USJ-R Cebu 2015 Civil Law Bar Exam Pointers on Persons, Marriage and Filiation

University
of San Jose Recoletos: Civil Law Pointers 2015

Some Sample Test Questions & Answers in Civil Law

Pointers for the 2015 Bar Exams
Jennoh Tequillo

LAW ON PERSONS, MARRIAGE, & FILIATION

QUESTION: Haruki, Japanese, married Natasha, a Filipina. One day Haruki found
Natasha grieving, apparently, because of the death of her 1st husband, George.
Then Natasha admitted that prior to her marriage to Haruki, she had a subsisting
marriage to her Filipino husband, George. She only married Haruki, only out of
poverty and joblessness. But Natasha reassured Haruki not to be worried,
because George already died and their 2nd marriage was no longer bigamous.
Haruki, nonetheless, sued praying for the court to declare his marriage with
Natasha void for bigamy. During trial only Haruki testified, presenting NSO
certified copies of the certificate of marriage between George and Natasha. The
court dismissed the Petition on the basis that Haruki failed to prove Natashas 1st
marriage to George, since Haruki had no personal knowledge thereof and he
failed to present NSOs custodian of records. Did the presiding judge correctly rule
the case? Decide with reasons.

ANSWER: The trial court INCORRECTLY dismissed the case. Harukis testimony,
where he presented a certified copy of the marriage certificate between George
and Natasha, sufficed to prove Natashas first marriage. Under R.A. No. 3753, or
the Law on Registry of Civil Status, documents arising from entries made by the
civil registrar constitute public documents. As public documents, not only should
they be admitted in evidence without further proof of their due execution and
genuineness, they also constitute prima facie evidence of the facts stated therein.
In this case, Haruki adequately proved that when he got married to Natasha, she
remained married to George. Georges subsequent death in the course of Harukis
marriage with Natasha, furthermore, does not make Natashas second marriage
less bigamous. If during a subsequent marriage, one of the parties remained
married to another party without a prior final decree of nullity or annulment of
the then subsisting marriage, then the subsequent marriage is bigamous. Please
see Yasuo Iwasawa vs. Felisa C. Gangan, et. al., G.R. No. 204169, Sept. 11, 2013.

QUESTION: Fujiki, Japanese, married Galela, a Filipina; but they broke up.
Without dissolving her marriage with Fujiki, Galela then married Kenichi, another
Japanese. But Galela fell in love with Fujiki again; so she left Kenichi and lived with
Fujiki again. In Japan, Fuijiki sued to prove void Galelas second marriage with
Kenichi. The Japanese court declared Galelas second marriage with Kenichi as
void for being bigamous. In the Philippines, Fujiki did not sue a Petition to declare
Galelas second marriage to Kenichi as void; instead, he simply sued for the
Judicial Recognition of Japans Foreign Judgment declaring Kenichis marriage to

USJ-R of Cebu, 2015 Civil Law Bar Exams Pointers, class of JH Tequillo
University of San Jose Recoletos: Civil Law Pointers 2015

Galela as invalid for being bigamous and under Rule 108 for the correction of
entry in the civil register. The trial court dismissed Fujikis Petition, invoking SC
Administrative Matter No. 02-11-2010-SC that only the husband or the wife to the
controverted marriage may sue to declare their own marriage void and that a
third party may not by a collateral attack of correction of entry cause another
persons marriage void. Did the trial court appropriately dismiss Fuijkis Petition?
Decide with reasons.

ANSWER: The trial court IMPROPERLY dismissed Fujikis Petition. R1 A.M. No. 02-
11-2010-SC, first of all, does not apply in a case for bigamy. In a bigamous
marriage, the parties to the illegal marriage may hold vested interest not to sue
for the nullity of their own marriage; but this should not prevent the husband of
the first marriage to prove the nullity of his wifes second marriage. In the case of
Juliano-Llave v. Republic, G.R. No. 169766, March 30, 2011, the Supreme Court
expressly declared the party to a first marriage to have the legal standing to sue
for the nullity of his spouses second and bigamous marriage.

R2 A.M. Matter No. 02-11-2010-SC, furthermore, does not apply in a petition to
recognize a foreign judgment relating to the status of a marriage where one of
the parties is a citizen of a foreign country. Under Article 26 of the Family Code,
Philippine courts may recognize a decree of absolute divorce issued by foreign
courts under given circumstances. A foreign judgment relating to the status of a
marriage, on this note, affects the civil status, condition, and legal capacity of its
parties. In suing for the judicial recognition of a foreign decree of nullity,
therefore, there is no collateral attack on marriage, but an effort to extend the
effect of a foreign judgment on the civil status, condition, and legal capacity of the
parties to a given marriage in the Philippines. Since the Philippines also recognizes
bigamy as illegal and void, the nullity of Kenichis marriage to Galela for bigamy
confirms and extends Philippine public policy. Please see Minoru Fujiki vs. Maria
Paz Galela Marinay, et. al., G.R. No. 196049, June 26, 2013.

QUESTION: Leo died without issue. Leah, his wife, and Fyodor, his legitimate
brother, survived him as his only remaining heirs. He also left an intestate estate
worth 10 Million Pesos. To claim exclusive rights over his estate Fyodor filed a
Petition for the issuance of Letters Administration and attacked Leos marriage to
Leah as void from the very beginning for lack of marriage license. Leo and Leah
got married in 1949. Leahs lawyer, invoking A.M. No. 02-11-10-SC, filed an
affirmative defense stating that Fyodor had no personality to attack the validity of
Leo and Leahs marriage. Is he correct?

ANSWER: Leahs lawyer is not correct. Although it is true that under A.M. No. 02-
11-10-SC, only the husband or the wife may file a petition for the declaration of
the nullity of marriage, Leo and Leah wed in 1949. Under the same A.M. No. 02-
11-10-SC the same rule applies only to void and voidable marriages under the


Family Code of the Philippines. For marriages prior to the Family Code it is
enough for a party to be a real-party-in-interest to hold the legal standing to sue
for the nullity of another partys marriage. To be a real-party-in-interest the party
must stand to enjoy some benefits or suffer some damage from the suit. In this
case since Fyodor stands to lose more than 5 Million Pesos in case Leo and Leahs
marriage is valid, he stands to enjoy some benefits or suffer some damage on the
issue of the validity of Leo and Leahs marriage. Hence, Fyodor is a real-party-in-
interest. Since Leo and Leah wed in 1949, Fyodor can question their marriage
despite the categorical prohibitive rule under Section 2 of A.M. No. 02-11-10-SC.
(Isidro Ablaza v. Republic of the Philippines, G.R. No. 158298, August 11, 2010.)
(See also Cynthia S. Bolos vs. Danilo T. Bolos, G.R. No. 186400, October 20, 2010.)

QUESTION: John met Marsha in 2008. In 2009 they decided to get married. In
order to shortcut the grant of their marriage license, they decided to lie under
oath claiming that they cohabited together as husband and wife for the last 7
years, when in fact they just met. Is their marriage valid?

ANSWER: John and Marshas marriage is void from the very beginning. They got
married without a marriage license. Under Article 4 of the Family Code, the
absence of a formal requisite will render the Marriage void from the very start. It
is no matter that John and Marsha executed an Affidavit of Cohabitation, which
turned out to be false. A false affidavit is not merely an irregularity in complying
a marriage license requirement and will not, in fact, exempt John and Marsha
from the formal requirement. [Republic of The Philippines, vs. Jose A. Dayot,
G.R. No. 175581. March 28, 2008.]

QUESTION: In 1994 Cyrus wed Yolanda. In 1994 Cyrus left for Egypt to work as
an OFW. For 10 years he never wrote Yolanda, never sent her money, never even
called just to say hi. Yolanda heard rumors that Cyrus was still alive, but he fell in
love with another girl, and he now had another family with 2 kids. In 2005,
however, Yolanda, despite these rumors, still filed a Petition for the Judicial
Declaration of Presumptive Death. The RTC granted her Petition declaring Cyrus
to be presumptively dead. The Office of the Solicitor General of the Republic of
the Philippines filed an appeal arguing that the RTC committed a grave mistake in
granting Yolandas Petition, because Yolanda did not really possess a well-
founded belief that Cyrus already died. In fact, Yolanda did not even prove that
she exercised due diligence to locate Cyrus, or to find out about what eventually
happened to him, but in vain. Should the Court of Appeals grant the OSGs
appeal?

ANSWER: The Court of Appeals should dismiss the OSGs appeal. Although Article
41 of the Family Code requires stricter preconditions like proof of a well-founded
belief of the probability of the absentees death, once the trial court makes a
judicial determination, this judicial determination is immediately final and
executory and not subject to ordinary appeal, in accordance with Article 247 of


the Family Code. In case of error the recourse of interested parties is to register
an Affidavit of Reappearance under Article 42 of the Family Code. (Please see
Republic of the Philippines vs. Yolanda C. Granada, G.R. No. 187512, June 13,
2012.)

