exhibit 6) so that as correctly pointed out by private respondent's counsel, citing medical science (Williams Obstetrics, Tenth Ed., p. 198) to the effect that "the mean duration of actual pregnancy, counting from the day of conception must be close to 267 days", the conception of the child (Michael) must have taken place about 267 days before August 3, 1975 or sometime in the second week of November, 1974. While Amelita testified that she had sexual contact with Ivan in November, 1974, nevertheless said testimony is contradicted by her own evidence (Exh. F), the letter dated February 11, 1975, addressed to Ivan Mendez requesting for a conference, prepared by her own counsel Atty. Roberto Sarenas to whom she must have confided the attendant circumstances of her pregnancy while still fresh in her memory, informing Ivan that Amelita is four (4) months pregnant so that applying the period of the duration of actual pregnancy, the child was conceived on or about October 11, 1974. Petitioner's assertion that Ivan is her first and only boyfriend (TSN, December 8, 1975, p. 65) is belied by Exhibit 2, her own letter addressed to Mrs. Mendez where she revealed the reason for her attachment to Ivan who possessed certain traits not possessed by her boyfriend. She also confided that she had a quarrel with her boyfriend because of gossips so she left her work. An order for recognition and support may create an unwholesome atmosphere or may be an irritant in the family or lives of the parties so that it must be issued only if paternity or filiation is established by clear and convincing evidence. The burden of proof is on Amelita to establish her affirmative allegations that Ivan is the father of her son. Consequently, in the absence of clear and convincing evidence establishing paternity or filiation, the complaint must be dismissed. As regards Amelita's claim for damages which is based on Articles 19 3 & 21 4 of the Civil Code on the theory that through Ivan's promise of marriage, she surrendered her virginity, we cannot but agree with the Court of Appeals that more sexual intercourse is not by itself a basis for recovery. Damages could only be awarded if sexual intercourse is not a product of voluntariness and mutual desire. At the time she met Ivan at Tony's Restaurant, Amelita was already 28 years old and she admitted that she was attracted to Ivan (TSN, December 3, 1975, p. 83). Her attraction to Ivan is the reason why she surrendered her womanhood. Had she been induced or deceived because of a promise of marriage, she could have immediately severed her relation with Ivan when she was informed after their first sexual contact sometime in August, 1974, that he was a married man. Her declaration that in the months of September, October and November, 1974, they repeated their sexual intercourse only indicates that passion and not the alleged promise of marriage was the moving force that made her submit herself to Ivan. WHEREFORE, the instant petition is Dismissed for lack of merit.

SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 124853 February 24, 1998 FRANCISCO L. JISON, petitioner, vs. COURT OF APPEALS and MONINA JISON, respondents.

DAVIDE, JR., J.: This is a petition for review under Rule 45 of the Rules of Court of the 27 April 1995 decision of the Court of Appeals (CA) in CA-G.R. CV No. 32860 1 which reversed the decision of Branch 24 of the Regional Trial Court (RTC) of Iloilo City in Civil Case No. 16373. 2 The latter dismissed the complaint of private respondent Monina Jison (hereafter MONINA) for recognition as an illegitimate child of petitioner Francisco Jison (hereafter FRANCISCO). In issue is whether or not public respondent Court of Appeals committed reversible error, which, in this instance, necessitates an inquiry into the facts. While as a general rule, factual issues are not within the province of this Court, nevertheless, in light of the conflicting findings of facts of the trial court and the Court of Appeals, this case falls under an exception to this rule? 3 In her complaint 4 filed with the RTC on 13 March 1985, MONINA alleged that FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the end of 1945 or the start of 1946, however, FRANCISCO impregnated Esperanza F. Amolar (who was then employed as the nanny of FRANCISCO's daughter, Lourdes). As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo, and since childhood, had enjoyed the continuous, implied recognition as an illegitimate child of FRANCISCO by his acts and that of his family. MONINA further alleged that FRANCISCO gave her support and spent for her education, such that she obtained a Master's degree, became a certified public accountant (CPA) and eventually, a

Central Bank examiner. In view of FRANCISCO's refusal to expressly recognize her, MONINA prayed for a judicial declaration of her illegitimate status and that FRANCISCO support and treat her as such. In his answer, 5 FRANCISCO alleged that he could not have had sexual relations with Esperanza Amolar during the period specified in the complaint as she had ceased to be in his employ as early as 1944, and did not know of her whereabouts since then; further, he never recognized MONINA, expressly or impliedly, as his illegitimate child. As affirmative and special defenses, FRANCISCO contended that MONINA had no right or cause of action against him and that her action was barred by estoppel, laches and/or prescription. He thus prayed for dismissal of the complaint and an award of damages due to the malicious filing of the complaint. After MONINA filed her reply, 6 pre-trial was conducted where the parties stipulated on the following issues: 1. Did Francisco Jison have any sexual relation[s] with Esperanza Am[o]lar about the end of 1945 or the start of 1946? 2. Is Monina Jison the recognized illegitimate daughter of Francisco Jison by the latter's own acts and those of his family? 3. Is Monina Jison barred from instituting or prosecuting the present action by estoppel, laches and/or prescription? 4. Damages. 7 At trial on the merits, MONINA presented a total of eleven (11) witnesses, namely: herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tiangson, Alfredo Baylosis, Dominador Zavariz and Lope Amolar. Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had worked for FRANCISCO for a total of six (6) years at Nelly Garden, FRANCISCO's Iloilo residence. Towards the end of the Japanese occupation, FRANCISCO's wife suffered a miscarriage or abortion, thereby depriving FRANCISCO of consortium; thereafter, FRANCISCO's wife managed a nightclub on the ground floor of Nelly Garden which operated daily from 6:00 p.m. till 3:00 a.m. of the following day, thereby allowing FRANCISCO free access to MONINA's mother, Esperanza Amolar, who was nicknamed Pansay. Adela Casabuena, a 61-year old farmer, testified that she served as the yaya ("nanny") of Lourdes from July 1946 up to February 1947. Although Pansay had left Nelly Garden two (2) weeks before Adela started working for the Jisons, Pansay returned sometime in September 1946, or about one month after she gave birth to MONINA, to ask FRANCISCO for support. As a result, Pansay and Lilia Jison,

FRANCISCO's wife, quarreled in the living room, and in the course thereof, Pansay claimed that FRANCISCO was the father of her baby. To which, Lilia replied: "I did not tell you to make that baby so it is your fault." During the quarrel which lasted from 10:30 till 11:00 a.m., FRANCISCO was supposedly inside the house listening. Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977, he worked as FRANCISCO's houseboy at the latter's house on 12th Street, Capitol Subdivision, Bacolod City. Arsenio met MONINA in 1967, when Felipe Lagarto, the bookkeeper at Nelly Garden, informed Arsenio that MONINA, FRANCISCO's daughter, would arrive at Bacolod City with a letter of introduction from Lagarto. Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to X-11) of MONINA, 8 and as he paid for the telephone bills, he likewise identified six (6) telephone cards (Exhs. G to L). Arsenio then declared that when MONINA arrived in Bacolod City, she introduced herself to him as FRANCISCO's daughter. She stayed at FRANCISCO's house, but when the latter and his wife would come over, Arsenio would "conceal the presence of MONINA because Mrs. Jison did not like to see her face." Once, Arsenio hid MONINA in the house of FRANCISCO's sister, Mrs. Luisa Jison Alano, in Silay City; another time, at the residence of FRANCISCO's cousin, Mrs. Concha Lopez Cuaycong. Finally, Arsenio declared that the last time he saw MONINA was when she left for Manila, after having finished her schooling at La Salle College in Bacolod City. On re-direct and upon questions by the court, Arsenio disclosed that it was FRANCISCO who instructed that MONINA be hidden whenever FRANCISCO and his wife were around; that although FRANCISCO and MONINA saw each other at the Bacolod house only once, they called each other "through long distance;" and that MONINA addressed FRANCISCO as "Daddy" during their lone meeting at the Bacolod house and were "affectionate" to each other. Arsenio likewise declared that MONINA stayed at FRANCISCO's Bacolod house twice: first for a month, then for about a week the second time. On both occasions, however, FRANCISCO and his wife were abroad. Finally, Arsenio recalled that FRANCISCO likewise bade Arsenio to treat MONINA like his (FRANCISCO's) other daughters. The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of Iloilo City, initially touched on how he and his wife were related to FRANCISCO, FRANCISCO's wife and MONINA. Zafiro first identified Exhibit R, a diagram of the family trees of the Jison and Lopez families, which showed that former Vice-President Fernando Lopez was the first cousin of FRANCISCO's wife, then told the court that the family of Vice-President Lopez treated MONINA "very well because she is considered a relative . . . by reputation, by actual perception." Zafiro likewise identified Exhibits X-13 to X-18, photographs taken at the 14 April 1985 birthday celebration of Mrs. Fernando Lopez, which showed MONINA with the former Vice-President and other members of the Lopez family. Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter paid for some of MONINA's school needs and even asked MONINA to work in a hospital owned by Mrs. Cuaycong; and that another first cousin of FRANCISCO's wife, a

