You are on page 1of 11


[G.R. No. 124118. March 27, 2000]

GONZAGA_REYES, J.: Petition for review on certiorari of the Decision of the Court of Appeals, Second Division,[1] affirming in toto the Joint Order of the Regional Trial Court of Lucena City, Branch 55,[2] which dismissed Civil Case No. 88-115 for annulment of will and ordered the disposition of the estate of Lucio Adriano in accordance with the provisions of his last will and testament in Spec. Proc. No. 4442. The pertinent facts are as follows: The testator, Lucio Adriano, also known as Ambrocio Adriano, married Gliceria Dorado on October 29, 1933. Out of their lawful marriage, they had three children, namely, Celestina, Manolo, and Aida, private respondents in this case. Sometime in 1942 or prior thereto, Lucio and Gliceria separated, and Gliceria settled in Rizal, Laguna where she died on June 11, 1968. Also in 1942 or even earlier, Lucio cohabited with Vicenta Villa, with whom he had eight children: Marino, Renato, Leticia, Imelda, Maria Alicia, Ligaya, Jose Vergel, and Zenaida, all surnamed Adriano. All his children by Vicenta Villa are the named petitioners in the instant case, with the exception of Jose Vergel, who died before the inception of the proceedings. On November 22, 1968, or five months after the death of Gliceria, Lucio married Vicenta. Lucio and Vicenta and their children lived in Candelaria, Quezon until the spouses separated in 1972.[3]Misoedp On October 10, 1980, Lucio executed a last will and testament disposing of all his properties, and assigning, among others, his second wife Vicenta and all his children by his first and second marriages as devisees and legatees therein. Among the properties bequeathed in the will were a 45,000 square meter lot and the residential house, rice mill, warehouse and equipment situated thereon located in Candelaria, Quezon and registered under Transfer Certificate of Title ("TCT") No. T-56553 in the Registry of Deeds of Quezon[4], which was disposed of in the following manner: (1) to private respondents, Lucio's children by his first wife, 10,000 square meters of the disputed property, including the warehouse, rice mill, and equipment situated thereon; (2) to Vicenta and petitioners, his children by his second marriage, the remaining 35,000 square meters; and (3) to private respondents, the residential house also within the same property.[5]

On February 11, 1981, Lucio died and private respondent Celestina Adriano, who was instituted in Lucio's will as its executrix, filed a petition for the probate of the will on February 18, 1981 before the RTC of Lucena City. The probate case was docketed as Spec. Proc. No. 4442. After due hearing and despite the Opposition filed by Vicenta, the RTC allowed the probate of the will and directed the issuance of letters testamentary to petitioner-executrix Celestina Adriano in an Order dated August 22, 1983. On November 10, 1983, Vicenta appealed said Order to the then Intermediate Appellate Court, which in turn affirmed the probate of the will. Vicenta died on July 2, 1985. [6] On August 17, 1988, and while the proceedings for settlement of estate were pending before the RTC, petitioners instituted an action for annulment of Lucio Adriano's will which was docketed as Civil Case No. 88-115. In the complaint, plaintiffs-petitioners alleged that before the marriage of Lucio and their mother, Vicenta, on November 22, 1968, the two lived together as husband and wife and as such, acquired properties which became the subject of inventory and administration in Spec. Proc. No. 4442. Plaintiffs claimed that the properties bequeathed in Lucio's will are undivided "civil partnership and/or conjugal properties of Lucio Adriano and Vicenta Villa", and thus, the will sought to be probated should be declared void and ineffective insofar as it disposes of the rightful share or properties of Vicenta.[7] It is also not disputed that the contested properties in Civil Case No. 88-115 and Spec. Proc. No. 4442 were also the subject of a complaint filed sometime in 1980 by Vicenta against Lucio, docketed with the then Court of First Instance of Quezon, Lucena City, Branch II as Civil Case No. 7534, wherein Vicenta sought the provisional partition or separation of the properties pendente lite. The case was dismissed on January 28, 1991 without prejudice, for lack of interest. Edp mis Spec. Proc. No. 4442 and Civil Case No. 88-115 were consolidated and jointly heard by the RTC. The trial court favored the evidence of private respondents, which indicated that the purchase money for the contested properties came from the earnings of Lucio in a business partnership that he entered into in 1947, or during the subsistence of his marriage to Gliceria. The trial court further found that Lucio's initial capital infusion of P15,000.00 in the business partnership was in fact obtained from the conjugal fund of his first marriage. The evidence of private respondents is thus summarized by the trial court: Defendants' evidence, on the other hand, tends to show that the original common fund of Lucio (Ambrocio) Adriano in the amount of P15,000.00 was invested by Lucio Adriano in a partnership called the "Central Rice Mill & Co." which was formed and organized on November 30, 1947. Such initial investment came from the savings of Lucio Adriano and Gliceria Dorado before World War II, which was earned by said spouses by means of ambulant peddling of betel nuts and ikmo leaves and, subsequently, by the selling of (a) variety (of) goods and rice retailing at a market stall which

