VI.

THE FAMILY
A. Suits between Members;
1. Gayon vs Gayon, GR No. 28394, 26 Nov 1970

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

PEDRO GAYON, plaintiff-appellant,
vs.
SILVESTRE GAYON and GENOVEVA DE GAYON, defendants-appellees.

German M. Lopez for plaintiff-appellant.

Pedro R. Davila for defendants-appellees.

CONCEPCION, C.J.:

Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of First Instance of Iloilo
dismissing his complaint in Civil Case No. 7334 thereof.

The records show that on July 31, 1967, Pedro Gayon filed said complaint against the spouses
Silvestre Gayon and Genoveva de Gayon, alleging substantially that, on October 1, 1952, said
spouses executed a deed — copy of which was attached to the complaint, as Annex "A" — whereby
they sold to Pedro Gelera, for the sum of P500.00, a parcel of unregistered land therein described,
and located in the barrio of Cabubugan, municipality of Guimbal, province of Iloilo, including the
improvements thereon, subject to redemption within five (5) years or not later than October 1, 1957;
that said right of redemption had not been exercised by Silvestre Gayon, Genoveva de Gayon, or
any of their heirs or successors, despite the expiration of the period therefor; that said Pedro Gelera
and his wife Estelita Damaso had, by virtue of a deed of sale — copy of which was attached to the
complaint, as Annex "B" — dated March 21, 1961, sold the aforementioned land to plaintiff Pedro
Gayon for the sum of P614.00; that plaintiff had, since 1961, introduced thereon improvements worth
P1,000; that he had, moreover, fully paid the taxes on said property up to 1967; and that Articles
1606 and 1616 of our Civil Code require a judicial decree for the consolidation of the title in and to a
land acquired through a conditional sale, and, accordingly, praying that an order be issued in
plaintiff's favor for the consolidation of ownership in and to the aforementioned property.

In her answer to the complaint, Mrs. Gayon alleged that her husband, Silvestre Gayon, died on
January 6, 1954, long before the institution of this case; that Annex "A" to the complaint is fictitious,
for the signature thereon purporting to be her signature is not hers; that neither she nor her
deceased husband had ever executed "any document of whatever nature in plaintiff's favor"; that the
complaint is malicious and had embarrassed her and her children; that the heirs of Silvestre Gayon
had to "employ the services of counsel for a fee of P500.00 and incurred expenses of at least
P200.00"; and that being a brother of the deceased Silvestre Gayon, plaintiff "did not exert efforts for
the amicable settlement of the case" before filing his complaint. She prayed, therefore, that the same
be dismissed and that plaintiff be sentenced to pay damages.

Soon later, she filed a motion to dismiss, reproducing substantially the averments made in her
answer and stressing that, in view of the death of Silvestre Gayon, there is a "necessity of amending
the complaint to suit the genuine facts on record." Presently, or on September 16, 1967, the lower
court issued the order appealed from, reading:

Considering the motion to dismiss and it appearing from Exhibit "A" annexed to the
complaint that Silvestre Gayon is the absolute owner of the land in question, and
considering the fact that Silvestre Gayon is now dead and his wife Genoveva de
Gayon has nothing to do with the land subject of plaintiff's complaint, as prayed for,
this case is hereby dismissed, without pronouncement as to costs. 1
A reconsideration of this order having been denied, plaintiff interposed the present appeal, which is
well taken.

Said order is manifestly erroneous and must be set aside. To begin with, it is not true that Mrs.
Gayon "has nothing to do with the land subject of plaintiff's complaint." As the widow of Silvestre
Gayon, she is one of his compulsory heirs and has, accordingly, an interest in the property in
2

question. Moreover, her own motion to dismiss indicated merely "a necessity of amending the
complaint," to the end that the other successors in interest of Silvestre Gayon, instead of the latter,
be made parties in this case. In her opposition to the aforesaid motion for reconsideration of the
plaintiff, Mrs. Gayon alleged, inter alia, that the "heirs cannot represent the dead defendant, unless
there is a declaration of heirship." Inasmuch, however, as succession takes place, by operation of
law, "from the moment of the death of the decedent"  and "(t)he inheritance includes all the property,
3

rights and obligations of a person which are not extinguished by his death,"  it follows that if his heirs
4

were included as defendants in this case, they would be sued, not as "representatives" of the
decedent, but as owners of an aliquot interest in the property in question, even if the precise extent
of their interest may still be undetermined and they have derived it from the decent. Hence, they may
be sued without a previous declaration of heirship, provided there is no pending special proceeding
for the settlement of the estate of the decedent. 5

As regards plaintiff's failure to seek a compromise, as an alleged obstacle to the present case, Art.
222 of our Civil Code provides:

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

It is noteworthy that the impediment arising from this provision applies to suits "filed or maintained
between members of the same family." This phrase, "members of the same family," should,
however, be construed in the light of Art. 217 of the same Code, pursuant to which:

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.

Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews and/or nieces. Inasmuch
as none of them is included in the enumeration contained in said Art. 217 — which should be
construed strictly, it being an exception to the general rule — and Silvestre Gayon must necessarily
be excluded as party in the case at bar, it follows that the same does not come within the purview of
Art. 222, and plaintiff's failure to seek a compromise before filing the complaint does not bar the
same.

WHEREFORE, the order appealed from is hereby set aside and the case remanded to the lower
court for the inclusion, as defendant or defendants therein, of the administrator or executor of the
estate of Silvestre Gayon, if any, in lieu of the decedent, or, in the absence of such administrator or
executor, of the heirs of the deceased Silvestre Gayon, and for further proceedings, not inconsistent
with this decision, with the costs of this instance against defendant-appellee, Genoveva de Gayon.

2. Sps. Hontiveros v RTC, GR No. 125465, 29 Jun 1999

G.R. No. 125465 June 29, 1999

SPOUSES AUGUSTO HONTIVEROS and MARIA HONTIVEROS, petitioners,

vs.
REGIONAL TRIAL COURT, Branch 25, Iloilo City and SPOUSES GREGORIO HONTIVEROS
and TEODORA AYSON, respondents.

 
MENDOZA, J.:

On December 3, 1990, petitioners, the spouses Augusto and Maria Hontiveros, filed a complaint for
damages against private respondents Gregorio Hontiveros and Teodora Ayson before the Regional
Trial Court of Iloilo City, Branch 25, where it was docketed as Civil Case No. 19504. In said
complaint, petitioners alleged that they are the owners of a parcel of land, in the town of Jamindan,
Province of Capiz, as shown by OCT No. 0-2124, issued pursuant to the decision of the
Intermediate. Appellate Court, dated April 12, 1984, which modified the decision of the Court of First
Instance of Capiz, dated January 23, 1975, in a land registration case 1 filed by private respondent
Gregorio Hontiveros; that petitioners were deprived of income from the land as a result of the filing of
the land registration case; that such income consisted of rentals from tenants of the land in the
amount of P66,000.00 per year from 1968 to 1987, and P595,000.00 per year thereafter; and that
private respondents filed the land registration case and withheld possession of the land from
petitioners in bad faith.2

In their answer, private respondents denied that they were married and alleged that private
respondent Hontiveros was a widower while private respondent Ayson was single. They denied that
they had deprived petitioners of possession of and income from the land. On the contrary, they
alleged that possession of the property in question had already been transferred to petitioners on
August 7, 1985, by virtue of a writ of possession, dated July 18, 1985, issued by the clerk of court of
the Regional Trial Court of Capiz, Mambusao, the return thereof having been received by petitioners'
counsel; that since then, petitioners have been directly receiving rentals from the tenants of the land,
that the complaint failed to state a cause of action since it did not allege that earnest efforts towards
a compromise had been made, considering that petitioner Augusto Hontiveros and private
respondent Gregorio Hontiveros are brothers; that the decision of the Intermediate Appellate Court
in Land Registration Case No. N-581-25 was null and void since it was based upon a ground which
was not passed upon by the trial court; that petitioners' claim for damages was barred by
prescription with respect to claims before 1984; that there were no rentals due since private
respondent Hontiveros was a possessor in good faith and for value; and that private respondent
Ayson had nothing to do with the case as she was not married to private respondent Gregorio
Hontiveros and did not have any proprietary interest in the subject property. Private respondents
prayed for the dismissal of the complaint and for an order against petitioners to pay damages to
private respondents by way of counterclaim, as well as reconveyance of the subject land to private
respondents. 3

On May 16, 1991, petitioners filed an Amended Complaint to insert therein an allegation that
"earnest efforts towards a compromise have been made between the parties but the same were
unsuccessful."

In due time, private respondents filed an Answer to Amended Complaint with Counterclaim, in which
they denied, among other things, that earnest efforts had been made to reach a compromise but the
parties was unsuccessful.

On July 19, 1995, petitioners moved for a judgment on the pleadings on the ground that private
respondents' answer did not tender an issue or that it otherwise admitted the material allegations of
the complaint. 4 Private respondents opposed the motion alleging that they had denied petitioners'
claims and thus tendered certain issues of fact which could only be resolved after trial.5

On November 23, 1995, the trial court denied petitioners' motion. At the same time, however, it
dismissed the case on the ground that the complaint was not verified as required by Art. 151 of the
Family Code and, therefore, it did not believe that earnest efforts had been made to arrive at a
compromise. The order of the trial court reads: 6

The Court, after an assessment of the diverging views and arguments presented by
both parties, is of the opinion and so holds that judgment on the pleadings is
inappropriate not only for the fact that the defendants in their answer, particularly in
its paragraph 3 to the amended complaint, specifically denied the claim of damages
against them, but also because of the ruling in De Cruz vs. Cruz, G.R. No. 27759,
April 17, 1970 (32 SCRA 307), citing Rili vs. Chunaco, 98 Phil. 505, which ruled that
the party claiming damages must satisfactorily prove the amount thereof and that
though the rule is that failure to specifically deny the allegations in the complaint or
counter-claim is deemed an admission of said allegations, there is however an
exception to it, that is, that when the allegations refer to the amount of damages, the
 allegations must still be proved. This ruling is in accord with the provision of Section
1, Rule 9 of the Rules of Court.

That while the plaintiffs in their amended complaint alleged that earnest efforts
towards a compromise with the defendants were made, the fact is that their
complaint was not verified as provided in Article 151 of the Family Code. Besides, it
is not believed that there were indeed earnest efforts made to patch up and/or
reconcile the two feuding brothers, Gregorio and Augusto, both surnamed
Hontiveros.

The submission of the plaintiffs that, assuming no such earnest efforts were made,
the same is not necessary or jurisdictional in the light of the ruling in Rufino
Magbaleta, et al., petitioner, vs. Hon. Arsenio M. Ganong, et al., respondents, No. L-
44903, April 22, 1977, is, to the mind of this Court, not applicable to the case at bar
for the fact is the rationale in that case is not present in the instant case considering
these salient points:

a) Teodora Ayson, the alleged wife of defendant Gregorio Hontiveros and allegedly
not a member of the Hontiveros Family, is not shown to be really the wife of Gregorio
also denied in their verified answer to the amended complaint.

b) Teodora Ayson has not been shown to have acquired any proprietary right or
interest in the land that was litigated by Gregorio and Augusto, unlike the cited case
of Magbaleta where it was shown that a stranger to the family acquired certain right;

c) In the decision rendered by the appellate court no mention was made at all of the
name of Teodora Ayson as part-awardee of Lot 37 that was adjudged to Gregorio
other than himself who was therein described as a widower. Moreover, Teodora was
never mentioned in said decision, nor in the amended complaint and in the amended
motion for judgment on the pleadings that she ever took any part in the act of
transaction that gave rise to the damages allegedly suffered by the plaintiffs for which
they now claim some compensation.

WHEREFORE, in the light of all the foregoing premises, the Court orders, as it
hereby orders, the dismissal of this case with cost against the plaintiffs.

SO ORDERED.

Petitioners moved for a reconsideration of the order of dismissal, but their motion was
denied. 7 Hence, this petition for review on certiorari. Petitioner contend:

I. THE REGIONAL TRIAL COURT PALPABLY ERRED IN

DISMISSING THE COMPLAINT ON THE GROUND THAT IT DOES
NOT ALLEGE UNDER OATH THAT EARNEST EFFORTS TOWARD
A COMPROMISE WERE MADE PRIOR TO THE FILING THEREOF
AS REQUIRED BY ARTICLE 151 OF THE FAMILY CODE.

II. THE REGIONAL TRIAL COURT PALPABLY ERRED IN NOT

DENYING THE MOTION FOR JUDGMENT ON THE PLEADINGS
AND ORDERING A TRIAL ON THE MERITS.

