CONJUGAL PARTNERSHIP OF GAINS
G.R. No. L-18833 August 14, 1965
HONESTO ALVAREZ, ET AL., plaintiffs-appellants,
vs.
PEDRO K. ESPIRITU, defendant-appellee.
Arturo Agustines for plaintiffs-appellants.
Alberto Aguilar for defendant-appellee.
REGALA, J.:
This is an appeal from the decision of the Court of First Instance
of Rizal. The resolution of the issues presented depends on a
determination of whether Lot No. 292 of the Tala Estate was the
paraphernal property of the late Consolacion Evangelista, or
whether it was property of her conjugal partnership with Pedro
K. Espiritu.
The lot in question, with an area of 2 hectares, 76 acres and 2
hectares, is located in Caloocan, Rizal (now Caloocan City). It
originally formed part of the Friar Lands administered under Act
No. 1120.
On June 29, 1910, the Director of Lands issued Sales Certificate
No. 479 in favor of Consolacion Evangelista, by virtue of which
the government agreed to sell the lot for P242.04. Under the
terms of this certificate, the amount of P60.04, which had been
paid as rentals, was credited in favor of Consolacion Evangelista
and the balance of P182 was to be paid in 18 annual installments,
the first installment of P12 to be paid on July 1, 1910 and the rest
to be paid every year thereafter in 17 equal installments of P10
each.
On June 13, 1923, Consolacion Evangelista married Pedro K.
Espiritu. During their marriage, the installments on the price of
the lot were paid with conjugal funds and by 1927 payment on all
the installments was completed. On November 18, of that year,
Consolacion Evangelista signed a deed entitled "Assignment of
Sales Certificate No. 279" which recites as follows:
This agreement, made in duplicate between Consolacion
Evangelista, as ASSIGNOR, and Pedro K. Espiritu as
ASSIGNEE.
WITNESSETH: that the said ASSIGNOR, for and in
consideration of the sum of P_______, 1 receipt
whereof is acknowledged, hereby sells, assigns, and
transfers to the said ASSIGNEE all right, and interest in
and to lot 292 of the said Estate, acquired under and by
the terms of sales certificate numbered 479 dated June
29, 1910, together with all buildings and improvements
on the said lot belonging to the said ASSIGNOR.
The said ASSIGNEE hereby accepts the said
assignment and transfer and expressly agrees to be
bound by and to keep and perform all the covenants and
condition expressed in the said sale certificate to be kept
and performed by the VENDEE therein.
Following the approval of this assignment by the Director of
Lands, the lot was registered in the name of the spouses and
Transfer Certificate of Title No. 14527 was issued to them.
On February 7, 1946, the spouses sold a half portion of the lot to
Aniceto Martin for P3,000, reserving to themselves the right to
redeem it within 12 years. However, before they could exercise
their right of redemption, Consolacion Evangelista died on
February 21, 1949, leaving a will in which she bequeathed to her
husband her half interest in the remaining unsold portion of Lot
No. 292. She was survived by her husband, Pedro K. Espiritu,
and by plaintiffs Nicasio and Asuncion Evangelista (her brother
and sister, respectively), Honesto and Josefina Alvarez (children
of her deceased sister Eduviges) and Arsenio Evangelista (son of
her deceased brother Rufino).
Pedro K. Espiritu filed Special Proceedings No. 502 in the Court
of First Instance of Bulacan for the settlement of his wife's estate.
The will was allowed and Pedro K. Espiritu was appointed
executor upon the filing of a bond. Instead of filing a bond and
qualifying as executor, Espiritu asked the court to convert the
proceedings into a summary settlement of the estate on the
ground that the value of the properties did not exceed P3,000.
The court granted his motion, heard the case and on November
15, 1954, issued an order, the dispositive portion of which reads
in part as follows:
WHEREFORE, the Court hereby distributes summarily
the estate left by the deceased Consolacion Evangelista
and hereby adjudicates aforesaid estate in accordance
with the will, Exhibit C, of said deceased in the
following manner, to wit:
xxx xxx xxx
(2) to Pedro K. Espiritu; of legal age, Filipino, married
to Florentina Lopez, and resident of Mabolo, Polo,
Bulacan, the following properties:
xxx xxx xxx
(b) All the one-fourth (1/4) share of the deceased
Consolacion Evangelista in the parcel of land known as
Lot No. 292 of the Tala Estate situated in the Barrio of
Llano, Caloocan, Rizal, and described in Land Tax
Declaration No. 12913 (Exhibit B-2), of said
municipality; ... .
Meanwhile, Aniceto Martin, the vendee a retro of the undivided
other half of Lot No. 292, died. His children executed a
document on December 4, 1957, stating that "prior to July 7,
1951" Pedro K. Espiritu had paid P3,000 to their father but that
death prevented the latter from executing the corresponding deed
of resale. For this reason, they were reconveying to Pedro K.
Espiritu "all their rights, interest, participation and ownership of
whatever nature in said Lot No. 292 (1/2) of the Tala Estate
Subdivision described in T.C.T. No. 14527 of the Register of
Deeds of Rizal, subject matter of the Pacto de Retro Sale."
On January 8, 1959, the plaintiffs brought this action against
Pedro K. Espiritu. While their original claim was that the lot was
conjugal and, therefore, they were entitled to one-half (1/2) of it,
plaintiffs later amended their complaint and alleged that the lot
was the paraphernal property of Consolacion Evangelista which
she brought to her marriage with Pedro K. Espiritu. They,
therefore, contended that, as heirs of Consolacion Espiritu, they
were entitled to three fourths (3/4) of the lot, only one-fourth
(1/4) having been disposed of in the will. On the other hand,
Pedro K. Espiritu claimed that the lot was their conjugal
property, one-half of which was his share, in addition to one-
fourth given to him in his wife's will. He subsequently died and
his second wife, Florentina Lopez, who is also the administratrix
of his estate, substituted for him as defendant in this case.
