G.R. No.

L-5028

November 26, 1952

Wherefore this expediente will be returned to the lower court for further proceedings in accordance with this opinion. So ordered. G.R. No. L-8166 February 8, 1916

FELIPE CABAGUE and GERONIMO CABAGUE, plaintiffs-appellants, vs. MATIAS AUXILIO and SOCORRO AUXILIO, defendants-appellees. BENGZON, J.: According to the Rules of Court parol evidence is not admissible to prove an agreement made upon the consideration of marriage other than a mutual promise to marry.1 This litigation calls for application of that rule. In the justice of the peace court of Basud, Camarines Norte, Felipe Cabague and his son Geronimo sued the defendant Matias Auxilio and his daughter Socorro to recover damages resulting from defendants' refusal to carry out the previously agreed marriage between Socorro and Geronimo. The complaint alleged, in short: (a) that defendants promised such marriage to plaintiffs, provided the latter would improve the defendants' house in Basud and spend for the wedding feast and the needs of the bride; (b) that relying upon such promises plaintiffs made the improvement and spent P700; and (c) that without cause defendants refused to honor their pledged word. The defendants moved to dismiss, arguing that the contract was oral, unenforceable under the rule of evidence hereinbefore mentioned. And the court dismissed the case. On appeal to the Court of First Instance, the plaintiffs reproduced their complaint and defendants reiterated their motion to dismiss. From an order of dismissal this appeal was perfected in due time and form. It should be observed preliminarily that, under the former rules of procedure, when the complaint did not state whether the contract sued on was in writing or not, the statute of frauds could be no ground for demurrer. Under the new Rules "defendant may now present a motion to dismiss on the ground that the contract was not in writing, even if such fact is not apparent on the face of the complaint. The fact may be proved by him." (Moran Rules of Court 2d ed. p. 139 Vol. I.) There is no question here that the transaction was not in writing. The only issue is whether it may be proved in court. The understanding between the plaintiffs on one side and the defendants on the other, really involves two kinds of agreement. One, the agreement between Felipe Cabague and the defendants in consideration of the marriage of Socorro and Geronimo. Another, the agreement between the two lovers, as "a mutual promise to marry". For breach of that mutual promise to marry, Geronimo may sue Socorro for damages. This is such action, and evidence of such mutual promise is admissible.2 However Felipe Cabague's action may not prosper, because it is to enforce an agreement in consideration of marriage. Evidently as to Felipe Cabague and Matias Auxilio this action could not be maintained on the theory of "mutual promise to marry".3 Neither may it be regarded as action by Felipe against Socorro "on a mutual promise to marry." Consequently, we declare that Geronimo may continue his action against Socorro for such damages as may have resulted from her failure to carry out their mutual matrimonial promises.

JORGE DOMALAGAN, plaintiff-appellee, vs. CARLOS BOLIFER, defendant-appellant. JOHNSON, J.: This action was commenced in the Court of First Instance of the Province of Misamis, on the 17th of December, 1910. It was not presented to the Supreme Court until the 11th of January 1916. Its purpose was to recover of the defendant the sum of P516, together with damages estimated in the sum of P350 and interest, and costs. In support of his claim the plaintiff alleged that, in the month of November, 1909, he and the defendant entered into a contract by virtue of the terms of which he was to pay to the defendant the sum of P500 upon the marriage of his son Cipriano Domalagan with the daughter of the defendant, Bonifacia Bolifer, that later, in the month of August, 1910, he completed his obligation under said contract by paying to the defendant the said sum of 500, together with the further sum of P16 "as hansel or token of future marriage," that, notwithstanding said agreement, the said Bonifacio Bolifer, in the month of August, 1910, was joined in lawful wedlock to Laureano Sisi; that immediately upon learning of the marriage of Bonifacia Bolifer he demanded of the defendant the return of the said sum of P516 together with the interest and damages; that the damages which he suffered resulted from the fact that he, in order to raise said sum of P500, was obliged to sell certain real property belonging to him, located in the Province of Bohol, at a great sacrifice. To the complaint the defendant presented a general denial. He also alleged that the facts stated in the complaint do not constitute a cause of action. Upon the issue presented the cause was brought on for trial. After hearing the evidence the Honorable Vicente Nepomuceno, judge, in an extended opinion in which all of the evidence adduced during the trial of the cause is carefully analyzed reached the conclusion "of fact that plaintiff delivered to defendant the sum of P516 sued for and that Carlos Bolifer and Laureana Loquero received and did not return the said amount," and for the reason that the evidence did not sufficiently show that the plaintiff had suffered any additional damages, rendered a judgment in favor of the plaintiff and against the defendant in said sum of P516 together with the interest at the rate of 6 per cent from the 17th of December, 1910, and costs. From that judgment the defendant appealed to this court and made the following assignments of error: 1. In holding to be proven the fact of the delivery by the plaintiff of the sum of P516 to the defendant, Carlos Bolifer; and 2. In holding to be valid and effective the verbal contract entered into by the plaintiff and the defendant in regard to the delivery of the money by reason of a prospective marriage. The first assignment of error presents a question of fact. The lower court found that a large preponderance of the evidence showed that the plaintiff had delivered to the defendant the sum of P516 in substantially the manner alleged in the complaint. Taking into consideration that the lower court saw and heard the witnesses, together with the further fact that there is an abundance of uncontradicted proof supporting the

findings of the lower court, we are not inclined to disturb its judgment for any of the reasons given by the appellant in support of his first assignment of error. With reference to the second assignment of error, the appellant calls our attention to the provisions of paragraph 3 of section 335 of the Code of Procedure in Civil Action. The appellant argues that by virtue of the provisions of said paragraph and by virtue of the fact that the agreement upon which the plaintiff relies and under which he paid to the defendant the sum of P516 had not been reduced to writing, he could therefore not recover. The appellant contends that a contract, such as the one relied upon by the plaintiff, in order to be valid, must be reduced to writing. We have examined the record in vain to find that the defendant during the trial of the cause objected to any proof or any part thereof, presented by the plaintiff which showed or tended to show the existence of the alleged contract. That part of said section 335 which the appellant relies upon for relief provides: In the following cases an agreement hereafter made shall be unenforceable by action unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement can not be received without the writing or secondary evidence of its contents: 1. . . . 2. . . . 3. An agreement made upon the consideration of marriage, other than a mutual promise to marry. It will be noted, by reference to said section, that "evidence " of the agreement referred to "can not be received without the writing or secondary evidence of its contents." As was said above all of the "evidence" relating to said "agreement" was admitted without the slightest objection. Said section (335) does not render oral contracts invalid. A contract may be valid and yet, by virtue of said section, the parties will be unable to prove it. Said section provides that the contract shall not be enforced by an action unless the same is evidence by some note or memorandum. Said section simply provides the method by which the contract mentioned therein may be proved. It does not declare that said contract are invalid, which have not been reduced to writing, except perhaps those mentioned in paragraph 5 of said section (335). A contract may be a perfectly valid contract even though it is not clothed with the necessary form. If it is not made in confirmity with said section of course it cannot be proved, if proper objection is made. But a failure to except to evidence presented in order to prove the contract, because it does not conform to the statute, is a waiver of the provisions of the law. If the parties to an action, during the trial of the cause, make no objection to the admissibility of oral evidence to support contracts like the one in question and permit the contract to be proved, by evidence other than a writing, it will be just as binding upon the parties as if it had been reduced to writing. (Anson on Contracts, p. 75; Conlu vs. Araneta and Guanko, 15 Phil. Rep., 387; Gallemit vs. Tabiliran, 20 Phil. Rep., 241, 246; Kuenzle and Streiff vs. Joingco, 22 Phil. Rep., 110, 112; Gomez vs. Salcedo, 26 Phil. Rep., 485, 489.) For the foregoing reasons we find nothing in the record justifying a reversal or modification of the judgment of the lower court based upon either assignment of error. Therefore the judgment of the lower court is hereby affirmed, with costs. So ordered.

FRANCISCO HERMOSISIMA, petitioner, vs. THE HON. COURT OF APPEALS, ET AL., respondents. CONCEPCION, J.: An appeal by certiorari, taken by petitioner Francisco Hermosisima, from a decision of Court of Appeals modifying that of the Court of First Instance of Cebu. On October 4, 1954, Soledad Cagigas, hereinafter referred to as complaint, filed with said of her child, Chris Hermosisima, as natural child and moral damages for alleged breach of promise. Petitioner admitted the paternity of child and expressed willingness to support the latter, but denied having ever promised to marry the complainant. Upon her motion, said court ordered petitioner, on October 27, 1954, to pay, by way of alimony pendente lite, P50.00 a month, which was, on February 16, 1955, reduced to P30.00 a month. In due course, later on, said court rendered a decision the dispositive part of which reads: WHEREFORE, judgment is hereby rendered, declaring the child, Chris Hermosisima, as the natural daughter of defendant, and confirming the order pendente lite, ordering defendant to pay to the said child, through plaintiff, the sum of thirty pesos (P30.00), payable on or before the fifth day of every month sentencing defendant to pay to plaintiff the sum of FOUR THOUSAND FIVE HUNDRED PESOS (P4,500.00) for actual and compensatory damages; the sum of FIVE THOUSAND PESOS (P5,000.00) as moral damages; and the further sum of FIVE HUNDRED PESOS (P500.00) as attorney's fees for plaintiff, with costs against defendant. On appeal taken by petitioner, the Court of Appeals affirmed this decision, except as to the actual and compensatory damages and the moral damages, which were increased to P5,614.25 and P7,000.00, respectively. The main issue before us is whether moral damages are recoverable, under our laws, for breach of promise to marry. The pertinent facts are: Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then a teacher in the Sibonga Provincial High School in Cebu, and petitioner, who was almost ten (10) years younger than she, used to go around together and were regarded as engaged, although he had made no promise of marriage prior thereto. In 1951, she gave up teaching and became a life insurance underwriter in the City of Cebu, where intimacy developed among her and the petitioner, since one evening in 1953, when after coming from the movies, they had sexual intercourse in his cabin on board M/V "Escao," to which he was then attached as apprentice pilot. In February 1954, Soledad advised petitioner that she was in the family way, whereupon he promised to marry her. Their child, Chris Hermosisima, was born on June 17, 1954, in a private maternity and clinic. However, subsequently, or on July 24, 1954, defendant married one Romanita Perez. Hence, the present action, which was commenced on or about October 4, 1954. Referring now to the issue above referred to, it will be noted that the Civil Code of Spain permitted the recovery of damages for breach to marry. Article 43 and 44 of said Code provides: ART. 43. A mutual promise of marriage shall not give rise to an obligation to contract marriage. No court shall entertain any complaint by which the enforcement of such promise is sought.

ART. 44. If the promise has been in a public or private instrument by an adult, or by a minor with the concurrence of the person whose consent is necessary for the celebration of the marriage, or if the banns have been published, the one who without just cause refuses to marry shall be obliged to reimburse the other for the expenses which he or she may have incurred by reason of the promised marriage. The action for reimbursement of expenses to which the foregoing article refers must be brought within one year, computed from the day of the refusal to celebrate the marriage. Inasmuch as these articles were never in force in the Philippines, this Court ruled in De Jesus vs. Syquia (58 Phil., 866), that "the action for breach of promises to marry has no standing in the civil law, apart from the right to recover money or property advanced . . . upon the faith of such promise". The Code Commission charged with the drafting of the Proposed Civil Code of the Philippines deem it best, however, to change the law thereon. We quote from the report of the Code Commission on said Proposed Civil Code: Articles 43 and 44 the Civil Code of 1889 refer to the promise of marriage. But these articles are not enforced in the Philippines. The subject is regulated in the Proposed Civil Code not only as to the aspect treated of in said articles but also in other particulars. It is advisable to furnish legislative solutions to some questions that might arise relative to betrothal. Among the provisions proposed are: That authorizing the adjudication of moral damages, in case of breach of promise of marriage, and that creating liability for causing a marriage engagement to be broken.1awphl.nt Accordingly, the following provisions were inserted in said Proposed Civil Code, under Chapter I, Title III, Book I thereof: Art. 56. A mutual promise to marry may be made expressly or impliedly. Art. 57. An engagement to be married must be agreed directly by the future spouses. Art. 58. A contract for a future marriage cannot, without the consent of the parent or guardian, be entered into by a male between the ages of sixteen and twenty years or by a female between the ages of sixteen and eighteen years. Without such consent of the parents or guardian, the engagement to marry cannot be the basis of a civil action for damages in case of breach of the promise. Art. 59. A promise to marry when made by a female under the age of fourteen years is not civilly actionable, even though approved by the parent or guardian. Art. 60. In cases referred to in the proceeding articles, the criminal and civil responsibility of a male for seduction shall not be affected. Art. 61. No action for specific performance of a mutual promise to marry may be brought. Art. 62. An action for breach of promise to marry may be brought by the aggrieved party even though a minor without the assistance of his parent or

guardian. Should the minor refuse to bring suit, the parent or guardian may institute the action. Art. 63. Damages for breach of promise to marry shall include not only material and pecuniary losses but also compensation for mental and moral suffering. Art. 64. Any person, other than a rival, the parents, guardians and grandparents, of the affianced parties, who cause a marriage engagement to be broken shall be liable for damages, both material and moral, to the engaged person who is rejected. Art. 65. In case of breach of promise to marry, the party breaking the engagement shall be obliged to return what he or she has received from the other as gift on account of the promise of the marriage. These article were, however, eliminated in Congress. The reason therefor are set forth in the report of the corresponding Senate Committee, from which we quote: The elimination of this Chapter is proposed. That breach of promise to marry is not actionable has been definitely decide in the case of De Jesus vs. Syquia, 58 Phil., 866. The history of breach of promise suit in the United States and in England has shown that no other action lends itself more readily to abuse by designing women and unscrupulous men. It is this experience which has led to the abolition of the rights of action in the so-called Balm suit in many of the American States. See statutes of: Florida 1945 pp. 1342 1344 Maryland 1945 pp. 1759 1762 Nevada 1943 p. 75 Maine 1941 pp. 140 141 New Hampshire 1941 p. 223 California 1939 p. 1245 Massachusetts 1938 p. 326 Indiana 1936 p. 1009 Michigan 1935 p. 201 New York 1935 Pennsylvania p. 450 The Commission perhaps though that it has followed the more progression trend in legislation when it provided for breach of promise to marry suits. But it is clear that the creation of such causes of action at a time when so many States, in consequence of years of experience are doing away with them, may well prove to be a step in the wrong direction. (Congressional Record, Vol. IV, No. 79, Thursday, May 19, 1949, p. 2352.) The views thus expressed were accepted by both houses of Congress. In the light of the clear and manifest intent of our law making body not to sanction actions for breach of promise to marry, the award of moral damages made by the lower courts is, accordingly, untenable. The Court of Appeals said award: Moreover, it appearing that because of defendant-appellant's seduction power, plaintiff-appellee, overwhelmed by her love for him finally yielded to his sexual desires in spite of her age and self-control, she being a woman after all, we hold that said defendant-appellant is liable for seduction

and, therefore, moral damages may be recovered from him under the provision of Article 2219, paragraph 3, of the new Civil Code. Apart from the fact that the general tenor of said Article 2219, particularly the paragraphs preceding and those following the one cited by the Court of Appeals, and the language used in said paragraph strongly indicates that the "seduction" therein contemplated is the crime punished as such in Article as such in Article 337 and 338 of the Revised Penal Code, which admittedly does not exist in the present case, we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten (10) years younger than the complainant who around thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a life insurance agent are supposed to be when she became intimate with petitioner, then a mere apprentice pilot, but, also, because, the court of first instance found that, complainant "surrendered herself" to petitioner because, "overwhelmed by her love" for him, she "wanted to bind" "by having a fruit of their engagement even before they had the benefit of clergy." The court of first instance sentenced petitioner to pay the following: (1) a monthly pension of P30.00 for the support of the child: (2) P4,500, representing the income that complainant had allegedly failed to earn during her pregnancy and shortly after the birth of the child, as actual and compensation damages; (3) P5,000, as moral damages; and (4) P500.00, as attorney's fees. The Court of Appeals added to the second item the sum of P1,114.25 consisting of P144.20, for hospitalization and medical attendance, in connection with the parturiation, and the balance representing expenses incurred to support the child and increased the moral damages to P7,000.00. With the elimination of this award for damages, the decision of the Court of Appeals is hereby affirmed, therefore, in all other respects, without special pronouncement as to cost in this instance. It is so ordered. .R. No. L-20089 December 26, 1964

But the next day, September 3, he sent her the following telegram: NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE . PAKING Thereafter Velez did not appear nor was he heard from again. Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees; and the costs. On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore at this stage of the proceedings the possibility of arriving at an amicable settlement." It added that should any of them fail to appear "the petition for relief and the opposition thereto will be deemed submitted for resolution." On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The counsel stated that he would confer with defendant in Cagayan de Oro City the latter's residence on the possibility of an amicable element. The court granted two weeks counted from August 25, 1955. Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but that defendant and his counsel had failed to appear. Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel informed the court that chances of settling the case amicably were nil. On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to this Court. In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as ground to set aside the judgment by default. Specifically, it was stated that defendant filed no answer in the belief that an amicable settlement was being negotiated. A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800, December 29, 1960.) Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage, because the judgment sought to be set aside was

BEATRIZ P. WASSMER, plaintiff-appellee, vs. FRANCISCO X. VELEZ, defendant-appellant. BENGZON, J.P., J.: The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated in frustration and, what is worse, complete public humiliation. Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be: Dear Bet Will have to postpone wedding My mother opposes it. Am leaving on the Convair today. Please do not ask too many people about the reason why That would only create a scandal. Paquing

null and void, it having been based on evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to defendant's consent to said procedure, the same did not have to be obtained for he was declared in default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First Instance, L-14557, October 30, 1959). In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not an actionable wrong. We pointed out that Congress deliberately eliminated from the draft of the new Civil Code the provisions that would have it so. It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with impunity, is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage." The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were purchased (Tsn., 78). Dresses for the maid of honor and the flower girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,: simply left a note for plaintiff stating: "Will have to postpone wedding My mother opposes it ... " He enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard from again. Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21 aforesaid. Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised as to the award of actual damages. What defendant would really assert hereunder is that the award of moral and exemplary damages, in the amount of P25,000.00, should be totally eliminated. Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that the same could not be adjudged against him because under Article 2232 of the New Civil Code the condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of merit as under the above-narrated circumstances of this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral and exemplary damages is deemed to be a reasonable award.

PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby affirmed, with costs. G.R. No. L-18630 December 17, 1966

APOLONIO TANJANCO, petitioner, vs. HON. COURT OF APPEALS and ARACELI SANTOS, respondents. REYES, J.B.L., J.: Appeal from a decision of the Court of Appeals (in its Case No. 27210-R) revoking an order of the Court of First Instance of Rizal (in Civil Case No. Q-4797) dismissing appellant's action for support and damages. The essential allegations of the complaint are to the effect that, from December, 1957, the defendant (appellee herein), Apolonio Tanjanco, courted the plaintiff, Araceli Santos, both being of adult age; that "defendant expressed and professed his undying love and affection for plaintiff who also in due time reciprocated the tender feelings"; that in consideration of defendant's promise of marriage plaintiff consented and acceded to defendant's pleas for carnal knowledge; that regularly until December 1959, through his protestations of love and promises of marriage, defendant succeeded in having carnal access to plaintiff, as a result of which the latter conceived a child; that due to her pregnant condition, to avoid embarrassment and social humiliation, plaintiff had to resign her job as secretary in IBM Philippines, Inc., where she was receiving P230.00 a month; that thereby plaintiff became unable to support herself and her baby; that due to defendant's refusal to marry plaintiff, as promised, the latter suffered mental anguish, besmirched reputation, wounded feelings, moral shock, and social humiliation. The prayer was for a decree compelling the defendant to recognize the unborn child that plaintiff was bearing; to pay her not less than P430.00 a month for her support and that of her baby, plus P100,000.00 in moral and exemplary damages, plus P10,000.00 attorney's fees. Upon defendant's motion to dismiss, the court of first instance dismissed the complaint for failure to state a cause of action. Plaintiff Santos duly appealed to the Court of Appeals, and the latter ultimately decided the case, holding with the lower court that no cause of action was shown to compel recognition of a child as yet unborn, nor for its support, but decreed that the complaint did state a cause of action for damages, premised on Article 21 of the Civil Code of the Philippines, prescribing as follows: ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. The Court of Appeals, therefore, entered judgment setting aside the dismissal and directing the court of origin to proceed with the case. Defendant, in turn, appealed to this Court, pleading that actions for breach of a promise to marry are not permissible in this jurisdiction, and invoking the rulings of this Court in Estopa vs. Piansay, L-14733, September 30, 1960; Hermosisima vs. Court of Appeals, L-14628, January 29, 1962; and De Jesus vs. SyQuia, 58 Phil. 886. We find this appeal meritorious.

In holding that the complaint stated a cause of action for damages, under Article 21 above mentioned, the Court of Appeals relied upon and quoted from the memorandum submitted by the Code Commission to the Legislature in 1949 to support the original draft of the Civil Code. Referring to Article 23 of the draft (now Article 21 of the Code), the Commission stated: But the Code Commission has gone farther than the sphere of wrongs defined or determined by positive law. Fully sensible that there are countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury, the Commission has deemed it necessary, in the interest of justice, to incorporate in the proposed Civil Code the following rule: "ART. 23. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage." An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year old daughter of "X". A promise of marriage either has not been made, or can not be proved. The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above eighteen years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though the grievous moral wrong has been committed, and though the girl and her family have suffered incalculable moral damage, she and her parents cannot bring any action for damages. But under the proposed article, she and her parents would have such a right of action. The Court of Appeals seems to have overlooked that the example set forth in the Code Commission's memorandum refers to a tort upon a minor who has been seduced. The essential feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595). It has been ruled in the Buenaventura case (supra) that To constitute seduction there must in all cases be some sufficient promise or inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is from mutual desire, there is no seduction (43 Cent. Dig. tit. Seduction, par. 56). She must be induced to depart from the path of virtue by the use of some species of arts, persuasions and wiles, which are calculated to have and do have that effect, and which result in her ultimately submitting her person to the sexual embraces of her seducer (27 Phil. 123). And in American Jurisprudence we find: On the other hand, in an action by the woman, the enticement, persuasion or deception is the essence of the injury; and a mere proof of intercourse is insufficient to warrant a recover. Accordingly it is not seduction where the willingness arises out of sexual desire or curiosity of the female, and the defendant merely affords her the needed opportunity for the commission of the act. It has been emphasized that to allow a recovery in all such cases would tend to the demoralization of

the female sex, and would be a reward for unchastity by which a class of adventuresses would be swift to profit." (47 Am. Jur. 662) Bearing these principles in mind, let us examine the complaint. The material allegations there are as follows: I. That the plaintiff is of legal age, single, and residing at 56 South E. Diliman, Quezon City, while defendant is also of legal age, single and residing at 525 Padre Faura, Manila, where he may be served with summons; II. That the plaintiff and the defendant became acquainted with each other sometime in December, 1957 and soon thereafter, the defendant started visiting and courting the plaintiff; III. That the defendant's visits were regular and frequent and in due time the defendant expressed and professed his undying love and affection for the plaintiff who also in due time reciprocated the tender feelings; IV. That in the course of their engagement, the plaintiff and the defendant as are wont of young people in love had frequent outings and dates, became very close and intimate to each other and sometime in July, 1958, in consideration of the defendant's promises of marriage, the plaintiff consented and acceded to the former's earnest and repeated pleas to have carnal knowledge with him; V. That subsequent thereto and regularly until about July, 1959 except for a short period in December, 1958 when the defendant was out of the country, the defendant through his protestations of love and promises of marriage succeeded in having carnal knowledge with the plaintiff; VI. That as a result of their intimate relationship, the plaintiff started conceiving which was confirmed by a doctor sometime in July, 1959; VII. That upon being certain of her pregnant condition, the plaintiff informed the defendant and pleaded with him to make good his promises of marriage, but instead of honoring his promises and righting his wrong, the defendant stopped and refrained from seeing the plaintiff since about July, 1959 has not visited the plaintiff and to all intents and purposes has broken their engagement and his promises. Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintained intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she would not have again yielded to his embraces, much less for one year, without exacting early fulfillment of the alleged promises of marriage, and would have cut chart all sexual relations upon finding that defendant did not intend to fulfill his promises. Hence, we conclude that no case is made under Article 21 of the Civil Code, and no other cause of action being alleged, no error was committed by the Court of First Instance in dismissing the complaint. Of course, the dismissal must be understood as without prejudice to whatever actions may correspond to the child of the plaintiff against the defendant-appellant, if any. On

that point, this Court makes no pronouncement, since the child's own rights are not here involved. FOR THE FOREGOING REASONS, the decision of the Court of Appeals is reversed, and that of the Court of First Instance is affirmed. No costs. G.R. No. 97336 February 19, 1993 GASHEM SHOOKAT BAKSH, petitioner, vs. HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents. DAVIDE, JR., J.: This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the Decision 1 of the respondent Court of Appeals in CA-G.R. CV No. 24256 which affirmed in toto the 16 October 1939 Decision of Branch 38 (Lingayen) of the Regional Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the issue of whether or not damages may be recovered for a breach of promise to marry on the basis of Article 21 of the Civil Code of the Philippines. The antecedents of this case are not complicated: On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid trial court a complaint 2 for damages against the petitioner for the alleged violation of their agreement to get married. She alleges in said complaint that: she is twenty-two (22) years old, single, Filipino and a pretty lass of good moral character and reputation duly respected in her community; petitioner, on the other hand, is an Iranian citizen residing at the Lozano Apartments, Guilig, Dagupan City, and is an exchange student taking a medical course at the Lyceum Northwestern Colleges in Dagupan City; before 20 August 1987, the latter courted and proposed to marry her; she accepted his love on the condition that they would get married; they therefore agreed to get married after the end of the school semester, which was in October of that year; petitioner then visited the private respondent's parents in Baaga, Bugallon, Pangasinan to secure their approval to the marriage; sometime in 20 August 1987, the petitioner forced her to live with him in the Lozano Apartments; she was a virgin before she began living with him; a week before the filing of the complaint, petitioner's attitude towards her started to change; he maltreated and threatened to kill her; as a result of such maltreatment, she sustained injuries; during a confrontation with a representative of the barangay captain of Guilig a day before the filing of the complaint, petitioner repudiated their marriage agreement and asked her not to live with him anymore and; the petitioner is already married to someone living in Bacolod City. Private respondent then prayed for judgment ordering the petitioner to pay her damages in the amount of not less than P45,000.00, reimbursement for actual expenses amounting to P600.00, attorney's fees and costs, and granting her such other relief and remedies as may be just and equitable. The complaint was docketed as Civil Case No. 16503. In his Answer with Counterclaim, 3 petitioner admitted only the personal circumstances of the parties as averred in the complaint and denied the rest of the allegations either for lack of knowledge or information sufficient to form a belief as to the truth thereof or because the true facts are those alleged as his Special and Affirmative Defenses. He thus claimed that he never proposed marriage to or agreed to be married with the private respondent; he neither sought the consent and approval of her parents nor forced her to live in his apartment; he did not maltreat her, but only told her to stop coming to his place because he discovered that she had deceived him by stealing his money and passport; and finally, no confrontation took place with a representative of the barangay captain. Insisting, in his Counterclaim, that the complaint is baseless

and unfounded and that as a result thereof, he was unnecessarily dragged into court and compelled to incur expenses, and has suffered mental anxiety and a besmirched reputation, he prayed for an award of P5,000.00 for miscellaneous expenses and P25,000.00 as moral damages. After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order 4 embodying the stipulated facts which the parties had agreed upon, to wit: 1. That the plaintiff is single and resident (sic) of Baaga, Bugallon, Pangasinan, while the defendant is single, Iranian citizen and resident (sic) of Lozano Apartment, Guilig, Dagupan City since September 1, 1987 up to the present; 2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City, College of Medicine, second year medicine proper; 3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue, Dagupan City since July, 1986 up to the present and a (sic) high school graduate; 4. That the parties happened to know each other when the manager of the Mabuhay Luncheonette, Johhny Rabino introduced the defendant to the plaintiff on August 3, 1986. After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16 October 1989 a decision 5 favoring the private respondent. The petitioner was thus ordered to pay the latter damages and attorney's fees; the dispositive portion of the decision reads: IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the plaintiff and against the defendant. 1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand (P20,000.00) pesos as moral damages. 2. Condemning further the defendant to play the plaintiff the sum of three thousand (P3,000.00) pesos as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation expenses and to pay the costs. 3. All other claims are denied. 6 The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private respondent were lovers, (b) private respondent is not a woman of loose morals or questionable virtue who readily submits to sexual advances, (c) petitioner, through machinations, deceit and false pretenses, promised to marry private respondent, d) because of his persuasive promise to marry her, she allowed herself to be deflowered by him, (e) by reason of that deceitful promise, private respondent and her parents in accordance with Filipino customs and traditions made some preparations for the wedding that was to be held at the end of October 1987 by looking for pigs and chickens, inviting friends and relatives and contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such acts of the petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our sense of morality, good customs, culture and traditions. The trial court gave full credit to the private respondent's testimony because, inter alia, she would not

have had the temerity and courage to come to court and expose her honor and reputation to public scrutiny and ridicule if her claim was false. 7 The above findings and conclusions were culled from the detailed summary of the evidence for the private respondent in the foregoing decision, digested by the respondent Court as follows: According to plaintiff, who claimed that she was a virgin at the time and that she never had a boyfriend before, defendant started courting her just a few days after they first met. He later proposed marriage to her several times and she accepted his love as well as his proposal of marriage on August 20, 1987, on which same day he went with her to her hometown of Baaga, Bugallon, Pangasinan, as he wanted to meet her parents and inform them of their relationship and their intention to get married. The photographs Exhs. "A" to "E" (and their submarkings) of defendant with members of plaintiff's family or with plaintiff, were taken that day. Also on that occasion, defendant told plaintiffs parents and brothers and sisters that he intended to marry her during the semestral break in October, 1987, and because plaintiff's parents thought he was good and trusted him, they agreed to his proposal for him to marry their daughter, and they likewise allowed him to stay in their house and sleep with plaintiff during the few days that they were in Bugallon. When plaintiff and defendant later returned to Dagupan City, they continued to live together in defendant's apartment. However, in the early days of October, 1987, defendant would tie plaintiff's hands and feet while he went to school, and he even gave her medicine at 4 o'clock in the morning that made her sleep the whole day and night until the following day. As a result of this live-in relationship, plaintiff became pregnant, but defendant gave her some medicine to abort the fetus. Still plaintiff continued to live with defendant and kept reminding him of his promise to marry her until he told her that he could not do so because he was already married to a girl in Bacolod City. That was the time plaintiff left defendant, went home to her parents, and thereafter consulted a lawyer who accompanied her to the barangay captain in Dagupan City. Plaintiff, her lawyer, her godmother, and a barangay tanod sent by the barangay captain went to talk to defendant to still convince him to marry plaintiff, but defendant insisted that he could not do so because he was already married to a girl in Bacolod City, although the truth, as stipulated by the parties at the pre-trial, is that defendant is still single. Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of his desire to marry Marilou, he already looked for sponsors for the wedding, started preparing for the reception by looking for pigs and chickens, and even already invited many relatives and friends to the forthcoming wedding. 8 Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the case as CA-G.R. CV No. 24256. In his Brief, 9 he contended that the trial court erred (a) in not dismissing the case for lack of factual and legal basis and (b) in ordering him to pay moral damages, attorney's fees, litigation expenses and costs. On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in toto the trial court's ruling of 16 October 1989. In sustaining the trial court's findings of fact, respondent Court made the following analysis:

