G.R. No.

L-11307 October 5, 1918

ROMAN JAUCIAN, plaintiff-appellant,

vs.
FRANCISCO QUEROL, administrator of the intestate estate of the deceased Hermenegildo
Rogero,defendant-appellee.

Manly, Goddard & Lockwood for appellant.

Albert E. Somersille for appellee.

STREET, J.:

This appeal by bill of exceptions was brought to reverse a judgment of the Court of First Instance of the
Province of Albay whereby said court has refused to allow a claim in favor of the plaintiff, Roman Jaucian,
against the state of Hermenegilda Rogero upon the facts hereinbelow stated.

In October, 1908, Lino Dayandante and Hermenegilda Rogero executed a private writing in which they
acknowledged themselves to be indebted to Roman Jaucian in the sum of P13,332.33. The terms of this
obligation are fully set out at page 38 of the bill of exceptions. Its first clause is in the following words:

We jointly and severally acknowledge our indebtedness in the sum of P13,332.23 Philippine currency (a
balance made October 23, 1908) bearing interest at the rate of 10 per cent per annum to Roman Jaucian, of
age, a resident of the municipality of Ligao, Province of Albay, Philippine Islands and married to Pilar Tell.

Hermenegilda Rogero signed this document in the capacity of surety for Lino Dayandante; but as clearly
appears from the instrument itself both debtors bound themselves jointly and severally to the creditor, and there
is nothing in the terms of the obligation itself to show that the relation between the two debtors was that of
principal and surety.

In November, 1909, Hermenegilda Rogero brought an action in the Court of First Instance of Albay against
Jaucian, asking that the document in question be canceled as to her upon the ground that her signature was
obtained by means of fraud. In his answer to the complaint, Jaucian, by was of cross-complaint, asked for
judgment against the plaintiff for the amount due upon the obligation, which appears to have matured at that
time. Judgment was rendered in the Court of First Instance in favor of the plaintiff, from which judgment the
defendant appealed to the Supreme Court.

In his appeal to this court, Jaucian did not assign as error the failure of the lower court to give him judgment on
his cross-demand, and therefore the decision upon the appeal was limited to the issues concerning the validity of
the document.

While the case was pending in the Supreme Court, Hermenegilda Rogero died and the administrator of her
estate was substituted as the party plaintiff and appellee. On November 25, 1913, the Supreme Court rendered
in its decision reversing the judgment of the trial court and holding that the disputed claim was valid. 1

During the pendency of the appeal, proceedings were had in the Court of First Instance of Albay for the
administration of the estate of Hermenegilda Rogero; Francisco Querol was named administrator; and a
committee was appointed to pass upon claims against the estate. This committee made its report on September
3, 1912. On March 24, 1914, or about a year and half after the filing of the report of the committee on claims
against the Rogero estate, Jaucian entered an appearance in the estate proceedings, and filed with the court a
petition in which he averred the execution of the document of October, 1908, by the deceased, the failure of her
co-obligor Dayandante, to pay any part of the debt, except P100 received from him in March, 1914, and the
complete insolvency of Dayandante. Upon these facts Jaucian prayed the court for an order directing the
administrator of the Rogero estate to pay him the principal sum of P13,332.33, plus P7,221.66, as interest
thereon from October 24, 1908, to March 24, 1914, with interest on the principal sum of P13,332.33, plus
P7,221.66, as interest thereon from October 24, 1908, to March 24, 1914, with interest on the principal sum
from March 24, 1914, at 10 per cent per annum, until paid.

A copy of this petition was served upon the administrator of the estate, who, on March 30, 1914, appeared by
his attorney and opposed the granting of the petition upon the grounds that the claim had never been presented
to the committee on claims for allowance; that more than eighteen months had passed since the filing of the
report of the committee, and that the court was therefore without jurisdiction to entertain the demand of the
claimant. A hearing was had upon the petition before the Honorable P.M. Moir, then sitting in the Court of First
Instance of Albay. On April 13, 1914, he rendered his decision, in which, after reciting the facts substantially as
above set forth, he said:

During the pendency of that action (the cancellation suit) in the Supreme Court Hermenegilda Rogero died,
and Francisco Querol was named administrator of the estate, and he was made a party defendant to the
action then pending in the Supreme Court. As such he had full knowledge of the claim presented and was
given an opportunity to make his defense. It is presumed that defense was made in the Supreme Court.

No contingent claim was filed before the commissioners by Roman Jaucian, who seems to have rested
content with the action pending. Section 746 et seq. of the Code of Civil Procedure provides for the
presentation of contingent claims, against the estate. This claim is a contingent claim, because, according to
the decision of the Supreme Court, Hermenegilda Rogero was a surety of Lino Dayandante. The object of
presenting the claim to the commissioners is simply to allow them to pass on the claim and to give the
administrator an opportunity to defend the estate against the claim. This having been given by the
administrator defending the suit in the Supreme Court, the court considers this a substantial compliance
with the law, and the said defense having been made by the administrator, he cannot now come into court
and hide behind a technicality and say that the claim had not been presented to the commissioners and that,
the commissioners having long since made report, the claim cannot be referred to the commissioners and
therefore the claim of Roman Jaucian is barred. The court considers that paragraph (e) of the opposition is
well-taken and that there must be legal action taken against Lino Dayandante to determine whether or not
he is insolvent, and that declaration under oath to the effect that he has no property except P100 worth of
property, which he has ceded to Roman Jaucian, is not sufficient.

Hermenegilda Rogero having been simply surety for Lino Dayandante, the administrator has a right to
require that Roman Jaucian produce a judgment for his claim against Lino Dayandante, in order that the
said administrator may be subrogated to the rights of Jaucian against Dayandante. The simple affidavit of
the principal debtor that he had no property except P100 worth of property which he has ceded to the
creditor is not sufficient for the court to order the surety to pay the debt of the principal. When this action
shall have been taken against Lino Dayandante and an execution returned "no effects," then the claim of
Jaucian against the estate will be ordered paid or any balance that may be due to him.

Acting upon the suggestions contained in this order Jaucian brought an action against Dayandante and
recovered a judgment against him for the full amount of the obligation evidenced by the document of October
24, 1908. Execution was issued upon this judgment, but was returned by the sheriff wholly unsatisfied, no
property of the judgment debtor having been found.