certain Remedios Lopez Franco, likewise helped MONINA with her studies and problems, and even attended MONINA's graduation in 1978 when she obtained a masteral degree in Business Administration, as evidenced by another photograph (Exh. X-12). Moreover, upon Remedios' recommendation, MONINA was employed as a secretary at Merchant Financing Company, which was managed by a certain Danthea Lopez, the wife of another first cousin of FRANCISCO's wife, and among whose directors were Zafiro himself, his wife and Danthea's husband. In closing, Zafiro identified MONINA's Social Security Record (Exh. W), which was signed by Danthea as employer and where MONINA designated Remedios as the beneficiary. Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the first cousin of her husband, Eusebio D. Lopez; and that she came to know MONINA in the latter part of 1965 when Remedios Franco recommended MONINA for employment at Merchant Financing Co., which Danthea managed at that time. Remedios introduced MONINA to Danthea "as being reputedly the daughter of Mr. Frank Jison;" and on several occasions thereafter, Remedios made Danthea and the latter's husband understand that MONINA was "reputedly the daughter of [FRANCISCO]" While MONINA worked at Merchant Financing, Danthea knew that MONINA lived with Remedios; however, in the latter part of 1966, as Remedios left for Manila and MONINA was still studying at San Agustin University, Danthea and her husband invited MONINA to live with them. During MONINA's 6-month stay with them, she was not charged for board and lodging and was treated as a relative, not a mere employee, all owing to what Remedios had said regarding MONINA's filiation. As Danthea understood, MONINA resigned from Merchant Financing as she was called by Mrs. Cuaycong, a first cousin of Danthea's husband who lived in Bacolod City. Romeo Bilbao, a 43-year old seaman, testified that he had worked for FRANCISCO from 1969 up to 1980 at Nelly Garden in various capacities: as a procurement officer, hacienda overseer and, later, as hacienda administrator. Sometime in May, 1971, Romeo saw and heard MONINA ask "her Daddy" (meaning FRANCISCO) for the money he promised to give her, but FRANCISCO answered that he did not have the money to give, then told MONINA to go see Mr. Jose Cruz in Bacolod City. Then in the middle of September that year, FRANCISCO told Romeo to pick up Mr. Cruz at the Iloilo pier and bring him to the office of Atty. Benjamin Tirol. At said office, Atty. Tirol, Mr. Cruz and MONINA entered a room while Romeo waited outside. When they came out, Atty. Tirol had papers for MONINA to sign, but she refused. Atty. Tirol said that a check would be released to MONINA if she signed the papers, so MONINA acceded, although Atty. Tirol intended not to give MONINA a copy of the document she signed. Thereafter, Mr. Cruz gave MONINA a check (Exh. Q), then MONINA grabbed a copy of the document she signed and ran outside. Romeo then brought Mr. Cruz to Nelly Garden. As to his motive for testifying, Romeo stated that he wanted to help MONINA be recognized as FRANCISCO'S daughter. Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was employed by FRANCISCO's wife at the Baguio Military Institute in Baguio City; then in 1965, Rudy worked at FRANCISCO's office at Nelly Garden recording hacienda expenses, typing vouchers and office papers, and, at times, acting as paymaster for the haciendas. From the nature of his work, Rudy knew the persons receiving money from FRANCISCO's office, and clearly remembered that in 1965, as part of his job,

Rudy gave MONINA her allowance from FRANCISCO four (4) times, upon instructions of a certain Mr. Lagarto to give MONINA P15.00 a month. Rudy likewise recalled that he first met MONINA in 1965, and that she would go to Nelly Garden whenever FRANCISCO's wife was not around. On some of these occasions, MONINA would speak with and address FRANCISCO as "Daddy," without objection from FRANCISCO. In fact, in 1965, Rudy saw FRANCISCO give MONINA money thrice. Rudy further declared that in April 1965, FRANCISCO's office paid P250.00 to Funeraria Bernal for the funeral expenses of MONINA's mother. Finally, as to Rudy's motives for testifying, he told the court that he simply wanted to held bring out the truth "and nothing but the truth," and that MONINA's filiation was common knowledge among the people in the office at Nelly Garden. On re-direct, Rudy declared that the moneys given by FRANCISCO's office to MONINA were not reflected in the books of the office, but were kept in a separate book, as Mr. Lagarto explained that FRANCISCO's wife and children "should not know [of] this." Rudy further revealed that as to the garden "meetings" between FRANCISCO and MONINA, Rudy saw MONINA kiss FRANCISCO on the cheek both upon arriving and before leaving, and FRANCISCO's reaction upon seeing her was to smile and say in the Visayan dialect: "Kamusta ka iha?" ("How are you, daughter?"); and that MONINA was free to go inside the house as the household staff knew of her filiation, and that, sometimes, MONINA would join them for lunch. Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to 1961, then at Nelly Garden from 1961 until 1972. Alfredo first served FRANCISCO as a bookkeeper, then when Mr. Lagarto died in 1967 or 1969, Alfredo replaced Mr. Lagarto as office manager. Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim her P15.00 monthly allowance given upon FRANCISCO's standing order. Alfredo further declared that MONINA's filiation was pretty well-known in the office, that he had seen MONINA and FRANCISCO go from the main building to the office, with FRANCISCO's arm on MONINA's shoulder; and that the office paid for the burial expenses of Pansay, but this was not recorded in the books in order to hide it from FRANCISCO's wife. Alfredo also disclosed that the disbursements for MONINA's allowance started in 1961 and were recorded in a separate cash book. In 1967, the allowances ceased when MONINA stopped schooling and was employed in Bacolod City with Miller, Cruz & Co., which served as FRANCISCO's accountant-auditor. Once, when Alfredo went to the offices of Miller, Cruz & Co. to see the manager, Mr. Atienza, and arrange for the preparation of FRANCISCO's income tax return, Alfredo chanced upon MONINA. When Alfredo asked her how she came to work there, she answered that "her Daddy," FRANCISCO, recommended her, a fact confirmed by Mr. Atienza Alfredo then claimed that Mr. Jose Cruz, a partner at Miller, Cruz & Co., was the most trusted man of FRANCISCO. Dominador Savariz, a 55-year old caretaker, testified that he worked as FRANCISCO's houseboy at Nelly Garden from November 1953 up to 1965. One morning in April 1954, MONINA and her mother Pansay went to Nelly Garden and

