Pelayo v. Perez (2005)

Pelayo vs. Perez

G.R. No. 141323

Ponente: Austria-Martinez

Facts:

David Pelayo (petitioner) through a Deed of Absolute Sale executed a deed of sale and transferred to Melki Perez (respondent) two parcel of agricultural lands. Loreza Pelayo and another one whose signature is eligible witnesses such execution of deed. Loreza signed only on the third page in the space provided for witnesses, as such, Perez application was denied. Perez asked Loreza to sign on the first and should pages of the deed of sale but she refused. He then filed a complaint for specific performance against the Pelayo spouses. The spouses moved to dismiss the complaint on the ground for lack of marital consent as provided by art166 of the Civil Code. Petitioners argue that the CA erred in ruling that there was consideration for the sale.

Issue: Whether or not the deed of sale was null and void for lack of marital consent.

Held:

Lorenzana did nothing to seek the nullification of the assailed contract. Sale is a consensual contract that is perfected by mere consent, which may either be express or implied. A wife’s consent to the husband’s disposition of the conjugal property does not always have to be explicit. So long as the acts of the wife show that such consent or approval was indeed given.  

Under Art 173, in relation to Art166, both of the NCC, W/C was still in effect on January 11, 1988 when the deed in question was executed, the lack of marital consent to the disposition of conjugal property does not make the contract viol of initio but Merely violable. Said provisions of law provide:

Art 166. Unless the wife has been declared a non compass mentis or a spendthrift, or is under civil interdiction or is confined in a lepresarium, the husband cannot alienate or encumber any real property not theconjugal property w/o the wife’s consent. It she refuses reasonable to give her consent, the court may compel her to grant the same.
Art 173. The wife may during the marriage and w/in 10 years the transaction questioned, ask the court for the annulment of any contract of the husband w/c tends to defraud her or impair interest in the conjugal partnership property. Should the wife fail to exercise this right she her heir, after the dissolution of the marriage may demand the value of property fraudulently alienated by the husband.

JUDGMENT:

- Petition is DENIED and the decision of the Court of Appeals is affirmed.