January 2002 - Philippine Supreme Court Decisions/Resolutions
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G.R. No. 147978 January 23, 2002 - THELMA A. JADER-MANALO v. SPS. NORMA AND EDILBERTO CAMAISA:
FIRST DIVISION
[G.R. No. 147978. January 23, 2002.]
THELMA A. JADER-MANALO, Petitioner, v. NORMA FERNANDEZ C. CAMAISA and EDILBERTO CAMAISA, Respondents.
D E C I S I O N
KAPUNAN, J.:
The issue raised in this case is whether or not the husband may validly dispose of a conjugal property without the wife’s written consent.
The present controversy had its beginning when petitioner Thelma A. Jader-Manalo allegedly came across an advertisement placed by respondents, the Spouses Norma Fernandez C. Camaisa and Edilberto Camaisa, in the Classified Ads Section of the newspaper BULLETIN TODAY in its April, 1992 issue, for the newspaper BULLETIN TODAY in its April, 1992 issue, for the sale of their ten-door apartment in Makati, as well as that in Taytay, Rizal.chanrob1es virtua1 1aw 1ibrary
As narrated by petitioner in her complaint filed with the Regional Trial Court of Makati, Metro Manila, she was interested in buying the two properties so she negotiated for the purchase through a real estate broker, Mr. Proceso Ereno, authorized by respondent spouses. 1 Petitioner made a visual inspection of the said lots with the real estate broker and was shown the tax declarations, real property tax payment receipts, location plans, and vicinity maps relating to the properties. 2 Thereafter, petitioner met with the vendors who turned out to be respondent spouses. She made a definite offer to buy the properties to respondent Edilberto Camaisa with the knowledge and conformity of his wife, respondent Norma Camaisa in the presence of the real estate broker. 3 After some bargaining, petitioner and Edilberto agreed upon the purchase price of P1,500,000.00 for the Taytay property and P2,100,000.00 for the Makati property 4 to be paid on installment basis with downpayments of P100,000.00 and P200,000.00, respectively, on April 15, 1992. The balance thereof was to be paid as follows 5 :chanrob1es virtual 1aw library
Taytay Property Makati Property
6th month P200,000.00 P300,000.00
12th month 700,000.00 1,600,000.00
18th month 500,000.00
This agreement was handwritten by petitioner and signed by Edilberto. 6 When petitioner pointed out the conjugal nature of the properties, Edilberto assured her of his wife’s conformity and consent to the sale. 7 The formal typewritten Contracts to Sell were thereafter prepared by petitioner. The following day, Petitioner, the real estate broker and Edilberto met in the latter’s office for the formal signing of the typewritten Contracts to Sell. 8 After Edilberto signed the contracts, petitioner delivered to him two checks, namely, UCPB Check No. 62807 dated April 15, 1992 for P200,000.00 and UCPB Check No. 62808 also dated April 15, 1992 for P100,000.00 in the presence of the real estate broker and an employee in Edilberto’s office. 9 The contracts were given to Edilberto for the formal affixing of his wife’s signature.chanrob1es virtua1 1aw 1ibrary
The following day, petitioner received a call from respondent Norma; requesting a meeting to clarify some provisions of the contracts. 10 To accommodate her queries, Petitioner, accompanied by her lawyer, met with Edilberto and Norma and the real estate broker at Cafe Rizal in Makati. 11 During the meeting, handwritten notations were made on the contracts to sell, so they arranged to incorporate the notations and to meet again for the formal signing of the contracts. 12
When petitioner met again with respondent spouses and the real estate broker at Edilberto’s office for the formal affixing of Norma’s signature, she was surprised when respondent spouses informed her that they were backing out of the agreement because they needed "spot cash" for the full amount of the consideration. 13 Petitioner reminded respondent spouses that the contracts to sell had already been duly perfected and Norma’s refusal to sign the same would unduly prejudice petitioner. Still, Norma refused to sign the contracts prompting petitioner to file a complaint for specific performance and damages against respondent spouses before the Regional Trial Court of Makati, Branch 136 on April 29, 1992, to compel respondent Norma Camaisa to sign the contracts to sell.