On January 5, 1961, the lower court rendered a decision
declaring Pedro K. Espiritu the owner of the entire lot. It
explained thus:
... . It is well settled that the property becomes conjugal
if the funds paid by the husband in the later installments
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CONJUGAL PARTNERSHIP OF GAINS
were for the purpose of the acquisition for the
partnership the husband acting in his capacity as
administrator of the same. And there is overwhelming
evidence to support this conclusion. The deceased
Consolacion Evangelista had the installments paid by
the conjugal funds and her intention to have it paid not
for her exclusive benefit but for that of the partnership is
abundantly demonstrated in the instruments she
executed. The final deed of conveyance was executed in
the name of both spouses and the Torrens Title issued in
their names jointly. In the Deed of Pacto de Retro she
alluded to the land as property owned in common by her
and her husband and not as exclusive property. The real
estate taxes were paid out of the conjugal funds. Again,
this intention is clear and manifest with the subsequent
execution of the Deed of Assignment purportedly
conveying the lot in question in favor of the spouses
jointly. Without necessarily passing upon the validity
and effect of said deed, the same indubitably
demonstrates the intended change of the character of the
property in question. Finally, in her last will and
testament, Consolacion expressly declared said lot to be
conjugal property.
The Court, therefore, finds and so holds that the lot in
question is conjugal property, both spouses being
entitled to an undivided half share. So that on Feb. 7,
1946, when the same was sold on pacto de retro, one-
half thereof was alienated, of which both spouses have
an undivided equal share (i.e., one-fourth each). The
remaining unsold half, consists of again an undivided
equal share in favor of both spouses (i.e., one-fourth
each). This explains why in the will, Consolacion only
bequeathed 1/4 of the lot in favor of her husband,
obviously because she believed that the other remaining
one-fourth is the share of the husband in the conjugal
property.
The whole one-half portion, therefore, remaining prior
to the redemption of the lot in 1957 belongs to the
defendant Pedro K. Espiritu. On the other hand, the
Court believes that the other half portion subsequently
redeemed by Pedro K. Espiritu in 1957 with his own
exclusive money also pertains to him in full ownership.
This is the only just and equitable conclusion
considering that in 1949 when Consolacion died, the
conjugal partnership was automatically dissolved, and
considering further that the spouses manifestly
considered the lot in question to have been absolutely
alienated without any intention to redeem the same, and
that it was only in 1947 when the redemption period had
almost expired that the husband on second thought
believed it profitable to redeem the land with his own
money and for his own exclusive benefit. ... .
Plaintiffs have appealed to this Court. Citing the case of Director
of Lands v. Rizal, 87 Phil. 806, they contend that ownership of
Lot No. 292 vested in Consolacion Evangelista upon the issuance
to her in 1910 of a sales certificate, with the result that the lot had
become her property long before her marriage in 1923 to Pedro
K. Espiritu.
The point is well taken. Indeed, in Director of Lands v. Rizal, this
Court ruled that under the Friar Lands Act No. 1120, the
equitable and beneficial title to the land passes to the purchaser
the moment the first installment is paid and a certificate of sale is
issued. The reservation of the title in favor of the government,
which refers to the bare, naked title, is made merely for the
protection of its interest so that the lot may not be disposed of by
the purchaser before the price is paid in full. But outside of this
protection, the government retains no right as an owner.
Even more in point is the case of Lorenzo v. Nicolas, 91 Phil.
686, in which this Court held that friar lands bought by a woman
before her marriage were her paraphernal properties, although
some of the installments on their price were paid for with
conjugal funds during their marriage. The conjugal partnership
would only be entitled to reimbursement for the expenses, (Civil
Code Art. 1410)
And what of the assignment of the sale certificate which
Consolacion Evangelista made to her husband and herself and
the subsequent registration of the lot in their names? Neither can
avail the defendant any. The assignment of the sales certificate
shows very clearly that the lot was Consolacion Evangelista's
exclusive property, else why would she have to make the
assignment? Such an assignment is void — a patent nullity — in
view of articles 1334 and 1458 which prohibit donations and
sales between spouses during the marriage. (See e.g., Uy Coque
v. Navas L. Sioca, 45 Phil. 430).
The lower court's reliance on the certificate of title being issued
in the names of the spouses is misplaced, because sec. 70 of Land
Registration Act provides that "nothing contained in this Act
shall in any way be construed to relieve registered land or the
owners thereof from any rights incident to the relation of
husband and wife." Because of the feeling of trust existing
between spouses, certificates of title are often secured in the
names of both, or of either, regardless of the source of the
purchase money. It is thus but fair that on liquidation of the
partnership, the trust should be recognized and enforced, so that
the real ownership of the property may be established. The
principle, that a trustee who takes a Torrens Title in his name
cannot repudiate the trust by relying on the registration, is one of
the well-known limitations upon the finality of a decree of title.
(Paterna Vda. de Padilla v. Bibby de Padilla, 74 Phil. 377).
Nor do we agree with the lower court's reasoning that because
Pedro K. Espiritu redeemed one-half (1/2) of the lot with his own
money, after the dissolution of the conjugal partnership of gains,
he thereby became its owner. Lot No. 292 being the paraphernal
property of Consolacion Evangelista before the sale, its
redemption must be deemed as having revested its ownership in
the heirs of Consolacion Evangelista. (See Guinto v. Lim
Bonfing, 48 Phil. 884; Santos v. Bartolome, 44 Phil. 76) What
Espiritu had on the portion so redeemed was merely a lien for the
amount paid by him.
It is contended, however, that the probate court's order summarily
distributing the estate of Consolacion Evangelista is conclusive
on the conjugal character of Lot No. 292.
The argument has no merit. The general rule is that questions of
title to property cannot be passed upon in testate or intestate
proceedings. The probate court can decide only provisionally
questions of title to property for the purpose of inclusion into, or
exclusion from, the inventory, without prejudice to a final
determination of the question in a separate action. It is only when
the parties interested are all heirs and they agree to submit to the
probate court the question as to title to property that the probate
court may definitely pass judgment thereon. (3 Moran Comments
on the Rules of Court 427 [1963 ed.]) That is why, in Bernardo v.
Court of Appeals, G.R. No. L-18148, February 28, 1963, we
upheld the power of the probate court to adjudicate in the testate
proceedings the question as to whether the properties therein
involved belonged to the conjugal partnership or to the deceased
exclusively.
In this case, however, there is no such agreement among the heirs
to submit for determination of the probate court the question of
whether or not Lot No. 292 was conjugal partnership property. If
this point was at all considered by the probate court of Bulacan,
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CONJUGAL PARTNERSHIP OF GAINS
it was only provisionally, for inventory purposes, and certainly
without prejudice to the final determination of the question in a
separate action such as this one.
We, therefore, hold that Lot No. 292 was the paraphernal
property of Consolacion Evangelista. Since only one-fourth (1/4)
of this lot had been given by will, there still remains undisposed
three-fourths (3/4) of the same.
