TITLE V

THE FAMILY

Chapter 1. The Family as an Institution

Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given effect. (216a, 218a)
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood. (217a)
Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified
complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed.
If it is shown that no such efforts were in fact made, the same case must be dismissed.
This rules shall not apply to cases which may not be the subject of compromise under the Civil Code. (222a)

Chapter 2. The Family Home

Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a
family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a)
Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the
family home continues to be such and is exempt from execution, forced sale or attachment except as
hereinafter provided and to the extent of the value allowed by law. (223a)
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of a family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and who depend upon the head of the family for legal
support. (226a)
Art. 155. The family home shall be exempt from execution, forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered
service or furnished material for the construction of the building. (243a)
Art. 156. The family home must be part of the properties of the absolute community or the conjugal
partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted
by an unmarried head of a family ON HIS OR HER OWN PROPERTY.

Title XIV. - COMPROMISES AND ARBITRATIONS

CHAPTER 1
COMPROMISES
Art. 2035. No compromise upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (1814a)
 RUFINO MAGBALETA, ROMANA B. MAGBALETA, AND SUSANA G. BALDOVI, petitioners, vs.
HON. ARSENIO M. GONONG AND CATALINO MAGBALETA, respondents

Petition for certiorari, Prohibition and mandamus, with preliminary injunction, against the orders of
respondent judge denying petitioners' motion to dismiss the complaint filed against them notwithstanding
that PRIVATE RESPONDENT is the BROTHER of petitioner Rufino Magbaleta.

The suit is to have a parcel of land in the NAME OF RUFINO, declared to be the property of private
respondent, who claims in said complaint that SUSANA G. BALDOVI is trying to take possession of said land
from his representative, contending she had bought the same from the spouses Rufino and Romana.

Said orders having been issued allegedly in violation of Article 222 of the Civil Code and Section 1 of Rule 16
of the Rules of Court, there being no allegation in respondent's complaint that his suit, being between members
of the same family, EARNEST EFFORTS TOWARDS A COMPROMISE HAVE BEEN MADE
BEFORE THE SAME WAS FILED.

Respondent judge premised his refusal to dismiss the complaint upon the sole ground that one of the
defendants, petitioner Susana G. Baldovi, the alleged buyer of the land in dispute, IS A STRANGER.

RULING OF COURT: The Court holds that this ruling of respondent judge is correct.

As pointed out by the Code Commission "it is difficult to imagine a sadder and more tragic spectacle than a
litigation between members of the same family" hence, "it is necessary that every effort should be made toward
a COMPROMISE BEFORE A LITIGATION IS ALLOWED TO BREED HATE AND PASSION IN
THE FAMILY" and "it is known that a lawsuit between close relatives generates DEEPER BITTERNESS
THAN BETWEEN STRANGERS".

These considerations DO NOT, however, weigh enough to make it imperative that such efforts to compromise
should be a jurisdictional pre-requisite for the maintenance of an action WHENEVER A STRANGER TO
THE FAMILY IS A PARTY THERETO, whether as a necessary or indispensable one.

SPOUSES AUGUSTO HONTIVEROS and MARIA HONTIVEROS, petitioners, vs. REGIONAL TRIAL
COURT, Branch 25, Iloilo City and SPOUSES GREGORIO HONTIVEROS and TEODORA AYSON,
respondents.

