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[ G.R. No. 125625. July 19, 1999]

FELIMON VARONA vs. CA, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 19, 1999.

G.R. No. 125625 (Felimon Varona, petitioner vs. Court of Appeals and Cresencia Ong, respondents.)

This resolves petitioner's motions for reconsideration of the Resolution of this Court, dated October 7, 1996, denying the petition for review of the decision of the Court of Appeals which affirmed the decision of the trial court, ordering petitioner:

1. To execute the deed of transfer of the properties in favor of the plaintiff;

2. To deliver the possession of the properties subject matter of the complaint to the plaintiff;

3. To pay the plaintiff the sum of P5,000.00 as attorney's fees and incidental expenses; and

4. To pay the cost.

Petitioner disagrees with the ruling of this court finding him in estoppel, reiterating the arguments contained in his petition that subject properties, being conjugal in character, cannot be bound by an agreement to which the consent of the other spouse has not been secured.

It bears stressing that petitioner is estopped from invoking the nullity of subject agreement after he had freely and voluntarily entered thereinto and after admitting its authenticity and genuineness. He cannot be allowed to repudiate his own act and representation to the prejudice of the private respondents who relied thereupon. Moreover, the proper party to assail the validity of the said agreement is the wife of petitioner whose prior consent thereto has not been obtained pursuant to Article 173 of the Civil Code,1 [Art. 173. The wife may, during the marriage and within ten years from the transaction questioned, ask the courts for the annulment of any contract of the husband entered into without her consent, when such consent, when such consent is required, or any act or contract of the husband which tends to defraud her or impair her interest in the conjugal property. Should the wife fail to exercise this right, she or her heirs, after the dissolution of the marriage, may demand the value of property fraudulently alienated by the husband.]

Petitioner also seeks reconsideration of the ruling of the Court - that he cannot be extended the benefit of exclusion; theorizing that as guarantor, he cannot be compelled to pay unless the creditor has exhausted all the properties of, and exerted all the legal remedies against the debtor Jenkins, which step the private respondent allegedly failed to take.

Again, petitioner's contention is untenable. The benefit of exclusion cannot be availed of by him because he failed to set it up against the private respondent when the latter demanded payment and point out sufficient properties of the debtors within the Philippines, available to cover the debt. Also, exclusion cannot take place in the present case since the debtor spouses Jenkins have already left the country and cannot therefore be sued here.

As regards attorney's fees, suffice it to say that the Court has already ruled on the issue in favor of the petitioner in the Resolution sought to be reconsidered.

WHEREFORE, the motion for reconsideration under consideration is hereby DENIED with finality.

SO ORDERED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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