SECOND DIVISION

[ G.R. No. 200969, August 03, 2015 ]

CONSOLACION D. ROMERO AND ROSARIO S.D. DOMINGO,
PETITIONERS, VS. ENGRACIA D. SINGSON, RESPONDENT.

DECISION

DEL CASTILLO, J.:

This Petition for Review on Certiorari[1] seeks to set aside the February 29, 2012
Decision[2] of the Court of Appeals (CA) in CA-G.R. SP No. 114363 which granted
herein respondent's Petition for Review, reversed the December 11, 2009 Order [3] of
the Regional Trial Court of Pasig City, Branch 160 (RTC) in SCA No. 3144, and
reinstated the said RTC's April 29, 2009 Decision. [4]

Factual Antecedents

The parties herein - petitioners Consolacion Domingo Romero and Rosario S.D.
Domingo and respondent Engracia Domingo Singson - are siblings. Their parents,
Macario and Felicidad Domingo, own a 223-square meter piece of property (the
subject property) located at 127 F. Sevilla Street, San Juan City, Metro Manila
covered by Transfer Certificate of Title No. (32600) (23937) 845-R [5] (TCT 845-R)
which was issued in 1953. It appears that petitioners and other siblings, Rafael and
Ramon Domingo, are the actual occupants of the subject property, having stayed
there with their parents since birth. On the other hand, respondent took up
residence in Mandaluyong City after getting married.

On February 22, 1981, Macario passed away, while Felicidad died on September 14,
1997.[6]

On June 7, 2006, TCT 845-R was cancelled and a new certificate of title -Transfer
Certificate of Title No. 12575-R[7] or 12575[8] (TCT 12575) - was issued in
respondent's name, by virtue of a notarized "Absolute Deed of Sale"[9] ostensibly
executed on June 6, 2006 by and between Macario and Felicidad - as sellers, and
respondent - as buyer. And this despite the fact that Macario and Felicidad were
then already deceased.

Soon thereafter, respondent sent letters to her siblings demanding that they vacate
the subject property, under pain of litigation.

Petitioners and their other siblings just as soon filed a Complaint [10] against
respondent and the Register of Deeds of San Juan City for annulment and
cancellation of TCT 12575 and the June 6, 2006 deed of sale, reconveyance, and
damages, on the claim that the deed of sale is a forgery and that as heirs of
Macario and Felicidad, the true owners of the subject property, they were entitled
to a reconveyance of the same. The case was docketed as Civil Case No. 70898-SJ
and assigned to Branch 160 of the RTC of Pasig City.

Ruling of the Metropolitan Trial Court (MeTC)

On September 26, 2006, respondent filed an unlawful detainer suit against

petitioners and her brothers Rafael and Ramon before the MeTC of San Juan City.
Docketed as Civil Case No. 9534 and assigned to MeTC Branch 58, respondent in
her Complaint[11] sought to evict her siblings from the subject property on the claim
that she is the owner of the same; that her siblings' stay therein was merely
tolerated; and that she now needed the premises to serve as her daughters'
residence. Thus, she prayed that her siblings be ordered to vacate the premises and
pay monthly rent of P2,000.00 from date of demand until they vacate the premises,
as well as attorney's fees and costs of suit.

In their Answer,[12] petitioners prayed for dismissal, claiming that the June 6, 2006
deed of sale was a forgery, and no certificate of title in her name could be issued;
that they thus remained co-owners of the subject property, and respondent had no
right to evict them; and that the pendency of Civil Case No. 70898-SJ bars the
ejectment suit against them.

After proceedings or on September 17, 2007, the MeTC rendered a Decision,

[13]
 decreeing as follows:
Anent the first issue of jurisdiction, the Court answers in the affirmative xxx.

xxxx

From the above-quoted verse, the Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts have the exclusive original jurisdiction over this
case. Moreover, in the case of Hilario vs. Court of Appeals, (260 SCRA 420,426
citing: Refugia, Et al[.] vs. Court of Appeals, Et al[.,] G.R. No. 118284, July 4,
1996) the Supreme Court held: 'xxx inferior courts retain jurisdiction over
ejectment cases even if the question of possession cannot be resolved without
passing upon the issue of ownership; but this is subject to the caveat that the issue
raised as to ownership be resolved by the Trial Court for the sole purpose of
determining the issue of possession x x x.' Thus, even where the defendants assert
in their Answer, ownership of or Title to the property, the inferior Court is not
deprived of its jurisdiction, xxx

xxxx

As to the second issue as to whether or not plaintiff may validly eject the
defendants, again this Court answers in the affirmative, since the plaintiff is a
holder of a Torrens Title which is a right in rem. The defendants in their defense
that they have filed a case before the Regional Trial Court questioning the Title of
the plaintiff is their right and prerogative, unless however restrained by higher
court, this Court will proceed as mandated by law and jurisprudence. This action for
unlawful detainer is sanctioned by Rule 70 of the 1997 Rules of Civil Procedure
which provides:

xxxx

While the defendants claim that their parents are still the owner[s] of the subject
property in litigation and during their lifetime have not awarded nor alienated said
property to anybody, why then has plaintiff the Title of said property? If it was
secured fraudulently, the same is of no moment since it has its own forum to
address to [sic]. Moreover, the pendency of an action questioning the ownership of
the property does not bar the filing or consideration of an ejectment suit nor the
execution of the judgment therein xxx. As correctly pointed out by the plaintiff,
'ownership may be exercised over things or rights,' Art. 427 of the New Civil Code.
Likewise, Art. 428 of the same code provides that: 'the owner has the right to enjoy
and dispose of a thing, without other limitations than those established by law. The
owner has also a right of action against the holder and possessor of the thing in
order to recover it.' Further, Art. 434 states that 'in an action to recover, the
property must be identified, and the plaintiff must rely on the strength of his Title
and not on the weakness of the defendant's claim.' The defendants therefore can be
validly ejected from the premises in question since this is not accion publiciana as
claimed by the defendants.

Finally, on the third issue of damages and the side issue of reasonable
compensation for the use of the subject premises, the Supreme Court in the case of
Balanon-Anicete vs. Balano, 402 SCRA 514 held: 'xxx persons who occupy the land
of another at the latter's tolerance or permission without any contract between
them [are] necessarily bound by an implied promise that they will vacate the same
upon demand, failing in which a summary action for ejectment is the proper
remedy against them.' Hence, upon demand, plaintiff is entitled to collect
reasonable compensation for the actual occupation of the subject property which is
P2,000.00 per month and the payment of attorney's fees. Since no evidence was
presented relative to damages, the Court cannot award the same.

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. Ordering the defendants and all persons claiming rights under them to vacate
the subject property known as No. 127 F. Sevilla St., San Juan, Metro Manila and to
surrender peaceful possession thereof to the plaintiff in this case;

2. Ordering the defendants to pay plaintiff the amount of P2,000.00 per month for
the actual use and occupation of the subject property reckoned from date of
extrajudicial demand which is August 7, 2006, until defendants shall have finally
vacated the premises;

3. Ordering the defendants to pay plaintiff the amount of P10,000.00 as and by way
of attorney's fees; and
4. The costs of suit.

SO ORDERED.[14]
Ruling of the Regional Trial Court

In an appeal before the RTC docketed as SCA Case No. 3144, petitioners and their
co-defendants argued that the MeTC erred in not resolving the issue of ownership,
in ordering them to vacate the premises, in deciding issues which were not framed
by the parties, and in not granting them damages and awarding the same instead
to respondent.

On April, 29, 2009, the RTC rendered its Decision, [15] pronouncing as follows:
Stripped of its non-essentials, the appeal primarily hinges on the lower court's
failure to rule upon the issue on the validity of Transfer Certificate of Title No.
12575 of the lot, subject of the ejectment suit.

Upon a judicious consideration of the arguments raised by the parties in their

respective memorandum vis-a-vis the decision of the court a quo, this court opines
and so holds that the said court did not err in its findings. The validity of a transfer
certificate of title cannot be raised in the said ejectment suit as it partakes of a
collateral attack against the said title. This is not allowed under the principle of
indefeasibility of a Torrens title. The issue on the validity of title i.e., whether or not
it was fraudulently issued, can only be raised in an action expressly instituted for
that purpose.

The ruling of the Supreme Court in the case of Raymundo and Perla De Guzman vs.
Praxides J. Agbagala, G.R. No. 163566, February 19, 2008 is revelatory, thus:
'Indeed, a decree of registration or patent and the certificate of title issued
pursuant thereto may be attacked on the ground of falsification or fraud within one
year from the date of their issuance. Such an attack must be direct and not by a
collateral proceeding. The rationale is this:

xxx [The] public should be able to rely on the registered title. The Torrens System
was adopted in this country because it was believed to be the most effective
measure to guarantee the integrity of land titles and to protect their indefeasibility
once the claim of ownership is established and recognized.'
For reasons aforestated, the appeal is hereby DENIED.

WHEREFORE, premises considered, judgment is hereby rendered affirming in toto in

[sic] the decision of the lower court dated September 17, 2007.

With costs against the appellant.

SO ORDERED.[16]
On motion for reconsideration, however, the RTC reversed itself. Thus, in a
December 11, 2009 Order,[17] it held that -
2. This Court's Findings
At the outset, it should be mentioned that the court a quo should have dismissed
the complaint outright for failure to comply with a condition precedent under
Section 10, Rule 16 of the Rules of Civil Procedure, the parties being siblings and
there being no allegations in the complaint as regards efforts at compromise having
been exerted, a matter that was raised in the answer of defendants Consolation
Romero and Rosario D. Domingo.

2.1. The Issue of MeTC Jurisdiction

The court a quo is correct in ruling that it has jurisdiction over this case, the
allegations in the complaint being so phrased as to present one apparently for
unlawful detainer. It did not matter that after answers were filed and further
proceedings were had, what emerged were issues of ownership and possession
being intricately interwoven, the court being clothed with jurisdiction to
provisionally adjudicate the issue of ownership, it being necessary in resolving the
question of possession.

2.2. The Issue of Whether or Not Plaintiff Can Eject Defendants

In Barnachea vs. Court of Appeals, et al., it was held that one of the features of an
unlawful detainer case is possession of property by defendant being at the start
legal, becoming illegal by reason of the termination of right to possess based on his
contract or other arrangement with plaintiff.

hi this case, the legal possession of subject premises by defendants-appellants,

they being the heirs of original owners Macario and Felicidad Domingo, has not
ceased. The basis for the claimed ownership by plaintiff-appellee is a deed of
absolute sale dated 06 June 2006 (Exhibit "2") showing the signatures of vendor
Sps. Domingo whose respective death certificates indicate that Macario died on 22
February 1981 and Felicidad on 14 September 1997. It is clear that the deed of sale
became the basis for the transfer of subject property in plaintiff-appellee's name
under TCT No. 12575 (Exhibit "A"), a fact that prompted herein defendants-
appellants to file a complaint for annulment of sale and reconveyance of ownership,
docketed as Civil Case No. 70898-SJ earlier than this subject case.

It appearing that defendants-appellants' occupancy of subject property is premised

on their right thereto as co-owners, being compulsory heirs of their parents, and it
not being established that they had alienated such right in favor of their sister,
herein plaintiff-appellee, the latter cannot eject them therefrom.

2.3. The Issue of Whether or Not Defendants are Entitled to Damages

While defendants Rafael and Ramon Domingo allege and pray for actual and moral
damages and attorney's fees in their answer and all [the] defendants do so in their
position paper, the court can award only the last, it being established that they
were compelled to litigate to protect their right, and such award being just and
equitable. As for actual and moral damages, there is no sufficient basis for a grant
thereof. It is noted that not a single affidavit of any of the four defendants is
attached to their position paper, as required under Section 10, Rule 70, Rules of
Civil Procedure, and Section 9, Revised Rule on Summary Procedure.

WHEREFORE, the foregoing considered, the court hereby grants the motion for
reconsideration of its decision on appeal affirming in toto the decision of the
Metropolitan Trial Court, Branch 58, San Juan City. Consequently, it hereby
reverses said decision by decreeing that plaintiff-appellee has no cause of action
against herein defendants-appellants who are entitled to possession of the subject
premises, rendering the complaint dismissible and hereby dismisses it. Corrolarily,
plaintiff-appellee's motion for execution is hereby denied. Plaintiff-appellee is
hereby ordered to pay defendants-appellants P8,000.00 each in attorney's fees.
Costs against plaintiff-appellee.

SO ORDERED.[18]
Respondent filed a Motion for Reconsideration,[19] which the RTC denied in a
subsequent Order[20] dated May 17, 2010. The trial court held:
In essence, plaintiff argues that possession and not ownership should have been
the central issue in this appealed ejectment suit. As the subject property is titled in
plaintiffs name, necessarily, she has better right of possession than defendants.

The court is not persuaded. Germane is Section 16, Rule 70 of the 1997 Rules of
Civil Procedure, to wit:
Section 16. Resolving defense of ownership. - When the defendant raises the
defense of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession.
Having determined the ownership issue in resolving defendants' right of possession
pursuant to the aforestated rule, the court hereby finds no cogent reason or
sufficient justification to reconsider its previous ruling dated 11 December 2009.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.[21]
Ruling of the Court of Appeals

Respondent filed a Petition for Review[22] with the CA, docketed as CA-G.R. SP No.
114363. On February 29, 2012, the CA rendered judgment, as follows:
Petitioner seeks to reverse and set aside the assailed Orders since the RTC
allegedly erred:
'I.

IN RULING THAT THE RESPONDENTS CANNOT BE EJECTED FROM THE SUBJECT

PREMISES, THEIR OCCUPANCY BEING PREMISED ON THEIR RIGHT AS CO-
OWNERS, BEING COMPULSORY HEIRS OF THEIR [PETITIONER] PARENTS AND IT
NOT BEING ESTABLISHED THAT THEY HAD ALIENATED SUCH RIGHT IN FAVOR OF
THE PETITIONER.

II.
IN RULING THAT THE RESPONDENTS ARE ENTITLED TO THE AWARD OF
ATTORNEY'S FEES.'
This Court's Ruling

Contending that the RTC erred when it held that respondents cannot be ejected
from the subject lot because they are co-owners thereof and heirs of their deceased
parents, petitioner points out that the only issue that should be tackled in an
unlawfol detainer case is the right of a plaintiff to possession de facto over the
property in question.

For their part, respondents argue that they have legal and actual possession of the
subject lot as they are the heirs of their deceased parents who are the registered
owners of said subject lot. On the other hand, the title to the subject lot that was
registered under petitioner's name is null and void for it was issued based on a
forged deed of absolute sale.

The petition has merit.

In an unlawful detainer case, the defendant's possession of a property becomes

illegal when he is demanded by the plaintiff to vacate therefrom due to the
expiration or termination of his right to possess the same under the contract but
the defendant refuses to heed such demand. Thus, the sole issue to be resolved is
who between the parties have [sic] a right to the physical or material possession of
the property involved, independently of any claim of ownership by any of the
parties.

However, where the issue of ownership is raised by any of the parties, the rule in
Sec. 16, Rule 70 of the Revised Rules of Court is explicit:
Section 16. Resolving defense of ownership. - When the defendant raises the
defense of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession.
In other words, while only possession de facto is the issue to be determined in an
ejectment case, the issue of ownership may be tackled if raised by any of the
parties and only for the purpose of reaching a conclusion on the issue of
possession. Thus, in Esmaquel vs. Coprada, the Supreme Court had the occasion to
once again hold that:
'The sole issue for resolution in an unlawful detainer case is physical or material
possession of the property involved, independent of any claim of ownership by any
of the parties. Where the issue of ownership is raised by any of the parties, the
courts may pass upon the same in order to determine who has the right to possess
the property. The adjudication is, however, merely provisional and would not bar or
prejudice an action between the same parties involving title to the property. Since
the issue of ownership was raised in the unlawful detainer case, its resolution boils
down to which of the parties' respective evidence deserves more weight.'
In the case at bar, both petitioner and respondents are claiming ownership over the
subject lot. On the part of petitioner, she maintains that she has a right to
possession because she is the registered owner thereof, as evidenced by TCT No.
12575-R which was issued in her name in 2006. On the other hand, respondents
maintain that they cannot be ejected from the subject lot because they are the
compulsory heirs of their deceased parents under whose names the subject lot was
registered, as shown in TCT No. 845-R.

As between the two parties, this Court rules in favor of petitioner for she holds a
more recently-issued certificate of title, i.e., 2006, than that of their deceased
parents whose certificate of title was issued in 1953. The issuance of the certificate
of title in 2006 may be traced from TCT No. 845-R wherein at the last page of its
Memorandum of [E]ncumbrances is an entry which explicitly states that the title
was transferred to the name of petitioner on June 6, 2006 for a consideration of
Php1,000.000.00. Clearly, the certificate of title of the deceased parents was
effectively cancelled in favor of petitioner. Hence, petitioner has a better right to
the possession de facto of the subject lot for, as held in Asuncion Urieta Vda. de
Aguilar vs. Alfaro, 'the titleholder is entitled to all the attributes of ownership of the
property, including possession.'

Respondents' insistence that the Torrens Certificate of petitioner should not be

given any probative weight because it is null and void is of no moment. The validity
of a certificate of title cannot be collaterally attacked. Rather, the attack should be
made in an action instituted mainly for that purpose, x x x

xxxx

In short, a Torrens Certificate is evidence of the indefeasibility of the title to the

property and the person whose name appears therein is entitled to the possession
of the property unless and until his title is nullified. The reason being that the
Torrens System was adopted as it is the most effective measure that will guarantee
the integrity of land titles and protect their indefeasibility once the claim of
ownership is established and recognized. Hence, the age-old rule that 'the person
who has a Torrens Title over a land is entitled to possession thereof.'

Unless there is already a judgment declaring petitioner's certificate of title as null

and void, the presumption of its validity must prevail, x x x

xxxx

All said, petitioner's right to possession over the subject lot must be respected in
view of the certificate of title thereto issued in her name.

WHEREFORE, the petition is GRANTED. The assailed Orders of the Regional Trial

Court, Pasig City, Branch 160 are REVERSED and SET ASIDE. Its Decision dated
April 29, 2009 affirming the Decision dated September 17, 2007 of the Metropolitan
Trial Court, San Juan City, Branch 58 is REINSTATED.

SO ORDERED.[23]
Hence, the instant Petition.

In a July 10, 2013 Resolution,[24] this Court resolved to give due course to the
Petition.

Issues

Petitioners raise the following issues for resolution:

A

THE COURT OF APPEALS (TWELFTH DIVISION) OBVIOUSLY ERRED IN FAILING TO

DISMISS THE COMPLAINT (ANNEX H) BECAUSE IT DID NOT COMPLY WITH THE
JURISDICTIONAL ELEMENT REQUIRED BY LAW (SEC. 3, RULE 8, REVISED RULE OF
COURT).

THE DECISION GRAVELY ERRED IN NOT HAVING RULED THAT RESPONDENT'S

CAUSE OF ACTION IN HER EJECTMENT COMPLAINT (ANNEX H) IS INDISPENSABLY
INTERTWINED WITH THE ISSUE OF OWNERSHIP RAISED BY PETITIONERS'
DEFENSE, THUS RENDERING SAID COMPLAINT NOT AN UNLAWFUL DETAINER
CASE OVER WHICH THE MeTC HAS JURISDICTION, AS DECIDED IN THE ORDER
DATED DECEMBER 9, 2009 (ANNEX X).

THE DECISION IS SERIOUSLY MISTAKEN IN NOT HAVING UPHELD THE AWARD OF

DAMAGES BY JUDGE MYRNA Y. LM-VERANO IN FAVOR OF DEFENDANTS AND
AGAINST RESPONDENT WHO OBVIOUSLY OBAINED HER TITLE (ANNEX F) USING
AN UNDISPUTABLY FRAUDULENT DEED OF ABSOLUTE SALE (ANNEX G).

THE DECISION INCORRECTLY RULED THAT PETITIONERS IN RAISING OWNERSHIP

AS THEIR DEFENSE (SEC. 16 IN RELATION TO SEC. 18, RULE 70, REVISED RULES
OF COURT) CONSTITUTE A COLLATERAL ATTACK ON THE TITLE OF RESPONDENT
OBVIOUSLY AND UNDENIABLY PROCURED THRU FRAUD.[25]
Petitioners' Arguments

In their Petition and Reply[26] seeking reversal of the assailed CA dispositions and

reinstatement of the RTC's December 11, 2009 Order dismissing respondent's
ejectment case, petitioners essentially argue that since the parties to the case are
siblings and no attempt at compromise was made by the respondent prior to the
filing of Civil Case No. 9534, then it should be dismissed for failure to comply with
Rule 16, Section 1(j) of the 1997 Rules of Civil Procedure [27] in relation to Article
151 of the Family Code[28] and Article 222 of the Civil Code;[29] that they could not
be evicted from the subject property since they are co-owners of the same, having
inherited it from their deceased parents; that respondent's title was derived from a
forged deed of sale, which does not make her the sole owner of the subject
property; that as co-owners and since respondent's title is void, they have a right
of possession over the subject property and they may not be evicted therefrom;
that their defense that respondent obtained her title through a forged deed of sale
does not constitute a collateral attack on such title, but is allowed in order to prove
their legal right of possession and ownership over the subject property.

Respondent's Arguments

In her Comment[30] seeking denial of the Petition, respondent claims that the

Petition should have been dismissed since only two of the respondents in CA-G.R.
SP No. 114363 filed the Petition before this Court; that the findings of the CA do
not merit review and modification, the same being correct; and that the Petition is a
mere reiteration of issues and arguments already passed upon exhaustively below.

Our Ruling

The Court grants the Petition.

The procedural issue of lack of attempts at compromise should be resolved in

respondent's favor. True, 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. However, the failure of a party to
comply with this condition precedent is not a jurisdictional defect. If the opposing
party fails to raise such defect in a motion to dismiss, such defect is deemed
waived.[31]

hi arriving at its pronouncement, the CA passed upon the issue or claim of

ownership, which both parties raised. While the procedure taken is allowed -under
Section 16, Rule 70 of the 1997 Rules of Civil Procedure, [32] the issue of ownership
may be resolved only to determine the issue of possession - the CA nonetheless
committed serious and patent error in concluding that based solely on respondent's
TCT 12575 issued in her name, she must be considered the singular owner of the
subject property and thus entitled to possession thereof- pursuant to the principle
that "the person who has a Torrens Title over a land is entitled to possession
thereof."[33] Such provisional determination of ownership should have been resolved
in petitioners' favor.