QUESTION: Alain filed a Petition for the Declaration of the Nullity of his marriage
to Caridad on the ground of psychological incapacity. Caridad vehemently
opposed this Petition. Trial ensued and the court ruled in favor of Alain granting
his Petition. The court did not touch on the issue of the liquidation, partition, and
distribution of properties. Caridad filed a Motion for Reconsideration claiming
that the decision was void. To support her claim she cited Section 19(1) of A.M.
No. 02-11-10-SC which states that if the court renders a decision declaring the
absolute nullity of the marriage, the decree of absolute nullity shall be issued only
after compliance of Articles 50 and 51 of the Family Code as implemented under
the rule on the liquidation, partition, and distribution of properties. What if you
were the Honorable Presiding Judge, would you grant Caridads Motion for
Reconsideration?

ANSWER: I will deny Caridads Motion for Reconsideration. In a marriage void for
psychological incapacity there is no community of property or partnership of
gains to liquidate, partition, and dissolve. Said marriage is void from the very
beginning and the parties are only bound by a possible co-ownership either under
Articles 147 and 148. Articles 50 and 51 of the Family Code, on the other hand,
speak about voidable marriages and one special type of void marriage under
Article 40 of the Family Code, where a second marriage is void for having been
celebrated without the proper final decree of nullity of the first marriage. In cases
under Articles 40 and 45 of the Family Code, there is indeed a need not only to
liquidate, partition, and distribute the community or conjugal properties, but also
to deliver presumptive legitimes, and to register the final decree of nullity,
delivery of presumptive legitimes, and liquidation and partition scheme with the
concerned local civil registrar. Since the court declared Alain and Caridads
marriage void for reason of psychological incapacity, Caridad may not invoke the
lack of the liquidation of her shared properties with Alain to prove the nullity of
the courts decision. (Please see Alain M. Dino vs. Ma. Caridad L. Dino, G.R. No.
178044, January 19, 2011.)

QUESTION: Hans wanted to buy badly a specific House and Lot in Maria Luisa
Park but he did not have enough funds. So he went to his father, Henry, and
sought his help. Henry talked with the owner of the house and lot and paid them
10 Million Pesos in cash. The House and Lot was then registered in the name of
Hans. Later on Hans got married to Gretel. Gretel claims that the House and Lot
forms part of their Absolute Community of Property. Henry disagrees. He states
that since his money was used to buy the property, Hans held the property


merely as Henrys trustee; and the property remains to be completely owned by

Henry. Decide who is right.

ANSWER: Gretel is correct. The House and Lot form part of her Absolute
Community of Property with Hans, because it is property brought by Hans into
their Marriage (Art. 91, FC). Henrys claim that Hans is merely his trustee is
untenable. Under Article 1448 of the New Civil Code, there is no implied trust if
the person to whom the title is conveyed is a child, legitimate or illegitimate, of
the one paying the price of the sale, NO TRUST IS IMPLIED BY LAW, it being
disputably presumed that there is a gift in favor of the child". Hence, the
presumption is that Henry donated the property to Hans. At the time of Hans
marriage with Gretel, hence, Hans contributed his House and Lot to form part of
their ACP. (Alejandro B. Ty, vs. Sylvia S. Ty, G.R. No. 165696. April 30, 2008.)

QUESTION: Ernesto and Juana built a residential house in 1944, which they used
as a family home. Together they lived there for 50 years with their 5 children.
They did not, however, judicially or extra-judicially constitute it as their family
home. They relied on Article 154 of the Family Code where actual residence was
enough to constitute said family home. In order to protect this home from a
money judgment against their community of property, can Ernesto and Juana
properly claim their residence to be a family home?

ANSWER: Ernesto and Juana may not claim this residential house to be their
family home. Since they constructed their home prior to 1988, they must abide by
the provisions of the Civil Code, which required them to judicially or extra-
judicially constitute their residence to be a family home. Under the Civil Code
judicial constitution requires the filing of a verified petition before the courts and
registration of the courts order with the Register of Deeds while extra-judicial
constitution requires the execution of a public instrument, which must also be
registered with the Register of Deeds. Under Article 154 of the Family Code, on
the other hand, the family home is exempt from execution for the time of its
constitution as long as any of the beneficiaries continue to reside therein. (Please
see Juanita Trinidad Ramos, et. al., vs. Danilo Pangilinan, et. al., G.R. No. 185920,
July 20, 2010.)

QUESTION: Benhur had extramarital relations with Ara and they begot a son
Raul. Ara wrote Benhurs name in Rauls Certificate of Birth but Benhur did not
sign the same. Benhur, however, signed a Contract of Support binding himself to
pay for Rauls food, shelter, medical, and clothing expenses without need of any
demand. Benhur died leaving an estate of 10 Million Pesos, a wife, and one
legitimate child. On behalf of Raul Ara filed a claim for the legitime of Raul in
Benhurs estate. As proof of Rauls filiation she presented his Certificate of Birth,
which bares Benhurs name, and the Contract of Support signed by Benhur for the
benefit of Raul. Does Raul hold sufficient evidence of filiation to Benhur?


ANSWER: Rauls Certificate of Live Birth holds no probative value to prove his
filiation with Benhur. Since Benhur did not sign this document, this Certificate
cannot prove Benhurs categorical admission of his paternity of Raul. The Contract
of Support cannot also prove Benhurs paternity of Raul. An admission of
paternity or filiation must be categorical. An agreement to support the material
needs of another human being cannot give rise to an irrefutable inference of
paternity. The basis for said Contract of Support may very well be not paternity
but liberality, gratuity, or charity. Without any proof in writing, hence, that
Benhur acknowledged Raul to be his own son, Raul has no recourse to claim his
legitimes in Benhurs estate after Benhurs death. (Benhur Nepomuceno vs.
Arhbencel Lopez, G.R. No. 181258, March 18, 2010.)

QUESTION: Primo and Monina, spouses, decided to adopt the son of their
household helper and to name him Micheal. To shortcut the process, however,
they merely simulated his birth to make it appear that Monina gave birth to
Micheal during the subsistence of her marriage with Primo. Primo died. Monina
remarried to Nestor an Indian citizen who just arrived in the Philippines. DSWD
then wrote Monina attaching to its letter a complaint filed by an anonymous
person accusing Monina and Primo to have simulated the birth of Micheal. To
cure this defect Monina availed of an amnesty granted by R.A. 8552 and she filed
a Petition for Adoption. Since her new husband, Nestor was an Indian national,
she did not ask him to file the Petition for Adoption jointly with her. She simply
asked Nestor to sign an Affidavit of Consent. If you were the judge, would you
grant Moninas Petition for Adoption?

ANSWER: I will dismiss Moninas Petition for Adoption. Under R.A. 8552 the
husband and the wife must adopt jointly except if (a) one spouse seeks to adopt
the legitimate son/daughter of the other, (b) one spouse seeks to adopt his/her
own illegitimate son/daughter; provided, that the other spouse has signified
his/her consent thereto; and (c) if the spouses are legally separated from each
other. At the time of adoption, Monina was married to Nestor; and their case did
not fall in any of the exceptions enumerated by law. Secondly Nestor, as an Indian
National, needed to live in the Philippines for 3 continuous years prior to the filing
of the Petition for Adoption and he needed to maintain this residency until the
entry of said adoption decree. For failing to comply with the basic requirements
of R.A. 8552 for the grant of said Decree of Adoption, Moninas Petition must fail.
It must be dismissed. (Please see In re: Petition for the Adoption of Michelle P.
Lim and Micheal Jude P. Lim, G.R. No. 168992-93, May 21, 2009.)

QUESTION: In 1978 Fabian married Imelda and they gave birth to 3 children. In
the course of their marriage Fabian fell in love with Corazon and they gave birth
to Pablo. In his birth certificate Fabian acknowledged Pablo to be his son. In 1995
Fabian secretly married Corazon and they filed an Affidavit of the Legitimation of


Pablo. In 1998 Fabian died. During his wake Corazon and Pablo came and Corazon
introduced Pablo to be Fabians legitimated son presenting to them Pablos
Certificate of Birth where Pablo even used Fabians surname. Shocked, Imelda and
her 3 children filed a claim for the Cancellation or Correction of Entries in the
Original Registry, in order to disallow Pablo from using the surname of Fabian, for
Pablo was an illegitimate child, borne outside a valid marriage. They argued that
Fabian and Corazons marriage, for being bigamous, was void. You are the
Honorable Presiding Judge, would you grant the Petition filed by Imelda and her 3
children?

ANSWER: I will dismiss the Petition filed by Imelda and her 3 children. A Petition
for the Cancellation or Correction of Entries in the Original Registry is not the
proper recourse to impugn the legitimacy of a child or to declare the nullity of
someones marriage to another. In a special proceeding for the correction of
entries under Rule 108, the trial court has no jurisdiction to nullify marriages or to
rule on paternity and filiation but simply to correct clerical errors. A clerical error
is a mistake visible to the eye or obvious to the understanding, a mistake in
copying or writing, or a harmless change such as a correction of name that is
clearly misspelled. Substantial or contentious alterations may be allowed only in
adversarial proceedings, where interested parties may contest, in order to respect
the constitutional rights of parties not to be deprived of their rights or statuses
without due process of law. (Please see Ma. Cristina Torres Braza, et. al., vs. The
City Civil Registrar of Himamaylan City, et. al., G.R. No. 181174, December 4,
2009.)