Private respondents raise a preliminary question. They argue that petitioners should have brought
this case on appeal to the Court of Appeals since the order of the trial court judge was actually a
decision on the merits. On the other hand, even if petition for certiorari were the proper remedy, they
contend that the petition is defective because the judge of the trial court has not been impleaded as
a respondent.8

Private respondents' contention is without merit. The petition in this case was filed pursuant to Rule
45 of the Rules of Court. As explained in Atlas Consolidated Mining Development Corporation v.
Court of Appeals:9

Under Section 5, subparagraph (2)(e), Article VIII of the 1987 Constitution, the
Supreme Court is vested with the power to review, revise, reverse, modify, or affirm
 on appeal or certiorari as the law or the Rules of Court may provide, final judgments
and orders of lower courts in all cases in which only an error or question of law is
involved. A similar provision is contained in Section 17, fourth paragraph,
subparagraph (4) of the Judiciary Act of 1948, as amended by Republic Act No.
5440. And, in such cases where only questions of law are involved, Section 25 of the
Interim Rules and Guidelines implementing Batas Pambansa Blg. 129, in conjunction
with Section 3 of Republic Act No. 5440, provides that the appeal to the Supreme
Court shall be taken by petition for certiorari which shall be governed by Rule 45 of
the Rules of Court.

The rule, therefore, is that direct appeals to this Court from the trial court on
questions of law have to be through the filing of a petition for review on certiorari. It
has been held that:

. . . when a CFI (RTC) adjudicates a case in the exercise of its

original jurisdiction, the correct mode of elevating the judgment to the
Court of Appeals is by ordinary appeal, or appeal by writ of error,
involving merely the filing of a notice of appeal — except only if the
appeal is taken in special proceedings and other cases wherein
multiple appeals are allowed under the law, in which even the filing of
a record on appeal is additionally required. Of course, when the
appeal would involve purely questions of law or any of the other
cases (except criminal cases as stated hereunder) specified in
Section 5(2), Article X of the Constitution, it should be taken to the
Supreme Court by petition for review on certiorari in accordance with
Rules 42 and 45 of the Rules of Court.

By way of implementation of the aforestated provisions of law, this Court issued on

March 9, 1930 Circular No. 2-90, paragraph 2 of which provides:

2. Appeals from Regional Courts to the Supreme Court. — Except in

criminal cases where the penalty imposed is life imprisonment
or reclusion perpetua, judgments of regional trial courts may be
appealed to the Supreme Court only by petition for review
on certiorari in accordance with Rule 45 of the Rules of Court in
relation to Section 17 of the Judiciary Act of 1948, as amended, this
being the clear intendment of the provision of the Interim Rules that
(a)ppeals to the Supreme Court shall be taken by petition
for certiorari which shall be governed by Rule 45 of the Rules of
Court.

Under the foregoing considerations, therefore, the inescapable conclusion is that

herein petitioner adopted the correct mode of appeal in G.R. No. 88354 by filing with
this Court petition to review on certiorari the decision of the Regional Trail Court of
Pasig in Civil Case No. 25528 and raising therein purely questions of law.

In Meneses v. Court of Appeals, it was held: 10

It must also be stressed that the trial court's order of 5 June 1992 dismissing the
petitioner's complaint was, whether it was right or wrong, a final order because it had
put an end to the particular matter resolved, or settled definitely the matter therein
disposed of and left nothing more to be done by the trial court except the execution
of the order. It is a firmly settled rule that the remedy against such order is the
remedy of appeal and not certiorari. That appeal may be solely on questions of law,
in which case it may be taken only to this Court; or on questions of fact and law, in
which case the appeal should be brought to the Court of Appeals. Pursuant to Murillo
v. Consul, the appeal to this Court should be by petition for review on certiorari in
accordance with Rule 45 of the Rules of Court.

As private respondents themselves admit, the order of November 23, 1995 is a final order from
which an appeal can be taken. It is final in the sense that it disposes of the pending action before the
court and puts an end to the litigation so that nothing more was left for the trial court to
do. 11 Furthermore, as the questions raised as the questions of law, petition for review
on certiorari is the proper mode of appeal. These questions are: (1) whether after denying
petitioners' motion for judgment on the pleadings, the trial court could dismiss their complaint motu
proprio for failure to comply with Art. 151 of the Family Code which provides that no suit between
members of the same family shall prosper unless it appears from the complaint, which must be
verified, that earnest efforts towards a compromise have been made but the same have failed; and
(2) whether Art. 151 applies to this case. These questions do not require an examination of the
probative value of evidence presented and the truth or falsehood of facts asserted which questions
of fact would entail. 12

On the other hand, petitioners contend that the trial court erred in dismissing the complaint when no
motion to that effect was made by any of the parties. They point out that, in opposing the motion for
judgment on the pleadings, private respondents did not seek the dismissal of the case but only the
denial of petitioners' motion. Indeed, what private respondents asked was that trial be held on the
merits.

Of course, there are instances when the trial court may order the dismissal of the case even without
a motion to that effect filed by any of the parties. In Baja v. Macandog, 13 this Court mentioned
these cases, to wit:

The court cannot dismiss a case motu proprio without violating the plaintiff's right to
be heard, except in the following instances: if the plaintiff fails to appear at the time of
the trial; if he fails to prosecute his action for unreasonable length of time; or if he
fails to comply with the rules or any order of the court; or if the court finds that it has
no jurisdiction over the subject matter of the suit.

However, none of these exceptions appears in this case.

Moreover, the trial court itself found that "judgment on the pleadings is inappropriate not only for the
fact that [private respondents] in their answer . . . specifically denied the claim of damages against
them, but also because of the [rule] . . . that the party claiming damages must satisfactorily prove the
amount thereof. . . . " Necessarily, a trial must be held.

Rule 19 of the Rules of Court provides: 14

Sec. 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or

otherwise admits the material allegation of the adverse party's pleadings, the court
may, on motion of the party, direct judgment on such pleading. But in actions for
annulment of marriage or for legal separation the material facts alleged in the
complaint shall always be proved.

Under the rules, if there is no controverted matter in the case after the answer is filed, the
trial court has the discretion to grant a motion for judgment on the pleadings filed by a
party. 15 When there are actual issues raised in the answer, such as one involving damages,
which require the presentation of evidence and assessment thereof by the trial court, it is
improper for the judge to render judgment based on the pleadings alone. 16 In this case,
aside from the amount of damages, the following factual issues have to be resolved, namely,
(1) private respondent Teodora Ayson's participation and/or liability, if any to petitioners and
(2) the nature, extent, and duration of private respondents' possession of the subject
property. The trial court, therefore, correctly denied petitioners' motion for judgment on the
pleadings.

However, the trial court erred in dismissing petitioners' complaint on the ground that, although it
alleged that earnest efforts had been made toward the settlement of the case but they proved futile,
the complaint was not verified for which reason the trial court could not believe the veracity of the
allegation.

The absence of the verification required in Art. 151 does not affect the jurisdiction of the court over
the subject matter of the complaint. The verification is merely a formal requirement intended to
secure an assurance that matters which are alleged are true and correct. If the court doubted the
veracity of the allegations regarding efforts made to settle the case among members of the same
family, it could simply have ordered petitioners to verify them. As this Court has already ruled, the
court may simply order the correction of unverified pleadings or act on it and waive strict compliance
with the rules in order that the ends of justice may be served. 17 Otherwise, mere suspicion or doubt
on the part of the trial court as to the truth of the allegation that earnest efforts had been made
toward a compromise but the parties' efforts proved unsuccessful is not a ground for the dismissal of
an action. Only if it is later shown that such efforts had not really been exerted would the court be
justified in dismissing the action. Thus, Art. 151 provides:

No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have
been made, but that the same have failed. It if 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.

Moreover, as petitioners contend, Art. 151 of the Family Code does not apply in this case since the
suit is not exclusively among the family members. Citing several cases 18 decided by this Court,
petitioners claim that whenever a stranger is a party in the case involving the family members, the
requisite showing the earnest efforts to compromise is no longer mandatory. They argue that since
private respondent Ayson is admittedly a stranger to the Hontiveros family, the case is not covered
by the requirements of Art. 151 of the Family Code.

We agree with petitioners. The inclusion of private respondent Ayson as defendant and petitioner
Maria Hontiveros as plaintiff takes the case out of the ambit of Art. 151 of the Family Code. Under
this provision, the phrase "members of the same family" refers to the husband and wife, parents and
children, ascendants and descendants, and brothers and sisters, whether full or half-blood. 19 As
this Court held in Guerrero v. RTC, Ilocos Norte, Br. XVI: 20

As early as two decades ago, we already ruled in Gayon v. Gayon that the

enumeration of "brothers and sisters" as member of the same family does not
comprehend "sisters-in-law." In that case, then Chief Justice Concepcion
emphasized that "sisters-in-law" (hence, also "brother-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 mater. 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.

Religious relationship and relationship by affinity are not given any legal effect in this
jurisdiction. 21 Consequently, private respondent Ayson, who is described in the complaint
as the spouse of respondent Hontiveros, and petitioner Maria Hontiveros, who is admittedly
the spouse of petitioner Augusto Hontiveros, are considered strangers to the Hontiveros
family, for purposes of Art. 151.

Petitioners finally question the constitutionality of Art. 151 of the Family Code on the ground that it in
effect amends the Rules of Court. This, according to them, cannot be done since the Constitution
reserves in favor of the Supreme Court the power to promulgate rules of pleadings and procedure.
Considering the conclusion we have reached in this case, however, it is unnecessary for present
purposes to pass upon this question. Courts do not pass upon constitutional questions unless they
are the very lis mota of the case.

WHEREFORE, the petition is GRANTED and the Order, dated November 23, 1995 of the Regional
Trial Court of Iloilo City, Branch 25 is SET ASIDE and the case is remanded to the trial court for
further proceedings not inconsistent with this decision. SO ORDERED.

3. Tribiana v Tribiana, GR No. 137359, 13 Sep 2004

G.R. No. 137359             September 13, 2004

EDWIN N. TRIBIANA, petitioner,
vs.
LOURDES M. TRIBIANA, respondent

DECISION
CARPIO, J.:

The Case

This petition for review on certiorari 1 seeks to reverse the Court of Appeals’ Resolutions 2 dated 2 July
1998 and 18 January 1999 in CA-G.R. SP No. 48049. The Court of Appeals affirmed the Order 3 of
the Regional Trial Court, Branch 19, Bacoor, Cavite ("RTC"), denying petitioner Edwin N. Tribiana’s
("Edwin") motion to dismiss the petition for habeas corpus filed against him by respondent Lourdes
Tribiana ("Lourdes").

Antecedent Facts

Edwin and Lourdes are husband and wife who have lived together since 1996 but formalized their
union only on 28 October 1997. On 30 April 1998, Lourdes filed a petition for habeas corpus before
the RTC claiming that Edwin left their conjugal home with their daughter, Khriza Mae Tribiana
("Khriza"). Edwin has since deprived Lourdes of lawful custody of Khriza who was then only one (1)
year and four (4) months of age. Later, it turned out that Khriza was being held by Edwin’s mother,
Rosalina Tribiana ("Rosalina"). Edwin moved to dismiss Lourdes’ petition on the ground that the
petition failed to allege that earnest efforts at a compromise were made before its filing as required
by Article 151 of the Family Code.

On 20 May 1998, Lourdes filed her opposition to Edwin’s motion to dismiss claiming that there were
prior efforts at a compromise, which failed. Lourdes attached to her opposition a copy of the
Certification to File Action from their Barangay dated 1 May 1998.

On 18 May 1998, the RTC denied Edwin’s motion to dismiss and reiterated a previous order
requiring Edwin and his mother, Rosalina to bring Khriza before the RTC. Upon denial of his motion
for reconsideration, Edwin filed with the Court of Appeals a petition for prohibition and certiorari
under Rule 65 of the Rules of Civil Procedure. The appellate court denied Edwin’s petition on 2 July
1998. The appellate court also denied Edwin’s motion for reconsideration.

Hence, this petition.

The Rulings of the RTC and the Court of Appeals

The RTC denied Edwin’s motion to dismiss on the ground that the Certification to File Action
attached by Lourdes to her opposition clearly indicates that the parties attempted to reach a
compromise but failed.

The Court of Appeals upheld the ruling of the RTC and added that under Section 412 (b) (2) of the
Local Government Code, conciliation proceedings before the barangay are not required in petitions
for habeas corpus.

The Issue

Edwin seeks a reversal and raises the following issue for resolution:

WHETHER THE TRIAL AND APPELLATE COURTS SHOULD HAVE DISMISSED THE
PETITION FOR HABEAS CORPUS ON THE GROUND OF FAILURE TO COMPLY WITH
THE CONDITION PRECEDENT UNDER ARTICLE 151 OF THE FAMILY CODE.

