G.R. No. 182760 April 10, 2013 Republic of the Philippines vs. Narceda FACTS: Robert P.

Narceda (respondent) married Marina Narceda on July 22, 1987, sometime in 1994, Marina went to Singapore, never returned since. There was never any communication between them. He tried to look for her, but he could not find her. Several years after she left, one of their town mates came home from Singapore and told him that the last time she saw his wife, the latter was already living with a Singaporean husband. In view of her absence and his desire to remarry, respondent filed a Petition for a judicial declaration of the presumptive death and/or absence in the RTC. The RTC granted respondents Petition, after which, through the Office of the Solicitor General (OSG), appealed the foregoing Decision to the CA. According to petitioner, respondent failed to conduct a search for his missing wife with the diligence required by law and enough to give rise to a well-founded belief that she was dead. CA dismissed the appeal on the ground of lack of jurisdiction. Contending that the hearing of a petition for the declaration of presumptive death is a summary proceeding under the Family Code. Article 247 of the Family Code provides that the judgment of the trial court in summary court proceedings shall be immediately final and executor. ISSUE: Whether or not the decision for the declaration of presumptive death of Marina has become final and executor. RULING: The Court affirmed the decision of the Court of Appeals. As pointed out by the CA, since the resolution of a petition for the declaration of presumptive death requires a summary proceeding, the procedural rules to be followed are those enumerated in Title XI of the Family Code. Articles 238, 247, and 253 thereof read: Art. 238. Until modified by the Supreme Court, the procedural rules provided for in this Title shall apply as regards separation in fact between husband and wife, abandonment by one of the other, and incidents involving parental authority. xxxx Art. 247. The judgment of the court shall be immediately final and executory. xxxx ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. Hence, by express provision of Article 247, declaration of presumptive death is immediately final and executory upon notice to the parties there is no reglementary period within

which to perfect an appeal and the appellate court acquires no jurisdiction to review the foregoing judgment. It should be remember that the right to appeal is not a natural right nor is it a part of due process, but it is merely a statutory privilege. This does not mean that the aggrieve party has no longer any remedy he or she may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. Possible Bar Question: A is married to B, B when to China and never came back, rumors said she is already married to a Chinese Citizen. Because of this A filed for declaration of presumptive death for purpose of remarry through the proceeding provided by the Family Code. The RTC ruled in As favor, before the expiry of the 15 day period, the Solicitor General filed an ordinary appeal with the Court of Appeal contending that A failed to conduct a search for his missing wife with the diligence required by law and enough to give rise to a well-founded belief that B was dead. If, you were the assigned justice of the Court of Appeals, how will rule on this.

G.R. No. 185064 January 16, 2012 Sps. De Mesa v. Sps. Acero FACTS: The Sps. De Mesa jointly purchased property on April 17, 1984 while they were still merely cohabiting before their marriage. A house was later constructed on the subject property, which they thereafter occupied as their family home after they got married sometime in January 1987. Thereafter Sps. De Mesa obtained a loan from Sps. Acero which was secured by a mortgage over the subject property. As payment, Araceli issued a check, but was dishonoured by the bank. A complaint for violation of Batas Pambansa Blg. 22 was filed against Sps. De Mesa in the RTC. The RTC acquitted Sps. De Mesa but was ordered to pay Sps. Acero the amount of P100,000.00. On March 15, 1993, a writ of execution was issued and the sheriff levied upon the subject property. On March 9, 1994, the subject property was sold on public auction; Sps. Acero was the highest bidder and the corresponding certificate of sale was issued to him. Sps. Acero leased the subject property to Sps. De Mesa for a monthly rent, however, they defaulted. Meanwhile, a Final Deed of Sale over the subject property was issued to Sps Acero and on April 4, 1995, the Register of Deeds in the name of Sps. De Mesa was cancelled and a new deed was issued in Sps Aceros favour. Unable to collect the aforementioned rentals due, Sps. Acero filed a complaint for ejectment. In their defense, the Sps De Mesa claimed that Sps. Acero have no right over the subject property. The Sps. De Mesa denies that they were mere lessors; on the contrary, they were the lawful owners of the subject property and, thus cannot be evicted therefrom. They asserted that the subject property is a family home, which is exempt from execution under

Article 153 of Family Code and, thus, could not have been validly levied upon for purposes of satisfying the March 15, 1993 writ of execution.