When the deed of sale in favor of respondent was purportedly executed by the
parties thereto and notarized on June 6, 2006, it is perfectly obvious that the
signatures of the vendors therein, Macario and Felicidad, were forged. They could
not have signed the same, because both were by then long deceased: Macario died
on February 22, 1981, while Felicidad passed away on September 14, 1997. This
makes the June 6, 2006 deed of sale null and void; being so, it is "equivalent to
nothing; it produces no civil effect; and it does not create, modify or extinguish a
juridical relation."[34]

And while it is true that respondent has in her favor a Torrens title over the subject
property, she nonetheless acquired no right or title in her favor by virtue of the null
and void June 6, 2006 deed. "Verily, when the instrument presented is forged, even
if accompanied by the owner's duplicate certificate of title, the registered owner
does not thereby lose his title, and neither does the assignee in the forged deed
acquire any right or title to the property."[35]

In sum, the fact that respondent has in her favor a certificate of title is of no
moment; her title cannot be used to validate the forgery or cure the void sale. As
has been held in the past:
Insofar as a person who fraudulently obtained a property is concerned, the
registration of the property in said person's name would not be sufficient
to vest in him or her the title to the property. A certificate of title merely
confirms or records title already existing and vested. The indefeasibility of
the Torrens title should not be used as a means to perpetrate fraud against
the rightful owner of real property. Good faith must concur with registration
because, otherwise, registration would be an exercise in futility. A Torrens title
does not furnish a shield for fraud, notwithstanding the long-standing rule
that registration is a constructive notice of title binding upon the whole
world. The legal principle is that if the registration of the land is fraudulent, the
person in whose name the land is registered holds it as a mere trustee.
[36]
 (Emphasis supplied)
Since respondent acquired no right over the subject property, the same remained in
the name of the original registered owners, Macario and Felicidad. Being heirs of
the owners, petitioners and respondent thus became, and remain co-owners - by
succession - of the subject property. As such, petitioners may exercise all attributes
of ownership over the same, including possession - whether de facto or dejure;
respondent thus has no right to exclude them from this right through an action for
ejectment.

With the Court's determination that respondent's title is null and void, the matter of
direct or collateral attack is a foregone conclusion as well. "An action to declare the
nullity of a void title does not prescribe and is susceptible to direct, as well as to
collateral, attack;"[37] petitioners were not precluded from questioning the validity of
respondent's title in the ejectment case.

It does not appear either that petitioners are claiming exclusive ownership or
possession of the subject property. Quite the contrary, they acknowledge all this
time that the property belongs to all the Domingo siblings in co-ownership. In the
absence of an allegation - or evidence - that petitioners are claiming exclusive
ownership over the co-owned property, respondent has no alternative cause of
action for ejectment which should prevent the dismissal of Civil Case No. 9534. The
pronouncement in a previous case applies here:
True it is that under Article 487 of the Civil Code,[38] a co-owner may bring an action
for ejectment against a co-owner who takes exclusive possession and asserts
exclusive ownership of a common property. It bears stressing, however, that in this
case, evidence is totally wanting to establish John's or Juliet's exclusive ownership
of the property in question. Neither did Juliet obtain possession thereof by virtue of
a contract, express or implied, or thru intimidation, threat, strategy or stealth. As
borne by the record, Juliet was in possession of the subject structure and the sari-
sari store thereat by virtue of her being a co-owner thereof. As such, she is as
much entitled to enjoy its possession and ownership as John. [39]
Indeed, it is respondent who is claiming exclusive ownership of the subject property
owned in common.

Thus, left with no cause of action for ejectment against petitioners, respondent's
ejectment case must be dismissed.

There is likewise no merit to respondent's argument that since only two of the
defendants in the ejectment case filed the instant Petition, the same must
necessarily be dismissed. There is no rule which requires that all the parties in the
proceedings before the CA must jointly take recourse with this Court or else such
recourse would be dismissible. The fact that Ramon and Rafael did not join in the
instant Petition does not bar petitioners from pursuing their case before this Court.
Moreover, since petitioners, Ramon and Rafael are siblings, co-heirs, co-owners,
and occupants of the subject property, they all have common interests, and their
rights and liabilities are identical and so interwoven and dependent as to be
inseparable. The reversal of the assailed CA judgment should therefore inure to the
benefit of Ramon and Rafael as well. The December 11, 2009 Order of the RTC —
decreeing dismissal as against petitioners, Ramon, and Rafael, as well as the
payment of attorney's fees to all of them - may be reinstated in all respects.
xxx This Court has always recognized the general rule that in appellate
proceedings, the reversal of the judgment on appeal is binding only on the parties
in the appealed case and does not affect or inure to the benefit of those who did not
join or were not made parties to the appeal. An exception to the rule exists,
however, where a judgment cannot be reversed as to the party appealing without
affecting the rights of his co-debtor, or where the rights and liabilities of the parties
are so interwoven and dependent on each other as to be inseparable, in which case
a reversal as to one operates as a reversal as to all. This exception, which is based
on a communality of interest of said parties, is recognized in this jurisdiction. x x
x[40]
WHEREFORE, the Petition is GRANTED. The February 29, 2012 Decision of the
Court of Appeals in CA-G.R. SP No. 114363 is REVERSED and SET ASIDE. The
December 11, 2009 Order of the Regional Trial Court of Pasig City, Branch 160 in
SCA No. 3144 is REINSTATED and AFFIRMED.

SO ORDERED.
 SECOND DIVISION
[ G.R. No. 217744, July 30, 2018 ]
JOSE Z. MORENO, PETITIONER, V. RENE M. KAHN, CONSUELO
MORENO KAHN-HAIRE, RENE LUIS PIERRE KAHN, PHILIPPE
KAHN, MA. CLAUDINE KAHN MCMAHON, AND THE REGISTER
OF DEEDS OF MUNTINLUPA CITY, RESPONDENTS.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari[1] are the Decision[2] dated

September 24, 2014 and the Resolution[3] dated March 17, 2015 of the Court of
Appeals (CA) in CA-G.R. SP No. 129232, which affirmed the Orders dated January
18, 2012[4] and October 11, 2012[5] of the Regional Trial Court of Muntinlupa City,
Branch 205 (RTC) in Civil Case No. 12-004 dismissing motu proprio the complaint
filed by petitioner Jose Z. Moreno (Jose) for non-compliance with Article 151 of the
Family Code.

The Facts

Jose alleged that since May 1998 and in their capacity as lessees, he and his family
have been occupying two (2) parcels of land covered by Transfer Certificate of Title
(TCT) Nos. 181516 and 181517[6] (subject lands) co-owned by his full-blooded
sister, respondent Consuelo Moreno KahnHaire (Consuelo) and his nephews and
nieces (Consuelo's children), respondents Rene M. Kahn (Rene), Rene Luis Pierre
Kahn (Luis), Philippe Kahn (Philippe), and Ma. Claudine Kahn-McMahon (Claudine;
collectively, respondents).[7]

Around April or May 2003, through numerous electronic mails (emails) and letters,
respondents offered to sell to Jose the subject lands for the amount of
US$200,000.00 (US$120,000.00 to be received by Consuelo and US$20,000.00
each to be received by her children),[8] which Jose accepted. Notably, the
agreement was made verbally and was not immediately reduced into writing, but
the parties had the intention to eventually memorialize the same via a written
document. Over the next few years, Jose made partial payments to respondents by
paying off the shares of Rene, Luis, Philippe and Claudine, leaving a remaining
balance of US$120,000.00 payable to Consuelo. [9]

However, in July 2010, Consuelo decided to "cancel" their agreement, and

thereafter, informed Jose of her intent to convert the earlier partial payments as
rental payments instead. In response, Jose expressed his disapproval to Consuelo's
plan and demanded that respondents proceed with the sale, which the latter
ignored.[10] He then claimed that on July 26, 2011, without his consent, Consuelo,
Luis, Philippe, and Claudine sold[11] their shares over the subject lands to Rene,
thereby consolidating full ownership of the subject lands to him. Consequently, TCT
Nos. 181516 and 181517 were cancelled and new TCTs,  i.e., TCT Nos. 148026 and
148027,[12] were issued in Rene's name. Upon learning of such sale, Jose sent a
demand letter[13] to Rene, and later on to Consuelo, Luis, Philippe, and Claudine,
[14]
 asserting his right to the subject lands under the previous sale agreed upon. As
his demands went unheeded, Jose brought the matter to the barangay lupon for
conciliation proceedings between him and Rene only, since Consuelo, Luis, Philippe,
and Claudine are all living abroad. As no settlement was agreed upon,[15] Jose was
constrained to file the subject complaint[16]for specific performance and cancellation
of titles with damages and application for temporary restraining order and writ of
preliminary injunction, docketed as Civil Case No. 12-004. [17]

The RTC Proceedings

In an Order[18] dated January 18, 2012, the RTC motu proprio ordered the dismissal

of Jose's complaint for failure to allege compliance with the provision of Article 151
of the Family Code which requires earnest efforts to be made first before suits may
be tiled between family members.

Jose moved for reconsideration,[19] arguing that: (a) the RTC cannot motu

proprio order the dismissal of a case on the ground of failure to comply with a
condition precedent, i.e., non-compliance with Article 151 of the Family Code; (b)
Article 151 does not apply to the instant case, contending that while Consuelo is
indeed his full-blooded sister, her co-defendants namely his nephews Rene, Luis,
and Philippe, and niece Claudine are not considered members of the same family as
him and Consuelo and (c) assuming Article 151 of the Family Code applies, he has
complied with the earnest efforts requirement as he tried convincing Consuelo to
change her mind through email correspondences, and even underwent barangay
conciliation proceedings with Rene.[20]

In an Order[21] dated October 11, 2012, the RTC denied Jose's motion, ruling, inter
alia, that Article 151 of the Family Code applies, despite the fact that Consuelo had
other co-defendants (i.e., her children) in the suit, as the dispute, which led to the
filing of the case, was mainly due to the disagreement between full-blooded
siblings, Jose and Consuelo.[22]

Aggrieved, Jose filed a petition for certiorari[23] before the CA.

The CA Ruling

In a decision[24] dated September 24, 2014, the CA affirmed the RTC ruling. It held
that the motu proprio dismissal of Jose's complaint was proper in light of Article
151 of the Family Code which mandates such dismissal if it appears from the
complaint/ petition that no earnest efforts were made between party-litigants who
are members of the same family.[25] The CA likewise agreed with the RTC's finding
that Jose's main cause of action was against his full-blooded sister, Consuelo, and
as such, the fact that his nephews and nieces were impleaded as co-defendants
does not take their situation beyond the ambit of Article 151.[26] Finally, the CA
opined that the barangay conciliation proceedings cannot be deemed as substantial
compliance with the earnest efforts requirement of the law as the participants
therein were only Jose and Rene, and without the other defendants. [27]

Undaunted, Jose moved for reconsideration,[28] which was, however, denied in a

Resolution[29] dated March 17, 2015; hence, this petition.

The Issues Before the Court

The issues for the Court's resolution are whether or not: (a) the CA correctly
affirmed the RTC's motu proprio dismissal of Jose's complaint; and (b) Article 151
of the Family Code is applicable to this case.

The Court's Ruling

The petition is meritorious.

Article 151 of the Family Code reads:

Article 151. No suit between members of the same family shall prosper unless it
should appear from the verified complaint or petition that earnest efforts toward a
compromise have been made, but that the same have failed. If it is shown that no
such efforts were in fact made, the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise
under the Civil Code.

Palpably, the wisdom behind the provision is to maintain sacred the ties among
members of the same family. "As pointed out by the Code Commission, it is difficult
to imagine a sadder and more tragic spectacle than a litigation between members
of the same family. It is necessary that every effort should be made toward a
compromise before a litigation is allowed to breed hate and passion in the family
and it is known that a lawsuit between close relatives generates deeper bitterness
than between strangers."[30] Thus, a party's failure to comply with this provision
before filing a complaint against a family member would render such complaint
premature;[31] hence, dismissible.

This notwithstanding, the Court held in Heirs of Favis, Sr. v. Gonzales[32] that non-
compliance with the earnest effort requirement under Article 151 of the Family
Code is not a jurisdictional defect which would authorize the courts to dismiss suits
filed before them motu proprio. Rather, it merely partakes of a condition precedent
such that the non-compliance therewith constitutes a ground for dismissal of a suit
should the same be invoked by the opposing party at the earliest opportunity, as in
a motion to dismiss or in the answer. Otherwise, such ground is deemed waived,
viz.:
The base issue is whether or not the appellate court may dismiss the order of
dismissal of the complaint for failure to allege therein that earnest efforts towards a
compromise have been made.

The appellate court committed egregious error in dismissing the complaint.

The appellate courts decision hinged on Article 151 of the Family Code x x x.

xxxx

The appellate court correlated this provision with Section 1, par. (j), Rule 16 of the
1997 Rules of Civil Procedure, which provides:

Section 1. Grounds. — Within the time for but before filing the answer to the
complaint or pleading asserting a claim, a motion to dismiss may be made on any
of the following grounds:

xxxx

(j) That a condition precedent for filing the claim has not been complied with.

The appellate court's reliance on this provision is misplaced. Rule 16 treats of the
grounds for a motion to dismiss the complaint. It must be distinguished from the
grounds provided under Section l, Rule 9 which specifically deals with dismissal of
the claim by the court motu proprio. Section 1, Rule 9 of the 1997 Rules of Civil
Procedure provides:

Section 1. Defenses and objections not pleaded. — Defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the action is barred
by a prior judgment or by statute of limitations, the court shall dismiss the claim.

Section 1, Rule 9 provides for only four instances when the court may motu
proprio dismiss the claim, namely: (a) lack of jurisdiction over the subject matter;
(b) litis pendentia: (c) res judicata; and (d) prescription of action. x x x.

xxxx

Why the objection of failure to allege a failed attempt at a compromise in a suit

among members of the same family is waivable was earlier explained in the case
of Versoza v. Versoza ([Versoza] 135 Phil. 84, 94 [1986]), a case for future support
which was dismissed by the trial court upon the ground that there was no such
allegation of infringement of Article 222 of the Civil Code, the origin of Article 151
of the Family Code. While the Court ruled that a complaint for future support cannot
be the subject of a compromise and as such the absence of the required allegation
in the complaint cannot be a ground for objection against the suit, the decision
went on to state thus:
xxxx

Thus was it made clear that a failure to allege earnest but failed efforts at
a compromise in a complaint among members of the same family, is not a
jurisdictional defect but merely a defect in the statement of a cause of
action. Versoza was cited in a later case as an instance analogous to one where
the conciliation process at the barangay level was not priorly resorted to. Both were
described as a "condition precedent for the filing of a complaint in Court." In
such instances, the consequence is precisely what is stated in the present Rule.
Thus:

The defect may however be waived by failing to make seasonable

objection, in a motion to dismiss or answer, the defect being a mere
procedural imperfection which does not affect the jurisdiction of the court.

In the case at hand, the proceedings before the trial court ran the full course. The
complaint was answered by respondents without a prior motion to dismiss have
been filed. The decision in favour of the petitioners was appealed by respondents on
the basis of the alleged error in the ruling on the merits, no mention having been
made about any defect in the statement of a cause of action. In other words, no
motion to dismiss the complaint based on the failure to comply with a
condition precedent was filed in the trial court; neither was such failure
assigned as error in the appeal that respondent brought before the Court
of Appeals.

Therefore, the rule on deemed waiver of the non-jurisdictional defense or

objection is wholly applicable to respondent. If the respondents as parties-
defendants could not, and did not, after filing their answer to petitioner's
complaint, invoke the objection of absence of the required allegation on
earnest efforts at a compromise, the appellate court unquestionably did
not have any authority or basis to motu propio order the dismissal of
petitioner’s complaint.[33] (Emphasis and underscoring supplied)

In this case, a plain reading of the records shows that the RTC ordered the
dismissal of Jose's complaint against respondents for his alleged failure to comply
with A1ticle 151 of the Family Code – even before respondents have filed a motion
or a responsive pleading invoking such non-compliance. As such ground is not a
jurisdictional defect but is a mere condition precedent, the courts a quo clearly
erred in finding that a motu proprio dismissal was warranted under the given
circumstances.

Even assuming arguendo that respondents invoked the foregoing ground at the

earliest opportunity, the Court nevertheless finds Article 151 of the Family Code
inapplicable to this case. For Article 151 of the Family Code to apply, the suit must
be exclusively between or among "members of the same family." Once a stranger
becomes a party to such suit, the earnest effort requirement is no longer a
condition precedent before the action can prosper.[34] In Hiyas Savings and Loan
Bank, Inc. v. Acuña,[35] the Court explained the rationale behind this rule, to wit:
[T]hese considerations do not, however, weigh enough to make it imperative that
such efforts to compromise should be a jurisdictional prerequisite for the
maintenance of an action whenever a stranger to the family is a party thereto..
whether as a necessary or indispensable one. It is not always that one who is alien
to the family would be willing to suffer the inconvenience of, much less relish, the
delay and the complications that wranglings between or among relatives more often
than not entail. Besides, it is neither practical nor fair that the determination of the
rights of a stranger to the family who just happened to have innocently acquired
some kind of interest in any right or property disputed among its members should
be made to depend on the way the latter would settle their differences among
themselves.[36]

In this relation, Article 150 of the Family Code reads:

Art. 150. Family relations include those:

(1) Between husband and wife;

(2) Between parents and children;
(3) Among other ascendants and descendants: and
(4) Among brothers and sisters, whether of the full or half-blood.

In this light, case law states that Article 151 of the Family Code must be construed
strictly, it being an exception to the general rule. Hence, any person having a
collateral familial relation with the plaintiff other than what is enumerated in Article
150 of the Family Code is considered a stranger who, if included in a suit between
and among family members, would render unnecessary the earnest efforts
requirement under Article 151.[37] Expressio unius est exclusio alterius. The express
mention of one person, thing, act, or consequence excludes all others. [38]

In this instance, it is undisputed that: (a) Jose and Consuelo are full-blooded
siblings; and (b) Consuelo is the mother of Rene, Luis, Philippe, and Claudine,
which make them nephews and niece of their uncle, Jose. It then follows that Rene,
Luis, Philippe, and Claudine are considered "strangers'' to Jose insofar as Article
151 of the Family Code is concerned. In this relation, it is apt to clarify that whi1e it
was the disagreement between Jose and Consuelo that directly resulted in the filing
of the suit, the fact remains that Rene, Luis, Philippe, and Claudine were rightfully
impleaded as co-defendants Jose’s complaint as they are co-owners of the subject
lands in dispute. In view of the inclusion “strangers" to the suit between Jose and
Consuelo who are full-blooded siblings, the Court concludes that the suit is beyond
the ambit of Article 151 of the Family Code. Perforce, the courts a quo gravely
erred in dismissing Jose's complaint due to non-compliance with the earnest effort
requirement therein.

WHEREFORE, the petition is GRANTED. The Decision dated September 24, 2014
and the Resolution dated March 17, 2015 of the Court of Appeals in CA-G.R. SP No.
129232 are hereby REVERSED and SET ASIDE. Accordingly, Civil Case No. 12-004
is REINSTATED and REMANDED to the Regional Trial Court of Muntinlupa City,
Branch 205 for further proceedings.
SO ORDERED.

Carpio (Chairperson),[*]  Peralta, Caguioa, and Reyes, Jr., JJ., concur.

IRST DIVISION
[ G.R. No. 58010, March 31, 1993 ]
EMILIA O’LACO AND HUGO LUNA, PETITIONERS, VS.
VALENTIN CO CHO CHIT, O LAY KIA AND COURT OF APPEALS,
RESPONDENTS.

DECISION

BELLOSILLO, J.:

History is replete with cases of erstwhile close family relations put asunder by
property disputes. This is one of them. It involves half-sisters each claiming
ownership over a parcel of land. While petitioner Emilia O’Laco asserts that she
merely left the certificate of title covering the property with private respondent O
Lay Kia for safekeeping, the latter who is the former's older sister insists that the
title was in her possession because she and her husband bought the property from
their conjugal funds. To be resolved therefore is the issue of whether a resulting
trust was intended by them in the acquisition of the property. The trial court
declared that there was no trust relation of any sort between the sisters. [1] The
Court of Appeals ruled otherwise.[2] Hence, the instant petition for review
on certiorari of the decision of the appellate court together with its resolution
denying reconsideration.[3]

It appears that on 31 May 1943, the Philippine Sugar Estate Development

Company, Ltd., sold a parcel of land, Lot No. 5, Block No. 10, Plan Psu-10038,
situated at Oroquieta St., Sta. Cruz, Manila, with the Deed of Absolute Sale naming
Emilia O’Laco as vendee; thereafter, Transfer Certificate of Title No. 66456 was
issued in her name.

On 17 May 1960, private respondent-spouses Valentin Co Cho Chit and O Lay Kia
learned from the newspapers that Emilia O'Laco sold the same property to the
Roman Catholic Archbishop of Manila for P230,000.00, with assumption of the real
estate mortgage constituted thereon.[4]
On 22 June 1960, respondent-spouses Valentin Co Cho Chit and O Lay Kia sued
petitioner-spouses Emilia O'Laco and Hugo Luna to recover the purchase price of
the land before the then Court of First Instance of Rizal, respondent-spouses
asserting that petitioner Emilia O'Laco knew that they were the real vendees of the
Oroquieta property sold in 1943 by Philippine Sugar Estate Development Company,
Ltd., and that the legal title thereto was merely placed in her name. They contend
that Emilia O'Laco breached the trust when she sold the land to the Roman Catholic
Archbishop of Manila. Meanwhile, they asked the trial court to garnish all the
amounts still due and payable to petitioner-spouses arising from the sale, which
was granted on 30 June 1960.[5]

Petitioner-spouses deny the existence of any form of trust relation. They aver that
Emilia O'Laco actually bought the property with her own money; that she left the
Deed of Absolute Sale and the corresponding title with respondent-spouses merely
for safekeeping; that when she asked for the return of the documents evidencing
her ownership, respondent-spouses told her that these were misplaced or lost; and,
that in view of the loss, she filed a petition for issuance of a new title, and on 18
August 1944 the then Court of First Instance of Manila granted her petition.

On 20 September 1976, finding no trust relation between the parties, the trial court
dismissed the complaint together with the counterclaim. Petitioners and
respondents appealed.

On 9 April 1981, the Court of Appeals set aside the decision of the trial court thus -

"x x x x We set aside the decision of the lower court dated September 20, 1976 and
the order of January 5, 1977 and another one is hereby entered ordering the
defendants-appellees to pay plaintiffs-appellants jointly and severally the sum of
P230,000.00 representing the value of the property subject of the sale with
assumption of mortgage to the Roman Catholic Archbishop of Manila with legal
interest from the filing of the complaint until fully paid, the sum of P10,000.00 as
attorney's fees, plus costs."

On 7 August 1981, the Court of Appeals denied reconsideration of its decision,

prompting petitioners to come to this Court for relief.

