[ G.R. No.

L-4623, October 24, 1952 ]

SIXTO TALAG, DEMANDANTE-APELANTE,

CONTRA,

IRINEO TANKENGCO Y OTRA, DEMANDADOS-APELADOS.

Being Felisa Bautista married in second nuptials with Vicente Gregorio, sold to the
plaintiff, without marital authorization, on January 23, 1929, for P500.00, the land
described in the lawsuit, which was marital property of her and her first husband Basilio
Tankengco Fiste had left, in addition to his widow, five children named Gregoria, Jose,
Felix, Leonardo and Irineo Tankengco. Gregoria and Felix have already died, leaving
children the first. By this land the plaintiff promoted several lawsuits, as if the litigation
was a good entertainment:

1. On September 9, 1930, the plaintiff filed a claim against Genaro Bautista and Gregoria
Tankengco, civil case No. 4169 of the Court of First Instance of Bulacan, and on November
26, 1930, he requested the dismissal of the claim based on in which the deed of sale
granted in his favor by Felisa Bautista, without marital authorization, was null, reserving
the right to present any action later that he deems appropriate.

2. On November 19, 1940, the plaintiff filed an action against Irineo Tankengco, civil case
No. 252 of the Magistrate's Court of Obando, Bulacan, which was overturned on the
grounds that the plaintiff had already requested the dismissal of the case. his claim in
case No. 4169, based on the nullity of the deed of sale.

3. At the complainant's request, Felisa Bautista was charged with the crime of fraud in
the Court of First Instance of Manila, criminal case No. 41520, and in February 1932 the
defendant was acquitted.

4. The claim in the present claim action was filed by the plaintiff on October 22, 1942,
Irineo Tankengco being arraigned only, but then filed an amended lawsuit including Felisa
Bautista as another defendant, and asked to be declared owner of the land

In response the defendant Irineo Tankengco presents, among others, the following
defense: (a) that the land in question was the absolute property of his late father Basilio
Tankengco; and (b) that Felisa Bautista had not been authorized by her second husband
or by the heirs of Basilio Tankengco, her late husband, to sell the land.
 On December 16, 1943 the parties submitted an agreement of facts, and based on
this agreement and the statement of the plaintiff, Hon. Judge Roldan dictated decision
whose operative part is as follows: "In virtue of the foregoing, the Court declares the
deramanda owner of the land in question and convicts Felisa Bautista to return to the
deramandante half of the price paid for it to Felisa Bautista, or P250.00, plus the legal
interests from the granting of the deed of sale Exhibito A. that is, on January 23, 1929.
As the land in question is not divided and therefore it can not be decided which half must
belong to the children of Basilio Tankengco, it is left free to the owners of both halves
the exercise of any corresponding action for the determination of the portion that must
belong to each one. "

By a motion of reconsideration and new hearing presented by the deputies, which the
plaintiff opposed, the Hon. Judge Pecson dictated on March 3, 1947 a resolution providing
for the amendment of the operative part of the decision with the following: "WHEREFORE,
the court hereby absolves the defendants from the complaint, and this case is
consequently dismissed, with costs against the plaintiff. "
On March 19, 1947 the plaintiff filed a motion for reconsideration and a new hearing
of many pages which, considered together with the reasoned opposition of the deputies
and the resignation of attorney Osorio to present the transcript of the claimant's
statement, was rejected by the judge. Hon. Judge. Mojica Judge.
On May 8 of the last year the deramandante presents another motion of
reconsideration and new hearing that was denied by Hon. Judge Pecson on June 16,
1947. On June 30, 1947, the plaintiff filed his notice of appeal.
On August 31, 1950, the Court of Appeal referred the case to this Court, on the
grounds that there was no dispute as to the findings of fact of the decision appealed. The
plaintiff-appellant maintains that the Court erro (a) in reconsidering the decision of April
21, 1944, amending its operative part by means of its order of March 3, 1947, and (b) by
denying its two reasons for reconsideration .
The Court dismissed the application in its order of March because it considered null
and void the sale made by Felisa Bautista without the consent of his deceased Vicente
Gregorio, based on the provisions of Articles 61 and 1387 of the Civil Code which read as
follows: "Art. 61. Nor can a woman, without a license or power of her husband, acquire
for an onerous or lucrative title, dispose of her property, or obligate herself, except in the
cases and with the limitations established by law."
Article 1387, before being amended by Law No. 3922 on September 12, 1932, after
having already granted the litigation sale deed, was the following tenor:
 "Art. 1387. The woman can not, without her husband's license, alienate, encumber or
mortgage the property of paraphernalia, nor appear in court to litigate over them, unless
it is judicially authorized for that purpose."

