Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-28394 November 26, 1970

PEDRO GAYON, plaintiff-appellant,
vs.
SILVESTRE GAYON and GENOVEVA DE GAYON, defendantsappellees.
German M. Lopez for plaintiff-appellant.
Pedro R. Davila for defendants-appellees.
CONCEPCION, C.J.:
Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of
First Instance of Iloilo dismissing his complaint in Civil Case No.
7334 thereof.
The records show that on July 31, 1967, Pedro Gayon filed said
complaint against the spouses Silvestre Gayon and Genoveva de
Gayon, alleging substantially that, on October 1, 1952, said spouses
executed a deed copy of which was attached to the complaint, as
Annex "A" whereby they sold to Pedro Gelera, for the sum of
P500.00, a parcel of unregistered land therein described, and
located in the barrio of Cabubugan, municipality of Guimbal, province
of Iloilo, including the improvements thereon, subject to redemption
within five (5) years or not later than October 1, 1957; that said right
of redemption had not been exercised by Silvestre Gayon, Genoveva
de Gayon, or any of their heirs or successors, despite the expiration
of the period therefor; that said Pedro Gelera and his wife Estelita
Damaso had, by virtue of a deed of sale copy of which was

attached to the complaint, as Annex "B" dated March 21, 1961,

sold the aforementioned land to plaintiff Pedro Gayon for the sum of
P614.00; that plaintiff had, since 1961, introduced thereon
improvements worth P1,000; that he had, moreover, fully paid the
taxes on said property up to 1967; and that Articles 1606 and 1616
of our Civil Code require a judicial decree for the consolidation of the
title in and to a land acquired through a conditional sale, and,
accordingly, praying that an order be issued in plaintiff's favor for the
consolidation of ownership in and to the aforementioned property.
In her answer to the complaint, Mrs. Gayon alleged that her
husband, Silvestre Gayon, died on January 6, 1954, long before the
institution of this case; that Annex "A" to the complaint is fictitious, for
the signature thereon purporting to be her signature is not hers; that
neither she nor her deceased husband had ever executed "any
document of whatever nature in plaintiff's favor"; that the complaint is
malicious and had embarrassed her and her children; that the heirs
of Silvestre Gayon had to "employ the services of counsel for a fee of
P500.00 and incurred expenses of at least P200.00"; and that being
a brother of the deceased Silvestre Gayon, plaintiff "did not exert
efforts for the amicable settlement of the case" before filing his
complaint. She prayed, therefore, that the same be dismissed and
that plaintiff be sentenced to pay damages.
Soon later, she filed a motion to dismiss, reproducing substantially
the averments made in her answer and stressing that, in view of the
death of Silvestre Gayon, there is a "necessity of amending the
complaint to suit the genuine facts on record." Presently, or on
September 16, 1967, the lower court issued the order appealed from,
reading:
Considering the motion to dismiss and it appearing
from Exhibit "A" annexed to the complaint that
Silvestre Gayon is the absolute owner of the land in
question, and considering the fact that Silvestre
Gayon is now dead and his wife Genoveva de
Gayon has nothing to do with the land subject of
plaintiff's complaint, as prayed for, this case is
hereby dismissed, without pronouncement as to
1
costs.

A reconsideration of this order having been denied, plaintiff

interposed the present appeal, which is well taken.

however, be construed in the light of Art. 217 of the same Code,

pursuant to which:

Said order is manifestly erroneous and must be set aside. To begin

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

Family relations shall include those:

As regards plaintiff's failure to seek a compromise, as an alleged

obstacle to the present case, Art. 222 of our Civil Code provides:
No suit shall be filed or maintained between
members of the same family unless it should appear
that earnest efforts toward a compromise have been
made, but that the same have failed, subject to the
limitations in article 2035.
It is noteworthy that the impediment arising from this provision
applies to suits "filed or maintained between members of the same
family." This phrase, "members of the same family," should,

(1) Between husband and wife;

(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters.
Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his
nephews and/or nieces. Inasmuch as none of them is included in the
enumeration contained in said Art. 217 which should be construed
strictly, it being an exception to the general rule and Silvestre
Gayon must necessarily be excluded as party in the case at bar, it
follows that the same does not come within the purview of Art. 222,
and plaintiff's failure to seek a compromise before filing the complaint
does not bar the same.
WHEREFORE, the order appealed from is hereby set aside and the
case remanded to the lower court for the inclusion, as defendant or
defendants therein, of the administrator or executor of the estate of
Silvestre Gayon, if any, in lieu of the decedent, or, in the absence of
such administrator or executor, of the heirs of the deceased Silvestre
Gayon, and for further proceedings, not inconsistent with this
decision, with the costs of this instance against defendant-appellee,
Genoveva de Gayon. It is so ordered.
Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee,
Barredo and Villamor, JJ., concur.
Dizon and Makasiar, JJ., are on leave.

# Footnotes
1 Record on Appeal, p. 14.
2 Art. 87 (3) of our Civil Code.
3 Arts. 774 and 777 of our Civil Code; Fule v. Fule,
46 Phil. 317; Cuevas v. Abesamis, 71 Phil. 147;
Villaluz v. Neme, L-14676, Jan. 31, 1963; Aznar v.
Duncan, L-24365, June 30, 1966; Phil. Banking
Corp. v. Lui She, L-17587, Sept. 12, 1967; Hrs. of
Pedro Reganon v. Imperial, L-24434, Jan. 17, 1968.
4 Art. 776 of our Civil Code.
5 See Hernandez v. Padua, 14 Phil. 194; Uy Coque
v. Sioca, 45 Phil. 430; Bonnevie v. Pardo, 59 Phil.
486; Government v. Serafica, 61 Phil. 93; De Vera v.
Galauran, 67 Phil. 213, 214; Atun v. Nunez, 97 Phil.
762, 765; Velarde v. Paez, 101 Phil. 376, 382;
Magdalera v. Benedicto, L-9105, Feb. 28, 1958.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-25609

November 27, 1968

MARGARET ANN WAINRIGHT VERSOZA, JOSE MA. VERSOZA,

JR., CHARLES JOHN VERSOZA and VIRGINIA FELICE
VERSOZA, plaintiffs-appellants,
vs.
JOSE MA. VERSOZA, defendant-appellee.
William H. Quasha and Associates for plaintiffs-appellants.
Deogracias T. Reyes and Associates and Jose M. Luison for
defendant-appellee.
SANCHEZ, J.:
The question before us, framed in legal setting, is the correctness of
the lower court's order dismissing, without prejudice, the complaint
seeking, inter alia, future support upon the ground that there is no
allegation therein that earnest efforts toward a compromise were
made but that the same have failed, in infringement of Article 222 of
the Civil Code.
With this problem in mind, we turn to the pivotal facts.
On March 4, 1964, a verified complaint, later amended, for
P1,500.00 monthly support, support in arrears, and damages, and
1
custody of children, with a petition for support pendente lite was
lodged against Jose Ma. Versoza by his wife, Margaret Ann
Wainright Versoza, and their three minor children, Jose Ma. Versoza,
Jr., Charles John Versoza and Virginia Felice Versoza. Reasons
given are that defendant has abandoned plaintiffs without providing
for their support and maintains illicit relations with another woman.

Defendant's answer attacked the complaint on the claim that it is

premature and/or that it states no cause of action. Because, the
2
complaint which involves members of the same family does allege
earnest efforts toward a compromise before the complaint was filed
as set forth in the statute mentioned at the start of this opinion. Then
followed defendant's motion for preliminary hearing on jurisdiction.
Defendant there argued that compliance with Article 222 of the Civil
Code aforesaid was a condition precedent and should have been
alleged in the complaint.
On February 22, 1965, following appropriate proceedings, the lower
court came out with its first appealed order. It there resolved to
dismiss the complaint without prejudice, upon the ground that there
was no showing that efforts have been exerted to settle the case
amicably before suit was started.
Plaintiffs moved to reconsider. Annexed to its motion was an affidavit
of their counsel to the effect that before court action was taken
efforts were made to settle the case amicably, but which were
fruitless.
On March 30, 1965, the lower court brushed aside this motion.
In an effort to conform to the position taken by the lower court,
plaintiffs filed a second motion for the reconsideration of the orders
of February 22, and March 30, 1965. Plaintiffs at the same time
sought admission of their second amended complaint in which the
required averment was made to obviate the objection to their
complaint. They there alleged that before starting the present suit,
they sought amicable settlement but were unsuccessful.
On June 22, 1965, the second motion for reconsideration was
likewise denied by the lower court "(f)or lack of merit."
The dismissal orders are now the subject of appeal.
1. Plaintiffs argue that the Civil Code requirement of attempt to reach
a compromise and of its failure need not be alleged in the complaint.

They claim that some such fact may be proved either at the main
hearing or at the preliminary hearing on the motion to dismiss.
The text of Article 222 of the Civil Code is this: "No suit shall be filed
or maintained between members of the same family unless it should
appear that earnest efforts toward a compromise have been made,
but that the same have failed, subject to the limitations in article
3
2035." The requirement in Article 222 has been given more teeth by
Section 1(j), Rule 16 of the Rules of Court, which states as ground
for a motion to dismiss that "(t)he suit is between members of the
same family and no earnest efforts towards a compromise have
been made."
The cumulative impact of the statute and the rule just adverted to is
that earnest efforts to reach a compromise and failure thereof must
ordinarily be alleged in the complaint. The Civil Code provision
that "(n)o suit shall be filed or maintained" simply means that the
attempt to compromise and inability to arrive thereat is a condition
precedent to the filing of the suit. As such it is a part of plaintiffs'
4
cause of action. Justice J.B.L. Reyes and Judge Puno bolstered this
view with their statement that "(t)he terms of article 222
require express allegation of an attempt to compromise and its
failure; otherwise there is no cause of action stated."
2. The foregoing, however, is but a statement of the general rule.
Future support operates outside the ambit thereof. Mucius
5
Scaevola expresses the view that no objection can be made to a
compromise "cuando el derecho es renunciable, eminentemente
privado." Scaevola, however, emphasizes: "(P)ero el derecho a la
vida no lo es." This brings us to the legal provision Scaevola
commented upon, namely, Article 1814 of the Spanish Civil Code of
1889, which reads:
Art. 1814. No puede transigir sobre el estado civil de las
personas, ni sobre las cuestiones matrimoniales, ni
6
sobre alimentos futuros.

So it is, that Colin y Capitant observed: "Una cosa es que la

transaccion sea en principio un acto licito, con exclusion de aquellas
materias a que se refiere el art. 1814 del Codigo civil.
8

The philosophy behind the rule is best expressed by Manresa in the

following terms:
Aunque el Codigo no lo diga expresamente, desde luego se
comprende que, por regla general, pueden ser objeto de
transaccion todas las cosas que estan en el comercio de los
hombres, siempre que no se halle prohibido por la ley. Esta
es la regla general; pero hay casos en que, por razones de
moralidad o por otras consideraciones no menos atendibles,
no puede admitirse la transaccion, como sucede, por
ejemplo, en materia de estado civil de las personas, de
cuestiones matrimoniales y de alimentos, y otros que
tampoco son susceptibles de transaccion por afectar al
interes publico o social y no estar en el dominio o en la
potestad de los particulares el sustraerlos, a los efectos
rigurosos de la ley, segun ocurre con los delitos y demas
transgresiones punibles del derecho.
xxx

xxx

xxx

Restanos ocuparnos de otra prohibicion impuesta tambien

por el art. 1814 en su ultima parte. Nos referimos a la
establecida por el mismo respecto de la transaccion sobre
los alimentos futuros; prohibicion que se funda en poderosas
razones de moralidad que no pueden ocultarse, ni pasar
desapercibidas para nadie que detenidamente medite sobre
ello.
En efecto, en rigor de principios, la lay concede los
alimentos en razon a la necesidad que de ellos tiene el
alimentista pora vivir, y es evidente que transigir sobre
ellos, equivaldria a renunciar en parte a la vida, como ha
dicho un autor ("Coleccion de las Instituciones jurisdicas
politicas de los pueblos modernos," Tomo 13, pag. 792); y
si no le fueran necesarios pudiendo por tal motivo

renunciarlos, no cabria tampoco transaccion, porque no

tendria derecho a percibirlos.
The foregoing but emphasizes the concept of support. For, support
is, amongst others, everything that is indispensable for
9
sustenance. The right to support cannot be: (1) renounced; (2)
transmitted to third persons; nor (3) compensated with what the
10
recipient owes the obligor. Compensation may not even be set up
against a creditor who has a claim for support due by gratuitous
11
title. Of course, support in arrears is a different thing altogether. It
may be compensated, renounced and transmitted by onerous or
12
13
gratuitous title. In Coral vs. Gallego, the Court of Appeals has had
occasion to declare that the right to support is not susceptible of
future transactions under Article 1814 of the old Civil Code.
Article 1814 of the Spanish Civil Code was reproduced in Article
2035 of the new Civil Code in an expanded form as follows:
ART. 2035. No compromise upon the following questions
shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
It thus appears that Article 2035 has roots deeper than Article 222.
For, whereas Article 222 is inserted as a new concept in the present
Code in a laudable effort to obviate a sad and tragic spectacle
occasioned by a litigation between members of the same family.
Article 2035 firmly maintains the ancient injunction against
compromise on matters involving future support. And this is as it
should be. For, even as Article 222 requires earnest efforts at a
compromise and inability to reach one as a condition precedent to
the filing and maintenance of a suit "between the members of the
same family", that same article took good care to add: "subject to the
limitations in article 2035."

Plaintiffs ask for support past, present and future. There is also the
prayer for alimony pendente lite. Since the present action also
revolves on the right to future support and because compromise on
14
future support is prescribed, then the conclusion is irresistible that
an attempt at compromise of future support and failure thereof is not
a condition precedent to the filing of the present suit. It need not be
alleged in the complaint. The very opening statement in Article 2035
unmistakably confirms our view. It says that "(n)o compromise upon
15
the following question shall be valid: ... (4) Future support." We
cannot afford to give a loose view to this controlling statute. We may
not disregard it. To do so is to misread the law, to write off an explicit
congressional will, to cross the line which circumscribes courts of
justice and step into legislative area.
Mendoza vs. Court of Appeals, 1967B Phild. 82, is to be read as
controlling here. In that case, the wife filed in the Court of First
Instance of Nueva Ecija an action for support against her husband
who was then employed in a hospital in the United States.
Defendant, by counsel, moved to dismiss, for the reason that the
complaint failed to state a cause of action "because it contained no
allegation that earnest efforts toward a compromise have been made
before the filing of the suit, and invoking the provisions of Article 222
of the Civil Code of the Philippines." The Court of First Instance
refused to entertain the motion to dismiss. Defendant petitioned the
Court of Appeals for a writ of prohibition. The appellate court denied
the writ prayed for Defendant petitioned this Court for review. We
affirmed. In that first judicial test, this Court, speaking thru Mr. Justice
J.B.L. Reyes, held:
While we agree that petitioner's position represents a correct
statement of the general rule on the matter, we are
nevertheless constrained to hold that the Court of Appeals
and the Court of First Instance committed no error in
refusing to dismiss the complaint, for on its face, the same
involved a claim for future supportthat under Article 2035 of
the Civil Code of the Philippines can not be subject of a valid
compromise, and is, therefore, outside the sphere of
application of Article 222 of the Code upon which petitioner
relies. This appears from the last proviso of said Article 222,
already quoted....

xxx

xxx

xxx

Since no valid compromise is possible on these issues, a

showing of previous efforts to compromise them would be
superfluous.
It may be that the complaint asks for both future support and
support in arrears, as petitioner contends. But, the possibility
of compromise on the latter does not negate the existence of
a valid cause of action for future support, to which Article
16
222 can not apply.
Although the complaint herein seeks custody of minor children and
damages as well, the prime object is support. And, of importance, of
course, is future support. The reliefs sought are intimately related to
each other. They all spring from the fact that husband and wife are
separated from each other. So it is, that expediency dictates that
they be, as they are now, placed together in one complaint. For,
multiplicity of suits is not favored in law. Since one of the causes of
action, that for future support, may be lodged in court without the
compromise requisite in Article 222 of the Civil Code, the complaint
herein, as we have ruled in Mendoza, may not be dismissed.
We, accordingly, hold that the lower court erred in dismissing the
complaint.
3. But even on the assumption that it was error on the part of
plaintiffs to have failed to so allege, plaintiffs should not be barred
from making an amendment to correct it.
Parenthetically, after a responsive pleading has been served,
17
amendments may be made only upon leave of court. But, in the
furtherance of justice, the court "should be liberal in allowing
amendments to pleadings to avoid multiplicity of suits and in order
that the real controversies between the parties are presented, their
rights determined and the case decided on the merits without
18
unnecessary delay."

Thus, the instances wherein this Court considered allowance of an

amendment not justified are limited. As defendant correctly points
out, a proposed amendment may be refused when it confers
jurisdiction on the court in which it is filed, if the cause of action
19
originally set forth was not within that court's jurisdiction. An
amendment may also be refused when the cause of action is
20
substantially altered.
A typical case which merited refusal of an amendment is Rosario vs.
Carandang, supra. There, the original complaint was one for forcible
entry and detainer over which the Court of First Instance, where the
complaint was filed, had no jurisdiction. The amendment sought by
plaintiff was the inclusion of an allegation that the defendants were
claiming ownership over the land in dispute. The proposed
amendment would thus convert the case from one of forcible entry
and detainer into one of recovery of possession, which is within the
jurisdiction of the Court of First Instance. The court properly denied
the amendment.
The alleged defect is that the present complaint does not state a
cause of action. The proposed amendment seeks to complete it. An
amendment to the effect that the requirements of Article 222 have
been complied with does not confer jurisdiction upon the lower court.
With or without this amendment, the subject-matter of the action
remains as one for support, custody of children, and damages,
cognizable by the court below.
21

To illustrate, Tamayo vs. San Miguel Brewery, Inc., allowed an

amendment which "merely corrected a defect in the allegation of
plaintiff-appellant's cause of action, because as it then stood, the
original complaint stated no cause of action." We there ruled out as
inapplicable the holding in Campos Rueda Corporation vs. Bautista,
supra, that an amendment cannot be made so as to confer
jurisdiction on the court.
The lower court, in the interest of justice, should have allowed
plaintiffs to amend their complaint instead of granting the motion to
dismiss. This it could have done under Section 3 of Rule 16 of the
Rules of Court. For, the defect in the complaint is curable.

For the reasons given

(1) the orders of the lower court of February 22, 1965, March 30,
1965, and June 22, 1965 are hereby set aside; and
(2) the record of this case is hereby remanded to the Court of First
Instance of Rizal, Quezon City, Branch IX, with instructions to admit
the second amended complaint and to conduct further proceedings
not inconsistent with the opinion herein. Costs against defendant. So
ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
Fernando and Capistrano, JJ., concur.

Curso Elemental de Derecho Civil, 1955, Tomo IV, pag.

1001; emphasis supplied.
8

Comentarios al Codigo Civil Espanol, 1931, Tomo XII,

pags. 103, 107; emphasis supplied.
9

Article 290, Civil Code.

10

Article 301, Civil Code.

11

Par. 2, Article 1287, Civil Code.

12

Par. 2, Article 301, Civil Code.

13

38 O.G. 3158, cited in Padilla, Civil Code Anno., 1956 ed.,

Vol. IV, pp. 648-649.
Footnotes
1

Civil Case No. Q-7870, Court of First Instance of Rizal,

Quezon City, Branch IX, entitled "Margaret Ann Wainright
Versoza, et al., Plantiffs, versus Jose Ma. Versoza,
Defendant", for support and damages.
2

Article 217 of the Civil Code provides that family relations

shall include those (1) between husband and wife; (2)
between parent and child; (3) among other ascendants and
their descendants; and (4) among brothers and sisters.
Francisco, Comments on the Revised Rules of Court, Vol. I,
1956 ed., pp. 694-695.
3

Emphasis supplied.

Outline of Philippine Civil Law, 1956 ed., Vol. I, p. 222.

Codigo Civil, 1953, Tomo XXVIII, pag. 347.

Emphasis supplied.

14

Advincula vs. Advincula, L-19065, January 31. 1964, citing

Coral vs. Gallego, supra. See also: Velayo vs. Velayo, L23528, July 21, 1967, and Velayo vs. Velayo, L-14541,
March 30, 1960.
15

Emphasis supplied.

16

At pp. 84, 85; emphasis supplied.

17

Sections 2 and 3, Rule 10, Rules of Court.

18

Shaffer vs. Palma, 1968A Phild. 767, 777.

19

Rosario vs. Carandang, 96 Phil. 845, 850, 851; Campos

Rueda Corporation vs. Bautista, L-18453, September 29,
1962, cited in Tamayo vs. San Miguel Brewery, Inc., L17749, January 31, 1964.

20

Section 3, Rule 10, Rules of Court; Arches vs. Villaruz,

102 Phil. 661, 668. See: Guirao vs. Ver, 16 Supreme Court
Reports Anno. 638, 640-641; and Shaffer vs. Palma, supra.
21

Supra; Emphasis supplied.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-44903 April 22, 1977

RUFINO MAGBALETA, ROMANA B. MAGBALETA, AND
SUSANA G. BALDOVI, petitioners,
vs.
HON. ARSENIO M. GONONG AND CATALINO
MAGBALETA, respondents.
Gabino Magbaleta and Pacifico B. Tacub & Associates for
petitioners.
Castor Raval for private respondent.

BARREDO, J.:
Petition for certiorari, Prohibition and mandamus, with preliminary
injunction, against the orders of respondent judge in (Civil Case No.
633-IV of the Court of First Instance of Ilocos Norte dated August 31,
1916 and October 8, 1976 denying petitioners' motion to dismiss the
complaint filed against them notwithstanding that private respondent
is the brother of petitioner Rufino Magbaleta, the husband of the
other petitioner Romana B. Magbaleta, and the suit is to have a
parcel of land, covered by a Free Patent Title in the name of Rufino,
declared to be the property of private respondent, who claims in said

complaint that the third petitioner Susana G. Baldovi is trying to take

possession of said land from his representative, contending she had
bought the same from the spouses Rufino and Romana, said orders
having been issued allegedly in violation of Article 222 of the Civil
Code and Section 1 of Rule 16 of the Rules of Court, there being no
allegation in respondent's complaint that his suit, being between
members of the same family, earnest efforts towards a compromise
have been made before the same was filed.
Respondent judge premised his refusal to dismiss the complaint
upon the sole ground that one of the defendants, petitioner Susana
G. Baldovi, the alleged buyer of the land in dispute, is a stranger.
hence the legal provisions abovementioned do not apply.
The Court holds that this ruling of respondent judge is correct. While
indeed, 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" hence, "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" (Report of the Code Commission, p. 18), these
considerations do not, however, weigh enough to make it imperative
that such efforts to compromise should be a jurisdictional prerequisite for the maintenance of an action whenever a stranger to the
family is a party thereto, whether as a necessary or indispensable
one. It is not always that one who is alien to the family would be
willing to suffer the inconvenience of, much less relish, the delay and
the complications that wranglings between or among relatives more
often than not entail. Besides, it is neither practical nor fair that the
determination of the rights of a stranger to the family Who just
happened to have innocently acquired some kind of interest in any
right or property disputed among its members should be made to
depend on the way the latter would settle their differences among
themselves. We find no cause in the reason for being of the
provisions relied upon by petitioners to give it broader scope than the
literal import thereof warrants.

WHEREFORE, the petition is dismissed and the restraining order

issued on November 3, 1976 is hereby lifted. Costs against
petitioners.
Fernando (Chairman), Antonio, Aquino, and Concepcion, Jr., JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 137359

September 13, 2004

EDWIN N. TRIBIANA, petitioner,

vs.
LOURDES M. TRIBIANA, respondent
DECISION

Edwin and Lourdes are husband and wife who have lived together
since 1996 but formalized their union only on 28 October 1997. On
30 April 1998, Lourdes filed a petition for habeas corpus before the
RTC claiming that Edwin left their conjugal home with their daughter,
Khriza Mae Tribiana ("Khriza"). Edwin has since deprived Lourdes of
lawful custody of Khriza who was then only one (1) year and four (4)
months of age. Later, it turned out that Khriza was being held by
Edwins mother, Rosalina Tribiana ("Rosalina"). Edwin moved to
dismiss Lourdes petition on the ground that the petition failed to
allege that earnest efforts at a compromise were made before its
filing as required by Article 151 of the Family Code.
On 20 May 1998, Lourdes filed her opposition to Edwins motion to
dismiss claiming that there were prior efforts at a compromise, which
failed. Lourdes attached to her opposition a copy of the Certification
to File Action from their Barangay dated 1 May 1998.
On 18 May 1998, the RTC denied Edwins motion to dismiss and
reiterated a previous order requiring Edwin and his mother, Rosalina
to bring Khriza before the RTC. Upon denial of his motion for
reconsideration, Edwin filed with the Court of Appeals a petition for
prohibition and certiorari under Rule 65 of the Rules of Civil
Procedure. The appellate court denied Edwins petition on 2 July
1998. The appellate court also denied Edwins motion for
reconsideration.
Hence, this petition.