On October 28, 1914, counsel for Jaucian filed another petition in the proceedings upon the estate of
Hermenegilda Rogero, in which they averred, upon the grounds last stated, that Dayandante was insolvent, and
renewed the prayer of the original petition. It was contended that the court, by its order of April 13, 1914, had
"admitted the claim."
The petition was again opposed by the administrator of the estate upon the grounds (a) that the claim was not
admitted by the order of April 13, 1914, and that "the statement of the court with regard to the admissibility of
the claim was mere dictum," and (b) "that the said claim during the life and after the death of Hermenegilda
Rogero, which occurred on August 2, 1911, was a mere contingent claim against the property of the said
Hermenegilda Rogero, was not reduced to judgment during the lifetime of said Hermenegilda Rogero, and was
not presented to the commissioners on claims during the period of six months from which they were appointed
in this estate, said commissioner having given due and lawful notice of their sessions and more than one year
having expired since the report of the said commissioners; and this credit is outlawed or prescribed, and that this
court has no jurisdiction to consider this claim."

On November 24, 1914, the Honorable J. C. Jenkins, then sitting in the Court of First Instance of Albay, after
hearing argument, entered an order refusing to grant Jaucian's petition. To this ruling the appellant excepted and
moved for a rehearing. On December 11, 1914, the judge a quo entered an order denying the rehearing and
setting forth at length, the reasons upon which he based his denial of the petition. These grounds were briefly,
that as the claim had never been presented to the committee on claims, it was barred; that the court had no
jurisdiction to entertain it; that the decision of the Supreme Court in the action brought by the deceased against
Jaucian did not decide anything except that the document therein disputed was a valid instrument.

In this court the appellant contends that the trial judge erred (a) in refusing to give effect to the order made by
the Honorable P.M. Moir, dated April 13, 1914; and (b) in refusing to order the administrator of the estate of
Hermenegilda Rogero to pay the appellant the amount demanded by him. The contention with regard to the
order of April 13, 1914, is that no appeal from it having been taken, it became final.

An examination of the order in question, however, leads us to conclude that it was not a final order, and
therefore it was not appealable. In effect, it held that whatever rights Jaucian might have against the estate of
Rogero were subject to the performance of a condition precedent, namely, that he should first exhaust this
remedy against Dayandante. The court regarded Dayandante. The court regarded Dayandante as the principal
debtor, and the deceased as a surety only liable for such deficiency as might result after the exhaustion of the
assets of the principal co-obligor. The pivotal fact upon which the order was based was the failure of appellant
to show that he had exhausted his remedy against Dayandante, and this failure the court regarded as a complete
bar to the granting of the petition at that time. The court made no order requiring the appellee to make any
payment whatever, and that part of the opinion, upon which the order was based, which contained statements of
what the court intended to do when the petition should be renewed, was not binding upon him or any other
judge by whom he might be succeeded. Regardless of what may be our views with respect to the jurisdiction of
the court to have granted the relief demanded by appellant in any event, it is quite clear from what we have
stated that the order of April 13, 1914, required no action by the administrator at that time, was not final, and
therefore was not appealable. We therefore conclude that no rights were conferred by the said order of April 13,
1914, and that it did not preclude the administrator from making opposition to the petition of the appellant when
it was renewed.

Appellant contends that his claim against the deceased was contingent. His theory is that the deceased was
merely a surety of Dayandante. His argument is that as section 746 of the Code of Civil Procedure provides that
contingent claims "may be presented with the proof to the committee," it follows that such presentation is
optional. Appellant, furthermore, contends that if a creditor holding a contingent claim does not see fit to avail
himself of the privilege thus provided, there is nothing in the law which says that his claim is barred or
prescribed, and that such creditor, under section 748 of the Code of Civil Procedure, at any time within two
years from the time allowed other creditors to present their claims, may, if his claim becomes absolute within
that period present it to the court for allowance. On the other hand counsel for appellee contends (1) that
contingent claims like absolute claims are barred for non-presentation to the committee but (2) that the claim in
question was in reality an absolute claim and therefore indisputably barred.

The second contention takes logical precedence over the first and our view of its conclusiveness renders any
consideration of the first point entirely unnecessary to a determination of the case. Bearing in mind that the
deceased Hermenegilda Rogero, though surety for Lino Dayandante, was nevertheless bound jointly and
severally with him in the obligation, the following provisions of law are here pertinent.

Article 1822 of the Civil Code provides:

By security a person binds himself to pay or perform for a third person in case the latter should fail to do so.

"If the surety binds himself jointly with the principal debtor, the provisions of section fourth, chapter third,
title first, of this book shall be observed.

Article 1144 of the same code provides:

A creditor may sue any of the joint and several (solidarios) debtors or all of them simultaneously. The
claims instituted against one shall not be an obstacle for those that may be later presented against the others,
as long as it does not appear that the debt has been collected in full.

Article 1830 of the same code provides:

The surety can not be compelled to pay a creditor until application has been previously made of all the
property of the debtor.

Article 1831 provides:

This application can not take place —

(1) . . . (2) If he has jointly bound himself with the debtor . . . .

The foregoing articles of the Civil Code make it clear that Hermenegilda Rogero was liable absolutely and
unconditionally for the full amount of the obligation without any right to demand the exhaustion of the property
of the principal debtor previous to its payment. Her position so far as the creditor was concerned was exactly the
same as if she had been the principal debtor.

The absolute character of the claim and the duty of the committee to have allowed it is full as such against the
estate of Hermenegilda Rogero had it been opportunely presented and found to be a valid claim is further
established by section 698 of the Code of Civil Procedure, which provides:

When two or more persons are indebted on a joint contract, or upon a judgment founded on a joint contract,
and either of them dies, his estate shall be liable therefor, and it shall be allowed by the committee as if the
contract had been with him alone or the judgment against him alone. But the estate shall have the right to
recover contribution from the other joint debtor.

In the official Spanish translation of the Code of Civil Procedure, the sense of the English word "joint," as used
in two places in the section above quoted, is rendered by the Spanish word "mancomunadamente." This is
incorrect. The sense of the word "joint," as here used, would be more properly translated in Spanish by the word
"solidaria," though even this word does not express the meaning of the English with entire fidelity.

