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Civil Law Dean ED VINCENT S. ALBANO BIRTH ARTICLES 40, 41, 42, NCC BIRTH AND PERSONALITY; EFFECT OF DEATH Acquisition of personality. One question has been asked in a case where a fetus died. Are the parents entitled to bereavement benefits under the CBA with the employer? But before the question can be answered, we must determine whether the fetus can be considered a dependent within the meaning of the term under the CBA. The answer is, Yes because a child does not need to be born to be considered a dependent because even during the period of conception where the fetus is still inside the womb of the mother, it is already dependent upon her for sustenance to survive. In fact, it is not necessary that the fetus be born inorder that he may die. It cannot be said that only one with juridical personality can die and a dead fetus never acquired juridical personality. That is not quite correct, for even the fetus already attains life during conception and can die in the womb of the mother. This unique situation occurred in a case where the parents of an unborn fetus were demanding bereavement leave with pay and other benefits because of the death of the fetus. It was contended however that no such benefits are due as no death of an employee’s dependent had occurred. The death of a fetus, at whatever stage of pregnancy, was excluded from the coverage of the CBA since what was contemplated by the CBA was the death of a fetus which did not acquire any juridical personality, it was further contended. But as said earlier, even a fetus has a personality, especially so that the CBA can be considered as a contract between the parent and the employer and the bereavement benefits can be considered as a stipulation where the fetus is the subject. Article 40 provides that a conceived child acquires personality only when it is born, and Article 41 defines when a child is considered born. Article 42 plainly states that civil personality is extinguished by death. Articles 40, 41 and 42 of the Civil Code on natural persons, must be applied in relation to Article 37 of the same Code, the very first of the general provisions on civil personality, which reads: Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. Articles 40, 41 and 42 of the Civil Code do not provide at all a definition of death. Moreover, while the Civil Code expressly provides that civil personality may be extinguished by death, it does not explicitly state that only those who have acquired juridical personality could die. Death has been defined as the cessation of life. (Black’s Law Dictionary). Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from conception, (Art. II, Sec. 12, Constitution) that the State must protect

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equally with the life of the mother. If the unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as death. The unborn child can be considered a dependent under the CBA. A dependent is “one who relies on another for ; one not able to exist or sustain oneself without the power or aid of someone else.” Under said general definition, even an unborn child is a dependent of its parents. The child could not have reached 38-39 weeks of its gestational life without depending upon its mother, for sustenance. Additionally, it is explicit in the CBA provisions in question that the dependent may be the parent, spouse, or child of a married employee; or the parent, brother, or sister of a single employee. The CBA did not provide a qualification for the child dependent, such that the child must have been born or must have acquired civil personality, as employer averred. Without such qualification, then child shall be understood in its more general sense, which includes the unborn fetus in the mother’s womb. The term legitimate merely addresses the dependent child’s status in relation to his/her parents. In Angeles v. Maglaya, G.R. No. 153798, September 2, 2005, 469 SCRA 363, it was said that a legitimate child is a product of, and, therefore, implies a valid and lawful marriage. Remove the element of lawful union and there is strictly no legitimate filiation between parents and child. Article 164 of the Family Code cannot be more emphatic on the matter: “Children conceived or born during the marriage of the parents are legitimate.” Conversely, in Briones v. Miguel, 483 Phil. 483 (2004) an illegitimate child was defined to be as follows: The fine distinctions among the various types of illegitimate children have been eliminated in the Family Code. Now, there are only two classes of children -legitimate (and those who, like the legally adopted, have the rights of legitimate children) and illegitimate. All children conceived and born outside a valid marriage are illegitimate, unless the law itself gives them legitimate status. It is apparent that according to the Family Code and the afore-cited jurisprudence, the legitimacy or illegitimacy of a child attaches upon his/her conception. In the present case, the parents of the unborn fetus were validly married and that their child was conceived during said marriage, hence, making said child legitimate upon her conception. (Continental Steel Manufacturing Corp. v. Hon. Accredited Voluntary Arbitrator, et al., G.R. No. 182836, October 13, 2009). MARRIAGE False affidavit on 5-year period of cohabitation; as if marriage celebrated without a license; void. In Rep. v. Jose Dayot, G.R. No. 175581, March 28, 2008, Nazario, J, the SC once again had the occasion to rule that the requirement of a marriage license for the validity of marriage is mandatory. One exception is, if the parties have live together as husband and wife without any legal impediment to marry one another. In lieu of the license, an affidavit of cohabitation would be sufficient. In this case, Jose and Felisa were introduced to each other in March 1986. In June 1986, Jose lived in the house of Felisa as a boarder or they lived together barely 5 months before they got married. In 1986, Felisa asked him to accompany her to the Pasay City Hall to claim a package where he was asked to sign documents. He initially refused but he was cajoled by Felisa, hence, he signed the same, only to find out that he contracted marriage with her. He filed a complaint for annulment and/or declaration of nullity of the marriage alleging that it was a sham marriage, as no marriage ceremony was held; that he did not execute an affidavit stating that they lived as husband and wife for at least 5 years. Felisa contended otherwise and defended the validity of their marriage.

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After trial, the RTC dismissed the complaint, ruling that a person in his right mind would easily suspect any attempt to make him or her sign a blank sheet of paper. The Court of Appeals however, declared their marriage void. The Court of Appeals relied on the ruling in Niñal v. Bayadog, 384 Phil 661 (2000) and reasoned that: In Niñal v. Badayog, where the contracting parties to a marriage solemnized without a marriage license on the basis of their affidavit that they had attained the age majority, that being unmarried, they had lived together for at least five (5) years and that they desired to marry each other, the Supreme Court ruled as follows: “x x x In other words, the five – year common --- law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity – meaning no third party was involved at any time within the 5 years and continuity – that is unbroken. Otherwise, if that continuous five year cohabitation period is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirement of the law. The parties should be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that the two persons are about to be united in matrimony and that anyone who is aware or who has any knowledge of any impediment to the union of the two shall make it known to the local civil registrar. Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage license, save marriages of exceptional character, shall be void from the beginning. Inasmuch as the marriage between Jose and Felisa is not covered by the exception to the requirement of a marriage license, it is, therefore void ab initio because of the absence of marriage license. The reason for the law, (Niñal v. Bayadog) as espoused by the Code Commission, is that the publicity attending a marriage license may discourage such persons who have lived in a state of cohabitation from legalizing their status. It is not contested that the marriage of Jose and Felisa was performed without a marriage license. In lieu thereof, they executed an affidavit declaring that “they have attained the age maturity; that being unmarried, they have lived together as husband and wife for at least five years; and that because of this union, they desire to marry each other. One of the central issues in the Petition at bar is thus: whether the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of a marriage license. The exception of a marriage license under Article 76, NCC applies only to those who have live together as husband and wife for at least five years and desire to marry each other. The Civil Code, in no ambiguous , places a minimum period he had, since the language of Article 76 is precise. The minimum requisite of five years of cohabitation is an indispensability carved in the language of the law. For a marriage celebrated under Article 76 to be valid, this material fact cannot be dispensed with. It is embodied in the law not as a directory requirement, but as one that partakes of a mandatory character.

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It is indubitably established that Jose and Felisa have not lived together for five years at the time they executed their sworn affidavit and contracted marriage. The Republic itted that Jose and Felisa started lived together only in June 1986, or barely five months before the celebration of their marriage. The insistence of the Republic that the falsity of the statements in the parties’ affidavit will not affect the validity of marriage, since all the essential and formal requisites were complied with is not quite correct. The argument deserves scan merit. Patently, it cannot be denied that the marriage between Jose and Felisa was celebrated without the formal requisite of a marriage license. Neither Jose and Felisa meet the explicit legal requirement in Article 76, that they should have lived together as husband and wife for at least five years, so as to be expected from the requirement of a marriage license. Falsity of statement, not mere irregularity. The ratiocination of the Republic that as a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, so must a marriage not be invalidated by a fabricated statement that the parties have cohabited for at least five years as required by law, is not correct. The contract is flagrant. The former is with reference to an irregularity of the marriage license, and not to the absence of one. Hence, there is no marriage license at all. Furthermore, the falsity of the allegation in the sworn affidavit relating to the period of the parties’ cohabitation, which would have qualified their marriage as an exception to the requirement for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that the law precisely required to be deposed and attested to by the parties under oath. If the essential matter in the sworn affidavit is a lie, then it is but a mere scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all. Meaning of the 5-year cohabitation. Jurisprudence has laid down the rule that the five-year common-law cohabitation period under Article 76 means a five-year period computed back from the date of celebration of marriage, and refers to a period of legal union had it not been for the absence of a marriage. (Niñal v. Bayadog). It covers the years immediately preceding the day of the marriage, characterized by exclusivity – meaning no third party was involved at any time within the five years – and continuity that is unbroken. Spouse convicted of adultery; right to share conjugal properties; compromise agreement equivalent to voluntary separation of properties. In Maquilan v. Maquilan, G.R. No. 155409, June 8, 2007, there was a blissful married life of the spouses, but their once sugar coated romance turned bitter when the man discovered that the wife was committing adultery. He sued her and the paramour for adultery where they were convicted. Thereafter, he filed a complaint for Declaration of Nullity of Marriage on the ground of psychological incapacity with Dissolution and Liquidation of the conjugal partnership of gains and damages. They, however, entered into a Compromise Agreement where they separated and divided their properties. Judgment was rendered approving the compromise agreement but later on he filed a motion to repudiate the Compromise Agreement as he was not properly advised by his lawyer. It was denied. In a petition for Certiorari before the CA, he contended that: (1) it was made within the cooling-off period; (2) the proceedings were conducted without the participation of the OSG. The CA dismissed the Petition ruling that conviction for adultery did not ipso facto disqualify her from sharing in the conjugal property; that the cooling-off period under Article 58, Family Code has no bearing and that the presence of the OSG is not indispensable to the execution and validity of the

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Compromise Agreement since the propose of his presence is to curtail any collusion between the parties and to see to it that evidence is not fabricated. The issue in this case involves the right to share despite conviction for adultery. The contention that the Compromise Agreement is tantamount to a circumvention of the law prohibiting the guilty spouse from sharing in the conjugal properties is misplaced. Existing law and jurisprudence do not impose such disqualification. Under Article 134 of the Family Code, separation of property may be effected voluntarily or for sufficient cause, subject to judicial approval. The questioned Compromise Agreement which was judicially approved is exactly such a separation of property allowed under the law. This conclusion holds true even if the proceeding for the declaration of nullity of marriage was still pending. This voluntary separation of property is subject to the right of all creditors of the conjugal partnership of gain and other person with pecuniary interest pursuant to Article 136 of the Family Code. Effect of absence of the OSG. Petitioner’s claim that since proceedings before the RTC were void in the absence of the participation of the provincial prosecutor or solicitor, the voluntary separation made during the pendency of the case is also void. The proceedings pertaining to the Compromise Agreement involved the conjugal properties of the spouses. The settlement had no relation to the questions surrounding the validity of their marriage. Nor did the settlement amount to collusion between the parties. In short, the Compromise Agreement can be treated as a contract contemplated by the parties separating their properties which was submitted to the court for approval as contemplated by Article 136 of the Family Code. DIVORCE Validity of foreign divorce in the Philippines. In Bayot v. CA, et al., G.R. No. 155635; Bayot v. Bayot, G.R. No. 163979, November 7, 2008, Vicente and Rebecca were married on April 20, 1979. Rebecca was identified as an American citizen, born in Guam and of American parents. In 1996, she initiated divorce proceedings against Vicente before the Court of First Instance of the Judicial District of Sto. Domingo in Dominican Republic. Both parties were represented by counsel. The Court granted the petition, ordering the dissolution of their marriage, leaving them to remarry again but giving them t custody of their child. There was also resolution of their property relations by virtue of an Agreement which was approved by the same court. On March 14, 1996, Rebecca filed an action for declaration of nullity of their marriage (Civil Case No. 96-378), but it was withdrawn. On March 21, 2001, she filed another action for declaration of nullity of their marriage on the ground of psychological incapacity (Civil Case No. 01-094). Vicente filed a Motion to dismiss on the ground of failure to state a cause of action and by prior judgment of divorce. Rebecca opposed on the ground that the divorce decree was void as she was a Filipino and has been recognized as such by the DOJ. The RTC denied the motion as the divorce judgment was a matter of defense, hence, a petition for certiorari was filed with the CA which ruled that the RTC should have granted the Motion to Dismiss. Rebecca filed a motion for reconsideration but it was denied. Hence, Rebecca filed a petition for certiorari with the SC where the determinative issue, was the propriety of the granting of the motion to dismiss by the appellate court and resolves itself into the questions of: first, whether petitioner Rebecca was a Filipino citizen at the time the divorce judgment was rendered in the Dominican Republic on February 22, 1996; and second, whether the judgment of divorce is valid and, if so, what are its consequent legal effect?