On December 3, 1990, petitioners,  the  spouses  Augusto  and  Maria Hontiveros, filed a complaint for
damages against private respondents Gregorio Hontiveros and Teodora Ayson before the Regional Trial
Court of Iloilo City
In said complaint, petitioners alleged that they are the owners of a parcel of land, in the town of Jamindan,
Province of Capiz. That petitioners were deprived of income from the land as a result of the filing of the
land registration  case; that such income consisted of rentals from tenants of the land in the amount of
P66,000.00 per year from 1968 to1987, and P595,000.00 per year thereafter; 
And that private respondents filed the land registration case and withheld possession of the land from
petitioners in bad faith.
 In their answer, private respondents denied that they were MARRIED and alleged that private respondent
Hontiveros was a widower while private  respondent  Ayson  was  single. They denied that they had deprived
petitioners of possession of and income from the land. On the contrary, they alleged that possession of the
property in question had already been transferred to petitioners on August 7, 1985, by virtue of a writ of
possession, dated July 18, 1985, issued by the clerk of court of the Regional Trial Court of Capiz, Mambusao,
the return thereof having been received by petitioners' counsel; that since then, petitioners have been directly
receiving rentals from the tenants of the land, that the complaint failed to state a cause of action since it did
not allege that EARNEST EFFORTS TOWARDS A COMPROMISE had been made, considering
that petitioner AUGUSTO HONTIVEROS AND PRIVATE RESPONDENT GREGORIO
HONTIVEROS ARE BROTHERS; 

That the decision of the Intermediate Appellate Court in Land Registration Case No. N-581-25 was null and
void since it was based upon a ground which was not passed upon by the trial court; 
That petitioners' claim for damages was barred by prescription with respect to claims before 1984; that there
were no rentals due since private respondent Hontiveros was a possessor in good faith and for value; 
And that private respondent Ayson had nothing to do with the case as she was not married to private
respondent Gregorio Hontiveros and did not have any proprietary interest in the subject property.
Private respondents PRAYED FOR THE DISMISSAL OF THE COMPLAINT and for an order against
petitioners to pay damages to private respondents by way of counterclaim, as well as reconveyance of the
subject land to private respondents.
 
ISSUE:
T h e   R e g i o n a l   T r i a l   C o u r t   p a l p a b l y   e r r e d   i n   d i s m i s s i n g   t h e complaint on the ground
that it does not  allege under oath that earnest efforts toward a compromise were made prior to the
filing thereof as required by Article 151 of the Family Code.

HELD:
 The TRIAL COURT ERRED IN DISMISSING PETITIONERS' COMPLAINT on the ground
that, although it alleged that earnest efforts had been made toward the settlement of the case but they
proved futile, the complaint was not verified for which reason the trial court could not believe the
veracity of the allegation.  T h e a b s e n c e o f t h e v e r i f i c a t i o n r e q u i r e d i n A r t . 1 5 1 d o e s n o t
a f f e c t   t h e   j u r i s d i c t i o n   o f   t h e   c o u r t   o v e r   t h e   s u b j e c t   m a t t e r   o f   t h e complaint.
The verification is merely a formal requirement intended to
s e c u r e   a n   a s s u r a n c e   t h a t   m a t t e r s   w h i c h   a r e   a l l e g e d   a r e   t r u e   a n d correct.

If the court doubted the veracity of the allegations regarding efforts made to settle the case among
members of the same family, it could simply have ordered petitioners to verify them. As this Court has already
ruled, the court may simply order the correction of unverified p l e a d i n g s o r a c t o n i t a n d w a i v e
strict compliance with the rules
ino r d e r   t h a t   t h e   e n d s   o f   j u s t i c e   m a y   b e   s e r v e d .  

O t h e r w i s e ,   m e r e suspicion or doubt on the part of the trial court as to the truth of the
allegation that earnest efforts had been made toward a compromise b u t t h e p a r t i e s ' e f f o r t s
p r o v e d u n s u c c e s s f u l i s n o t a g r o u n d f o r t h e dismissal of an action. Only if it is later shown that
such efforts had not r e a l l y   b e e n   e x e r t e d   w o u l d   t h e   c o u r t   b e   j u s t i f i e d   i n   d i s m i s s i n g   t h e action.
Moreover, as petitioners contend, Art. 151 of the Family Code does not apply in this case since the
suit is not exclusively among the family members. Citing several cases decided by this Court, petitioners
claim that whenever a stranger is a party in the case involving the
f a m i l y   m e m b e r s ,   t h e   r e q u i s i t e   s h o w i n g   t h e   e a r n e s t   e f f o r t s   t o compromise is
no longer mandatory.