The section quoted, it should be explained, was originally taken by the author, or compiler, of our Code of Civil
Procedure from the statutes of the State of Vermont; and the word "joint" is, therefore, here used in the sense
which attaches to it in the common law. Now, in the common law system there is no conception of obligation
corresponding to the divisible joint obligation contemplated in article 1138 of the Civil Code. This article
declares in effect that, if not otherwise expressly determined, every obligation in which there is no conception of
obligation corresponding to the divisible joint obligation contemplated in article 1138 of the Civil Code. This
article declares in effect that, if not otherwise expressly determined, every obligation in which there are
numerous debtors — we here ignore plurality of creditors — shall be considered divided into as many parts as
there are debtors, and each part shall be deemed to be the distinct obligation of one of the respective debtors. In
other words, the obligation is apportionable among the debtors; and in case of the simple joint contract neither
debtor can be required to satisfy more than his aliquot part.

In the common law system every debtor in a joint obligation is liable in solidum for the whole; and the only
legal peculiarity worthy of remark concerning the "joint" contract at common law is that the creditor is required
to sue all the debtors at once. To avoid the inconvenience of this procedural requirement and to permit the
creditor in a joint contract to do what the creditor in a solidary obligation can do under article 1144 of the Civil
Code, it is not unusual for the parties to a common law contract to stipulate that the debtors shall be "jointly and
severally" liable. The force of this expression is to enable the creditor to sue any one of the debtors or all
together at pleasure.

It will thus be seen that the purpose of section 698 of the Code of Civil Procedure, considered as a product of
common law ideas, is not to convert an apportionable joint obligation into a solidary joint obligation — for the
idea of the benefit of division is totally foreign to the common law system — but to permit the creditor to
proceed at once separately against the estate of the deceased debtor, without attempting to draw the other
debtors into intestate or testamentary proceedings. The joint contract of the common law is and always has been
a solidary obligation so far as the extent of the debtor's liability is concerned.

In Spanish law the comprehensive and generic term by which to indicate multiplicity of obligation, arising from
plurality of debtors or creditors, is mancomunidad, which term includes (1) mancomunidad simple,
ormancomunidad properly such, and (2) mancomunidad solidaria. In other words the Spanish system
recognizes two species of multiple obligation, namely, the apportionable joint obligation and the solidary joint
obligation. The solidary obligation is, therefore, merely a form of joint obligation.

The idea of the benefit of division as a feature of the simple joint obligation appears to be a peculiar creation of
Spanish jurisprudence. No such idea prevailed in the Roman law, and it is not recognized either in the French or
in the Italian system.

This conception is a badge of honor to Spanish legislation, honorably shared with the Spanish — American,
since French and Italian codes do not recognize the distinction of difference, just expounded, between the
two sorts of multiple obligation. . . . (Giorgi, Theory of Obligations, Span. ed., vol. I, p. 77, note.)

Considered with reference to comparative jurisprudence, liability in solidum appears to be the normal
characteristic of the multiple obligation, while the benefit of division in the Spanish system is an illustration of
the abnormal, evidently resulting from the operation of a positive rule created by the lawgiver. This exceptional
feature of the simple joint obligation in Spanish law dates from an early period; and the rule in question is
expressed with simplicity and precision in a passage transcribed into the Novisima Recopilacion as follows:

If two persons bind themselves by contract, simply and not otherwise, to do or accomplish something, it is
thereby to be understood that each is bound for one-half, unless it is specified in the contract that each is
bound in solidum, or it is agreed among themselves that they shall be bound in some other manner, and this
notwithstanding any customary law to the contrary; . . . (Law X, tit. I, book X, Novisima Recopilacion,
copied from law promulgated at Madrid in 1488 by Henry IV.)

The foregoing exposition of the conflict between the juridical conceptions of liability incident to the multiple
obligation, as embodied respectively in the common law system and the Spanish Civil Code, prepares us for a
few words of comment upon the problem of translating the terms which we have been considering from English
into Spanish or from Spanish into English.

The Spanish expression to be chosen as the equivalent of the English word "joint" must, of course, depend upon
the idea to be conveyed; and it must be remembered that the matter to be translated may be an enunciation
either of a common law conception or of a civil law idea. In Sharruf vs. Tayabas Land Co. and Ginainati (37
Phil. Rep., 655), a judge of one of the Courts of First Instance in these Islands rendered judgment in English
declaring the defendants to be "jointly" liable. It was held that he meant "jointly" in the sense of
"mancomunadamente," because the obligation upon which the judgment was based was apportionable under
article 1138 of the Civil Code. This mode of translation does not, however, hold good where the word to be
translated has reference to a multiple common law obligation, as in article 698 of the Code of Civil Procedure.
Here it is necessary to render the word "joint" by the Spanish word "solidaria."

In translating the Spanish word "mancomunada" into English a similar difficulty is presented. In the Philippine
Islands at least we must probably continue to tolerate the use of the English word "joint" as an approximate
English equivalent, ambiguous as it may be to a reader indoctrinated with the ideas of the common law. The
Latin phrasepro rata is a make shift, the use of which is not to be commended. The Spanish word "solidary,"
though it is not inaccurate here to use the compound expression "joint obligation," as conveying the full
juridical sense of "obligacion mancomunada" and "obligacion solidaria," respectively.

From what has been said it is clear that Hermenegilda Rogero, and her estate after her death, was liable
absolutely for the whole obligation, under section 698 of the Code of Civil Procedure; and if the claim had been
duly presented to the committee for allowance it should have been allowed, just as if the contact had been with
her alone.

It is thus apparent that by the express and incontrovertible provisions both of the Civil Code and the Code of
Civil Procedure, this claim was an absolute claim. Applying section 695 of the Code of Civil Procedure, this
court has frequently decided that such claims are barred if not presented to the committee in time (In re estate of
Garcia Pascual, 11 Phil. Rep., 34; Ortiga Bros. & Co. vs. Enage and Yap Tico, 18 Phil. Rep., 345, 351; Santos
vs.Manarang, 27 Phil. Rep., 209, 213); and we are of the opinion that, for this reason, the claim was properly
rejected by Judge Jenkins.