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In dismissing the petition, the SC Held: The divorce decree in Dominican Republic is valid. First, at the time of the divorce, Rebecca was still to be recognized, assuming for argument that she was in fact later recognized, as a Filipino citizen, but represented herself in public documents as an American citizen. At the very least, she chose, before, during, and shortly after her divorce, her American citizenship to govern her marital relationship. Second, she secured personally said divorce as an American citizen. Third, being an American citizen, Rebecca was bound by the national laws of the United States of America, a country which allows divorce. Fourth, the property relations of Vicente and Rebecca were properly adjudicated through their Agreement executed on December 14, 1996 after Civil Decree No. 362/96 was rendered on February 22, 1996, and duly affirmed by Civil Decree No. 406/97 issued on March 4, 1997.Veritably, the foreign divorce secured by Rebecca was valid. In Garcia v. Recio, it was ruled that a foreign divorce can be recognized here, provided the divorce decree is proven as a fact and as valid under the national law of the alien spouse. Be this as it may, the fact that Rebecca was clearly an American citizen when she secured the divorce and that divorce is recognized and allowed in any of the States of the Union, the presentation of a copy of foreign divorce decree duly authenticated by the foreign court issuing said decree is, sufficient. The existence of the divorce decree has not been denied, but in fact itted by both parties. And neither did they impeach the jurisdiction of the divorce court nor challenge the validity of its proceedings on the ground of collusion, fraud, or clear mistake of fact or law, albeit both appeared to have the opportunity to do so. The same holds true with respect to the decree of partition of their conjugal property. As it was explained in Roehr v. Rodriguez: “Before our courts can give the effect of res judicata to a foreign judgment [of divorce] x x x, it must be shown that the parties who opposed to the judgment had been given ample opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit: Section 50. Effect of foreign judgments. – The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as follows: (a) In case of the judgment upon a specific thing, the judgment is conclusive upon the title to the thing; (b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successor-in-interest by a subsequent title; but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of court clearly provide that with respect to action in personam, as distinguished from actions in rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the contrary. Rebecca, assisted by counsel, personally secured the foreign divorce while Vicente was duly represented by his counsel. As things stand, the foreign divorce decree rendered and issued by the Dominican Republic court is valid and, consequently, bind both Rebecca and Vicente.

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Finally, the fact that Rebecca may have been duly recognized as a Filipino citizen by force of the June 8, 2000 affirmation by Secretary of Justice Tuquero of the October 6, 1995 Bureau Order of Recognition will not, standing alone, work to nullify or invalidate the foreign divorce secured by Rebecca as an American citizen on February 22, 1996. For, in determining whether or not a divorce secured abroad would come within the pale of the country’s policy against absolute divorce, the reckoning point is the citizenship of the parties at the time a valid divorce is obtained. No cause of action in the petition for nullity of marriage. Upon the foregoing disquisitions, it is abundantly clear that Rebecca lacked a cause of action, since an action for declaration of nullity of marriage presupposes the existence of a marriage. With the valid foreign divorce secured by Rebecca, there is no more marital tie binding her to Vicente. There is in fine no more marriage to be dissolve or nullified. In short, Rebecca did not have the personality anymore to file an action for nullity of her marriage. Homosexuality is not a ground to annul marriage. The case of Manuel Almelor v. RTC of Las Piñas City, et al., G.R. No. 79620, August 26, 2008 is a story of a desperate man determined to salvage what remains of his marriage. Persistent in his quest, he fought back all the heavy accusations of incapacity, cruelty, and doubted masculinity thrown at him. The trial court denied his wife’s petition for nullity of their marriage as it had “no basis at all because the ing grounds relied upon cannot legally make a case under Article 36 of the Family Code.” But instead of dismissing the petition, the trial court nullified the marriage between Manuel and Leonida on the ground of vitiated consent by virtue of fraud. Evidently, no sufficient proof was presented to substantiate the allegations that Manuel is a homosexual and that he concealed this to Leonida at the time of their marriage. The lower court considered the public perception of Manuel’s sexual preference without the corroboration of witnesses. Also, it took cognizance of Manuel’s peculiarities and interpreted it against his sexuality. The Supreme Court reversed the RTC decision and Held: Even assuming, ex gratia argumenti, that Manuel is a homosexual, the lower court cannot appreciate it as a ground to annul his marriage with Leonida. The law is clear – a marriage may be annulled when the consent of either party was obtained by fraud (Art. 45(3), Family Code), such as concealment of homosexuality (Art. 46(4), Family Code). Nowhere in the said decision was it proven by preponderance of evidence that Manuel was a homosexual at the onset of his marriage and that he deliberately hid such fact to his wife. It is the concealment of homosexuality, and not homosexuality per se, that vitiates the consent of the innocent party. Such concealment presupposes bad faith and intent to defraud the other party in giving consent to the marriage. Consent is an essential requisite of a valid marriage. To be valid, it must be freely given by both parties. An allegation of vitiated consent must be proven by preponderance of evidence. The Family Code has enumerated an exclusive list of circumstances constituting fraud. Homosexuality per se is not among those cited, but its concealment.

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Judgment declaring a spouse presumptively dead is unappealable; remedy is special civil action for certiorari. If a spouse is declared presumptively dead, the judgment cannot be appealed from. The reason is that, the proceedings are summary in nature. This is exemplified by Article 253 of the Family Code which provides: “The foregoing rule in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124, and 217, insofar as they are applicable.” Article 247 of the Family Code further says that judgment of the court shall be immediately final and executory. In Republic v. Ferventino Tango, G.R. No. 161062, July 31, 2009, after one night together as husband and wife, Maria informed her husband that her family was migrating to the USA. She assured him that she would file a petition for him so they can live together in the USA or return to the Philippines if the petition would be denied. They had correspondences for one (1) year, until Maria did not answer his letters anymore. He inquired from close relatives of her whereabouts, but nobody knew. He sought the help of a friend in the USA but to no avail. He filed a petition to declare her presumptively dead which was granted. The OSG filed a notice of appeal to the RTC invoking as one of the grounds the Constitutional provisions that advocate the State policy of preserving marital institution. The appeal brought to fore the issue as to whether such a judgment is appealable or not. The Supreme Court ruled that it is not appealable as the judgment is immediately final and executory. More specifically, the SC ruled, thus: “Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code: ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three of the same title. It states: ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. In plain text, Article 247 in Chapter 2 of the same title reads: ART 247. The judgment of the court shall be immediately final and executory.” By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial court’s judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the Court’s original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted

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freedom of choice of court forum. (Flaminiano v. Adriano, G.R. No. 165258, February 4, 2008, 543 SCRA 605). From the decision of the Court of Appeals, the losing party may then file a petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is because the errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an appeal. (Heirs of Maura So v. Obliosca, G.R. No. 147082, January 28, 2008, 542 SCRA 406). Role of the prosecuting attorney in actions for nullity or annulment of marriage. When the Supreme Court resolved the case of Republic v, CA and Molina, G.R. No. 108763, February 13, 1997, 268 SCRA 198, it imposed restrictive requirements in actions for nullity of marriage, like the certification by the OSG before a judgment was rendered. In fact, that was never intended by the framers of the Family Code. That is why, in Rowena Padilla-Rumbaoa v. Edward Rumbaoa, G.R. No. 166738, August 14, 2009, there was a contention that the judgment was premature without such certification. The SC promulgated A.M. No. 02-11-10-SC which took effect on March 15, 2003, but it was contended that such istrative matter cannot overturn Molina. More specifically, Molina decreed that: “The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. A.M. No. 02-11-10-SC which was promulgated on March 15, 2003 by the Supreme Court and duly published -- is geared towards the relaxation of the OSG certification that Molina required. Section 18 of this remedial regulation provides: SEC. 18. Memoranda. – The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. The amendment introduced under A.M. No. 02-11-10-SC is procedural or remedial in character; it does not create or remove any vested right, but only operates as a remedy in aid of or confirmation of already existing rights. The settled rule is that procedural laws may be given retroactive effect, as held in De Los Santos v. Vda. de Mangubat: Procedural Laws do not come within the legal conception of a retroactive law, or the general rule against the retroactive operation of statues - they may be given retroactive effect on actions pending and undetermined at the time of their age and this will not violate any right of a person who may feel that he is adversely affected, insomuch

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as there are no vested rights in rules of procedure. (G.R. No. 149508, October 10, 2007, 535 SCRA 411). A.M. No. 02-11-10-SC, as a remedial measure, removed the mandatory nature of an OSG certification and may be applied retroactively to pending matters. In effect, the measure cures in any pending matter any procedural lapse on the certification prior to its promulgation. The rulings in Antonio v. Reyes, G.R. No. 155800, March 10, 2006, 484 SCRA 353 and Navales v. Navales, G.R. No. 167523, June 27, 2008 have since confirmed and clarified that A.M. No. 02-11-10-SC has dispensed with the Molina guideline on the matter of certification, although Article 48 mandates the appearance of the prosecuting attorney or fiscal to ensure that no collusion between the parties would take place. Thus, what is important is the presence of the prosecutor in the case, not the remedial requirement that he be certified to be present. Sale of conjugal property by a spouse without consent of the other; effect. In Sps. Lita De Leon & Felic Rio Tarrosa v. Anita de Leon, et al., G.R. No. 185063, July 23, 2009, it was again over-emphasized that the 1950 Civil Code (now Article 96, Family Code) is very explicit on the consequence of the husband alienating or encumbering any real property of the conjugal partnership without the wife’s consent. To a specific point, the sale of a conjugal piece of land by the husband, as , must, as a rule, be with the wife’s consent. Else, the sale is not valid. So it is that in several cases it has been ruled that the sale by the husband of property belonging to the conjugal partnership without the consent of the wife is void ab initio, absent any showing that the latter is incapacitated, under civil interdiction, or like causes. The nullity proceeds from the fact that sale is in contravention of the mandatory requirements of Art. 166 of the Code. (Now Article 96, Family Code). Since the Code requires the consent of the wife before the husband may alienate or encumber any real property of the conjugal partnership, it follows that the acts or transactions executed against this mandatory provision are void except when the law itself authorized their validity. (Article 5, NCC). The sale of one-half of the conjugal property without liquidation of the partnership is void. Prior to the liquidation of the conjugal partnership, the interest of each spouse in the conjugal assets is inchoate, a mere expectancy, which constitutes neither a legal nor an equitable estate, and does not ripen into a title until it appears that there are assets in the community as a result of the liquidation and settlement. (Abalos v. Macatangay, Jr., G.R. No. 155043, September 30, 2004, 439 SCRA 649). The interest of each spouse is limited to the net remainder or “remanente liquido” (haber ganancial) resulting from the liquidation of the affairs of the partnership after its dissolution. (Manuel v. Losano, 41 Phil. 855 (1918); Nable Jose v. Nable Jose, 41 Phil. 713 (1916). Thus, the right of the husband or wife to one-half of the conjugal assets does not vest until the dissolution and liquidation of the conjugal partnership, or after dissolution of the marriage, when it is finally determined that, after settlement of conjugal obligations, there are net assets left which can be divided between the spouses or their respective heirs. (Abalos v. Macatangay, supra.). Liability of the wife based on crime, not chargeable against the conjugal partnership. As a rule, if there are obligations contracted by the spouses redounding to the benefit of the family, the same are chargeable against the properties comprising the conjugal partnership or the absolute community of properties. But if one of the spouses committed the crime of slander and held liable for damages in a damage suit, is it chargeable against the conjugal partnership? This question arose because after the judgment in an action for damages against the wife, her personal properties were levied upon but since they were not sufficient to answer for the judgment liability, real properties were levied upon and sold by the sheriff. The husband filed a

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complaint for annulment of the certificate of sale and damages. A motion to dismiss was filed alleging that the court where the case was filed did not have jurisdiction over the subject matter, contending that the same should have been filed before the court that rendered the judgment and which issued the writ of execution. The RTC dismissed the complaint for lack of jurisdiction over the case, but on appeal, it was reversed by the CA. The basic issue devolves on whether the husband of the judgment debtor may file an independent action to protect the conjugal property subject of execution. In short, is the husband considered a stranger? In Sps. Roberto and Venus Buado v. CA, et al., G.R. No. 145222, April 24, 2009, made a distinction, whether the parties are governed by the conjugal partnership or absolute community of property regime as well as the character of the property. In determining whether the husband is a stranger to the suit, the character of the property must be taken into . In Mariano v. Court of Appeals, (G.R. No. 51283, June 7, 1989, 174 SCRA 59 which was later adopted in Spouses Ching v. Court of Appeals, G.R. No. 124642, February 23, 2004, 423 SCRA 365, it was held that the husband of the judgment debtor cannot be deemed a “stranger” to the case prosecuted and adjudged against his wife for an obligation that has redounded to the benefit of the conjugal partnership. On the other hand, in Naguit v. Court of Appeals, G.R. No. 7675, December 5, 2000, 347 SCRA 60 and Sy v. Discaya, G.R. No. 86301, January 23, 1990, 181 SCRA 378 the Court stated that a spouse is deemed a stranger to the action wherein the writ of execution was issued and is therefore justified in bringing an independent action to vindicate her right of ownership over his exclusive or paraphernal property. Pursuant to Mariano however, it must further be settled whether the obligation of the judgment debtor redounded to the benefit of the conjugal partnership or not. Petitioners argued that the obligation of the wife arising from her criminal liability is chargeable to the conjugal partnership. The SC said no. There is no dispute that contested property is conjugal in nature. Article 122 of the Family Code explicitly provides that payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership except insofar as they redounded to the benefit of the family. Effect if spouses are governed by the absolute community. Unlike in the system of absolute community where liabilities incurred by either spouse by reason of a crime or quasi-delict is chargeable to the absolute community of property, in the absence or insufficiency of the exclusive property of the debtor-spouse, the same advantage is not accorded in the system of conjugal partnership of gains. The conjugal partnership of gains has no duty to make advance payments for the liability of the debtor-spouse. Parenthetically, by no stretch of imagination can it be concluded that the civil obligation arising from the crime of slander committed by the wife redounded to the benefit of the conjugal partnership. To reiterate, conjugal property cannot be held liable for the personal obligation contracted by one spouse, unless some advantage or benefit is shown to have accrued to the conjugal partnership. (Go v. Yamane, G.R. No. 160762, May 3, 2006, 489 SCRA 107. In Guadalupe v. Tronco, 81 SCRA 605 (1978), it was held that the third party complainant to be conjugal property was being levied for " filed by a third person, the third-party claim of the wife which is personal to the husband is chargeable not on the conjugal property.

