amagan v. marayag 2000

THIRD DIVISION

G.R. No. 138377 February 28, 2000

CONCEPCION V. AMAGAN, JOSEFINA V. AMAGAN and DINA V. AMAGAN, petitioners,
vs.
TEODORICO T. MARAYAG, respondent.

PANGANIBAN, J.:

As a general rule, an ejectment suit cannot be abated or suspended by the mere filing before the regional trial court (RTC) of another action raising ownership of the property as an issue. As an exception, however, unlawful detainer actions may be suspended even on appeal, on considerations of equity, such as when the demolition of petitioners' house would result from the enforcement of the municipal circuit trial court (MCTC) judgment.

The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the February 9, 1999 Resolution of the Court of Appeals (CA) in CA-GR SP No. 50472,¹ which disposed as follows:

It is plain to see that this Court, under its Decision, merely nullified the Order of the Respondent, dated November 26, 1996 granting Private Respondent's "Motion for Execution Pending Appeal" and denying Petitioners "Motion for Reconsideration" [of] its said Order. This Court did not enjoin the Respondent Court from resolving Petitioners" appeal from the Decision of the Municipal [Circuit] Trial Court, on its merits.

Petitioners' complaint for "Quieting of Title and Reconveyance in Civil Case No. 1632" filed [at] the Regional Trial Court does not abate the proceeding in Civil Case No. 1671 (TG) before the Respondent Court (Asset Privatization Trust v. Court of Appeals, 229 SCRA 627; Felicidad Javier, et al., versus Hon. Regino T. Veridiano, II, et al., 237 SCRA 565).

In sum, then, the [im]pugned Orders of the Respondent Court are in accord with case law and issued in the exercise of its sound discretion.

IN THE LIGHT OF ALL THE FOREGOING, the Petition is denied due course and is hereby dismissed. No cost.

SO ORDERED.²

Also challenged by petitioners is the April 22, 1999 CA Resolution³ denying their Motion for Reconsideration.

The Facts

The facts as found by the Court of Appeals are as follows:

. . . . On June 3, 1996, the private respondent filed a complaint against the petitioners for "unlawful detainer" with the Municipal [Circuit] Trial Court in Silang, Cavite. On September 27, 1996, the trial court promulgated a Decision in favor of the private respondent and against the petitioners, the decretal portion of which reads as follows:

IN VIEW OF THE FOREGOING, this Court for the plaintiff and against the defendants finds ordering the latter as follows:

1. To vacate the property of plaintiff located at San Vicente, Silang, Cavite containing an area of 420 square meters and covered by Tax Declaration No. 13023 and remove their house constructed thereon;

2. To pay plaintiff, jointly and severally, the amount of P10,000.00 starting from June 1, 1996 until the subject premises are fully vacated, as reasonable compensation for their continued unlawful use and occupation of the same and another amount of P50,000.00 as and by way of attorney's fees and other litigation expenses; and

3. To pay the cost of suit.1âwphi1.nêt

SO ORDERED.

The petitioners appealed to the Regional Trial Court of Cavite from said Decision, which appeal was docketed as Civil Case No. 1671. On November 26, 1996, the private respondent filed a "Motion for Execution Pending Appeal" with the Respondent Court which, on November 26, 1996, issued an Order granting said motion, the decretal portion of which reads as follows:

As prayed for by the plaintiff(s), through (their) counsel, and finding the grounds alleged in their "Motion for Immediate Exec(u)tion" to be impressed with merit, the same is hereby GRANTED.

Accordingly, let a writ of execution pending appeal be issued in this case.

"The Petitioners' Motion for Reconsideration" [of] said Order, was denied by the Respondent Court per its Order dated February 21, 1997.

In the interim, the petitioners filed, on December 10, 19[96], a complaint against private respondent in the Regional Trial Court for "Quieting of Title, Reconveyance and Damages," entitled "Concepcion v. Amagan, et al. versus Teodorico Marayag, Civil Case No. 1682 (TG).

The petitioners filed, a "Petition for Certiorari," in the Court of Appeals, under Rule 65 of the Rules of Court, dated April 28, 1997, against the respondents for the nullification of the aforesaid Orders of the Respondent Court, dated November 26, 1996 and February 21, 1997, in Civil Case No. 1671, granting private respondent's "Motion for Reconsideration" respectively, which Petition was entitled "Concepcion v. Amagan, et al., versus Regional Trial Court, et al., CA-G.R. [SP No. 43611]." This Court issued a Resolution granting petitioners' plea for a temporary restraining order which expired on June 25, 1997.

On July 7, 1997, the private respondent filed, with the Respondent Court, in Civil Case No. 1671 (TG), an "Ex-Parte Omnibus Motion to Direct Sheriff To Make a Report And/Or Implement Writ of Execution and Declare the Case Submitted for Decision" with the parties submitting to the Respondent Court their respective "Memorandum on Appeal." The next day, July 18, 1997, this Court promulgated, in CA-G.R. [SP No. 43611], a Decision in favor of the petitioners and against the respondents therein the decretal portion of which reads as follows:

WHEREFORE, the Petition for certiorari is hereby GRANTED. Accordingly, the Order dated February 21, 1997, allowing execution pending appeal is REVERSED and SET ASIDE.

On July 11, 1997, the Respondent Court issued an Order granting private respondent's Omnibus Motion,' supra. The private respondent likewise filed a Petition for Review' with the Supreme Court, from the Decision of this Court in CA-G.R. [SP No. 43611] and its Resolution denying private respondent's "Motion for Reconsideration" but the Supreme Court, per its Resolution dated November 12, 1997, issued a Resolution denying private respondents['] "Petition for Review." The Resolution of the Supreme Court became final and executory.

On December 12, 1997, the private respondent filed with the Respondent Court, in Civil Case No. TG-1671, a "Manifestation and Ex-Parte Motion" praying that the Respondent Court resolve the case and promulgate its Decision on the merits. However, the petitioners filed an Opposition to private respondent's motion, contending that the proceedings before the Respondent Court, in Civil Case No. 1671 (TG), be suspended pending decision, on the merits, of the Regional Trial Court, in Civil Case No. 1682 (Quieting of Title, Reconveyance with Damages). On April 3, 1998, the Respondent Court issued its Order granting private respondent's motion, declaring that the Court, under its Decision, in CA-G.R. [SP No. 43611], merely nullified its Order granting execution pending appeal but did not enjoin the Respondent Court from hearing and resolving Civil Case No. 16[7]1 on the merits. The petitioners filed a "Motion for Reconsideration" of the aforesaid Order of the Respondent Court but the latter issued an Order dated December 14, 1998 denying petitioners' Motion for Reconsideration, in this language.

Anent the Motion for Reconsideration, movants anchored their arguments that this Court should restrain itself from further proceeding with the appealed case because of the decision, resolution of the Court of Appeals, and resolution of the Supreme Court. It is worthy to note that [what] was brought up with the higher Courts was the Order of the Court allowing the execution pending appeal, the said Order was reversed and set aside by the Court of Appeals[;] however, there was no permanent injunction that has been issued for this Court to stop from further proceeding with the case. The said motion is, therefore, DENIED for lack of merit.

The facts of this case may be simply summarized as follows. The MCTC rendered a Decision granting the ejectment suit filed by respondent against herein petitioners. While an appeal was pending before the RTC, respondent filed a Motion for immediate execution of the MCTC judgment, which was granted. However, the Court of Appeals⁴ later reversed the RTC Order granting the execution pending appeal, a reversal that was subsequently affirmed by the Supreme Court. Meanwhile, petitioners also filed before the RTC a new action for quieting of title involving the same property.

Petitioners thence claimed that the proceedings in the ejectment appeal should be suspended pending final judgment in the quieting of title case. The RTC ruled in the negative.

Ruling of the Court of Appeals

In sustaining the RTC, the CA held in two short paragraphs that its earlier Decision in CA-GR SP No. 43611 enjoined only the execution of the judgment pending appeal. Without discussing petitioners' plea for an exception, it curtly applied the jurisprudential principle that an action for quieting of title would not abate an ejectment suit.

Hence, this Petition.⁵

The Issue

In their Memorandum, petitioners submitted for the consideration of the Court the following issues:

I. Whether or not the 8 July 1997 Decision and 23 September 1997 Resolution of the Court of Appeals in CA-G.R. SP No. 43911 (Annex I), as affirmed in toto by the Supreme Court, called off and restrained the proceedings in this case;

II. Whether or not the dispositive portion of the Decision in CA-G.R. SP No. 43611 should be referred to its body and text.

III. Whether or not the Court of Appeals' Decision having been based on Vda. de Legaspi vs. Avendano . . ., is now final and executory as it was upheld by the Supreme Court in toto.

IV. Whether or not Lao vs. Court of Appeals [. . .] is applicable to the present case, and

V. Whether or not the Court of Appeals failed to consider and pass judgment on the exceptional nature of the present case.⁶

In the main, the issue is whether the peculiar circumstances of this case justify the suspension of the ejectment proceedings on appeal before the RTC, pending the resolution of the action for quieting of title.

The Court's Ruling

The Petition is meritorious.

Main Issue:

Suspension of the Ejectment Suit

Unlawful detainer and forcible entry suits under Rule 70 are designed to summarily restore physical possession of a piece of land or building to one who has been illegally or forcibly deprived thereof, without prejudice to the settlement of the parties' opposing claims of juridical possession in appropriate proceedings. It has been held that these actions "are intended to avoid disruption of public order by those who would take the law in their hands purportedly to enforce their claimed right of possession."⁷ In these cases, the issue is pure physical or de facto possession, and pronouncements made on questions of ownership are provisional in nature.