There is no force, in our judgment, in the contention that the pendency of the suit instituted by the deceased for
the cancellation of the document in which the obligation in question was recorded was a bar to the presentation
of the claim against the estate. The fact that the lower court had declared the document void was not conclusive,
as its judgment was not final, and even assuming that if the claim had been presented to the committee for
allowance, it would have been rejected and that the decision of the committee would have been sustained by the
Court of First Instance, the rights of the creditor could have been protected by an appeal from that decision.

Appellant apparently takes the position that had his claim been filed during the pendency of the cancellation
suit, it would have been met with the plea of another suit pending and that this plea would have been successful.
This view of the law is contrary to the doctrine of the decision in the case of Hongkong & Shanghai Banking
Corporation vs.Aldecoa & Co. ([1915], 30 Phil. Rep., 255.)

Furthermore, even had Jaucian, in his appeal from the decision in the cancellation suit, endeavored to obtain
judgment on his cross-complaint, the death of the debtor would probably have required the discontinuance of
the action presented by the cross-complaint or counterclaim, under section 703.

As already observed the case is such as not to require the court to apply sections 746-749, inclusive, of the Code
of Civil Procedure, nor to determine the conditions under which contingent claims are barred. But a few words
of comment may be added to show further that the solidary obligation upon which this proceeding is based is
not a contingent claim, such as is contemplated in those sections. Š The only concrete illustration of a
contingent claim given is section 746 is the case where a person is liable as surety for the deceased, that is,
where the principal debtor is dead. This is a very different situation from that presented in the concrete case now
before us, where the surety is the person who is dead. In the illustration put in section 746 — where the
principal debtor is dead and the surety is the party preferring the claim against the estate of the deceased — it is
obvious that the surety has no claim against the estate of the principal debtor, unless he himself satisfies the
obligation in whole or in part upon which both are bound. It is at this moment, and not before, that the
obligation of the principal to indemnify the surety arises (art. 1838, Civil Code); and by virtue of such payment
the surety is subrogated in all the rights which the creditor had against the debtor (art. 1839, same code).

Another simple illustration of a contingent liability is found in the case of the indorser of a contingent liability is
found in the case of the indorser of a negotiable instrument, who is not liable until his liability is fixed by
dishonor and notice, or protest an notice, in conformity with the requirements of law. Until this event happens
there is a mere possibility of a liability is fixed by dishonor and notice, or protest and notice, in conformity with
the requirements of law. Until this event happens there is a mere possibility of a liability, which is fact may
never become fixed at all. The claims of all persons who assume the responsibility of a liability, which in fact
may never become fixed at all. The claims of all persons who assume the responsibility of mere guarantors in
— as against their principles — of the same contingent character.

It is possible that "contingency," in the cases contemplated in section 746, may depend upon other facts than
those which relate to the creation or inception of liability. It may be, for instance, that the circumstance that a
liability is subsidiary, and the execution has to be postponed after judgment is obtained until the exhaustion of
the assets of the person or entity primarily liable, makes a claim contingent within the meaning of said section;
but upon this point it is unnecessary to express an opinion. It is enough to say that where, as in the case now
before us, liability extends unconditionally to the entire amount stated in the obligation, or, in other words,
where the debtor is liable in solidum and without postponement of execution, the liability is not contingent but
absolute.

For the reasons stated, the decision of the trial court denying appellant's petition and his motion for a new trial
was correct and must be affirmed. No costs will be allowed on this appeal. So ordered.

Arellano, C.J., Torres, Johnson, Araullo and Avanceña, JJ., concur.

Separate Opinions

MALCOLM and FISHER, JJ., concurring:

The determination of the issues raised by this appeal requires a careful analysis of the provisions of the Code of
Civil Procedure relating to the presentation and allowance of claims against the estates of deceased persons.

Appellant contends that his claim against the deceased was contingent. His theory is that the deceased was
merely a surety of Dayandante. His argument is that as section 746 of the Code of Civil Procedure provides that
contingent claims "may be presented with the proof to the committee." It follows that such presentation is
optional. Appellant, furthermore, contends that if a creditor holding a contingent claim does not see fit to avail
himself of the privilege thus provided, there is nothing in the law which says that his claim is barred or
prescribed, and that such creditor, under section 748 of the Code of Civil procedure, at any time within two
years from the time allowed other creditors to present their claims, may, if his claim becomes absolute within
that period, present it to the court for allowance. On the other hand, counsel for appellee contends that
"contingent claims, like absolute claims, against the estate of a deceased person, must be filed before the
committee on claims of said estate within the time limited by law for the operation of the committee, to give the
contingent claims status for allowance by the court, when they become absolute, otherwise the contingent
claims are barred."

As to absolute claims, the statute expressly provides that the failure to file them within the time named results in
their complete extinction. This clearly appears from the wording of section 695, which reads as follows:

A person having a claim against a deceased person proper to be allowed by the committee, who does not,
after publication of the required notice, exhibit his claim to the committee as provided in this chapter, shall
be barred from recovering such demand . . . .

That absolute claims, if not presented to the committee in time, are absolutely barred has frequently been
decided by this court and by the Supreme Court of Vermont, from which State the Philippine statute was taken.
(In re estate of Garcia Pascual [1908], 11 Phil., 34; Ortiga Bros. & Co. vs. Enage and Yap Tico [1911], 18 Phil.,
345; Briggs vs.The Estate of Thomas [1859], 32 Vt., 176; Ewing vs. Griswold [1871], 43 Vt., 400 — subject to
certain exceptions in cases in which there has been a fraudulent concealment of assets. In re estate of Reyes
[1910], 17 Phil., 188.)

The effect of this statute is, obviously, to curtail very materially the time allowed under the ordinary statute of
limitations for the enforcement of a claim, in the event of the death of the debtor. This effect, and the reason for
it, were pointed out very clearly in the case of Santos vs. Manarang ([1914], 27 Phil., 209, 213), in which it was
said:

It cannot be questioned that this section supersedes the ordinary limitation of actions provided for in
chapter 3 of the Code. It is strictly confined, in its application, to claims against the estates of deceased
persons, and has been almost universally adopted as part of the probate law of the United States. It is
commonly termed the statute of non-claims and its purpose is to settle the affairs of the estate with dispatch,
so that the residue may be delivered to the persons entitled thereto without their being afterwards called
upon to respond in actions for claims, which, under the ordinary statute of limitations, have not yet
prescribed.