CARPIO, J.:
The Case
1

This petition for review on certiorari seeks to reverse the Court of

2
Appeals Resolutions dated 2 July 1998 and 18 January 1999 in CA3
G.R. SP No. 48049. The Court of Appeals affirmed the Order of the
Regional Trial Court, Branch 19, Bacoor, Cavite ("RTC"), denying
petitioner Edwin N. Tribianas ("Edwin") motion to dismiss the petition
for habeas corpus filed against him by respondent Lourdes Tribiana
("Lourdes").
Antecedent Facts

The Rulings of the RTC and the Court of Appeals

The RTC denied Edwins motion to dismiss on the ground that the
Certification to File Action attached by Lourdes to her opposition
clearly indicates that the parties attempted to reach a compromise
but failed.
The Court of Appeals upheld the ruling of the RTC and added that
under Section 412 (b) (2) of the Local Government Code, conciliation
proceedings before the barangay are not required in petitions
for habeas corpus.

The Issue
Edwin seeks a reversal and raises the following issue for resolution:
WHETHER THE TRIAL AND APPELLATE COURTS
SHOULD HAVE DISMISSED THE PETITION FOR HABEAS
CORPUS ON THE GROUND OF FAILURE TO COMPLY
WITH THE CONDITION PRECEDENT UNDER ARTICLE
151 OF THE FAMILY CODE.
The Ruling of the Court
The petition lacks merit.
Edwin argues that Lourdes failure to indicate in her petition
for habeas corpus that the parties exerted prior efforts to reach a
compromise and that such efforts failed is a ground for the petitions
dismissal under Section 1(j), Rule 16 of the 1997 Rules of Civil
4
Procedure. Edwin maintains that under Article 151 of the Family
Code, an earnest effort to reach a compromise is an indispensable
condition precedent. Article 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. 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.
Edwins arguments do not persuade us.
It is true that the petition for habeas corpus filed by Lourdes failed to
allege that she resorted to compromise proceedings before filing the
petition. However, in her opposition to Edwins motion to dismiss,
Lourdes attached a Barangay Certification to File Action dated 1 May
1998. Edwin does not dispute the authenticity of the Barangay

Certification and its contents. This effectively established that the

parties tried to compromise but were unsuccessful in their efforts.
However, Edwin would have the petition dismissed despite the
existence of the Barangay Certification, which he does not even
dispute.
Evidently, Lourdes has complied with the condition precedent under
Article 151 of the Family Code. A dismissal under Section 1(j) of
Rule 16 is warranted only if there is a failure to comply with a
condition precedent. Given that the alleged defect is a mere failure to
allege compliance with a condition precedent, the proper solution is
not an outright dismissal of the action, but an amendment under
5
Section 1 of Rule 10 of the 1997 Rules of Civil Procedure. It would
have been a different matter if Edwin had asserted that no efforts to
arrive at a compromise have been made at all.
In addition, the failure of a party to comply with a condition precedent
6
is not a jurisdictional defect. Such defect does not place the
controversy beyond the courts power to resolve. If a party fails to
raise such defect in a motion to dismiss, such defect is deemed
7
waived. Such defect is curable by amendment as a matter of right
without leave of court, if made before the filing of a responsive
8
9
pleading. A motion to dismiss is not a responsive pleading. More
importantly, an amendment alleging compliance with a condition
precedent is not a jurisdictional matter. Neither does it alter the
cause of action of a petition for habeas corpus. We have held that in
cases where the defect consists of the failure to state compliance
with a condition precedent, the trial court should order the
10
amendment of the complaint. Courts should be liberal in allowing
amendments to pleadings to avoid multiplicity of suits and to present
11
the real controversies between the parties.
Moreover, in a habeas corpus proceeding involving the welfare and
custody of a child of tender age, the paramount concern is to resolve
immediately the issue of who has legal custody of the child.
Technicalities should not stand in the way of giving such child of
12
tender age full protection. This rule has sound statutory basis in
Article 213 of the Family Code, which states, "No child under seven
years of age shall be separated from the mother unless the court
finds compelling reasons to order otherwise." In this case, the child

(Khriza) was only one year and four months when taken away from
the mother.
The Court of Appeals dismissed Edwins contentions by citing as an
additional ground the exception in Section 412 (b) (2) of the Local
Government Code ("LGC") on barangay conciliation, which states:
(b) Where the parties may go directly to court. the parties
may go directly to court in the following instances:
xxx
2) Where a person has otherwise been deprived of
personal
liberty
calling
for habeas
corpusproceedings;
xxx.
Under Rule 102 of the 1997 Rules of Civil Procedure, a party
may resort to a habeas corpus proceeding in two instances.
The first is when any person is deprived of liberty either
through illegal confinement or through detention. The second
instance is when custody of any person is withheld from the
person entitled to such custody. The most common case
falling under the second instance involves children who are
taken away from a parent by another parent or by a relative.
The case filed by Lourdes falls under this category.
The barangay conciliation requirement in Section 412 of the LGC
does not apply to habeas corpus proceedings where a person is
"deprived of personal liberty." In such a case, Section 412 expressly
authorizes the parties "to go directly to court" without need of any
conciliation proceedings. There is deprivation of personal liberty
warranting a petition for habeas corpus where the "rightful custody of
13
any person is withheld from the person entitled thereto." Thus, the
Court of Appeals did not err when it dismissed Edwins contentions
on the additional ground that Section 412 exempts petitions for
habeas corpus from the barangay conciliation requirement.

The petition for certiorari filed by Edwin questioning the RTCs denial
of his motion to dismiss merely states a blanket allegation of "grave
abuse of discretion." An order denying a motion to dismiss is
interlocutory and is not a proper subject of a petition for
14
certiorari. Even in the face of an error of judgment on the part of a
judge denying the motion to dismiss, certiorari will not lie. Certiorari
15
is not a remedy to correct errors of procedure. The proper remedy
against an order denying a motion to dismiss is to file an answer and
interpose as affirmative defenses the objections raised in the motion
to dismiss. It is only in the presence of extraordinary circumstances
evincing a patent disregard of justice and fair play where resort to a
16
petition for certiorari is proper.
The litigation of substantive issues must not rest on a prolonged
contest on technicalities. This is precisely what has happened in this
case. The circumstances are devoid of any hint of the slightest
abuse of discretion by the RTC or the Court of Appeals. A party must
not be allowed to delay litigation by the sheer expediency of filing a
petition for certiorari under Rule 65 based on scant allegations of
grave abuse. More importantly, any matter involving the custody of a
child of tender age deserves immediate resolution to protect the
childs welfare.
WHEREFORE, we DISMISS the instant petition for lack of merit.
We AFFIRM the Resolutions of the Court of Appeals dated 2 July
1998 and 18 January 1999 in CA-G.R. SP No. 48049. The Regional
Trial Court, Branch 19, Bacoor, Cavite is ordered to act with dispatch
in resolving the petition for habeas corpus pending before it. This
decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Davide, Jr., Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.
Footnotes
1

Under Rule 45 of the 1997 Rules of Civil Procedure.

Penned by Associate Justice Romeo J. Callejo, Sr. with

Associate Justices Angelina Sandoval-Gutierrez and
Mariano M. Umali concurring.

10

Versoza, et al., v. Versoza, 135 Phil. 84 (1968)

11

Sps. Tirona v. Hon. Alejo, 419 Phil. 285 (2001).

Penned by Judge Edelwina C. Pastoral.

12

Macazo and Nuez v. Nuez, 105 Phil. 55 (1959).

Section 1(j) of Rule 16 of the Rules of Court states:

13

Section 1, Rule 102 of the 1997 Rules of Civil Procedure.

SECTION 1. Grounds. Within the time for but

before filing the answer to the complaint or pleading
asserting a claim, a motion to dismiss may be made
on any of the following grounds:
xxx
(j) That a condition precedent for filing the
claim has not been complied with.
5

Section 1 of Rule 10 of the 1997 Rules of Civil Procedure

states:
SECTION 1. Amendments in general. Pleadings
may be amended by adding or striking out an
allegation or the name of any party, or by correcting
a mistake in the name of a party or a mistaken or
inadequate allegation or description in any other
respect, so that the actual merits of the controversy
may speedily be determined, without regard to
technicalities, and in the most expeditious and
inexpensive manner.
6

Ebol, et al. v. Judge Amin, et al., 220 Phil. 114 (1985).

Soto v. Jareno, 228 Phil. 117 (1986).

Section 2, Rule 10 of the 1997 Rules of Civil Procedure.

Breslin v. Luzon Stevedoring Co., 84 Phil. 618 (1949).

14

Santiago Land Development Company v. Court of

Appeals, G.R. No. 103922, 9 July 1996, 258 SCRA 535.
15

16

Ibid.

Quisumbing v. Gumban, G.R. No. 85156, 5 February

1991, 193 SCRA 520.

for cancellation of mortgage contending that he did not secure any

loan from petitioner, nor did he sign or execute any contract of
mortgage in its favor; that his wife, acting in conspiracy with Hiyas
and the spouses Owe, who were the ones that benefited from the
loan, made it appear that he signed the contract of mortgage; that he
could not have executed the said contract because he was then
4
working abroad.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. NO. 154132 August 31, 2006
HIYAS SAVINGS and LOAN BANK, INC. Petitioner,
vs.
HON. EDMUNDO T. ACUA, in his capacity as Pairing Judge of
Regional Trial Court, Branch 122, Caloocan City, and ALBERTO
MORENO, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari under Rule 65 of the Rules
1
of Court seeking to nullify the Orders of the Regional Trial Court
2
(RTC) of Caloocan City, Branch 122, dated November 8, 2001 and
3
May 7, 2002 denying herein petitioners Motion to Dismiss and
Motion for Partial Reconsideration, respectively.
The antecedent facts are as follows:
On November 24, 2000, Alberto Moreno (private respondent) filed
with the RTC of Caloocan City a complaint against Hiyas Savings
and Loan Bank, Inc. (petitioner), his wife Remedios, the spouses
Felipe and Maria Owe and the Register of Deeds of Caloocan City

On May 17, 2001, petitioner filed a Motion to Dismiss on the ground

that private respondent failed to comply with Article 151 of the Family
Code wherein it is provided that 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. Petitioner contends that
since the complaint does not contain any fact or averment that
earnest efforts toward a compromise had been made prior to its
institution, then the complaint should be dismissed for lack of cause
5
of action.
Private respondent filed his Comment on the Motion to Dismiss with
Motion to Strike Out and to Declare Defendants in Default. He
argues that in cases where one of the parties is not a member of the
same family as contemplated under Article 150 of the Family Code,
failure to allege in the complaint that earnest efforts toward a
compromise had been made by the plaintiff before filing the
complaint is not a ground for a motion to dismiss. Alberto asserts
that since three of the party-defendants are not members of his
family the ground relied upon by Hiyas in its Motion to Dismiss is
inapplicable and unavailable. Alberto also prayed that defendants be
6
declared in default for their failure to file their answer on time.
Petitioner filed its Reply to the Comment with Opposition to the
7
Motion to Strike and to Declare Defendants in Default. Private
8
respondent, in turn, filed his Rejoinder.
On November 8, 2001, the RTC issued the first of its assailed Orders
denying the Motion to Dismiss, thus:

The court agrees with plaintiff that earnest efforts towards a

compromise is not required before the filing of the instant case
considering that the above-entitled case involves parties who are
strangers to the family. As aptly pointed out in the cases cited by
plaintiff, Magbaleta v. G[o]nong, L-44903, April 25, 1977 and Mendez
v. [B]iangon, L-32159, October 28, 1977, if one of the parties is a
stranger, failure to allege in the complaint that earnest efforts
towards a compromise had been made by plaintiff before filing the
complaint, is not a ground for motion to dismiss.

I. Public respondent committed grave abuse of discretion amounting

to lack or in excess of jurisdiction when he ruled that lack of earnest
efforts toward a compromise is not a ground for a motion to dismiss
in suits between husband and wife when other parties who are
strangers to the family are involved in the suit. Corollarily, public
respondent committed grave abuse of discretion amounting to lack
or in excess of jurisdiction when he applied the decision in the case
of Magbaleta v. Gonong instead of the ruling in the case of De
Guzman v. Genato.

Insofar as plaintiffs prayer for declaration of default against

defendants, the same is meritorious only with respect to defendants
Remedios Moreno and the Register of Deeds of Kaloocan City. A
declaration of default against defendant bank is not proper
considering that the filing of the Motion to Dismiss by said defendant
operates to stop the running of the period within which to file the
9
required Answer.

II. Public respondent committed grave abuse of discretion amounting

to lack or in excess of jurisdiction when he ruled that a party who is a
stranger to the family of the litigants could not invoke lack of earnest
efforts toward a compromise as a ground for the dismissal of the
15
complaint.

10

Petitioner filed a Motion for Partial Reconsideration. Private

11
respondent filed his Comment, after which petitioner filed its
12
13
Reply. Thereafter, private respondent filed his Rejoinder.
On May 7, 2002, the RTC issued the second assailed Order denying
petitioners Motion for Partial Reconsideration. The trial court ruled:
Reiterating the resolution of the court, dated November 8, 2001,
considering that the above-entitled case involves parties who are
strangers to the family, failure to allege in the complaint that earnest
efforts towards a compromise were made by plaintiff, is not a ground
for a Motion to Dismiss.
Additionally, the court agrees with plaintiff that inasmuch as it is
defendant Remedios Moreno who stands to be benefited by Art. 151
of the Family Code, being a member of the same family as that of
14
plaintiff, only she may invoke said Art. 151.
xxx
Hence, the instant Petition for Certiorari on the following grounds:

At the outset, the Court notes that the instant Petition

for Certiorari should have been filed with the Court of Appeals (CA)
and not with this Court pursuant to the doctrine of hierarchy of
courts. Reiterating the established policy for the strict observance of
this doctrine, this Court held in Heirs of Bertuldo Hinog v.
16
Melicor that:
Although the Supreme Court, Court of Appeals and the Regional
Trial Courts have concurrent jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction,
such concurrence does not give the petitioner unrestricted freedom
of choice of court forum. As we stated in People v. Cuaresma:
This Court's original jurisdiction to issue writs of certiorari is not
exclusive. It is shared by this Court with Regional Trial Courts and
with the Court of Appeals. This concurrence of jurisdiction is not,
however, to be taken as according to parties seeking any of the writs
an absolute, unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all a hierarchy of
courts. That hierarchy is determinative of the venue of appeals, and
also serves as a general determinant of the appropriate forum for
petitions for the extraordinary writs. A becoming regard for that
judicial hierarchy most certainly indicates that petitions for the

issuance of extraordinary writs against first level ("inferior") courts

should be filed with the Regional Trial Court, and those against the
latter, with the Court of Appeals. A direct invocation of the Supreme
Courts original jurisdiction to issue these writs should be allowed
only when there are special and important reasons therefor, clearly
and specifically set out in the petition. This is [an] established policy.
It is a policy necessary to prevent inordinate demands upon the
Courts time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-crowding
of the Courts docket.
The rationale for this rule is two-fold: (a) it would be an imposition
upon the precious time of this Court; and (b) it would cause an
inevitable and resultant delay, intended or otherwise, in the
adjudication of cases, which in some instances had to be remanded
or referred to the lower court as the proper forum under the rules of
procedure, or as better equipped to resolve the issues because this
Court is not a trier of facts.
Thus, this Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts, and
exceptional and compelling circumstances, such as cases of national
interest and of serious implications, justify the availment of the
extraordinary remedy of writ of certiorari, calling for the exercise of its
primary jurisdiction. Exceptional and compelling circumstances were
held present in the following cases: (a)Chavez vs. Romulo on
citizens right to bear arms; (b) Government of the United States of
America vs. Purgananon bail in extradition proceedings;
(c) Commission on Elections vs. Quijano-Padilla on government
contract involving modernization and computerization of voters
registration list; (d) Buklod ng Kawaning EIIB vs. Zamora on status
and existence of a public office; and (e) Fortich vs. Corona on the socalled "Win-Win Resolution" of the Office of the President which
17
modified the approval of the conversion to agro-industrial area.
In the present case, petitioner failed to advance a satisfactory
explanation as to its failure to comply with the principle of judicial
hierarchy. There is no reason why the instant petition could not have
been brought before the CA. On this basis, the instant petition should
be dismissed.

And even if this Court passes upon the substantial issues raised by
petitioner, the instant petition likewise fails for lack of merit.
Restating its arguments in its Motion for Partial Reconsideration,
petitioner argues that what is applicable to the present case is the
18
Courts decision in De Guzman v. Genato and not in Magbaleta v.
19
Gonong, the former being a case involving a husband and wife
while the latter is between brothers.
The Court is not persuaded.
Article 151 of the Family Code provides as follows:
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.
Article 222 of the Civil Code from which Article 151 of the Family
Code was taken, essentially contains the same provisions, to wit:
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
20
to the limitations in Article 2035.
The Code Commission that drafted Article 222 of the Civil Code from
which Article 151 of the Family Code was taken explains:
[I]t is difficult to imagine a sadder and more tragic spectacle than a
litigation between members of the same family. It is necessary that
every effort should be made toward a compromise before a litigation
is allowed to breed hate and passion in the family. It is known that a

lawsuit between close relatives generates deeper bitterness than

21
between strangers.
In Magbaleta, the case involved brothers and a stranger to the
family, the alleged owner of the subject property. The Court, taking
into consideration the explanation made by the Code Commision in
its report, ruled that:
[T]hese considerations do not, however, weigh enough to make it
imperative that such efforts to compromise should be a jurisdictional
pre-requisite for the maintenance of an action whenever a stranger
to the family is a party thereto, whether as a necessary or
indispensable one. It is not always that one who is alien to the family
would be willing to suffer the inconvenience of, much less relish, the
delay and the complications that wranglings between or among
relatives more often than not entail. Besides, it is neither practical nor
fair that the determination of the rights of a stranger to the family who
just happened to have innocently acquired some kind of interest in
any right or property disputed among its members should be made to
depend on the way the latter would settle their differences among
22
themselves. x x x.
Hence, once a stranger becomes a party to a suit involving members
of the same family, the law no longer makes it a condition precedent
that earnest efforts be made towards a compromise before the action
can prosper.
In the subsequent case of De Guzman, the case involved spouses
and the alleged paramour of the wife. The Court ruled that due to the
efforts exerted by the husband, through the Philippine Constabulary,
to confront the wife, there was substantial compliance with the law,
thereby implying that even in the presence of a party who is not a
family member, the requirements that earnest efforts towards a
compromise have been exerted must be complied with, pursuant to
Article 222 of the Civil Code, now Article 151 of the Family Code.
While De Guzman was decided after Magbaleta, the principle
enunciated in the Magbaleta is the one that now prevails because it
is reiterated in the subsequent cases of Gonzales v.

23

24

Lopez, Esquivias v. Court of Appeals, Spouses Hontiveros v.

25
Regional Trial Court, Branch 25, Iloilo City, and the most recent
26
case of Martinez v. Martinez. Thus, Article 151 of the Family Code
applies to cover when the suit is exclusively between or among
family members.
The Court finds no cogent reason why the ruling in Magbaleta as
well as in all of the aforementioned cases should not equally apply to
suits involving husband and wife.
Petitioner makes much of the fact that the present case involves a
husband and his wife while Magbaleta is a case between brothers.
However, the Court finds no specific, unique, or special circumstance
that would make the ruling in Magbaleta as well as in the
abovementioned cases inapplicable to suits involving a husband and
his wife, as in the present case. In the first place, Article 151 of the
Family Code and Article 222 of the Civil Code are clear that the
provisions therein apply to suits involving "members of the same
family" as contemplated under 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.
and Article 217 of the Civil Code, to wit:
ART. 217. Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;

(3) Among other ascendants and their descendants;

MINITA V. CHICO-NAZARIO

(4) Among brothers and sisters.

Petitioner also contends that the trial court committed grave abuse of
discretion when it ruled that petitioner, not being a member of the
same family as respondent, may not invoke the provisions of Article
151 of the Family Code.
Suffice it to say that since the Court has ruled that the requirement
under Article 151 of the Family Code is applicable only in cases
which are exclusively between or among members of the same
family, it necessarily follows that the same may be invoked only by a
party who is a member of that same family.

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the
opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice

WHEREFORE, the instant Petition for Certiorari is DISMISSED for

lack of merit.
Costs against petitioner.

Footnotes

SO ORDERED.

Penned by Judge Edmundo T. Acua.

MA. ALICIA AUSTRIA-MARTINEZ

Records, p. 45.

Associate Justice

Id. at 73.

WE CONCUR:

Id. at 1.

Id. at 16.

Id. at 22.

Id. at 28.

Id. at 39.

Id. at 45-46.

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO, ROMEO J. CALLEJO, SR.
Associate Justice Associate Justice

10

Id. at 47.

11

Id. at 61.

12

Id. at 65.

13

Id. at 70.

14

Id. at 74.

15

Rollo, p. 9.

16

G.R. No. 140954, April 12, 2005, 455 SCRA 460.

17

Id. at 470-472.

18

G.R. No. L-42260, April 30, 1979, 89 SCRA 674.

19

G.R. No. L-44903, April 22, 1977, 76 SCRA 511.

20

ART. 2035. No compromise upon the following questions

shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.

21

Report of the Code Commission, p. 18 cited in The Civil

Code of the Philippines and Family Code, Vol. 1, 1990 ed.,
by Ramon C. Aquino and Carolina Grio-Aquino, p. 272.
22

Supra note 19, at 513.

23

G.R. No. L-48068, April 15, 1988, 160 SCRA 346.

24

339 Phil. 184 (1997).

25

368 Phil. 653 (1999).

26

G.R. No. 162084, June 28, 2005, 461 SCRA 562.

3. Brothers and sisters and brothers-in-law and sisters-inlaw, if living together.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 181409

February 11, 2010

INTESTATE ESTATE OF MANOLITA GONZALES VDA. DE

CARUNGCONG, represented by MEDIATRIX CARUNGCONG, as
Administratrix, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and WILLIAM
SATO, Respondents.
DECISION
CORONA, J.:
Article 332 of the Revised Penal Code provides:
ART. 332. Persons exempt from criminal liability. No criminal, but
only civil liability shall result from the commission of the crime of
theft, swindling, or malicious mischief committed or caused mutually
by the following persons:
1. Spouses, ascendants and descendants, or relatives by
affinity in the same line;
2. The widowed spouse with respect to the property which
belonged to the deceased spouse before the same shall
have passed into the possession of another; and

The exemption established by this article shall not be applicable to

strangers participating in the commission of the crime. (emphasis
supplied)
For purposes of the aforementioned provision, is the relationship by
affinity created between the husband and the blood relatives of his
wife (as well as between the wife and the blood relatives of her
husband) dissolved by the death of one spouse, thus ending the
marriage which created such relationship by affinity? Does the
beneficial application of Article 332 cover the complex crime of
estafa thru falsification?
Mediatrix G. Carungcong, in her capacity as the duly appointed
1
administratrix of petitioner intestate estate of her deceased mother
Manolita Gonzales vda. de Carungcong, filed a complaint2
affidavit for estafa against her brother-in-law, William Sato, a
Japanese national. Her complaint-affidavit read:
I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino, of legal
age, single, and resident of Unit 1111, Prince Gregory Condominium,
105 12th Avenue, Cubao, Quezon City, after being duly sworn,
depose and state that:
1. I am the duly appointed Administratrix of the Intestate
Estate of Manolita Carungcong Y Gonzale[s], docketed as
Spec. Procs. No. [Q]-95-23621[,] Regional Trial Court of
Quezon City, Branch 104, being one (1) of her surviving
daughters. Copy of the Letters of Administration dated June
22, 1995 is hereto attached as Annex "A" to form an integral
part hereof.
2. As such Administratrix, I am duty bound not only to
preserve the properties of the Intestate Estate of Manolita
Carungcong Y Gonzale[s], but also to recover such funds
and/or properties as property belonging to the estate but are
presently in the possession or control of other parties.