The Ruling of the Court

The petition lacks merit.

Edwin argues that Lourdes’ failure to indicate in her petition for habeas corpus that the parties
exerted prior efforts to reach a compromise and that such efforts failed is a ground for the petition’s
dismissal under Section 1(j), Rule 16 of the 1997 Rules of Civil Procedure. 4 Edwin maintains that
under Article 151 of the Family Code, an earnest effort to reach a compromise is an indispensable
condition precedent. Article 151 provides:
 No suit between members of the same family shall prosper unless it should appear from the
verified complaint or petition that earnest efforts toward a compromise have been made, but
that the same have failed. If it is shown that no such efforts were in fact made, the case must
be dismissed.

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

Edwin’s arguments do not persuade us.

It is true that the petition for habeas corpus filed by Lourdes failed to allege that she resorted to
compromise proceedings before filing the petition. However, in her opposition to Edwin’s motion to
dismiss, Lourdes attached a Barangay Certification to File Action dated 1 May 1998. Edwin does not
dispute the authenticity of the Barangay Certification and its contents. This effectively established
that the parties tried to compromise but were unsuccessful in their efforts. However, Edwin would
have the petition dismissed despite the existence of the Barangay Certification, which he does not
even dispute.

Evidently, Lourdes has complied with the condition precedent under Article 151 of the Family Code.
A dismissal under Section 1(j) of Rule 16 is warranted only if there is a failure to comply with a
condition precedent. Given that the alleged defect is a mere failure to allege compliance with a
condition precedent, the proper solution is not an outright dismissal of the action, but an amendment
under Section 1 of Rule 10 of the 1997 Rules of Civil Procedure. 5 It would have been a different
matter if Edwin had asserted that no efforts to arrive at a compromise have been made at all.

In addition, the failure of a party to comply with a condition precedent is not a jurisdictional
defect.6 Such defect does not place the controversy beyond the court’s power to resolve. If a party
fails to raise such defect in a motion to dismiss, such defect is deemed waived. 7 Such defect is
curable by amendment as a matter of right without leave of court, if made before the filing of a
responsive pleading.8 A motion to dismiss is not a responsive pleading. 9 More importantly, an
amendment alleging compliance with a condition precedent is not a jurisdictional matter. Neither
does it alter the cause of action of a petition for habeas corpus. We have held that in cases where
the defect consists of the failure to state compliance with a condition precedent, the trial court should
order the amendment of the complaint.10 Courts should be liberal in allowing amendments to
pleadings to avoid multiplicity of suits and to present the real controversies between the parties.11

Moreover, in a habeas corpus proceeding involving the welfare and custody of a child of tender age,
the paramount concern is to resolve immediately the issue of who has legal custody of the child.
Technicalities should not stand in the way of giving such child of tender age full protection. 12 This rule
has sound statutory basis in Article 213 of the Family Code, which states, "No child under seven
years of age shall be separated from the mother unless the court finds compelling reasons to order
otherwise." In this case, the child (Khriza) was only one year and four months when taken away from
the mother.

The Court of Appeals dismissed Edwin’s contentions by citing as an additional ground the exception
in Section 412 (b) (2) of the Local Government Code ("LGC") on barangay conciliation, which states:

(b) Where the parties may go directly to court. – the parties may go directly to court in the
following instances:

xxx

2) Where a person has otherwise been deprived of personal liberty calling

for habeas corpus proceedings;

xxx.

Under Rule 102 of the 1997 Rules of Civil Procedure, a party may resort to a habeas
corpus proceeding in two instances. The first is when any person is deprived of liberty either
through illegal confinement or through detention. The second instance is when custody of
any person is withheld from the person entitled to such custody. The most common case
falling under the second instance involves children who are taken away from a parent by
another parent or by a relative. The case filed by Lourdes falls under this category.
The barangay conciliation requirement in Section 412 of the LGC does not apply to habeas
corpus proceedings where a person is "deprived of personal liberty." In such a case, Section 412
expressly authorizes the parties "to go directly to court" without need of any conciliation proceedings.
There is deprivation of personal liberty warranting a petition for habeas corpus where the "rightful
custody of any person is withheld from the person entitled thereto." 13 Thus, the Court of Appeals did
not err when it dismissed Edwin’s contentions on the additional ground that Section 412 exempts
petitions for habeas corpus from the barangay conciliation requirement.

The petition for certiorari filed by Edwin questioning the RTC’s denial of his motion to dismiss merely
states a blanket allegation of "grave abuse of discretion." An order denying a motion to dismiss is
interlocutory and is not a proper subject of a petition for certiorari. 14 Even in the face of an error of
judgment on the part of a judge denying the motion to dismiss, certiorari will not lie. Certiorari is not a
remedy to correct errors of procedure.15 The proper remedy against an order denying a motion to
dismiss is to file an answer and interpose as affirmative defenses the objections raised in the motion
to dismiss. It is only in the presence of extraordinary circumstances evincing a patent disregard of
justice and fair play where resort to a petition for certiorari is proper. 16

The litigation of substantive issues must not rest on a prolonged contest on technicalities. This is
precisely what has happened in this case. The circumstances are devoid of any hint of the slightest
abuse of discretion by the RTC or the Court of Appeals. A party must not be allowed to delay
litigation by the sheer expediency of filing a petition for certiorari under Rule 65 based on scant
allegations of grave abuse. More importantly, any matter involving the custody of a child of tender
age deserves immediate resolution to protect the child’s welfare.

WHEREFORE, we DISMISS the instant petition for lack of merit. We AFFIRM the Resolutions of the

Court of Appeals dated 2 July 1998 and 18 January 1999 in CA-G.R. SP No. 48049. The Regional
Trial Court, Branch 19, Bacoor, Cavite is ordered to act with dispatch in resolving the petition
for habeas corpus pending before it. This decision is IMMEDIATELY EXECUTORY. SO ORDERED.

4. Martinez vs Martinez, GR No. 162084, 28 Jun 2005

G.R. No. 162084               June 28, 2005

APRIL MARTINEZ, FRITZ DANIEL MARTINEZ and MARIA OLIVIA MARTINEZ, petitioners,

vs.
RODOLFO G. MARTINEZ, respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP
No. 59420 setting aside and reversing the decision of the Regional Trial Court (RTC) of Manila,
Branch 30, in Civil Case No. 00-96962 affirming, on appeal, the decision of the Metropolitan Trial
Court (MTC) of Manila in Civil Case No. 164761 (CV) for ejectment.

The Antecedents

The spouses Daniel P. Martinez, Sr. and Natividad de Guzman-Martinez were the owners of a
parcel of land identified as Lot 18-B-2 covered by Transfer Certificate of Title (TCT) No. 54334, as
well as the house constructed thereon.2 On March 6, 1993, Daniel, Sr. executed a Last Will and
Testament3 directing the subdivision of the property into three lots, namely, Lots 18-B-2-A, 18-B-2-B
and 18-B-2-C. He then bequeathed the three lots to each of his sons, namely, Rodolfo, Manolo and
Daniel, Jr.; Manolo was designated as the administrator of the estate.

In May 1995, Daniel, Sr. suffered a stroke which resulted in the paralysis of the right side of his
body. Natividad died on October 26, 1996. 4 Daniel, Sr. passed away on October 6, 1997. 5

On September 16, 1998, Rodolfo found a deed of sale purportedly signed by his father on
September 15, 1996, where the latter appears to have sold Lot 18-B-2 to Manolo and his wife
Lucila.6 He also discovered that TCT No. 237936 was issued to the vendees based on the said deed
of sale.7
Rodolfo filed a complaint8 for annulment of deed of sale and cancellation of TCT No. 237936 against
his brother Manolo and his sister-in-law Lucila before the RTC. He also filed a criminal complaint
for estafa through falsification of a public document in the Office of the City Prosecutor against
Manolo, which was elevated to the Department of Justice. 9

On motion of the defendants, the RTC issued an Order10 on March 29, 1999, dismissing the
complaint for annulment of deed of sale on the ground that the trial court had no jurisdiction over the
action since there was no allegation in the complaint that the last will of Daniel Martinez, Sr. had
been admitted to probate. Rodolfo appealed the order to the CA.11

On October 4, 1999, Rodolfo filed a Petition with the RTC of Manila for the probate of the last will of
the deceased Daniel Martinez, Sr.12

In the meantime, the spouses Manolo and Lucila Martinez wrote Rodolfo, demanding that he vacate
the property. Rodolfo ignored the letter and refused to do so. This prompted the said spouses to file
a complaint for unlawful detainer against Rodolfo in the MTC of Manila. They alleged that they were
the owners of the property covered by TCT No. 237936, and that pursuant to Presidential Decree
(P.D.) No. 1508, the matter was referred to the barangay for conciliation and settlement, but none
was reached. They appended the certification to file action executed by the barangay chairman to
the complaint.

In his Answer13 to the complaint filed on October 11, 1999, Rodolfo alleged, inter alia, that the
complaint failed to state a condition precedent, namely, that earnest efforts for an amicable
settlement of the matter between the parties had been exerted, but that none was reached. He also
pointed out that the dispute had not been referred to the barangay before the complaint was filed.

On October 20, 1999, the spouses Martinez filed an Amended Complaint in which they alleged that
earnest efforts toward a settlement had been made, but that the same proved futile. Rodolfo filed his
opposition thereto, on the ground that there was no motion for the admission of the amended
complaint. The trial court failed to act on the matter.

The spouses Martinez alleged in their position paper that earnest efforts toward a compromise had
been made and/or exerted by them, but that the same proved futile. 14 No amicable settlement was,
likewise, reached by the parties during the preliminary conference because of irreconcilable
differences. The MTC was, thus, impelled to terminate the conference.15

On February 21, 2000, the trial court rendered judgment in favor of the spouses Martinez.
The fallo of the decision reads:

WHEREFORE, premises considered, judgment is rendered in favor of plaintiff. The defendant,

including any person claiming right under him, is ordered:

1) To vacate the subject premises;

2) To pay plaintiff the sum of ₱10,000.00 a month starting July 17, 1999, the date of last
demand until he vacates the same;

3) To pay the sum of ₱10,000.00 as and for attorney’s fees; and

4) Costs of suit.

SO ORDERED.16

The trial court declared that the spouses Martinez had substantially complied with Article 151 of the
Family Code of the Philippines17 based on the allegations of the complaint and the appended
certification to file action issued by the barangay captain.

Rodolfo appealed the decision to the RTC. On May 31, 2000, the RTC rendered judgment affirming
the appealed decision. He then filed a petition for review of the decision with the CA, alleging that:

1. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND WITHOUT
MERIT THE DEFENSE OF PETITIONER THAT THERE IS NO ALLEGATION IN THE COMPLAINT
THAT PETITIONER HAS UNLAWFULLY WITHHELD POSSESSION OF THE PROPERTY FROM
RESPONDENTS – A REQUIREMENT IN [AN] UNLAWFUL DETAINER SUIT.

2. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT
PETITIONER’S POSSESSION OF THE PROPERTY IS BY MERE TOLERANCE OF
RESPONDENTS.

3. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE
RESPONDENTS HAVE A CAUSE OF ACTION.

4. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH DID NOT RESOLVE
THE SIXTH ISSUE, TO WIT, "Whether or not this Court has jurisdiction over this case considering
that the allegations in the complaint makes out a case of accion publiciana."

5. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH HAS NO
JURISDICTION OVER THE CASE.

6. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE
MANDATORY REQUIREMENT OF CONCILIATION HAS BEEN COMPLIED WITH.

7. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THERE
WAS SUBSTANTIAL COMPLIANCE WITH THE KATARUNGANG PAMBARANGAY LAW.

8. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE
PENDENCY OF CIVIL CASE NO. 98-91147 AND SPECIAL PROCEEDINGS NO. 99-95281,
INVOLVING THE PETITIONER AND RESPONDENTS AND INVOLVING THE SAME PROPERTY
DID NOT DIVEST THE MTC OF AUTHORITY TO DECIDE THE CASE.

9. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH GRANTED THE
RELIEF PRAYED FOR BY THE RESPONDENTS.

10. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC. 18

On November 27, 2003, the CA rendered judgment granting the petition and reversing the decision
of the RTC. The appellate court ruled that the spouses Martinez had failed to comply with Article 151
of the Family code. The CA also held that the defect in their complaint before the MTC was not
cured by the filing of an amended complaint because the latter pleading was not admitted by the trial
court.

Upon the denial of their motion for reconsideration of the said decision, the spouses Martinez filed
the present petition for review on certiorari, in which they raise the following issues:

I.