they acquired at the public market of Candelaria, Quezon. On these savings, spouses Lucio Adriano and Gliceria Dorado added the proceeds of the sale of a "fairbanks" rice mill made during the Japanese occupation, sometime between the years 1943 and 1944. The same rice mill was then located at the south end of Gonzales Street near the public market of Candelaria, Quezon, and was acquired by the same spouses through their joint efforts and industry made from the time of their marriage in 1933. It is likewise shown by defendants' evidence that on January 8, 1951, the Articles of Co-Partnership of "Central Rice Mill & Co." was amended and its name was changed to "Quezon Central Rice Mill & Co." Lucio Adriano then made a new investment into the partnership out of savings from the conjugal partnership with Gliceria Dorado for the period 1947 until 1950 in the amount of P18,750.00 (Exhibit "1-A") thereby increasing his investment to P33,750.00 (par. 7(c) of Amended Articles of CoPartnership, Exhibit "1-A"). On January 22, 1952, another partnership called "The Lessee of the Quezon Central Rice Mill" as formed by Lucio (Ambrocio) Adriano and four (4) partners and he invested the amount of P25,000.00 (Exhibit "2") thereby making his total capital investment reach the amount of P58,750.00. On May 3, 1952, Lucio Adriano bought the share of Tan Kim alias "Joaquin Tan", a partner who withdrew from the partnership of the Quezon Central Rice Mill & Co. and who, in consideration of the sum of P34,342.55, executed a Deed of Sale and Mortgage (Exhibit "3") in favor of Lucio Adriano covering his proportional share in the properties of the partnership consisting of two (2) rice mills, two (2) diesel engines and a camarin, which are situated at Candelaria, Quezon. Lucio Adriano declared these properties in his name for taxation purposes under TCT Property Index No. 22-11-01-043-B (Exhibit "4") and Tax Declaration No. 564 (Exhibit "5").LEX All in all, the withdrawals made out of the savings of the conjugal partnership of Lucio Adriano and his wife, Gliceria Dorado, are the following: 1. Upon signing of the contract of sale and mortgage (Exhibit "3"), Lucio Adriano paid the sum of P10,342.45 and the balance of P24,000.00, as reflected in the statement of account of Tan Kim as receivables from Lucio Adriano (Exhibit "6") were settled on subsequent dates; 2. Original copy of a receipt dated May 3, 1953 (Exhibit "7") covering expenses of registration of Exhibit "3" in the sum of P160.00; 3. Handwritten list of registration expenses (Exhibit "8"); and