Under the rules of intestacy of the Spanish Civil Code, 2 one-half
(1/2) of the portion remaining belongs to the plaintiffs as
collateral relatives and the other half belonged in usufruct to
Pedro K. Espiritu as surviving spouse. (Art. 953 in relation to art.
837) 3 Nicasio and Asuncion Evangelista who are the brother and
sister of the deceased, respectively, inherit per capita; while
Josefina Alvarez, Honesto Alvarez and Arsenio Evangelista, who
are her niece and nephew, respectively, inherit per stirpes. In
addition, these collateral relatives are entitled to the corpus or
capita of the other half held in usufruct by Pedro K. Espiritu.
Upon the death of Espiritu on August 21, 1959, this usufruct
terminated. (Sp. Civil Code art. 513[1])
The usufruct of the husband during his life should be fixed
conformably with article 838 which states:
The usufructuary rights of the surviving spouse may be
satisfied by the settlement upon him or her by the heirs
of a life annuity or the income from some specific
property, or by the payment of money, as may be
determined by agreement between the parties, or, in
default of such agreement, by judicial decision.
Until this has been done the usufructuary interest of the
surviving spouse shall constitute a lien upon all the
property of the estate.
For this reason, this case should be returned to the lower court
for the purpose of determining the usufructuary legitime of Pedro
K. Espiritu. In addition, the lower court should determine and
settle the following: (1) the amount advanced by the conjugal
partnership for the payment of installments falling due during the
marriage. (2) the amount paid by Pedro K. Espiritu in redeeming
Lot No. 292 after it had been sold under a deed of pacto de retro;
(3) the amount of taxes paid on the property by the conjugal
partnership; and (4) the value of the fruits received by the
husband over and above the value of his usufruct.
WHEREFORE, the decision appealed from is reversed and the
case is remanded to the court of origin for further proceedings in
conformity with this decision, without pronouncement as to
costs.
G.R. No. L-11387 February 7, 1917
ASUNCION GEFES, plaintiff-appellee,
vs.
SILVESTRE SALVIO, ET AL., defendants.
SILVESTRE SALVIO, appellant.
Vicente Franco Gonzales for appellant.
Yulo and Ortiz for appellee.
TORRES, J.:
This appeal was filed by counsel for Silvestre Salvio from the
judgment of March 17, 1915, in which the trial court held that the
two parcels of land in litigation are the private property of the
plaintiff, Asuncion Gefes, and that she has the right to their
possession and ownership; that the defendants should restore and
deliver said lands to the plaintiff and pay her P1,125, the value of
375 cavanes of rice which she was unable to collect because the
defendants were in possession of the said property; and that
defendants should pay the costs.
By a complaint of the date of February 1, 1913, subsequently
amended by another of June 9 of the same year, counsel for
Asuncion Gefes commenced these proceedings in the Court of
First Instance of the Province of Antique, alleging that the
plaintiff was lawfully married to the defendant Silvestre Salvio,
but that by a written agreement they lived apart; that when
plaintiff married the said defendant she brought to the marriage
two parcels of rice land situated in the municipality of Tibiao,
Antique, the extent and bounds of which property are set forth in
the complaint; that without her knowledge and consent her
husband, Silvestre Salvio, sold these lands to Emerenciana
Dayanot for P1,950; that she received no part whatever of the
said sale price; that during the last four years the possession of
this property had been held by the defendants Rafael Costoy,
Ariston Importante, and Emilio Mabaguial, sons-in-law of the
said Dayanot, who, claiming to be the owners thereof, refused to
return them to the plaintiff; that, by reason of such detention, the
plaintiff failed to collect the fruits from the said properties since
they year 1910; and that the value of said fruits amounted to
P2,400. Counsel therefore prayed the court to order the
defendants to restore to the plaintiff the said two parcels of land
and to pay to her the value of the products thereof which she
failed to collect, amounting to P2,400, with the costs against the
defendants.
The demurrer to the aforementioned complaint having been
overruled, counsel for Silvestre Salvio, in answer to the latter,
denied all the allegations contained therein, except those relative
to the possession of the lands by the persons specified by the
plaintiff; in special defense he alleged that the said parcels of
land are community property of the marriage between the
plaintiff and the defendant Salvio and were sold at the request of
the plaintiff herself for the purpose of obtaining funds wherewith
to pay the debts contracted by her in Iloilo and other pueblos,
through gambling and smoking opium. This defendant therefore
prayed to be absolved from the complaint, with the costs against
the plaintiff.
In answer to the original complaint the defendant Rafael Costoy
alleged in his writing of February 8, 1913, that he held
possession of the lands claimed by virtue of an absolute sale
made in his favor by Silvestre Salvio, on February 20, 1911, for
P600, as proven by the notarial document to this effect executed
by and between the parties before the notary public Doroteo E.
Alegata. He therefore prayed to be absolved from the complaint,
with the costs against the plaintiff.
After a trial at which evidence was introduced by both parties,
the court rendered the judgment aforementioned, to which only
the defendant Silvestre Salvio excepted and moved for a
reopening of the case the a new trial. This motion was denied,
exception was taken by the defendant, and, the proper bill of
exceptions having been presented, the same was approved and
transmitted to this court.
In accordance with the provisions of paragraph 2 of section 115
of the Code of Civil Procedure, Asuncion Gefes brought suit
against her husband Silvestre Salvio and certain persons who had
purchased from him the two parcels of land, the subject-matter of
the claim, for the purpose of recovering said lands. She alleged
that she was the exclusive owner of these parcels, having brought
them to her marriage with the said Silvestre Salvio. The latter,
however, claims that the said land is community property and
that the plaintiff is only entitled to one-half of its value; that she
has already received that amount, as shown by certain letters
written by her and in possession of defendant.
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CONJUGAL PARTNERSHIP OF GAINS
Plaintiff's first husband, Juan Alegata, a Chinaman, died intestate,
but was survived by legitimate children, as stated in pages 4 and
5 of the defendant-appellant's brief, although in the writing found
on page 82 of the record it is said that the appellant Pompeyo
Alegata is a son of the plaintiff and that he also died, in
September, 1915; and notwithstanding that, on the plaintiff's
subsequent marriage with the defendant and Salvio no marriage
contract was executed, it is asserted that the two parcels of land
in question came from her husband's intestate estate and are her
exclusive property.