the car which was claimed by upon to enforce "a judgment is proper since the obligation property but on his separate

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FAMILY HOME To be a family home, the house must be built on the property of the spouses, not on the property of another. In Simeon Cabang, et al. v. Mr. & Mrs. Guillermo Basay, G.R. No. 180587, March 20, 2009, a controversy over the possession of a parcel of land started all these controversies. While there was a pronouncement that the respondents had a better right of possession and the case was remanded for the enforcement of the judgment, subject to Article 448, 546, 547, 548, NCC, the issue that it cannot be executed because it was a family home was raised. In fact, the decision decreed that the remand of the records of the case was for the court of origin to determine the rights of the defendants-appellants under aforesaid articles of the New Civil Code and to render judgment thereon in accordance with the evidence and decision. In the process, the petitioners interposed the issue that the improvements introduced on the lot which was in their possession by tolerance. In brushing aside the contention that the judgment cannot be executed, the SC even squarely addressing the issue of whether or not the improvements introduced by petitioners on the subject land are family homes will not extricate them from their predicament. As defined, “[T]he family home is a sacred symbol of family love and is the repository of cherished memories that last during one’s lifetime. It is the dwelling house where the husband and wife, or an unmarried head of a family reside, including the land on which it is situated. It is constituted tly by the husband and the wife or by an unmarried head of a family.” (Patricio v. Dario III, G.R. No. 170829, November 20, 3006, 507 SCRA 438). A family home is deemed constituted on a house and a lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extra-judicially. (Manacop v. CA, 342 Phil. 735 (1997). There can be no question that a family home is generally exempt from execution, (Rule 39, Sec. 13(a)) provided it was duly constituted as such. It is likewise a given that the family home must be constituted on property owned by the persons constituting it. Indeed as pointed out in Kelley, Jr. v. Planters Products, Inc., G.R. No. 172263, July 9, 2008, 557 SCRA 499), “[t]he family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter’s consent, or on the property of the unmarried head of the family.” (Art. 156, F.C.) In other words: The family home must be established on the properties of (a) the absolute community, or (b) the conjugal partnership, or (c) the exclusive property of either spouse with the consent of the other. It cannot be established on property held in co-ownership with third persons. However, it can be established partly on community property, or conjugal property and partly on the exclusive property of either spouse with the consent of the latter. If constituted by an unmarried head of a family, where there is no communal or conjugal property existing, it can be constituted only on his or her own property. Therein lies the fatal flaw in the postulate of petitioners. For all their arguments to the contrary, the stark and immutable fact is that the property on which their alleged family home stands is owned by respondents and the question of ownership had been long laid to rest with the finality of the appellate court’s judgment. Thus, petitioners’ continued stay on the subject land is only by mere tolerance of respondents.

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All told, it is too late in the day for petitioners to raise this issue. Without doubt, the instant case where the family home issue has been vigorously pursued by petitioners is but a clear-cut ploy meant to forestall the enforcement of an otherwise final and executory decision. The execution of a final judgment is a matter of right on the part of the prevailing party whose implementation is mandatory and ministerial on the court or tribunal issuing the judgment. Duties of the court when there is invocation of exemption of family homes from attachment, etc. In Albino Josef v. Otelio Santos, G.R. No. 165060, November 27, 2008, after a judgment for collection of sum of money became final and executory, a motion for execution was filed and a writ of execution was issued. The house and lot of the defendant-petitioner was levied upon, hence, he questioned the levy as void. In fact in his opposition to the motion for execution, he claimed that the house where he was residing was a family home but the lower court did not inquire into the nature of the same. In ruling that the order of execution was improper and void, the SC Held: The above order did not resolve nor take into 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, 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. 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 (Taneo, Jr. v. CA, G.R. No. 108532, March 9, 1999, 304 SCRA 308). 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 155 of the Family Code. (2) Make an inquiry into the veracity of petitioner’s claim that the property was his family home; conduct an ocular inspection of the premises; an examination of the title; an interview of 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 petition, 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; (b) if petitioner’s spouse is still alive, as well as if there are other beneficiaries of the family home; (c) if the petitioner has more than one residence for the purpose of determining which of them, if any, is his family home; and

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(d) its actual location and value, for the purpose of applying the provisions of Article 157 and 160 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. 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 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, 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. Exemption must be claimed, otherwise party may be estopped. 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 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 writ of execution, thus giving notice to the trial court and respondent that a property exempt from execution may be in danger of being subject 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. Family home, when it cannot be partitioned. In Arriola v. Arriola, G.R. No. 177703, January 28, 2008, the basic question is whether the family home may be the subject of partition after the death of the father where heirs became coowners. Answering the question in the negative, the SC Held: The family home is shielded from immediate partition under Article 159 of the Family code which provides: “Article 159. 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 ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons thereof. This rule shall apply, regardless of whoever owns the property or constituted the family home.” The purpose of Article 159 is to avert the disintegration of the family unit following the death of its head. To this end, it preserves the family home as the physical symbol of family love, security and unity by imposing the following restrictions on its partition; first, that the heirs cannot extra-

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judicially partition it for a period of 10 years from the death of one or both spouses or of the unmarried head of the family, or for a longer period, if there is still a minor beneficiary residing therein; and second, that the heirs cannot judicially partition it during the aforesaid periods unless the court finds compelling reasons therefore. More importantly, Article 159 imposes the proscription against the immediate partition of the family home regardless of its ownership. This signifies that even if the family home has ed by succession to the co-ownership of the heirs, or has been willed to any one of them, this fact alone dispel the protection cast upon it by the law. The rights of the individual co-owner of the family home cannot subjugate the rights granted under Article 159 to the beneficiaries of the family home. When family home constituted. Article 152. The family home, constituted tly 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. Article 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 the law. One significant innovation introduced by the Family Code is the automatic constitution of the family home from the time of its occupation as a family residence, without need anymore for the judicial or extrajudicial processes provided under the defunct Articles 224 to 251 of the Civil Code and Rule 106 of the Rules of Court. Furthermore, Article 152 and 153 specifically extend the scope of the family home not just to the dwelling structure in which the family resides but also to the lot on which it stands. Thus, applying these concepts, the subject house as well as the specific portion of the subject land on which it stands are deemed constituted as a family home by the spouses from the moment they began occupying the same as a family residence 20 years back. (Sps. Versola v. CA, G.R. No. 164740, July 31, 2006, 497 SCRA 385). ARTICLE 172 Unsigned autobiography of the father is sufficient evidence of filiation. In Jenie San Juan dela Cruz and Christian Dela Cruz “Aquino”, etc. v. Garcia, G.R. No. 177728, July 31, 2009, (Carpio-Morales, J), Jenie and Christian Dominique lived together as husband and wife without the benefit of marriage. When Jenie was pregnant, Dominique wrote his autobiography and stated therein the following statements: “Jenie dela Cruz is my wife as we fell in love with each other and now she is pregnant and for that we lived together.” Before the child was born, Dominique died. Jenie sought to the child’s birth with Dominique as the father, but the local civil registrar denied the same stating that the child cannot use the surname of his father because he was born out of wedlock and the father unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to the child (either through the back of Municipal Form No. 102 – Affidavit of Acknowledgment/ission of Paternity – or the Authority to Use the Surname of the Father). Jenie and the child promptly filed a complaint for injunction/registration of name against respondent before the Regional Trial Court of Antipolo City, alleging that the denial of registration of the child’s name is a violation of his right to use the surname of his deceased father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No. 9255, the law that allows the illegitimate child to use the surname of the father, amending Article 176 of the Family Code.

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They maintained that the Autobiography executed by Dominique constituted an ission of paternity in a “private handwritten instrument” within the contemplation of the law. For failure to file a responsive pleading or answer despite service of summons, respondent was declared in default. Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her common-law relationship with Dominique and affirmed her declarations in her AUSF that during his lifetime, he had acknowledged his yet unborn child. She offered Dominique’s handwritten Autobiography (Exhibit “A”) as her documentary evidence-in-chief. Dominique’s lone brother, Joseph Butch S.T. Aquino, also testified, corroborating Jenie’s declarations. The trial court dismissed the complaint “for lack of cause of action” as the Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of ) of istrative Order (A.O.) No. 1, Series of 2004 (the Rules and Regulations Governing the Implementation of R.A. 9255) which defines “private handwritten document” through which a father may acknowledge an illegitimate child. The trial court held that even if Dominique was the author of the handwritten Autobiography, the same does not contain any express recognition of paternity. Direct resort to the Supreme Court via Petition for Review on Certiorari raising purely legal issue contending that Article 176 of the Family Code, as amended, does not expressly require that the private handwritten instrument containing the putative father’s ission of paternity must be signed by him. They added that the deceased’s handwritten Autobiography, though unsigned by him, is sufficient, for the requirement in the above-quoted paragraph 2.2 of the istrative Order that the ission/recognition must be “duly signed” by the father is void as it “unduly expanded” the earlier-quoted provision of Article 176 of the Family Code. They further contended that Dominique’s handwritten Autobiography contained a “clear and unmistakable” recognition of the child’s paternity. The Office of the Solicitor General (OSG) contended that Dominique’s Autobiography “merely acknowledged Jenie’s pregnancy but not his paternity of the child she was carrying in her womb.” Is the contention of Jenie correct? Why? Held: Yes. Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use the surname of his/her father if the latter had expressly recognized him/her as his offspring through the record of birth appearing in the civil , or through an ission made in a public or private handwritten instrument. The recognition made in any of these documents is, in itself, a consummated act of acknowledgment of the child’s paternity; hence, no separate action for judicial approval is necessary. (De Jesus v. Estate of Juan Dizon, G.R. No. 142877, October 2, 2001, 366 SCRA 499). Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private handwritten instrument acknowledging the child’s paternity must be signed by the putative father. This provision must, however, be read in conjunction with related provisions of the Family Code which require that recognition by the father must bear his signature, thus: Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxxx

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Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil or a final judgment; or (2) An ission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. That a father who acknowledges paternity of a child through a written instrument must affix his signature thereon is clearly implied in Article 176 of the Family Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004, merely articulated such requirement; it did not “unduly expand” the import of Article 176 as claimed by petitioners. In this case, however, special circumstances exist to hold that Dominique’s Autobiography, though unsigned by him, substantially satisfies the requirement of the law. First, Dominique died about two months prior to the child’s birth. Second, the relevant matters in the Autobiography, unquestionably handwritten by Dominique, correspond to the facts culled from the testimonial evidence Jenie proffered. (Reyes v. CA, 135 SCRA 439 (1985); Varla v. Villanueva, 95 Phil. 248 (1954). Third, Jenie’s testimony is corroborated by the Affidavit of Acknowledgment of Dominique’s father Domingo Aquino and testimony of his brother Joseph Butch Aquino whose hereditary rights could be affected by the registration of the questioned recognition of the child. These circumstances indicating Dominique’s paternity of the child give life to his statements in his Autobiography. In Herrera v. Alba, G.R. No. 148220, June 15, 2005, 460 SCRA 197, the Court summarized the laws, rules, and jurisprudence on establishing filiation, discoursing in relevant part: Laws, Rules, and Jurisprudence Establishing Filiation The relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxxx ART. 172. following:

The filiation of legitimate children is established by any of the

(1) The record of birth appearing in the civil or a final judgment; or (2) An ission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. The Rules on Evidence include provisions on pedigree. The relevant sections of

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Rule 130 provide: SEC. 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. SEC. 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its , may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. The Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA, it was said that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. A notarial agreement to a child whose filiation is itted by the putative father was considered acceptable evidence. Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. However, a student permanent record, a written consent to a father's operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation. There is no dispute that the statements in Dominique’s Autobiography have been made and written by him. Taken together with the other relevant facts extant herein – that Dominique, during his lifetime, and Jenie were living together as common-law spouses for several months in 2005 at his parents’ house in Pulang-lupa, Dulumbayan, Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and about two months after his death, Jenie gave birth to the child – they sufficiently establish that the child of Jenie is Dominique’s. Along the same vein, the Court adopted rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an ission of filiation of a legitimate or illegitimate child is made: 1)

Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and

2)

Where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.

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Our laws instruct that the welfare of the child shall be the “paramount consideration” in resolving questions affecting him. Article 3(1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is similarly emphatic: 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, istrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Underscoring supplied) It is thus “(t)he policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children x x x.” (Herrera v. Alba, supra.). Too, “(t)he State as parens patriae affords special protection to children from abuse, exploitation and other conditions prejudicial to their development.” In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor child’s best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth certificate. CHANGE OF NAME Gender classification of a person with intersex when he/she reaches age of majority depends upon what he thinks of his or her sex. The case of Republic v. Jennifer B. Cagandahan, G.R. No. 166676, September 12, 2008 (Quisumbing, J) is one of first impression. In this case, the SC had the occasion to say that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, having reached the age of majority with good reason thinks of his/her sex. On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in her Birth Certificate before the RTC of Siniloan, Laguna. In her petition, she alleged that she was born on January 13, 1981 and was ed as a female in the Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she had small ovaries. At age thirteen, tests revealed that her ovarian structure had minimized, she has stopped growing and has no breast or menstrual development. She then alleged for all intents and appearances as well as in mind and emotion, she had become a male person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff. To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the Department of Psychiatry, University of the Philippines – Philippine General Hospital. Dr. Siozon issued a medical certificate stating that the respondent’s condition was known as CAH. He explained that genetically respondent was female but because her body secreted male hormones, her female organs did not develop normally and she has two sex organs – female and male. He testified that this condition is very rare, that respondent’s uterus was not fully developed because of lack of female hormones and that she had no monthly period. He further testified that respondent’s condition was permanent and recommended the change of gender because respondent has made up her mind, adjusted to her chosen role as male, and the gender change would be advantageous to her.

