Adriano vs CA

8/13/2019 Adriano vs CA

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THIRD DIVISION

[G.R. No. 124118. March 27, 2000]

MARINO, RENATO, LETICIA, IMELDA, ALICIA, LIGAYA, and ZENAIDA, all

surnamed ADRIANO, peti t ioners, vs. COURT OF APPEALS, CELESTINA,MANOLO and AIDA, all surnamed ADRIANO, respondents. Mi sedp

D E C I S I O N

GONZAGA_REYES, J.:

Petition for review on certiorariof the Decision of the Court of Appeals, SecondDivision,[1]affirming in toto the Joint Order of the Regional Trial Court of Lucena City,Branch 55,[2]which dismissed Civil Case No. 88-115 for annulment of will and orderedthe disposition of the estate of Lucio Adriano in accordance with the provisions of hislast will and testament in Spec. Proc. No. 4442.

The pertinent facts are as follows:

The testator, Lucio Adriano, also known as Ambrocio Adriano, married Gliceria Doradoon October 29, 1933. Out of their lawful marriage, they had three children, namely,Celestina, Manolo, and Aida, private respondents in this case. Sometime in 1942 orprior thereto, Lucio and Gliceria separated, and Gliceria settled in Rizal, Laguna whereshe died on June 11, 1968. Also in 1942 or even earlier, Lucio cohabited with VicentaVilla, with whom he had eight children: Marino, Renato, Leticia, Imelda, Maria Alicia,Ligaya, Jose Vergel, and Zenaida, all surnamed Adriano. All his children by Vicenta

Villa are the named petitioners in the instant case, with the exception of Jose Vergel,who died before the inception of the proceedings.

On November 22, 1968, or five months after the death of Gliceria, Lucio marriedVicenta. Lucio and Vicenta and their children lived in Candelaria, Quezon until thespouses separated in 1972.[3]Misoedp

On October 10, 1980, Lucio executed a last will and testament disposing of all hisproperties, and assigning, among others, his second wife Vicenta and all his children byhis first and second marriages as devisees and legatees therein. Among the propertiesbequeathed in the will were a 45,000 square meter lot and the residential house, rice

mill, warehouse and equipment situated thereon located in Candelaria, Quezon andregistered under Transfer Certificate of Title ("TCT") No. T-56553 in the Registry ofDeeds of Quezon[4],which was disposed of in the following manner: (1) to privaterespondents, Lucio's children by his first wife, 10,000 square meters of the disputedproperty, including the warehouse, rice mill, and equipment situated thereon; (2) toVicenta and petitioners, his children by his second marriage, the remaining 35,000square meters; and (3) to private respondents, the residential house also within thesame property.[5]
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On February 11, 1981, Lucio died and private respondent Celestina Adriano, who wasinstituted in Lucio's will as its executrix, filed a petition for the probate of the will onFebruary 18, 1981 before the RTC of Lucena City. The probate case was docketed asSpec. Proc. No. 4442. After due hearing and despite the Opposition filed by Vicenta, theRTC allowed the probate of the will and directed the issuance of letters testamentary to

petitioner-executrix Celestina Adriano in an Order dated August 22, 1983. OnNovember 10, 1983, Vicenta appealed said Order to the then Intermediate AppellateCourt, which in turn affirmed the probate of the will. Vicenta died on July 2, 1985. [6]

On August 17, 1988, and while the proceedings for settlement of estate were pendingbefore the RTC, petitioners instituted an action for annulment of Lucio Adriano's willwhich was docketed as Civil Case No. 88-115. In the complaint, plaintiffs-petitionersalleged that before the marriage of Lucio and their mother, Vicenta, on November 22,1968, the two lived together as husband and wife and as such, acquired propertieswhich became the subject of inventory and administration in Spec. Proc. No. 4442.Plaintiffs claimed that the properties bequeathed in Lucio's will are undivided "civil

partnership and/or conjugal properties of Lucio Adriano and Vicenta Villa", and thus, thewill sought to be probated should be declared void and ineffective insofar as it disposesof the rightful share or properties of Vicenta.[7]