Petitioners contend that the present action should have been dismissed. They argue
that the complaint fails to allege that earnest efforts toward a compromise were
exerted considering that the suit is between members of the same family, and no
trust relation exists between them. Even assuming ex argumenti  that there is such
a relation, petitioners further argue, respondents are already barred by laches.

We are not persuaded. Admittedly, the present action is between members of the
same family since petitioner Emilia O'Laco and respondent O Lay Kia are half-
sisters. Consequently, there should be an averment in the complaint that earnest
efforts toward a compromise have been made, pursuant to Art. 222 of the New Civil
Code,[6] or a motion to dismiss could have been filed under Sec. 1, par. (j), Rule 16,
of the Rules of Court.[7] For, it is well-settled 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.[8] Hence, the defect in the complaint is assailable at
any stage of the proceedings, even on appeal, for lack of cause of action. [9]

But, plaintiff may be allowed to amend his complaint to correct the defect if the
amendment does not actually confer jurisdiction on the court in which the action is
filed, i.e., if the cause of action was originally within that court's jurisdiction. [10] In
such case, the amendment is only to cure the perceived defect in the complaint,
thus may be allowed.

In the case before Us, while respondent-spouses did not formally amend their
complaint, they were nonetheless allowed to introduce evidence purporting to show
that earnest efforts toward a compromise had been made, that is, respondent O
Lay Kia importuned Emilia O'Laco and pressed her for the transfer of the title of the
Oroquieta property in the name of spouses O Lay Kia and Valentin Co Cho Chit, just
before Emilia's marriage to Hugo Luna.[11] But, instead of transferring the title as
requested, Emilia sold the property to the Roman Catholic Archbishop of Manila.
This testimony was not objected to by petitioner-spouses. Hence, the complaint
was deemed accordingly amended to conform to the evidence, [12] pursuant to Sec.
5, Rule 10, of the Rules of Court which reads -

"Sec. 5. Amendment to conform to or authorize presentation of evidence. -- When

issues not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects, as if they had been raised in the
pleadings x x x x" (underscoring supplied).

Indeed, if the defendant permits evidence to be introduced without objection and

which supplies the necessary allegations of a defective complaint, then the evidence
is deemed to have the effect of curing the defects of the complaint. [13] The
insufficiency of the allegations in the complaint is deemed ipso facto  rectified.[14]

But the more crucial issue before Us is whether there is a trust relation between the
parties in contemplation of law.

We find that there is. By definition, trust relations between parties may either be
express or implied.[15] Express trusts are those which are created by the direct and
positive acts of the parties, by some writing or deed, or will, or by words evincing
an intention to create a trust.[16] Implied trusts are those which, without being
express, are deducible from the nature of the transaction as matters of intent, or
which are superinduced on the transaction by operation of law as matters of equity,
independently of the particular intention of the parties. [17] Implied trusts may either
be resulting or constructive trusts, both coming into being by operation of law. [18]

Resulting trusts are based on the equitable doctrine that valuable consideration and
not legal title determines the equitable title or interest [19] and are presumed always
to have been contemplated by the parties. They arise from the nature or
circumstances of the consideration involved in a transaction whereby one person
thereby becomes invested with legal title but is obligated in equity to hold his legal
title for the benefit of another.[20] On the other hand, constructive trusts are created
by the construction of equity in order to satisfy the demands of justice [21] and
prevent unjust enrichment. They arise contrary to intention against one who, by
fraud, duress or abuse of confidence, obtains or holds the legal right to property
which he ought not, in equity and good conscience, to hold. [22]

Specific examples of resulting trusts may be found in the Civil Code, particularly
Arts. 1448, 1449, 1451, 1452 and 1453, [23] while constructive trusts are illustrated
in Arts. 1450, 1454, 1455 and 1456. [24]

Unlike express trusts concerning immovables or any interest therein which cannot
be proved by parol evidence,[25] implied trusts may be established by oral evidence.
[26]
 However, in order to establish an implied trust in real property by parol evidence,
the proof should be as fully convincing as if the acts giving rise to the trust
obligation were proven by an authentic document. [27] It cannot be established upon
vague and inconclusive proof.[28]

After a thorough review of the evidence on record, We hold that a resulting trust
was indeed intended by the parties under Art. 1448 of the New Civil Code which
states -

"Art. 1448. There is an implied trust when property is sold, and the legal estate is
granted to one party but the price is paid by another for the purpose of having the
beneficial interest of the property. The former is the trustee, while the latter is the
beneficiary x x x x" (underscoring supplied).

First.  As stipulated by the parties, the document of sale, the owner's duplicate copy
of the certificate of title, insurance policies, receipt of initial premium of insurance
coverage and real estate tax receipts were all in the possession of respondent-
spouses which they offered in evidence. As emphatically asserted by respondent O
Lay Kia, the reason why these documents of ownership remained with her is that
the land in question belonged to her.[29]

Indeed, there can be no persuasive rationalization for the possession of these

documents of ownership by respondent-spouses for seventeen (17) years after the
Oroquieta property was purchased in 1943 than that of precluding its possible sale,
alienation or conveyance by Emilia O'Laco, absent any machination or fraud. This
continued possession of the documents, together with other corroborating evidence
spread on record, strongly suggests that Emilia O'Laco merely held the Oroquieta
property in trust for respondent-spouses.

Second. It may be worth to mention that before buying the Oroquieta property,
respondent-spouses purchased another property situated in Kusang-Loob, Sta.
Cruz, Manila, where the certificate of title was placed in the name of Ambrosio
O'Laco, older brother of Emilia, under similar or identical circumstances. The
testimony of former counsel for respondent-spouses, then Associate Justice Antonio
G. Lucero of the Court of Appeals, is enlightening -
"Q - In the same conversation he told you how he would buy the property (referring
to the Oroquieta property), he and his wife?
"A - Yes, Sir, he did.
"Q - What did he say?
xxxx
"A - He said he and his wife has (sic) already acquired by purchase a certain
property located at Kusang-Loob, Sta. Cruz, Manila. He told me he would like to
place the Oroquieta Maternity Hospital in case the negotiation materialize(s) in the
name of a sister of his wife (O'Laco)" (underscoring supplied).[30]

On the part of respondent-spouses, they explained that the reason why they did
not place these Oroquieta and Kusang-Loob properties in their name was that being
Chinese nationals at the time of the purchase they did not want to execute the
required affidavit to the effect that they were allies of the Japanese. [31] Since O Lay
Kia took care of Emilia who was still young when her mother died, [32] respondent-
spouses did not hesitate to place the title of the Oroquieta property in Emilia's
name.

Quite significantly, respondent-spouses also instituted an action for reconveyance

against Ambrosio O'Laco when the latter claimed the Kusang-Loob property as his
own. A similar stipulation of facts was likewise entered, i.e., respondent-spouses
had in their possession documents showing ownership of the Kusang-Loob property
which they offered in evidence. In that case, the decision of the trial court, now
final and executory, declared respondent-spouses as owners of the Kusang-Loob
property and ordered Ambrosio O'Laco to reconvey it to them. [33]

Incidentally, Ambrosio O'Laco thus charged respondent-spouses Valentin Co Cho

Chit and O Lay Kia before the Anti-Dummy Board, docketed as Case No. 2424, for
their acquisition of the Kusang-Loob and Oroquieta properties. [34] He claimed that
respondent-spouses utilized his name in buying the Kusang-Loob property while
that of petitioner O'Laco was used in the purchase of the Oroquieta property. In
effect, there was an implied admission by Ambrosio that his sister Emilia, like him,
was merely used as a dummy. However, the Anti-Dummy Board exonerated
respondent-spouses since the purchases were made in 1943, or during World War
II, when the Anti-Dummy Law was not enforceable.

Third. The circumstances by which Emilia O'Laco obtained a new title by reason of

the alleged loss of the old title then in the possession of respondent-spouses cast
serious doubt on the veracity of her ownership. The petitions respectively filed by
Emilia O'Laco and Ambrosio O'Laco for the Oroquieta and the Kusang-Loob
properties were both granted on the same day, 18 August 1944, by the then Court
of First Instance of Manila. These orders were recorded in the Primary Entry Book of
the Register of Deeds of Manila at the same time, 2:35 o'clock in the afternoon of 1
September 1944, in consecutive entries, Entries Nos. 246117-18. [35] This
coincidence lends credence to the position of respondent-spouses that there was in
fact a conspiracy between the siblings Ambrosio and Emilia to defraud and deprive
respondents of their title to the Oroquieta and Kusang-Loob properties.

Fourth. Until the sale of the Oroquieta property to the Roman Catholic Archbishop
of Manila, petitioner Emilia O'Laco actually recognized the trust. Specifically, when
respondent-spouses learned that Emilia was getting married to Hugo, O Lay Kia
asked her to have the title to the property already transferred to her and her
husband Valentin, and Emilia assured her that "would be arranged (maaayos na)"
after her wedding.[36] Her answer was an express recognition of the trust, otherwise,
she would have refused the request outright. Petitioners never objected to this
evidence; nor did they attempt to controvert it.

Fifth. The trial court itself determined that "Valentin Co Cho Chit and O Lay Kia had
some money with which they could buy the property." [37] In fact, Valentin was the
Chief Mechanic of the Paniqui Sugar Mills, was engaged in the buy and sell
business, operated a gasoline station, and owned an auto supply store as well as a
ten-door apartment in Caloocan City.[38] In contrast, Emilia O'Laco failed to convince
the Court that she was financially capable of purchasing the Oroquieta property. In
fact, she opened a bank account only in 1946 and likewise began filing income tax
returns that same year,[39] while the property in question was bought in 1943.
Respondent-spouses even helped Emilia and her brothers in their expenses and
livelihood. Emilia could only give a vague account on how she raised the money for
the purchase of the property. Her narration of the transaction of sale abounds with
"I don't know" and "I don't remember."[40]

Having established a resulting trust between the parties, the next question is
whether prescription has set in.

As differentiated from constructive trusts, where the settled rule is that prescription
may supervene, in resulting trust, the rule of imprescriptibility may apply for as
long as the trustee has not repudiated the trust. [41] Once the resulting trust is
repudiated, however, it is converted into a constructive trust and is subject to
prescription.

A resulting trust is repudiated it the following requisites concur: (a) the trustee has
performed unequivocal acts of repudiation amounting to an ouster of the cestui gui
trust; (b) such positive acts of repudiation have been made known to the cestui gui
trust; and, (c) the evidence thereon is clear and convincing.[42]

In Tale v. Court of Appeals[43] the Court categorically ruled that an action for

reconveyance based on an implied or constructive trust must perforce prescribe in
ten (10) years, and not otherwise, thereby modifying previous decisions holding
that the prescriptive period was four (4) years.

Neither the registration of the Oroquieta property in the name of petitioner Emilia
O'Laco nor the issuance of a new Torrens title in 1944 in her name in lieu of the
alleged loss of the original may be made the basis for the commencement of the
prescriptive period. For, the issuance of the Torrens title in the name of Emilia
O'Laco could not be considered adverse, much less fraudulent. Precisely, although
the property was bought by respondent-spouses, the legal title was placed in the
name of Emilia O'Laco. The transfer of the Torrens title in her name was only in
consonance with the deed of sale in her favor. Consequently, there was no cause
for any alarm on the part of respondent-spouses. As late as 1959, or just before
she got married, Emilia continued to recognize the ownership of respondent-
spouses over the Oroquieta property. Thus, until that point, respondent-spouses
were not aware of any act of Emilia which would convey to them the idea that she
was repudiating the resulting trust. The second requisite is therefore absent. Hence,
prescription did not begin to run until the sale of the Oroquieta property, which was
clearly an act of repudiation.

But immediately after Emilia sold the Oroquieta property which is obviously a
disavowal of the resulting trust, respondent-spouses instituted the present suit for
breach of trust. Correspondingly, laches cannot lie against them.

After all, so long as the trustee recognizes the trust, the beneficiary may rely upon
the recognition, and ordinarily will not be in fault for omitting to bring an action to
enforce his rights.[44] There is no running of the prescriptive period if the trustee
expressly recognizes the resulting trust. [45] Since the complaint for breach of trust
was filed by respondent-spouses two (2) months after acquiring knowledge of the
sale, the action therefore has not yet prescribed.

WHEREFORE, the Petition for Review on Certiorari is DENIED. The Decision of the

Court of Appeals of 9 April 1981, which reversed the trial court, is AFFIRMED. Costs
against petitioners.

SO ORDERED.

Cruz, (Chairman), Griño-Aquino,  and Quiason, JJ., concur.

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.

DECISION
BELLOSILLO, J.:

Filed by petitioner as an accion publiciana[1] against private respondent, this case

assumed another dimension when it was dismissed by respondent Judge on the
ground that the parties being brothers-in-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 efforts
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 have failed. If it is shown that no
such efforts were in fact made, the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise
under the Civil Code.
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 complemented by Sec. 1, par. (j), Rule 16, of the Rules of Court
which provides as a ground for a 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 x x x x A litigation in
a family is to be lamented far more than a lawsuit between strangers x x x x [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 "x x x x 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 x x x x"[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 x x x 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 to 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 such 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 (underscoring supplied) x x x x" 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, (Chairman), Davide, Jr., and Quiason, JJ., conc

FIRST DIVISION
[ G.R. NO. 154132, August 31, 2006 ]
 HIYAS SAVINGS AND LOAN BANK, INC. PETITIONER, VS.
HON. EDMUNDO T. ACUÑA, IN HIS CAPACITY AS PAIRING
JUDGE OF REGIONAL TRIAL COURT, BRANCH 122, CALOOCAN
CITY, AND ALBERTO MORENO, RESPONDENT.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court

seeking to nullify the Orders[1] of the Regional Trial Court (RTC) of Caloocan City,
Branch 122, dated November 8, 2001[2] and May 7, 2002[3] denying herein
petitioner's Motion to Dismiss and Motion for Partial Reconsideration, respectively.

The antecedent facts are as follows:

On November 24, 2000, Alberto Moreno (private respondent) filed with the RTC of
Caloocan City a complaint against Hiyas Savings and Loan Bank, Inc. (petitioner),
his wife Remedios, the spouses Felipe and Maria Owe and the Register of Deeds of
Caloocan City for cancellation of mortgage contending that he did not secure any
loan from petitioner, nor did he sign or execute any contract of mortgage in its
favor; that his wife, acting in conspiracy with Hiyas and the spouses Owe, who were
the ones that benefited from the loan, made it appear that he signed the contract of
mortgage; that he could not have executed the said contract because he was then
working abroad.[4]

On May 17, 2001, petitioner filed a Motion to Dismiss on the ground that private
respondent failed to comply with Article 151 of the Family Code wherein it is
provided that no suit between members of the same family shall prosper unless it
should appear from the verified complaint or petition that earnest efforts toward a
compromise have been made, but that the same have failed. Petitioner contends
that since the complaint does not contain any fact or averment that earnest efforts
toward a compromise had been made prior to its institution, then the complaint
should be dismissed for lack of cause of action.[5]

Private respondent filed his Comment on the Motion to Dismiss with Motion to
Strike Out and to Declare Defendants in Default. He argues that in cases where one
of the parties is not a member of the same family as contemplated under Article
150 of the Family Code, failure to allege in the complaint that earnest efforts
toward a compromise had been made by the plaintiff before filing the complaint is
not a ground for a motion to dismiss. Alberto asserts that since three of the party-
defendants are not members of his family the ground relied upon by Hiyas in its
Motion to Dismiss is inapplicable and unavailable. Alberto also prayed that
defendants be declared in default for their failure to file their answer on time. [6]

Petitioner filed its Reply to the Comment with Opposition to the Motion to Strike
and to Declare Defendants in Default.[7] Private respondent, in turn, filed his
Rejoinder.[8]

On November 8, 2001, the RTC issued the first of its assailed Orders denying the
Motion to Dismiss, thus:

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

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

Petitioner filed a Motion for Partial Reconsideration.[10] Private respondent filed his

Comment,[11] after which petitioner filed its Reply.[12] Thereafter, private respondent
filed his Rejoinder.[13]

On May 7, 2002, the RTC issued the second assailed Order denying petitioner's
Motion for Partial Reconsideration. The trial court ruled:

Reiterating the resolution of the court, dated November 8, 2001, considering that
the above-entitled case involves parties who are strangers to the family, failure to
allege in the complaint that earnest efforts towards a compromise were made by
plaintiff, is not a ground for a Motion to Dismiss.

Additionally, the court agrees with plaintiff that inasmuch as it is defendant

Remedios Moreno who stands to be benefited by Art. 151 of the Family Code, being
a member of the same family as that of plaintiff, only she may invoke said Art. 151.
[14]

xxx

Hence, the instant Petition for Certiorari on the following grounds:

I. Public respondent committed grave abuse of discretion amounting to lack or

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

II. Public respondent committed grave abuse of discretion amounting to lack or

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

At the outset, the Court notes that the instant Petition for Certiorari should have
been filed with the Court of Appeals (CA) and not with this Court pursuant to the
doctrine of hierarchy of courts. Reiterating the established policy for the strict
observance of this doctrine, this Court held in Heirs of Bertuldo Hinog v.
Melicor[16] that:
Although the Supreme Court, Court of Appeals and the Regional Trial Courts have
concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such concurrence does not give the
petitioner unrestricted freedom of choice of court forum. As we stated in People v.
Cuaresma:

This Court's original jurisdiction to issue writs of certiorari is not exclusive. It is

shared by this Court with Regional Trial Courts and with the Court of Appeals. This
concurrence of jurisdiction is not, however, to be taken as according to parties
seeking any of the writs an absolute, unrestrained freedom of choice of the court to
which application therefor will be directed. There is after all a hierarchy of courts.
That hierarchy is determinative of the venue of appeals, and also serves as a
general determinant of the appropriate forum for petitions for the extraordinary
writs. A becoming regard for that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level ("inferior") courts
should be filed with the Regional Trial Court, and those against the latter, with the
Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to
issue these writs should be allowed only when there are special and important
reasons therefor, clearly and specifically set out in the petition. This is [an]
established policy. It is a policy necessary to prevent inordinate demands upon the
Court's time and attention which are better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-crowding of the Court's docket.

The rationale for this rule is two-fold: (a) it would be an imposition upon the
precious time of this Court; and (b) it would cause an inevitable and resultant
delay, intended or otherwise, in the adjudication of cases, which in some instances
had to be remanded or referred to the lower court as the proper forum under the
rules of procedure, or as better equipped to resolve the issues because this Court is
not a trier of facts.

Thus, this Court will not entertain direct resort to it unless the redress desired
cannot be obtained in the appropriate courts, and exceptional and compelling
circumstances, such as cases of national interest and of serious implications, justify
the availment of the extraordinary remedy of writ of certiorari, calling for the
exercise of its primary jurisdiction. Exceptional and compelling circumstances were
held present in the following cases: (a) Chavez vs. Romulo on citizens' right to bear
arms; (b) Government of the United States of America vs. Purganan on bail in
extradition proceedings; (c) Commission on Elections vs. Quijano-Padilla on
government contract involving modernization and computerization of voters'
registration list; (d) Buklod ng Kawaning EIIB vs. Zamora on status and existence
of a public office; and (e) Fortich vs. Corona on the so-called "Win-Win Resolution"
of the Office of the President which modified the approval of the conversion to agro-
industrial area.[17]

In the present case, petitioner failed to advance a satisfactory explanation as to its

failure to comply with the principle of judicial hierarchy. There is no reason why the
instant petition could not have been brought before the CA. On this basis, the
instant petition should be dismissed.

And even if this Court passes upon the substantial issues raised by petitioner, the
instant petition likewise fails for lack of merit.

Restating its arguments in its Motion for Partial Reconsideration, petitioner argues
that what is applicable to the present case is the Court's decision in De Guzman v.
Genato[18] and not in Magbaleta v. Gonong,[19] the former being a case involving a
husband and wife while the latter is between brothers.

The Court is not persuaded.

Article 151 of the Family Code provides as follows:

No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise
have been made, but that the same have failed. If it is shown that no such efforts
were in fact made, the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise
under the Civil Code.

Article 222 of the Civil Code from which Article 151 of the Family Code was taken,
essentially contains the same provisions, to wit:

No suit shall be filed or maintained between members of the same family unless it
should appear that earnest efforts toward a compromise have been made, but that
the same have failed, subject to the limitations in Article 2035. [20]

The Code Commission that drafted Article 222 of the Civil Code from which Article
151 of the Family Code was taken explains:

[I]t is difficult to imagine a sadder and more tragic spectacle than a litigation
between members of the same family. It is necessary that every effort should be
made toward a compromise before a litigation is allowed to breed hate and passion
in the family. It is known that a lawsuit between close relatives generates deeper
bitterness than between strangers.[21]

In Magbaleta, the case involved brothers and a stranger to the family, the alleged
owner of the subject property. The Court, taking into consideration the explanation
made by the Code Commision in its report, ruled that:

[T]hese considerations do not, however, weigh enough to make it imperative that

such efforts to compromise should be a jurisdictional pre-requisite for the
maintenance of an action whenever a stranger to the family is a party thereto,
whether as a necessary or indispensable one. It is not always that one who is alien
to the family would be willing to suffer the inconvenience of, much less relish, the
delay and the complications that wranglings between or among relatives more often
than not entail. Besides, it is neither practical nor fair that the determination of the
rights of a stranger to the family who just happened to have innocently acquired
some kind of interest in any right or property disputed among its members should
be made to depend on the way the latter would settle their differences among
themselves.[22] x x x.

Hence, once a stranger becomes a party to a suit involving members of the same
family, the law no longer makes it a condition precedent that earnest efforts be
made towards a compromise before the action can prosper.

In the subsequent case of De Guzman, the case involved spouses and the alleged
paramour of the wife. The Court ruled that due to the efforts exerted by the
husband, through the Philippine Constabulary, to confront the wife, there was
substantial compliance with the law, thereby implying that even in the presence of
a party who is not a family member, the requirements that earnest efforts towards
a compromise have been exerted must be complied with, pursuant to Article 222 of
the Civil Code, now Article 151 of the Family Code.

While De Guzman was decided after Magbaleta, the principle enunciated in the

Magbaleta is the one that now prevails because it is reiterated in the subsequent
cases of Gonzales v. Lopez,[23] Esquivias v. Court of Appeals,[24] Spouses Hontiveros
v. Regional Trial Court, Branch 25, Iloilo City,[25] and the most recent case
of Martinez v. Martinez.[26] Thus, Article 151 of the Family Code applies to cover
when the suit is exclusively between or among family members.

The Court finds no cogent reason why the ruling in Magbaleta as well as in all of the
aforementioned cases should not equally apply to suits involving husband and wife.