3. After my appointment as Administratrix, I was able to

confer with some of the children of my sister Zenaida
Carungcong Sato[,] who predeceased our mother Manolita
Carungcong Y Gonzales, having died in Japan in 1991.
4. In my conference with my nieces Karen Rose Sato and
Wendy Mitsuko Sato, age[d] 27 and 24 respectively, I was
able to learn that prior to the death of my mother Manolita
Carungcong Y Gonzale[s], [s]pecifically on o[r] about
November 24, 1992, their father William Sato, through
fraudulent misrepresentations, was able to secure the
signature and thumbmark of my mother on a Special Power
of Attorney whereby my niece Wendy Mitsuko Sato, who
was then only twenty (20) years old, was made her attorneyin-fact, to sell and dispose four (4) valuable pieces of land in
Tagaytay City. Said Special Power of Attorney, copy of
which is attached as ANNEX "A" of the Affidavit of Wendy
Mitsuko Sato, was signed and thumbmark[ed] by my mother
because William Sato told her that the documents she was
being made to sign involved her taxes. At that time, my
mother was completely blind, having gone blind almost ten
(10) years prior to November, 1992.
5. The aforesaid Special Power of Attorney was signed by
my mother in the presence of Wendy, my other niece
Belinda Kiku Sato, our maid Mana Tingzon, and Governor
Josephine Ramirez who later became the second wife of my
sisters widower William Sato.
6. Wendy Mitsuko Sato attests to the fact that my mother
signed the document in the belief that they were in
connection with her taxes, not knowing, since she was blind,
that the same was in fact a Special Power of Attorney to sell
her Tagaytay properties.
7. On the basis of the aforesaid Special Power of Attorney,
William Sato found buyers for the property and made my
niece Wendy Mitsuko Sato sign three (3) deeds of absolute
sale in favor of (a) Anita Ng (Doc. 2194, Page No. 41, Book

No. V, Series of 1992 of Notary Public Vicente B. Custodio),

(b) Anita Ng (Doc. No. 2331, Page No. 68, Book No. V,
Series of 1992 of Notary Public Vicente B. Custodio) and (c)
Ruby Lee Tsai (Doc. No. II, Page No. 65, Book No. II, Series
of 1993 of Notary Public Toribio D. Labid). x x x
8. Per the statement of Wendy Mitsuko C. Sato, the
considerations appearing on the deeds of absolute sale were
not the true and actual considerations received by her father
William Sato from the buyers of her grandmothers
properties.
She
attests
that
Anita
Ng
actually
paid P7,000,000.00 for the property covered by TCT No.
3148 and P7,034,000.00 for the property covered by TCT
No. 3149. All the aforesaid proceeds were turned over to
William Sato who undertook to make the proper accounting
thereof to my mother, Manolita Carungcong Gonzale[s].
9. Again, per the statement of Wendy Mitsuko C. Sato, Ruby
Lee Tsai paid P8,000,000.00 for the property covered by Tax
Declaration No. GR-016-0735, and the proceeds thereof
were likewise turned over to William Sato.
10. The considerations appearing on the deeds of sale were
falsified as Wendy Mitsuko C. Sato has actual knowledge of
the true amounts paid by the buyers, as stated in her
Affidavit, since she was the signatory thereto as the
attorney-in-fact of Manolita Carungcong Y Gonzale[s].
11. Wendy was only 20 years old at the time and was not in
any position to oppose or to refuse her fathers orders.
12. After receiving the total considerations for the properties
sold under the power of attorney fraudulently secured from
my mother, which total P22,034,000.00, William Sato failed
to account for the same and never delivered the proceeds to
Manolita Carungcong Y Gonzale[s] until the latter died on
June 8, 1994.

13. Demands have been made for William Sato to make an

accounting and to deliver the proceeds of the sales to me as
Administratrix of my mothers estate, but he refused and
failed, and continues to refuse and to fail to do so, to the
damage and prejudice of the estate of the deceased
Manolita Carungcong Y Gonzale[s] and of the heirs which
include his six (6) children with my sister Zenaida
3
Carungcong Sato. x x x
Wendy Mitsuko Satos supporting affidavit and the special power of
attorney allegedly issued by the deceased Manolita Gonzales vda.
de Carungcong in favor of Wendy were attached to the complaintaffidavit of Mediatrix.
In a resolution dated March 25, 1997, the City Prosecutor of Quezon
4
City dismissed the complaint. On appeal, however, the Secretary of
Justice reversed and set aside the resolution dated March 25, 1997
and directed the City Prosecutor of Quezon City to file an Information
against Sato for violation of Article 315, paragraph 3(a) of the
5
Revised Penal Code. Thus, the following Information was filed
6
against Sato in the Regional Trial Court of Quezon City, Branch 87:
INFORMATION
The undersigned accuses WILLIAM SATO of the crime of ESTAFA
under Article 315[,] par. 3(a) of the Revised Penal Code, committed
as follows:
That on or about the 24th day of November, 1992, in Quezon City,
Philippines, the above-named accused, by means of deceit, did, then
and there, wil[l]fully, unlawfully and feloniously defraud MANOLITA
GONZALES VDA. DE CARUNGCONG in the following manner, to
wit: the said accused induced said Manolita Gonzales Vda. De
Carungcong[,] who was already then blind and 79 years old[,] to sign
and thumbmark a special power of attorney dated November 24,
1992 in favor of Wendy Mitsuko C. Sato, daughter of said accused,
making her believe that said document involved only her taxes,
accused knowing fully well that said document authorizes Wendy
Mitsuko C. Sato, then a minor, to sell, assign, transfer or otherwise

dispose of to any person or entity of her properties all located at

Tagaytay City, as follows:
1. One Thousand Eight Hundred Seven(ty) One (1,871)
square meters more or less and covered by T.C.T. No. 3147;
2. Five Hundred Forty (540) square meters more or less and
covered by T.C.T. No. 3148 with Tax Declaration No. GR016-0722, Cadastral Lot No. 7106;
3. Five Hundred Forty (540) square meters more or less and
covered by T.C.T. No. 3149 with Tax Declaration No. GR016-0721, Cadastral Lot No. 7104;
4. Eight Hundred Eighty Eight (888) square meters more or
less with Tax Declaration No. GR-016-1735, Cadastral Lot
No. 7062;
registered in the name of Manolita Gonzales Vda. De Carungcong,
and once in the possession of the said special power of attorney and
other pertinent documents, said accused made Wendy Mitsuko Sato
sign the three (3) Deeds of Absolute Sale covering Transfer
Certificate of Title [TCT] No. 3148 for P250,000.00, [TCT] No. 3149
forP250,000.00 and [Tax Declaration] GR-016-0735 for P650,000.00
and once in possession of the proceeds of the sale of the above
properties, said accused, misapplied, misappropriated and converted
the same to his own personal use and benefit, to the damage and
prejudice of the heirs of Manolita Gonzales Vda. De Carungcong
who died in 1994.
Contrary to law.

Subsequently, the prosecution moved for the amendment of the

Information so as to increase the amount of damages
from P1,150,000, the total amount stated in the deeds of sale,
to P22,034,000, the actual amount received by Sato.

Sato moved for the quashal of the Information, claiming that under
Article 332 of the Revised Penal Code, his relationship to the person
allegedly defrauded, the deceased Manolita who was his mother-inlaw, was an exempting circumstance.
The prosecution disputed Satos motion in an opposition dated
March 29, 2006.
8

Such exempting circumstance is applicable herein.

WHEREFORE, finding the Motion to Quash Original Information
meritorious, the same is GRANTED and, as prayed for, case is
hereby DISMISSED.
9

SO ORDERED. (underlining supplied in the original)

In an order dated April 17, 2006, the trial court granted Satos
motion and ordered the dismissal of the criminal case:

The prosecutions motion for reconsideration

11
order dated June 2, 2006.

The Trial Prosecutors contention is that the death of the wife of the
accused severed the relationship of affinity between accused and his
mother-in-law. Therefore, the mantle of protection provided to the
accused by the relationship is no longer obtaining.

Dissatisfied with the trial courts rulings, the intestate estate of

Manolita, represented by Mediatrix, filed a petition for certiorari in the
12
13
Court of Appeals which, however, in a decision dated August 9,
2007, dismissed it. It ruled:

A judicious and thorough examination of Article 332 of the Revised

Penal Code convinces this Court of the correctness of the contention
of the [d]efense. While it is true that the death of Zenaida
Carungcong-Sato has extinguished the marriage of accused with
her, it does not erase the fact that accused and Zenaidas mother,
herein complainant, are still son[-in-law] and mother-in-law and they
remained son[-in-law] and mother-in-law even beyond the death of
Zenaida.

[W]e sustain the finding of [the trial court] that the death of Zenaida
did not extinguish the relationship by affinity between her husband,
private respondent Sato, and her mother Manolita, and does not bar
the application of the exempting circumstance under Article 332(1) of
the Revised Penal Code in favor of private respondent Sato.

Article 332(1) of the Revised Penal Code, is very explicit and

states no proviso. "No criminal, but only civil liability[,] shall result
from the commission of the crime of theft, swindling or malicious
mischief committed or caused mutually by xxx 1) spouses,
ascendants and descendants, or relatives by affinity in the same
line."
Article 332, according to Aquino, in his Commentaries [to] Revised
Penal Code, preserves family harmony and obviates scandal, hence
even in cases of theft and malicious mischief, where the crime is
committed by a stepfather against his stepson, by a grandson
against his grandfather, by a son against his mother, no criminal
liability is incurred by the accused only civil (Vicente Alavare, 52 Phil.
65; Adame, CA 40 OG 12th Supp. 63;Cristobal, 84 Phil. 473).

10

was denied in an

We further agree with the submission of the [Office of the Solicitor

General (OSG)] that nothing in the law and/or existing jurisprudence
supports the argument of petitioner that the fact of death of Zenaida
dissolved the relationship by affinity between Manolita and private
respondent Sato, and thus removed the protective mantle of Article
332 of the Revised Penal Code from said private respondent; and
that notwithstanding the death of Zenaida, private respondent Sato
remains to be the son-in-law of Manolita, and a brother-in-law of
petitioner administratrix. As further pointed out by the OSG, the filing
of the criminal case for estafa against private respondent Sato
already created havoc among members of the Carungcong and Sato
families as private respondents daughter Wendy Mitsuko Sato
joined cause with her aunt [Mediatrix] Carungcong y Gonzales, while
two (2) other children of private respondent, William Francis and
Belinda Sato, took the side of their father.

There is a dearth of jurisprudence and/or commentaries elaborating

on the provision of Article 332 of the Revised Penal Code. However,
from the plain language of the law, it is clear that the exemption from
criminal liability for the crime of swindling (estafa) under Article 315
of the Revised Penal Code applies to private respondent Sato, as
son-in-law of Manolita, they being "relatives by affinity in the same
line" under Article 332(1) of the same Code. We cannot draw the
distinction that following the death of Zenaida in 1991, private
respondent Sato is no longer the son-in-law of Manolita, so as to
exclude the former from the exempting circumstance provided for in
Article 332 (1) of the Revised Penal Code.
Ubi lex non distinguit nec nos distinguere debemos. Basic is the rule
in statutory construction that where the law does not distinguish, the
courts should not distinguish. There should be no distinction in the
application of law where none is indicated. The courts could only
distinguish where there are facts or circumstances showing that the
lawgiver intended a distinction or qualification. In such a case, the
courts would merely give effect to the lawgivers intent. The solemn
power and duty of the Court to interpret and apply the law does not
include the power to correct by reading into the law what is not
written therein.
Further, it is an established principle of statutory construction that
penal laws are strictly construed against the State and liberally in
favor of the accused. Any reasonable doubt must be resolved in
favor of the accused. In this case, the plain meaning of Article 332
(1) of the Revised Penal Codes simple language is most favorable
14
to Sato.
The appellate court denied reconsideration.

15

Hence, this petition.

Petitioner contends that the Court of Appeals erred in not reversing

the orders of the trial court. It cites the commentary of Justice Luis B.
Reyes in his book on criminal law that the rationale of Article 332 of
the Revised Penal Code exempting the persons mentioned therein
from criminal liability is that the law recognizes the presumed coownership of the property between the offender and the
offended party. Here, the properties subject of the estafa case were

owned by Manolita whose daughter, Zenaida Carungcong-Sato

(Satos wife), died on January 28, 1991. Hence, Zenaida never
became a co-owner because, under the law, her right to the
three parcels of land could have arisen only after her mothers
death. Since Zenaidapredeceased her mother, Manolita, no such
right came about and the mantle of protection provided to Sato
by the relationship no longer existed.
Sato counters that Article 332 makes no distinction that the
relationship may not be invoked in case of death of the spouse at the
time the crime was allegedly committed. Thus, while the death of
Zenaida extinguished her marriage with Sato, it did not dissolve the
son-in-law and mother-in-law relationship between Sato and
Zenaidas mother, Manolita.
For his part, the Solicitor General maintains that Sato is covered by
the exemption from criminal liability provided under Article 332.
Nothing in the law and jurisprudence supports petitioners claim that
Zenaidas death dissolved the relationship by affinity between Sato
and Manolita. As it is, the criminal case against Sato created havoc
among the members of the Carungcong and Sato families, a
situation sought to be particularly avoided by Article 332s provision
exempting a family member committing theft, estafa or malicious
mischief from criminal liability and reducing his/her liability to the civil
aspect only.
The petition has merit.
The resolution of this case rests on the interpretation of Article 332 of
the Revised Penal Code. In particular, it calls for the determination of
the following: (1) the effect of death on the relationship by affinity
created between a surviving spouse and the blood relatives of the
deceased spouse and (2) the extent of the coverage of Article 332.
Effect of Death on Relationship By Affinity as Absolutory Cause
16

Article 332 provides for an absolutory cause in the crimes of theft,

estafa (or swindling) and malicious mischief. It limits the

responsibility of the offender to civil liability and frees him from

criminal liability by virtue of his relationship to the offended party.
In connection with the relatives mentioned in the first paragraph, it
has been held that included in the exemptions are parents-in-law,
17
stepparents and adopted children. By virtue thereof, no criminal
liability is incurred by the stepfather who commits malicious mischief
18
against his stepson; by the stepmother who commits theft against
19
her stepson; by the stepfather who steals something from his
20
21
stepson; by the grandson who steals from his grandfather; by the
22
accused who swindles his sister-in-law living with him; and by the
23
son who steals a ring from his mother.
Affinity is the relation that one spouse has to the blood relatives of
the other spouse. It is a relationship by marriage or
24

a familial relation resulting from marriage. It is a fictive kinship, a

fiction created by law in connection with the institution of marriage
and family relations.
If marriage gives rise to ones relationship by affinity to the blood
relatives of ones spouse, does the extinguishment of marriage by
the death of the spouse dissolve the relationship by affinity?
Philippine jurisprudence has no previous encounter with the issue
that confronts us in this case. That is why the trial and appellate
courts acknowledged the "dearth of jurisprudence and/or
commentaries" on the matter. In contrast, in the American legal
system, there are two views on the subject. As one Filipino author
observed:
In case a marriage is terminated by the death of one of the spouses,
there are conflicting views. There are some who believe that
relationship by affinity is not terminated whether there are children or
not in the marriage (Carman vs. Newell, N.Y. 1 [Denio] 25, 26).
However, the better view supported by most judicial authorities in
other jurisdictions is that, if the spouses have no living issues or
children and one of the spouses dies, the relationship by affinity is
dissolved. It follows the rule that relationship by affinity ceases with

the dissolution of the marriage which produces it (Kelly v. Neely, 12

Ark. 657, 659, 56 Am Dec. 288). On the other hand, the relationship
by affinity is continued despite the death of one of the spouses
where there are living issues or children of the marriage "in whose
veins the blood of the parties are commingled, since the relationship
of affinity was continued through the medium of the issue of the
25
marriage" (Paddock vs. Wells, 2 Barb. Ch. 331, 333).
The first view (the terminated affinity view) holds that relationship by
affinity terminates with the dissolution of the marriage either by death
or divorce which gave rise to the relationship of affinity between the
26
parties. Under this view, the relationship by affinity is simply
coextensive and coexistent with the marriage that produced it. Its
duration is indispensably and necessarily determined by the
marriage that created it. Thus, it exists only for so long as the
marriage subsists, such that the death of a spouse ipso facto ends
the relationship by affinity of the surviving spouse to the deceased
spouses blood relatives.
The first view admits of an exception. The relationship by affinity
continues even after the death of one spouse when there is a
27
surviving issue. The rationale is that the relationship is preserved
because of the living issue of the marriage in whose veins the blood
28
of both parties is commingled.
The second view (the continuing affinity view) maintains that
relationship by affinity between the surviving spouse and the kindred
of the deceased spouse continues even after the death of the
deceased spouse, regardless of whether the marriage produced
29
children or not. Under this view, the relationship by affinity endures
even after the dissolution of the marriage that produced it as a result
of the death of one of the parties to the said marriage. This view
considers that, where statutes have indicated an intent to benefit
step-relatives or in-laws, the "tie of affinity" between these people
and their relatives-by-marriage is not to be regarded as terminated
30
upon the death of one of the married parties.

After due consideration and evaluation of the relative merits of the

two views, we hold that the second view is more consistent with the
language and spirit of Article 332(1) of the Revised Penal Code.
First, the terminated affinity view is generally applied in
31
cases of jury disqualification and incest. On the other hand,
the continuing affinity view has been applied in the
interpretation of laws that intend to benefit step-relatives or
in-laws. Since the purpose of the absolutory cause in Article
332(1) is meant to be beneficial to relatives by affinity within
the degree covered under the said provision, the continuing
affinity view is more appropriate.
Second, the language of Article 332(1) which speaks of
"relatives by affinity in the same line" is couched in general
language. The legislative intent to make no distinction
between the spouse of ones living child and the surviving
spouse of ones deceased child (in case of a son-in-law or
daughter-in-law with respect to his or her parents-in32
law) can be drawn from Article 332(1) of the Revised Penal
Code without doing violence to its language.
Third, the Constitution declares that the protection and
strengthening of the family as a basic autonomous social
institution are policies of the State and that it is the duty of
the State to strengthen the solidarity of the
33
family. Congress has also affirmed as a State and national
policy that courts shall preserve the solidarity of the
34
family. In this connection, the spirit of Article 332 is to
35
preserve family harmony and obviate scandal. The view
that relationship by affinity is not affected by the death of one
of the parties to the marriage that created it is more in
accord with family solidarity and harmony.
Fourth, the fundamental principle in applying and in
interpreting criminal laws is to resolve all doubts in favor of
the accused. In dubio pro reo. When in doubt, rule for the
36
accused. This is in consonance with the constitutional
guarantee that the accused shall be presumed innocent

unless and until his guilt is established beyond reasonable

37
doubt.
Intimately related to the in dubio pro reo principle is the rule of
38
lenity. The rule applies when the court is faced with two possible
interpretations of a penal statute, one that is prejudicial to the
accused and another that is favorable to him. The rule calls for the
adoption of an interpretation which is more lenient to the accused.
Lenity becomes all the more appropriate when this case is viewed
through the lens of the basic purpose of Article 332 of the Revised
Penal Code to preserve family harmony by providing an absolutory
cause. Since the goal of Article 332(1) is to benefit the accused, the
Court should adopt an application or interpretation that is more
favorable to the accused. In this case, that interpretation is the
continuing affinity view.
Thus, for purposes of Article 332(1) of the Revised Penal Code, we
hold that the relationship by affinity created between the surviving
spouse and the blood relatives of the deceased spouse survives the
death of either party to the marriage which created the affinity. (The
same principle applies to the justifying circumstance of defense of
ones relatives under Article 11[2] of the Revised Penal Code, the
mitigating circumstance of immediate vindication of grave offense
committed against ones relatives under Article 13[5] of the same
Code and the absolutory cause of relationship in favor of accessories
under Article 20 also of the same Code.)
Scope of Article 332 of The Revised Penal Code
The absolutory cause under Article 332 of the Revised Penal Code
only applies to the felonies of theft, swindling and malicious mischief.
Under the said provision, the State condones the criminal
responsibility of the offender in cases of theft, swindling and
malicious mischief. As an act of grace, the State waives its right to
prosecute the offender for the said crimes but leaves the private
offended party with the option to hold the offender civilly liable.

However, the coverage of Article 332 is strictly limited to the felonies

mentioned therein. The plain, categorical and unmistakable language
of the provision shows that it applies exclusively to the simple crimes
of theft, swindling and malicious mischief. It does not apply where
any of the crimes mentioned under Article 332 is complexed with
another crime, such as theft through falsification or estafa through
39
falsification.

(d) using the document, he sold the properties to third

parties but he neither delivered the proceeds to Manolita nor
accounted for the same and

The Information against Sato charges him with estafa. However, the
real nature of the offense is determined by the facts alleged in the
40
Information, not by the designation of the offense. What controls is
not the title of the Information or the designation of the offense but
41
the actual facts recited in the Information. In other words, it is the
recital of facts of the commission of the offense, not the
nomenclature of the offense, that determines the crime being
42
charged in the Information. It is the exclusive province of the court
43
to say what the crime is or what it is named. The determination by
the prosecutor who signs the Information of the crime committed is
44
merely an opinion which is not binding on the court.

The above averments in the Information show that the estafa was
committed by attributing to Manolita (who participated in the
execution of the document) statements other than those in fact made
by her. Manolitas acts of signing the SPA and affixing her
thumbmark to that document were the very expression of her specific
intention that something be done about her taxes. Her signature and
thumbmark were the affirmation of her statement on such intention
as she only signed and thumbmarked the SPA (a document which
she could not have read) because of Satos representation that the
document pertained to her taxes. In signing and thumbmarking the
document, Manolita showed that she believed and adopted the
representations of Sato as to what the document was all about, i.e.,
that it involved her taxes. Her signature and thumbmark, therefore,
served as her conformity to Satos proposal that she execute a
document to settle her taxes.

A reading of the facts alleged in the Information reveals that Sato is

being charged not with simple estafa but with the complex crime of
estafa through falsification of public documents. In particular, the
Information states that Sato, by means of deceit, intentionally
defrauded Manolita committed as follows:
(a) Sato presented a document to Manolita (who was
already blind at that time) and induced her to sign and
thumbmark the same;
(b) he made Manolita believe that the said document was in
connection with her taxes when it was in fact a special power
of attorney (SPA) authorizing his minor daughter Wendy to
sell, assign, transfer or otherwise dispose of Manolitas
properties in Tagaytay City;
(c) relying on Satos inducement and representation,
Manolita signed and thumbmarked the SPA in favor of
Wendy Mitsuko Sato, daughter of Sato;

(d) despite repeated demands, he failed and refused to

deliver the proceeds, to the damage and prejudice of the
estate of Manolita.

Thus, by inducing Manolita to sign the SPA, Sato made it appear that
Manolita granted his daughter Wendy a special power of attorney for
the purpose of selling, assigning, transferring or otherwise disposing
of Manolitas Tagaytay properties when the fact was that Manolita
signed and thumbmarked the document presented by Sato in the
belief that it pertained to her taxes. Indeed, the document itself, the
SPA, and everything that it contained were falsely attributed to
Manolita when she was made to sign the SPA.
Moreover, the allegations in the Information that
(1) "once in the possession of the said special power of
attorney and other pertinent documents, [Sato] made Wendy
Mitsuko Sato sign the three (3) Deeds of Absolute Sale" and

(2) "once in possession of the proceeds of the sale of the

above properties, said accused, misapplied, misappropriated
and converted the same to his own personal use and
benefit" raise the presumption that Sato, as the possessor of
the falsified document and the one who benefited therefrom,
was the author thereof.
Furthermore, it should be noted that the prosecution moved for the
amendment of the Information so as to increase the amount of
damages from P1,150,000 to P22,034,000. This was granted by the
trial court and was affirmed by the Court of Appeals on certiorari.
This meant that the amended Information would now state that, while
the total amount of consideration stated in the deeds of absolute sale
was only P1,150,000, Sato actually received the total amount
of P22,034,000 as proceeds of the sale of Manolitas
45
properties. This also meant that the deeds of sale (which were
public documents) were also falsified by making untruthful
statements as to the amounts of consideration stated in the deeds.
Therefore, the allegations in the Information essentially charged a
crime that was not simple estafa. Sato resorted to falsification of
public documents (particularly, the special power of attorney and the
deeds of sale) as a necessary means to commit the estafa.
Since the crime with which respondent was charged was not simple
estafa but the complex crime of estafa through falsification of public
documents, Sato cannot avail himself of the absolutory cause
provided under Article 332 of the Revised Penal Code in his favor.
Effect of Absolutory Cause Under Article 332 on Criminal
Liability For The Complex Crime of Estafa Through Falsification
of Public Documents
The question may be asked: if the accused may not be held
criminally liable for simple estafa by virtue of the absolutory cause
under Article 332 of the Revised Penal Code, should he not be
absolved also from criminal liability for the complex crime of estafa
through falsification of public documents? No.