It is also not disputed that the contested properties in Civil Case No. 88-115 and Spec.Proc. No. 4442 were also the subject of a complaint filed sometime in 1980 by Vicentaagainst Lucio, docketed with the then Court of First Instance of Quezon, Lucena City,Branch II as Civil Case No. 7534, wherein Vicenta sought the provisional partition orseparation of the propertiespendente lite. The case was dismissed on January 28,1991 without prejudice, for lack of interest. Edp mis

Spec. Proc. No. 4442 and Civil Case No. 88-115 were consolidated and jointly heard bythe RTC.

The trial court favored the evidence of private respondents, which indicated that thepurchase money for the contested properties came from the earnings of Lucio in abusiness partnership that he entered into in 1947, or during the subsistence of hismarriage to Gliceria. The trial court further found that Lucio's initial capital infusion ofP15,000.00 in the business partnership was in fact obtained from the conjugal fund ofhis first marriage. The evidence of private respondents is thus summarized by the trialcourt:

Defendants' evidence, on the other hand, tends to show that the originalcommon fund of Lucio (Ambrocio) Adriano in the amount of P15,000.00was invested by Lucio Adriano in a partnership called the "Central RiceMill & Co." which was formed and organized on November 30, 1947. Suchinitial investment came from the savings of Lucio Adriano and GliceriaDorado before World War II, which was earned by said spouses by meansof ambulant peddling of betel nuts and ikmo leaves and, subsequently, bythe selling of (a) variety (of) goods and rice retailing at a market stall which
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they acquired at the public market of Candelaria, Quezon. On thesesavings, spouses Lucio Adriano and Gliceria Dorado added the proceedsof the sale of a "fairbanks" rice mill made during the Japanese occupation,sometime between the years 1943 and 1944. The same rice mill was thenlocated at the south end of Gonzales Street near the public market of

Candelaria, Quezon, and was acquired by the same spouses through theirjoint efforts and industry made from the time of their marriage in 1933.

It is likewise shown by defendants' evidence that on January 8, 1951, theArticles of Co-Partnership of "Central Rice Mill & Co." was amended andits name was changed to "Quezon Central Rice Mill & Co." Lucio Adrianothen made a new investment into the partnership out of savings from theconjugal partnership with Gliceria Dorado for the period 1947 until 1950 inthe amount of P18,750.00 (Exhibit "1-A") thereby increasing hisinvestment to P33,750.00 (par. 7(c) of Amended Articles of Co-Partnership, Exhibit "1-A"). On January 22, 1952, another partnership

called "The Lessee of the Quezon Central Rice Mill" as formed by Lucio(Ambrocio) Adriano and four (4) partners and he invested the amount ofP25,000.00 (Exhibit "2") thereby making his total capital investment reachthe amount of P58,750.00.

On May 3, 1952, Lucio Adriano bought the share of Tan Kim alias"Joaquin Tan", a partner who withdrew from the partnership of the QuezonCentral Rice Mill & Co. and who, in consideration of the sum ofP34,342.55, executed a Deed of Sale and Mortgage (Exhibit "3") in favorof Lucio Adriano covering his proportional share in the properties of thepartnership consisting of two (2) rice mills, two (2) diesel engines and a

camarin, which are situated at Candelaria, Quezon. Lucio Adrianodeclared these properties in his name for taxation purposes under TCTProperty Index No. 22-11-01-043-B (Exhibit "4") and Tax Declaration No.564 (Exhibit "5").LEX

All in all, the withdrawals made out of the savings of the conjugalpartnership of Lucio Adriano and his wife, Gliceria Dorado, are thefollowing:

1. Upon signing of the contract of sale and mortgage (Exhibit "3"),Lucio Adriano paid the sum of P10,342.45 and the balance of P24,000.00,as reflected in the statement of account of Tan Kim as receivables fromLucio Adriano (Exhibit "6") were settled on subsequent dates;

2. Original copy of a receipt dated May 3, 1953 (Exhibit "7") coveringexpenses of registration of Exhibit "3" in the sum of P160.00;

3. Handwritten list of registration expenses (Exhibit "8"); and


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4. Originals of receipts covering amounts paid by Lucio Adriano to TanKim on various dates from June 3, 1953 (Exhibits "9" to "20", inclusive) inthe aggregate sum of P24,492.15.