spoke with FRANCISCO for about an hour, during which time, Dominador was vacuuming the carpet about six (6) to seven (7) meters away. Due to the noise of the vacuum cleaner, FRANCISCO and MONINA spoke in loud voices, thus Dominador overheard their conversation. As FRANCISCO asked Pansay why they came, Pansay answered that they came to ask for the "sustenance" of his child MONINA. FRANCISCO then touched MONINA's head and asked: "How are you Hija?," to which MONINA answered: "Good morning, Daddy." After FRANCISCO told Pansay and MONINA to wait, he pulled something from his wallet and said to Pansay. "I am giving this for a child." In May 1954, Dominador saw MONINA at Mr. Lagarto's office where Dominador was to get "the day's expenses," while MONINA was claiming her allowance from Mr. Diasnes. The next month, Dominador saw MONINA at Nelly Garden and heard in the office that MONINA was there to get her allowance "from her Daddy." In December 1960, Dominador saw MONINA at Nelly Garden, in the room of Don Vicente (father of FRANCISCO's wife), where she asked for a Christmas gift "and she was calling Don Vicente, Lolo (grandfather)." At that time, FRANCISCO and his wife were not around. Then sometime in 1961, when Dominador went to Mr. Legarto's office to get the marketing expenses, Dominador saw MONINA once more claiming her allowance. Dominador further testified that in February 1966, after he had stopped working for FRANCISCO, Dominador was at Mrs. Franco's residence as she recommended him for employment with her sister, Mrs. Concha Cuaycong. There, he saw MONINA, who was then about 15 years old, together with Mrs. Franco's daughter and son. Mrs. Franco pointed at MONINA and asked Dominador if he knew who MONINA was. Dominador answered that MONINA was FRANCISCO's daughter with Pansay, and then Mrs. Franco remarked that MONINA was staying with her (Mrs. Franco) and that she was sending MONINA to school at the University of San Agustin. Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of Esperanza Amolar (Pansay), testified that he worked for FRANCISCO as a houseboy from March to November 1945 at Nelly Garden. Thereafter, FRANCISCO sent Lope to work at Elena Apartments in Manila. By November 1945, Pansay was also working at Elena Apartments, where she revealed to Lope that FRANCISCO impregnated her. Lope then confronted FRANCISCO, who told Lope "don't get hurt and don't cause any trouble, because I am willing to support your Inday Pansay and my child." Three (3) days after this confrontation, Lope asked for and received permission from FRANCISCO to resign because he (Lope) was hurt. On 21 October 1986, MONINA herself took the witness stand. At that time, she was 40 years old and a Central Bank Examiner. She affirmed that as evidenced by certifications from the Office of the Local Civil Registrar (Exhs. E and F) and baptismal certificates (Exhs. C and D), she was born on 6 August 1946 in Barangay Tabugon, Dingle, Iloilo, to Esperanza Amolar (who passed away on 20 April 1965) and FRANCISCO. 9 MONINA first studied at Sagrado where she stayed as a boarder. While at Sagrado from 1952 until 1955 (up to Grade 4), her father, FRANCISCO, paid for her tuition fees and other school expenses. She either received the money from FRANCISCO or from Mr. Lagarto, or saw FRANCISCO give money to her mother, or

Mr. Lagarto would pay Sagrado directly. After Sagrado, MONINA studied in different schools, 10 but FRANCISCO continuously answered for her schooling. For her college education, MONINA enrolled at the University of Iloilo, but she later dropped due to an accident which required a week's hospitalization. Although FRANCISCO paid for part of the hospitalization expenses, her mother shouldered most of them. In 1963, she enrolled at the University of San Agustin, where she stayed with Mrs. Franco who paid for MONINA's tuition fees. However, expenses for books, school supplies, uniforms and the like were shouldered by FRANCISCO. At the start of each semester, MONINA would show FRANCISCO that she was enrolled, then he would ask her to canvass prices, then give her the money she needed. After finishing two (2) semesters at University of San Agustin, as evidenced by her transcript of records (Exh. Z showing the FRANCISCO was listed as Parent/Guardian [Exh. Z-1], she transferred to "De Paul College," just in front of Mrs. Franco's house, and studied there for a year. Thereafter, MONINA enrolled at Western Institute of Technology (WIT), where she obtained a bachelor's degree in Commerce in April 1967. During her senior year, she stayed with Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She passed the CPA board exams in 1974, and took up an M.B.A. at De La Salle University as evidenced by her transcript (Exh. AA), wherein FRANCISCO was likewise listed as "Guardian" (Exhs. AA-1 and AA-2). MONINA enumerated the different members of the household staff at Nelly Garden, to wit: Luz, the household cook; the houseboys Silvestre and Doming; the housemaid Natang; the yaya of the adopted triplets, Deling; the yaya of Lolo Vicente, Adelina; and others. MONINA likewise enumerated the members of the office staff (Messrs. Baylosis, Lagarto, Tingson, Diasnes, Jalandoni, Supertisioso, Doroy, and other), and identified them from a photograph marked as Exhibit X-2. She then corroborated the prior testimony regarding her employment at Merchant Financing Co., and her having lived at Hotel Kahirup and at Mrs. Cuaycong's residence in Bacolod City, while working at the hospital owned by Mrs. Cuaycong. MONINA further testified that in March 1968, she went to Manila and met FRANCISCO at Elena Apartments at the corner of Romero and Salas Streets, Ermita. She told FRANCISCO that she was going for a vacation in Baguio City with Mrs. Franco's mother, with whom she stayed up to June 1968. Upon her return from Baguio City, MONINA told FRANCISCO that she wanted to work, so the latter arranged for her employment at Miller & Cruz in Bacolod City. MONINA went to Bacolod City, was interviewed by Mr. Jose Cruz, a partner at Miller & Cruz, who told her she would start working first week of September, sans examination. She resigned from Miller & Cruz in 1971 and lived with Mrs. Cuaycong at her Forbes Park residence in Makati. MONINA went to see FRANCISCO, told him that she resigned and asked him for money to go to Spain, but FRANCISCO refused as she could not speak Spanish and would not be able find a job. The two quarreled and FRANCISCO ordered a helper to send MONINA out of the house. In the process, MONINA broke many glasses at the pantry and cut her hand, after which, FRANCISCO hugged her, gave her medicine, calmed her down, asked her to return to Bacolod City and promised that he would giver her the money.

MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways plane ticket (Exh. M) which FRANCISCO gave. She called Mr. Cruz, then Atty. Tirol, as instructed by Mr. Cruz. These calls were evidenced by PLDT long distance toll card (Exhs. G to L), with annotations at the back reading; "charged and paid under the name of Frank L. Jison" and were signed by Arsenio Duatin (Exhs. G-1 to L-1). PLDT issued a certification as to the veracity of the contents of the toll cards (Exh. BB). Likewise introduced in evidence was a letter of introduction prepared by Mr. Cruz addressed to Atty. Tirol, on MONINA's behalf (Exh. N). MONINA also declared that Atty. Tirol then told her that she would have to go to Iloilo and sign a certain affidavit, before Mr. Cruz would turn over the money promised by FRANCISCO. She went to Atty. Tirol's office in Iloilo, but after going over the draft of the affidavit, refused to sign it as it stated that she was not FRANCISCO's daughter. She explained that all she had agreed with FRANCISCO was that he would pay for her fare to go abroad, and that since she was a little girl, she knew about her illegitimacy. She started crying, begged Atty. Tirol to change the affidavit, to which Atty. Tirol responded that he was also a father and did not want this to happen to his children as they could not be blamed for being brought into the world. She then wrote a letter (Exh. O) to FRANCISCO and sent it to the latter's Forbes Park residence (Bauhinia Place) by JRS courier service (Exhs. O-5 to O-7). MONINA subsequently met FRANCISCO in Bacolod City where they discussed the affidavit which she refused to sign. FRANCISCO told her that the affidavit was for his wife, that in case she heard about MONINA going abroad, the affidavit would "keep her peace." MONINA then narrated that the first time she went to Atty. Tirol's office, she was accompanied by one Atty. Fernando Divinagracia, who advised her that the affidavit (Exh. P) 11 would "boomerang" against FRANCISCO "as it is contrary to law." MONINA returned to Bacolod City, then met with Atty. Tirol once more to reiterate her plea, but Atty. Tirol did not relent. Thus, on the morning of 20 or 21 September 1971, she signed the affidavit as she was jobless and needed the money to support herself and finish her studies. In exchange for signing the document, MONINA received a Bank of Asia check for P15,000.00 (Exh. Q), which was less than the P25,000.00 which FRANCISCO allegedly promised to give. As Atty. Tirol seemed hesitant to give her a copy of the affidavit after notarizing it, MONINA merely grabbed a copy and immediately left. MONINA then prepared to travel abroad, for which purpose, she procured letters of introduction (Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCO's elder sister Luisa); and an uncle, Emilio Jison (FRANCISCO's elder brother), addressed to another cousin, Beth Jison (Emilio's daughter), for Beth to assist MONINA. Exhibit S contained a statement (Exh. S-1) expressly recognizing that MONINA was FRANCISCO's daughter. Ultimately though, MONINA decided not to go abroad, opting instead to spend the proceeds of the P15,000.00 check for her CPA review, board exam and graduate studies. After finishing her graduate studies, she again planned to travel abroad, for which reason, she obtained a letter of introduction from former Vice President Fernando Lopez addressed to then United States Consul Vernon McAnnich (Exh. V).