Petitioner makes much of the fact that the present case involves a husband and his
wife while Magbaleta is a case between brothers. However, the Court finds no
specific, unique, or special circumstance that would make the ruling in Magbaleta as
well as in the abovementioned cases inapplicable to suits involving a husband and
his wife, as in the present case. In the first place, Article 151 of the Family Code
and Article 222 of the Civil Code are clear that the provisions therein apply to suits
involving "members of the same family" as contemplated under Article 150 of the
Family Code, to wit:

ART. 150. Family relations include those:

(1) Between husband and wife;

(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half blood.

and Article 217 of the Civil Code, to wit:

ART. 217. Family relations shall include those:

(1) Between husband and wife;

(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters.

Petitioner also contends that the trial court committed grave abuse of discretion
when it ruled that petitioner, not being a member of the same family as
respondent, may not invoke the provisions of Article 151 of the Family Code.

Suffice it to say that since the Court has ruled that the requirement under Article
151 of the Family Code is applicable only in cases which are exclusively between or
among members of the same family, it necessarily follows that the same may be
invoked only by a party who is a member of that same family.

WHEREFORE, the instant Petition for Certiorari is DISMISSED for lack of merit.

Costs against petitioner.

SO ORDERED.

Panganiban, C.J., (Chairperson), Ynares-Santiago, Callejo, Sr. and Chico-Nazario,

JJ.,  concur.

FIRST DIVISION
[ G.R. NO. 170829, November 20, 2006 ]
PERLA G. PATRICIO, PETITIONER, VS. MARCELINO G. DARIO
III AND THE HONORABLE COURT OF APPEALS, SECOND
DIVISION, RESPONDENTS.

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to
annul and set aside the Resolution of the Court of Appeals dated December 9,
2005[1] in CA-G.R. CV No. 80680, which dismissed the complaint for partition filed
by petitioner for being contrary to law and evidence.

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

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

extrajudicially settled the estate of Marcelino V. Dario. Accordingly, TCT No. RT-
30731 (175992) was cancelled and TCT No. R-213963 was issued in the names of
petitioner, private respondent and Marcelino Marc.

Thereafter, petitioner and Marcelino Marc formally advised private respondent of

their intention to partition the subject property and terminate the co-ownership.
Private respondent refused to partition the property hence petitioner and Marcelino
Marc instituted an action for partition before the Regional Trial Court of Quezon City
which was docketed as Civil Case No. Q-01-44038 and raffled to Branch 78.

On October 3, 2002,[3] the trial court ordered the partition of the subject property in
the following manner: Perla G. Patricio, 4/6; Marcelino Marc G. Dario, 1/6; and
Marcelino G. Dario III, 1/6. The trial court also ordered the sale of the property by
public auction wherein all parties concerned may put up their bids. In case of
failure, the subject property should be distributed accordingly in the aforestated
manner.[4]

Private respondent filed a motion for reconsideration which was denied by the trial
court on August 11, 2003,[5] hence he appealed before the Court of Appeals, which
denied the same on October 19, 2005. However, upon a motion for reconsideration
filed by private respondent on December 9, 2005, the appellate court partially
reconsidered the October 19, 2005 Decision. In the now assailed Resolution, the
Court of Appeals dismissed the complaint for partition filed by petitioner and
Marcelino Marc for lack of merit. It held that the family home should continue
despite the death of one or both spouses as long as there is a minor beneficiary
thereof. The heirs could not partition the property unless the court found compelling
reasons to rule otherwise. The appellate court also held that the minor son of
private respondent, who is a grandson of spouses Marcelino V. Dario and Perla G.
Patricio, was a minor beneficiary of the family home.[6]

Hence, the instant petition on the following issues:

I.

THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN REVERSING ITS

EARLIER DECISION OF OCTOBER 19, 2005 WHICH AFFIRMED IN TOTO THE
DECISION OF THE TRIAL COURT DATED 03 OCTOBER 2002 GRANTING THE
PARTITION AND SALE BY PUBLIC AUCTION OF THE SUBJECT PROPERTY.

II.

COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN

APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154 OF THE FAMILY CODE ON
FAMILY HOME INSTEAD OF ARTICLE 494 IN RELATION TO ARTICLES 495 AND 498
OF THE NEW CIVIL CODE ON CO-OWNERSHIP.[7]

The sole issue is whether partition of the family home is proper where one of the
co-owners refuse to accede to such partition on the ground that a minor beneficiary
still resides in the said home.

Private respondent claims that the subject property which is the family home duly
constituted by spouses Marcelino and Perla Dario cannot be partitioned while a
minor beneficiary is still living therein namely, his 12-year-old son, who is the
grandson of the decedent. He argues that as long as the minor is living in the
family home, the same continues as such until the beneficiary becomes of age.
Private respondent insists that even after the expiration of ten years from the date
of death of Marcelino on July 5, 1987, i.e., even after July 1997, the subject
property continues to be considered as the family home considering that his minor
son, Marcelino Lorenzo R. Dario IV, who is a beneficiary of the said family home,
still resides in the premises.

On the other hand, petitioner alleges that the subject property remained as a family
home of the surviving heirs of the late Marcelino V. Dario only up to July 5, 1997,
which was the 10th year from the date of death of the decedent. Petitioner argues
that the brothers Marcelino Marc and private respondent Marcelino III were already
of age at the time of the death of their father,[8] hence there is no more minor
beneficiary to speak of.

The family home is a sacred symbol of family love and is the repository of cherished
memories that last during one's lifetime.[9] It is the dwelling house where husband
and wife, or by an unmarried head of a family, reside, including the land on which it
is situated.[10] It is constituted jointly by the husband and the wife or by an
unmarried head of a family.[11] The family home is deemed constituted from the
time it is occupied as a family residence. From the time of its constitution and so
long as any of its beneficiaries actually resides therein, the family home continues
to be such and is exempt from execution, forced sale or attachment except as
hereinafter provided and to the extent of the value allowed by law. [12]
The law explicitly provides that occupancy of the family home either by the owner
thereof or by "any of its beneficiaries" must be actual. That which is "actual" is
something real, or actually existing, as opposed to something merely possible, or to
something which is presumptive or constructive. Actual occupancy, however, need
not be by the owner of the house specifically. Rather, the property may be occupied
by the "beneficiaries" enumerated in Article 154 of the Family Code, which may
include the in-laws where the family home is constituted jointly by the husband and
wife. But the law definitely excludes maids and overseers. They are not the
beneficiaries contemplated by the Code.[13]

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

To be a beneficiary of the family home, three requisites must concur: (1) they must
be among the relationships enumerated in Art. 154 of the Family Code; (2) they
live in the family home; and (3) they are dependent for legal support upon the
head of the family.

Moreover, Article 159 of the Family Code provides that the family home shall
continue despite the death of one or both spouses or of the unmarried head of the
family for a period of 10 years or for as long as there is a minor beneficiary, and
the heirs cannot partition the same unless the court finds compelling reasons
therefor. This rule shall apply regardless of whoever owns the property or
constituted the family home.

Article 159 of the Family Code applies in situations where death occurs to persons
who constituted the family home. Dr. Arturo M. Tolentino comments on the effect of
death of one or both spouses or the unmarried head of a family on the continuing
existence of the family home:

Upon the death of the spouses or the unmarried family head who constituted the
family home, or of the spouse who consented to the constitution of his or her
separate property as family home, the property will remain as family home for ten
years or for as long as there is a minor beneficiary living in it. If there is no more
beneficiary left at the time of death, we believe the family home will be
dissolved or cease, because there is no more reason for its existence. If
there are beneficiaries who survive living in the family home, it will
continue for ten years, unless at the expiration of the ten years, there is
still a minor beneficiary, in which case the family home continues until that
beneficiary becomes of age.

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

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

The family home shall continue to exist despite the death of one or both spouses or
of the unmarried head of the family. Thereafter, the length of its continued
existence is dependent upon whether there is still a minor-beneficiary
residing therein. For as long as there is one beneficiary even if the head of
the family or both spouses are already dead, the family home will continue
to exist (Arts. 153, 159). If there is no minor-beneficiary, it will subsist until
10 years and within this period, the heirs cannot partition the same except
when there are compelling reasons which will justify the partition. This rule
applies regardless of whoever owns the property or who constituted the family
home.[15] (Emphasis supplied)

The rule in Article 159 of the Family Code may thus be expressed in this wise: If
there are beneficiaries who survive and are living in the family home, it will
continue for 10 years, unless at the expiration of 10 years, there is still a minor
beneficiary, in which case the family home continues until that beneficiary becomes
of age.

It may be deduced from the view of Dr. Tolentino that as a general rule, the family
home may be preserved for a minimum of 10 years following the death of the
spouses or the unmarried family head who constituted the family home, or of the
spouse who consented to the constitution of his or her separate property as family
home. After 10 years and a minor beneficiary still lives therein, the family home
shall be preserved only until that minor beneficiary reaches the age of majority. The
intention of the law is to safeguard and protect the interests of the minor
beneficiary until he reaches legal age and would now be capable of supporting
himself. However, three requisites must concur before a minor beneficiary is
entitled to the benefits of Art. 159: (1) the relationship enumerated in Art. 154 of
the Family Code; (2) they live in the family home, and (3) they are dependent for
legal support upon the head of the family.

Thus, the issue for resolution now is whether Marcelino Lorenzo R. Dario IV, the
minor son of private respondent, can be considered as a beneficiary under Article
154 of the Family Code.
As to the first requisite, the beneficiaries of the family home are: (1) The husband
and wife, or an unmarried person who is the head of a family; and (2) Their
parents, ascendants, descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate. The term "descendants" contemplates all descendants of
the person or persons who constituted the family home without distinction; hence,
it must necessarily include the grandchildren and great grandchildren of the
spouses who constitute a family home. Ubi lex non distinguit nec nos distinguire
debemos. Where the law does not distinguish, we should not distinguish. Thus,
private respondent's minor son, who is also the grandchild of deceased Marcelino V.
Dario satisfies the first requisite.

As to the second requisite, minor beneficiaries must be actually living in the family
home to avail of the benefits derived from Art. 159. Marcelino Lorenzo R. Dario IV,
also known as Ino, the son of private respondent and grandson of the decedent
Marcelino V. Dario, has been living in the family home since 1994, or within 10
years from the death of the decedent, hence, he satisfies the second requisite.

However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot demand

support from his paternal grandmother if he has parents who are capable of
supporting him. The liability for legal support falls primarily on Marcelino Lorenzo R.
Dario IV's parents, especially his father, herein private respondent who is the head
of his immediate family. The law first imposes the obligation of legal support upon
the shoulders of the parents, especially the father, and only in their default is the
obligation imposed on the grandparents.

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

grandmother, but from his father. Thus, despite residing in the family home and his
being a descendant of Marcelino V. Dario, Marcelino Lorenzo R. Dario IV cannot be
considered as beneficiary contemplated under Article 154 because he did not fulfill
the third requisite of being dependent on his grandmother for legal support. It is his
father whom he is dependent on legal support, and who must now establish his own
family home separate and distinct from that of his parents, being of legal age.

Legal support, also known as family support, is that which is provided by law,
comprising everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of
the family.[16] Legal support has the following characteristics: (1) It is personal,
based on family ties which bind the obligor and the obligee; (2) It is
intransmissible; (3) It cannot be renounced; (4) It cannot be compromised; (5) It
is free from attachment or execution; (6) It is reciprocal; (7) It is variable in
amount.[17]
Professor Pineda is of the view that grandchildren cannot demand support directly
from their grandparents if they have parents (ascendants of nearest degree) who
are capable of supporting them. This is so because we have to follow the order of
support under Art. 199.[18] We agree with this view.

The reasons behind Art. 199 as explained by Pineda and Tolentino: the closer the
relationship of the relatives, the stronger the tie that binds them. Thus, the
obligation to support under Art. 199 which outlines the order of liability for support
is imposed first upon the shoulders of the closer relatives and only in their default is
the obligation moved to the next nearer relatives and so on.

There is no showing that private respondent is without means to support his son;
neither is there any evidence to prove that petitioner, as the paternal grandmother,
was willing to voluntarily provide for her grandson's legal support. On the contrary,
herein petitioner filed for the partition of the property which shows an intention to
dissolve the family home, since there is no more reason for its existence after the
10-year period ended in 1997.

With this finding, there is no legal impediment to partition the subject property.

The law does not encourage co-ownerships among individuals as oftentimes it

results in inequitable situations such as in the instant case. Co-owners should be
afforded every available opportunity to divide their co-owned property to prevent
these situations from arising.

As we ruled in Santos v. Santos,[19] no co-owner ought to be compelled to stay in a

co-ownership indefinitely, and may insist on partition on the common property at
any time. An action to demand partition is imprescriptible or cannot be barred by
laches. Each co-owner may demand at any time the partition of the common
property.[20]

Since the parties were unable to agree on a partition, the court a quo should have
ordered a partition by commissioners pursuant to Section 3, Rule 69 of the Rules of
Court. Not more than three competent and disinterested persons should be
appointed as commissioners to make the partition, commanding them to set off to
the plaintiff and to each party in interest such part and proportion of the property
as the court shall direct.

When it is made to appear to the commissioners that the real estate, or a portion
thereof, cannot be divided without great prejudice to the interest of the parties, the
court may order it assigned to one of the parties willing to take the same, provided
he pays to the other parties such sum or sums of money as the commissioners
deem equitable, unless one of the parties interested ask that the property be sold
instead of being so assigned, in which case the court shall order the commissioners
to sell the real estate at public sale, and the commissioners shall sell the same
accordingly.[21]

The partition of the subject property should be made in accordance with the rule
embodied in Art. 996 of the Civil Code.[22] Under the law of intestate succession, if
the widow and legitimate children survive, the widow has the same share as that of
each of the children. However, since only one-half of the conjugal proper

FIRST DIVISION
[ G.R. No. 86355, May 31, 1990 ]
JOSE MODEQUILLO, PETITIONER, VS. HON. AUGUSTO V.
BREVA, FRANCISCO SALINAS, FLORIPER ABELLAN-SALINAS,
JUANITO CULAN-CULAN AND DEPUTY SHERIFF FERNANDO
PLATA, RESPONDENTS.

DECISION

GANCAYCO, J.:

The issue in this petition is whether or not a final judgment of the Court of Appeals
in an action for damages may be satisfied by way of execution of a family home
constituted under the Family Code.

The facts are undisputed.

On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R.
CV No. 09218 entitled “Francisco Salinas, et al. vs. Jose Modequillo, et al.,”
the dispositive part of which reads as follows:

“WHEREFORE, the decision under appeal should be, as it is hereby, reversed and

set aside.  Judgment is hereby rendered finding the defendants-
appellees Jose Modequillo and Benito Malubay jointly and severally liable to
plaintiffs-appellants as hereinbelow set forth.  Accordingly, defendants-
appellees are ordered to pay jointly and severally to:
1.     Plaintiffs-appellants, the Salinas spouses:

a.       the amount of P30,000.00 by way of compensation for the death of their

son Audie Salinas;

b.       P10,000.00 for the loss of earnings by reason of the death of

said Audie Salinas;

c.       the sum of P5,000.00 as burial expenses of Audie Salinas; and

d.       the sum of P5,000.00 by way of moral damages.

2.     Plaintiffs-appellants Culan-Culan:

a. the sum of P5,000.00 for hospitalization expenses of Renato Culan-Culan; and

b. P5,000.00 for moral damages.

3.     Both plaintiffs-appellants Salinas and Culan-Culan, P7,000.00 for attorney’s

fees and litigation expenses.

All counterclaims and other claims are hereby dismissed.”[1]

The said judgment having become final and executory, a writ of execution was
issued by the Regional Trial Court of Davao City to satisfy the said judgment on the
goods and chattels of the defendants Jose Modequillo and
Benito Malubay at Malalag, Davao del Sur.

On July 7, 1988, the sheriff levied on a parcel of residential land located

at Poblacion Malalag, Davao del Sur containing an area of 600 square meters with a
market value of P34,550.00 and assessed value of P7,570.00 per Tax Declaration
No. 87-008-01359, registered in the name of Jose Modequillo in the office of the
Provincial Assessor of Davao del Sur; and a parcel of agricultural land located
at Dalagbong, Bulacan, Malalag, Davao del Sur containing an area of 3 hectares
with a market value of P24,130.00 and assessed value of P9,650.00 per Tax
Declaration No. 87-08-01848 registered in the name of Jose Modequillo in the office
of the Provincial Assessor of Davao del Sur.[2]

A motion to quash and/or to set aside levy of execution was filed by defendant
Jose Modequillo alleging therein that the residential land located
at Poblacion Malalag is where the family home is built since 1969 prior to the
commencement of this case and as such is exempt from execution, forced sale or
attachment under Articles 152 and 153 of the Family Code except for liabilities
mentioned in Article 155 thereof; and that the judgment debt sought to be enforced
against the family home of defendant is not one of those enumerated under Article
155 of the Family Code.  As to the agricultural land although it is declared in the
name of defendant it is alleged to be still part of the public land and the transfer in
his favor by the original possessor and applicant who was a member of a cultural
minority was not approved by the proper government agency.  An opposition
thereto was filed by the plaintiffs.

In an order dated August 26, 1988, the trial court denied the motion.  A motion for
reconsideration thereof was filed by defendant and this was denied for lack of merit
on September 2, 1988.

Hence, the herein petition for review on certiorari wherein it is alleged that the trial
court erred and acted in excess of its jurisdiction in denying petitioner’s motion to
quash and/or to set aside levy on the properties and in denying petitioner’s motion
for reconsideration of the order dated August 26, 1988.  Petitioner contends that
only a question of law is involved in this petition.  He asserts that the residential
house and lot was first occupied as his family residence in 1969 and was duly
constituted as a family home under the Family Code which took effect on August 4,
1988.  Thus, petitioner argues that the said residential house and lot is exempt
from payment of the obligation enumerated in Article 155 of the Family Code; and
that the decision in this case pertaining to damages arising from a vehicular
accident took place on March 16, 1976 and which became final in 1988 is not one of
those instances enumerated under Article 155 of the Family Code when the family
home may be levied upon and sold on execution.  It is further alleged that the trial
court erred in holding that the said house and lot became a family home only on
August 4, 1988 when the Family Code became effective, and that the Family Code
cannot be interpreted in such a way that all family residences are deemed to have
been constituted as family homes at the time of their occupancy prior to
the effectivity of the said Code and that they are exempt from execution for the
payment of obligations incurred before the effectivity of said Code; and that it also
erred when it declared that Article 162 of the Family Code does not state that the
provisions of Chapter 2, Title V have a retroactive effect.

Articles 152 and 153 of the Family Code provide as follows:

“Art. 152.  The family home, constituted jointly by the husband and the wife or by
an unmarried head of a family, is the dwelling house where they and their family
reside, and the land on which it is situated.”

“Art. 153.  The family home is deemed constituted on a house and lot from the time
it is occupied as a family residence.  From the time of its constitution and so long as
any of its beneficiaries actually resides therein, the family home continues to be
such and is exempt from execution, forced sale or attachment except as hereinafter
provided and to the extent of the value allowed by law.”

Under the Family Code, a family home is deemed constituted on a house and lot
from the time it is occupied as a family residence.  There is no need to constitute
the same judicially or extrajudicially as required in the Civil Code.  If the family
actually resides in the premises, it is, therefore, a family home as contemplated by
law.  Thus, the creditors should take the necessary precautions to protect their
interest before extending credit to the spouses or head of the family who owns the
home.

Article 155 of the Family Code also provides as follows:

“Art. 155.  The family home shall be exempt from execution, forced sale or
attachment except:

(1)     For nonpayment of taxes;

(2)     For debts incurred prior to the constitution of the family home;

(3)     For debts secured by mortgages on the premises before or after such

constitution; and

(4)     For debts due to laborers, mechanics, architects, builders, materialmen and

others who have rendered service or furnished material for the construction of the
building.”

The exemption provided as aforestated is effective from the time of the constitution
of the family home as such, and lasts so long as any of its beneficiaries actually
resides therein.

In the present case, the residential house and lot of petitioner was not constituted
as a family home whether judicially or extrajudicially under the Civil Code.  It
became a family home by operation of law only under Article 153 of the Family
Code.  It is deemed constituted as a family home upon the effectivity of the Family
Code on August 3, 1988 not August 4, one year after its publication in the Manila
Chronicle on August 4, 1987 (1988 being a leap year).

The contention of petitioner that it should be considered a family home from the
time it was occupied by petitioner and his family in 1969 is not well-taken.  Under
Article 162 of the Family Code, it is provided that “the provisions of this Chapter
shall also govern existing family residences insofar as said provisions are
applicable.” It does not mean that Articles 152 and 153 of said Code have a
retroactive effect such that all existing family residences are deemed to have been
constituted as family homes at the time of their occupation prior to the effectivity of
the Family Code and are exempt from execution for the payment of obligations
incurred before the effectivity of the Family Code.  Article 162 simply means that all
existing family residences at the time of the effectivity of the Family Code, are
considered family homes and are prospectively entitled to the benefits accorded to
a family home under the Family Code.  Article 162 does not state that the
provisions of Chapter 2, Title V have a retroactive effect.

Is the family home of petitioner exempt from execution of the money

judgment aforecited?  No.  The debt or liability which was the basis of the judgment
arose or was incurred at the time of the vehicular accident on March 16, 1976 and
the money judgment arising therefrom was rendered by the appellate court on
January 29, 1988.  Both preceded the effectivity of the Family Code on August 3,
1988.  This case does not fall under the exemptions from execution provided in the
Family Code.

As to the agricultural land subject of the execution, the trial court correctly ruled
that the levy to be made by the sheriff shall be on whatever rights the petitioner
may have on the land.

WHEREFORE, the petition is DISMISSED for lack of merit.  No pronouncement as

to costs.

SO ORDERED.

Narvasa, (Chairman), Cruz, and  Medialdea, JJ.,  concur.

Griño-Aquino, J.,  on leave.

FIRST DIVISION
[ G.R. No. 108532, March 09, 1999 ]
PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG AND
HUSBAND, CILIA T. MORING AND HUSBAND, PETITIONERS,
VS. COURT OF APPEALS AND ABDON GILIG, RESPONDENTS.

DECISION

KAPUNAN, J.:

The issues in this case are not novel: whether or not the conveyance made by way
of the sheriff's sale pursuant to the wit of execution issued by the trial court in Civil
Case No. 590 is prohibited under Sec. 118 of Commonwealth Act No. 141; and
whether or not the family home is exempt from execution.