It likewise appears from the evidence of the defendants that by the end of

1953, the total capital investment of Lucio Adriano taken from his conjugalpartnership with his first wife, Gliceria Dorado, reached the amount ofP94,744.88. In the late part of 1954, however, the same partnership wasdissolved by means of a verbal agreement reached by Lucio Adriano andhis partners and this resulted to an equal division of the partnershipproperties with the left portion thereof going to Tan Kang and Tan Giamand the right portion, to Lucio Adriano and Francisco Ramirez.Furthermore, by the end of 1955, Francisco Ramirez withdrew his sharetotalling P16,250.00 in favor of Lucio Adriano, who acquired the same,and from that time on, the latter became the sole owner of the rice millwhich he later registered as the "Adriano Central Rice Mill". When the

partnership was finally dissolved in 1955, the total capital investment ofLucio Adriano therein was P110,994.88, consisting of the fruit or income ofhis common fund with Gliceria Dorado, which was cumulatively used inthe acquisition of other properties listed in the Inventory submitted to thisCourt by the administratrix and defendant, Celestina Adriano de Arcilla onFebruary 19, 1987.[8]

The decretal portion of the Order dated May 8, 1991 issued by the RTC of Lucena Cityreads:

WHEREFORE, judgment is hereby rendered as follows:

1. In Civil Case No. 88-115, this Court finds and so holds that nocogent reasons or grounds exist to affect adversely, if not nullify, thetestamentary dispositions and provisions contained in the Last Will andTestament of the late Lucio (Ambrocio) Adriano. Accordingly, thecomplaint filed in this case is hereby ordered dismissed with costs againstplaintiffs.Jj sc

In like manner, the counterclaim is hereby ordered dismissed.

2. In Spec. Proc. No. 4442, it is hereby ordered that the settlement,liquidation, and partitioning of the estate of the late Lucio (Ambrocio)

Adriano, more particularly the delivery of the respective shares of hisheirs, the plaintiffs and defendants, be effected and implemented inaccordance with the testamentary provisions set forth in the Last Will andTestament of the testator, Lucio (Ambrocio) Adriano.

SO ORDERED.[9]
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The Court of Appeals dismissed petitioners' appeal for lack of merit, and affirmed intoto the Joint Order of the RTC of Lucena City.

As elevated before us, the petition takes issue only in respect of the property coveredby TCT No. T-56553. Petitioners insist that it was erroneous of respondent court not to

have upheld the co-ownership of Vicenta to 1/2 of said property, and to have declaredthe entire property as belonging to the conjugal partnership of Lucio and Gliceria. Thepetition essentially relies on the following grounds: (1) TCT No. T-56553, issued to"Spouses, LUCIO ADRIANO and VICENTA VILLA"[10],constitutes conclusive andindefeasible evidence of Vicenta's co-ownership in the property,[11]and (2) the Deed ofSale dated March 15, 1964, as annotated in OCT No. O-9198 [12],the mother title of TCTNo. T-56553, designates Vicenta Villa as a co-vendee. Petitioners maintain that theDeed of Sale, being the "best evidence" of the contents thereof, proves Vicenta's co-ownership in the land.