4. Originals of receipts covering amounts paid by Lucio Adriano to Tan Kim on various dates from June 3, 1953 (Exhibits "9" to "20", inclusive) in the aggregate sum of P24,492.15. It likewise appears from the evidence of the defendants that by the end of 1953, the total capital investment of Lucio Adriano taken from his conjugal partnership with his first wife, Gliceria Dorado, reached the amount of P94,744.88. In the late part of 1954, however, the same partnership was dissolved by means of a verbal agreement reached by Lucio Adriano and his partners and this resulted to an equal division of the partnership properties with the left portion thereof going to Tan Kang and Tan Giam and the right portion, to Lucio Adriano and Francisco Ramirez. Furthermore, by the end of 1955, Francisco Ramirez withdrew his share totalling P16,250.00 in favor of Lucio Adriano, who acquired the same, and from that time on, the latter became the sole owner of the rice mill which he later registered as the "Adriano Central Rice Mill". When the partnership was finally dissolved in 1955, the total capital investment of Lucio Adriano therein was P110,994.88, consisting of the fruit or income of his common fund with Gliceria Dorado, which was cumulatively used in the acquisition of other properties listed in the Inventory submitted to this Court by the administratrix and defendant, Celestina Adriano de Arcilla on February 19, 1987.[8] The decretal portion of the Order dated May 8, 1991 issued by the RTC of Lucena City reads: WHEREFORE, judgment is hereby rendered as follows: 1. In Civil Case No. 88-115, this Court finds and so holds that no cogent reasons or grounds exist to affect adversely, if not nullify, the testamentary dispositions and provisions contained in the Last Will and Testament of the late Lucio (Ambrocio) Adriano. Accordingly, the complaint filed in this case is hereby ordered dismissed with costs against plaintiffs.Jj sc In like manner, the counterclaim is hereby ordered dismissed. 2. In Spec. Proc. No. 4442, it is hereby ordered that the settlement, liquidation, and partitioning of the estate of the late Lucio (Ambrocio) Adriano, more particularly the delivery of the respective shares of his heirs, the plaintiffs and defendants, be effected and implemented in accordance with the testamentary provisions set forth in the Last Will and Testament of the testator, Lucio (Ambrocio) Adriano. SO ORDERED.[9]

The Court of Appeals dismissed petitioners' appeal for lack of merit, and affirmed in toto the Joint Order of the RTC of Lucena City. As elevated before us, the petition takes issue only in respect of the property covered by TCT No. T-56553. Petitioners insist that it was erroneous of respondent court not to have upheld the co-ownership of Vicenta to 1/2 of said property, and to have declared the entire property as belonging to the conjugal partnership of Lucio and Gliceria. The petition essentially relies on the following grounds: (1) TCT No. T-56553, issued to "Spouses, LUCIO ADRIANO and VICENTA VILLA"[10], constitutes conclusive and indefeasible evidence of Vicenta's co-ownership in the property,[11]and (2) the Deed of Sale dated March 15, 1964, as annotated in OCT No. O-9198[12], the mother title of TCT No. T-56553, designates Vicenta Villa as a co-vendee. Petitioners maintain that the Deed of Sale, being the "best evidence" of the contents thereof, proves Vicenta's coownership in the land. We see no reason to reverse respondent court. Petitioners' insistence that a coownership of properties existed between Lucio and Vicenta during their period of cohabitation before their marriage in 1968 is without lawful basis considering that Lucio's marriage with Gliceria was then subsisting. The co-ownership in Article 144 of the Civil Code [13] requires that the man and woman living together as husband and wife without the benefit of marriage must not in any way be incapacitated to marry.[14] Considering that the property was acquired in 1964, or while Lucio's marriage with Gliceria subsisted, such property is presumed to be conjugal unless it be proved that it pertains exclusively to the husband or to the wife.[15] Thus, we ruled in Pisuea vs. Heirs of Petra Unating and Aquilino Villar[16] that the prima facie presumption that properties acquired during the marriage are conjugal cannot prevail over a court's specific finding reached in adversarial proceedings to the contrary. Sc jj As found by both the trial court and respondent court in this case, not only did petitioners fail to overcome the presumption of conjugality of the disputed property, private respondents have also presented sufficient evidence to support their allegation that the property was in fact purchased by Lucio with proceeds of the conjugal fund of his first marriage. This factual finding, which is clearly borne out by the evidence on record, is binding and conclusive upon us and will not be disturbed. Although in cases of common-law relations where an impediment to marry exists, equity would dictate that property acquired by the man and woman through their joint endeavor should be allocated to each of them in proportion to their respective efforts,[17] petitioners in the instant case have not submitted any evidence that Vicenta actually contributed to the acquisition of the property in question. Sj cj We cannot agree with petitioners bare and expedient assertion that, because the title to the property was registered in the name of both Lucio and Vicenta, she should thereby be deemed owner to half of it. A certificate of title under the Torrens system is aimed to protect dominion, and should certainly not be turned into an instrument for deprivation of ownership.[18] Because a just and complete resolution of this case could only be arrived