QUESTION: Herald, a US Citizen, and Sharon, a Filipina, married in the United
States. They gave birth to KC. Thereafter Herald filed for divorce and a US Court
granted them a Decree of Absolute Divorce granting sole custody rights of KC,
their 3-year-old daughter, in favor of Sharon. Sharon travelled back to the
Philippines with KC. Herald followed suit. In consideration of a lifetime support of
5 Million Pesos paid in one lump sum, Sharon signed a Joint Custody Agreement
with Herald allowing him to have custody of KC every other weekend from Friday
until Sunday at 7 in the evening. In a years time Sharon lost 4 Million Pesos to the
Casino, and so she asked for additional funds from Herald. Herald refused.
Thereafter Sharon refused to let Herald ever see KC again. Herald went to court
and sued for the specific performance of the Joint Custody contract with Sharon
over KC. If you were the Honorable Presiding Judge, would you rule in favor of
Herald?

ANSWER: I will dismiss Heralds complaint. I will declare void the Joint Custody
Agreement signed between Herald and Sharon over KC for being contrary to law.
At the time of the execution of said agreement, Sharon was no longer married to
Herald; and hence Sharon and Herald signed this agreement as parties who were
complete strangers to each other. More importantly, the legal custody of a child is


a matter of law and not a matter of stipulation. Under Article 213 of the Family
Code, no child under seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise. In this case, since
the Joint Custody Agreement contravenes Article 213 of the Family Code, which
required for a child under 7 years of age to be under the custody of her mother,
this agreement cannot constitute as a compelling reason for the court to even
temporarily take away KC from Sharon to accommodate Heralds wish for joint
custody over KC. (Please see Herald Black Dacasin vs. Sharon del Mundo Dacasin,
G.R. No. 168785, February 5, 2010.)

QUESTION: Virginia V. Remo married Francisco R. Rallonza . Thereafter she
applied for a Philippine Passport and the Department of Foreign Affairs issued a
Passport in her married name as Virgina Remo Rallonza. After 4 years Virgina
claimed that she had a falling our with Francisco and so she applied with the
Department of Foreign Affairs to cancel her old passport and to issue passport
this time only in her maiden name. She invoked Article 370 of the New Civil Code
which stipulates that a married woman may use (a) her maiden first name and
surname and add her husbands surname; (b) her maiden first name and her
husbands surname; or (c) her husbands full name but prefixing a word indicating
that she is wife such as Mrs. The Department of Foreign Affairs denied her
request stating that for passport purposes, Section 5(d) of R.A. 8239 governs the
matter of when a married woman may revert to the use of her maiden name.
Virginia filed a case for mandamus against the Department of Foreign Affairs. If
you were the Honorable Presiding Judge, would you rule in her favor?

ANSWER: I will dismiss Virginias case. Indeed the word may in Article 370 of
the New Civil Code does indicate that the use of the husbands surname by the
wife is permissive rather than obligatory. For passport purposes, Section 5 of R.A.
8293 limits the instances when a married woman may be allowed to revert to the
use of her maiden name in her passport to the following: (a) death of husband, (b)
divorce decree, and (c) annulment or nullity of marriage. Since Virginas marriage
to Francisco subsisted, Virginia may not resume using her maiden name in the
replacement passport. Had she opted to consistently use her maiden name in his
original passport the DFA would have clearly had the duty to allow her to do so. If
allowed to revert to her maiden name, nothing (again) would have prevented her
to revert to her married name in the future should she have better ties with
Francisco. In the matter of passports, an identity document superior to all other
official documents, one may not change ones family name at will. (Please see
Ma. Virgina V. Remo vs. Secretary of Foreign Affairs, G.R. No. 169202, March 5,
2010.)

QUESTION: State the guidelines set by the SC for the admission of DNA testing
by trial courts?


ANSWER: The Court said that trial courts should be cautious in giving credence
to DNA analysis as evidence. It reiterated that trial courts should require at least
99.9% as a minimum value of the numerical estimate for the likelihood of a
putative fathers paternity compared to the probability of a random match of two
unrelated individuals. Furthermore, the Court said that in assessing the weight of
the DNA evidence, trial courts should consider how the samples were collected,
how they were handled, the possibility of their contamination, the procedure
followed in their analysis, and the qualifications of the analyst who conducted the
tests. (See Rosendo Herrera vs. Rosendo Alba, et. al., G.R. No. 148220, 15 June
2005)

QUESTION: A gave birth to B not knowing who was Bs father and outside a valid
marriage. Later on, A fell in love with X. They got married. X then adopted B, who
became his legitimate child by legal fiction. What surname should B, then, carry?
Is it possible for B to still carry the surname of A?

ANSWER: B should carry the surname of X, as the effect of his adoption by X. But
B may still carry the surname of her illegitimate mother but only as his middle
name. (See In the Matter of the Adoption of Stephanie Nathy Astorga Garcia,
G.R. No. 1483311, 31 March 2005)

QUESTION: Company X, for whom A works, has a policy prohibiting its
employees from marrying someone who works for any of its competitors, under
pains of dismissal. A then married B, who was working for Company Y, Xs known
competitor. Company X then wrote A asking him to show cause why he should
not be dismissed for violating company policy. A answered that the company
policy was void, for limiting his right to marriage. Is A correct?

ANSWER: A is wrong. A companys prohibition against personal or marital
relationships with employees of competitor companies is a reasonable
prohibition, since relationships of this nature stand to compromise the interests
of the company. The company rather has the right to protect its interests against
the possibility that a competitor company will gain access to its trade secrets and
procedures. The policy being questioned, furthermore, is not a policy against
marriage. An employee of the company remains free to marry anyone of his or
her choosing. But an employees personal decision does not detract the employer
from exercising management prerogatives to ensure maximum profit and
business success. (Duncan Association of Detailman-PTGWO and Tecson vs.
Glaxo Wellcome Philippines, Inc., G.R. No. 162994, September 17, 2004.)

QUESTION: Out of wedlock, Dolphy and Alma gave birth to Vandam. In his Birth
Certificate, Dolphy acknowledged his paternity to Vandam. Since Alma had to go
to Saudi Arabia, Dolphy and Alma separated de facto. Alma entrusted Vandam to
her sisters ZsaZsa and Delia. Dolphy then asked permission to spend a day with


Vandam in the mall; but then he refused to return Vandam to ZsaZsa and Delia.
Alma sued Dolphy to compel him to return custody to her or her appointed
representatives. In his defense, Dolphy claimed custody over Vandam on the
ground of his being his father by blood. As the presiding judge, how would you
rule? Decide with reasons.

ANSWER: As the presiding judge, I will confirm Almas sole custody over Vandam.
Having been born out of wedlock, Vandam is an illegitimate child of Dolphy and
Alma. Under Article 176 of the Family Code, illegitimate children . . . shall be
under the parental authority of their mother. In the case of Daisy David vs.
Court of Appeals, G.R. No. 111180, November 16, 1995, the SC held that the fact
that the father has recognized the minor child may be a ground for ordering him
to give support to the latter, but not for giving him custody of the child. Alma,
hence, holds sole parental custody over Vandam to the exclusion of all others,
including Dolphy. Pleaes see Joey D. Briones vs. Maricel P. Miguel et al., G.R. No.
156343, October 18, 2004.

LAW ON LAND, MOVABLES, & PROPERTY

QUESTION: Don Fabian is the owner of Lot 349. He has 4 children. In order to
protect Lot 349 from his creditors, Don Fabian agreed to sign an absolutely
simulated sale in favor of Fidel, one of his children. Everyone in the family was
told that no money changed hands between Fidel and Don Fabian. For the next 10
years, Don Fabian never gave up possession of Lot 349. On the 10th year, Don
Fabian died. Fidel and his wife took possession of Lot 349 in the concept of owner.
For five years, the three siblings of Fidel pleaded with him to already partition Lot
349. Fidel refused, saying he was already the registered owner of Lot 349. So his 3
siblings sued him for Judicial Partition of Lot 349. In his Answer, Fidel assailed his
siblings right of action to sue him for partition, since they did not even appear to
be his registered co-owners. Furthermore, Fidel claims that his possession already
ripened into ownership by virtue of acquisitive prescription from the time he
repudiated their co-ownership at the time when Don Fabian sold the property to
him. Who is the owner of Lot 349? Decide.

ANSWER: Lot 349 is subject to the co-ownership of Fidel and his siblings as
compulsory heirs of Don Fabian. The absolutely simulated sale between Fidel and
Don Fabian was void from the very start and produced no effect. At the time of
his death, therefore, Don Fabian remained to be the lawful owner of Lot 349.
Partition, on the other hand, is the proper remedy available to Fidels 3 siblings
who are co-owners of Lot 349 by virtue of their being compulsory heirs. Finally,
Fidels claim of ownership by way of acquisitive prescription is untenable. Under
Article 494 of the Civil Code, no prescription shall run in favor of a co-owner or co-
heir against his co-owners or co-heirs without the claimants clear repudiation of
the co-ownership and categorically communicated to the other co-owners. In this
10


case, Fidel repudiated the co-ownership and communicated this repudiation only
for the immediately preceding 5 years. This falls short of the 10 year requirement
set by the Law for good faith acquisitive prescription and the 30 year requirement
in cases of bad faith. Therefore, Lot 349 should belong to all of the compulsory
heirs of Don Fabian, in accordance with Law. (Tirso D. Monteroso, vs. Court Of
Appeals, et. al., G.R. No. 105608. April 30, 2008.)