We see no reason to reverse respondent court. Petitioners' insistence that a co-

ownership of properties existed between Lucio and Vicenta during their period ofcohabitation before their marriage in 1968 is without lawful basis considering thatLucio's marriage with Gliceria was then subsisting. The co-ownership in Article 144 ofthe Civil Code[13]requires that the man and woman living together as husband and wifewithout the benefit of marriage must not in any way be incapacitated tomarry.[14]Considering that the property was acquired in 1964, or while Lucio's marriagewith Gliceria subsisted, such property is presumed to be conjugal unless it be provedthat it pertains exclusively to the husband or to the wife.[15]Thus, we ruled in Pisuea vs.Heirs of Petra Unating and Aquilino Villar[16]that theprima facie presumption thatproperties acquired during the marriage are conjugal cannot prevail over a court'sspecific finding reached in adversarial proceedings to the contrary.Sc jj

As found by both the trial court and respondent court in this case, not only didpetitioners fail to overcome the presumption of conjugality of the disputed property,private respondents have also presented sufficient evidence to support their allegationthat the property was in fact purchased by Lucio with proceeds of the conjugal fund ofhis first marriage. This factual finding, which is clearly borne out by the evidence onrecord, is binding and conclusive upon us and will not be disturbed.

Although in cases of common-law relations where an impediment to marry exists, equitywould dictate that property acquired by the man and woman through their joint endeavorshould be allocated to each of them in proportion to their respective efforts,[17]petitionersin the instant case have not submitted any evidence that Vicenta actually contributed tothe acquisition of the property in question. Sj cj

We cannot agree with petitioners bare and expedient assertion that, because the title tothe property was registered in the name of both Lucio and Vicenta, she should therebybe deemed owner to half of it. A certificate of title under the Torrens system is aimed toprotect dominion, and should certainly not be turned into an instrument for deprivation ofownership.[18]Because a just and complete resolution of this case could only be arrived
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at by determining the real ownership of the contested property, evidence apart from orcontrary to the certificate of title bears considerable importance.[19]This assumespeculiar force in the instant situation where the heirs of a lawful pre-existing marriagestand to be deprived. Thus, in Belcodero vs. Court of Appeals,[20]we held that propertyacquired by a man while living with a common-law wife during the subsistence of his

marriage is conjugal property, even when the property was titled in the name of thecommon-law wife. In such cases, a constructive trust is deemed to have been createdby operation of Article 1456 of the Civil Code over the property which lawfully pertains tothe conjugal partnership of the subsisting marriage.

Article 1456. If property is acquired through mistake or fraud, the personobtaining it is, by force of law, considered a trustee of an implied trust forthe benefit of the person from whom the property comes.

InVicentas case, it is clear that her designation as a co-owner of the property in TCTNo. T-56553 is a mistake which needs to be rectified by the application of the foregoing

provisions of article 1456 and the ruling in Belcodero. The principle that a trustee whotakes a Torrens title in his or her name cannot repudiate the trust by relying on theregistration, is a well-known exception to the principle of conclusiveness of a certificateof title.[21]

On petitioners second ground, we note that the Deed of Sale dated March 15, 1964which purportedly designates Vicenta as a co-buyer of the property was not evenpresented in evidence. The entry in OCT No. 0-9198 of the Deed of Sale bears noweight in proving Vicentas supposed co-ownership, applying petitioners own argumentthat the document itself, the Deed of Sale in the instant case, is the best evidence of itscontents. The memorandum in the OCT is not admissible as evidence of the contents of

said Deed of Sale, but only of the fact of its execution, its presentation for notation, andits actual notation for purposes of constructive notice to the public of the preferentialrights created and affecting that property.[22]Besides, even if said Deed of Sale wassubmitted in evidence, it still has no bearing because it could not be said to affect orbind third parties to the sale, such as private respondents herein.

WHEREFORE, the Decision in CA-G.R. CV No. 41509 is hereby AFFIRMED.Supreme

SO ORDERED.

Melo, (Chairman), Vitug, andPanganiban, JJ., concur.

Purisima, J.,no part.