As to other acts tending to show her filiation, MONINA related that on one occasion, as FRANCISCO's wife was going to arrive at the latter's Bacolod City residence, FRANCISCO called Arsenio Duatin and instructed Arsenio to hide MONINA. Thus, MONINA stayed with Mrs. Luisa Jison for the duration of the stay of FRANCISCO's wife. MONINA also claimed that she knew Vice President Fernando Lopez and his wife, Mariquit, even before starting to go to school. Thus, MONINA asked for a recommendation letter (Exh. U) from Mrs. Mariquit Lopez for possible employment with Mrs. Rosario Lopez Cooper, another second cousin of FRANCISCO. In Exhibit U, Mrs. Lopez expressly recognized MONINA as FRANCISCO's daughter. As additional proof of her close relationship with the family of Vice President Lopez, MONINA identified photographs taken at a birthday celebration on 14 April 1985. MONINA finally claimed that she knew the three (3) children of FRANCISCO by wife, namely, Lourdes, Francisco, Jr., (Junior) and Elena, but MONINA had met only Lourdes and Junior. MONINA's testimony dealt lengthily on her dealings with Junior and the two (2) occasions when she met with Lourdes. The last time MONINA saw FRANCISCO was in March 1979, when she sought his blessings to get married. In his defense, FRANCISCO offered his deposition taken before then Judge Romeo Callejo of the Regional Trial Court of Manila, Branch 48. As additional witnesses, FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iñigo Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores Argenal. FRANCISCO declared that Pansay's employment ceased as of October, 1 1944, and that while employed by him, Pansay would sleep with the other female helpers on the first floor of his residence, while he, his wife and daughter slept in a room on the second floor. At that time, his household staff was composed of three (3) female workers and two (2) male workers. After Pansay left in October 1944, she never communicated with him again, neither did he know of her whereabouts. FRANCISCO staunchly denied having had sexual relations with Pansay and disavowed any knowledge about MONINA's birth. In the same vein, he denied having paid for MONINA's tuition fees, in person or otherwise, and asserted that he never knew that Mr. Lagarto paid for these fees. Moreover, FRANCISCO could not believe that Lagarto would pay for these fees despite absence of instructions or approval from FRANCISCO. He likewise categorically denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha Cuaycong or Remedios Franco, that MONINA was his daughter. FRANCISCO also disclosed that upon his return from the United States in 1971, he fired Alfredo Baylosis upon discovering that Alfredo had taken advantage of his position during the former's absence. FRANCISCO likewise fired Rudy Tingson and Romeo Bilbao, but did not give the reasons therefor. Finally, FRANCISCO denied knowledge of MONINA's long distance calls from his Bacolod residence; nevertheless, when he subsequently discovered this, he fired certain people in his office for their failure to report this anomaly. As regards the caretaker of his Bacolod residence, FRANCISCO explained that since MONINA lived

at Mrs. Cuaycong's residence, the caretaker thought that he could allow people who lived at the Cuaycong residence to use the facilities at his (FRANCISCO's) house. Nonito Jalandoni, bookkeeper and paymaster at Nelly's Garden from 1963 up to 1974, then from 1980 up to 1986, the assistant overseer of Hacienda Lopez, testified that he did not know MONINA; that he learned of her only in June 1988, when he was informed by FRANCISCO that MONINA had sued him; and that he never saw MONINA at Nelly's Garden, neither did he know of any instructions for anyone at Nelly's Garden to give money to MONINA. Teodoro Zulla, FRANCISCO's bookkeeper and paymaster from 1951 up to 1986, testified that FRANCISCO dismissed Alfredo Baylosis due to certain unspecified discrepancies; and that he never saw MONINA receive funds from either Mr. Lagarto or Mr. Baylosis. Upon questions from the trial court, however, Teodoro admitted that he prepared vouchers for only one of FRANCISCO's haciendas, and not vouchers pertaining to the latter's personal expenses. Iñigo Supertisioso testified that he worked for FRANCISCO at Nelly's Garden from 1964 up to 1984 as a field inspector, paymaster, cashier and, eventually, officer-incharge (OIC). He confirmed Alfredo Baylosis' dismissal due to these unspecified irregularities, then denied that FRANCISCO ever ordered that MONINA be given her allowance. Likewise, Iñigo never heard FRANCISCO mention that MONINA was his (FRANCISCO's) daughter. Lourdes Ledesma, FRANCISCO's daughter, testified that she saw (but did not know) MONINA at the Our Lady of Mercy Hospital, on the occasion of the birth of Lourdes' first son, Mark. Over lunch one day, Lourdes' aunt casually introduced Lourdes and MONINA to each other, but they were referred to only by their first names. Then sometime in 1983 or 1984, MONINA allegedly went to Lourdes' house in Sta. Clara Subdivision requesting for a letter of introduction or referral as MONINA was then jobhunting. However, Lourdes did not comply with the request. Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at Miller & Cruz from 1968 up to 1971, however, he did not personally interview her before she was accepted for employment. Moreover, MONINA underwent the usual screening procedure before being hired. Jose recalled that one of the accountants, a certain Mr. Atienza, reported that MONINA claimed to be FRANCISCO's daughter. Jose then told Mr. Atienza to speak with MONINA and see if he (Mr. Atienza) could stop her from spreading this rumor. Mr. Atienza reported that he spoke with MONINA, who told him that she planned to leave for the United States and needed P20,000.00 for that purpose, and in exchange, she would sign a document disclaiming filiation with FRANCISCO. Thus, Jose instructed Mr. Atienza to request that MONINA meet with Jose, and at that meeting, MONINA confirmed Mr. Atienza's report. Jose then informed Atty. Tirol, FRANCISCO's personal lawyer, about the matter. Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirol's) office in Iloilo. Jose then wrote out a letter of introduction for MONINA addressed to Atty. Tirol Jose

relayed Atty. Tirol's message to MONINA through Mr. Atienza, then later, Atty. Tirol told Jose to go to Iloilo with a clerk for P15,000.00 Jose complied, and at Atty. Tirol's office, Jose saw MONINA, Atty. Tirol and his secretary reading some documents. MONINA then expressed her willingness to sign the document, sans revisions. Jose alleged that he drew the P15,000.00 from his personal funds, subject to reimbursement from and due to an understanding with FRANCISCO. Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946, testified that she knew that Pansay was Lourdes' nanny; that Lourdes slept in her parents' room; that she had not seen FRANCISCO give special treatment to Pansay; that there was no "unusual relationship" between FRANCISCO and Pansay, and if there was any, Dolores would have easily detected it since she slept in the same room as Pansay. Dolores further declared that whenever FRANCISCO's wife was out of town, Pansay would bring Lourdes downstairs at nighttime, and that Pansay would not sleep in the room where FRANCISCO slept. Finally, Dolores declared that Pansay stopped working for FRANCISCO and his wife in October, 1944. The reception of evidence having been concluded, the parties filed their respective memoranda. It need be recalled that Judge Catalino Castañeda, Jr. presided over trial up to 21 October 1986, thereby hearing only the testimonies of MONINA's witnesses and about half of MONINA's testimony on direct examination. Judge Norberto E. Devera, Jr. heard the rest of MONINA's testimony and those of FRANCISCO's witnesses. In its decision of 12 November 1990 12 the trial court, through Judge Devera, dismissed the complaint with costs against MONINA. In the opening paragraph thereof, it observed: This is a complaint for recognition of an illegitimate child instituted by plaintiff Monina Jison against defendant Francisco Jison. This complaint was filed on March 13, 1985 at the time when plaintiff, reckoned from her death of birth, was already thirty-nine years old. Noteworthy also is the fact that it was instituted twenty years after the death of plaintiff's mother, Esperanza Amolar. For the years between plaintiff's birth and Esperanza's death, no action of any kind was instituted against defendant either by plaintiff, her mother Esperanza or the latter's parents. Neither had plaintiff brought such an action against defendant immediately upon her mother's death on April 20, 1965, considering that she was then already nineteen years old or, within a reasonable time thereafter. Twenty years more had to supervene before this complaint was eventually instituted. The trial court then proceeded to discuss the four issues stipulated at pre-trial, without, however, summarizing the testimonies of the witnesses nor referring to the testimonies of the witnesses other than those mentioned in the discussion of the issues.