It must be quite obvious that every reason which can be adduced as justifying the policy of the law with regard
to absolute claims applies with even greater force to contingent claims. Unless there is a fixed and definite
period after which all claims not made known are forever barred, what security have the distributees against the
interruption of their possession? Under the system formerly in force here heirs might take the estate of their
decedent unconditionally, in which event they were liable absolutely for all his debts, or with benefit of
inventory, being then liable only to the extent of the value of their respective distributive shares. But that system
has been abolished (Suiliong & Co. vs. Chio-Taysan [1908], 12 Phil., 13), and the heir is now not personally
responsible as such for the debts of the deceased. On the other hand, as stated in the case cited, the property of
the deceased comes to him "charged with the debts of the deceased, so that he cannot alienate or discharge it
free of such debts until and unless they are extinguished either by payment, prescription, or . . . " by the
operation of the statute of non-claim. It is thus to the interest of the heirs and devisees to have the property
discharged of this indefinite liability as soon as possible.

Ordinarily, this is accomplished by judicial administration; this procedure is compulsory as to all estates, with
one exception, namely, that established by section 596 of the Code of Civil Procedure, which authorizes the
distribution of the property of a deceased person by written agreement of the heirs, when all of them are of full
age and legal capacity, and there are no debts or the known debts have been paid. Section 597, as amended by
Act No. 2331, establishes a summary procedure applicable to estates not exceeding three thousand pesos, under
which the property of the deceased is distributed without the appointment of a committee on claims. But as it is
clear that when an estate is distributed summarily by either of these methods creditors having just claims against
the deceased may be overlooked, section 598, as amended, provides: 1awph!l.net

But if it shall appear, at any time within two years after the settlement and distribution of an estate in
accordance with the provisions of either of the preceding sections of this chapter, that there are debts
outstanding against the estate which have not been paid, or that an heir or other persons (sic) has been
unduly deprived of his lawful participation in the estate, any creditor, heir, or other such person, may
compel the settlement of the estate in the courts in the manner hereinafter provided, unless his credit or
lawful participation in the estate shall be paid, with interest. The court shall then appoint an administrator
who may recover the assets of the estate for the purpose of paying such credit or lawful participation; and
the real estate belonging to the deceased shall remain charged with the liability to creditors, heirs or other
persons for the full period of two years after such distribution, notwithstanding any transfer thereof that
may have been made.

It will be observed that the section last quoted does not distinguish between claims, absolute and contingent, but
limits to two years the time within which the holder of any claim against the deceased may assert it against the
distributees. While the statute does not say in so many words that all claims not presented within two years are
barred, that is the plain inference and it has been so construed by this court in the case of McMicking vs. Sy
Conbieng ([1912], 21 Phil., 211). The decision in this case definitely decided that all claims, absolute or
contingent, against an estate partitioned without judicial proceedings and without notice to creditors are barred
and extinguished if not asserted within two years. It is equally firmly established by the express terms of section
695 and the decision by which it has been construed that absolute claims against the estates judicially
administered are barred, unless presented to the committee on claims within the time limited.

We will now consider the effect of the failure to present a contingent claim against an estate undergoing judicial
administration in which a committee on claims has been legally appointed and notice given to creditors to
present their claims.

With respect to contingent claims, the Code of Civil Procedure provides:

If a person is liable as surety for the deceased, or has other contingent claims against his estate which can
not be proved as a debt before the committee, the same may be presented, with the proof, to the committee,
who shall state in their report that such claim was presented to them. (Sec. 746.)

If the court is satisfied from the report of the committee, or from proof exhibited to it, that such contingent
claim is valid, it may order the executor or administrator to retain in his hands sufficient estate to pay such
contingent claim, when the same becomes absolute, or, if the estate is insolvent, sufficient to pay a portion
equal to the dividend of the other creditors. (Sec. 747.)

If such contingent claim becomes absolute and is presented to the court, or to the executor or administrator,
within two years from the time limited for other creditors to present their claims, it may be allowed by the
court if not disputed by the executor or administrator, and, if disputed, it may be proved before the
committee already appointed, or before others to be appointed, for that purpose, as if presented for
allowance before the committee had made its report. (Sec. 748.)

If such contingent claim is allowed, the creditor shall receive payment to the same extent as the other
 creditors, if the estate retained by the executor or administrator is sufficient. But if the claim is not
established during the time limited in the preceding section, or if the assets retained in the hands of the
executor or administrator are not exhausted in the payment of such claims, such assets, or the residue of
them, shall be disposed of by the order of the court to the persons entitled to the same; but the assets so
distributed shall still remain subject to the liability of the claim when established, and the creditor may
maintain an action against the distributees to recover his debt, and such distributees and their estate shall be
liable for such debts in proportion to the estate they have respectively received from the property of the
deceased. (Sec. 749.)

The authority of the committee with respect to contingent claims differs materially from that which it exercise
over absolute claims. As to the latter the committee has complete authority, and its decisions, unless an appeal is
taken to the courts, are final. But as regards contingent claims, the committee does not in the first instance pass
upon their validity. When such claims, with the proof, are presented to the committee it becomes their duty to
report them to the court. If the court, "from the report of the committee" or from "the proofs exhibited to it," is
satisfied that such contingent claim is valid, the executor or administrator may be required to retain in his
possession sufficient assets to pay the claim, when it become absolute, or enough to pay the creditor his
proportionate share. The time during which the retained assets are to be held is two years from the time limited
for other creditors to present their claims. If the claim matures within that time, and demand is made to the court
for its payment, the court may direct the administrator to pay it, but if he objects it must then be proved before
the original committee or a new committee appointed for that purpose. The court in no event has authority to
allow a disputed claim, originally contingent, and to require the administrator or executor to pay it, until it has
been passed upon by the committee. If the claim does not become absolute within the two years the retained
assets are delivered to the distributees and the estate is closed. If "such claim" matures after the two years the
creditor may sue the distributees, who are liable in proportion to the share of the estate respectively received by
them.

In the light of these provisions, can it be maintained that a creditor holding a contingent claim may, at his
option, refrain from presenting it to the committee, and after it becomes absolute, require its payment by the
administrator if it has matured within the two years, or recover it from the distributees if it matures after that
time? In other words, do section 748 and 749 refer to contingent claims in general, or only to contingent claims
which have been presented to the committee pursuant to the provisions of section 746 and 747?