WHETHER OR NOT THE CERTIFICATION TO FILE ACTION AND THE ALLEGATIONS IN THE
COMPLAINT THAT THE CASE PASSED [THROUGH] THE BARANGAY BUT NO SETTLEMENT
WAS REACHED, ARE SUFFICIENT COMPLIANCE TO PROVE THAT, INDEED, EARNEST
EFFORTS WERE, IN FACT, MADE BUT THE SAME HAVE FAILED PRIOR TO THE FILING OF
THE COMPLAINT.

II.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN

FINDING THAT THERE WAS NON-COMPLIANCE WITH THE REQUIREMENT PROVIDED FOR
UNDER ARTICLE 151 OF THE FAMILY CODE, CONSIDERING THAT ONE OF THE PARTIES TO
A SUIT IN THIS CASE IS NOT A MEMBER OF THE SAME FAMILY. 19

The petitioners alleged that they substantially complied with Article 151 of the Family Code, since
they alleged the following in their original complaint:

2. In compliance with P.D. 1508, otherwise known as the "Katarungang Pambarangay," this case
passed [through] the Barangay and no settlement was forged between plaintiffs and defendant as a
result of which Certification to File Action was issued by Barangay 97, Zone 8, District I, Tondo,
Manila. xxx" (Underscoring supplied)20

Further, the petitioners averred, they alleged in their position paper that they had exerted earnest
efforts towards a compromise which proved futile. They also point out that the MTC resolved to
terminate the preliminary conference due to irreconcilable difference between the parties. Besides,
even before they filed their original complaint, animosity already existed between them and the
respondent due to the latter’s filing of civil and criminal cases against them; hence, the objective of
an amicable settlement could not have been attained. Moreover, under Article 150 of the Family
Code, petitioner Lucila Martinez had no familial relations with the respondent, being a mere sister-in-
law. She was a stranger to the respondent; hence, there was no need for the petitioners 21 to comply
with Article 151 of the Family Code.

The petition is meritorious.

Article 151 of the Family Code 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.

The phrase "members of the family" must be construed in relation to 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.

Article 151 of the Family code must be construed strictly, it being an exception to the general rule.
Hence, a sister-in-law or brother-in-law is not included in the enumeration.22

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.23

Thus, a party’s failure to comply with Article 151 of the Family Code before filing a complaint against
a family member would render such complaint premature.

In this case, the decision of the CA that the petitioners were mandated to comply with Article 151 of
the Family code and that they failed to do so is erroneous.

First. Petitioner Lucila Martinez, the respondent’s sister-in-law, was one of the plaintiffs in the MTC.
The petitioner is not a member of the same family as that of her deceased husband and the
respondent:

As regards plaintiff’s failure to seek a compromise, as an alleged obstacle to the present case, Art.
222 of our Civil Code provides:

"No suit shall be filed or maintained between members of the same family unless it should appear
that earnest efforts toward a compromise have been made, but that the same have failed, subject to
the limitations in Article 2035."
It is noteworthy that the impediment arising from this provision applies to suits "filed or maintained
between members of the same family." This phrase, "members of the same family," should,
however, be construed in the light of Art. 217 of the same Code, pursuant to which:

"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."

Mrs. Gayon is plaintiff’s sister-in-law, whereas her children are his nephews and/or nieces. Inasmuch
as none of them is included in the enumeration contained in said Art. 217 – which should be
construed strictly, it being an exception to the general rule – and Silvestre Gayon must necessarily
be excluded as party in the case at bar, it follows that the same does not come within the purview of
Art. 222, and plaintiff’s failure to seek a compromise before filing the complaint does not bar the
same.24

Second. The petitioners were able to comply with the requirements of Article 151 of the Family Code
because they alleged in their complaint that they had initiated a proceeding against the respondent
for unlawful detainer in the Katarungang Pambarangay, in compliance with P.D. No. 1508; and that,
after due proceedings, no amicable settlement was arrived at, resulting in the barangay chairman’s
issuance of a certificate to file action.25 The Court rules that such allegation in the complaint, as well
as the certification to file action by the barangay chairman, is sufficient compliance with article 151 of
the Family Code. It bears stressing that under Section 412(a) of Republic Act No. 7160, no
complaint involving any matter within the authority of the Lupon shall be instituted or filed directly in
court for adjudication unless there has been a confrontation between the parties and no settlement
was reached.26

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. SP No. 59420 is REVERSED AND SET ASIDE. The Decision of the
Metropolitan Trial Court of Manila, as affirmed on appeal by the Regional Trial Court of Manila,
Branch 30, in Civil Case No. 164761(CV) is REINSTATED. No costs. SO ORDERED.

5. Versoza vs Versoza, GR No. 25609, 27 Nov 1968

G.R. No. L-25609      November 27, 1968

MARGARET ANN WAINRIGHT VERSOZA, JOSE MA. VERSOZA, JR., CHARLES JOHN
VERSOZA and VIRGINIA FELICE VERSOZA, plaintiffs-appellants,
vs.
JOSE MA. VERSOZA, defendant-appellee.

William H. Quasha and Associates for plaintiffs-appellants.

Deogracias T. Reyes and Associates and Jose M. Luison for defendant-appellee.

SANCHEZ, J.:

The question before us, framed in legal setting, is the correctness of the lower court's order
dismissing, without prejudice, the complaint seeking, inter alia, future support upon the
ground that there is no allegation therein that earnest efforts toward a compromise were
made but that the same have failed, in infringement of Article 222 of the Civil Code.

With this problem in mind, we turn to the pivotal facts.

On March 4, 1964, a verified complaint, later amended, for P1,500.00 monthly support, support in
arrears, and damages, and custody of children, with a petition for support pendente lite1 was lodged
against Jose Ma. Versoza by his wife, Margaret Ann Wainright Versoza, and their three minor
children, Jose Ma. Versoza, Jr., Charles John Versoza and Virginia Felice Versoza. Reasons given
are that defendant has abandoned plaintiffs without providing for their support and maintains illicit
relations with another woman.

Defendant's answer attacked the complaint on the claim that it is premature and/or that it states no
cause of action. Because, the complaint which involves members of the same family 2 does allege
earnest efforts toward a compromise before the complaint was filed as set forth in the statute
mentioned at the start of this opinion. Then followed defendant's motion for preliminary hearing on
jurisdiction. Defendant there argued that compliance with Article 222 of the Civil Code aforesaid was
a condition precedent and should have been alleged in the complaint.

On February 22, 1965, following appropriate proceedings, the lower court came out with its first
appealed order. It there resolved to dismiss the complaint without prejudice, upon the ground that
there was no showing that efforts have been exerted to settle the case amicably before suit was
started.

Plaintiffs moved to reconsider. Annexed to its motion was an affidavit of their counsel to the effect
that before court action was taken efforts were made to settle the case amicably, but which were
fruitless.

On March 30, 1965, the lower court brushed aside this motion.

In an effort to conform to the position taken by the lower court, plaintiffs filed a second motion for the
reconsideration of the orders of February 22, and March 30, 1965. Plaintiffs at the same time sought
admission of their second amended complaint in which the required averment was made to obviate
the objection to their complaint. They there alleged that before starting the present suit, they sought
amicable settlement but were unsuccessful.

On June 22, 1965, the second motion for reconsideration was likewise denied by the lower court
"(f)or lack of merit."

The dismissal orders are now the subject of appeal.

1. Plaintiffs argue that the Civil Code requirement of attempt to reach a compromise and of its failure
need not be alleged in the complaint. They claim that some such fact may be proved either at the
main hearing or at the preliminary hearing on the motion to dismiss.

The text of Article 222 of the Civil Code is this: "No suit shall be filed or maintained between
members of the same family unless it should appear that earnest efforts toward a compromise have
been made, but that the same have failed, subject to the limitations in article 2035."3 The
requirement in Article 222 has been given more teeth by Section 1(j), Rule 16 of the Rules of Court,
which states as ground for a motion to dismiss that "(t)he suit is between members of the same
family and no earnest efforts towards a compromise have been made."

The cumulative impact of the statute and the rule just adverted to is that earnest efforts to reach a
compromise and failure thereof must — ordinarily — be alleged in the complaint. The Civil Code
provision that "(n)o suit shall be filed or maintained" simply means that the attempt to compromise
and inability to arrive thereat is a condition precedent to the filing of the suit. As such it is a part of
plaintiffs' cause of action. Justice J.B.L. Reyes and Judge Puno4 bolstered this view with their
statement that "(t)he terms of article 222 require express allegation of an attempt to compromise and
its failure; otherwise there is no cause of action stated."

2. The foregoing, however, is but a statement of the general rule. Future support operates outside
the ambit thereof. Mucius Scaevola5 expresses the view that no objection can be made to a
compromise "cuando el derecho es renunciable, eminentemente privado." Scaevola, however,
emphasizes: "(P)ero el derecho a la vida no lo es." This brings us to the legal provision Scaevola
commented upon, namely, Article 1814 of the Spanish Civil Code of 1889, which reads:

Art. 1814. No puede transigir sobre el estado civil de las personas, ni sobre las cuestiones
matrimoniales, ni sobre alimentos futuros.6

So it is, that Colin y Capitant7 observed: "Una cosa es que la transaccion sea en principio un acto
licito, con exclusion de aquellas materias a que se refiere el art. 1814 del Codigo civil.
The philosophy behind the rule is best expressed by Manresa 8 in the following terms:

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

xxx      xxx      xxx

Restanos ocuparnos de otra prohibicion impuesta tambien por el art. 1814 en su ultima
parte. Nos referimos a la establecida por el mismo respecto de la transaccion sobre los
alimentos futuros; prohibicion que se funda en poderosas razones de moralidad que no
pueden ocultarse, ni pasar desapercibidas para nadie que detenidamente medite sobre ello.

En efecto, en rigor de principios, la lay concede los alimentos en razon a la necesidad que

de ellos tiene el alimentista pora vivir, y es evidente que transigir sobre ellos, equivaldria a
renunciar en parte a la vida, como ha dicho un autor ("Coleccion de las Instituciones
jurisdicas politicas de los pueblos modernos," Tomo 13, pag. 792); y si no le fueran
necesarios pudiendo por tal motivo renunciarlos, no cabria tampoco transaccion, porque no
tendria derecho a percibirlos.

The foregoing but emphasizes the concept of support. For, support is, amongst others, everything
that is indispensable for sustenance.9 The right to support cannot be: (1) renounced; (2) transmitted
to third persons; nor (3) compensated with what the recipient owes the obligor. 10 Compensation may
not even be set up against a creditor who has a claim for support due by gratuitous title. 11 Of course,
support in arrears is a different thing altogether. It may be compensated, renounced and transmitted
by onerous or gratuitous title. 12 In Coral vs. Gallego,13 the Court of Appeals has had occasion to
declare that the right to support is not susceptible of future transactions under Article 1814 of the old
Civil Code.

Article 1814 of the Spanish Civil Code was reproduced in Article 2035 of the new Civil Code — in an
expanded form — as follows:

ART. 2035. No compromise upon the following questions shall be valid:

(1) The civil status of persons;

(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.

It thus appears that Article 2035 has roots deeper than Article 222. For, whereas Article 222 is
inserted as a new concept in the present Code in a laudable effort to obviate a sad and tragic
spectacle occasioned by a litigation between members of the same family. Article 2035 firmly
maintains the ancient injunction against compromise on matters involving future support. And this is
as it should be. For, even as Article 222 requires earnest efforts at a compromise and inability to
reach one as a condition precedent to the filing and maintenance of a suit "between the members of
the same family", that same article took good care to add: "subject to the limitations in article 2035."

Plaintiffs ask for support past, present and future. There is also the prayer for alimony pendente lite.
Since the present action also revolves on the right to future support and because compromise on
future support is prescribed,14 then the conclusion is irresistible that an attempt at compromise of
future support and failure thereof is not a condition precedent to the filing of the present suit. It need
not be alleged in the complaint. The very opening statement in Article 2035 unmistakably confirms
our view. It says that "(n)o compromise upon the following question shall be valid: ... (4) Future
support."15 We cannot afford to give a loose view to this controlling statute. We may not disregard it.
To do so is to misread the law, to write off an explicit congressional will, to cross the line which
circumscribes courts of justice and step into legislative area.