The trial court resolved the first issue in the negative, holding that it was improbable for witness Lope Amolar to have noticed that Pansay was pregnant upon seeing her at the Elena Apartments in November 1945, since Pansay was then only in her first month of pregnancy; that there was no positive assertion that "copulation did indeed take place between Francisco and Esperanza;" and that MONINA's attempt to show opportunity on the part of FRANCISCO failed to consider "that there was also the opportunity for copulation between Esperanza and one of the several domestic helpers admittedly also residing at Nelly's Garden at that time." The RTC also ruled that the probative value of the birth and baptismal certificates of MONINA paled in light of jurisprudence, especially when the misspellings therein were considered. The trial court likewise resolved the second issue in the negative, finding that MONINA's evidence thereon "may either be one of three categories, namely: hearsay evidence, incredulous evidence, or self-serving evidence." To the first category belonged the testimonies of Adela Casabuena and Alfredo Baylosis, whose knowledge of MONINA's filiation was based, as to the former, on "utterances of defendant's wife Lilia and Esperanza allegedly during the heat of their quarrel," while as to the latter, Alfredo's conclusion was based "from the rumors going [around] that plaintiff is defendant's daughter, front his personal observation of plaintiff's facial appearance which he compared with that of defendant's and from the way the two (plaintiff and defendant) acted and treated each other on one occasion that he had then opportunity to closely observe them together." To the second category belonged that of Dominador Savariz, as: At each precise time that Esperanza allegedly visited Nelly's Garden and allegedly on those occasions when defendant's wife, Lilia was in Manila, this witness was there and allegedly heard pieces of conversation between defendant and Esperanza related to the paternity of the latter's child. . . The RTC then placed MONINA's testimony regarding the acts of recognition accorded her by FRANCISCO's relatives under the third category, since the latter were never presented as witnesses, for which reason the trial court excluded the letters from FRANCISCO's relatives (Exhs. S to V). As to the third issue, the trial court held that MONINA was not barred by prescription for it was of "the perception . . . that the benefits of Article 268 accorded to legitimate children may be availed of or extended to illegitimate children in the same manner as the Family Code has so provided;" or by laches, "which is [a] creation of equity applied only to bring equitable results, and . . . addressed to the sound discretion of the court [and] the circumstances [here] would show that whether plaintiff filed this case immediately upon the death of her mother Esperanza in 1965 or twenty years thereafter in 1985, . . . there seems to be no inequitable result to defendant as related to the situation of plaintiff." The RTC ruled, however, that MONINA was barred by estoppel by deed because of the affidavit (Exh. P/Exh. 2) which she signed "when she was already twenty-five years, a professional and . . . under the able guidance of counsel."

Finally, the RTC denied FRANCISCO's claim for damages, finding that MONINA did not file the complaint with malice, she having been "propelled by an honest belief, founded on probable cause." MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860) and sought reversal of the trial court's decision on the grounds that: I THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO ADJUDGE THIS CASE AGAINST APPELLANT DUE TO ITS MISPERCEPTION THAT APPELLANT'S DELAY IN FILING HER COMPLAINT WAS FATAL TO HER CASE. II THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES OF APPELLANT'S WITNESSES AS TAILOR-MADE, INADEQUATE AND INCREDIBLE. III THE TRIAL COURT ERRED IN ITS REJECTION OF THE ADMISSIBILITY OF THE CERTIFIED COPIES OF PUBLIC DOCUMENTS PRESENTED BY APPELLANT AS PART OF HER EVIDENCE. IV THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS TO THE ACTUAL ACT O COPULATION BETWEEN THE APPELLEE AND APPELLANT'S MOTHER SHOULD HAVE POSITIVELY TESTIFIED TO SAID EFFECT. V THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF THE DULY IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF THE APPELLEE AS HEARSAY. VI THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANT'S AFFIDAVIT (EXH. P) SERVED AS A BAR AGAINST HER CLAIM FOR RECOGNITION INSTEAD OF REINFORCING SAID CLAIM. 13

Expectedly, FRANCISCO refuted these alleged errors in his Appellee's Brief. 14 In its decision of 27 April 1995, 15 the Court of Appeals initially declared that as no vested or acquired rights were affected, the instant case was governed by Article 175, in relation to Articles 172 and 173, of the Family Code. 16While the Court of Appeals rejected the certifications issued by the Local Civil Registrar of Dingle, Iloilo (Exhs. E and F) as FRANCISCO did not sign them, said court focused its discussion on the other means by which illegitimate filiation could be proved, i.e., the open and continuous possession of the status of an illegitimate child or, by any other means allowed by the Rules of Court and special laws, such as "the baptismal certificate of the child, a judicial admission, a family bible wherein the name of the child is entered, common reputation respecting pedigree, admission by silence, testimonies of witnesses . . ." 17 To the Court of Appeals, the "bottom line issue" was whether or not MONINA established her filiation as FRANCISCO's illegitimate daughter by preponderance of evidence, as to which issue said court found: [N]ot just preponderant but overwhelming evidence on record to prove that [MONINA] is the illegitimate daughter of [FRANCISCO] and that she had continuously enjoyed such status by direct acts of [FRANCISCO] and/or his relatives. In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz were already sufficient to establish MONINA's filiation: As adverted to earlier, the trial court discredited Lope Amolar's testimony by saying that Lope could not have detected Esperanza's pregnant state in November, 1945 since at that point in time [sic] she was still in the initial stage of pregnancy. Apparently, the trial court paid more emphasis on the date mentioned by Lope Amolar than on the tenor and import his testimony. As . . . Lope . . . was asked about an incident that transpired more than 41 years back, [u]nder the circumstances, it is unreasonable to expect that Lope could still be dead right on the specific month in 1945 that [he] met and confronted his sister. At any rate, what is important is not the month that they met but the essence of his testimony that his sister pointed to their employer [FRANCISCO] as the one responsible for her pregnancy, and that upon being confronted, [FRANCISCO] assured him of support for Esperanza and their child. It would appear then that in an attempt to find fault with Lope's testimony, the trial court has fallen oblivious to the fact that even [FRANCISCO], in his deposition, did not deny that he was confronted by Lope about what he had done to Esperanza during which he unequivocally acknowledged paternity by assuring Lope of support for both Esperanza and their child. The Court of Appeals further noted that Casabuena and Savariz "testified on something that they personally observed or witnessed," which matters FRANCISCO "did not deny or refute." Finally, said court aptly held:

Taking into account all the foregoing uncontroverted testimonies . . . let alone such circumstantial evidence as [MONINA's] Birth Certificates . . . and Baptismal Certificates which invariably bear the name of [FRANCISCO] as her father, We cannot go along with the trial court's theory that [MONINA's] illegitimate filiation has not been satisfactorily established. xxx xxx xxx Significantly, [MONINA's] testimony finds ample corroboration from [FRANCISCO's] former employees, Arsenio Duatin, Rudy Tingson and Alfredo Baylosis. . . . xxx xxx xxx Carefully evaluating appellant's evidence on her enjoyment of the status of an illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCO's] controversion thereof, We find more weight in the former. The positive testimonies of [MONINA] and [her] witnesses . . . all bearing on [FRANCISCO's] acts and/or conduct indubitably showing that he had continuously acknowledged [MONINA] as his illegitimate daughter have not been succeessfully [sic] refuted. In fact, [FRANCISCO] himself, in his deposition, only casually dismissed [MONINA's] exhaustive and detailed testimony as untrue, and with respect to those given by [MONINA's] witnesses, he merely explained that he had fired [them] from their employment. Needless to state, [FRANCISCO's] vague denial is grossly inadequate to overcome the probative weight of [MONINA's] testimonial evidence. Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court . . . does not hold sway in the face of [MONINA's] logical explanation that she at first did agree to sign the affidavit which contained untruthful statements. In fact, she promptly complained to [FRANCISCO] who, however explained to her that the affidavit was only for the consumption of his spouse . . . Further, the testimony of Jose Cruz concerning the events that led to the execution of the affidavit . . . could not have been true, for as pointed out by [MONINA] she signed the affidavit . . . almost five months after she had resigned from the Miller, Cruz & Co. . . . At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have secured [MONINA's] sworn statement . . . On the contrary, in asking [MONINA] to sign the said affidavit at the cost of P15,000. [FRANCISCO] clearly betrayed his intention to conceal or suppress his paternity of [MONINA] . . . In fine, We hold that [MONINA's] filiation as [FRANCISCO's] illegitimate daughter has been conclusively, established by the uncontroverted

testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz to the effect that appellee himself had admitted his paternity of the appellee, and also by the testimonies of appellant; Arsenio Duatin, Romeo Bilbao, Rudy Tingson and Alfredo Baylosis unerringly demonstrating that by his own conduct or overt acts like sending appellant to school, paying for her tuition fees, school uniforms, books, board and lodging at the Colegio del Sagrado Corazon de Jesus, defraying appellant's hospitalization expenses, providing her with [a] monthly allowance, paying for the funeral expenses of appellant's mother, acknowledging appellant's paternal greetings and calling appellant his "Hija" or child, instructing his office personnel to give appellant's monthly allowance, recommending appellant for employment at the Miller, Cruz & Co., allowing appellant to use his house in Bacolod and paying for her long distance telephone calls, having appellant spend her vacation in his apartment in Manila and also at his Forbes residence, allowing appellant to use his surname in her scholastic and other records (Exhs. Z, AA, AA-1, to AA-5, W & W-5), appellee had continuously recognized appellant as his illegitimate daughter. Added to these are the acts of [FRANCISCO's] relatives acknowledging or treating [MONINA] as [FRANCISCO's] daughter (Exh. U) or as their relative (Exhs. T & V). On this point, witness Zafiro Ledesma, former Mayor of Iloilo City, whose spouse belongs to the Lopez clan just like [FRANCISCO], testified that [MONINA) has been considered by the Lopezes as a relative. He identified pictures of the appellee in the company of the Lopezes (Exhs X-16 & X-17). Another witness, Danthea H. Lopez, whose husband Eusebio Lopez is appellee's first cousin, testified that appellant was introduced to her by appellee's cousin, Remedios Lopez Franco, as the daughter of appellee Francisco Jison, for which reason, she took her in as [a] secretary in the Merchant's Financing Corporation of which she was the manager, and further allowed her to stay with her family free of board and lodging. Still on this aspect, Dominador Savariz declared that sometime in February, 1966 appellee's relative, Ms. Remedios Lopez Franco pointed to appellant as the daughter of appellee Francisco Jison. Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and F) as well as [MONINA's] Baptismal Certificates (Exhs C & D) which the trial court admitted in evidence as part of [MONINA's] testimony, may serve as circumstantial evidence to further reinforce [MONINA's] claim that she is [FRANCISCO's] illegitimate daughter by Esperanza Amolar. True it is that a trial judge's assessment of the credibility of witnesses is accorded great respect on appeal. But the rule admits of certain exceptions. One such exception is where the judge who rendered the judgment was not the one who heard the witnesses testify. [citations omitted] The other is where the trial court had overlooked, misunderstood or misappreciated some facts or circumstances of weight and substance which, if properly considered, might affect the result of the case. [citations omitted] In the present case, both exceptions obtain. All of [MONINA's] witnesses . . . whose testimonies were not given credence did not testify before the judge who rendered the disputed judgment . . .

The Court of Appeals then decreed: WHEREFORE, premises considered, the judgment of the trial court is SET ASIDE and another one is hereby entered for appellant Monina Jison, declaring her as the illegitimate daughter of appellee Francisco Jison, and entitled to all rights and privileges granted by law. Costs against appellee. SO ORDERED. His motion for reconsideration having been denied by the Court of Appeals in its resolution of 29 March 1996, 18FRANCISCO filed the instant petition. He urges us to reverse the judgment of the Court of Appeals, alleging that said court committed errors of law: I. . . . IN REVERSING THE DECISION OF THE TRIAL COURT AND DECLARING PRIVATE RESPONDENT AS THE ILLEGITIMATE CHILD OF PETITIONER, CONSIDERING [THE] IMPOSSIBILITY OF SEXUAL CONTACT BETWEEN THE PETITIONER AND THE PRIVATE RESPONDENTS MOTHER AT THE TIME CONCEPTION WAS SUPPOSED TO HAVE OCCURRED. II. . . . IN REVERSING THE TRIAL COURT'S FINDING CONSIDERING THAT PRIVATE RESPONDENTS TESTIMONIAL EVIDENCE OF PATERNITY AND FILIATION IS NOT CLEAR AND CONVINCING. III. . . . IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED BY THE PRIVATE RESPONDENT AS EVIDENCE OF FILIATION CONSIDERING THAT THE SAME ARE HEARSAY, SELFSERVING AND CANNOT BIND THE PETITIONER UNDER THE BASIC RULES OF EVIDENCE. IV. . . . IN INTERPRETING THE PRIVATE RESPONDENTS SWORN STATEMENT (EXH. "P" /EXH. "2") IN A MANNER NOT IN CONSONANCE WITH THE RULINGS OF THE HONORABLE SUPREME COURT.

V. . . . IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN THE FILING OF THE PRESENT PATERNITY SUIT AS EQUIVALENT TO LACHES. As regards the first error, FRANCISCO insists that taking into account the second paragraph of MONINA's complaint wherein she claimed that he and Pansay had sexual relations "by about the end of 1945 or the start of 1946," it was physically impossable for him and Pansay to have had sexual contact which resulted in MONINA's birth, considering that: The normal period of human pregnancy is nine (9) months. If as claimed by private respondent in her complaint that her mother was impregnated by FRANCISCO "at the end of 1945 or the start of 1946", she would have been born sometime in late September or early October and not August 6, 1946 . . . The instant case finds factual and legal parallels in Constantino vs. Mendez, 19 thus: . . . FRANCISCO further claims that his testimony that Pansay was no longer employed by him at the time in question was unrebutted, moreover, other men had access to Pansay during the time of or even after her employment by him. As to the second error, FRANCISCO submits that MONINA's testimonial evidence is "shaky, contradictory and unreliable," and proceeds to attack the credibility of her witnesses by claiming, in the main, that: (a) Lope Amolar could not have detected Pansay pregnancy in November 1945 when they met since she would have been only one (1) month pregnant then; (b) Dominador Savariz did not in fact witness the meeting between FRANCISCO, Pansay and MONINA; (c) Zafiro Ledesma had an ulterior motive in testifying for MONINA as he owned a bank in Iloilo which was then under Central Bank supervision and MONINA was the Bank Examiner assigned to Iloilo; and (d) Danthea Lopez was not related to him by blood and whatever favorable treatment MONINA received from Danthea was due to the former's employment at Merchants' Financing Company and additional services rendered at Kahirup Hotel; besides Danthea admitted that she had no personal knowledge as to the issue of paternity and filiation of the contending parties, hence Sections 39 and 40 20 of Rule 130 of the Rules of Court did not come into play. FRANCISCO likewise re-echoes the view of the trial court as regards the testimonies of Adela Casabuena and Alfredo Baylosis. FRANCISCO further asserts that MONINA's testimony that he answered for her schooling was self-serving and uncorroborated by any receipt or other documentary evidence; and assuming he did, such should be interpreted as a manifestation of kindness shown towards the family of a former household helper. Anent the treatment given by his relatives to MONINA as his daughter, FRANCISCO points to the fact that Pansay was the former laundrywoman of Mrs. Franco; MONINA

resided with the families of Eusebio Lopez and Concha Cuaycong because she was in their employ at Kahirup Hotel and Our Lady of Mercy Hospital, respectively; MONINA failed to present Mrs. Franco, Eusebio Lopez and Mrs. Cuaycong; and MONINA's employment at the accounting firm of Miller, Cruz & Co. was attributable to her educational attainment, there being absolutely no evidence to prove that FRANCISCO ever facilitated her employment thereat. Hence, in light of Baluyot v. Baluyot,21 the quantum of evidence to prove paternity by clear and convincing evidence, not merely a preponderance thereof, was not met. With respect to the third assigned error, FRANCISCO argues that the Court of Appeals' reliance on the certifications of the Local Civil Registrar (Exhs. E and F) and Baptismal Certificates (Exhs. C and D) as circumstantial evidence is misplaced. First, their genuineness could not be ascertained as the persons who issued them did not testify. Second, in light of Reyes v. Court of Appeals, 22 the contents of the baptismal certificates were hearsay, as the data was based only on what was told to the priest who solemnized the baptism, who likewise was not presented as a witness. Additionally, the name of the father appearing therein was "Franque Jison," which was not FRANCISCO's name. Third, in both Exhibits E and F, the names of the child's parents were listed as "Frank Heson" and "Esperanza Amador" (not Amolar). FRANCISCO further points out that in Exhibit F, the status of the child is listen as "legitimate," while the father's occupation as "laborer." Most importantly, there was no showing that FRANCISCO signed Exhibits E and F or that he was the one who reported the child's birth to the Office of the Local Civil Registrar. As to MONINA's educational records, FRANCISCO invokes Bañas v. Bañas 23which recognized that school records are prepared by school authorities, not by putative parents, thus incompetent to prove paternity. And, as to the photographs presented by MONINA, FRANCISCO cites Colorado v.Court of Appeals, 24 and further asserts that MONINA did not present any of the persons with whom she is seen in the pictures to testify thereon; besides these persons were, at best, mere second cousins of FRANCISCO. He likewise assails the various notes and letters written by his relatives (Exhs. S to V) as they were not identified by the authors. Finally, he stresses that MONINA did not testify as to the telephone cards (Exhs. G to L) nor did these reveal the circumstances surrounding the calls she made from his residence. Anent the fourth assigned error, FRANCISCO contends that the Court of Appeals' interpretation of MONINA's affidavit of 21 September 1971 ran counter to Dequito v. Llamas, 25 and overlooked that at the time of execution, MONINA was more than 25 years old and assisted by counsel. As to the last assigned error, FRANCISCO bewails the Court of Appeals' failure to consider the long and unexplained delay in the filing of the case. In her comment, MONINA forcefully refuted FRANCISCO's arguments, leading FRANCISCO to file his reply thereto. On 20 November 1996, we gave due course to this petition and required the parties to submit their respective memoranda, which they subsequently did.