First of all, plaintiff, then only 21 years old when she met defendant who was already 29 years old at the time, does not appear to be a girl of loose morals. It is uncontradicted that she was a virgin prior to her unfortunate experience with defendant and never had boyfriend. She is, as described by the lower court, a barrio lass "not used and accustomed to trend of modern urban life", and certainly would (sic) not have allowed "herself to be deflowered by the defendant if there was no persuasive promise made by the defendant to marry her." In fact, we agree with the lower court that plaintiff and defendant must have been sweethearts or so the plaintiff must have thought because of the deception of defendant, for otherwise, she would not have allowed herself to be photographed with defendant in public in so (sic) loving and tender poses as those depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore, defendant's pretense that plaintiff was a nobody to him except a waitress at the restaurant where he usually ate. Defendant in fact admitted that he went to plaintiff's hometown of Baaga, Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on February 27, 1987 (p. 54, tsn May 18, 1988), at (sic) a beach party together with the manager and employees of the Mabuhay Luncheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when he allegedly talked to plaintiff's mother who told him to marry her daughter (pp. 55-56, tsn id.). Would defendant have left Dagupan City where he was involved in the serious study of medicine to go to plaintiff's hometown in Baaga, Bugallon, unless there was (sic) some kind of special relationship between them? And this special relationship must indeed have led to defendant's insincere proposal of marriage to plaintiff, communicated not only to her but also to her parents, and (sic) Marites Rabino, the owner of the restaurant where plaintiff was working and where defendant first proposed marriage to her, also knew of this love affair and defendant's proposal of marriage to plaintiff, which she declared was the reason why plaintiff resigned from her job at the restaurant after she had accepted defendant's proposal (pp. 6-7, tsn March 7, 1988). Upon the other hand, appellant does not appear to be a man of good moral character and must think so low and have so little respect and regard for Filipino women that he openly admitted that when he studied in Bacolod City for several years where he finished his B.S. Biology before he came to Dagupan City to study medicine, he had a common-law wife in Bacolod City. In other words, he also lived with another woman in Bacolod City but did not marry that woman, just like what he did to plaintiff. It is not surprising, then, that he felt so little compunction or remorse in pretending to love and promising to marry plaintiff, a young, innocent, trustful country girl, in order to satisfy his lust on her. 11 and then concluded: In sum, we are strongly convinced and so hold that it was defendant-appellant's fraudulent and deceptive protestations of love for and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the honest and sincere belief that he would keep said promise, and it was likewise these (sic) fraud and deception on appellant's part that made plaintiff's parents agree to their daughter's living-in with him preparatory to their supposed marriage. And as these acts of appellant are palpably and undoubtedly against morals, good customs, and public policy, and are even gravely and deeply

derogatory and insulting to our women, coming as they do from a foreigner who has been enjoying the hospitality of our people and taking advantage of the opportunity to study in one of our institutions of learning, defendant-appellant should indeed be made, under Art. 21 of the Civil Code of the Philippines, to compensate for the moral damages and injury that he had caused plaintiff, as the lower court ordered him to do in its decision in this case. 12 Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises therein the single issue of whether or not Article 21 of the Civil Code applies to the case at bar. 13 It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral wrong or injury or violated any good custom or public policy; he has not professed love or proposed marriage to the private respondent; and he has never maltreated her. He criticizes the trial court for liberally invoking Filipino customs, traditions and culture, and ignoring the fact that since he is a foreigner, he is not conversant with such Filipino customs, traditions and culture. As an Iranian Moslem, he is not familiar with Catholic and Christian ways. He stresses that even if he had made a promise to marry, the subsequent failure to fulfill the same is excusable or tolerable because of his Moslem upbringing; he then alludes to the Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes that on the basis thereof, the trial court erred in ruling that he does not posses good moral character. Moreover, his controversial "common law life" is now his legal wife as their marriage had been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful cohabitation with the private respondent, petitioner claims that even if responsibility could be pinned on him for the live-in relationship, the private respondent should also be faulted for consenting to an illicit arrangement. Finally, petitioner asseverates that even if it was to be assumed arguendo that he had professed his love to the private respondent and had also promised to marry her, such acts would not be actionable in view of the special circumstances of the case. The mere breach of promise is not actionable. 14 On 26 August 1991, after the private respondent had filed her Comment to the petition and the petitioner had filed his Reply thereto, this Court gave due course to the petition and required the parties to submit their respective Memoranda, which they subsequently complied with. As may be gleaned from the foregoing summation of the petitioner's arguments in support of his thesis, it is clear that questions of fact, which boil down to the issue of the credibility of witnesses, are also raised. It is the rule in this jurisdiction that appellate courts will not disturb the trial court's findings as to the credibility of witnesses, the latter court having heard the witnesses and having had the opportunity to observe closely their deportment and manner of testifying, unless the trial court had plainly overlooked facts of substance or value which, if considered, might affect the result of the case. 15 Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked any fact of substance or values which could alter the result of the case. Equally settled is the rule that only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to analyze or weigh all over again the evidence introduced by the parties before the lower court. There are, however, recognized exceptions to this rule. Thus, in Medina vs. Asistio, Jr., 16 this Court took the time, again, to enumerate these exceptions:

xxx xxx xxx (1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is manifestly mistaken, absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of facts (Cruz v. Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellate and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]); (7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of fact are conclusions without citation of specific evidence on which they are based (Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents (Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]). Petitioner has not endeavored to joint out to Us the existence of any of the above quoted exceptions in this case. Consequently, the factual findings of the trial and appellate courts must be respected. And now to the legal issue. The existing rule is that a breach of promise to marry per se is not an actionable wrong. 17 Congress deliberately eliminated from the draft of the New Civil Code the provisions that would have made it so. The reason therefor is set forth in the report of the Senate Committees on the Proposed Civil Code, from which We quote: The elimination of this chapter is proposed. That breach of promise to marry is not actionable has been definitely decided in the case of De Jesus vs. Syquia. 18 The history of breach of promise suits in the United States and in England has shown that no other action lends itself more readily to abuse by designing women and unscrupulous men. It is this experience which has led to the abolition of rights of action in the so-called Heart Balm suits in many of the American states. . . . 19 This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the concept of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically enumerate and punish in the statute books. 20 As the Code Commission itself stated in its Report: But the Code Commission had gone farther than the sphere of wrongs defined or determined by positive law. Fully sensible that there are countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury, the Commission has deemed it

necessary, in the interest of justice, to incorporate in the proposed Civil Code the following rule: Art. 23. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year old daughter of "X". A promise of marriage either has not been made, or can not be proved. The girl becomes pregnant. Under the present laws, there is no crime, as the girl is above nineteen years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though the grievous moral wrong has been committed, and though the girl and family have suffered incalculable moral damage, she and her parents cannot bring action for damages. But under the proposed article, she and her parents would have such a right of action. Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes. 21 Article 2176 of the Civil Code, which defines a quasi-delict thus: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. Torts is much broader than culpa aquiliana because it includes not only negligence, but international criminal acts as well such as assault and battery, false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned by the Commission responsible for drafting the New Civil Code, intentional and malicious acts, with certain exceptions, are to be governed by the Revised Penal Code while negligent acts or omissions are to be covered by Article 2176 of the Civil Code. 22 In between these opposite spectrums are injurious acts which, in the absence of Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has become much more supple and adaptable than the AngloAmerican law on torts. 23 In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man's promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of

damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy. In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive protestations of love for and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the honest and sincere belief that he would keep said promise, and it was likewise these fraud and deception on appellant's part that made plaintiff's parents agree to their daughter's living-in with him preparatory to their supposed marriage." 24 In short, the private respondent surrendered her virginity, the cherished possession of every single Filipina, not because of lust but because of moral seduction the kind illustrated by the Code Commission in its example earlier adverted to. The petitioner could not be held liable for criminal seduction punished under either Article 337 or Article 338 of the Revised Penal Code because the private respondent was above eighteen (18) years of age at the time of the seduction. Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to marry where the woman is a victim of moral seduction. Thus, in Hermosisima vs. Court of Appeals, 25 this Court denied recovery of damages to the woman because: . . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten (10) years younger than the complainant who was around thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a life insurance agent are supposed to be when she became intimate with petitioner, then a mere apprentice pilot, but, also, because the court of first instance found that, complainant "surrendered herself" to petitioner because, "overwhelmed by her love" for him, she "wanted to bind" him by having a fruit of their engagement even before they had the benefit of clergy. In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if there had been moral seduction, recovery was eventually denied because We were not convinced that such seduction existed. The following enlightening disquisition and conclusion were made in the said case: The Court of Appeals seem to have overlooked that the example set forth in the Code Commission's memorandum refers to a tort upon a minor who had been seduced. The essential feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595). It has been ruled in the Buenaventura case (supra) that To constitute seduction there must in all cases be some sufficient promise or inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is from mutual desire, there is no seduction (43 Cent. Dig. tit. Seduction,

par. 56) She must be induced to depart from the path of virtue by the use of some species of arts, persuasions and wiles, which are calculated to have and do have that effect, and which result in her person to ultimately submitting her person to the sexual embraces of her seducer (27 Phil. 123). And in American Jurisprudence we find: On the other hand, in an action by the woman, the enticement, persuasion or deception is the essence of the injury; and a mere proof of intercourse is insufficient to warrant a recovery. Accordingly it is not seduction where the willingness arises out of sexual desire of curiosity of the female, and the defendant merely affords her the needed opportunity for the commission of the act. It has been emphasized that to allow a recovery in all such cases would tend to the demoralization of the female sex, and would be a reward for unchastity by which a class of adventuresses would be swift to profit. (47 Am. Jur. 662) xxx xxx xxx Over and above the partisan allegations, the fact stand out that for one whole year, from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintain intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she would not have again yielded to his embraces, much less for one year, without exacting early fulfillment of the alleged promises of marriage, and would have cut short all sexual relations upon finding that defendant did not intend to fulfill his defendant did not intend to fulfill his promise. Hence, we conclude that no case is made under article 21 of the Civil Code, and no other cause of action being alleged, no error was committed by the Court of First Instance in dismissing the complaint. 27 In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently retired from this Court, opined that in a breach of promise to marry where there had been carnal knowledge, moral damages may be recovered: . . . if there be criminal or moral seduction, but not if the intercourse was due to mutual lust. (Hermosisima vs. Court of Appeals, L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29, 1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT be the carnal knowledge, there is a chance that there was criminal or

moral seduction, hence recovery of moral damages will prosper. If it be the other way around, there can be no recovery of moral damages, because here mutual lust has intervened). . . . together with "ACTUAL damages, should there be any, such as the expenses for the wedding presentations (See Domalagon v. Bolifer, 33 Phil. 471). Senator Arturo M. Tolentino 29 is also of the same persuasion: It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the incorporation of the present article 31 in the Code. The example given by the Code Commission is correct, if there was seduction, not necessarily in the legal sense, but in the vulgar sense of deception. But when the sexual act is accomplished without any deceit or qualifying circumstance of abuse of authority or influence, but the woman, already of age, has knowingly given herself to a man, it cannot be said that there is an injury which can be the basis for indemnity. But so long as there is fraud, which is characterized by willfulness (sic), the action lies. The court, however, must weigh the degree of fraud, if it is sufficient to deceive the woman under the circumstances, because an act which would deceive a girl sixteen years of age may not constitute deceit as to an experienced woman thirty years of age. But so long as there is a wrongful act and a resulting injury, there should be civil liability, even if the act is not punishable under the criminal law and there should have been an acquittal or dismissal of the criminal case for that reason. We are unable to agree with the petitioner's alternative proposition to the effect that granting, for argument's sake, that he did promise to marry the private respondent, the latter is nevertheless also at fault. According to him, both parties are in pari delicto; hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid down in Batarra vs. Marcos, 32 the private respondent cannot recover damages from the petitioner. The latter even goes as far as stating that if the private respondent had "sustained any injury or damage in their relationship, it is primarily because of her own doing, 33 for: . . . She is also interested in the petitioner as the latter will become a doctor sooner or later. Take notice that she is a plain high school graduate and a mere employee . . . (Annex "C") or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without doubt, is in need of a man who can give her economic security. Her family is in dire need of financial assistance. (TSN, pp. 51-53, May 18, 1988). And this predicament prompted her to accept a proposition that may have been offered by the petitioner.
34

These statements reveal the true character and motive of the petitioner. It is clear that he harbors a condescending, if not sarcastic, regard for the private respondent on account of the latter's ignoble birth, inferior educational background, poverty and, as perceived by him, dishonorable employment. Obviously then, from the very beginning, he was not at all moved by good faith and an honest motive. Marrying with a woman so circumstances could not have even remotely occurred to him. Thus, his profession of love and promise to marry were empty words directly intended to fool, dupe, entice, beguile and deceive the poor woman into believing that indeed, he loved her and would want her to be his life's partner. His was nothing but pure lust which he wanted

satisfied by a Filipina who honestly believed that by accepting his proffer of love and proposal of marriage, she would be able to enjoy a life of ease and security. Petitioner clearly violated the Filipino's concept of morality and brazenly defied the traditional respect Filipinos have for their women. It can even be said that the petitioner committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which directs every person to act with justice, give everyone his due and observe honesty and good faith in the exercise of his rights and in the performance of his obligations. No foreigner must be allowed to make a mockery of our laws, customs and traditions. The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been impelled by the purest of intentions, she eventually submitted to the petitioner in sexual congress not out of lust, but because of moral seduction. In fact, it is apparent that she had qualms of conscience about the entire episode for as soon as she found out that the petitioner was not going to marry her after all, she left him. She is not, therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal fault." 35 At most, it could be conceded that she is merely in delicto. Equity often interferes for the relief of the less guilty of the parties, where his transgression has been brought about by the imposition of undue influence of the party on whom the burden of the original wrong principally rests, or where his consent to the transaction was itself procured by fraud. 36 In Mangayao vs. Lasud, 37 We declared: Appellants likewise stress that both parties being at fault, there should be no action by one against the other (Art. 1412, New Civil Code). This rule, however, has been interpreted as applicable only where the fault on both sides is, more or less, equivalent. It does not apply where one party is literate or intelligent and the other one is not. (c.f. Bough vs. Cantiveros, 40 Phil. 209). We should stress, however, that while We find for the private respondent, let it not be said that this Court condones the deplorable behavior of her parents in letting her and the petitioner stay together in the same room in their house after giving approval to their marriage. It is the solemn duty of parents to protect the honor of their daughters and infuse upon them the higher values of morality and dignity. WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby DENIED, with costs against the petitioner. SO ORDERED. JOSE R. PAGANIBAN, complainant, vs. ELIAS BORROMEO, respondent. MALCOLM, J.: These proceedings looking to the disbarment of the respondent attorney are before us on the representations of the Solicitor-General that the respondent appear and show cause, if any he has, why he should not be proceeded against for professional

malpractice. The respondent admits that, in his capacity as notary public he legalized the document which is the basis of the complaint against him, and that the document contains provisions contrary to law, morals and good customs, but by way of defense disclaims any previous knowledge of the illegal character of the document. On November 25, 1931, Alejandro Pabro and Juana Mappala husband and wife, subscribed a contract before the notary public Elias Borromeo, who was at that time a regularly admitted member of the Philippine Bar. The contract in question had been prepared by the municipal secretary of Naguilian, Isabela. Attorney Borromeo cooperated in the execution of the document and had, at lease, some knowledge of its contents, although he may not have been fully informed because of a difference in dialect. The contract in substance purported to formulate an agreement between the husband and the wife which permitted the husband to take unto himself a concubine and the wife to live in adulterous relationship with another man, without opposition from either one of them. Two questions are suggested by the record. The first concerns the points of whether or not the contract sanctioned an illicit and immoral purpose. The second concerns the point, on the supposition that the contract did sanction an illicit and immoral purpose, of whether a lawyer may be disciplined for misconduct as a notary public. The contract of the spouses, it will be recalled, was executed at a time when the Spanish Penal Code, as modified by Act No. 1773 was in force. Conceding, however, that the more liberal provisions of the Revised Penal Code should be given application, it is herein provided that the consent or pardon given by the offended party constitutes a bar to prosecution for adultery or concubinage. In this instance, if the spouses should retain their present frame of mind, no prosecution of either one by the other could be expected. Nevertheless, we think it far from the purpose of the Legislature to legalize adultery and concubinage. They still remain crimes, with the qualification that prosecution cannot be instituted if the offended party consent to the act or pardon the offender. This is a matter of future contingency and is not matter for legalization in wanton disregard of good morals. We hold the contract to contain provisions contrary to law, morals and public order, and as a consequence not judicially recognizable. Passing to the second question, we think there can be no question as to the right of the court to discipline an attorney who, in his capacity as notary public, has been guilty of misconduct. To the office of notary public there is not attached such importance under present conditions as under the Spanish administration. Even so, the notary public exercise duties calling for carefulness and faithfulness. It is for the notary to inform himself of the facts to which he intends to certify, and to take part in no illegal enterprise. The notary public is usually a person who has been admitted to the practice of law, and such, in the commingling of his duties as notary and lawyer, must be held responsible for both. We are led to hold that a member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to account by the court even to the extent of disbarment. (See 2 Thornton on Attorneys At Law, pp. 1258, 1259; In re Chappell [1909], 115 N.Y.S., 868; In re Bernard [1912], 136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In re Terrell [1903], 2 Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko [1916], 34 Phil., 796; De la Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.) It now becomes necessary to pronounce sentence. As mitigating circumstances, there may be taken into consideration (1) that the attorney may not have realized the full purport of the document to which he took acknowledgment, (2) that no falsification of facts was attempted, and (3) that the commission of the respondent as a notary public has been revoked. Accordingly, we are disposed in this case to exercise clemency and to confine our discipline of the respondent to severe censure. So ordered.