ISSUE: Whether or not the subject property is considered a Family Home. Whether or not the family home of the Sps. De Mesa is exempted from execution. RULING: The Court ruled that the subject property is a Family Home. The foregoing rules on constitution of family homes, for purposes of exemption from execution, could be summarized as follows: First, family residences constructed before the effectivity of the Family Code or before August 3, 1988 must be constituted as a family home either judicially or extrajudicially in accordance with the provisions of the Civil Code in order to be exempt from execution; Second, family residences constructed after the effectivity of the Family Code on August 3, 1988 are automatically deemed to be family homes and thus exempt from execution from the time it was constituted and lasts as long as any of its beneficiaries actually resides therein; Third, family residences which were not judicially or extrajudicially constituted as a family home prior to the effectivity of the Family Code, but were existing thereafter, are considered as family homes by operation of law and are prospectively entitled to the benefits accorded to a family home under the Family Code. In this case, the subject property became a family residence sometime in January 1987. There was no showing, however, that the same was judicially or extrajudicially constituted as a family home in accordance with the provisions of the Civil Code. Still, when the Family Code took effect on August 3, 1988, the subject property became a family home by operation of law and was thus prospectively exempt from execution. The petitioners were thus correct in asserting that the subject property was a family home. Despite the fact that the subject property is a Family Home it does not mean it is automatically exempt from execution. While it is true that the family home is constituted on a house and lot from the time it is occupied as a family residence and is exempt from execution or forced sale under Article 153 of the Family Code, such claim for exemption should be set up and proved to the Sheriff before the sale of the property at public auction. It is a personal privilege

granted to the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself before the sale of the property at public auction. Failure to do so would estop the party from later claiming the exemption. It is not sufficient that the person claiming exemption merely alleges that such property is a family home. This claim for exemption must be set up and proved to the Sheriff. In this case, Sps. De Mesa allowed a considerable time to lapse before claiming that the subject property is a family home and its exemption from execution and forced sale under the Family Code. They allowed the subject property to be levied upon and the public sale to proceed. One (1) year lapsed from the time the subject property was sold until a Final Deed of Sale was issued to the Sps. Acero and, later, the original title was cancelled and a new one issued under Sps. Aceros name, still, the Sps. De Mesa remained silent. In fact, it was only after the Sps. Acero filed a complaint for unlawful detainer, or approximately four (4) years from the time of the auction sale, that Sps. De Mesa claimed that the subject property is a family home, thus, exempt from execution. Hence, for all intents and purposes, Sps. De Mesas negligence or omission to assert their right within a reasonable time gives rise to the presumption that they have abandoned, waived or declined to assert it.

Possible Bar Question: 1. A and B through their joint effort acquired a house and lot at Maka-saag St, Brgy. Makalipong on January 7, 1984 through a loan secured by the subject property. They transferred to the said house after they married each other on May 5, 1984. On June 13, 1988, due to failure to pay their loan, the subject property by virtue of a writ of execution was schedule for a public auction. A and B opposed the sheriff, contending that the subject property was a family home. Is the subject property a family home? 2. A and B through their joint effort acquired a house and lot at Maka-saag St, Brgy. Makalipong on January 7, 1986 through a loan secured by the subject property. They transferred to the said house after they married each other on May 5, 1987. On June 13, 1990, due to failure to pay their loan, the subject property by virtue of a writ of execution was schedule for a public auction. A and B opposed the sheriff, contending that the subject property was a family home. Is the subject property a family home? 3. Is the family home exemption from execution and forced sale absolute?