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The RTC granted the petition as it presented clear and convincing evidence that her body produced male hormones and that her feeling and actions are that of a male. He has chosen to be male and wanted to be known and acknowledged as such. The OSG appealed, and argued that Rule 108 does not allow change of sex or gender in the birth certificate and respondent’s claimed medical condition known as CAH does not make her a male. On the other hand, respondent countered that he is actually a male person and hence his birth certificate has to be corrected to reflect his true sex/gender, change of sex or gender is allowed under Rule 108, and respondent substantially complied with the requirement of Rules 103 and 108 of the Rules of Court. In upholding the respondent’s contention as correct, the Supreme Court Held: Respondent undisputedly has CAH. This condition causes the early or “inappropriate” appearance of male characteristics. Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological for considering him as being male. Sexual development in cases of intersex person makes the gender classification at birth inconclusive. It is at maturity that the gender of such person, like respondent, is fixed. In the absence of a law on the matter, the court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preference, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female. Neither will the court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender the human species. Respondent is the one who has to live with intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. In the absence of evidence that respondent is an “incompetent” and in the absence of evidence to show that classifying respondent as a male will harm other of society who are equally entitled to protection under the law, the court affirm as valid and justified the respondent’s position his personal judgment of being a male. As for his change of name under Rule 103, it has always been held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons added and the consequences that will follow. (Yu v. Republic, 123 Phil 1106 (1996). The trial court’s grant of respondent’s change of name from Jennifer to Jeff implied a change of a feminine name to a masculine name. Considering the consequence that respondent’s change of name merely recognized his preferred gender, there is merit in respondent’s change of name. Such a change will conform with the change of the entry in his birth certificate from female to male. ADOPTION Consent of spouse necessary in adoption. In Re: Petition for Adoption of Michelle P. Lim and Michael Jude P. Lim Monina Lim, petitioner, G.R. Nos. 168992-93, May 21, 2009 Facts: Monina and Primo Lim were married. Two children whose parents were unknown and whose whereabouts were unknown were brought to them. They reared and took care of the two kids. Primo

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died in 1998 but Monina got married to Angel Olario, an American citizen. When the children were brought to them, they ed them making it appear that they were the natural parents. Monina decided to adopt the two (2) children by availing of the amnesty under RA 8552 to those individuals who simulated the birth of a child, hence, she filed the petition on April 24, 2002. Michelle was 25 years old and already married at the time of the filing of the petition. Michael was 18 years old. The husband of Michelle gave his consent to the adoption. The DSWD issued a certification that they were abandoned children. After trial, the RTC dismissed the petition on the ground that the husband of Monina did not her in the petition as required by Section 7(c), Article III, RA 8552 and Article 185 of the Family Code. She filed a Motion for reconsideration as she did not fall under any of the exceptions provided for by the law. (Sec. 7(c), Article III, RA 8552). It likewise ruled that the contention that mere consent of her husband would suffice was untenable because, under the law, there are additional requirements, such as residency and certification of his qualification, which the husband, who was not even made a party in this case, must comply. As to the argument that the adoptees are already emancipated and t adoption is merely for the t exercise of parental authority, the trial court ruled that t adoption is not only for the purpose of exercising parental authority because an emancipated child acquires certain rights from his parents and assumes certain obligations and responsibilities. Hence, she filed a petition with the Supreme Court raising the sole issue of whether or not petitioner, who has remarried, can singly adopt. She contended that the rule on t adoption must be relaxed because it is the duty of the court and the State to protect the paramount interest and welfare of the child to be adopted. She argued that the legal maxim “dura lex sed lex” is not applicable to adoption cases. She argued that t parental authority is not necessary in this case since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority. Is the petition proper? Explain. Held: No. The husband and wife should have tly filed the petition for adoption. The principle of dura lex sed lex is applicable as the law is explicit that the husband and wife shall tly adopt. The use of the word “shall” means that t adoption by the husband and the wife is mandatory. This is in consonance with the concept of t parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt tly. The rule also insures harmony between the spouses. (Rep. v. Toledano, G.R. No. 94147, June 8, 1994, 233 SCRA 9). The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must tly adopt. Since the petitions for adoption were filed only by petitioner herself, without ing her husband, the trial court was correct in denying the petitions for adoption on this ground. Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband. Second, the children are not the illegitimate children of petitioner. And third, petitioner and her husband are not legally separated from each other. The fact that her husband gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements that her husband must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the

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adopter’s country as the latter’s adopted child. None of these qualifications were shown and proved during the trial. These requirements on residency and certification of the alien’s qualification to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of her husband. Neither are the adoptees the legitimate children of petitioner. Effects of adoption and parental authority. Petitioner contended that t parental authority is not anymore necessary since the children have been emancipated having reached the age of majority. The Supreme Court ruled that the contention is untenable. Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. The father and the mother shall tly exercise parental authority over the persons of their common children. (Art. 210, Family Code). Even the remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. (Art. 212, Family Code). It is true that when the child reaches the age of emancipation — that is, when he attains the age of majority or 18 years of age — emancipation terminates parental authority over the person and property of the child, who shall then be qualified and responsible for all acts of civil life. However, parental authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus: PROPERTY Builder in good faith. In Arogante v. Sps. Maglunob, et al., G.R. No. 178906, February 18, 2009, the SC had the occasion to rule on the rights of a builder in good faith and that of the owner of the land. In the context that such term is used in particular reference to Article 448 of the Civil Code, a builder in good faith is one who, not being the owner of the land, builds on that land, believing himself to be its owner and unaware of any defect in his title or mode of acquisition. (PNB v. De Jesus, 454 SCRA 459 (2003). Under the law, the builder in good faith can compel the landowner to make a choice between appropriating the building by paying the proper indemnity or obliging the builder to pay the price of the land. The choice belongs to the owner of the land, a rule that accords with the principle of accession, i.e., that the accessory follows the principal and not the other way around. Even as the option lies with the landowner, the grant to him, nevertheless, is preclusive. He must choose one. He cannot, for instance, compel the owner of the building to instead remove it from the land. In order, however, that the builder can invoke that accruing benefit and enjoy his corresponding right to demand that a choice be made by the landowner, he should be able to prove good faith on his part. Good faith, here understood, is an intangible and abstract quality with no technical meaning or statutory definition, and it encomes, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. An individual’s personal good faith is a concept of his own mind and, therefore, may not conclusively be determined by his protestations alone. It implies honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the validity of one’s right, ignorance of a superior claim, and absence of intention to

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overreach another. Applied to possession, one is considered in good faith if he is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. EASEMENT Q – When is there impairment of the easement by the dominant estate? Answer: There is impairment of the easement if the owner of the dominant estate violates the following restrictions on its rights over the servient estate: (1) it can only exercise rights necessary for the use of the easement; (2) it cannot use the easement except for the benefit of the immovable property originally contemplated; (3) it cannot exercise the easement in any other manner than that previously established; (4) it cannot construct anything which is not necessary for the use and preservation of the easement; (5) it cannot alter or make the easement more burdensome; (6) it must notify the servient estate owner of its intention to make the necessary works thereon; (7) it should choose the most convenient time and manner to build said works so as to cause least inconvenience to the owner of servient estate. By erecting an office structure on the limited common area of a condominium despite its exclusive right to use the same, it impaired the easement and illegally altered the condominium plan. It likewise breached the right when it leased the structure as the lease and the structure are not necessary for the use and preservation of the easement. (Golden Realty Corp. v. Cypress Gardens Condominium, Corp., G.R. No. 171072, April 17, 2009). DONATION Requisites of donation of real property. Q – Esperanza executed an Affidavit where she renounced, relinquished, waived and quitclaimed all her rights, shares, interest and participation over a parcel of land unto Spouses Ray and Elvira Arogante, their heirs, successors, and assigns. What is the nature of such affidavit and is it valid? Explain. Answer: The affidavit is in the nature of a donation, a simple/pure donation covered by Article 749, NCC which provides: Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. From the aforesaid provision, there are three requisites for the validity of a simple donation of a real property, to wit: (1) it must be made in a public instrument; (2) it must be accepted, which acceptance may be made either in the same Deed of Donation or in a separate public instrument; and (3) if the acceptance is made in a separate instrument, the donor must be notified in an authentic form, and the same must be noted in both instruments.

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The donation, however suffers from legal infirmities, as it failed to comply with the aforesaid requisites of the law, that is, the lack of acceptance. In Sumipat v. Banga, G.R. No. 155810, August 13, 2004, 346 SCRA 521, it was said that title to immovable property does not from the donor to the donee by virtue of a Deed of Donation until and unless it has been accepted in a public instrument and the donor duly notified thereof. The acceptance may be made in the very same instrument of donation. If the acceptance does not appear in the same document, it must be made in another. Where the Deed of Donation failed to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, was either not given to the donor or else not noted in the Deed of Donation and in the separate acceptance, the donation is null and void. (JLT Agro, Inc. v. Balansag, 453 SCRA 211 (2005). The Affidavit, which is tantamount to a Deed of Donation, met the first requisite, as it was notarized; thus, it became a public instrument. Nevertheless, it failed to meet the second and third requisites. The acceptance of the said donation was not made by the petitioner and her husband either in the same Affidavit or in a separate public instrument. As there was no acceptance made of the said donation, there was also no notice of the said acceptance given to the donor, Esperanza. Therefore, the Affidavit executed by Esperanza in favor of petitioner and her husband is null and void. The subsequent notarized Deed of Acceptance dated 23 September 2000, as well as the notice of such acceptance, executed by the petitioner did not cure the defect. Moreover, it was only made by the petitioner several years after the Complaint was filed in court, or when the RTC had already rendered its Decision dated 12 September 2000, although it was still during Esperanza’s lifetime. Evidently, its execution was a mere afterthought, a belated attempt to cure what was a defective donation. It is true that the acceptance of a donation may be made at any time during the lifetime of the donor. And granting arguendo that such acceptance may still be itted in evidence on appeal, there is still need for proof that a formal notice of such acceptance was received by the donor and noted in both the Deed of Donation and the separate instrument embodying the acceptance. (Lagazo v. CA, 350 Phil. 449 (1998). At the very least, this last legal requisite of annotation in both instruments of donation and acceptance was not fulfilled by the petitioner. Neither the Affidavit nor the Deed of Acceptance bears the fact that Esperanza received notice of the acceptance of the donation by petitioner. For this reason, even Esperanza’s one-third share in the subject property cannot be adjudicated to the petitioner. (Arogante v. Sps. Maglunob, et al., G.R. No. 178906, February 18, 2009). Section 48 of Presidential decree No. 1529 states that a certificate of title shall not be subject to collateral attack. It cannot be altered, modified, or cancelled except in a direct proceeding in accordance with law. The judicial action required to challenge the validity of title is a direct attack, not a collateral attack. The attack is considered direct when the object of an action is to annul or set aside such proceeding, or en its enforcement. Conversely, an attack is indirect or collateral when, in an action to obtain a different relief, an attack on the proceeding is nevertheless made as an incident thereof. Such action to attack a certificate of title may be an original action or a counterclaim, in which a certificate of title is assailed as void. (Arogante v. Sps. Maglunob, et al., G.R. No. 178906, February 18, 2009 citing Leyson v. Bontuyan, 453 SCRA 94).

