Module 4:

I. Absolute Community of Property (Articles 88-104, Family Code)

Cases:
1. Nobleza v. Nuega, G.R. No.193038, March 11, 2015

THIRD DIVISION

G.R. No. 193038, March 11, 2015

JOSEFINA V. NOBLEZA, Petitioner, v. SHIRLEY B. NUEGA, Respondent.

DECISION

VILLARAMA, JR., J.:

At bar is a petition for review on certiorari of the Decision1 dated May 14, 2010 and the
Resolution2 dated July 21, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 70235, which affirmed
with modification the assailed Decision3 dated February 14, 2001 of the Regional Trial Court (RTC) of
Marikina City, Branch 273, in Civil Case No. 96-274-MK.

The following facts are found by the trial court and affirmed by the appellate court:

Respondent Shirley B. Nuega (Shirley) was married to Rogelio A. Nuega (Rogelio) on September 1,
1990.4 Sometime in 1988 when the parties were still engaged, Shirley was working as a domestic helper
in Israel. Upon the request of Rogelio, Shirley sent him money5 for the purchase of a residential lot in
Marikina where they had planned to eventually build their home. Rogelio was then also working abroad
as a seaman. The following year, or on September 13, 1989, Rogelio purchased the subject house and lot
for One Hundred Two Thousand Pesos (P102,000.00)6 from Rodeanna Realty Corporation. The subject
property has an aggregate area of one hundred eleven square meters (111 sq. m.) covered by Transfer
Certificate of Title (TCT) No. N-133844.7 Shirley claims that upon her arrival in the Philippines sometime
in 1989, she settled the balance for the equity over the subject property with the developer through
SSS8 financing. She likewise paid for the succeeding monthly amortizations. On October 19, 1989, TCT
No. 1719639 over the subject property was issued by the Registry of Deeds of Marikina, Rizal solely
under the name of Rogelio.

On September 1, 1990, Shirley and Rogelio got married and lived in the subject property. The following
year, Shirley returned to Israel for work. While overseas, she received information that Rogelio had
brought home another woman, Monica Escobar, into the family home. She also learned, and was able to
confirm upon her return to the Philippines in May 1992, that Rogelio had been introducing Escobar as
his wife.

In June 1992, Shirley filed two cases against Rogelio: one for Concubinage before the Provincial
Prosecution Office of Rizal, and another for Legal Separation and Liquidation of Property before the RTC
of Pasig City. Shirley later withdrew the complaint for legal separation and liquidation of property, but
re-filed10 the same on January 29, 1993. In between the filing of these cases, Shirley learned that Rogelio
had the intention of selling the subject property. Shirley then advised the interested buyers - one of
whom was their neighbor and petitioner Josefina V. Nobleza (petitioner) - of the existence of the cases
that she had filed against Rogelio and cautioned them against buying the subject property until the
cases are closed and terminated. Nonetheless, under a Deed of Absolute Sale11 dated December 29,
1992, Rogelio sold the subject property to petitioner without Shirley's consent in the amount of Three
Hundred Eighty Thousand Pesos (P380,000.00), including petitioner's undertaking to assume the existing
mortgage on the property with the National Home Mortgage Finance Corporation and to pay the real
property taxes due thereon.

Meanwhile, in a Decision12 dated May 16, 1994, the RTC of Pasig City, Branch 70, granted the petition
for legal separation and ordered the dissolution and liquidation of the regime of absolute community of
property between Shirley and Rogelio, viz.:chanroblesvirtuallawlibrary

WHEREFORE, in view of the foregoing, the Court hereby grants the instant petition for legal separation
between the subject spouses with all its legal effects as provided for in Art. 63 of the Family Code. Their
community property is consequently dissolved and must be liquidated in accordance with Art. 102 of
the New Family Code. The respondent is thus hereby enjoined from selling, encumbering or in any way
disposing or alienating any of their community property including the subject house and lot before the
required liquidation. Moreover, he, being the guilty spouse, must forfeit the net profits of the
community property in favor of the petitioner who is the innocent spouse pursuant to Art. 43 of the
aforesaid law. Finally, in the light of the claim of ownership by the present occupants who have not been
impleaded in the instant case, a separate action must be instituted by the petitioner against the alleged
buyer or buyers thereof to determine their respective rights thereon.

Let a copy of this decision be furnished the Local Civil Registrar of Manila, the Register of Deeds of
Marikina, Metro Manila and the National Statistics Office (NSO), sta. Mesa, Manila.

SO ORDERED.13cralawlawlibrary
Rogelio appealed the above-quoted ruling before the CA which denied due course and dismissed the
petition. It became final and executory and a writ of execution was issued in August 1995.14

On August 27, 1996, Shirley instituted a Complaint15 for Rescission of Sale and Recoveiy of Property
against petitioner and Rogelio before the RTC of Marikina City, Branch 273. After trial on the merits, the
trial court rendered its decision on February 14, 2001, viz.:chanroblesvirtuallawlibrary
WHEREFORE, foregoing premises considered, judgment is hereby rendered in favor of plaintiff Shirley
Nuega and against defendant Josefina Nobleza, as follows:

1) the Deed of Absolute Sale dated December 29, 1992 insofar as the 55.05 square meters
representing the one half (1/2) portion of plaintiff Shirley Nuega is concerned, is hereby ordered
rescinded, the same being null and void;
2) defendant Josefina Nobleza is ordered to reconvey said 55.05 square meters to plaintiff Shirley
Nuega, or in the alternative to pay plaintiff Shirley Nuega the present market value of said 55.05
square meters; and
3) to pay plaintiff Shirley Nuega attorney's fees in the sum of Twenty Thousand Pesos (P20,000.00).

For lack of merit, defendant's counterclaim is hereby DENIED.

SO ORDERED.16
Petitioner sought recourse with the CA, while Rogelio did not appeal the ruling of the trial court. In its
assailed Decision promulgated on May 14, 2010, the appellate court affirmed with modification the trial
court's ruling, viz.:chanroblesvirtuallawlibrary
WHEREFORE, subject to the foregoing disquisition, the appeal is DENIED. The Decision dated 14
February 2001 of the Regional Trial Court of Marikina City, Branch 273 in Civil Case No. 96-274-
MK is AFFIRMED with MODIFICATION in that the Deed of Absolute Sale dated 29 December 1992 is
hereby declared null and void in its entirety, and defendant-appellant Josefina V. Nobleza is ordered to
reconvey the entire subject property to plaintiff-appellee Shirley B. Nuega and defendant Rogelio
Nuega, without prejudice to said defendant-appellant's right to recover from defendant Rogelio
whatever amount she paid for the subject property. Costs against defendant-appellant Nobleza.