Mendoza vs. Court of Appeals, 1967B Phild. 82, is to be read as controlling here. In that case, the
wife filed in the Court of First Instance of Nueva Ecija an action for support against her husband who
was then employed in a hospital in the United States. Defendant, by counsel, moved to dismiss, for
the reason that the complaint failed to state a cause of action "because it contained no allegation
that earnest efforts toward a compromise have been made before the filing of the suit, and invoking
the provisions of Article 222 of the Civil Code of the Philippines." The Court of First Instance refused
to entertain the motion to dismiss. Defendant petitioned the Court of Appeals for a writ of prohibition.
The appellate court denied the writ prayed for Defendant petitioned this Court for review. We
affirmed. In that first judicial test, this Court, speaking thru Mr. Justice J.B.L. Reyes, held:

While we agree that petitioner's position represents a correct statement of the general rule
on the matter, we are nevertheless constrained to hold that the Court of Appeals and the
Court of First Instance committed no error in refusing to dismiss the complaint, for on its
face, the same involved a claim for future support that under Article 2035 of the Civil Code of
the Philippines can not be subject of a valid compromise, and is, therefore, outside the
sphere of application of Article 222 of the Code upon which petitioner relies. This appears
from the last proviso of said Article 222, already quoted....

xxx      xxx      xxx

Since no valid compromise is possible on these issues, a showing of previous efforts to

compromise them would be superfluous.

It may be that the complaint asks for both future support and support in arrears, as petitioner
contends. But, the possibility of compromise on the latter does not negate the existence of a
valid cause of action for future support, to which Article 222 can not apply.16

Although the complaint herein seeks custody of minor children and damages as well, the prime
object is support. And, of importance, of course, is future support. The reliefs sought are intimately
related to each other. They all spring from the fact that husband and wife are separated from each
other. So it is, that expediency dictates that they be, as they are now, placed together in one
complaint. For, multiplicity of suits is not favored in law. Since one of the causes of action, that for
future support, may be lodged in court without the compromise requisite in Article 222 of the Civil
Code, the complaint herein, as we have ruled in Mendoza, may not be dismissed.

We, accordingly, hold that the lower court erred in dismissing the complaint.

3. But even on the assumption that it was error on the part of plaintiffs to have failed to so allege,
plaintiffs should not be barred from making an amendment to correct it.

Parenthetically, after a responsive pleading has been served, amendments may be made only upon
leave of court.17 But, in the furtherance of justice, the court "should be liberal in allowing amendments
to pleadings to avoid multiplicity of suits and in order that the real controversies between the parties
are presented, their rights determined and the case decided on the merits without unnecessary
delay."18

Thus, the instances wherein this Court considered allowance of an amendment not justified are
limited. As defendant correctly points out, a proposed amendment may be refused when it confers
jurisdiction on the court in which it is filed, if the cause of action originally set forth was not within that
court's jurisdiction.19 An amendment may also be refused when the cause of action is substantially
altered.20

A typical case which merited refusal of an amendment is Rosario vs. Carandang, supra. There, the
original complaint was one for forcible entry and detainer over which the Court of First Instance,
where the complaint was filed, had no jurisdiction. The amendment sought by plaintiff was the
inclusion of an allegation that the defendants were claiming ownership over the land in dispute. The
proposed amendment would thus convert the case from one of forcible entry and detainer into one of
recovery of possession, which is within the jurisdiction of the Court of First Instance. The court
properly denied the amendment.
The alleged defect is that the present complaint does not state a cause of action. The proposed
amendment seeks to complete it. An amendment to the effect that the requirements of Article 222
have been complied with does not confer jurisdiction upon the lower court. With or without this
amendment, the subject-matter of the action remains as one for support, custody of children, and
damages, cognizable by the court below.

To illustrate, Tamayo vs. San Miguel Brewery, Inc.,21 allowed an amendment which "merely

corrected a defect in the allegation of plaintiff-appellant's cause of action, because as it then stood,
the original complaint stated no cause of action." We there ruled out as inapplicable the holding
in Campos Rueda Corporation vs. Bautista, supra, that an amendment cannot be made so as to
confer jurisdiction on the court.

The lower court, in the interest of justice, should have allowed plaintiffs to amend their complaint
instead of granting the motion to dismiss. This it could have done under Section 3 of Rule 16 of the
Rules of Court. For, the defect in the complaint is curable.

For the reasons given —

(1) the orders of the lower court of February 22, 1965, March 30, 1965, and June 22, 1965 are
hereby set aside; and

(2) the record of this case is hereby remanded to the Court of First Instance of Rizal, Quezon City,
Branch IX, with instructions to admit the second amended complaint and to conduct further
proceedings not inconsistent with the opinion herein. Costs against defendant. So ordered.

B. The Family Home;

6. Gomez vs Gealone, GR No. 58281, 13 Nov 1991

G.R. No. L-58281 November 13, 1991

DIONISIO GOMEZ, FE GOMEZ, JUAN GEALONE, LUZ GOMEZ, AQUINO GUETA, DIONISIO
GOMEZ, JR., LYDIA ANGELES, MILAGROS GOMEZ, EMILIO T. TRAILGALGAL, CESAR
GEALONE, AMADA GOMEZ, RICARDO MANDANAS, ROSE GOMEZ, CONSOLACION ESPELA,
NORMA GOMEZ, and CORAZON GOMEZ, plaintiffs-appellees,
vs.
MARCELO GEALONE, LUCIA G. ESBER, ZOILO ESBER, ODEN BONTIGAO, HONORATO
BONTIGAO, BENITO GEALONE, CESAR GEALONE, SEVERINO GERONA, TITO GERMEDIA,
AURELIO GOBRIS, NEMESIO FORTES, PONCIANO GOBRIS, FLOSERFIDA GONA, and
GORGONIO BONTIGAO, defendants-appellants.

Benjamin C. Gratela for plaintiffs-appellees.

Mario G. Fortes for defendants-appellants.

DAVIDE, JR., J:.p

May a sheriffs sale on execution of properties of a judgment debtor be set aside after the
period of redemption had expired on the ground that either the properties are exempt from
execution or that their value is grossly in excess of the judgment debt and costs, thereby
resulting in an iniquitous transaction amounting to a deprivation of property without due
process of law?

This is the principal issue in this case which was spawned by the trial court's denial of a motion to
set aside an execution sale filed six (6) months after the lapse of the one-year redemption period.
The denial order was appealed to the Court of Appeals. However, on 26 August 1981, or nearly four
(4) years after it considered the case submitted for decision,   the Court of Appeals handed down a
1

Resolution elevating the case to this Court on the ground that the errors raised in the appeal
involved "purely questions of law."  2

 the following are the material operative facts and procedural

As gathered from the Amended Record on Appeal, 3

antecedents in this case:

Plaintiffs-appellees filed with Branch II (Gubat) of the then Court of First Instance (now Regional Trial
Court) of Sorsogon, a complaint, docketed as Civil Case No. 383, to recover from defendants-
appellants a parcel of land with an area of 82,862 square meters located in Otavi, Bulan, Sorsogon.
This property corresponds to Lot No. 6790 of the Bulan Cadastre. On 12 March 1971, the trial court
rendered a decision in favor of plaintiffs-appellees, the dispositive portion of which reads:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered in favor of the plaintiffs
and against the defendants by:

1. declaring plaintiffs as the lawful owners of the land described in paragraph 3 of the
second amended complaint;

2. ordering each and everyone of the defendants to vacate immediately the portions
of the land which they are positively occupying actually;

3. ordering defendants Lucia G. de Esber and Zoilo Esber to pay jointly and severally
to plaintiffs the amount of P2,800.00 in terms of actual damages;

4. ordering all the defendants to pay the proportionate share of the cost of this suit.

Defendants-appellants appealed the above decision to the Court of Appeals which, however,
dismissed the appeal on 5 December 1972 for failure of defendants-appellants to pay the
docket fees within the reglementary period.

The trial court's decision became final and executory on 23 January 1973. On 29 March
1973, plaintiffs-appellees filed a motion for its execution which the trial court granted in its
Order of 13 April 1973. On 17 April 1973, the Deputy Provincial Sheriff of Sorsogon delivered
the land in dispute to plaintiffs-appellees.

Defendants-appellants Lucia G. de Esber and Zoilo Esber, however, failed to pay the
P2,800.00 actual damages and their shares in the costs of the suit. For its satisfaction, the
Provincial Sheriff levied on 4 May 1973 on the following properties of Lucia and Zoilo: (1) an
agricultural land, Lot No. 8275, with an area of 12.2278 hectares located in Marinab, Bulan,
Sorsogon and assessed at P1,220.00 under Tax Declaration No. 2248 in the name of Zoilo
Esber; and (2) a residential land, Lot No. 360, with an area of 458 square meters, including
the residential house thereon, located in Poblacion, Bulan, Sorsogon and assessed at
P1,830 under a Tax Declaration in the name of Zoilo Esber.

On 26 May 1973, the Provincial Sheriff issued a Sheriffs Notice of Public Auction Sale of the
foregoing properties, copy furnished defendant-appellant Zoilo Esber and the heirs of
plaintiff-appellee Dionisio Gomez. The auction sale was scheduled for 21 June 1973,
between 9:00 o'clock in the morning and 4:00 o'clock in the afternoon.

Plaintiffs-appellees Fe Gomez Gealone, Luz Gomez Gueta, and Aquino Gueta, for
themselves and on behalf of the other plaintiffs, whose bid was P3,522.50, were the highest
bidders for the properties.

On 23 June 1973, the Provincial Sheriff issued a Sheriffs Certificate of Sale to the above
highest bidders, incorporating the statement that the sale is subject to the right of legal
redemption within one year from the date of sale. Thereafter, on 27 June 1973, the
Provincial Sheriff submitted to the trial court a Return of Service summarizing the
proceedings of the 21 June 1973 auction sale.

On 27 June 1974, or after the lapse of the one-year redemption period, the Provincial Sheriff
issued a Final Bill of Sale in favor of the highest bidders. Plaintiffs-appellees filed, on 11 July
1974, an Ex-Parte Motion for Issuance of Writ of Possession, which the trial court granted on
21 August 1974. The writ was issued on 4 September 1974.

The Provincial Sheriff then delivered the auctioned properties to plaintiffs-appellees on 9

September 1974. On 12 September 1974, he submitted a Return of Service.

On 14 September 1974, defendants-appellants Zoilo Esber and Lucia de Esber, through

counsel, filed with the trial court an "Appearance and Manifestations" taking exceptions "on
the proceedings in this case from the levy on execution of the real properties owned by the
defendants, the auction sale, the issuance of the certificate and final sale, the writ of delivery
of possession and consequent delivery of possession of the properties" arguing that (1) the
real properties levied on execution and later sold in the auction sale have prior and
registered liens in favor of third persons, and (2) the residential house and the land (on)
which the building was constructed is a family home or homestead exempt from execution.

Consequently, plaintiffs-appellees filed, on 5 November 1974, a Petition To Declare

Defendants In Contempt arguing that defendants Lucia G. de Esber and Zoilo Esber, despite
the service of the writ and the warning of the Deputy Provincial Sheriff not to infringe and
disobey the order of this Honorable Court, not to mention repeated demands made by the
plaintiffs, failed and refused and continue to fail and refuse to vacate the properties
described in the writ in open violation and disobedience of the order of the Court and to
plaintiffs' damage and prejudice.

Acting on the petition for contempt, the trial court issued an order on 27 November 1974
which, inter alia, directed Mr. Jesus G. Gaerlan, special deputy sheriff of the court, "to repair
to the twelve-hectare portion which have (sic) been executed and for which a Bill of Sale has
been issued, and then and there place the plaintiffs in immediate possession" thereof and to
make a report to the court immediately after accomplishing the assignment, and warned that,
hereafter, "any complaint by the winning party in regard to disturbance of their (sic)
possession as well as enjoyment of the right of ownership of this twelve-hectare portion of
land will be deemed an act of contempt for which the defendants and/or their agents shall be
held responsible." It further stated that it will entertain a proper motion contesting the right to
levy upon the property where defendant's house stands on the ground that it is exempt from
execution under Rule 39 of the Rules of Court.

On 2 December 1974, special deputy sheriff Jesus G. Gaerlan submitted to the trial court a
Report stating that plaintiffs-appellees were actually placed in possession of the 12-hectare
land on 29 November 1974 at about 2:00 o'clock in the afternoon. This was followed by a
Supplemental Report submitted on 5 December 1974 stating that on the very day of
submission, Juan Gealone, one of the plaintiffs, and Anatolia Berjerano, informed him
(Gaerlan) and the Clerk of Court that defendant Zoilo Esber is not the real owner of the land
subject of the previous report, and that the true owner and actual possessor thereof is
Anatolia Berjerano who inherited the same from her mother, Vicenta Siminaino. In support of
her claim of ownership, Anatolia presented Tax Declaration No. 13966 in her name covering
Lots Nos. 8274 and 8275, with an area of 13.6408 Has., which area appears to be more or
less identical, as to location, with that covered by Tax Declaration No. 1524 of Zoilo Esber.