Manresa, when dealing with the sale without consent of the husband, says:

"The lack of marital leave does not make the act null, but of possible annulment, at
the request of the husband or his heirs, and for that reason today the acts granted by
the woman without such requirement are admitted to inscription, stating that
circumstance, as we did note at the end of the commentary on article 65, second edition
of this work (Resolutions of November 23, 1392, August 22, 1S94 and March 31, 1898)
"9 Manresa, 3rd ed. 531

The Supreme Court of Spain in repeated decisions declares the cancellation of the
sale without marital authorization.

"Article 62 declares null and void the acts performed by the woman without her
husband's license in cases where it must be provided, but according to the one we
examined, and as was logical and natural given the reason of the precept, only the
husband or his Heirs can claim the nullity of these acts, which is what the Supreme Court
deduced, applying the law of civil marriage and previous laws that accepted the same
doctrine in their judgments of June 27, 1366, January 30, 1372 and November 14. of
1362, that the acts celebrated by the woman without her husband's license are not null,
but of possible annulment, for opposing the husband or his heirs, because the legal
prohibition has not been established in favor of third persons, but for different purpose
and object, that is, in favor of the husband, to whom the law has wished to avoid the
damages and damages that could be inflicted on the conjugal society, of which he is the
head. " (1 Manresa, 6th ed., 409-410)

and this Court held the same criterion in the following decisions:

"Although, according to customary law, the deed granted by a married woman is not
simply voidable, but absolutely null, perhaps it would be more accurate to affirm that, in
civil law, the deed granted by a married woman is voidable at the option of the husband
or of his heirs. " (Carratala contpa Samson, 43 Jur, Fil., 736)

"x x x the prohibition contained in Article 1387 does not convert the contract, in case
of non-compliance with the requirement, in null ab initio but in merely voidable, and the
action that in such case is born, is exclusively the responsibility of the husband or his
heirs." (Peoples Bank & Trust Go. Vs. Registrar of Titles of Manila, 60 Jur. Fil., 173)

As no evidence was presented that the land subject of the litigation was the exclusive
property of the late Basilic Tankengco, the presumption is that it was conjugal (Art. 1407,
Spanish Civil Code). Because it constituted a good property, Felisa Bautista could not
dispose of the half that belonged to her late husband because that half, at the time of
his death, was transmitted, by the Ministry of the Law, to his sons Gregoria, Jose, Felix,
Leonardo and Irineo. As for the other half, which belongs to her as her participation, she
could not sell it without the authorization of her husband Vicente Gregorio. This does not
intervene, however, in the matter, nor does it claim the cancellation of the sale; but Irineo
Tankengco, son of the seller, in his answer presented in the present case, challenges the
validity of said sale for lack of marital authorization, defense consistent with the defenses
presented in the two previous cases.

The sale granted by Felisa Bautista was not null per se; it may, however, under the
circumstances of the present case, be annulled; but, as a result, Felisa Bautista must
return to the buyer the P500.00 that he received for the land (Article 1303, Civil Code).
With this conclusion, the second error attributed to the lower court is resolved.

The sale is declared void, Felisa Bautista is ordered to return to the plaintiff the
amount of P500.00 with its legal interest from the date of the sale contract until the
delivery, without pronouncement on costs.

Paras, Bengzon, Padilla, Montemayor, Jugo, Bautista Angelo, and Labrador, JJ., concur.

Note from book of Paras BOOK IV Page 826

Sale of Conjugal Properties (Art. 1409)
The sale of conjugal properties cannot be made by the surviving spouse without
the formalities established for the sale of property of deceased persons, and such sale is
VOID as to the share of the deceased spouse. (Ocampo v. Potenciano, L-2263, May 30,
1951 and Talag v. Tankengco, 92 Phil. 1066). The vendee becomes a trustee of the share
of the latter for the benefi t of his heirs, the cestui que trustent. (See Art. 1456, Civil Code
and Cuison, et al. v. Fernandez, et al., L-11764, Jan. 31, 1959).
-gelo