QUESTION: Manuel owned a piece of land with an area of 2 hectares adjacent to
the sea subject to an Original Certificate of Title issued by the Land Registration
Authority in his name. Of these 2 hectares, around 1 hectare is submerged in
water. The remaining one hectare, on the other hand, is occupied by uninvited
squatters. Manuel filed a case for forcible entry against these squatters. In their
defense, the squatters claimed that Manuel can not fairly claim ownership over
these lands, because, by their nature, they constitute foreshore lands which
form part of the public domain. To prove their defense the squatters proved the
location of the dry portion of the property to be proximate to the submerged
portion. They admitted, however, that the property remained dry all throughout
the year. If you were the honorable presiding judge, how would you rule?

ANSWER: I will rule in favor of Manuel and I will order the squatters to vacate
the property. To qualify as foreshore land, the land must lie between the high and
low water marks and must be alternately wet and dry according to the flow of the
tide. Although half of the land is submerged in water, there is no showing that the
remaining half was alternately wet and dry. Proximity to the waters alone does
not automatically convert a property into a foreshore land; it does not
automatically convert a private property into one of public domain. Manuel,
hence, remained to be the owner of said land; and as such, he had the right to
exclude the uninvited squatters from said piece of land. (Manuel & Elizabeth
Almagro vs. Salvacion C. Kwan, et. al., G.R. Nos. 175806 and 175810, October 20,
2010.)

QUESTION: Nikko and Florinda, husband and wife, owns Lot 888. Prior to their
Marriage, they signed a Marriage Settlement stipulating to be governed by the
Conjugal Partnership of Gains. 10 years into their Marriage, Florinda filed a
Petition for the Declaration of Nullity of their Marriage on the ground of Article 36
of the Family Code. The Court granted their Petition, which became final and
executory. The couple, however, failed to dissolve or liquidate their conjugal
properties. They went their separate ways without settling their conjugal assets. 2
years after the declaration of the nullity of their marriage, Florinda applied for a
loan from METROBANK and she delivered Lot 888 to them by way of Real Estate
Mortgage without the consent of her former husband. When Nikko heard about
the encumbrance, he sued METROBANK for nullity of the Real Estate Mortgage.
11


METROBANK contended that since his marriage was already dissolved, Nikko had
no cause of action against them, since Lot 888 ceased to be conjugal property. Is
the Real Estate Mortgage valid?

ANSWER: The Real Estate Mortgage of Lot 888 is valid insofar as the portion of
Florinda is concerned and void insofar as the portion of Nikko is concerned.
While the declared nullity of marriage of Nikko and Florinda severed their marital
bond and dissolved the conjugal partnership, the character of the properties
acquired before such declaration continues to subsist as conjugal properties until
and after the liquidation and partition of the partnership. In other words, pending
its liquidation following its dissolution, the conjugal partnership of gains is
converted into an implied ordinary co-ownership among the surviving spouse
and the other heirs of the deceased. In this pre-liquidation scenario, Art. 493 of
the Civil Code shall govern the property relationship between the former spouses,
where: Each co-owner shall have the full ownership of his part and of the fruits
and benefits pertaining thereto, and he may therefore alienate, assign or
mortgage it, and even substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the alienation or the mortgage,
with respect to the co-owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of the co-ownership.
Hence, the rights of METROBANK, as mortgagee, are limited only to the 1/2
undivided portion that Florinda owned. [Metropolitan Bank And Trust Co., vs.
Nicholson Pascual G.R. No. 163744. February 29, 2008.]

QUESTION: Robin owned a vacant piece of land. For 30 years his neighbors used it
as a road right of way, their most convenient route, to a public highway. One day
Robin decided to sell his property; and to facilitate this sale, Robin decided to
construct a concrete fence. His neighbors violently objected. They declared the
concrete posts to be a nuisance per se, since it had the direct effect of depriving
them of the road right of way, which they have been enjoying for the last 30
years, and so they extra-judicially abated and destroyed the nuisance. Are Robins
neighbors correct in their position that said concrete posts constitute nuisance
per se and in their decision to extra-judicially abate and destroy these
constructions?

ANSWER: Robins neighbors are wrong. A nuisance per se pertains to a structure
or activity that affects the immediate safety of the persons and property of other
people or of society in general; as such they may be summarily abated or
destroyed under the undefined law of necessity. Robin constructed concrete
posts preliminary to the completion of a concrete fence. They do not constitute a
nuisance per se. By its nature neither the concrete post nor the eventual fence
pose any danger to the health or safety of said neighbors. In constructing said
fence, Robin merely exercised his ownership right to protect his lot from
12


encroachment. Robins neighbor also erred in abating and destroying the fence
without seeking recourse from the courts. Unless a structure constitutes a
nuisance per se, no person may abate it summarily without judicial
determination. A private nuisance, a nuisance per accidens, requires a court
process to determine whether or not it constitutes, in fact, a nuisance. (Jaime
Perez vs. Sps. Fortunito L. Madrona & Yolanda Pante, G.R No. 184478, March 21,
2012, and Guillermo M. Telmo vs. Luciano M. Bustamante, G.R. No. 182567, July
13, 2009.)

QUESTION: Ignacio owns a large tract of land located right smack in Cebu
Business Park. 100 families occupy this property. He sued them for ejectment and
he won the case. He also obtained not only a writ of eviction against them but
also a writ of demolition. These settlers then sought help from the Mayor. To
court their votes the City of Cebu sued Ignacio for expropriation and pursuant to
said complaint with the intention of establishing a socialized housing project
therein for the distribution to these settlers, and the court issued a Writ of
Possession in favor of the City of Cebu. For lack of funds the City of Cebu did not,
however, deposit any form of just compensation corollary to the writ of
possession. The settlers now sued Ignacio for a Temporary Restraining Order and
a Writ of Preliminary and Permanent Injunction on account of the expropriation
proceedings initiated by the City of Cebu and the writ of possession issued by the
court. You are the honorable presiding judge, would you grant these settlers
prayer for an injunction and a TRO?

ANSWER: I will deny these settlers prayer for a Temporary Restraining Order and
a Writ of Preliminary and Permanent Injunction. The City of Cebu may have
initiated expropriation proceedings against Ignacio and his land; this did not make
the City of Cebu the new owner of the property. The trial court may have issued a
writ of possession against Ignacios land in favor of the City of Cebu, its settlers
are merely presuming without any valid basis that the City of Cebu would
grant the possession of portions of the same lot in their favor. Since the City of
Cebu failed to even deposit just compensation corollary to the writ of possession
issued by the court, the settlers beg the question on whether or not the City of
Cebu was really serious and sincere in initiating an expropriation suit for
distribution to selected poor settlers of a piece of property right in the heart of
one of Cebus most expensive commercial districts. The settlers also beg the
question of whether Cebus expropriation case would prosper and whether Cebu
would eventually distribute portions of said land to them and not to other
constituents. (Please see Spouses Leticia and Jose Ervin Abad, et. al., vs. Fil-
Homes Development and Realty Corporation, et. al., G.R. No. 189239, November
24, 2010.)

13


QUESTION: Paul is into the trucking and hauling business and he owns a piece of
land with no direct access to a public highway, which he uses as a parking area for
his trucks. This property was adjacent to the property owned by Mark, Peter and
Luke. Paul needed a road right of way. Paul made some computations and he
realized that asking for a right of way from Mark would be most convenient for
his trucks, since it would be the shortest distance from his lot to the highway and
his trucks would not have to make unnecessary turns or maneuvers. Hence, Paul
sued Mark for a Road Right of Way. Thereafter Mark sold his property to Walmart
Furnitures, Inc., who decided to fence the property and use it as a warehouse.
Walmart Furnitures spent about 5 Million Pesos for the structures. If you were the
Honorable Presiding Judge, how would you rule on Pauls Complaint?

ANSWER: I will dismiss Pauls Complaint. To be entitled to a legal easement of
right of way, the following requisites must be satisfied: (1) the dominant estate is
surrounded by other immovables and has no adequate outlet to a public highway;
(2) proper indemnity has been paid; (3) the isolation was not due to acts of the
proprietor of the dominant estate; and (4) the right of way claimed is at the point
least prejudicial to the servient estate. In this case, since using Marks property as
the chosen road right of way will entail destroying structures in the amount of at
least 5 Million Pesos, then getting a road right of way from Marks property is not
the least prejudicial to the servient estate. Where there are several tenements
surrounding the dominant estate, and the easement may be established on any of
them, the one where the way is shortest and will cause the least damage should
be chosen. But if these two circumstances do not concur in a single tenement, as
in the instant case, the way which will cause the least damage should be used,
even if it will not be the shortest. The criterion of least prejudice to the servient
estate must prevail over the criterion of shortest distance. The court is not bound
to establish what is the shortest; a longer way may be established to avoid injury
to the servient tenement, such as when there are constructions or walls which
can be avoided by a round-about way, as in the case at bar.

As between a right of way that would demolish a fence of strong materials to
provide ingress and egress to a public highway and another right of way which
although longer will only require a van or vehicle to make a turn, the second
alternative should be preferred. Mere convenience for the dominant estate is not
what is required by law as the basis for setting up a compulsory easement. Even
in the face of necessity, if it can be satisfied without imposing the easement, the
same should not be imposed. [Apolinardito C. Quintanilla, vs. Pedro Abangan,
et. al.,. G.R. No. 160613. February 12, 2008.]