As a general rule, therefore, a pending civil action involving ownership of the same property does not justify the suspension of ejectment proceedings. "The underlying reasons for the above ruling were that the actions in the Regional Trial Court did not involve physical or de facto possession, and, on not a few occasions, that the case in the Regional Trial Court was merely a ploy to delay disposition of the ejectment proceeding, or that the issues presented in the former could quite as easily be set up as defenses in the ejectment action and there resolved."⁸

Only in rare instances is suspension allowed to await the outcome of the pending civil action. One such exception is Vda. de Legaspi v. Avendaño, wherein the Court declared:

. . . . Where the action, therefore, is one of illegal detainer, as distinguished from one of forcible entry, and the right of the plaintiff to recover the premises is seriously placed in issue in a proper judicial proceeding, it is more equitable and just and less productive of confusion and disturbance of physical possession, with all its concomitant inconvenience and expenses. For the Court in which the issue of legal possession, whether involving ownership or not, is brought to restrain, should a petition for preliminary injunction be filed with it, the effects of any order or decision in the unlawful detainer case in order to await the final judgment in the more substantive case involving legal possession or ownership. It is only where there has been forcible entry that as a matter of public policy the right to physical possession should be immediately set at rest in favor of the prior possession regardless of the fact that the other party might ultimately be found to have superior claim to the premises involved, thereby to discourage any attempt to recover possession thru force, strategy or stealth and without resorting to the courts.⁹

From the foregoing, it is clear that the mere existence of a judicial proceeding putting at issue the right of the plaintiff to recover the premises is not enough reason to justify an exception to the general rule. In Salinas v. Navarro,¹⁰ the Court explained that "the exception to the rule in . . . Vda. de Legaspi is based on strong reasons of equity not found in the present petition. The right of the petitioners is not so seriously placed in issue in the annulment case as to warrant a deviation, on equitable grounds, from the imperative nature of the rule. In the Vda. de Legaspi case, execution of the decision in the ejectment case would also have meant demolition of the premises, a factor not present in this petition."

After a close reading of the peculiar circumstances of the instant case, however, we hold that equitable considerations impel an exception to the general rule. In its earlier July 8, 1997 Decision in CA-GR No. 43611-SP which has long become final, the Court of Appeals, through Justice Artemio G. Toquero, arrived upon the following factual findings which are binding on herein parties:

Admittedly, petitioners who appealed the judgment in the ejectment case did not file a supersedeas bond. Neither have they been depositing the compensation for their use and occupation of the property in question as determined by the trial court. Ordinarily, these circumstances would justify an execution pending appeal. However, there are circumstances attendant to this case which would render immediate execution injudicious and inequitable.

ONE. Private respondent Teodorico T. Marayag anchors his action for unlawful detainer on the theory that petitioners' possession of the property in question was by mere tolerance. However, in answer to his demand letter dated April 13, 1996 (Annex "D"), petitioners categorically denied having any agreement with him, verbal or written, asserting that they are "owners of the premises we are occupying at 108 J. P. Rizal Street, San Vicente, Silang, Cavite." In other words, it is not merely physical possession but ownership as well that is involved in this case.

TWO. In fact, to protect their rights to the premises in question, petitioners filed an action for reconveyance, quieting of title and damages against private respondents, docketed as Civil Case No. TG-1682 of the Regional Trial Court, Branch 18, Tagaytay City. The issue of ownership is squarely raised in this action. Undoubtedly, the resolution of this issue will be determinative of who is entitled to the possession of the premises in question.

THREE. The immediate execution of the judgment in the unlawful detainer case will include the removal of the petitioners' house [from] the lot in question.

To the mind of the Court it is injudicious, nay inequitable, to allow demolition of petitioners' house prior to the determination of the question of ownership [of] the lot on which it stands.¹¹

Indisputably, the execution of the MCTC Decision would have resulted in the demolition of the house subject of the ejectment suit; thus, by parity of reasoning, considerations of equity require the suspension of the ejectment proceedings. We note that, like Vda. de Legaspi, the respondent's suit is one of unlawful detainer and not of forcible entry. And most certainly, the ejectment of petitioners would mean a demolition of their house, a matter that is likely to create the "confusion, disturbance, inconveniences and expenses" mentioned in the said exceptional case.

Necessarily, the affirmance of the MCTC Decision¹² would cause the respondent to go through the whole gamut of enforcing it by physically removing the petitioners from the premises they claim to have been occupying since 1937. (Respondent is claiming ownership only of the land, not of the house.) Needlessly, the litigants as well as the courts will be wasting much time and effort by proceeding at a stage wherein the outcome is at best temporary, but the result of enforcement is permanent, unjust and probably irreparable.1âwphi1.nêt

We should stress that respondent's claim to physical possession is based not on an expired or a violated contract of lease, but allegedly on "mere tolerance." Without in any way prejudging the proceedings for the quieting of title, we deem it judicious under the present exceptional circumstances to suspend the ejectment case.

The Suspension of Proceedings
Even During Appeal

One final point. In Vda. de Legaspi, the Court held that "if circumstances should so require, the proceedings in the ejectment case may be suspended in whatever stage it may be found." This statement is unequivocally clear; it includes even the appellate stage.

WHEREFORE, the Petition is GRANTED and the appealed Decision REVERSED and SET ASIDE. The Regional Trial Court of Cavite is DIRECTED to suspend further action in Civil Case No. 1671 until Civil Case No. 1682 is concluded. No costs.

SO ORDERED.

Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

Footnotes

¹ Penned by J. Romeo J. Callejo Sr. with the concurrence of JJ. Fermin A. Martin Jr., Division chairman; and Mariano M. Umali, member.

² CA Decision, p. 4; rollo, p. 36.

³ Rollo, p. 33; also penned by J. Callejo and concurred in by JJ. Umali and Bernardo P. Abesamis (who took the place of J. Martin).

⁴ The Decision was written by J. Artemio G. Tuquero, with the concurrence of JJ Artemon D. Luna (chairman) and Hector L. Hofilena (member).

⁵ The case was deemed submitted for resolution on November 26, 1999, upon receipt by this Court of respondent's Memorandum, which was signed by Atty. Joselito A. Oliveros. Petitioners' Memorandum, signed by Atty. Florante C. Roxas, had been filed earlier on November 24, 1999.

⁶ Petitioners' Memorandum, p. 7; rollo, p. 422.

⁷ Vda de Legaspi v. Avendaño, 79 SCRA 135, September 27, 1977, per Barredo, J.

⁸ Wilmon Auto Supply Corp. v. Court of Appeals, 208 SCRA 108, April 10, 1992, per Narvasa, CJ. In this case, the Court also held:

1. Injunction suits instituted in the RTC by defendants in ejectment actions in the municipal trial courts or other courts of the first level (Nacorda v. Yatco, 17 SCRA 920 [1966]) do not abate the latter; and neither do proceedings on consignation of rentals (Lim Si v. Lim, 98 Phil. 868 [1956], citing Pue et al. v. Gonzales, 87 Phil. 81, [1950]).

2. An "accion publiciana" does not suspend an ejectment suit against the plaintiff in the former (Ramirez v. Bleza, 106 SCRA 187 [1981]).

3. A "writ of possession case" where ownership is concededly the principal issue before the Regional Trial Court does not preclude nor bar the execution of the judgment in an unlawful detainer suit where the only issue involved is the material possession or possession de facto of the premises (Heirs of F. Guballa Sr. v. CA, et al.; etc., 168 SCRA 518 [1988]).

4. An action for quieting of title to property is not a bar to an ejectment suit involving the same property (Quimpo v. de la Victoria, 46 SCRA 139 [1972]).

5. Suits for specific performance with damages do not affect ejectment actions (e.g., to compel renewal of a lease contract) (Desamito v. Cuyegkeng, 18 SCRA 1184 [1966]; Pardo de Tavera v. Encarnacion, 22 SCRA 632 [1968]; Rosales v. CA, 154 SCRA 153 [1987]; Commander Realty, Inc. v. CA, 161 SCRA 264 [1988]).

6. An action for reformation of instrument (e.g., from deed of absolute sale to one of sale with pacto de retro) does not suspend an ejectment suit between the same parties (Judith v. Abragan, 66 SCRA 600 [1975]).

7. An action for reconveyance of property or "accion reivindicatoria" also has no effect on ejectment suits regarding the same property (Del Rosario v. Jimenez, 8 SCRA 549 [1963]; Salinas v. Navarro, 126 SCRA 167; De la Cruz v. CA, 133 SCRA 520 [1984]; Drilon v. Gaurana, 149 SCRA 352 [1987]; Ching v. Malaya, 153 SCRA 412 [1987]; Philippine Feeds Milling Co., Inc. v. CA, 174 SCRA 108; Dante v. Sison, 174 SCRA 517 [1989]; Guzman v. CA [annulment of sale and reconveyance], 177 SCRA 604 [1989]; Demamay v. CA, 186 SCRA 608 [1990]; Leopoldo Sy v. CA et al., [annulment of sale and reconveyance], GR No. 95818, Aug. 2, 1991).

8. Neither do suits for annulment of sale, or title, or document affecting property operate to abate ejectment actions respecting the same property (Salinas v. Navarro [annulment of deed of sale with assumption of mortgage and/or to declare the same an equitable mortgage], 126 SCRA 167 [1983]; Ang Ping v. RTC [annulment of sale and title], 154 SCRA 153 [1987]; Caparros v. CA [annulment of title], 170 SCRA 758 [1989]; Dante v. Sison [annulment of sale with damages], 174 SCRA 517; Galgala v. Benguet Consolidated, Inc. [annulment of document], 177 SCRA 288 [1989]).

⁹ Supra, p. 145.

¹⁰ 126 SCRA 167, November 29, 1983, per Gutierrez Jr., J.

¹¹ CA Decision in CA-GR SP No. 43611, p. 3; rollo, p. 90. Emphasis supplied.

¹² In fact, according to private respondent (Memorandum, p. 19; rollo, p. 477), the "RTC had already rendered its decision dated 7 April 1999 affirming in toto, the earlier judgment rendered by the [MCTC] in herein respondent's favor."

josef v. santos 2008

THIRD DIVISION

G.R. No. 165060 November 27, 2008

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

D E C I S I O N

YNARES-SANTIAGO, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court assails the November 17, 2003¹ Resolution of the Court of Appeals in CA-G.R. SP No. 80315, dismissing petitioner’s special civil action of certiorari for failure to file a prior motion for reconsideration, and the May 7, 2004² Resolution denying the motion for reconsideration.

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

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

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

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

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

SO ORDERED.¹⁰

A writ of execution was issued on August 20, 2003¹¹ and enforced on August 21, 2003. On August 29, 2003, certain personal properties subject of the writ of execution were auctioned off. Thereafter, a real property located at Marikina City and covered by Transfer Certificate of Title (TCT) No. N-105280 was sold on October 28, 2003 by way of public auction to fully satisfy the judgment credit. Respondent emerged as the winning bidder and a Certificate of Sale¹² dated November 6, 2003 was issued in his favor.