[1]Written by Associate Justice Jainal D. Rasul, and concurred in by Associate Justices Fidel P. Purisima (Chairman)

and Eubulo G. Verzola.
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[2]Presided by Judge Eleuterio F. Guerrero.[3]RTC Order;Rollo, 103-104.[4]Exhibit "P"; Folder of Exhibits, 17.[5]Paragraph 2 of the Last Will and Testament of Lucio Adriano; Records of the Case, 5-6.[6]Joint Stipulation of facts and Issues; Records of the Case, 85.[7]Complaint; Records of the Case, 3.[8]RTC Order;Rollo, 104-106.[9]RTC Order;Rollo, 112.[10]Exhibit "P", op. cit., note 4.[11]Citing Sinoan vs. Sorongan, 136 SCRA 407; Centeno vs. Court of Appeals, 139 SCRA 545; Umbay vs. Alecha,

135 SCRA 427.[12]Exhibit "FF"; Folder of exhibits, 66-67.

[13]Article 144 of the Civil Code provides:

"When a man and a woman live together as husband and wife, but they are not married, or their marriage is void

from the beginning, the property acquired by either or both of them through their work or industry or their wages

and salaries shall be governed by the rules of co-ownership."[14]Belcodero vs. Court of Appeals, 227 SCRA 303; Juaniza vs. Jose, 89 SCRA 306; Camporedondo vs. Aznar, 102

Phil. 1055; Osmea vs. Rodriguez, 54 O.G. 5526; Malijacan vs. Rubi, 42 O.G. 5576.[15]Civil Code, Art. 160.[16]G.R. No. 132803 dated August 31, 1999, see p. 14.

[17]The Family Code, which took effect on August 3, 1988, now clearly provides in cases of cohabitation where the

common-law spouses suffer from legal impediment to marry:

Art. 148. xxx (O)nly the properties acquired by both of the parties through their actual joint contribution of money,

property or industry shall be owned by them in common in proportion to their respective contributions. In the

absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. xxx

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute

community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly

married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the precedingArticle (i.e., in favor of their common children). Xxx[18]Padilla vs. Padilla, 74 Phil. 377.[19]See Padilla vs. Padilla,supra, where the Court held that property recorded in the name of both husband and wife

may be shown to be exclusive property of either spouse.[20]Supra, note 16.[21]Padilla vs. Padilla,supra; Severino vs. Severino, 44 Phil. 343.[22]Philippine National Bank vs. Tan Ong Zse, 51 Phil. 317.

epublic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 109068 January 10, 1994

GAUDENCIO GUERRERO, petitioner,vs.
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REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE LUIS B. BELLO, JR.,PRESIDING, and PEDRO G. HERNANDO, respondents.

Juan Jacito for petitioner.

Alipio V. Flores for private respondent.

BELLOSILLO, J .:

Filed by petitioner as an accion publicana1against private respondent, this case assumed anotherdimension when it was dismissed by respondent Judge on the ground that the parties being brother-in-law the complaint should have alleged that earnest efforts were first exerted towards acompromise.

Admittedly, the complaint does not allege that the parties exerted earnest towards a compromiseand that the same failed. However, private respondent Pedro G. Hernando apparently overlooked

this alleged defect since he did not file any motion to dismiss nor attack the complaint on this groundin his answer. It was only on 7 December 1992, at the pre-trial conference, that the relationship ofpetitioner Gaudencio Guerrero and respondent Hernando was noted by respondent Judge Luis B.Bello, Jr., they being married to half-sisters hence are brothers-in-law, and on the basis thereofrespondent Judge gave petitioner five (5) days "to file his motion and amended complaint" to allegethat the parties were very close relatives, their respective wives being sisters, and that the complaintto be maintained should allege that earnest efforts towards a compromise were exerted but failed.

Apparently, respondent Judge considered this deficiency a jurisdictional defect.

On 11 December 1992, Guerrero moved to reconsider the 7 December 1992 Order claiming thatsince brothers by affinity are not members of the same family, he was not required to exert effortstowards a compromise. Guerrero likewise argued that Hernando was precluded from raising this

issue since he did not file a motion to dismiss nor assert the same as an affirmative defense in hisanswer.

On 22 December 1992, respondent Judge denied the motion for reconsideration holding that"[f]ailure to allege that earnest efforts towards a compromise is jurisdictional such that for failure toallege same the court would be deprived of its jurisdiction to take cognizance of the case." Hewarned that unless the complaint was amended within five (5) days the case would be dismissed.

On 29 January 1993, the 5-day period having expired without Guerrero amending his complaint,respondent Judge dismissed the case, declaring the dismissal however to be without prejudice.