A Motion to Dismiss 14 was filed by respondents which was denied by the trial court in its Resolution of July 21, 1992. 15
Respondents then filed their Answer with Compulsory Counterclaim, alleging that it was an agreement between herein petitioner and respondent Edilberto Camaisa that the sale of the subject properties was still subject to the approval and conformity of his wife Norma Camaisa. 16 Thereafter, when Norma refused to give her consent to the sale, her refusal was duly communicated by Edilberto to petitioner. 17 The check issued by petitioner were returned to her by Edilberto and she accepted the same without any objection. 18 Respondent further claimed that the acceptance of the checks returned to petitioner signified her assent to the cancellation of the sale of the subject properties. 19 Respondent Norma denied that she ever participated in the negotiations for the sale of the subject properties and that she gave her consent and conformity to the same. 20
On October 20, 1992, respondent Norma F. Camaisa filed a Motion for Summary Judgment 21 asserting that there is no genuine issue as to any material fact on the basis of the pleadings and admission of the parties considering that the wife’s written consent was not obtained in the contract to sell, the subject conjugal properties belonging to respondents; hence, the contract was null and void.
On April 14, 1993, the trial court rendered a summary judgment dismissing the complaint on the ground that under Art. 124 of the Family Code, the court cannot intervene to authorize the transaction in the absence of the consent of the wife since said wife who refused to give consent had not been shown to be incapacitated. The dispositive portion of the trial court’s decision reads:chanrob1es virtua1 1aw 1ibrary
WHEREFORE, considering these premises, judgment is hereby rendered:chanrob1es virtual 1aw library
1. Dismissing the complaint and ordering the cancellation of the Notice of Lis Pendens by reason of its filing on TCT Nos. (464860) S-8724 and (464861) S-8725 of the Registry of Deeds at Makati and on TCT Nos. 295976 and 295971 of the Registry of Rizal.
2. Ordering plaintiff Thelma A. Jader to pay defendant spouses Norma and Edilberto Camaisa, FIFTY THOUSAND (P50,000.00) as Moral Damages and FIFTY THOUSAND (P50,000.00) as Attorney’s Fees.
Costs against plaintiff. 22
Petitioner, thus, elevated the case to the Court of Appeals. On November 29, 2000, the Court of Appeals affirmed the dismissal by the trial court but deleted the award of P50,000.00 as damages and P50,000.00 as attorney’s fees.
The Court of Appeals explained that the properties subject of the contracts were conjugal properties and as such, the consent of both spouses is necessary to give effect to the sale. Since private respondent Norma Camaisa refused to sign the contracts, the sale was never perfected. In fact, the downpayment was returned by respondent spouses and was accepted by petitioner. The Court of Appeals also stressed that the authority of the court to allow sale or encumbrance of a conjugal property without the consent of the other spouse is applicable only in cases where the said spouse is incapacitated or otherwise unable to participate in the administration of the conjugal property.
Hence, the present recourse assigning the following errors:chanrob1es virtual 1aw library
THE HONORABLE COURT OF APPEALS GRIEVIOUSLY ERRED IN RENDERING SUMMARY JUDGMENT IN DISMISSING THE COMPLAINT ENTIRELY AND ORDERING THE CANCELLATION OF NOTICE OF LIS PENDENS ON THE TITLES OF THE SUBJECT REAL PROPERTIES;
THE HONORABLE COURT OF APPEALS GRIEVIOUSLY ERRED IN FAILING TO CONSIDER THAT THE SALE OF REAL PROPERTIES BY RESPONDENTS TO PETITIONER HAVE ALREADY BEEN PERFECTED, FOR AFTER THE LATTER PAID P300,000.00 DOWNPAYMENT, RESPONDENT MRS. CAMAISA NEVER OBJECTED TO STIPULATIONS WITH RESPECT TO PRICE, OBJECT AND TERMS OF PAYMENT IN THE CONTRACT TO SELL ALREADY SIGNED BY THE PETITIONER MR. CAMAISA AND WITNESSES MARKED AS ANNEX "G" IN THE COMPLAINT EXCEPT, FOR MINOR PROVISIONS ALREADY IMPLIED BY LAW, LIKE EJECTMENT OF TENANTS, SUBDIVISION OF TITLE AND RESCISSION IN CASE OF NONPAYMENT, WHICH PETITIONER READILY AGREED AND ACCEDED TO THEIR INCLUSION;
THE HONORABLE COURT OF APPEALS GRIEVIOUSLY ERRED WHEN IT FAILED TO CONSIDER THAT CONTRACT OF SALE IS CONSENSUAL AND IT IS PERFECTED BY THE MERE CONSENT OF THE PARTIES AND THE APPLICABLE PROVISIONS ARE ARTICLES 1157, 1356, 1357, 1358, 1403, 1405 AND 1475 OF THE CIVIL CODE OF THE PHILIPPINES AND GOVERNED BY THE STATUTE OF FRAUD. 23
The Court does not find error in the decisions of both the trial court and the Court of Appeals.