As a result of a judgment in Civil Case No. 590 (For recovery of property) in favor
of private respondent, two (2) petitioner's properties were levied to satisfy the
judgment amount of about P5,000.00: one was a parcel of land located in Barrio
Igpit, Municipality of Opol, Misamis Oriental with an area of about five (5) hectares,
and the other was the family home also located at Igpit, Opol, Misamis Oriental.
The subject properties were sold at public auction on February 12, 1966 to the
private respondent as the highest bidder. Consequently, after petitioners' failure to
redeem the same, a final deed of conveyance was executed on February 9, 1968,
definitely selling, transferring, and conveying said properties to the private
respondent.

To forestall such conveyance, petitioners filed an action on November 5, 1985

(docketed as Civil Case No. 10407) to declare the deed of conveyance void and to
quiet title over the land with a prayer for a writ of preliminary injunction. In their
complaint, it was alleged that petitioners are the children and heirs of Pablo Taneo
and Narcisa Valaceras who died on February 12, 1977 and September 12, 1984,
respectively. Upon their death, they left the subject property covered by OCT No. P-
12820 and Free Patent No. 548906. Considering that said property has been
acquired through free patent, such property is therefore inalienable and not subject
to any encumbrance for the payment of debt, pursuant to Commonwealth Act. No.
141. Petitioners further alleged that they were in continuous, open and peaceful
possession of the land and that on February 9, 1968, Deputy Provincial Sheriff Jose
V. Yasay issued a Sheriff's Deed of Conveyance in favor of the private respondent
over the subject property including their family home which was extrajudicially
constituted in accordance with law. As a result of the alleged illegal deed of
conveyance, private respondent was able to obtain in his name Tax Declaration No.
851920 over the land, thus casting a cloud of doubt over the title and ownership of
petitioners over said property.

Private respondent refuted petitioners' contentions alleging that he lawfully

acquired the subject properties described as Lot No. 5545, Cad. 237 which was a
private land, by virtue of a Sheriff's Sale on February 12, 1966. Said sale has
become final as no redemption was made within one year from the registration of
the Sheriff's Certificate of Sale. The validity of the sale in favor of Abdon Gilig was
even confirmed by the Court of appeals in a related case (CA No. 499965-R)
entitled "Arriola v. Gilig," where one Rufino Arriola also claimed ownership over the
subject property.

Private respondent averred that the subject land was originally owned by Lazaro
Ba-a who sold the land to Pablo Taneo on September 18, 1941, as evidenced by an
Escritura de Venta. Despite it being a private land, Pablo Taneo filed an application
for free patent which was made final only in 1979.

As counterclaim, private respondent alleged that since petitioners are still in

possession of the subject property, he has been deprived of acts of ownership and
possession and therefore, prayed for payment of rentals from February, 1968 until
possession has been restored to them.

In its decision of March 27, 1989, the RTC dismissed the complaint.

The dispositive portion thereof reads as follows:

Premises considered, Judgment is hereby rendered in favor of the defendant and
against the plaintiffs, ordering the dismissal of the complaint filed by the plaintiffs;

a) Declaring OCT No P-12820 and Free Patent No. 548906 both in name of Pablo Taneo as
null and void and directing the Register of Deeds to cancel the same, without prejudice
however on the part of the defendant to institute legal proceedings for the transfer of the
 said title in the name of defendant Abdon Gilig;
 
b) Declaring Abdon Gilig as the absolute and legal owner of the land covered by OCT No. P-
12820, and covered by Tax Declaration No. 851920, and hence entitled to the possession of
the same and as a necessary concomitant, admonishing the plaintiffs to refrain from
disturbing the peaceful possession of the defendant over the land in question;
 
c) Likewise declaring the defendant Abdon Gilig as the true and absolute owner of the house
in question formerly declared under Tax Declaration No. 4142 in the name of Pablo Taneo
and presently declared under Tax Declaration No. 851916 in the name of Abdon Gilig;
ordering the plaintiffs or any of their representatives to vacate and return the possession of
the same to defendant Abdon Gilig;
 
d) Ordering the plaintiffs, except the nominal parties herein, to pay to defendant Abdon Gilig
the amount of P500.00 a month as reasonable rental of the house in question to be reckoned
from February 9, 1968 until the possession of the same is returned to the defendant.
 
e) To pay to defendant the amount of P5,000.00 as attorney's fees and to pay the costs.

SO ORDERED.[1]
On appeal, the Court of Appeals affirmed in toto the decision of the RTC.

Hence, this petition.

The petition is devoid of merit.

In resolving the issues, the lower court made the following findings of fact which
this Court finds no cogent reason to disturb:

1. That the land in question originally belonged to Lazaro Ba-a who sold the
same to the late Pablito (sic) Taneo father of the herein plaintiff on
September 18, 1941, by virtue of an Escritura de Venta identified as Reg.
Not. 50; pages 53, Foleo Not. V, Series of 1941 of the Notarial Register of
Ernie Pelaez (Exh. 10);

2. That on July 19, 1951 Abdon Gilig with his wife filed a Civil Case No. 590 for
recovery of property against Pablo Taneo, et al., wherein Judgment was
rendered on June 24, 1964, in favor of Abdon Gilig and against Pablo Taneo
ordering the latter to pay damages in the amount of P5,000.00 (Exh. 2);

3. That by virtue of said decision, a writ of Execution was issued on November

22, 1965 against the properties of Pablo Taneo and on December 1, 1965, a
Notice of Levy was executed by the Clerk of Court Pedro Perez wherein the
properties in question were among the properties levied by the Sheriff (Exh.
3);

4. That the said properties were sold at public auction wherein the defendant
Abdon Gilig came out as the highest bidder and on February 12, 1965, a
 Sheriff's Certificate of Sale was executed by Ex-Oficio Provincial Sheriff Pedro
Perez (Exh. 1) ceding the said properties in favor of Abdon Gilig and which
Certificate of Sale was registered with the Register of Deeds of March 2,
1966;

5. That for failure to redeem the said property within the reglementary period, a
Sheriff's final Deed of Conveyance was executed by same Provincial Sheriff
Jose V. Yasay on February 1968, (Exhs. 4, 4-A) conveying the property
definitely to Abdon Gilig.

6. That on April 20, 1966, after his third-party claim which he filed with the
Sheriff in Civil Case No. 590 was not given due course, Rufino Arriola filed
Civil Case No. 2667 entitled Arriola vs. Abdon Gilig, et al., for Recovery of
Property and/or annulment of Sale with Damages;

7. That Judgment was rendered by the Court thru Judge Bernardo Teves
dismissing the case with costs on February 21, 1969;

8. That said decision was appealed to the Court of Appeals which affirmed the
decision in toto on June 20, 1979; declaring the alleged Deed of Sale
executed by Abdon Gilig in favor of the plaintiff as null and void for being
simulated or fictitious and executed in fraud or (sic) creditors;

9. That on March 7, 1964, Pablo Taneo constituted the house in question

erected on the land of Plutarco Vacalares as a family home (Exh. F) but was
however, notarized only on May 2, 1965 and registered with the Register of
Deeds on June 24, 1966;

10. That in the meanwhile, unknown to the defendant, Pablo Taneo

applied for a free patent on the land in question which was approved on
October 13, 1973, (Exh. B) and the Patent and Title issued on December 10,
1980 (Oct No. P-12820-Exh. 12);

11. On November 3, 1985, the plaintiff filed the present action. [2]

Petitioners contend that under Section 118 of Commonwealth Act No. 141, the
subject land which they inherited from their father under free patent cannot be
alienated or encumbered in violation of the law. Citing in particular the cases
of Oliveros v. Porciongcola[3] and Gonzaga v. Court of Appeals,[4] the execution or
auction sale of the litigated land falls within the prohibited period and is, likewise, a
disavowal of the rationale of the law which is to give the homesteader or patentee
every chance to preserve for himself and his family the land which the State had
gratuitously given to him as a reward for his labor in cleaning and cultivating it. [5]

We are not unmindful of the intent of the law. In fact, in Republic v. Court of
Appeals,[6] the Court elucidated, to wit:
It is well-known that the homestead laws were designed to distribute disposable
agricultural lots of the State to land-destitute citizens for their home and
cultivation. Pursuant to such benevolent intention the State prohibits the sale or
encumbrance of the homestead (Section 116) within five years after the grant of
the patent. After that five-year period the law impliedly permits alienation of the
homestead; but in line with the primordial purpose to favor the homesteader and
his family the statute provides that such alienation or conveyance (Section 117)
shall be subject to the right of repurchase by the homesteader, his widow or heirs
within five years. This Section 117 is undoubtedly a complement of Section 116. It
aims to preserve and keep in the family of the homesteader that portion of public
land which the State had gratuitously given to him. It would, therefore, be in
keeping with this fundamental idea to hold, as we hold, that the right to repurchase
exists not only when the original homesteader makes the conveyance, but also
when it is made by his widow or heirs. This construction is clearly deducible from
the terms of the statute.
The intent of the law is undisputable but under the facts of the case, the prohibition
invoked by the petitioners under Section 118 does not apply to them.

Section 118 of Commonwealth Act No. 141 reads:

Except in favor of the Government or any of its branches, units or institutions, or
legally constituted banking corporations, lands acquired under free patent or
homestead provisions shall not be subject to encumbrance or alienation from the
date of the approval of the application and for a term of five years from and after
the date of issuance of the patent or grant, nor shall they become liable to the
satisfaction of any debt contracted prior to the expiration of said period, but the
improvements or crops on the land may be mortgaged or pledged to qualified
persons, associations, or corporations.
x x x.

The prohibition against alienation of lands acquired by homestead or free patent

commences on the date of the approval of the application for free patent and the
five-year period is counted from the issuance of the patent. The reckoning point is
actually the date of approval of the application. In Amper v. Presiding Judge,[7] the
Court held that:
x x x The date when the prohibition against the alienation of lands acquired by
homesteads or free patents commences is "the date of the approval of the
application" and the prohibition embraces the entire five-year period "from and
after the date of issuance of the patent or grant." As stated in Beniga v. Bugas, (35
SCRA 111), the provision would make no sense if the prohibition starting "from the
date of the approval of the application" would have no termination date.

The specific period of five years within which the alienation or encumbrance of a
homestead is restricted starts to be computed from the date of the issuance of the
patent. But the prohibition of alienation commences from the date the application is
approved which comes earlier. (Underlining ours.)
Following this ruling, we agree with the respondent court that the conveyance made
by way of the sheriff's sale was not violative of the law. The judgment obligation of
the petitioners against Abdon Gilig arose on June 24, 1964. The properties were
levied and sold at public auction with Abdon Gilig as the highest bidder on February
12, 1966. On February 9, 1968, the final deed of conveyance ceding the subject
property to Abdon Gilig was issued after the petitioners failed to redeem the
property after the reglementary period. Pablo Taneo's application for free patent
was approved only on October 19, 1973.

The sequence of the events leads us to the inescapable conclusion that even before
the application for homestead had been approved, Pablo Taneo was no longer the
owner of the land. The Deed of conveyance issued on February 9, 1968 finally
transferred the property to Abdon Gilig. As of that date, Pablo Taneo did not
actually have anymore rights over the land which he could have transferred to
herein petitioners. The petitioners are not the owners of the land and cannot claim
to be such by invoking Commonwealth Act No. 141. The prohibition does not apply
since it is clear from the records that the judgment debt and the execution sale
took place prior to the approval of the application for free patent. We quote with
favor the respondent court's valid observation on the matter:
x x x the application of Pablo Taneo for a free patent was approved only on 19
October 1973 and Free Patent was issued on 10 December 1980. Under the
aforecited provision, the subject land could not be made liable for the satisfaction of
any debt contracted from the time of the application and during the 5-year period
following 10 December 1980, or until 10 December 1985. However, debts
contracted prior to the approval of the application for free patent, that is prior to 18
October 1973, are not covered by the prohibition. This is because they do not fall
within the scope of the prohibited period. In this case, the judgment debt in favor
of defendant-appellee was rendered on 24 June 1964, the writ of execution issued
on 22 November 1965, notice of levy made on 1 December 1965, the execution
sale held on 12 February 1966, and the certificate of sale registered on 2 March
1966, all before Pablo Taneo's application for free patent was approved on 19
October 1973. The execution, therefore, was not violative of the law. [8]
Anent the second issue, petitioners aver that the house which their father
constituted as family home is exempt from execution. In a last ditch effort to save
their property, petitioners invoke the benefits accorded to the family home under
the Family Code.

A family home is the dwelling place of a person and his family. It is said, however,
that the family home is a real right, which is gratuitous, inalienable and free from
attachment, constituted over the dwelling place and the land on which it is situated,
which confers upon a particular family the right to enjoy such properties, which
must remain with the person constituting it and his heirs.[9] It cannot be seized by
creditors except in certain special cases.

Under the Civil Code (Articles 224 to 251), a family home may be constituted
judicially and extrajudicially, the former by the filing of the petition and with the
approval of the proper court, and the latter by the recording of a public instrument
in the proper registry of property declaring the establishment of the family home.
The operative act then which created the family home extrajudicially was the
registration in the Registry of Property of the declaration prescribed by Articles 240
and 241 of the Civil Code.[10]

Under the Family Code, however, registration was no longer necessary. Article 153
of the Family Code provides that the family home is deemed constituted on a house
and lot from the time it is occupied in the family residence. It reads:
The family home is deemed constituted on a house and lot from the time it is
occupied as family residence. From the time of its constitution and so long as its
beneficiaries actually resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment, except as hereinafter provided
and to the extent of the value allowed by law.
It is under the foregoing provision which petitioners seek refuge to avert execution
of the family home arguing that as early as 1964, Pablo Taneo had already
constituted the house in question as their family home. However, the retroactive
effect of the Family Code, particularly on the provisions on the family home has
been clearly laid down by the court as explained in the case of Manacop v. Court of
Appeals[11] to wit:
Finally, the petitioner insists that the attached property is a family home, having
been occupied by him and his family since 1972, and is therefore exempt from
attachment.

The contention is not well-taken.

While Article 153 of the Family Code provides that the family home is deemed
constituted on a house and lot from the time it is occupied as a family residence, it
does not mean that said article has a retroactive effect such that all existing family
residences, petitioner's included, are deemed to have been constituted as family
homes at the time of their occupation prior to the effectivity of the Family Code and
henceforth, are exempt from execution for the payment of obligations incurred
before the effectivity of the Family Code on August 3, 1988 (Modequillo vs. Breva,
185 SCRA 766). Neither does Article 162 of said Code state that the provisions of
Chapter 2, Title V thereof have retroactive effect. It simply means that all existing
family residences at the time of the effectivity of the Family Code are considered
family homes and are prospectively entitled to the benefits accorded to a family
home under the Family Code (Modequillo vs. Breva, supra). Since petitioner's debt
was incurred as early as November 25, 1987, it preceded the effectivity of the
Family Code. His property is therefore not exempt from attachment (Annex "O,"
Plaintiff's Position Paper and Memorandum of Authorities, p. 78)." (pp. 5-6,
Decision; pp. 64-65, Rollo) (underscoring ours)
The applicable law, therefore, in the case at bar is still the Civil Code where
registration of the declaration of a family home is a prerequisite. Nonetheless, the
law provides certain instances where the family home is not exempted from
execution, forced sale or attachment.

Article 243 reads:

The family home extrajudicially formed shall be exempt from execution, forced sale
or attachment, except:

(1) For nonpayment of taxes;

(2) For debts incurred before the declaration was recorded in the Registry of
Property;
(3) For debts secured by mortgages on the premises before or after such record of
the declaration;

(4) For debts due to laborers, mechanics, architects, builders, material-men and
others who have rendered service or furnished material for the construction of the
building.[12]
The trial court found that on March 7, 1964, Pablo Taneo constituted the house in
question, erected on the land of Plutarco Vacalares, as the family home. The
instrument constituting the family home was registered only on January 24, 1966.
The money judgment against Pablo Taneo was rendered on January 24, 1964.
Thus, at that time when the "debt" was incurred, the family home was not yet
constituted or even registered. Clearly, petitioners' alleged family home, as
constituted by their father is not exempt as it falls under the exception of Article
243(2).

Moreover, the constitution of the family home by Pablo Taneo is even doubtful
considering that such constitution did not comply with the requirements of the law.
The trial court found that the house was erected not on the land which the Taneos
owned but on the land of one Plutarco Vacalares. By the very definition of the law
that the "family home is the dwelling house where a person and his family
resides and the land on which it is situated,"[13] it is understood that the house
should be constructed on a land not belonging to another. Apparently, the
constitution of a family home by Pablo Taneo in the instant case was merely an
afterthought in order to escape execution of their property but to no avail.

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Melo, and Pardo, JJ., concur.

THIRD DIVISION
[ G.R. No. 180587, March 20, 2009 ]
SIMEON CABANG, VIRGINIA CABANG AND VENANCIO
CABANG ALIAS "DONDON", PETITIONERS, VS. MR. & MRS.
GUILLERMO BASAY, RESPONDENTS.

DECISION
YNARES-SANTIAGO, J.:

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

The facts as summarized by the appellate court:

Deceased Felix Odong was the registered owner of Lot No. 7777, Ts- 222 located in
Molave, Zamboanga del Sur. Said lot was covered by Original Certificate of Title No.
0-2,768 pursuant to Decree No. N-64 and issued on March 9, 1966.  However, Felix
Odong and his heirs never occupied nor took possession of the lot.

On June 16, 1987, plaintiff-appellants bought said real property from the heirs of
Felix Odong for P8,000.00.  Consequently, OCT No. 0-2,768 was cancelled and in
its stead, Transfer Certificate of Title No. T-22,048 was issued on August 6, 1987 in
the name of plaintiff-appellants.  The latter also did not occupy the said property.

Defendant-appellees, on the other hand, had been in continuous, open, peaceful

and adverse possession of the same parcel of land since 1956 up to the present. 
They were the awardees in the cadastral proceedings of Lot No. 7778 of the Molave
Townsite, Ts-222.  During the said cadastral proceedings, defendant-appellees
claimed Lot No. 7778 on the belief that the area they were actually occupying was
Lot No. 7778.  As it turned out, however, when the Municipality of Molave relocated
the townsite lots in the area in 1992 as a big portion of Lot No. 7778 was used by
the government as a public road and as there were many discrepancies in the areas
occupied, it was then discovered that defendant-appellees were actually occupying
Lot No. 7777.

On June 23, 1992, plaintiff-appellants filed a Complaint docketed as Civil Case No.
92-20-127 for Recovery of Property against defendant-appellees.

On July 19, 1996, the trial court rendered its decision, the dispositive portion of
which reads, thus:

WHEREFORE, judgment is hereby rendered in favor of the defendants and against

the plaintiff -

1. Holding that the rights of the plaintiffs to recover the land registered in their
names, have been effectively barred by laches; and

2. Ordering the dismissal of the above-entitled case.

No pronouncement as to cost.

SO ORDERED.
Aggrieved, plaintiff-appellants filed an appeal before the Court of Appeals assailing
the above-decision.  Said appeal was docketed as CA-G.R. CV No. 55207.

On December 23, 1998, the Court of Appeals, through the then Second Division,
rendered a Decision reversing the assailed decision and decreed as follows:
WHEREFORE, the judgment herein appealed from is hereby REVERSED, and
judgment is hereby rendered declaring the plaintiffs-appellants to be entitled to the
possession of Lot No. 7777 of the Molave Townsite, subject to the rights of the
defendants-appellees under Article (sic) 448, 546, 547 and 548 of the New Civil
Code.

The records of this case are hereby ordered remanded to the court of origin for
further proceedings to determine the rights of the defendants-appellees under the
aforesaid article (sic) of the New Civil Code, and to render judgment thereon in
accordance with the evidence and this decision.

No pronouncement as to costs.

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

Subsequently, or on February 15, 2000, the Supreme Court Resolution had become
final and executory.

Consequently, the case was remanded to the court a quo and the latter
commissioned the Municipal Assessor of Molave, Zamboanga del Sur to determine
the value of the improvements introduced by the defendant-appellees.

The Commissioner's Report determined that at the time of ocular inspection, there
were three (3) residential buildings constructed on the property in litigation.  During
the ocular inspection, plaintiff-appellants' son, Gil Basay, defendant-appellee
Virginia Cabang, and one Bernardo Mendez, an occupant of the lot, were present. 
In the report, the following appraised value of the improvements were determined,
thus:

Owner Lot No. Area (sq.m.) Improvement Appraised Value

         
Virginia Cabang 7777 32.55 Building P21,580.65
Jovencio Capuno 7777 15.75 Building 18,663.75
Amelito Mata 7777 14.00 Building 5,658.10
      Toilet 1,500.00
      Plants & Trees 2,164.00
    TOTAL   P49,566.50

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

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

1. That on September 18, 2001, the undersigned had conducted verification

survey of Lot 7777, Ts-222 and the adjacent lots for reference purposes-with
both parties present on the survey;

2. That the survey was started from BLLM #34, as directed by the Order, taking
sideshots of lot corners, existing concrete fence, road and going back to
BLLM #34, a point of reference;

3. Considering that there was only one BLLM existing on the ground, the
undersigned conducted astronomical observation on December 27, 2001 in
order to check the carried Azimuth of the traverse;

4. That per result of the survey conducted, it was found out and ascertained
that the area occupied by Mrs. Virginia Cabang is a portion of Lot 7777, with
lot assignment to be known as Lot 7777-A with an area of 303 square meters
and portion of Lot 7778 with lot assignment to be known as Lot 7778-A with
an area of 76 square meters.  On the same lot, portion of which is also
occupied by Mr. Bernardo Mendez with lot assignment to be known as Lot
7777-B with an area of 236 square meters and Lot 7778-B with an area of
243 square meters as shown on the attached sketch for ready reference;

5. That there were three (3) houses made of light material erected inside Lot
No. 7777-A, which is owned by Mrs. Virginia Cabang and also a concrete
house erected both on portion of Lot No. 7777-B and Lot No. 7778-B, which
is owned by Mr. Bernardo Mendez. x x x;

6. That the existing road had been traversing on a portion of Lot 7778 to be
know (sic) as Lot 7778-CA-G.R. SP No. with an area of 116 square meters as
shown on attached sketch plan.

During the hearing on May 10, 2002, plaintiff-appellants' offer to pay P21,000.00
for the improvement of the lot in question was rejected by defendant-appellees. 
The court a quo disclosed its difficulty in resolving whether or not the houses may
be subject of an order of execution it being a family home.
On June 18, 2002, plaintiff-appellants filed their Manifestation and Motion for
Execution alleging therein that defendant-appellees refused to accept payment of
the improvements as determined by the court appointed Commissioner, thus, they
should now be ordered to remove said improvements at their expense or if they
refused, an Order of Demolition be issued.

