camal kne Uo Sendal inlets Vmeatence in medicd! juris Le mmavinity an tle patl Of The aie organ epee % wmeyerfam its Ocr, 11, 1941 rope fon — otbictat, GAZETTE fieicer 7 an pesca = to otf te . is aqrie : easto te testinal Dionisio Comendador, we notg'that top! debt whieh, + according to him, + Appellant owed hing was sient not evidenced by ani receipt Aud it does not seem rea- Levant abe 2G that appeliaitt should-give him one peso (presume ce ity, ably as a present) ifhe were not the owner of the winning im cepa ticket. : iement As already stated, possession of a swveepstake ticket ie ineither nrinet facie evidence of its. ownership. » To counteract that x evidence, “the courts would dow able i not gonelusivg proo! thal the holder of the ticket te in fact noteits owner ‘so as to guard against the many filse claims that will likely be asserted where there we tes templiltoMol easy shin. A Ipss rigoronts judicial eriterion would, mike the phblie hesitate before buying any of such tickets for fed that, after the ticket had won, its Smnerthip might be disputed in,court on perjured testi. mony induced by a promise or expectation of a fat reward, Applying the correct criteviog to the present ease, we do hot think the appellde, with his doubtful evidence, f clusively’ established) his claim to the ticket in question in the tave of the fact that said ticket has always been in the bossession of appell{nt, whose word is eortoborhted by the very agent who solfl the ticket to him, In glow of the foregoing, the judgment below is reversed aindl the defendants hbsolved from the complaint, with cost’ against the appelleb, . Rengzon, Padilla ama Tnason, Jd. concur. Tlamenit rovers. ell Lojrequive unquestion- con. (Fo. 4264. May a1, 1940] . , t and appelle.t 4 FELIX B. Sarao, plpintift fa appellee, rs. PILAR GUEVARA, a Fenda 5 ANNUTMENT; GRocND OF ANNULMENT OF MARRIAGE; sIvcarakery.—Under our marriage law marriage may (G. BR. No, 47608, August’, WP. Law Library264 SUPPLEMENT | Vou. 40, No. 15 be annulled if “either party wisy a jeally incapable of entering into the maftied state, aad meh pagbacity continues, and appears to be if[eurable.” (See. 30cf, Act No. 3613.) 2. MAaRRIAGH-LAw; the tihe of marriage, phys: \ TERPRETATION; ANNULMEN} OF MARRIAGE; PHyst- Cat INcaPAcrey to ENTER INTO MARRIED Stare: TuvoreNcY, ‘Leer oF} Copupari ally in. capable HF entering into the marfied statd" eahnot be construed {0 mican Fehpacily to proereate. | Our ifirriage law being of seuricansgrigin, ils provisions should be dhterpreted in the light Set mete wi Necisions. TH the. United Stafes it is generally held that the teBt‘of impoteny: is not the a lo procreate, but the NOT PROCREATION. Ce “phy ability to ojiulate. Aw stated hy a ysellfinown wuthecion eee defect must ‘be one of copulation,. not of rodiiction,. Barren ness wil mot invalidate. the miarringe,||/® * > CKcene on Marviagdbfiid Divoree, nee. 108)" Sees the’ sane authority, @4 temporat il iycapacity for cogpilation is not-n ground” The defeet nif be: permanent and F Geeasion for'a deejec of mullity. E lasting.” #1 of Laguna: Labrador, J. | :.7 ‘The facts are stated in. the opinign ofthe court. ° | Rajacl T. Tirona, tor appellant. | i i APPEAL froni a judgtheni of the four of Fitst Instance Sulpicio Guevara for appellee, Revs (A.), J.: | This is an @ppell from a AES} of] the COHREOMRSt| Instance of Laguna, dismissing complaint forfane| nulment of marriage’on the gro und of Plaintiff and defendant were ied)in. Manila on at (201936. In the auitemoori of that samd day iplaintiff tried to have carnalgknowledze of defenddnt, but the latter | showedgreluctance and Ig. When mightieanie plaintitl avain approached the defendant, | i but shou i | i Jargesforshis*orwari, shercompiainedof pains in her. private| pat? and he noticed oozing theréfrom somespuralentamat-| tef) offensive to the smell. , Because of; thi: coitus was! noteumsteéess, and after that first night oer) attempt on 1 Plaintifl’s part to have a carnal act with his wife proved a we Low