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PRESCRIPTION / LACHES In Imuan, et al. v. Cereno, et al., G.R. No. 167995, September 11, 2009, Pablo got married twice. In his first marriage he had three (3) children. After the death of the first wife, he got married to Juana with whom he had three (3) children. After his death, he left 2 parcels of land. Juana and her children continued possessing the parcel of land in dispute since he died in 1936. Juana sold the property in 1970 and the same was ed with the of Deeds. The buyers declared the property for taxation purposes, paid the tax and enjoyed exclusive, open and uninterrupted possession of the property. In 1999 a complaint for annulment of document was filed alleging that Pablo’s estate has not yet been settled; that Juana merely possessed the property by tolerance and that the sale was void. Juana interposed the defense of prescription of action. The RTC declared the document void but the CA reversed it on the ground of prescription and laches. Is the ruling correct? Why? Answer: Yes, because the property has been acquired by acquisitive prescription. Prescription is another mode of acquiring ownership and other real rights over immovable property. It is concerned with lapse of time in the manner and under conditions laid down by law, namely, that the possession should be in the concept of an owner, public, peaceful, uninterrupted and adverse. Possession is open when it is patent, visible, apparent, notorious and not clandestine. It is continuous when uninterrupted, unbroken and not intermittent or occasional; exclusive when the adverse possessor can show exclusive dominion over the land and an appropriation of it to his own use and benefit; and notorious when it is so conspicuous that it is generally known and talked of by the public or the people in the neighborhood. The party who asserts ownership by adverse possession must prove the presence of the essential elements of acquisitive prescription. (Director of Lands v. IAC, 209 SCRA 214 (1992). Kinds of prescription. Acquisitive prescription of real rights may be ordinary or extraordinary. (Art. 1117, NCC). Ordinary acquisitive prescription requires possession in good faith and with just title for ten years. (Article 1134, NCC). In extraordinary prescription, ownership and other real rights over immovable property are acquired through uninterrupted adverse possession for thirty years without need of title or of good faith. (Article 1137, NCC). The good faith of the possessor consists in the reasonable belief that the person from whom he received the thing was the owner thereof, and could transmit his ownership. (Calicdan v. Cendana, 466 Phil. 894 (2004). For purposes of prescription, there is just title when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any right. (Article 1129, NCC). Action for quieting of title is imprescriptible if plaintiff is in possession; reason. In DBT Mar-Bay Construction, Inc. v. Panes, et al., G.R. No. 167232, July 31, 2009, a complaint for quieting of title with cancellation of title and all titles derived therefrom was filed alleging that they were the heirs of Ricaredo Panes and his sons. He alleged that he was the lawful owner of a parcel of land, having been in possession of the same as early as prior to the Second World War. To perfect his title he filed an application. But DBT contended that it is the legitimate owner and occupant of the property pursuant to a dacion en pago executed by B.C. Regalado in its favor for services rendered by it. In holding that DBT has a better right over the property in question, the SC

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Held: It is a well-entrenched rule in this jurisdiction that no title to ed land in derogation of the rights of the ed owner shall be acquired by prescription or adverse possession. Article 1126 of the Civil Code in connection with Section 46 of Act No. 496 (The Land Registration Act), as amended by Section 47 of P.D. No. 1529 (The Property Registration Decree), clearly s this rule. Prescription is unavailing not only against the ed owner but also against his hereditary successors. Possession is a mere consequence of ownership where land has been ed under the Torrens system, the efficacy and integrity of which must be protected. Prescription is rightly regarded as a statute of repose whose objective is to suppress fraudulent and stale claims from springing up at great distances of time and surprising the parties or their representatives when the facts have become obscure from the lapse of time or the defective memory or death or removal of witnesses. (Gallardo v. IAC, 155 SCRA 248 (1987). Thus, respondents' claim of acquisitive prescription over the subject property is baseless. Under Article 1126 of the Civil Code, acquisitive prescription of ownership of lands ed under the Land Registration Act shall be governed by special laws. Correlatively, Act No. 496, as amended by PD No. 1529, provides that no title to ed land in derogation of that of the ed owner shall be acquired by adverse possession. Consequently, in the instant case, proof of possession by the respondents is immaterial and inconsequential. There was no ample proof that DBT participated in the alleged fraud. To add, DBT is an innocent purchaser for value and good faith which, through a dacion en pago duly entered into with B.C. Regalado, acquired ownership over the subject property, and whose rights must be protected under Section 32 of P.D. No. 1529. Action for reconveyance is equivalent to quieting of title; when it prescribes. Once again, in DBT Mar-Bay Construction, Inc. v. Ricaredo Panes, et al., G.R. No. 167232, July 31, 2009 the SC had the occasion to say that an action for reconveyance can be barred by prescription. When an action for reconveyance is based on fraud, it must be filed within four (4) years from discovery of the fraud, and such discovery is deemed to have taken place from the issuance of the original certificate of title. On the other hand, an action for reconveyance based on an implied or constructive trust prescribes in ten (10) years from the date of the issuance of the original certificate of title or transfer certificate of title. The rule is that the registration of an instrument in the Office of the RD constitutes constructive notice to the whole world and therefore the discovery of the fraud is deemed to have taken place at the time of registration. (Millena v. CA, 381 Phil. 132 (2000). However, the prescriptive period applies only if there is an actual need to reconvey the property as when the plaintiff is not in possession of the property. If the plaintiff, as the real owner of the property also remains in possession of the property, the prescriptive period to recover title and possession of the property does not run against him. In such a case, an action for reconveyance, if nonetheless filed, would be in the nature of a suit for quieting of title, an action that is imprescriptible. (Aguirre v. Heirs of Lucas Villanueva, 524 SCRA 492 (2007). The reason for this is that one who is in actual possession of a piece of land claiming to be the owner thereof may wait until his possession is disturbed or his title is attacked before taking steps to vindicate his right, the reason for the rule being, that his undisturbed possession gives him a continuing right to seek the aid of a court of equity to ascertain and determine the nature of the adverse claim of a third party and its effect on his own title, which right can be claimed only by one who is in possession. (Vda. de Gualberto v. Go, 463 SCRA 671 (2005). Although prescription and laches are distinct concepts, nonetheless, the doctrine of laches is inapplicable where the action was filed within the prescriptive period provided by law. Therefore,

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laches will not apply to this case, because respondents' possession of the subject property has rendered their right to bring an action for quieting of title imprescriptible and, hence, not barred by laches. Moreover, since laches is a creation of equity, acts or conduct alleged to constitute the same must be intentional and unequivocal so as to avoid injustice. Laches will operate not really to penalize neglect or sleeping on one's rights, but rather to avoid recognizing a right when to do so would result in a clearly inequitable situation. SUCCESSION Perpetual trust is void. In Orendain v. Trusteeship of the Estate of Doña Margarita Rodriguez, G.R. No. 168660, June 30, 2009, (Nachura, J), in the last will and testament of the decedent, particularly Clause 10, she enumerated properties to be placed in trust for perpetual istration. There was a motion to dissolve the trust applying Articles 867 and 870 of the Civil Code. The RTC ruled that only the perpetual prohibition to alienate or mortgage is void. Is the ruling correct? Why? Answer: No. Quite categorical from the last will and testament of the decedent is the creation of a perpetual trust for the istration of her properties and the income accruing therefrom, for specified beneficiaries. The decedent, in Clause 10 of her will, listed a number of properties to be placed under perpetual istration of the trust. In fact, the decedent unequivocally forbade the alienation or mortgage of these properties. In all, the decedent did not contemplate the disposition of these properties, but only sought to bequeath the income derived therefrom to various sets of beneficiaries. It was held in Rodriguez v. Court of Appeals, 137 Phil 371 (1969) that the perpetual prohibition was valid only for twenty (20) years. The trust stipulated in the decedent’s will prohibiting perpetual alienation or mortgage of the properties violated Articles 867 and 870 of the Civil Code. The decision which declared that that portion of the decedent’s estate, the properties listed in Clause 10 of the will, ought to be distributed based on intestate succession is not correct there being no institution of heirs to the properties covered by the perpetual trust. Apparent from the decedent’s last will and testament is the creation of a trust on a specific set of properties and the income accruing therefrom. Nowhere in the will can it be ascertained that the decedent intended any of the trust’s designated beneficiaries to inherit these properties. The decedent’s will did not institute any heir thereto. Due to the invalidity of the perpetual trust the rules of intestate succession apply. Plainly, the RTC was mistaken in denying petitioners’ motion to dissolve and ordering the disposition of the properties in Clause 10 according to the testatrix’s wishes. As regards these properties, intestacy should apply as the decedent did not institute an heir therefor. Article 782, in relation to paragraph 2, Article 960 of the Civil Code, provides: Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law. xxxx Art. 960. Legal or intestate succession takes place: xxxx

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(2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; xxx It is erroneous for the RTC to hold that paragraph 4, Article 1013 of the same code specifically allows a perpetual trust, because this provision of law is inapplicable. Suffice it to state that the article is among the Civil Code provisions on intestate succession, specifically on the State inheriting from a decedent, in default of persons entitled to succeed. Under this article, the allowance for a permanent trust, approved by a court of law, covers property inherited by the State by virtue of intestate succession. The article does not cure a void testamentary provision which did not institute an heir. Accordingly, the article cannot be applied to dispose of the decedent’s properties. In Palad, et al. v. Governor of Quezon Province, et al., No. L-24302, August 18, 1972, 46 SCRA 354, it was ruled that: Article 870 of the New Civil Code, which regards as void any disposition of the testator declaring all or part of the estate inalienable for more than 20 years, is not violated by the trust constituted by the late Luis Palad; because the will of the testator does not interdict the alienation of the parcels devised. The will merely directs that the income of said two parcels be utilized for the establishment, maintenance and operation of the high school. Said Article 870 was designed “to give more impetus to the socialization of the ownership of property and to prevent the perpetuation of large holdings which give rise to agrarian troubles.” The trust herein involved covers only two lots, which have not been shown to be a large landholding. And the income derived therefrom is being devoted to a public and social purpose – the education of the youth of the land. The use of said parcels therefore is in a sense socialized. There is no hint in the record that the trust has spawned agrarian conflicts. In this case, however, a different conclusion was reached as the testatrix specifically prohibited the alienation or mortgage of her properties which were definitely more than the two (2) properties in the aforecited case. The testatrix’s large landholdings cannot be subjected indefinitely to a trust because the ownership thereof would then effectively remain with her even in the afterlife. OBLIGATIONS & CONTRACTS A conveyance of land made in a private document does not affect its validity. Article 1358, NCC does not require the accomplishment of the acts or contracts in a public instrument in order to validate the act or contract but only to ensure its efficiency. (Manotok Realty, Inc. v. CA, 233 Phil. 178 (1987); Alano v. Babasa, 10 Phil. 511 (1908); Heirs of Tranquilino Labiste v. Heirs of Jose Laniste, et al., G.R. No. 162033, May 8, 2009). Liability may be direct but not necessarily solidary. In The Heirs of George Poe v. Malayan Insurance Co., Inc., G.R. No. 156302, April 7, 2009, the SC once again had the occasion to rule that a solidary or t and several obligation is one in which each debtor is liable for the entire obligation, and each creditor is entitled to demand the whole obligation. In a t obligation, each obligor answers only for a part of the whole liability and to each obligee belongs only a part of the correlative rights. Well-entrenched is the rule that solidary obligation cannot lightly be inferred. There is solidary liability only when the obligation expressly so states, when the law so provides or when the nature of the obligation so requires.

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It is settled that where the insurance contract provides for indemnity against liability to third persons, the liability of the insurer is direct and such third persons can directly sue the insurer. The direct liability of the insurer under indemnity contracts against third party liability does not mean, however, that the insurer can be held solidarily liable with the insured and/or the other parties found at fault, since they are being held liable under different obligations. The liability of the insured carrier or vehicle owner is based on tort, in accordance with the provisions of the Civil Code; (Art. 2176, NCC) while that of the insurer arises from contract, particularly, the insurance policy. The third-party liability of the insurer is only up to the extent of the insurance policy and that required by law; and it cannot be held solidarily liable for anything beyond that amount. (MMTC v. CA, 359 Phil. 18 (1998). Any award beyond the insurance coverage would already be the sole liability of the insured and/or the other parties at fault. (GSIS v. CA, 368 Phil. 36 (1999); MMTC v. CA). In Vda. de Maglana v. Consolacion, G.R. No. 60506, August 6, 1992, 212 SCRA 218 it was ruled that an insurer in an indemnity contract for third-party liability is directly liable to the injured party up to the extent specified in the agreement, but it cannot be held solidarily liable beyond that amount. Following Vda. de Maglana, petitioners would have had the option either (1) to claim the amount awarded to them from respondent, up to the extent of the insurance coverage, and the balance from Rhoda; or (2) to enforce the entire judgment against Rhoda, subject to reimbursement from respondent MICI to the extent of the insurance coverage. Tender of payment; unjustified refusal to accept payment is not extinguishment of obligation. If an obligation is due and demandable and there is unjustified refusal to accept payment, does such act constitute extinguishment of the obligation by payment? Why? No. To have the effect of payment, the law requires the twin acts of tender of payment and consignation. If there is tender of payment but there is no consignation, it does not have the effect of payment. If at all there is an effect of the tender, the debtor must be freed from the obligation to pay interest on the outstanding amount from the time the unjust refusal took place. (Go Sinco v. CA, et al., G.R. No. 151903, October 9, 2009). State the effect of an unjustified refusal of the creditor to accept payment. Explain. The creditor can be liable for damages under Article 19 of the Civil Code which requires a person to act with honesty and good faith in the exercise of rights and in the fulfillment of his duties. (Go Sinco v. CA, et al., G.R. No. 151903, October 9, 2009). Extension of payment; novation that extinguishes obligation.

no the

What is the effect if there is a 45-day credit extension in the payment of an obligation? Explain. Answer: There is no novation that would extinguish the obligation. Novation is one of the modes of extinguishing an obligation. It is done by the substitution or change of the obligation by a subsequent one which extinguishes the first, either by changing the object or principal conditions, or by substituting the person of the debtor, or by subrogating a third person in the rights of the creditor. Novation may: Either be extinctive or modificatory, much being dependent on the nature of the change and the intention of the parties. Extinctive novation is never presumed; there must be an express intention to novate; in cases where it is implied,