On September 6, 2002, the court a quo issued the herein assailed Order denying
the motion for execution.[4]

Respondents thereafter elevated their cause to the appellate court which reversed
the trial court in its May 31, 2007 Decision in CA-G.R. CV No. 76755.  Petitioners'
Motion for Reconsideration was denied by the Court of Appeals in its
Resolution[5] dated September 21, 2007.
Hence, this petition.

Petitioners insist that the property subject of the controversy is a duly constituted
family home which is not subject to execution, thus, they argue that the appellate
tribunal erred in reversing the judgment of the trial court.

The petition lacks merit.

It bears stressing that the purpose for which the records of the case were
remanded to the court of origin was for the enforcement of the appellate court's
final and executory judgment[6] in CA-G.R. CV No. 55207 which, among others,
declared herein respondents entitled to the possession of Lot No. 7777 of the
Molave Townsite subject to the provisions of Articles 448,[7] 546,[8] 547[9] an
548[10] of the Civil Code.  Indeed, the decision explicitly decreed that the remand of
the records of the case was for the court of origin "[t]o determine the rights of
the defendants-appellees under the aforesaid article[s] of the New Civil
Code, and to render judgment thereon  in accordance with the evidence  and
this decision."

A final and executory judgment may no longer be modified in any respect, even if

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

Well-settled is the rule that there can be no execution until and unless the
judgment has become final and executory, i.e. the period of appeal has lapsed
without an appeal having been taken, or, having been taken, the appeal has been
resolved and the records of the case have been returned to the court of origin, in
which event, execution shall issue as a matter of right. [13]  In short, once a
judgment becomes final, the winning party is entitled to a writ of execution and the
issuance thereof becomes a court's ministerial duty.[14]

Furthermore, as a matter of settled legal principle, a writ of execution must

adhere to every essential particulars of the judgment sought to be
executed.[15]  An order of execution may not vary or go beyond the terns of the
judgment it seeks to enforce.[16]  A writ of execution must conform to the
judgment and if it is different from, goes beyond or varies the tenor of the
judgment which gives it life, it is a nullity.[17]  Otherwise stated, when the order of
execution and the corresponding writ issued pursuant thereto is not in harmony
with and exceeds the judgment which gives it life, they have pro tanto no
validity[18] - to maintain otherwise would be to ignore the constitutional provision
against depriving a person of his property without due process of law. [19]

As aptly pointed out by the appellate court, from the inception of Civil Case No. 99-
20-127, it was already of judicial notice that the improvements introduced
by petitioners on the litigated property are residential houses  not family
homes. Belatedly interposing such an extraneous issue at such a late stage of the
proceeding is tantamount to interfering with and varying the terms of the final and
executory judgment and a violation of respondents' right to due process because -
As a general rule, points of law, theories and issues not brought to the attention of
the trial court cannot be raised for the first time on appeal. For a contrary rule
would be unfair to the adverse party who would have no opportunity to present
further evidence material to the new theory, which it could have done had it been
aware of if at the time of the hearing before the trial court. [20]
 The refusal, therefore, of the trial court to enforce the execution on the ground
that the improvements introduced on the litigated property are family homes goes
beyond the pale of what it had been expressly tasked to do, i.e. its ministerial  duty
of executing the judgment in accordance with its essential particulars.  The
foregoing factual, legal and jurisprudential scenario reduces the raising of the issue
of whether or not the improvements introduced by petitioners are family homes
into a mere afterthought.

Even squarely addressing the issue of whether or not the improvements introduced
by petitioners on the subject land are family homes will not extricate them from
their predicament.

As defined, "[T]he family home is a sacred symbol of family love and is the
repository of cherished memories that last during one's lifetime. [21]  It is the
dwelling house where the husband and wife, or an unmarried head of a family
reside, including the land on which it is situated.[22]  It is constituted jointly by the
husband and the wife or by an unmarried head of a family." [23] Article 153 of the
Family Code provides that -
The family home is deemed constituted from the time it is occupied as a family
residence. From the time of its constitution and so long as any of its beneficiaries
actually resides therein, the family home continues to be such and is exempt from
execution, forced sale or attachment except as hereinafter provided and to the
extent of the value allowed by law.
The actual value of the family home shall not exceed, at the time of its constitution,
the amount of P300,000.00 in urban areas and P200,000.00 in rural areas. [24] 
Under the afore-quoted provision, a family home is deemed constituted on a house
and a lot from the time it is occupied as a family residence.  There is no need to
constitute the same judicially or extra-judicially. [25]

There can be no question that a family home is generally exempt from execution,
[26]
 provided it was duly constituted as such.  It is likewise a given that the family
home must be constituted on property owned by the persons constituting it. 
Indeed as pointed out in Kelley, Jr. v. Planters Products, Inc.[27]  "[T]he family home
must be part of the properties of the absolute community or the conjugal
partnership, or of the exclusive properties of either spouse with the latter's consent,
or on the property of the unmarried head of the family." [28]  In other words:
The family home must be established on the properties of (a) the absolute
community, or (b) the conjugal partnership, or (c) the exclusive property of either
spouse with the consent of the other. It cannot be established on property
held in co-ownership with third persons. However, it can be established partly
on community property, or conjugal property and partly on the exclusive property
of either spouse with the consent of the latter.

If constituted by an unmarried head of a family, where there is no communal or

conjugal property existing, it can be constituted only on his or her own property.
[29]
 (Emphasis and italics supplied)
Therein lies the fatal flaw in the postulate of petitioners.  For all their arguments to
the contrary, the stark and immutable fact is that the property on which their
alleged family home stands is owned by respondents and the question of
ownership had been long laid to rest with the finality of the appellate court's
judgment in CA-G.R. CV No. 55207.  Thus, petitioners' continued stay on the
subject land is only by mere tolerance of respondents.

All told, it is too late in the day for petitioners to raise this issue. Without doubt, the
instant case where the family home issue has been vigorously pursued by
petitioners is but a clear-cut ploy meant to forestall the enforcement of an
otherwise final and executory decision.  The execution of a final judgment is a
matter of right on the part of the prevailing party whose implementation
is mandatory and ministerial on the court or tribunal issuing the judgment.[30]

The most important phase of any proceeding is the execution of judgment. [31]  Once
a judgment becomes final, the prevailing party should not, through some clever
maneuvers devised by an unsporting loser, be deprived of the fruits of the verdict.
[32]
  An unjustified delay in the enforcement of a judgment sets at naught the role of
courts in disposing of justiciable controversies with finality. [33]  Furthermore, a
judgment if not executed would just be an empty victory for the prevailing party
because execution is the fruit and end of the suit and very aptly called the life of
the law.[34]

The issue is moreover factual and, to repeat that trite refrain, the Supreme Court is
not a trier of facts.  It is not the function of the Court to review, examine and
evaluate or weigh the probative value of the evidence presented.  A question of fact
would arise in such event.  Questions of fact cannot be raised in an appeal
via certiorari  before the Supreme Court and are not proper for its consideration. [35] 
The rationale behind this doctrine is that a review of the findings of fact of the
appellate tribunal is not a function this Court normally undertakes.  The Court will
not weigh the evidence all over again unless there is a showing that the findings of
the lower court are totally devoid of support or are clearly erroneous so as to
constitute serious abuse of discretion.[36]  Although there are recognized
exceptions[37] to this rule, none exists in this case to justify a departure therefrom.

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

SO ORDERED.

Austria-Martinez, Tinga*, Nachura, and Peralta, JJ., concur.

FIRST DIVISION
[ G.R. No. 186322, July 08, 2015 ]
ENRICO S. EULOGIO AND NATIVIDAD V. EULOGIO,
PETITIONERS, VS. PATERNO C. BELL, SR., ROGELIA
CALINGASAN-BELL, PATERNO WILLIAM BELL, JR., FLORENCE
FELICIA VICTORIA BELL, PATERNO FERDINAND BELL III,
AND PATERNO BENERAÑO BELL IV, RESPONDENTS.

DECISION

SERENO, C.J.:

This is a Petition for Review on Certiorari assailing the Court of Appeals (CA)

Decision[1] in CA-G.R. SP No. 87531 which granted the Petition for Certiorari filed by
respondents and enjoined the execution sale of their family home for the
satisfaction of the money judgment awarded to petitioners in Civil Case No. 4581,
and the Resolution[2] which denied petitioners' Motion for Reconsideration.

Antecedent Facts
Respondents Paterno William Bell, Jr., Florence Felicia Victoria Bell, Paterno
Ferdinand Bell III, and Paterno Benerano IV (the Bell siblings) are the unmarried
children of respondent Spouses Paterno C. Bell and Rogelia Calingasan-Bell
(Spouses Bell). In 1995, the Bell siblings lodged a Complaint for annulment of
documents, reconveyance, quieting of title and damages against petitioners Enrico
S. Eulogio and Natividad Eulogio (the Eulogios). It was docketed as Civil Case No.
4581 at the Regional Trial Court (RTC) of Batangas City, Branch 84. The Complaint
sought the annulment of the contract of sale executed by Spouses Bell over their
329-square-meter residential house and lot, as well as the cancellation of the title
obtained by petitioners by virtue of the Deed.

The RTC granted respondents' prayers, but declared Spouses Bell liable to
petitioners in the amount of PI million plus 12% interest per annum. The dispositive
portion of the Decision dated 15 July 1998 reads as follows:

WHEREFORE, prescinding from all the foregoing, the Court hereby declares:

1. That the sale of the subject house and lot under Deed of Sale marked as Exhibit
"F" is only an equitable mortgage in favor of the defendants Enrico Eulogio and
Natividad Eulogio. However, the mortgage cannot bind the property in question for
being violative of Chapter 2, Title 4 of the Family Code, its encumbrance not having
been consented to in writing by a majority of the beneficiaries who are the plaintiffs
herein;

2. The said equitable mortgage is deemed to be an unsecured mortgage [sic] for

which the Spouses Paterno C. Bell, Sr. and Rogelia Calingasan Bell as mortgagors
are liable to the defendants-spouses Enrico Eulogio and Natividad Eulogio in the
amount of P1,000,000 plus interest of 12% per annum. However, under the Fourth
Party Complaint Sps. Paterno C. Bell, Sr. and Rogelia Calingasan Bell have the right
of reimbursement from fourth party defendants Nicolas Moraña and Julieta Moraña
for whom their loan of P1,000,000 was secured by Sps. Paterno C. Bell, Sr. and
Rogelia Calingasan Bell. Accordingly, the fourth party defendants Nicolas Moraña
and Julieta Moraña are hereby ordered to reimburse Paterno C. Bell, Sr. and Rogelia
Calingasan Bell the loan of P1,000,000 plus interest of 12% per annum to be paid
by the latter to defendants Enrico and Natividad Eulogio;

3. The house and lot in question is free from any and all encumbrances by virtue of
said equitable mortgage or the purported sale; and

4. The Deed of Sale (Exhibit "F") is null and void for being contrary to law and
public policy.
Accordingly, (1) the Register of Deeds of Batangas City is hereby ordered to cancel
Transfer Certificate of Title No. T-131472 in the name of defendants Enrico S.
Eulogio and Natividad Eulogio and to reconstitute (sic) Transfer Certificate of Title
No. RT-680-(5997) as "family home" of the plaintiffs Florence Felicia Victoria C.
Bell, Paterno William C. Bell Jr., Paterno Ferdinand C. Bell III, Paterno Benerano C.
Bell IV and fourth party plaintiffs Paterno C. Bell Sr. and Rogelia Calingasan Bell; or
in the alternative to issue a new Transfer Certificate of Title under the same tenor;

2. The City Assessor of Batangas City is hereby directed to issue a tax declaration
covering the said subject property as family home for the said plaintiffs and fourth
party plaintiffs Paterno C. Bell and Rogelia Calingasan Bell; and

3. Defendants Enrico Eulogio and Natividad Eulogio are ordered to pay the plaintiffs
attorney's fees and litigation expenses of P35,000.00, as the plaintiffs have been
compelled to litigate to protect their property rights, and costs. [3]

Both petitioners and respondents appealed to the CA, but the trial court's Decision
was affirmed en toto. Spouses Bell later brought the case to this Court to question
their liability to petitioners in the amount of P1 million plus interest. The Court,
however, dismissed their Petition for failure to show any reversible error committed
by the CA.[4] Thereafter, entry of judgment was made.[5]

On 9 June 2004 the RTC issued a Writ of Execution, as a result of which

respondents' property covered by the newly reconstituted Transfer Certificate of
Title (TCT) No. 54208 [formerly RT-680 (5997)] was levied on execution. Upon
motion by respondents, the trial court, on 31 August 2004, ordered the lifting of the
writ of execution on the ground that the property was a family home.[6]

Petitioners filed a Motion for Reconsideration of the lifting of the writ of execution.
Invoking Article 160 of the Family Code, they posited that the current market value
of the property exceeded the statutory limit of P300,000 considering that it was
located in a commercial area, and that Spouses Bell had even sold it to them for P1
million.[7]

The RTC, on 13 October 2004, set the case for hearing to determine the present
value of the family home of respondents. It also appointed a Board of Appraisers to
conduct a study on the prevailing market value of their house and lot. [8]

Respondents sought reconsideration of the above directives and asked the RTC to
cite petitioners for contempt because of forum-shopping. [9] They argued that
petitioners' bid to determine the present value of the subject property was just a
ploy to re-litigate an issue that had long been settled with finality.

The RTC, however, denied the Motion for Reconsideration [10] of respondents and
directed the commissioners to canvass prospective buyers of their house and lot. [11]

On 23 November 2004, respondents filed a Petition for Certiorari and Injunction

before the CA,[12] where it was docketed as CA-G.R. SP No. 87531.

Subsequently, the RTC issued on 25 November 2004 an Order [13] dispensing with

the valuation report of the commissioners and directing the issuance of a writ of
execution. Consequently, respondents filed before the CA a Supplemental Petition
with an urgent prayer for a temporary restraining order. [14]

The CA eventually enjoined[15] the execution sale set on 22 December 2004[16] by

the RTC.

On 31 July 2008, the CA rendered its Decision granting respondents' Petition

for Certiorari, but it rejected their theory that res judicata had already set in.

The appellate court ruled that the RTC Decision, which had become final and
executory, only declared respondents' house and lot as a family home. Since the
issue of whether it may be sold in execution was incidental to the execution of the
aforesaid Decision, there was as yet no res judicata.

Still, the CA found that the trial court committed grave abuse of discretion in
ordering the execution sale of the subject family home after finding that its present
value exceeded the statutory limit. The basis for the valuation of a family home
under Article 160, according to the appellate court, is its actual value at the time of
its constitution and not the market/present value; therefore, the trial court's order
was contrary to law.[17]

On 09 February 2009,[18] the CA denied petitioners' Motion for Reconsideration.

Hence, this Petition.

Issues

The issues to be resolved are: (1) whether petitioners are guilty of forum-shopping;
(2) whether a hearing to determine the value of respondents' family home for
purposes of execution under Article 160 of the Family Code is barred under the
principle of res judicata; and (3) whether respondents' family home may be sold on
execution under Article 160 of the Family Code.
 The Court's Ruling

The Court denies the Petition for lack of merit.

Petitioners are not guilty of forum-shopping.

Forum shopping can be committed in three ways: (1) by filing multiple cases based
on the same cause of action and with the same prayer, the previous case not
having been resolved yet (where the ground for dismissal is litis pendentia); (2) by
filing multiple cases based on the same cause of action and with the same prayer,
the previous case having been finally resolved (where the ground for dismissal
is res judicata); and (3) by filing multiple cases based on the same cause of action
but with different prayers, or by splitting of causes of action (where the ground for
dismissal is also either litis pendentia or res judicata).[19]

The essence of forum shopping is the filing of multiple suits involving the same
parties for the same cause of action, either simultaneously or successively, for the
purpose of obtaining a favorable judgment through means other than by appeal
or certiorari.[20] Forum shopping does not apply to cases that arise from an
initiatory or original action that has been elevated by way of appeal or certiorari to
higher or appellate courts or authorities. This is so because the issues in the
appellate courts necessarily differ from those in the lower court, and the appealed
cases are but a continuation of the original case and treated as only one case. [21]

Respondents contend that the Decision in Civil Case No. 4581, which declared that
property in dispute was a family home, had long attained finality. Accordingly,
respondents maintain that petitioners' bid to re-litigate the present value of the
property in the course of the execution proceedings is barred by res judicata, and
that petitioners should be cited for contempt of court because of forum-shopping. [22]

Recall that although the trial court had nullified the Deed of Sale over respondents'
family home in Civil Case No. 4581 for lack of a written consent from its
beneficiaries as required under Article 158 of the Family Code, [23] the court still
recognized the validity of the transaction as an unsecured loan. Hence, it declared
Spouses Bell liable to petitioners in the amount of PI million plus 12% interest per
annum.

Petitioners' bid to satisfy the above judgment cannot be considered an act of forum
shopping. Simply, the execution of a decision is just the fruit and end of a suit and
is very aptly called the life of the law.[24] It is not separate from the main case.
Similarly, the filing of the instant Petition as a continuation of the execution
proceedings does not constitute forum shopping. Seeking a reversal of an adverse
judgment or order by appeal or certiorari does not constitute forum shopping. Such
remedies are sanctioned and provided for by the rules. [25]

Indeed, as will be presently discussed, the causes of action in the main proceedings
in Civil Case No. 4581 and the consequent execution proceedings are identical.
Suffice it to say, however, that the danger of a multiplicity of suits upon one and
the same cause of action, which the judicial policy against forum shopping seeks to
prevent, does not exist in this case.

Re-litigating the issue of the value of respondents' family home is barred

by res judicata.

Res judicata (meaning, a "matter adjudged") is a fundamental principle of law that

precludes parties from re-litigating issues actually litigated and determined by a
prior and final judgment.[26] Under the 1997 Rules of Court, there are two aspects
of res judicata, namely: bar by prior judgment[27] and conclusiveness of judgment.
[28]

There is "bar by prior judgment" when, as between the first case in which the
judgment has been rendered and the second case that is sought to be barred, there
is an identity of parties, subject matter, and causes of action. In this instance, the
judgment in the first case constitutes an absolute bar to the second action. The
judgment or decree on the merits of the court of competent jurisdiction concludes
the litigation between the parties, as well as their privies, and constitutes a bar to a
new action or suit involving the same cause of action before the same or any other
tribunal.[29]

On the other hand, there is "conclusiveness of judgment" where there is an identity

of parties in the first and second cases, but no identity of causes of action. Under
this rule, the first judgment is conclusive only as to those matters actually and
directly controverted and determined and not as to matters merely involved
therein. Stated differently, any right, fact, or matter in issue directly adjudicated or
necessarily involved in the determination of an action before a competent court
in which judgment is rendered on the merits is conclusively settled by the judgment
therein and cannot again be litigated between the parties and their privies whether
or not the claim, demand, purpose, or subject matter of the two actions is the
same.[30]

In this case, the trial court's final decision in Civil Case No. 4581 bars petitioners'
move to have the property in dispute levied on execution.

There is no question that the main proceedings in Civil Case No. 4581 and the
subsequent execution proceedings involved the same parties[31] and subject matter.
[32]
 For these reasons, respondents argue that the execution sale of the property in
dispute under Article 160 of the Family Code is barred by res judicata, since the
trial court has already determined that the value of the property fell within the
statutory limit.

The CA held that the trial court's Decision, which is indisputably final, only settled
the issue of whether the property in dispute was a family home. The CA ruled thus:

We rule that there is no res judicata.

At the outset, let it be emphasized that the decision of the trial court dated July 15,
1998, which has become final and executory, only declares the subject property as
a family home. As a matter of fact, private respondents never questioned that such
property is a family home, and consequently, the issue as to whether or not the
property is family home is settled and res judicata lies only with respect to this
issue.

But the issue as to whether or not a family home could be the subject of an
execution sale was not resolved by the trial court. This issue[was] raised only when
the writ of execution was issued and hence, [was not] resolved with finality. Thus,
the issue before this Court is whether or not the [f]amily [h]ome of petitioners
under the facts and circumstances of the case could be the subject of a writ of
execution and sold at public auction.[33]

The Court disagrees with the CA.

"Cause of action" is the act or omission by which a party violates the right of
another.[34] It may be argued that the cause of action in the main proceedings was
the sale of the property in dispute, while in the execution proceedings it was the
indebtedness of Spouses Bell to petitioners.

The settled rule, however, is that identity of causes of action does not mean
absolute identity. Otherwise, a party could easily escape the operation of res
judicata by changing the form of the action or the relief sought. [35] The test to
determine whether the causes of action are identical is to ascertain whether
the same evidence will sustain both actions, or whether there is an identity of
the facts essential to the maintenance of the two actions. If the same facts
or evidence would sustain both, the two actions are considered the same, and a
judgment in the first case would be a bar to the subsequent action. Hence, a party
cannot, by varying the form of action or adopting a different method of presenting
the case, escape the operation of the principle that one and the same cause of
action shall not be twice litigated between the same parties or their privies.[36]
Among several tests resorted to in ascertaining whether two suits relate to a single
or common cause of action are: (1) whether the same evidence would support and
sustain both the first and the second causes of action; and (2) whether the
defenses in one case may be used to substantiate the complaint in the other. Also
fundamental is the test for determining whether the cause of action in the second
case existed at the time of the filing of the first complaint. [37]

Applying the above guidelines, the Court finds that the entirety of Civil Case No.
4581 - including the bid of petitioners to execute the money judgment awarded to
them by the trial court - is founded on a common cause of action. Records show
that the sole evidence submitted by petitioners during the execution proceedings
was the Deed of Sale, which the trial court had nullified in the main proceedings.
Concomitantly, the very same defense raised by petitioners in the main
proceedings, i.e., that they had bought the property from Spouses Bell for P1
million - was utilized to substantiate the claim that the current value of
respondents' family home was actually PI million. In fact, the trial court's order for
respondents' family home to be levied on execution was solely based on the price
stated in the nullified Deed of Sale.

Res judicata applies, considering that the parties are litigating over the same
property. Moreover, the same contentions and evidence advanced by the
petitioners to substantiate their claim over respondents' family home have already
been used to support their arguments in the main proceedings.

Any lingering doubt on the application of res judicata to this case should be put to
rest by the trial court's discussion of the nature and alienability of the property in
dispute, to wit:

The second issue is about the allegation of the plaintiffs that the family home which
has been constituted on the house and lot in question is exempt from alienation and
that its value does not exceed P300,000. Paterno Bell, Sr. testified that the two-
storey house was built in 1947 and was made of wood and hollow blocks. He
inherited it in 1976 from his parents and has been living there with his family. In
1976, when an extra-judicial settlement was made of the estate of his parents, the
fair market value of the house was P70,000.