QUESTION: Jorge, a drug pusher, borrowed Richards Toyota Camry. He stuffed
the car with 50 kilos of illegal drugs. In a checkpoint the police found these drugs
and seized them as well as Richards car. Thereafter the police commenced a
14


criminal case against Jorge and kept the drugs as well as the Toyota Camry.
Richard then wrote the police to retrieve his Toyota Camry as a personal non-drug
effect. The police refused to do so. So Richard filed a motion in court, which the
court granted. Is the RTC correct in granting so?

ANSWER: The RTC is wrong. Although objects of lawful commerce confiscated in
the course of an enforcement of the Comprehensive Dangerous Drugs Act of 2002
that are the property of a third person are subject to be returned to their lawful
owners not liable for the unlawful act, the trial court cannot release these
personal effects during trial and before judgment. The status of the Toyota Camry
during trial is that of being in custodia legis for the purpose of preserving it as
evidence and ensuring its availability as such. To release the Toyota Camry
pending trial and before judgment stands to impede and obstruct criminal justice,
as it stands to deprive the court and the parties their full access to the pertinent
evidence of the crime. (Philippine Drug Enforcement Agency vs. Richard Brodett
and Jorge Joseph, G.R. No. 196390, September 28, 2011.)

QUESTION: Can the concrete stairway beside and as access to the Ninoy Aquino
Highway be subject of proceedings for accion publiciana and easement of right of
way?

ANSWER: NO. Property of public dominion is outside the commerce of man and
hence it: (1) cannot be alienated or leased or otherwise be the subject matter of
contracts; (2) cannot be acquired by prescription against the State; (3) is not
subject to attachment and execution; and (4) cannot be burdened by any
voluntary easement.

Considering that the lot on which the stairways (beside and leading to the Ninoy
Aquino Highway) were constructed is a property of public dominion, it can not be
burdened by a voluntary easement of right of way in favor of herein petitioner.
And neither petitioner nor respondents have a right of possession over the
disputed lot where the stairways were built as it is a property of public dominion.
(Teofilo C. Villarico vs. Vivencio Sarmiento, et. al., G.R. No. 136438, November
11, 2004.)

QUESTION: Does an owner of an expropriated land for public use have the right to re-acquire
it after the public use is abandoned?

ANSWER: NO. If the land has been acquired for public use in fee simple,
unconditionally, either by the exercise of eminent domain or by purchase, the
former owner retains no rights in the land, and the public use may be abandoned
or the land may be devoted to a different use, without any impairment of the
estate or title acquired, or any reversion to the former owner. However if the
land is expropriated for a particular purpose, with the condition that when that
15


purpose is ended or abandoned the property shall return to its former owner,
then, when the purpose is terminated or abandoned the former owner
reacquires the property so expropriated. (ATO vs. Gopuco, June 30, 2005)

QUESTION: Is a small creek beside the subdivision part of public domain?
ANSWER: YES. The phrase others of similar character includes a creek which is
a recess or an arm of a river. It is property belonging to the public domain which
is not susceptible to private ownership. Being public water, a creek cannot be
registered under the Torrens System in the name of any individual.
Polinar spouses, however, may utilize the rip-rapped portion of the creek to
prevent the erosion of their property. (Usero vs. Court of Appeals, January 26,
2005.)

QUESTION: Can machineries which are essential and principal elements of an
industry be made subject of writs of replevin?

ANSWER: NO. They are real property by destination, hence cannot be subject of
a writ of replevin. (Serges Products vs. PCI, 2000)

QUESTION: What about if the parties agree that immovable be considered
personal properties, may the immovable be subject of writ of replevin?

ANSWER: YES, in this case the parties are estopped from claiming that such
properties are immovable. (Serges Products vs. PCI, 2000)

QUESTION: Pecson owned a commercial lot on which he built a four-door two-
storey apartment building. For failure to pay realty taxes, the lot was sold at
public auction by the City Treasurer of Quezon City to B, who in turn sold it
Nuguid. Pecson then challenged the validity of the auction sale before the RTC of
Quezon City. In its Decision dated February 8, 1989, the RTC upheld the Nuguids
title but declared that the four-door two-storey apartment building was not
included in the auction sale. This was affirmed by the SC. Nuguid then moved for
delivery of possession of the lot and the apartment building. Is Art 448 applicable
entitling Pecson of reimbursement of the value of the building?

ANSWER: YES. In so ruling, this Court pointed out that: (1) Article 448 of the Civil
Code is not apposite to the case at bar where the owner of the land is the builder,
sower, or planter who then later lost ownership of the land by sale, but may,
however, be applied by analogy; (2) the current market value of the
improvements should be made as the basis of reimbursement; (3) Pecson was
entitled to retain ownership of the building and, necessarily, the income
therefrom. (Nuguid vs. CA, Feb. 23, 2005)
16


QUESTION: Can a builder in good faith compelled to pay rentals and to account
for the civil fruits of the improvement during the period of retention?

ANSWER: NO. A builder in good faith cannot be compelled to pay rentals during
the period of retention nor be disturbed in his possession by ordering him to
vacate. In addition, as in this case, the owner of the land is prohibited from
offsetting or compensating the necessary and useful expenses with the fruits
(rents) received by the builder-possessor in good faith. The right to the expenses
and the right to the fruits both pertain to the possessor, making compensation
juridically impossible; and one cannot be used to reduce the other.

Since petitioners opted to appropriate the improvement for themselves as early
as June 1993, when they applied for a writ of execution despite knowledge that
the auction sale did not include the apartment building, they could not benefit
from the lots improvement, until they reimbursed the improver in full, based on
the current market value of the property.

The right of retention, which entitles the builder in good faith to the possession as
well as the income derived therefrom, is already provided for under Article 546 of
the Civil Code. (Nuguid vs. CA, Feb. 23, 2005)

QUESTION: Is possession by children of lot owned by the parents considered
possession in good faith and thus entitled the children of the reimbursement of
useful expenses?

ANSWER: YES. The children were invited by the parents to occupy the latters
two lots, out of parental love and a desire to foster family solidarity.
Unfortunately, an unresolved conflict terminated this situation. Out of pique, the
parents asked them to vacate the premises. Thus, the children lost their right to
remain on the property. They have the right, however, to be indemnified for the
useful improvements that they constructed thereon in good faith and with the
consent of the parents. Article 448 of the Civil Code applies. (Macasaet vs.
Macasaet, September 30, 2004)

QUESTION: Will art. 448 apply to possessor who is not the builder, sower or
planter?
ANSWER: NO. Article 448, of the Civil Code refers to a piece of land whose
ownership is claimed by two or more parties, one of whom has built some works
(or sown or planted something) and not to a case where the owner of the land is
the builder, sower, or planter who then later loses ownership of the land by sale
or otherwise for, elsewise stated, where the true owner himself is the builder of
works on his own land, the issue of good faith or bad faith is entirely irrelevant.
17


(PNB vs. De Jesus, September 23, 2003)

QUESTION: What is the evidentiary value of tax declarations in claim of
ownership?
ANSWER: Tax receipts and declarations are prima facie proofs of ownership or
possession of the property for which such taxes have been paid. Coupled with
proof of actual possession of the property, they may become the basis of a claim
for ownership. By acquisitive prescription, possession in the concept of owner
public, adverse, peaceful and uninterrupted may be converted to ownership.
On the other hand, mere possession and occupation of land cannot ripen into
ownership. (Cequena vs. Bolante, April 16, 2000)
QUESTION: Can a promise to sell by the owner to the possessor -
unsubstantiated and not in writing be the basis of possessors good faith?

ANSWER: NO. Article 448 of the Civil Code, in relation to Article 546 of the same
Code, which allows full reimbursement of useful improvements and retention of
the premises until reimbursement is made, applies only to a possessor in good
faith, i.e., one who builds on land with the belief that he is the owner thereof. It
does not apply where one's only interest is that of a lessee under a rental
contract; otherwise, it would always be in the power of the tenant to "improve"
his landlord out of his property. The alleged promise of the petitioners to sell the
lot occupied by the private respondents' house, which was not substantiated and
not put into writing, can not be the basis of good faith. (Geminiano vs. CA, 1996)

QUESTION: Can the possessor claim good faith based simply on the owners
mere acquiescence or tolerance?

ANSWER: NO. It is well-settled that while the Article allows full reimbursement of
useful improvements and retention of the premises until reimbursement is made,
applies only to a possessor in good faith, i.e., one who builds on land with the
belief that he is the owner thereof. Verily, persons whose occupation of a realty is
by sheer tolerance of its owners are not possessors in good faith. The lower
courts have made a common factual finding that petitioners are occupying
portions of Lots No. 2587 and 2592 by mere tolerance. Thus, petitioners have no
right to get reimbursed for the expenses they incurred in erecting their houses
thereon. (Resuena vs. CA, March 2005)

QUESTION:

Can a buyer of lot be compelled to respect the existing right of way as
necessary/legal easement even if not annotated in the title?