True, the concurrence of all the elements of the two crimes of estafa
and falsification of public document is required for a proper
conviction for the complex crime of estafa through falsification of
46
public document. That is the ruling in Gonzaludo v. People. It
means that the prosecution must establish that the accused resorted
to the falsification of a public document as a necessary means to
commit the crime of estafa.
However, a proper appreciation of the scope and application of
Article 332 of the Revised Penal Code and of the nature of a
complex crime would negate exemption from criminal liability for the
complex crime of estafa through falsification of public documents,
simply because the accused may not be held criminally liable for
simple estafa by virtue of the absolutory cause under Article 332.
The absolutory cause under Article 332 is meant to address specific
crimes against property, namely, the simple crimes of theft, swindling
and malicious mischief. Thus, all other crimes, whether simple or
complex, are not affected by the absolutory cause provided by the
said provision. To apply the absolutory cause under Article 332 of
the Revised Penal Code to one of the component crimes of a
complex crime for the purpose of negating the existence of that
complex crime is to unduly expand the scope of Article 332. In other
words, to apply Article 332 to the complex crime of estafa through
falsification of public document would be to mistakenly treat the
crime of estafa as a separate simple crime, not as the component
crime that it is in that situation. It would wrongly consider the
indictment as separate charges of estafa and falsification of public
document, not as a single charge for the single (complex) crime of
estafa through falsification of public document.
Under Article 332 of the Revised Penal Code, the State waives its
right to hold the offender criminally liable for the simple crimes of
theft, swindling and malicious mischief and considers the violation of
the juridical right to property committed by the offender against
certain family members as a private matter and therefore subject
only to civil liability. The waiver does not apply when the violation of
the right to property is achieved through (and therefore inseparably
intertwined with) a breach of the public interest in the integrity and
presumed authenticity of public documents. For, in the latter

instance, what is involved is no longer simply the property right

of a family relation but a paramount public interest.
The purpose of Article 332 is to preserve family harmony and obviate
47
scandal. Thus, the action provided under the said provision simply
concerns the private relations of the parties as family members and
is limited to the civil aspect between the offender and the offended
party. When estafa is committed through falsification of a public
document, however, the matter acquires a very serious public
dimension and goes beyond the respective rights and liabilities of
family members among themselves. Effectively, when the offender
resorts to an act that breaches public interest in the integrity of public
documents as a means to violate the property rights of a family
member, he is removed from the protective mantle of the absolutory
cause under Article 332.
In considering whether the accused is liable for the complex crime of
estafa through falsification of public documents, it would be wrong to
consider the component crimes separately from each other. While
there may be two component crimes (estafa and falsification of
documents), both felonies are animated by and result from one and
the same criminal intent for which there is only one criminal
48
liability. That is the concept of a complex crime. In other words,
while there are two crimes, they are treated only as one, subject to a
single criminal liability.
As opposed to a simple crime where only one juridical right or
interest is violated (e.g., homicide which violates the right to life, theft
49
which violates the right to property), a complex crime constitutes a
violation of diverse juridical rights or interests by means of diverse
50
acts, each of which is a simple crime in itself. Since only a single
criminal intent underlies the diverse acts, however, the component
crimes are considered as elements of a single crime, the complex
crime. This is the correct interpretation of a complex crime as treated
under Article 48 of the Revised Penal Code.
In the case of a complex crime, therefore, there is a formal (or ideal)
plurality of crimes where the same criminal intent results in two or
more component crimes constituting a complex crime for which there

51

is only one criminal liability. (The complex crime of estafa through

falsification of public document falls under this category.) This is
different from a material (or real) plurality of crimes where different
criminal intents result in two or more crimes, for each of which the
52
accused incurs criminal liability. The latter category is covered
neither by the concept of complex crimes nor by Article 48.
Under Article 48 of the Revised Penal Code, the formal plurality of
crimes (concursus delictuorum or concurso de delitos) gives rise to a
single criminal liability and requires the imposition of a single penalty:
Although [a] complex crime quantitatively consists of two or more
crimes, it is only one crime in law on which a single penalty is
imposed and the two or more crimes constituting the same are more
53
conveniently termed as component crimes. (emphasis supplied)

In [a] complex crime, although two or more crimes are actually

committed, they constitute only one crime in the eyes of the law as
well as in the conscience of the offender. The offender has only one
criminal intent. Even in the case where an offense is a necessary
means for committing the other, the evil intent of the offender is only
54
one.
For this reason, while a conviction for estafa through falsification of
public document requires that the elements of both estafa and
falsification exist, it does not mean that the criminal liability for estafa
may be determined and considered independently of that for
falsification. The two crimes of estafa and falsification of public
documents are not separate crimes but component crimes of the
single complex crime of estafa and falsification of public documents.
Therefore, it would be incorrect to claim that, to be criminally liable
for the complex crime of estafa through falsification of public
document, the liability for estafa should be considered separately
from the liability for falsification of public document. Such approach
would disregard the nature of a complex crime and contradict the
letter and spirit of Article 48 of the Revised Penal Code. It would

wrongly disregard the distinction between formal plurality and

material plurality, as it improperly treats the plurality of crimes in the
complex crime of estafa through falsification of public document as a
mere material plurality where the felonies are considered as
separate crimes to be punished individually.
Falsification of Public Documents May Be a Necessary Means
for Committing Estafa Even Under Article 315 (3[a])
The elements of the offense of estafa punished under Article 315
(3[a]) of the Revised Penal Code are as follows:
(1) the offender induced the offended party to sign a
document;
(2) deceit was employed to make the offended party sign the
document;
(3) the offended party personally signed the document and
(4) prejudice is caused to the offended party.
While in estafa under Article 315(a) of the Revised Penal Code, the
law does not require that the document be falsified for the
consummation thereof, it does not mean that the falsification of the
document cannot be considered as a necessary means to commit
the estafa under that provision.
The phrase "necessary means" does not connote indispensable
means for if it did, then the offense as a "necessary means" to
commit another would be an indispensable element of the latter and
55
56
would be an ingredient thereof. In People v. Salvilla, the phrase
"necessary means" merely signifies that one crime is committed to
57
facilitate and insure the commission of the other. In this case, the
crime of falsification of public document, the SPA, was such a
"necessary means" as it was resorted to by Sato to facilitate and
carry out more effectively his evil design to swindle his mother-in-

law. In particular, he used the SPA to sell the Tagaytay properties of

Manolita to unsuspecting third persons.
When the offender commits in a public document any of the acts of
falsification enumerated in Article 171 of the Revised Penal Code as
a necessary means to commit another crime, like estafa, theft or
malversation, the two crimes form a complex crime under Article 48
58
of the same Code. The falsification of a public, official or
commercial document may be a means of committing estafa
because, before the falsified document is actually utilized to defraud
another, the crime of falsification has already been consummated,
damage or intent to cause damage not being an element of the crime
59
of falsification of a public, official or commercial document. In other
words, the crime of falsification was committed prior to the
60
consummation of the crime of estafa. Actually utilizing the falsified
public, official or commercial document to defraud another is
61
estafa. The damage to another is caused by the commission of
62
estafa, not by the falsification of the document. 1avvphi1
Applying the above principles to this case, the allegations in the
Information show that the falsification of public document was
consummated when Sato presented a ready-made SPA to Manolita
who signed the same as a statement of her intention in connection
with her taxes. While the falsification was consummated upon the
execution of the SPA, the consummation of the estafa occurred only
when Sato later utilized the SPA. He did so particularly when he had
the properties sold and thereafter pocketed the proceeds of the sale.
Damage or prejudice to Manolita was caused not by the falsification
of the SPA (as no damage was yet caused to the property rights of
Manolita at the time she was made to sign the document) but by the
subsequent use of the said document. That is why the falsification of
the public document was used to facilitate and ensure (that is, as a
necessary means for) the commission of the estafa.
The situation would have been different if Sato, using the same
inducement, had made Manolita sign a deed of sale of the properties
either in his favor or in favor of third parties. In that case, the damage
would have been caused by, and at exactly the same time as, the
execution of the document, not prior thereto. Therefore, the crime
63
committed would only have been the simple crime of estafa. On the

other hand, absent any inducement (such as if Manolita herself had

been the one who asked that a document pertaining to her taxes be
prepared for her signature, but what was presented to her for her
signature was an SPA), the crime would have only been the simple
64
crime of falsification.

RENATO C. CORONA
Associate Justice
Chairperson

WHEREFORE, the petition is hereby GRANTED. The decision dated

August 9, 2007 and the resolution dated January 23, 2008 of the
Court
of
Appeals
in
CA-G.R.
S.P.
No.
95260
are REVERSED and SET ASIDE. The case is remanded to the trial
court which is directed to try the accused with dispatch for the
complex crime of estafa through falsification of public documents.

Pursuant to Section 13, Article VIII of the Constitution, I certify that

the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the
opinion of the Courts Division.

SO ORDERED.
RENATO C. CORONA
Associate Justice
Chairperson

CERTIFICATION

REYNATO S. PUNO
Chief Justice

Footnotes
1

Per letters of administration dated June 22, 1995 issued by

the Regional Trial Court of Quezon City, Branch 104 in SP.
Proc. Q-95-23621.

WE CONCUR:
PRESBITERO J.
VELASCO, JR.
Associate Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

JOSE C. MENDOZA
Associate Justice

Docketed as I.S. No. 96-19651. Rollo, pp. 89-90.

Id.

Id., pp. 85-88.

ATTESTATION
I attest that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

Resolution No. 313, s. 2000 dated February 17, 2000. Id.,

pp. 81-84.
6

Docketed as Criminal Case No. Q-00-91385. Id., pp. 91-92.

Id.

Penned by Judge Fatima Gonzales-Asdala. Id., pp. 126129.

Id.

22

Id. citing People v. Navas, CA 51 O.G. 219.

10

Dated April 26, 2006. Id., pp. 130-131.

23

Id. citing People v. Cristobal, 84 Phil. 473 (1949).

11

Id., p. 131.

24

Blodget v. Brinsmaid, 9 Vt. 27, 1837 WL 1956 (Vt.).

12

Docketed as CA-G.R. S.P. No. 95260.

25

Sta. Maria, Melencio, Persons and Family Relations Law,

Fourth Edition, 228-229 (2004).

13

Penned by Associate Justice Celia C. Librea-Leagogo and

concurred in by Associate Justices Regalado E. Maambong
(retired) and Sixto C. Marella, Jr. of the Seventeenth Division
of the Court of Appeals. Rollo, pp. 28-40.
14

Id.

15

Id., pp. 42-43.

16

An absolutory cause is a circumstance which is present

prior to or simultaneously with the offense by reason of
which the accused who acts with criminal intent, freedom
and intelligence does not incur criminal liability for an act that
constitutes a crime (Regalado, Florenz, Criminal Law
Conspectus, Third Edition, 61-62 [2007]).
17

Id., p. 736.

18

People v. Alvarez, 52 Phil. 65 (1928).

26

Back v. Back, L.R.A. 1916C,752, 148 Iowa 223, 125 N.W.

1009, Am.Ann.Cas. 1912B, 1025 citing Blodget v. Brinsmaid,
9 Vt. 27; Noble v. State, 22 Ohio St. 541; State v. Brown, 47
Ohio St. 102, 23 N. E. 747, 21 Am. St. Rep. 790; Wilson v.
State, 100 Tenn. 596, 46 S. W. 451, 66 Am. St. Rep.
789; Johnson v. State, 20 Tex. App. 609, 54 Am. Rep.
535; Pegues v. Baker, 110 Ala. 251, 17 South. 943; Tagert
v. State, 143 Ala. 88, 39 South. 293, 111 Am. St. Rep.
17; Bigelow v. Sprague, 140 Mass. 425, 5 N. E. 144; Vannoy
v. Givens, 23 N. J. Law, 201; 1 Bishop, New Crim.
Procedure, 901; 26 Cyc. 845.
27

In this connection, one of the commentators on the

Revised Penal Code wrote:
Death of the spouse terminates the relationship by
affinity (Kelly v. Neely, 12 Ark. 6[5]7, 659, 56 AmD
288; Chase v. Jennings, 38 Me. 44, 45) unless
the marriage has resulted in issue who is still living,
in which case the relationship of affinity continues
(Dearmond v. Dearmond, 10 Ind. 191; Bigelow v.
Sprague, 140 Mass. 425, 5 NE 144).

19

Aquino, Ramon and Carolina Grio Aquino, The Revised

Penal Code, Volume III, 374 (1997), citingPeople v. Adame,
CA 40 O.G. Supp. No. 12, p. 63.
20

21

See Reyes, Luis B., Revised Penal Code, Book I,

Fifteenth Edition Revised 188, (2001).

Id. citing People v. Tupasi, 36 O.G. 2086.

Id. citing People v. Patubo, CA-G.R. No. 10616-R, 15

August 1953.

28

In re Bourdeux Estate, 37 Wash. 2d 561, 225 P.2d 433,

26 A.L.R. 2d 249.

29

Carman v. Newell, N.Y. 1 Denio 25.

30

In re Bourdeux Estate, supra. This view has been adopted

and applied in Security Union Casualty Co. v. Kelly,
Tex.Civ.App., 299 S.W. 286; American General Insurance
Co. v. Richardson, Tex.Civ.App., 132 S.W.2d 161; Simcoke
v. Grand Lodge of A. O. U. W. of Iowa, 84 Iowa 383, 51
N.W. 8, 15 L.R.A. 114; Faxon v. Grand Lodge Brotherhood
of Locomotive Firemen and M. E. Rhea, 87 Ill.App.
262; McGaughey v. Grand Lodge A. O. U. W. of State of
Minnesota, 148 Minn. 136, 180 N.W. 1001; Hernandez v.
Supreme Forest Woodmen Circle, Tex.Civ.App., 80 S.W.2d
346; Renner v. Supreme Lodge of Bohemian Slavonian
Benevolent Society, 89 Wis. 401, 62 N.W. 80
following Jones v. Mangan, 151 Wis. 215, 138 N.W.
618;Steele v. Suwalski, 7 Cir., 75 F.2d 885, 99 A.L.R.
588; Benefield v. United States, D.C., 58 F.Supp. 904;Lewis
v. O'Hair, Tex.Civ.App., 130 S.W.2d 379.
31

Indeed, Kelly v. Neely, supra note 27, Paddock v. Wells, 2

Barb. Ch. 331, 333, Chase v. Jennings, supranote
27, Dearmond v. Dearmond, supra note 27 and Bigelow v.
Sprague, supra note 27 are all jury disqualification cases.

37

See Section 14 (2), Article III, Constitution.

38

Justice Coronas separate (concurring) opinion in People

v. Temporada, supra.
39

Regalado, Florenz, supra note 16, p. 736.

40

Malto v. People, G.R. No. 164733, 21 September 2007,

533 SCRA 643.
41

Id. citing People v. Resayaga, G.R. No. 49536, 30 March

1988, 159 SCRA 426 and Santos v. People, G.R. No.
77429, 29 January 1990, 181 SCRA 487.
42

Id. citing People v. Elesterio, G.R. No. 63971, 09 May

1989, 173 SCRA 243.
43

Herrera, Oscar, Remedial Law, Volume Four Criminal

Procedure, 59 (1992 Edition reprinted in 2001).
44

People v. Gorospe, 53 Phil. 960 (1928).

45
32

Or between the child of a living parent and the surviving

child of a deceased parent (in case of a stepchild with
respect to the stepparent).

While the parties as well as the CA and RTC decisions

spoke of an amended Information, the said amended
Information was not included in the records of this case.
46

33

Section 12, Article II and Section 1, Article 15.

G.R. No. 150910, 06 February 2006, 481 SCRA 569.

47
34

Section 2, Republic Act No. 8369 (Family Courts Act of

1997).

Aquino, Ramon and Carolina Grio Aquino, The Revised

Penal Code, Volume III, 374 (1997).
48

35

Aquino and Grio Aquino, supra note 19.

Regalado, supra note 16, p. 172.

49
36

See Justice Renato C. Coronas separate (concurring)

opinion in People v. Temporada (G.R. No., 173473, 17
December 2008, 574 SCRA 258, 318-328).

Aquino, Ramon and Carolina Grio Aquino, supra note 47

at p. 662.
50

Id.

51

Regalado, supra note 6, p. 172.

52

Id.

53

Id., p. 176.

54

Reyes, supra note 8, p. 650.

55

People v. Salvilla, G.R. No. 86163, 26 April 1989, 184

SCRA 671.
56

Id.

57

Id.

58

Reyes, supra note 20 at p. 226.

59

Id.

60

Id.

61

Id.

62

Id.

63

See United States v. Berry, 5 Phil. 370 (1905) and United

States v. Malong, 36 Phil. 821 (1917).
64

See United States v. Capule, 24 Phil. 12 (1913).

dismissed the complaint for partition filed by petitioner for being

contrary to law and evidence.
On July 5, 1987, Marcelino V. Dario died intestate. He was survived
by his wife, petitioner Perla G. Patricio and their two sons, Marcelino
Marc Dario and private respondent Marcelino G. Dario III. Among the
properties he left was a parcel of land with a residential house and a
pre-school building built thereon situated at 91 Oxford corner Ermin
Garcia Streets in Cubao, Quezon City, as evidenced by Transfer
Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City
Registry of Deeds, covering an area of seven hundred fifty five (755)
2
square meters, more or less.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 170829

November 20, 2006

PERLA G. PATRICIO, Petitioner,

vs.
MARCELINO G. DARIO III and THE HONORABLE COURT OF
APPEALS, Second Division, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of
Court seeks to annul and set aside the Resolution of the Court of
1
Appeals dated December 9, 2005 in CA-G.R. CV No. 80680, which

On August 10, 1987, petitioner, Marcelino Marc and private

respondent, extrajudicially settled the estate of Marcelino V. Dario.
Accordingly, TCT No. RT-30731 (175992) was cancelled and TCT
No. R-213963 was issued in the names of petitioner, private
respondent and Marcelino Marc.
Thereafter, petitioner and Marcelino Marc formally advised private
respondent of their intention to partition the subject property and
terminate the co-ownership. Private respondent refused to partition
the property hence petitioner and Marcelino Marc instituted an action
for partition before the Regional Trial Court of Quezon City which
was docketed as Civil Case No. Q-01-44038 and raffled to Branch
78.
3

On October 3, 2002, the trial court ordered the partition of the

subject property in the following manner: Perla G. Patricio, 4/6;
Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III, 1/6. The
trial court also ordered the sale of the property by public auction
wherein all parties concerned may put up their bids. In case of
failure, the subject property should be distributed accordingly in the
4
aforestated manner.
Private respondent filed a motion for reconsideration which was
5
denied by the trial court on August 11, 2003, hence he appealed
before the Court of Appeals, which denied the same on October 19,
2005. However, upon a motion for reconsideration filed by private

respondent on December 9, 2005, the appellate court partially

reconsidered the October 19, 2005 Decision. In the now assailed
Resolution, the Court of Appeals dismissed the complaint for
partition filed by petitioner and Marcelino Marc for lack of merit. It
held that the family home should continue despite the death of one
or both spouses as long as there is a minor beneficiary thereof. The
heirs could not partition the property unless the court found
compelling reasons to rule otherwise. The appellate court also held
that the minor son of private respondent, who is a grandson of
spouses Marcelino V. Dario and Perla G. Patricio, was a minor
6
beneficiary of the family home.
Hence, the instant petition on the following issues:
I.
THE HONORABLE COURT OF APPEALS PATENTLY
ERRED IN REVERSING ITS EARLIER DECISION OF
OCTOBER 19, 2005 WHICH AFFIRMED IN TOTO THE
DECISION OF THE TRIAL COURT DATED 03 OCTOBER
2002 GRANTING THE PARTITION AND SALE BY PUBLIC
AUCTION OF THE SUBJECT PROPERTY.
II.
COROLLARILY, THE HONORABLE COURT OF APPEALS
PATENTLY ERRED IN APPLYING ARTICLE 159 IN
RELATION TO ARTICLE 154 OF THE FAMILY CODE ON
FAMILY HOME INSTEAD OF ARTICLE 494 IN RELATION
TO ARTICLES 495 AND 498 OF THE NEW CIVIL CODE
7
ON CO-OWNERSHIP.
The sole issue is whether partition of the family home is proper
where one of the co-owners refuse to accede to such partition on the
ground that a minor beneficiary still resides in the said home.
Private respondent claims that the subject property which is the
family home duly constituted by spouses Marcelino and Perla Dario
cannot be partitioned while a minor beneficiary is still living therein

namely, his 12-year-old son, who is the grandson of the decedent.

He argues that as long as the minor is living in the family home, the
same continues as such until the beneficiary becomes of age.
Private respondent insists that even after the expiration of ten years
from the date of death of Marcelino on July 5, 1987, i.e., even after
July 1997, the subject property continues to be considered as the
family home considering that his minor son, Marcelino Lorenzo R.
Dario IV, who is a beneficiary of the said family home, still resides in
the premises.
On the other hand, petitioner alleges that the subject property
remained as a family home of the surviving heirs of the late
Marcelino V. Dario only up to July 5, 1997, which was the 10th year
from the date of death of the decedent. Petitioner argues that the
brothers Marcelino Marc and private respondent Marcelino III were
8
already of age at the time of the death of their father, hence there is
no more minor beneficiary to speak of.
The family home is a sacred symbol of family love and is the
9
repository of cherished memories that last during ones lifetime. It is
the dwelling house where husband and wife, or by an unmarried
10
head of a family, reside, including the land on which it is situated. It
is constituted jointly by the husband and the wife or by an unmarried
11
head of a family. The family home is deemed constituted 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
12
and to the extent of the value allowed by law.
The law explicitly provides that occupancy of the family home either
by the owner thereof or by "any of its beneficiaries" must be actual.
That which is "actual" is something real, or actually existing, as
opposed to something merely possible, or to something which is
presumptive or constructive. Actual occupancy, however, need not
be by the owner of the house specifically. Rather, the property may
be occupied by the "beneficiaries" enumerated in Article 154 of the
Family Code, which may include the in-laws where the family home
is constituted jointly by the husband and wife. But the law definitely

excludes maids and overseers. They are not the beneficiaries

13
contemplated by the Code.

which case the family home continues until that beneficiary

becomes of age.

Article 154 of the Family Code enumerates who are the beneficiaries
of a family home: (1) The husband and wife, or an unmarried person
who is the head of a family; and (2) Their parents, ascendants,
descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate, who are living in the family home and who
depend upon the head of the family for legal support.

After these periods lapse, the property may be partitioned by the

heirs. May the heirs who are beneficiaries of the family home keep it
intact by not partitioning the property after the period provided by this
article? We believe that although the heirs will continue in
ownership by not partitioning the property, it will cease to be a
14
family home. (Emphasis supplied)

To be a beneficiary of the family home, three requisites must concur:

(1) they must be among the relationships enumerated in Art. 154 of
the Family Code; (2) they live in the family home; and (3) they are
dependent for legal support upon the head of the family.