City Assessor Rodezinda Pargas testified and presented Tax Declaration and others,
(Exhibit "J", Tax Declaration No. 005-047) beginning 1985 showing that the subject
lot with an area of 329 sq. m. had a fair market value of P76,000.00 and the
residential house located thereon of P50,000.00, for a total value of
P126,000.00. She testified that during the prior years the assessed values were
lower. This shows that the limit of the value of P300,000.00 under Article 157, Title
5 of the Family Code has not been exceeded. The testimonies of the plaintiffs who
are children of Sps. Paterno Bell, Sr. and Rogelia Calingasan Bell show that they
had lived in that house together with their said parents. The Court therefore
concludes that the said house is a family home under Chapter 2, Title 5 of the
Family Code. Its alienation by the said Spouses without the written consent of the
majority of the children/plaintiffs is null and void for being contrary to law and
public policy as enunciated in Art. 158 of the Family Code.[38] [Underscoring
supplied]

The foregoing points plainly show that the issue of whether the property in dispute
exceeded the statutory limit of P300,000 has already been determined with finality
by the trial court. Its finding necessarily meant that the property is exempt from
execution. Assuming for the sake of argument that causes of action in the main
proceedings and in the execution proceedings are different, the parties are still
barred from litigating the issue of whether respondents' family home may be sold
on execution sale under the principle of conclusiveness of judgment.

Respondents' family home cannot be sold on execution under Article 160

of the Family Code.

Unquestionably, the family home is exempt from execution as expressly provided

for in Article 153 of the Family Code.[39]

It has been said that the family home is a real right that is gratuitous, inalienable
and free from attachment.[40] The great controlling purpose and policy of the
Constitution is the protection or the preservation of the homestead - the dwelling
place. A houseless, homeless population is a burden upon the energy, industry, and
morals of the community to which it belongs. No greater calamity, not tainted with
crime, can befall a family than to be expelled from the roof under which it has been
gathered and sheltered.[41] The family home cannot be seized by creditors except in
special cases.[42]

The nature and character of the property that debtors may claim to be exempt,
however, are determined by the exemption statute. The exemption is limited to the
particular kind of property or the specific articles prescribed by the statute; the
exemption cannot exceed the statutory limit.[43]

Articles 155 and 160 of the Family Code specify the exceptions mentioned in Article
153, to wit:

ARTICLE 155. The family home shall be exempt from execution, forced sale or
attachment except:
(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such
constitution; and

(4) For debts due to laborers, mechanics, architects, builders, materialmen and
others who have rendered service or furnished material for the construction of the
building.

ARTICLE 160. When a creditor whose claims is not among those mentioned in
Article 155 obtains a judgment in his favor, and he has reasonable grounds to
believe that the family home is actually worth more than the maximum amount
fixed in Article 157, he may apply to the court which rendered the judgment for an
order directing the sale of the property under execution. The court shall so order if
it finds that the actual value of the family home exceeds the maximum amount
allowed by law as of the time of its constitution. If the increased actual value
exceeds the maximum allowed in Article 157 and results from subsequent voluntary
improvements introduced by the person or persons constituting the family home,
by the owner or owners of the property, or by any of the beneficiaries, the same
rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be
considered. The proceeds shall be applied first to the amount mentioned in Article
157, and then to the liabilities under the judgment and the costs. The excess, if
any, shall be delivered to the judgment debtor.

Related to the foregoing is Article 157 of the Family Code, which provides:

ARTICLE 157. The actual value of the family home shall not exceed, at the time of
its constitution, the amount of three hundred thousand pesos in urban areas, and
two hundred thousand pesos in rural areas, or such amounts as may hereafter be
fixed by law.

In any event, if the value of the currency changes after the adoption of this Code,
the value most favorable for the constitution of a family home shall be the basis of
evaluation.

For purposes of this Article, urban areas are deemed to include chartered cities and
municipalities whose annual income at least equals that legally required for
chartered cities. All others are deemed to be rural areas. [Underscoring supplied]
The minutes of the deliberation by the drafters of Family Code on Article 160 are
enlightening, to wit:

Justice Puno inquired if the above Article [160] is still necessary. In reply, Judge Diy
opined that the above Article is intended to cover a situation where the family home
is already worth P500,000 or P1M. Justice Reyes stated that it is possible that a
family home, originally valued at P300,000. later appreciated to almost P1M
because of improvements made, like roads and plazas. Justice Caguioa, however,
made a distinction between voluntary and involuntary improvements in the sense
that if the value of the family home exceeded the maximum amount because of
voluntary improvements by the one establishing the family home, the Article will
apply; but if it is through an involuntary improvement, like the conversion into a
residential area or the establishment of roads and other facilities, the one
establishing the family home should not be punished by making his home liable to
creditors. He suggested that the matter be clarified in the provision.

xxxx

Prof. Bautista objected to the phrase "is worth" since if they will specify that the
family home is worth more than the maximum amount at the time it was
constituted, they will avoid the suit because the creditor will be given proper
warning. Justice Puno opined that this is a question of fact. Justice Caguioa added
that, under the second sentence, there will be a preliminary determination as to
whether the family home exceeds the maximum amount allowed by law.

xxxx

Justice Caguia accordingly modified the last sentence as follows:

If the excess in actual value over that allowed in Article 157 is due to subsequent
voluntary improvements by the person or persons constituting the family home or
by the owner or owners of the property, the same rules and procedure shall apply.

Prof. Bautista objected to the above provision, because it will in effect penalize the
owner for improving the family home. On the other hand, Justice Puno opined that
the provision covers only the excess in actual value over that allowed by law. Judge
Diy added that the owner may improve the family home up to P300,000. Justice
Caguioa stated that without the above provision, one can borrow money, put it all
on improvement of the family home even beyond the maximum value of a family
home and, thereby, exempt it from levy on the part of the creditor. He added that
anyway, if one voluntarily improves his family home out of his money, nobody can
complain because there are no creditors.
Justice Puno posed the question: What is "due to the subsequent improvement?" Is
it the "excess" or is it the "increase", or is it the "increase", which constitutes the
"excess"? In reply. Justice Reyes opined that it is the "increase" which constituted
the "excess". Justice Puno, Justice Reyes and Justice Caguioa modified the last
sentence as follows:

If the increase in actual value exceeds that maximum allowed in Article 157 and
results from subsequent voluntary improvements introduced by the person or
persons constituting the family home or by the owner or owners of the property,
the same rule and procedure shall apply.

Prof. Bautista commented that the phrase "increase in actual value" does not
include the original value. Justice Puno suggested that they just say "increased
actual value", which the Committee approved.[44] [Underscoring supplied]

To summarize, the exemption of the family home from execution, forced sale or
attachment is limited to P300,000 in urban areas and P200,000 in rural areas,
unless those maximum values are adjusted by law. If it is shown, though, that
those amounts do not match the present value of the peso because of currency
fluctuations, the amount of exemption shall be based on the value that is most
favorable to the constitution of a family home. Any amount in excess of those limits
can be applied to the payment of any of the obligations specified in Articles 155 and
160.

Any subsequent improvement or enlargement of the family home by the persons

constituting it, its owners, or any of its beneficiaries will still be exempt from
execution, forced sale or attachment provided the following conditions obtain: (a)
the actual value of the property at the time of its constitution has been determined
to fall below the statutory limit; and (b) the improvement or enlargement does not
result in an increase in its value exceeding the statutory limit. [45] Otherwise, the
family home can be the subject of a forced sale, and any amount above the
statutory limit is applicable to the obligations under Articles 155 and 160.

Certainly, the humane considerations for which the law surrounds the family home
with immunities from levy do not include the intent to enable debtors to thwart the
just claims of their creditors.[46]

Petitioners maintain that this case falls under the exceptions to the exemption of
the family home from execution or forced sale. They claim that the actual value of
respondents' family home exceeds the P300,000 limit in urban areas. This fact is
supposedly shown by the Deed of Sale whereby private respondents agreed to sell
the property for PI million way back in 1995. Therefore, the RTC only properly
ordered the execution sale of the property under Article 160 to satisfy the money
judgment awarded to them in Civil Case No. 4581.[47]

As earlier discussed, it has been judicially determined with finality that the property
in dispute is a family home, and that its value at the time of its constitution was
within the statutory limit. Moreover, respondents have timely claimed the
exemption of the property from execution.[48] On the other hand, there is no
question that the money judgment awarded to petitioners falls under the ambit of
Article 160.

Notwithstanding petitioners' right to enforce the trial court's money judgment,

however, they cannot obtain its satisfaction at the expense of respondents' rights
over their family home. It is axiomatic that those asserting the protection of an
exception from an exemption must bring themselves clearly within the terms of the
exception and satisfy any statutory requirement for its enforcement. [49]

To warrant the execution sale of respondents' family home under Article 160,
petitioners needed to establish these facts: (1) there was an increase in its actual
value; (2) the increase resulted from voluntary improvements on the property
introduced by the persons constituting the family home, its owners or any of its
beneficiaries; and (3) the increased actual value exceeded the maximum allowed
under Article 157.

During the execution proceedings, none of those facts was alleged - much less
proven - by petitioners. The sole evidence presented was the Deed of Sale, but the
trial court had already determined with finality that the contract was null, and that
the actual transaction was an equitable mortgage. Evidently, when petitioners and
Spouses Bell executed the Deed of Sale in 1990, the price stated therein was not
the actual value of the property in dispute.

The Court thus agrees with the CA's conclusion that the trial court committed grave
abuse of discretion in ordering the sale on execution of the property in dispute
under Article 160. The trial court had already determined with finality that the
property was a family home, and there was no proof that its value had increased
beyond the statutory limit due to voluntary improvements by respondents. Yet, it
ordered the execution sale of the property. There is grave abuse of discretion when
one acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of
one's judgment, as in this case in which the assailed order is bereft of any factual
or legal justification.[50]

WHEREFORE, the Petition for Review on Certiorari is hereby DENIED for lack of

merit. Accordingly, the Decision of the Court of Appeals in CA-G.R. SP No. 87531,
enjoining the trial court from proceeding with the sale of the family home of
respondents, is AFFIRMED.

SO ORDERED.

Leonardo-De Castro, Bersamin, Perez, and Perlas-Bernabe, JJ., concur

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

DECISION

REYES, J.:

Nature of the Petition 

This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by
the Spouses Araceli Oliva-De Mesa (Araceli) and Ernesto S. De Mesa (Ernesto),
assailing the Court of Appeals’ (CA) Decision[1] dated June 6, 2008 and
Resolution[2] dated October 23, 2008 in CA-G.R. CV No. 79391 entitled “Spouses
Araceli Oliva-De Mesa and Ernesto De Mesa v. Spouses Claudio Acero, Jr., et al.”

The Antecedent Facts 

This involves a parcel of land situated at No. 3 Forbes Street, Mount Carmel Homes
Subdivision, Iba, Meycauayan, Bulacan, which was formerly covered by Transfer
Certificate of Title (TCT) No. T-76.725 (M) issued by the Register of Deeds of
Meycauayan, Bulacan and registered under Araceli’s name. The petitioners jointly
purchased the subject property on April 17, 1984 while they were still merely
cohabiting before their marriage. A house was later constructed on the subject
property, which the petitioners thereafter occupied as their family home after they
got married sometime in January 1987.
Sometime in September 1988, Araceli obtained a loan from Claudio D. Acero, Jr.
(Claudio) in the amount of P100,000.00, which was secured by a mortgage over the
subject property. As payment, Araceli issued a check drawn against China Banking
Corporation payable to Claudio.

When the check was presented for payment, it was dishonored as the account from
which it was drawn had already been closed. The petitioners failed to heed Claudio’s
subsequent demand for payment.

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

On October 21, 1992, the RTC rendered a Decision [3] acquitting the petitioners but
ordering them to pay Claudio the amount of P100,000.00 with legal interest from
date of demand until fully paid.

On March 15, 1993, a writ of execution was issued and Sheriff Felixberto L.
Samonte (Sheriff Samonte) levied upon the subject property. On March 9, 1994,
the subject property was sold on public auction; Claudio was the highest bidder and
the corresponding certificate of sale was issued to him.

Sometime in February 1995, Claudio leased the subject property to the petitioners
and a certain Juanito Oliva (Juanito) for a monthly rent of P5,500.00. However, the
petitioners and Juanito defaulted in the payment of the rent and as of October 3,
1998, their total accountabilities to Claudio amounted to P170,500.00.

Meanwhile, on March 24, 1995, a Final Deed of Sale [4] over the subject property
was issued to Claudio and on April 4, 1995, the Register of Deeds of Meycauayan,
Bulacan cancelled TCT No. T-76.725 (M) and issued TCT No. T-221755 (M) [5] in his
favor.

Unable to collect the aforementioned rentals due, Claudio and his wife Ma. Rufina
Acero (Rufina) (collectively referred to as Spouses Acero) filed a complaint for
ejectment with the Municipal Trial Court (MTC) of Meycauayan, Bulacan against the
petitioners and Juanito. In their defense, the petitioners claimed that Spouses Acero
have no right over the subject property. The petitioners deny that they are mere
lessors; on the contrary, they are the lawful owners of the subject property and,
thus cannot be evicted therefrom.
On July 22, 1999, the MTC rendered a Decision,[6] giving due course to Spouses
Acero’s complaint and ordering the petitioners and Juanito to vacate the subject
property. Finding merit in Spouses Acero’s claims, the MTC dismissed the
petitioners' claim of ownership over the subject property. According to the MTC,
title to the subject property belongs to Claudio as shown by TCT No. T-221755 (M).

The MTC also stated that from the time a Torrens title over the subject property
was issued in Claudio’s name up to the time the complaint for ejectment was filed,
the petitioners never assailed the validity of the levy made by Sheriff Samonte, the
regularity of the public sale that was conducted thereafter and the legitimacy of
Claudio’s Torrens title that was resultantly issued.

The petitioners appealed the MTC’s July 22, 1999 Decision to the RTC. This appeal
was, however, dismissed in a Decision dated November 22, 1999 due to the
petitioners’ failure to submit their Memorandum. The petitioners sought
reconsideration of the said decision but the same was denied in an Order dated
January 31, 2000.

Consequently, the petitioners filed a petition for review[7] with the CA assailing the
RTC’s November 22, 1999 Decision and January 31, 2000 Order. In a December 21,
2006 Decision,[8] the CA denied the petitioner’s petition for review. This became
final on July 25, 2007.[9]

In the interregnum, on October 29, 1999, the petitioners filed against the
respondents a complaint[10] to nullify TCT No. T-221755 (M) and other documents
with damages with the RTC of Malolos, Bulacan. Therein, the petitioners asserted
that the subject property is a family home, which is exempt from execution under
the Family Code and, thus, could not have been validly levied upon for purposes of
satisfying the March 15, 1993 writ of execution.

On September 3, 2002, the RTC rendered a Decision, [11] which dismissed the

petitioners’ complaint. Citing Article 155(3) of the Family Code, the RTC ruled that
even assuming that the subject property is a family home, the exemption from
execution does not apply. A mortgage was constituted over the subject property to
secure the loan Araceli obtained from Claudio and it was levied upon as payment
therefor.

The petitioners sought reconsideration of the RTC’s September 3, 2002 Decision but
this was denied in a Resolution[12] dated January 14, 2003.

On appeal, the CA affirmed the RTC’s disposition in its Decision[13] dated June 6,

2008. The CA ratiocinated that the exemption of a family home from execution,
attachment or forced sale under Article 153 of the Family Code is not automatic and
should accordingly be raised and proved to the Sheriff prior to the execution, forced
sale or attachment. The appellate court noted that at no time did the petitioners
raise the supposed exemption of the subject property from execution on account of
the same being a family home.

The petitioners then sought reconsideration of the said June 6, 2008 Decision but
the same was denied by the CA in its Resolution[14] dated October 23, 2008.

Aggrieved, the petitioners filed the instant petition for review, praying for the
cancellation of TCT No. T-221755 (M). They insist that the execution sale that was
conducted is a nullity considering that the subject property is a family home. The
petitioners assert that, contrary to the disposition of the CA, a prior demonstration
that the subject property is a family home is not required before it can be
exempted from execution.

In their Comment,[15] Spouses Acero claimed that this petition ought to be denied

on the ground of forum-shopping as the issues raised had already been determined
by the MTC in its July 22, 1999 Decision on the complaint for ejectment filed by
them, which had already become final and executory following the petitioner’s
failure to appeal the CA’s December 21, 2006 Decision affirming it.

Issues

The threshold issues for resolution are the following: (a) whether the petitioners are
guilty of forum-shopping; and (b) whether the lower courts erred in refusing to
cancel Claudio’s Torrens title TCT No. T-221755 (M) over the subject property.

The Court’s Ruling

First Issue: Forum-Shopping

On the first issue, we find that the petitioners are not guilty of forum-shopping.

There is forum-shopping when as a result of an adverse decision in one forum, or in

anticipation thereof, a party seeks a favorable opinion in another forum through
means other than an appeal or certiorari. Forum-shopping exists when two or more
actions involve the same transactions, essential facts, and circumstances; and raise
identical causes of action, subject matter, and issues. [16]

Forum-shopping exists where the elements of litis pendentia are present, and

where a final judgment in one case will amount to res judicata  in the other. The
elements of forum-shopping are: (a) identity of parties, or at least such parties as
would represent the same interest in both actions; (b) identity of rights asserted
and relief prayed for, the relief being founded on the same facts; and (c) identity of
the two preceding particulars such that any judgment rendered in the other action
will, regardless of which party is successful, amount to res judicata in the action
under consideration.[17]

There is no identity of issues and reliefs prayed for in the ejectment case and in the
action to cancel TCT No. T-221755 (M). Verily, the primordial issue in the ejectment
case is who among the contending parties has a better right of possession over the
subject property while ownership is the core issue in an action to cancel a Torrens
title.

It is true that the petitioners raised the issue of ownership over the subject
property in the ejectment case. However, the resolution thereof is only provisional
as the same is solely for the purpose of determining who among the parties therein
has a better right of possession over the subject property.

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

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

Forum-shopping exists where the elements of litis pendentia are present, namely:

(a) identity of parties or at least such as representing the same interests in both
actions; (b) identity of rights asserted and reliefs prayed for, the relief being
founded on the same facts; and (c) the identity in the two cases should be such
that the judgment that may be rendered in one would, regardless of which party is
successful, amounts to res judicata in the other.

Petitioner and respondent are the same parties in the annulment and ejectment
cases. The issue of ownership was likewise being contended, with same set of
evidence being presented in both cases. However, it cannot be inferred that a
judgment in the ejectment case would amount to res judicata in the annulment
case, and vice-versa.

This issue is hardly a novel one. It has been laid to rest by heaps of cases iterating
the principle that a judgment rendered in an ejectment case shall not bar an action
between the same parties respecting title to the land or building nor shall it be
conclusive as to the facts therein found in a case between the same parties upon a
different cause of action involving possession.

It bears emphasizing that in ejectment suits, the only issue for resolution is the
physical or material possession of the property involved, independent of any claim
of ownership by any of the party litigants. However, the issue of ownership may be
provisionally ruled upon for the sole purpose of determining who is entitled to
possession de facto. Therefore, the provisional determination of ownership in the
ejectment case cannot be clothed with finality.

Corollarily, the incidental issue of whether a pending action for annulment would
abate an ejectment suit must be resolved in the negative.

A pending action involving ownership of the same property does not bar the filing or
consideration of an ejectment suit, nor suspend the proceedings. This is so because
an ejectment case is simply designed to summarily restore physical possession of a
piece of land or building to one who has been illegally or forcibly deprived thereof,
without prejudice to the settlement of the parties' opposing claims of juridical
possession in appropriate proceedings.[19] (citations omitted)

Second Issue: Nullification of TCT No. T-221755 (M) 

Anent the second issue, this Court finds that the CA did not err in dismissing the
petitioners’ complaint for nullification of TCT No. T-221755 (M).

The subject property is a family home.

The petitioners maintain that the subject property is a family home and,
accordingly, the sale thereof on execution was a nullity. In Ramos v. Pangilinan,
[20]
 this Court laid down the rules relative to exemption of family homes from
execution:

For the family home to be exempt from execution, distinction must be made as to
what law applies based on when it was constituted and what requirements must be
complied with by the judgment debtor or his successors claiming such
privilege.Hence, two sets of rules are applicable.

If the family home was constructed before the effectivity of the Family Code or

before August 3, 1988, then it must have been constituted either judicially or
extra-judicially as provided under Articles 225, 229-231 and 233 of the
Civil Code. Judicial constitution of the family home requires the filing of a verified
petition before the courts and the registration of the court’s order with the Registry
of Deeds of the area where the property is located.Meanwhile, extrajudicial
constitution is governed by Articles 240 to 242 of the Civil Code and involves the
execution of a public instrument which must also be registered with the Registry
ofProperty.Failure to comply with either one of these two modes of constitution will
bar a judgment debtor from availing of the privilege.

On the other hand, for family homes constructed after the effectivity of the Family
Code on August 3, 1988, there is no need to constitute extrajudicially or
judicially, and the exemption is effective from the timeit was constituted and lasts
as long as any of its beneficiaries under Art. 154 actually resides therein. Moreover,
the family home should belong to the absolute community or conjugal partnership,
or if exclusively by one spouse, its constitution must have beenwithconsent of the
other, and its valuemustnotexceed certain amounts depending upon the area where
it is located. Further, the debts incurred for which the exemption does not apply as
provided under Art. 155 for which the family home is made answerable must have
been incurred after August 3, 1988.[21] (citations omitted)

In the earlier case of Kelley, Jr. v. Planters Products, Inc.,[22] we stressed that:

Under the Family Code, there is no need to constitute the family home judicially or
extrajudicially. All family homes constructed after the effectivity of the Family Code
(August 3, 1988) are constituted as such by operation of law. All existing family
residences as of August 3, 1988 are considered family homes and are
prospectively entitled to the benefits accorded to a family home under the
Family Code.[23] (emphasis supplied and citation omitted)

The foregoing rules on constitution of family homes, for purposes of exemption

from execution, could be summarized as follows:

First, family residences constructed before the effectivity of the Family Code or
before August 3, 1988 must be constituted as a family home either judicially or
extrajudicially in accordance with the provisions of the Civil Code in order to be
exempt from execution;

Second, family residences constructed after the effectivity of the Family Code on
August 3, 1988 are automatically deemed to be family homes and thus exempt
from execution from the time it was constituted and lasts as long as any of its
beneficiaries actually resides therein;

Third, family residences which were not judicially or extrajudicially constituted as a

family home prior to the effectivity of the Family Code, but were existing thereafter,
are considered as family homes by operation of law and are prospectively entitled
to the benefits accorded to a family home under the Family Code.