SO ORDERED.17cralawlawlibrary
Petitioner moved for reconsideration. In a Resolution dated July 21, 2010, the appellate court denied
the motion for lack of merit. Hence, this petition raising the following assignment of
errors:chanroblesvirtuallawlibrary
[I.] THE HONORABLE COURT OF APPEALS ERRED WHEN IT AFFIRMED THE DECISION OF THE REGIONAL
TRIAL COURT BY SUSTAINING THE FINDING THAT PETITIONER WAS NOT A PURCHASER IN GOOD
FAITH.
[II.] THE HONORABLE COURT OF APPEALS ERRED WHEN IT MODIFIED THE DECISION OF THE REGIONAL
TRIAL COURT BY DECLARING AS NULL AND VOID THE DEED OF ABSOLUTE SALE DATED 29
DECEMBER 1992 IN ITS ENTIRETY.18
We deny the petition.

Petitioner is not a buyer in good faith.

An innocent purchaser for value is one who buys the property of another, without notice that some
other person has a right or interest in the property, for which a full and fair price is paid by the buyer at
the time of the purchase or before receipt of any notice of claims or interest of some other person in the
property.19 It is the party who claims to be an innocent purchaser for value who has the burden of
proving such assertion, and it is not enough to invoke the ordinary presumption of good faith.20 To
successfully invoke and be considered as a buyer in good faith, the presumption is that first and
foremost, the "buyer in good faith" must have shown prudence and due diligence in the exercise of
his/her rights. It presupposes that the buyer did everything that an ordinary person would do for the
protection and defense of his/her rights and interests against prejudicial or injurious concerns when
placed in such a situation. The prudence required of a buyer in good faith is "not that of a person with
training in law, but rather that of an average man who 'weighs facts and circumstances without
resorting to the calibration of our technical rules of evidence of which his knowledge is nil.'"21 A buyer in
good faith does his homework and verifies that the particulars are in order such as the title, the parties,
the mode of transfer and the provisions in the deed/contract of sale, to name a few. To be more
specific, such prudence can be shown by making an ocular inspection of the property, checking the
title/ownership with the proper Register of Deeds alongside the payment of taxes therefor, or inquiring
into the minutiae such as the parameters or lot area, the type of ownership, and the capacity of the
seller to dispose of the property, which capacity necessarily includes an inquiry into the civil status of
the seller to ensure that if married, marital consent is secured when necessary. In fine, for a purchaser
of a property in the possession of another to be in good faith, he must exercise due diligence, conduct
an investigation, and weigh the surrounding facts and circumstances like what any prudent man in a
similar situation would do.22
In the case at bar, petitioner claims that she is a buyer in good faith of the subject property which is
titled under the name of the seller Rogelio A. Nuega alone as evidenced by TCT No. 171963 and Tax
Declaration Nos. D-012-04723 and D-012-04724.23 Petitioner argues, among others, that since she has
examined the TCT over the subject property and found the property to have been registered under the
name of seller Rogelio alone, she is an innocent purchaser for value and "she is not required to go
beyond the face of the title in verifying the status of the subject property at the time of the
consummation of the sale and at the date of the sale."24

We disagree with petitioner.

A buyer cannot claim to be an innocent purchaser for value by merely relying on the TCT of the seller
while ignoring all the other surrounding circumstances relevant to the sale.

In the case of Spouses Raymundo v. Spouses Bandong,25 petitioners therein - as does petitioner herein -
were also harping that due to the indefeasibility of a Torrens title, there was nothing in the TCT of the
property in litigation that should have aroused the buyer's suspicion as to put her on guard that there
was a defect in the title of therein seller. The Court held in the Spouses Raymundo case that the buyer
therein could not hide behind the cloak of being an innocent purchaser for value by merely relying on
the TCT which showed that the registered owner of the land purchased is the seller. The Court ruled in
this case that the buyer was not an innocent purchaser for value due to the following attendant
circumstances, viz.:chanroblesvirtuallawlibrary
In the present case, we are not convinced by the petitioners' incessant assertion that Jocelyn is an
innocent purchaser for value. To begin with, she is a grandniece of Eulalia and resides in the same
locality where the latter lives and conducts her principal business. It is therefore impossible for her not
to acquire knowledge of her grand aunt's business practice of requiring her biyaheros to surrender the
titles to their properties and to sign the corresponding deeds of sale over said properties in her favor, as
security. This alone should have put Jocelyn on guard for any possible abuses that Eulalia may commit
with the titles and the deeds of sale in her possession.26cralawlawlibrary
Similarly, in the case of Arrofo v. Quiño,27 the Court held that while "the law does not require a person
dealing with registered land to inquire further than what the Torrens Title on its face indicates," the rule
is not absolute.28 Thus, finding that the buyer therein failed to take the necessary precaution required of
a prudent man, the Court held that Arrofo was not an innocent purchaser for
value, viz.:chanroblesvirtuallawlibrary
In the present case, the records show that Arrofo failed to act as a prudent buyer. True, she asked her
daughter to verify from the Register of Deeds if the title to the Property is free from encumbrances.
However, Arrofo admitted that the Property is within the neighborhood and that she conducted an
ocular inspection of the Property. She saw the house constructed on the Property. Yet, Arrofo did not
even bother to inquire about the occupants of the house. Arrofo also admitted that at the time of the
sale, Myrna was occupying a room in her house as her lessee. The fact that Myrna was renting a room
from Arrofo yet selling a land with a house should have put Arrofo on her guard. She knew that Myrna
was not occupying the house. Hence, someone else must have been occupying the house.

Thus, Arrofo should have inquired who occupied the house, and if a lessee, who received the rentals
from such lessee. Such inquiry would have led Arrofo to discover that the lessee was paying rentals to
Quino, not to Renato and Myrna, who claimed to own the Property.29cralawlawlibrary
An analogous situation obtains in the case at bar.

The TCT of the subject property states that its sole owner is the seller Rogelio himself who was therein
also described as "single". However, as in the cases of Spouses Raymundo and Arrofo, there are
circumstances critical to the case at bar which convince us to affirm the ruling of both the appellate and
lower courts that herein petitioner is not a buyer in good faith.

First, petitioner's sister Hilda Bautista, at the time of the sale, was residing near Rogelio and Shirley's
house - the subject property - in Ladislao Diwa Village, Marikina City. Had petitioner been more prudent
as a buyer, she could have easily checked if Rogelio had the capacity to dispose of the subject property.
Had petitioner been more vigilant, she could have inquired with such facility - considering that her sister
lived in the same Ladislao Diwa Village where the property is located - if there was any person other
than Rogelio who had any right or interest in the subject property.