Petitioner alleges that the trial court erred when it entered a summary judgment in favor of respondent spouses there being a genuine issue of fact. Petitioner maintains that the issue of whether the contracts to sell between petitioner and respondent spouses was perfected is a question of fact necessitating a trial on the merits.
The Court does not agree. A summary judgment is one granted by the court upon motion by a party for an expeditious settlement of a case, there appearing from the pleadings, depositions, admissions and affidavits that there are no important questions or issues of fact involved, and that therefore the moving party is entitled to judgment as a matter of law. 24 A perusal of the pleadings submitted by both parties should that there is no genuine controversy as to the facts involved therein.
Both parties admit that there were negotiations for the sale of four parcels of land between petitioner and respondent spouses; that petitioner and respondent Edilberto Camaisa came to an agreement as to the price and the terms of payment, and a downpayment was paid by petitioner to the latter; and that respondent Norma refused to sign the contracts to sell. The issue thus posed for resolution in the trial court was whether or not the contracts to sell between petitioner and respondent spouses were already perfected such that the latter could no longer back out of the agreement.chanrobles.com.ph : red
The law requires that the disposition of a conjugal property by the husband as administrator in appropriate cases requires the written consent of the wife, otherwise, the disposition is void. Thus, Article 124 of the Family Code provides:chanrob1es virtual 1aw library
Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Emphasis supplied.)
The properties subject of the contracts in this case were conjugal; hence, for the contracts to sell to be effective, the consent of both husband and wife must concur.
Respondent Norma Camaisa admittedly did not give her written consent to the sale. Even granting that respondent Norma actively participated in negotiating for the sale of the subject properties, which she denied, her written consent to the sale is required by law for its validity. Significantly, petitioner herself admits that Norma refused to sign the contracts to sell. Respondent Norma may have been aware of the negotiations for the sale of their conjugal properties. However, being merely aware of a transaction is not consent.25cralaw:red
Finally, petitioner argues that since respondent Norma unjustly refuses to affix her signatures to the contracts to sell, court authorization under Article 124 of the Family Code is warranted.
The argument is bereft of merit. Petitioner is correct insofar as she alleges that if the written consent of the other spouse cannot be obtained or is being withheld, the matter may be brought to court which will give such authority if the same is warranted by the circumstances. However it should be stressed that court authorization under Art. 124 is only resorted to in cases where the spouse who does not give consent is incapacitated. 26
In this case, petitioner failed to allege and prove that respondent Norma was incapacitated to give her consent to the contracts. In the absence of such showing of the wife’s incapacity, court authorization cannot be sought.
Under the foregoing facts, the motion for summary judgment was proper considering that there was no genuine issue as to any material fact. The only issue to be resolved by the trial court was whether the contract to sell involving conjugal properties was valid without the written consent of the wife.
WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals dated November 29, 2000 in CA-G.R. CV No 43421 AFFIRMED.chanrob1es virtua1 1aw 1ibrary
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
The present controversy had its beginning when petitioner Thelma A. Jader-Manalo allegedly came across an advertisement placed by respondents, the Spouses Norma Fernandez C. Camaisa and Edilberto Camaisa, in the Classified Ads Section of the newspaper BULLETIN TODAY in its April, 1992 issue, for the newspaper BULLETIN TODAY in its April, 1992 issue, for the sale of their ten-door apartment in Makati, as well as that in Taytay, Rizal.chanrob1es virtua1 1aw 1ibrary
As narrated by petitioner in her complaint filed with the Regional Trial Court of Makati, Metro Manila, she was interested in buying the two properties so she negotiated for the purchase through a real estate broker, Mr. Proceso Ereno, authorized by respondent spouses. 1 Petitioner made a visual inspection of the said lots with the real estate broker and was shown the tax declarations, real property tax payment receipts, location plans, and vicinity maps relating to the properties. 2 Thereafter, petitioner met with the vendors who turned out to be respondent spouses. She made a definite offer to buy the properties to respondent Edilberto Camaisa with the knowledge and conformity of his wife, respondent Norma Camaisa in the presence of the real estate broker. 3 After some bargaining, petitioner and Edilberto agreed upon the purchase price of P1,500,000.00 for the Taytay property and P2,100,000.00 for the Makati property 4 to be paid on installment basis with downpayments of P100,000.00 and P200,000.00, respectively, on April 15, 1992. The balance thereof was to be paid as follows 5 :chanrob1es virtual 1aw library
Taytay Property Makati Property
6th month P200,000.00 P300,000.00
12th month 700,000.00 1,600,000.00
18th month 500,000.00
This agreement was handwritten by petitioner and signed by Edilberto. 6 When petitioner pointed out the conjugal nature of the properties, Edilberto assured her of his wife’s conformity and consent to the sale. 7 The formal typewritten Contracts to Sell were thereafter prepared by petitioner. The following day, Petitioner, the real estate broker and Edilberto met in the latter’s office for the formal signing of the typewritten Contracts to Sell. 8 After Edilberto signed the contracts, petitioner delivered to him two checks, namely, UCPB Check No. 62807 dated April 15, 1992 for P200,000.00 and UCPB Check No. 62808 also dated April 15, 1992 for P100,000.00 in the presence of the real estate broker and an employee in Edilberto’s office. 9 The contracts were given to Edilberto for the formal affixing of his wife’s signature.chanrob1es virtua1 1aw 1ibrary
The following day, petitioner received a call from respondent Norma; requesting a meeting to clarify some provisions of the contracts. 10 To accommodate her queries, Petitioner, accompanied by her lawyer, met with Edilberto and Norma and the real estate broker at Cafe Rizal in Makati. 11 During the meeting, handwritten notations were made on the contracts to sell, so they arranged to incorporate the notations and to meet again for the formal signing of the contracts. 12
When petitioner met again with respondent spouses and the real estate broker at Edilberto’s office for the formal affixing of Norma’s signature, she was surprised when respondent spouses informed her that they were backing out of the agreement because they needed "spot cash" for the full amount of the consideration. 13 Petitioner reminded respondent spouses that the contracts to sell had already been duly perfected and Norma’s refusal to sign the same would unduly prejudice petitioner. Still, Norma refused to sign the contracts prompting petitioner to file a complaint for specific performance and damages against respondent spouses before the Regional Trial Court of Makati, Branch 136 on April 29, 1992, to compel respondent Norma Camaisa to sign the contracts to sell.
A Motion to Dismiss 14 was filed by respondents which was denied by the trial court in its Resolution of July 21, 1992. 15
Respondents then filed their Answer with Compulsory Counterclaim, alleging that it was an agreement between herein petitioner and respondent Edilberto Camaisa that the sale of the subject properties was still subject to the approval and conformity of his wife Norma Camaisa. 16 Thereafter, when Norma refused to give her consent to the sale, her refusal was duly communicated by Edilberto to petitioner. 17 The check issued by petitioner were returned to her by Edilberto and she accepted the same without any objection. 18 Respondent further claimed that the acceptance of the checks returned to petitioner signified her assent to the cancellation of the sale of the subject properties. 19 Respondent Norma denied that she ever participated in the negotiations for the sale of the subject properties and that she gave her consent and conformity to the same. 20
On October 20, 1992, respondent Norma F. Camaisa filed a Motion for Summary Judgment 21 asserting that there is no genuine issue as to any material fact on the basis of the pleadings and admission of the parties considering that the wife’s written consent was not obtained in the contract to sell, the subject conjugal properties belonging to respondents; hence, the contract was null and void.
On April 14, 1993, the trial court rendered a summary judgment dismissing the complaint on the ground that under Art. 124 of the Family Code, the court cannot intervene to authorize the transaction in the absence of the consent of the wife since said wife who refused to give consent had not been shown to be incapacitated. The dispositive portion of the trial court’s decision reads:chanrob1es virtua1 1aw 1ibrary
WHEREFORE, considering these premises, judgment is hereby rendered:chanrob1es virtual 1aw library
1. Dismissing the complaint and ordering the cancellation of the Notice of Lis Pendens by reason of its filing on TCT Nos. (464860) S-8724 and (464861) S-8725 of the Registry of Deeds at Makati and on TCT Nos. 295976 and 295971 of the Registry of Rizal.