It has been duly proven by the record that as the result of a
complaint filed by Feliciano Omalde, a creditor of the plaintiff's
first husband, Juan Alegata, and by virtue of the judgment
rendered in the proceedings brought under that complaint, the
said two parcels of land, on December 26, 1908, were sold at
auction to the defendant Salvio for P661, as shown by the receipt
Exhibit 2, and that at the expiration of the year fixed by law, the
sheriff issued to the purchaser the proper title deed to the lands
that were adjudicated to him on December 29, 1909, as
accredited by the document Exhibit 3.
The defendant Silvestre Salvio swore that these lands became his
property by reason of his having bought them at public auction
with the money borrowed by him from Father Narciso Hijalda;
that as they were his own he sold them to his codefendants,
although he had previously asked his wife's consent to the sale;
and that the said lands did not belong to his wife, because, when
she married him, she did not bring either cash or real property to
the marriage. He also presented several letters, written in Iloilo
by the plaintiff Asuncion Gefes, in one of which she ordered the
plaintiff to ask a higher price for the land. As may be seen by this
letter, dated October 17, 1911, what land is concerned therein on
of whom Salvio was to ask a greater price, is not specified,
neither does it appear that the land therein referred to was either
of the two parcel in question. Father Narciso Hijalda
corroborated the statements of the defendant and swore that on
December 24, 1908, he loaned defendant P700 with which to buy
certain lands at auction.
Notwithstanding this, the fact is indisputable that these lands did
not belong to the defendant, and if he bought them at public
auction in December, 1908, for P661, he did so with his wife
Asuncion's own money. This is evidenced by Exhibit A, a
document signed by the said Salvio before the notary Nicolas
Tomas on March 27, 1909, in which he clearly sets forth that the
said sum of P661, Philippine currency, which he paid for the
properties above-mentioned, belonged to the private funds of his
wife Asuncion Gefes. He furthermore declared in the said
document that she was the true and absolute owner of the said
lands by him purchased out of his wife's funds and in her behalf.
This document was ratified before a notary and attests the truth
of all its contents, even against third persons. The defendant's
denial of its authenticity is not supported by any reliable
evidence, nor by the affidavit (record, p. 75) presented for the
purpose of obtaining a reopening of the case. Furthermore, it is to
be noted that the defendant Salvio cannot be heard to repudiate
what he solemnly declared in a notarial document.
So that it is here a question of the plaintiff Gefes' own property,
acquired at public auction and paid for with her own money, as
the defendant, her second husband, expressly testified. It is true
that the said two parcels of land belonged to the estate left by her
first husband at his death; but it is no less true that they were
judicially sold fore the purpose of paying his debts, and on being
acquired at auction by her second husband, in her name and
representation and with her money, they ceased to belong to the
intestate estate of her first husband and became the exclusive
property of the wife of the defendant Salvio (Civ. Code, art.
1396), and, under the provisions of article 1401 of the Civil
Code, cannot be classified as conjugal partnership property.
Therefore the defendant had no authority to alienate or encumber
the said lands or to execute contracts in regard thereto without
the consent of his wife, inasmuch as they were not conjugal
partnership property. The sale of the said two parcels of land
made by this defendant to this codefendants, is therefore null and
void and of no value or effect, for the reason that, as they are not
conjugal property, and do not exclusively belong to the defendant
Salvio, he could not dispose of them without the consent of their
lawful owner, the plaintiff.
With respect to the fruits or products of the said lands, it is
unquestionable that they pertain to the class of community
property and the husband is the administrator thereof.
Notwithstanding that the spouses live separately, in the eyes of
the law the said partnership subsists, as it does not appear that
they have obtained a decree of divorce or a judicial declaration of
separation of property. (Laws 7 and 8, title 10, Fourth Partida.)
The other defendants failed to appear and were declared in
default (record, p. 31).
For the foregoing reasons, whereby the errors assigned by the
defendant-appellant Silvestre Salvio to the judgment appealed
from have been refuted, the defendants Silvestre Salvio, Rafael
Costoy et al., are hereby sentenced to restore and return to the
plaintiff the two parcels of land claimed in her complaint and the
defendant Silvestre Salvio is absolved from the obligation of
paying the value of the products of the said lands, amounting to
P2,400. In so far as it agrees with this decision, the judgment of
the lower court is affirmed, and reversed in so far as it does not.
No special finding is made as to the costs of this instance. So
ordered.
G.R. No. L-5504 January 24, 1910
ANTONIO CONSUNJI, petitioner-appellee,
vs.
MARIA D. TISON, opponent-appellant.
Ramon Salinas, for appellant.
Arcadio del Rosario, for appellee.
CARSON, J.:
The ground of appellant's opposition to the adjudication and
registry of the land in question in favor of the applicant therefor,
under the provisions of the Land Registration Act, is her claim to
an interest therein as one of the heirs of her deceased father,
Domiciano Tison, who died in 1885, and in whose name a
composition title to the land in question was issued on the 19th of
March, 1883, by the Direccion General de Administracion Civil
de Filipinas, which was duly registered in the old land registry.
Applicant for adjudication and registry does not deny the fact
that the composition title was issued as alleged by the objector,
nor does he question objector's right to an undivided interest by
inheritance in any property owned by Domiciano Tison at the
time of his death.
Applicant relies on the terms of a notarial instrument dated April
12, 1904, whereby Dolores Singian, the widow of Domiciano
Tison (the father of the objector), sold to the applicant the land in
question, reserving a right to repurchase on the terms and
conditions set out in the deed; and contends that the land in
question was the separate property (bienes propios) of Dolores
Singian, his vendor, inherited from her father, and that her
husband Domiciano Tison, although he procured the granting of
the composition title thereto in his own name, never had any real
right of ownership in or to the land.
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CONJUGAL PARTNERSHIP OF GAINS
The evidence of record discloses that Domiciano Tison owned no
real estate whatever in the vicinity wherein the land in question is
located prior to the time when he secured the issuance of the
composition title in his own name; and in a formal instrument
(Exhibit H) executed by him less than a year prior to the issuance
of the composition title (June 26, 1882), before a local official in
San Fernando de Pampanga, styling himself juez mayor de
sementeras, and in the presence of various members of
the principalia, or headmen, of the locality, he acknowledge and
declared that certain lands located in that vicinity were the
separate property (bienes propios) of his wife, Dolores. This
evidence together with the evidence contained in various other
private documents, including the hijuela (apportionment
instrument) setting out the share of the estate of her father which
was apportioned to Dolores Singan, tends strongly to sustain the
finding of the trial court that the greater part of the land described
in the composition title was the property of her ancestor and was
inherited by her from them, and that the remainder of the land
described in the composition title was purchased by or for her
from funds which constituted a part of her separate estate (bienes
propios).