To be sure, respondent even testified that she had warned their neighbors at Ladislao Diwa Village -
including petitioner's sister - not to engage in any deal with Rogelio relative to the purchase of the
subject property because of the cases she had filed against Rogelio. Petitioner denies that respondent
had given such warning to her neighbors, which includes her sister, therefore arguing that such warning
could not be construed as "notice" on her part that there is a person other than the seller himself who
has any right or interest in the subject property. Nonetheless, despite petitioner's adamant denial, both
courts a quo gave probative value to the testimony of respondent, and the instant petition failed to
present any convincing evidence for this Court to reverse such factual finding. To be sure, it is not within
our province to second-guess the courts a quo, and the re-determination of this factual issue is beyond
the reach of a petition for review on certiorari where only questions of law may be reviewed.30

Second, issues surrounding the execution of the Deed of Absolute Sale also pose question on the claim
of petitioner that she is a buyer in good faith. As correctly observed by both courts a quo, the Deed of
Absolute Sale was executed and dated on December 29, 1992. However, the Community Tax Certificates
of the witnesses therein were dated January 2 and 20, 1993.31 While this irregularity is not a direct proof
of the intent of the parties to the sale to make it appear that the Deed of Absolute Sale was executed on
December 29, 1992 - or before Shirley filed the petition for legal separation on January 29, 1993 - it is
circumstantial and relevant to the claim of herein petitioner as an innocent purchaser for value.

That is not all.

In the Deed of Absolute Sale dated December 29, 1992, the civil status of Rogelio as seller was not
stated, while petitioner as buyer was indicated as "single," viz.:chanroblesvirtuallawlibrary
ROGELIO A. NUEGA, of legal age, Filipino citizen and with postal address at 2-A-2 Ladislao Diwa St.,
Concepcion, Marikina, Metro Manila, hereinafter referred to as the VENDOR

And

JOSEFINA V. NOBLEZA, of legal age, Filipino citizen, single and with postal address at No. L-2-A-3 Ladislao
Diwa St., Concepcion, Marikina, Metro Manila, hereinafter referred to as the VENDEE.32cralawlawlibrary
It puzzles the Court that while petitioner has repeatedly claimed that Rogelio is "single" under TCT No.
171963 and Tax Declaration Nos. D-012-04723 and D-012-04724, his civil status as seller was not stated
in the Deed of Absolute Sale - further creating a cloud on the claim of petitioner that she is an innocent
purchaser for value.

As to the second issue, we rule that the appellate court did not err when it modified the decision of the
trial court and declared that the Deed of Absolute Sale dated December 29, 1992 is void in its entirety.
The trial court held that while the TCT shows that the owner of the subject property is Rogelio alone,
respondent was able to prove at the trial court that she contributed in the payment of the purchase
price of the subject property. This fact was also settled with finality by the RTC of Pasig City, Branch 70,
and affirmed by the CA, in the case for legal separation and liquidation of property docketed as JDRC
Case No. 2510. The pertinent portion of the decision reads:chanroblesvirtuallawlibrary
xxx Clearly, the house and lot jointly acquired by the parties prior to their marriage forms part of their
community property regime, xxx

From the foregoing, Shirley sufficiently proved her financial contribution for the purchase of the house
and lot covered by TCT 171963. Thus, the present lot which forms part of their community property
should be divided equally between them upon the grant of the instant petition for legal separation.
Having established by preponderance of evidence the fact of her husband's guilt in contracting a
subsequent marriage xxx, Shirley alone should be entitled to the net profits earned by the absolute
community property.33cralawlawlibrary
However, the nullity of the sale made by Rogelio is not premised on proof of respondent's financial
contribution in the purchase of the subject property. Actual contribution is not relevant in determining
whether a piece of property is community property for the law itself defines what constitutes
community property.

Article 91 of the Family Code thus provides:chanroblesvirtuallawlibrary

Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community
property shall consist of all the property owned by the spouses at the time of the celebration of the
marriage or acquired thereafter.
The only exceptions from the above rule are: (1) those excluded from the absolute community by
the Family Code; and (2) those excluded by the marriage settlement.

Under the first exception are properties enumerated in Article 92 of the Family Code, which
states:chanroblesvirtuallawlibrary
Art. 92. The following shall be excluded from the community property:

(1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as
the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they
shall form part of the community property;

(2) Property for personal and exclusive use of either spouse; however, jewelry shall form part of the
community property;

(3) Property acquired before the marriage by either spouse who has legitimate descendants by a former
marriage, and the fruits as well as the income, if any, of such property.
As held in Quiao v. Quiao:34ChanRoblesVirtualawlibrary
When a couple enters into a regime of absolute community, the husband and the wife becomes joint
owners of all the properties of the marriage. Whatever property each spouse brings into the marriage,
and those acquired during the marriage (except those excluded under Article 92 of the Family Code)
form the common mass of the couple's properties. And when the couple's marriage or community is
dissolved, that common mass is divided between the spouses, or their respective heirs, equally or in the
proportion the parties have established, irrespective of the value each one may have originally owned.
Since the subject property does not fall under any of the exclusions provided in Article 92, it therefore
forms part of the absolute community property of Shirley and Rogelio. Regardless of their respective
contribution to its acquisition before their marriage, and despite the fact that only Rogelio's name
appears in the TCT as owner, the property is owned jointly by the spouses Shirley and Rogelio.

Respondent and Rogelio were married on September 1, 1990. Rogelio, on his own and without the
consent of herein respondent as his spouse, sold the subject property via a Deed of Absolute Sale dated
December 29, 1992 - or during the subsistence of a valid contract of marriage. Under Article 96 of
Executive Order No. 209, otherwise known as The Family Code of the Philippines, the said disposition of
a communal property is void, viz.:chanroblesvirtuallawlibrary
Art. 96. The administration and enjoyment of the community property shall belong to both spouses
jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by
the wife for a proper remedy, which must be availed of within five years from the date of the contract
implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of
the common properties, the other spouse may assume sole powers of administration. These powers do
not include the powers of disposition or encumbrance without the authority of the court or the
written consent of the other spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the
part of the consenting spouse and the third person, and may be perfected as a binding contract upon
the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either
or both offerors.35cralawlawlibrary
It is clear under the foregoing provision of the Family Code that Rogelio could not sell the subject
property without the written consent of respondent or the authority of the court. Without such consent
or authority, the entire sale is void. As correctly explained by the appellate
court:chanroblesvirtuallawlibrary
In the instant case, defendant Rogelio sold the entire subject property to defendant-appellant Josefina
on 29 December 1992 or during the existence of Rogelio's marriage to plaintiff-appellee Shirley, without
the consent of the latter. The subject property forms part of Rogelio and Shirley's absolute community
of property. Thus, the trial court erred in declaring the deed of sale null and void only insofar as the
55.05 square meters representing the one-half (1/2) portion of plaintiff-appellee Shirley. In absolute
community of property, if the husband, without knowledge and consent of the wife, sells (their)
property, such sale is void. The consent of both the husband Rogelio and the wife Shirley is required and
the absence of the consent of one renders the entire sale null and void including the portion of the
subject property pertaining to defendant Rogelio who contracted the sale with defendant-appellant
Josefina. Since the Deed of Absolute Sale x x x entered into by and between defendant-appellant
Josefina and defendant Rogelio dated 29 December 1992, during the subsisting marriage between
plaintiff-appellee Shirley and Rogelio, was without the written consent of Shirley, the said Deed of
Absolute Sale is void in its entirety. Hence, the trial court erred in declaring the said Deed of Absolute
Sale as void only insofar as the 1/2 portion pertaining to the share of Shirley is
concerned.36cralawlawlibrary