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

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

Thus, the instant petition which raises the following issues:

I.

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

II.

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

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

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

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

The petition is meritorious.

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

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

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

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

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

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

SO ORDERED.¹³

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

The family home is a real right which is gratuitous, inalienable and free from attachment, constituted over the dwelling place and the land on which it is situated, which confers upon a particular family the right to enjoy such properties, which must remain with the person constituting it and his heirs. It cannot be seized by creditors except in certain special cases.¹⁵

Upon being apprised that the property subject of execution allegedly constitutes petitioner’s family home, the trial court should have observed the following procedure:

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

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

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

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

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

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

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

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

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

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

Being void, the July 16, 2003 Order could not have conferred any right to respondent. Any writ of execution based on it is likewise void. Although we have held in several cases²⁶ that a claim for exemption from execution of the family home should be set up and proved before the sale of the property at public auction, and failure to do so would estop the party from later claiming the exemption since the right of exemption is a personal privilege granted to the judgment debtor which must be claimed by the judgment debtor himself at the time of the levy or within a reasonable period thereafter, the circumstances of the instant case are different. Petitioner claimed exemption from execution of his family home soon after respondent filed the motion for issuance of a writ of execution, thus giving notice to the trial court and respondent that a property exempt from execution may be in danger of being subjected to levy and sale. Thereupon, the trial court is called to observe the procedure as herein laid out; on the other hand, the respondent should observe the procedure prescribed in Article 160 of the Family Code, that is, to obtain an order for the sale on execution of the petitioner’s family home, if so, and apply the proceeds – less the maximum amount allowed by law under Article 157 of the Code which should remain with the petitioner for the rebuilding of his family home – to his judgment credit. Instead, both the trial court and respondent completely ignored petitioner’s argument that the properties subject of the writ are exempt from execution.

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

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

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

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

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

SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice

WE CONCUR:

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice
* DANTE O. TINGA Associate Justice	MINITA V. CHICO-NAZARIO Associate Justice
ANTONIO EDUARDO B. NACHURA Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

^* In lieu of Associate Justice Teresita J. Leonardo-De Castro, per Special Order No. 539 dated November 14, 2008.

¹ Rollo, p. 64; penned by Associate Justice Edgardo P. Cruz and concurred in by Associate Justices Ruben T. Reyes and Noel G. Tijam.

² Id. at 72-73.

³ Id. at 29-33; penned by Judge Reuben R. De la Cruz.

⁴ Docketed as CA-G.R. CV No. 56952.

⁵ Rollo, pp. 34-38; penned by Associate Justice Rodrigo V. Cosico and concurred in by Associate Justices Ramon A. Barcelona and Alicia L. Santos.

⁶ Id. at 13, 51; docketed as G.R. No. 150720.

⁷ Id. at 50-52.

⁸ Id. at 53-55.

⁹ Id. at 56.

¹⁰ Id.

¹¹ Id. at 57-58.

¹² Id. at 61-62.

¹³ Id. at 56.

¹⁴ Abbain v. Chua, No. L-24241, February 26, 1968, 22 SCRA 748.

¹⁵ Taneo, Jr. v. Court of Appeals, G.R. No. 108532, March 9, 1999, 304 SCRA 308.

¹⁶ Family Code.

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

(1) For non-payment of taxes;

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

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

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

¹⁷ Family Code.

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

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

Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable.

¹⁸ Modequillo v. Breva, G.R. No. 86355, May 31, 1990, 185 SCRA 766; Manacop v. Court of Appeals, 342 Phil. 735 (1997); Taneo v. Court of Appeals, supra note 15.

¹⁹ Family Code.

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of a family; and

(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support.

Art. 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 therefor. This rule shall apply regardless of whoever owns the property or constituted the family home.

²⁰ Family Code.

Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home.

²¹ Family Code.

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

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

For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas.

²² Family Code.

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

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

²³ A. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol. I (1990 ed.), p. 508, citing Code Commission of 1947, pp. 18-19, 20.

²⁴ Family Code, Art. 149.

²⁵ Sec. 13, Rule 39 of the Rules of Court provide:

Sec. 13. Property exempt from execution. Except as otherwise expressly provided by law, the following property, and no other, shall be exempt from execution:

(a) The judgment obligor's family home as provided by law, or the homestead in which he resides, and land necessarily used in connection therewith;

(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;

(c) Three horses, or three cows, or three carabaos, or other beasts of burden such as the judgment obligor may select necessarily used by him in his ordinary occupation;

(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;

(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos;

(f) Provisions for individual or family use sufficient for four months;

(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three hundred thousand pesos in value;

(h) One fishing boat and accessories not exceeding the total value of one hundred thousand pesos owned by a fisherman and by the lawful use of which he earns his livelihood;

(i) So much of the salaries, wages, or earnings of the judgment obligor of his personal services within the four months preceding the levy as are necessary for the support of his family;

(j) Lettered gravestones;

(k) Monies benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;

(l) The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government;

(m) Properties specially exempt by law.

But no article or species of property mentioned in this section shall be exempt from execution issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon.

²⁶ Honrado v. Court of Appeals, G.R. No. 166333, November 25, 2005, 476 SCRA 280; Gomez v. Gealone, G.R. No. 58281, November 13, 1991, 203 SCRA 474 .

ramos v. pangilinan 2010

THIRD DIVISION

G.R. No. 185920 July 20, 2010

JUANITA TRINIDAD RAMOS, ALMA RAMOS WORAK, MANUEL T. RAMOS, JOSEFINA R. ROTHMAN, SONIA R. POST, ELVIRA P. MUNAR, and OFELIA R. LIM, Petitioners,
vs.
DANILO PANGILINAN, RODOLFO SUMANG, LUCRECIO BAUTISTA and ROLANDO ANTENOR, Respondents.

D E C I S I O N

CARPIO MORALES, J.:

Respondents filed in 2003 a complaint¹ for illegal dismissal against E.M. Ramos Electric, Inc., a company owned by Ernesto M. Ramos (Ramos), the patriarch of herein petitioners. By Decision² of April 15, 2005, the Labor Arbiter ruled in favor of respondents and ordered Ramos and the company to pay the aggregate amount of P1,661,490.30 representing their backwages, separation pay, 13th month pay & service incentive leave pay.

The Decision having become final and executory and no settlement having been forged by the parties, the Labor Arbiter issued on September 8, 2005 a writ of execution³ which the Deputy Sheriff of the National Labor Relations Commission (NLRC) implemented by levying a property in Ramos’ name covered by TCT No. 38978, situated in Pandacan, Manila (Pandacan property).

Alleging that the Pandacan property was the family home, hence, exempt from execution to satisfy the judgment award, Ramos and the company moved to quash the writ of execution.⁴ Respondents, however, averred that the Pandacan property is not the Ramos family home, as it has another in Antipolo, and the Pandacan property in fact served as the company’s business address as borne by the company’s letterhead. Respondents added that, assuming that the Pandacan property was indeed the family home, only the value equivalent to P300,000 was exempt from execution.

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

Ramos and the company appealed to the Court of Appeals during the pendency of which Ramos died and was substituted by herein petitioners. Petitioners also filed before the NLRC, as third-party claimants, a Manifestation questioning the Notice to Vacate issued by the Sheriff, alleging that assuming that the Pandacan property may be levied upon, the family home straddled two (2) lots, including the lot covered by TCT No. 38978, hence, they cannot be asked to vacate the house. The Labor Arbiter was later to deny, by Decision of May 7, 2009, the third-party claim, holding

that Ramos’ death and petitioners’ substitution as his compulsory heirs would not nullify the sale at auction of the Pandacan property. And the NLRC⁶ would later affirm the Labor Arbiter’s ruling, noting that petitioners failed to exercise their right to redeem the Pandacan property within the one 1 year period or until January 16, 2009. The NLRC brushed aside petitioners’ contention that they should have been given a fresh period of 1 year from the time of Ramos’ death on July 29, 2008 or until July 30, 2009 to redeem the property, holding that to do so would give petitioners, as mere heirs, a better right than the Ramos’.

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

Before the appellate court, petitioners alleged that the NLRC erred in ruling that the market value of the property was P2,177,000 as assessed by the City Assessor of Manila and appearing in the documents submitted before the Labor Arbiter, claiming that at the time the Pandacan property was constituted as the family home in 1944, its value was way below P300,000; and that Art. 153 of the Family Code was applicable, hence, they no longer had to resort to judicial or extrajudicial constitution.

In the assailed Decision⁷ of September 24, 2008, the appellate court, in denying petitioners’ appeal, held that the Pandacan property was not exempted from execution, for while "Article 153⁸ of the Family Code provides that the family home is deemed constituted on a house and lot from the time it is occupied as a family residence, [it] did not mean that the article has a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code."

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

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

The petition is devoid of merit.

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

Kelley, Jr. v. Planters Products, Inc.¹⁰ lays down the rules relative to the levy on execution over the family home, viz:

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

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

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

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

If the family home was constructed before the effectivity of the Family Code or before August 3, 1988, then it must have been constituted either judicially or extra-judicially as provided under Articles 225, 229-231 and 233 of the Civil Code.¹¹ Judicial constitution of the family home requires the filing of a verified petition before the courts and the registration of the court’s order with the Registry of Deeds of the area where the property is located. Meanwhile, extrajudicial constitution is governed by Articles 240 to 242¹² of the Civil Code and involves the execution of a public instrument which must also be registered with the Registry of Property. Failure to comply with either one of these two modes of constitution will bar a judgment debtor from availing of the privilege.

On the other hand, for family homes constructed after the effectivity of the Family Code on August 3, 1988, there is no need to constitute extrajudicially or judicially, and the exemption is effective from the time it was constituted and lasts as long as any of its beneficiaries under Art. 154¹³ actually resides therein. Moreover, the family home should belong to the absolute community or conjugal partnership, or if exclusively by one spouse, its constitution must have been with consent of the other, and its value must not exceed certain amounts depending upon the area where it is

located. Further, the debts incurred for which the exemption does not apply as provided under Art. 155¹⁴ for which the family home is made answerable must have been incurred after August 3, 1988.1avvphi1

And in both cases, whether under the Civil Code or the Family Code, it is not sufficient that the person claiming exemption merely alleges that such property is a family home. This claim for exemption must be set up and proved.¹⁵

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

WHEREFORE, the petition is DENIED.