A.C. No. 932 June 21, 1940 In re ATTY. ROQUE SANTIAGO, respondent, LAUREL, J.: This is an administrative case initiated upon complaint of the Solicitor-General against the respondent Roque Santiago, charging the latter with malpractice and praying that disciplinary action be taken against him. It appears that one Ernesto Baniquit, who was living then separately from his wife Soledad Colares for some nine consecutive years and who was bent on contracting a second marriage, sought the legal advice of the respondent, who was at the time a practicing and notary public in the Province of Occidental Negros. The respondent, after hearing Baniquit's side of the case, assured the latter that he could secure a separation from his wife and marry again, and asked him to bring his wife on the afternoon of the same day, May 29, 1939. This was done and the respondent right then and there prepared the document Exhibit A in which it was stipulated, among other things, that the contracting parties, who are husband and wife authorized each other to marry again, at the same time renouncing or waiving whatever right of action one might have against the party so marrying. After the execution and acknowledgment of Exhibit A by the parties, the respondent asked the spouses to shake hands and assured them that they were single and as such could contract another and subsequent marriage. Baniquit then remarked, "Would there be no trouble?" Upon hearing it the respondent stood up and, pointing to his diploma hanging on the wall, said: "I would tear that off if this document turns out not to be valid." Relying on the validity of Exhibit A, Ernesto Baniquit, on June 11, 1939, contracted a second marriage with Trinidad Aurelio. There is also evidence to show that the respondent tried to collect for this service the sum of P50, but as the evidence on this point is not clear and the same is not material in the resolution of the present case, we do not find it necessary to make any express finding as to whether the full amount or any portion thereof was paid or, as contended by the respondent, the service were rendered free of charge. The respondent did not deny the preparation of Exhibit A, put up the defense that he had the idea that seven years separation of husband and wife would entitle either of them to contract a second marriage and for that reason prepared Exhibit A, but immediately after the execution of said document he realized that he had made a mistake and for that reason immediately sent for the contracting parties who, on June 30, 1939, came to his office and signed the deed of cancellation Exhibit A. There is no doubt that the contract Exhibit A executed by and between the spouses Ernesto Baniquit and Soledad Colares upon the advice of the respondent and prepared by the latter as a lawyer and acknowledged by him as a notary public is contrary to law, moral, and tends to subvert the vital foundation of the family. The advice given by the respondent, the preparation and acknowledgment by him of the contract constitute malpractice which justifies disbarment from the practice of law. The admission of a lawyer to the practice of law is upon the implied condition that his continued enjoyment of the privilege conferred is dependent upon his remaining a fit and safe person to society. When it appears that he, by recklessness or sheer ignorance of the law, is unfit or unsafe to be entrusted with the responsibilities and obligations of a lawyer, his right to continue in the enjoyment of this professional privilege should be declared terminated. In the present case, respondent was either ignorant of the applicable provision of the law or carelessly negligent in giving the complainant legal advice. Drastic action should lead to his disbarment and this is the opinion of some members of the court. The majority, however, have inclined to follow the recommendation of the investigator, the Honorable Sotero Rodas, in view of the circumstances stated in the report of said investigator and the fact that immediately after discovering his mistakes, respondent endeavored to correct it by making the parties sign another document cancelling the previous one.

The respondent Roque Santiago is found guilty of malpractice and is hereby suspended from the practice of law for a period of one year. So ordered. A.M. No. 804-CJ May 19, 1975 SATURNINO SELANOVA, complainant, vs. ALEJANDRO E. MENDOZA, City Judge of Mandaue City, respondent. RESOLUTION

AQUINO, J.:+.wph!1 Saturnino Selanova charged Judge Alejandro E. Mendoza of Mandaue City with gross ignorance of the law for having prepared and ratified a document dated November 21, 1972, extrajudicially liquidating the conjugal partnership of the complainant and his wife, Avelina Ceniza. One condition of the liquidation was that either spouse (as the case may be) would withdraw the complaint for adultery or concubinage which each had filed against the other and that they waived their "right to prosecute each other for whatever acts of infidelity" either one would commit against the other. Judge Mendoza in his comment on the charge purposed to convey the impression that he was aware of the invalidity of the agreement but he nevertheless ratified it and gave it his nihil obstat on the assurance of the spouses that they would ask the Court of First Instance of Negros Oriental (where they were residing) to approve the agreement. That pretension is disbelieved by the Judicial Consultant. Respondent Judge alleged that he relied on the provision that "the husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval" (Par. 4, Art. 191, Civil Code). He argues that to give the prohibition against an extrajudicial liquidation of the conjugal partnership during the marriage "an unqualified and literal legal construction" would lender nugatory the aforequoted provisions of article 191. He cites Lacson vs. San Jose-Lacson, L-23482, L-23767 and L-24259, August 30, 1968, 24 SCRA 837 as authority for the propriety of an extrajudicial agreement for the dissolution during the marriage of the conjugal partnership as long as the agreement is subsequently approved by the court. However, the respondent overlooks the unmistakable ruling of this Court in the Lacson case that judicial sanction for the dissolution of the conjugal partnership during the marriage should be "secured beforehand." Respondent Judge surmised that Selanova's complaint was instigated by a lawyer whose case was adversely decided by the Judge. That speculation was denied by Selanova who also belied Judge Mendoza's version that the complainant and his wife, Avelina Ceniza, "together with their parents", came to the office of Judge Mendoza and solicited his help in the amicable settlement of their marital imbroglio. According to Selanova, in 1972 his father was already dead and his mother was ninety-one years old. They could not possibly have come to Judge Mendoza's office. Selanova said that only he and his brother-in-law, Arcadio Ceniza, an alleged classmate of Judge Mendoza, were the persons who went to the Judge's office. But that version may be inaccurate and oversimplified, considering that the agreement

was signed before Judge Mendoza not only by Selanova but also by his wife and two witnesses, Lamberts M. Ceniza and Florencio C. Pono. Judge Mendoza retired on February 27, 1975 when he reached the age of seventy. In his letter of April 8, 1975 he asked for a compassionate view of his case considering his forty-three years' service in the government (he started his public career in 1932 as a policeman and became a justice of the peace in 1954). He also cited the financial predicament of his big family occasioned by the delay in the payment of his retirement and terminal leave pay. The case was not referred to a Judge of the Court of First Instance for investigation because actually no factual issues necessitate a hearing and presentation of evidence. Respondent Judge admitted that he was responsible for the execution of the questioned document, an extrajudicial "Liquidation of Conjugal Properties", which he caused complainant Saturnino Selanova and his wife, Avelina Ceniza, to sign. In that instrument Judge Mendoza divided the two pieces of conjugal assets of the spouses by allocating to the husband a thirteen-hectare riceland and to the wife the residential house and lot. The last paragraph of the instrument, which licensed either spouse to commit any act of infidelity, was in effect a ratification of their personal separation. The agreement in question is void because it contravenes the following provisions of the Civil Code:t.hqw ART. 221. The following shall be void and of no effect: (1) Any contract for personal separation between husband and wife; (2) Every extrajudicial agreement, during marriage, for the dissolution of the conjugal partnership of gains or of the absolute community of property between husband and wife; xxx xxx xxx Even before the enactment of the new Civil Code, this Court held that the extrajudicial dissolution of the conjugal partnership without judicial approval was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15, De La Rosa vs. Barruga, L2368, June 30, 1950, 4 ROP Digest 171, sec. 29). On the other hand, disciplinary action had been taken against notaries who authenticated agreements for the personal separation of spouses wherein either spouse was permitted to commit acts of infidelity. Thus, in Panganiban vs. Borromeo, 58 Phil. 367, a lawyer was severely censured for having notarized a document containing "an agreement between the husband and the wife which permitted the husband to take unto himself a concubine and the wife to live in adulterous relationship with another man, without opposition from either one of them". The document was prepared by another person. In that case this Court noted that while adultery and concubinage are private crimes, "they still remain crimes" and a contract legalizing their commission is "contrary to law, morals and public order, and as a consequence not judicially recognizable". Since the notary's commission was already revoked, this Court did not disbar him. The fact that he "may not have realized the full purport of the document to which he took acknowledgment' was considered mitigating.

Severe censure was also administered to a notary of Cebu City who ratified a document entitled "Legal Separation", executed by husband and wife, wherein they agreed that they separated mutually and voluntarily, that they renounced their rights and obligations, and that they authorized each other to remarry, renouncing any action to which they might be entitled and each promising not to be a witness against the other. Those covenants are contrary to law, morals and good customs and tend to subvert the vital foundation of the legitimate family (Biton vs. Momongon, 62 Phil. 7). In the Santiago case respondent lawyer prepared for a married couple (who had been separated for nine years) a document wherein it was stipulated, inter alia, that they authorized each other to marry again, at the same time renouncing whatever right of action one might have against the other. When the husband inquired if there would be no trouble, respondent lawyer pointed to his diploma which was hanging on the wall and said: "I would tear that off if this document turns out not to be valid." The husband remarried. The respondent was suspended from the practice of law for one year for having been ignorant of the law or being careless in giving legal advice (In re Santiago, 70 Phil. 66). In Balinon vs. De Leon, 94 Phil. 277, Attorney Celestino M. de Leon prepared an affidavit wherein he declared that he was married to Vertudes Marquez, from whom he had been separated, their conjugal partnership having been dissolved, and that he was consorting with Regina S. Balinon his "new found life-partner," to whom he would "remain loyal and faithful" "as a lawful and devoted loving husband for the rest of" his life "at all costs". Attorney Justo T. Velayo notarized that affidavit. This Court reprimanded Velayo and suspended De Leon from the practice of law for three years. In the instant case, respondent Judge, due to his unawareness of the legal prohibition against contracts for the personal separation of husband and wife and for the extrajudicial dissolution of their conjugal partnership, prepared the said void agreement which was acknowledged before him as "City Judge and Notary Public ExOfficio". (Because he was admitted to the bar in 1948 and, consequently, he did not study the new Civil Code in the law school, he might not have been cognizant of its aforecited article 221). Taking into account that circumstance and his apparent good faith and honest desire to terminate the marital conflict between the complainant and his wife, we are of the opinion that a drastic penalty should not be imposed on him. But he deserves a severe censure for his mistake in preparing and notarizing the aforementioned immoral and illegal agreement. Such severe reprimand should not be an obstacle to his enjoyment of retirement privileges, assuming that there are no causes for depriving him of such benefits. WHEREFORE, the respondent is severely censured. G.R. No. 80965 June 6, 1990 SYLVIA LICHAUCO DE LEON, petitioner, vs. THE HON. COURT OF APPEALS, MACARIA DE LEON AND JOSE VICENTE DE LEON, respondents. MEDIALDEA, J.: This is a petition for review on certiorari of the decision of the Court of Appeals in CAG.R. CV No. 06649 dated June 30, 1987 the decision of the Regional Trial Court of Pasig in SP Proc. No. 8492 dated December 29, 1983; and its resolution dated November 24, 1987 denying the motion for reconsideration.

The antecedent facts are as follows: On October 18, 1969, private respondent Jose Vicente De Leon and petitioner Sylvia Lichauco De Leon were united in wedlock before the Municipal Mayor of Binangonan, Rizal. On August 28, 1971, a child named Susana L. De Leon was born from this union. Sometime in October, 1972, a de facto separation between the spouses occured due to irreconcilable marital differences, with Sylvia leaving the conjugal home. Sometime in March, 1973, Sylvia went to the United States where she obtained American citizenship. On November 23, 1973, Sylvia filed with the Superior Court of California, County of San Francisco, a petition for dissolution of marriage against Jose Vicente. In the said divorce proceedings, Sylvia also filed claims for support and distribution of properties. It appears, however, that since Jose Vicente was then a Philippine resident and did not have any assets in the United States, Sylvia chose to hold in abeyance the divorce proceedings, and in the meantime, concentrated her efforts to obtain some sort of property settlements with Jose Vicente in the Philippines. Thus, on March 16, 1977, Sylvia succeeded in entering into a Letter-Agreement with her mother-in-law, private respondent Macaria De Leon, which We quote in full, as follows (pp. 40-42, Rollo): March 16, 1977 Mrs. Macaria Madrigal de Leon 12 Jacaranda, North Forbes Park Makati, Metro Manila Dear Dora Macaria: This letter represents a contractual undertaking among (A) the undersigned (B) your son, Mr. Jose Vicente de Leon, represented by you, and (C) yourself in your personal capacity. You hereby bind yourself jointly and severally to answer for the undertakings of Joe Vincent under this contract. In consideration for a peaceful and amicable termination of relations between the undersigned and her lawfully wedded husband, Jose Vicente de Leon, your son, the following are agreed upon: Obligations of Jose Vicente de Leon and/ or yourself in a joint and several capacity: 1. To deliver with clear title free from all liens and encumbrances and subject to no claims in any form whatsoever the following properties to Sylvia Lichauco-de Leon hereinafter referred to as the wife: A. Suite 11-C, Avalon Condominium, Ortigas Ave., corner Xavier St., Mandaluyong, Rizal, Philippines.

B. Apartment 702, Wack Wack Condominium, Mandaluyong, Rizal, Philippines. C. The rights to assignment of 2 Ayala lots in Alabang, Rizal (Corner lots, 801 s q. meters each). (Fully paid). D. 2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18 Block 22 Westborough Unit No. 2). (Fully paid). E. 1) The sum of One Hundred Thousand Pesos (P100,000) 2) $30,000 3) $5,000 2. To give monthly support payable six (6) months in advance every year to any designated assignee of the wife for the care and upbringing of Susana Lichauco de Leon which is hereby pegged at the exchange rate of 7.50 to the dollar subject to adjustments in the event of monetary exchange fluctuations. Subsequent increase on actual need upon negotiation. 3. To respect the custody of said minor daughter as pertaining exclusively to the wife except as herein provided. Obligations of the wife: 1. To agree to a judicial separation of property in accordance with Philippine law and in this connection to do all that may be necessary to secure said separation of property including her approval in writing of a joint petition or consent decree. 2. To amend her complaint in the United States before the Federal Court of California, U.S.A. entitled "Sylvia Lichauco de Leon vs. Jose V. de Leon" in a manner compatible with the objectives of this herein agreement. It is the stated objective of this agreement that said divorce proceedings will continue. 3. All the properties herein described for assignment to the wife must be assigned to Sylvia Lichauco de Leon upon the decree of the Court of First Instance in the Joint Petition for Separation of Property; except for the P100,000, $30,000 and $5,000 which will be paid immediately. 4. This contract is intended to be applicable both in the Republic of the Philippines and in the United States of America. It is agreed that this will constitute an actionable document in both jurisdictions and the parties herein waive their right to object to the use of this document in the event a legal issue should arise relating to the validity of this document. In the event of a dispute, this letter is subject to interpretation under the laws of California, U.S.A. 5. To allow her daughter to spend two to three months each year with the father upon mutual convenience.