T h e y a r g u e t h a t s i n c e p r i v a t e respondent Ayson is admittedly a stranger to the Hontiveros

family the case is not covered by the requirements of Art. 151 of the Family Code.

We agree with petitioners. The inclusion of private respondent Ayson as defendant and
petitioner Maria Hontiveros as plaintiff takes t h e c a s e o u t o f t h e a m b i t o f A r t . 1 5 1 o f t h e
Family Code. Under this provision,  the phrase
" m e m b e r s   o f   t h e   s a m e   f a m i l y "   r e f e r s   t o   t h e husband and wife, parents and children, ascendants
and descendants, and brothers and sisters, whether full or half-blood.

As this Court held in Guerrero v. RTC, Ilocos Norte, Br. XVI:

Religious relationship and relationship by affinity are not given any legal effect in this
jurisdiction. Consequently, private respondent Ayson, who is described in the complaint as the spouse of
respondentH o n t i v e r o s ,   a n d   p e t i t i o n e r   M a r i a   H o n t i v e r o s ,   w h o   i s   a d m i t t e d l y   t h e spouse of
petitioner Augusto Hontiveros, are considered strangers to the Hontiveros family, for purposes of Art.
151.

APRIL MARTINEZ, FRITZ DANIEL MARTINEZ and MARIA OLIVIA MARTINEZ, petitioners, vs.
RODOLFO G. MARTINEZ, respondent.
FACTS:

Daniel Martinez Sr. and Natividad de Guzman-Martinez were the owners of a PARCEL OF LAND. 

The former executed a last will and testament directing the subdivision of the property into 3 lots bequeathed
to each of his sons namely Rodolfo, Manolo (designated as administrator of the estate), and Daniel Jr. 

In October 1997, Daniel Sr. died.  Rodolfo then found a deed of sale purportedly signed by his father on
September 1996 where it appears that the land was sold to Manolo and his wife Lucila and was also issued to
them.  Rodolfo filed a complaint against his brother Manolo and sister-in-law Lucila for the annulment of
the deed of sale and cancellation of the TCT. 

Spouses wrote Rodolfo demanding him to vacate the property which the latter ignored and refused to do so. 
This prompted the spouses to file a complaint for unlawful detainer against Rodolfo.  THIS MATTER WAS
REFERRED TO THE BARANGAY FOR CONCILIATION AND SETTLEMENT BUT NONE WAS
REACHED.  It was alleged in the position paper of the spouses that earnest efforts toward a compromise had
been made but the same proved futile.

On February 21, 2000, the trial court rendered judgment in favor of the spouses Martinez.

The trial court declared that the spouses Martinez had substantially complied with Article 151 of the Family
Code of the Philippines[17] based on the allegations of the complaint and the appended certification to file
action issued by the barangay captain.
On November 27, 2003, the CA rendered judgment granting the petition and reversing the decision of the
RTC. The appellate court ruled that the spouses Martinez HAD FAILED to comply with Article 151 of the
Family code. The CA also held that the defect in their complaint before the MTC was not cured by the filing of
an amended complaint because the latter pleading was not admitted by the trial court.

ISSUE: WON spouses Martinez complied with the requirements of Art 151 of the Family Code.

HELD:

No suit between members of the same family shall prosper unless it should appear from the verified complaint
that earnest efforts toward a compromise have been made, but the same have failed.

Lucila Martinez, the respondent’s sister-in-law WAS one of the plaintiffs in the case at bar.  The PETITIONER
IS NOT A MEMBER OF THE SAME FAMILY AS THAT OF HER DECEASED HUSBAND AND THE
RESPONDENT.  Her relationship with the respondent is not one of those enumerated in Article 150. 

