G.R. No. 140153       March 28, 2001ANTONIO DOCENA and ALFREDA DOCENA, petitioners, vs.HON. RICARDO P. LAPESURA, in his capacity as Presiding Judge of the RTC, Branch III, Guian, Eastern Samar; RUFINO M. GARADO, Sheriff IV; and CASIANO HOMBRIA, respondents.GONZAGA-REYES, J.:This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking the nullification of the Court of Appeals1 Resolutions dated June 18, 1999 and September 9, 1999 which dismissed the Petition for Certiorari and Prohibition2 under Rule 65 and denied the corresponding motion for reconsideration, respectively. The antecedent facts are as follows:On June 1, 1977, private respondent Casiano Hombria filed a Complaint .for the recovery of a parcel of land against his lessees, petitioner-spouses Antonio and Alfreda Docena.3 The petitioners claimed ownership of the land based on occupation since time immemorial.4 A certain Guillermo Abuda intervened in the case. In a Decision dated November 24, 1989, the trial court ruled in favor of the petitioners and the intervenor Abuda.5 On appeal, the Court of Appeals reversed the judgment of the trial court and ordered the petitioners "to vacate the land they have leased from the plaintiff-appellant [private respondent Casiano Hombria], excluding the portion which the petitioners reclaimed from the sea and forms part of the shore, as shown in the Commissioner's Report, and to pay the plaintiff-appellant the agreed rental of P1.00 per year from the date of the filing of the Complaint until they shall have actually vacated the premises."6 The Complaint in Intervention of Abuda was dismissed.7

On May 22, 1995, private respondent Hombria filed a Motion for Execution of the above decision which has already become final and executory.8 The motion was granted by the public respondent judge, and a Writ of Execution was issued therefor. However, the public respondent sheriff subsequently filed a Manifestation requesting that he "be clarified in the determination of that particular portion which is sought to be excluded prior to the delivery of the land adjudged in favor of plaintiff Casiano Hombria" in view of the defects in the Commissioner's Report and the Sketches attached thereto.9 After requiring the parties to file their Comment on the sheriff's Manifestation, the public respondent judge, in a Resolution dated August 30, 1996, held that "xxx no attempt should be made to alter or modify the decision of the Court of Appeals. What should be delivered therefore to the plaintiff xxx is that portion leased by the defendant-appellees from the plaintiff-appellant excluding the portion that the defendant-appellee have reclaimed from the sea and forms part of the shore as shown in the commissioner's report xxx."10 Pursuant to the Resolution, the public respondent sheriff issued an alias Writ of Demolition. The petitioners filed a Motion to Set Aside or Defer the Implementation of Writ of Demolition. This motion was denied by the public respondent judge in an Order dated November 18, 1998, a copy of

which was received by the petitioners on December 29, 1998.11 Also on December 29, 1998, the public respondent judge, in open court, granted the petitioners until January 13, 1999 to file a Motion for Reconsideration.12 On January 13, 1999, petitioners moved for an extension of the period to file a motion for reconsideration until January 28, 1999.13 The motion was finally filed by the petitioners on January 27, 1999, but was denied by the trial court in an Order dated March 17, 1999.14 A copy of the Order was received by the petitioners on May 4, 1999.15

A Petition for Certiorari and Prohibition was filed by the petitioners with the Court of Appeals, alleging grave abuse of discretion on the part of the trial court judge in issuing the Orders dated November 18, 1998 and March 17, 1999, and of the sheriff in issuing the alias Writ of Demolition. In a Resolution dated 4 June 18, 1999, the Court of Appeals dismissed the petition on the grounds that the petition was filed beyond the 60-day period provided under Section 4 of Rule 65 of the 1997 Revised Rules of Civil Procedure as amended by Bar Matter No. 803 effective September 1, 1998, and that the certification of non-forum shopping attached thereto was signed by only one of the petitioners.16 The Motion for Reconsideration filed by the petitioners was denied by the Court of Appeals in a Resolution dated September 9, 1999.17

Hence this petition. 1âwphi1.nêtThe sole issue in this case is whether or not the Court of Appeals erred in dismissing the Petition for Certiorari and Prohibition.The petition is meritorious.The Court of Appeals dismissed the Petition for Certiorari upon the following grounds, viz: (1) the petition was filed beyond the 60-day period provided under Sec. 4, Rule 65 of the 1997 Revised Rules of Civil Procedure as amended by Bar Matter No. 803 effective September l, 1998; and (2) the certification of non-forum shopping was signed by only one of the petitioners.Upon the first ground, the Court of Appeals stated in its Resolution dated June 18, 1999 that:

xxx the 60-day period is counted not from the receipt of the Order denying their Motion for Reconsideration but from the date of receipt of the Order of November 18, 1998 which was on December 29, 1998, interrupted by the filing of the Motion for Reconsideration on January 27, 1999. The Motion for "Reconsideration was denied in an Order dated March 17, 1999 received by the petitioners on May 4, 1999. Counting the remaining period, this petition should have been filed on June 4, 1999 but it was filed only on June 14, 1999 or ten (10) days beyond the 60-day period computed in accordance with Bar Matter No. 803.

xxx      xxx      xxx18

The petitioners agree that the counting of the 60-day period should commence on December 29, 1998, the date of the receipt by the petitioners of the assailed trial court order, interrupted by the filing of a motion for reconsideration on January 27, 1999, and resume upon receipt by the

petitioners of the denial of the motion by the trial court on May 4, 1999; however, the petitioners contend that from December 29, 1998 up to January 27, 1999, only the 15-day period allowed for the filing of a motion for reconsideration19 should be deemed to have elapsed considering the grant by the trial court of an extension of the period to file the motion until January 13, 1999. Hence, on May 4, 1999, .the petitioners still had 45 days to file a petition for certiorari and/or prohibition, and the filing made on June 14, 1999 was timely.We hold that the Petition for Certiorari and Prohibition has been timely filed.A.M. No. 00-2-03-SC, which took effect on September 1, 2000, amended Section 4 of Rule 65 of the 1997 Revised Rules of Civil Procedure20 to provide thus:

SEC. 4. When and where petition filed. -- The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals.No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. [Emphasis ours]

In the case of Systems Factors Corporation versus NLRC,21 we held that the abovequoted Resolution, being procedural in nature, is applicable to actions pending and undetermined at the time of their passage. The retroactive application of procedural laws such as this Resolution is not violative of any right of a person who may feel adversely affected thereby, as no vested right may attach to nor arise from procedural laws.22 The ruling in the Systems Factors case was reiterated in the recent case of Unity Fishing Development Corporation, et. al. vs. Court of Appeals, et. al.23 Applying the Resolution to the case at bar, the 60-day period for the filing of a petition for certiorari and prohibition should be reckoned from the date of receipt of the order denying the motion for reconsideration, i.e., May 4, 1999, and thus, the filing made on June 14, 1999 was well within the 60-day reglementary period.Anent the ground that the certification of non-forum shopping was signed by only one of the petitioners, it is the contention of the petitioners that the same is sufficient compliance with the requirements of Sections 1 and 2 of Rule 65 (Petition for Certiorari and Prohibition) in relation to Section 3 of Rule 46 (Original Cases Filed in the Court of Appeals). The petitioners argue that

since they are spouses with joint or indivisible interest over the alleged conjugal property subject of the original action which gave rise to the petition for certiorari and prohibition, the signing of the certificate of non-forum shopping by only one of them would suffice, especially considering the long distance they had to travel just to sign the said certificate.24Moreover, there is substantial compliance with the Rules of Court where the certification was signed by the husband who is the statutory administrator of the conjugal property.25

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

suits to defend an interest in the conjugal properties may be filed by the husband alone, with more reason, he may sign the certificate of non-forum shopping to be attached to the petition.Under the Family Code, the administration of the conjugal property belongs to the husband and the wife jointly.35 However, unlike an act of alienation or encumbrance where the consent of both spouses is required, joint management or administration does not require that the husband and wife always act together. Each spouse may validly exercise full power of management alone, subject to the intervention of the court in proper cases as provided under Article 124 of the Family Code.36 It is believed that even under the provisions of the Family Code, the husband alone could have filed the petition for certiorari and prohibition to contest the writs of demolition issued against the conjugal property with the Court of Appeals without being joined by his wife. The signing of the attached certificate of non-forum shopping only by the husband is not a fatal defect.More important, the signing petitioner here made the certification in his behalf and that of his wife. The husband may reasonably be presumed to have personal knowledge of the filing or non-filing by his wife of any action or claim similar to the petition for certiorari and prohibition given the notices and legal processes involved in a legal proceeding involving real property. We also see no justifiable reason why he may not lawfully undertake together with his wife to inform the court of any similar action or proceeding which may be filed. If anybody may repudiate the certification or undertaking for having been incorrectly made, it is the wife who may conceivably do so.In view of the circumstances of this case, namely, the property involved is a conjugal property, the petition questioning the writ of demolition thereof originated from an action for recovery brought against the spouses, and is clearly intended for the benefit of the conjugal partnership, and the wife, as pointed out in the Motion for Reconsideration in respondent court, was in the province of Guian, Samar, whereas the petition was prepared in Metro Manila, a rigid application of the rules on forum shopping that would disauthorize a husband's signing the certification in his behalf and that of his wife is too harsh and is clearly uncalled for.It bears stressing that the rules on forum shopping, which were designed to promote and facilitate the orderly administration of justice, should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective.37

The petitioner's motion for the issuance of a temporary restraining order to put on hold the demolition of the subject property is principally anchored on their alleged right to the nullification of the assailed orders and writs issued by the public respondents.38 As the existence of the right being asserted by the petitioners is a factual issue proper for determination by the Court of Appeals, the motion based thereon should likewise be addressed to the latter court.WHEREFORE, premises considered, the petition is hereby GRANTED. The Court of Appeals Resolutions dated June 18, 1999 and September 9, 1999

are hereby SET ASIDE and the case is REMANDED to the Court of Appeals for further proceedings.SO ORDERED.Melo, Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

G.R. No. 158040             April 14, 2008SPOUSES ONESIFORO and ROSARIO ALINAS, petitioner, vs.SPOUSES VICTOR and ELENA ALINAS, respondents.

D E C I S I O NAUSTRIA-MARTINEZ, J.:This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying that the Decision1 of the Court of Appeals (CA) dated September 25, 2002, and the CA Resolution2 dated March 31, 2003, denying petitioners' motion for reconsideration, be reversed and set aside.The factual antecedents of the case are as follows.Spouses Onesiforo and Rosario Alinas (petitioners) separated sometime in 1982, with Rosario moving to Pagadian City and Onesiforo moving to Manila. They left behind two lots identified as Lot 896-B-9-A with a bodega standing on it and Lot 896-B-9-B with petitioners' house. These two lots are the subject of the present petition.Petitioner Onesiforo Alinas (Onesiforo) and respondent Victor Alinas (Victor) are brothers. Petitioners allege that they entrusted their properties to Victor and Elena Alinas (respondent spouses) with the agreement that any income from rentals of the properties should be remitted to the Social Security System (SSS) and to the Rural Bank of Oroquieta City (RBO), as such rentals were believed sufficient to pay off petitioners' loans with said institutions. Lot 896-B-9-A with the bodega was mortgaged as security for the loan obtained from the RBO, while Lot 896-B-9-B with the house was mortgaged to the SSS. Onesiforo alleges that he left blank papers with his signature on them to facilitate the administration of said properties.Sometime in 1993, petitioners discovered that their two lots were already titled in the name of respondent spouses.Records show that after Lot 896-B-9-A was extra-judicially foreclosed, Transfer Certificate of Title (TCT) No. T-118533covering said property was issued in the name of mortgagee RBO on November 13, 1987. On May 2, 1988, the duly authorized representative of RBO executed a Deed of Installment Sale of Bank's Acquired Assets4 conveying Lot 896-B-9-A to respondent spouses. RBO's TCT over Lot 896-B-9-A was then cancelled and on February 22, 1989, TCT No. T-126645 covering said lot was issued in the name of respondent spouses.Lot 896-B-9-B was also foreclosed by the SSS and on November 17, 1986, the Ex-Oficio City Sheriff of Ozamis City issued a Certificate of Sale6 over said property in favor of the SSS. However, pursuant to a Special Power of Attorney7signed by Onesiforo in favor of Victor, dated March 10, 1989, the latter was able to redeem, on the same date, Lot 896-B-9-B from the SSS for the sum of P111,110.09. On June 19, 1989, a Certificate of Redemption8 was issued by the SSS.Onesiforo's signature also appears in an Absolute Deed of Sale9 likewise dated March 10, 1989, selling Lot 896-B-9-B to respondent spouses. The records also show a notarized document dated March 10, 1989 and

captioned Agreement10whereby petitioner Onesiforo acknowledged that his brother Victor used his own money to redeem Lot 896-B-9-B from the SSS and, thus, Victor became the owner of said lot. In the same Agreeement, petitioner Onesiforo waived whatever rights, claims, and interests he or his heirs, successors and assigns have or may have over the subject property. On March 15, 1993, by virtue of said documents, TCT No. 1739411 covering Lot 896-B-9-B was issued in the name of respondent spouses.On June 25, 1993, petitioners filed with the Regional Trial Court (RTC) of Ozamis City a complaint for recovery of possession and ownership of their conjugal properties with damages against respondent spouses.After trial, the RTC rendered its Decision dated November 13, 1995, finding that:

1. Plaintiffs have not proven that they entrusted defendant spouses with the care and administration of their properties. It was Valeria Alinas, their mother, whom plaintiff Onesiforo requested/directed to "take care of everything and sell everything" and Teresita Nuñez, his elder sister, to whom he left a "verbal" authority to administer his properties.2. Plaintiffs have not proven their allegation that defendant spouses agreed to pay rent of P1,500.00 a month for the occupancy of plaintiffs' house, which rent was to be remitted to the SSS and Rural Bank of Oroquieta to pay off plaintiffs' loan and to keep for plaintiffs the rest of the rent after the loans would have been paid in full.3. Plaintiff Onesiforo's allegation that defendants concocted deeds of conveyances (Exh. "M", "N" & "O") with the use of his signatures in blank is not worthy of credence. Why his family would conspire to rob him at a time when life had struck him with a cruel blow in the form of a failed marriage that sent him plummeting to the depths of despair is not explained and likewise defies comprehension. That his signatures appear exactly on the spot where they ought to be in Exhs. "M", "N" & "O" belies his pretension that he affixed them on blank paper only for the purpose of facilitating his sister Terry's acts of administration.This Court, therefore, does not find that defendant spouses had schemed to obtain title to plaintiffs' properties or enriched themselves at the expense of plaintiffs.12

with the following dispositive portion:WHEREFORE, this Court renders judgment:

1. declaring [respondents] Victor Jr. and Elena Alinas owners of Lot 896-B-9-A with the building (bodega) standing thereon and affirming the validity of their acquisition thereof from the Rural Bank of Oroquieta, Inc.;2. declaring [petitioners] Onesiforo and Rosario Alinas owners of Lot 896-B-9-B with the house standing thereon, plaintiff Onesiforo's sale thereof to defendants spouses without the consent of his wife being null and void and

defendant spouses' redemption thereof from the SSS not having conferred its ownership to them;3. ordering [petitioners] to reimburse [respondents] Victor Jr. and Elena Alinas the redemption sum ofP111,100.09, paid by them to the SSS (without interest as it shall be compensated with the rental value of the house they occupy) within sixty days from the finality of this judgment;4. ordering [respondents] to vacate the subject house within thirty days from receiving the reimbursement mentioned in No. 3 above; and5. reinstating TCT No. T-7248 in the name of [petitioners] and cancelling TCT No. T-17394 in the name of [respondents].

No costs.SO ORDERED.13

Only respondent spouses appealed to the CA assailing the RTC's ruling that they acquired Lot 896-B-9-B from the SSS by mere redemption and not by purchase. They likewise question the reimbursement by petitioners of the redemption price without interest.On September 25, 2002, the CA promulgated herein assailed Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing disquisitions, the first paragraph of the dispositive portion of the assailed decision is AFFIRMED and the rest MODIFIED as follows:

1. declaring [respondents] Victor Jr. and Elena Alinas owners of Lot 896-B-9-A with the building (bodega) standing thereon and affirming the validity of their acquisition thereof from the Rural Bank of Oroquieta, Inc.;2. declaring Onesiforo's sale of Lot 896-B-9-B together with the house standing thereon to [respondents] in so far as Rosario Alinas, his wife's share of one half thereof is concerned, of no force and effect;3. ordering [petitioners] Rosario Alinas to reimburse [respondents] the redemption amount of P55,550.00 with interest of 12% per annum from the time of redemption until fully paid.4. ordering the [respondents] to convey and transfer one half portion of Lot 896-B-9-B unto Rosario Alinas, which comprises her share on the property simultaneous to the tender of the above redemption price, both to be accomplished within sixty (60) days from finality of this judgment.5. in the event of failure of [respondents] to execute the acts as specified above, [petitioner] Rosario Alinas may proceed against them under Section 10, Rule 39 of the 1997 Rules of Civil Procedure.

6. on the other hand, failure of [petitioner] Rosario Alinas to reimburse the redemption price within sixty (60) days from the finality of this decision will render the conveyance and sale of her share by her husband to [respondents], of full force and effect.

No costs.SO ORDERED.14

Petitioners moved for reconsideration but the CA denied said motion per herein assailed Resolution dated March 31, 2003.Hence, the present petition on the following grounds:

The Honorable Court of Appeals abuse [sic] its discretion in disregarding the testimony of the Register of Deeds, Atty. Nerio Nuñez, who swore that the signatures appearing on various TCTs were not his own;The Honorable Court of Appeals manifestly abuse [sic] its discretion in declaring the respondents to be the owners of Lot 896-B-9-A with the building (bodega) standing thereon when they merely redeemed the property and are therefore mere trustees of the real owners of the property;It was pure speculation and conjecture and surmise for the Honorable Court of Appeals to impose an obligation to reimburse upon petitioners without ordering respondents to account for the rentals of the properties from the time they occupied the same up to the present time and thereafter credit one against the other whichever is higher.15

The first issue raised by petitioners deserves scant consideration. By assailing the authenticity of the Registrar of Deeds' signature on the certificates of title, they are, in effect, questioning the validity of the certificates.Section 48 of Presidential Decree No. 1529 provides, thus:

Sec. 48. Certificate not subject to collateral attack. - A certificate of title shall not be subject to collateral attack. It cannot be altered, modified, or cancelled except in a direct proceeding in accordance with law.