Consequently, defendants-appellants filed a Motion to Set Aside Execution Sale on 12

December 1974 on the grounds:

1. That the property described and covered by Tax (Declara tion) No. 2249, Lot No.
360 of the Bulan Cadastre in the Sheriff's Notice of Public Auction Sale is exempt
from execution.

2. That the execution sale violated Section 15, Rule 39 of the Revised Rules of Court
in that the Sheriff sold more property tha(n) what was sufficient to pay the judgment
debt and costs.

3. That the execution violated Section 21, Rule 39 of the Revise Rules of Court in
that:

(a) The properties being of several known lots (but) the sheriff sold the whole
property en masse, and

(b) The judgment debtor was not given a chance to direct the order or choose
which property should be sold.

4. The value of defendants' properties as described in the Sheriffs Notice of Sale is

materially and grossly in excess of the judgment debt and costs.
 5. That the value of defendants' properties described in the Sheriff's Notice of Sale is
grossly in excess of the judgment debt and costs so that enforcement of which
amounted to fraud and abuse of discretion.

On 28 December 1974, plaintiffs-appellees filed their opposition to the above motion alleging
therein that the failure to assert or claim the right to the exemption granted under Section 12
(a) of Rule 39 of the Revised Rules of Court within a reasonable time constituted an
abandonment or waiver thereof, and that there is no merit to the other contentions of
defendants.

The trial court issued an Order on 26 June 1975 denying defendants-appellants' Motion to
Set Aside Execution Sale saying:

x x x           x x x          x x x

In regard to the first ground, the defendants maintain that the parcel of residential
land located at Poblacion, Bulan, Sorsogon, with an area of 485 square meters,
together with a residential house of strong materials, with cement flooring, GI roofing
and wooden walling, declared under Tax Declaration No. 2249 in the name of the
defendant Zoilo Esber and assessed at P1,830.00 is a "homestead" within the
contemplation of Section 12, Par. (a) of Rule 39 of the Rules of Court.

Granting, arguendo, that such property is indeed a homestead and therefore exempt
from execution, the rule nevertheless states that the right to claim exemption must be
made by the one in whose favor it exists, a claim that rests primarily on the judgment
debtor (22 Am. Jur. 90), which must be made at the time of levy if the debtor is
present, or "within the reasonable time, or promptly, or before the creditor has taken
any step involving further questions, or before advertisement of sale, or before the
sale, or within a reasonable time before sale, or before the sale has commenced (35
CJS, 157, cited in Francisco, The Revised Rules of Court in the Phil., Vol. II, 1966,
pp, 668 & 669)

In the case of Cruz Herrera vs. McMicking, 14 Phil. 641, the Supreme Court held:

It is questionable whether it is the duty of a sheriff, when he has an execution

to serve, to present the objection that the property of the judgment debtor is
exempt from execution. The exemption provided for by the law is a right
accorded to debtors, and a right which must be insisted upon or it may be
lost. It would therefore seem to be the duty of the sheriff, whenever he finds
property belonging to a judgment debtor when (he) has an execution to
serve, to serve said execution upon said property and allow the judgment
debtor to claim his right under the statute.

Also, in the case of Agatep vs. Taguinod, 36 Phil. 435, it was held that:

Before a debtor can take advantage of the exemption he must bring himself
within the terms thereof. The burden of showing his right to the exemption is
upon him and he must show himself entitled to it by satisfactory evidence. If
he fails to do so the right to exemption does not become effective and the
property may be sold.

Having asserted this claim for exception only after more than a year and a half had
elapsed from the execution sale and about six months from and after the issuance of
the Final Bill of Sale, this protest of the defendants comes too late.

The second question has reference to the sale at auction of an agricultural land
containing an area of 12.2278 hectares. According to the defendant Zoilo Esber's
Tax Declaration No. 1524 this property is mainly cogon and thicket land assessed at
P1,960.00 and with a true market value of P4,890.00. And these valuations were
made pursuant to Presidential Decree No. 76. Under the circumstances the Court
finds that the disparity between the value at which the property has been sold at
public auction to satisfy the judgment credit of P3,522.50 and that given in Tax
 Declaration No. 1524 is not so great as to shock the conscience of an ordinary
prudent man.

Not satisfied with this Order, defendants-appellants appealed therefrom to the Court of
Appeals.

In their Brief   filed on 26 May 1977 with the Court of Appeals, defendants-appellants made
4

the following assignments of errors:

THE LOWER COURT ERRED IN DETERMINING THE TIME THE JUDGMENT DEBTOR
MAY CLAIM EXEMPTION FROM EXECUTION OF HIS RESIDENTIAL HOUSE AND LOT.

II

THE LOWER COURT ERRED IN RECKONING THE PRICE/ PROPERTIES SOLD IN AN

EXECUTION SALE TO THEIR REAL OR TRUE VALUES TO SHOW IT IS EXCESSIVE
AND INEQUITOUS (SIC).

III

THE LOWER COURT ERRED BY FAILING TO CONSIDER THE VIOLATIONS OF

SECTION 15 AND 21, RULE 39, OF THE REVISED RULES OF COURT AS GROUNDS TO
SET ASIDE THE EXECUTION SALE.

Plaintiffs-appellees did not file their Brief. On 2 September 1977, the Court of Appeals
considered the case submitted for decision; thereafter, it certified the case to this Court on 26
August 1981.

Purged of unnecessary embellishments, the assigned errors merely recommend the issues
We stated in the opening paragraph of this Decision.

1. Among the properties which are exempt from execution is the debtor's family house
constituted in accordance with the Civil Code, or in the absence thereof, the homestead in
which he resides, and land necessarily used in connection therewith, both not exceeding in
value of three thousand pesos (P3,000.00).   The reason for this exemption was expressed
5

by the Supreme Court of Alabama in Watts vs. Gordon,   quoted by this Court seventy (70) 6

years ago in Young vs. Olivares,   thus: 7

The great controlling purpose and policy of the Constitution, is the protection, the
preservation of the homestead, — the dwelling place. A houseless, homeless
population, is a burden upon the energy and industry, and corrupting to the morals of
the community, of which they may be members. 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. Protection of an estate or interest in lands, whatever may be
its dignity or inferiority, merely because it is an estate or interest in lands, is not the
purpose of the Constitution, or of the statutes. . . . It is the house, the dwelling place,
— not of necessity, an estate or interest in lands, — which must be protected and
preserved. . . .

The "homestead" which defendants-appellants Zoilo Esber and Lucia G. de Esber sought to
be exempted from execution is a residential land with an area of 458 square meters,
together with the house constructed thereon, located in the municipality of Bulan, Sorsogon
with an assessed value of P1,830.00.

A "homestead" refers to the dwelling house of the judgment debtor in which he resides and
the land necessarily used in connection therewith.   It is exempt from execution pursuant to
8

Section 12 of Rule 39 if its value at the time of the execution sale was not more than
P3,000.00. In Cabuhat vs. Ansay,   We held: 9

When reference is had to"value,"in the statute cited, 10 it must be understood that the law-making body
meant the amount which the property might reasonably be expected to bring if sold under the conditions prevailing at the time; and in a case where
 the property has actually been exposed to public sale, the price which it then brought is of necessity conclusive between the parties to the execution
as to its value.

The pleadings of the parties fail to disclose both the actual value of the property, which appellants claim to be a homestead, at the time of the execution sale, and
the specific price for which it was sold on execution. What appears clearly is that this property and the 12-hectare lot were sold to the highest bidders for the
consideration of P3,522.50. In the light of Cabuhat and, taking into account the declared value of the subject property (P1,830.00) and the declared value of the
12-hectare lot (P1,220.00), the "value" of the claimed homestead was less than P3,000.00 at the time of the execution sale. Consequently, it should have been
excluded from execution.

Unfortunately, however, it was only on 12 December 1974, or nearly six (6) months after the execution of the Final Bill of Sale on 24 June 1974, that appellants
filed their motion to set aside the execution sale. They did not object to both the levy on the property and the auction sale thereof. Neither did they oppose the
execution of the certificate of sale and the Final Bill of Sale by the Sheriff. In short, they did not assert their right to claim exemption until six (6) months after the
lapse of the one-year period to redeem the property. 11

Although the Rules of Court does not prescribe the period within which to claim the exemption, the rule is, nevertheles, 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: 12

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. 13

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. 14
 

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.

2. The trial court did not err in holding that the price for which the lots were sold in the
execution sale was not grossly inadequate. The assessed value of the 12-hectare lot (Tax
Declaration No. 2248) is P1,220.00, and the assessed value of the other lot and the
residential house thereon (Tax Declaration No. 2249) is P1,830.00. The combined assessed
value is P3,050.00. Appellants, however, claim that the total assessed value is P3,790.00.
Granting the latter to be correct, and conceding further, for the sake of argument, to the
statement of appellants that the assessed value of real property for taxation purposes is 30%
of the market value such that the market value then is P12,633.50, 15 still the price for which
they were sold at the execution sale — P3,522.50 — is not grossly inadequate.

The inadequacy of the price is not a ground for setting aside an execution sale unless the
inadequacy is so great as to shock the conscience. As early as in the case of Warner Barnes
and Co. vs. Santos, 16 We held:

A judicial sale of real estate will not be set aside for inadequacy of price unless the
inadequacy be so great as to shock the conscience or unless there be additional
circumstances against its fairness.

Besides, gross inadequacy of the purchase price is not material "when the law gives the
owner the right to redeem as when a sale is made at public auction, upon the theory that the
lesser the price the easier it is for the owner to effect the redemption. 17

WHEREFORE, judgment is hereby rendered AFFIRMING in toto the Order appealed from, with costs against defendants-appellants.
IT IS SO ORDERED.

7. Modequilo vs Breva, GR No. 86355, 31 May 1990

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.

Josefina Brandares-Almazan for petitioner.

ABC Law Offices for private respondents.

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 read 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 plaintiff-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. 87008-01359, 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' 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 non-payment 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, material men 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.

8. Ramos v Pangilinan, GR No. 185920, 20 July 2010

G.R. No. 185920               July 20, 2010

JUANITA TRINIDAD RAMOS, ALMA RAMOS WORAK, MANUEL T. RAMOS, JOSEFINA R.

ROTHMAN, SONIA R. POST, ELVIRA P. MUNAR, and OFELIA R. LIM, Petitioners,
vs.
DANILO PANGILINAN, RODOLFO SUMANG, LUCRECIO BAUTISTA and ROLANDO
ANTENOR, Respondents.

DECISION

CARPIO MORALES, J.:

Respondents filed in 2003 a complaint1 for illegal dismissal against E.M. Ramos Electric, Inc., a
company owned by Ernesto M. Ramos (Ramos), the patriarch of herein petitioners. By Decision 2 of
April 15, 2005, the Labor Arbiter ruled in favor of respondents and ordered Ramos and the company
to pay the aggregate amount of ₱1,661,490.30 representing their backwages, separation pay, 13th
month pay & service incentive leave pay.

The Decision having become final and executory and no settlement having been forged by the
parties, the Labor Arbiter issued on September 8, 2005 a writ of execution 3 which the Deputy Sheriff
of the National Labor Relations Commission (NLRC) implemented by levying a property in Ramos’
name covered by TCT No. 38978, situated in Pandacan, Manila (Pandacan property).

Alleging that the Pandacan property was the family home, hence, exempt from execution to satisfy
the judgment award, Ramos and the company moved to quash the writ of execution. 4 Respondents,
however, averred that the Pandacan property is not the Ramos family home, as it has another in
Antipolo, and the Pandacan property in fact served as the company’s business address as borne by
the company’s letterhead. Respondents added that, assuming that the Pandacan property was
indeed the family home, only the value equivalent to ₱300,000 was exempt from execution.

By Order5 of August 2, 2006, the Labor Arbiter denied the motion to quash, hence, Ramos and the
company appealed to the NLRC which affirmed the Labor Arbiter’s Order.

Ramos and the company appealed to the Court of Appeals during the pendency of which Ramos
died and was substituted by herein petitioners. Petitioners also filed before the NLRC, as third-party
claimants, a Manifestation questioning the Notice to Vacate issued by the Sheriff, alleging that
assuming that the Pandacan property may be levied upon, the family home straddled two (2) lots,
including the lot covered by TCT No. 38978, hence, they cannot be asked to vacate the house. The
Labor Arbiter was later to deny, by Decision of May 7, 2009, the third-party claim, holding that
Ramos’ death and petitioners’ substitution as his compulsory heirs would not nullify the sale at
auction of the Pandacan property. And the NLRC6 would later affirm the Labor Arbiter’s ruling, noting
that petitioners failed to exercise their right to redeem the Pandacan property within the one 1 year
period or until January 16, 2009. The NLRC brushed aside petitioners’ contention that they should
have been given a fresh period of 1 year from the time of Ramos’ death on July 29, 2008 or until July
30, 2009 to redeem the property, holding that to do so would give petitioners, as mere heirs, a better
right than the Ramos’.