18


ANSWER: YES. Unlike other types of encumbrance of real property, a servitude

like a right of way can exist even if they are not expressly stated or annotated as
an encumbrance in a Torrens title because servitudes are inseparable from the
estates to which they actively or passively belong. Moreover, Villanueva was
bound by the contract of easement, not only as a voluntary easement but as a
legal easement. A legal easement is mandated by law, and continues to exists
unless its removal is provided for in a title of conveyance or the sign of the
easement is removed before the execution of the conveyance conformably with
Article 649 in accordance with Article 617 of the Civil Code.
Petitioners second proposition, that he is not bound by the contract of easement
because the same was not annotated in the title and that a notice of lis pendens
of the complaint to enforce the easement was not recorded with the Register of
Deeds, is obviously unmeritorious (Villanueva vs. Velasco, November 2000)
QUESTION: Does the lack of acknowledgment by the donee before the notary
public void a donation?
ANSWER: NO. In the same vein, the lack of an acknowledgment by the donee
before the notary public does not also render the donation null and void. The
instrument should be treated in its entirety. It cannot be considered a private
document in part and a public document in another part. The fact that it was
acknowledged before a notary public converts the deed of donation in its entirety
a public instrument. The fact that the donee was not mentioned by the notary
public in the acknowledgment is of no moment. To be sure, it is the conveyance
that should be acknowledged as a free and voluntary act. In any event, the donee
signed on the second page, which contains the Acknowledgment only. Her
acceptance, which is explicitly set forth on the first page of the notarized deed of
donation, was made in a public instrument.(Quilala vs. Alcantara, December
2001)
LAW ON WILLS & SUCCESSION

QUESTION: Dolphy executed a Notarial Last Will and Testament with the help of
Atty. Alba. Atty. Alba had a notarial commission to accept oaths and subscriptions
for the City of LapuLapu. At the time of the execution of the Will, Dolphy got
confined in Chong Hua Hospital. The Last Will and Testament, therefore, was
notarized in Cebu City. Is the Last Will and Testament valid?

ANSWER: The Last Will and Testament is VOID. Under Article 806 of the New
Civil Code, every will must be acknowledged before a notary public by the
testator and the witnesses. Under the Notarial Law, a notary public cannot
notarize documents outside his territorial jurisdiction. Under Article 5 of the New
Civil Code, moreover, acts executed against the provisions of mandatory or
prohibitory laws shall be void. Here, mandatory and prohibitory statutes were
19


transgressed in the execution of the alleged "acknowledgment." The compulsory

language of Article 806 of the Civil Code was not complied with and the
interdiction of Article 240 of the Notarial Law was breached. Ineluctably, the acts
of the testatrix, her witnesses and Atty. Directo were all completely void. (Please
see Bella A. Guerrero vs. Resurreccion A. Bihis, G.R. No. 174144, April 17, 2007.)

QUESTION: Eva died intestate without issue, leaving Two Million Pesos. She was
survived by her brother, Frank, and her niece, Teresita, the only daughter of her
only other sibling and sister who predeceased Eva. A year later, Frank died
survived by his wife, Sharon, and one (1) illegitimate child, Richard. Sharon and
Teresita executed an Extrajudicial Settlement of the Estate of Eva. Richard sued to
contest the validity of this Extrajudicial Settlement of Estate on the ground of his
exclusion thereto. He claimed a right to a portion of the estate of Eva, on the
ground of his illegitimate filiation to Frank. Sharon moved to dismiss her
complaint on the basis of Article 992 of the New Civil Code, which bars
illegitimate children from claiming ab intestato inheritance rights to the estate of
the legitimate relatives of their parents. If you were the Honorable Presiding
Judge, would you dismiss the case?

ANSWER: NO. Article 992 of the New Civil Code is not applicable because
involved here is not a situation where an illegitimate child would inherit ab
intestato from a legitimate sister of his father, which is prohibited by the
aforesaid provision of law. Rather, it is a scenario where an illegitimate child
inherits from his father, the latter's share in or portion of, what the latter already
inherited from the deceased sister, Eva. The law in point is Article 777 of the New
Civil Code, which provides that the rights to succession are transmitted from the
moment of death of the decedent. Since Eva died ahead of her brother Frank, the
latter inherited a portion of the estate of the former as one of her heirs.
Subsequently, when Frank died, his heirs, namely: his spouse, Sharon, and
illegitimate child, Richard, inherited Franks share in the estate of Eva. It bears
stressing that Richard does not claim to be an heir of Eva by right of
representation but participates in his own right, as an heir of the late Frank, in the
latter's share (or portion thereof) in the estate of Eva. (Blanquita E. Dela Merced,
et. al., vs. Joselito P. Dela Merced, G.R. No. 126707, February 25, 1999.)

QUESTION: Angel died single and without any issue. He left an estate worth 15
Million Pesos and only his 3 siblings survived him Pia, Gia, and Pio. Among his
siblings, Angel was closest to Pia. During his lifetime, therefore, he donated 5
Million Pesos in favor of Pia. When he died, Gia and Pio filed a Petition for the
issuance of Letters Administration and they asked Pia to collate back into Angels
estate the 5 Million she received in advance. They posited that the 15 Million
total estate left by Angel should be divided equally among them in accordance
20


with their co-equal rights as the only remaining legal heirs of Angel. Are Pio and
Gia correct?

ANSWER: Pio and Gia and wrong. Collation takes place only when the decedent
left compulsory heirs with rights to their legitimes. In this case neither Pia nor Gia
nor Pio stood as Angels compulsory heirs. As his siblings, they stood merely as
Angels legal and intestate heirs. Since Angel already donated the 5 Million Pesos
to Pia, said money should be excluded from his estate. The remaining 10 Million
Pesos, on the other hand, should be divided equally amongst Pia, Gia, and Pio, in
accordance with Articles 1003 and 1004 of the New Civil Code. (Arellano vs.
Pascual, G.R. No. 189776, December 15, 2010.)

QUESTION: Romans father, Antonio, died of gunshot wounds. Upon
investigation various eyewitnesses pointed to Roman as the gunman. The public
prosecutor, therefore, found probable cause against him for murder. After filing
Criminal Information for murder, the court issued a warrant of arrest against
Roman, who, thereafter, went at large. Aside from Roman Antonio also left two
other children Rico and Rica as his other compulsory and legal heirs; and he left
an estate worth 15 Million Pesos. Rico and Rica, thereafter, filed a Petition against
Antonio for him to be disinherited. They did not present any Last Will and
Testament executed by Antonio; they proved with substantive evidence,
however, that Roman killed their father, Antonio. A lawyer filed an Opposition
against Antonio alleging that Rico and Rica presented no proper basis for Roman
to be disinherited. You are the Honorable Presiding Judge, how would you rule?

ANSWER: I will dismiss Rico and Ricas Petition. Only Antonio himself could have
disinherited Roman and only by way of the execution of a valid last will and
testament. In this case Rico and Rica presented no modicum of proof that Antonio
did disinherit Roman. They also presented no proof that Antonio executed a valid
Last Will and Testament stating his deed of disinheritance against Roman and
citing the factual reasons supporting his decision. Therefore it matters not that
Roman did kill his father Antonio on the issue of whether or not Antonio did
disinherit Antonio. The case would have taken a different turn had Rico and Rica
prayed for the declaration of Roman as Antonios unworthy heir and had a
criminal court convicted Roman guilty of taking Antonios life. Under Article 1032
of the New Civil Code, any person convicted of an attempt against the life of the
testator, his, or her spouse, descendants, or ascendants shall be incapable of
succeeding by reason of unworthiness. (Please see Ramon Cheng vs. Rodriguez,
G.R. No. 192828. November 28, 2011)

QUESTION: Baslia died leaving behind an estate consisting of a house and lot and
as her only compulsory heirs Max, Ernie, and Rex. Behind the back of Max, Ernie
and Rex then executed a Deed of Sale with Declaration of Heirship where they
extra-judicially partitioned the house and lot, awarded it to themselves, and they
21


sold it to Landlock Realty, Inc. 1 year after the sale they informed Max. Max then
went to your law office to seek an opinion on the following: (a) Did Ernie and Rex
execute a valid deed? and (2) In order to protect his rights what should Max do?

ANSWER: When Basilia died, Max became a co-owner of the house and lot
together with Ernie and Rex by strict operation of law. Ernie and Rex, therefore,
did not hold the right to dispose of the house and lot, an act of strict dominion
and alteration, without Maxs consent. Only the unanimous consent of Max,
Ernie, and Rex could have resulted into a valid contract of sale in favor of Landlock
Realty, Inc. Since Max did not sign and Max, Ernie, and Rex did not execute a prior
Deed of Partition, the sale made to Landlock is void from the very beginning. In
order to protect his rights, Max should immediately execute an Affidavit of
Adverse Claim, send a copy of this adverse claim to Landlock Realty, Inc., and
annotate a copy thereof on the certificate of title of said house and lot. Then Max
should proceed to file a case for the declaration of the nullity of said sale on the
ground of his lack of consent. As additional option Max could redeem the
inchoate shares of his brother Ernie and Rex from Landlock Realty, Inc., in
accordance with Article 1088 of the New Civil Code, and with the same terms and
conditions as Ernie and Rexs sale to Landlock Realty, Inc. Thereafter Max stands
to own the property solely and exclusively by the way of the possible confusion
and merger of his rights with Ernie and Rex. (Please see Selga vs. Entierro Brar,
G.R. No. 175151, September 21, 2011.