at by determining the real ownership of the contested property, evidence apart from or contrary to the certificate of title bears considerable importance.[19] This assumes peculiar force in the instant situation where the heirs of a lawful pre-existing marriage stand to be deprived. Thus, in Belcodero vs. Court of Appeals,[20] we held that property acquired by a man while living with a common-law wife during the subsistence of his marriage is conjugal property, even when the property was titled in the name of the common-law wife. In such cases, a constructive trust is deemed to have been created by operation of Article 1456 of the Civil Code over the property which lawfully pertains to the conjugal partnership of the subsisting marriage. Article 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes. InVicentas case, it is clear that her designation as a co-owner of the property in TCT No. T-56553 is a mistake which needs to be rectified by the application of the foregoing provisions of article 1456 and the ruling in Belcodero. The principle that a trustee who takes a Torrens title in his or her name cannot repudiate the trust by relying on the registration, is a well-known exception to the principle of conclusiveness of a certificate of title.[21] On petitioners second ground, we note that the Deed of Sale dated March 15, 1964 which purportedly designates Vicenta as a co-buyer of the property was not even presented in evidence. The entry in OCT No. 0-9198 of the Deed of Sale bears no weight in proving Vicentas supposed co-ownership, applying petitioners own argument that the document itself, the Deed of Sale in the instant case, is the best evidence of its contents. The memorandum in the OCT is not admissible as evidence of the contents of said Deed of Sale, but only of the fact of its execution, its presentation for notation, and its actual notation for purposes of constructive notice to the public of the preferential rights created and affecting that property.[22] Besides, even if said Deed of Sale was submitted in evidence, it still has no bearing because it could not be said to affect or bind third parties to the sale, such as private respondents herein. WHEREFORE, the Decision in CA-G.R. CV No. 41509 is hereby AFFIRMED. Supreme SO ORDERED. Melo, (Chairman), Vitug, and Panganiban, JJ., concur. Purisima, J., no part.


Written by Associate Justice Jainal D. Rasul, and concurred in by Associate Justices Fidel P. Purisima (Chairman) and Eubulo G. Verzola.

[2] [3]

Presided by Judge Eleuterio F. Guerrero. RTC Order; Rollo, 103-104. [4] Exhibit "P"; Folder of Exhibits, 17. [5] Paragraph 2 of the Last Will and Testament of Lucio Adriano; Records of the Case, 5-6. [6] Joint Stipulation of facts and Issues; Records of the Case, 85. [7] Complaint; Records of the Case, 3. [8] RTC Order; Rollo, 104-106. [9] RTC Order; Rollo, 112. [10] Exhibit "P", op. cit., note 4. [11] Citing Sinoan vs. Sorongan, 136 SCRA 407; Centeno vs. Court of Appeals, 139 SCRA 545; Umbay vs. Alecha, 135 SCRA 427. [12] Exhibit "FF"; Folder of exhibits, 66-67.

Article 144 of the Civil Code provides:

"When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules of co-ownership." [14] Belcodero vs. Court of Appeals, 227 SCRA 303; Juaniza vs. Jose, 89 SCRA 306; Camporedondo vs. Aznar, 102 Phil. 1055; Osmea vs. Rodriguez, 54 O.G. 5526; Malijacan vs. Rubi, 42 O.G. 5576. [15] Civil Code, Art. 160. [16] G.R. No. 132803 dated August 31, 1999, see p. 14.

The Family Code, which took effect on August 3, 1988, now clearly provides in cases of cohabitation where the common-law spouses suffer from legal impediment to marry: Art. 148. xxx (O)nly the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. xxx If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article (i.e., in favor of their common children). Xxx [18] Padilla vs. Padilla, 74 Phil. 377. [19] See Padilla vs. Padilla, supra, where the Court held that property recorded in the name of both husband and wife may be shown to be exclusive property of either spouse. [20] Supra, note 16. [21] Padilla vs. Padilla, supra; Severino vs. Severino, 44 Phil. 343. [22] Philippine National Bank vs. Tan Ong Zse, 51 Phil. 317.

epublic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 109068 January 10, 1994 GAUDENCIO GUERRERO, petitioner, vs.

REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE LUIS B. BELLO, JR., PRESIDING, and PEDRO G. HERNANDO, respondents. Juan Jacito for petitioner. Alipio V. Flores for private respondent.