Prof. Ernesto L. Pineda further explains the import of Art. 159 in this
manner:

Moreover, Article 159 of the Family Code provides that the family
home shall continue despite the death of one or both spouses or of
the unmarried head of the family for a period of 10 years or for as
long as there is a minor beneficiary, and the heirs cannot partition
the same unless the court finds compelling reasons therefor. This
rule shall apply regardless of whoever owns the property or
constituted the family home.
Article 159 of the Family Code applies in situations where death
occurs to persons who constituted the family home.1wphi1 Dr.
Arturo M. Tolentino comments on the effect of death of one or both
spouses or the unmarried head of a family on the continuing
existence of the family home:
Upon the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the
constitution of his or her separate property as family home, the
property will remain as family home for ten years or for as long as
there is a minor beneficiary living in it. If there is no more
beneficiary left at the time of death, we believe the family home
will be dissolved or cease, because there is no more reason for
its existence. If there are beneficiaries who survive living in the
family home, it will continue for ten years, unless at the
expiration of the ten years, there is still a minor beneficiary, in

The family home shall continue to exist despite the death of one or
both spouses or of the unmarried head of the family. Thereafter, the
length of its continued existence is dependent upon whether there
is still a minor-beneficiary residing therein. For as long as there
is one beneficiary even if the head of the family or both spouses
are already dead, the family home will continue to exist (Arts.
153, 159). If there is no minor-beneficiary, it will subsist until 10
years and within this period, the heirs cannot partition the same
except when there are compelling reasons which will justify the
partition. This rule applies regardless of whoever owns the property
15
or who constituted the family home. (Emphasis supplied)
The rule in Article 159 of the Family Code may thus be expressed in
this wise: If there are beneficiaries who survive and are living in the
family home, it will continue for 10 years, unless at the expiration of
10 years, there is still a minor beneficiary, in which case the family
home continues until that beneficiary becomes of age.
It may be deduced from the view of Dr. Tolentino that as a general
rule, the family home may be preserved for a minimum of 10 years
following the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the
constitution of his or her separate property as family home. After 10
years and a minor beneficiary still lives therein, the family home shall
be preserved only until that minor beneficiary reaches the age of
majority. The intention of the law is to safeguard and protect the

interests of the minor beneficiary until he reaches legal age and

would now be capable of supporting himself. However, three
requisites must concur before a minor beneficiary is entitled to the
benefits of Art. 159: (1) the relationship enumerated in Art. 154 of the
Family Code; (2) they live in the family home, and (3) they are
dependent for legal support upon the head of the family.
Thus, the issue for resolution now is whether Marcelino Lorenzo R.
Dario IV, the minor son of private respondent, can be considered as
a beneficiary under Article 154 of the Family Code.
As to the first requisite, the beneficiaries of the family home are: (1)
The husband and wife, or an unmarried person who is the head of a
family; and (2) Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or illegitimate. The
term "descendants" contemplates all descendants of the person or
persons who constituted the family home without distinction; hence,
it must necessarily include the grandchildren and great grandchildren
of the spouses who constitute a family home. Ubi lex non distinguit
nec nos distinguire debemos. Where the law does not distinguish,
we should not distinguish. Thus, private respondents minor son, who
is also the grandchild of deceased Marcelino V. Dario satisfies the
first requisite.
As to the second requisite, minor beneficiaries must be actually living
in the family home to avail of the benefits derived from Art. 159.
Marcelino Lorenzo R. Dario IV, also known as Ino, the son of private
respondent and grandson of the decedent Marcelino V. Dario, has
been living in the family home since 1994, or within 10 years from
the death of the decedent, hence, he satisfies the second requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario IV
cannot demand support from his paternal grandmother if he has
parents who are capable of supporting him. The liability for legal
support falls primarily on Marcelino Lorenzo R. Dario IVs parents,
especially his father, herein private respondent who is the head of
his immediate family. The law first imposes the obligation of legal
support upon the shoulders of the parents, especially the father, and
only in their default is the obligation imposed on the grandparents.

Marcelino Lorenzo R. Dario IV is dependent on legal support not

from his grandmother, but from his father.1wphi1 Thus, despite
residing in the family home and his being a descendant of Marcelino
V. Dario, Marcelino Lorenzo R. Dario IV cannot be considered as
beneficiary contemplated under Article 154 because he did not fulfill
the third requisite of being dependent on his grandmother for legal
support. It is his father whom he is dependent on legal support, and
who must now establish his own family home separate and distinct
from that of his parents, being of legal age.
Legal support, also known as family support, is that which is
provided by law, comprising everything indispensable for
sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the
16
family. Legal support has the following characteristics: (1) It is
personal, based on family ties which bind the obligor and the obligee;
(2) It is intransmissible; (3) It cannot be renounced; (4) It cannot be
compromised; (5) It is free from attachment or execution; (6) It is
17
reciprocal; (7) It is variable in amount.
Professor Pineda is of the view that grandchildren cannot demand
support directly from their grandparents if they have parents
(ascendants of nearest degree) who are capable of supporting them.
This is so because we have to follow the order of support under Art.
18
199. We agree with this view.
The reasons behind Art. 199 as explained by Pineda and Tolentino:
the closer the relationship of the relatives, the stronger the tie that
binds them. Thus, the obligation to support under Art. 199 which
outlines the order of liability for support is imposed first upon the
shoulders of the closer relatives and only in their default is the
obligation moved to the next nearer relatives and so on.
There is no showing that private respondent is without means to
support his son; neither is there any evidence to prove that
petitioner, as the paternal grandmother, was willing to voluntarily
provide for her grandsons legal support. On the contrary, herein
petitioner filed for the partition of the property which shows an

intention to dissolve the family home, since there is no more reason

for its existence after the 10-year period ended in 1997.
With this finding, there is no legal impediment to partition the subject
property.
The law does not encourage co-ownerships among individuals as
oftentimes it results in inequitable situations such as in the instant
case. Co-owners should be afforded every available opportunity to
divide their co-owned property to prevent these situations from
arising.
19

As we ruled in Santos v. Santos, no co-owner ought to be

compelled to stay in a co-ownership indefinitely, and may insist on
partition on the common property at any time. An action to demand
partition is imprescriptible or cannot be barred by laches. Each coowner may demand at any time the partition of the common
20
property.
Since the parties were unable to agree on a partition, the court a
quo should have ordered a partition by commissioners pursuant to
Section 3, Rule 69 of the Rules of Court. Not more than three
competent and disinterested persons should be appointed as
commissioners to make the partition, commanding them to set off to
the plaintiff and to each party in interest such part and proportion of
the property as the court shall direct.
When it is made to appear to the commissioners that the real estate,
or a portion thereof, cannot be divided without great prejudice to the
interest of the parties, the court may order it assigned to one of the
parties willing to take the same, provided he pays to the other parties
such sum or sums of money as the commissioners deem equitable,
unless one of the parties interested ask that the property be sold
instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the
21
commissioners shall sell the same accordingly.
The partition of the subject property should be made in accordance
22
with the rule embodied in Art. 996 of the Civil Code. Under the law

of intestate succession, if the widow and legitimate children survive,

the widow has the same share as that of each of the children.
However, since only one-half of the conjugal property which is
owned by the decedent is to be allocated to the legal and
compulsory heirs (the other half to be given exclusively to the
surviving spouse as her conjugal share of the property), the widow
will have the same share as each of her two surviving children.
Hence, the respective shares of the subject property, based on the
law on intestate succession are: (1) Perla Generosa Dario, 4/6; (2)
Marcelino Marc G. Dario II, 1/6 and (3) Marcelino G. Dario III, 1/6.
23

In Vda. de Daffon v. Court of Appeals, we held 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 court after trial should find the existence of
co-ownership among the parties, the court may and should order the
24
partition of the properties in the same action.
WHEREFORE, the petition is GRANTED. The Resolution of the
Court of Appeals in CA-G.R. CV No. 80680 dated December 9,
2005, is REVERSED and SET ASIDE. The case is REMANDED to
the Regional Trial Court of Quezon City, Branch 78, who is directed
to conduct a PARTITION BY COMMISSIONERS and effect the
actual physical partition of the subject property, as well as the
improvements that lie therein, in the following manner: Perla G.
Dario, 4/6; Marcelino Marc G. Dario, 1/6 and Marcelino G. Dario III,
1/6. The trial court is DIRECTED to appoint not more than three (3)
competent and disinterested persons, who should determine the
technical metes and bounds of the property and the proper share
appertaining to each heir, including the improvements, in accordance
with Rule 69 of the Rules of Court. When it is made to the
commissioners that the real estate, or a portion thereof, cannot be
divided without great prejudice to the interest of the parties, the court
a quo may order it assigned to one of the parties willing to take the
same, provided he pays to the other parties such sum or sums of
money as the commissioners deem equitable, unless one of the
parties interested ask that the property be sold instead of being so
assigned, in which case the court shall order the commissioners to
sell the real estate at public sale, and the commissioners shall sell
the same accordingly, and thereafter distribute the proceeds of the

sale appertaining to the just share of each heir. No pronouncement

as to costs.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:

ROMEO J. CALLEJO, SR.

Associate Justice

Id. at 59.

Id. at 77-80. Penned by Judge Percival Mandap Lopez.

Id. at 80.

Id. at 44-49.

Id. at 21.

Id. at 26.

A. Tolentino, Commentaries and Jurisprudence on the Civil

Code of the Philippines, Vol. I (1990 ed.), p. 508, citing Code
Commission of 1947, pp. 18-19, 20.

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the
opinion of the Courts Division.
V.

Id. at 88. Penned by Judge Demetrio B. Macapagal, Sr. as

Pairing Judge.

MINITA V. CHICO-NAZARIO
Associate Justice

ARTEMIO
Chief Justice

Rollo, pp 38-49. Penned by Associate Justice Eugenio S.

Labitoria and concurred in by Associate Justices Eliezer R.
de los Santos and Jose C. Reyes, Jr.

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
MA. ALICIA AUSTRIAMARTINEZ
Associate Justice

10

FAMILY CODE, Art. 152.

11

Id.

12

Id., Art. 153.

13

Manacop v. Court of Appeals, 342 Phil. 735, 744 (1997).

14

Supra note 9 at 515-516.

PANGANIBAN

15

Footnotes

E. Pineda, The Family Code of the Philippines Annotated

(1999 ed.), p. 291.
16

FAMILY CODE, Art. 194.

17

- versus -

Supra note 9 at 575.

18

Supra note 15 at 401. Art. 199 provides that "[w]henever

two or more persons are obliged to give support, the liability
shall devolve upon the following persons in the order herein
provided: (1) The spouse; (2) The descendants in the
nearest degree; (3) The ascendants in the nearest degree;
(4) The brothers and sisters."
19

396 Phil. 928 (2000).

20

Id. at 948.

21

RULES OF COURT, Rule 69, Sec. 5.

22

Art. 996 states that "[i]f the widow or widower and

legitimate children or descendants are left, the surviving
spouse has in the succession the same share as that of
each of the children."
23

24

Promulgated:
November 25,

x----------------------------------------------------------------------------------------x
DECISION

436 Phil. 233 (2002).

CALLEJO, SR., J.:

Id. at 240-241.

[1]

SECOND DIVISION
JOSE E. HONRADO,
Petitioner,

COURT OF APPEALS,
HON. ROGELIO M. PIZARRO,
in his official capacity as Presiding
Judge of the Regional Trial Court,
Quezon City, Branch 222;
THE CLERK OF COURT OF
THE REGIONAL TRIAL COURT,
as Ex-Officio Sheriff of the RTC of
Quezon City; MR. NERY G. ROY,
in his official capacity as Sheriff IV of
2005
the RTC of Quezon City; and PREMIUM
AGRO-VET PRODUCTS, INC.,
Respondents.

PUNO, J., Chairman,

AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
*
CHICO-NAZARIO, JJ.

G.R. No. 166333

Present:

Before this Court is a petition for review of the Decision of

the Court of Appeals (CA) in CA-G.R. SP No. 77488 dated June 30,
2004 dismissing the petition for certiorari for the nullification of the
April 14, 2003 Resolution of the Regional Trial Court (RTC) of
Quezon City, Branch 222 in Civil Case No. Q-97-32965. Also
assailed in this petition is the CA Resolution dated December 2,
2004 denying the motion for reconsideration of the said decision.
On December 11, 1997, Premium Agro-Vet Products, Inc.
(Premium) filed with the RTC of Quezon City a complaint for sum of
money against Jose Honrado, who was doing business under the
name and style of J.E. Honrado Enterprises. The case was docketed
as Civil Case No. Q-97-32965. Premium sought to collect the
amount of P240,765.00 representing the total price of veterinary
products purchased on credit by Honrado from November 18, 1996
until June 30, 1997.

For failure of Honrado, as well as his counsel, to appear at

the pre-trial conference, he was declared in default. Premium was,
thus, allowed to present evidenceex parte.
It turned out that the Spouses Jose and Andrerita Honrado
had filed a petition with the RTC of Calamba City for the judicial
constitution of the parcel of land registered in Honrados name under
Transfer Certificate of Title (TCT) No. T-143175 located in Calamba,
Laguna, and the house thereon, as their family house. The case
was docketed as SP Case No. 489-1998-C. In his petition, Honrado
declared that his creditors were Atty. Domingo Luciano, P & J
Agriculture Trading, Inc., and Mr. Tito Dela Merced, and that the
estimated value of the property was not more than P240,000.00.
On February 23, 1999, the RTC rendered judgment in favor
of Premium:
WHEREFORE, premises considered,
judgment is hereby rendered in favor of plaintiff and
against defendant directing the latter to pay plaintiff
the following:
1)

2)

3)

P240,765.00 representing the total

overdue account plus interest of 28%
per annum thereon computed from their
respective dates of deliveries until the
same shall have been paid in full;
25% of the total amount awarded, plus
acceptance fee of P50,000.00 and
additional P1,500.00 for each day of
court appearance, as attorneys fees;
and
Costs of this suit.

SO ORDERED.

[2]

Honrado filed a Notice of Appeal. However, on March 20,

2000, the appeal was dismissed for his failure to file his brief as
[3]
appellant. Entry of judgment was made on April 26, 2000. On
October 10, 2000, Premium filed a Motion for Issuance of Writ of
[4]
[5]
Execution. The RTC granted the motion and a writ of execution
[6]
was issued on March 29, 2001.
The Sheriff levied on the parcel of land covered by TCT
No.
T-143175. The Notice of Levy was
[7]
annotated at the dorsal portion of the title on April 4, 2001. The
Sheriff set the sale of the property at public auction on April 4, 2001.
Honrado was served with a copy of the notice of such sale but he
opposed the same.
On May 17, 2001, the property was sold to Premium, the
[8]
highest bidder, for the amount of P650,204.10. On May 23, 2001,
[9]
the corresponding Certificate of Sale was issued and annotated at
[10]
the dorsal portion of the title. Honrado failed to redeem the
property.
In the meantime, the RTC of Calamba City rendered a
[11]
Decision in SP Case No. 489-1998-C on April 29, 2002, declaring
the property a family home.
On May 3, 2002, Honrado filed a Motion to Declare
Properties Exempt from Execution under Article 155 of the Family
Code of the Philippines in Civil Case No. Q-97-32965. It was alleged
therein that the property is exempt from execution because it is a
family home which had been constituted as such before he incurred
his indebtedness with Premium. He also alleged that he and his
family had no other real property except the land which was levied
[12]
upon and sold on execution. Premium opposed the motion on the
ground that Honrado was already estopped or barred by laches from
claiming the exemption, and that said claim has been mooted by the
lapse of the redemption period for Honrado to redeem the property.
Premium averred that, after the sale at public auction, Honrado and
his family even vacated the property. Honrado re-occupied the
[13]
property only in April or May 2002. It further averred that the law
does not automatically exempt a family home from levy or execution

and there was no showing that its present value does not exceed the
[14]
amount allowed by law under Article 157 of the Family Code.

On December 2, 2004, the CA denied the motion for

[21]
reconsideration filed by Honrado.

On September 18, 2002, the RTC denied said motion on the

ground that Honrado is deemed to have waived the exemption
considering that he failed to object to the sale of the property on
[15]
execution on May 17, 2001. Honrado did not assail the said order.

In this petition for review, the petitioner alleges that the CA

committed serious errors of law and facts:

On October 14, 2002, Premium filed a Motion for Issuance of

[16]
Final Deed of Conveyance and Writ of Possession asserting that
the one-year redemption period had already lapsed on May 23,
2002, without any redemption being made by Honrado. The latter
opposed the said motion claiming that the RTC of Calamba, Laguna,
had already rendered a decision declaring the property a family
home. Honrado further averred that his family resided in the house
before the Family Code became effective and was entitled to the
[17]
exemption under the Code.
On April 14, 2003, the respondent Judge issued an
[18]
Order granting the motion of Premium and directing Honrado to:
(1) execute a final deed of conveyance over the subject parcel of
land covered by TCT No. T-143175 of the Registry of Deeds of
Calamba, Laguna; and (2) surrender of the subject title, TCT No. T143175. The respondent Judge further ordered that after execution
of the deed of conveyance, a writ of possession be issued over the
aforesaid property in favor of the plaintiff and against the defendant
or his successors-in-interest who are in possession of the said
premises.
Honrado filed a petition for certiorari with the CA assailing
the April 14, 2003 Resolution of the RTC. On June 30, 2004, the
[19]
CA dismissed the petition. The CA declared that there was no
proof that the public respondents committed grave abuse of
discretion. The CA ruled that the petitioner failed to assert his claim
for exemption at the time of the levy or within a reasonable time
thereafter. It held that once a judgment becomes final and executory,
the prevailing party can have it executed as a matter of right, and the
issuance of a writ of execution becomes a ministerial duty of the
[20]
court.

5:A IN FINDING AND CONCLUDING

THAT ARTICLE 153 OF THE FAMILY CODE FINDS
NO APPLICATION IN THE INSTANT CASE;
5:B IN FINDING AND CONCLUDING
THAT HONRADOS FAILURE TO ASSERT HIS
CLAIM FOR EXEMPTION OF HIS FAMILY HOME
FROM EXECUTION AT THE TIME OF THE LEVY
OR WITHIN A REASONABLE TIME IS FATAL TO
HIS CLAIM;
5:C IN NOT FINDING THAT THE RIGHT
TO CLAIM EXEMPTION CANNOT BE WAIVED
BECAUSE IT IS CONTRARY TO LAW AND/OR
[22]
PUBLIC POLICY.
The petitioner contends that the trial court committed grave
abuse of discretion in disallowing his prayer for exemption of his
family home from execution. The petitioner avers that the ruling of
the RTC of Calamba, Laguna, Branch 35 in SP Case No. 489-1998C, declaring that the property in question is a family home, has
already become final; hence, it can no longer be disturbed. The
family home cannot be levied upon considering that the debt, which
was the basis of the judgment under execution, was incurred
between the period from November 18, 1996 and June 30, 1997, or
after the Family Code had been in effect. Hence, the family home of
the petitioner is exempt from execution under Article 155 of the
[23]
Family Code.
The petitioner further asserts that he and his family had been
occupying the property as their family home as early as 1992. Under
Article 153 of the Family Code, his house was constituted as a family
home in that year. Thus, even if he failed to contest the levy on his

property or move for the lifting thereof, the same cannot be deemed
a waiver of his right to claim the exemption of his family home. He
avers that his right cannot be waived, for it would be contrary to
public policy. He claims that the policy of the State, in conferring
such exemption, is to allow a particular family to occupy, use and
enjoy their family home, which must remain with the person
constituting it and his heirs. Moreover, the waiver must be shown
by overt acts and it cannot be presumed from the mere failure to
[24]
assert the claim for exemption within a reasonable time.

allowed by Law. A family home is a real right, which

is gratuitous, inalienable and free from attachment,
constituted over the dwelling place and the land on
which it is situated, which confers upon a particular
family the right to enjoy such properties, which must
remain with the person constituting it and his heirs. It
cannot be seized by creditors except in certain
special cases. Such provision finds no application in
this case.

The private respondent avers that the petitioner is estopped

from claiming that the property is exempt from execution and from
assailing the levy of the property, the sale thereof at public auction
and the September 18, 2002 and April 14, 2003 Orders of the RTC.
It points out that the petitioner agreed to the levy and sale of the
property at public auction; he even surrendered the key to the house
and vacated the property after it was purchased by the private
respondent at the public auction. The private respondent averred
that the petitioner hoped to get a higher amount than his debt. The
petitioner never adverted to his petition in the RTC of Calamba,
Laguna, for the constitution of the property as a family home. The
petitioner revealed the decision of the RTC in SP Case No. 4891998-C only on November 25, 2002 when he opposed the private
respondents motion for a final deed of conveyance. It was only after
the RTC of Calamba, Laguna, rendered its decision that the
petitioner re-occupied the property and claimed, for the first time, that
the property is a family home and exempt from execution. By then,
the period for the petitioner to redeem the property had long lapsed.

Although the Rules of Court does not

prescribe the period within which to claim the
exemption, the rule is, nevertheless, well-settled that
the right of exemption must be claimed by the debtor
himself at the time of levy or within a reasonable
period thereafter. It is self-evident that petitioner did
not assert their claim of exemption within a
reasonable time. Any claim for exemption from
execution of properties under Section 12 of Rule 39
of the Rules of Court must be presented before its
sale on execution by the sheriff. Petitioner and his
wife failed to disclose in their petition for the judicial
constitution of a family home that Premium Agro-Vet
Products, Inc. is one of their creditors considering
the fact that the collection case filed against
Honrado was filed in 1997 or prior to the institution of
said petition in 1998. Petitioner never raised the
argument of exemption of his family home before the
trial court before and during the auction sale. We
find that such actions reveal a dilatory intent to
render nugatory the sale on execution and defeat
the very purpose of execution to put an end to
litigation. Petitioner previously failed to appear in
the pre-trial conference, failed to submit his
appellants brief and now conveniently raised the
issue of exemption almost a year from the auction
sale.

The petition has no merit.

In dismissing Honrados petition, the CA declared that:
Article 153 of the Family Code provides that
the family home is deemed constituted on a house
and lot from the time it is occupied as the family
residence. From the time of its constitution and so
long as 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

We find no proof of grave abuse of

discretion [on] the part of public respondents. Once

a judgment becomes final and executory, the

prevailing party can have it executed as a matter of
right, and the issuance of a Writ of Execution
becomes a ministerial duty of the court. It is wellsettled that the sheriffs duty in the execution of a
writ issued by a court is purely ministerial. The
function of ordering the execution of a judgment,
[25]
being judicial, devolves upon the judge.
The ruling of the appellate court is correct. The respondent
court, tribunal or administrative agency acts without jurisdiction if it
does not have the legal power to determine the case. There is
excess of jurisdiction where the respondent, being clothed with the
power to determine the case, oversteps its authority as determined
by law. There is grave abuse of discretion where the public
respondent acts in a capricious, whimsical, arbitrary or despotic
manner in the exercise of its judgment as to be said to be equivalent
[26]
to lack of jurisdiction. Mere abuse of discretion is not enough.
Moreover, in a petition for certiorari, the jurisdiction of the
court is narrow in scope. It is limited to resolving only cases of
[27]
jurisdiction. A writ of certiorariis an equitable remedy and he who
comes to court for equity must do so with clean hands.
In this case, the RTC acted in accord with case law when it
issued the assailed order. The petitioner admits to having been
notified of the levy of his property and of its sale at public auction at
9:30 a.m. on May 17, 2001 at the Municipal Hall of Calamba,
Laguna. However, he did not bother to object to the levy and the
projected sale on the ground that the property and the house thereon
was a family home. The petitioner allowed the sale at public auction
to proceed and the Sheriff to execute a certificate of sale over the
property in favor of the private respondent for P650,204.10. He even
vacated the property after the said sale. The petitioner remained
silent and failed to seek relief from the Sheriff or the court until May
3, 2002, when he filed his motion to declare the property exempt
from execution under Article 155 of the Family Code and Section 13,
Rule 39 of the Rules on Civil Procedure. Even then, there was no
showing that, during the hearing of said motion, the petitioner

adduced evidence to prove the value of the property and that it is,
indeed, a family home.
Moreover, the petitioner set the hearing of his motion on May
10, 2002 at 8:30 a.m. The private respondent opposed the motion,
but the petitioner did not file any reply thereto. Moreover, the
petitioner never informed the Court that the RTC of Calamba,
Laguna, had rendered judgment in SP Case No. 489-1998-C earlier
on April 29, 2002. It was only on November 25, 2002 that the
petitioner revealed to the RTC of Quezon City that there was such a
case and a decision had already been rendered. The petitioner has
not justified why he concealed such matters for such considerable
period of time.
While it is true that the family home is constituted on a house
and lot from the time it is occupied as a family residence and is
exempt from execution or forced sale under Article 153 of the Family
Code, such claim for exemption should be set up and proved to the
Sheriff before the sale of the property at public auction. Failure to do
so would estop the party from later claiming the exemption. As this
[28]
Court ruled in Gomez v. Gealone:
Although the Rules of Court does not
prescribe the period within which to claim the
exemption, the rule is, nevertheless, well-settled that
the right of exemption is a personal privilege granted
to the judgment debtor and as such, it must be
claimed not by the sheriff, but by the debtor himself
at the time of the levy or within a reasonable period
thereafter;
In the absence of express
provision it has variously held that claim
(for exemption) must be made at the time
of the levy if the debtor is present, that it
must be made within a reasonable time, or
promptly, or before the creditor has taken
any step involving further costs, or before
advertisement of sale, or at any time
before sale, or within a reasonable time

before the sale, or before the sale has

commenced, but as to the last there is
contrary authority.