It should also be noted that the PETITIONERS WERE ABLE TO COMPLY WITH THE REQUIREMENTS
OF ARTICLE 151 BECAUSE THEY ALLEGED IN THEIR COMPLAINT THAT THEY HAD INITIATED
A PROCEEDING AGAINST THE RESPONDENT FOR UNLAWFUL DETAINER IN THE
KATARUNGAN PAMBARANGAY in compliance with PD1508 and that after due proceedings, no amicable
settlement was arrived at resulting in the barangay chairman’s issuance of a certificate to file action.   

HIYAS SAVINGS and LOAN BANK, INC. Petitioner,

vs.
HON. EDMUNDO T. ACUÑA, in his capacity as Pairing Judge of Regional Trial Court, Branch 122,
Caloocan City, and ALBERTO MORENO, Respondent.

On November 24, 2000, Alberto Moreno (private respondent) filed with the RTC of Caloocan City a
complaint against Hiyas Savings and Loan Bank, Inc. (petitioner), his wife Remedios, the spouses Felipe
and Maria Owe and the Register of Deeds of Caloocan City for CANCELLATION OF MORTGAGE
contending that he did not secure any loan from petitioner, nor did he sign or execute any contract of
mortgage in its favor; that his wife, acting in conspiracy with Hiyas and the spouses Owe, who were the ones
that benefited from the loan, made it appear that he signed the contract of mortgage; that he could not have
executed the said contract because he was then working abroad.

On May 17, 2001, petitioner filed a Motion to Dismiss on the ground that private respondent failed to comply
with Article 151 of the Family Code wherein it is provided that no suit between members of the same family
shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a
compromise have been made, but that the same have failed.

Private respondent filed his Comment on the Motion to Dismiss with Motion to Strike Out and to Declare
Defendants in Default. He argues that in cases WHERE ONE OF THE PARTIES IS NOT A MEMBER of the
same family as contemplated under Article 150 of the Family Code, failure to allege in the complaint that
earnest efforts toward a compromise had been made by the plaintiff before filing the complaint is not a
ground for a motion to dismiss. Alberto asserts that since three of the party-defendants are not members of his
family the ground relied upon by Hiyas in its Motion to Dismiss is inapplicable and unavailable.

On November 8, 2001, the RTC issued the first of its assailed Orders denying the Motion to Dismiss.
On May 7, 2002, the RTC issued the second assailed Order denying petitioner’s Motion for Partial
Reconsideration.

RULING OF COURT: At the outset, the Court notes that the instant Petition for Certiorari should have been
filed with the Court of Appeals (CA) and not with this Court pursuant to the doctrine of hierarchy of courts.

In the present case, petitioner failed to advance a satisfactory explanation as to its failure to comply with the
principle of judicial hierarchy. There is no reason why the instant petition could not have been brought before
the CA. On this basis, the instant petition should be dismissed.

And even if this Court passes upon the substantial issues raised by petitioner, THE INSTANT PETITION
LIKEWISE FAILS FOR LACK OF MERIT.

Restating its arguments in its Motion for Partial Reconsideration, petitioner argues that what is applicable to the
present case is the Court’s decision in De Guzman v. Genato[18] and not in Magbaleta v. Gonong,[19] the
former being a case involving a husband and wife while the latter is between brothers.

Hence, ONCE A STRANGER BECOMES A PARTY TO A SUIT INVOLVING MEMBERS OF THE

SAME FAMILY, THE LAW NO LONGER MAKES IT A CONDITION PRECEDENT THAT
EARNEST EFFORTS BE MADE TOWARDS A COMPROMISE BEFORE THE ACTION CAN
PROSPER.

Petitioner makes much of the fact that the present case involves a husband and his wife while Magbaleta is a
case between brothers. However, the Court finds no specific, unique, or special circumstance that would make
the ruling in Magbaleta as well as in the abovementioned cases inapplicable to suits involving a husband and
his wife, as in the present case. In the first place, Article 151 of the Family Code and Article 222 of the Civil
Code are clear that the provisions therein apply to suits involving “members of the same family” as
contemplated under Article 150 of the Family Code.

Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a
family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a)
Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the
family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter
provided and to the extent of the value allowed by law. (223a)
Art. 155. The family home shall be exempt from execution, forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered
service or furnished material for the construction of the building. (243a)

JOSE MODEQUILLO, petitioner, vs. HON. AUGUSTO V. BREVA FRANCISCO SALINAS,

FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF FERNANDO
PLATA respondents.

FACTS: The sheriff levied on a PARCEL OF RESIDENTIAL LAND located at Poblacion Malalag, Davao
del Sur on July 1988, registered in the name of Jose Mondequillo and a PARCEL OF AGRICULTURAL
LAND located at Dalagbong Bulacan, Malalag, Davao de Sur also registered in the latter’s name. 
A motion to quash was filed by the petitioner alleging that the RESIDENTIAL LAND IS WHERE THE
FAMILY HOME IS BUILT SINCE 1969 prior the commencement of this case and as such is EXEMPT
FROM EXECUTION, FORCED SALE OR ATTACHMENT under Article 152 and 153 except for
liabilities mentioned in Article 155 thereof, and that the judgment sought to be enforced against the family
home is not one of those enumerated. 

With regard to the agricultural land, it is alleged that it is still part of the public land and the transfer in his
favor by the original possessor and applicant who was a member of a cultural minority.  The residential house
in the present case became a family home by operation of law under Article 153.

ISSUE: WON the subject property is deemed to be a family home.

HELD:

The petitioner’s contention that it should be considered a family home from the time it was occupied by
petitioner and his family in 1969 IS NOT WELL-TAKEN.  Under Article 162 of the Family Code, it provides
that the provisions of this Chapter shall govern existing family residences insofar as said provisions are
applicable.  IT DOES NOT MEAN THAT ARTICLE 152 AND 153 SHALL HAVE A RETROACTIVE
EFFECT such that all existing family residences are deemed to have been constituted as family homes at
the time of their occupation PRIOR TO THE EFFECTIVITY OF THE FAMILY CODE and are
EXEMPT from the execution for payment of obligations incurred before the effectivity of the Code.  

The said article simply means that ALL EXISTING FAMILY RESIDENCES at the time of the effectivity
of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a
family home under the FC.  The debt and liability which was the basis of the judgment WAS INCURRED
PRIOR the effectivity of the Family Code.  This DOES NOT FALL UNDER THE EXEMPTIONS FROM
EXECUTION PROVIDED IN THE FC.

In the present case, the residential house and lot of petitioner was not constituted as a family home whether
judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under
Article 153 of the Family Code.

As to the agricultural land, trial court correctly ruled that the levy to be made shall be on whatever rights the
petitioner may have on the land.  Petition was dismissed.

Manacop vs. CA

FACTS: Petitioner Florante F. Manacop and his wife Eulaceli purchased RESIDENTIAL LOT WITH A
BUNGALOW. Private Respondent E & L MERCHANTILE, INC. filed a complaint against petitioner and
F.F. Manacop Construction Co., Inc. before the RTC of Pasig, Metro Manila TO COLLECT
INDEBTEDNESS. Instead of filing an answer, petitioner and his company entered into a COMPROMISE
AGREEMENT with private respondent. 

The trial court rendered judgment approving the aforementioned compromise agreement. It enjoined the
parties to comply with the agreement in good faith. Private respondent filed a motion for execution which the
lower court granted. However, execution of the judgment was delayed. Eventually, the sheriff levied on
several vehicles and other personal properties of petitioner. These chattels were sold at public auction for
which certificates of sale were correspondingly issued by the sheriff. 