Guerrero appeals by way of this petition for review the dismissal by the court a quo. He raises theselegal issues: (a) whether brothers by affinity are considered members of the same familycontemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as under Sec. 1, par.(j), Rule 16, of the Rules of Court requiring earnest efforts towards a compromise before a suitbetween them may be instituted and maintained; and, (b) whether the absence of an allegation inthe complaint that earnest efforts towards a compromise were exerted, which efforts failed, is aground for dismissal for lack of jurisdiction.


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The Constitution protects the sanctity of the family and endeavors to strengthen it as a basicautonomous social institution.2This is also embodied in Art. 149,3and given flesh in Art. 151, of theFamily Code, which provides:

Art. 151. No suit between members of the same family shall prosper unless it shouldappear from the verified complaint or petition that earnest efforts toward a

compromise have been made, but that the same had failed. If it is shown that nosuch efforts were in fact made, the case must be dismissed.

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

Considering that Art. 151 herein-quoted starts with the negative word "No", the requirement ismandatory4that the complaint or petition, which must be verified, should allege that earnest effortstowards a compromise have been made but that the same failed, so that "[i]f it is shown that no suchefforts were in fact made, the case must be dismissed."

Further, Art. 151 is contemplated by Sec. 1, par. (j), Rule 16, of the Rules of Court which provides as

a ground for motion to dismiss "(t)hat the suit is between members of the same family and noearnest efforts towards a compromise have been made."

The Code Commission, which drafted the precursor provision in the Civil Code, explains the reasonfor the requirement that earnest efforts at compromise be first exerted before a complaint is givendue course

This rule is introduced because it is difficult to imagine a sadder and more tragicspectacle than a litigation between members of the same family. It is necessary thatevery effort should be made toward a compromise before a litigation is allowed to breedhate and passion in the family. It is known that a lawsuit between close relativesgenerates deeper bitterness than between strangers . . . A litigation in a family is to belamented far more than a lawsuit between strangers . . . 5

But the instant case presents no occasion for the application of theabove-quoted provisions. As early as two decades ago, we already ruled in Gayon v.Gayon6thatthe enumeration of "brothers and sisters" as members of the same family does not comprehend"sisters-in-law". In that case, then Chief Justice Concepcion emphasized that "sisters-in-law" (hence,also "brothers-in-law") are not listed under Art. 217 of the New Civil Code as members of the samefamily. Since Art. 150 of the Family Code repeats essentially the same enumeration of "members ofthe family", we find no reason to alter existing jurisprudence on the matter. Consequently, the court aquo erred in ruling that petitioner Guerrero, being a brother-in-law of private respondent Hernando,was required to exert earnest efforts towards a compromise before filing the present suit.

In his Comment, Hernando argues that ". . . although both wives of the parties were not impleaded, it

remains a truism that being spouses of the contending parties, and the litigation involves ownershipof real property, the spouses' interest and participation in the land in question cannot be denied,making the suit still a suit between half-sisters . . ." 7

Finding this argument preposterous, Guerrero counters in his Reply that his "wife has no actualinterest and participation in the land subject of the . . . suit, which the petitioner bought, according tohis complaint, before he married his wife."8This factual controversy however may be best left to thecourt a quo to resolve when it resumes hearing the case.


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As regards the second issue, we need only reiterate our ruling inO'Laco v.Co Cho Chit,9citing Mendoza v.Court of Appeals, 10that the attempt to compromise aswell as the inability to succeed is a condition precedent to the filing of a suit between members of thesame family, the absence of such allegation in the complaint being assailable at any stage of theproceeding, even on appeal, for lack of cause of action.

It is not therefore correct, as petitioner contends, that private respondent may be deemed to havewaived the aforesaid defect in failing to move or dismiss or raise the same in the Answer. On theother hand, we cannot sustain the proposition of private respondent that the case was, after all, alsodismissed pursuant to Sec. 3, Rule 17, of the Rules of Court 11for failure of petitioner to comply withthe court's order to amend his complaint.