Finally, consistent with our ruling that Rogelio solely entered into the contract of sale with petitioner
and acknowledged receiving the entire consideration of the contract under the Deed of Absolute Sale,
Shirley could not be held accountable to petitioner for the reimbursement of her payment for the
purchase of the subject property. Under Article 94 of the Family Code, the absolute community of
property shall only be "liable for x x x [d]ebts and obligations contracted by either spouse without the
consent of the other to the extent that the family may have been benefited x x x." As correctly stated by
the appellate court, there being no evidence on record that the amount received by Rogelio redounded
to the benefit of the family, respondent cannot be made to reimburse any amount to petitioner.37

WHEREFORE, in view of the foregoing, the petition is DENIED. The assailed Decision and Resolution of
the Court of Appeals dated May 14, 2010 and July 21, 2010, respectively, in CA-G.R. CV No. 70235
are AFFIRMED.

Costs against petitioner.

SO ORDERED.chanroblesvirtualla

2. Flores v. Spouses Lindo, Jr., G.R. No. 183984, [April 13, 2011

G.R. No. 183984 April 13, 2011

ARTURO SARTE FLORES, Petitioner,

vs.
SPOUSES ENRICO L. LINDO, JR. and EDNA C. LINDO, Respondents.

DECISION

CARPIO, J.:

The Case

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

The Antecedent Facts

The facts, as gleaned from the Court of Appeals’ Decision, are as follows:

On 31 October 1995, Edna Lindo (Edna) obtained a loan from Arturo Flores (petitioner) amounting to
₱400,000 payable on 1 December 1995 with 3% compounded monthly interest and 3% surcharge in case
of late payment. To secure the loan, Edna executed a Deed of Real Estate Mortgage4 (the Deed) covering
a property in the name of Edna and her husband Enrico (Enrico) Lindo, Jr. (collectively, respondents).
Edna also signed a Promissory Note5 and the Deed for herself and for Enrico as his attorney-in-fact.

Edna issued three checks as partial payments for the loan. All checks were dishonored for insufficiency
of funds, prompting petitioner to file a Complaint for Foreclosure of Mortgage with Damages against
respondents. The case was raffled to the Regional Trial Court of Manila, Branch 33 (RTC, Branch 33) and
docketed as Civil Case No. 00-97942.
In its 30 September 2003 Decision,6 the RTC, Branch 33 ruled that petitioner was not entitled to judicial
foreclosure of the mortgage. The RTC, Branch 33 found that the Deed was executed by Edna without the
consent and authority of Enrico. The RTC, Branch 33 noted that the Deed was executed on 31 October
1995 while the Special Power of Attorney (SPA) executed by Enrico was only dated 4 November 1995.

The RTC, Branch 33 further ruled that petitioner was not precluded from recovering the loan from Edna
as he could file a personal action against her. However, the RTC, Branch 33 ruled that it had no
jurisdiction over the personal action which should be filed in the place where the plaintiff or the
defendant resides in accordance with Section 2, Rule 4 of the Revised Rules on Civil Procedure.

Petitioner filed a motion for reconsideration. In its Order7 dated 8 January 2004, the RTC, Branch 33
denied the motion for lack of merit.

On 8 September 2004, petitioner filed a Complaint for Sum of Money with Damages against
respondents. It was raffled to Branch 42 (RTC, Branch 42) of the Regional Trial Court of Manila, and
docketed as Civil Case No. 04-110858.

Respondents filed their Answer with Affirmative Defenses and Counterclaims where they admitted the
loan but stated that it only amounted to ₱340,000. Respondents further alleged that Enrico was not a
party to the loan because it was contracted by Edna without Enrico’s signature. Respondents prayed for
the dismissal of the case on the grounds of improper venue, res judicata and forum-shopping, invoking
the Decision of the RTC, Branch 33. On 7 March 2005, respondents also filed a Motion to Dismiss on the
grounds of res judicata and lack of cause of action.

The Decision of the Trial Court

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

Respondents filed a Petition for Certiorari and Mandamus with Prayer for a Writ of Preliminary
Injunction and/or Temporary Restraining Order before the Court of Appeals.

The Decision of the Court of Appeals

In its 30 May 2008 Decision, the Court of Appeals set aside the 22 July 2005 and 8 February 2006 Orders
of the RTC, Branch 42 for having been issued with grave abuse of discretion.

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

Petitioner filed a motion for reconsideration. In its 4 August 2008 Resolution, the Court of Appeals
denied the motion.

Hence, the petition before this Court.

The Issue

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

The Ruling of this Court

The petition has merit.

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

The two remedies are alternative and each remedy is complete by itself.13 If the mortgagee opts to
foreclose the real estate mortgage, he waives the action for the collection of the debt, and vice
versa.14 The Court explained:

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

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

In this case, however, there are circumstances that the Court takes into consideration.

Petitioner filed an action for foreclosure of mortgage. The RTC, Branch 33 ruled that petitioner was not
entitled to judicial foreclosure because the Deed of Real Estate Mortgage was executed without Enrico’s
consent. The RTC, Branch 33 stated:

All these circumstances certainly conspired against the plaintiff who has the burden of proving his cause
of action. On the other hand, said circumstances tend to support the claim of defendant Edna Lindo that
her husband did not consent to the mortgage of their conjugal property and that the loan application
was her personal decision.

Accordingly, since the Deed of Real Estate Mortgage was executed by defendant Edna Lindo lacks the
consent or authority of her husband Enrico Lindo, the Deed of Real Estate Mortgage is void pursuant to
Article 96 of the Family Code.