A painstaking review of the evidence and arguments fails to support petitioner. Before addressing the merits of the controversy, we first dispose of preliminary matters relating to the applicable law and the guiding principles in paternity suits. As to the former, plainly, the Family Code of the Philippines (Executive Order No. 209) governs the present controversy. As correctly cited by the Court of Appeals, Uyguangco 26 served as a judicial confirmation of Article 256 of the Family Code 27 regarding its retroactive effect unless there be impairment of vested rights, which does not hold true here, it appearing that neither the putative parent nor the child has passed away and the former having actually resisted the latter's claim below. Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's, may be established in the same way and on the same evidence as that of legitimate children. Article 172 thereof provides the various forms of evidence by which legitimate filiation is established, thus: 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 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. This Article reproduces, with amendments, Articles 265, 266 and 267 of the Civil Code. For the success of an action to establish illegitimate filiation under the second paragraph. which MONINA relies upon given that she has none of the evidence mentioned in the first paragraph, a "high standard of proof" 28 is required. Specifically, to 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. 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. 29 By "continuous" is meant uninterrupted and consistent, but does not require any particular length of time. 30 The foregoing standard of proof required to establish one's filiation is founded on the principle that an order for recognition and support may create an unwholesome atmosphere or may be an irritant in the family or lives of the parties, so that it must be issued only if paternity or filiation is established by clear and convincing evidence. 31 The foregoing discussion, however, must be situated within the general rules on evidence, in light of the burden of proof in civil cases, i.e., preponderance of evidence, and the shifting of the burden of evidence in such cases. Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out aprima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff's prima facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendant's. The concept of "preponderance of evidence" refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probability of truth. 32 With these in mind, we now proceed to resolve the merits of the instant controversy. FRANCISCO's arguments in support of his first assigned error deserve scant consideration. While it has been observed that unlawful intercourse will not be presumed merely from proof of an opportunity for such indulgence,33 this does not favor FRANCISCO. Akin to the crime of rape where, in most instances, the only witnesses to the felony are the participants in the sexual act themselves, in deciding paternity suits, the issue of whether sexual intercourse actually occurred inevitably redounds to the victim's or mother's word, as against the accused's or putative father's protestations. In the instant case, MONINA's mother could no longer testify as to the fact of intercourse, as she had, unfortunately, passed away long before the institution of the complaint for recognition. But this did not mean that MONINA could no longer prove her filiation. The fact of her birth and her parentage may be established by evidence other than the testimony of her mother. The paramount question then is whether MONINA's evidence is coherent, logical and natural. 34 The complaint stated that FRANCISCO had carnal knowledge of Pansay "by about the end of 1945." We agree with MONINA that this was broad enough to cover the fourth quarter of said year, hence her birth on 6 August 1946 could still be attributed to sexual relations between FRANCISCO and MONINA's mother. In any event, since it was established that her mother was still in the employ of FRANCISCO at the time MONINA was conceived as determined by the date of her birth, sexual contact

between FRANCISCO and MONINA's mother was not at all impossible, especially in light of the overwhelming evidence, as hereafter shown, that FRANCISCO fathered MONINA, has recognized her as his daughter and that MONINA has been enjoying the open and continuous possession of the status as FRANCISCO's illegitimate daughter. We readily conclude that the testimonial evidence offered by MONINA, woven by her narration of circumstances and events that occurred through the years, concerning her relationship with FRANCISCO, coupled with the testimonies of her witnesses, overwhelmingly established the following facts: 1) FRANCISCO is MONINA's father and she was conceived at the time when her mother was in the employ of the former; 2) FRANCISCO recognized MONINA as his child through his overt acts and conduct which the Court of Appeals took pains to enumerate, thus: [L]ike sending appellant to school, paying for her tuition fees, school uniforms, books, board and lodging at the Colegio del Sagrado de Jesus, defraying appellant's hospitalization expenses, providing her with [a] monthly allowance, paying for the funeral expenses of appellant's mother, acknowledging appellant's paternal greetings and calling appellant his "Hija" or child, instructing his office personnel to give appellant's monthly allowance, recommending appellant to use his house in Bacolod and paying for her long distance telephone calls, having appellant spend her long distance telephone calls, having appellant spend her vacation in his apartment in Manila and also at his Forbes residence, allowing appellant to use his surname in her scholastic and other records (Exhs Z, AA, AA-1 to AA-5, W & W-5) . . . 3) Such recognition has been consistently shown and manifested throughout the years publicly, 35 spontaneously, continuously and in an uninterrupted manner. 36 Accordingly, in light of the totality of the evidence on record, the second assigned error must fail. There is some merit, however, in the third assigned error against the probative value of some of MONINA's documentary evidence. MONINA's reliance on the certification issued by the Local Civil Registrar concerning her birth (Exhs. E and F) is clearly misplaced. It is settled that a certificate of live birth

purportedly identifying the putative father is not competent evidence as to the issue of paternity, when there is no showing that the putative father had a hand in the preparation of said certificates, and the Local Civil Registrar is devoid of authority to record the paternity of an illegitimate child upon the information of a third person. 37 Simply put, if the alleged father did not intervene in the birth certificate, e.g., supplying the information himself, the inscription of his name by the mother or doctor or registrar is null and void; the mere certificate by the registrar without the signature of the father is not proof of voluntary acknowledgment on the latter's part. 38 In like manner, FRANCISCO's lack of participation in the preparation of the baptismal certificates (Exhs. C and D) and school records (Exhs. Z and AA) renders these documents incompetent to prove paternity, the former being competent merely to prove the administration of the sacrament of baptism on the date so specified. 39 However, despite the inadmissibility of the school records per seto prove the paternity, they may be admitted as part of MONINA's testimony to corroborate her claim that FRANCISCO spent for her education. We likewise disagree with the ruling of the Court of Appeals that the certificates issued by the Local Civil Registrar and the baptismal certificates may be taken as circumstantial evidence to prove MONINA's filiation. Since they areper se inadmissible in evidence as proof of such filiation, they cannot be admitted indirectly as circumstantial evidence to prove the same. As to Exhibits "S," "T," "U" and "V," the various notes and letters written by FRANCISCO's relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and Fernando Lopez, respectively, allegedly attesting to MONINA's filiation, while their due execution and authenticity are not in issue, 40 as MONINA witnessed the authors signing the documents, nevertheless, under Rule 130, Section 39, the contents of these documents may not be admitted, there being no showing that the declarantsauthors were dead or unable to testify, neither was the relationship between the declarants and MONINA shown by evidence other than the documents in question. 41 As to the admissibility of these documents under Rule 130, Section 40, however, this requires further elaboration. Rule 130, Section 40, provides: Sec. 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity.Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like may be received as evidence of pedigree. (emphasis supplied) It is evident that this provision may be divided into two (2) parts: the portion containing the first underscored clause which pertains to testimonial evidence, under which the documents in question may not be admitted as the authors thereof did not take the witness stand; and the section containing the second underscored phrase. What must then be ascertained is whether Exhibits S to V, as private documents, fall within the