Here, the subject property became a family residence sometime in January 1987.
There was no showing, however, that the same was judicially or extrajudicially
constituted as a family home in accordance with the provisions of the Civil Code.
Still, when the Family Code took effect on August 3, 1988, the subject property
became a family home by operation of law and was thus prospectively exempt from
execution. The petitioners were thus correct in asserting that the subject property
was a family home.

The family home’s exemption from execution

must be set up and proved to the Sheriff before
the sale of the property at public auction.

Despite the fact that the subject property is a family home and, thus, should have
been exempt from execution, we nevertheless rule that the CA did not err in
dismissing the petitioners’ complaint for nullification of TCT No. T-221755 (M). We
agree with the CA that the petitioners should have asserted the subject property
being a family home and its being exempted from execution at the time it was
levied or within a reasonable time thereafter. As the CA aptly pointed out:

In the light of the facts above summarized, it is evident that appellants did not
assert their claim of exemption within a reasonable time. Certainly, reasonable
time, for purposes of the law on exemption, does not mean a time after the
expiration of the one-year period provided for in Section 30 of Rule 39 of the Rules
of Court for judgment debtors to redeem the property sold on execution, otherwise
it would render nugatory final bills of sale on execution and defeat the very purpose
of execution – to put an end to litigation. x x x.[24]

The foregoing disposition is in accord with the Court’s November 25, 2005 Decision
in Honrado v. Court of Appeals,[25] where it was categorically stated that at no other
time can the status of a residential house as a family home can be set up and
proved and its exemption from execution be claimed but before the sale thereof at
public auction:

While it is true that the family home is constituted on a house and lot from the time
it is occupied as a family residence and is exempt from execution or forced sale
under Article 153 of the Family Code, such claim for exemption should be set up
and proved to the Sheriff before the sale of the property at public auction. Failure
to do so would estop the party from later claiming the exemption. As this Court
ruled in Gomez v. Gealone:
Although the Rules of Court does not prescribe the period within which to claim the
exemption, the rule is, nevertheless, well-settled that the right of exemption is a
personal privilege granted to the judgment debtor and as such, it must be claimed
not by the sheriff, but by the debtor himself at the time of the levy or within a
reasonable period thereafter;

“In the absence of express provision it has variously held that claim (for exemption)
must be made at the time of the levy if the debtor is present, that it must be made
within a reasonable time, or promptly, or before the creditor has taken any step
involving further costs, or before advertisement of sale, or at any time before sale,
or within a reasonable time before the sale, or before the sale has commenced, but
as to the last there is contrary authority.”

In the light of the facts above summarized, it is self-evident that appellants did not
assert their claim of exemption within a reasonable time. Certainly, reasonable
time, for purposes of the law on exemption, does not mean a time after the
expiration of the one-year period provided for in Section 30 of Rule 39 of the Rules
of Court for judgment debtors to redeem the property sold on execution, otherwise
it would render nugatory final bills of sale on execution and defeat the very purpose
of execution—to put an end to litigation. We said before, and We repeat it now, that
litigation must end and terminate sometime and somewhere, and it is essential to
an effective administration of justice that, once a judgment has become final, the
winning party be not, through a mere subterfuge, deprived of the fruits of the
verdict. We now rule that claims for exemption from execution of properties under
Section 12 of Rule 39 of the Rules of Court must be presented before its sale on
execution by the sheriff.[26] (citations omitted)

Reiterating the foregoing in Spouses Versola v. Court of Appeals,[27] this Court

stated that:

Under the cited provision, a family home is deemed constituted on a house and lot
from the time it is occupied as a family residence; there is no need to constitute the
same judicially or extrajudicially.

The settled rule is that the right to exemption or forced sale under Article
153 of the Family Code is a personal privilege granted to the judgment
debtor and as such, it must be claimed not by the sheriff, but by the debtor
himself before the sale of the property at public auction. It is not sufficient
that the person claiming exemption merely alleges that such property is a family
home. This claim for exemption must be set up and proved to the Sheriff. x
x x.[28] (emphasis supplied and citations omitted)
Having failed to set up and prove to the sheriff the supposed exemption of the
subject property before the sale thereof at public auction, the petitioners now are
barred from raising the same. Failure to do so estop them from later claiming the
said exemption.

Indeed, the family home is a sacred symbol of family love and is the repository of
cherished memories that last during one’s lifetime.[29] It is likewise without dispute
that the family home, from the time of its constitution and so long as any of its
beneficiaries actually resides therein, is generally exempt from execution, forced
sale or attachment.[30]

The family home is a real right, which is gratuitous, inalienable and free from
attachment. It cannot be seized by creditors except in certain special cases.
[31]
 However, this right can be waived or be barred by laches by the failure to set up
and prove the status of the property as a family home at the time of the levy or a
reasonable time thereafter.

In this case, it is undisputed that the petitioners allowed a considerable time to

lapse before claiming that the subject property is a family home and its exemption
from execution and forced sale under the Family Code. The petitioners allowed the
subject property to be levied upon and the public sale to proceed. One (1) year
lapsed from the time the subject property was sold until a Final Deed of Sale was
issued to Claudio and, later, Araceli’s Torrens title was cancelled and a new one
issued under Claudio’s name, still, the petitioner remained silent. In fact, it was
only after the respondents filed a complaint for unlawful detainer, or approximately
four (4) years from the time of the auction sale, that the petitioners claimed that
the subject property is a family home, thus, exempt from execution.

For all intents and purposes, the petitioners’ negligence or omission to assert their
right within a reasonable time gives rise to the presumption that they have
abandoned, waived or declined to assert it. Since the exemption under Article 153
of the Family Code is a personal right, it is incumbent upon the petitioners to invoke
and prove the same within the prescribed period and it is not the sheriff’s duty to
presume or raise the status of the subject property as a family home.

The petitioners’ negligence or omission renders their present assertion doubtful; it

appears that it is a mere afterthought and artifice that cannot be countenanced
without doing the respondents injustice and depriving the fruits of the judgment
award in their favor. Simple justice and fairness and equitable considerations
demand that Claudio’s title to the property be respected. Equity dictates that the
petitioners are made to suffer the consequences of their unexplained negligence.
WHEREFORE, in consideration of the foregoing disquisitions, the petition
is DENIED. The assailed Decision dated June 6, 2008 of the Court of Appeals in
CA-G.R. CV No. 79391, which affirmed the Decision of the Regional Trial Court of
Malolos, Bulacan, Branch 22, in Civil Case No. 1058-M-99 and dismissed the
complaint for declaration of nullity of TCT No. 221755 (M) and other documents,
and the October 23, 2008 Resolution denying reconsideration, are AFFIRMED.

SO ORDERED.

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

SECOND DIVISION
[ G.R. No. 213972, February 05, 2018 ]
FELICITAS L. SALAZAR, PETITIONER, VS. REMEDIOS FELIAS,
ON HER OWN BEHALF AND REPRESENTATION OF THE OTHER
HEIRS OF CATALINO NIVERA, RESPONDENTS.

DECISION

REYES, JR., J:

The movant's claim that his/her property is exempt from execution for being the
family home is not a magic wand that will freeze the court's hand and forestall the
execution of a final and executory ruling. It is imperative that the claim for
exemption must be set up and proven.

This treats of the petition for review on certiorari[1] under Rule 45 of the Revised
Rules of Court seeking the reversal of the Decision [2] dated December 62013, and
Resolution[3] dated August 7, 2014, rendered by the Court of Appeals (CA) in CA-
G.R. CV No. 97309, which affirmed the execution of the final and executory
judgment issued by the Regional Trial Court, Branch 55, Alaminos, Pangasinan
(RTC Branch 55).
 The Antecedent Facts

On February 28, 1990, private respondent Remedios Felias, representing the heirs
of Catalino Nivera (Heirs of Nivera) filed a Complaint for Recovery of Ownership,
Possession and Damages against the Spouses Romualdo Lastimosa (Romualdo) and
Felisa Lastimosa (Fe1isa). The former sought to recover from the latter four parcels
of land located in Baruan, Agno, Pangasinan (subject property).

On March 3, 1997, during the trial of the case, Romualdo died.

Consequently, on July 6, 1998, a Motion for Substitution [4] was filed by the

decedent's wife, Felisa, and their children Flordeliza Sagun, Reynaldo Lastimosa,
Recto Lastimosa (Recto), Rizalina Ramirez (Rizalina), Lily Lastimosa, and Avelino
Lastimosa (Heirs ofLastimosa).

On March 16, 2004, the RTC Branch 55 rendered a Decision, [5] declaring the Heirs
of Nivera as the absolute owners of the parcels of land in question, and thereby
ordering the Heirs of Lastimosa to vacate the lands and to surrender possession
thereof. The dispositive portion of the decision of the RTC Branch 55, reads:

WHEREFORE, this Honorable Court renders judgment:

a. Declaring the [Heirs of Nivera] absolute owners of the parcels of land in question
as described in the Amended Complaint, and ordering the [Heirs of Lastimosa] to
surrender possession thereof and vacate the same;

b. Ordering the [Heirs of Lastimosa], jointly and severally, to pay the [Heirs of
Nivera] actual damages in the amount of Php 270,000.00 for 1975 to 1995, and
Php 10,000.00 annually from 1996 and through all the subsequent years until
actual possession shall have been restored to the [Heirs of Nivera]; attorney's fees
and litigation expenses in the amount of Php 21,000.00; and costs.

SO ORDERED.[6]

The Heirs of Lastimosa did not file an appeal against the trial court's ruling.

Meanwhile, Felicitas Salazar (Felicitas), daughter of Romualdo, along with Recto

and Rizalina filed a Petition for Annulment of Judgment dated June 22, 2006 with
the CA. Felicitas sought the nullification of the RTC Branch 55's Decision dated
March 16, 2004, and the corresponding Writs of Execution and Demolition issued
pursuant thereto.[7] In her Petition for Annulment of Judgment, Felicitas claimed
that she was deprived of due process when she was not impleaded in the case for
Recovery of Ownership, before the RTC Branch 55.[8]
On June 5, 2008, the Former Tenth Division of the CA rendered a Decision, [9] in CA-
G.R. SP No. 95592, dismissing the Petition for Annulment of Judgment. The CA
refused to give credence to the contention that the Heirs of Nivera are at fault for
failing to implead Felicitas as a party defendant in the action for recovery of
ownership. Rather, the failure to include Felicitas in the proceedings was due to the
fault of the Heirs of Lastimosa, who neglected to include her (Felicitas) in their
Motion to Substitute. The CA further ratiocinated that since the RTC acquired
jurisdiction over the person of the original defendants Romualdo and Felisa, the
outcome of the case is binding on all their heirs or any such persons claiming rights
under them.[10]

On June 3, 2009, this Court affirmed the CA decision in the Petition for Annulment
of Judgment.[11] The Court's ruling became final, as per Entry of Judgment, on
October 5, 2009.

Meanwhile, the Heirs of Lastimosa filed with the RTC Branch 55 an Urgent Motion to
Order the Sheriff to Desist from Making Demolition dated April 24, 2010. The
Motion to Desist was premised on the fact that the Sheriff cannot execute the lower
court's decision considering that Felicitas had an aliquot share over the property,
which had not yet been partitioned.[12]

At about the same time, the Heirs of Nivera filed a Motion for Execution and
Demolition dated May 28, 2010. The Motion for Execution was anchored on the fact
that the Decision dated March 16, 2004, in the case for recovery of ownership,
possession and damages had long attained finality. [13]

On July 9, 2010, the RTC Branch 55 issued an Order granting the Motion for
Execution and Demolition, and denying the Motion to Desist. [14] The dispositive
portion of the order reads:

After going over the allegations in both motions, the Court resolves to deny the
motion, to order the Sheriff to desist from making demolition filed by the
defendants through counsel, it appearing that the grounds raised in the said motion
are already mooted by the subsequent filing of the motion for execution and
demolition filed by plaintiff through counsel.

The motion for execution and demolition is hereby granted.

Accordingly, let [a] Writ of Execution and Demolition issue to satisfy judgement
rendered in this case.
SO ORDERED.[15]

Dissatisfied with the ruling, the Heirs of Lastimosa[16] filed an appeal before the CA,
questioning the Writ of Execution and Demolition issued by the lower court.

On December 6, 2013, the Fifteenth Division of the CA rendered the assailed

Decision[17] dismissing the appeal on the following grounds, to wit: (i) the Heirs of
Lastimosa availed of the wrong remedy by filing an appeal, instead of a petition
for certiorari under Rule 65; (ii) the matter pertaining to the non-inclusion of
Felicitas is already barred by res judicata, as it has been settled with finality in CA-
G.R. SP No. 95592, and affirmed by the Supreme Court in G.R. No. 185056; and
(iii) the execution of the decision rendered by the RTC Branch 55 is proper
considering that case has long attained finality. The dispositive portion of the
assailed CA decision reads:

ACCORDINGLY, the appeal is DENIED. The assailed Order dated April 6, 2011 is
AFFIRMED.[18]

Felicitas filed a Motion for Reconsideration against the same Decision, which was
denied by the CA in its Resolution[19] dated August 7, 2014.

Undeterred, Felicitas filed the instant petition for review on certiorari[20] under Rule
45 of the Revised Rules of Court seeking the reversal of the assailed CA decision
and resolution.

The Issue

The main issue for this Court's resolution rests on whether the CA erred in ordering
the execution of the Decision dated March 16, 2004.

In seeking the reversal of the assailed decision, Felicitas claims that the Writ of
Execution and Demolition issued by the RTC Branch 55 was executed against the
wrong party.[21] She points out that she was not impleaded in the case for recovery
of ownership and possession, and thus the decision cannot bind her. [22] Felicitas
argues that she was deprived of her property as an heir without due process, as
she was left out of the proceedings, "completely unable to protect her rights." [23] In
addition, Felicitas contends that the execution cannot continue as the Writ of
Execution is being enforced against property that is exempt from execution, as
what is sought to be demolished is her family home. In this regard, Article 155 of
the Family Code ordains that the family home shall be exempt from execution.[24]

On the other hand, the Heirs of Nivera counter that the petition for review
on certiorari is nothing but a dilatory tactic employed by Felicitas to overthrow and
delay the execution of the judgment rendered in as early as March 16, 2004. [25] The
Heirs of Nivera maintain that Felicitas' claim that she was deprived of her property
as an heir without due process of law has already been settled with finality in the
Petition for Annulment of Judgement, which was dismissed by the CA, and this
Court.[26] Likewise, anent the claim that the subject property is exempt from
execution, the Heirs of Nivera aver that Felicitas failed to present an iota of
evidence to prove her claim. On the contrary, Felicitas herself admitted in her
pleadings that she does not reside in the subject property in Alaminos, but actually
lives in Muñoz, Nueva Ecija.[27] Moreover, the subject property belonged to the Heirs
of Nivera in as early as the 1950s, thereby negating Felicitas' claim that it is her
family home.[28]

Ruling of the Court

The petition is bereft of merit.

Nothing is more settled than the rule that a judgment that is final and executory is
immutable and unalterable. It may no longer be modified in any respect, except
when the judgment is void, or to correct clerical errors or to make nunc pro
tunc entries. In the same vein, the decision that has attained finality becomes the
law of the case, regardless of any claim that it is erroneous. Any amendment or
alteration which substantially affects a final and executory judgment is null and void
for lack of jurisdiction, including the entire proceedings held for that purpose.
[29]
 Accordingly, the court cannot refuse to issue a writ of execution upon a final and
executory judgment, or quash it, or stay its implementation.[30]

Concomitantly, neither may the parties object to the execution by raising new
issues of fact or law. The only exceptions thereto are when: "(i) the writ of
execution varies the judgment; (ii) there has been a change in the situation of the
parties making execution inequitable or unjust; (iii) execution is sought to be
enforced against property exempt from execution; (iv) it appears that the
controversy has been submitted to the judgment of the court; (v) the terms of the
judgment are not clear enough and there remains room for interpretation thereof;
or (vi) it appears that the writ of execution has been improvidently issued, or that it
is defective in substance, or issued against the wrong party, or that the judgment
debt has been paid or otherwise satisfied, or the writ was issued without
authority."[31]

In the case at bar, there is no dispute that in as early as March 16, 2004, the RTC
Branch 55 of Alaminos, Pangasinan rendered a Decision in the case for Recovery of
Ownership, Possession and Damages, ordering the Heirs of Lastimosa to vacate the
subject properties and surrender them to the Heirs of Nivera. There is no dispute
that this ruling of the RTC had become final and executory. Pursuant thereto, the
lower court issued a Writ of Execution and Demolition.

This notwithstanding, Felicitas seeks to prevent the execution of the same order,
arguing that the writ was issued against the wrong party; and that the property
sought to be executed is exempt from execution.

The Court is not persuaded.

It must be noted at the outset that the matter of whether Felicitas was deprived of
due process of law for not having been impleaded in the case for recovery of
ownership and possession has long been settled with finality.

In the decision of the CA in the case for Petition for Annulment of Judgment (CA-
G.R. SP No. 95592),[32] the Former Tenth Division of the CA squarely and judiciously
passed upon the issue of whether the. judgment of the lower court in the action for
recovery of ownership and possession was void for failure to implead Felicitas. The
CA held that:

Finally, the intimation of the petitioners that private respondent is at fault for failing
to implead [Felicitas] as party defendant in this case is patently without basis. It
must be recalled that the lower court acquired jurisdiction over the person of the
original defendants Romualdo and Feliza Lastimosa. Hence, the outcome of this
case is binding on all the heirs or persons claiming rights under the said
defendants. When [Romualdo] died on March 3, 1997, the defendants filed an
Urgent Motion to Substitute Other Heirs of the said defendant listing the names of
the heirs to be substituted. It is therefore crystal clear that if [Felicitas] was not
impleaded in this case as party defendant being the daughter of [Romualdo], that
omission could not be attributed to the private respondent but the defendants
themselves.[33] (Underscoring in the original)

This ruling of the CA was affirmed by this Court in the Resolution dated June 3,
2009, and attained finality as per Entry of Judgment. Markedly, it is crystal clear
that the issues pertaining to Felicitas' non-inclusion in the proceedings, and the
consequent validity of the lower court's judgment have long attained finality. It
bears reiterating that a judgment that is final and executory cannot be altered,
even by the highest court of the land. This final judgment has become the law of
the case, which is now immutable.

Additionally, as an heir of the original defendants in the action for recovery of

ownership, Felicitas is bound by the decision rendered against her predecessors-in-
interest. Thus, there is nothing that exempts her from the enforcement of the Writ
ofExecution.

In another attempt to thwart the execution of the RTC's final and executory
judgment, Felicitas claims that the execution cannot proceed, as the subject
property is her family home and is therefore exempt from execution.

Indeed, the family home is a real right which is gratuitous, inalienable and free
from attachment, constituted over the dwelling place and the land on which it is
situated. It confers upon a particular family the right to enjoy such properties. [34] It
cannot be seized by creditors except in certain special cases. [35]

However, the claim that the property is exempt from execution for being the
movant's family home is not a magic wand that will freeze the court's hand and
forestall the execution of a final and executory ruling. It must be noted that it is not
sufficient for the claimant to merely allege that such property is a family home.
Whether the claim is premised under the Old Civil Code or the Family Code, the
claim for exemption must be set up and proved.[36]

In fact, in Ramos, et al. v. Pangilinan, et al.,[37] the Court, citing Spouses Kelley, Jr.

v. Planters Products, Inc., et al.,[38] laid down the rules relative to the levy on
execution of the family home, viz.:

No doubt, a family home is generally exempt from execution provided it was duly
constituted as such. There must be proof that the alleged family home was
constituted jointly by the husband and wife or by an unmarried head of a family. It
must be the house where they and their family actually reside and the lot on which
it is situated. The family home must be part of the properties of the absolute
community or the conjugal partnership, or of the exclusive properties of either
spouse with the latter's consent, or on the property of the unmarried head of the
family. The actual value of the family home shall not exceed, at the time of its
constitution, the amount of P300,000 in urban areas and P200,000 in rural areas. [39]

In addition, residence in the family home must be actual. The law explicitly
mandates that the occupancy of the family home, either by the owner thereof, or
by any of its beneficiaries must be actual. This occupancy must be real, or actually
existing, as opposed to something merely possible, or that which is merely
presumptive or constructive.[40]

Guided by the foregoing jurisprudential tenets, it becomes all too apparent that
Felicitas cannot conveniently claim that the subject property is her family home,
sans sufficient evidence proving her allegation. It bears emphasis that it is
imperative that her claim must be backed with evidence showing that the home
was indeed (i) duly constituted as a family home, (ii) constituted jointly by the
husband and wife or by an unmarried head of a family, (iii) resided in by the family
(or any of the family home's beneficiaries), (iv) forms part of the properties of the
absolute community or the conjugal partnership, or of the exclusive properties of
either spouse with the latter's consent, or property of the unmarried head of the
family, and (v) has an actual value of Php 300,000.00 in urban areas, and Php
200,000.00 in rural areas.

A perusal of the petition, however, shows that aside from her bare allegation,
Felicitas adduced no proof to substantiate her claim that the property sought to be
executed is indeed her family home.

Interestingly, Felicitas admitted in her Motion for Reconsideration dated December

23, 2013, and her Petition for Annulment of Judgment dated June 22, 2006, that
she is, and has always been a resident of Muñoz, Nueva Ecija. [41] Similarly, the
address indicated in Felicitas' petition for review on certiorari is Muñoz, Nueva Ecija.
[42]

Equally important, the Court takes judicial notice of the final ruling of the RTC
Branch 55 in the case for recovery of ownership, that the subject property has
belonged to the Heirs of Nivera since the 1950s.[43] This automatically negates
Felicitas' claim that the property is her family home.

Undoubtedly, Felicitas' argument that the property subject of the writ of execution
is a family home, is an unsubstantiated allegation that cannot defeat the binding
nature of a final and executory judgment. Thus, the Writ of Execution and
Demolition issued by the RTC Branch 55 must perforce be given effect.

In fine, an effective and efficient administration of justice requires that once a

judgment has become final, the winning party should not be deprived of the fruits
of the verdict. The case at bar reveals the attempt of the losing party to thwart the
execution of a final and executory judgment, rendered by. the court thirteen (13)
long years ago. The Court cannot sanction such vain and obstinate attempts to
forestall the execution of a final ruling. It is high time that the case be settled with
finality and the ruling of the RTC Branch 55 be given full force and effect.

WHEREFORE, premises considered, the instant petition is DENIED for lack of

merit. Accordingly, the Decision dated December 6, 2013 and Resolution dated
August 7, 2014, rendered by the Court of Appeals in CA-G.R. CV No. 97309
are AFFIRMED in toto.

SO ORDERED.
Carpio, (Chairperson), Peralta, Perlas-Bernabe, and Caguioa, JJ., concur.