SO ORDERED.

CONCHITA CARPIO MORALES
Associate Justice
Chairperson

WE CONCUR:

ARTURO D. BRION Associate Justice	LUCAS P. BERSAMIN Associate Justice
ROBERTO A. ABAD* Associate Justice	MARTIN S. VILLARAMA, JR. Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

^* Additional member per Special Order No. 843 dated May 17, 2010.

¹ NLRC records, Vol. I, p. 2.

² Id. at 78-86. Penned by Labor Arbiter Joel S. Lustria.

³ Id. at 96-96-98.

⁴ Id. at 99-100.

⁵ Id. at 138-141.

⁶ NLRC records, pp. 278-286. Penned by Presiding Commissioner Alex A. Lopez and concurred in by Commissioners Gregorio O. Bilog, III and Pablo C. Espiritu, Jr.

⁷ Rollo, pp. 7-19. Penned by Associate Justice Monina Arevalo-Zenarosa and concurred in by Associate Justices Regalado E. Maambong and Sixto C. Marella, Jr.

⁸ Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law.

⁹ Josef v. Santos, G.R. No. 165060, November 27, 2008, 572 SCRA 57, 63.

¹⁰ G.R. No. 172263, July 9, 2008, 557 SCRA 499, 501-502.

¹¹ Art. 225. The family home may be constituted by a verified petition to the Court of First Instance by the owner of the property, and by approval thereof by the court.

Art. 229. The petition shall contain the following particulars:

(1) Description of the property;

(2) An estimate of its actual value;

(3) A statement that the petitioner is actually residing in the premises;

(4) The encumbrances thereon;

(5) The names and addresses of all the creditors of the petitioner and of all mortgagees and other persons who have an interest in the property;

(6) The names of the other beneficiaries specified in Article 226.

Art. 230. Creditors, mortgagees and all other persons who have an interest in the estate shall be notified of the petition, and given an opportunity to present their objections thereto. The petition shall, moreover, be published once a week for three consecutive weeks in a newspaper of general circulation.

Art. 231. If the court finds that the actual value of the proposed family home does not exceed twenty thousand pesos, or thirty thousand pesos in chartered cities, and that no third person is prejudiced, the petition shall be approved. Should any creditor whose claim is unsecured, oppose the establishment of the family home, the court shall grant the petition if the debtor gives sufficient security for the debt.

Art. 233. The order of the court approving the establishment of the family home shall be recorded in the Registry of Property.

¹² Art. 240. The family home may be extrajudicially constituted by recording in the Registry of Property a public instrument wherein a person declares that he thereby establishes a family home out of a dwelling place with the land on which it is situated.

Art. 241. The declaration setting up the family home shall be under oath and shall contain:

(1) A statement that the claimant is the owner of, and is actually residing in the premises;

(2) A description of the property;

(3) An estimate of its actual value; and

(4) The names of the claimant's spouse and the other beneficiaries mentioned in Article 226.

Art. 242. The recording in the Registry of Property of the declaration referred to in the two preceding articles is the operative act which creates the family home.

¹³ Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of a family; and

(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support.

¹⁴ Art. 155. The family home shall be exempt from execution, forced sale or attachment except:

(1) For nonpayment of taxes;

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

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

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

¹⁵ Honrado v. Court of Appeals, G.R. No. 166333, 25 November 2005, 476 SCRA, 280, 288.

¹⁶ See certification from Prudential Bank Assistant Manager Victorino B. Lazaro, Jr., dated October 3, 2005, NLRC records, Vol. I, p. 105.

¹⁷ See Deed of Donation of Antipolo lot executed by Ernesto Ramos in favor of Philippine Rehabilitation Foundation, id. at 196-198.

Bar Examination Questionnaire for Civil Law

1.When does a declaration of absence of a missing person take effect?
A. Immediately from the issuance of the declaration of absence.
B. 3 months after the publication of the declaration of absence.
C. 6 months after the publication of the declaration of absence.
D. 15 days from the issuance of the declaration of absence.

2. The authority that school administrators exercise over school children under
their supervision, instruction, or custody is called
A. legal parental authority.
B. substitute parental authority.
C. ordinary parental authority.
D. special parental authority.
3. Can future inheritance be the subject of a contract of sale?
A. No, since it will put the predecessor at the risk of harm from a tempted buyer,
contrary to public policy.
B. Yes, since the death of the decedent is certain to occur.
C. No, since the seller owns no inheritance while his predecessor lives.
D. Yes, but on the condition that the amount of the inheritance can only be
ascertained after the obligations of the estate have been paid.

4. Upon the proposal of a third person, a new debtor substituted the original
debtor without the latter’s consent. The creditor accepted the substitution. Later,
however, the new debtor became insolvent and defaulted in his obligation. What
is the effect of the new debtor’s default upon the original debtor?
A. The original debtor is freed of liability since novation took place and this
relieved him of his obligation.
B. The original debtor shall pay or perform the obligation with recourse to the
new debtor.
C. The original debtor remains liable since he gave no consent to the
substitution.
D. The original debtor shall pay or perform 50% of the obligation to avoid unjust
enrichment on his part.


5. Lennie bought a business class ticket from Alta Airlines. As she checked in,
the manager downgraded her to economy on the ground that a Congressman
had to be accommodated in the business class. Lennie suffered the discomfort
and embarrassment of the downgrade. She sued the airlines for quasi-delict but
Alta Airlines countered that, since her travel was governed by a contract between
them, no quasi-delict could arise. Is the airline correct?
A. No, the breach of contract may in fact be tortious as when it is tainted as in
this case with arbitrariness, gross bad faith, and malice.
B. No, denying Lennie the comfort and amenities of the business class as
provided in the ticket is a tortious act.
C. Yes, since the facts show a breach of contract, not a quasi-delict.
D. Yes, since quasi-delict presupposes the absence of a pre-existing contractual
relation between the parties.


6. Which of the following is an indispensable requirement in an action for
“quieting of title” involving real property? The plaintiff must
A. be in actual possession of the property.
B. be the registered owner of the property.
C. have legal or equitable title to the property.
D. be the beneficial owner of the property.
7. X and Y were to marry in 3 months. Meantime, to express his affection, X
donated a house and lot to Y, which donation X wrote in a letter to Y. Y wrote
back, accepting the donation and took possession of the property. Before the
wedding, however, Y suddenly died of heart attack. Can Y’s heirs get the
property?
A. No, since the marriage did not take place.
B. Yes, since all the requisites of a donation of an immovable are present.
C. No, since the donation and its acceptance are not in a public instrument.
D. Yes, since X freely donated the property to Y who became its owner.

8. Rene and Lily got married after a brief courtship. After one month, Lily
discovered that while Rene presented himself as a macho man he was actually
gay. He would not go to bed with her. He kept obscene magazines of nude men
and always sought the company of handsome boys. What legal remedy does
Lily have?
A. She can file an action for annulment of marriage on ground of fraud.
B. She can seek a declaration of nullity of the marriage based on Rene’s
psychological incapacity.
C. She can go abroad and file for divorce in a country that can grant it.
D. She has none since she had the opportunity to examine the goods and freely
entered into the marriage.


9. Lucio executed a simple deed of donation of P50 million on time deposit with a
bank in favor of A, B, C, D, and E, without indicating the share of each donee.
All the donees accepted the donation in writing. A, one of the donees, died. Will
B, C, D, and E get A’s share in the money?
A. Yes, accretion will automatically apply to the joint-donees in equal shares.
B. Yes, since the donor’s intention is to give the whole of P50 million to the jointdonees
in equal shares.
C. No, A”s share will revert to the donor because accretion applies only if the
joint-donees are spouses.
D. No, A’s share goes to his heirs since the donation did not provide for reversion
to donor.


10. Raul, Ester, and Rufus inherited a 10-hectare land from their father. Before
the land could be partitioned, however, Raul sold his hereditary right to Raffy, a
stranger to the family, for P5 million. Do Ester and Rufus have a remedy for
keeping the land within their family?
A. Yes, they may be subrogated to Raffy’s right by reimbursing to him within the
required time what he paid Raul.
B. Yes, they may be subrogated to Raffy’s right provided they buy him out before
he registers the sale.
C. No, they can be subrogated to Raffy’s right only with his conformity.
D. No, since there was no impediment to Raul selling his inheritance to a
stranger.


11. When one exercises a right recognized by law, knowing that he thereby
causes an injustice to another, the latter is entitled to recover damages. This is
known as the principle of
A. res ipsa loquitur.
B. damnum absque injuria.
C. vicarious liability.
D. abuse of rights.


12. Which of the following is NOT a basis for rendering a disinheritance defective
or imperfect?
A. Its cause comes from the guilt of a spouse in a legal separation case, the
innocent-spouse having died.
B. The truth of its cause is denied and not sufficiently proved by evidence.
C. Its cause is not authorized by the law.
D. Its cause is not specified.


13. Manuel came to Manila and married Marianne. Unknown to Marianne,
Manuel had been previously convicted in Palawan of theft and served time for it.
After Marianne learned of his previous conviction, she stopped living with him.
Can Marianne seek the annulment of the marriage based on Manuel’s nondisclosure
of his previous crime?
A. No, since the assumption is that marriage forgives all past wrongs.
B. Yes, since the non-disclosure of that crime is the equivalent of fraud, which is
a ground for annulment.
C. No, in case of doubt, the law must be construed to preserve the institution of
marriage.
D. No, since Manuel already served the penalty for his crime.

14. Arthur and Helen, both Filipinos, got married and had 2 children. Arthur later
worked in Rome where he acquired Italian citizenship. He got a divorce from
Helen in Rome but, on returning to the Philippines, he realized his mistake,
asked forgiveness of his wife, and resumed living with her. They had 2 more
children. What is the status of their 4 children?
A. The children born before the divorce are legitimate but those born after it are
not since Arthur got the divorce when he had ceased to be a Filipino.
B. The divorce rendered illegitimate the children born before it since the marriage
that begot them had been nullified.
C. The children born before and after the divorce are all legitimate since
Philippine law does not recognize divorce.
D. All the children are legitimate since they were born of the same father and
mother.