REYNATO S. PUNO
Associate Justice
Chairman

In the light of the facts above summarized, it

is self-evident that appellants did not assert their
claim of exemption within a reasonable time.
Certainly, reasonable time, for purposes of the law
on exemption, does not mean a time after the
expiration of the one-year period provided for in
Section 30 of Rule 39 of the Rules of Court for
judgment debtors to redeem the property sold on
execution, otherwise it would render nugatory final
bills of sale on execution and defeat the very
purpose of executionto put an end to litigation. We
said before, and We repeat it now, that litigation
must end and terminate sometime and somewhere,
and it is essential to an effective administration of
justice that, once a judgment has become final, the
winning party be not, through a mere subterfuge,
deprived of the fruits of the verdict. We now rule
that claims for exemption from execution of
properties under Section 12 of Rule 39 of the Rules
of Court must be presented before its sale on
[29]
execution by the sheriff.
IN VIEW OF ALL THE FOREGOING, the
is DENIED. Costs against the petitioner.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

DANTE O. TINGA
Associate Justice

On leave
MINITA V. CHICO-NAZARIO
Associate Justice

ATTESTATION
petition

I attest that the conclusions in the above decision were

reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice
WE CONCUR:

REYNATO
S.
PUNO
Associate Justice
Chairman, Second Division

[19]

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and
the Division Chairmans Attestation, it is hereby certified that the
conclusions in the above decision were reached in consultation
before the case was assigned to the writer of the opinion of the
Courts Division.

HILARIO G. DAVIDE, JR.

Chief Justice

On leave.
Penned by Associate Justice Eliezer R. de los Santos, with
Associate Justices Ruben T. Reyes and Arturo D. Brion
concurring; Rollo, pp. 32-38.
[2]
Rollo, p. 42.
[3]
Id. at 46.
[4]
Id. at 43.
[5]
Id. at 47.
[6]
Id. at 49-50.
[7]
Id. at 56.
[8]
Rollo, pp. 53-54.
[9]
Ibid.
[10]
Id. at 56.
[11]
Id. at 86-88.
[12]
Id. at 57-58.
[13]
Id. at 60-68.
[14]
Rollo, p. 64.
[15]
Id. at 69.
[16]
Id. at 70-73.
[17]
Id. at 82-85.
[18]
Id. at 89.
[1]

Rollo, p. 38.
Id. at 37-38.
[21]
Id. at 40.
[22]
Id. at 18.
[23]
Rollo, pp. 19-20.
[24]
Rollo, pp. 21-23.
[25]
Rollo, pp. 37-38.
[26]
People v. Court of Appeals, G.R. No. 144332, 10 June 2004, 431
SCRA 610.
[27]
Id. at 617.
[28]
G.R. No. 58281, 13 November 1991, 203 SCRA 474.
[29]
Gomez v. Gealone, supra. (Emphasis supplied)
[20]

SIMEON CABANG, VIRGINIA

CABANG and VENANCIO
CABANG ALIAS DONDON,
Petitioners,

G.R. No. 180587

Present:
Ynares-

Santiago, J. (Chairperson),
- versus -

MR. & MRS. GUILLERMO BASAY,

Respondents.

Austria-Martinez,
*
Tinga,
Nachura,
and
Peralta, JJ
.
Promulgated:

March 20, 2009

x ---------------------------------------------------------------------------------------x
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules
of Court seeks to annul and set aside the Decision of the Court of
[1]
[2]
Appeals in CA-G.R. CV No. 76755 dated May 31, 2007 which
[3]
reversed the Order of the Regional Trial Court of Molave,
Zamboanga Del Sur, Branch 23 in Civil Case No. 99-20-127 which
denied respondents motion for execution on the ground that
petitioners family home was still subsisting. Also assailed is the
Resolution dated September 21, 2007 denying the motion for
reconsideration.
The facts as summarized by the appellate court:
HIRD DIVISION

Deceased Felix Odong was the registered

owner of Lot No. 7777, Ts- 222 located in Molave,
Zamboanga del Sur. Said lot was covered by

Original Certificate of Title No. 0-2,768 pursuant to

Decree No. N-64 and issued on March 9,
1966. However, Felix Odong and his heirs never
occupied nor took possession of the lot.
On June 16, 1987, plaintiff-appellants bought
said real property from the heirs of Felix Odong for
P8,000.00. Consequently, OCT No. 0-2,768 was
cancelled and in its stead, Transfer Certificate of
Title No. T-22,048 was issued on August 6, 1987 in
the name of plaintiff-appellants. The latter also did
not occupy the said property.

defendants and against the plaintiff

1.

Holding that the rights of the

plaintiffs to recover the land
registered in their names,
have been effectively barred
by laches; and

2.

Ordering the dismissal of the

above-entitled case.
No pronouncement as to

Defendant-appellees, on the other hand, had

been in continuous, open, peaceful and adverse
possession of the same parcel of land since 1956 up
to the present. They were the awardees in the
cadastral proceedings of Lot No. 7778 of the Molave
Townsite, Ts-222. During the said cadastral
proceedings, defendant-appellees claimed Lot No.
7778 on the belief that the area they were actually
occupying was Lot No. 7778. As it turned out,
however, when the Municipality of Molave relocated
the townsite lots in the area in 1992 as a big portion
of Lot No. 7778 was used by the government as a
public road and as there were many discrepancies in
the areas occupied, it was then discovered that
defendant-appellees were actually occupying Lot
No. 7777.
On June 23, 1992, plaintiff-appellants filed a
Complaint docketed as Civil Case No. 92-20-127 for
Recovery of Property against defendant-appellees.
On July 19, 1996, the trial court rendered its
decision, the dispositive portion of which reads, thus:
WHEREFORE, judgment is
hereby rendered in favor of the

cost.
SO ORDERED.
Aggrieved, plaintiff-appellants filed an appeal
before the Court of Appeals assailing the abovedecision. Said appeal was docketed as CA-G.R. CV
No. 55207.
On December 23, 1998, the Court of
Appeals, through the then Second Division,
rendered a Decision reversing the assailed decision
and decreed as follows:
WHEREFORE, the judgment
herein appealed from is hereby
REVERSED, and judgment is
hereby rendered declaring the
plaintiffs-appellants to be entitled to
the possession of Lot No. 7777 of
the Molave Townsite, subject to the
rights of the defendants-appellees
under Article (sic) 448, 546, 547 and
548 of the New Civil Code.
The records of this case are
hereby ordered remanded to the

court
of
origin
for
further
proceedings to determine the rights
of the defendants-appellees under
the aforesaid article (sic) of the New
Civil Code, and to render judgment
thereon in accordance with the
evidence and this decision.
No pronouncement as to
costs.
SO ORDERED.

Owner
(sq.m.)

Lot No.
Area
Improvement
Appraised Value

Virginia
Cabang
7777
ing
P21,580.65
Jovencio
Capuno 7777
g
18,663.75
Amelito
Mata
7777
ng
5,658.10

32.55
15.75
14.00

Build
Buildin
Buildi

Toilet
Defendant-appellees thereafter filed a
petition for review on certiorari under Rule 45 of the
Rules of Court before the Supreme Court docketed
as G.R. No. 139601. On October 18, 1999, the
Supreme Court issued a Resolution denying the
petition for late filing and lack of appropriate service.

1,500.00

Subsequently, or on February 15, 2000, the

Supreme Court Resolution had become final and
executory.

Thereafter,
upon
verbal
request
of
defendant-appellees, the court a quo in its Order
declared that the tie point of the survey should be
the BLLM (Bureau of Lands Location Monument)
and authorized the official surveyor of the Bureau of
Lands to conduct the survey of the litigated property.

Consequently, the case was remanded to

the court a quo and the latter commissioned the
Municipal Assessor of Molave, Zamboanga del Sur
to determine the value of the improvements
introduced by the defendant-appellees.
The Commissioners Report determined that
at the time of ocular inspection, there were three (3)
residential buildings constructed on the property in
litigation. During the ocular inspection, plaintiffappellants son, Gil Basay, defendant-appellee
Virginia Cabang, and one Bernardo Mendez, an
occupant of the lot, were present. In the report, the
following appraised value of the improvements were
determined, thus:

Plants
Trees
2,164.00
TOTAL
6.50

&
P49,56

Pursuant to the above Order, the Community

Environment and Natural Resources Office
(CENRO) of the Department of Environment and
Natural Resources (DENR)-Region XI designated
Geodetic Engineer Diosdado L. de Guzman to [act]
as the official surveyor. On March 2002, Engr. De
Guzman submitted his survey report which
stated, inter alia:
1.

That on September 18, 2001, the

undersigned had conducted verification
survey of Lot 7777, Ts-222 and the adjacent

lots for reference purposes-with both parties

present on the survey;
2.

3.

4.

5.

6.

That the survey was started from BLLM #34,

as directed by the Order, taking sideshots of
lot corners, existing concrete fence, road
and going back to BLLM #34, a point of
reference;
Considering that there was only one BLLM
existing on the ground, the undersigned
conducted astronomical observation on
December 27, 2001 in order to check the
carried Azimuth of the traverse;
That per result of the survey conducted, it
was found out and ascertained that the area
occupied by Mrs. Virginia Cabang is a
portion of Lot 7777, with lot assignment to
be known as Lot 7777-A with an area of 303
square meters and portion of Lot 7778 with
lot assignment to be known as Lot 7778-A
with an area of 76 square meters. On the
same lot, portion of which is also occupied
by Mr. Bernardo Mendez with lot assignment
to be known as Lot 7777-B with an area of
236 square meters and Lot 7778-B with an
area of 243 square meters as shown on the
attached sketch for ready reference;
That there were three (3) houses made of
light material erected inside Lot No. 7777-A,
which is owned by Mrs. Virginia Cabang and
also a concrete house erected both on
portion of Lot No. 7777-B and Lot No. 7778B, which is owned by Mr. Bernardo Mendez.
x x x;
That the existing road had been traversing
on a portion of Lot 7778 to be know (sic) as

Lot 7778-CA-G.R. SP No. with an area of

116 square meters as shown on attached
sketch plan.
During the hearing on May 10, 2002, plaintiffappellants offer to pay P21,000.00 for the
improvement of the lot in question was rejected by
defendant-appellees. The court a quodisclosed its
difficulty in resolving whether or not the houses may
be subject of an order of execution it being a family
home.
On June 18, 2002, plaintiff-appellants filed
their Manifestation and Motion for Execution alleging
therein that defendant-appellees refused to accept
payment of the improvements as determined by the
court appointed Commissioner, thus, they should
now be ordered to remove said improvements at
their expense or if they refused, an Order of
Demolition be issued.
On September 6, 2002, the court a
quo issued the herein assailed Order denying the
[4]
motion for execution.
Respondents thereafter elevated their cause to the appellate
court which reversed the trial court in its May 31, 2007 Decision in
CA-G.R. CV No. 76755. Petitioners Motion for Reconsideration was
[5]
denied by the Court of Appeals in its Resolution dated September
21, 2007.
Hence, this petition.
Petitioners insist that the property subject of the controversy
is a duly constituted family home which is not subject to execution,
thus, they argue that the appellate tribunal erred in reversing the
judgment of the trial court.
The petition lacks merit.

[18]

It bears stressing that the purpose for which the records of the
case were remanded to the court of origin was for the enforcement of
[6]
the appellate courts final and executory judgment in CA-G.R. CV
No.
55207
which,
among
others,
declared
herein
respondents entitled to the possession of Lot No. 7777 of the
Molave Townsite subject to the provisions of Articles
[7]
[8]
[9]
[10]
448, 546, 547 an 548 of the Civil Code. Indeed, the decision
explicitly decreed that the remand of the records of the case was for
the court of origin [t]o determine the rights of the defendantsappellees under the aforesaid article[s] of the New Civil
Code, and to render judgment thereon in accordance with the
evidence and this decision.

tanto no validity to maintain otherwise would be to ignore the

constitutional provision against depriving a person of his property
[19]
without due process of law.

A final and executory judgment may no longer be modified

in any respect, even if the modification is meant to correct erroneous
conclusions of fact or law and whether it will be made by the court
[11]
that rendered it or by the highest court in the land.
The only
exceptions to this rule are the correction of (1) clerical errors; (2) the
so-called nunc pro tunc entries which cause no prejudice to any
[12]
party, and (3) void judgments.

As a general rule, points of law, theories and issues

not brought to the attention of the trial court cannot
be raised for the first time on appeal. For a contrary
rule would be unfair to the adverse party who would
have no opportunity to present further evidence
material to the new theory, which it could have done
had it been aware of if at the time of the hearing
[20]
before the trial court.

Well-settled is the rule that there can be no execution until

and unless the judgment has become final and executory, i.e. the
period of appeal has lapsed without an appeal having been taken, or,
having been taken, the appeal has been resolved and the records of
the case have been returned to the court of origin, in which event,
[13]
execution shall issue as a matter of right.
In short, once a
judgment becomes final, the winning party is entitled to a writ of
execution
and
the
issuance
thereof
becomes
a
[14]
courts ministerial duty.
Furthermore, as a matter of settled legal principle, a writ of
execution must adhere to every essential particulars of the
[15]
judgment sought to be executed. An order of execution may not
[16]
vary or go beyond the terns of the judgment it seeks to enforce.
A
writ of execution must conform to the judgment and if it is different
from, goes beyond or varies the tenor of the judgment which gives it
[17]
life, it is a nullity.
Otherwise stated, when the order of execution
and the corresponding writ issued pursuant thereto is not in harmony
with and exceeds the judgment which gives it life, they have pro

As aptly pointed out by the appellate court, from the

inception of Civil Case No. 99-20-127, it was already of judicial
notice that the improvements introduced by petitioners on the
litigated
property
are
residential
houses not
family
homes. Belatedly interposing such an extraneous issue at such a
late stage of the proceeding is tantamount to interfering with and
varying the terms of the final and executory judgment and a violation
of respondents right to due process because

The refusal, therefore, of the trial court to enforce the

execution on the ground that the improvements introduced on the
litigated property are family homes goes beyond the pale of what it
had been expressly tasked to do, i.e. its ministerial duty of executing
the judgment in accordance with its essential particulars. The
foregoing factual, legal and jurisprudential scenario reduces the
raising of the issue of whether or not the improvements introduced
by petitioners are family homes into a mere afterthought.
Even squarely addressing the issue of whether or not the
improvements introduced by petitioners on the subject land are
family homes will not extricate them from their predicament.
As defined, [T]he family home is a sacred symbol of family
love and is the repository of cherished memories that last during
[21]
ones lifetime.
It is the dwelling house where the husband and
wife, or an unmarried head of a family reside, including the land on
[22]
which it is situated.
It is constituted jointly by the husband and the

wife or by an unmarried head of a family.

Code provides that

[23]

Article 153 of the Family

The family home is deemed constituted 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.
The actual value of the family home shall not exceed, at the
time of its constitution, the amount of P300,000.00 in urban areas
[24]
and P200,000.00 in rural areas. Under the afore-quoted provision,
a family home is deemed constituted on a house and a lot from the
time it is occupied as a family residence. There is no need to
[25]
constitute the same judicially or extra-judicially.
There can be no question that a family home is generally
[26]
exempt from execution, provided it was duly constituted as
such. It is likewise a given that the family home must be constituted
on property owned by the persons constituting it. Indeed as pointed
[27]
out in Kelley, Jr. v. Planters Products, Inc.
[T]he family home
must be part of the properties of the absolute community or the
conjugal partnership, or of the exclusive properties of either spouse
with the latters consent, or on the property of the unmarried head of
[28]
the family.
In other words:
The family home must be established on
the properties of (a) the absolute community, or (b)
the conjugal partnership, or (c) the exclusive
property of either spouse with the consent of the
other. It cannot be established on property held
in co-ownership with third persons. However, it
can be established partly on community property, or
conjugal property and partly on the exclusive
property of either spouse with the consent of the
latter.

If constituted by an unmarried head of a

family, where there is no communal or conjugal
property existing, it can be constituted only on his or
[29]
her
own
property. (Emphasis
and
italics
supplied)
Therein lies the fatal flaw in the postulate of petitioners. For all
their arguments to the contrary, the stark and immutable fact is that
the property on which their alleged family home stands
is owned by respondents and the question of ownership had been
long laid to rest with the finality of the appellate courts judgment in
CA-G.R. CV No. 55207. Thus, petitioners continued stay on the
subject land is only by mere tolerance of respondents.
All told, it is too late in the day for petitioners to raise this
issue. Without doubt, the instant case where the family home issue
has been vigorously pursued by petitioners is but a clear-cut ploy
meant to forestall the enforcement of an otherwise final and
executory decision. The execution of a final judgment is a matter of
right on the part of the prevailing party whose implementation
is mandatory and ministerial on the court or tribunal issuing the
[30]
judgment.
The most important phase of any proceeding is the
[31]
execution of judgment.
Once a judgment becomes final, the
prevailing party should not, through some clever maneuvers devised
[32]
by an unsporting loser, be deprived of the fruits of the verdict.
An
unjustified delay in the enforcement of a judgment sets at naught the
role of courts in disposing of justiciable controversies with
[33]
finality.
Furthermore, a judgment if not executed would just be an
empty victory for the prevailing party because execution is the fruit
[34]
and end of the suit and very aptly called the life of the law.
The issue is moreover factual and, to repeat that trite refrain,
the Supreme Court is not a trier of facts. It is not the function of the
Court to review, examine and evaluate or weigh the probative value
of the evidence presented. A question of fact would arise in such
event. Questions of fact cannot be raised in an appeal
viacertiorari before the Supreme Court and are not proper for its
[35]
consideration.
The rationale behind this doctrine is that a review

of the findings of fact of the appellate tribunal is not a function this

Court normally undertakes. The Court will not weigh the evidence all
over again unless there is a showing that the findings of the lower
court are totally devoid of support or are clearly erroneous so as to
[36]
constitute serious abuse of discretion.
Although there are
[37]
recognized exceptions to this rule, none exists in this case to
justify a departure therefrom.

ATTESTATION
I attest that the conclusions in the above decision were
reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

WHEREFORE, the petition is DENIED. The Decision of the

Court of Appeals dated May 31, 2007 in CA-G.R. CV No. 76755
declaring respondents entitled to the writ of execution and ordering
petitioners to vacate the subject property, as well as the Resolution
dated September 21, 2007 denying the motion for reconsideration,
are AFFIRMED. Costs against petitioners.

Justice
son, Third Division

CONSUELO YNARES-SANTIAGO
Associate
Chairper

SO ORDERED.
CONSUELO YNARESSANTIAGO
Associate Justice
WE CONCUR:

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairpersons Attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the
Courts Division.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice
REYNATO S. PUNO
Chief Justice
DANTE O. TINGA
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

DIOSDADO M. PERALTA
Associate Justice

In lieu of Associate Justice Minita V. Chico-Nazario, per Special

Order No. 590 dated March 17, 2009.

[1]

Entitled Mr. & Mrs. Guillermo Basay v. Simeon Cabang, Virginia

Cabang and Venancio Cabang @ Dondon.
[2]
Rollo, pp. 17-33; penned by Associate Justice Rodrigo F. Lim, Jr.
and concurred in by Associate Justices Teresita Dy-Liacco Flores
and Jane Aurora C. Lantion.
[3]
Id. at 13-15, issued by Presiding Judge Camilo E. Tamin.
[4]
Id. at 18-23, citations omitted.
[5]
Id. at 35-36.
[6]
Whose dispositive portion reads:
WHEREFORE, the judgment herein appealed from is
hereby REVERSED, and judgment is hereby rendered declaring
the plaintiffs-appellants to be entitled to the possession of Lot
No. 7777 of the Molave Townsite, subject to the rights of the
defendants-appellees under Article[s] 448, 546 and 548 of the
New Civil Code.
The records of this case are hereby remanded to the court of
origin for further proceedings to determine the rights of the
defendants-appellees under the aforesaid article[s] of the New
Civil Code, and to render judgment thereon in accordance with
the evidence and this decision.
No pronouncement as to costs.
SO ORDERED. (Emphasis and italics supplied)
[7]
ART. 448. The owner of the land on which anything has been built,
sown or planted in good faith, shall have the right to appropriate as
his own the works, sowing or planting after payment of the indemnity
provided for in Articles 546 and 548, or to oblige the one who built or
planted to pay the price of the land, and the one who sowed proper
rent. However, the builder or planter cannot be obliged to buy the
land if its value is considerably more than that of the building or
trees. In such case, he shall pay reasonable rent, if the owner of the
land does not choose to appropriate the building or trees after proper
indemnity. The parties shall agree upon the terms of the lease and in
case of disagreement, the court shall fix the terms thereof.
[8]
ART. 546. Necessary expenses shall be refunded to every
possessor; but only the possessor in good faith may retain the thing
until he has been reimbursed therefor.
Useful expenses shall be refunded only to the possessor in
good faith with the same right of retention, the person who has
defeated him in the possession having the option of refunding the

amount of the expenses or of paying the increase in value which the

thing may have acquired by reason thereof.
[9]
ART. 547. If the useful improvement can be removed without
damage to the principal thing, the possessor in good faith may
remove them, unless the person who recovers the possession
exercises the option under paragraph 2 of the preceding article.
[10]
ART. 548. Expenses for pure luxury or mere pleasure shall not be
refunded to the possessor in good faith; but he may remove the
ornaments with which he has embellished the principal thing if it
suffers no injury thereby and if his successor in the possession does
not prefer to refund the amount expended.
[11]
Biglang-awa v. Philippine Trust Company, G.R. No. 158998,
March 28, 2008, 550 SCRA 160, 177, citing Collantes v. Court of
Appeals, G.R. No. 169604, March 6, 2007, 517 SCRA 561, 562.
[12]
Equitable Banking Corporation v. Sadac, G.R. No. 164772, June
8, 2006, 490 SCRA 380; Ramos v. Ramos, 447 Phil. 114 (2003).
[13]
Air Materiel Wing Savings and Loan Association, Inc. v. Manay,
G.R. No. 175338, October 9, 2007, 535 SCRA 356, 370.
[14]
Government Service Insurance System v. Pacquing, A.M. No.
RTJ-04-1831, February 2, 2007, 514 SCRA 1, 11; Mangahas v.
Paredes, G.R. No. 157866, February 14, 2007, 515 SCRA 709,
718; Abaga v. Panes, G.R. No. 147044, August 24, 2007, 531 SCRA
56, 63.
[15]
Florez v. UBS Marketing Corporation, G.R. No. 169747, July 27,
2007, 528 SCRA 396, 401.
[16]
Lao v. King, G.R. No. 160358, August 31, 2006, 500 SCRA 599,
605.
[17]
B.E. San Diego, Inc. v. Alzul, G.R. No. 169501, June 8, 2007, 524
SCRA 402, 433.
[18]
Florentino v. Rivera, G.R. No. 167968, January 23, 2006, 479
SCRA 522, 530; Ingles v. Cantos, G.R. No. 125202, January 31,
2006, 481 SCRA 140, 149.
[19]
QBE Insurance Phils., Inc. v. Lavia, A.M. No. RTJ-06-1971,
October 17, 2007, 536 SCRA 372, 386; KKK Foundation, Inc. v.
Calderon-Bargas, G.R. No. 163785, December 27, 2007, 541 SCRA
432, 442.
[20]
Aluad v. Aluad, G.R No. 176943, October 17, 2008.
[21]
A. Tolentino, Commentaries and Jurisprudence on the Civil Code
of the Philippines, Vol. I (1990 ed.), p. 508, citing the Code
Commission of 1947, pp. 18-19, 20.

[22]

CIVIL CODE, Article 152.