2. Ordering plaintiff Thelma A. Jader to pay defendant spouses Norma and Edilberto Camaisa, FIFTY THOUSAND (P50,000.00) as Moral Damages and FIFTY THOUSAND (P50,000.00) as Attorney’s Fees.
Costs against plaintiff. 22
Petitioner, thus, elevated the case to the Court of Appeals. On November 29, 2000, the Court of Appeals affirmed the dismissal by the trial court but deleted the award of P50,000.00 as damages and P50,000.00 as attorney’s fees.
The Court of Appeals explained that the properties subject of the contracts were conjugal properties and as such, the consent of both spouses is necessary to give effect to the sale. Since private respondent Norma Camaisa refused to sign the contracts, the sale was never perfected. In fact, the downpayment was returned by respondent spouses and was accepted by petitioner. The Court of Appeals also stressed that the authority of the court to allow sale or encumbrance of a conjugal property without the consent of the other spouse is applicable only in cases where the said spouse is incapacitated or otherwise unable to participate in the administration of the conjugal property.
Hence, the present recourse assigning the following errors:chanrob1es virtual 1aw library
THE HONORABLE COURT OF APPEALS GRIEVIOUSLY ERRED IN RENDERING SUMMARY JUDGMENT IN DISMISSING THE COMPLAINT ENTIRELY AND ORDERING THE CANCELLATION OF NOTICE OF LIS PENDENS ON THE TITLES OF THE SUBJECT REAL PROPERTIES;
THE HONORABLE COURT OF APPEALS GRIEVIOUSLY ERRED IN FAILING TO CONSIDER THAT THE SALE OF REAL PROPERTIES BY RESPONDENTS TO PETITIONER HAVE ALREADY BEEN PERFECTED, FOR AFTER THE LATTER PAID P300,000.00 DOWNPAYMENT, RESPONDENT MRS. CAMAISA NEVER OBJECTED TO STIPULATIONS WITH RESPECT TO PRICE, OBJECT AND TERMS OF PAYMENT IN THE CONTRACT TO SELL ALREADY SIGNED BY THE PETITIONER MR. CAMAISA AND WITNESSES MARKED AS ANNEX "G" IN THE COMPLAINT EXCEPT, FOR MINOR PROVISIONS ALREADY IMPLIED BY LAW, LIKE EJECTMENT OF TENANTS, SUBDIVISION OF TITLE AND RESCISSION IN CASE OF NONPAYMENT, WHICH PETITIONER READILY AGREED AND ACCEDED TO THEIR INCLUSION;
THE HONORABLE COURT OF APPEALS GRIEVIOUSLY ERRED WHEN IT FAILED TO CONSIDER THAT CONTRACT OF SALE IS CONSENSUAL AND IT IS PERFECTED BY THE MERE CONSENT OF THE PARTIES AND THE APPLICABLE PROVISIONS ARE ARTICLES 1157, 1356, 1357, 1358, 1403, 1405 AND 1475 OF THE CIVIL CODE OF THE PHILIPPINES AND GOVERNED BY THE STATUTE OF FRAUD. 23
The Court does not find error in the decisions of both the trial court and the Court of Appeals.
Petitioner alleges that the trial court erred when it entered a summary judgment in favor of respondent spouses there being a genuine issue of fact. Petitioner maintains that the issue of whether the contracts to sell between petitioner and respondent spouses was perfected is a question of fact necessitating a trial on the merits.
The Court does not agree. A summary judgment is one granted by the court upon motion by a party for an expeditious settlement of a case, there appearing from the pleadings, depositions, admissions and affidavits that there are no important questions or issues of fact involved, and that therefore the moving party is entitled to judgment as a matter of law. 24 A perusal of the pleadings submitted by both parties should that there is no genuine controversy as to the facts involved therein.