The only evidence tending to put these facts in doubts is the
apparent discrepancy between the superficial extent of the land
contained in the tract to which composition title was issued in the
name of Domiciano Tison, and the amount of land which appears
to have been apportioned to Dolores Singan from the state of her
father, as shown by the hijuela (apportionment instrument) and
by the other documents describing the land in that vicinity owned
by her ancestors and claimed by her as her separate property
(bienes propios). These discrepancies, however, may be and must
be accounted for and explained by the fact that ancient
documents describing lands in these Islands by metes and
boundaries frequently set out extremely inaccurate estimate areas
of the lands thus described, the superficial extent never having
been ascertained by a formal survey.
Upon the whole record, we are of opinion that the evidence
sustains the finding by the trial court that the greater part of the
land described in the composition title was the separate property
(bienes propios) of Dolores Singian acquired by her by
inheritance from her father who died in 1879, and that the
remainder was also her separate property (bienes propios)
purchased by or for her with funds which constituted a part of her
separate estate (bienes propios).
It does not appear that the wife consented to the taking by her
husband of the title to her separate property (bienes propios) in
his own name or that he had any lawful authority so to do, and
after his death she appears to have asserted her separate right
thereto, notwithstanding the fact that it was registered in her
husband's name, and to have exercised all the rights of ownership
therein up to the time when she sold it to the applicant in these
proceedings and put him in possession. Under these
circumstances, we are of opinion that the husband had not and
that his heirs have not such a right, title, or interest in or to the
property in question as would sustain an opposition by them to
the adjudication and registry of the land in question in favor of
the applicant in these proceedings. At the time when the husband
obtained the composition title to the land in his own name, he
was the legal administrator of the conjugal property, and it is
clear that in procuring the issuance of the composition title, in his
own name, he must be held to have done so, first, merely as a
step toward the placing of the title in her name by means of a
later conveyance, which for some reason never was executed, or,
second, by mistake either in the preparation of the formal
documents or of his rights as legal administrator of the conjugal
property or, third, in fraud of his wife's rights thereto, for this
purpose taking advantage of his position as administrator of the
conjugal property. It is not necessary for us to determine the
precise reason which induced him to act as he did, because it is
quite clear that in any event, so long as the land remained in his
name, his wife and her assigns had perfect right to compel him
during his lifetime, or his heirs after his death, to make the
necessary conveyance placing the property in her name on the
old land registry.
The heirs of a deceased person can not be held to be
"third persons" (as that phrase is used in article 27 of the
Mortgage Law) in relation to any contracts touching the
real estate of their decedent which comes into their
hands by right of inheritance; they take such property
subject to all the obligations resting thereon in the hands
of him from whom they derive their rights.
(Mojica vs. Fernandez, 9 Phil. Rep., 403; decisions of
the supreme court of Spain of January 27, 1881, and
January 28, 1892.)
The only question submitted on this appeal, resting as it does on
the claim of appellant to an interest in the land in question, as
heir of her father in whose name the composition title was issued,
and it appearing that, as one of his heirs, she has no real interest
or right of ownership therein and is under an obligation to join in
a proper conveyance of the title to the land in question to Dolores
Singian or her assignee, it is evident that the judge below
properly rejected her opposition to the adjudication and
registration of the land in favor of the applicant, and held that she
could not be heard to deny the right of ownership set up by him
or to assert title in herself.
It is not necessary for us to decide and we do not decide what
would have been the effect of a transfer on the old land registry
by Domiciano Tison or his heirs of title to the land in question to
a third person, a purchaser in good faith, because the record
clearly discloses that no such transfer of title was in fact made.
The judgment of the court below adjudicating the land in
question in favor of the applicant and directing its registry in his
name should be affirmed with the costs of this instance against
the appellant. So ordered.
G.R. No. L-6335 July 31, 1954
GLICERIA ROSETE, plaintiff-appellee,
vs.
PROVINCIAL SHERIFF OF ZAMBALES, SIMPLICIO
YAP and CORAZON YAP, defendants-appellants.
Ricardo N. Agbunag for appellants.
Jorge A. Pascua for appellee.
BAUTISTA ANGELO, J.:
In criminal case No. 2897 for murder of the Court of First
Instance of Zambales, Epifanio Fularon was convicted and
sentenced to indemnify the heirs of the victim in the amount of
P2,000.
On February 10, 1949, to satisfy said indemnity, a writ of
execution was issued and the sheriff levied upon four parcels of
land belonging to the conjugal partnership of Epifanio Fularon
and Gliceria Rosete. These parcels of land were sold at public
auction as required by the rules for the sum of P1,385.00, leaving
an unsatisfied balance of P739.34.
On March 8, 1950, Gliceria Rosete redeemed two of the four
parcels of land which were sold at public auction for the sum of
P879.20, the sheriff having executed in her favor the
corresponding deed of repurchase.
5
CONJUGAL PARTNERSHIP OF GAINS
On April 10, 1950, an alias execution was issued to satisfy the
balance of the indemnity and the sheriff levied upon the two
parcels of land which were redeemed by Gliceria Rosete and set
a date for their sale. Prior to the arrival of this date, however,
Gliceria Rosete filed a case for conjunction to restrain the sheriff
from carrying out the sale praying at the same time for a writ of
preliminary injunction. This writ was issued upon the filing of
the requisite bond but was later dissolved upon a motion filed by
defendants who put up counter-bond.
The dissolution of the injunction enabled the sheriff to carry out
the sale as originally scheduled and the property was sold to one
Raymundo de Jesus for the sum of P970. This development
prompted the plaintiff to amend her complaint by praying
therein, among other things, that the sale carried out by the
sheriff be declared null and void. After due trial, wherein the
parties practically agreed on the material facts pertinent to the
issue, the court rendered decision declaring the sale null and
void. The defendants appealed, and the case was certified to this
court on the plea that the appeal involves purely questions of law.
The question to be decided is whether the sale made by the
sheriff on May 9, 1950 of the two parcels of land which were
redeemed by Gliceria Rosete in the exercise of her right of
redemption is valid it appearing that they formed part of the four
parcels of land belonging to the conjugal partnership which were
originally sold to satisfy the same judgment of indemnity
awarded in the criminal case. The lower court declared the sale
null and void on the strength of the ruling laid down in the case
of Lichauco vs. Olegario, 43 Phil., 540, and this finding is now
disputed by the appellants.