15. Who can make a donation?
A. All persons who can enter into contracts and dispose of their property.
B. All persons who are of legal age and suffer from no civil interdiction.
C. All persons who can make a last will and testament.
D. All persons, whether natural or artificial, who own property.
16. The liability of the partners, including industrial partners for partnership
contracts entered into in its name and for its account, when all partnership assets
have been exhausted is
A. Pro-rata.
B. Joint.
C. Solidary.
D. Voluntary.
17. When can a missing person who left someone to administer his property be
declared an absentee by the court? When he has been missing for
A. 2 years from the receipt of the last news about him.
B. 7 years from the receipt of the last news about him.
C. 10 years from the receipt of the last news about him.
D. 5 years from the receipt of the last news about him.
18. Which of the following claims against the debtor enjoys preference over the
others with respect to his specific immovable property and real rights?
A. Unpaid price of real property sold, upon the immovable property.
B. Mortgage credits recorded in the registry of property, upon the mortgaged real
estate.
C. Taxes due, upon the land or building.
D. Expenses for the preservation and improvement of property, when the law
authorizes reimbursement, upon the preserved or improved immovable.
19. When bilateral contracts are vitiated with vices of consent, they are rendered
A. rescissible.
B. void.
C. unenforceable.
D. voidable.
20. An agent, authorized by a special power of attorney to sell a land belonging
to the principal succeeded in selling the same to a buyer according to the
instructions given the agent. The agent executed the deed of absolute sale on
behalf of his principal two days after the principal died, an event that neither the
agent nor the buyer knew at the time of the sale. What is the standing of the
sale?
A. Voidable.
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Set A
B. Valid.
C. Void.
D. Unenforceable.
21. Spouses A and B leased a piece of land belonging to B's parents for 25
years. The spouses built their house on it worth P300,000.00. Subsequently, in
a case that C filed against A and B, the court found the latter liable to C for
P200,000.00. When the sheriff was attaching their house for the satisfaction of
the judgment, A and B claimed that it was exempt from execution, being a family
home. Is this claim correct?
A. Yes, because while B’s parents own the land, they agreed to have their
daughter build her family home on it.
B. No, because there is no judicial declaration that it is a family home.
C. No, since the land does not belong to A and B, it cannot qualify as a family
home.
D. Yes, because the A and B’s family actually lives in that house.
22. Solomon sold his coconut plantation to Aragon, Inc. for P100 million, payable
in installments of P10 million per month with 6% interest per annum. Solomon
married Lorna after 5 months and they chose conjugal partnership of gains to
govern their property relations. When they married, Aragon had an unpaid
balance of P50 million plus interest in Solomon’s favor. To whom will Aragon’s
monthly payments go after the marriage?
A. The principal shall go to the conjugal partnership but the interests to Solomon.
B. Both principal and interests shall go to Solomon since they are his exclusive
properties.
C. Both principal and interests shall go to the conjugal partnership since these
become due after the marriage.
D. The principal shall go to Solomon but the interests to the conjugal partnership.
23. X and Y, although not suffering from any impediment, cohabited as husband
and wife without the benefit of marriage. Following the birth of their child, the
couple got married. A year after, however, the court annulled the marriage and
issued a decree of annulment. What is the present status of the child?
A. Legitimated.
B. Illegitimate.
C. Natural child.
D. Legitimate.
24. When A and B married, they chose conjugal partnership of gains to govern
their property relations. After 3 years, B succeeded in getting her marriage to A
annulled on ground of the latter’s psychological incapacity. What liquidation
procedure will they follow in disposing of their assets?
A. They will follow the rule governing the liquidation of a conjugal partnership of
gains where the party who acted in bad faith forfeits his share in the net profits.
B. Since the marriage has been declared void, the rule for liquidation of absolute
community of property shall be followed.
C. The liquidation of a co-ownership applies since the annulment brought their
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Set A
property relation under the chapter on property regimes without marriage.
D. The law on liquidation of partnerships applies.
25. X and Y agreed verbally before their marriage (a) on the paternity of the
illegitimate child of Y and (b) on the economic regime that will govern X and Y’s
property relations. Is the verbal agreement valid?
A. No, because a marriage settlement to be valid should be in writing.
B. Yes, since ante-nuptial agreements need not be in writing.
C. No, because a marriage settlement cannot include an agreement on the
paternity of an illegitimate child.
D. Yes, since even if it is not a valid marriage settlement, it is a valid verbal
contract.
26. Spouses X and Y have a minor daughter, Z, who needs support for her
education. Both X and Y, who are financially distressed, could not give the
needed support to Z. As it happens, Z’s other relatives are financially capable of
giving that support. From whom may Z first rightfully demand support? From her
A. grandfather.
B. brother.
C. uncle.
D. first cousin.
27. Fidel, a Filipino with fair complexion, married Gloria. Before the marriage,
Gloria confessed to Fidel that she was two-month pregnant with the child of a
black African who had left the country for good. When the child was born, Fidel
could not accept it being too black in complexion. What is the status of the child?
A. Illegitimate, because Gloria confessed that the child is not Fidel’s.
B. Illegitimate, because by the color of its skin, the child could not possibly be
that of Fidel.
C. Legitimate, because the child was born within a valid marriage.
D. Legitimate, because Fidel agreed to treat the child as his own after Gloria told
him who the father was.
28. The husband’s acts of forcibly ejecting his wife without just cause from the
conjugal dwelling and refusing to take her back constitutes
A. desertion.
B. recrimination.
C. constructive abandonment.
D. de facto separation.
29. In his will, the testator designated X as a legatee to receive P2 million for the
purpose of buying an ambulance that the residents of his Barangay can use.
What kind of institution is this?
A. a fideicomissary institution.
B. a modal institution.
C. a conditional institution.
D. a collective institution.
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30. X insured himself for P5 million, designating Y, his wife, as his sole
beneficiary. The designation was irrevocable. A few years later, X had their
marriage annulled in court on the ground that Y had an existing prior marriage. X
subsequently died, Is Y entitled to the insurance benefits?
A. Yes, since the insurance was not dependent on the marriage.
B. Yes, since her designation as beneficiary was irrevocable.
C. No, X’s designation of Y is revoked by operation of law upon the annulment of
their marriage based on Y’s fault.
D. Yes, since without judicial revocation, X’s designation of Y remains valid and
binding.
31. May a spouse freely donate communal or conjugal property without the
consent of the other?
A. Absolutely not, since the spouses co-own such property.
B. Yes, for properties that the family may spare, regardless of value.
C. Yes, provided the donation is moderate and intended for charity or family
rejoicing.
D. Yes, in a donation mortis causa that the donor may still revoke in his lifetime.
32. The decedent died intestate leaving an estate of P10 million. He left the
following heirs: a) Marlon, a legitimate child and b) Cecilia, the legal spouse.
Divide the estate.
A. Marlon gets 1/4 and Cecilia gets 3/4.
B. Marlon gets 2/3 and Cecilia 1/3.
C. Marlon gets 1/2 and Cecilia gets 1/2.
D. Marlon gets 3/4 and Cecilia 1/4.
33. Contracts take effect only between the parties or their assigns and heirs,
except where the rights and obligations arising from the contract are not
transmissible by their nature, by stipulation, or by provision of law. In the latter
case, the assigns or the heirs are not bound by the contracts. This is known as
the principle of
A. Relativity of contracts.
B. Freedom to stipulate.
C. Mutuality of contracts.
D. Obligatory force of contracts.
34. A buyer ordered 5,000 apples from the seller at P20 per apple. The seller
delivered 6,000 apples. What are the rights and obligations of the buyer?
A. He can accept all 6,000 apples and pay the seller at P20 per apple.
B. He can accept all 6,000 apples and pay a lesser price for the 1,000 excess
apples.
C. He can keep the 6,000 apples without paying for the 1,000 excess since the
seller delivered them anyway.
D. He can cancel the whole transaction since the seller violated the terms of their
agreement.
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35. Lino entered into a contract to sell with Ramon, undertaking to convey to the
latter one of the five lots he owns, without specifying which lot it was, for the price
of P1 million. Later, the parties could not agree which of five lots he owned Lino
undertook to sell to Ramon. What is the standing of the contract?
A. Unenforceable.
B. Voidable.
C. Rescissible.
D. Void.
36. Knowing that the car had a hidden crack in the engine, X sold it to Y without
informing the latter about it. In any event, the deed of sale expressly stipulated
that X was not liable for hidden defects. Does Y have the right to demand from X
a reimbursement of what he spent to repair the engine plus damages?
A. Yes. X is liable whether or not he was aware of the hidden defect.
B. Yes, since the defect was not hidden; X knew of it but he acted in bad faith in
not disclosing the fact to Y.
C. No, because Y is in estoppel, having changed engine without prior demand.
D. No, because Y waived the warranty against hidden defects.
37. Acme Cannery produced sardines in cans known as “Sards.” Mylene bought
a can of Sards from a store, ate it, and suffered from poisoning caused by a
noxious substance found in the sardines. Mylene filed a case for damages
against Acme. Which of the following defenses will hold?
A. The expiry date of the “Sards” was clearly printed on its can, still the store sold
and Mylene bought it.
B. Mylene must have detected the noxious substance in the sardines by smell,
yet she still ate it.
C. Acme had no transaction with Mylene; she bought the “Sards” from a store,
not directly from Acme.
D. Acme enjoys the presumption of safeness of its canning procedure and
Mylene has not overcome such presumption.
38. Fernando executed a will, prohibiting his wife Marina from remarrying after
his death, at the pain of the legacy of P100 Million in her favor becoming a nullity.
But a year after Fernando’s death, Marina was so overwhelmed with love that
she married another man. Is she entitled to the legacy, the amount of which is
well within the capacity of the disposable free portion of Fernando’s estate?
A. Yes, since the prohibition against remarrying is absolute, it is deemed not
written.
B. Yes, because the prohibition is inhuman and oppressive and violates Marina’s
rights as a free woman.
C. No, because the nullity of the prohibition also nullifies the legacy.
D. No, since such prohibition is authorized by law and is not repressive; she
could remarry but must give up the money.
39. X, the owner, constituted a 10-year usufruct on his land as well as on the
building standing on it in Y’s favor. After flood totally destroyed the building 5
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years later, X told Y that an act of God terminated the usufruct and that he should
vacate the land. Is X, the owner of the land, correct?
A. No, since the building was destroyed through no fault of Y.