A review of the assailed orders does not show any directive which Guerrero supposedly defied. TheOrder of 7 December 1992 merely gave Guerrero five (5) days to file his motion and amendedcomplaint with a reminder that the complaint failed to allege that earnest efforts were exertedtowards a compromise. The Order of 22 December 1992, which denied Guerrero's motion forreconsideration, simply stated that "Plaintiff if it (sic)so desire mustamend the complaint otherwise, the court will have to dismiss the case (emphasis supplied) . . ." TheOrder of 29 January 1993 dismissing the case without prejudice only made reference to an earlierorder "admonishing" counsel for Guerrero to amend the complaint, and an "admonition" is notsynonymous with "order". Moreover, since the assailed orders do not find support in our

jurisprudence but, on the other hand, are based on an erroneous interpretation and application of thelaw, petitioner could not be bound to comply with them. 12

WHEREFORE, the petition is GRANTED and the appealed Orders of7 December 1992, 22 December 1992 and 29 January 1993 are SET ASIDE. The Regional TrialCourt of Laoag City, Branch 16, or whichever branch of the court the case may now be assigned, isdirected to continue with Civil CaseNo. 10084-16 with deliberate dispatch.

SO ORDERED.

Cruz, Davide, Jr. and Quiason, JJ., concur.

#Footnotes

1 Docketed as Civil Case No. 10084-16 of the Regional Trial Court, Br. XVI, LaoagCity, the complaint seeking to recover from private respondent Lot. No. 15731 of theSarrat Cadastre, Ilocos Norte, with damages.

2 First sentence of Sec. 12, Art. II, Constitution.

3 The family, being the foundation of the nation, is a basic social institution whichpublic policy cherishes and protects. Consequently, family relations are governed bylaw and no custom, practice and agreement destructive of the family shall berecognized or given effect.

4 Fule v. Court of Appeals, G.R. No. 79094, 22 June 1988, where it was held: By itsvery language, the Rule is mandatory. Under the rule of statutory construction,


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negative words and phrases are to be regarded as mandatory while those in theaffirmative are merely directory (McGee v. Republic, 94 Phil. 820 [1954]). The use ofthe term "shall" further emphasizes its mandatory character and means that it isimperative, operating to impose a duty which may be enforced (Bersabal v. Salvador,No. L-35910, 21 July 1978, 84 SCRA 176).

5 Report of the Code Commission, cited in Vicente J. Francisco, The Revised Rulesof Court in the Philippines (1973), Vol. I, p. 959.

6 No. L-28394, 26 November 1970, 36 SCRA 104, 108.

7 Comment, p. 2; Rollo, p. 50.

8 Reply, pp. 3-4, Rollo, pp. 58-59. Guerrero apparently refers to the Complaint, p. 1,par. 4, Rollo, p. 20. In this connection, he implies that he married his wife during theeffectivity of the New Civil Code hence the presumption under Art. 119 thereof thattheir property relation is one of conjugal partnership of gains.

Art. 148 of the same Code provides that property brought to the marriage as his or

her own shall be his or her own exclusive property.

9 G.R. No. 58010, 31 March 1993.

10 No. L-23102, 24 April 1967, 19 SCRA 756, 759. In that case, this Court throughJustice J.B.L. Reyes held: . . . Since the law forbids a suit being initiated (filed) ormaintained unless such efforts at compromise appear, the showing that efforts inquestion were made is a condition precedent to the existence of the cause of action.It follows that the failure of the complaint to plead that plaintiff previously tried inearnest to reach a settlement out of court renders it assailable for lack of cause ofaction and it may be so attacked at any stage of the case even on appeal.

11 If plaintiff fails to appear at the time of the trial, or to prosecute his action for anunreasonable length of time, or to comply with these rules or any order of the court,the action may be dismissed upon motion of the defendant or upon the court's ownmotion. This dismissal shall have the effect of an adjudication upon the merits,unless otherwise provided by the court.

12 Gojo v.Goyala, G.R. No. L-26768, 30 October 1970.

Adriano vs CA

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