This does not mean, however, that the plaintiff cannot recover the ₱400,000 loan plus interest which he
extended to defendant Edna Lindo. He can institute a personal action against the defendant for the
amount due which should be filed in the place where the plaintiff resides, or where the defendant or
any of the principal defendants resides at the election of the plaintiff in accordance with Section 2, Rule
4 of the Revised Rules on Civil Procedure. This Court has no jurisdiction to try such personal action.17

Edna did not deny before the RTC, Branch 33 that she obtained the loan. She claimed, however, that her
husband did not give his consent and that he was not aware of the transaction.18 Hence, the RTC, Branch
33 held that petitioner could still recover the amount due from Edna through a personal action over
which it had no jurisdiction.

Edna also filed an action for declaratory relief before the RTC, Branch 93 of San Pedro Laguna (RTC,
Branch 93), which ruled:

At issue in this case is the validity of the promissory note and the Real Estate Mortgage executed by
Edna Lindo without the consent of her husband.

The real estate mortgage executed by petition Edna Lindo over their conjugal property is undoubtedly
an act of strict dominion and must be consented to by her husband to be effective. In the instant case,
the real estate mortgage, absent the authority or consent of the husband, is necessarily void. Indeed,
the real estate mortgage is this case was executed on October 31, 1995 and the subsequent special
power of attorney dated November 4, 1995 cannot be made to retroact to October 31, 1995 to validate
the mortgage previously made by petitioner.

The liability of Edna Lindo on the principal contract of the loan however subsists notwithstanding the
illegality of the mortgage. Indeed, where a mortgage is not valid, the principal obligation which it
guarantees is not thereby rendered null and void. That obligation matures and becomes demandable in
accordance with the stipulation pertaining to it. Under the foregoing circumstances, what is lost is
merely the right to foreclose the mortgage as a special remedy for satisfying or settling the
indebtedness which is the principal obligation. In case of nullity, the mortgage deed remains as evidence
or proof of a personal obligation of the debtor and the amount due to the creditor may be enforced in
an ordinary action.

In view of the foregoing, judgment is hereby rendered declaring the deed of real estate mortgage as
void in the absence of the authority or consent of petitioner’s spouse therein. The liability of petitioner
on the principal contract of loan however subsists notwithstanding the illegality of the real estate
mortgage.19

The RTC, Branch 93 also ruled that Edna’s liability is not affected by the illegality of the real estate
mortgage.

Both the RTC, Branch 33 and the RTC, Branch 93 misapplied the rules.

Article 124 of the Family Code provides:

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

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of
the conjugal properties, the other spouse may assume sole powers of administration. These powers do
not include disposition or encumbrance without authority of the court or the written consent of the
other spouse. In the absence of such authority or consent the disposition or encumbrance shall be
void. However, the transaction shall be construed as a continuing offer on the part of the consenting
spouse and the third person, and may be perfected as a binding contract upon the acceptance by the
other spouse or authorization by the court before the offer is withdrawn by either or both
offerors. (Emphasis supplied)

Article 124 of the Family Code of which applies to conjugal partnership property, is a reproduction of
Article 96 of the Family Code which applies to community property.

Both Article 96 and Article 127 of the Family Code provide that the powers do not include disposition or
encumbrance without the written consent of the other spouse. Any disposition or encumbrance without
the written consent shall be void. However, both provisions also state that "the transaction shall be
construed as a continuing offer on the part of the consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by the other spouse x x x before the offer is
withdrawn by either or both offerors."

In this case, the Promissory Note and the Deed of Real Estate Mortgage were executed on 31 October
1995. The Special Power of Attorney was executed on 4 November 1995. The execution of the SPA is
the acceptance by the other spouse that perfected the continuing offer as a binding contract between
the parties, making the Deed of Real Estate Mortgage a valid contract.

However, as the Court of Appeals noted, petitioner allowed the decisions of the RTC, Branch 33 and the
RTC, Branch 93 to become final and executory without asking the courts for an alternative relief. The
Court of Appeals stated that petitioner merely relied on the declarations of these courts that he could
file a separate personal action and thus failed to observe the rules and settled jurisprudence on
multiplicity of suits, closing petitioner’s avenue for recovery of the loan.

Nevertheless, petitioner still has a remedy under the law.

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

The principle of unjust enrichment is provided under Article 22 of the Civil Code which provides:

Art. 22. Every person who through an act of performance by another, or any other means, acquires or
comes into possession of something at the expense of the latter without just or legal ground, shall
return the same to him.

There is unjust enrichment "when a person unjustly retains a benefit to the loss of another, or when a
person retains money or property of another against the fundamental principles of justice, equity and
good conscience."23 The principle of unjust enrichment requires two conditions: (1) that a person is
benefited without a valid basis or justification, and (2) that such benefit is derived at the expense of
another.241avvphi1

The main objective of the principle against unjust enrichment is to prevent one from enriching himself at
the expense of another without just cause or consideration.25 The principle is applicable in this case
considering that Edna admitted obtaining a loan from petitioners, and the same has not been fully paid
without just cause. The Deed was declared void erroneously at the instance of Edna, first when she
raised it as a defense before the RTC, Branch 33 and second, when she filed an action for declaratory
relief before the RTC, Branch 93. Petitioner could not be expected to ask the RTC, Branch 33 for an
alternative remedy, as what the Court of Appeals ruled that he should have done, because the RTC,
Branch 33 already stated that it had no jurisdiction over any personal action that petitioner might have
against Edna.
Considering the circumstances of this case, the principle against unjust enrichment, being a substantive
law, should prevail over the procedural rule on multiplicity of suits. The Court of Appeals, in the assailed
decision, found that Edna admitted the loan, except that she claimed it only amounted to ₱340,000.
Edna should not be allowed to unjustly enrich herself because of the erroneous decisions of the two trial
courts when she questioned the validity of the Deed. Moreover, Edna still has an opportunity to submit
her defenses before the RTC, Branch 42 on her claim as to the amount of her indebtedness.

WHEREFORE, the 30 May 2008 Decision and the 4 August 2008 Resolution of the Court of Appeals in CA-
G.R. SP No. 94003 are SET ASIDE. The Regional Trial Court of Manila, Branch 42 is directed to proceed
with the trial of Civil Case No. 04-110858.

SO ORDERED.

3. De la Cruz v. De la Cruz, G.R. No. L-19565, January 30, 1968

G.R. No. L-19565 January 30, 1968

ESTRELLA DE LA CRUZ, plaintiff-appellee,

vs.
SEVERINO DE LA CRUZ, defendant-appellant.

Estacion and Paltriguera for plaintiff-appellee.