B. No, since Y still has the right to use the land and the materials left on it.
C. Yes, since Y cannot use the land without the building.
D. Yes, since the destruction of the building without the X’s fault terminated the
usufruct.
40. In gratitude, the groom’s parents made a donation of a property in writing to
the bride’s parents shortly before their children’s wedding. The donation was
accepted. What is the nature of the donation?
A. It is an ordinary donation since it was not given to the bride or groom.
B. It is donation propter nuptias since it was given with the marriage in mind.
C. It is an indirect donation propter nuptias since the bride would eventually
inherit the property from her parents.
D. It is a remunatory donation.
41. X and Y, both Filipinos, were married and resided in Spain although they
intend to return to the Philippines at some future time. They have not executed
any marriage settlements. What law governs their property relations?
A. They may choose between Spanish law and Philippine law.
B. Philippine law since they are both Filipinos.
C. No regime of property relations will apply to them.
D. Spanish law since they live in Spain.
42. Birth determines personality. Death extinguishes it. Under what
circumstances may the personality of a deceased person continue to exist?
A. In case of re-appearance of a missing person presumed dead.
B. In protecting the works of a deceased under intellectual property laws.
C. In case of declaration of presumptive death of a missing spouse.
D. In the settlement of the estate of a deceased person.
43. Six tenants sued X, the landowner, for willfully denying them water for their
farms, which water happened to flow from land under X’s control, his intention
being to force them to leave his properties. Is X liable for his act and why?
A. No, because the tenants must be content with waiting for rainfall for their
farms.
B. No, since X owns both the land and the water.
C. Yes, because the tenants’ farms have the natural right of access to water
wherever it is located.
D. Yes, since X willfully caused injury to his tenants contrary to morals, good
customs or public policy.
44. Illegitimate brothers and sisters, whether of full or half-blood, are bound to
support each other, EXCEPT when
A. the brother or sister who needs support lives in another place.
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B. such brothers and sisters are not recognized by their father.
C. the brother or sister in need stops schooling without valid reason.
D. the need for support of a brother or sister, already of age, is due to the latter's
fault.
45. Virgilio owned a bare and simple swimming pool in his garden. MB, a 7-year
old child, surreptitiously entered the garden and merrily romped around the
ledges of the pool. He accidentally tripped, fell into the pool, and drowned. MB’s
parents sued Virgilio for damages arising from their child’s death, premised on
the principle of “attractive nuisance”. Is Virgilio liable for the death of MB?
A. No, the child was 7 years old and knew the dangers that the pool offered.
B. Yes, being an attractive nuisance, Virgilio had the duty to prevent children from
coming near it.
C. No, since the pool was bare and had no enticing or alluring gadgets, floats, or
devices in it that would attract a 7-year old child.
D. Yes, since Virgilio did not cover the swimming pool while not in use to prevent
children from falling into it.
46. The term of a 5-year lease contract between X the lessor and Y the lessee,
where rents were paid from month to month, came to an end. Still, Y continued
using the property with X’s consent. In such a case, it is understood that they
impliedly renewed the lease
A. from month to month under the same conditions as to the rest.
B. under the same terms and conditions as before.
C. under the same terms except the rent which they or the court must fix.
D. for only a year, with the rent raised by 10% pursuant to the rental control law.
47. Rex, a philanthropist, donated a valuable lot to the municipality on the
condition that it will build a public school on such lot within 2 years from its
acceptance of the donation. The municipality properly accepted the donation but
did not yet build the public school after 2 years. Can Rex revoke the donation?
A. Yes, since the donation is subject to a resolutory condition which was not
fulfilled.
B. No, but Rex is entitled to recover the value of the land from the municipality.
C. No, the transfer of ownership has been completed.
D. Yes, the donation is not deemed made until the suspensive condition has
been fulfilled.
48. Illegitimate children, those not recognized by their biological fathers, shall use
the surname of their
A. biological father subject to no condition.
B. mother or biological father, at the mother’s discretion.
C. mother.
D. biological father unless he judicially opposes it.
49. Asiong borrowed P1 million from a bank, secured by a mortgage on his land.
Without his consent, his friend Boyong paid the whole loan. Since Asiong
benefited from the payment, can Boyong compel the bank to subrogate him in its
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Set A
right as mortgagee of Asiong's land?
A. No, but the bank can foreclose and pay Boyong back.
B. No, since Boyong paid for Asiong’s loan without his approval.
C. Yes, since a change of creditor took place by novation with the bank’s
consent.
D. Yes, since it is but right that Boyong be able to get back his money and, if not,
to foreclose the mortgage in the manner of the bank.
50. Congress passed a law imposing taxes on income earned out of a particular
activity that was not previously taxed. The law, however, taxed incomes already
earned within the fiscal year when the law took effect. Is the law valid?
A. No, because laws are intended to be prospective, not retroactive.
B. No, the law is arbitrary in that it taxes income that has already been spent.
C. Yes, since tax laws are the lifeblood of the nation.
D. Yes, tax laws are an exception; they can be given retroactive effect.
51. Rudolf borrowed P1 million from Rodrigo and Fernando who acted as
solidary creditors. When the loan matured, Rodrigo wrote a letter to Rudolf,
demanding payment of the loan directly to him. Before Rudolf could comply,
Fernando went to see him personally to collect and he paid him. Did Rudolf
make a valid payment?
A. No, since Rudolf should have split the payment between Rodrigo and
Fernando.
B. No, since Rodrigo, the other solidary creditor, already made a prior demand
for payment from Rudolf.
C. Yes, since the payment covers the whole obligation.
D. Yes, since Fernando was a solidary creditor, payment to him extinguished the
obligation.
52. What happens to the property regimes that were subsisting under the New
Civil Code when the Family Code took effect?
A. The original property regimes are immutable and remain effective.
B. Those enjoying specific regimes under the New Civil Code may adopt the
regime of absolute community of property under the Family Code.
C. Those that married under the New Civil Code but did not choose any of its
regimes shall now be governed by the regime of absolute community of property.
D. They are superseded by the Family Code which has retroactive effect.
53. The testator executed a will following the formalities required by the law on
succession without designating any heir. The only testamentary disposition in
the will is the recognition of the testator's illegitimate child with a popular actress.
Is the will valid?
A. Yes, since in recognizing his illegitimate child, the testator has made him his
heir.
B. No, because the non-designation of heirs defeats the purpose of a will.
C. No, the will comes to life only when the proper heirs are instituted.
D. Yes, the recognition of an illegitimate heir is an ample reason for a will.
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Set A
54. A left B, his wife, in the Philippines to work in Egypt but died in that country
after a year’s continuous stay. Two months after A’s death, B gave birth to a
child, claiming it is A’s child. Who can assail the legitimacy of the child?
A. A’s other heirs apart from B.
B. The State which has interest in the welfare of overseas contract workers.
C. Any one who is outraged by B’s claim.
D. No one since A died.
55. QR and TS who had a marriage license requested a newly appointed Judge
in Manila to marry them on the beach of Boracay. Since the Judge maintained
Boracay as his residence, he agreed. The sponsors were all public officials.
What is the status of the marriage.
A. Valid, since the improper venue is merely an irregularity; all the elements of a
valid marriage are present.
B. Void, because the couple did not get local permit for a beach wedding.
C. Voidable, because the Judge acted beyond his territorial jurisdiction and is
administratively liable for the same.
D. Void, because the Judge did not solemnize the marriage within the premises
of his court.
56. X and Y, Filipinos, got married in Los Angeles, USA, using a marriage license
issued by the Philippine consul in Los Angeles, acting as Civil Registrar. X and Y
did not know that they were first cousins because their mothers, who were
sisters, were separated when they were quite young. Since X did not want to
continue with the relation when he heard of it, he left Y, came to the Philippines
and married Z. Can X be held liable for bigamy?
A. No since X’s marriage to Y is void ab initio or did not exist.
B. No since X acted in good faith, conscious that public policy did not approve of
marriage between first cousins.
C. Yes since he married Z without first securing a judicial declaration of nullity of
his marriage to Y.
D. Yes since his first marriage to Y in Los Angeles is valid.
57. Allan bought Billy’s property through Carlos, an agent empowered with a
special power of attorney (SPA) to sell the same. When Allan was ready to pay
as scheduled, Billy called, directing Allan to pay directly to him. On learning of
this, Carlos, Billy's agent, told Allan to pay through him as his SPA provided and
to protect his commission. Faced with two claimants, Allan consigned the
payment in court. Billy protested, contending that the consignation is ineffective
since no tender of payment was made to him. Is he correct?
A. No, since consignation without tender of payment is allowed in the face of the
conflicting claims on the plaintiff.
B. Yes, as owner of the property sold, Billy can demand payment directly to
himself.
C. Yes, since Allan made no announcement of the tender.
D. Yes, a tender of payment is required for a valid consignation.
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Set A
58. X sold Y 100 sacks of rice that Y was to pick up from X’s rice mill on a
particular date. Y did not, however, appear on the agreed date to take delivery of
the rice. After one week, X automatically rescinded the sale without notarial
notice to Y. Is the rescission valid?
A. Yes, automatic rescission is allowed since, having the character of movables
and consumables, rice can easily deteriorate.
B. No, the buyer is entitled to a customary 30-day extension of his obligation to
take delivery of the goods.
C. No, since there was no express agreement regarding automatic rescission.
D. No, the seller should first determine that Y was not justified in failing to appear.
59. The wife filed a case of legal separation against her husband on the ground
of sexual infidelity without previously exerting earnest efforts to come to a
compromise with him. The judge dismissed the case for having been filed
without complying with a condition precedent. Is the dismissal proper?
A. No, efforts at a compromise will only deepen the wife’s anguish.
B. No, since legal separation like validity of marriage is not subject to
compromise agreement for purposes of filing.
C. Yes, to avoid a family feud that is hurtful to everyone.
D. Yes, since the dispute could have been settled with the parties agreeing to
legal separation.
60. An Australian living in the Philippines acquired shares of stock worth P10
million in food manufacturing companies. He died in Manila, leaving a legal wife
and a child in Australia and a live-in partner with whom he had two children in
Manila. He also left a will, done according to Philippine laws, leaving all his