Pursuant to said provision, the Court ruled in De Pedro v. Romasan Development Corporation16 that:

It has been held that a certificate of title, once registered, should not thereafter be impugned, altered, changed, modified, enlarged or diminished except in a direct proceeding permitted by law. x x xThe action of the petitioners against the respondents, based on the material allegations of the complaint, is one for recovery of possession of the subject property and damages. However, such action is not a direct, but a collateral attack of TCT No. 236044.17 (Emphasis supplied)

As in De Pedro, the complaint filed by herein petitioners with the RTC is also one for recovery of possession and ownership. Verily, the present case is

merely a collateral attack on TCT No. T-17394, which is not allowed by law and jurisprudence.With regard to the second issue, petitioners’ claim that it was the CA which declared respondent spouses owners of Lot 896-B-9-A (with bodega) is misleading. It was the RTC which ruled that respondent spouses are the owners of Lot 896-B-9-A and, therefore, since only the respondent spouses appealed to the CA, the issue of ownership over Lot 896-B-9-A is not raised before the appellate court. Necessarily, the CA merely reiterated in the dispositive portion of its decision the RTC's ruling on respondent spouses' ownership of Lot 896-B-9-A.It is a basic principle that no modification of judgment or affirmative relief can be granted to a party who did not appeal.18Hence, not having appealed from the RTC Decision, petitioners can no longer seek the reversal or modification of the trial court's ruling that respondent spouses had acquired ownership of Lot 896-B-9-A by virtue of the sale of the lot to them by RBO.Furthermore, the CA did not commit any reversible error in affirming the trial court's factual findings as the records are indeed bereft of proof to support the petitioners’ allegations that they left the care and administration of their properties to respondent spouses; and that there is an agreement between petitioners and respondent spouses regarding remittance to the SSS and the RBO of rental income from their properties. Thus, respondent spouses may not be held responsible for the non-payment of the loan with RBO and the eventual foreclosure of petitioners' Lot 896-B-9-A.Petitioners do not assail the validity of the foreclosure of said lot but argues that respondent spouses merely redeemed the property from RBO. This is, however, belied by evidence on record which shows that ownership over the lot had duly passed on to the RBO, as shown by TCT No. T-11853 registered in its name; and subsequently, RBO sold the lot with its improvements to respondent spouses. Needless to stress, the sale was made after the redemption period had lapsed. The trial court, therefore, correctly held that respondent spouses acquired their title over the lot from RBO and definitely not from petitioners.However, with regard to Lot 896-B-9-B (with house), the Court finds it patently erroneous for the CA to have applied the principle of equity in sustaining the validity of the sale of Onesiforo’s one-half share in the subject property to respondent spouses.Although petitioners were married before the enactment of the Family Code on August 3, 1988, the sale in question occurred in 1989. Thus, their property relations are governed by Chapter IV on Conjugal Partnership of Gains of the Family Code.The CA ruling completely deviated from the clear dictate of Article 124 of the Family Code which provides:

Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. x x xIn the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other

spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent the disposition or encumbrance shall be void .  x x x (Underscoring and emphasis supplied)

In Homeowners Savings & Loan Bank v. Dailo,19 the Court categorically stated thus:

In Guiang v. Court of Appeals, it was held that the sale of a conjugal property requires the consent of both the husband and wife. In applying Article 124 of the Family Code, this Court declared that the absence of the consent of one renders the entire sale null and void, including the portion of the conjugal property pertaining to the husband who contracted the sale. x x xx x x xx x x By express provision of Article 124 of the Family Code, in the absence of (court) authority or written consent of the other spouse, any disposition or encumbrance of the conjugal property shall be void. 20

Thus, pursuant to Article 124 of the Family Code and jurisprudence, the sale of petitioners' conjugal property made by petitioner Onesiforo alone is void in its entirety.It is true that in a number of cases, this Court abstained from applying the literal import of a particular provision of law if doing so would lead to unjust, unfair and absurd results.21

In the present case, the Court does not see how applying Article 124 of the Family Code would lead to injustice or absurdity. It should be noted that respondent spouses were well aware that Lot 896-B-9-B is a conjugal property of petitioners. They also knew that the disposition being made by Onesiforo is without the consent of his wife, as they knew that petitioners had separated, and, the sale documents do not bear the signature of petitioner Rosario. The fact that Onesiforo had to execute two documents, namely: the Absolute Deed of Sale dated March 10, 1989 and a notarized Agreement likewise dated March 10, 1989, reveals that they had full knowledge of the severe infirmities of the sale. As held in Heirs of Aguilar-Reyes v. Spouses Mijares,22 "a purchaser cannot close his eyes to facts which should put a reasonable man on his guard and still claim he acted in good faith."23 Such being the case, no injustice is being foisted on respondent spouses as they risked transacting with Onesiforo alone despite their knowledge that the subject property is a conjugal property.Verily, the sale of Lot 896-B-9-B to respondent spouses is entirely null and void.However, in consonance with the salutary principle of non-enrichment at another’s expense, the Court agrees with the CA that petitioners should reimburse respondent spouses the redemption price paid for Lot 896-B-9-B

in the amount ofP111,110.09 with legal interest from the time of filing of the complaint.In Heirs of Aguilar-Reyes, the husband's sale of conjugal property without the consent of the wife was annulled but the spouses were ordered to refund the purchase price to the buyers, it was ruled that an interest of 12% per annum on the purchase price to be refunded is not proper. The Court elucidated as follows:

The trial court, however, erred in imposing 12% interest per annum on the amount due the respondents. In Eastern Shipping Lines, Inc. v. Court of Appeals, it was held that interest on obligations not constituting a loan or forbearance of money is six percent (6%) annually. If the purchase price could be established with certainty at the time of the filing of the complaint, the six percent (6%) interest should be computed from the date the complaint was filed until finality of the decision. In Lui vs. Loy, involving a suit for reconveyance and annulment of title filed by the first buyer against the seller and the second buyer, the Court, ruling in favor of the first buyer and annulling the second sale, ordered the seller to refund to the second buyer (who was not a purchaser in good faith) the purchase price of the lots. It was held therein that the 6% interest should be computed from the date of the filing of the complaint by the first buyer. After the judgment becomes final and executory until the obligation is satisfied, the amount due shall earn interest at 12% per year, the interim period being deemed equivalent to a forbearance of credit.Accordingly, the amount of P110,000.00 due the respondent spouses which could be determined with certainty at the time of the filing of the complaint shall earn 6% interest per annum from June 4, 1986 until the finality of this decision. If the adjudged principal and the interest (or any part thereof) remain unpaid thereafter, the interest rate shall be twelve percent (12%) per annum computed from the time the judgment becomes final and executory until it is fully satisfied.24

Thus, herein petitioners should reimburse respondent spouses the redemption price plus interest at the rate of 6% per annum from the date of filing of the complaint, and after the judgment becomes final and executory, the amount due shall earn 12% interest per annum until the obligation is satisfied.Petitioners pray that said redemption price and interest be offset or compensated against the rentals for the house and bodega.The records show that the testimonial evidence for rentals was only with regard to the bodega.25 However, the Court has affirmed the ruling of the RTC that Lot 896-B-9-A with the bodega had been validly purchased by respondent spouses from the RBO and a TCT over said property was issued in the name of respondent spouses on February 22, 1989. Testimonial evidence shows that the bodega was leased out by respondent spouses only

beginning January of 1990 when ownership had been transferred to them.26 Hence, any rentals earned from the lease of said bodega rightfully belongs to respondent spouses and cannot be offset against petitioners' obligation to respondent spouses.As to rentals for Lot 896-B-9-B and the house thereon, respondent Victor testified that they never agreed to rent the house and when they finally took over the same, it was practically inhabitable and so they even incurred expenses to repair the house.27 There is absolutely no proof of the rental value for the house, considering the condition it was in; as well as for the lot respondent spouses are occupying.Respondent spouses, having knowledge of the flaw in their mode of acquisition, are deemed to be possessors in bad faith under Article 52628 of the Civil Code. However, they have a right to be refunded for necessary expenses on the property as provided under Article 54629 of the same Code. Unfortunately, there is no credible proof to support respondent spouses' allegation that they spent more than P400,000.00 to repair and make the house habitable.Set-off or compensation is governed by Article 1279 of the Civil Code which provides, thus:

Article 1279. In order that compensation may be proper, it is necessary:1. That each one of the obligors be bound principally, and that he be at the time a principal creditor of the other;2. That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated;3. That the two debts be due;4. That they be liquidated and demandable;5. That over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor.

Therefore, under paragraph 4 of the foregoing provision, compensation or set-off is allowed only if the debts of both parties against each other is already liquidated and demandable. To liquidate means "to make the amount of indebtedness or an obligation clear and settled in the form of money."30 In the present case, no definite amounts for rentals nor for expenses for repairs on subject house has been determined. Thus, in the absence of evidence upon which to base the amount of rentals, no compensation or set-off can take place between petitioners and respondent spouses.While the courts are empowered to set an amount as reasonable compensation to the owners for the use of their property, this Court cannot set such amount based on mere surmises and conjectureWHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated September 25, 2002 isMODIFIED to read as follows:

1. declaring respondent spouses Victor Jr. and Elena Alinas owners of Lot 896-B-9-A with the building (bodega) standing thereon and affirming the validity of their acquisition thereof from the Rural Bank of Oroquieta, Inc.;2. declaring Onesiforo's sale of Lot 896-B-9-B together with the house standing thereon to respondent spouses null and void ab initio;3. ordering petitioners to jointly and severally reimburse respondent spouses the redemption amount of P111,110.09 with interest at 6% per annum from the date of filing of the complaint, until finality of this decision. After this decision becomes final, interest at the rate of 12% per annum on the principal and interest (or any part thereof) shall be imposed until full payment;4. ordering the respondent spouses to convey and transfer Lot 896-B-9-B to petitioners and vacate said premises within fifteen (15) days from finality of this Decision; and5. in the event of failure of respondent spouses to execute the acts as specified above, petitioners may proceed against them under Section 10, Rule 39 of the 1997 Rules of Civil Procedure.No costs.SO ORDERED.Ynares-Santiago, Chairperson, Chico-Nazario, Nachura, Reyes, JJ., concur.

G.R. No. 165803               September 1, 2010SPOUSES REX AND CONCEPCION AGGABAO, Petitioners, vs.DIONISIO Z. PARULAN, JR. and MA. ELENA PARULAN, Respondents.

D E C I S I O NBERSAMIN, J.:On July 26, 2000, the Regional Trial Court (RTC), Branch 136, in Makati City annulled the deed of absolute sale executed in favor of the petitioners covering two parcels of registered land the respondents owned for want of the written consent of respondent husband Dionisio Parulan, Jr. On July 2, 2004, in C.A.-G.R. CV No. 69044,1 the Court of Appeals (CA) affirmed the RTC decision.Hence, the petitioners appeal by petition for review on certiorari, seeking to reverse the decision of the CA. They present as the main issue whether the sale of conjugal property made by respondent wife by presenting a special power of attorney to sell (SPA) purportedly executed by respondent husband in her favor was validly made to the vendees, who allegedly acted in good faith and paid the full purchase price, despite the showing by the husband that his signature on the SPA had been forged and that the SPA had been executed during his absence from the country.We resolve the main issue against the vendees and sustain the CA’s finding that the vendees were not buyers in good faith, because they did not exercise the necessary prudence to inquire into the wife’s authority to sell. We hold that the sale of conjugal property without the consent of the husband was not merely voidable but void; hence, it could not be ratified.

AntecedentsInvolved in this action are two parcels of land and their improvements (property) located at No. 49 Miguel Cuaderno Street, Executive Village, BF Homes, Parañaque City and registered under Transfer Certificate of Title (TCT) No. 633762 and TCT No. 633773 in the name of respondents Spouses Maria Elena A. Parulan (Ma. Elena) and Dionisio Z. Parulan, Jr. (Dionisio), who have been estranged from one another.In January 1991, real estate broker Marta K. Atanacio (Atanacio) offered the property to the petitioners, who initially did not show interest due to the rundown condition of the improvements. But Atanacio’s persistence prevailed upon them, so that on February 2, 1991, they and Atanacio met with Ma. Elena at the site of the property. During their meeting, Ma. Elena showed to them the following documents, namely: (a) the owner’s original copy of TCT No. 63376; (b) a certified true copy of TCT No. 63377; (c) three tax declarations; and (d) a copy of the special power of attorney (SPA) dated January 7, 1991 executed by Dionisio authorizing Ma. Elena to sell the property.4 Before the meeting ended, they paid P20,000.00 as earnest money, for which Ma. Elena executed a handwritten Receipt of Earnest Money, whereby the parties stipulated that: (a) they would pay an additional payment of P130,000.00 on February 4, 1991; (b) they would pay the balance of the bank loan of the respondents amounting to P650,000.00 on or

before February 15, 1991; and (c) they would make the final payment of P700,000.00 once Ma. Elena turned over the property on March 31, 1991.5

On February 4, 1991, the petitioners went to the Office of the Register of Deeds and the Assessor’s Office of Parañaque City to verify the TCTs shown by Ma. Elena in the company of Atanacio and her husband (also a licensed broker).6 There, they discovered that the lot under TCT No. 63376 had been encumbered to Banco Filipino in 1983 or 1984, but that the encumbrance had already been cancelled due to the full payment of the obligation.7 They noticed that the Banco Filipino loan had been effected through an SPA executed by Dionisio in favor of Ma. Elena.8 They found on TCT No. 63377 the annotation of an existing mortgage in favor of the Los Baños Rural Bank, also effected through an SPA executed by Dionisio in favor of Ma. Elena, coupled with a copy of a court order authorizing Ma. Elena to mortgage the lot to secure a loan of P500,000.00.9

The petitioners and Atanacio next inquired about the mortgage and the court order annotated on TCT No. 63377 at the Los Baños Rural Bank. There, they met with Atty. Noel Zarate, the bank’s legal counsel, who related that the bank had asked for the court order because the lot involved was conjugal property.10

Following their verification, the petitioners delivered P130,000.00 as additional down payment on February 4, 1991; andP650,000.00 to the Los Baños Rural Bank on February 12, 1991, which then released the owner’s duplicate copy of TCT No. 63377 to them.11

On March 18, 1991, the petitioners delivered the final amount of P700,000.00 to Ma. Elena, who executed a deed of absolute sale in their favor. However, Ma. Elena did not turn over the owner’s duplicate copy of TCT No. 63376, claiming that said copy was in the possession of a relative who was then in Hongkong.12 She assured them that the owner’s duplicate copy of TCT No. 63376 would be turned over after a week.On March 19, 1991, TCT No. 63377 was cancelled and a new one was issued in the name of the petitioners.Ma. Elena did not turn over the duplicate owner’s copy of TCT No. 63376 as promised. In due time, the petitioners learned that the duplicate owner’s copy of TCT No. 63376 had been all along in the custody of Atty. Jeremy Z. Parulan, who appeared to hold an SPA executed by his brother Dionisio authorizing him to sell both lots.13

At Atanacio’s instance, the petitioners met on March 25, 1991 with Atty. Parulan at the Manila Peninsula.14 For that meeting, they were accompanied by one Atty. Olandesca.15 They recalled that Atty. Parulan "smugly demandedP800,000.00" in exchange for the duplicate owner’s copy of TCT No. 63376, because Atty. Parulan represented the current value of the property to be P1.5 million. As a counter-offer, however, they tendered P250,000.00, which Atty. Parulan declined,16 giving them only until April 5, 1991 to decide.

Hearing nothing more from the petitioners, Atty. Parulan decided to call them on April 5, 1991, but they informed him that they had already fully paid to Ma. Elena.17

Thus, on April 15, 1991, Dionisio, through Atty. Parulan, commenced an action (Civil Case No. 91-1005 entitled Dionisio Z. Parulan, Jr., represented by Jeremy Z. Parulan, as attorney in fact, v. Ma. Elena Parulan, Sps. Rex and Coney Aggabao),praying for the declaration of the nullity of the deed of absolute sale executed by Ma. Elena, and the cancellation of the title issued to the petitioners by virtue thereof.In turn, the petitioners filed on July 12, 1991 their own action for specific performance with damages against the respondents.Both cases were consolidated for trial and judgment in the RTC.18

Ruling of the RTCAfter trial, the RTC rendered judgment, as follows:WHEREFORE, and in consideration of the foregoing, judgment is hereby rendered in favor of plaintiff Dionisio A. Parulan, Jr. and against defendants Ma. Elena Parulan and the Sps. Rex and Concepcion Aggabao, without prejudice to any action that may be filed by the Sps. Aggabao against co-defendant Ma. Elena Parulan for the amounts they paid her for the purchase of the subject lots, as follows:

1. The Deed of Absolute Sale dated March 18, 1991 covering the sale of the lot located at No. 49 M. Cuaderno St., Executive Village, BF Homes, Parañaque, Metro Manila, and covered by TCT Nos. 63376 and 63377 is declared null and void.2. Defendant Mrs. Elena Parulan is directed to pay litigation expenses amounting to P50,000.00 and the costs of the suit.

SO ORDERED.19

The RTC declared that the SPA in the hands of Ma. Elena was a forgery, based on its finding that Dionisio had been out of the country at the time of the execution of the SPA;20 that NBI Sr. Document Examiner Rhoda B. Flores had certified that the signature appearing on the SPA purporting to be that of Dionisio and the set of standard sample signatures of Dionisio had not been written by one and the same person;21 and that Record Officer III Eliseo O. Terenco and Clerk of Court Jesus P. Maningas of the Manila RTC had issued a certification to the effect that Atty. Alfred Datingaling, the Notary Public who had notarized the SPA, had not been included in the list of Notaries Public in Manila for the year 1990-1991.22

The RTC rejected the petitioners’ defense of being buyers in good faith because of their failure to exercise ordinary prudence, including demanding from Ma. Elena a court order authorizing her to sell the properties similar to the order that the Los Baños Rural Bank had required before accepting the mortgage of the property.23 It observed that they had appeared to be in a hurry to consummate the transaction despite Atanacio’s advice that they first consult a lawyer before buying the property; that with ordinary prudence, they should first have obtained the owner’s duplicate copies of the TCTs

before paying the full amount of the consideration; and that the sale was void pursuant to Article 124 of the Family Code.24

Ruling of the CAAs stated, the CA affirmed the RTC, opining that Article 124 of the Family Code applied because Dionisio had not consented to the sale of the conjugal property by Ma. Elena; and that the RTC correctly found the SPA to be a forgery.The CA denied the petitioners’ motion for reconsideration.25

IssuesThe petitioners now make two arguments: (1) they were buyers in good faith; and (2) the CA erred in affirming the RTC’s finding that the sale between Mrs. Elena and the petitioners had been a nullity under Article 124 of the Family Code.The petitioners impute error to the CA for not applying the "ordinary prudent man’s standard" in determining their status as buyers in good faith. They contend that the more appropriate law to apply was Article 173 of the Civil Code, not Article 124 of the Family Code; and that even if the SPA held by Ma. Elena was a forgery, the ruling in Veloso v. Court of Appeals26warranted a judgment in their favor.Restated, the issues for consideration and resolution are as follows:

1) Which between Article 173 of the Civil Code and Article 124 of the Family Code should apply to the sale of the conjugal property executed without the consent of Dionisio?2) Might the petitioners be considered in good faith at the time of their purchase of the property?3) Might the ruling in Veloso v. Court of Appeals be applied in favor of the petitioners despite the finding of forgery of the SPA?

RulingThe petition has no merit. We sustain the CA.

1.Article 124, Family Code, applies to sale of conjugal 

properties made after the effectivity of the Family CodeThe petitioners submit that Article 173 of the Civil Code, not Article 124 of the Family Code, governed the property relations of the respondents because they had been married prior to the effectivity of the Family Code; and that the second paragraph of Article 124 of the Family Code should not apply because the other spouse held the administration over the conjugal property. They argue that notwithstanding his absence from the country Dionisio still held the administration of the conjugal property by virtue of his execution of the SPA in favor of his brother; and that even assuming that Article 124 of the Family Code properly applied, Dionisio ratified the sale through Atty. Parulan’s counter-offer during the March 25, 1991 meeting.We do not subscribe to the petitioners’ submissions.To start with, Article 25427 the Family Code has expressly repealed several titles under the Civil Code, among them the entire Title VI in which the

provisions on the property relations between husband and wife, Article 173 included, are found.Secondly, the sale was made on March 18, 1991, or after August 3, 1988, the effectivity of the Family Code. The proper law to apply is, therefore, Article 124 of the Family Code, for it is settled that any alienation or encumbrance of conjugal property made during the effectivity of the Family Code is governed by Article 124 of the Family Code.28

Article 124 of the Family Code provides:Article 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.Thirdly, according to Article 25629 of the Family Code, the provisions of the Family Code may apply retroactively provided no vested rights are impaired. In Tumlos v. Fernandez,30 the Court rejected the petitioner’s argument that the Family Code did not apply because the acquisition of the contested property had occurred prior to the effectivity of the Family Code, and pointed out that Article 256 provided that the Family Code could apply retroactively if the application would not prejudice vested or acquired rights existing before the effectivity of the Family Code. Herein, however, the petitioners did not show any vested right in the property acquired prior to August 3, 1988 that exempted their situation from the retroactive application of the Family Code.Fourthly, the petitioners failed to substantiate their contention that Dionisio, while holding the administration over the property, had delegated to his brother, Atty. Parulan, the administration of the property, considering that they did not present in court the SPA granting to Atty. Parulan the authority for the administration.Nonetheless, we stress that the power of administration does not include acts of disposition or encumbrance, which are acts of strict ownership. As such, an authority to dispose cannot proceed from an authority to administer, and vice versa, for the two powers may only be exercised by an agent by following the provisions on agency of the Civil Code (from Article 1876 to Article 1878). Specifically, the apparent authority of Atty. Parulan, being a special agency, was limited to the sale of the property in question, and did not include or extend to the power to administer the property.31

Lastly, the petitioners’ insistence that Atty. Parulan’s making of a counter-offer during the March 25, 1991 meeting ratified the sale merits no consideration. Under Article 124 of the Family Code, the transaction executed sans the written consent of Dionisio or the proper court order was void; hence, ratification did not occur, for a void contract could not be ratified.32

On the other hand, we agree with Dionisio that the void sale was a continuing offer from the petitioners and Ma. Elena that Dionisio had the option of accepting or rejecting before the offer was withdrawn by either or both Ma. Elena and the petitioners. The last sentence of the second paragraph of Article 124 of the Family Code makes this clear, stating that in the absence of the other spouse’s consent, the transaction should be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or upon authorization by the court before the offer is withdrawn by either or both offerors.