In the case above adverted to, Lichauco obtained a judgment
against Olegario for the sum of P72,766.37. To satisfy this
judgment, certain real estate belonging to Olegario was levied in
execution and at the sale Lichauco bid for it for the sum of
P10,000. Olegario, on the same day, sold his right of redemption
to his cousin Dalmacio. Later, Lichauco asked for an alias writ of
execution and the sheriff proceeded with the sale of the right of
redemption of Olegario whereat Lichauco himself bid for the
sum of P10,000. As Lichauco failed to register the sale owing to
the fact that the sale executed by Olegario in favor of his cousin
was already recorded, Lichauco brought the matter to court to
test the validity of the latter sale. One of the issues raised was,
"Whether or not Faustino Lichauco, as an execution creditor and
purchaser at the auction in question was entitled, after his
judgment had thus been executed but not wholly satisfied, to
have it executed again by levying upon the right of redemption
over said properties." The court ruled that this cannot be done for
it would render nugatory and means secured by law to an
execution debtor to avoid the sale of his property made at an
auction under execution. Said this Court:
We, therefore, find that the plaintiff, as a judgment
creditor, was not, and is not, entitled, after an execution
has been levied upon the real properties in question by
virtue of the judgment in his favor, to have another
execution levied upon the same properties by virtue of
the same judgment to reach the right of redemption
which the execution debtor and his privies retained over
them.
Inasmuch as the Lichauco case refers to the levy and sale of the
right of redemption belonging to a judgment debtor and not to
the levy of the very property which has been the subject of
execution for the satisfaction of the same judgment, it is now
contended that it cannot be considered as a precedent in the
present case for here the second levy was effected on the same
property subject of the original execution. But this argument falls
on its own weight when we consider the following conclusion of
the court, "... what we wish to declare is that a judgment by
virtue of which a property is sold at public auction can have no
further effect on such property." (Emphasis supplied)
Nevertheless, when this case came up for discussion some
members of the Court expressed doubt as to the applicability of
the Lichauco case considering that it does not decide squarely
whether the same property may be levied on an alias execution if
it is reacquired by the judgment debtor in the exercise of his right
of redemption and as on this matter the requisite majority could
not be obtained the injury turned to another issue which for
purposes of this case is sufficient to decide the controversy.
The issue is: Since it appears that plaintiff redeemed the two
parcels of land in question with money obtained by her from her
father, has the property become paraphernal and as such is
beyond the reach of further execution?
We are of the opinion that the question should be answered in the
affirmative for the following reasons:
(a) Gliceria Rosete, the wife, redeemed the property, not in
behalf of her husband, but as successor in interest in the whole or
part of the property, it being then conjugal. The term "successor
in interest" appearing in subdivision (a), Section 25, Rule 39,
includes, according to Chief Justice Moran, "one who succeeds
to the interest of the debtor by operation of law" or "the wife as
regards her husband's homestead by reason of the fact that some
portion of her husband's title passes to her (Comments on the
Rules of Court, 1952 ed., Vol. 1, pp. 841-842); and (b) a property
is deemed to belong exclusively to the wife (1) when acquired by
her by-right of redemption, and (2) with money belonging
exclusively to her (Article 1396, old Civil Code).
The interest which a wife has in conjugal property in this
jurisdiction may be likened to that of a wife in a homestead in
American jurisdiction. That interest is known as "inchoate right
of dower", or a "contingent interest." By virtue of this inchoate
right, a wife has a right of redemption of a homestead
as successor in interest of her husband. Thus, in Hepfner vs.
Urton, 12 Pac., 486, it was held that by the declaration of
homestead by the husband of the property sold a portion of his
title passed to his wife, and "she had the right of residence
thereon with him and the family during their joint lives, with
some rights in case she should survive him. She had a right of
redemption as his successor in interest." (Emphasis supplied) In
Taylor vs. Taylor, 92 So., 109, where a mortgage was executed
on a homestead and the husband refused to pay the indebtedness,
it was held that "the wife's "inchoate right of dower", which is
more than a possibility and may well be denominated a
contingent interest, was a sufficient interest in the lands to confer
the right of equitable redemption under the mortgage." And in
Malone vs. Nelson, et al., 167 So., 714, it was declared that "the
right of the wife of redeem is rested upon her interest — inchoate
right of dower — a right subject to a monetary valuation." These
authorities have persuasive effect considering the source of our
rule on the matter.
The property in question has therefore become the exclusive
property of the plaintiff. She has acquired it by right of
redemption as successor in interest of her husband. It has ceased
to be the property of the judgment debtor. It can no longer
therefore be the subject of execution under a judgment
exclusively affecting the personal liability of the latter. The
conclusion reached by the lower court on this matter is therefore
not warranted by law.
Wherefore, the decision appealed from is modified as follows:
the sale of the two parcels of land executed by the sheriff on May
9, 1950 in favor of Raymundo de Jesus for P970 is hereby
declared null and void, and the deed of repurchase executed by
6
CONJUGAL PARTNERSHIP OF GAINS
the sheriff in favor of the plaintiff on March 8, 1950 is hereby
revived and maintained. The rest of the decision is declared
without effect. No pronouncement as to costs.
G.R. No. L-24173 November 24, 1925
In re will of Jose Flores, deceased. SOTERO FLORES and
AGUEDA FLORES, petitioners-appellants,
vs.
GERARDO FLORES, opponent-appellant.
M. H. de Joya, Jose Ma. T. Reyes and Eustaquio M. Banzali for
petitioners and appellants.
Felix B. Bautista for opponent-appellant.
STREET, J.:
On October 13, 1919, the Court of First Instance of the Province
of Pampanga admitted to probate the will of one Jose Flores,
formerly a resident of the barrio of Santa Rita, in the
municipality of Macabebe, Province of Pampanga, who had died
on May 6, 1919, at the advanced age of about 89 years. Rafael
Flores, a brother of the deceased, was named in the will as
executor and by him the petition which resulted in the probate of
the will was presented. But Romulo Macalino succeeded later to
the office of administrator.
It appears that in life Jose Flores had been three times married,
and he left children surviving him from each of said marriages.