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the acts of the parties must clearly demonstrate their intent to dissolve the old obligation as the moving consideration for the emergence of the new one. Implied novation necessitates that the incompatibility between the old and new obligation be total on every point such that the old obligation is completely superceded by the new one. The test of incompatibility is whether they can stand together, each one having an independent existence; if they cannot and are irreconcilable, the subsequent obligation would also extinguish the first. An extinctive novation would thus have the twin effects of, first, extinguishing an existing obligation and, second, creating a new one in its stead. This kind of novation presupposes a confluence of four essential requisites: (1) a previous valid obligation, (2) an agreement of all parties concerned to a new contract, (3) the extinguishment of the old obligation, and (4) the birth of a valid new obligation. Novation is merely modificatory where the change brought about by any subsequent agreement is merely incidental to the main obligation (e.g., a change in interest rates or an extension of time to pay; in this instance, the new agreement will not have the effect of extinguishing the first but would merely supplement it or supplant some but not all of its provisions). The obligation to pay a sum of money is not novated by an instrument that expressly recognizes the old, changes only the of payment, adds other obligations not incompatible with the old ones or the new contract merely supplements the old one. (Sps. Reyes v. BPI Family Savings Bank, G.R. No. 149840-41, March 31, 2006, 486 SCRA 276). The grant of a 45-day credit extension did not novate the contracts so as to extinguish the latter. There was no incompatibility between them. There was no intention by the parties to supersede the obligations under the contracts. In fact, the intention of the 45-day credit extension was precisely to revive the old obligation after the original period expired with the obligation unfulfilled. The grant of a 45-day credit period merely modified the contracts by extending the period within which FSI was allowed to settle its obligation. Since the contracts remained the source of the obligation of the party, the stipulation to pay 30% p.a. interest likewise remained. TRUST Express trust; need to repudiate. In Heirs of Tranquilino Labiste, et al. v. Heirs of Jose Labiste, et al., G.R. No. 162033, May 8, 2009, Epifanio Labiste, together with his brothers and sisters purchased a property with the use of their money. The seller executed a contract of conveyance in favor of Epifanio and his brothers and sisters. He later on executed an affidavit that he co-owned the property with his co-heirs. In fact, the property was subdivided between him and his brother, Tranquilino. After the war, the respondents filed a petition for reconstitution of the title which was initially opposed by the petitioners but since there was a compromise agreement between them the opposition was withdrawn to expedite the reconstitution. They agreed that the title be deposited with the Clerk of Court to pave the way for the filing of an action for reconveyance, but it was violated, hence, petitioners filed a complaint for annulment of title which was opposed citing that the action was barred by laches. The RTC held that it has not prescribed since the title was limited to the reconstitution of the certificate, hence, did not give them any more right than what their predecessors had. The CA reversed the ruling that it has prescribed due to laches, ruling that the cause of action has prescribed for the same must be brought within 10 years from the time the right of action accrued when the predecessors-in-interest lost possessions over the property after the war. Resolving the sole issue of prescription and laches, the SC Held: Trust is the right to the beneficial enjoyment of property, the legal title to which is vested in another. It is a fiduciary relationship that obliges the trustee to deal with the property for the benefit

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of the beneficiary. Trust relations between parties may either be express or implied. An express trust is created by the intention of the trustor or of the parties. An implied trust comes into being by operation of law. (Article 1441, NCC). Express trusts are created by direct and positive acts of the parties, by some writing or deed, or will, or by words either expressly or impliedly evincing an intention to create a trust. Under Article 1444 of the Civil Code, "[n]o particular words are required for the creation of an express trust, it being sufficient that a trust is clearly intended." The Affidavit of Epifanio is in the nature of a trust agreement. Epifanio affirmed that the lot brought in his name was co-owned by him, as one of the heirs of Jose, and his uncle Tranquilino. And by agreement, each of them has been in possession of half of the property. Their arrangement was corroborated by the subdivision. As such, prescription and laches will run only from the time the express trust is repudiated. For acquisitive prescription to bar the action of the beneficiary against the trustee in an express trust for the recovery of the property held in trust it must be shown that: (a) the trustee has performed unequivocal acts of repudiation amounting to an ouster of the cestui que trust; (b) such positive acts of repudiation have been made known to the cestui que trust, and (c) the evidence thereon is clear and conclusive. Respondents cannot rely on the fact that the Torrens title was issued in the name of Epifanio and the other heirs of Jose. It has been held that a trustee who obtains a Torrens title over property held in trust by him for another cannot repudiate the trust by relying on the registration. (Sotto v. Teves, 175 SCRA 343 (1978). The rule requires a clear repudiation of the trust duly communicated to the beneficiary. The only act that can be construed as repudiation was when respondents filed the petition for reconstitution in October 1993. And since petitioners filed their complaint in January 1995, their cause of action has not yet prescribed, laches cannot be attributed to them. Doctrine of laches. It is hornbook doctrine that laches is a creation of equity and its application is controlled by equitable considerations. Laches cannot be used to defeat justice or perpetrate fraud and injustice. Neither should its application be used to prevent the rightful owners of a property from recovering what has been fraudulently ed in the name of another. Trust. Facts: The decedent, Juliana, was married to Jose Lopez Manzano (Jose). Their union did not bear any children. Juliana was the owner of several properties, forming parts of her exclusive paraphernal properties (now known as exclusive properties). On 23 March 1968, Juliana executed a notarial will, whereby she expressed that she wished to constitute a trust fund for her paraphernal (exclusive properties) denominated as Fideicomiso de Juliana Lopez Manzano (fideicomiso), to be istered by her husband. If her husband were to die or renounce the obligation, her nephew, Enrique Lopez, was to become and executor of the Fideico. Two thirds (2/3) of the income from rentals over these properties were to answer for the education of deserving but needy honor students, while one third 1/3 was to shoulder the expenses and fees of the . As to her conjugal properties, Juliana bequeathed the portion that she could legally disposed to her husband, and after his death, said properties were to to her biznietos or great grandchildren. Juliana initiated the probate of her will five (5) days after its execution, but she died before the petition for probate could be heard, hence it was pursued by her husband, who was designated as executor. The will was itted to probate and letters testamentary were issued to Jose.

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Thereafter, Jose filed Report which included a proposed project of partition, where he explained that as the only compulsory heir of Juliana, he was entitled by operation of law to one-half (1/2) of Juliana’s paraphernal properties as his legitime, while the other one-half (1/2) was to be constituted into the Fideicomiso. The probate court issued an order approving the project of partition. As to the properties to be constituted into the Fideicomiso, the probate court ordered that the certificates of title thereto be cancelled, and, in lieu thereof, new certificates be issued in favor of Jose as trustee of the Fideicomiso covering one-half (1/2) of the properties listed in the project of partition; and regarding the other half, to be ed in the name of Jose as heir of Juliana. The properties which Jose had alleged as ed in his and Juliana’s names, including the disputed lots, were adjudicated to Jose as heir, subject to the condition that Jose would settle the obligations charged on these properties. The probate court, thus, directed that new certificates of title be issued in favor of Jose as the ed owner thereof. Jose died, leaving a holographic ill disposing of the disputed properties to his heirs. The will was allowed probate hence, pursuant to Jose’s will, the RTC ordered the transfer of the disputed properties to the respondents as the heirs of Jose. Consequently, the certificates of title of the disputed properties were cancelled and new ones issued in the names of respondents. Jose was able to in his name the disputed properties, which were the paraphernal properties of Juliana, either during their conjugal union or in the course of the performance of his duties as executor of the testate estate of Juliana and that upon the death of Jose, the disputed properties were included in the inventory as if they formed part of Jose’s estate when in fact Jose was holding them only in trust for the trust estate of Juliana. Richard Lopez, as trustee of Juliana’s estate filed an action for reconveyance of the parcels of land ed in the name of Jose and later to his heirs alleging that Jose violated the trust. The complaint was dismissed on the ground of prescription of action. Petitioner insisted that the action has not prescribed since there was an express trust over the disputed properties, hence, registration under the name of Jose cannot give rise to prescription of action. The respondents contended that there was an implied trust when the properties were ed under the name of Jose, the action has already prescribed as there was repudiation of the trust when the properties were ed under the name of Jose. Is the contention correct? Why? Held: Yes. There was an implied trust since the disputed properties consisting of the paraphernal or exclusive properties of Juliana, were ed in the name of Jose instead of including the same in the Fideicomiso. Juliana’s testamentary intent was to constitute an express trust over her paraphernal properties which were carried out when the Fideicomiso was established. However, the disputed properties were expressly excluded from the Fideicomiso. The probate court adjudicated the disputed properties to Jose as the sole heir of Juliana. If a mistake was made in excluding the disputed properties from the Fideicomiso and adjudicating the same to Jose as sole heir, the mistake was not rectified as no party appeared to oppose or appeal the exclusion of the disputed properties from the Fideicomiso. Moreover, the exclusion of the disputed properties from the Fideicomiso bore the approval of the probate court. The issuance of the probate court’s order adjudicating the disputed properties to Jose as the sole heir of Juliana enjoys the presumption of regularity. Implied trusts are those which, without being expressed, are deducible from the nature of the transaction as matters of intent or which are superinduced on the transaction by operation of law as matters of equity, independently of the particular intention of the parties (Heirs of Yap v. Court of Appeals, 371 Phil. 523, 530 (1999); Lopez v. CA, et al., G.R. No. 157784, December 16, 2008). Q – What is the effect of the mistake of the court in adjudicating the disputed properties under the name of Jose considering that they were excluded from the Fideicomiso at the outset. Jose

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ed the disputed properties in his name partly as his conjugal share and partly as his inheritance from his wife Juliana. Answer: The registration of the disputed properties in the name of Jose was actually pursuant to a court order. The apparent mistake in the adjudication of the disputed properties to Jose created a mere implied trust of the constructive variety in favor of the beneficiaries of the Fideicomiso. (Lopez v. CA, et al., G.R. No. 157784, December 16, 2008). Q – It was established that only a constructive trust was constituted over the disputed properties. Petitioner asserted that, if at all, prescription should be reckoned only when respondents caused the registration of the disputed properties in their names on 13 April 1984 and not on 15 September 1969, when Jose ed the same in his name pursuant to the probate court’s order adjudicating the disputed properties to him as the sole heir of Juliana. Hence, the prescriptive period should be counted from the repudiation of the trust since Jose had not performed any act indicative of his repudiation of the trust or otherwise declared an adverse claim over the disputed properties. Is the contention correct? Explain. Answer: No. It should be counted from registration by Jose under his name. The right to seek reconveyance based on implied or constructive trust is not absolute. It is subject to extinctive prescription (Sps. Bejoc v. Cabreros, G.R. No. 145849, July 22, 2005). An action for reconveyance based on implied or constructive trust prescribes in 10 years. This period is reckoned from the date of issuance of the original certificate of title or transfer certificate of title. Since such issuance operates as a constructive notice to the whole world, the discovery of the fraud is deemed to have taken place at that time (Lopez v. CA, et al., G.R. No. 157784, December 16, 2008 citing Bejoc v. Cabreros). Q – State the effect of the submission of the project of partition indicating that the properties in question were parts of the conjugal properties of Juliana and Jose, thus, excluded from the Fideicomiso. Explain. Answer: This act is clearly tantamount to repudiating the trust, at which point the period for prescription is reckoned. (Lopez v. CA, et al., G.R. No. 157784, December 16, 2008). Q – When is repudiation necessary in order that a property subject of trust may be acquired by prescription? Explain. Answer: The rule that a trustee cannot acquire by prescription ownership over property entrusted to him until and unless he repudiates the trust applies only to express trusts and resulting implied trusts. However, in constructive implied trusts, prescription supervenes even if the trustee does not repudiate the relationship. Necessarily, repudiation of said trust is not a condition precedent to the running of the prescriptive period (Vda. de Esconde v. CA, 253 SCRA 66). Thus, for the purpose of counting the ten-year prescriptive period for the action to enforce the constructive trust, the reckoning point is deemed to be on date when Jose ed the disputed properties in his name (Lopez v. CA, et al., G.R. No. 157784, December 16, 2008). SALES Fraudulent transfer of property does not vest ownership; exception. In Heirs of Julian Tiro v. Phil. Estates Corp., G.R. No. 170528, August 26, 2008, a property was fraudulently acquired resulting in the issuance of a TCT. Thereafter, there were five (5) other transfers. A complaint to nullify the title of the present owner was filed contending that since the initial transfer of the disputed land was fraudulent, then all the subsequent transfers including the last, were all invalid. In brushing aside the contention, the SC

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Held: No. Insofar as a person who has fraudulently obtained property is concerned, the consequently fraudulent registration of the property in the name of such person would not be sufficient to vest in him or her title to the property. Certificates of title merely confirm or record title already existing and vested. The indefeasibility of the torrens title should not be used as a means to perpetrate fraud against the rightful owner of real property. Good faith must concur with registration because, otherwise, registration would be an exercise in futility. However, where good faith is established, as in the case of an innocent purchaser for value, a forged document may become the root of a valid title. A person is considered in law as an innocent purchaser for value when he buys the property of another, without notice that some other person has a right or an interest in such property, and pays a full price for the same at the time of such purchase, or before he has notice of the claims or interest of some other person in the property. A person dealing with ed land may safely rely on the correctness of the certificate of title of the vendor/transferor, and the law will in no way oblige him to go behind the certificate to determine the condition of the property. The courts cannot disregard the rights of innocent third persons, for that would impair or erode public confidence in the torrens system of land registration. Thus, a title procured by fraud or misrepresentation can still be the source of a completely legal and valid title if the same is in the hands of an innocent purchaser for value. In Veloso v. Court of Appeals, the Court enunciated that a title issued to an innocent purchaser and for value cannot be revoked on the basis that the deed of sale was falsified, if he had no knowledge of the fraud committed. The Court also provided the person prejudiced with the following recourse: Even granting for the sake of argument, that the petitioner’s signature was falsified and consequently, the power of attorney and the deed of sale were null and void, such fact would not revoke the title subsequently issued in favor of private respondent Aglaloma. In Tenio-Obsequio v. Court of Appeals, it was held, viz: “The right of an innocent purchaser for value must be respected and protected, even if the seller obtained his title through fraud. The remedy of the person prejudiced is to bring an action for damages against those who caused or employed the fraud, and if the latter are insolvent, an action against the Treasurer of the Philippines may be filed for recovery of damages against the Assurance Fund.” (Emphasis supplied.) Payment of earnest money; contract of sale is perfected. In Heirs of Pangan v. Sps. Perreras, G.R. No. 157374, August 27, 2009, the SC once again said that the consent of the owner together with the payment of earnest money would show that a contract of sale was perfected. The law on sales, specifically Article 1482 of the Civil Code, provides that whenever earnest money is given in a contract of sale, it shall be considered as part of the price and proof of the perfection of the contract. Although the presumption is not conclusive, as the parties may treat the earnest money differently, there is nothing alleged in the present case that would give rise to a contrary presumption. In cases where a conclusion contrary to the presumption is reached, declared in Article 1482, the money initially paid was given to guarantee that the buyer would not back out from the sale, considering that the parties to the sale have yet to arrive at a definite agreement as to its – that is, a situation where the contract has not yet been perfected. (Manila Metal Container Corp. v. Tolentino, G.R. No. 166862, December 20, 2006, 511 SCRA 444; San Miguel Properties Phil. Inc. v. Huang, G.R. No. 137290, July 31, 2000, 336 SCRA 737).

