CASE DIGEST ALBINO JOSEF v. OTELIO SANTOS, G.R. No. 165060 ,November 27, 2008

CASE DIGEST ALBINO JOSEF v. OTELIO SANTOS, 

G.R. No. 165060 November 27, 2008

FACTS: Petitioner Albino Josef was the defendant in Civil Case No. 95-110-MK, which is a case for collection of sum of money filed by respondent herein.After trial, the Regional Trial Court  found petitioner liable to respondent in the amount of P404,836.50 with interest at 12% per annum reckoned from January 9, 1995 until full payment. On August 29, 2003, certain personal properties subject of the writ of execution were auctioned off. Thereafter, a real property located at Marikina City  was sold on October 28, 2003 by way of public auction to fully satisfy the judgment credit. Respondent emerged as the winning bidder and a Certificate of Sale^[ dated November 6, 2003 was issued in his favor. On November 5, 2003, petitioner filed an original petition for certiorari with the Court of Appeals, questioning the sheriffs levy and sale of the abovementioned personal and real properties. Petitioner claimed that the personal properties did not belong to him but to his children; and that the real property covered by TCT No. N-105280 was his family home thus exempt from execution.

ISSUES: 

I.

WHETHER OR NOT THE LEVY AND SALE OF THE PERSONAL BELONGINGS OF THE PETITIONERS CHILDREN AS WELL AS THE ATTACHMENT AND SALE ON PUBLIC AUCTION OF HIS FAMILY HOME TO SATISFY THE JUDGMENT AWARD IN FAVOR OF RESPONDENT IS LEGAL.

II.

WHETHER OR NOT THE DISMISSAL OF THE PETITIONERS PETITION FOR CERTIORARI BY THE HONORABLE COURT OF APPEALS IS JUSTIFIED UNDER THE CIRCUMSTANCES.

Held: The petition is meritorious. The above Order did not resolve nor take into account petitioners allegations in his Opposition, which are material and relevant in the resolution of the motion for issuance of a writ of execution. This is serious error on the part of the trial court. It should have made an earnest determination of the truth to petitioners claim that the house and lot in which he and his children resided was their duly constituted family home. Since it did not, its July 16, 2003 Order is thus null and void. Where a judgment or judicial order is void it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head.

The family home is a real right which is gratuitous, inalienable and free from attachment, constituted over the dwelling place and the land on which it is situated, which confers upon a particular family the right to enjoy such properties, which must remain with the person constituting it and his heirs. It cannot be seized by creditors except in certain special cases.

Upon being apprised that the property subject of execution allegedly constitutes petitioners family home, the trial court should have observed the following procedure:

1. Determine if petitioners obligation to respondent falls under either of the exceptions under Article 155 of the Family Code;

2. Make an inquiry into the veracity of petitioners claim that the property was his family home; conduct an ocular inspection of the premises; an examination of the title; an interview of members of the community where the alleged family home is located, in order to determine if petitioner actually resided within the premises of the claimed family home; order a submission of photographs of the premises, depositions, and/or affidavits of proper individuals/parties; or a solemn examination of the petitioner, his children and other witnesses. At the same time, the respondent is given the opportunity to cross-examine and present evidence to the contrary;

3. If the property is accordingly found to constitute petitioners family home, the court should determine:

a) if the obligation sued upon was contracted or incurred prior to, or after, the effectivity of the Family Code;

 b) if petitioners spouse is still alive, as well as if there are other beneficiaries of the family home;

 c) if the petitioner has more than one residence for the purpose of determining which of them, if any, is his family home; and

 d) its actual location and value, for the purpose of applying the provisions of Articles 157 and 160 of the Family Code.

The family home is the dwelling place of a person and his family, a sacred symbol of family love and repository of cherished memories that last during ones lifetime. It is the sanctuary of that union which the law declares and protects as a sacred institution; and likewise a shelter for the fruits of that union. It is where both can seek refuge and strengthen the tie that binds them together and which ultimately forms the moral fabric of our nation. The protection of the family home is just as necessary in the preservation of the family as a basic social institution, and since no custom, practice or agreement destructive of the family shall be recognized or given effect, the trial courts failure to observe the proper procedures to determine the veracity of petitioners allegations, is unjustified.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The November 17, 2003 and May 7, 2004 Resolutions of the Court of Appeals in CA-G.R. SP No. 80315 are REVERSED and SET ASIDE. The July 16, 2003 Order of the Regional Trial Court of Marikina City, Branch 272 in Civil Case No. 95-110-MK, as well as the writ or writs of execution thus issued in said case, are hereby DECLARED VOID, and all acts proceeding therefrom and any title obtained by virtue thereof are likewise DECLARED VOID.

The trial court is hereby DIRECTED (1) to conduct a solemn inquiry into the nature of the real property with a view toward determining whether the same is petitioner Albino Josefs family home, and if so, apply the pertinent provisions of the Family Code