Both parties admit that there were negotiations for the sale of four parcels of land between petitioner and respondent spouses; that petitioner and respondent Edilberto Camaisa came to an agreement as to the price and the terms of payment, and a downpayment was paid by petitioner to the latter; and that respondent Norma refused to sign the contracts to sell. The issue thus posed for resolution in the trial court was whether or not the contracts to sell between petitioner and respondent spouses were already perfected such that the latter could no longer back out of the agreement.chanrobles.com.ph : red
The law requires that the disposition of a conjugal property by the husband as administrator in appropriate cases requires the written consent of the wife, otherwise, the disposition is void. Thus, Article 124 of the Family Code provides:chanrob1es virtual 1aw library
Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Emphasis supplied.)
The properties subject of the contracts in this case were conjugal; hence, for the contracts to sell to be effective, the consent of both husband and wife must concur.
Respondent Norma Camaisa admittedly did not give her written consent to the sale. Even granting that respondent Norma actively participated in negotiating for the sale of the subject properties, which she denied, her written consent to the sale is required by law for its validity. Significantly, petitioner herself admits that Norma refused to sign the contracts to sell. Respondent Norma may have been aware of the negotiations for the sale of their conjugal properties. However, being merely aware of a transaction is not consent.25cralaw:red
Finally, petitioner argues that since respondent Norma unjustly refuses to affix her signatures to the contracts to sell, court authorization under Article 124 of the Family Code is warranted.
The argument is bereft of merit. Petitioner is correct insofar as she alleges that if the written consent of the other spouse cannot be obtained or is being withheld, the matter may be brought to court which will give such authority if the same is warranted by the circumstances. However it should be stressed that court authorization under Art. 124 is only resorted to in cases where the spouse who does not give consent is incapacitated. 26
In this case, petitioner failed to allege and prove that respondent Norma was incapacitated to give her consent to the contracts. In the absence of such showing of the wife’s incapacity, court authorization cannot be sought.
Under the foregoing facts, the motion for summary judgment was proper considering that there was no genuine issue as to any material fact. The only issue to be resolved by the trial court was whether the contract to sell involving conjugal properties was valid without the written consent of the wife.
WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals dated November 29, 2000 in CA-G.R. CV No 43421 AFFIRMED.chanrob1es virtua1 1aw 1ibrary
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
Endnotes:
1. Paragraph IV of Complaint; Rollo, p. 61
2. Paragraph V of Complaint; id.
3. Paragraph VI of Complaint; id.
4. Paragraph VII of Complaint; id., at 62.
5. Id.
6. The handwritten agreement was attached as Annex "E" to the Complaint; Rollo, pp. 80-83.
7. Supra, Note 4.
8. Paragraph IX of Complaint; Rollo, p. 63.
9. Photocopies of these checks were attached as Annex "H" to the Complaint; Rollo, P.D. 90-92.
10. Paragraph XI of Complaint; Rollo, pp. 63-64.
11. Paragraph XII of Complaint; id.
12. Paragraph XIII of Complaint; id.
13. Paragraph XIX: id, pp. 64-65.
14. Rollo, pp. 107-1 10
15. Id., at 143.
16. Paragraph XI of Answer with Compulsary Counterclaim, id., p. 95.
17. Paragraph XIII id.
18. id.
19. id.
20. Paragraphs, 2 and 3 of the Answer with Compulsary Counterclaim, id. at 93-94.
21. Rollo, p. 186.
22. Annex "Q" p. 3; Rollo, pp. 224-225.
23. Rollo, p. 23.
24. 271 SCRA 36 (1997).
25. Tinitigan v. Tinitigan 100 SCRA 619 (1980).
26. Commentaries and Jurisprudence on the Civil Code of the Philippines, Arturo Tolentino, Vol. 1, p. 461 citing the case of Nicolas v. Court of Appeals, 154 SCRA 635 [1987] which held that:jgc:chanrobles.com.ph
". . . the very conspicuous absence of the wife’s conforme to such disposition of the ganancial property, there being no showing that Lourdes Manuel, whom respondent Madlangsakay married in 1927, is legally incapacitated — renders the alleged sale void ab initio because it is in contravention of the mandatory requirement in Article 166 of the Civil Code. This doctrine is too well-settled in our jurisprudence to require further elucidation."cralaw virtua1aw library
See also p. 392 of Tolentino’s Commentaries relating to an identical provision, Art. 96 of the Civil Code, on community property. Tolentino writes:jgc:chanrobles.com.ph
"As a result of this joint ownership, neither spouse may alienate or encumber any common property without the written consent of the other, or, if the other spouse is incapacitated, authorization of the court."