QUESTION: X died leaving behind his spouse, by the name of Y, his 2 legitimate
children, by the names of A and B, and his 2 recognized illegitimate children by
the names of C and D. X left behind an estate worth 20 Million Pesos. To avoid a
scandal, Y, Xs widow, paid Zoraida, Xs mistress and the mother of C and D, the
sum of 2 Million Pesos in cash. In exchange, Zoraida executed a waiver on behalf
of C and D, wherein the latter renounced their inheritance to the estate of their
father X. Is this waiver valid?

ANSWER: The waiver of inheritance is invalid. Under Article 1044 of the Civil
Code, parents or guardians who waive inheritance left to minors, on behalf of
minors, must do so only by judicial authorization. Michael C. Guy vs. Court of
Appeals, et. al., G.R. No. 163707, Sept. 15, 2006.

LAW ON OBLIGATIONS, CONTRACTS, SPECIAL CONTRACTS

QUESTION:

To pay for the tuition of their children, Ogie and Regine pledged their wedding
rings at RF Pawnshop in Manalili St., Cebu City. Two weeks after submitting their
wedding rings for pledge, armed robbers looted the safety deposit box of RF
22


Pawnshop, including the wedding rings of Ogie and Regine. When Ogie and
Regine came to redeem their rings, RF Pawnshop informed them that they could
no longer return these rings, because of the fortuitous events of armed robbery.
Ogie and Regie, henceforth, sued RF Pawnshop for Damages. In its Defense, RF
Pawnshop proved only one fact, that the Robbery was beyond their control, and
argued that being so, they are excused from liability because of the fortuitous
event. You are the Honorable Presiding Judge. In whose favor will you rule?

ANSWER:

RF Pawnshop is liable for actual and other damages to Ogie and Regine. To
constitute a fortuitous event, the following elements must concur: (a) the cause
of the unforeseen and unexpected occurrence or of the failure of the debtor to
comply with obligations must be independent of human will; (b) it must be
impossible to foresee the event that constitutes the caso fortuito or, if it can be
foreseen, it must be impossible to avoid; (c) the occurrence must be such as to
render it impossible for the debtor to fulfill obligations in a normal manner; and,
(d) the obligor must be free from any participation in the aggravation of the
injury or loss. RF Pawnshop may have proved that the robbery was independent
of human will. As the party invoking fortuitous events as a defense, however, RF
Pawnshop likewise had the burden of proving the other elements of the
fulfillment of the fortuitous events. More importantly, RF Pawnshop failed to
prove that it exercised due diligence to protect the wedding rings of Ogie and
Regine from the unfortunate loss. Therefore, their defense must fail and they
must pay damages to Ogie and Regine. (Roberto Sicam vs. Lulu Jorge, G.R. No.
159617. August 8, 2007.)

QUESTION:

What is the effect of a transfer or conveyance of a condominium unit and what
are the limitations with respect to such transfer?

ANSWER:

Any transfer or conveyance of a unit shall include the transfer of the undivided
interests in the common areas, or in the proper case, the membership or
shareholdings in the condominium corporation. No condominium unit shall be
conveyed or transferred to persons other than Filipino citizens or corporations at
least 60% of the capital stock of which belong to Filipino citizens except in cases of
hereditary succession. (RA 4726, Section 5)

QUESTION:

23


Can a mortgage containing a dragnet clause be extended to cover future

advances if the lender gives and the borrower accepts other securities for the
subsequent loans.
ANSWER:
NO. In this case, the spouses gave a hold-out of their other account with
Prudential as security for their second loan of Php2,640,000. Since Prudential
accepted the hold-out, it was deemed to have rejected further loans under the
first security, regardless of the existence of the dragnet clause, the Court added. It
pointed out that their third loan of Php545,000 was a conversion of a temporary
overdraft by Donalco Trading, Inc. and signed by the spouses as directors of the
corporation, the Court pointed out. As such, the third loan cannot be covered by
the security of the first loan. (Prudential Bank vs. Alviar, July 2005)

QUESTION:

Viva Films borrowed 10 Million Pesos from PNB. To secure the obligation, Viva
Films mortgaged Lot 555 to him, executing a Real Estate Mortgage where Viva
Films waived the requirement for PNB to post and publish any foreclosure notice
in case PNB decides to extra-judicially foreclose Lot 555 upon default of Viva
Films. Viva Films defaulted. PNB foreclosed without posting and publication,
despite the requirement of Act No. 3135. Is the foreclosure valid?

ANSWER:

The foreclosure is void. Waiver is valid only if it does not violate the Law. Parties
cannot also amend the Law, or the provisions of Act 3135, by mere agreement.
The principal object of a notice of sale in the foreclosure of a mortgage is to
secure bidders and prevent a sacrifice of the property. The statutory requirement
of posting and publication are mandated not for the mortgagors benefit but for
the public or third persons. As such, the requirement is imbued with public policy
considerations. (Please see Philippine National Bank vs. Nepomuceno
Productions, G.R. No. 139479, December 27, 2002.)

QUESTION:

What is the effect of registration of registered land under Act 3344 (system of registration of
unregistered land)?

ANSWER:

24


It is deemed to be without effect, and is not considered notice to third persons

dealing with the registered land. (Spouses Abrigo vs. De Vera, G.R. No. 154409,
June 21, 2004)

Double sale of Land; applicability of Art. 1544

For Art. 1544 to apply, the following requisites must concur: 1) The two (or more)
sales transactions must constitute valid sales; 2) The two (or more) sales
transactions must pertain to exactly the same subject matter; 3) The two (or
more) buyer at odds over the rightful ownership of the subject matter must each
represent conflicting interest; and 4) The two (or more) buyers at odds over the
rightful ownership of the subject matter must each have bought from the very
same seller. [Emphasis supplied] (Philippine Law on Sales 1998 Edition by Dean
Cesar Villanueva, p.119) (Cheng vs. Genato, G.R. No. 129760, 1998)

QUESTION:

Mickey bought Lot 123 from Donald on February 4, 2000 by way of a Deed of
Absolute Sale. Since Mickey still had no money to pay for the Capital Gains and
Documentary Stamp Taxes, he did not yet register this Deed of Absolute Sale.
Instead, Mickey simply registered an Affidavit of Adverse Claim on the TCT of Lot
123 in March, 2000, attaching thereto his Deed of Absolute Sale. In 1998, Donald
borrowed money from Daisy in the sum of Five Million Pesos. Donald could not
pay, despite various demands. In March 2000, Daisy sued Donald for Collection of
Sum of Money. In March 2001, the court rendered judgment in favor of Daisy.
Daisy thereafter asked the sheriff to levy Lot 123, the only property left in the
name of Donald. The Register of Deeds registered the property in the name of
Daisy. Consequently Mickey sued for the nullity of the sale of Lot 123 to Daisy on
the ground of Article 1544 of the New Civil Code. In her Answer, Daisy invoked
her status as buyer-in-good-faith, citing Section 70 of P.D. 1529 or The Property
Registration Decree, that the Adverse Claim was valid only for thirty (30) days and
not binding on her. You were the Honorable Presiding Judge. In whose favor will
you rule?

ANSWER:

I will rule in favor of Mickey. Daisy is indeed a buyer in bad faith under Article
1544 of the New Civil Code. Indeed, under Section 70 of P.D. 1529, an Affidavit of
Adverse Claim is valid only for thirty (30) days after its annotation. The expiration
of the 30 day period, however, does not ipso facto remove the Adverse Claim but
give rise to a cause of action to initiate judicial proceedings for the cancellation of
the same. In the meantime, the Adverse Claim can be source of a sufficient actual
and constructive notice of a defect in the registered owners title. In this case,
Daisy is deemed to have been sufficiently notified of the prior sale to Mickey.
25


(Sps. Jesus Ching and Lee Poe Tin vs. Sps. Enrile, G.R. No. 156076. September 17,
2008.)

QUESTION:

Penelope applied for a loan from EPCIB submitting her condominium flat as Real
Estate Mortgage. EPCIB then directed Penelope to sign blank promissory notes, a
loan agreement and a real estate mortgage. After 3 years, EPCIB gave Penelope a
copy of the contracts they signed. Penelope was surprised to discover that
although EPCIB was the creditor-mortgagee in the signed Loan Agreement; EPCIB
filled up the name of another party, that of Equitable Savings Bank (or EBS), in the
Real Estate Mortgage and Promissory Notes. EBS is a completely owned
subsidiary of EPCIB but is a completely separate juridical entity. Penelope
suspended her payments and requested to EPCIB to correct the documentation.
EBS commenced extra-judicial foreclosure proceedings against the condominium
flat of Penelope. Constrained, Penelope sued for a Writ of Preliminary injunction,
contending that EBS had no right to foreclose her unit. Is Penelope correct?