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Q – Distinguish the effect of breach due to non-payment in a contract of sale from that of a contract to sell. Answer: In cases of breach due to nonpayment, the vendor may avail of the remedy of rescission in a contract of sale. Nevertheless, the defaulting vendee may defeat the vendor’s right to rescind the contract of sale if he pays the amount due before he receives a demand for rescission, either judicially or by a notarial act, from the vendor. This right is provided under Article 1592 of the Civil Code: Article 1592. In the sale of immovable property, even though it may have been stipulated that upon failure to pay the price at the time agreed upon the rescission of the contract shall of right take place, the vendee may pay, even after the expiration of the period, as long as no demand for rescission of the contract has been made upon him either judicially or by a notarial act. After the demand, the court may not grant him a new term. Nonpayment of the purchase price in contracts to sell, however, does not constitute a breach; rather, nonpayment is a condition that prevents the obligation from acquiring obligatory force and results in its cancellation. In Ong v. CA, G.R. No. 97347, July 6, 1999, 310 SCRA 1, it was said that in a contract to sell, the payment of the purchase price is a positive suspensive condition, the failure of which is not a breach, casual or serious, but a situation that prevents the obligation of the vendor to convey title from acquiring obligatory force. The non-fulfillment of the condition of full payment rendered the contract to sell ineffective and without force and effect. As in the rescission of a contract of sale for nonpayment of the price, the defaulting vendee in a contract to sell may defeat the vendor’s right to cancel by invoking the rights granted to him under Republic Act No. 6552 or the Realty Installment Buyer Protection Act (also known as the Maceda Law); this law provides for a 60-day grace period within which the defaulting vendee (who has paid less than two years of installments) may still pay the installments due. Only after the lapse of the grace period with continued nonpayment of the amounts due can the actual cancellation of the contract take place. What Maceda Law covers. The Maceda Law covers not only sales on installments of real estate, but also financing of such acquisition; its Section 3 is comprehensive enough to include both contracts of sale and contracts to sell, provided that the of payment of the price require at least two installments. The contract entered into by the parties herein can very well fall under the Maceda Law. Q – What is an option? Explain. Answer: An option is a contract by which the owner of the property agrees with another person that the latter shall have the right to buy the former’s property at a fixed price within a certain time. It is a condition offered or contract by which the owner stipulates with another that the latter shall have the right to buy the property at a fixed price within a certain time, or under, or in compliance with certain and conditions; or which gives to the owner of the property the right to sell or demand a sale. An option is not of itself a purchase, but merely secures the privilege to buy. It is not a sale of property but a sale of the right to purchase. It is simply a contract by which the owner of the property agrees with another person that he shall have the right to buy his property at a fixed price within a certain time. He does not sell his land; he does not then agree to sell it; but he does sell something, i.e., the right or privilege to buy at the election or option of the other party. Its distinguishing characteristic is that it imposes no binding obligation on the person holding the option, aside from the consideration for the offer (Eulogio v. Sps. Apeles, G.R. No. 167884, January 20, 2009).

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Note: It is also sometimes called an “unaccepted offer” and is sanctioned by Article 1479 of the Civil Code: Article 1479. A promise to buy and sell a determinate thing for a price certain is reciprocally demandable. An accepted unilateral promise to buy or to sell a determinate thing for a price certain is binding upon the promissory if the promise is ed by a consideration distinct from the price. The second paragraph of Article 1479 provides for the definition and consequent rights and obligations under an option contract. For an option contract to be valid and enforceable against the promissor, there must be a separate and distinct consideration that s it (Bible Baptist Church v. Court of Appeals, G.R. No. 126454, 26 November 2004, 444 SCRA 399, 405). Q – When is an option contract binding upon the promissor? Explain. Answer: An accepted unilateral promise can only have a binding effect if ed by a consideration, which means that the option can still be withdrawn, even if accepted, if the same is not ed by any consideration. If the option is without consideration, it can therefore be withdrawn notwithstanding the acceptance made of it by appellee (Southwestern Sugar and Molasses Co. v. Ag & PCo., 97 Phil. 241 (1955). Without consideration that is separate and distinct from the purchase price, an option contract cannot be enforced; that holds true even if the unilateral promise is already accepted by the optionee (Eulogio v. Sps. Apeles, G.R. No. 167884, January 20, 2009). Note: The consideration is “the why of the contracts, the essential reason which moves the contracting parties to enter into the contract” This definition illustrates that the consideration contemplated to an option contract need not be monetary. Actual cash need not be exchanged for the option. However, by the very nature of an option contract, as defined in Article 1479, the same is an onerous contract for which the consideration must be something of value, although its kind may vary (Villamor v. Court of Appeals, G.R. No. 97332, 10 October 1991, 202 SCRA 607, 615). There is no consideration distinct from the price in the Contract of Lease with Option to purchase. The only consideration agreed upon by the parties in the said Contract is the supposed purchase price for the subject property in the amount not exceeding P1.5 Million, which could not be deemed to be the same consideration for the option contract since the law and jurisprudence explicitly dictate that for the option contract to be valid, it must be ed by a consideration separate and distinct from the price. In Bible Baptist Church v. Court of Appeals (444 SCRA 399), it was stressed that an option contract needs to be ed by a separate consideration. The consideration need not be monetary but could consist of other things or undertakings. However, if the consideration is not monetary, these must be things or undertakings of value, in view of the onerous nature of the option contract. Furthermore, when a consideration for an option contract is not monetary, said consideration must be clearly specified as such in the option contract or clause. Reliance on TCT. Q – Does a person who wants to purchase a property covered by the Torrens System need to rely merely upon the face of the title? Explain. Answer: Yes, as a rule, because of the protection afforded by the Torrens System, otherwise, there would be no relying on the title. The rule, however, is not absolute. An ordinarily prudent man

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should inquire into the authenticity of the certificate of title, the property’s location and its owners. Although it is recognized principle that a person dealing with ed land need not go beyond its certificate of title, it is also a firmly established rule that where circumstances exist which would put a purchaser on guard and prompt him to investigate further, such as the presence of occupants/tenants on the property offered for sale, it is expected that the purchaser would inquire first into the nature of possession of the occupants, i.e., whether or not the occupants possess the land in the concept of an owner. Settled is the rule that a buyer of real property that is in the possession of a person other than the seller must be wary and should investigate the rights of those in possession. Otherwise, without such inquiry, the buyer can hardly be regarded as a buyer in good faith (Rufloe, et al. v. Burgos, et al., G.R. No. 143573, January 30, 2009). Possession in good faith. The Civil Code describes a possessor in good faith as follows: Art. 526. He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing. Mistake upon a doubtful or difficult question of law may be the basis of good faith. Art. 1127. The good faith of the possessor consists in the reasonable belief that the person from whom he received the thing was the owner thereof, and could transmit his ownership. Possession in good faith ceases from the moment defects in the title are made known to the possessor by extraneous evidence or by a suit for recovery of the property by the true owner. Every possessor in good faith becomes a possessor in bad faith from the moment he becomes aware that what he believed to be true is not so. (Arogante v. Sps. Maglunob, et al., G.R. No. 178906, February 18, 2009, citing Ballesteros v. Abion, 482 SCRA 23 (2006). Thus, when petitioner and her husband built a house thereon in 1989 they cannot be considered to have acted in good faith as they were fully aware that when Esperanza executed an Affidavit relinquishing in their favor the subject property the only proof of Esperanza’s ownership over the same was a mere tax declaration. This fact or circumstance alone was enough to put the petitioner and her husband under inquiry. Settled is the rule that a tax declaration does not prove ownership. It is merely an indicium of a claim of ownership. Payment of taxes is not proof of ownership; it is, at best, an indicium of possession in the concept of ownership. Neither tax receipts nor a declaration of ownership for taxation purposes is evidence of ownership or of a right to possess realty when not ed by other effective proofs. AGENCY Sale of real property written authority is void.

without

In Pahud, et al. v. CA, et al., G.R. No. 160346, August 25, 2009, a property was the subject of co-ownership. The same was sold in full by four (4) of the co-owners to the exclusion of three (3) other co-owners as they were not authorized to sell the shares of the three (3) other co-owners. Is the sale of the shares of the three (3) co-owners without authority valid? Why? Answer: The authority of an agent to execute a contract of sale of real estate must be conferred in writing and must give him specific authority, either to conduct the general business of the principal

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or to execute a binding contract containing and conditions which are in the contract he did execute. A special power of attorney is necessary to enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration. The express mandate required by law to enable an appointee of an agency (couched) in general to sell must be one that expressly mentions a sale or that includes a sale as a necessary ingredient of the act mentioned. For the principal to confer the right upon an agent to sell real estate, a power of attorney must so express the powers of the agent in clear and unmistakable language. When there is any reasonable doubt that the language so used conveys such power, no such construction shall be given the document. (332 Phil. 948 (1996). It has been repeatedly held that the absence of a written authority to sell a piece of land is, ipso jure, void, (Estate of Lino Olaguer, etc. v. CA, et al., G.R. No. 173312, August 26, 2008) precisely to protect the interest of an unsuspecting owner from being prejudiced by the unwarranted act of another. TORTS AND DAMAGES Doctrine of proximate cause. In Lambert Ramos v. C.O.L. Realty Corp., G.R. No. 184905, August 28, 2009, barricades were placed along the intersection of Katipunan Ave. and Rajah Matanda Street in order to prevent motorists from crossing Katipunan Avenue. Nonetheless, Aquilino the driver of the respondent crossed Katipunan Avenue through certain portions of the barricade which were broken, thus violating the MMDA rule. A vehicular accident happened when the petitioner’s car which was then moving at a high speed in a busy area that was then subject of an ongoing construction smashed into the rear door and fender of the enger’s side of Aquilino’s car, sending it spinning in a 180degree turn. The RTC dismissed the complaint for damages but the CA modified it on appeal holding the petitioner and the driver of the expedition car liable solidarily. The CA ruled that Aquilino’s violation of MMDA prohibition against crossing Katipunan Avenue from Rajah Matanda Street was the proximate cause of the accident but declared Ramos vicariously liable for his driver’s contributory negligence in driving the Ford Expidition at high speed along a busy intersection. Ramos however contended on appeal that since Aquilino’s willful disregard of the MMDA prohibition was the sole proximate cause of the accident, then, respondent alone should suffer the consequences of the accident and the damages it incurred. Respondent insisted that Ramos is vicariously liable for the contributory negligence of his driver. Whose contention is correct? Why? Held: The contention of Ramos is correct. Aquilino’s act of crossing Katipunan Avenue via Rajah Matanda Street constitutes negligence because it was prohibited by law. Moreover, it was the proximate cause of the accident, and thus, precludes recovery for any damages suffered by respondent from the accident. This is based on the principle that if the master is injured by the negligence of a third person and by the concurring contributory negligence of his own servant or agent, the latter’s negligence is imputed to his superior and will defeat the superior’s action against the third person, assuming of course that the contributory negligence was the proximate cause of the injury of which complaint is made. (AM Jur. 2d, Vol. 58, Negligence, Sec. 464 cited in Ford Phils., Inc. v Citibank, N.A., G.R. No. 128604, January 29, 2001, 350 SCRA 446). If Aquilino heeded the MMDA prohibition against crossing Katipunan Avenue from Rajah Matanda, the accident would not have happened. This specific untoward event is exactly what the MMDA prohibition was intended for. Thus, a prudent and intelligent person who resides within the vicinity where the accident occurred, Aquilino had reasonable ground to expect that the accident would be a natural and probable result if he crossed Katipunan Avenue since such crossing is considered dangerous on of the busy nature of the thoroughfare and the ongoing construction of the Katipunan-Boni Avenue under. It was manifest error for the Court of Appeals to have overlooked the principle embodied in Article 2179 of the Civil Code, that when the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages.