Very truly yours, (Sgd.) Sylvia de Leon t/ SYLVIA L. DE LEON CONFORME: s/t/MACARIA M. DE LEON with my marital consent: s/t/JUAN L. DE LEON On the same date, Macaria made cash payments to Sylvia in the amount of P100,000 and US$35,000.00 or P280,000.00, in compliance with her obligations as stipulated in the aforestated Letter-Agreement. On March 30, 1977, Sylvia and Jose Vicente filed before the then Court of First Instance of Rizal a joint petition for judicial approval of dissolution of their conjugal partnership, the main part of which reads as follows (pp. 37-38, Rollo): 5. For the best interest of each of them and of their minor child, petitioners have agreed to dissolve their conjugal partnership and to partition the assets thereof, under the following terms and conditions-this document, a pleading being intended by them to embody and evidence their agreement: xxx xxx xxx (c) The following properties shall be adjudicated to petitioner Sylvia Lichauco De Leon. These properties will be free of any and all liens and encumbrances, with clear title and subject to no claims by third parties. Petitioner Jose Vicente De Leon fully assumes all responsibility and liability in the event these properties shall not be as described in the previous sentence: Sedan (1972 model) Suite 11-C, Avalon Condominium, Ortigas Ave., comer Xavier St., Mandaluyong, Rizal, Philippines Apt. 702, Wack-Wack Condominium, Mandaluyong, Rizal, Philippines The rights to assignment of 2 Ayala lots in Alabang Rizal (corner lots, 801 sq. meters each) (Fully paid) 2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18, Block 22 Westborough Unit 2) (Fully paid) The sum of One Hundred Thousand Pesos (P100,000.00) $30,000.00 at current exchange rate $5,000.00 at current exchange rate After ex-parte hearings, the trial court issued an Order dated February 19, 1980 approving the petition, the dispositive portion of which reads (p. 143, Rollo):

WHEREFORE, it is hereby declared that the conjugal partnership of the Spouses is DISSOLVED henceforth, without prejudice to the terms of their agreement that each spouse shall own, dispose of, possess, administer and enjoy his or her separate estate, without the consent of the other, and all earnings from any profession, business or industries shall likewise belong to each spouse. On March 17, 1980, Sylvia moved for the execution of the above-mentioned order. However, Jose Vicente moved for a reconsideration of the order alleging that Sylvia made a verbal reformation of the petition as there was no such agreement for the payment of P4,500.00 monthly support to commence from the alleged date of separation in April, 1973 and that there was no notice given to him that Sylvia would attempt verbal reformation of the agreement contained in the joint petition While the said motion for reconsideration was pending resolution, on April 20, 1980, Macaria filed with the trial court a motion for leave to intervene alleging that she is the owner of the properties involved in the case. The motion was granted. On October 29, 1980, Macaria, assisted by her husband Juan De Leon, filed her complaint in intervention. She assailed the validity and legality of the Letter-Agreement which had for its purpose, according to her, the termination of marital relationship between Sylvia and Jose Vicente. However, before any hearing could be had, the judicial reorganization took place and the case was transferred to the-Regional Trial Court of Pasig. On December 29, 1983, the trial court rendered judgment, the dispositive portion of which reads (pp. 35-36, Rollo): WHEREFORE, judgment is hereby rendered on the complaint in intervention in favor of the intervenor, declaring null and void the letter agreement dated March 16, 1977 (Exhibits 'E' to 'E-2'), and ordering petitioner Sylvia Lichauco De Leon to restore to intervenor the amount of P380,000.00 plus legal interest from date of complaint, and to pay intervenor the amount of P100,000.00 as and for attorney's fees, and to pay the costs of suit. Judgment is likewise rendered affirming the order of the Court dated February 19, 1980 declaring the conjugal partnership of the spouses Jose Vicente De Leon and Sylvia Lichauco De Leon DISSOLVED; and adjudicating to each of them his or her share of the properties and assets of said conjugal partnership in accordance with the agreement embodied in paragraph 5 of the petition, except insofar as the adjudication to petitioner Sylvia L. De Leon of the properties belonging to and owned by Intervenor Macaria De Leon is concerned. Henceforth, (a) each spouse shall own, dispose of, possess, administer and enjoy his or her separate estate, present and future without the consent of the other; (b) an earnings from any profession, business or industry shall likewise belong to each of them separately; (c) the minor child Susana De Leon shall stay with petitioner Sylvia Lichauco De Leon for two to three months every year-the transportation both ways of the child for the trip to the Philippines to be at the expense of the petitioner Jose Vicente De Leon; and (d) petitioner Jose Vicente De Leon shall give petitioner Sylvia Lichauco De Leon the sum of P4,500.00 as monthly support for the minor child Susana to commence from February 19, 1980. Sylvia appealed to the respondent Court of Appeals raising the following errors:

1) The trial court erred in finding that the cause or consideration of the LetterAgreement is the termination of marital relations; 2) The trial court failed to appreciate testimonial and documentary evidence proving that Macaria de Leon's claims of threat, intimidation and mistake are baseless; and 3) The trial court erred in finding that Sylvia Lichauco de Leon committed breach of the Letter-Agreement; and further, failed to appreciate evidence proving Macaria de Leon's material breach thereof. The respondent court affirmed the decision in toto. The motion for reconsideration was denied. Hence, the present petition. The only basis by which Sylvia may lay claim to the properties which are the subject matter of the Letter-Agreement, is the Letter-Agreement itself. The main issue, therefore, is whether or not the Letter-Agreement is valid. The third paragraph of the Letter-Agreement, supra, reads: In consideration for a peaceful and amicable termination of relations between the undersigned and her lawfully wedded husband, Jose Vicente De Leon, your son, the following are agreed upon: (emphasis supplied) It is readily apparent that the use of the word "relations" is ambiguous, perforce, it is subject to interpretation. There being a doubt as to the meaning of this word taken by itself, a consideration of the general scope and purpose of the instrument in which it occurs (see Germann and Co. v. Donaldson, Sim and Co., 1 Phil. 63) and Article 1374 of the Civil Code which provides that the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly, is necessary. Sylvia insists that the consideration for her execution of the Letter-Agreement was the termination of property relations with her husband. Indeed, Sylvia and Jose Vicente subsequently filed a joint petition for judicial approval of the dissolution of their conjugal partnership, sanctioned by Article 191 of the Civil Code. On the other hand, Macaria and Jose Vicente assert that the consideration was the termination of marital relationship. We sustain the observations and conclusion made by the trial court, to wit (pp. 44- 46, Rollo): On page two of the letter agreement (Exhibit' E'), the parties contemplated not only to agree to a judicial separation of property of the spouses but likewise to continue with divorce proceedings (paragraphs 1 and 2, Obligations of the Wife, Exhibit 'E-1'). If taken with the apparently ambiguous provisions in Exhibit E' regarding termination of 'relations', the parties clearly contemplated not only the termination of property relationship but likewise of marital relationship in its entirety. Furthermore, it would be safe to assume that the parties in Exhibit 'E' not having specified the particular relationship which they wanted to peacefully and amicably terminate had intended to terminate all kinds of relations, both marital and property. While there could be inherent benefits to a termination of conjugal property relationship between the spouses, the court could not clearly perceive the underlying benefit for the intervenor insofar as termination of property relationship between petitioners is concerned, unless the

underlying consideration for intervenor is the termination of marital relationship by divorce proceedings between her son Jose Vicente and his wife petitioner Sylvia. The last sentence of paragraph 2 under "Obligations of the Wife" unequivocally states: "It is the stated objective of this agreement that said divorce proceedings (in the United States) will continue. "There is merit in concluding that the consideration by which Intervenor executed Exhibit 'E' to 'E-2' was to secure freedom for her son petitioner Jose Vicente De Leon, especially if Exhibit 'R'-Intervenor, which is (sic) agreement signed by petitioner Sylvia to consent to and pardon Jose Vicente De Leon for adultery and concubinage (among others) would be considered. In the light, therefore, of the foregoing circumstances, this Court finds credible the testimony of intervenor as follows: Q Will you please go over the Exhibit 'E' to 'E-2'- intervenor consisting of three pages and inform us whether or not this is the letter of March 16, 1977 which you just referred to? A Yes, this is the letter. Why did you affix your signature to this Exh. 'E'-intervenor (sic)? A Because at that time when I signed it I want to buy peace for myself and for the whole family. Q From whom did you want to buy peace and/or what kind of peace? A I wanted to buy peace from Sylvia Lichauco whom I knew was kind of 'matapang;' so I want peace for me and primarily for the peaceful and amicable termination of marital relationship between my son, Joe Vincent and Sylvia. (Deposition dated September 6, 1983-Macaria de Leon, p. 6-7) This Court, therefore, finds and holds that the cause or consideration for the intervenor Macaria De Leon in having executed Exhibits 'E' to 'E-2' was the termination of the marital relationship between her son Jose Vicente De Leon and Sylvia Lichauco de Leon. Article 1306 of the New Civil Code provides: Art. 1306. The contracting parties may establish such stipulations, clauses, terms, and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy. If the stipulation is contrary to law, morals or public policy, the contract is void and inexistent from the beginning.

Art. 1409. The following contracts are inexistent and void from the beginning: Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy; xxx xxx xxx (7) Those expressly prohibited or declared void by law. These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived. But marriage is not a mere contract but a sacred social institution. Thus, Art. 52 of the Civil Code provides: Art. 52. Marriage is not a mere contract but an inviolable social institution. Its nature, consequences and incidents are governed by law and not subject to stipulations... From the foregoing provisions of the New Civil Code, this court is of the considered opinion and so holds that intervenor's undertaking under Exhibit 'E' premised on the termination of marital relationship is not only contrary to law but contrary to Filipino morals and public Policy. As such, any agreement or obligations based on such unlawful consideration and which is contrary to public policy should be deemed null and void. (emphasis supplied) Additionally, Article 191 of the Civil Case contemplates properties belonging to the spouses and not those belonging to a third party, who, in the case at bar., is Macaria. In the petition for the dissolution of the conjugal partnership, it was made to appear that the said properties are conjugal in nature. However, Macaria was able to prove that the questioned properties are owned by her. Neither Sylvia nor Jose Vicente adduced any contrary evidence. Granting, in gratia argumenti, that the consideration of the Letter-Agreement was the termination of property relations, We agree with the respondent court that (pp. 46-47, Rollo): ... the agreement nevertheless is void because it contravenes the following provisions of the Civil Code: Art. 221. The following shall be void and of no effect: (1) Any contract for personal separation between husband and wife; (2) Every extra-judicial agreement, during marriage, for the dissolution of the conjugal partnership of gains or of the absolute community of property between husband and wife; Besides, the Letter-Agreement shows on its face that it was prepared by Sylvia, and in this regard, the ambiguity in a contract is to be taken contra proferentem, i.e., construed against the party who caused the ambiguity and could have also avoided it

by the exercise of a little more care. Thus, Article 1377 of the Civil Code provides: "The interpretation of obscure words of stipulations in a contract shall not favor the party who caused the obscurity" (see Equitable Banking Corp. vs. IAC, G.R. No. 74451, May 25, 1988, 161 SCRA 518). Sylvia alleges further that since the nullity of the Letter-Agreement proceeds from the unlawful consideration solely of Macaria, applying the pari delicto rule, it is clear that she cannot recover what she has given by reason of the Letter-Agreement nor ask for the fulfillment of what has been promised her. On her part, Macaria raises the defenses of intimidation and mistake which led her to execute the Letter-Agreement. In resolving this issue, the trial court said (pp. 148-151, Rollo): In her second cause of action, intervenor claims that her signing of Exhibits 'E' to 'E- 2' was due to a fear of an unpeaceful and troublesome separation other son with petitioner Sylvia Lichauco de Leon. In support of her claim, intervenor testified as follows: Q Will you please inform us how did Sylvia Lichauco disturb or threaten your son or yourself? A Despite the fact that Sylvia Lichauco voluntarily left my son Joe Vincent and abandoned him, she unashamedly nagged Joe and me to get money and when her demands were not met she resorted to threats like, she threatened to bring Joe to court for support. Sylvia threatened to scandalize our family by these baseless suits; in fact she caused the service of summons to Joe when he went to the United States. (Intervenor's deposition dated Sept. 6, 1983, p. 8). On the other hand, petitioner Sylvia claims that it was intervenor and petitioner Jose Vicente who initiated the move to convince her to agree to a dissolution of their conjugal partnership due to the alleged extra-marital activities of petitioner Jose Vicente de Leon. She testified as follows: Q Now in her testimony, Macaria Madrigal de Leon also said that you threatened her by demanding money and nagged her until she agreed to the letter agreement of March 1977, what can you say about that? A I think with all the people sitting around with Atty. Quisumbing, Atty. Chuidian, my fatherin-law, my sister-in-law and I, you know, it can be shown that this was a friendly amicable settlement that they were much really interested in settling down as I was. I think there were certain reasons that they wanted to get done or planned, being at that time Jose was already remarried and had a child. That since she then found out that since she was worried about what might be, you know, involved in any future matters. She

just wanted to do what she could. She just want me out of the picture. So in no way, it cannot be said that I nagged and threatened her. (TSN dated December 8, 1983, p. 137138) In resolving this issue, this Court leans heavily on Exhibit 'R'intervenor, which was not controverted by petitioner Sylvia. A reading of Exhibit 'R' would show that petitioner Sylvia would consent to and pardon petitioner Jose Vicente, son of intervenor, for possible crimes of adultery and/or concubinage, with a sizing attached; that is, the transfer of the properties subject herein to her. There appears some truth to the apprehensions of intervenor for in petitioner Sylvia's testimony she confirms the worry of intervenor as follows:'... being at that time Jose (De Leon) was already remarried and had a child. That since she (intervenor) found out that, she was worried about what might be, you know, involved in any future matters. She just want me out of the picture." The aforesaid fear of intervenor was further corroborated by her witness Concepcion Tagudin who testified as follows: Q Now, you mentioned that you were present when Mrs. Macaria De Leon signed this Exhibit 'E-2, ' will you inform us whether there was anything unusual which you noticed when Mrs. Macaria M. De Leon signed this Exhibit 'E-2'? A Mrs. Macaria M. De Leon was in a state of tension and anger. She was so mad that she remarked: 'Punetang Sylvia ito bakit ba niya ako ginugulo. Ipakukulong daw niya si Joe Vincent kung hindi ko pipirmahan ito. Sana matapos na itong problemang ito pagkapirmang ito,' sabi niya.' (DepositionConcepcion Tagudin, Oct. 21, 1983, pp. 1011) In her third cause of action, intervenor claims mistake or error in having signed Exhibits '1' to 'E-2' alleging in her testimony as follows: Q Before you were told such by your lawyers what if any were your basis to believe that Sylvia would no longer have inheritance rights from your son, Joe Vincent? A Well, that was what Sylvia told me. That she will eliminate any inheritance rights from me or my son Joe Vincent's properties if I sign the document amicably. ... (Intervenor's deposition-Sept. 6, 1983, pp. 9-10). On the other hand, petitioner Sylvia claims that intervenor could not have been mistaken in her having signed the document as she was under advice of counsel during the time that Exhibits 'E' to 'E-2' was negotiated. To support such claims by Sylvia

Lichauco De Leon, the deposition testimony of Atty. Vicente Chuidian was presented before this Court: Atty. Herbosa: Now you mentioned Atty. Norberto Quisumbing, would you be able to tell us in what capacity he was present in that negotiation? Atty. Chuidian: He was counsel for Dona Macaria and for Joe Vincent, the spouse of Sylvia. (Deposition of V. Chuidian, December 16, 1983, p. 8) The New Civil Code provides: Art. 1330. A contract where consent is given through mistake, violence, intimidation, undue influence or fraud is voidable. Art. 1331. In order that mistake may invalidate consent, it should refer to the substance of the thing which is the object of the contract, or to those conditions which have principally moved one or both parties to enter into a contract. ... The preponderance of evidence leans in favor of intervenor who even utilized the statement of the divorce lawyer of petitioner Sylvia (Mr. Penrod) in support of the fact that intervenor was mistaken in having signed Exhibits 'E' to 'E-2' because when she signed said Exhibits she believed that fact that petitioner Sylvia would eliminate her inheritance rights and there is no showing that said intervenor was properly advised by any American lawyer on the fact whether petitioner Sylvia, being an American citizen, could rightfully do the same. Transcending, however, the issue of whether there was mistake of fact on the part of intervenor or not, this Court could not. see a valid cause or consideration in favor of intervenor Macaria De Leon having signed Exhibits 'E' to 'E-2.' For even if petitioner Sylvia had confirmed Mr. Penrod's statement during the divorce proceedings in the United States that she would undertake to eliminate her hereditary rights in the event of the property settlement, under Philippine laws, such contract would likewise be voidable, for under Art. 1347 of the New Civil Code 'no contract may be entered into upon future inheritance. We do not subscribe to the aforestated view of the trial court. Article 1335 of the Civil Code provides: xxx xxx xxx There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. To determine the degree of the intimidation, the age, sex and condition of the person shall be borne in mind.