Petitioner and his company filed a motion to quash the alias writs of execution and to stop the sheriff from
continuing to enforce them on the ground that the JUDGMENT WAS NOT YET EXECUTORY. Private
respondent opposed the motion. The lower court denied the motion to quash the writ of execution and the
prayers in the subsequent pleadings filed by petitioner and his company. FINDING THAT PETITIONER
AND HIS COMPANY HAD NOT PAID THEIR INDEBTEDNESS EVEN THOUGH THEY COLLECTED
RECEIVABLES, THE LOWER COURT HELD THAT THE CASE HAD BECOME FINAL AND
EXECUTORY. It also ruled that petitioner's residence was not exempt from execution as it was not duly
constituted as a family home, pursuant to the Civil Code. 

ISSUE: Whether or not a writ of execution of a final and executory judgment issued before the effectivity of
the Family Code be executed on a house and lot constituted as a family home under the provision of Family
Code. 

RULING: The petition is denied for utter lack of merit. It does not mean that Articles 152 and 153 FC have a
retroactive effect such that all existing family residences are deemed to have been constituted as family homes
at the time of their occupation prior to the effectivity of the FC and are exempt from execution for the payment
of obligations incurred before the effectivity of the FC. Art. 162 simply means that all existing family
residences at the time of the effectivity of the FC, are considered family homes and are prospectively entitled to
the benefits accorded to a family home under the FC.

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

Equitable PCI Bank vs. OJ- Mark trading

G.R. No. 165950, August 11, 2010
Villarama, Jr., J:
FACTS:
Respondent-spouses Oscar and Evangeline Martinez obtained loans from petitioner Equitable PCI Bank,
Inc. in the aggregate amount of P4,048,800.00. As security for the said amount, A REAL ESTATE
MORTGAGE (REM) WAS EXECUTED OVER A CONDOMINIUM UNIT WHERE THE SPOUSES ARE
RESIDING. Respondent Oscar Martinez signed the REM both as principal debtor and as President of the
registered owner and third-party mortgagor, respondent OJ-Mark Trading, Inc.

Respondent-spouses defaulted in the payment of their outstanding loan obligation; thus, they offered to settle
their indebtedness with the assignment to the Bank of a commercial lot, which at that time, was not
transferred in their name. While petitioner’s officers held a meeting with respondent Martinez, the latter
however failed to submit the required documents such as certificates of title and tax declarations so that the
bank can evaluate his proposal to pay the mortgage debt via dacion en pago.  Consequently, petitioner
initiated the extrajudicial foreclosure of the real estate mortgage.

On the other hand, respondents filed a civil case for TRO and annulment of the extrajudicial sale. They
alleged, among others, that the REM is void for having been illegally notarized; that the petitioner acted
in BAD FAITH because it did not officially inform them of the denial or of their proposal to settle the
loan obligation by “dacion.

The RTC ruled in favor of respondents and issued the TRO. The same was affirmed by the CA, the latter
holding that respondents have sufficiently shown their proprietary right over the condominium unit sought to be
foreclosed, entitling it to the questioned TRO. Thus, petitioner filed a petition for review on certiorari under
Rule 45 contending as follows:
1) it has a clear right to foreclose the mortgage because the respondents failed to settle their obligations;
2) there respondents have no right to an injunction because they have no clear right to a dacion en pago.   

ISSUE: Whether or not the respondents have shown a clear legal right to enjoin the foreclosure and public
auction of the third-party mortgagor’s property.

HELD: The Court REVERSED the decision of the CA. The Court held that respondent spouses are NOT
entitled to an injunctive writ because their rights are merely contingent and not in esse. According to the Court:
1.  Respondents failed to show that they have a right to be protected and that the acts against which the
writ is to be directed are violative of the said right. 

On the face of their clear admission that they were unable to settle their obligations which were secured by
the mortgage, petitioner has a clear right to foreclose the mortgage.  Foreclosure is but a necessary
consequence of non-payment of a mortgage indebtedness.  In a real estate mortgage when the principal
obligation is not paid when due, the mortgagee has the right to foreclose the mortgage and to have the
property seized and sold with the view of applying the proceeds to the payment of the obligation.
This Court has denied the application for a Writ of Preliminary Injunction that would enjoin an extrajudicial
foreclosure of a mortgage, and declared that foreclosure is proper when the debtors are in default of the
payment of their obligation. 