2.Due diligence required in verifying not only vendor’s title,

but also agent’s authority to sell the propertyA purchaser in good faith is one who buys the property of another, without notice that some other person has a right to, or interest in, such property, and pays the full and fair price for it at the time of such purchase or before he has notice of the claim or interest of some other persons in the property. He buys the property with the belief that the person from whom he receives the thing was the owner and could convey title to the property. He cannot close his eyes to facts that should put a reasonable man on his guard and still claim he acted in good faith.33 The status of a buyer in good faith is never presumed but must be proven by the person invoking it.34

Here, the petitioners disagree with the CA for not applying the "ordinary prudent man’s standard" in determining their status as buyers in good faith. They insist that they exercised due diligence by verifying the status of the TCTs, as well as by inquiring about the details surrounding the mortgage extended by the Los Baños Rural Bank. They lament the holding of the CA that they should have been put on their guard when they learned that the Los Baños Rural Bank had first required a court order before granting the loan to the respondents secured by their mortgage of the property.The petitioners miss the whole point.Article 124 of the Family Code categorically requires the consent of both spouses before the conjugal property may be disposed of by sale, mortgage, or other modes of disposition. In Bautista v. Silva,35 the Court erected a standard to determine the good faith of the buyers dealing witha seller who had title to and possession of the land but whose capacity to sell was restricted, in that the consent of the other spouse was required before the conveyance, declaring that in order to prove good faith in such a situation, the buyers must show that they inquired not only into the title of the seller but also into the seller’s capacity to sell.36 Thus, the buyers of conjugal

property must observe two kinds of requisite diligence, namely: (a) the diligence in verifying the validity of the title covering the property; and (b) the diligence in inquiring into the authority of the transacting spouse to sell conjugal property in behalf of the other spouse.It is true that a buyer of registered land needs only to show that he has relied on the face of the certificate of title to the property, for he is not required to explore beyond what the certificate indicates on its face.37 In this respect, the petitioners sufficiently proved that they had checked on the authenticity of TCT No. 63376 and TCT No. 63377 with the Office of the Register of Deeds in Pasay City as the custodian of the land records; and that they had also gone to the Los Baños Rural Bank to inquire about the mortgage annotated on TCT No. 63377. Thereby, the petitioners observed the requisite diligence in examining the validity of the TCTs concerned.Yet, it ought to be plain enough to the petitioners that the issue was whether or not they had diligently inquired into the authority of Ma. Elena to convey the property, not whether or not the TCT had been valid and authentic, as to which there was no doubt. Thus, we cannot side with them.Firstly, the petitioners knew fully well that the law demanded the written consent of Dionisio to the sale, but yet they did not present evidence to show that they had made inquiries into the circumstances behind the execution of the SPA purportedly executed by Dionisio in favor of Ma. Elena. Had they made the appropriate inquiries, and not simply accepted the SPA for what it represented on its face, they would have uncovered soon enough that the respondents had been estranged from each other and were under de facto separation, and that they probably held conflicting interests that would negate the existence of an agency between them. To lift this doubt, they must, of necessity, further inquire into the SPA of Ma. Elena. The omission to inquire indicated their not being buyers in good faith, for, as fittingly observed in Domingo v. Reed:381avvphi1What was required of them by the appellate court, which we affirm, was merely to investigate – as any prudent vendee should – the authority of Lolita to sell the property and to bind the partnership. They had knowledge of facts that should have led them to inquire and to investigate, in order to acquaint themselves with possible defects in her title. The law requires them to act with the diligence of a prudent person; in this case, their only prudent course of action was to investigate whether respondent had indeed given his consent to the sale and authorized his wife to sell the property.39

Indeed, an unquestioning reliance by the petitioners on Ma. Elena’s SPA without first taking precautions to verify its authenticity was not a prudent buyer’s move.40 They should have done everything within their means and power to ascertain whether the SPA had been genuine and authentic. If they did not investigate on the relations of the respondents vis-à-vis each other, they could have done other things towards the same end, like attempting to locate the notary public who had notarized the SPA, or checked with the RTC in Manila to confirm the authority of Notary Public Atty. Datingaling. It turned out that Atty. Datingaling was not authorized to act as a Notary Public

for Manila during the period 1990-1991, which was a fact that they could easily discover with a modicum of zeal.Secondly, the final payment of P700,000.00 even without the owner’s duplicate copy of the TCT No. 63376 being handed to them by Ma. Elena indicated a revealing lack of precaution on the part of the petitioners. It is true that she promised to produce and deliver the owner’s copy within a week because her relative having custody of it had gone to Hongkong, but their passivity in such an essential matter was puzzling light of their earlier alacrity in immediately and diligently validating the TCTs to the extent of inquiring at the Los Baños Rural Bank about the annotated mortgage. Yet, they could have rightly withheld the final payment of the balance. That they did not do so reflected their lack of due care in dealing with Ma. Elena.Lastly, another reason rendered the petitioners’ good faith incredible. They did not take immediate action against Ma. Elena upon discovering that the owner’s original copy of TCT No. 63376 was in the possession of Atty. Parulan, contrary to Elena’s representation. Human experience would have impelled them to exert every effort to proceed against Ma. Elena, including demanding the return of the substantial amounts paid to her. But they seemed not to mind her inability to produce the TCT, and, instead, they contented themselves with meeting with Atty. Parulan to negotiate for the possible turnover of the TCT to them.

3.Veloso v. Court of Appeals cannot help petitioners

The petitioners contend that the forgery of the SPA notwithstanding, the CA could still have decided in their favor conformably with Veloso v. Court of Appeals,41 a case where the petitioner husband claimed that his signature and that of the notary public who had notarized the SPA the petitioner supposedly executed to authorize his wife to sell the property had been forged. In denying relief, the Court upheld the right of the vendee as an innocent purchaser for value.Veloso is inapplicable, however, because the contested property therein was exclusively owned by the petitioner and did not belong to the conjugal regime. Veloso being upon conjugal property, Article 124 of the Family Code did not apply.In contrast, the property involved herein pertained to the conjugal regime, and, consequently, the lack of the written consent of the husband rendered the sale void pursuant to Article 124 of the Family Code. Moreover, even assuming that the property involved in Veloso was conjugal, its sale was made on November 2, 1987, or prior to the effectivity of the Family Code; hence, the sale was still properly covered by Article 173 of the Civil Code, which provides that a sale effected without the consent of one of the spouses is only voidable, not void. However, the sale herein was made already during the effectivity of the Family Code, rendering the application of Article 124 of the Family Code clear and indubitable.The fault of the petitioner in Veloso was that he did not adduce sufficient evidence to prove that his signature and that of the notary public on the SPA

had been forged. The Court pointed out that his mere allegation that the signatures had been forged could not be sustained without clear and convincing proof to substantiate the allegation. Herein, however, both the RTC and the CA found from the testimonies and evidence presented by Dionisio that his signature had been definitely forged, as borne out by the entries in his passport showing that he was out of the country at the time of the execution of the questioned SPA; and that the alleged notary public, Atty. Datingaling, had no authority to act as a Notary Public for Manila during the period of 1990-1991.WHEREFORE, we deny the petition for review on certiorari, and affirm the decision dated July 2, 2004 rendered by the Court of Appeals in C.A.-G.R. CV No. 69044 entitled "Dionisio Z. Parulan, Jr. vs. Ma. Elena Parulan and Sps. Rex and Concepcion Aggabao" and "Sps. Rex and Concepcion Aggabao vs. Dionisio Z. Parulan, Jr. and Ma. Elena Parulan."Costs of suit to be paid by the petitioners.SO ORDERED.

[G.R. No. 109557, November 29, 2000] 

JOSE UY AND HIS SPOUSE GLENDA J. UY AND GILDA L. JARDELEZA, PETITIONERS, VS. COURT OF APPEALS AND

TEODORO L. JARDELEZA, RESPONDENTS. 

PARDO, J.:

The case is an appeal via certiorari from the decision[1] of the Court of Appeals and its resolution denying reconsideration[2] reversing that of the Regional Trial Court, Iloilo, Branch  32[3] and declaring void the special proceedings instituted therein by petitioners to authorize petitioner Gilda L. Jardeleza, in view of the comatose condition of her husband, Ernesto Jardeleza, Sr., with the approval of the court, to dispose of their conjugal property in favor of co-petitioners, their daughter and son in law, for the ostensible purpose of “financial need in the personal, business and medical expenses of her ‘incapacitated’ husband.”

The facts, as found by the Court of Appeals, are as follows:

“This case is a dispute between Teodoro L. Jardeleza (herein respondent) on the one hand, against his mother Gilda L. Jardeleza, and sister and brother-in-law, the spouses Jose Uy and Glenda Jardeleza (herein petitioners) on the other hand.  The controversy came about as a result of Dr. Ernesto Jardeleza, Sr.’s suffering of a stroke on March 25, 1991, which left him comatose and bereft of any motor or mental faculties.  Said Ernesto Jardeleza, Sr. is the father of herein respondent Teodoro Jardeleza and husband of herein private respondent Gilda Jardeleza.

“Upon learning that one piece of real property belonging to the senior Jardeleza spouses was about to be sold, petitioner Teodoro

Jardeleza, on June 6, 1991, filed a petition (Annex “A”) before the R.T.C. of Iloilo City, Branch 25, where it was docketed as Special Proceeding No. 4689, in the matter of the guardianship of Dr. Ernesto Jardeleza, Sr.  The petitioner averred therein that the present physical and mental incapacity  of Dr. Ernesto Jardeleza, Sr. prevent him from competently administering his properties, and in order to prevent the loss and dissipation of the Jardelezas’ real and personal assets, there was a need for a court-appointed guardian to administer said properties.  It was prayed therein that Letters of Guardianship be issued in favor of herein private respondent Gilda Ledesma Jardeleza, wife of Dr. Ernesto Jardeleza, Sr. It was further prayed that in the meantime, no property of Dr. Ernesto Jardeleza, Sr. be negotiated, mortgaged or otherwise alienated to third persons, particularly Lot No. 4291 and all the improvements thereon, located along Bonifacio Drive, Iloilo City, and covered by T.C.T. No. 47337.

“A few days later, or on June 13, 1991, respondent Gilda L. Jardeleza herself filed a petition docketed as Special Proceeding NO. 4691, before Branch 32 of the R.T.C. of Iloilo City, regarding the declaration of incapacity of Ernesto Jardeleza, Sr., assumption of sole powers of administration of conjugal properties, and authorization to sell the same (Annex “B”).  Therein, the petitioner Gilda L. Jardeleza averred the physical and mental incapacity of her husband, who was then confined for intensive medical care and treatment at the Iloilo Doctor’s Hospital.  She signified to the court her desire to assume sole powers of administration of their conjugal properties.  She also alleged that her husband’s medical treatment and hospitalization expenses were piling up, accumulating to several hundred thousands of pesos already.  For this, she urgently needed to sell one piece of real property, specifically Lot No. 4291 and its improvements.  Thus, she prayed for authorization from the court to sell said property.

“The following day, June 14, 1991, Branch 32 of the R.T.C. of Iloilo City issued an Order (Annex “C”) finding the petition in Spec. Proc. No. 4691 to be sufficient in form and substance, and setting the hearing thereof for June 20, 1991.  The scheduled hearing of the petition proceeded, attended by therein petitioner Gilda Jardeleza, her counsel, her two children, namely Ernesto Jardeleza, Jr., and Glenda Jardeleza Uy, and Dr. Rolando Padilla, one of Ernesto Jardeleza, Sr.’s attending physicians.

“On that same day, June 20, 1991, Branch 32 of the RTC of Iloilo City rendered its Decision (Annex “D”), finding that it was convinced that Ernesto Jardeleza, Sr. was truly incapacitated to participate in the administration of the conjugal properties, and that the sale of Lot No. 4291 and the improvements thereon was necessary to defray the mounting expenses for treatment and Hospitalization.  The said court also made the pronouncement that the petition filed by Gilda L. Jardeleza was “pursuant to Article 124 of the Family Code, and that the proceedings thereon are governed by the rules on summary proceedings sanctioned under Article 253 of the same Code x x x.

“The said court then disposed as follows:

“WHEREFORE, there being factual and legal bases to the petition dated June 13, 1991, the Court hereby renders judgment as follows:

“1)  declaring Ernesto Jardeleza, Sr., petitioner’s husband, to be incapacitated and unable to participate in the administration of conjugal properties;

“2)  authorizing petitioner Gilda L. Jardeleza to assume sole powers

of administration of their conjugal properties; and

“3)  authorizing aforesaid petitioner to sell Lot No. 4291 of the Cadastral Survey of Iloilo, situated in Iloilo City and covered by TCT No. 47337 issued in the names of Ernesto Jardeleza, Sr. and Gilda L. Jardeleza and the buildings standing thereof.

“SO ORDERED.

“On June 24, 1991, herein petitioner Teodoro Jardeleza filed his Opposition to the proceedings before Branch 32 in Spec. Proc. Case No. 4691, said petitioner being unaware and not knowing that a decision has already been rendered on the case by public respondent.

“On July 3, 1991, herein petitioner Teodoro Jardeleza filed a motion for reconsideration of the judgment in Spec. Proc. No. 4691 and a motion for consolidation of the two cases (Annex “F”).  He propounded the argument that the petition for declaration of incapacity, assumption of sole powers of administration, and authority to sell the conjugal properties was essentially a petition for guardianship of the person and properties of Ernesto Jardeleza, Sr. As such, it cannot be prosecuted in accordance with the provisions on summary proceedings set out in Article 253 of the Family Code.  It should follow the rules governing special proceedings in the Revised Rules of Court which require procedural due process, particularly the need for notice and a hearing on the merits.  On the other hand,  even if  Gilda  Jardeleza’s petition can be prosecuted by summary proceedings, there was still a failure to comply with the basic requirements thereof, making the decision in Spec. Proc. No. 4691 a defective one.  He further alleged that under the New Civil Code, Ernesto Jardeleza, Sr. had acquired vested rights as a conjugal partner, and that these rights cannot be

impaired or prejudiced without his consent.  Neither can he be deprived of his share in the conjugal properties through mere summary proceedings.  He then restated his position that Spec. Proc. No. 4691 should be consolidated with Spec. Proc. No. 4689 which was filed earlier and pending before Branch 25.

“Teodoro Jardeleza also questioned the propriety of the sale of Lot No. 4291 and the improvements thereon supposedly to pay the accumulated financial obligations arising from Ernesto Jardeleza, Sr.’s hospitalization.  He alleged that the market value of the property would be around Twelve to Fifteen Million Pesos, but that he had been informed that it would be sold for much less.  He also pointed out that the building thereon which houses the Jardeleza Clinic is a monument to Ernesto Jardeleza Sr.’s industry, labor and service to his fellowmen.  Hence, the said property has a lot of sentimental value to his family.  Besides, argued Teodoro Jardeleza, then conjugal partnership had other liquid assets to pay off all financial obligations.  He mentioned that apart from sufficient cash, Jardeleza, Sr. owned stocks of Iloilo Doctors’ Hospital which can be off-set against the cost of medical and hospital bills.  Furthermore, Ernesto Jardeleza, Sr. enjoys certain privileges at the said hospital which allows him to pay on installment basis.  Moreover, two of Ernesto Jardeleza Sr.’s attending physicians are his own sons who do not charge anything for their professional services.

“On July 4, 1991, Teodoro Jardeleza filed in Spec. Proc. No. 4691 a supplement to his motion for reconsideration (Annex “G”).  He reiterated his contention that summary proceedings was irregularly applied.  He also noted that the provisions on summary proceedings found in Chapter 2 of the Family Code comes under the heading on “Separation in Fact Between Husband and Wife” which contemplates of a situation where both spouses are of disposing mind.  Thus, he argued that were one spouse is

“comatose without motor and mental faculties,” the said provisions cannot be made to apply.

“While the motion for reconsideration was pending, Gilda Jardeleza disposed by absolute sale Lot No. 4291 and all its improvements to her daughter, Ma. Glenda Jardeleza Uy, for Eight Million Pesos (P8,000,000.00), as evidenced by a Deed Absolute Sale dated July 8, 1991 executed between them (p. 111, Rollo).  Under date of July 23, 1991, Gilda Jardeleza filed an urgent ex-parte motion for approval of the deed of absolute sale.

“On August 12, 1991 Teodoro Jardeleza filed his Opposition to the motion for approval of the deed of sale on the grounds that: (1) the motion was prematurely filed and should be held in abeyance until the final resolution of the petition; (2) the motion does not allege nor prove the justifications for the sale; and (3) the motion does not allege that had Ernesto Jardeleza, Sr. been competent, he would have given his consent to the sale.

“Judge Amelita K. del Rosario-Benedicto of Branch 32 of the respondent Court, who had penned the decision in Spec. Proc. No. 4691 had in the meantime formally inhibited herself from further acting in this case (Annex “I”).  The case was then reraffled to Branch 28 of the said court.

“On December 19, 1991, the said court issued an Order (Annex “M”) denying herein petitioner’s motion for reconsideration and approving respondent Jardeleza’s motion for approval of the deed of absolute sale.  The said court ruled that:

“After a careful and thorough perusal of the decision, dated June 20, 1991, the Motion for Reconsideration, as well as its supplements filed by “oppositor”, Teodoro L. Jardeleza, through

counsel, and the opposition to the Motion for Reconsideration, including its supplements, filed by petitioner, through counsel, this Court is of the opinion and so holds, that her Honor, Amelita K. del Rosario-Benedicto, Presiding Judge of Branch 32, of this Court, has properly observed the procedure embodied under Article 253, in relation to Article 124, of the Family Code, in rendering her decision dated June 20, 1991.

“Also, as correctly stated by petitioner, through counsel, that “oppositor” Teodor L. Jardeleza does not have the personality to oppose the instant petition considering that the property or properties, subject of the petition, belongs to the conjugal partnership of the spouses Ernesto and Gilda Jardeleza, who are both still alive.

“In view thereof, the Motion for Reconsideration of “oppositor” Teodoro L. Jardeleza, is hereby denied for lack of merit.

“Considering the validity of the decision dated June 20, 1991, which among others, authorized Gilda L. Jardeleza to sell Lot No. 4291 of the Cadastral Survey of Iloilo, covered by Transfer Certificate of Title No. 47337 issued in the names of Ernesto Jardeleza, Sr., and Gilda L. Jardeleza and the building standing thereon, the Urgent Ex-Parte Motion for Approval of Deed of Absolute Sale dated July 23, 1991, filed by petitioner, through counsel, is hereby granted and the deed of absolute sale, executed and notarized on July 8, 1991, by and between Gilda L. Jardeleza, as vendor, and Ma. Glenda Jardeleza, as vendee, is hereby approved, and the Register of Deeds of Iloilo City, is directed to register the sale and issue the corresponding transfer certificate of title to the vendee.

“SO ORDERED.”[4]

On December 9, 1992, the Court of Appeals promulgated its  decision reversing the appealed decision and ordering the trial court to dismiss the special proceedings to approve the deed of sale, which was also declared void.[5]

On December 29, 1992, petitioners filed a motion for reconsideration,[6] however, on March 29, 1993, the Court of Appeals denied the motion, finding no cogent and compelling reason to disturb the decision.[7]

Hence, this appeal.[8]

The issue raised is whether petitioner Gilda L. Jardeleza as the wife of Ernesto Jardeleza, Sr. who suffered a stroke, a cerebrovascular accident, rendering him comatose, without motor and mental faculties, and could not manage their conjugal partnership property may assume sole powers of administration of the conjugal property under Article 124 of the Family Code and dispose of a parcel of land with its improvements, worth  more than twelve million  pesos, with the approval of the court in a summary proceedings, to her co-petitioners, her own daughter and son-in-law, for the amount of eight million pesos.

The Court of Appeals ruled that in the condition of Dr. Ernesto Jardeleza, Sr., the procedural rules on summary proceedings in relation to Article 124 of the Family Code are not  applicable.   Because  Dr. Jardeleza, Sr. was unable to take care of himself and manage the conjugal property due to illness that had rendered him comatose, the proper remedy was the appointment of a judicial guardian of the person or estate or both of such incompetent, under Rule 93, Section 1, 1964 Revised Rules of Court.  Indeed, petitioner earlier had filed such a petition for judicial guardianship.