As to petitioners’ claim that the property was covered by the regime of conjugal partnership of gains
and as such only Ramos’ share can be levied upon, the NLRC ruled that petitioners failed to
substantiate such claim and that the phrase in the TCT indicating the registered owner as "Ernesto
Ramos, married to Juanita Trinidad, Filipinos," did not mean that both owned the property, the
phrase having merely described Ramos’ civil status.

Before the appellate court, petitioners alleged that the NLRC erred in ruling that the market value of
the property was ₱2,177,000 as assessed by the City Assessor of Manila and appearing in the
documents submitted before the Labor Arbiter, claiming that at the time the Pandacan property was
constituted as the family home in 1944, its value was way below ₱300,000; and that Art. 153 of the
Family Code was applicable, hence, they no longer had to resort to judicial or extrajudicial
constitution.

In the assailed Decision7 of September 24, 2008, the appellate court, in denying petitioners’ appeal,
held that the Pandacan property was not exempted from execution, for while "Article 153 8 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] did not mean that the article has 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."

The appellate court went on to hold that what was applicable law were Articles 224 to 251 of the Civil
Code, hence, there was still a need to either judicially or extrajudicially constitute the Pandacan
property as petitioners’ family home before it can be exempted; and as petitioners failed to comply
therewith, there was no error in denying the motion to quash the writ of execution.

The only question raised in the present petition for review on certiorari is the propriety of the Court of
Appeals Decision holding that the levy upon the Pandacan property was valid.

The petition is devoid of merit.

Indeed, the general rule is 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. It cannot be seized by creditors except in certain special cases.9

Kelley, Jr. v. Planters Products, Inc.10 lays down the rules relative to the levy on execution over 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 ₱300,000 in urban areas
and ₱200,000 in rural areas.

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.

The exemption is effective from the time of the constitution of the family home as such and lasts as
long as any of its beneficiaries actually resides therein. Moreover, the debts for which the family
home is made answerable must have been incurred after August 3, 1988. Otherwise (that is, if it was
incurred prior to August 3, 1988), the alleged family home must be shown to have been constituted
either judicially or extrajudicially pursuant to the Civil Code. (emphasis supplied)

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.11 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 24212 of the Civil Code and involves the execution of a public instrument which must
also be registered with the Registry of Property. 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 time it was constituted and lasts as long as any of its beneficiaries under Art. 154 13 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 been with consent of the
other, and its value must not exceed 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 14 for
which the family home is made answerable must have been incurred after August 3, 1988. 1avvphi1

And in both cases, whether under the Civil Code or the Family Code, 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. 15

In the present case, since petitioners claim that the family home was constituted prior to August 3,
1988, or as early as 1944, they must comply with the procedure mandated by the Civil Code. There
being absolutely no proof that the Pandacan property was judicially or extrajudicially constituted as
the Ramos’ family home, the law’s protective mantle cannot be availed of by petitioners.
Parenthetically, the records show that the sheriff exhausted all means to execute the judgment but
failed because Ramos’ bank accounts16 were already closed while other properties in his or the
company’s name had already been transferred,17 and the only property left was the Pandacan
property.

WHEREFORE, the petition is DENIED. SO ORDERED.

9. Siari Valley Estates v Lucasan,GR#13281,8/31/1960

G.R. No. L-13281             August 31, 1960

SIARI VALLEY ESTATES, INC., petitioner,
vs.
FILEMON LUCASAN, ET AL., respondents.

Orendain and Sarmiento for petitioner.

Barrios, Lucasan and Lucasan for respondents.

BAUTISTA ANGELO, J.:

On January 30, 1952, the Court of First Instance of Zamboanga del Norte rendered decision
ordering Filemon Lucasan to deliver to the Siari Valley Estates, Inc. the cattle inside the former's
pasture or pay its value amounting to P40,000.00 and damages in another sum of P40,000.00, This
decision was affirmed in toto by the Supreme Court, and when the same became final and
executory, a writ of execution was issued. In carrying out this writ, the sheriff proceeded to levy on
certain parcels of lands belonging to defendant. These lands were sold by the sheriff at public
auction to the corporation as the highest bidder on January 14, 1956. The judgment debtor having
failed to redeem the land within the period of one year, on January 26, 1957, the sheriff issued in
favor of the purchaser the final certificate of sale, copy of which was registered in the Office of the
Register of Deeds of Zamboanga. On February 16, 1957, upon petition of the corporation, a writ of
possession was issued directing the sheriff to place said corporation in possession thereof.
Notwithstanding said writ, however, the corporation failed to take possession of the lands, hence it
filed a motion reiterating its petition that it be placed in their possession.

This time judgment debtor Filemon Lucasan filed an opposition alleging that he was in possession of
one of the parcels of land sold at public auction on which he has erected a house and which he has
extra judicially constituted as a family home, the rest being in possession of third parties. On April
30, 1957, the court, overruling the opposition, issued an order directing the sheriff to place the
corporation in possession of the lands sold to it. On August 7, 1957, debtor Lucasan filed a motion
for reconsideration which was denied, the court reiterating its previous order with little amendment,
but on August 23, 1957 issued another order allowing the corporation to take possession of all lands
sold, with the exception of parcel 1 on which the family home was constituted, holding that the levy
and sale made by the sheriff with regard to said parcel were not made in accordance with law and so
are null and void. Having failed to have this last order reconsidered, the corporation interposed the
present petition for certiorari.

It appears that parcel 1 is a registered land covered by Certificate of Title No. OCT-2492, Patent No.
50967, duly registered in the Office of the Register of Deeds of Zamboanga del Norte in the name of
Filemon Lucasan. On this land stands a big house of mixed materials which is asserted in the
amount of P23,270.00 as evidenced by Tax Declaration No. 7653. It also 37 3 appears that Filemon
Lucasan and his wife constituted this house and the lot on which stands into a family home, the
pertinent document having been registered in the office of the register of deeds on June 21, 1955. In
opposing the petition of the corporation for a writ of possession insofar as this property is concerned,
Lucasan contended that said lot and house having been constituted as a family home are beyond
the reach of judicial execution. He contended that the levy made by the sheriff on said property is
legally ineffective because it was not effected in accordance with what is prescribed in Section 14,
Rule 39, in relation to Section 7, Rule 59, of the Rules of Court.

There is merit in this contention. The evidence shows that when this property was levied on
execution by the sheriff to satisfy the judgment rendered against Filemon Lucasan in favor of
petitioner corporation the notice of levy merely described the property as unregistered land and the
same was registered under Act 3344 in the office of the register of deeds. It also appears that in the
notice of sale the property was merely described according to the boundaries and area appearing in
the tax declaration and not according to what appears in the certificate of title. On the other hand,
the rule provides that real property shall "be levied on in like manner and with like effect as under an
order of attachment" (Section 14, Rule 39), and the provision regarding attachment of real property
postulates that the attachment shall be made "by filing with the register of deeds a copy of the order,
together with the description of the property attached, and a notice that it is attached, and by leaving
a copy of said order, description, and notice with the occupant of the property, if any there be," and
that "Where the property has been brought under the operation of the Land Registration Act, the
notice shall contain a reference to the number of the certificate of title and the volume and page in
the registration book where the certificate is registered" (Section 7 [a], Rule 59).

These provisions should be strictly construed if their purpose has to be accomplished. The
requirement that the notice of levy should contain a reference to the number of the certificate of title
and the volume and page in the registration book where the certificate is registered is made in order
that the debtor as well as a third person may be properly informed of the particular land or property
that is under the custody of the court. This can only be accomplished by making a reference to the
certificate of title covering the property. The situation differs if the land is unregistered in which case
it is enough that the notice be registered under Act 3344. This conclusion finds support in the
following authorities:

An attachment levied on real estate not duly recorded in the registry of property is not an
encumbrance on the attached property, nor can such attachment, unrecorded in the registry,
serve as a ground for decreeing the annulment of the sale of the property, at the request of
another creditor. (Gonzales Diez vs. Delgado and Imperial, 37 Phil., 389)

... In conformity with the provisions of section 71 of the Land Registration Act, the sheriff of
the City of Manila filed a notice of the levy with the register of deeds, which notice was
entered in the primary entry book of the register's office, but was afterwards, on May 20,
1920, returned to the sheriff with the information that the property was registered in the name
of Buenaventura Dizon, having been conveyed to the latter by the defendant in execution,
Celerino Arellano, and that, therefore, no memorandum of the notice had been entered upon
the outstanding certificate of title. It may be noted that the notice contained no "reference to
the number of the certificate of title of the land to be effected and the volume and page in the
registry book where the certificate is registered, and that t that extent, the notice did not meet
the requirements of said section 71. (De Ocampo vs. Treasurer of the Philippine Islands, 50
Phil., 140, 141; Emphasis supplied).

Since the notice of levy made by the sheriff as regards parcel number 1 which is a registered land
contains no reference to the number of its certificate of title and the volume and page in the registry book
where the title is registered, it follows that said notice is legally ineffective and as such did not have the
effect of binding the property for purposes of execution. Consequently, the sale carried out by virtue of
said levy is also invalid and of no legal effect.

The second issue raised is: Is the family home extra judicially established by respondent on the lot and
house in question exempt from execution?

Respondent sustains the affirmative considering that the money judgment rendered against him was
appealed to the Supreme Court in which event, he contends, the same could not be considered as a debt
at the time the family home was constituted for it was still inchoate and as such cannot come under the
provisions of Article 243 (2) of the new Civil Code.

The article above referred to provides that "The family home extra judicially formed shall be exempt from
execution" except "for debts incurred before the declaration was recorded in the Registry of Property."
What if the meaning of the word debt used in this article? Does it refer to a debt that is undisputed, or may
it also refer to any pecuniary obligation even if the same has not yet been finally determined? In other
words, can a judgment for a sum of money be considered a debt within the meaning of this provision even
if said judgment is still pending appeal?

We are inclined to uphold the affirmative considering the real purpose of the law. The reason why a family
home constituted after a debt had been incurred is not exempt from execution is to protect the creditor
against a debtor who may act in bad faith by resorting to such declaration just to defeat the claim against
him. If the purpose is to protect the creditor from fraud it would be immaterial if the debt incurred be
undisputed or inchoate, for a debtor acting in good faith would prefer to wait until his case is definitely
decided before constituting the family home. Indeed, it may result, as in this case, that the Supreme Court
may affirm the judgment of the lower court. If the contention of respondent be sustained a debtor may be
allowed to circumvent this provision of the law to the prejudice of the creditor. This the Court cannot
countenance. Hence, we are persuaded to conclude that the money judgment in question comes within
the purview of the word debt  used in Article 243 (2) of the new Civil Code.

WHEREFORE, the order appealed from is hereby affirmed, without prejudice of the part of petitioner to
file a new petition for execution following strictly the requirements of the rule on the matter. No
pronouncement as to costs.

10. Josef vs Santos, GR No. 165060, 27 Nov 2008

G.R. No. 165060             November 27, 2008

ALBINO JOSEF, petitioner,
vs.
OTELIO SANTOS, respondent.

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari  under Rule 45 of the Rules of Court assails the November 17,
20031 Resolution of the Court of Appeals in CA-G.R. SP No. 80315, dismissing petitioner’s special civil
action of certiorari for failure to file a prior motion for reconsideration, and the May 7, 2004 2 Resolution
denying the motion for reconsideration.

Petitioner Albino Josef was the defendant in Civil Case No. 95-110-MK, which is a case for collection of
sum of money filed by herein respondent Otelio Santos, who claimed that petitioner failed to pay the shoe
materials which he bought on credit from respondent on various dates in 1994.

After trial, the Regional Trial Court of Marikina City, Branch 272, found petitioner liable to respondent in
the amount of P404,836.50 with interest at 12% per annum reckoned from January 9, 1995 until full
payment.3

Petitioner appealed4 to the Court of Appeals, which affirmed the trial court’s decision in toto. 5 Petitioner
filed before this Court a petition for review on certiorari, but it was dismissed in a Resolution dated
February 18, 2002.6 The Judgment became final and executory on May 21, 2002.

On February 17, 2003, respondent moved for issuance of a writ of execution, 7 which was opposed by
petitioner.8 In an Order dated July 16, 2003,9 the trial court granted the motion, the dispositive portion of
which reads, as follows:

WHEREFORE, premises considered, the motion for issuance of writ of execution is hereby
granted. Let a writ of execution be issued commanding the Sheriff of this Court to execute the
decision dated December 18, 1996.