If we hold that sections 748 and 749 are not limited by section 746 and 747, but are to be read as though those
sections were non-existent, the result must be that the heirs and distributees of an estate can never be certain,
until the expiration of the full term of the statute of limitations, that they may safely enjoy the property which
has descended to them. For a period of indefinite duration — in definite because of the uncertainty engendered
y section 45 of the Code of Civil Procedure — they must be exposed to the claims of unknown creditors of the
deceased who may come forward to demand payment of claims which were contingent when the estate was
distributed, but which have since become absolute. During that period of uncertainty the distributees will never
know at what moment they may be called upon to pay over the whole amount received by them from the estate
of the decedent.

On the other hand, if we construe section 748 and 749 as being limited by the two preceding sections, and hold
that only such contingent claims as have been presented to the committee may be recovered from the estate or
the distributees, then the doubt and uncertainty will disappear. If no such contingent claims are presented to the
committee they will be non-existent so far as the distributees are concerned. If such claims are proved, but do
not become absolute within the two years, the distributees will know that their respective shares are subject to a
contingent liability, definite in amount, and may govern themselves accordingly.

In construing a statute it is proper to bear in mind the purpose of the legislature in enacting it, with a view of
adopting, if possible, that interpretation which will accomplish rather than defeat the legislative intent. It will
not be disputed that it must be assumed that the legislature desires certainty rather than uncertainty in the tenure
of property transmitted by descent. As was said in the case of McMicking vs. Sy Conbieng ([1912], 21 Phil.,
211): "It is the undisputed policy of every people which maintains the principle of private ownership of property
that he who owns a thing shall not be deprived of its possession or use except for the most urgent and
imperative reasons and then only so long as is necessary to make the rights which underlie those reasons effect."
In the De Dios case ([1913], 24 Phil., 573, 576), it was said: "It is distinctly against the interest of justice and in
direct opposition to the policy of the law to extend unduly the time within which the estate should be
administered and thereby to keep the property from the possession and use of those who are entitled to it . . . ."
It must be equally contrary to the policy of the law to allow property which has passed by descent into other
hands to be subject for an indefinite term to contingent claims of indefinite amount.

It is true that in this particular case the demand was made within two years and while the assets, apparently,
were still undistributed. Nevertheless, if the principle contended for by appellant be established, and creditors
holding contingent claims against estates judicially administered may disregard the committee on claims
entirely, then they may enforce such claims against the distributees after the estate is closed. Unless the time for
the presentation of such claims is limited by the sections under consideration it is wholly unlimited, save by the
general statute of prescription.

Examining the statute in the light of these considerations we are of the opinion that the contention of the
appellant cannot be sustained. Sections 748 and 749, in speaking of contingent claims which are demandable
after they become absolute, against the administration or against the distributees, use the expression "such
contingent claim." The use of the word "such" is, we think, clearly intended to limit the words "contingent
claim" to the class referred to in the two proceeding sections — that is, to such contingent claims as have been
presented to the committee and reported to the court pursuant to the requirements of sections 746 and 747.

As on most important questions, authorities both pro and con can be cited. For instance, in the case of McKeen
vs.Waldron ([1879], 25 Minn., 466), the Supreme Court of Minnesota held, construing a similar statute, that
contingent claims need not be presented to the committee and are not barred by the failure to do so; that by the
failure to present a contingent claim, the creditor loses his rights to have assets retained by the executor or
administrator, but if his claim becomes absolute, he may maintain an action against the distributees to recover
such claim to the extent of the estate so distributed. But we do not consider the reasoning of this decision of
controlling or even of persuasive authority as applied to our own statute. In interpreting its provisions we must
take into consideration the object which the legislature had in view in enacting it. As stated by this court in the
case of De Dios (24 Phil., 573): "The object of the law in fixing a definite period within which claims must be
presented is to insure the speedy settling of the affairs of a deceased is to insure the speedy settling on the affairs
of a deceased person and the early delivery of the property of the estate into the hands of the persons entitled to
receive it." (See also Verdier vs. Roach [1892], 96 Cal., 467.) The affairs of a deceased person are not "speedily
settled" if contingent claims, uncertain and indefinite, are left outstanding. An estate left in this precarious
condition can hardly be said to be "settled" at all.

We do not agree with the contention of appellant that the use of the word "may" in section 746 is to be
construed as authorizing the holder of a contingent claim to disregard the existence of the committee without
suffering any untoward consequences. He "may" present his contingent claim, if he desires to preserve his right
to enforce it against the estate or the distributees, but if he does not he may not thereafter so assert it.

With respect to the contention that the bar established by section 695 is limited to claims "proper to be allowed
by the committee" our reply is that contingent claims fall within this definition equally with absolute claims. It
is true that as long as they are contingent the committee is not required to pass upon them finally, but merely to
report them so that the court may make provision for their payment by directing the retention of assets. But if
they become absolute after they have been so presented, unless admitted by the administrator or executor, they
are to be proved before the committee, just as are other claims. We are of the opinion that the expression
"proper to be allowed by the Committee," just as are other claims. We are of the opinion that the expression
"proper to be allowed by the Committee," as limiting the word "claims" in section 695 is not intended to
distinguish absolute claims from contingent claims, but to distinguish those which may in no event be passed
upon the committee, because excluded by section 703, from those over which it has jurisdiction.

There is no force, in our judgment by the deceased for the cancellation of the document in which the obligation
in question was recorded was a bar to the presentation of the claim against the estate. The fact that the lower
court had declared the document void was not conclusive, as its judgment was not final, and even assuming that
if the claim had been presented to the committee for allowance, it would have been presented to the committee
for allowance, it would have been rejected and that the decision of the committee would have been sustained by
the Court of First Instance, the rights of the creditor could have been protected by an appeal from that decision.
Appellant apparently takes the position that had his claim been filed during the pendency of the cancellation suit
it would have been met with the plea of another suit pending and that plea would have been successful. This
view of the law is contrary to the doctrine of the decision in the case of Hongkong & Shanghai Bank vs.
Aldecoa & Co. ([1915]. 30 Phil., 255.) Furthermore, even had Jaucian, in his appeal from the decision in the
cancellation suit, endeavored to obtain judgment on his cross-complaint, the death of the debtor would probably
have required the discontinuance of the action presented by the cross-complaint or counterclaim, under section
703.