Article 124 of the Family Code provides as follows:

“ART. 124.  The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly.  In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for a proper remedy which must be availed of within five years from the date of the contract implementing such decision.

“In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration.  These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse.  In the absence of such authority or consent, the disposition or encumbrance shall be void.  However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (165a).”

In regular manner, the rules on summary judicial proceedings under the Family Code govern the proceedings under Article 124 of the Family Code.  The situation contemplated is one where the spouse is absent, or separated in fact or has abandoned the other or consent is withheld or cannot be obtained. Such rules do not apply to cases where the non-consenting spouse is incapacitated or incompetent to give consent. In this case, the trial court found that the subject spouse "is an incompetent" who was in comatose or semi-comatose condition, a victim of stroke, cerebrovascular accident, without motor and mental faculties, and with a diagnosis of brain stem infarct.[9] In such case, the proper remedy is a judicial guardianship proceedings under Rule 93 of the 1964 Revised Rules

of Court.

Even assuming that the rules of summary judicial proceedings under the Family Code may apply to the wife's administration of the conjugal property, the law provides that the wife who assumes sole powers of administration has the same powers and duties as a guardian under the Rules of Court.[10]

Consequently, a spouse who  desires  to  sell real property as such administrator of the conjugal property must observe the procedure for the sale of the ward’s estate required of judicial guardians under Rule 95, 1964 Revised Rules of Court, not the summary judicial proceedings under the Family Code.

In the case at bar, the trial court did not comply with the procedure under the Revised Rules of Court. Indeed, the trial court did not even observe the requirements of the summary judicial proceedings under the Family Code. Thus, the trial court did not serve notice of the petition to the incapacitated spouse; it did not require him to show cause why the petition should not be granted.

Hence, we agree with the Court of Appeals that absent an opportunity to be heard, the decision rendered by the trial court is void for lack of due process. The doctrine consistently adhered to by this Court is that a denial of due process suffices to cast on the official act taken by whatever branch of the government the impress of nullity.[11]A decision rendered without due process is void ab initio and may be attacked directly or collaterally.[12] “A decision is void for lack of due process if, as a result, a party is deprived of the opportunity of being heard.”[13] “A void decision may be assailed or impugned at  any  time either directly or collaterally, by means of a separate action, or by resisting such decision in any action or proceeding where it is invoked.”[14]

WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals in CA-G. R. SP No. 26936, in toto.

Costs against petitioners.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

G.R. No. 106169 February 14, 1994SAMSON T. SABALONES, petitioner, vs.

THE COURT OF APPEALS and REMEDIOS GAVIOLA-SABALONES, respondents.Leven S. Puno for petitioner.Benigno M. Puno for private respondent. CRUZ, J.:The subject of this petition is the preliminary injunction issued by the respondent court pending resolution of a case on appeal. We deal only with this matter and not the merits of the case.As a member of our diplomatic service assigned to different countries during his successive tours of duties, petitioner Samson T. Sabalones left to his wife, herein respondent Remedios Gaviola-Sabalones, the administration of some of their conjugal, properties for fifteen years.Sabalones retired as ambassador in 1985 and came back to the Philippines but not to his wife and their children. Four years later, he filed an action for judicial authorization to sell a building and lot located at #17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging to the conjugal partnership. He claimed that he was sixty-eight years old, very sick and living alone without any income, and that his share of the proceeds of the sale to defray the prohibitive cost of his hospitalization and medical treatment.In her answer, the private respondent opposed the authorization and filed a counterclaim for legal separation. She alleged that the house in Greenhills was being occupied by her and their six children and that they were depending for their support on the rentals from another conjugal property, a building and lot in Forbes Park which was on lease to Nobumichi Izumi. She also informed the court that despite her husband's retirement, he had not returned to his legitimate family and was instead maintaining a separate residence in Don Antonio Heights, Fairview, Quezon City, with Thelma Cumareng and their three children.In her prayer, she asked the court to grant the decree of legal separation and order the liquidation of their conjugal properties, with forfeiture of her husband's share therein because of his adultery. She also prayed that it enjoin the petitioner and his agents from a) disturbing the occupants of the Forbes Park property and b) disposing of or encumbering any of the conjugal properties.After trial, Judge Mariano M. Umali, found that the petitioner had indeed contracted a bigamous marriage on October 5, 1981, with Thelma Cumareng, to whom he had returned upon his retirement in 1985 at a separate residence. The court thus decreed the legal separation of the spouses and the forfeiture of the petitioner's share in the conjugal properties, declaring as well that he was not entitled to support from his respondent wife. 1

This decision was appealed to the respondent court. Pendente lite, the respondent wife filed a motion for the issuance of a writ of preliminary injunction to enjoin the petitioner from interfering with the administration of

their properties in Greenhills and Forbes Park. She alleged inter alia that he had harassed the tenant of the Forbes Park property by informing him that his lease would not be renewed. She also complained that the petitioner had disposed of one of their valuable conjugal properties in the United States in favor of his paramour, to the prejudice of his legitimate wife and children.The petitioner opposed this motion and filed his own motion to prevent his wife from entering into a new contract of lease over the Forbes Park property with its present tenant, or with future tenants, without his consent.After hearing, the Court of Appeals, in an order dated April 7, 1992, granted the preliminary injunction prayed for by his wife. 2

The petitioner now assails this order, arguing that since the law provides for a joint administration of the conjugal properties by the husband and wife, no injunctive relief can be issued against one or the other because no right will be violated. In support of this contention, he cites Art. 124 of the Family Code, reading as follows:

Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of the administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or the authorization by the court before the offer is withdrawn by either or both offerors.

He further notes that the respondent court failed to appoint an administrator of the conjugal assets as mandated by Art. 61 of the Code, thus:

Art. 61 After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court.

The Court has carefully considered the issues and the arguments of the parties and finds that the petition has no merit.

We agree with the respondent court that pending the appointment of an administrator over the whole mass of conjugal assets, the respondent court was justified in allowing the wife to continue with her administration. It was also correct, taking into account the evidence adduced at the hearing, in enjoining the petitioner from interfering with his wife's administration pending resolution of the appeal.The law does indeed grant to the spouses joint administration over the conjugal properties as clearly provided in the above-cited Article 124 of the Family Code. However, Article 61, also above quoted, states that after a petition for legal separation has been filed, the trial court shall, in the absence of a written agreement between the couple, appoint either one of the spouses or a third person to act as the administrator.While it is true that no formal designation of the administrator has been made, such designation was implicit in the decision of the trial court denying the petitioner any share in the conjugal properties (and thus also disqualifying him as administrator thereof). That designation was in effect approved by the Court of Appeals when it issued in favor of the respondent wife the preliminary injunction now under challenge.The primary purpose of the provisional remedy of injunction is to preserve the status quo of the things subject of the action or the relations between the parties and thus protect the rights of the plaintiff respecting these matters during the pendency of the suit. Otherwise, the defendant may, before final judgment, do or continue doing the act which the plaintiff asks the court to restrain and thus make ineffectual the final judgment that may be rendered afterwards in favor of the plaintiff. 3

As observed by Francisco, "Injunction is primarily a preventive remedy. Its province is to afford relief against future acts which are against equity and good conscience and to keep and preserve the thing in the status quo, rather than to remedy what is past or to punish for wrongful acts already committed. It may issue to prevent future wrongs although no right has yet been violated." 4

The Court notes that the wife has been administering the subject properties for almost nineteen years now, apparently without complaint on the part of the petitioner. He has not alleged, much less shown, that her administration has caused prejudice to the conjugal partnership. What he merely suggests is that the lease of the Forbes Park property could be renewed on better terms, or he should at least be given his share of the rentals.In her motion for the issuance of a preliminary injunction, the respondent wife alleged that the petitioner's harassment of their tenant at Forbes Park would jeopardize the lease and deprive her and her children of the income therefrom on which they depend for their subsistence. She also testified the numerous . . . including various dollar accounts, two houses in Quezon City and Cebu City, and a Mercedes Benz. The private respondent also complained that on June 10, 1991, the petitioner executed a quitclaim over their conjugal property in Apple Valley, San Bernardino, California, U.S.A., in

favor of Thelma Cumareng, to improve his paramour's luxurious lifestyle to the prejudice of his legitimate family.These allegations, none of which was refuted by the husband, show that the injunction is necessary to protect the interests of the private respondent and her children and prevent the dissipation of the conjugal assets.The twin requirements of a valid injunction are the existence of a right and its actual or threatened violation. 5 Regardless of the outcome of the appeal, it cannot be denied that as the petitioner's legitimate wife (and the complainant and injured spouse in the action for legal separation), the private respondent has a right to a share (if not the whole) of the conjugal estate. There is also, in our view, enough evidence to raise the apprehension that entrusting said estate to the petitioner may result in its improvident disposition to the detriment of his wife and children. We agree that inasmuch as the trial court had earlier declared the forfeiture of the petitioner's share in the conjugal properties, it would be prudent not to allow him in the meantime to participate in its management.Let it be stressed that the injunction has not permanently installed the respondent wife as the administrator of the whole mass of conjugal assets. It has merely allowed her to continue administering the properties in the meantime without interference from the petitioner, pending the express designation of the administrator in accordance with Article 61 of the Family Code.WHEREFORE, the petition is DENIED for lack of merit. It is so ordered.Davide, Jr., Bellosillo, Quiason and Kapunan, JJ, concur.

G.R. No. 169900               March 18, 2010

MARIO SIOCHI, Petitioner, vs.ALFREDO GOZON, WINIFRED GOZON, GIL TABIJE, INTER-DIMENSIONAL REALTY, INC., and ELVIRA GOZON,Respondents.x - - - - - - - - - - - - - - - - - - - - - - -xG.R. No. 169977INTER-DIMENSIONAL REALTY, INC., Petitioner, vs.MARIO SIOCHI, ELVIRA GOZON, ALFREDO GOZON, and WINIFRED GOZON, Respondents.

R E S O L U T I O NCARPIO, J.:This is a consolidation of two separate petitions for review,1 assailing the 7 July 2005 Decision2 and the 30 September 2005 Resolution3 of the Court of Appeals in CA-G.R. CV No. 74447.This case involves a 30,000 sq.m. parcel of land (property) covered by TCT No. 5357.4 The property is situated in Malabon, Metro Manila and is registered in the name of "Alfredo Gozon (Alfredo), married to Elvira Gozon (Elvira)."On 23 December 1991, Elvira filed with the Cavite City Regional Trial Court (Cavite RTC) a petition for legal separation against her husband Alfredo. On 2 January 1992, Elvira filed a notice of lis pendens, which was then annotated on TCT No. 5357.On 31 August 1993, while the legal separation case was still pending, Alfredo and Mario Siochi (Mario) entered into an Agreement to Buy and Sell5 (Agreement) involving the property for the price of P18 million. Among the stipulations in the Agreement were that Alfredo would: (1) secure an Affidavit from Elvira that the property is Alfredo’s exclusive property and to annotate the Agreement at the back of TCT No. 5357; (2) secure the approval of the Cavite RTC to exclude the property from the legal separation case; and (3) secure the removal of the notice of lis pendens pertaining to the said case and annotated on TCT No. 5357. However, despite repeated demands from Mario, Alfredo failed to comply with these stipulations. After paying the P5 million earnest money as partial payment of the purchase price, Mario took possession of the property in September 1993. On 6 September 1993, the Agreement was annotated on TCT No. 5357.Meanwhile, on 29 June 1994, the Cavite RTC rendered a decision6 in the legal separation case, the dispositive portion of which reads:WHEREFORE, judgment is hereby rendered decreeing the legal separation between petitioner and respondent. Accordingly, petitioner Elvira Robles Gozon is entitled to live separately from respondent Alfredo Gozon without dissolution of their marriage bond. The conjugal partnership of gains of the spouses is hereby declared DISSOLVED and LIQUIDATED. Being the offending spouse, respondent is deprived of his share in the net profits and the same is awarded to their child Winifred R. Gozon whose custody is awarded to petitioner.

Furthermore, said parties are required to mutually support their child Winifred R. Gozon as her needs arises.SO ORDERED.7

As regards the property, the Cavite RTC held that it is deemed conjugal property.On 22 August 1994, Alfredo executed a Deed of Donation over the property in favor of their daughter, Winifred Gozon (Winifred). The Register of Deeds of Malabon, Gil Tabije, cancelled TCT No. 5357 and issued TCT No. M-105088 in the name of Winifred, without annotating the Agreement and the notice of lis pendens on TCT No. M-10508.On 26 October 1994, Alfredo, by virtue of a Special Power of Attorney9 executed in his favor by Winifred, sold the property to Inter-Dimensional Realty, Inc. (IDRI) for P18 million.10 IDRI paid Alfredo P18 million, representing full payment for the property.11 Subsequently, the Register of Deeds of Malabon cancelled TCT No. M-10508 and issued TCT No. M-1097612to IDRI.Mario then filed with the Malabon Regional Trial Court (Malabon RTC) a complaint for Specific Performance and Damages, Annulment of Donation and Sale, with Preliminary Mandatory and Prohibitory Injunction and/or Temporary Restraining Order.On 3 April 2001, the Malabon RTC rendered a decision,13 the dispositive portion of which reads:WHEREFORE, premises considered, judgment is hereby rendered as follows:

01. On the preliminary mandatory and prohibitory injunction:1.1 The same is hereby made permanent by:

1.1.1 Enjoining defendants Alfredo Gozon, Winifred Gozon, Inter-Dimensional Realty, Inc. and Gil Tabije, their agents, representatives and all persons acting in their behalf from any attempt of commission or continuance of their wrongful acts of further alienating or disposing of the subject property;1.1.2. Enjoining defendant Inter-Dimensional Realty, Inc. from entering and fencing the property;1.1.3. Enjoining defendants Alfredo Gozon, Winifred Gozon, Inter-Dimensional Realty, Inc. to respect plaintiff’s possession of the property.

02. The Agreement to Buy and Sell dated 31 August 1993, between plaintiff and defendant Alfredo Gozon is hereby approved, excluding the property and rights of defendant Elvira Robles-Gozon to the undivided one-half share in the conjugal property subject of this case.03. The Deed of Donation dated 22 August 1994, entered into by and between defendants Alfredo Gozon and Winifred Gozon is hereby nullified and voided.

04. The Deed of Absolute Sale dated 26 October 1994, executed by defendant Winifred Gozon, through defendant Alfredo Gozon, in favor of defendant Inter-Dimensional Realty, Inc. is hereby nullified and voided.05. Defendant Inter-Dimensional Realty, Inc. is hereby ordered to deliver its Transfer Certificate of Title No. M-10976 to the Register of Deeds of Malabon, Metro Manila.06. The Register of Deeds of Malabon, Metro Manila is hereby ordered to cancel Certificate of Title Nos. 10508 "in the name of Winifred Gozon" and M-10976 "in the name of Inter-Dimensional Realty, Inc.," and to restore Transfer Certificate of Title No. 5357 "in the name of Alfredo Gozon, married to Elvira Robles" with the Agreement to Buy and Sell dated 31 August 1993 fully annotated therein is hereby ordered.07. Defendant Alfredo Gozon is hereby ordered to deliver a Deed of Absolute Sale in favor of plaintiff over his one-half undivided share in the subject property and to comply with all the requirements for registering such deed.08. Ordering defendant Elvira Robles-Gozon to sit with plaintiff to agree on the selling price of her undivided one-half share in the subject property, thereafter, to execute and deliver a Deed of Absolute Sale over the same in favor of the plaintiff and to comply with all the requirements for registering such deed, within fifteen (15) days from the receipt of this DECISION.09. Thereafter, plaintiff is hereby ordered to pay defendant Alfredo Gozon the balance of Four Million Pesos (P4,000,000.00) in his one-half undivided share in the property to be set off by the award of damages in plaintiff’s favor.10. Plaintiff is hereby ordered to pay the defendant Elvira Robles-Gozon the price they had agreed upon for the sale of her one-half undivided share in the subject property.11. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay the plaintiff, jointly and severally, the following:

11.1 Two Million Pesos (P2,000,000.00) as actual and compensatory damages;11.2 One Million Pesos (P1,000,000.00) as moral damages;11.3 Five Hundred Thousand Pesos (P500,000.00) as exemplary damages;11.4 Four Hundred Thousand Pesos (P400,000.00) as attorney’s fees; and11.5 One Hundred Thousand Pesos (P100,000.00) as litigation expenses.11.6 The above awards are subject to set off of plaintiff’s obligation in paragraph 9 hereof.

12. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay Inter-Dimensional Realty, Inc. jointly and severally the following:

12.1 Eighteen Million Pesos (P18,000,000.00) which constitute the amount the former received from the latter pursuant to their Deed of Absolute Sale dated 26 October 1994, with legal interest therefrom;12.2 One Million Pesos (P1,000,000.00) as moral damages;12.3 Five Hundred Thousand Pesos (P500,000.00) as exemplary damages; and12.4 One Hundred Thousand Pesos (P100,000.00) as attorney’s fees.

13. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay costs of suit.

SO ORDERED.14

On appeal, the Court of Appeals affirmed the Malabon RTC’s decision with modification. The dispositive portion of the Court of Appeals’ Decision dated 7 July 2005 reads:WHEREFORE, premises considered, the assailed decision dated April 3, 2001 of the RTC, Branch 74, Malabon is hereby AFFIRMED with MODIFICATIONS, as follows:

1. The sale of the subject land by defendant Alfredo Gozon to plaintiff-appellant Siochi is declared null and void for the following reasons:

a) The conveyance was done without the consent of defendant-appellee Elvira Gozon;b) Defendant Alfredo Gozon’s one-half (½) undivided share has been forfeited in favor of his daughter, defendant Winifred Gozon, by virtue of the decision in the legal separation case rendered by the RTC, Branch 16, Cavite;

2. Defendant Alfredo Gozon shall return/deliver to plaintiff-appellant Siochi the amount of P5 Million which the latter paid as earnest money in consideration for the sale of the subject land;3. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay plaintiff-appellant Siochi jointly and severally, the following:

a) P100,000.00 as moral damages;b) P100,000.00 as exemplary damages;c) P50,000.00 as attorney’s fees;d) P20,000.00 as litigation expenses; ande) The awards of actual and compensatory damages are hereby ordered deleted for lack of basis.

4. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay defendant-appellant IDRI jointly and severally the following:

a) P100,000.00 as moral damages;

b) P100,000.00 as exemplary damages; andc) P50,000.00 as attorney’s fees.