Patricio v. Dario III, G.R. No. 170829, November 20, 2006, 507
SCRA 438, 444, citing Article 152, Civil Code.
[24]
FAMILY CODE, Art. 157.
[25]
Manacop v. Court of Appeals, 342 Phil. 735, 741 (1997).
[26]
RULES OF COURT, Rule 39, Section 13(a).
[27]
G.R. No. 172263, July 9, 2008, 557 SCRA 499, 502.
[28]
Id., citing FAMILY CODE, Art. 156.
[29]
Pineda E.L., The Family Code of the Philippines, Annotated,
(1999 ed.), p. 288.
[30]
Suyat v. Gonzales-Tesoro, G.R. No. 162277, December 7, 2005,
476 SCRA 615, 623.
[31]
Bautista v. Orque, Jr., A.M. No. P-05-2099, October 31, 2006,
506 SCRA 309, 313.
[32]
Rigor v. Tenth Division of the Court of Appeals, G.R. No. 167400,
June 30, 2006, 494 SCRA 375, 383.
[33]
Aguilar v. Manila Banking Corporation, G.R. No. 157911,
September 19, 2006, 502 SCRA 354, 382.
[34]
Bergonia v. Gatcheco, Jr., A.M. No. P-05-1976, September 9,
2005, 469 SCRA 479, 484.
[35]
Buenaventura v. Pascual, G.R. No. 168819, November 27, 2008,
citing Heirs of Simeon Borlado v. Court of Appeals, 416 Phil. 257,
262 (2001).
[36]
Pacific Airways Corporation v. Tonda, 441 Phil. 156, 162 (2002).
[37]
These recognized exceptions are: (1) when the findings are
grounded entirely on speculation, surmises or conjectures; (2) when
the inference made is manifestly mistaken, absurd or impossible; (3)
when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of facts
are conflicting; (6) when in making it s findings, the Court of Appeals
went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the
findings are contrary to the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondent;
(10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record
(Marita C. Bernaldo v. The Ombudsman and the Department of
Public Highways, G.R. No. 156286, August 13, 2008); and (11) when
[23]

the Court of Appeals manifestly overlooked certain relevant facts not

disputed by the parties, which, if properly considered, would justify a
different conclusion (Superlines Transportation Co., Inc. v. PNCC,
G.R. No. 169596, March 28, 2007, 519 SCRA 432, 441,
citing Insular Life Assurance Co., Ltd. v. CA, G.R. No. 126850, April
28, 2004, 428 SCRA 79, 85-86); see also Grand Placement and
Services Corporation v. Court of Appeals, G.R. No. 142358, January
31, 2006, 481 SCRA 189, 202, citing Mayon Hotel & Restaurant v.
Adama, G.R. No. 157634, March 16, 2005, 458 SCRA 609,
624; Castillo v. NLRC, 367 Phil. 603, 619 (1999) & The Insular Life
Assurance Co. Ltd. v. CA, supra; Sampayan v. Court of
Appeals, G.R. No. 156360, January 14, 2005, 448 SCRA 220, 229,
citing The
Insular
Life
Assurance
Co.
Ltd.
v.
CA, supra, citing Langkaan Realty Development, Inc. v. United
Coconut Planters Bank, 400 Phil. 1349, 1356 (2000); Nokom v.
NLRC, 390 Phil. 1228, 1242-1243 (2000) & Sta. Maria v. CA, 349
Phil. 275, 282-283 (2000); Aguirre v. Court of Appeals, G.R. No.
122249, January 29, 2004, 421 SCRA 310, 319; C & S Fishfarm
Corporation v. CA, 442 Phil. 279, 278 (2002).

THIRD DIVISION
G.R. No. 165950

August 11, 2010

EQUITABLE PCI BANK, INC., Petitioner,

vs.
OJ-MARK TRADING, INC. and SPOUSES OSCAR AND
EVANGELINE MARTINEZ, Respondents.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari filed by petitioner under
Rule 45 of the 1997 Rules of Civil Procedure, as amended, praying
1
for the reversal of the Decision dated October 29, 2004 of the Court
of Appeals (CA) in CA-G.R. SP No. 77703, which denied its petition
for certiorari assailing the trial courts orders granting respondents
application for a writ of preliminary injunction.
The factual antecedents:
Respondent-spouses Oscar and Evangeline Martinez obtained loans
from petitioner Equitable PCI Bank, Inc. in the aggregate amount of
Four Million Forty-Eight Thousand Eight Hundred Pesos
(P4,048,800.00). As security for the said amount, a Real Estate
Mortgage (REM) was executed over a condominium unit in San
Miguel Court, Valle Verde 5, Pasig City, Metro Manila where the
spouses are residing. Respondent Oscar Martinez signed the REM
both as principal debtor and as President of the registered owner
and third-party mortgagor, respondent OJ-Mark Trading, Inc. The
REM was annotated on Condominium Certificate of Title No. PT2
21363 of the Registry of Deeds of Pasig City.

Republic of the Philippines

SUPREME COURT
Manila

Respondent-spouses defaulted in the payment of their outstanding

loan obligation, which as of October 31, 2002 stood
3
at P4,918,160.03. In a letter dated May 15, 2002, they offered to
settle their indebtedness "with the assignment to the Bank of a

commercial lot of corresponding value" and also requested for

recomputation at a lower interest rate and condonation of
4
penalties. While petitioners officers held a meeting with respondent
Oscar Martinez, the latter however failed to submit the required
documents such as certificates of title and tax declarations so that
the bank can evaluate his proposal to pay the mortgage debt via
5
dacion en pago. Consequently, petitioner initiated the extrajudicial
foreclosure of the real estate mortgage by filing an ex parte petition
before the Office of the Executive Judge, Regional Trial Court (RTC)
6
of Pasig City.
On January 23, 2003, respondents filed Civil Case No. 69294 for
"Temporary Restraining Order (TRO), Injunction and Annulment of
Extrajudicial Foreclosure Sale" in the RTC of Pasig City. On January
27, 2003, the trial court granted a TRO effective for twenty (20) days.
In their Complaint With Application for Temporary Restraining
7
Order, respondents sought to enjoin the impending foreclosure sale
alleging that the same was hasty, premature, unreasonable and
unwarranted, and also claiming defects in the execution of the REM.
Respondents imputed bad faith on the part of petitioner who did not
officially inform them of the denial or disapproval of their proposal to
settle the loan obligation by "dacion via assignment of a commercial
property." Respondents maintained that aside from the REM being
illegally notarized, incomplete and unenforceable, the obligation
subject thereof had been extinguished by the dacion proposal
considering that the value of the property offered was more than
sufficient to pay for the mortgage debt. It was further averred that the
subject property is being used and occupied by respondent-spouses
as a family home.
In his Order dated February 17, 2003, Judge Mariano M. Singzon, Jr.
8
granted the application for a writ of preliminary injunction. Petitioner
filed a motion for reconsideration which was denied under the Order
9
dated April 21, 2003.
Petitioner questioned the issuance of preliminary injunction before
the CA arguing that the respondents are not entitled to injunctive
relief after having admitted that they were unable to settle their loan

obligations. By Decision dated October 29, 2004, the appellate court

sustained the assailed orders, holding that:
...respondent spouses have sufficiently shown that they have a right
over the condominium unit which is subject of the mortgage. This
proprietary right over the condominium is what they are trying to
protect when they applied for preliminary injunction. As respondent
spouses have alleged in their complaint, the issuance of notice of
foreclosure sale is at most premature as there are still several factual
issues that need to be resolved before a foreclosure can be effected.
Such already constitute the ostensible right which respondent
spouses possess in order for the foreclosure sale to be temporarily
10
enjoined.
Hence, this petition raising the following grounds:
I
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE
REVERSIBLE ERROR IN HOLDING THAT THE TRIAL COURT DID
NOT COMMIT GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OF JURISDICTION IN ISSUING THE ASSAILED WRIT OF
PRELIMINARY INJUNCTION
II
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE
REVERSIBLE ERROR IN HOLDING THAT INDIVIDUAL
RESPONDENTS SPS. MARTINEZ HAVE PROPRIETARY RIGHT
OVER THE MORTGAGED CONDOMINIUM UNIT
III
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE
REVERSIBLE ERROR IN HOLDING THAT SUCH PURPORTED
PROPRIETARY RIGHT OF RESPONDENTS SPS. MARTINEZ
DESERVES THE PROTECTIVE MANTLE OF A WRIT OF
PRELIMINARY INJUNCTION DESPITE THEIR CLEAR AND

UNEQUIVOCAL ADMISSION OF THE OUTSTANDING LOANS

AND THEIR DELINQUENCY
IV
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT THERE ARE STILL SEVERAL FACTUAL ISSUES TO BE
RESOLVED IN A FULL-BLOWN TRIAL BEFORE PETITIONER
EPCIB COULD EXERCISE ITS STATUTORY AND EQUITABLE
11
RIGHT TO FORECLOSE
The sole issue to be resolved is whether or not the respondents have
shown a clear legal right to enjoin the foreclosure and public auction
of the third-party mortgagors property while the case for annulment
of REM on said property is being tried.
Petitioner argued that the appellate courts conclusion that
respondents possess proprietary right over the mortgaged property
subject of foreclosure is utterly baseless, for the following reasons:
first, while the condominium unit is supposedly a family home, it is
admittedly owned by respondent corporation and not by the conjugal
partnership or absolute community of respondent-spouses; and
second, even assuming that OJ-Mark Trading, Inc. is a family
corporation, respondents stance contravenes the established rule
that properties registered in the name of the corporation are owned
by it as an entity separate and distinct from its members or
12
stockholders.
As to the alleged proposal of respondent Oscar Martinez to assign
commercial lots by dacion en pago to settle their loan obligations,
petitioner pointed out that the properties offered for dacion are not
owned, and much less to be owned by him, but purportedly owned
by another corporation (developer), the president of which
supposedly owes him a sum of money. Respondent Oscar Martinez
likewise admitted during the hearings before the trial court his unpaid
loan with petitioner. Moreover, with the filing of a petition for
extrajudicial foreclosure of the real estate mortgage by petitioner, it
serves more than a formal rejection of respondents dacion en pago
13
offer.

On their part, the respondents contended that the petition raises

factual issues not proper in an appeal by certiorari under Rule 45.
They asserted that the trial court correctly found sufficient legal basis
to grant the writ of preliminary injunction after conducting a summary
hearing in which both parties actively participated and submitted oral
and documentary evidence. Such evidence adduced by
respondents, as well as the Affidavit dated January 24, 2003 of Atty.
Oscar Martinez (adopted in the February 7, 2003 hearing) fully
supported their application and hence the trial court did not act
14
precipitately or arbitrarily in granting injunctive relief.
Respondents argued that they appear to be entitled to the relief
demanded by their Complaint "because petitioner was in bad faith
when it proceeded to foreclose while there was still a pending written
proposal to pay." They stand to lose a prime property, and thus
made a serious and sincere offer by way of dacion en pago. To show
good faith and as required by petitioner to continue the negotiations
for dacion, respondent Atty. Oscar Martinez even paidP100,000.00
in October 2002, which petitioner accepted. But petitioner
maliciously, fraudulently and hastily proceeded to foreclose the
renovated mortgaged property, apparently motivated by its discovery
after re-appraisal that the floor area of the townhouse and number of
its rooms had doubled (from 180.750 sq. m. with three [3] bedrooms,
it is now 350 sq. m. with six [6] bedrooms). Respondents contended
that as creditor, it was petitioners duty not to sit on respondents
dacion offer and should have informed them in writing that said offer
is rejected. By hanging on the dacion talks, petitioner thus prevented
the respondents repayment of the loan, in malicious haste to acquire
15
the condominium unit as asset.
Respondents further claimed that the extrajudicial foreclosure will
cause grave injustice and irreparable injury to respondent-spouses
and their four (4) young children because their family home, in which
they were residing since 1997, at least insofar as the unencumbered
area in excess of 180.750 sq. m., is exempt from forced sale or
execution under Article 155 of the Family Code. Petitioner, on the
other hand, will not suffer any loss if the foreclosure will not
16
proceed.

With respect to the commercial lots offered in dacion, respondents

fault the petitioner in deliberately ignoring the fact that the Blue
Mountains Subdivision located at Antipolo City was already approved
by the Land Registration Authority; although the subdivided lots have
already been applied, the individual titles had not yet been issued. It
was therefore impossible for respondents to deliver these titles to
petitioner by October 21, 2002 considering the normal time it takes to
secure land titles. Respondents deplored the sudden filing of the
petition for extrajudicial foreclosure, which was unfair as the
negotiations had already reached the stage when petitioner
scheduled an ocular inspection for the appraisal of the lots. However,
for unknown reasons, petitioner did not push through with the
17
inspection.
We grant the petition.
Section 3, Rule 58 of the Rules of Court provides that:
SEC. 3. Grounds for issuance of preliminary injunction.A
preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and
the whole or part of such relief consists in restraining the
commission or continuance of the act or acts complained of,
or in requiring the performance of an act or acts, either for a
limited period or perpetually;
(b) That the commission, continuance or non-performance of
the act or acts complained of during the litigation would
probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in violation of
the rights of the applicant respecting the subject of the action
or proceeding, and tending to render the judgment
ineffectual.

As such, a writ of preliminary injunction may be issued only upon

clear showing of an actual existing right to be protected during the
pendency of the principal action. The twin requirements of a valid
injunction are the existence of a right and its actual or threatened
violations. Thus, to be entitled to an injunctive writ, the right to be
18
protected and the violation against that right must be shown. A writ
of preliminary injunction may be issued only upon clear showing of
an actual existing right to be protected during the pendency of the
19
principal action.
The issuance of a preliminary injunction rests entirely within the
discretion of the court taking cognizance of the case and is generally
20
not interfered with except in cases of manifest abuse. For the
issuance of the writ of preliminary injunction to be proper, it must be
shown that the invasion of the right sought to be protected is material
and substantial, that the right of complainant is clear and
unmistakable and that there is an urgent and paramount necessity
for the writ to prevent serious damage. In the absence of a clear
legal right, the issuance of a writ of injunction constitutes grave
21
abuse of discretion.
The possibility of irreparable damage without proof of actual existing
22
right is no ground for an injunction. Hence, it is not sufficient for the
respondents to simply harp on the serious damage they stand to
suffer if the foreclosure sale is not stayed. They must establish such
clear and unmistakable right to the injunction. In Duvaz Corporation
23
v. Export and Industry Bank, we emphasized that it is necessary for
the petitioner to establish in the main case its rights on an alleged
dacion en pago agreement before those rights can be deemed actual
and existing, which would justify the injunctive writ. Thus:
In Almeida v. Court of Appeals, the Court stressed how important it is
for the applicant for an injunctive writ to establish his right thereto by
competent evidence:
Thus, the petitioner, as plaintiff, was burdened to adduce testimonial
and/or documentary evidence to establish her right to the injunctive
writs. It must be stressed that injunction is not designed to protect
contingent or future rights, and, as such, the possibility of irreparable

damage without proof of actual existing right is no ground for an

injunction. A clear and positive right especially calling for judicial
protection must be established. Injunction is not a remedy to protect
or enforce contingent, abstract, or future rights; it will not issue to
protect a right not in esse and which may never arise, or to restrain
an action which did not give rise to a cause of action. There must be
an existence of an actual right. Hence, where the plaintiffs right or
title is doubtful or disputed, injunction is not proper.
An injunctive remedy may only be resorted to when there is a
pressing necessity to avoid injurious consequences which cannot be
remedied under any standard compensation. The possibility of
irreparable damage without proof of an actual existing right would not
justify injunctive relief in his favor.
xxx

xxx

xxx

x x x. In the absence of a clear legal right, the issuance of the

injunctive writ constitutes grave abuse of discretion. As the Court had
the occasion to state in Olalia v. Hizon, 196 SCRA 665 (1991):
It has been consistently held that there is no power the exercise of
which is more delicate, which requires greater caution, deliberation
and sound discretion, or more dangerous in a doubtful case, than the
issuance of an injunction. It is the strong arm of equity that should
never be extended unless to cases of great injury, where courts of
law cannot afford an adequate or commensurate remedy in
damages.
Every court should remember that an injunction is a limitation upon
the freedom of action of the defendant and should not be granted
lightly or precipitately. It should be granted only when the court is
fully satisfied that the law permits it and the emergency demands
it.1avvphi1
We are in full accord with the CA when it struck down, for having
been issued with grave abuse of discretion, the RTCs Order of
September 25, 2002, granting petitioners prayer for a writ of
preliminary injunction during the pendency of the main case, Civil

Case No. 02-1029. The reason therefor is that the right sought to be
protected by the petitioner in this case through the writ of preliminary
injunction is merely contingent and not in esse. It bears stressing that
the existing written contract between petitioner and respondent was
admittedly one of loan restructuring; there is no mention whatsoever
or even a slightest reference in that written contract to a supposed
agreement of dacion en pago. In fine, it is still necessary for
petitioner to establish in the main case its rights on the alleged
dacion en pago before those rights become in esse or actual and
existing. Only then can the injunctive writ be properly issued. It
cannot be the other way around. Otherwise, it will be like putting the
24
cart before the horse. [emphasis supplied.]
In the case at bar, respondents failed to show that they have a right
to be protected and that the acts against which the writ is to be
directed are violative of the said right. On the face of their clear
admission that they were unable to settle their obligations which
were secured by the mortgage, petitioner has a clear right to
25
foreclose the mortgage. Foreclosure is but a necessary
26
consequence of non-payment of a mortgage indebtedness. In a
real estate mortgage when the principal obligation is not paid when
due, the mortgagee has the right to foreclose the mortgage and to
have the property seized and sold with the view of applying the
27
proceeds to the payment of the obligation.
This Court has denied the application for a Writ of Preliminary
Injunction that would enjoin an extrajudicial foreclosure of a
mortgage, and declared that foreclosure is proper when the debtors
are in default of the payment of their obligation. Where the parties
stipulated in their credit agreements, mortgage contracts and
promissory notes that the mortgagee is authorized to foreclose the
mortgaged properties in case of default by the mortgagors, the
mortgagee has a clear right to foreclosure in case of default, making
28
the issuance of a Writ of Preliminary Injunction improper. In these
cases, unsubstantiated allegations of denial of due process and
prematurity of a loan are not sufficient to defeat the mortgagees
29
unmistakable right to an extrajudicial foreclosure.
We cannot agree with respondents position that petitioners act of
initiating extrajudicial foreclosure proceeding while they negotiated

for a dacion en pago was illegal and done in bad faith. As

respondent-spouses themselves admitted, they failed to comply with
the documentary requirements imposed by the petitioner for proper
evaluation of their proposal. In any event, petitioner had found the
subdivision lots offered for dacion as unacceptable, not only because
the lots were not owned by respondents as in fact, the lots were
not yet titled but also for the reason that respondent Oscar
Martinezs claimed right therein was doubtful or inchoate, and hence
not in esse.
Requests by debtors-mortgagors for extensions to pay and
proposals for restructuring of the loans, without acceptance by the
creditor-mortgagee, remain as that. Without more, those proposals
neither novated the parties mortgage contract nor suspended its
30
execution. In the same vein, negotiations for settlement of the
mortgage debt by dacion en pago do not extinguish the same nor
forestall the creditor-mortgagees exercise of its right to foreclose as
provided in the mortgage contract.
As we held in Tecnogas Philippines Manufacturing Corporation v.
31
Philippine National Bank -Dacion en pago is a special mode of payment whereby the debtor
offers another thing to the creditor who accepts it as equivalent of
payment of an outstanding obligation. The undertaking is really one
of sale, that is, the creditor is really buying the thing or property of
the debtor, payment for which is to be charged against the debtors
debt. As such, the essential elements of a contract of sale, namely,
consent, object certain, and cause or consideration must be present.
It is only when the thing offered as an equivalent is accepted by the
creditor that novation takes place, thereby, totally extinguishing the
debt.
On the first issue, the Court of Appeals did not err in ruling that
Tecnogas has no clear legal right to an injunctive relief because its
proposal to pay by way of dacion en pago did not extinguish its
obligation. Undeniably, Tecnogas proposal to pay by way of dacion
en pago was not accepted by PNB. Thus, the unaccepted proposal
neither novates the parties mortgage contract nor suspends its

execution as there was no meeting of the minds between the parties

on whether the loan will be extinguished by way of dacion en
pago. Necessarily, upon Tecnogas default in its obligations, the
foreclosure of the REM becomes a matter of right on the part of
PNB, for such is the purpose of requiring security for the loans.
[emphasis supplied.]
Respondent-spouses alleged "proprietary right" in the mortgaged
condominium unit appears to be based merely on respondents
averment that respondent OJ-Mark Trading, Inc. is a family
corporation. However, there is neither allegation nor evidence to
show prima facie that such purported right, whether as majority
stockholder or creditor, was superior to that of petitioner as creditormortgagee. The rule requires that in order for a preliminary injunction
to issue, the application should clearly allege facts and
circumstances showing the existence of the requisites. It must be
emphasized that an application for injunctive relief is construed
32
strictly against the pleader.
We note that the claim of exemption under Art. 153 of the Family
Code, thereby raising issue on the mortgaged condominium unit
being a family home and not corporate property, is entirely
inconsistent with the clear contractual agreement of the
33
REM. Assuming arguendo that the mortgaged condominium unit
constitutes respondents family home, the same will not exempt it
from foreclosure as Article 155 (3) of the same Code allows the
execution or forced sale of a family home "for debts secured by
mortgages on the premises before or after such constitution."
Respondents thus failed to show an ostensible right that needs
protection of the injunctive writ. Clearly, the appellate court seriously
erred in sustaining the trial courts orders granting respondents
application for preliminary injunction.
Anent the grave and irreparable injury which respondents alleged
they will suffer if no preliminary injunction is issued, this Court has
previously declared that all is not lost for defaulting mortgagors
whose properties were foreclosed by creditors-mortgagees, viz:

In any case, petitioners will not be deprived outrightly of their

property. Pursuant to Section 47 of the General Banking Law of
2000, mortgagors who have judicially or extrajudicially sold their real
property for the full or partial payment of their obligation have the
right to redeem the property within one year after the sale. They can
redeem their real estate by paying the amount due, with interest rate
specified, under the mortgage deed; as well as all the costs and
expenses incurred by the bank.
Moreover, in extrajudicial foreclosures, petitioners have the right to
receive any surplus in the selling price. This right was recognized in
Sulit v. CA, in which the Court held that "if the mortgagee is retaining
more of the proceeds of the sale than he is entitled to, this fact alone
will not affect the validity of the sale but simply gives the mortgagor a
34
cause of action to recover such surplus.

ROBERTO A. ABAD
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
CONCHITA CARPIO MORALES
Associate Justice
Chairperson, Third Division
CERTIFICATION

WHEREFORE, the petition is GRANTED. The Decision dated

October 29, 2004 of the Court of Appeals in CA-G.R. SP No. 77703
is hereby REVERSED and SET ASIDE. Respondents application for
a writ of preliminary injunction is DENIED.

Pursuant to Section 13, Article VIII of the 1987 Constitution and the
Division Chairpersons Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.

No costs.

RENATO C. CORONA
Chief Justice

SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice

Footnotes

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
Chairperson
ARTURO D. BRION
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

Designated additional member per Special Order No. 843

dated May 17, 2010.
1

Rollo, pp. 102-111. Penned by Associate Justice Monina

Arevalo-Zenarosa and concurred in by Associate Justice
(now Presiding Justice) Andres B. Reyes, Jr. and Associate
Justice Rosmari D. Carandang.
2

Id. at 53-56, 323-325.

Id. at 57.

Id. at 322.

Id. at 112-113.

Id. at 57-59.

Id. at 60-96.

Id. at 98-99.

Id. at 100-101.

10

11

12

Id. at 108-109.
Id. at 27-28.
Id. at 30-33.

13

Id. at 34-40.

14

Id. at 130-152, 202-212.

15

Id. at 166-167, 212-224.

16

Id. at 223-227.

17

Id. at 228-230.

18

Borromeo v. Court of Appeals, G.R. No. 169846, March

28, 2008, 550 SCRA 269, 280-281, citing Lim v. Court of
Appeals, G.R. No. 134617, February 13, 2006, 482 SCRA
326, 331.
19

Lim v. Court of Appeals, supra.

20

Reyes v. Court of Appeals, G.R. No. 129750, December

21, 1999, 321 SCRA 368, 374, citing Saulog v. Court of
Appeals, G.R. No. 119769, September 18, 1996, 262 SCRA
51, 59 and Inter-Asia Services Corp. (International) v. Court
of Appeals, G.R. No. 106427, October 21, 1996, 263 SCRA
408, 415.
21

Suico Industrial Corporation v. CA, 361 Phil. 160, 169

(1999); Sps. Arcega v. CA, 341 Phil. 166, 171 (1997), citing
Syndicated Media Access Corp. v. CA, G.R. No. 106982,
March 11, 1993, 219 SCRA 794, 797 and Vinzons-Chato v.
Natividad, G.R. No. 113843, June 2, 1995, 244 SCRA 787,
794-795.
22

Sps. Arcega v. CA, supra.