By his first wife, Angela Payuyu, he had three children named
respectively Catalina, Apolonia and Eleuterio Flores. The last
named died before his father, leaving three children, to wit,
Virginia, Donata and Manuel Flores. By his second wife, Jose
Flores had two children, both of whom are still living, namely,
Sotero and Agueda Flores. By his third wife, he also had two
children named Gerardo and Elcredo (or Alfredo), but the last
named died before the testator.
In the course of the settlement of the estate various questions
have arisen with reference to the nature of the property to be
divided and the respective interest of the different sets of children
therein, but for the purposes of this appeal attention will be
directed only to the contention over the claims of the two
surviving children of the second marriage, Sotero Flores and
Agueda Flores, who figure in this proceeding as appellants.
It appears that the deceased lived about twenty-four years with
his second wife, and the property with which we are here
concerned was acquired during the said marriage. In so far as
appears from this record the conjugal partnership between Jose
Flores and his second wife, Maria Agustin, has never been
formally liquidated, and in conformity with well-established
precedents it is proper to have said partnership liquidated by the
testator's executor or administrator, that is, in the present
proceeding. In view of this situation the two children of the
second marriage, now appellants, insisted in the lower court that
all of the property acquired by the testator during his second
marriage pertained to the conjugal partnership that had existed
between him and his second wife, and they maintained that said
partnership should be liquidated and that the half pertaining to
their mother should be segregated before any general distribution
of the estate should occur. This general idea seems to have been
admitted in a qualified way by the court below in its decision of
February 4, 1925, and reiterated in its order of March 11, 1925,
denying a motion for reconsideration; but error is assigned to its
pronouncement with respect to the lands included in a Torrens
certificate of title (Exhibit D-1). This feature of the appeal is, we
think, well grounded.
From the Exhibit D, which is a certified copy of the decision in a
registration proceeding, it appears that the lands covered by the
certificate of title (Exhibit D-1) had been purchased by Jose
Flores on September 15, 1902, or in the lifetime of his second
wife, Maria Agustin. After her death Flores instituted
proceedings to register said lands and procured the Torrens
certificate of title thereto in his sole name. This had the effect, so
the court seems to have supposed, of making these lands the
exclusive property of Flores and of extinguishing their character
as conjugal property of the prior marriage. To hold otherwise,
said his Honor, would have the effect of revising the decree of
the land court and impairing a title which that court had decreed
to Flores.
This idea is clearly incorrect. Thus surviving husband is ex-
officio manager, or administrator, of the conjugal estate. He has
the power to alienate the property for the purpose of liquidating
the estate and the purchaser under him undoubtedly gets valid
title (Nable Jose vs. Nable Jose, 41 Phil., 713). But as long as the
husband retains the property in whatever form, he holds it in the
character of administrator and is virtually a trustee for those
interested in the conjugal partnership. Nor does the obtaining of a
Torrens title in any wise change the situation. In section 70 of the
Land Registration Act (No. 496), it is, among other things,
expressly declared that nothing contained in this Act shall in any
way be construed to relieve registered land or the owners thereof
from any rights incident to the relation of husband and wife or to
change or affect in any other way any other rights or liabilities
created by laws and applicable to unregistered land, except as
otherwise expressly provided in the Act. It is needless to say that
there is no express provision anywhere in the Act which has the
effect of extinguishing the responsibility of the husband with
respect to the conjugal estate or which would enable him, by
taking a Torrens title, to escape from his responsibility as
administrator and liquidator. Furthermore, in Severino vs.
Severino (44 Phil. 343), it is clearly shown that the registration of
property in the name of one who holds in a trust character does
not extinguish the trust or destroy the rights of the beneficiary.
His Honor was therefore in error in this case in supposing that
the Torrens certificate of title (Exhibit D-1), covering lands
which had been acquired during the second marriage had
changed in any way the character of the property as ganacial
property of the spouses in said marriage. The first assignment
error is therefore well taken in so far as it relates to the ruling of
the court with respect to the character of said property. Property
acquired during marriage pertains to the conjugal partnership
regardless of the form in which the title is then or there
afterwards taken. lawph!1.net
With respect to the second contention of the appellants, it appears
that their attorney was desirous of presenting proof with respect
to the dates upon which the deceased had contracted the various
debts admitted by the committee on claims as valid charges
against his estate; and it is said that the appellants were prepared
to show that these debts had all been contracted during his third
marriage and hence could not constitute a proper charge against
the conjugal property pertaining to the second marriage. That the
appellants have a right to submit proof for the purpose suggested
is a fact that cannot be questioned, but as we gather from the
appealed orders the intention of the court was to reserve this
point until final project of liquidation and partition of the whole
estate of Jose Flores should be presented. While something
would probably have been gained in the way of clarifying the
situation by entering into this question at an earlier stage of the
proceedings, the court cannot be put in error in having merely
postponed entering into this contention until a later stage of the
proceedings.
7
CONJUGAL PARTNERSHIP OF GAINS
For the reasons stated the order appealed from will be modified
by declaring that the lands covered by Torrens certificate of title
Exhibit D-1, like the other properties mentioned in Nos. 1-8,
inclusive, of the decision of February 4, 1925, pertain to the
conjugal partnership of Jose Flores with his second wife, Maria
Agustin. In other respects the orders appealed from are affirmed.
So ordered, without special pronouncement as to costs.
G.R. No. L-40666 January 22, 1976
POLARIS MARKETING CORPORATION, petitioner,
vs.
HON. ANDRES B. PLAN, Presiding Judge, Court of First
Instance of Isabela, Cauayan Branch; DOMINGO
MANGANTULAO Deputy Provincial Sheriff of Isabela, and
NATALIA SANTOS, respondents.
Jules A. Mejia for petitioner.
Constante B. Albano for private respondents.
AQUINO, J.:
The Court of First Instance of Rizal (Pasig Branch I) rendered a
decision dated October 29, 1971 in Civil Case No. 14319,
ordering Eleuterio P. Santos to pay Polaris Marketing corporation
(Polaris for short) within ninety days from the receipt of the
decision the sum of P104,172.50 plus interest, attorney's fees and
costs. The court directed that if Santos did not satisfy that
judgment within the ninety day period, then the ten parcels of
registered land, which he had mortgaged to Polaris, should be
sold at public auction.