Defendant Winifred Gozon, whom the undivided one-half share of defendant Alfredo Gozon was awarded, is hereby given the option whether or not to dispose of her undivided share in the subject land.The rest of the decision not inconsistent with this ruling stands.SO ORDERED.15

Only Mario and IDRI appealed the decision of the Court of Appeals. In his petition, Mario alleges that the Agreement should be treated as a continuing offer which may be perfected by the acceptance of the other spouse before the offer is withdrawn. Since Elvira’s conduct signified her acquiescence to the sale, Mario prays for the Court to direct Alfredo and Elvira to execute a Deed of Absolute Sale over the property upon his payment of P9 million to Elvira.On the other hand, IDRI alleges that it is a buyer in good faith and for value. Thus, IDRI prays that the Court should uphold the validity of IDRI’s TCT No. M-10976 over the property.We find the petitions without merit.This case involves the conjugal property of Alfredo and Elvira. Since the disposition of the property occurred after the effectivity of the Family Code, the applicable law is the Family Code. Article 124 of the Family Code provides:Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to the recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision.In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Emphasis supplied)In this case, Alfredo was the sole administrator of the property because Elvira, with whom Alfredo was separated in fact, was unable to participate in the administration of the conjugal property. However, as sole administrator of the property, Alfredo still cannot sell the property without the written consent of Elvira or the authority of the court. Without such consent or authority, the sale is void.16 The absence of the consent of one of the spouse renders the entire sale void, including the portion of the conjugal property pertaining to the spouse who contracted the sale.17 Even if the other spouse actively

participated in negotiating for the sale of the property, that other spouse’s written consent to the sale is still required by law for its validity.18 The Agreement entered into by Alfredo and Mario was without the written consent of Elvira. Thus, the Agreement is entirely void. As regards Mario’s contention that the Agreement is a continuing offer which may be perfected by Elvira’s acceptance before the offer is withdrawn, the fact that the property was subsequently donated by Alfredo to Winifred and then sold to IDRI clearly indicates that the offer was already withdrawn.However, we disagree with the finding of the Court of Appeals that the one-half undivided share of Alfredo in the property was already forfeited in favor of his daughter Winifred, based on the ruling of the Cavite RTC in the legal separation case. The Court of Appeals misconstrued the ruling of the Cavite RTC that Alfredo, being the offending spouse, is deprived of his share in the net profits and the same is awarded to Winifred.The Cavite RTC ruling finds support in the following provisions of the Family Code:Art. 63. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2);(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and

The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law.Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:x x x(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse; (Emphasis supplied)Thus, among the effects of the decree of legal separation is that the conjugal partnership is dissolved and liquidated and the offending spouse would have no right to any share of the net profits earned by the conjugal partnership. It is only Alfredo’s share in the net profits which is forfeited in favor of Winifred. Article 102(4) of the Family Code provides that "[f]or purposes of computing

the net profits subject to forfeiture in accordance with Article 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution." Clearly, what is forfeited in favor of Winifred is not Alfredo’s share in the conjugal partnership property but merely in the net profits of the conjugal partnership property.With regard to IDRI, we agree with the Court of Appeals in holding that IDRI is not a buyer in good faith. As found by the RTC Malabon and the Court of Appeals, IDRI had actual knowledge of facts and circumstances which should impel a reasonably cautious person to make further inquiries about the vendor’s title to the property. The representative of IDRI testified that he knew about the existence of the notice of lis pendens on TCT No. 5357 and the legal separation case filed before the Cavite RTC. Thus, IDRI could not feign ignorance of the Cavite RTC decision declaring the property as conjugal.Furthermore, if IDRI made further inquiries, it would have known that the cancellation of the notice of lis pendens was highly irregular. Under Section 77 of Presidential Decree No. 1529,19 the notice of lis pendens may be cancelled (a) upon order of the court, or (b) by the Register of Deeds upon verified petition of the party who caused the registration of the lis pendens. In this case, the lis pendens was cancelled by the Register of Deeds upon the request of Alfredo. There was no court order for the cancellation of the lis pendens. Neither did Elvira, the party who caused the registration of the lis pendens, file a verified petition for its cancellation.Besides, had IDRI been more prudent before buying the property, it would have discovered that Alfredo’s donation of the property to Winifred was without the consent of Elvira. Under Article 12520 of the Family Code, a conjugal property cannot be donated by one spouse without the consent of the other spouse. Clearly, IDRI was not a buyer in good faith.1avvphi1Nevertheless, we find it proper to reinstate the order of the Malabon RTC for the reimbursement of the P18 million paid by IDRI for the property, which was inadvertently omitted in the dispositive portion of the Court of Appeals’ decision.WHEREFORE, we DENY the petitions. We AFFIRM the 7 July 2005 Decision of the Court of Appeals in CA-G.R. CV No. 74447 with the following MODIFICATIONS:

(1) We DELETE the portions regarding the forfeiture of Alfredo Gozon’s one-half undivided share in favor of Winifred Gozon and the grant of option to Winifred Gozon whether or not to dispose of her undivided share in the property; and(2) We ORDER Alfredo Gozon and Winifred Gozon to pay Inter-Dimensional Realty, Inc. jointly and severally the Eighteen Million Pesos (P18,000,000) which was the amount paid by Inter-Dimensional Realty, Inc. for the property, with legal interest computed from the finality of this Decision.

SO ORDERED.

G.R. No. 183984               April 13, 2011ARTURO SARTE FLORES, Petitioner, vs.SPOUSES ENRICO L. LINDO, JR. and EDNA C. LINDO, Respondents.

D E C I S I O NCARPIO, J.:

The CaseBefore the Court is a petition for review1 assailing the 30 May 2008 Decision2 and the 4 August 2008 Resolution3 of the Court of Appeals in CA-G.R. SP No. 94003.

The Antecedent FactsThe facts, as gleaned from the Court of Appeals’ Decision, are as follows:On 31 October 1995, Edna Lindo (Edna) obtained a loan from Arturo Flores (petitioner) amounting to P400,000 payable on 1 December 1995 with 3% compounded monthly interest and 3% surcharge in case of late payment. To secure the loan, Edna executed a Deed of Real Estate Mortgage4 (the Deed) covering a property in the name of Edna and her husband Enrico (Enrico) Lindo, Jr. (collectively, respondents). Edna also signed a Promissory Note5 and the Deed for herself and for Enrico as his attorney-in-fact.Edna issued three checks as partial payments for the loan. All checks were dishonored for insufficiency of funds, prompting petitioner to file a Complaint for Foreclosure of Mortgage with Damages against respondents. The case was raffled to the Regional Trial Court of Manila, Branch 33 (RTC, Branch 33) and docketed as Civil Case No. 00-97942.In its 30 September 2003 Decision,6 the RTC, Branch 33 ruled that petitioner was not entitled to judicial foreclosure of the mortgage. The RTC, Branch 33 found that the Deed was executed by Edna without the consent and authority of Enrico. The RTC, Branch 33 noted that the Deed was executed on 31 October 1995 while the Special Power of Attorney (SPA) executed by Enrico was only dated 4 November 1995.The RTC, Branch 33 further ruled that petitioner was not precluded from recovering the loan from Edna as he could file a personal action against her. However, the RTC, Branch 33 ruled that it had no jurisdiction over the personal action which should be filed in the place where the plaintiff or the defendant resides in accordance with Section 2, Rule 4 of the Revised Rules on Civil Procedure.Petitioner filed a motion for reconsideration. In its Order7 dated 8 January 2004, the RTC, Branch 33 denied the motion for lack of merit.On 8 September 2004, petitioner filed a Complaint for Sum of Money with Damages against respondents. It was raffled to Branch 42 (RTC, Branch 42) of the Regional Trial Court of Manila, and docketed as Civil Case No. 04-110858.Respondents filed their Answer with Affirmative Defenses and Counterclaims where they admitted the loan but stated that it only amounted to P340,000. Respondents further alleged that Enrico was not a party to the loan because it was contracted by Edna without Enrico’s signature. Respondents prayed for the dismissal of the case on the grounds of improper venue, res judicata and forum-shopping, invoking the Decision of the RTC, Branch 33. On 7 March 2005, respondents also filed a Motion to Dismiss on the grounds of res judicata and lack of cause of action.

The Decision of the Trial Court

On 22 July 2005, the RTC, Branch 42 issued an Order8 denying the motion to dismiss. The RTC, Branch 42 ruled that res judicata will not apply to rights, claims or demands which, although growing out of the same subject matter, constitute separate or distinct causes of action and were not put in issue in the former action. Respondents filed a motion for reconsideration. In its Order9 dated 8 February 2006, the RTC, Branch 42 denied respondents’ motion. The RTC, Branch 42 ruled that the RTC, Branch 33 expressly stated that its decision did not mean that petitioner could no longer recover the loan petitioner extended to Edna.Respondents filed a Petition for Certiorari and Mandamus with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order before the Court of Appeals.

The Decision of the Court of AppealsIn its 30 May 2008 Decision, the Court of Appeals set aside the 22 July 2005 and 8 February 2006 Orders of the RTC, Branch 42 for having been issued with grave abuse of discretion.The Court of Appeals ruled that while the general rule is that a motion to dismiss is interlocutory and not appealable, the rule admits of exceptions. The Court of Appeals ruled that the RTC, Branch 42 acted with grave abuse of discretion in denying respondents’ motion to dismiss.The Court of Appeals ruled that under Section 3, Rule 2 of the 1997 Rules of Civil Procedure, a party may not institute more than one suit for a single cause of action. If two or more suits are instituted on the basis of the same cause of action, the filing of one on a judgment upon the merits in any one is available ground for the dismissal of the others. The Court of Appeals ruled that on a nonpayment of a note secured by a mortgage, the creditor has a single cause of action against the debtor, that is recovery of the credit with execution of the suit. Thus, the creditor may institute two alternative remedies: either a personal action for the collection of debt or a real action to foreclose the mortgage, but not both. The Court of Appeals ruled that petitioner had only one cause of action against Edna for her failure to pay her obligation and he could not split the single cause of action by filing separately a foreclosure proceeding and a collection case. By filing a petition for foreclosure of the real estate mortgage, the Court of Appeals held that petitioner had already waived his personal action to recover the amount covered by the promissory note.Petitioner filed a motion for reconsideration. In its 4 August 2008 Resolution, the Court of Appeals denied the motion.Hence, the petition before this Court.

The IssueThe sole issue in this case is whether the Court of Appeals committed a reversible error in dismissing the complaint for collection of sum of money on the ground of multiplicity of suits.

The Ruling of this CourtThe petition has merit.

The rule is that a mortgage-creditor has a single cause of action against a mortgagor-debtor, that is, to recover the debt.10The mortgage-creditor has the option of either filing a personal action for collection of sum of money or instituting a real action to foreclose on the mortgage security.11 An election of the first bars recourse to the second, otherwise there would be multiplicity of suits in which the debtor would be tossed from one venue to another depending on the location of the mortgaged properties and the residence of the parties.12

The two remedies are alternative and each remedy is complete by itself.13 If the mortgagee opts to foreclose the real estate mortgage, he waives the action for the collection of the debt, and vice versa.14 The Court explained:x x x in the absence of express statutory provisions, a mortgage creditor may institute against the mortgage debtor either a personal action for debt or a real action to foreclose the mortgage. In other words, he may pursue either of the two remedies, but not both. By such election, his cause of action can by no means be impaired, for each of the two remedies is complete in itself. Thus, an election to bring a personal action will leave open to him all the properties of the debtor for attachment and execution, even including the mortgaged property itself. And, if he waives such personal action and pursues his remedy against the mortgaged property, an unsatisfied judgment thereon would still give him the right to sue for deficiency judgment, in which case, all the properties of the defendant, other than the mortgaged property, are again open to him for the satisfaction of the deficiency. In either case, his remedy is complete, his cause of action undiminished, and any advantages attendant to the pursuit of one or the other remedy are purely accidental and are all under his right of election. On the other hand, a rule that would authorize the plaintiff to bring a personal action against the debtor and simultaneously or successively another action against the mortgaged property, would result not only in multiplicity of suits so offensive to justice (Soriano v. Enriques, 24 Phil. 584) and obnoxious to law and equity (Osorio v. San Agustin, 25 Phil. 404), but also in subjecting the defendant to the vexation of being sued in the place of his residence or of the residence of the plaintiff, and then again in the place where the property lies.15

The Court has ruled that if a creditor is allowed to file his separate complaints simultaneously or successively, one to recover his credit and another to foreclose his mortgage, he will, in effect, be authorized plural redress for a single breach of contract at so much costs to the court and with so much vexation and oppressiveness to the debtor.16

In this case, however, there are circumstances that the Court takes into consideration.Petitioner filed an action for foreclosure of mortgage. The RTC, Branch 33 ruled that petitioner was not entitled to judicial foreclosure because the Deed of Real Estate Mortgage was executed without Enrico’s consent. The RTC, Branch 33 stated:All these circumstances certainly conspired against the plaintiff who has the burden of proving his cause of action. On the other hand, said circumstances

tend to support the claim of defendant Edna Lindo that her husband did not consent to the mortgage of their conjugal property and that the loan application was her personal decision.Accordingly, since the Deed of Real Estate Mortgage was executed by defendant Edna Lindo lacks the consent or authority of her husband Enrico Lindo, the Deed of Real Estate Mortgage is void pursuant to Article 96 of the Family Code.This does not mean, however, that the plaintiff cannot recover the P400,000 loan plus interest which he extended to defendant Edna Lindo. He can institute a personal action against the defendant for the amount due which should be filed in the place where the plaintiff resides, or where the defendant or any of the principal defendants resides at the election of the plaintiff in accordance with Section 2, Rule 4 of the Revised Rules on Civil Procedure. This Court has no jurisdiction to try such personal action.17

Edna did not deny before the RTC, Branch 33 that she obtained the loan. She claimed, however, that her husband did not give his consent and that he was not aware of the transaction.18 Hence, the RTC, Branch 33 held that petitioner could still recover the amount due from Edna through a personal action over which it had no jurisdiction.Edna also filed an action for declaratory relief before the RTC, Branch 93 of San Pedro Laguna (RTC, Branch 93), which ruled:At issue in this case is the validity of the promissory note and the Real Estate Mortgage executed by Edna Lindo without the consent of her husband.The real estate mortgage executed by petition Edna Lindo over their conjugal property is undoubtedly an act of strict dominion and must be consented to by her husband to be effective. In the instant case, the real estate mortgage, absent the authority or consent of the husband, is necessarily void. Indeed, the real estate mortgage is this case was executed on October 31, 1995 and the subsequent special power of attorney dated November 4, 1995 cannot be made to retroact to October 31, 1995 to validate the mortgage previously made by petitioner.The liability of Edna Lindo on the principal contract of the loan however subsists notwithstanding the illegality of the mortgage. Indeed, where a mortgage is not valid, the principal obligation which it guarantees is not thereby rendered null and void. That obligation matures and becomes demandable in accordance with the stipulation pertaining to it. Under the foregoing circumstances, what is lost is merely the right to foreclose the mortgage as a special remedy for satisfying or settling the indebtedness which is the principal obligation. In case of nullity, the mortgage deed remains as evidence or proof of a personal obligation of the debtor and the amount due to the creditor may be enforced in an ordinary action.In view of the foregoing, judgment is hereby rendered declaring the deed of real estate mortgage as void in the absence of the authority or consent of petitioner’s spouse therein. The liability of petitioner on the principal contract of loan however subsists notwithstanding the illegality of the real estate mortgage.19

The RTC, Branch 93 also ruled that Edna’s liability is not affected by the illegality of the real estate mortgage.Both the RTC, Branch 33 and the RTC, Branch 93 misapplied the rules.Article 124 of the Family Code provides:Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of contract implementing such decision.In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Emphasis supplied)Article 124 of the Family Code of which applies to conjugal partnership property, is a reproduction of Article 96 of the Family Code which applies to community property.Both Article 96 and Article 127 of the Family Code provide that the powers do not include disposition or encumbrance without the written consent of the other spouse. Any disposition or encumbrance without the written consent shall be void. However, both provisions also state that "the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse x x x before the offer is withdrawn by either or both offerors."In this case, the Promissory Note and the Deed of Real Estate Mortgage were executed on 31 October 1995. The Special Power of Attorney was executed on 4 November 1995. The execution of the SPA is the acceptance by the other spouse that perfected the continuing offer as a binding contract between the parties, making the Deed of Real Estate Mortgage a valid contract.However, as the Court of Appeals noted, petitioner allowed the decisions of the RTC, Branch 33 and the RTC, Branch 93 to become final and executory without asking the courts for an alternative relief. The Court of Appeals stated that petitioner merely relied on the declarations of these courts that he could file a separate personal action and thus failed to observe the rules and settled jurisprudence on multiplicity of suits, closing petitioner’s avenue for recovery of the loan.Nevertheless, petitioner still has a remedy under the law.

In Chieng v. Santos,20 this Court ruled that a mortgage-creditor may institute against the mortgage-debtor either a personal action for debt or a real action to foreclose the mortgage. The Court ruled that the remedies are alternative and not cumulative and held that the filing of a criminal action for violation of Batas Pambansa Blg. 22 was in effect a collection suit or a suit for the recovery of the mortgage-debt.21 In that case, however, this Court pro hac vice, ruled that respondents could still be held liable for the balance of the loan, applying the principle that no person may unjustly enrich himself at the expense of another.22

The principle of unjust enrichment is provided under Article 22 of the Civil Code which provides:Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.There is unjust enrichment "when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience."23 The principle of unjust enrichment requires two conditions: (1) that a person is benefited without a valid basis or justification, and (2) that such benefit is derived at the expense of another.241avvphi1The main objective of the principle against unjust enrichment is to prevent one from enriching himself at the expense of another without just cause or consideration.25 The principle is applicable in this case considering that Edna admitted obtaining a loan from petitioners, and the same has not been fully paid without just cause. The Deed was declared void erroneously at the instance of Edna, first when she raised it as a defense before the RTC, Branch 33 and second, when she filed an action for declaratory relief before the RTC, Branch 93. Petitioner could not be expected to ask the RTC, Branch 33 for an alternative remedy, as what the Court of Appeals ruled that he should have done, because the RTC, Branch 33 already stated that it had no jurisdiction over any personal action that petitioner might have against Edna.Considering the circumstances of this case, the principle against unjust enrichment, being a substantive law, should prevail over the procedural rule on multiplicity of suits. The Court of Appeals, in the assailed decision, found that Edna admitted the loan, except that she claimed it only amounted to P340,000. Edna should not be allowed to unjustly enrich herself because of the erroneous decisions of the two trial courts when she questioned the validity of the Deed. Moreover, Edna still has an opportunity to submit her defenses before the RTC, Branch 42 on her claim as to the amount of her indebtedness.WHEREFORE, the 30 May 2008 Decision and the 4 August 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 94003 are SET ASIDE. The Regional Trial Court of Manila, Branch 42 is directed to proceed with the trial of Civil Case No. 04-110858.

SO ORDERED.

G.R. No. 82606 December 18, 1992PRIMA PARTOSA-JO, petitioner, vs.THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and CONSING), respondents. 

CRUZ, J.:The herein private respondent, Jose Jo, admits to having cohabited with three women and fathered fifteen children. The first of these women, the herein petitioner, claims to be his legal wife whom he begot a daughter, Monina Jo. The other women and their respective offspring are not parties of these case.In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal property, docketed as Civil Case No. 51, in addition to an earlier action for support, also against him and docketed as Civil Case No. 36, in the Regional Trial Court of Negros Oriental, Branch 35.The two cases were consolidated and tried jointly. On November 29, 1983, Judge German G. Lee, Jr. rendered an extensive decision, the dispositive portion of which read:

WHEREFORE, in view of all the foregoing arguments and considerations, this court hereby holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho Hang, alias Consing, and, therefore, is entitled to support as the lawfully wedded wife and the defendant is hereby ordered to give a monthly support of P500.00 to the plaintiff Prima Partosa, to be paid on or before the 5th day of every month, and to give to the plaintiff the amount of P40,000.00 for the construction of the house in Zamboanguita, Negros Oriental where she may live separately from the defendant being entitled under the law to separate maintenance being the innocent spouse and to pay the amount of P19,200.00 to the plaintiff by way of support in arrears and to pay the plaintiff the amount of P3,000.00 in the concept of attorney's fees.

As will be noticed, there was a definite disposition of the complaint for support but none of the complaint for judicial separation of conjugal property.Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial court in the complaint for support. 1The complaint for judicial separation of conjugal property was dismissed for lack of a cause of action and on the ground that separation by agreement was not covered by Article 178 of the Civil Code.When their motions for reconsideration were denied, both parties came to this Court for relief. The private respondent's petition for review on certiorari was dismissed for tardiness in our resolution dated February 17, 1988, where we also affirmed the legality of the marriage between Jose and Prima and the obligation of the former to support her and her daughter.This petition deals only with the complaint for judicial separation of conjugal property.It is here submitted that the Court of Appeals erred in holding that: a) the judicial separation of conjugal property sought was not allowed under Articles 175, 178 and 191 of the Civil Code; and b) no such separation was decreed by the trial court in the dispositive portion of its decision.

The private respondent contends that the decision of the trial court can longer be reviewed at this time because it has a long since become final and executory. As the decretal portion clearly made no disposition of Civil Case No. 51, that case should be considered impliedly dismissed. The petitioner should have called the attention of the trial court to the omission so that the proper rectification could be made on time. Not having done so, she is now concluded by the said decision, which can no longer be corrected at this late hour.We deal first with the second ground.While admitting that no mention was made of Civil Case No. 51 in the dispositive portion of the decision of the trial court, the petitioner argues that a disposition of the case was nonetheless made in the penultimate paragraph of the decision reading as follows:

It is, therefore, hereby ordered that all properties in question are considered properties of Jose Jo, the defendant in this case, subject to separation of property under Article 178, third paragraph of the Civil Code, which is subject of separate proceedings as enunciated herein.