Manuel O. Soriano and Pio G. Villoso for defendant-appellant.

CASTRO, J.:

The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First Instance of
Negros Occidental, alleging in essence that her husband, the defendant Severino de la Cruz, had not only
abandoned her but as well was mismanaging their conjugal partnership properties, and praying for (1)
separation of property, (2) monthly support of P2,500 during the pendency of the action, and (3)
payment of P20,000 as attorney's fees, and costs.

The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as
alimony pendente lite, which however, upon defendant's motion, was reduced to P2,000.

On June 1, 1961 the trial court rendered judgment ordering separation and division of the conjugal
assets, and directing the defendant to pay to the plaintiff the sum of P20,000 as attorney's fees, with
legal interest from the date of the original complaint, that is, from July 22, 1958, until fully paid, plus
costs. From this judgment the defendant appealed to the Court of Appeals, which certified the case to
us, "it appearing that the total value of the conjugal assets is over P500,000".

The basic facts are not controverted. The plaintiff and the defendant were married in Bacolod City on
February 1, 1938. Six children were born to them, namely, Zenia (1939), Ronnie (1942), Victoria (1944),
Jessie 1945), Bella (1946), and Felipe (1948). During their coverture they acquired seven parcels of land
of the Bacolod Cadastre, all assessed at P45,429, and three parcels of the Silay Cadastre, all assessed at
P43,580. All these parcels are registered in their names. The hacienda in Silay yielded for the year 1957 a
net profit of P3,390.49.

They are also engaged in varied business ventures with fixed assets valued as of December 31, 1956 at
P496,006.92, from which they obtained for that year a net profit of P75,655.78. The net gain of the
Philippine Texboard Factory, the principal business of the spouses, was P90,454.48 for the year 1957. As
of December 31, 1959, the total assets of the various enterprises of the conjugal partnership were
valued at P1,021,407.68, not including those of the Top Service Inc., of which firm the defendant has
been the president since its organization in 1959 in Manila with a paid-up capital of P50,000, P10,000 of
which was contributed by him. This corporation was the Beverly Hills Subdivision in Antipolo, Rizal, the
Golden Acres Subdivision and the Green Valley Subdivision in Las Piñas, Rizal, and a lot and building
located at M. H. del Pilar, Manila purchased for P285,000, an amount borrowed from the
Manufacturer's Bank and Trust Company.

The spouses are indebted to the Philippine National Bank and the Development Bank of the Philippines
for loans obtained, to secure which they mortgaged the Philippine Texboard Factory, the Silay hacienda,
their conjugal house, and all their parcels of land located in Bacolod City.

The essential issues of fact may be gleaned from the nine errors the defendant imputes to the court a
quo, namely,

1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made by the
defendant to the conjugal abode to see his wife was on June 15, 1955;

2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that she and the
defendant are living as husband and wife;

3. In finding that since 1951 the relations between the plaintiff and the defendant were far from
cordial, and that it was from 1948 that the former has been receiving an allowance from the
latter;

4. In finding that the defendant has abandoned the plaintiff;

5. In finding that the defendant since 1956 has not discussed with his wife the business activities
of the partnership, and that this silence constituted "abuse of administration of the conjugal
partnerships";

6. In declaring that the defendant mortgaged the conjugal assets without the knowledge of the
plaintiff and thru false pretences to which the latter was prey;

7. In allowing the plaintiff, on the one hand, to testify on facts not actually known by her, and,
on the other hand, in not allowing the defendant to establish his special defenses;

8. In ordering separation of the conjugal partnership properties; and

9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of P20,000,
with interest at the legal rate.1äwphï1.ñët
Two issues of law as well emerge, requiring resolution petition: (1) Did the separation of the defendant
from the plaintiff constitute abandonment in law that would justify a separation of the conjugal
partnership properties? (2) Was the defendant's failure and/or refusal to inform the plaintiff of the state
of their business enterprises such an abuse of his powers of administration of the conjugal partnership
as to warrant a division of the matrimonial assets?

The plaintiff's evidence may be summarized briefly. The defendant started living in Manila in 1955,
although he occasionally returned to Bacolod City, sleeping in his office at the Philippine Texboard
Factory in Mandalagan, instead of in the conjugal home at 2nd Street, Bacolod City. Since 1955 the
defendant had not slept in the conjugal dwelling, although in the said year he paid short visits during
which they engaged in brief conversations. After 1955 up to the time of the trial, the defendant had
never visited the conjugal abode, and when he was in Bacolod, she was denied communication with
him. He has abandoned her and their children, to live in Manila with his concubine, Nenita Hernandez.
In 1949 she began to suspect the existence of illicit relations between her husband and Nenita. This
suspicion was confirmed in 1951 when she found an unsigned note in a pocket of one of her husband's
polo shirt which was written by Nenita and in which she asked "Bering" to meet her near the church.
She confronted her husband who forthwith tore the note even as he admitted his amorous liaison with
Nenita. He then allayed her fears by vowing to forsake his mistress. Subsequently, in November 1951,
she found in the iron safe of her husband a letter, exh. C, also written by Nenita. In this letter the sender
(who signed as "D") apologized for her conduct, and expressed the hope that the addressee ("Darling")
could join her in Baguio as she was alone in the Patria Inn and lonely in "a place for honeymooners".
Immediately after her husband departed for Manila the following morning, the plaintiff enplaned for
Baguio, where she learned that Nenita had actually stayed at the Patria Inn, but had already left for
Manila before her arrival. Later she met her husband in the house of a relative in Manila from whence
they proceeded to the Avenue Hotel where she again confronted him about Nenita. He denied having
further relations with this woman.

Celia Bañez, testifying for the plaintiff, declared that she was employed as a cook in the home of the
spouses from May 15, 1955 to August 15, 1958, and that during the entire period of her employment
she saw the defendant in the place only once. This declaration is contradicted, however, by the plaintiff
herself who testified that in 1955 the defendant "used to have a short visit there," which statement
implies more than one visit.