23

G.R. No. 163011, June 7, 2007, 523 SCRA 405.

24

Id. at 413-415.

25

Equitable PCI Bank, Inc. v. Fernandez, G.R. No. 163117,

December 18, 2009, 608 SCRA 433, 441, citing China
Banking Corporation v. Court of Appeals, G.R. No. 121158,
December 5, 1996, 265 SCRA 327, 343.
26

Producers Bank of the Philippines v. Court of Appeals,

G.R. No. 111584, September 17, 2001, 365 SCRA 326, 335.
27

Equitable PCI Bank v. Fernandez, supra note 25, citing

Union Bank of the Philippines v. Court of Appeals, 370 Phil.
837 (1999).
28

Borromeo v. Court of Appeals, supra note 18 at 284, citing

Bank of the Philippine Islands v. Court of Appeals, G.R. No.
142731, June 8, 2006, 490 SCRA 168; Selegna
Management and Development Corporation v. United
Coconut Planters Bank, G.R. No. 165662, May 3, 2006, 489

SCRA 125, 138; Lim v. Court of Appeals, supra; and PNB v.

Ritratto Group, Inc., 414 Phil. 494, 507-508 (2001).
29

Selegna Management and Development Corporation v.

United Coconut Planters Bank, supra at 127.
30

Lim v. Court of Appeals, supra note 18.

31

G.R. No. 161004, April 14, 2008, 551 SCRA 183, 189.

32

Marquez v. Presiding Judge (Hon. Ismael B. Sanchez),

RTC Br. 58, Lucena City, G.R. No. 141849, February 13,
2007, 515 SCRA 577, 594, citing Sales v. Securities and
Exchange Commission, G.R. No. 54330, January 13, 1989,
169 SCRA 109, 127 and 43 C.J.S. 867.

SECOND DIVISION
[G.R. No. 185064, January 16, 2012]
SPOUSES ARACELI OLIVA-DE MESA AND ERNESTO S. DE
MESA, PETITIONER, VS. SPOUSES CLAUDIO D. ACERO, JR.
AND MA. RUFINA D. ACERO, SHERIFF FELIXBERTO L.
SAMONTE AND REGISTRAR ALFREDO SANTOS,
RESPONDENTS.
DECISION

33

See Marquez v. The Presiding Judge, (Hon. Ismael B.

Sanchez), RTC Br. 58, Lucena City, supra at 596.
34

Selegna Management and Development Corporation v.

United Coconut Planters Bank, supra note 28 at 146, citing
Republic Act No. 8791, approved on May 23, 2000; J. Feria
and M.C. Noche, Civil Procedure Annotated, Vol. 2, 577
(2001); and Sulit v. Court of Appeals, 335 Phil. 914, 931
(1997).

REYES, J.:
Nature of the Petition
This is a petition for review on certiorari under Rule 45 of the Rules
of Court filed by the Spouses Araceli Oliva-De Mesa (Araceli) and
Ernesto S. De Mesa (Ernesto), assailing the Court of Appeals (CA)
[1]
[2]
Decision dated June 6, 2008 and Resolution dated October 23,
2008 in CA-G.R. CV No. 79391 entitled Spouses Araceli Oliva-De
Mesa and Ernesto De Mesa v. Spouses Claudio Acero, Jr., et al.
The Antecedent Facts
This involves a parcel of land situated at No. 3 Forbes Street, Mount
Carmel Homes Subdivision, Iba, Meycauayan, Bulacan, which was
formerly covered by Transfer Certificate of Title (TCT) No. T-76.725
(M) issued by the Register of Deeds of Meycauayan, Bulacan and
registered under Aracelis name. The petitioners jointly purchased
the subject property on April 17, 1984 while they were still merely
cohabiting before their marriage. A house was later constructed on
the subject property, which the petitioners thereafter occupied as
their family home after they got married sometime in January 1987.

Sometime in September 1988, Araceli obtained a loan from Claudio

D. Acero, Jr. (Claudio) in the amount of P100,000.00, which was
secured by a mortgage over the subject property. As payment,
Araceli issued a check drawn against China Banking Corporation
payable to Claudio.

(MTC) of Meycauayan, Bulacan against the petitioners and Juanito.

In their defense, the petitioners claimed that Spouses Acero have no
right over the subject property. The petitioners deny that they are
mere lessors; on the contrary, they are the lawful owners of the
subject property and, thus cannot be evicted therefrom.

When the check was presented for payment, it was dishonored as

the account from which it was drawn had already been closed. The
petitioners failed to heed Claudios subsequent demand for payment.

On July 22, 1999, the MTC rendered a Decision, giving due course
to Spouses Aceros complaint and ordering the petitioners and
Juanito to vacate the subject property. Finding merit in Spouses
Aceros claims, the MTC dismissed the petitioners' claim of
ownership over the subject property. According to the MTC, title to
the subject property belongs to Claudio as shown by TCT No. T221755 (M).

Thus, on April 26, 1990, Claudio filed with the Prosecutor's Office of
Malolos, Bulacan a complaint for violation of Batas Pambansa Blg.
22 (B.P. 22) against the petitioners. After preliminary investigation,
an information for violation of B.P. 22 was filed against the
petitioners with the Regional Trial Court (RTC) of Malolos, Bulacan.
[3]

On October 21, 1992, the RTC rendered a Decision acquitting the

petitioners but ordering them to pay Claudio the amount of
P100,000.00 with legal interest from date of demand until fully paid.
On March 15, 1993, a writ of execution was issued and Sheriff
Felixberto L. Samonte (Sheriff Samonte) levied upon the subject
property. On March 9, 1994, the subject property was sold on public
auction; Claudio was the highest bidder and the corresponding
certificate of sale was issued to him.
Sometime in February 1995, Claudio leased the subject property to
the petitioners and a certain Juanito Oliva (Juanito) for a monthly
rent of P5,500.00. However, the petitioners and Juanito defaulted in
the payment of the rent and as of October 3, 1998, their total
accountabilities to Claudio amounted to P170,500.00.
[4]

Meanwhile, on March 24, 1995, a Final Deed of Sale over the

subject property was issued to Claudio and on April 4, 1995, the
Register of Deeds of Meycauayan, Bulacan cancelled TCT No. T[5]
76.725 (M) and issued TCT No. T-221755 (M) in his favor.
Unable to collect the aforementioned rentals due, Claudio and his
wife Ma. Rufina Acero (Rufina) (collectively referred to as Spouses
Acero) filed a complaint for ejectment with the Municipal Trial Court

[6]

The MTC also stated that from the time a Torrens title over the
subject property was issued in Claudios name up to the time the
complaint for ejectment was filed, the petitioners never assailed the
validity of the levy made by Sheriff Samonte, the regularity of the
public sale that was conducted thereafter and the legitimacy of
Claudios Torrens title that was resultantly issued.
The petitioners appealed the MTCs July 22, 1999 Decision to the
RTC. This appeal was, however, dismissed in a Decision dated
November 22, 1999 due to the petitioners failure to submit their
Memorandum. The petitioners sought reconsideration of the said
decision but the same was denied in an Order dated January 31,
2000.
[7]

Consequently, the petitioners filed a petition for review with the CA

assailing the RTCs November 22, 1999 Decision and January 31,
[8]
2000 Order. In a December 21, 2006 Decision, the CA denied the
[9]
petitioners petition for review. This became final on July 25, 2007.
In the interregnum, on October 29, 1999, the petitioners filed against
[10]
the respondents a complaint to nullify TCT No. T-221755 (M) and
other documents with damages with the RTC of Malolos, Bulacan.
Therein, the petitioners asserted that the subject property is a family
home, which is exempt from execution under the Family Code and,
thus, could not have been validly levied upon for purposes of
satisfying the March 15, 1993 writ of execution.

[11]

On September 3, 2002, the RTC rendered a Decision, which

dismissed the petitioners complaint. Citing Article 155(3) of the
Family Code, the RTC ruled that even assuming that the subject
property is a family home, the exemption from execution does not
apply. A mortgage was constituted over the subject property to
secure the loan Araceli obtained from Claudio and it was levied upon
as payment therefor.
The petitioners sought reconsideration of the RTCs September 3,
[12]
2002 Decision but this was denied in a Resolution dated January
14, 2003.
On appeal, the CA affirmed the RTCs disposition in its
[13]
Decision dated June 6, 2008. The CA ratiocinated that the
exemption of a family home from execution, attachment or forced
sale under Article 153 of the Family Code is not automatic and
should accordingly be raised and proved to the Sheriff prior to the
execution, forced sale or attachment. The appellate court noted that
at no time did the petitioners raise the supposed exemption of the
subject property from execution on account of the same being a
family home.
The petitioners then sought reconsideration of the said June 6, 2008
Decision but the same was denied by the CA in its
[14]
Resolution dated October 23, 2008.
Aggrieved, the petitioners filed the instant petition for review, praying
for the cancellation of TCT No. T-221755 (M). They insist that the
execution sale that was conducted is a nullity considering that the
subject property is a family home. The petitioners assert that,
contrary to the disposition of the CA, a prior demonstration that the
subject property is a family home is not required before it can be
exempted from execution.
[15]

In their Comment, Spouses Acero claimed that this petition ought

to be denied on the ground of forum-shopping as the issues raised
had already been determined by the MTC in its July 22, 1999
Decision on the complaint for ejectment filed by them, which had

already become final and executory following the petitioners failure

to appeal the CAs December 21, 2006 Decision affirming it.
Issues
The threshold issues for resolution are the following: (a) whether the
petitioners are guilty of forum-shopping; and (b) whether the lower
courts erred in refusing to cancel Claudios Torrens title TCT No. T221755 (M) over the subject property.
The Courts Ruling
First Issue: Forum-Shopping
On the first issue, we find that the petitioners are not guilty of forumshopping.
There is forum-shopping when as a result of an adverse decision in
one forum, or in anticipation thereof, a party seeks a favorable
opinion in another forum through means other than an appeal
or certiorari. Forum-shopping exists when two or more actions
involve the same transactions, essential facts, and circumstances;
[16]
and raise identical causes of action, subject matter, and issues.
Forum-shopping exists where the elements of litis pendentia are
present, and where a final judgment in one case will amount to res
judicata in the other. The elements of forum-shopping are: (a)
identity of parties, or at least such parties as would represent the
same interest in both actions; (b) identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and (c)
identity of the two preceding particulars such that any judgment
rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under
[17]
consideration.
There is no identity of issues and reliefs prayed for in the ejectment
case and in the action to cancel TCT No. T-221755 (M). Verily, the
primordial issue in the ejectment case is who among the contending
parties has a better right of possession over the subject property
while ownership is the core issue in an action to cancel a Torrens
title.
It is true that the petitioners raised the issue of ownership over the

subject property in the ejectment case. However, the resolution

thereof is only provisional as the same is solely for the purpose of
determining who among the parties therein has a better right of
possession over the subject property.

litigants. However, the issue of ownership may be provisionally ruled

upon for the sole purpose of determining who is entitled to
possessionde facto. Therefore, the provisional determination of
ownership in the ejectment case cannot be clothed with finality.

Accordingly, a judgment rendered in an ejectment case is not a bar

to action between the same parties respecting title to the land or
building. Neither shall it be conclusive as to the facts therein. This
issue is far from being novel and there is no reason to depart from
this Courts previous pronouncements. In Malabanan v. Rural Bank
[18]
of Cabuyao, Inc., this Court had previously clarified that a decision
in an ejectment case is not res judicata in an annulment of title case
and vice-versa given the provisional and inconclusive nature of the
determination of the issue of ownership in the former.

Corollarily, the incidental issue of whether a pending action for

annulment would abate an ejectment suit must be resolved in the
negative.

Forum-shopping exists where the elements of litis pendentia are

present, namely: (a) identity of parties or at least such as
representing the same interests in both actions; (b) identity of rights
asserted and reliefs prayed for, the relief being founded on the same
facts; and (c) the identity in the two cases should be such that the
judgment that may be rendered in one would, regardless of which
party is successful, amounts to res judicata in the other.
Petitioner and respondent are the same parties in the annulment and
ejectment cases. The issue of ownership was likewise being
contended, with same set of evidence being presented in both
cases. However, it cannot be inferred that a judgment in the
ejectment case would amount to res judicata in the annulment case,
and vice-versa.
This issue is hardly a novel one. It has been laid to rest by heaps of
cases iterating the principle that a judgment rendered in an
ejectment case shall not bar an action between the same parties
respecting title to the land or building nor shall it be conclusive as to
the facts therein found in a case between the same parties upon a
different cause of action involving possession.
It bears emphasizing that in ejectment suits, the only issue for
resolution is the physical or material possession of the property
involved, independent of any claim of ownership by any of the party

A pending action involving ownership of the same property does not

bar the filing or consideration of an ejectment suit, nor suspend the
proceedings. This is so because an ejectment case is simply
designed to summarily restore physical possession of a piece of land
or building to one who has been illegally or forcibly deprived thereof,
without prejudice to the settlement of the parties' opposing claims of
[19]
juridical possession in appropriate proceedings. (citations omitted)
Second Issue: Nullification of TCT No. T-221755 (M)
Anent the second issue, this Court finds that the CA did not err in
dismissing the petitioners complaint for nullification of TCT No. T221755 (M).
The subject property is a family home.
The petitioners maintain that the subject property is a family home
and, accordingly, the sale thereof on execution was a nullity.
[20]
In Ramos v. Pangilinan, this Court laid down the rules relative to
exemption of family homes from execution:
For the family home to be exempt from execution, distinction must be
made as to what law applies based on when it was constituted and
what requirements must be complied with by the judgment debtor or
his successors claiming such privilege.Hence, two sets of rules are
applicable.
If the family home was constructed before the effectivity of the
Family Code or before August 3, 1988, then it must have been
constitutedeither judicially or extra-judicially as provided under
Articles 225, 229-231 and 233 of the Civil Code. Judicial
constitution of the family home requires the filing of a verified petition

before the courts and the registration of the courts order with the
Registry of Deeds of the area where the property is
located.Meanwhile, extrajudicial constitution is governed by Articles
240 to 242 of the Civil Code and involves the execution of a public
instrument which must also be registered with the Registry
ofProperty.Failure to comply with either one of these two modes of
constitution will bar a judgment debtor from availing of the privilege.
On the other hand, for family homes constructed after the effectivity
of the Family Code on August 3, 1988, there is no need to
constitute extrajudicially or judicially, and the exemption is
effective from the timeit was constituted and lasts as long as any of
its beneficiaries under Art. 154 actually resides therein. Moreover,
the family home should belong to the absolute community or
conjugal partnership, or if exclusively by one spouse, its constitution
must have beenwithconsent of the other, and its
valuemustnotexceed certain amounts depending upon the area
where it is located. Further, the debts incurred for which the
exemption does not apply as provided under Art. 155 for which the
family home is made answerable must have been incurred after
[21]
August 3, 1988. (citations omitted)
[22]

In the earlier case of Kelley, Jr. v. Planters Products, Inc., we

stressed that:
Under the Family Code, there is no need to constitute the family
home judicially or extrajudicially. All family homes constructed after
the effectivity of the Family Code (August 3, 1988) are constituted as
such by operation of law. All existing family residences as of
August 3, 1988 are considered family homes and are
prospectively entitled to the benefits accorded to a family home
[23]
under the Family Code. (emphasis supplied and citation omitted)
The foregoing rules on constitution of family homes, for purposes of
exemption from execution, could be summarized as follows:
First, family residences constructed before the effectivity of the
Family Code or before August 3, 1988 must be constituted as a
family home either judicially or extrajudicially in accordance with the
provisions of the Civil Code in order to be exempt from execution;

Second, family residences constructed after the effectivity of the

Family Code on August 3, 1988 are automatically deemed to be
family homes and thus exempt from execution from the time it was
constituted and lasts as long as any of its beneficiaries actually
resides therein;
Third, family residences which were not judicially or extrajudicially
constituted as a family home prior to the effectivity of the Family
Code, but were existing thereafter, are considered as family homes
by operation of law and are prospectively entitled to the benefits
accorded to a family home under the Family Code.
Here, the subject property became a family residence sometime in
January 1987. There was no showing, however, that the same was
judicially or extrajudicially constituted as a family home in
accordance with the provisions of the Civil Code. Still, when the
Family Code took effect on August 3, 1988, the subject property
became a family home by operation of law and was thus
prospectively exempt from execution. The petitioners were thus
correct in asserting that the subject property was a family home.
The family homes exemption from execution
must be set up and proved to the Sheriff before
the sale of the property at public auction.
Despite the fact that the subject property is a family home and, thus,
should have been exempt from execution, we nevertheless rule that
the CA did not err in dismissing the petitioners complaint for
nullification of TCT No. T-221755 (M). We agree with the CA that the
petitioners should have asserted the subject property being a family
home and its being exempted from execution at the time it was
levied or within a reasonable time thereafter. As the CA aptly pointed
out:
In the light of the facts above summarized, it is evident that
appellants did not assert their claim of exemption within a reasonable
time. Certainly, reasonable time, for purposes of the law on
exemption, does not mean a time after the expiration of the one-year
period provided for in Section 30 of Rule 39 of the Rules of Court for
judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on execution and

defeat the very purpose of execution to put an end to litigation. x x

[24]
x.
The foregoing disposition is in accord with the Courts November 25,
[25]
2005 Decision inHonrado v. Court of Appeals, where it was
categorically stated that at no other time can the status of a
residential house as a family home can be set up and proved and its
exemption from execution be claimed but before the sale thereof at
public auction:
While it is true that the family home is constituted on a house and lot
from the time it is occupied as a family residence and is exempt from
execution or forced sale under Article 153 of the Family Code, such
claim for exemption should be set up and proved to the Sheriff
before the sale of the property at public auction. Failure to do so
would estop the party from later claiming the exemption. As this
Court ruled inGomez v. Gealone:
Although the Rules of Court does not prescribe the period within
which to claim the exemption, the rule is, nevertheless, well-settled
that the right of exemption is a personal privilege granted to the
judgment debtor and as such, it must be claimed not by the sheriff,
but by the debtor himself at the time of the levy or within a
reasonable period thereafter;
In the absence of express provision it has variously held that claim
(for exemption) must be made at the time of the levy if the debtor is
present, that it must be made within a reasonable time, or promptly,
or before the creditor has taken any step involving further costs, or
before advertisement of sale, or at any time before sale, or within a
reasonable time before the sale, or before the sale has commenced,
but as to the last there is contrary authority.
In the light of the facts above summarized, it is self-evident that
appellants did not assert their claim of exemption within a reasonable
time. Certainly, reasonable time, for purposes of the law on
exemption, does not mean a time after the expiration of the one-year
period provided for in Section 30 of Rule 39 of the Rules of Court for
judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on execution and
defeat the very purpose of executionto put an end to litigation. We
said before, and We repeat it now, that litigation must end and
terminate sometime and somewhere, and it is essential to an

effective administration of justice that, once a judgment has become

final, the winning party be not, through a mere subterfuge, deprived
of the fruits of the verdict. We now rule that claims for exemption
from execution of properties under Section 12 of Rule 39 of the
Rules of Court must be presented before its sale on execution by the
[26]
sheriff. (citations omitted)
Reiterating the foregoing in Spouses Versola v. Court of
[27]
Appeals, this Court stated that:
Under the cited provision, a family home is deemed constituted on a
house and lot from the time it is occupied as a family residence;
there is no need to constitute the same judicially or extrajudicially.
The settled rule is that the right to exemption or forced sale
under Article 153 of the Family Code is a personal privilege
granted to the judgment debtor and as such, it must be claimed
not by the sheriff, but by the debtor himself before the sale of
the property at public auction. It is not sufficient that the person
claiming exemption merely alleges that such property is a family
home.This claim for exemption must be set up and proved to the
[28]
Sheriff. x x x. (emphasis supplied and citations omitted)
Having failed to set up and prove to the sheriff the supposed
exemption of the subject property before the sale thereof at public
auction, the petitioners now are barred from raising the same. Failure
to do so estop them from later claiming the said exemption.
Indeed, the family home is a sacred symbol of family love and is the
[29]
repository of cherished memories that last during ones lifetime. It
is likewise without dispute that the family home, from the time of its
constitution and so long as any of its beneficiaries actually resides
therein, is generally exempt from execution, forced sale or
[30]
attachment.
The family home is a real right, which is gratuitous, inalienable and
free from attachment. It cannot be seized by creditors except in
[31]
certain special cases. However, this right can be waived or be
barred by laches by the failure to set up and prove the status of the
property as a family home at the time of the levy or a reasonable
time thereafter.

are AFFIRMED.
In this case, it is undisputed that the petitioners allowed a
considerable time to lapse before claiming that the subject property
is a family home and its exemption from execution and forced sale
under the Family Code. The petitioners allowed the subject property
to be levied upon and the public sale to proceed. One (1) year
lapsed from the time the subject property was sold until a Final Deed
of Sale was issued to Claudio and, later, Aracelis Torrens title was
cancelled and a new one issued under Claudios name, still, the
petitioner remained silent. In fact, it was only after the respondents
filed a complaint for unlawful detainer, or approximately four (4)
years from the time of the auction sale, that the petitioners claimed
that the subject property is a family home, thus, exempt from
execution.
For all intents and purposes, the petitioners negligence or omission
to assert their right within a reasonable time gives rise to the
presumption that they have abandoned, waived or declined to assert
it. Since the exemption under Article 153 of the Family Code is a
personal right, it is incumbent upon the petitioners to invoke and
prove the same within the prescribed period and it is not the sheriffs
duty to presume or raise the status of the subject property as a
family home.
The petitioners negligence or omission renders their present
assertion doubtful; it appears that it is a mere afterthought and
artifice that cannot be countenanced without doing the respondents
injustice and depriving the fruits of the judgment award in their favor.
Simple justice and fairness and equitable considerations demand
that Claudios title to the property be respected. Equity dictates that
the petitioners are made to suffer the consequences of their
unexplained negligence.
WHEREFORE, in consideration of the foregoing disquisitions, the
petition is DENIED. The assailed Decision dated June 6, 2008 of the
Court of Appeals in CA-G.R. CV No. 79391, which affirmed the
Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22,
in Civil Case No. 1058-M-99 and dismissed the complaint for
declaration of nullity of TCT No. 221755 (M) and other documents,
and the October 23, 2008 Resolution denying reconsideration,

SO ORDERED.
*

Carpio, (Chairperson), Perez, Sereno, and Bernabe, JJ. concur.

*

Additional Member in lieu of Associate Justice Arturo D. Brion per

Special Order No. 1174 dated January 9, 2012.
[1]

Penned by Associate Justice Regalado E. Maambong, with

Associate Justices Celia C. Librea-Leagogo and Agustin S. Dizon,
concurring; rollo, pp. 28-41.
[2]

Id. at 42-43.

[3]

Id. at 65-68.

[4]

Id. at 74-75.

[5]

Id. at 76.

[6]

Id. at 77-80.

[7]

Id. at 293-313.

[8]

Penned by Associate Justice Ramon R. Garcia, with Associate

Justices Rebecca De Guia-Salvador and Magdangal M. De Leon,
concurring; id. at 279-287.
[9]

Id. at 288.

[10]

Id. at 44-55.

[11]

Id. at 156-163.

[12]

Id. at 170-172.

[13]

Supra note 1.

[14]

Supra note 2.

[15]

Rollo, pp. 253-278.

[16]

Making Enterprises, Inc. v. Marfori, G.R. No. 152239, August 17,

2011.
[17]

Cruz v. Caraos, G.R. No. 138208, April 23, 2007, 521 SCRA 510,
522.
[18]

G.R. No. 163495, May 8, 2009, 587 SCRA 442.

[19]

Id. at 446-448.

[20]

G.R. No. 185920, July 20, 2010, 625 SCRA 181.

[21]

Id. at 186-189.

[22]

G.R. No. 172263, July 9, 2008, 557 SCRA 499.

[23]

Id. at 502.

[24]

Rollo, pp. 38-39.

[25]

512 Phil 657 (2005).

[26]

Id. at 666-667.

[27]

529 Phil 377 (2006).

[28]

Id. at 386.

[29]

Cabang v. Basay, G.R. No. 180587, March 20, 2009, 582 SCRA
172, 184, citing A. Tolentino, Commentaries and Jurisprudence on
the Civil Code of the Philippines, Vol. 1 (1990 ed.), p. 508.
[30]
[31]

Family Code, Article 153.

Josef v. Santos, G.R. No. 165060, November 27, 2008, 572

SCRA 57, 63.