The petitioner says she believed this to be disposition enough and so did not feel it was necessary for her to appeal, particularly since the order embodied in that paragraph was in her favor. It was only when the respondent court observed that there was no dispositive portion regarding that case and so ordered its dismissal that she found it necessary to come to this Court for relief.The petitioner has a point.The dispositive portion of the decision in question was incomplete insofar as it carried no ruling on the complaint for judicial separation of conjugal property although it was extensively discussed in the body of the decision. The drafting of the decision was indeed not exactly careful. The petitioner's counsel, noting this, should have taken immediate steps for the rectification for the omission so that the ruling expressed in the text of the decision could have been embodied in the decretal portion. Such alertness could have avoided this litigation on a purely technical issue.Nevertheless, the technicality invoked in this case should not be allowed to prevail over considerations of substantive justive. After all, the technical defect is not insuperable. We have said time and again that where there is an ambiguity caused by an omission or a mistake in the dispositive portion of the decision, this Court may clarify such an ambiguity by an amendment even after the judgment have become final. 2 In doing so, the Court may resort to the pleading filed by the parties and the findings of fact and the conclusions of law expressed in the text or body of the decision. 3

The trial court made definite findings on the complaint for judicial separation of conjugal property, holding that the petitioner and the private respondent were legally married and that the properties mentioned by the petitioner were acquired by Jo during their marriage although they were registered in the name of the apparent dummy.

There is no question therefore that the penultimate paragraph of the decision of the trial court was a ruling based upon such findings and so should have been embodied in the dispositive portion. The respondent court should have made the necessary modification instead of dismissing Civil Case No. 51 and thus upholding mere form over substance.In the interest of substantive justice, and to expedite these proceedings, we hereby make such modification.And now to the merits of Civil Case No. 51.The Court of Appeals dismissed the complaint on the ground that the separation of the parties was due to their agreement and not because of abondonment. The respondent court relied mainly on the testimony of the petitioner, who declared under oath that she left Dumaguete City, where she and Jo were living together "because that was our agreement." It held that a agreement to live separately without just cause was void under Article 221 of the Civil Code and could not sustain any claim of abandonment by the aggrieved spouse. Its conclusion was that the only remedy availabe to the petitioner was legal separation under Article 175 of the Civil Code, 4 by virtue of which the conjugal partnership of property would be terminated.The petitioner contends that the respondent court has misinterpreted Articles 175, 178 and 191 of the Civil Code. She submits that the agreement between her and the private respondent was for her to temporarily live with her parents during the initial period of her pregnancy and for him to visit and support her. They never agreed to separate permanently. And even if they did, this arrangement was repudiated and ended in 1942, when she returned to him at Dumaguete City and he refused to accept her.The petitioner invokes Article 178 (3) of the Civil Code, which reads:

Art. 178. The separation in fact between husband and wife without judicial approval, shall not affect the conjugal partnership, except that:xxx xxx xxx(3) If the husband has abandoned the wife without just cause for at least one year, she may petition the court for a receivership, or administration by her of the conjugal partnership property or separation of property.

The above-quoted provision has been superseded by Article 128 of the Family Code, which states:

Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, of for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose.The obligations to the family mentioned in the preceding paragraph refer to martial, parental or property relations.A spouse is deemed to have abondoned the other when he or she has left the conjugal dwelling without any intention of

returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

Under the this provision, the aggrieved spouse may petition for judicial separation on either of these grounds:

1. Abondonment by a spouse of the other without just cause; and2. Failure of one spouse to comply with his or her obligations to the family without just cause, even if she said spouse does not leave the other spouse.

Abandonment implies a departure by one spouse with the avowed intent never to return, followed by prolonged absence without just cause, and without in the meantime providing in the least for one's family although able to do so. 5 There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation. 6 This idea is clearly expressed in the above-quoted provision, which states that "a spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning."The record shows that as early as 1942, the private respondent had already rejected the petitioner, whom he denied admission to their conjugal home in Dumaguete City when she returned from Zamboanguita. The fact that she was not accepted by Jo demonstrates all too clearly that he had no intention of resuming their conjugal relationship. Moreover, beginning 1968 until the determination by this Court of the action for support in 1988, the private respondent refused to give financial support to the petitioner. The physical separation of the parties, coupled with the refusal by the private respondent to give support to the petitioner, sufficed to constitute abandonment as a ground for the judicial separation of their conjugal property.In addition, the petitioner may also invoke the second ground allowed by Article 128, for the fact is that he has failed without just cause to comply with his obligations to the family as husband or parent. Apart form refusing to admit his lawful wife to their conjugal home in Dumaguete City, Jo has freely admitted to cohabiting with other women and siring many children by them. It was his refusal to provide for the petitioner and their daughter that prompted her to file the actions against him for support and later for separation of the conjugal property, in which actions, significantly, he even denied being married to her. The private respondent has not established any just cause for his refusal to comply with his obligations to his wife as dutiful husband.Their separation thus falls also squarely under Article 135 of the Family Code, providing as follows:

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property:xxx xxx xxx

(6) That at the time of the petition, the spouse have been separated in fact for at least one year and reconciliation is highly improbable.

The amendments introduced in the Family Code are applicable to the case before us although they became effective only on August 3, 1988. As we held in Ramirez v. Court of Appeals: 7

The greater weight of authority is inclined to the view that an appellate court, in reviewing a judgment on appeal, will dispose of a question according to the law prevailing at the term of such disposition, and not according to the law prevailing at the time of rendition of the appealed judgement. The court will therefore reverse a judgement which was correct at the time it was originally rendered where, by statute, there has been an intermediate change in the law which renders such judgement erroneous at the time the case was finally disposed of on appeal.

The order of judicial separation of the properties in question is based on the finding of both the trial and respondent courts that the private respondent is indeed their real owner. It is these properties that should now be divided between him and the petitioner, on the assumption that they were acquired during coverture and so belong to the spouses half and half. As the private respondent is a Chinese citizen, the division must include such properties properly belonging to the conjugal partnership as may have been registered in the name of other persons in violation of the Anti-Dummy Law.The past has caught up with the private respondent. After his extramarital flings and a succession of illegitimate children, he must now make an accounting to his lawful wife of the properties he denied her despite his promise to their of his eternal love and care.WHEREFORE, the petition is GRANTED and the assailed decision of the respondent court is MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the petitioner herein, and the conjugal property of the petitioner and the private respondent is hereby ordered divided between them, share and share alike. This division shall be implemented by the trial court after determination of all the properties pertaining to the said conjugal partnership, including those that may have been illegally registered in the name of the persons.SO ORDERED.Padilla, Griño-Aquino and Bellosillo, JJ., concur.

G.R. No. 163744             February 29, 2008METROPOLITAN BANK AND TRUST CO., petitioner, vs.NICHOLSON PASCUAL a.k.a. NELSON PASCUAL, respondent.

D E C I S I O NVELASCO, JR., J.:

Respondent Nicholson Pascual and Florencia Nevalga were married on January 19, 1985. During the union, Florencia bought from spouses Clarito and Belen Sering a 250-square meter lot with a three-door apartment standing thereon located in Makati City. Subsequently, Transfer Certificate of Title (TCT) No. S-101473/T-510 covering the purchased lot was canceled and, in lieu thereof, TCT No. 1562831 of the Registry of Deeds of Makati City was issued in the name of Florencia, "married to Nelson Pascual" a.k.a. Nicholson Pascual.In 1994, Florencia filed a suit for the declaration of nullity of marriage under Article 36 of the Family Code, docketed as Civil Case No. Q-95-23533. After trial, the Regional Trial Court (RTC), Branch 94 in Quezon City rendered, on July 31, 1995, a Decision,2 declaring the marriage of Nicholson and Florencia null and void on the ground of psychological incapacity on the part of Nicholson. In the same decision, the RTC, inter alia, ordered the dissolution and liquidation of the ex-spouses’ conjugal partnership of gains. Subsequent events saw the couple going their separate ways without liquidating their conjugal partnership.On April 30, 1997, Florencia, together with spouses Norberto and Elvira Oliveros, obtained a PhP 58 million loan from petitioner Metropolitan Bank and Trust Co. (Metrobank). To secure the obligation, Florencia and the spouses Oliveros executed several real estate mortgages (REMs) on their properties, including one involving the lot covered by TCT No. 156283. Among the documents Florencia submitted to procure the loan were a copy of TCT No. 156283, a photocopy of the marriage-nullifying RTC decision, and a document denominated as "Waiver" that Nicholson purportedly executed on April 9, 1995. The waiver, made in favor of Florencia, covered the conjugal properties of the ex-spouses listed therein, but did not incidentally include the lot in question.Due to the failure of Florencia and the spouses Oliveros to pay their loan obligation when it fell due, Metrobank, on November 29, 1999, initiated foreclosure proceedings under Act No. 3135, as amended, before the Office of the Notary Public of Makati City. Subsequently, Metrobank caused the publication of the notice of sale on three issues of Remate.3 At the auction sale on January 21, 2000, Metrobank emerged as the highest bidder.Getting wind of the foreclosure proceedings, Nicholson filed on June 28, 2000, before the RTC in Makati City, a Complaint to declare the nullity of the mortgage of the disputed property, docketed as Civil Case No. 00-789 and eventually raffled to Branch 65 of the court. In it, Nicholson alleged that the property, which is still conjugal property, was mortgaged without his consent.Metrobank, in its Answer with Counterclaim and Cross-Claim,4 alleged that the disputed lot, being registered in Florencia’s name, was paraphernal. Metrobank also asserted having approved the mortgage in good faith.Florencia did not file an answer within the reglementary period and, hence, was subsequently declared in default.

The RTC Declared the REM Invalid

After trial on the merits, the RTC rendered, on September 24, 2001, judgment finding for Nicholson. The fallo reads:

PREMISES CONSIDERED, the Court renders judgment declaring the real estate mortgage on the property covered by [TCT] No. 156283 of the Registry of Deeds for the City of Makati as well as all proceedings thereon null and void.The Court further orders defendants [Metrobank and Florencia] jointly and severally to pay plaintiff [Nicholson]:1. PhP100,000.00 by way of moral damages;2. PhP75,000.00 by way of attorney’s fees; and3. The costs.SO ORDERED.5

Even as it declared the invalidity of the mortgage, the trial court found the said lot to be conjugal, the same having been acquired during the existence of the marriage of Nicholson and Florencia. In so ruling, the RTC invoked Art. 116 of the Family Code, providing that "all property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved." To the trial court, Metrobank had not overcome the presumptive conjugal nature of the lot. And being conjugal, the RTC concluded that the disputed property may not be validly encumbered by Florencia without Nicholson’s consent.The RTC also found the deed of waiver Florencia submitted to Metrobank to be fatally defective. For let alone the fact that Nicholson denied executing the same and that the signature of the notarizing officer was a forgery, the waiver document was allegedly executed on April 9, 1995 or a little over three months before the issuance of the RTC decision declaring the nullity of marriage between Nicholson and Florencia.The trial court also declared Metrobank as a mortgagee in bad faith on account of negligence, stating the observation that certain data appeared in the supporting contract documents, which, if properly scrutinized, would have put the bank on guard against approving the mortgage. Among the data referred to was the date of execution of the deed of waiver.The RTC dismissed Metrobank’s counterclaim and cross-claim against the ex-spouses.Metrobank’s motion for reconsideration was denied. Undeterred, Metrobank appealed to the Court of Appeals (CA), the appeal docketed as CA-G.R. CV No. 74874.

The CA Affirmed with Modification the RTC’s DecisionOn January 28, 2004, the CA rendered a Decision affirmatory of that of the RTC, except for the award therein of moral damages and attorney’s fees which the CA ordered deleted. The dispositive portion of the CA’s Decision reads:

WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED WITH MODIFICATION with respect to the award of moral damages and attorney’s fees which is hereby DELETED.

SO ORDERED.6

Like the RTC earlier held, the CA ruled that Metrobank failed to overthrow the presumption established in Art. 116 of the Family Code. And also decreed as going against Metrobank was Florencia’s failure to comply with the prescriptions of the succeeding Art. 124 of the Code on the disposition of conjugal partnership property. Art. 124 states:

Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy x x x.In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

As to the deletion of the award of moral damages and attorney’s fees, the CA, in gist, held that Metrobank did not enter into the mortgage contract out of ill-will or for some fraudulent purpose, moral obliquity, or like dishonest considerations as to justify damages.Metrobank moved but was denied reconsideration by the CA.Thus, Metrobank filed this Petition for Review on Certiorari under Rule 45, raising the following issues for consideration:

a. Whether or not the [CA] erred in declaring subject property as conjugal by applying Article 116 of the Family Code.b. Whether or not the [CA] erred in not holding that the declaration of nullity of marriage between the respondent Nicholson Pascual and Florencia Nevalga ipso facto dissolved the regime of community of property of the spouses.c. Whether or not the [CA] erred in ruling that the petitioner is an innocent purchaser for value.7

Our RulingA modification of the CA’s Decision is in order.

The Disputed Property is ConjugalIt is Metrobank’s threshold posture that Art. 160 of the Civil Code providing that "[a]ll property of the marriage is presumed to belong to the conjugal partnership, unless it be prove[n] that it pertains exclusively to the husband or to the wife," applies. To Metrobank, Art. 116 of the Family Code could not be of governing application inasmuch as Nicholson and Florencia contracted marriage before the effectivity of the Family Code on August 3, 1988. Citing Manongsong v. Estimo,8Metrobank asserts that the presumption of

conjugal ownership under Art. 160 of the Civil Code applies when there is proof that the property was acquired during the marriage. Metrobank adds, however, that for the presumption of conjugal ownership to operate, evidence must be adduced to prove that not only was the property acquired during the marriage but that conjugal funds were used for the acquisition, a burden Nicholson allegedly failed to discharge.To bolster its thesis on the paraphernal nature of the disputed property, Metrobank cites Francisco v. Court of Appeals9and Jocson v. Court of Appeals,10 among other cases, where this Court held that a property registered in the name of a certain person with a description of being married is no proof that the property was acquired during the spouses’ marriage.On the other hand, Nicholson, banking on De Leon v. Rehabilitation Finance Corporation11 and Wong v. IAC,12 contends that Metrobank failed to overcome the legal presumption that the disputed property is conjugal. He asserts that Metrobank’s arguments on the matter of presumption are misleading as only one postulate needs to be shown for the presumption in favor of conjugal ownership to arise, that is, the fact of acquisition during marriage. Nicholson dismisses, as inapplicable, Francisco and Jocson, noting that they are relevant only when there is no indication as to the exact date of acquisition of the property alleged to be conjugal.As a final point, Nicholson invites attention to the fact that Metrobank had virtually recognized the conjugal nature of the property in at least three instances. The first was when the bank lumped him with Florencia in Civil Case No. 00-789 as co-mortgagors and when they were referred to as "spouses" in the petition for extrajudicial foreclosure of mortgage. Then came the published notice of foreclosure sale where Nicholson was again designated as co-mortgagor. And third, in its demand-letter13 to vacate the disputed lot, Metrobank addressed Nicholson and Florencia as "spouses," albeit the finality of the decree of nullity of marriage between them had long set in.We find for Nicholson.First, while Metrobank is correct in saying that Art. 160 of the Civil Code, not Art. 116 of the Family Code, is the applicable legal provision since the property was acquired prior to the enactment of the Family Code, it errs in its theory that, before conjugal ownership could be legally presumed, there must be a showing that the property was acquired during marriageusing conjugal funds. Contrary to Metrobank’s submission, the Court did not, in Manongsong,14 add the matter of the use of conjugal funds as an essential requirement for the presumption of conjugal ownership to arise. Nicholson is correct in pointing out that only proof of acquisition during the marriage is needed to raise the presumption that the property is conjugal. Indeed, if proof on the use of conjugal is still required as a necessary condition before the presumption can arise, then the legal presumption set forth in the law would veritably be a superfluity. As we stressed in Castro v. Miat:

Petitioners also overlook Article 160 of the New Civil Code. It provides that "all property of the marriage is presumed to be conjugal partnership, unless it be prove[n] that it pertains exclusively to the husband or to the wife." This article does not require proof that the property was acquired with funds of the partnership. The presumption applies even when the manner in which the property was acquired does not appear.15 (Emphasis supplied.)

Second, Francisco and Jocson do not reinforce Metrobank’s theory. Metrobank would thrust on the Court, invoking the two cases, the argument that the registration of the property in the name of "Florencia Nevalga, married to Nelson Pascual" operates to describe only the marital status of the title holder, but not as proof that the property was acquired during the existence of the marriage.Metrobank is wrong. As Nicholson aptly points out, if proof obtains on the acquisition of the property during the existence of the marriage, then the presumption of conjugal ownership applies. The correct lesson of Francisco and Jocson is that proof of acquisition during the marital coverture is a condition sine qua non for the operation of the presumption in favor of conjugal ownership. When there is no showing as to when the property was acquired by the spouse, the fact that a title is in the name of the spouse is an indication that the property belongs exclusively to said spouse.16

The Court, to be sure, has taken stock of Nicholson’s arguments regarding Metrobank having implicitly acknowledged, thus being in virtual estoppel to question, the conjugal ownership of the disputed lot, the bank having named the former in the foreclosure proceedings below as either the spouse of Florencia or her co-mortgagor. It is felt, however, that there is no compelling reason to delve into the matter of estoppel, the same having been raised only for the first time in this petition. Besides, however Nicholson was designated below does not really change, one way or another, the classification of the lot in question.

Termination of Conjugal Property Regime doesnot ipso facto End the Nature of Conjugal Ownership

Metrobank next maintains that, contrary to the CA’s holding, Art. 129 of the Family Code is inapplicable. Art. 129 in part reads:

Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply:x x x x(7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code.Apropos the aforequoted provision, Metrobank asserts that the waiver executed by Nicholson, effected as it were before the

dissolution of the conjugal property regime, vested on Florencia full ownership of all the properties acquired during the marriage.

Nicholson counters that the mere declaration of nullity of marriage, without more, does not automatically result in a regime of complete separation when it is shown that there was no liquidation of the conjugal assets.We again find for Nicholson.While the declared nullity of marriage of Nicholson and Florencia severed their marital bond and dissolved the conjugal partnership, the character of the properties acquired before such declaration continues to subsist as conjugal properties until and after the liquidation and partition of the partnership. This conclusion holds true whether we apply Art. 129 of the Family Code on liquidation of the conjugal partnership’s assets and liabilities which is generally prospective in application, or Section 7, Chapter 4, Title IV, Book I (Arts. 179 to 185) of the Civil Code on the subject, Conjugal Partnership of Gains. For, the relevant provisions of both Codes first require the liquidation of the conjugal properties before a regime of separation of property reigns.In Dael v. Intermediate Appellate Court, we ruled that pending its liquidation following its dissolution, the conjugal partnership of gains is converted into an implied ordinary co-ownership among the surviving spouse and the other heirs of the deceased.17

In this pre-liquidation scenario, Art. 493 of the Civil Code shall govern the property relationship between the former spouses, where:

Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. (Emphasis supplied.)

In the case at bar, Florencia constituted the mortgage on the disputed lot on April 30, 1997, or a little less than two years after the dissolution of the conjugal partnership on July 31, 1995, but before the liquidation of the partnership. Be that as it may, what governed the property relations of the former spouses when the mortgage was given is the aforequoted Art. 493. Under it, Florencia has the right to mortgage or even sell her one-half (1/2) undivided interest in the disputed property even without the consent of Nicholson. However, the rights of Metrobank, as mortgagee, are limited only to the 1/2 undivided portion that Florencia owned. Accordingly, the mortgage contract insofar as it covered the remaining 1/2 undivided portion of the lot is null and void, Nicholson not having consented to the mortgage of his undivided half.The conclusion would have, however, been different if Nicholson indeed duly waived his share in the conjugal partnership. But, as found by the courts a quo, the April 9, 1995 deed of waiver allegedly executed by Nicholson three

months prior to the dissolution of the marriage and the conjugal partnership of gains on July 31, 1995 bore his forged signature, not to mention that of the notarizing officer. A spurious deed of waiver does not transfer any right at all, albeit it may become the root of a valid title in the hands of an innocent buyer for value.Upon the foregoing perspective, Metrobank’s right, as mortgagee and as the successful bidder at the auction of the lot, is confined only to the 1/2 undivided portion thereof heretofore pertaining in ownership to Florencia. The other undivided half belongs to Nicholson. As owner pro indiviso of a portion of the lot in question, Metrobank may ask for the partition of the lot and its property rights "shall be limited to the portion which may be allotted to [the bank] in the division upon the termination of the co-ownership."18 This disposition is in line with the well-established principle that the binding force of a contract must be recognized as far as it is legally possible to do so––quando res non valet ut ago, valeat quantum valere potest.19

In view of our resolution on the validity of the auction of the lot in favor of Metrobank, there is hardly a need to discuss at length whether or not Metrobank was a mortgagee in good faith. Suffice it to state for the nonce that where the mortgagee is a banking institution, the general rule that a purchaser or mortgagee of the land need not look beyond the four corners of the title is inapplicable.20 Unlike private individuals, it behooves banks to exercise greater care and due diligence before entering into a mortgage contract. The ascertainment of the status or condition of the property offered as security and the validity of the mortgagor’s title must be standard and indispensable part of the bank’s operation.21 A bank that failed to observe due diligence cannot be accorded the status of a bona fide mortgagee,22 as here.But as found by the CA, however, Metrobank’s failure to comply with the due diligence requirement was not the result of a dishonest purpose, some moral obliquity or breach of a known duty for some interest or ill-will that partakes of fraud that would justify damages.WHEREFORE, the petition is PARTLY GRANTED. The appealed Decision of the CA dated January 28, 2004, upholding with modification the Decision of the RTC, Branch 65 in Makati City, in Civil Case No. 00-789, is AFFIRMED with theMODIFICATION that the REM over the lot covered by TCT No. 156283 of the Registry of Deeds of Makati City is hereby declared valid only insofar as the pro indiviso share of Florencia thereon is concerned.As modified, the Decision of the RTC shall read:PREMISES CONSIDERED, the real estate mortgage on the property covered by TCT No. 156283 of the Registry of Deeds of Makati City and all proceedings thereon are NULL and VOID with respect to the undivided 1/2 portion of the disputed property owned by Nicholson, but VALID with respect to the other undivided 1/2 portion belonging to Florencia.The claims of Nicholson for moral damages and attorney’s fees are DENIED for lack of merit.No pronouncement as to costs.