2.  There was no bad faith on the part of the petitioner. 

The respondents’ position, therefore, that petitioner’s act of initiating extrajudicial foreclosure proceeding while
they negotiated for a dacion en pago was illegal and done in bad faith is without merit.  As respondent-spouses
themselves admitted, they failed to comply with the documentary requirements imposed by the petitioner for
proper evaluation of their proposal.  In any event, petitioner had found the subdivision lots offered
for dacion   as unacceptable, not only because the lots were not owned by respondents  – as in fact, the lots
were not yet titled  – but also for the reason that  respondent Oscar Martinez’s claimed right therein was
doubtful or inchoate, and hence not in esse.  
Requests by debtors-mortgagors for extensions to pay and proposals for restructuring of the loans,
without acceptance by the creditor-mortgagee, remain as that.  Without more, those proposals neither
novated the parties’ mortgage contract nor suspended its execution. In the same vein, negotiations for settlement
of the mortgage debt by dacion en pago do not extinguish the same nor forestall the creditor-mortgagee’s
exercise of its right to foreclose as provided in the mortgage contract.

3.  Respondent-spouses’ alleged “proprietary right” in the mortgaged condominium unit appears to be

based merely on respondents’ averment that respondent OJ-Mark Trading, Inc. is a family corporation. 

However, there is neither allegation nor evidence to show prima facie that such purported right, whether as
majority stockholder or creditor, was superior to that of petitioner as creditor-mortgagee.  The rule requires that
in order for a preliminary injunction to issue, the application should clearly allege facts and circumstances
showing the existence of the requisites.  It must be emphasized that an application for injunctive relief is
construed strictly against the pleader.  

4.  The contention that the family home is exempt from execution sale does not hold water. 

The contention that the family home is exempt from execution is entirely inconsistent with the clear
contractual agreement of the REM.  Assuming  arguendo that the mortgaged condominium unit constitutes
respondents’ family home, the same will not exempt it from foreclosure as Article 155 (3) of the same Code
allows the execution or forced sale of a family home “FOR DEBTS SECURED BY MORTGAGES ON THE
PREMISES BEFORE OR AFTER SUCH CONSTITUTION.”  Respondents thus failed to show an ostensible
right that needs protection of the injunctive writ.

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

(1) The husband and wife, or an unmarried person who is the head of a family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or
illegitimate, who are living in the family home and who depend upon the head of the family for legal
support. (226a)

Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head
of the family for a period of ten years OR for as long as there is a MINOR beneficiary, and the heirs cannot
partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of
whoever owns the property or constituted the family home. (238a)
 
Patricio vs Dario G.R. No. 170829

FACTS:

•M a r c e l i n o V . D a r i o d i e d i n t e s t a t e . H e w a s s u r v i v e d b y h i s :
1. W i f e , p e t i t i o n e r P e r l a   G .   P a t r i c i o
2. T h e i r   t w o   s o n s ,   M a r c e l i n o   M a r c   D a r i o J r .   a n d  
3. Marcelino G. Dario III. (private respondent)

•H e   l e f t   a   r e s i d e n t i a l   h o u s e   a n d   a   p r e - s c h o o l   b u i l d i n g   s i t u a t e d   a t   C u b a o , Quezon City.

•Petitioner, Marcelino Marc and private respondent, extra judicially settled the estate of Marcelino V.
Dario.

•Petitioner and Marcelino Marc formally advised private respondent of their intention to
PARTITION THE SUBJECT PROPERTY AND TERMINATE THE CO-OWNERSHIP.

 Private responded refused to partition the  property.

 Petitioner and Marcelino Marc filed an action for partition before RTC Quezon City

•Trial court ordered the partition of the property.

 Private respondent’s motion for reconsideration denied.