LaveryAch NO- 2619 + gee 3000) Ucr. 11,1991 UFHICIAL Gaatiis, (es failure, because shewOMpMihed BE pais, inher genital or gans and he didmotawantitomake hen stalier: Upon the a , detendant submitted to an operation on §, sind as the medical Sect RTE NE HTS thost organs ‘were, with the consent ain ‘gieally ae@mUved. ‘The removal of said or- S Fendered défendhnt dsieapablesoteprocreation, but did ‘not, in the opiniost fn surgeon, ineapacitatesher= foro! Plaintiff, however, declares that from the time ‘he witnessed the operation he lost all desire to have access with his wife dnd had not thied to do it since then. Under ‘our marriage law) marriage may_be_annulled Yeither party was. at the time of marriage.|physicallv\ine pable of entering info the mafried state, and such Ineppa continues, arid appears to be iucurable,” (See, 30/{f], . Act No. 3613.) ; | BlaintiMappetlant wants tagconstrue the phrase “physie- ally incapable’ of entgriny inté the married state” ay mean- ing incapacity to proeremt¢. We cannot subseribe to th view. Our marriage law bging of American origin, _ visions should be interpretld in the hightof Ameritay de- cisions. In the Tinted Stiyles it is generally held that the test of impoteney is! not y to proereate, but the ability to copulate: ‘A8 stilted by a well-known authority,” he defect niust he one offcopulation,/not of reproduction. arrenness will not _infvplidate_the marriage, |* ™. * Keozor on Marriage and Divorce, see. 168). Says’ ‘the kame authority, “A fempobary oroceusional incapacity for copulation is not a.gkoundiffor a decree of nullity: “The de- ‘foct must be permarent alld lasting.” i ‘Applying the above rulgs to our case, it should be noted’ in the first place tht defondant was not impotent at the time. she married plpintify, for, according to the opinion of the'doctor who operpted Her, the existence of a ibrous tu- wiior in the 6varies did nof necessarily render her incapable of or even of frocreation. The removal of the deceased parts, it is true, tendered her’sterile, but it by no “918 LS. Law LibrarySUPPLEMENT Vou. 40, No. 15, means mage her ‘unfit for sexual intercourse. If plaintiff was notiable to'consummate a carnal act with his wife the first time he had access with her, it was due to his own.vo- Tuntary, desistarice, and it would also ayipear that it we memory’ of this, first unpleasant experience with her that thade him give up the idea of again having carnal knowledge of her eyen'afier she had already been rid of her disease. Appellant-in his brief also contends that his conseyt to the marriage ¥yas procured through fraud in that defentiant did not. revéal to him that she was afflicted syith a’ disease ~ in-her ‘sex orgiins. Bilt this contention is! towable since fraud is notalleged in the complaint and has not been proved at thkjtrial, re ! We find iid weason for disturbing the decision appealed from, and we, ‘therefore, confirm’ it, with costs against th appellant. #5" Benyzon, Padilla, Lopes Vito, and Tupsow, Jd Judgment affirmed. is the 3 congas’) {No. 8685. June 6, 1940] Me Hee Mauricio Ponce er AL., plaintiff's and appellants, es.-E MINA ANTONIO ET AL., defendants and appellants. L.Momesrean; Pxommirion; Sats; Docuamst ConvernsG 4. Tose svgap EXECUTED WiTitIN Five YEARS, nur BEARING a SIMULATED Dare SuRsEQUENT TO THE-EXemarion oF Sam Pgwon; Vara wr¥.—Faced ‘with the obstacle that a homgstead cannot be sold) until after five years from the issuance of the patent without Violating an express provision to that effect in the Publie Lapd Act, a homesteader and ansalleged purchaser, with the aid af-a lawyer, sought a way out and hit upon the scheme of. having? one document executed covering the conveyance of the products! of the homestead during the period of restriction and another document conveying the homestead itself but bearing date sub expiration of said period. Are the tivo. docu-| ce valid and enforecable? Held: The sale of docs not come within the restriction and is tive. But rio argument is required to! ER-| I 1