SO ORDERED.

G.R. No. 171260               September 11, 2009AMPARO ROBLES CABREZA, Petitioner, vs.CEFERINO S. CABREZA, JR., JUDGE PABLITO ROXAS, SHERIFF

RONBERTO VALINO, REGIONAL TRIAL COURT BRANCH 70 PASIG CITY, Respondents.

D E C I S I O NDEL CASTILLO, J.:Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, seeking to set aside the December 7, 2005 Decision2 and February 7, 2006 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 86770.The facts of the case are as follows:Ceferino S. Cabreza, Jr. (respondent) filed with the Regional Trial Court (RTC), Branch 70, of Pasig City, a petition for the declaration of nullity of his marriage to Amparo Robles Cabreza (petitioner). The same was docketed as JDRC Case No. 3705.On January 3, 2001, the RTC rendered a Decision4 granting the petition, the dispositive portion of which reads:WHEREFORE, the Court hereby grants the instant petition and declares the marriage of petitioner and respondent a nullity pursuant to Art. 36 of the Family Code.Further, the conjugal partnership is hereby dissolved and must be liquidated in accordance with Art. 129 of the Family Code, without prejudice to the prior rights of known and unknown creditors of the conjugal partnership.Let copies of this decision be furnished the Local Civil Registrars of Cainta, Rizal and Pasig City and the Registry of Deeds of Pasig City, for record purposes.SO ORDERED.5

Said Decision is final and executory.On March 7, 2003, respondent filed with the RTC a Motion for Execution (Re: Dissolution of Conjugal Partnership). In said motion, respondent sought to implement the order for the liquidation of the conjugal partnership, which consisted solely in the real property located at No. 20 United Street, Bo. Capitolyo, Pasig City, covered by Transfer Certificate of Title No. 17460. For this purpose, he moved that said property be sold and the proceeds be divided and distributed.6

On May 26, 2003, the RTC issued an Order7 granting respondent’s motion, the dispositive portion of which reads:WHEREFORE, the Court hereby orders that the property covered by Transfer Certificate of Title No. 17460 be sold and the proceeds thereof be divided and distributed, as follows:

a) 1/2 or 50% of the total proceeds shall be delivered to the common children of the petitioner and the respondent as their presumptive legitime;b) the other half or 50% of the proceeds shall be equally divided between the petitioner and the respondent. From the share of the respondent should be deducted the total amount of PHP 1,500,000.00 which was earlier advanced by petitioner to

respondent, but which was adjudged to be returned to the former by the latter pursuant to the Resolution of the Court of Appeals dated November 14, 1994 (Exh. "F") and reiterated in the final and executory Decision in this case by this Court.

All of the foregoing are subject to the claim of creditors of the conjugal partnership or of the petitioner and respondent, if any.SO ORDERED.8

On July 30, 2003, the RTC issued an order granting respondent’s motion to allow prospective buyers to inspect the property.9

On October 2, 2003, the RTC issued another order granting respondent’s motion which prayed for the approval of the deed of absolute sale, for the authorization for respondent to sign said deed in behalf of petitioner, and for an order requiring the occupants to vacate the property.10

Petitioner filed a motion for reconsideration questioning the October 2, 2003 Order which was however denied by the said court in an Order dated November 4, 2003.11

On May 12, 2004, the RTC issued another order granting respondent’s prayer for the issuance of a writ of possession, thus:The Decision in this case having attained finality, petitioner’s motion (for issuance of Writ of Possession) is impressed with merit and is hereby GRANTED.However, before the Court issues the said Writ of Possession, the buyer, BJD Holdings Corporation, is first directed to comply with its undertaking to submit to the Court a Certificate of Bank Deposit in the amount of Ten Million Pesos (PHP 10,000,000.00), representing the total purchase price for the property as contained in the Deed of Absolute Sale which was approved by this Court in its Order dated October 2, 2003.SO ORDERED.12

On June 25, 2004, the RTC issued an Order13 granting a writ of possession in favor of the buyer of the property, BJD Holdings Corporation. Thereafter, on June 30, 2004, a writ of possession14 was issued. On July 5, 2004, a Notice to Vacate15 was served on petitioner.On July 8, 2004, petitioner filed a Motion to Hold in Abeyance the Writ of Possession and Notice to Vacate,16 arguing that Article 129(9) of the New Civil Code provides that, in the partition of the properties, the conjugal dwelling and lot on which it is situated shall be adjudicated to the spouse with whom majority of the children choose to remain. Hence, since the majority of the children, albeit of legal age, opted to stay with petitioner, she asserted that the family home should be given to her.On August 4, 2004, the RTC issued an Order17 denying the motion of petitioner, the pertinent portions of which read:The Decision in this case having long become final and executory – the appeals before the Court of Appeals, as well as with the Supreme Court were dismissed with finality – there is noting more to be done other than to have the Decision implemented.x x x x

It is evident from Article 129 of the Family Code that the same presupposes a situation where there are other properties aside from the property subject of the motion that constitute the conjugal partnership. In the instant case, there is only one (1) piece of property involved which is the real property covered by TCT No. 17460 located at No. 20 United St., Bo. Capitolyo, Pasig City. Pursuant to the order of this Court dated 26 May 2003, granting the Motion for Execution of the Decision, said property was ordered to be sold and the proceeds distributed, x x x.x x x xIt will be noted from the foregoing sequence of events that there is nothing more that remains to be done, but to enforce the final and executory Decision, as well as its implementing orders.WHEREFORE, the Motion to Hold in Abeyance Writ of Possession and Motion to Vacate is hereby DENIED, for lack of merit.SO ORDERED.18

On August 6, 2004, petitioner filed a Motion for Reconsideration which was however denied by the RTC in an order dated August 27, 2004.On September 2, 2004, the Sheriff issued a Final Notice to Vacate19.On October 4, 2004, petitioner filed with the CA a Petition for Certiorari20 assailing the order of possession, writ of possession and notice to vacate.On December 7, 2005, the CA rendered a Decision21 denying the petition for certiorari. The CA ruled in the wise:We do not agree, to begin with, that the assailed issuances were tainted by lack of jurisdiction or grave abuse of discretion. Instead, we consider the contention of the respondent husband, that Art. 129 (9), Family Code, supra, is applicable only when the spouses had other assets to be divided between them, to be correct. Indeed Art. 129(9), Family Code, supra, obviously refers to "partition of the properties". Hence, the respondent Judge was not guilty of any arbitrariness, whimsicality or capriciousness in issuing the assailed orders and writ. It is not disputed that the conjugal dwelling in question (Transfer Certificate of Title No. 17460) was the only asset of the conjugal partnership that was the subject of partition between the spouses.The more decisive fact is, however, the finality of the RTC judgment dated May 26, 2003.The petitioner wife wants to change the final judgment, insisting that the conjugal dwelling should be awarded exclusively to her because the common children of the spouses, albeit of legal age, have chosen to live with her. We cannot permit what petitioner wants because it does not (sic) accord with the decree of the final judgment dated May 26, 2003, which specifically and plainly directed that the property was to be sold and the proceeds of the sale was divided and distributed, x x x x22

Petitioner then filed a Motion for Reconsideration which was however denied by the CA in a Resolution23 dated February 7, 2006.Hence, herein petition, with petitioner raising the following issues, to wit:

ARE THE ORDER OF POSSESSION, WRIT OF EXECUTION/POSSESSION AND NOTICE TO VACATE THAT VARY THE TERMS OF THE DISPOSITIVE PORTION OF THE DECISION IN ACCORDANCE WITH SUPREME COURT DECISIONS?IS THE COURT OF APPEALS DECISION IN ACCORDANCE WITH SUPREME COURT DECISION?24

The petition is bereft of merit.Petitioner argues in the main that the order of possession, writ of possession and notice to vacate vary the terms of the dispositive portion of the January 3, 2001 RTC Decision, because the same authorize the sale of the family home. Specifically, petitioner anchors her petition on Article 129 (9) of the Civil Code, which reads:In the partition of the properties, the conjugal dwelling and lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain.Petitioner also argues against the contention of respondent that article 129(9) does not apply because of the lack of other properties. She points out that there is another property, the same covered by TCT No. 17461, which she alleges was presented and forms part of the record.25

Respondent, for his part, contends that the petition must be dismissed because the same raises a question of fact, and it raises an issue that has already been resolved with finality.For clarity, the pertinent portion of the final and executory January 3, 2001 RTC decision reads:Further, the conjugal partnership is hereby dissolved and must be liquidated in accordance with Art. 129 of the Family Code, without prejudice to the prior rights of known and unknown creditors of the conjugal partnership.26

In addition, the pertinent portion of the May 26, 2003 RTC Order granting respondent’s motion for execution reads:WHEREFORE, the Court hereby orders that the property covered by Transfer Certificate of Title No. 17460 be sold27 and the proceeds thereof be divided and distributed, as follows: x x x28

Before anything else, this Court shall address the procedural issue raised by respondent. He argues that the May 26, 2003 Order is already final and executory; hence, he contends that petitioner can no longer question the order that the property covered by Transfer Certificate of Title No. 17460 be sold.29

It is this Court’s finding that petitioner is not candid, as she omits certain facts that are pertinent to the petition at bar. Quite noticeably, her narration of facts begins from the January 3, 2001 Decision of the RTC and then suddenly jumps to its June 25, 2004 Order of Possession. She would impress upon this Court that nothing significant happened between January 3, 2001 and June 25, 2004, when on the contrary, the events that transpired during the said interval are material and important for a just resolution of the case at bar.

After a perusal of the records, this Court takes note of the following events that occurred between January 3, 2001 and June 25, 2004:On June 12, 2003, petitioner filed with the CA a Petition for Review30 assailing the May 26, 2003 Order of the RTC, which ordered the sale of the family home. The same was docketed as CA-G.R. SP No. 77506.On July 31, 2003, the CA issued a Resolution31 dismissing the petition for review, the dispositive portion of which reads:ACCORDINGLY, the petition is DENIED DUE COURSE and DISMISSED.SO ORDERED.32

On March 30, 2004, petitioner filed a Petition for Certiorari33 before this Court assailing the CA Resolution. The same was docketed as G.R. No. 162745.On May 24, 2004, this Court issued a Resolution34 denying the petition. Accordingly, on July 23, 2004, an Entry of Judgment35 was issued rendering the May 24, 2004 Resolution final and executory.In addition, this Court also takes note that there is another case filed by petitioner with the CA, docketed as CA-GR. CV No. 8651,36 questioning the validity of the Deed of Sale between respondent and BJD Holdings Corporation. The CA granted said petition and ordered that the case be remanded to the RTC for further proceedings.In summary, the three cases including herein petition, are the following:G.R. No. 162745, Amparo R. Cabreza v. Court of Appeals, et al., questioning the May 26, 2003 RTC Order granting respondent’s motion to sell the family home. Said petition was denied by this Court and an Entry of Judgment was issued on July 23, 2004.G.R. No. 171260, Amparo R. Cabreza v. Ceferino Cabreza et al., herein petition, questioning the writ of execution/possession and notice to vacate because they allegedly varied the terms of the dispositive portion of the January 3, 2001 judgment of the RTC.CA-GR. CV No. 86511, Amparo R. Cabreza v. Ceferino S. Cabreza, et al., questioning the Deed of Sale between respondent and BJD Holdings Corporation, allegedly because of petitioners lack of consent thereto. The petition was granted by the CA, which ordered for the remand of the case to the RTC for further proceedings.Based on the foregoing, herein petition must fail.Petitioner cannot hide from the fact that the May 26, 2003 Order of the RTC is already final and executory as a necessary consequence of the Entry of Judgment dated July 23, 2004. Said Order categorically authorized the sale of the family home. Although the CA may have mistakenly denominated the May 26, 2003 Order as a "judgment", the same does not detract from the fact that the said order should be considered final and executory, as petitioners’ attempt to question the same has already been denied by this Court.Inescapably, this Court must consider, in the event herein petition is granted, will the same change or vary the final May 26, 2003 RTC Order which ordered that the family home be sold and the proceeds be divided? This Court finds that it does.

In her Memorandum,37 petitioner maintains that it is not true that "the issues regarding the sale of the subject property has long been settled by the Court of Appeals and the Supreme Court,"38 and thus she argues in this wise:The Order to Sell the subject property is questioned before this Honorable Court on the ground that the same varies the dispositive portion of the final decision of the court a quo. The dispositive portion of the final decision does not decree sale but the lower court a quo ordered sale of the family home.a1fLikewise, it is judicially admitted by the private respondent that a Complaint to Annul the Deed of Sale is pending appeal in the Court of Appeals (Comment, par. 2.7, p. 5) based of lack of consent to and signature of herein petitioner in the Deed of Sale. This Complaint for Annulment of Sale is different from the instant case that seeks to annul the Order to Sell and to vacate which varies the dispositive portion of the final decision.Premises considered, it is not true that the challenged Order to Sell has become final and executory.Assuming, arguendo, that the Order to Sell is valid, the Deed of Sale is void due to lack of consent to and signature of the herein petitioner thereon. Assuming further, without admitting, the sale was valid, the Order to vacate is not valid for lack of delivery of price.39

It is very apparent that petitioner tries to hide from the fact that the January 3, 2001 Decision was implemented by the RTC in its May 26, 2003 Order. She also tries to hide from the fact that this Court has denied her earlier petition, which questioned the May 26, 2003 Order.In CA G.R. CV No. 77506, petitioner already questioned the sale of the family home, as can be gleaned from her allegations, as follows:"1.4 The Court erred in ordering that the property covered by Transfer Certificate of Title No. 17460 be sold, in violation of Provision of Article 102 (6) of the Family Code of the Philippines, which stipulates that:"Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot shall be adjudicated to the spouse with whom the majority of the common children choose to remain"40.In addition, petitioner alleges: "FURTHERMORE, HER FAMILY DOMICILE IS ORDERED BY THE COURT TO BE SOLD.41" Lastly, petitioner prays that x x x the Order dated May 26, 2003 in the instant case be set aside and reversed x x x".42

Thus, the issue in herein petition of whether or not the sale of the property varies the January 3, 2001 Decision should no longer be litigated anew. To allow so, would permit petitioner to indirectly reopen its failed petition in G.R. No. 162745 (CA G.R. CV No. 77506).The May 26, 2003 Order was the first order that "varied" the January 3, 2001 Decision, as it categorically decreed the sale of the property. The order of possession, writ of possession and notice to vacate, which are now assailed by petitioner, were all implemented after the May 26, 2003 Order. Hence, petitioner should have already raised herein argument in its first petition in CA-G.R. SP No. 77506, as the facts on which she anchors her argument were already operative then. She did not raise the same in CA-G.R. SP No.

77506, and it would be unfair to allow her to raise said argument in this petition in the guise of questioning the subsequent implementing orders of the RTC.There is also no compelling reason for this Court to exercise its equity jurisdiction in the case at bar. It is of notice that in her failed petition in CA-G.R. SP No. 77506, petitioner filed the same on her behalf and without the services of a lawyer. Thus, the same was dismissed by the CA on procedural grounds; among the reasons given was that petitioner had availed herself of the wrong remedy, and that she had failed to attach the necessary documents.Petitioner then sought redress in this Court through a petition which was docketed as G.R. No. 162745. As in her petition before the CA, petitioner again did not avail herself of the services of a lawyer. Thus, the petition before this Court suffered the same fate, as it dismissed the same via a resolution again on technicalities.While there is no prohibition for private parties to file a petition on their own behalf, it necessarily follows that they take the risk of not having a lawyer who is well-versed in appellate practice. After her failed petition in the CA, petitioner already had the opportunity to rectify the situation by engaging the services of a lawyer when she filed her petition before this Court; yet for some reason, she chose not to do so. Thus, she has no one else to blame but herself.Based on the foregoing, this Court finds no compelling reason to entertain petitioner’s argument, which should have been timely raised in her petition before the CA in CA -G.R. SP No. 77506.Moreover, in her effort to salvage her petition, petitioner contends that the deed of sale between respondent and the BJD Holdings Corporation is not valid because of her lack of consent thereto. Such argument, however, deserves scant consideration, as petitioner herself manifested that there is a pending case involving the validity of the deed of sale pursuant to the CA’s ruling in CA-G.R CV No. 86511. The same therefore cannot be the proper subject of herein petition.Anent petitioner’s allegation that there is another conjugal property other than that covered by TCT No. 17460, the same is a question of fact which should not be the proper subject of a petition under Rule 45 of the Rules of Court.J.R. Blanco v. Quasha43 is instructive, to wit:To begin with, this Court is not a trier of facts. It is not its function to examine and determine the weight of the evidence supporting the assailed decision. In Philippine Airlines, Inc. vs. Court of Appeals (275 SCRA 621 [1997]), the Court held that factual findings of the Court of Appeals which are supported by substantial evidence are binding, final and conclusive upon the Supreme Court. So also, well-established is the rule that "factual findings of the Court of Appeals are conclusive on the parties and carry even more weight when the said court affirms the factual findings of the trial court." Moreover, well entrenched is the prevailing jurisprudence that only

errors of law and not of facts are reviewable by this Court in a petition for review on certiorari under Rule 45 of the Revised Rules of Court, which applies with greater force to the Petition under consideration because the factual findings by the Court of Appeals are in full agreement with what the trial court found.44

In the case at bar, the RTC in its August 4, 2004 Order found:x x x In the instant case, there is only one (1) piece of property involved which is the real property covered by TCT No. 17460 located at No. 20 United St., Bo. Capitolyo, Pasig City. x x x45

Likewise, the CA in its December 7, 2005 Decision found:x x x x It is not disputed that the conjugal dwelling in question (Transfer Certificate of Title No. 17460) was the only asset of the conjugal partnership that was the subject of partition between the spouses.46

Based on the foregoing, this Court finds no reason to reverse the findings of fact made by the CA, more so, since the same is in accordance with the findings of fact of the RTC.WHEREFORE, premises considered, the petition is DENIED for lack of merit. The December 7, 2005 Decision and February 7, 2006 Resolution of the Court of Appeals in CA-G.R. SP No. 86770 are AFFIRMED.Costs against petitioner.SO ORDERED.

G.R. No. 181962               January 16, 2012CEFERINO S. CABREZA, JR., BJD HOLDINGS CORP., represented by ATTY. MANUEL DULAY, Petitioners, 

vs.AMPARO ROBLES CABREZA, Respondents.