BELLOSILLO, J.: Filed by petitioner as an accion publicana 1 against private respondent, this case assumed another dimension when it was dismissed by respondent Judge on the ground that the parties being brotherin-law the complaint should have alleged that earnest efforts were first exerted towards a compromise. Admittedly, the complaint does not allege that the parties exerted earnest towards a compromise and that the same failed. However, private respondent Pedro G. Hernando apparently overlooked this alleged defect since he did not file any motion to dismiss nor attack the complaint on this ground in his answer. It was only on 7 December 1992, at the pre-trial conference, that the relationship of petitioner Gaudencio Guerrero and respondent Hernando was noted by respondent Judge Luis B. Bello, Jr., they being married to half-sisters hence are brothers-in-law, and on the basis thereof respondent Judge gave petitioner five (5) days "to file his motion and amended complaint" to allege that the parties were very close relatives, their respective wives being sisters, and that the complaint to be maintained should allege that earnest efforts towards a compromise were exerted but failed. Apparently, respondent Judge considered this deficiency a jurisdictional defect. On 11 December 1992, Guerrero moved to reconsider the 7 December 1992 Order claiming that since brothers by affinity are not members of the same family, he was not required to exert efforts towards a compromise. Guerrero likewise argued that Hernando was precluded from raising this issue since he did not file a motion to dismiss nor assert the same as an affirmative defense in his answer. On 22 December 1992, respondent Judge denied the motion for reconsideration holding that "[f]ailure to allege that earnest efforts towards a compromise is jurisdictional such that for failure to allege same the court would be deprived of its jurisdiction to take cognizance of the case." He warned that unless the complaint was amended within five (5) days the case would be dismissed. On 29 January 1993, the 5-day period having expired without Guerrero amending his complaint, respondent Judge dismissed the case, declaring the dismissal however to be without prejudice. Guerrero appeals by way of this petition for review the dismissal by the court a quo. He raises these legal issues: (a) whether brothers by affinity are considered members of the same family contemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as under Sec. 1, par. (j), Rule 16, of the Rules of Court requiring earnest efforts towards a compromise before a suit between them may be instituted and maintained; and, (b) whether the absence of an allegation in the complaint that earnest efforts towards a compromise were exerted, which efforts failed, is a ground for dismissal for lack of jurisdiction.

The Constitution protects the sanctity of the family and endeavors to strengthen it as a basic autonomous social institution. 2 This is also embodied in Art. 149, 3 and given flesh in Art. 151, of the Family Code, which provides: Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same had failed. If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. Considering that Art. 151 herein-quoted starts with the negative word "No", the requirement is mandatory 4 that the complaint or petition, which must be verified, should allege that earnest efforts towards a compromise have been made but that the same failed, so that "[i]f it is shown that no such efforts were in fact made, the case must be dismissed." Further, Art. 151 is contemplated by Sec. 1, par. (j), Rule 16, of the Rules of Court which provides as a ground for motion to dismiss "(t)hat the suit is between members of the same family and no earnest efforts towards a compromise have been made." The Code Commission, which drafted the precursor provision in the Civil Code, explains the reason for the requirement that earnest efforts at compromise be first exerted before a complaint is given due course
This rule is introduced because it is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the same family. It is necessary that every effort should be made toward a compromise before a litigation is allowed to breed hate and passion in the family. It is known that a lawsuit between close relatives generates deeper bitterness than between strangers . . . A litigation in a family is to be lamented far more than a lawsuit between strangers . . . 5

But the instant case presents no occasion for the application of the above-quoted provisions. As early as two decades ago, we already ruled in Gayon v. Gayon 6 that the enumeration of "brothers and sisters" as members of the same family does not comprehend "sisters-in-law". In that case, then Chief Justice Concepcion emphasized that "sisters-in-law" (hence, also "brothers-in-law") are not listed under Art. 217 of the New Civil Code as members of the same family. Since Art. 150 of the Family Code repeats essentially the same enumeration of "members of the family", we find no reason to alter existing jurisprudence on the matter. Consequently, the court a quo erred in ruling that petitioner Guerrero, being a brother-in-law of private respondent Hernando, was required to exert earnest efforts towards a compromise before filing the present suit. In his Comment, Hernando argues that ". . . although both wives of the parties were not impleaded, it remains a truism that being spouses of the contending parties, and the litigation involves ownership of real property, the spouses' interest and participation in the land in question cannot be denied, making the suit still a suit between half-sisters . . ." 7 Finding this argument preposterous, Guerrero counters in his Reply that his "wife has no actual interest and participation in the land subject of the . . . suit, which the petitioner bought, according to his complaint, before he married his wife." 8 This factual controversy however may be best left to the court a quo to resolve when it resumes hearing the case.