A threat to enforce one's claim through competent authority, if the claim is just or legal, does not vitiate consent. In order that intimidation may vitiate consent and render the contract invalid, the following requisites must concur: (1) that the intimidation must be the determining cause of the contract, or must have caused the consent to be given; (2) that the threatened act be unjust or unlawful; (3) that the threat be real and serious, there being an evident disproportion between the evil and the resistance which all men can offer, leading to the choice of the contract as the lesser evil; and (4) that it produces a reasonable and well-grounded fear from the fact that the person from whom it comes has the necessary means or ability to inflict the threatened injury. Applying the foregoing to the present case, the claim of Macaria that Sylvia threatened her to bring Jose Vicente to court for support, to scandalize their family by baseless suits and that Sylvia would pardon Jose Vicente for possible crimes of adultery and/or concubinage subject to the transfer of certain properties to her, is obviously not the intimidation referred to by law. With respect to mistake as a vice of consent, neither is Macaria's alleged mistake in having signed the Letter-Agreement because of her belief that Sylvia will thereby eliminate inheritance rights from her and Jose Vicente, the mistake referred to in Article 1331 of the Civil Code, supra. It does not appear that the condition that Sylvia "will eliminate her inheritance rights" principally moved Macaria to enter into the contract. Rather, such condition was but an incident of the consideration thereof which, as discussed earlier, is the termination of marital relations. In the ultimate analysis, therefore, both parties acted in violation of the laws. However, the pari delicto rule, expressed in the maxims "Ex dolo malo non oritur actio" and "In pari delicto potior est conditio defendentis," which refuses remedy to either party to an illegal agreement and leaves them where they are, does not apply in this case. Contrary to the ruling of the respondent Court that (pp. 47-48, Rollo): ... [C]onsequently, intervenor appellees' obligation under the said agreement having been annulled, the contracting parties shall restore to each other that things which have been subject matter of the contract, their fruits and the price or its interest, except as provided by law (Art. 1398, Civil Code). Article 1414 of the Civil Code, which is an exception to the pari delicto rule, is the proper law to be applied. It provides: When money is paid or property delivered for an illegal purpose, the contract may be repudiated by one of the parties before the purpose has been accomplished, or before any damage has been caused to a third person. In such case, the courts may, if the public interest wig thus be subserved, allow the party repudiating the contract to recover the money or property. Since the Letter-Agreement was repudiated before the purpose has been accomplished and to adhere to the pari delicto rule in this case is to put a premium to the circumvention of the laws, positive relief should be granted to Macaria. Justice would be served by allowing her to be placed in the position in which she was before the transaction was entered into. With the conclusions thus reached, We find it unnecessary to discuss the other issues raised. ACCORDINGLY, the petition is hereby DENIED. The decision of the respondent Court of Appeals dated June 30, 1987 and its resolution dated November 24, 1987 are AFFIRMED.

SO ORDERED. G.R. No. L-16925 July 24, 1962

FABIAN PUGEDA, plaintiff-appellee, vs. RAFAEL TRIAS, MIGUEL TRIAS, SOLEDAD TRIAS, assisted by her husband ANGEL SANCHEZ, CLARA TRIAS, assisted by her husband VICTORIANO SALVADOR, GABRIEL TRIAS, minors ROMULO VINIEGRA, GLORIA VINIEGRA and FERNANDO VINIEGRA, JR., assisted by guardian-ad-litem, RAFAEL TRIAS, TEOFILO PUGEDA, and VIRGINIA PUGEDA, assisted by her husband RAMON PORTUGAL, defendants-appellants. RESOLUTION LABRADOR, J.: This resolution concerns a motion for the reconsideration of the decision rendered by this Court. The main argument in support of the motion is that the lots not fully paid for at the time of the death of Miguel Trias, which lots were, by provision of the Friar Lands Act (Act No. 1120), subsequently transferred to the widow's name and later paid for by her out of the proceeds of the fruits of the lands purchased, and for which titles were issued in the name of the widow, belong to the latter as her exclusive paraphernal properties, and are not conjugal properties of her deceased husband and herself. In our decision we laid down the rule that upon the issuance of a certificate of sale to the husband of a lot in a friar lands estate, purchased by the Government from the friars, the land becomes the property of the husband and the wife, and the fact that the certificate of sale is thereafter transferred to the wife does not change the status of the property so purchased as conjugal property of the deceased husband and wife. The reason for this ruling is the provision of the Civil Code to the effect that properties acquired by husband and wife are conjugal properties. (Art. 1401, Civil Code of Spain). The provision of the Friar Lands Act to the effect that upon the death of the husband the certificate of sale is transferred to the name of the wife is merely an administrative device designed to facilitate the documentation of the transaction and the collection of installments; it does not produce the effect of destroying the character as conjugal property of the lands purchased. Hence, the issuance of the title, after completion of the installments, in the name of the widow does not make the friar lands purchased her own paraphernal property. The said lands, notwithstanding a certificate of sale, continue to be the conjugal property of her deceased husband and herself. The case of Arayata vs. Joya, et al., 51 Phil. 654, cited by the movants, is not applicable to the case at bar because it refers to the superior rights of the widow recognized in Section 16 of Act No. 1120 over transfers made by the husband which have not been approved by the Director of Lands. As a matter of fact the syllabus in said case is as follows: Widow's rights. The widow of a holder of a certificate of sale of friar lands acquired by the Government has an exclusive right to said lands and their fruits from her husband's death, provided that the deceased has not conveyed them to another during his lifetime and she fulfills the requirements prescribed by the law for the purchase of the same. A minor ground for the reconsideration is that the decision of Judge Lucero, having been set aside by the Court of Appeals, could not be affirmed by Us. The setting aside of the said decision was due to the fact that newly discovered evidence was found regarding the partition of the estate of the deceased. The setting aside of the decision

was not aimed or directed at the judge's ruling that the properties acquired by the husband during his lifetime from the friar lands estate were conjugal properties of the husband and the wife.. The third ground raised is that the lots were never partitioned as conjugal assets of Mariano Trias and Maria C. Ferrer. One of the arguments adduced in favor of the claim of the movants that the properties in question, which were acquired during the lifetime of Mariano Trias, were never partitioned is that, according to the records of the Register of Deeds and according to the friar lands agents, the alleged partition of the said properties as conjugal properties of the deceased Mariano Trias and Maria C. Ferrer had not been registered in said offices. The failure to make the registration is perhaps due to the neglect the heirs. The fact, however, remains that the exhibits presented in Court, especially Exhibit "3-Trias" and Annex "E", which are the project of partition and the approval thereof, cannot be ignored by this Court. The neglect of the parties in not actually partitioning the properties do not argue in favor of the fact that partition was not a actually decreed. Adjudications may be made pro indiviso without actual division or partition of the properties among the heirs. WHEREFORE, the motion for reconsideration is hereby denied and the judgment rendered declared final. So ordered. G.R. No. L-8014 March 14, 1955

both questions of law and fact, and both appeals are indivisible in that they pertain to only one case, that court resolved to certify it to this Court pursuant to the provisions of sections 17 and 31 of the Judiciary Act of 1948, upon the theory that one of the appeals is exclusively cognizable by the Supreme Court. The only issue before us is whether respondent, being an ecclesiastic, is ineligible to hold office under section 2175 of the Revised Administrative Code, or whether he actually resigned as minister before the date of the elections, and his resignation duly accepted, as claimed, thereby removing his disability. As may be noted, this is a question of fact the determination of which much depends upon the credibility and weight of the evidence of both parties. The evidence for petitioner tends to show that respondent was ordained as minister of the Evangelical Church of the Philippines in 1944 and as such was given license to solemnize marriages by the Bureau of Public Libraries; that since 1944 up to 1950 he acted as minister in the town of Rizal, Nueva Ecija, continuously and without interruption and has been renewing his license to solemnize marriages as prescribed by the regulations of the Bureau of Public Libraries; that on April 19, 1950, respondent transferred to the United Church of Christ in the Philippines, having been assigned to work in the same place and chapel during the years 1944-1950; that on April 7, 1951, respondent applied for, and was issued, a license to solemnize marriages by the Bureau of Public Libraries as minister of the new church up to the end of April, 1952; that said license has never been cancelled, as neither the head of the united church nor respondent has requested for its cancellation; and that respondent has been publicly known as minister of the United Church of Christ, but he has not attached to his certificate of candidacy a copy of his alleged resignation as minister. The evidence for the respondent, on the other hand, tends to show that while he was formerly a minister of the United of Christ in the Philippines, he, however, filed his resignation as such minister on August 21, 1951, because of his desire to engage in politics; that said resignation was accepted by the cabinet of his church at a special meeting held in Polo, Bulacan on August 27, 1951; that respondent turned over his chapel and his office to the elder members of his religious order on August 21, 1951, and since then he considered himself separated from his order and in fact he has refrained ever since from conducting any religious services pertaining to that order. Which of these versions is correct? After careful examining the evidence of record, and after weighing its credibility and probative value, we have not found any reason for deviating from the finding of the trial court that respondent never ceased as minister of the order to which he belonged and that the resignation he claims to have filed months before the date of the elections is but a mere scheme to circumvent the prohibition of the law regarding ecclesiastics who desire to run for a municipal office. Indeed, if respondent really and sincerely intended to resign as minister of the religious organization to which he belonged for the purpose of launching his candidacy why did he not resign in due form and have the acceptance of his resignation registered with the Bureau of Public Libraries.1 The importance of resignation cannot be underestimated. The purpose of registration is two-fold: to inform the public not only of the authority of the minister to discharge religious functions, but equally to keep it informed of any change in his religious status. This information is necessary for the protection of the public. This is specially so with regard to the authority to solemnized marriages, the registration of which is made by the law mandatory (Articles 92-96, new Civil Code). It is no argument to say that the duty to secure the cancellation of the requisite resignation devolves, not upon respondent, but upon the head of his organization or upon the official in charge of such registration, upon proper showing of the reason for such cancellation, because the law likewise imposes upon the interested party the duty of effecting such cancellation, who in the instant case is the respondent himself. This he failed to do. And what is more, he failed to attach to his certificate of candidacy, a copy of his

PEDRO V. VILAR, petitioner-appellant, vs. GAUDENCIO V. PARAISO, respondent-appellant. BAUTISTA ANGELO, J.: In the general elections held on November 13, 1951, Pedro V. Vilar and Gaudencio V. Paraiso were among the candidates registered and voted for the office of mayor of Rizal, Nueva Ecija. after the canvass was made, Vilar obtained 1,467 votes while Paraiso garnered 1,509, and as a result the municipal board of canvassers proclaimed the latter as the mayor duly elected with a plurality of 41 votes. However, contending that Paraiso was ineligible to hold office as mayor because he was then a minister of the United Church of Christ in the Philippines and such was disqualified to be a candidate under section 2175 of the Revised Administrative Code, Vilar instituted the present quo warranto proceedings praying that Paraiso be declared ineligible to assume office and that his proclamation as mayor-elect be declared null and void. He also prayed that he be declared duly elected mayor of Rizal, Nueva Ecija, in lieu of respondent Paraiso. Respondent in his answer denied his ineligibility and claimed that he resigned as minister of the United Church of Christ in the Philippines on August 21, 1951, that his resignation was accepted by the cabinet of his church at a special meeting held in Polo, Bulacan on August 27, 1951, and that even if respondent was not eligible to the office, petitioner could not be declared elected to take his place. After due trial, the court found respondent to be ineligible for the office of mayor, being an ecclesiastic, and, consequently, it declared his proclamation as mayor null and void, but refrained from declaring petitioner as mayor-elect for lack of sufficient legal grounds to do so. from this election both parties have appealed, respondent from that portion finding him ineligible, and petitioner from that portion holding he cannot be declared elected as mayor for lack of sufficient legal grounds to do so. The case was originally taken to the Court of Appeals. However, as the latter court found that while petitioner raises in his brief only questions of law respondent raises

alleged resignation as minister knowing full well that a minister is disqualified by law to run for a municipal office. It is true that respondent attempted to substantiate his claim by submitting as evidence certain documents purporting to show the alleged resignation and its acceptance by the cabinet of his church at a meeting held on August 27, 1951, but, considering said documents in the light of the shortcomings we have pointed out above, one cannot help but brand them as self-serving or as documents merely prepared to serve the political designs of respondent in an attempt to obviate his disqualification under the law. And this feeling appears strengthened if we examine the so-called minute book wherein, according to witness Jose Agpalo, are entered the minutes of all the meeting of the church, because upon an examination thereof one would at once get the impression that it was prepared haphazardly and not with such seriousness and solemnity that should characterize the religious activities of a well established religious order. As the trial court aptly remarked "All these lead the court to believe with the petitioner, that the supposed resignation and acceptance were made at a later date to cure the ineligibility of the respondent." We are therefore constrained to hold that respondent is disqualified to hold the office of mayor as found by the trial court. As to the question whether, respondent being ineligible, petitioner can be declared elected, having obtained second place in the elections, our answer is simple: this Court has already declared that this cannot be done in the absence of an express provision authorizing such declaration. Our law not only does not contain any such provision but apparently seems to prohibit it. This is what we said in at least two cases where we laid down a ruling which is decisive of the present case. . . . . In the first case when the person elected is ineligible, the court cannot declare that the candidate occupying the second place has been elected, even if he were eligible, since the law only authorizes a declaration of election in favor of the person who has obtained a plurality of votes, and has presented his certificate of candidacy. (Nuval vs. Guray, 52 Phil., 645.) Section 173 of Republic Act No. 180 known as the Revised Election Code, does not provide that if the contestee is declared ineligible the contestant will be proclaimed. Indeed it may be gathered that the law contemplates no such result, because it permits the filing of the contest by any registered candidate irrespective of whether the latter occupied the next highest place or the lowest in the election returns. (Llamoso vs. Ferrer, et al., 84 Phil., 489, 47 Off. Gaz., [No. 2] p. 727.) Wherefore, the decision appealed from is affirmed, without pronouncement as to costs. A.M. No. MTJ-02-1390 April 11, 2002 (Formerly IPI No. 01-1049-MTJ) MERCEDITA MATA ARAES, petitioner, vs. JUDGE SALVADOR M. OCCIANO, respondent. PUNO, J.: Petitioner Mercedita Mata Araes charges respondent judge with Gross Ignorance of the Law via a sworn Letter-Complaint dated 23 May 2001. Respondent is the Presiding Judge of the Municipal Trial Court of Balatan, Camarines Sur. Petitioner alleges that on 17 February 2000, respondent judge solemnized her marriage to her

late groom Dominador B. Orobia without the requisite marriage license and at Nabua, Camarines Sur which is outside his territorial jurisdiction. They lived together as husband and wife on the strength of this marriage until her husband passed away. However, since the marriage was a nullity, petitioner's right to inherit the "vast properties" left by Orobia was not recognized. She was likewise deprived of receiving the pensions of Orobia, a retired Commodore of the Philippine Navy.1wphi1.nt Petitioner prays that sanctions be imposed against respondent judge for his illegal acts and unethical misrepresentations which allegedly caused her so much hardships, embarrassment and sufferings. On 28 May 2001, the case was referred by the Office of the Chief Justice to then Acting Court Administrator Zenaida N. Elepao for appropriate action. On 8 June 2001, the Office of the Court Administrator required respondent judge to comment. In his Comment dated 5 July 2001, respondent judge averred that he was requested by a certain Juan Arroyo on 15 February 2000 to solemnize the marriage of the parties on 17 February 2000. Having been assured that all the documents to the marriage were complete, he agreed to solemnize the marriage in his sala at the Municipal Trial Court of Balatan, Camarines Sur. However, on 17 February 2000, Arroyo informed him that Orobia had a difficulty walking and could not stand the rigors of travelling to Balatan which is located almost 25 kilometers from his residence in Nabua. Arroyo then requested if respondent judge could solemnize the marriage in Nabua, to which request he acceded. Respondent judge further avers that before he started the ceremony, he carefully examined the documents submitted to him by petitioner. When he discovered that the parties did not possess the requisite marriage license, he refused to solemnize the marriage and suggested its resetting to another date. However, due to the earnest pleas of the parties, the influx of visitors, and the delivery of provisions for the occasion, he proceeded to solemnize the marriage out of human compassion. He also feared that if he reset the wedding, it might aggravate the physical condition of Orobia who just suffered from a stroke. After the solemnization, he reiterated the necessity for the marriage license and admonished the parties that their failure to give it would render the marriage void. Petitioner and Orobia assured respondent judge that they would give the license to him in the afternoon of that same day. When they failed to comply, respondent judge followed it up with Arroyo but the latter only gave him the same reassurance that the marriage license would be delivered to his sala at the Municipal Trial Court of Balatan, Camarines Sur. Respondent judge vigorously denies that he told the contracting parties that their marriage is valid despite the absence of a marriage license. He attributes the hardships and embarrassment suffered by the petitioner as due to her own fault and negligence. On 12 September 2001, petitioner filed her Affidavit of Desistance dated 28 August 2001 with the Office of the Court Administrator. She attested that respondent judge initially refused to solemnize her marriage due to the want of a duly issued marriage license and that it was because of her prodding and reassurances that he eventually solemnized the same. She confessed that she filed this administrative case out of rage. However, after reading the Comment filed by respondent judge, she realized her own shortcomings and is now bothered by her conscience. Reviewing the records of the case, it appears that petitioner and Orobia filed their Application for Marriage License on 5 January 2000. It was stamped in this Application