properties to his live-in partner and their children. What law will govern the
validity of the disposition in the will?
A. Australia law since his legal wife and legitimate child are Australians and
domiciled in Australia.
B. Australian law since the intrinsic validity of the provisions of a will is governed
by the decedent’s national law.
C. Philippine law since the decedent died in Manila and he executed his will
according to such law.
D. Philippine law since the decedent’s properties are in the Philippines.
61. X bought a land from Y, paying him cash. Since they were friends, they did
not execute any document of sale. After 7 years, the heirs of X asked Y to
execute a deed of absolute sale to formalize the verbal sale to their father.
Unwilling to do so, X’s heirs filed an action for specific performance against Y.
Will their action prosper?
A. No, after more than 6 years, the action to enforce the verbal agreement has
already elapsed.
B. No, since the sale cannot under the Statute of Frauds be enforced.
C. Yes, since X bought the land and paid Y for it.
D. Yes, after full payment, the action became imprescriptible.
62. A court declared Ricardo, an old bachelor, an absentee and appointed Cicero
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Set A
administrator of his property. After a year, it was discovered that Ricardo had
died abroad. What is the effect of the fact of his death on the administration of
his property?
A. With Ricardo no longer an absentee but a deceased person, Cicero will cease
to be administrator of his properties.
B. The administration shall be given by the court having jurisdiction over the
intestate proceedings to a new administrator whom it will appoint.
C. Cicero automatically becomes administrator of Ricardo’s estate until judicially
relieved.
D. Cicero’s alienations of Ricardo's property will be set aside.
63. Baldo, a rejected suitor, intimidated Judy into marrying him. While she
wanted to question the validity of their marriage two years after the intimidation
ceased, Judy decided in the meantime to freely cohabit with Baldo. After more
than 5 years following their wedding, Judy wants to file a case for annulment of
marriage against Baldo on ground of lack of consent. Will her action prosper?
A. Yes, the action for annulment is imprescriptible.
B. No, since the marriage was merely voidable and Judy ratified it by freely
cohabiting with Baldo after the force and intimidation had ceased .
C. No, since the action prescribed 5 years from the date of the celebration of the
marriage.
D. Yes, because the marriage was celebrated without Judy's consent freely
given.
64. Is the wife who leaves her husband without just cause entitled to support?
A. No, because the wife must always be submissive and respectful to the
husband.
B. Yes. The marriage not having been dissolved, the husband continues to have
an obligation to support his wife.
C. No, because in leaving the conjugal home without just cause, she forfeits her
right to support.
D. Yes, since the right to receive support is not subject to any condition.
65. In the order of intestate succession where the decedent is legitimate, who is
the last intestate heirs or heir who will inherit if all heirs in the higher level are
disqualified or unable to inherit?
A. Nephews and nieces.
B. Brothers and sisters.
C. State.
D. Other collateral relatives up to the 5th degree of consanguinity.
66. Roy and Carlos both undertook a contract to deliver to Sam in Manila a boat
docked in Subic. Before they could deliver it, however, the boat sank in a storm.
The contract provides that fortuitous event shall not exempt Roy and Carlos from
their obligation. Owing to the loss of the motor boat, such obligation is deemed
converted into one of indemnity for damages. Is the liability of Roy and Carlos
joint or solidary?
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A. Neither solidary nor joint since they cannot waive the defense of fortuitous
event to which they are entitled.
B. Solidary or joint upon the discretion of Sam.
C. Solidary since Roy and Carlos failed to perform their obligation to deliver the
motor boat.
D. Joint since the conversion of their liability to one of indemnity for damages
made it joint.
67. Joanne married James, a person with no known relatives. Through James'
hard work, he and his wife Joane prospered. When James died, his estate alone
amounted to P100 million. If, in his will, James designates Joanne as his only
heir, what will be the free portion of his estate.
A. Joanne gets all; estate has no free portion left.
B. Joanne gets 1/2; the other half is free portion.
C. Joanne gets 1/3; the remaining 2/3 is free portion.
D. Joanne gets 1/4; the remaining 3/4 is free portion.
68. A warranty inherent in a contract of sale, whether or not mentioned in it, is
known as the
A. warranty on quality.
B. warranty against hidden defects.
C. warranty against eviction.
D. warranty in merchantability.
69. The doctrine of stare decisis prescribes adherence to precedents in order to
promote the stability of the law. But the doctrine can be abandoned
A. When adherence to it would result in the Government’s loss of its case.
B. When the application of the doctrine would cause great prejudice to a foreign
national.
C. When necessary to promote the passage of a new law.
D. When the precedent has ceased to be beneficial and useful.
70. Ric and Josie, Filipinos, have been sweethearts for 5 years. While working in
a European country where the execution of joint wills are allowed, the two of
them executed a joint holographic will where they named each other as sole heir
of the other in case either of them dies. Unfortunately, Ric died a year later. Can
Josie have the joint will successfully probated in the Philippines?
A. Yes, in the highest interest of comity of nations and to honor the wishes of the
deceased.
B. No, since Philippine law prohibits the execution of joint wills and such law is
binding on Ric and Josie even abroad.
C. Yes, since they executed their joint will out of mutual love and care, values
that the generally accepted principles of international law accepts.
D. Yes, since it is valid in the country where it was executed, applying the
principle of “lex loci celebrationis.”
71. ML inherited from his father P5 million in legitime but he waived it in a public
instrument in favor of his sister QY who accepted the waiver in writing. But as it
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happened, ML borrowed P6 million from PF before the waiver. PF objected to
the waiver and filed an action for its rescission on the ground that he had the
right to ML’s P5 million legitime as partial settlement of what ML owed him since
ML has proved to be insolvent. Does PF, as creditor, have the right to rescind the
waiver?
A. No, because the waiver in favor of his sister QY amounts to a donation and
she already accepted it.
B. Yes, because the waiver is prejudicial to the interest of a third person whose
interest is recognized by law.
C. No, PF must wait for ML to become solvent and, thereafter, sue him for the
unpaid loan.
D. Yes, because a legitime cannot be waived in favor of a specific heir; it must be
divided among all the other heirs.
72. While engaged to be married, Arnold and Josephine agreed in a public
instrument to adopt out the economic regime of absolute community of property.
Arnold acknowledged in the same instrument that Josephine’s daughter Mary, is
his illegitimate child. But Josephine died before the marriage could take place.
Does the marriage settlement have any significance?
A. None, since the instrument containing the marriage settlement is essentially
void for containing an unrelated matter.
B. Yes, insofar as Arnold acknowledged Mary as his illegitimate child.
C. None, since the marriage did not take place.
D. Yes, if they acquired properties while living together as husband and wife.
73. Joseph, a 17-year old Filipino, married Jenny, a 21-year old American in
Illinois, USA, where the marriage was valid. Their parents gave full consent to
the marriage of their children. After three years, Joseph filed a petition in the
USA to promptly divorce Jenny and this was granted. When Joseph turned 25
years, he returned to the Philippines and married Leonora. What is the status of
this second marriage?
A. Void, because he did not cause the judicial issuance of declaration of the
nullity of his first marriage to Jenny before marrying Leonora.
B. Valid, because Joseph's marriage to Jenny is void, he being only 17 years of
age when he married her.
C. Valid, because his marriage to Leonora has all the elements of a valid
marriage.
D. Void, because Joseph is still considered married to Jenny since the
Philippines does not recognize divorce.
74. T died intestate, leaving an estate of P9,000,000. He left as heirs three
legitimate children, namely, A, B, and C. A has two children, D and E. Before he
died, A irrevocably repudiated his inheritance from T in a public instrument filed
with the court. How much, if any, will D and E, as A’s children, get from T’s
estate?
A. Each of D and E will get P1,500,000 by right of representation since their
father repudiated his inheritance.
B. Each of D and E will get P2,225,000 because they will inherit from the estate
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equally with B and C.
C. D and E will get none because of the repudiation; “B” and “C” will get A’s share
by right of accretion.
D. Each of D and E will get P2,000,000 because the law gives them some
advantage due to the demise of “A”.
75. No decree of legal separation can be issued
A. unless the children’s welfare is attended to first.
B. without prior efforts at reconciliation shown to be futile.
C. unless the court first directs mediation of the parties.
D. without prior investigation conducted by a public prosecutor.
76. X, who was abroad, phoned his brother, Y, authorizing him to sell X’s parcel
of land in Pasay. X sent the title to Y by courier service. Acting for his brother, Y
executed a notarized deed of absolute sale of the land to Z after receiving
payment. What is the status of the sale?
A. Valid, since a notarized deed of absolute sale covered the transaction and full
payment was made.
B. Void, since X should have authorized agent Y in writing to sell the land.
C. Valid, since Y was truly his brother X’s agent and entrusted with the title
needed to effect the sale.
D. Valid, since the buyer could file an action to compel X to execute a deed of
sale.
77. In a true pacto de retro sale, the title and ownership of the property sold are
immediately vested in the vendee a retro subject only to the resolutory condition
of repurchase by the vendor a retro within the stipulated period. This is known as
A. equitable mortgage.
B. conventional redemption.
C. legal redemption.
D. equity of redemption.
78. A natural obligation under the New Civil Code of the Philippines is one which
A. the obligor has a moral obligation to do, otherwise entitling the obligee to
damages.
B. refers to an obligation in writing to do or not to do.
C. the obligee may enforce through the court if violated by the obligor.
D. cannot be judicially enforced but authorizes the obligee to retain the obligor’s
payment or performance.
79. The husband assumed sole administration of the family’s mango plantation
since his wife worked abroad. Subsequently, without his wife’s knowledge, the
husband entered into an antichretic transaction with a company, giving it
possession and management of the plantation with power to harvest and sell the
fruits and to apply the proceeds to the payment of a loan he got. What is the
standing of the contract?
A. It is void in the absence of the wife’s consent.
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B. It is void absent an authorization from the court.
C. The transaction is void and can neither be ratified by the wife nor authorized
by the court.
D. It is considered a continuing offer by the parties, perfected only upon the wife’s
acceptance or the court’s authorization.
80. When the donor gives donations without reserving sufficient funds for his
support or for the support of his dependents, his donations are
A. Rescissible, since it results in economic lesion of more than 25% of the value
of his properties.