The defendant, for his part, denied having abandoned his wife and children, but admitted that in 1957,
or a year before the filing of the action, he started to live separately from his wife. When he transferred
his living quarters to his office in Mandalagan, Bacolod City, his intention was not, as it never has been,
to abandon his wife and children, but only to teach her a lesson as she was quarrelsome and extremely
jealous of every woman. He decided to live apart from his wife temporarily because at home he could
not concentrate on his work as she always quarreled with him, while in Mandalagan he could pass the
nights in peace. Since 1953 he stayed in Manila for some duration of time to manage their expanding
business and look for market outlets for their texboard products. Even the plaintiff admitted in both her
original and amended complaints that "sometime in 1953, because of the expanding business of the
herein parties, the defendant established an office in the City of Manila, wherein some of the goods,
effects and merchandise manufactured or produced in the business enterprises of the parties were sold
or disposed of". From the time he started living separately in Mandalagan up to the filing of the
complaint, the plaintiff herself furnished him food and took care of his laundry. This latter declaration
was not rebutted by the plaintiff.
The defendant, with vehemence, denied that he has abandoned his wife and family, averring that he has
never failed, even for a single month, to give them financial support, as witnessed by the plaintiff's
admission in her original and amended complaints as well as in open court that during the entire period
of their estrangement, he was giving her around P500 a month for support. In point of fact, his wife and
children continued to draw allowances from his office of a total ranging from P1,200 to P1,500 a month.
He financed the education of their children, two of whom were studying in Manila at the time of the
trial and were not living with the plaintiff. While in Bacolod City, he never failed to visit his family,
particularly the children. His wife was always in bad need of money because she played mahjong, an
accusation which she did not traverse, explaining that she played mahjong to entertain herself and
forget the infidelities of her husband.

Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the testimony of the
defendant on the matter of the support the latter gave to his family, by declaring in court that since the
start of his employment in 1950 as assistant general manager, the plaintiff has been drawing an
allowance of P1,000 to P1,500 monthly, which amount was given personally by the defendant or, in his
absence, by the witness himself.

The defendant denied that he ever maintained a mistress in Manila. He came to know Nenita Hernandez
when she was barely 12 years old, but had lost track of her thereafter. His constant presence in Manila
was required by the pressing demands of an expanding business. He denied having destroyed the
alleged note which the plaintiff claimed to have come from Nenita, nor having seen, previous to the
trial, the letter exh. C. The allegation of his wife that he had a concubine is based on mere suspicion. He
had always been faithful to his wife, and not for a single instance had he been caught or surprised by her
with another woman.

On the matter of the alleged abuse by the defendant of his powers of administration of the conjugal
partnership, the plaintiff declared that the defendant refused and failed to inform her of the progress of
their various business concerns. Although she did not allege, much less prove, that her husband had
dissipated the conjugal properties, she averred nevertheless that her husband might squander and
dispose of the conjugal assets in favor of his concubine. Hence, the urgency of separation of property.

The defendant's answer to the charge of mismanagement is that he has applied his industry, channeled
his ingenuity, and devoted his time, to the management, maintenance and expansion of their business
concerns, even as his wife threw money away at the mahjong tables. Tangible proof of his endeavors is
that from a single cargo truck which he himself drove at the time of their marriage, he had built up one
business after another, the Speedway Trucking Service, the Negros Shipping Service, the Bacolod Press,
the Philippine Texboard Factory, and miscellaneous other business enterprises worth over a million
pesos; that all that the spouses now own have been acquired through his diligence, intelligence and
industry; that he has steadily expanded the income and assets of said business enterprises from year to
year, contrary to the allegations of the complainant, as proved by his balance sheet and profit and loss
statements for the year 1958 and 1959 (exhibits 1 and 2); and that out of the income of their enterprises
he had purchased additional equipment and machineries and has partially paid their indebtedness to
the Philippine National Bank and the Development Bank of the Philippines.

It will be noted that the plaintiff does not ask for legal separation. The evidence presented by her to
prove concubinage on the part of the defendant, while pertinent and material in the determination of
the merits of a petition for legal separation, must in this case be regarded merely as an attempt to
bolster her claim that the defendant had abandoned her, which abandonment, if it constitutes
abandonment in law, would justify separation of the conjugal assets under the applicable provisions of
article 178 of the new Civil Code which read: "The separation in fact between husband and wife without
judicial approval, shall not affect the conjugal partnership, except that . . . if the husband has abandoned
the wife without just cause for at least one year, she may petition the court for a receivership, or
administration by her of the conjugal partnership property, or separation of property". In addition to
abandonment as a ground, the plaintiff also invokes article 167 of the new Civil Code in support of her
prayer for division of the matrimonial assets. This article provides that "In case of abuse of powers of
administration of the conjugal partnership property by the husband, the courts, on the petition of the
wife, may provide for a receivership, or administration by the wife, or separation of property". It
behooves us, therefore, to inquire, in the case at bar, whether there has been abandonment, in the legal
sense, by the defendant of the plaintiff, and/or whether the defendant has abused his powers of
administration of the conjugal partnership property, so as to justify the plaintiff's plea for separation of
property.

We have made a searching scrutiny of the record, and it is our considered view that the defendant is not
guilty of abandonment of his wife, nor of such abuse of his powers of administration of the conjugal
partnership, as to warrant division of the conjugal assets.

The extraordinary remedies afforded to the wife by article 178 when she has been abandoned by the
husband for at least one year are the same as those granted to her by article 167 in case of abuse of the
powers of administration by the husband. To entitle her to any of these remedies, under article 178,
there must be real abandonment, and not mere separation. 1 The abandonment must not only be
physical estrangement but also amount to financial and moral desertion.

Although an all-embracing definition of the term "abandonment " is yet to be spelled out in explicit
words, we nevertheless can determine its meaning from the context of the Law as well as from its
ordinary usage. The concept of abandonment in article 178 may be established in relation to the
alternative remedies granted to the wife when she has been abandoned by the husband, namely,
receivership, administration by her, or separation of property, all of which are designed to protect the
conjugal assets from waste and dissipation rendered imminent by the husband's continued absence
from the conjugal abode, and to assure the wife of a ready and steady source of support. Therefore,
physical separation alone is not the full meaning of the term "abandonment", if the husband, despite his
voluntary departure from the society of his spouse, neither neglects the management of the conjugal
partnership nor ceases to give support to his wife.

The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or renounce
utterly. 2 The dictionaries trace this word to the root idea of "putting under a bar". The emphasis is on
the finality and the publicity with which some thing or body is thus put in the control of another, and
hence the meaning of giving up absolutely, with intent never again to resume or claim one's rights or
interests. 3 When referring to desertion of a wife by a husband, the word has been defined as "the act of
a husband in voluntarily leaving his wife with intention to forsake her entirely, never to return to her,
and never to resume his marital duties towards her, or to claim his marital rights; such neglect as either
leaves the wife destitute of the common necessaries of life, or would leave her destitute but for the
charity of others." 4 The word "abandonment", when referring to the act of one consort of leaving the
other, is "the act of the husband or the wife who leaves his or her consort wilfully, and with an intention
of causing per perpetual separation." 5 Giving to the word "abandoned", as used in article 178, the
meaning drawn from the definitions above reproduced, it seems rather clear that to constitute
abandonment of the wife by the husband, there must be absolute cessation of marital relations and
duties and rights, with the intention of perpetual separation.