D E C I S I O NSERENO, J.:Before us is a Petition seeking to annul the Court of Appeals’ Decision that reversed a lower court’s dismissal of a Complaint for declaration of nullity of the Deed of Sale of a conjugal dwelling on the ground of litis pendentia.On 3 January 2001, the Regional Trial Court of Pasig Branch 70 (RTC Br. 70) in JDRC Case No. 3705 declared void ab initio the marriage between Ceferino Cabreza, Jr. (Ceferino) and Amparo Cabreza (Amparo) and ordered the dissolution and liquidation of the conjugal partnership inaccordance with Article 129 of the Family Code.1 When this Decision became final, Ceferino moved that their only conjugal property, the conjugal home, be sold and the proceeds distributed as mandated by law. RTC Br. 70 granted his Motion in a 26 May 2003 Order which became final when the Supreme Court (SC) dismissed, on technicalities,2 Amparo’s Petition questioning the said Order.Ceferino thereafter filed an Omnibus Motion (1) to approve the Deed of Absolute Sale (Deed of Sale); (2) to authorize petitioner-movant to sign the Deed of Sale for and on behalf of Amparo; and (3) to order the occupants of the premises to vacate the property. Despite notice to Amparo, only Ceferino and his counsel appeared during the scheduled hearing on the Motion. The Omnibus Motion of Ceferino was granted by RTC Br. 70 on 2 October 2003.3 Hence, for himself and on behalf of Amparo, he executed the Deed of Sale in favor of BJD Holdings Corporation. He then filed a Motion for Writ of Possession and to Divide the Purchase Price, which RTC Pasig Branch 70 granted in its 12 May 2004 Order.In response to RTC Br. 70’s issuance of a Writ of Possession, followed by a 30 June 2004 Notice to Vacate, Amparo filed a Motion to Hold in Abeyance the Writ of Possession and Notice to Vacate, arguing that (1) the parties had another conjugal lot apart from the conjugal dwelling; and (2) under Article 129 of the Family Code,4 the conjugal dwelling should be adjudicated to her as the spouse, with whom four of the five Cabreza children were staying. RTC Br. 70 denied her Motionand the Court of Appeals (CA) upheld the denial, prompting her to file with the SC a Petition for Review of this CA Decision, docketed as G.R. No. 171260.On 11 September 2009, the SC in G.R. No. 171260 denied Amparo’s Petition5 on the ground that granting it would modify the already final 26 May 2003 Order of RTC Br. 70 authorizing the sale of the family home. As the facts upon which Amparo based her argument against RTC Br. 70’s issuances (Order of Possession, Writ of Possession and Notice to Vacate) were already operative when she questioned the 26 May 2003 Order, she should have raised her argument then. It would be unfair to allow her to raise the said argument now in the guise of questioning the subsequent implementing Orders of RTC Br. 70. Meanwhile, her allegation that there is another conjugal property other than the subject property is a question of fact

not proper for a Rule 45 petition. Also, the factual finding of both RTC Br. 70 and the CA that there was only one conjugal property was conclusive upon the parties. The SC Decision in G.R. No. 171260 became final and executory on 5 January 2010.On 26 January 2005 or during the pendency of the CA Petition, which culminated in G.R. No. 171260, Amparo filed with the Pasig RTC, Branch 67 (RTC Br. 67) a Complaint (docketed as Civil Case No. 70269) to annul the Deed of Absolute Sale for being void due to lack of her consent thereto.6 RTC Br. 67 dismissed the Complaint with prejudice, on the basis of litis pendentia and forum shopping.7

Amparo appealed to the CA, which reversed the Resolution of RTC Br. 67. Holding that there was no litis pendentia and therefore no forum shopping, the appellate court directed that the case be remanded for trial on the merits.8

Ceferino moved for reconsideration of the CA ruling. When his Motion was denied, he filed the present Petition for Review under Rule 45, docketed as G.R. No. 181962, arguing that the CA erred in reversing RTC Br. 67’s dismissal of the Complaint for Declaration of Nullity of the Deed of Absolute Sale filed by Amparo during the pendency of her Petition for Certiorari to nullify the Writ of Possession on the grounds of litis pendentia and forum shopping.We find merit in the Petition.The following requisites must be present for the proper invocation of litis pendentia as a ground for dismissing an action:

1. Identity of parties or representation in both cases;2. Identity of rights asserted and relief prayed for, the relief being

founded on the same facts and the same basis; and Identity of the two preceding particulars, such that any judgment that may be rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.9

Regarding the first requisite, there is no dispute that the two cases have substantially the same parties.Anent the second requisite, the CA correctly noted that to determine whether there is identity of the rights asserted and reliefs prayed for grounded on the same facts and bases, the following tests may be utilized: (1) whether the same evidence would support and sustain both the first and the second causes of action; or (2) whether the defenses in one case may be used to substantiate the complaint in the other.10

However, we do not agree with the CA’s conclusion that there is no identity of rights asserted and reliefs prayed for in the two cases following the application of these tests. Instead, we find that there is substantial identity of rights asserted and reliefs prayed for between the two cases.The CA held that using the first test, the evidence in the Complaint for Declaration of Nullity of the Deed of Sale would be the Deed of Sale itself; while in the case impugning the Writ of Possession, it would be the trial court’s Order applying Article 129 of the Family Code.

We disagree. The CA failed to consider that RTC Br. 70 issued an Order dated 2 October 2003, which granted authority to Ceferino to sign the Deed of Sale on Amparo’s behalf. This same Order also contained, in its dispositive portion, a directive that "(a)fter the sale of the subject property shall have been consummated, all the occupants thereof shall vacate and clear the same to enable the buyer to take complete possession and control of the property." Thus, using the first test, the same evidence – the 2 October 2003 Order of RTC Br. 70 – would defeat both Amparo’s Complaint for Declaration of Nullity of the Deed of Sale and her Petition impugning the Writ of Possession. Notably, Amparo failed to timely question RTC Br. 70’s Order dated 2 October 2003.The CA also held that, using the second test, the defenses raised in one case will not necessarily be used in the other. It reasoned that although the grant of the Petition impugning the Writ of Possession would result in the nullification of the Deed of Sale, the denial of the Petition would not bar a ruling on the Complaint for nullification of the Deed of Sale, which was based on Amparo’s lack of consent thereto.Again, we do not agree. Amparo seeks to prevent the sale and thereby maintain ownership of the conjugal dwelling, both in her Petition to nullify the Writ of Possession and in her Complaint for declaration of nullity of the Deed of Sale. In both cases, she theorized that (1) since the 3 January 2001 Decision of RTC Br. 70 merely directed the dissolution and liquidation of the conjugal partnership in accordance with Article 129 of the Family Code, its subsequent Orders directing the sale of the conjugal dwelling improperly modified its own final Decision; and (2) because she was the spouse with whom a majority of the common children chose to remain, the conjugal dwelling should be adjudicated to her in accordance with the mandate of Article 129 (9) of the Family Code.Accordingly, using the second test, the same defense (i.e., the 2 October 2003 Order of RTC Br. 70) will defeat both the Complaint to nullify the Deed of Sale and the Petition to impugn the Writ of Possession. In fact, the subsequent Writ of Possession issued by RTC Br. 70 was the logical consequence of, and merely gave effect to, the Deed of Sale which it had previously approved. Basically, the two cases belatedly impugn the 2 October 2003 Order of RTC Br. 70 implementing its 23 May 2003 Order, which had long become final, following the earlier failed attempts of Amparo to impugn the latter Order.As to the last requisite, a final judgment on the merits by a court that has jurisdiction over the parties and over the subject matter in the Petition to nullify the Writ of Possession would have barred subsequent judgment on the Complaint for Declaration of Nullity of the Deed of Sale based on the principle of res judicata.11

At the time Amparo filed her Complaint for Declaration of Nullity of the Deed of Sale with RTC Br. 67, her Petition impugning the Writ of Possession was already pending with the CA. Thus, from the point of view of RTC Br. 67, the CA’s final judgment on the merits of the case before it would have barred a

subsequent judgment on the Complaint for Declaration of Nullity of the Deed of Sale.When the CA eventually upheld the propriety of the Writ of Possession, it necessarily upheld the validity of the Deed of Sale, which the Writ of Possession sought to implement. On the other hand, had the CA declared null and void the Writ of Possession based on the grounds cited by Amparo, the Complaint to annul the Deed of Sale would have been barred. This is because upholding her position would necessarily include a ruling that the RTC Br. 70 Order directing the sale itself of the conjugal dwelling was improper. Such impropriety would then extend to subsequent orders merely implementing the sale of the conjugal dwelling, including RTC Br. 70’s grant of authority to Ceferino to sign the Deed of Sale on behalf of Amparo.In fine, the CA erred in reversing the dismissal by RTC Br. 67 of the Complaint for Declaration of Nullity of Deed of Sale on the ground of the pendency of the Petition impugning the Writ of Possession before another Division of the CA.Having ruled that litis pendentia was properly invoked below, Amparo was necessarily also guilty of forum-shopping, as correctly ruled by RTC Br. 67. As we held in Buan v. Lopez,12 "forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other."Nevertheless, we take time to stress a point to avoid doctrinal confusion on litis pendentia and res judicata in this case.Despite our pronouncement on the propriety of the dismissal of the Complaint for nullification of the Deed of Absolute Sale on the ground of litis pendencia by RTC Br. 67, and the finality of the dismissal of G.R. No. 171260, we clarify that res judicata cannot be said to apply herein, simply because we dismissed Amparo’s Petition in G.R. No. 171260. While the dismissal of G.R. No. 171260 is now final, having been rendered by this Court which had jurisdiction over the subject matter and the parties thereto, it was not a judgment "on the merits" of the case.A judgment may be considered as one rendered on the merits "when it determines the rights and liabilities of the parties based on the disclosed facts, irrespective of formal, technical or dilatory objections";13 or when the judgment is rendered "after a determination of which party is right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical point."14 In American jurisdiction, it is recognized that "(i)nstances in which dismissals are not considered to be on the merits for purposes of the application of the doctrine of res judicata include … dismissal based on court’s procedural inability to consider a case."151âwphi1A reading of our Decision in G.R. No. 171260 shows that the Petition was dismissed upon a procedural inability to consider the case, based on the principle of finality of judgments. The Court’s reason for denying Amparo’s G.R. No. 171260 Petition seeking to nullify the Writ of Possession was that the said writ was merely a subsequent Order implementing that which was issued on 26 May 2003 by RTC Br. 70 authorizing the sale of the family

home. Meanwhile, the latter Order can no longer be modified, as it has long become final.We also take time to stress that the Complaint for Declaration of Nullity of the Deed of Sale cannot prosper, because, like the Petition to nullify the Writ of Possession, it effectively seeks the modification of an already final Order of RTC Br. 70. In view of this Court’s consistent ruling that Amparo cannot be allowed to impugn the already final Order of RTC Br. 70 directing the sale of the conjugal dwelling, we deny the prayer for preliminary injunction to hold in abeyance the implementation of the Notice to Vacate.WHEREFORE, premises considered, the Petition is GRANTED. The Decision dated 25 October 2007 and Resolution dated 27 February 2008 of the Court of Appeals in CA-G.R. CV No. 86511 are REVERSED. The 5 May 2005 Resolution of the Regional Trial Court Branch 67, Pasig City in Civil Case No. 70269, which dismissed the Complaint for Declaration of Nullity of Deed of Sale on the ground of the litis pendencia and forum shopping, is REINSTATED.SO ORDERED.

G.R. No. L-61700 September 14, 1987PRINCESITA SANTERO, FEDERICO SANTERO and WILLIE SANTERO, petitioners, 

vs.HON. COURT OF FIRST INSTANCE OF CAVITE, ANSELMA DIAZ, VICTOR, RODRIGO, ANSELMINA, MIGUEL, all surnamed SANTERO, and REYNALDO EVARISTO, in his capacity as Administrator of the Intestate Estate of PABLO SANTERO, respondents. PARAS, J.:This is a Petition for certiorari which questions the order of the respondent court granting the Motion for Allowance filed by private respondents. Said order reads as follows:

Acting on the Motion For Allowance dated June 30, 1982 filed by Victor, Rodrigo, Anselmina and Miguel, all surnamed Santero, thru their guardian, Anselma Diaz, the Opposition thereto dated July 8, 1982 filed by the oppositors, the Reply to Opposition dated July 12, 1982 filed by movant Anselma Diaz and the Rejoinder dated July 26, 1982 filed by the oppositors, the Court was constrained to examine the Motion For Allowance filed by the herein movant last year wherein the ground cited was for support which included educational expenses, clothing and medical necessities, which was granted and said minors were given an allowance prayed for in their motion.In the Motion For Allowance in question guardian-movant Anselma Diaz only followed the precedent of the Court which granted a similar motion last year to be spent for the school expenses of her wards. In their opposition the oppositors contend that the wards for whom allowance is sought are no longer schooling and have attained majority age so that they are no longer under guardianship. They likewise allege that the administrator does not have sufficient funds to cover the said allowance because whatever funds are in the hands of the administrator, they constitute funds held in trust for the benefit of whoever will be adjudged as owners of the Kawit property from which said administrator derives the only income of the intestate estate of Pablo Santero, et al.In the Reply filed by the guardian-movant, she admitted some of her children are of age and not enrolled for the first semester due to lack of funds but will be enrolled as soon as they are given the requested allowances. She cited Article 290 of the Civil Code providing that:

Support is everything that is indispensable for substance, dwelling, clothing and medical attendance, according to the social position of the family.

Support also includes the education of the person entitled to be supported until he completes his education or training for some trade or vocation, even beyond the age of majority.'

citing also Section 3 of Rule 83 of the Rules of Court which provides:Allowance to widow and family. The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom, under the direction of the Court, such allowance as provided by law.'

From the foregoing discussion alone, the Court cannot deviate from its duty to give the allowance sought by the wards, the fact that they need further education which should have been provided to them if their deceased father were alive.On the allegation that the funds from which the allowance would be derived are trust funds, the Court, time and again had emphasized that the estate of the Santeros is quite big and the amount to be released for allowances is indeed insignificant and which can easily be replaced from its general fund if the so-called trust fund is adjudicated to the oppositors.WHEREFORE, Victor, Rodrigo, Anselmina and Miguel, all surnamed Santero are hereby granted an allowance of two thousand (P2,000.00) pesos each for tuition fees, clothing materials and subsistence out of any available funds in the hands of the administrator who is ordered to reimburse to them the said amount after this order shall have become final to enable the oppositors to file their appeal by certiorari if they so desire within the reglementary period.SO ORDERED.Bacoor, Cavite, July 28, 1982.

It appears from the records that petitioners Princesita Santero-Morales, Federico Santero and Winy Santero are the children begotten by the late Pablo Santero with Felixberta Pacursa while private respondents Victor, Rodrigo, Anselmina and Miguel all surnamed Santero are four of the seven children begotten by the same Pablo Santero with Anselma Diaz. Both sets of children are the natural children of the late Pablo Santero since neither of their mothers, was married to their father Pablo. Pablo Santero in turn, who died on November 30, 1973 was the only legitimate son of Pascual Santero who died in 1970 and Simona Pamuti Vda. de Santero who died in 1976.Meanwhile before We could act on the instant petition private respondents filed another Motion for Allowance dated March 25, 1985 with the respondent court to include Juanita, Estelita and Pedrito all surnamed Santero as

children of the late Pablo Santero with Anselma Diaz praying that an order be granted directing the administrator Reynaldo C. Evaristo, to deliver the sum of P6,000.00 to each of the seven (7) children of Anselma Diaz as their allowance from the estate of Pablo Santero. The respondent Court granted the motion of the private respondents but oppositors (petitioners herein) asked the court to reconsider said Order.On September 10, 1985, an Amended Order was issued by respondent Court directing Anselma Diaz to submit her clarification or explanation as to the additional three (3) children of Anselma Diaz included in the motion. In compliance therewith Anselma Diaz filed her "Clarification" stating among others that in her previous motions, only the last four minor children as represented by the mother, Anselma Diaz were included in the motion for support and her first three (3) children who were then of age should have been included since all her children have the right to receive allowance as advance payment of their shares in the inheritance of Pablo Santero under Art. 188, of the New Civil Code.On October 15, 1985, petitioners herein filed their Motion to Admit Supplemental Petition opposing the inclusion of three (3) more heirs. We denied that "Motion for Extension of Time to file their Supplemental Petition" as per Our Resolution dated October 23, 1985.On November 11, 1985, another Order was issued by the respondent court directing the administrator of the estate to get back the allowance of the three additional recipients or children of Anselma Diaz apparently based on the oppositors' (petitioners herein) "Urgent Motion to Direct the Administrator to Withhold Disbursement of Allowance to the Movants."The issues now being raised in this present Petition are:

1. Whether or not respondent court acted with abuse of discretion amounting to lack of jurisdiction in granting the allowance to the respondents Victor, Rodrigo, Anselmina and Miguel-P2,000.00 each despite the fact that all of them are not minors and all are gainfully employed with the exception of Miguel.2. Whether or not respondent Court acted with abuse of discretion in granting the allowance based on the allegations of the said respondents that the abovenamed wards are still schooling and they are in actual need of money to defray their school expenses for 1982-83 when the truth is that they are no longer schooling.3. Whether or not respondent Court acted with abuse of discretion in granting the motion for allowance without conducting a hearing thereon, to determine the truth of allegations of the private respondents.

Petitioners argue that private respondents are not entitled to any allowance since they have already attained majority age, two are gainfully employed and one is married as provided for under Sec. 3 Rule 83, of the Rules of Court. Petitioners also allege that there was misrepresentation on the part of

the guardian in asking for allowance for tuition fees, books and other school materials and other miscellaneous expenses for school term 1982-83 because these wards have already attained majority age so that they are no longer under guardianship. They further allege that the administrator of the estate of Pablo Santero does not have sufficient funds to cover said allowance because whatever funds are in the hands of the administrator constitute funds held in trust for the benefit of whoever will be adjudged as owners of the Kawit properties from where these funds now held by the administrator are derived.In this connection, the question of whether the private respondents are entitled to allowance or not concerns only the intestate estate of the late Pablo Santero and not the intestate estates of Pascual Santero and Simona Pamuti, parents of their late legitimate son Pablo Santero. The reason for this is Art. 992 of the New Civil Code which states that "An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child." The question of whether or not the petitioners and private respondents are entitled to inherit by right of representation from their grandparents more particularly from Simona Pamuti was settled by Us in the related case of "Anselma Diaz, et al. vs. Felisa Pamuti-Jardin" (G.R. No. 66574-R) wherein We held that in view of the barrier present in said Art. 992, petitioners and private respondents are excluded from the intestate estate of Simona Pamuti Vda. de Santero.The present petition obviously lacks merit.The controlling provision of law is not Rule 83, Sec. 3 of the New Rules of Court but Arts. 290 and 188 of the Civil Code reading as follows:

Art. 290. Support is everything that is indispensable for sustenance, dwelling, clothing and medical attendance, according tothe social position of the family.Support also includes the education of the person entitled to be supported until he completes his education or training for some profession, trade or vocation, even beyond the age of majority.Art. 188. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them.

The fact that private respondents are of age, gainfully employed, or married is of no moment and should not be regarded as the determining factor of their right to allowance under Art. 188. While the Rules of Court limit allowances to the widow and minor or incapacitated children of the deceased, the New Civil Code gives the surviving spouse and his/her children without distinction. Hence, the private respondents Victor, Rodrigo, Anselmina and Miguel all surnamed Santero are entitled to allowances as

advances from their shares in the inheritance from their father Pablo Santero. Since the provision of the Civil Code, a substantive law, gives the surviving spouse and to the children the right to receive support during the liquidation of the estate of the deceased, such right cannot be impaired by Rule 83 Sec. 3 of the Rules of Court which is a procedural rule. Be it noted however that with respect to "spouse," the same must be the "legitimate spouse" (not common-law spouses who are the mothers of the children here).It is not true that the Motion for Allowance was granted by respondent Court without hearing. The record shows that the "Motion for Allowance" dated June 30, 1982 contains a Notice of Hearing (p. 2, Annex "A") addressed to the lawyers for the petitioners and setting the hearing thereof on July 8, 1982 at 9:00 in the morning. Apparently a copy of said motion was duly received by the lawyer, Atty. Beltran as he filed an opposition thereto on the same date of hearing of the motion. Furthermore even the instant petition admits that the wards, (petitioners and private respondents as represented by their respective guardians) "have been granted allowances for school expenses for about 8 years now." The respondent court in granting the motion for allowance merely "followed the precedent of the court which granted a similar motion last year." (Annex "F") However in previous years (1979-1981) the "wards" (petitioners and private respondents) only received P1,500.00 each depending upon the availability of funds as granted by the court in several orders. (Annex 1 to Annex 4).WHEREFORE, in the light of the aforementioned circumstances, the instant Petition is hereby DISMISSED and the assailed judgment is AFFIRMED.SO ORDERED.Yap (Chairman), Melencio-Herrera, and Sarmiento, JJ., concur.Padilla, J., took no part.