Santos did not satisfy the judgment. So, the mortgaged lands,
allegedly valued at P300,000, were sold at public auction to
Polaris for the sum of P20,555 only. On February 25, 1974 an
alias writ of execution was issued. Respondent Deputy provincial
sheriff of Isabela enforced that writ by levying on thirty-two (32)
parcels of registered land and on the personal properties
consisting of a jeep, a trailer, a tractor and three hundred ninety-
three cavans of palay, found at Cauayan, Isabela, supposedly
belonging to the judgment debtor, Eleuterio P. Santos. The sheriff
scheduled the sale of those properties (except the palay) on April
15, 1974.
On March 16, 1974 Natalia A. Santos, the wife of the judgment
debtor and a resident of Cauayan, filed a third-party claim with
the sheriff. She claimed that the personal properties valued at
P125,950.90 were conjugal assets in which she had a one-half
interest.
On that same date, March 16, she sued Polaris and the sheriff in
the Court of First Instance of Isabela, Cauyan Branch II. In her
complaint she prayed that the levy on the conjugal properties be
declared void and that their auction sale be enjoined (Civil Case
No. BR. II-1208).
Polaris filed a motion to dismiss the complaint and an opposition
to the petition for preliminary injunction. Natalia A. Santos
opposed the motion. On March 22, 1974 the sheriff sold the
palay for P15,000.
The Isabela court in its order of May 8, 1974 enjoined the sheriff
and Polaris from levying on the conjugal assets of the spouses
Natalia A, Santos and Eleuterio P. Santos. If fixed the injunction
bond at P50,000 and directed that after the filing of that bond the
properties levied upon by the sheriff should be returned to
Natalia A. Santos. The court deferred action on the motion to
dismiss and ordered Polaris to answer the complaint.
After Natalia A. Santos had filed the bond or on June 6, 1974 the
lower court ordered the sheriff to return to her the properties
which had been levied upon or the cash in lieu of the palay that
had been sold.
Polaris filed in the Court of Appeals a petition for and prohibition
wherein it assailed the Isabela court' orders of May 8 and June 6,
1974. The petition was given due course.
Iinasmuch as the petition raised jurisdictional questions, the court
of Appeals dismissed it without prejudice to filing it in this Court
(Polaris Marketing Corporation vs. Hon. Andres B. Plan, CA-G.
R. No. SP-03193-R, February 6, 1975). It was refiled in this
Court on May 19, 1975.
The situation here is that the Court of First Instance of Rizal
rendered a money judgment against the husband in a foreclosure
proceeding. The mortgaged lands were sold at public auction. To
satisfy the deficiency judgment, the sheriff levied upon the
conjugal assets found in Isabela. The wife contested the levy
against the conjugal assets by suing the judgment creditor and the
sheriff in the Court of First Instance of Isabela. She contended
that the levy was void and that it should be enjoined.
The wife, in assailing the alias writ of execution, which was
enforced against the conjugal assets to satisfy a money judgment
against her husband, did so in a separate action and did not move
to set aside the execution in the case where the judgment was
rendered.
The issue is whether the Isabela court, ill deferring action on the
motion to dismiss the wife's complaint and in enjoining the levy
on the conjugal assets, acted without jurisdiction or with grave
abuse of discretion.
We hold that the Court of First Instance of Isabela did not exceed
its jurisdiction and did not act with grave abuse of discretion (a)
in cancelling the levy on the conjugal properties after the wife
had posted a bond in the sum of fifty thousand pesos and (b) in
deferring the determination of the motion to dismiss until after
the termination of the trial and in ordering Polaris to answer the
complaint. (See sec. 3, Rule 16, Rules of Court).
The Isabela court has jurisdiction to entertain the complaint of
the wife, Natalia A. Santos. She was not a party in the
foreclosure case against the husband, Civil Case No. 14319 of
the Court of First Instance of Rizal. So it would seem that she
was not bound by the proceedings therein. It is a legal axiom
"that no man shall be affected by proceedings to which he is a
stranger" (Ed. A. Keller & Co. vs. Ellerman & Bucknall
Steamship Co., 38 Phil. 514, 520). She could not have intervened
in that case and asserted therein her contention that the conjugal
assets should not answer for her husband's obligations to Polaris.
The trial in that case had already been terminated. Intervention is
allowed only "before or during a trial" (Sec. 2, Rule 12, Rules of
Court; Trazo vs. Manila Pencil Co., Inc., 110 Phil. 1016).
That is the reason why a third person claiming to be the owner of
the property attached or levied upon is required to file a separate
or independent action to determine whether the property should
answer for the claim of the attaching or judgment creditor instead
of being allowed to raise that issue in the case where the writ of
attachment or execution was issued (Sec. 17, Rule 39 and sec.
14, Rule 57, Rules of Court; Bayer Philippines, Inc. vs. Agana,
L-38701, April 8, 1975, 63 SCRA 355).
8
CONJUGAL PARTNERSHIP OF GAINS

The mandatory injunction issued by the Isabela court cannot be

considered as an interference with the writ of execution issued by
a court of coordinate and co-equal jurisdiction. The alias writ of
execution was issued by the Rizal court for the purpose of
levying upon the properties of the judgment debtor, Eleuterio
Santos, and not the properties of other persons (See Manila
Herald Publishing Company, Inc. vs. Ramos, 88 Phil. 94; Abiera
vs. Court of Appeals, L-26294, May 31, 1972, 45 SCRA 314;
Bayer Philippines, Inc. vs. Agana, supra).

Since the sheriff levied upon the properties which, according to

Natalia A. Santos, the judgment debtor's wife, should not be
liable for the husband's obligations, she is entitled to be heard on
that point in a separate action.

That was the procedure followed in Quintos de Ansaldo vs.

Sheriff of Manila, 64 Phil. 115. The foregoing considerations
have been adduced to show that the Isabela court did not act
arbitrarily, capriciously and whimsically or in excess of its
jurisdiction in not sanctioning the levy on the conjugal assets and
in not dismissing outright the separate case wherein the question
of whether such assets should answer for the husband's
obligations would be resolved.

Polaris is not precluded from asking later on for a review of the

said orders in the light of the evidence to be submitted during the
trial. It could still appeal from the said orders after the case is
finally decided. certiorari and prohibition do not lie in this case.
No jurisdictional errors were committed by the Isabela court.
(Nocon vs. Geronimo, 101 Phil. 735).

WHEREFORE, the petition for certiorari and prohibition is

dismissed with costs against the petitioner.

SO ORDERED.

(NOTE: NO CASE OF RIVERA V. BATALLONES)