scope of the clause "and the like" as qualified by the preceding phrase "[e]ntries in family bibles or other family books or charts, engravings on rights [and] family portraits," We hold that the scope of the enumeration contained in the second portion of this provision, in light of the rule ofejusdem generis, is limited to objects which are commonly known as "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. 42 These have been described as objects "openly exhibited and well known to the family," 43 or those "which, if preserved in a family, may be regarded as giving a family tradition." 44 Other examples of these objects which are regarded as reflective of a family's reputation or tradition regarding pedigree are inscriptions on tombstones, 45 monuments or coffin plates. 46 Plainly then, Exhibits S to V, as private documents not constituting "family possessions" as discussed above, may not be admitted on the basis of Rule 130, Section 40. Neither may these exhibits be admitted on the basis of Rule 130, Section 41 regarding common reputation, 47 it having been observed that: [T]he weight of authority appears to be in favor of the theory that it is the general repute, the common reputation in the family, and not the common reputation in community, that is a material element of evidence going to establish pedigree. . . . [Thus] matters of pedigree may be proved by reputation in the family, and not by reputation in the neighborhood or vicinity, except where the pedigree in question is marriage which may be proved by common reputation in the community. 48 Their inadmissibility notwithstanding, Exhibits "S" to "V," inclusive, may, in like manner as MONINA's school records, properly be admitted as part of her testimony to strengthen her claim that, indeed, relatives of FRANCISCO recognized her as his daughter. We now direct our attention to MONINA's 21 September 1971 affidavit (Exh. P/Exh. 2), subject of the fourth assigned error, where she attests that FRANCISCO is not her father. MONINA contends that she signed it under duress, i.e., she was jobless, had no savings and needed the money to support herself and finish her studies. Moreover, she signed Exhibit P upon the advice of Atty. Divinagracia that filiation could not be waived and that FRANCISCO's ploy would "boomerang" upon him. On the other hand, FRANCISCO asserts that full credence should be afforded Exhibit P as MONINA was already 25 years old at the time of its execution and was advised by counsel; further, being a notarized document, its genuineness and due execution could not be questioned. He relies on the testimony of Jose Cruz, a partner at the accounting firm of Miller & Cruz, who declared that he intervened in the matter as MONINA was spreading rumors about her filiation within the firm, which might have had deleterious effects upon the relationship between the firm and FRANCISCO.

On this issue, we find for MONINA and agree with the following observations of the Court of Appeals: Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court . . . does not hold sway in the face of [MONINA's] logical explanation that she at first did agree to sign the affidavit which contained untruthful statements. In fact, she promptly complained to [FRANCISCO] who, however explained to her that the affidavit was only for the consumption of his spouse . . . At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled for, if not absurd, for [FRANCISCO] of his lawyer to have secured [MONINA's] sworn statement . . . On the contrary, in asking [MONINA] to sign the said affidavit at the cost of P15,000. [FRANCISCO] clearly betrayed his intention to conceal or suppress his paternity of [MONINA] . . . Indeed, if MONINA were truly not FRANCISCO's illegitimate daughter, it would have been unnecessary for him to have gone to such great lengths in order that MONINA denounce her filiation. For as clearly established before the trial court and properly appreciated by the Court of Appeals, MONINA had resigned from Miller & Cruz five (5) months prior to the execution of the sworn statement in question, hence negating FRANCISCO's theory of the need to quash rumors circulating within Miller & Cruz regarding the identity of MONINA's father. Hence, coupled with the assessment of the credibility of the testimonial evidence of the parties discussed above, it is evident that the standard to contradict a notarial document, i.e. clear and convincing evidence and more than merely preponderant, 49 has been met by MONINA Plainly then, the burden of evidence fully shifted to FRANCISCO. Two (2) glaring points in FRANCISCO's defense beg to be addressed: First, that his testimony was comprised of mere denials, rife with bare, unsubstantiated responses such as "That is not true," "I do not believe that," or "None that I know." In declining then to lend credence to FRANCISCO's testimony, we resort to a guiding principle in adjudging the credibility of a witness and the truthfulness of his statements, laid down as early as 1921: The experience of courts and the general observation of humanity teach us that the natural limitations of our inventive faculties are such that if a witness undertakes to fabricate and deliver in court a false narrative containing numerous details, he is almost certain to fall into fatal inconsistencies, to make statements which can be readily refuted, or to expose in his demeanor the falsity of his message. For this reason it will be found that perjurers usually confine themselves to the incidents immediately related to the principal fact about which they testify, and when asked about collateral facts by which their truthfulness

could be tested, their answers not infrequently take the stereotyped form of such expressions as "I don't know" or "I don't remember." . . . 50 Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were unspecified or likewise unsubstantiated, hence FRANCISCO's attempt to prove illmotive on their part to falsely testify in MONINA's favor may not succeed. As may be gleaned, the only detail which FRANCISCO could furnish as to the circumstances surrounding the dismissals of his former employees was that Baylosis allegedly "took advantage of his position" while FRANCISCO was in the United States. But aside from this bare claim, FRANCISCO's account is barren, hence unable to provide the basis for a finding of bias against FRANCISCO on the part of his former employees. As to FRANCISCO's other witnesses, nothing substantial could be obtained either. Nonito Jalandoni avowed that he only came to know of MONINA in June 1988; 51 that during his employment at Nelly Garden from 1963 up to 1974, he did not recall ever having seen MONINA there, neither did he know of any instructions from FRANCISCO nor Mr. Lagarto (FRANCISCO's office manager before passing away) regarding the disbursement of MONINA's allowance. 52 Teodoro Zulla corroborated Jalandoni's testimony regarding not having seen MONINA at Nelly Garden and MONINA's allowance; declared that Alfredo Baylosis was dismissed due to discrepancies discovered after an audit, without any further elaboration, however; but admitted that he never prepared the vouchers pertaining to FRANCISCO's personal expenses, merely those intended for one of FRANCISCO's haciendas. 53Then, Iñigo Superticioso confirmed that according to the report of a certain Mr. Atienza, Baylosis "was dismissed by Mr. Jison for irregularities," while Superticioso was informed by FRANCISCO that Tingson was dismissed for loss of confidence. Superticioso likewise denied that MONINA received money from FRANCISCO's office, neither was there a standing order from FRANCISCO to release funds to her. 54 It is at once obvious that the testimonies of these witnesses for FRANCISCO are likewise insufficient to overcome MONINA's evidence. The former merely consist of denials as regards the latter's having gone to Nelly Garden or having received her allowance from FRANCISCO's office, which, being in the form of negative testimony, necessarily stand infirm as against positive testimony; 55 bare assertions as regards the dismissal of Baylosis; ignorance of FRANCISCO's personal expenses incapable of evincing that FRANCISCO did not provide MONINA with an allowance; or hearsay evidence as regards the cause for the dismissals of Baylosis and Tingson. But what then serves as the coup de grace is that despite Superticioso's claim that he did not know MONINA, 56 when confronted with Exhibit H, a telephone toll ticket indicating that on 18 May 1971, MONINA called a certain "Eñing" at FRANCISCO's office, Superticioso admitted that his nickname was "Iñing" and that there was no other person named "Iñing" in FRANCISCO's office. 57 All told, MONINA's evidence hurdled "the high standard of proof" required for the success of an action to establish one's illegitimate filiation when relying upon the provisions regarding "open and continuous possession'' or "any other means allowed by the Rules of Court and special laws;" moreover, MONINA proved her filiation by more than mere preponderance of evidence.

The last assigned error concerning laches likewise fails to convince. The essential elements of laches are: (1) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation of which the complaint seeks a remedy; (2) delay in asserting the complainant's rights, the complainant having had knowledge or notice of the defendant's conduct as having been afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complaint would assert the right in which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complaint, or the suit is not held barred. 58 The last element is the origin of the doctrine that sale demands apply only where by reason of the lapse of time it would be inequitable to allow a party to enforce his legal rights. 59 As FRANCISCO set up, laches as an affirmative defense, it was incumbent upon him to prove the existence of its elements. However, he only succeeded in showing MONINA's delay in asserting her claim, but miserably failed to prove the last element. In any event, it must be stressed that laches is based upon grounds of public policy which requires, for the peace of society, the discouragement of state claims, and is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted. There is no absolute rule as to what constitutes laches; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court, and since it is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or to perpetuate fraud and injustice. 60 Since the instant case involves paternity and filiation, even if illegitimate, MONINA filed her action well within the period granted her by a positive provision of law. A denial then of her action on ground of laches would clearly be inequitable and unjust. WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DENIED and the challenged decision of the Court of Appeals of 27 April 1995 in CA-G.R. CV No. 32860 is AFFIRMED. Costs against petitioner. SO ORDERED.

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