Coming back to the case at bar, we believe that the defendant did not intend to leave his wife and
children permanently. The record conclusively shows that he continued to give support to his family
despite his absence from the conjugal home. This fact is admitted by the complainant, although she
minimized the amount of support given, saying that it was only P500 monthly. There is good reason to
believe, however, that she and the children received more than this amount, as the defendant's claim
that his wife and children continued to draw from his office more than P500 monthly was substantially
corroborated by Marcos Ganaban, whose declarations were not rebutted by the plaintiff. And then
there is at all no showing that the plaintiff and the children were living in want. On the contrary, the
plaintiff admitted, albeit reluctantly, that she frequently played mahjong, from which we can infer that
she had money; to spare.

The fact that the defendant never ceased to give support to his wife and children negatives any intent
on his part not to return to the conjugal abode and resume his marital duties and rights. In People v.
Schelske, 6 it was held that where a husband, after leaving his wife, continued to make small
contributions at intervals to her support and that of their minor child, he was not guilty of their
"abandonment", which is an act of separation with intent that it shall be perpetual, since contributing to
their support negatived such intent. In re Hoss' Estate, supra, it was ruled that a father did not abandon
his family where the evidence disclosed that he almost always did give his wife part of his earnings
during the period of their separation and that he gradually paid some old rental and grocery bills.

With respect to the allegation that the defendant maintained a concubine, we believe, contrary to the
findings of the court a quo, that the evidence on record fails to preponderate in favor of the plaintiff's
thesis. The proof that Nenita Hernandez was the concubine of the defendant and that they were living
as husband and wife in Manila, is altogether too indefinite. Aside from the uncorroborated statement of
the plaintiff that she knew that Nenita Hernandez was her husband's concubine, without demonstrating
by credible evidence the existence of illicit relations between Nenita and the defendant, the only
evidence on record offered to link the defendant to his alleged mistress is exh. C. The plaintiff however
failed to connect authorship of the said letter with Nenita, on the face whereof the sender merely
signed as "D" and the addressee was one unidentified "Darling". The plaintiff's testimony on cross-
examination, hereunder quoted, underscores such failure:

Q. You personally never received any letter from Nenita?

A. No.

Q. Neither have you received on any time until today from 1949 from Nenita?

A. No.

Q. Neither have you written to her any letter yourself until now?

A. Why should I write a letter to her.

 Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of Nenita. Is that
right?

A. I can say that Nenita writes very well.

Q. I am not asking you whether she writes very well or not but, my question is this: In view of
the fact that you have never received a letter from Nenita, you have ot sent any letter to her,
you are not familiar with her handwriting?

A. Yes.

Q. You have not seen her writing anybody?

A. Yes.

Anent the allegation that the defendant had mismanaged the conjugal partnership property, the record
presents a different picture. There is absolutely no evidence to show that he has squandered the
conjugal assets. Upon the contrary, he proved that through his industry and zeal, the conjugal assets at
the time of the trial had increased to a value of over a million pesos.

The lower court likewise erred in holding that mere refusal or failure of the husband as administrator of
the conjugal partnership to inform the wife of the progress of the family businesses constitutes abuse of
administration. For "abuse" to exist, it is not enough that the husband perform an act or acts prejudicial
to the wife. Nor is it sufficient that he commits acts injurious to the partnership, for these may be the
result of mere inefficient or negligent administration. Abuse connotes willful and utter disregard of the
interests of the partnership, evidenced by a repetition of deliberate acts and/or omissions prejudicial to
the latter. 7

If there is only physical separation between the spouses (and nothing more), engendered by the
husband's leaving the conjugal abode, but the husband continues to manage the conjugal properties
with the same zeal, industry, and efficiency as he did prior to the separation, and religiously gives
support to his wife and children, as in the case at bar, we are not disposed to grant the wife's petition
for separation of property. This decision may appear to condone the husband's separation from his wife;
however, the remedies granted to the wife by articles 167 and 178 are not to be construed as
condonation of the husband's act but are designed to protect the conjugal partnership from waste and
shield the wife from want. Therefore, a denial of the wife's prayer does not imply a condonation of the
husband's act but merely points up the insufficiency or absence of a cause of action.1äwphï1.ñët

Courts must need exercise judicial restraint and reasoned hesitance in ordering a separation of conjugal
properties because the basic policy of the law is homiletic, to promote healthy family life and to
preserve the union of the spouses, in person, in spirit and in property.

Consistent with its policy of discouraging a regime of separation as not in harmony with the
unity of the family and the mutual affection and help expected of the spouses, the Civil Code
(both old and new) requires that separation of property shall not prevail unless expressly
stipulated in marriage settlements before the union is solemnized or by formal judicial decree
during the existence of the marriage (Article 190, new Civil Code, Article 1432, old Civil Code):
 and in the latter case, it may only be ordered by the court for causes specified in Article 191 of
the new Civil Code. 8

Furthermore, a judgment ordering the division of conjugal assets where there has been no real
abandonment, the separation not being wanton and absolute, may altogether slam shut the door for
possible reconciliation. The estranged spouses may drift irreversibly further apart; the already broken
family solidarity may be irretrievably shattered; and any flickering hope for a new life together may be
completely and finally extinguished.

The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long before the
devaluation of the Philippine peso in 1962, should be increased to P3,000.

On the matter of attorney's fees, it is our view that because the defendant, by leaving the conjugal
abode, has given cause for the plaintiff to seek redress in the courts, and ask for adequate support, an
award of attorney's fees to the plaintiff must be made. Ample authority for such award is found in
paragraphs 6 and 11 of article 2208 of the new Civil Code which empower courts to grant counsel's fees
"in actions for legal support" and in cases "where the court deems it just and equitable that attorney's
fees . . . should be recovered." However, an award of P10,000, in our opinion, is, under the
environmental circumstances, sufficient.

This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that the law
enjoins husband and wife to live together, and, secondly, exhort them to avail of — mutually, earnestly
and steadfastly — all opportunities for reconciliation to the end that their marital differences may be
happily resolved, and conjugal harmony may return and, on the basis of mutual respect and
understanding, endure.

ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal properties, is
reversed and set aside. Conformably to our observations, however, the defendant is ordered to pay to
the plaintiff, in the concept of support, the amount of P3,000 per month, until he shall have rejoined her
in the conjugal home, which amount may, in the meantime, be reduced or increased in the discretion of
the court a quo as circumstances warrant. The award of attorney's fees to the plaintiff is reduced to
P10,000, without interest. No pronouncement as to costs.