SO ORDERED.10

A writ of execution was issued on August 20, 2003 11 and enforced on August 21, 2003. On August 29,
2003, certain personal properties subject of the writ of execution were auctioned off. Thereafter, a real
property located at Marikina City and covered by Transfer Certificate of Title (TCT) No. N-105280 was
sold on October 28, 2003 by way of public auction to fully satisfy the judgment credit. Respondent
emerged as the winning bidder and a Certificate of Sale 12 dated November 6, 2003 was issued in his
favor.

On November 5, 2003, petitioner filed an original petition for certiorari with the Court of Appeals,
questioning the sheriff’s levy and sale of the abovementioned personal and real properties. Petitioner
claimed that the personal properties did not belong to him but to his children; and that the real property
covered by TCT No. N-105280 was his family home thus exempt from execution.

On November 17, 2003, the Court of Appeals issued the assailed Resolution dismissing the petition for
failure of petitioner to file a motion for reconsideration of the trial court’s July 16, 2003 Order granting the
motion for execution and ordering the issuance of a writ therefor, as well as for his failure to indicate in his
petition the timeliness of its filing as required under the Rules of Court. On May 7, 2004, the appellate
court denied petitioner’s motion for reconsideration.

Thus, the instant petition which raises the following issues:

I.

WHETHER OR NOT THE LEVY AND SALE OF THE PERSONAL BELONGINGS OF THE
PETITIONER’S CHILDREN AS WELL AS THE ATTACHMENT AND SALE ON PUBLIC
AUCTION OF HIS FAMILY HOME TO SATISFY THE JUDGMENT AWARD IN FAVOR OF
RESPONDENT IS LEGAL.

II.
 WHETHER OR NOT THE DISMISSAL OF THE PETITIONER’S PETITION FOR CERTIORARI
BY THE HONORABLE COURT OF APPEALS IS JUSTIFIED UNDER THE CIRCUMSTANCES.

Petitioner argues that the trial court sheriff erroneously attached, levied and sold on execution the real
property covered by TCT No. N-105280 because the same is his family home; that the execution sale
was irregular because it was conducted without complying with the notice and posting of requirements;
and that the personal and real properties were sold for inadequate prices as to shock the conscience. The
real property was allegedly worth P8 million but was sold for only P848,448.64.

Petitioner also argues that the appellate court gravely abused its discretion in dismissing the petition
based purely on technical grounds, i.e., his failure to file a motion for reconsideration of the trial court’s
order granting execution, and his failure to indicate in his petition for certiorari the timeliness of filing the
same with the Court of Appeals.

Respondent, on the other hand, argues that petitioner’s alleged family home has not been shown to have
been judicially or extrajudicially constituted, obviously referring to the provisions on family home of the
Civil Code – not those of the Family Code which should apply in this case; that petitioner has not shown
to the court’s satisfaction that the personal properties executed upon and sold belonged to his children.
Respondent argues that he is entitled to satisfaction of judgment considering the length of time it took for
the parties to litigate and the various remedies petitioner availed of which have delayed the case.

The petition is meritorious.

Petitioner, in his opposition to respondent’s motion for issuance of a writ of execution, claimed that he
was insolvent; that he had no property to answer for the judgment credit; that the house and lot in which
he was residing at the time was his family home thus exempt from execution; that the household furniture
and appliances found therein are likewise exempt from execution; and that these furniture and appliances
belonged to his children Jasmin Josef and Jean Josef Isidro. Thus, as early as during proceedings prior to
the issuance of the writ of execution, petitioner brought to the fore the issue of exemption from execution
of his home, which he claimed to be a family home in contemplation of the civil law.

However, instead of inquiring into the nature of petitioner’s allegations in his opposition, the trial court
ignored the same and granted respondent’s motion for execution. The full text of the July 16, 2003 Order
provides, as follows:

This resolves the "Motion for the Issuance of Writ of Execution" filed by plaintiff thru counsel and
the "Opposition" thereto filed by the defendant on her own behalf.

The records show that a decision was rendered by this Court in favor of the plaintiff on December
18, 1995 which decision was affirmed by the Court of Appeals on June 26, 2001 and by the
Supreme Court on February 18, 2002. On June 18, 2003, this Court received the entire records of
the case from the Court of Appeals.

Considering the foregoing, it is now the ministerial duty of the Court to issue a writ of execution
pursuant to Sec. 1, Rule 39 of the Rules of Court.

WHEREFORE, premises considered, the motion for issuance of writ of execution is hereby
granted. Let a writ of execution be issued commanding the Sheriff of this Court to execute the
decision dated December 18, 1996.

SO ORDERED.13

The above Order did not resolve nor take into account petitioner’s allegations in his Opposition, which are
material and relevant in the resolution of the motion for issuance of a writ of execution. This is serious
error on the part of the trial court. It should have made an earnest determination of the truth to petitioner’s
claim that the house and lot in which he and his children resided was their duly constituted family home.
Since it did not, its July 16, 2003 Order is thus null and void. Where a judgment or judicial order is void it
may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored
wherever and whenever it exhibits its head.14

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. It cannot be seized
by creditors except in certain special cases.15
Upon being apprised that the property subject of execution allegedly constitutes petitioner’s family home,
the trial court should have observed the following procedure:

1. Determine if petitioner’s obligation to respondent falls under either of the exceptions under
Article 15516 of the Family Code;

2. Make an inquiry into the veracity of petitioner’s claim that the property was his family
home;17 conduct an ocular inspection of the premises; an examination of the title; an interview of
members of the community where the alleged family home is located, in order to determine if
petitioner actually resided within the premises of the claimed family home; order a submission of
photographs of the premises, depositions, and/or affidavits of proper individuals/parties; or a
solemn examination of the petitioner, his children and other witnesses. At the same time, the
respondent is given the opportunity to cross-examine and present evidence to the contrary;

3. If the property is accordingly found to constitute petitioner’s family home, the court should
determine:

a) if the obligation sued upon was contracted or incurred prior to, or after, the effectivity of
the Family Code;18

b) if petitioner’s spouse is still alive, as well as if there are other beneficiaries of the family
home;19

c) if the petitioner has more than one residence for the purpose of determining which of
them, if any, is his family home;20 and

d) its actual location and value, for the purpose of applying the provisions of Articles
15721 and 16022 of the Family Code.

The family home is the dwelling place of a person and his family, a sacred symbol of family love and
repository of cherished memories that last during one’s lifetime. 23 It is the sanctuary of that union which
the law declares and protects as a sacred institution; and likewise a shelter for the fruits of that union. It is
where both can seek refuge and strengthen the tie that binds them together and which ultimately forms
the moral fabric of our nation. The protection of the family home is just as necessary in the preservation of
the family as a basic social institution, and since no custom, practice or agreement destructive of the
family shall be recognized or given effect,24 the trial court’s failure to observe the proper procedures to
determine the veracity of petitioner’s allegations, is unjustified.

The same is true with respect to personal properties levied upon and sold at auction. Despite petitioner’s
allegations in his Opposition, the trial court did not make an effort to determine the nature of the same,
whether the items were exempt from execution or not, or whether they belonged to petitioner or to
someone else.25

Respondent moved for issuance of a writ of execution on February 17, 2003 while petitioner filed his
opposition on June 23, 2003. The trial court granted the motion on July 16, 2003, and the writ of
execution was issued on August 20, 2003. Clearly, the trial court had enough time to conduct the crucial
inquiry that would have spared petitioner the trouble of having to seek relief all the way to this Court.
Indeed, the trial court’s inaction on petitioner’s plea resulted in serious injustice to the latter, not to
mention that its failure to conduct an inquiry based on the latter’s claim bordered on gross ignorance of
the law.

Being void, the July 16, 2003 Order could not have conferred any right to respondent. Any writ of
execution based on it is likewise void. Although we have held in several cases 26 that a claim for
exemption from execution of the family home should be set up and proved before the sale of the property
at public auction, and failure to do so would estop the party from later claiming the exemption since the
right of exemption is a personal privilege granted to the judgment debtor which must be claimed by the
judgment debtor himself at the time of the levy or within a reasonable period thereafter, the circumstances
of the instant case are different. Petitioner claimed exemption from execution of his family home soon
after respondent filed the motion for issuance of a writ of execution, thus giving notice to the trial court
and respondent that a property exempt from execution may be in danger of being subjected to levy and
sale. Thereupon, the trial court is called to observe the procedure as herein laid out; on the other hand,
the respondent should observe the procedure prescribed in Article 160 of the Family Code, that is, to
obtain an order for the sale on execution of the petitioner’s family home, if so, and apply the proceeds –
less the maximum amount allowed by law under Article 157 of the Code which should remain with the
petitioner for the rebuilding of his family home – to his judgment credit. Instead, both the trial court and
respondent completely ignored petitioner’s argument that the properties subject of the writ are exempt
from execution.

Indeed, petitioner’s resort to the special civil action of certiorari in the Court of Appeals was belated and
without benefit of the requisite motion for reconsideration, however, considering the gravity of the issue,
involving as it does matters that strike at the very heart of that basic social institution which the State has
a constitutional and moral duty to preserve and protect, as well as petitioner’s constitutional right to
abode, all procedural infirmities occasioned upon this case must take a back seat to the substantive
questions which deserve to be answered in full.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The November 17, 2003 and May 7,
2004 Resolutions of the Court of Appeals in CA-G.R. SP No. 80315 are REVERSED and SET ASIDE.
The July 16, 2003 Order of the Regional Trial Court of Marikina City, Branch 272 in Civil Case No. 95-
110-MK, as well as the writ or writs of execution thus issued in said case, are hereby DECLARED VOID,
and all acts proceeding therefrom and any title obtained by virtue thereof are likewise DECLARED VOID.

The trial court is hereby DIRECTED (1) to conduct a solemn inquiry into the nature of the real property
covered by Transfer Certificate of Title No. N-105280, with a view toward determining whether the same
is petitioner Albino Josef’s family home, and if so, apply the pertinent provisions of the Family Code and
Rule 39 of the Rules of Court; and (2) to conduct an inquiry into the ownership of all other properties that
were levied upon and sold, with the aim of determining as well whether these properties are exempt from
execution under existing law.

Respondent Otelio Santos is hereby DIRECTED to hold the abovementioned real and personal
properties, or the proceeds thereof, in trust to await the outcome of the trial court’s inquiry.

Finally, the trial court is DIRECTED to resolve, with utmost dispatch, Civil Case No. 95-110-MK within
sixty (60) days from receipt of a copy of this Decision. SO ORDERED.

11. Patricio v Dario,GR No. 170829, 20 Nov 2006

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
1âwphi1

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,
1âwphi1

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

In Vda. de Daffon v. Court of Appeals,23 we held that an action for partition is at once an action for
declaration of co-ownership and for segregation and conveyance of a determinate portion of the
properties involved. If the court after trial should find the existence of co-ownership among the
parties, the court may and should order the partition of the properties in the same action. 24

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

12. Sps Oliva-De Mesa v Sps Acero Jr.,GR#185064, 1/16/12

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 dated June 6, 2008 and Resolution dated October 23, 2008 in CA-G.R. CV No. 79391
1  2 

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 ₱100,000.00, 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 acquitting the petitioners but ordering them to
3 

pay Claudio the amount of ₱100,000.00 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 ₱5,500.00. 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 ₱170,500.00.

Meanwhile, on March 24, 1995, a Final Deed of Sale over the subject property was issued to
4 

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) in his favor.
5 

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, giving due course to Spouses Acero’s complaint
6 

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 with the CA assailing the RTC’s November
7 

22, 1999 Decision and January 31, 2000 Order. In a December 21, 2006 Decision, the CA denied
8 

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 to 10 

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, which dismissed the petitioners’ complaint.
11 

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 dated January 14, 2003.
12 

On appeal, the CA affirmed the RTC’s disposition in its Decision dated June 6, 2008. The CA
13 

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 dated October 23, 2008.
14 

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, Spouses Acero claimed that this petition ought to be denied on the ground of
15 

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., this Court had previously clarified
18 

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. (citations omitted)
19 

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, this Court laid down the rules relative to
20 

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 of Property. 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 time it 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 been with consent of the
other, and its value must not exceed 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. (citations
21 

omitted)

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

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. (emphasis supplied and citation omitted)
23 

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, where it was categorically stated that at no other time can the status of a
25 

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
1awphil

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. (citations omitted)
26 

Reiterating the foregoing in Spouses Versola v. Court of Appeals, this Court stated that:
27 

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. (emphasis supplied and citations omitted)
28 

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. It is likewise without dispute that the family home, from the
29 
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. However, this right can be waived or be
31 

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.