ANSWER:

EBS has no right to foreclose Penelopes property since it is not Penelopes
creditor-mortgagee. The right of foreclosure cannot be exercised against
Penelope by any person other than the creditor-mortgagee or its assigns in
accordance with Art. 1311 of the NCC. If a contract should contain some
stipulation in favor of a third person, he may demand its fulfillment provided he
communicated his acceptance to the obligor before its revocation. A mere
incidental benefit or interest of a person is not sufficient. The contracting parties
must have clearly and deliberately conferred a favor upon a third person. An
extrajudicial foreclosure instituted by a third party to the Loan Agreement and the
REM would, therefore, be a violation of Penelope's rights over their property. It
is clear that under Article 1311 of the Civil Code, contracts take effect only
between the parties who execute them. Where there is no privity of contract,
there is likewise no obligation or liability to speak about. The civil law principle of
relativity of contracts provides that contracts can only bind the parties who
entered into it, and it cannot favor or prejudice a third person, even if he is aware
of such contract and has acted with knowledge thereof. Since a contract may be
violated only by the parties thereto as against each other, a party who has not
taken part in it cannot sue for performance, unless he shows that he has a real
interest affected thereby. [Sps. Nestor and Ma. Nona Borromeo, vs. Honorable
Court Of Appeals and Equitable Savings Bank. G.R. No. 169846. March 28, 2008.]

QUESTION:
26


Josephine needed cash worth 2 Million Pesos, 1 Million Pesos to pay for her
existing very onerous loan to a loan shark and 1 Million as further capital for her
business. She did not, however, possess good credit standing with MetroCity
Bank. Her friend, Rica, had good credit standing with MetroCity Bank, but she
needed collateral to borrow money from said bank. In consideration of their
intention to allow Rica to mortgage the lot to MetroCity Bank to loan for
Josephine, therefore, Josephine feigned the sale of one of her lots to Rica for the
sum of P100,000.00 Pesos only. Rica thereafter mortgaged the transferred lot to
MetroCity Bank. MetroCity Bank released a loan of 2 Million Pesos. Rica did not
inform Josephine. Upon learning of the release of said loan proceeds, Josephine
demanded from Rica her 2 Million Pesos. Rica refused saying Josephine had no
right to do so, because she did not execute the loan with MetroCity Bank and she
already freely sold her lot to Rica. As such Josephine would be barred by Estoppel
by Deed if she questions Ricas ownership of her lot. Is Rica correct?

ANSWER:

Rica is incorrect. In selling the lot to her, Josephine, in fact, only entered into a
relatively simulated contract of sale to Rica. Under Article 1346, a relatively
simulated contract, when it does not violate the law or prejudice 3rd parties, binds
the parties to their real agreement. The real agreement between Rica and
Josephine in this case is not the contract of sale but that of agency, i.e., to allow
Rica to borrow money from MetroCity Bank and execute a real estate mortgage
on behalf of Josephine in favor of the same MetroCity Bank. Josephine and Rica,
hence, are bound to their real agreement of agency. As such Rica only held the 2
Million Pesos loan proceeds released by MetroCity Bank in trust in favor of
Josephine. Upon Josephines demand Rica must turn over these funds to her
under pains of committing criminal breach of trust or of misappropriation. (Please
see Spouses Villaceran vs. De Guzman, G.R. No. 169055, February 22, 2012.)

QUESTION:

Bionic Builders leased the property Mr. Robles for the sum of 100,000 pesos a
month and with a right of refusal granted in favor of Bionic Builders. The parties
did not register said lease. In the course of said lease Mr. Robles mortgaged this
property in favor of Development Bank of the Philippines for the sum of 10
Million Pesos. DBP and Mr. Robles, in this regard, annotated the real mortgage on
the title of said property. Mr. Robles failed to pay; hence, DBP foreclosed on the
property, and thereafter, sold it Cebu Oversea Hardware. Bionic Builders said that
DBP had no right to sell the property to Cebu Oversea Hardware by virtue of its
right of first refusal over the same. Bionic Builders also claimed that DBP had the
27


obligation to respect its lease contract with Mr. Robles for stepping into the shoes
of its lessor. Is Bionic Builders correct?

ANSWER:

DBP is not bound to the lease contract between Bionic Builders and Mr. Robles.
The latter failed to register their contract of lease on the title of the leased
property. Bionic Builders cannot, therefore, fairly expect DBP to respect his rights
under said lease contract with Mr. Robles. Mr. Robles and DBP, on the other
hand, registered their lease with the proper Registry of Deeds. This registration, in
turn, serves as constructive notice against Bionic Builders that the property has
been delivered to DBP by way of real estate mortgage, which stands to affect
Bionic Builders rights as a lessee of said property. If Mr. Robles failed in his
obligation to do, to give right of first refusal over the property in favor of Bionic
Builders, this does not result in the nullity of said sale by DBP in favor of Cebu
Oversea Hardware. Possibly this would only result in Mr. Robles breach of his
obligation to do, and would give rise to a cause of action for equivalent
performance or damages. (Please see Cebu Bionic Builders Supply, Inc., et. al., vs.
Development Bank of the Philippines, et. al., G.R. No. 154366, November 17,
2010.)

QUESTION: Oro Corporation borrowed 100 Million Pesos from Amana Bank. To
secure this obligation, Oro executed a real estate mortgage over its Lot No. 555
and all the improvements therein, located in Cebu City. To further secure the
obligation, Oros President, Mr. William Sy, with the consent of his wife and his
children, also mortgaged his house and lot. Both Oro and Mr. Sy authorized
Amana Bank to do extrajudicial foreclosure over their properties under Acct 3135.
After 5 years, Oro Corporation could no longer keep up with the loan payments.
So Amana Bank commenced extrajudicial foreclosure and sold by public auction
both Oros Lot 555 and Mr. Sys House and Lot in favor of Amana Bank as the
highest bidder for a total sum of 70 Million Pesos for Lot 555 and 15 Million Pesos
for the House and Lot. The Ex Officio Sheriff with the approval of the Executive
Judge then issued a Certificate of Public Sale against both Lot 555 and Mr. Sys
House and Lot in favor of Amana Bank. Amana Bank then registered said
Certificate of Public Sale with the Register of Deeds of Cebu City. 1 week after,
both Oro Corporation and Mr. William Sy tendered payment in cash of the sum 70
Million Pesos for Lot 555 and 15 Million Pesos for the House and Lot. What is the
status of Oro Corporations and William Sys rights of redemption?

ANSWER: Oro Corporation could no longer redeem the foreclosed Lot 555. As a
juridical person, Oro Corporation could only redeem Lot 555 from Amana Bank
prior to the registration of the Certificate of Public Sale with the Register of Deeds
or a maximum of 3 months after the sale, whichever comes earlier, in accordance
28


with Section 47 of R.A. 8791 or the General Banking Act, which amends Section 6
of Act 3135. Mr. William Sy, on the other hand, still has 1 year after the
registration of the Certificate of Sale to redeem his House and Lot, pursuant to
Section 6 of Act 3135, Section 47 of R.A. No. 8791, and Administrative Matter No.
99-10-05-0, as amended. Also see Goldenway Merchandising Corporation vs.
Equitable PCI Bank, G.r. 195540, March 13, 2013.

QUESTION: On 14 February 2013, X borrowed 10 Million Pesos from Y payable
not later than 14 February 2014. They did not stipulate any interest in writing. On
its due date, X simply refused to pay Y said 10 Million Pesos. On 14 March 2014, Y
served X with a Formal Demand requiring X to fully pay said 10 Million Pesos as
soon as possible. Still X refused. On 14 April 2014, Y filed a Complaint in court
against X for the collection of a sum of money. Likewise Y asked to be paid
damages in the form of legal interest at the rate of 12% per annum reckoned
from 14 February 2013. You are the Honorable Presiding Judge, how would you
rule pertinent to Ys prayer for payment with legal interest?

ANSWER: As the judge, I will order X to pay Y the sum of 10 Million Pesos plus
legal interest to be counted beginning on 14 March 2014, the time Y served extra-
judicial demand on X. Legal interest cannot be charged beginning on 14 February
2013, because the parties stipulated no interest in writing; and legal interest
could be charged only from the time when X became officially in default, which is
on March 14, 2014, after his receipt of Ys demand letter. But I will not order legal
interest to be paid at 12% per annum, because under Monetary Board Circular
No. 799, beginning on July 1, 2013, legal interest for forbearances or loans in
money has been reduced from 12% per annum to only 6% per annum, reckoned
from the time of default. See Philippine National Bank v. Sps. Enrique Manalo &
Rosalinda Jacinto, et al., G.R. No. 174433, February 24, 2014.
29


USJ-R Cebu 2015 Civil Law Bar Exam Pointers on Persons, Marriage and Filiation

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University

of San Jose Recoletos: Civil Law Pointers 2015

Some Sample Test Questions & Answers in Civil Law

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

merely as Henrys trustee; and the property remains to be completely owned by

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

LAW ON LAND, MOVABLES, & PROPERTY

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

(PNB vs. De Jesus, September 23, 2003)

University of San Jose Recoletos: Civil Law Pointers 2015

ANSWER: YES. Unlike other types of encumbrance of real property, a servitude

LAW ON WILLS & SUCCESSION

University of San Jose Recoletos: Civil Law Pointers 2015

transgressed in the execution of the alleged "acknowledgment." The compulsory

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

LAW ON OBLIGATIONS, CONTRACTS, SPECIAL CONTRACTS

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

Can a mortgage containing a dragnet clause be extended to cover future

University of San Jose Recoletos: Civil Law Pointers 2015

It is deemed to be without effect, and is not considered notice to third persons

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

University of San Jose Recoletos: Civil Law Pointers 2015

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