that the marriage license shall be issued on 17 January 2000. However, neither petitioner nor Orobia claimed it. It also appears that the Office of the Civil Registrar General issued a Certification that it has no record of such marriage that allegedly took place on 17 February 2000. Likewise, the Office of the Local Civil Registrar of Nabua, Camarines Sur issued another Certification dated 7 May 2001 that it cannot issue a true copy of the Marriage Contract of the parties since it has no record of their marriage. On 8 May 2001, petitioner sought the assistance of respondent judge so the latter could communicate with the Office of the Local Civil Registrar of Nabua, Camarines Sur for the issuance of her marriage license. Respondent judge wrote the Local Civil Registrar of Nabua, Camarines Sur. In a letter dated 9 May 2001, a Clerk of said office, Grace T. Escobal, informed respondent judge that their office cannot issue the marriage license due to the failure of Orobia to submit the Death Certificate of his previous spouse. The Office of the Court Administrator, in its Report and Recommendation dated 15 November 2000, found the respondent judge guilty of solemnizing a marriage without a duly issued marriage license and for doing so outside his territorial jurisdiction. A fine of P5,000.00 was recommended to be imposed on respondent judge. We agree. Under the Judiciary Reorganization Act of 1980, or B.P. 129, the authority of the regional trial court judges and judges of inferior courts to solemnize marriages is confined to their territorial jurisdiction as defined by the Supreme Court.1wphi1.nt The case at bar is not without precedent. In Navarro vs. Domagtoy,1 respondent judge held office and had jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. However, he solemnized a wedding at his residence in the municipality of Dapa, Surigao del Norte which did not fall within the jurisdictional area of the municipalities of Sta. Monica and Burgos. We held that: "A priest who is commissioned and allowed by his local ordinance to marry the faithful is authorized to do so only within the area or diocese or place allowed by his Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as the requisites of the law are complied with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge solemnizes a marriage outside his court's jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability."2 (Emphasis supplied.) In said case, we suspended respondent judge for six (6) months on the ground that his act of solemnizing a marriage outside his jurisdiction constitutes gross ignorance of the law. We further held that: "The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they are sworn to apply, more than the ordinary laymen. They should be skilled and competent in understanding and applying the law. It is imperative that they be conversant with basic legal principles like the ones involved in the instant case. x x x While magistrates may at times make mistakes in judgment, for which they are not penalized,

the respondent judge exhibited ignorance of elementary provisions of law, in an area which has greatly prejudiced the status of married persons."3 In the case at bar, the territorial jurisdiction of respondent judge is limited to the municipality of Balatan, Camarines Sur. His act of solemnizing the marriage of petitioner and Orobia in Nabua, Camarines Sur therefore is contrary to law and subjects him to administrative liability. His act may not amount to gross ignorance of the law for he allegedly solemnized the marriage out of human compassion but nonetheless, he cannot avoid liability for violating the law on marriage. Respondent judge should also be faulted for solemnizing a marriage without the requisite marriage license. In People vs. Lara,4 we held that a marriage which preceded the issuance of the marriage license is void, and that the subsequent issuance of such license cannot render valid or even add an iota of validity to the marriage. Except in cases provided by law, it is the marriage license that gives the solemnizing officer the authority to solemnize a marriage. Respondent judge did not possess such authority when he solemnized the marriage of petitioner. In this respect, respondent judge acted in gross ignorance of the law.1wphi1.nt Respondent judge cannot be exculpated despite the Affidavit of Desistance filed by petitioner. This Court has consistently held in a catena of cases that the withdrawal of the complaint does not necessarily have the legal effect of exonerating respondent from disciplinary action. Otherwise, the prompt and fair administration of justice, as well as the discipline of court personnel, would be undermined.5 Disciplinary actions of this nature do not involve purely private or personal matters. They can not be made to depend upon the will of every complainant who may, for one reason or another, condone a detestable act. We cannot be bound by the unilateral act of a complainant in a matter which involves the Court's constitutional power to discipline judges. Otherwise, that power may be put to naught, undermine the trust character of a public office and impair the integrity and dignity of this Court as a disciplining authority.6 WHEREFORE, respondent Judge Salvador M. Occiano, Presiding Judge of the Municipal Trial Court of Balatan, Camarines Sur, is fined P5,000.00 pesos with a STERN WARNING that a repetition of the same or similar offense in the future will be dealt with more severely. ROSALIA MARTINEZ, plaintiff-appellant, vs. ANGEL TAN, defendant-appellee. WILLARD, J.: The only question in this case is whether or not the plaintiff and the defendant were married on the 25th day of September, 1907, before the justice of the peace, Jose Ballori, in the town of Palompon in the Province of Leyte. There was received in evidence at the trial what is called an expediente de matrimonio civil. It is written in Spanish and consists, first, of a petition directed to the justice of the peace, dated on the 25th of September, 1907, signed by the plaintiff and the defendant, in which they state that they have mutually agreed to enter into a contract of marriage before the justice of the peace, and ask that the justice solemnize the marriage. Following this is a document dated on the same day, signed by the justice of the peace, by the plaintiff, by the defendant, and by Zacarias Esmero and Pacita Ballori. It states the presentation of the petition above mentioned; that the persons who signed it where actually present in the office of the justice on the same day named; that they ratified under oath the contents of the petition, and that they insisted in what they had there asked for. It also stated that being required to produce witnesses of the marriage, the presented Zacarias Esmero as a witness for the

husband and Pacita Ballori as a witness for the wife. Following this is a certificate of marriage signed by the justice of the peace and the witnesses Zacarias Esmero and Pacita Ballori, dated the 25th day of September, 1907, in which it is stated that the plaintiff and the defendant were legally married by the justice of the peace in the presence of the witnesses on that day. The court below decided the case in favor of the defendant, holding that the parties were legally married on the day named. The evidence in support of that decision is: First. The document itself, which the plaintiff admits that she signed. Second. The evidence of the defendant, who testifies that he and said plaintiff appeared before the justice of the peace at the time named, together with the witness Zacarias Esmero and Pacita Ballori, and that they all signed the document above mentioned. Third. The evidence of Zacarias Esmero, one of the above-named witnesses, who testifies that the plaintiff, the defendant, and Pacita Ballori appeared before the justice at the time named and did sign the document referred to. Fourth. The evidence of Pacita Ballori, who testified to the same effect. Fifth. The evidence of Jose Santiago, the bailiff of the court of the justice of the peace, who testified that the plaintiff, the defendant, the two witnesses above-named, and the justice of the peace were all present in the office of the justice of the peace at the time mentioned. The only direct evidence in favor of the plaintiff is her own testimony that she never appeared before the justice of the peace and never was married to the defendant. She admits that she signed the document in question, but says that she signed it in her own home, without reading it, and at the request of the defendant, who told her that it was a paper authorizing him to ask the consent of her parents to the marriage. There is some indirect evidence which the plaintiff claims supports her case, but which we think, when properly considered, is not entitled to much weight. The plaintiff at the time was visiting, in the town of Palompon, her married brother and was there for about two weeks. The wife of her brother, Rosario Bayot, testified that the plaintiff never left the house except in her company. But she admitted on cross-examination that she herself went to school every morning and that on one occasion the plaintiff had gone to church unaccompanied. The testimony of this witness loses its force when the testimony of Pacita Ballori is considered. She says that at the request of the defendant on the day named, about 5 o'clock in the afternoon, she went to the store of a Chinese named Veles; that there she met the plaintiff and her mother; that she asked the mother of the plaintiff to allow the plaintiff to accompany her, the witness, to her own house for the purpose of examining some dress patterns; that the mother gave her consent and the two rights left the store, but instead of going to the house of the witness they went directly to the office of the justice of the peace where the ceremony took place; that after the ceremony had taken place, one came advising them that the mother was approaching, and that they thereupon hurriedly left the office of the justice and went to the house of Pacita Ballori, where the mother later found them. The other testimony of the plaintiff relating to certain statements made by the justice of the peace, who died after the ceremony was performed and before the trial, and certain statements made by Pacita Ballori, is not sufficient to overcome the positive testimony of the witnesses for the defendant. The other testimony of Pacita Ballori is severely criticized by counsel for the appellant in his brief. It appears that during her first examination she was seized with an hysterical attack and practically collapsed at the trial. Her examination was adjourned to a future day and was completed in her house where she was sick in bed. It is claimed by counsel that her collapse was due to the fact that she recognized that she testified falsely in stating the office of the justice of the peace was at the time in the municipal building, when, in fact, it was in a private house. We do not think that the record justifies the claim of the appellant. The statement as to the location of the office of the justice of the peace was afterwards corrected by the witness and we are satisfied that she told the facts substantially as they occurred.

There is, moreover, in the case written evidence which satisfies us that the plaintiff was not telling the truth when she said she did not appear before the justice of the peace. This evidence consists of eight letters, which the defendant claims were all written by the plaintiff. The plaintiff admits that she wrote letters numbered 2 and 9. The authenticity of the others was proven. No. 9 is as follows: ANGEL: Up to this time I did not see my father; but I know that he is very angry and if he be informed that we have been married civilly, I am sure that he will turn me out of the house. Do what you may deem convenient, as I don't know what to do. Should I be able to go to-morrow to Merida, I shall do so, because I can not remain here. Yours, ROSAL.

Letter No. 6, which bears no date, but which undoubtedly was written on the morning of the 25th of September, is as follows: Sr. D. ANGEL, TAN. ANGEL: It is impossible for me to go to the house of Veles this morning because my sister in law will not let me go there; if it suits you, I believe that this afternoon, about 5 or 6 o'clock, is the best hour. Arrange everything, as I shall go there only for the purpose of signing, and have Pacita wait for me at the Chinese store, because I don't like to go without Pacita. The house must be one belonging to prudent people, and no one should know anything about it. Yours, ROSAL.

It will be noticed that this corroborates completely the testimony of Pacita Ballori as to her meeting the plaintiff in the afternoon at the store of the Chinese, Veles. Letter No. 7 is also undated, but was evidently written after the marriage before the justice of the peace. It is as follows: Sr. D. ANGEL, TAN. ANGEL: If you want to speak to my mother, who is also yours, come here by and by, at about 9 or 10, when you see that the tide is high because my brother will have to go to the boat for the purpose of loading lumber. Don't tell her that we have been civilly married, but tell her at first that you are willing to celebrate the marriage at this time, because I don't like her to know to-day that we have been at the court-house, inasmuch as she told me this morning that she heard that we would go to the court, and that we must not cause her to be ashamed, and that if I insist on being married I must do it right. Tell her also that you have asked me to carry you.

I send you herewith the letter of your brother, in order that you may do what he wishes. Yours, ROSAL.

satisfied, and so hold, that what took place before the justice of the peace on this occasion amounted to a legal marriage. The defendant's original answer was a general denial of the allegations contained in the complaint. Among these allegations was a statement that the parties had obtain previously the consent of the plaintiff's parents. The defendant was afterwards allowed to amend his answer so that it was a denial of the allegations of the complaint except that relating to the condition in regard to the consent of the parents. The plaintiff objected to the allowance of this amendment. After the trial had commenced the defendant was again allowed to amend his answer so that it should be an admission of paragraphs 2 and 3 of the complaint, except that part which related to the consent of the parents. It will be seen that this second amendment destroyed completely the first amendment and the defendants lawyer stated that what he intended to allege in his first amendment, but by reason of the haste with which the first amendment was drawn he had unintentionally made it exactly the opposite of what he had intended to state. After argument the court allowed the second amendment. We are satisfied that in this allowance there was no abuse of discretion and we do not see how the plaintiff was in any way prejudiced. She proceeded with the trial of the case without asking for a continuance. The judgment of the court below acquitting the defendant of the complaint is affirmed, with the costs of this instance against the appellant. G.R. No. L-32473 October 6, 1930

Letter No. 8 was also evidently written after the marriage and is in part as follows: Sr. D. ANGEL TAN. ANGEL: I believe it is better for you to go to Ormoc on Sunday of the steamer Rosa, for the purpose of asking my father's permission for our marriage, and in case he fails to give it, then we shall do what we deem proper, and, if he does not wish us to marry without his permission, you must request his consent. Tell me who said that my sister in law knows that we are civilly married; my brother ill treatment is a matter of no importance, as every thing may be carried out, with patience. It was proven at the trial that the defendant did go to Ormoc on the steamer Rosa as indicated in this letter, and that the plaintiff was on the same boat. The plaintiff testified, however, that she had no communication with the defendant during the voyage. The plaintiff and the defendant never lived together as husband and wife, and upon her arrival in Ormoc, after consulting with her family, she went to Cebu and commenced this action, which was brought for the purpose of procuring the cancellation of the certificate of marriage and for damages. The evidence strongly preponderates in favor of the decision of the court below to the effect that the plaintiff appeared before the justice of the peace at the time named. It is claimed by the plaintiff that what took place before the justice of the peace, even admitting all that the witnesses for the defendant testified to, did not constitute a legal marriage. General orders, No. 68, section 6, is as follows: No particular form from the ceremony of marriage is required, but the parties must declare in the presence of the person solemnizing the marriage, that they take each other as husband and wife. Zacarias Esmero, one of the witnesses, testified that upon the occasion in question the justice of the peace said nothing until after the document was signed and then addressing himself to the plaintiff and the defendant said, "You are married." The petition signed the plaintiff and defendant contained a positive statement that they had mutually agreed to be married and they asked the justice of the peace to solemnize the marriage. The document signed by the plaintiff, the defendant, and the justice of the peace, stated that they ratified under oath, before the justice, the contents of the petition and that witnesses of the marriage were produced. A mortgage took place as shown by the certificate of the justice of the peace, signed by both contracting parties, which certificates gives rise to the presumption that the officer authorized the marriage in due form, the parties before the justice of the peace declaring that they took each other as husband and wife, unless the contrary is proved, such presumption being corroborated in this case by the admission of the woman to the effect that she had contracted the marriage certified to in the document signed by her, which admission can only mean the parties mutually agreed to unite in marriage when they appeared and signed the said document which so states before the justice of the peace who authorized the same. It was proven that both the plaintiff and the defendant were able to read and write the Spanish language, and that they knew the contents of the document which they signed; and under the circumstances in this particular case were

MELECIO MADRIDEJO, assisted by his guardian ad litem, Pedro Madridejo, plaintiff-appellee, vs. GONZALO DE LEON, ET AL., defendants-appellants. VILLA-REAL, J.: This is a rehearsing of the appeal taken by the defendants, Gonzalo de Leon et al. from the judgment of the Court of First Instance of Laguna holding as follows: Wherefore, the court finds that Melecio Madridejo is Domingo de Leon's next of kin, and hereby orders the defendants in case No. 5258 to restore and deliver the ownership and possession of the property described in the complaints filed in the aforesaid case, to Melecio Madridejo, without cost. So ordered. In support of their appeal the defendants assign the following alleged errors as committed by the trial court, to wit: 1. The lower court erred in holding that the marriage between Pedro Madridejo and Flaviana Perez is valid. 2. The lower court also erred in declaring that solely because of the subsequent marriage of his parents, the appellee Melecio Madridejo, a natural child, was legitimated. 3. The lower court lastly erred in not rendering judgment in favor of the defendants and appellants. The relevant facts necessary for the decision of all the questions of fact and of law raised herein are as follows:

Eulogio de Leon and Flaviana Perez, man and wife, had but one child, Domingo de Leon. The wife and son survived Eulogio de Leon, who died in the year 1915. During her widowhood, Flaviana Perez lived with Pedro Madridejo, a bachelor. The registry of births of the municipality of Siniloan, Laguna, shows that on June 1, 1917, a child was born to Pedro Madridejo and Flaviana Perez, which was named Melecio Madridejo, the necessary data being furnished by Pedro Madridejo (Exhibit B). On June 17, 1917, a 24-day old child of Siniloan, Laguna, as a son of Flaviana Perez, no mention being made of the father (Exhibit 2). On July 8, 1920, Flaviana Perez, being at death's door, was married to Pedro Madridejo, a bachelor, 30 years of age, by the parish priest of Siniloan (Exhibit A). She died on the following day, July 9, 1920, leaving Domingo de Leon, her son by Eulogio de Leon, and the plaintiff-appellee Melecio Madridejo, as well as her alleged second husband, Pedro Madridejo. Domingo de Leon died on the 2nd of May, 1928. With regard to the first assignment of error, the mere fact that the parish priest of Siniloan, Laguna, who married Pedro Madridejo and Flaviana Perez, failed to send a copy of the marriage certificate to the municipal secretary does not invalidate the marriage in articulo mortis, it not appearing that the essential requisites required by law for its validity were lacking in the ceremony, and the forwarding of a copy of the marriage certificate is not one of said essential requisites. Touching the second assignment of error, there has been no attempt to deny that Melecio Madridejo, the plaintiff-appellee, is the natural son of the Pedro Madridejo and Flaviana Perez, The only question to be decided is whether the subsequent marriage of his parents legitimated him. Article 121 of the Civil Code provides: Art. 121. Children shall be considered as legitimated by a subsequent marriage only when they have been acknowledged by the parents before or after the celebration thereof. According to this legal provision, in order that a subsequent marriage may be effective as a legitimation, the natural children born out of wedlock must have been acknowledged by the parents either before or after its celebration. The Civil Code has established two kinds of acknowledgment: voluntary and compulsary. Article 131 provides for the voluntary acknowledgment by the father or mother as follows: Art. 131. The acknowledgment of a natural child must be made in the record of birth, in a will, or in some other public document. Article 135 provides for the compulsary acknowledgment by the father, thus: Art. 135. The father may be compelled to acknowledge his natural child in the following cases: 1. When an indisputable paper written by him, expressly acknowledging his paternity, is in existence. 2. When the child has been in the uninterrupted possession of the status of a natural child of the defendant father, justified by the conduct of the father himself of that of his family. 3. In cases of rape, seduction, or abduction, the provisions of the Penal Code with regard to the acknowledgment of the issue, shall be observed.