•Appeal to the Court of Appeals denied:

 Upon motion for reconsideration, CA DISMISSED THE PETITIONER’S MOTION FOR

PARTITION.

It held that family home  should continue  despite  the death of  one or both
spouses as long as there is a minor beneficiary
t h e r e o f .   T h e   h e i r s   c o u l d   n o t   p a r t i t i o n   t h e   p r o p e r t y   u n l e s s   t h e court found
compelling reasons to rule otherwise. [ Son of the private respondent was a minor
beneficiary of the family home]
On the other hand, petitioner alleges that the subject property remained as a family home of the surviving heirs
of the late Marcelino V. Dario only up to July 5, 1997, which was the 10th year from the date of death of the
decedent. Petitioner argues that the brothers Marcelino Marc and private respondent Marcelino III were
already of age at the time of the death of their father,[8] hence there is no more minor beneficiary to speak
of.

ISSUE:
Whether partition of the family home is proper where one of the CO-OWNERS R E F U S E
t o   a c c e d e   t o   s u c h   p a r t i t i o n o n   t h e g r o u n d t h a t   a   m i n o r   b e n e f i c i a r y   s t i l l resides in the said
home.

HELD: Petition granted as the minor son does not satisfy all the requisites to be considered as a
beneficiary of the family home.

To be a beneficiary of the family home, three requisites must concur: (1) they must be among the relationships
enumerated in Art. 154 of the Family Code; (2) they live in the family home; and (3) they are dependent for
legal support upon the head of the family.

Moreover, Article 159 of the Family Code provides that the family home shall continue despite the death of
one or both spouses or of the unmarried head of the family for a period of 10 years or for as long as there is
a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor.
This rule shall apply regardless of whoever owns the property or constituted the family home.

The rule in Article 159 of the Family Code may thus be expressed in this wise: If there are beneficiaries who
survive and are living in the family home, it will continue for 10 years, unless at the expiration of 10 years,
there is still a minor beneficiary, in which case the family home continues until that beneficiary becomes of age.

It may be deduced from the view of Dr. Tolentino that as a general rule, the family home may be preserved for a
minimum of 10 years following the death of the spouses or the unmarried family head who constituted the
family home, or of the spouse who consented to the constitution of his or her separate property as family home.
After 10 years and a minor beneficiary still lives therein, the family home shall be preserved only until that
minor beneficiary reaches the age of majority. The intention of the law is to safeguard and protect the interests
of the minor beneficiary until he reaches legal age and would now be capable of supporting himself.

As to the first requisite, the beneficiaries of the family home are: (1) The husband and wife, or an unmarried
person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether
the relationship be legitimate or illegitimate. The term “DESCENDANTS” contemplates all descendants of the
person or persons who constituted the family home without distinction; hence, it must necessarily include the
grandchildren and great grandchildren of the spouses who constitute a family home. Ubi lex non distinguit
nec nos distinguire debemos. Where the law does not distinguish, we should not distinguish. Thus, private
respondent’s minor son, who is also the grandchild of deceased Marcelino V. Dario satisfies the first requisite.

As to the second requisite, minor beneficiaries must be actually living in the family home to avail of the
benefits derived from Art. 159. Marcelino Lorenzo R. Dario IV, also known as Ino, the son of private
respondent and grandson of the decedent Marcelino V. Dario, has been living in the family home since 1994, or
within 10 years from the death of the decedent, hence, he satisfies the second requisite.

However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot demand support from his paternal
grandmother if he has parents who are capable of supporting him. The liability for legal support falls
primarily on Marcelino Lorenzo R. Dario IV’s parents, especially his father, herein private respondent who is
the head of his immediate family. The law first imposes the obligation of legal support upon the shoulders of the
parents, especially the father, and only in their default is the obligation imposed on the grandparents.
MARCELINO LORENZO R. DARIO IV IS DEPENDENT ON LEGAL SUPPORT NOT FROM HIS
GRANDMOTHER, BUT FROM HIS FATHER.