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Presumption of negligence. In Sofia Guillang, et al. v. Rodolfo Badania, et al., G.R. No. 162987, May 21, 2009, a tenwheeler cargo truck was traveling along the highway going to Tagaytay and the road leading to the Orchard Golf Course when it negotiated a U-turn. When the truck entered the opposite lane of the highway, Genaro’s car hit the right portion of the truck. The truck dragged the car some five meters to the right of the road. At the time it execued a U-turn there were no signal lights, a violation of traffic rules. After the collision, the driver abandoned the truck. Are the owner and driver liable for damages? Why? Held: Yes. Under Article 2185 of the Civil Code, unless there is proof to the contrary, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. In this case, the report showed that the truck, while making the U-turn, failed to signal, a violation of traffic rules. The police records also stated that, after the collision, Bedania escaped and abandoned the petitioners and his truck. This is another violation of a traffic regulation. Therefore, the presumption arises that Bedania was negligent at the time of the mishap. Bedania’s negligence was the proximate cause of the collision which claimed the life of Antero and injured the petitioners. Proximate cause is that which, in the natural and continuous sequence, unbroken by any efficient, intervening cause, produces the injury, and without which the result would not have occurred. The cause of the collision is traceable to the negligent act of Bedania for if the U-turn was executed with the proper precaution, the mishap in all probability would not have happened. The sudden U-turn of the truck without signal lights posed a serious risk to oncoming motorists. Bedania failed to prevent or minimize that risk. The truck’s sudden U-turn triggered a series of events that led to the collision and, ultimately, to the death of Antero and the injuries of petitioners. The owner of the vehicle is also liable for the damages suffered by petitioners, since he failed to prove that he exercised all the diligence of a good father of a family in the selection and supervision of his employees. When the doctrine of last clear chance is inapplicable. In Echevara, et al. v. Ramos, et al., G.R. No. 175172, September 29, 2009, Peralta, J, a complaint for damages under Article 2176, NCC was filed by the heirs of Arnulfo Ramos due to a vehicular accident that happened in Candon, Ilocos Sur. In their Complaint, they alleged that in the morning of April 22, 1995, Benigno Valdez was driving a enger jeep heading north on the national highway in Barangay Tablac, Candon, Ilocos Sur in a reckless, careless, and negligent manner. He tried to overtake a motorcycle, causing the enger jeep to encroach on the opposite lane and bump the oncoming vehicle driven by Arnulfo Ramos. The injuries sustained by Arnulfo Ramos caused his death, notwithstanding prompt medical assistance. Respondents alleged that Crescencia Achevara failed to exercise due diligence in the selection and supervision of Benigno Valdez as driver of the enger jeep. Respondents sought to recover actual damages for medical expenses in the sum of P33,513.00 and funeral expenses in the sum of P30,000.00, as well as moral and exemplary damages, lost earnings, attorney's fees and litigation expenses. After trial, judgment was rendered holding that the enger jeep did not encroach on the lane of the owner-type jeep on the left side of the road to overtake the motorcycle. The collision took place at the lane of the enger jeep. It was held by the trial court that the doctrine of last clear chance was applicable.

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It cited Picart v. Smith, (37 Phil 809 (1918) which applied the said doctrine, thus, where both parties are guilty of negligence, but the negligent act of one succeeds that of the other by an appreciable interval of time, the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. The doctrine of last clear chance applies to a situation where the plaintiff was guilty of prior or antecedent negligence, but the defendant who had the last fair chance to avoid the impending harm and failed to do so is made liable for all the consequences of the accident, notwithstanding the prior negligence of the plaintiff. (Pantranco v. North Express, Inc., G.R. No. 79050-51, November 14, 1989, 179 SCRA 384). However, the doctrine does not apply where the party charged is required to act instantaneously, and the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered. (Ong v. Metropolitan Water District, 104 Phil. 397 (1958). The doctrine of last clear chance does not apply to this case, because even if it can be said that it was Benigno Valdez who had the last chance to avoid the mishap when the owner-type jeep encroached on the western lane of the enger jeep, Valdez no longer had the opportunity to avoid the collision. Article 2179 of the Civil Code provides: When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. In this case, both Arnulfo Ramos and Benigno Valdez failed to exercise reasonable care and caution that an ordinarily prudent man would have taken to prevent the vehicular accident. Since the gross negligence of Arnulfo Ramos and the inexcusable negligence of Benigno Valdez were the proximate cause of the vehicular accident, respondents cannot recover damages pursuant to Article 2179 of the Civil Code. Liability of ed owner of motor vehicle already sold. In Cadiente v. Macas, G.R. No. 161946, November 14, 2008 the basic question asked was: Is the ed owner of a motor vehicle still liable for the damage or injury caused by the vehicle even if he has already sold it to someone else who has not yet transferred the registration when the injury occurred? Answer: Yes. The ed owner of any vehicle is primarily responsible to the public for whatever damage or injury the vehicle may cause even if he had already sold it to someone else. Were the ed owner allowed to evade responsibility by proving who the supposed transferee or owner is, it would be easy for him, by collusion with others or otherwise, to escape said responsibility by transferring the same to an indefinite person or to one who possesses no property with which to respond financially for the damage or injury done. The policy behind the vehicle registration is the easy identification of the owner who can be held responsible in case of accident, damage or injury caused by the vehicle. This is so as not to inconvenience of prejudice a third party injured by one whose identity cannot be secured.

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DAMAGES When civil indemnity ex delicto mandatory. In People v. Gragasin, G.R. No. 186496, August 25, 2009, the SC ruled that civil indemnity ex delicto is mandatory upon a finding of the fact of rape. Moral damages are automatically awarded upon such finding without need of further proof, because it is assumed that a rape victim has actually suffered moral injuries entitling the victim to such award. Exemplary damages are awarded under Article 2230 of the Civil Code if there is an aggravating circumstance, whether ordinary or qualifying. There being no aggravating circumstance that can be considered, the award of exemplary damages would have to be deleted. In People v. Garchitorena, G.R. No. 175605, August 28, 2009, the civil indemnity in case the penalty of reclusion perpetua is imposed is P75,000.00. In People v. Angeles, G.R. No. 177134, August 14, 2009, Morales, J, it was said that under Article 2230 of the Civil Code, exemplary damages may be awarded in criminal cases when the crime was committed with one or more aggravating circumstances, in this case, treachery. This is intended to serve as deterrent to serious wrongdoings and as vindication of undue sufferings and wanton invasion of the rights of an injured, or as a punishment for those guilty of outrageous conduct. The imposition of exemplary damages is also justified under Article 2229 of the Civil Code in order to set an example for the public good. P75,000.00 as award; civil indemnity ex delicto. In People v. Golida, G.R. No. 178322, March 4, 2009, the SC once again said that if an accused is found guilty of the crime of murder and the penalty of reclusion perpetua is imposed, the award of P50,000 as moral damages is in order in view of the violent death of the victim and the resultant grief of his family. (People v. Tubongbanua, 500 SCRA 727). The award of exemplary damages of P75,000 is in order too, the crime having been committed with one or more aggravating circumstances. In line with prevailing jurisprudence, civil indemnity ex delicto is, however, increased to P75,000. (People v. Dela Cruz, G.R. No. 171272, June 7, 2007, 523 SCRA 433, 452). Exemplary damages, when recoverable in criminal cases. Once again, the SC in Sombilon, Jr. v. People, G.R. No. 175528, September 30, 2009, had the occasion to rule that Article 2230 of the Civil Code provides that in criminal offenses, exemplary damages as part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Since the generic aggravating circumstance of taking advantage of public position was not alleged in the Information against petitioner it cannot be appreciated in the imposition of the penalty. But as regards the award of exemplary damages, in the case of People v. Catubig, G.R. No. 137842, August 23, 2001, 363 SCRA 621, the Court declined retroactive application of the 2000 Rules of Criminal Procedure, to wit: The retroactive application of procedural rules, nevertheless, cannot adversely affect the rights of the private offended party that have become vested prior to the effectivity of said rules. Thus, in the case at bar, although relationship has not been alleged in the information, the offense having been committed, however, prior to the effectivity of the new rules, the civil liability already incurred by appellant remains unaffected thereby.

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Thus, in accordance with the foregoing pronouncement, the Court may award of exemplary damages to the victim. LAND REGISTRATION Forged or fraudulent document as a source of a valid title. Q – The owners of a parcel of land covered by a TCT found out one day that a house was being constructed on it. They discovered that their title was cancelled due to a Deed of Sale to which they did not participate and a title was issued under the name of another. The same was likewise sold to a couple and a title was issued under their names and who in turn sold it to another where a title was likewise issued. The last buyer inspected the property at the Office of the of Deeds and found it to be clean. The original owners filed a complaint for nullity of title, reconveyance and damages but the last buyer contended that he was a buyer in good faith and for value to which argument the CA agreed. Is the ruling of the CA correct? Why? Answer: Yes, because while the document from which the property came from may be forged or fraudulent, it may be the root of a valid title if the same has ed to a buyer in good faith and for value. An innocent purchaser for value is one who buys the property of another without notice that some other person has a right to or interest in that same property, and who pays a full and fair price at the time of the purchase and before receiving any notice of another person’s claim. The honesty of intention that constitutes good faith implies freedom from knowledge of circumstances that ought to put a prudent person on inquiry. Good faith consists in the belief of the possessors that the persons from whom they received the thing are the rightful owners who could convey their title. The burden of proving the status of purchaser in good faith lies on the one who asserts that status. In this case, Larry had successfully discharged such burden. There were no traces of bad faith on Larry’s part in acquiring such property by purchase. He merely responded to an Ad for the sale of said land and performed every act that a reasonable cautious man would do under the circumstances. Every person dealing with a ed land may safely rely on the correctness of the certificate of title issued therefore and the law will in no way oblige him to go beyond the certificate to determine the condition of the property. (Spouses Villamil, etc. v. Villarosa, G.R. No. 177187, April 7, 2009). Effect if property is ed based on a forged document. In Reyes v. Montemayor, et al., G.R. No. 166516, September 3, 2009, a real property was ed under the name of a person based on a forged document of sale. Can the owner recover the property? Explain. Answer: Yes, because a forged deed is a nullity conveys no title. (Fredot v. Cattleya Land, Inc., G.R. No. 171008, September 13, 2007, 533 SCRA 350). Insofar as a person who fraudulently obtained a property is concerned, the registration of the property in said person’s name would not be sufficient to vest in him or her, the title to the property. A certificate of title merely confirms or records title already existing and vested. The indefeasibility of the Torrens title should not be used as a means to perpetrate fraud against the rightful owner of real property. Good faith must concur with registration because, otherwise, registration would be an exercise in futility. A Torrens title does not furnish a shield for fraud, notwithstanding the longstanding rule that registration is a constructive notice of title binding upon the whole world. The

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legal principle is that if the registration of the land is fraudulent, the person in whose name the land is ed holds it as a mere trustee. It has long been established that the sole remedy of the landowner whose property has been wrongfully or erroneously ed in another's name is to bring an ordinary action in an ordinary court of justice for reconveyance or, if the property has ed into the hands of an innocent purchaser for value, for damages. “It is one thing to protect an innocent third party; it is entirely a different matter and one devoid of justification if deceit would be rewarded by allowing the perpetrator to enjoy the fruits of his nefarious deed.” Reconveyance is all about the transfer of the property, in this case the title thereto, which has been wrongfully or erroneously ed in another person's name, to its rightful and legal owner, or to one with a better right. Evidently, petitioners, being the rightful owners of the subject property, are entitled to the reconveyance of the title over the same. Effect of actual, physical possession of alienable land. In Lim v. Republic, G.R. Nos. 158630 and 162047, September 4, 2009, Morales, J, the SC had the occasion to rule that while a property classified as alienable and disposable public land may be converted into private property by reason of open, continuous, exclusive and notorious possession of at least 30 years, public dominion lands become patrimonial property not only with a declaration that these are alienable or disposable but also with an express government manifestation that the property is already patrimonial or no longer retained for public use, public service or the development of national wealth. (Arts. 420; 422, NCC). And only when the property has become patrimonial can the prescriptive period for the acquisition of property of the public dominion begin to run. While the subject lots were declared alienable or disposable on March 15, 1982, there is no competent evidence that they are no longer intended for public use or for public service. The classification of the lots as alienable and disposable lands of the public domain does not change its status as properties of the public dominion. Petitioner cannot thus acquire title to them by prescription as yet. It was further held that for an application for land registration to prosper, the applicant must present sufficient proof that he had open, continuous and adverse possession over the land or his predecessors-in-interest as early as June 12, 1945 or earlier. In the absence of such evidence, the application shall fail. Requirement of possession and occupation of land. In Republic v. Alconaba, 471 Phil. 607 (2004), The law speaks of possession and occupation. Since these words are separated by the conjunction and, the clear intention of the law is not to make one synonymous with the other. Possession is broader than occupation because it includes constructive possession. When, therefore, the law adds the word occupation, it seeks to delimit the all encoming effect of constructive possession. Taken together with the words open, continuous, exclusive and notorious, the word occupation serves to highlight the fact that for an applicant to qualify, his possession must not be a mere fiction. Actual possession of a land consists in the manifestation of acts of dominion over it of such a nature as a party would naturally exercise over his own property. (Mistica v. Rep., G.R. No. 165141, September 11, 2009 citing Ong v. Rep., 548 SCRA 160 (2008). MORTGAGES In China Banking Corp. v. Martir, G.R. No. 184252, September 11, 2009, the SC once again said that in effecting redemption, the mortgagor has the duty of tendering payment before the

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redemption period expires. While the complaint alleged that respondents made an offer to redeem the subject properties within the period of redemption, it did not allege that there was an actual tender of payment of the redemption price as required by the rules. The letter dated May 11, 1999 is only a formal offer to redeem, unaccompanied by an actual tender of the redemption price. The general rule in redemption is that it is not sufficient that a person offering to redeem manifests his desire to do so. The statement of intention must be accompanied by an actual and simultaneous tender of payment. This constitutes the exercise of the right to repurchase. (BPI v. Sps. Veloso, 479 Phil. 627 (2004). In several cases decided by the Court where the right to repurchase was held to have been properly exercised, there was an unequivocal tender of payment for the full amount of the repurchase price. Otherwise, the offer to redeem is ineffectual. Bona fide redemption necessarily implies a reasonable and valid tender of the entire repurchase price, otherwise the rule on the redemption period fixed by law can easily be circumvented. The law allows respondents the right to redeem their foreclosed properties. But in so granting that right, the law intended that their offer to redeem be valid and effective, accompanied by an actual tender of the redemption price. Fixing a definite term within which the property should be redeemed is meant to avoid prolonged economic uncertainty over the ownership of the thing sold. (BPI v. Sps. Veloso).

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