Article 136 providing for the compulsory acknowledgment by the mother, reads: Art. 136. The mother may be compelled to acknowlegde her natural child: 1. When the child is, with respect to the mother, included in any of the cases mentioned in the next preceding article. 2. When the fact of the birth and the identity of the child are fully proven. Let us see whether the plaintiff-appellee, Melecio Madridejo, has been acknowledged by his parents Pedro Madridejo and Flaviana Perez, under any of the provisions above quoted. To begin with the father, no document has been adduced to show that he has voluntarily acknowledged Melecio Madridejo as his son, except the registry certificate of birth, Exhibit B. This, of course, is not the record of birth mentioned in the law, for it lacks the requisites of article 48 of the Law of Civil Registry. It, no doubt, is a public instrument, but it has neither been executed nor signed by Pedro Madridejo, and contains no statement by which he acknowledges Melecio Madridejo to be his son. Although as Pedro Madridejo testified, he furnished the municipal secretary of Siniloan with necessary data for recording the birth of Melecio Madridejo, and although said official inscribed the data thus given in the civil registry of births, this is not sufficient to bring it under the legal provision regarding acknowledgment by a public document. As to the mother, it does not appear that Flaviana Perez supplied the data set forth in the civil registry of births, Exhibit B, or in the baptismal register, where of Exhibit 2 is a certificate, and which constitutes final proof only of the baptism, and not of the kinship or parentage of the person baptized (Adriano vs. De Jesus, 23 Phil., 350). Furthermore, church registers of baptism are no longer considered public documents (United States vs. Evangelista, 29 Phil., 215). Melecio Madridejo, then, was not voluntarily acknowledged by Pedro Madridejo or Flaviana Perez, either before or after their marriage. 1awph!l.net Did Pedro Madridejo acknowledge Melecio Madridejo as his son, by compulsion? The compulsory acknowledgment by the father established in article 135 of the Civil Code, and by the mother according to article 136, requires that the natural child take judicial action against the father or mother, or against the persons setting themselves up as the heirs of both, for the purpose of compelling them to acknowledge him as a natural son through a judgment of the court. In the instant action brought by Melecio Madridejo not only has he not demanded to be acknowledged as a natural child, which is the condition precedent to establishing his legitimation by the subsequent marriage and his right to the estate of his uterine brother, Domingo de Leon, but he has not even impleaded either his father Pedro Madridejo, or the heirs of his mother, Flaviana Perez, in order that the court might have authority to make a valid and effective pronouncement of his being a natural child, and to compel them to acknowledge him as such. The plaintiff-appellee alleges that the second paragraph of the defendants' answer amounts to an admission that he is indeed Flaviana Perez's son, and relieves him of the burden of proving that his mother acknowledged him as a son before her marriage. Such an admission would have been affective if the present action had

been brought for the purpose of compelling Flaviana Perez or her heirs to acknowledge the appellee as her son. In view of the foregoing, it is evident that Melecio Madridejo has not been acknowledged by Pedro Madridejo and Flaviana Perez, either voluntarily or by compulsion, before or after their marriage, and therefore said marriage did not legitimate him. Wherefore, the judgment is reversed, the complaint dismissed, and the defendants absolved with costs against the appellee without prejudice to any right he may have to establish or compel his acknowledgment as the natural son of Pedro Madridejo and Flaviana Perez. So ordered. A.M. No. MTJ-00-1329 March 8, 2001 (Formerly A.M. No. OCA IPI No. 99-706-MTJ) HERMINIA BORJA-MANZANO, petitioner, vs. JUDGE ROQUE R. SANCHEZ, MTC, Infanta, Pangasinan, respondent. RESOLUTION DAVIDE, JR., C.J.: The solemnization of a marriage between two contracting parties who were both bound by a prior existing marriage is the bone of contention of the instant complaint against respondent Judge Roque R. Sanchez, Municipal Trial Court, Infanta, Pangasinan. For this act, complainant Herminia Borja-Manzano charges respondent Judge with gross ignorance of the law in a sworn Complaint-Affidavit filed with the Office of the Court Administrator on 12 May 1999. Complainant avers that she was the lawful wife of the late David Manzano, having been married to him on 21 May 1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City.1 Four children were born out of that marriage.2 On 22 March 1993, however, her husband contracted another marriage with one Luzviminda Payao before respondent Judge.3 When respondent Judge solemnized said marriage, he knew or ought to know that the same was void and bigamous, as the marriage contract clearly stated that both contracting parties were "separated." Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage between Manzano and Payao he did not know that Manzano was legally married. What he knew was that the two had been living together as husband and wife for seven years already without the benefit of marriage, as manifested in their joint affidavit.4 According to him, had he known that the late Manzano was married, he would have advised the latter not to marry again; otherwise, he (Manzano) could be charged with bigamy. He then prayed that the complaint be dismissed for lack of merit and for being designed merely to harass him. After an evaluation of the Complaint and the Comment, the Court Administrator recommended that respondent Judge be found guilty of gross ignorance of the law and be ordered to pay a fine of P2,000, with a warning that a repetition of the same or similar act would be dealt with more severely. On 25 October 2000, this Court required the parties to manifest whether they were willing to submit the case for resolution on the basis of the pleadings thus filed. Complainant answered in the affirmative.

For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the complaint and setting aside his earlier Comment. He therein invites the attention of the Court to two separate affidavits5 of the late Manzano and of Payao, which were allegedly unearthed by a member of his staff upon his instruction. In those affidavits, both David Manzano and Luzviminda Payao expressly stated that they were married to Herminia Borja and Domingo Relos, respectively; and that since their respective marriages had been marked by constant quarrels, they had both left their families and had never cohabited or communicated with their spouses anymore. Respondent Judge alleges that on the basis of those affidavits, he agreed to solemnize the marriage in question in accordance with Article 34 of the Family Code. We find merit in the complaint. Article 34 of the Family Code provides: No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. For this provision on legal ratification of marital cohabitation to apply, the following requisites must concur: 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; 2. The parties must have no legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be present at the time of marriage; 4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]; and 5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage.6 Not all of these requirements are present in the case at bar. It is significant to note that in their separate affidavits executed on 22 March 1993 and sworn to before respondent Judge himself, David Manzano and Luzviminda Payao expressly stated the fact of their prior existing marriage. Also, in their marriage contract, it was indicated that both were "separated." Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment impediment, which would make the subsequent marriage null and void.7 In fact, in his Comment, he stated that had he known that the late Manzano was married he would have discouraged him from contracting another marriage. And respondent Judge cannot deny knowledge of Manzanos and Payaos subsisting previous marriage, as the same was clearly stated in their separate affidavits which were subscribed and sworn to before him.

The fact that Manzano and Payao had been living apart from their respective spouses for a long time already is immaterial. Article 63(1) of the Family Code allows spouses who have obtained a decree of legal separation to live separately from each other, but in such a case the marriage bonds are not severed. Elsewise stated, legal separation does not dissolve the marriage tie, much less authorize the parties to remarry. This holds true all the more when the separation is merely de facto, as in the case at bar. Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda Payao stating that they had been cohabiting as husband and wife for seven years. Just like separation, free and voluntary cohabitation with another person for at least five years does not severe the tie of a subsisting previous marriage. Marital cohabitation for a long period of time between two individuals who are legally capacitated to marry each other is merely a ground for exemption from marriage license. It could not serve as a justification for respondent Judge to solemnize a subsequent marriage vitiated by the impediment of a prior existing marriage. Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void and bigamous marriage. The maxim "ignorance of the law excuses no one" has special application to judges,8 who, under Rule 1.01 of the Code of Judicial Conduct, should be the embodiment of competence, integrity, and independence. It is highly imperative that judges be conversant with the law and basic legal principles.9 And when the law transgressed is simple and elementary, the failure to know it constitutes gross ignorance of the law.10 ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with the MODIFICATION that the amount of fine to be imposed upon respondent Judge Roque Sanchez is increased to P20,000. SO ORDERED. G.R. No. 133778 March 14, 2000

they are not among the persons who could file an action for "annulment of marriage" under Article 47 of the Family Code. Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the petition after finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following issues: (1) Whether or not plaintiffs have a cause of action against defendant in asking for the declaration of the nullity of marriage of their deceased father, Pepito G. Nial, with her specially so when at the time of the filing of this instant suit, their father Pepito G. Nial is already dead; (2) Whether or not the second marriage of plaintiffs' deceased father with defendant is null and void ab initio; (3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage after it was dissolved due to their father's death. 1

Thus, the lower court ruled that petitioners should have filed the action to declare null and void their father's marriage to respondent before his death, applying by analogy Article 47 of the Family Code which enumerates the time and the persons who could initiate an action for annulment of marriage. 2 Hence, this petition for review with this Court grounded on a pure question of law. This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of Civil Procedure, and because "the verification failed to state the basis of petitioner's averment that the allegations in the petition are "true and correct"." It was thus treated as an unsigned pleading which produces no legal effect under Section 3, Rule 7, of the 1997 Rules. 3 However, upon motion of petitioners, this Court reconsidered the dismissal and reinstated the petition for review. 4

ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO NIAL, JR., petitioners, vs. NORMA BAYADOG, respondent.

YNARES-SANTIAGO, J.: May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death? Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8 months thereafter or on December 11, 1986, Pepito and respondent Norma Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at least five years and were thus exempt from securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their father's death, petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging that the said marriage was void for lack of a marriage license. The case was filed under the assumption that the validity or invalidity of the second marriage would affect petitioner's successional rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since

The two marriages involved herein having been solemnized prior to the effectivity of the Family Code (FC), the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their celebration. 5 A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, 6 the absence of which renders the marriage void ab initio pursuant to Article 80(3) 7 in relation to Article 58. 8 The requirement and issuance of marriage license is the State's demonstration of its involvement and participation in every marriage, in the maintenance of which the general public is interested. 9 This interest proceeds from the constitutional mandate that the State recognizes the sanctity of family life and of affording protection to the family as a basic "autonomous social institution." 10 Specifically, the Constitution considers marriage as an "inviolable social institution," and is the foundation of family life which shall be protected by the State. 11 This is why the Family Code considers marriage as "a special contract of permanent union" 12 and case law considers it "not just an adventure but a lifetime commitment." 13

However, there are several instances recognized by the Civil Code wherein a marriage license is dispensed with, one of which is that provided in Article 76, 14 referring to the marriage of a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The rationale why no license is required in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant's name for a marriage license. The publicity attending the marriage license may discourage such persons from legitimizing their status. 15 To preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement. There is no dispute that the marriage of petitioners' father to respondent Norma was celebrated without any marriage license. In lieu thereof, they executed an affidavit stating that "they have attained the age of majority, and, being unmarried, have lived together as husband and wife for at least five years, and that we now desire to marry each other." 16 The only issue that needs to be resolved pertains to what nature of cohabitation is contemplated under Article 76 of the Civil Code to warrant the counting of the five year period in order to exempt the future spouses from securing a marriage license. Should it be a cohabitation wherein both parties are capacitated to marry each other during the entire five-year continuous period or should it be a cohabitation wherein both parties have lived together and exclusively with each other as husband and wife during the entire five-year continuous period regardless of whether there is a legal impediment to their being lawfully married, which impediment may have either disappeared or intervened sometime during the cohabitation period? Working on the assumption that Pepito and Norma have lived together as husband and wife for five years without the benefit of marriage, that five-year period should be computed on the basis of a cohabitation as "husband and wife" where the only missing factor is the special contract of marriage to validate the union. In other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at anytime within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. 17 The Civil Code provides: Art. 63: . . . This notice shall request all persons having knowledge of any impediment to the marriage to advice the local civil registrar thereof. . . .

Art. 64: Upon being advised of any alleged impediment to the marriage, the local civil registrar shall forthwith make an investigation, examining persons under oath. . . . This is reiterated in the Family Code thus: Art. 17 provides in part: . . . This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. . . . Art. 18 reads in part: . . . In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license. . . . This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of multiple marriages by the same person during the same period. Thus, any marriage subsequently contracted during the lifetime of the first spouse shall be illegal and void, 18 subject only to the exception in cases of absence or where the prior marriage was dissolved or annulled. The Revised Penal Code complements the civil law in that the contracting of two or more marriages and the having of extramarital affairs are considered felonies, i.e., bigamy and concubinage and adultery. 19 The law sanctions monogamy. In this case, at the time of Pepito and respondent's marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day. From the time Pepito's first marriage was dissolved to the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent had started living with each other that has already lasted for five years, the fact remains that their five-year period cohabitation was not the cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband and wife". Having determined that the second marriage involved in this case is not covered by the exception to the requirement of a marriage license, it is void ab initio because of the absence of such element. The next issue to be resolved is: do petitioners have the personality to file a petition to declare their father's marriage void after his death? Contrary to respondent judge's ruling, Article 47 of the Family Code 20 cannot be applied even by analogy to petitions for declaration of nullity of marriage. The second ground for annulment of marriage relied upon by the trial court, which allows "the sane spouse" to file an annulment suit "at anytime before the death of either party" is inapplicable. Article 47 pertains to the grounds, periods and persons who can file an annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage. Voidable and void marriages are not identical. A marriage that is annulable is valid until otherwise declared by the court; whereas a marriage that is void ab initio is considered as having never to have taken place 21 and cannot be the source of rights. The first can be generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a

void marriage can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. 22 That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution, 23 and its effect on the children born to such void marriages as provided in Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the contrary, the property regime governing voidable marriages is generally conjugal partnership and the children conceived before its annulment are legitimate. Contrary to the trial court's ruling, the death of petitioner's father extinguished the alleged marital bond between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that there was a marriage bond that was dissolved between the two. It should be noted that their marriage was void hence it is deemed as if it never existed at all and the death of either extinguished nothing. Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a marriage. 24 "A void marriage does not require a judicial decree to restore the parties to their original rights or to make the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of good order of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction." 25 "Under ordinary circumstances, the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at any time, whether before or after the death of either or both the husband and the wife, and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts." It is not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted during the lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is made good ab initio. 26 But Article 40 of the Family Code expressly provides that there must be a judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage 27 and such absolute nullity can be based only on a final judgment to that effect. 28 For the same reason, the law makes either the action or defense for the declaration of absolute nullity of marriage imprescriptible. 29 Corollarily, if the death of either party would extinguish the cause of action or the ground for defense, then the same cannot be considered imprescriptible. However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is ordered REINSTATED.1wphi1.nt SO ORDERED.