As regards the second issue, we need only reiterate our ruling in O'Laco v. Co Cho Chit, 9 citing Mendoza v. Court of Appeals, 10 that the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family, the absence of such allegation in the complaint being assailable at any stage of the proceeding, even on appeal, for lack of cause of action. It is not therefore correct, as petitioner contends, that private respondent may be deemed to have waived the aforesaid defect in failing to move or dismiss or raise the same in the Answer. On the other hand, we cannot sustain the proposition of private respondent that the case was, after all, also dismissed pursuant to Sec. 3, Rule 17, of the Rules of Court 11 for failure of petitioner to comply with the court's order to amend his complaint. A review of the assailed orders does not show any directive which Guerrero supposedly defied. The Order of 7 December 1992 merely gave Guerrero five (5) days to file his motion and amended complaint with a reminder that the complaint failed to allege that earnest efforts were exerted towards a compromise. The Order of 22 December 1992, which denied Guerrero's motion for reconsideration, simply stated that "Plaintiff if it (sic) so desire must amend the complaint otherwise, the court will have to dismiss the case (emphasis supplied) . . ." The Order of 29 January 1993 dismissing the case without prejudice only made reference to an earlier order "admonishing" counsel for Guerrero to amend the complaint, and an "admonition" is not synonymous with "order". Moreover, since the assailed orders do not find support in our jurisprudence but, on the other hand, are based on an erroneous interpretation and application of the law, petitioner could not be bound to comply with them. 12 WHEREFORE, the petition is GRANTED and the appealed Orders of 7 December 1992, 22 December 1992 and 29 January 1993 are SET ASIDE. The Regional Trial Court of Laoag City, Branch 16, or whichever branch of the court the case may now be assigned, is directed to continue with Civil Case No. 10084-16 with deliberate dispatch. SO ORDERED. Cruz, Davide, Jr. and Quiason, JJ., concur.


1 Docketed as Civil Case No. 10084-16 of the Regional Trial Court, Br. XVI, Laoag City, the complaint seeking to recover from private respondent Lot. No. 15731 of the Sarrat Cadastre, Ilocos Norte, with damages. 2 First sentence of Sec. 12, Art. II, Constitution. 3 The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice and agreement destructive of the family shall be recognized or given effect. 4 Fule v. Court of Appeals, G.R. No. 79094, 22 June 1988, where it was held: By its very language, the Rule is mandatory. Under the rule of statutory construction,

negative words and phrases are to be regarded as mandatory while those in the affirmative are merely directory (McGee v. Republic, 94 Phil. 820 [1954]). The use of the term "shall" further emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced (Bersabal v. Salvador, No. L-35910, 21 July 1978, 84 SCRA 176). 5 Report of the Code Commission, cited in Vicente J. Francisco, The Revised Rules of Court in the Philippines (1973), Vol. I, p. 959. 6 No. L-28394, 26 November 1970, 36 SCRA 104, 108. 7 Comment, p. 2; Rollo, p. 50. 8 Reply, pp. 3-4, Rollo, pp. 58-59. Guerrero apparently refers to the Complaint, p. 1, par. 4, Rollo, p. 20. In this connection, he implies that he married his wife during the effectivity of the New Civil Code hence the presumption under Art. 119 thereof that their property relation is one of conjugal partnership of gains. Art. 148 of the same Code provides that property brought to the marriage as his or her own shall be his or her own exclusive property. 9 G.R. No. 58010, 31 March 1993. 10 No. L-23102, 24 April 1967, 19 SCRA 756, 759. In that case, this Court through Justice J.B.L. Reyes held: . . . Since the law forbids a suit being initiated (filed) or maintained unless such efforts at compromise appear, the showing that efforts in question were made is a condition precedent to the existence of the cause of action. It follows that the failure of the complaint to plead that plaintiff previously tried in earnest to reach a settlement out of court renders it assailable for lack of cause of action and it may be so attacked at any stage of the case even on appeal. 11 If plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court's own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by the court. 12 Gojo v. Goyala, G.R. No. L-26768, 30 October 1970.