B. Voidable, since his consent to the donation is vitiated by mindless kindness.
C. Void, since it amounts to wanton expenditure beyond his means.
D. Reducible to the extent that the donations impaired the support due to himself
and his dependents.
81. Anne owed Bessy P1 million due on October 1, 2011 but failed to pay her on
due date. Bessy sent a demand letter to Anne giving her 5 days from receipt
within which to pay. Two days after receipt of the letter, Anne personally offered
to pay Bessy in manager's check but the latter refused to accept the same. The
5 days lapsed. May Anne’s obligation be considered extinguished?
A. Yes, since Bessy’s refusal of the manager’s check, which is presumed funded,
amounts to a satisfaction of the obligation.
B. No, since tender of payment even in cash, if refused, will not discharge the
obligation without proper consignation in court.
C. Yes, since Anne tendered payment of the full amount due.
D. No, since a manager’s check is not considered legal tender in the Philippines.
82. The residents of a subdivision have been using an open strip of land as
passage to the highway for over 30 years. The owner of that land decided,
however, to close it in preparation for building his house on it. The residents
protested, claiming that they became owners of the land through acquisitive
prescription, having been in possession of the same in the concept of owners,
publicly, peacefully, and continuously for more than 30 years. Is this claim
correct?
A. No, the residents have not been in continuous possession of the land since
they merely passed through it in going to the highway.
B. No, the owner did not abandon his right to the property; he merely tolerated
his neighbors’ use of it for passage.
C. Yes, residents of the subdivision have become owners by acquisitive
prescription.
D. Yes, community ownership by prescription prevails over private claims.
83. The owner of a thing cannot use it in a way that will injure the right of a third
person. Thus, every building or land is subject to the easement which prohibits its
proprietor or possessor from committing nuisance like noise, jarring, offensive
odor, and smoke. This principle is known as
A. Jus vindicandi.
B. Sic utere tuo ut alienum non laedas.
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C. Jus dispondendi.
D. Jus abutendi.
84. Janice and Jennifer are sisters. Janice sued Jennifer and Laura, Jennifer’s
business partner for recovery of property with damages. The complaint did not
allege that Janice exerted earnest efforts to come to a compromise with the
defendants and that such efforts failed. The judge dismissed the complaint
outright for failure to comply with a condition precedent. Is the dismissal in
order?
A. No, since Laura is a stranger to the sisters, Janice has no moral obligation to
settle with her.
B. Yes, since court should promote amicable settlement among relatives.
C. Yes, since members of the same family, as parties to the suit, are required to
exert earnest efforts to settle their disputes before coming to court.
D. No, the family council, which would ordinarily mediate the dispute, has been
eliminated under the Family Code.
85. X borrowed money from a bank, secured by a mortgage on the land of Y, his
close friend. When the loan matured, Y offered to pay the bank but it refused
since Y was not the borrower. Is the bank’s action correct?
A. Yes, since X, the true borrower, did not give his consent to Y’s offer to pay.
B. No, since anybody can discharge X’s obligation to his benefit.
C. No, since Y, the owner of the collateral, has an interest in the payment of the
obligation.
D. Yes, since it was X who has an obligation to the bank.
86. The right of a mortgagor in a judicial foreclosure to redeem the mortgaged
property after his default in the performance of the conditions of the mortgage but
before the sale of the mortgaged property or confirmation of the sale by the court,
is known as
A. accion publiciana.
B. equity of redemption.
C. pacto de retro.
D. right of redemption.
87. When does the regime of conjugal partnership of gains begin to exist?
A. At the moment the parties take and declare each other as husband and wife
before officiating officer.
B. At the time the spouses acquire properties through joint efforts.
C. On the date the future spouses executed their marriage settlements because
this is the starting point of their marital relationship.
D. On the date agreed upon by the future spouses in their marriage settlements
since their agreement is the law between them.
88. Josie, 18, married Dante, 25, without her parents’ knowledge and consent,
and lived with him. After a year, Josie returned to her parents’ home, complained
of the unbearable battering she was getting from Dante, and expressed a desire
to have her marriage with him annulled. Who may bring the action?
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A. Dante.
B. Her parents.
C. Josie herself.
D. The State.
89. X, a married man, cohabited with Y, an unmarried woman. Their relation bore
them BB, a baby boy. Subsequently, after X became a widower, he married Y.
Was BB legitimated by that marriage?
A. Yes, since his parents are now lawfully married.
B. Yes, since he is an innocent party and the marriage rectified the wrong done
him.
C. No, since once illegitimate, a child shall always remain illegitimate.
D. No, since his parents were not qualified to marry each other when he was
conceived.
90. The presence of a vice of consent vitiates the consent of a party in a contract
and this renders the contract
A. Rescissible.
B. Unenforceable.
C. Voidable.
D. Void.
91. Can common-law spouses donate properties of substantial value to one
another?
A. No, they are only allowed to give moderate gifts to each other during family
rejoicing.
B. No, they cannot give anything of value to each other to prevent placing their
legitimate relatives at a disadvantage.
C. Yes, unlike the case of legally married spouses, such donations are not
prohibited.
D. Yes, as long as they leave sufficient property for themselves and for their
dependents.
92. X owed Y P1.5 million. In his will, X gave Y legacy of P1 million but the will
provided that this legacy is to be set off against the P1.5 million X owed Y. After
the set off, X still owed Y P500,000. Can Y still collect this amount?
A. Yes, because the designation of Y as legatee created a new and separate
juridical relationship between them, that of testator-legatee.
B. It depends upon the discretion of the probate court if a claim is filed in the
testate proceedings.
C. No, because the intention of the testator in giving the legacy is to abrogate his
entire obligation to Y.
D. No, because X had no instruction in his will to deliver more than the legacy of
P1 million to Y.
93. Josie owned a lot worth P5 million prior to her marriage to Rey.
Subsequently, their conjugal partnership spent P3 million for the construction of a
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house on the lot. The construction resulted in an increase in the value of the
house and lot to P9 million. Who owns the house and the lot?
A. Josie and the conjugal partnership of gains will own both on a 50-50 basis.
B. Josie will own both since the value of the house and the increase in the
property’s value is less than her lot’s value; but she is to reimburse conjugal
partnership expenses.
C. Josie still owns the lot, it being her exclusive property, but the house belongs
to the conjugal partnership.
D. The house and lot shall both belong to the conjugal partnership, with Josie
entitled to reimbursement for the value of the lot.
94. An action for reconveyance of a registered piece of land may be brought
against the owner appearing on the title based on a claim that the latter merely
holds such title in trust for the plaintiff. The action prescribes, however, within 10
years from the registration of the deed or the date of the issuance of the
certificate of title of the property as long as the trust had not been repudiated.
What is the exception to this 10-year prescriptive period?
A. When the plaintiff had no notice of the deed or the issuance of the certificate
of title.
B. When the title holder concealed the matter from the plaintiff.
C. When fortuitous circumstances prevented the plaintiff from filing the case
sooner.
D. When the plaintiff is in possession of the property.
95. Conrad and Linda, both 20 years old, applied for a marriage license, making
it appear that they were over 25. They married without their parents’ knowledge
before an unsuspecting judge. After the couple has been in cohabitation for 6
years, Linda’s parents filed an action to annul the marriage on ground of lack of
parental consent. Will the case prosper?
A. No, since only the couple can question the validity of their marriage after they
became 21 of age; their cohabitation also convalidated the marriage.
B. No, since Linda’s parents made no allegations that earnest efforts have been
made to come to a compromise with Conrad and Linda and which efforts failed.
C. Yes, since the marriage is voidable, the couple being below 21 years of age
when they married.
D. Yes, since Linda’s parents never gave their consent to the marriage.
96. Pepito executed a will that he and 3 attesting witnesses signed following the
formalities of law, except that the Notary Public failed to come. Two days later,
the Notary Public notarized the will in his law office where all signatories to the
will acknowledged that the testator signed the will in the presence of the
witnesses and that the latter themselves signed the will in the presence of the
testator and of one another. Was the will validly notarized?
A. No, since it was not notarized on the occasion when the signatories affixed
their signatures on the will.
B. Yes, since the Notary Public has to be present only when the signatories
acknowledged the acts required of them in relation to the will.
C. Yes, but the defect in the mere notarization of the will is not fatal to its
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execution.
D. No, since the notary public did not require the signatories to sign their
respective attestations again.
97. Venecio and Ester lived as common-law spouses since both have been
married to other persons from whom they had been separated in fact for several
years. Hardworking and bright, each earned incomes from their respective
professions and enterprises. What is the nature of their incomes?
A. Conjugal since they earned the same while living as husband and wife.
B. Separate since their property relations with their legal spouses are still
subsisting.
C. Co-ownership since they agreed to work for their mutual benefit.
D. Communal since they earned the same as common-law spouses.
98. What is the prescriptive period for filing an action for revocation of a donation
based on acts of ingratitude of the donee?
A. 5 years from the perfection of the donation.
B. 1 year from the perfection of the donation.
C. 4 years from the perfection of the donation.
D. Such action does not prescribe.
99. Before Karen married Karl, she inherited P5 million from her deceased
mother which amount she brought into the marriage. She later used part of the
money to buy a new Mercedes Benz in her name, which Karen and her husband
used as a family car. Is the car a conjugal or Karen’s exclusive property?
A. It is conjugal property since the spouses use it as a family car.
B. It is Karen’s exclusive property since it is in her name.
C. It is conjugal property having been bought during the marriage.
D. It is Karen’s exclusive property since she bought it with her own money.
100. Because of X’s gross negligence, Y suffered injuries that resulted in the
abortion of the foetus she carried. Y sued X for, among other damages, P1
million for the death of a family member. Is Y entitled to indemnity for the death
of the foetus she carried?
A. Yes, since the foetus is already regarded as a child from conception, though
unborn.
B. No, since X’s would not have known that the accident would result in Y’s
abortion.
C. No, since birth determines personality, the accident did not result in the death
of a person.
D. Yes, since the mother believed in her heart that she lost a child.
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