In the consideration of this appeal we have assumed that the claim is a contingent one. The document upon
which it is based is not before us. Both parties, however, until the brief of appellee was filed, seem to have
agreed that the deceased was a mere surety or, more strictly speaking, a guarantor for Dayandante, and that the
claim against her was contingent. This being undeniable, and the cause having been tried upon a particular
issue, accepted by the parties and the court, the appellate court should proceed upon the same theory. (Molina
vs. Somes [1913], 24 Phil., 49; Limpangco Sons vs. Yangco Steamship Co. [1916], 34 Phil., 567; Agoncillo and
Marino vs. Javier [1918], p. 424 ante.)

Of course, it is quite obvious that if the claim was indeed absolute, as contended by appellee and as conceded in
the main decision, the practical result would be the same, as there can be no doubt that all absolute claims not
presented to the committee are barred by the express terms of section 695 of the Code of Civil Procedure, as
heretofore construed by this court. (In re estate of Garcia Pascual, supra; Ortiga Bros. & Co. vs. Enage and Yap
Tico, supra; Briggs vs. The Estate of Thomas, supra; Ewing vs. Griswold, supra; Estate of Reyes, supra; in
connection with McMicking vs. Sy Conbieng, supra.) In view of these decisions additional argument is
unnecessary.

The main decision also contains a discussion of the subject of "apportionable joint obligations" and "solidary
joint obligations." Here again it is only worthy of note that the terms " joint," "mancomunada," " jointly,"
"mancomunadamente," "jointly and severally," "solidariamente" (in solidum) have heretofore been
authoritatively construed in the decisions of this court and in decisions of the Supreme Court of Louisiana and
the Supreme Court of the United States. The following cases can be noted: Sharruf vs. Tayabas Land Co. and
Ginainati ([1918], 37 Phil. Rep., 655); Parot vs. Gemora ([1906], 7 Phil., 94); Pimentel vs. Gutierrez ([1909], 14
Phil., 49); Chinese Chamber of Commerce vs. Pua Te Ching ([1910], 16 Phil., 406); De Leon vs. Nepomuceno
and De Jesus ([1917], 37 Phil. Rep., 180); Groves vs. Sentell ([1894], 153 U.S., 465); Adle vs. Metoyer ([1846],
1 La. Ann., 254); Ledoux & Co. vs. Rucker ([1850], 5 La. Ann., 500); Pecquet vs. Pecquet's Executor ([1865],
17 La. Ann., 467); Duggan vs. De Lizardi ([1843], 5 Robinson's Reports, 224); Commissioners of New Orleans
Improvement & Banking Co. vs. The Citizen's Bank ([1845], 10 Robinson's Reports, 14). For example, in the
decision first above cited (Sharruf vs.Tayabas Land Co. and Ginainati), we find the following:

We agree with the appellant that this promissory note evidences a joint and not a joint and several
obligation, but it appearing that the trial judge correctly rendered judgment holding the defendants "jointly"
liable, there is no necessity for any modification of the terms of the judgment in that regard. Our decision in
the case of De Leon vs. Nepomuceno and De Jesus (37 Phil. Rep., 180) should make it quite clear that in
this jurisdiction at least, the word jointly when used by itself in a judgment rendered in English is
equivalent to the wordmancomunadamente, and that it is necessary to use the words "joint and several" in
 order to convey the idea expressed in the Spanish term solidariamente (in solidum); and further, that a
contract, or a judgment based thereon, which fails to set forth that a particular obligation is "joint and
several" must be taken to have in contemplation a "joint" (mancomunada), and not a "joint and several"
(solidary) obligation.

A similar distinction is made in the technical use of the English words "joint" and "joint and several" or
"solidary" in Louisiana, doubtless under like historic influences to those which have resulted in this
construction we have always given these terms.

"A joint obligation under the law of Louisiana binds the parties thereto only for their proportion of the
debt (La. Civ. Code, arts. 2080, 2086), whilst a solidary obligation, on the contrary, binds each of the
obligators for the whole debt." (Groves vs. Sentell, 14 Sup. Ct., 898, 901; 153 U.S., 465; 38 L. Ed.,
785.)

We are of the opinion, therefore, that contingent claims not presented to the committee on claims within the
time named for that purpose are barred.

For the reasons stated, the decision of the trial court denying appellant's petition and his motion for a new trial
was correct and should be affirmed.

RFC v CA
FACTS:
•
"On October 31, 1941, Jesus de Anduiza and Quintana Cano executedthe following promissory note-(PI3,800.00 Legaspi, Albay,
Octcber 37, 1941''On or befcre October 31, 1951 for value received, I/we, jointly an d severally, promise to pay
the Agriculturaland Industrial Bank, or order, at its office at Manila or Agency at Legaspi, Albay,
Philippines, the sum of (P13,800.00), Philippine currency, with interest at the rate of 6 per centum per
annum, from the date hereof until paid. Payments of the principal and the corresponding interest are to be made
in 10 years equal annualinstallments of P1,874.98 each in accordance with the following schedule of amortizations . All
unpaid installments shall bear interest at the rate of 6 per centum, per annum
•
Secured by mortgage
•
Failed to pay yearly amortizations
•
Estelito Madrid paid for them to creditor for P7,374.83 for principal and P2,625 for interest or a total of P10,000. Balance of P6,425
likewise paid on Oct. 30.
•
Estelito demanded from Anduiza the P16, 425 but failed to pay. RFC then AIC refused to cancel
mortgageexecuted by Anduiza
•
RFC: Loan not due and demandable because payable in 10 years, no authority from debtor; accepted onlypending proof of
Anduiza’s authority; cannot release mortgage because Anduiza refuse to approve
•
No authority, paid P2,000, null and void Madrid’s claim, concede to RFC all legal remedies
•
Anduiza: Not yet due, mere deposit, null and void by EO 49 (June 6, 1945) -> invalidating the
JapaneseCurrency
•
TC: For petitioner but retrial upon motion that disappearance due to misunderstanding then dismissed
•
CA: Cancel mortgage and Anduiza pay petitioner
•
SC: Clear any time before date
•
Payment may be made even if unknown to debtor
•
"It is presumed that a person who has interest on the compliance of the obligation who is replaced in
thepayment to the debtor; in natural defense of their own interests, and unusual and unaccustomed that, outof
sheer generosity, debt is satisfied without any benefit other than the part of that thus applicable. In thissense, the
guarantor, that is, if not a principal debtor, is debtor finally since it has linked its interests, withhis account and
reason, to the person liable, and is committed to it alternatively to pay what is owed, beadvanced many times,
for different reasons, to pay the debt, taking it own and legitimate profit. Apart fromthe legal interest, particular
reasons of another order, a genre involving any benefit, can also move themind of a third person for substitution in
place of the debtor.

NICENCIO TAN QUIOMBING, petitioner, vs. COURTOF APPEALS, and Sps. FRANCISCO and MANUELITAA.
SALIGO, respondents.1990 Aug 301stDivisionG.R. No. 93010D E C I S I O NCRUZ, J.:May one of the two solidary
creditors sue by himself alone for the recovery of amounts due to both of them without joining the other creditor as a co-plaintiff?
In such a case, is the defendant entitled tothe dismissal of the complaint on the ground of non- joinder of the second creditor
as an indispensableparty? More to the point, is the second solidarycreditor an indispensable party? These questions were
raised in the case at bar, withboth the trial and respondent courts ruling in favorof the defendants. The petitioner is
now before us,claiming that the said courts committed reversibleerror and misread the applicable laws in dismissinghis complaint.
This case stemmed from a "Construction andService Agreement" 1concluded on August 30, 1983, whereby
Nicencio Tan Quiombing and Dante Biscocho, as the FirstParty, jointly and severally bound themselves toconstruct a house for
private respondents Franciscoand Manuelita Saligo, as the Second Party, for thecontract price of P137,940.00, which the
latteragreed to pay.On October 10, 1984, Quiombing and ManuelitaSaligo entered into a second written agreement 2under
which the latter acknowledged the completionof the house and undertook to pay the balance of the contract price in the
manner prescribed in thesaid second agreement.On November 19, 1984, Manuelita Saligo signed apromissory note for
P125,363.50 representing theamount still due from her and her husband, payableon or before December 31, 1984, to
Nicencio TanQuiombing. 3On October 9, 1986, Quiombing filed a complaint forrecovery of the said amount, plus charges
andinterests, which the private respondents hadacknowledged and promised to pay but had not,despite repeated demands as
the balance of thecontract price for the construction of their house. 4Instead of filing an answer, the defendants movedto dismiss the
complaint on February 4, 1987,contending that Biscocho was an indispensableparty and therefore should have been
included as aco-plaintiff.

The motion was initially denied but wassubsequently reconsidered and granted by the trialcourt. The complaint was
dismissed, but withoutprejudice to the filing of an amended complaint toinclude the other solidary creditor as a co-plaintiff.5Rather
than file the amended complaint, Quiombingchose to appeal the order of dismissal to therespondent court, where he argued
that as asolidary creditor he could act by himself alone in theenforcement of his claim against the privaterespondents.
Moreover, the amounts due werepayable only to him under the second agreement,where Biscocho was not
mentioned at all. The respondent court sustained the trial court andheld that it was not correct at that point to
assumethat Quiombing and Biscocho were solidary obligeesonly. It noted that as they had also assumed thereciprocal
obligation of constructing the house, theyshould also be considered obligors of the privaterespondents under the
contract. If, as was possible,the answer should allege a breach of theagreement, "the trial court cannot decide
thedispute without the involvement of Biscocho whoserights will necessarily be affected since he is a partof the First
Party."Refuting the petitioner's second contention, therespondent court declared that the "secondagreement
referred to the Construction and ServiceAgreement as its basis and specifically stated that it(was) merely a `part of the
original agreement.'" 6 The concept of the solidary obligation requires abrief restatement.Distinguishing it from the joint
obligation, Tolentinomakes the following observations in hisdistinguished work on the Civil Code:A joint
obligation is one in which each of the debtorsis liable only for a proportionate part of the debt,and each creditor is entitled only to a
proportionatepart of the credit. A solidary obligation is one inwhich each debtor is liable for the entire obligation,and each creditor is
entitled to demand the wholeobligation. Hence, in the former, each creditor canrecover only his share of the obligation, and
eachdebtor can be made to pay only his part; whereas,in the latter, each creditor may enforce the entireobligation, and each
debtor may be obliged to pay itin full. 7 The same work describes the concept of activesolidarity thus: The
essence of active solidarity consists in theauthority of each creditor to claim and enforce therights of all, with the resulting
obligation of paying
every one what belongs to him; there is no merger,much less a renunciation of rights, but only mutualrepresentation. 8It
would follow from these observations that thequestion of who should sue the private respondentswas a personal
issue between Quiombing andBiscocho in which the spouses Saligo had no right tointerfere. It did not matter who as
between themfiled the complaint because the private respondentswere liable to either of the two as a solidary creditorfor the full
amount of the debt. Full satisfaction of a judgment obtained against them by Quiombingwould discharge their
obligation to Biscocho, andvice versa; hence, it was not necessary for bothQuiombing and Biscocho to file the complaint.Inclusion
of Biscocho as a co-plaintiff, whenQuiombing was competent to sue by himself alone,would be a useless formality.Article
1212 of the Civil Code provides:Each one of the solidary creditors may do whatevermay be useful to the others, but not
anything whichmay be prejudice to the latter.Suing for the recovery of the contract price iscertainly a useful act that
Quiombing could do byhimself alone.Parenthetically, it must be observed that thecomplaint having been filed by the
petitioner,whatever amount is awarded against the debtormust be paid exclusively to him, pursuant to Article1214. This
provision states that "the debtor may payany of the solidary creditors; but if any demand, judicial or extrajudicial, has been made by
any oneof them, payment should be made to him."If Quiombing eventually collects the amount duefrom the solidary debtors,
Biscocho may later claimhis share thereof, but that decision is for him aloneto make. It will affect only the petitioner as the
othersolidary creditor and not the private respondents,who have absolutely nothing to do with this matter.As far as they are
concerned, payment of the judgment debt to the complainant will beconsidered payment to the other solidary creditoreven
if the latter was not a party to the suit.Regarding the possibility that the privaterespondents might plead breach
of contract in theiranswer, we agree with the petitioner that it ispremature to consider this conjecture for such it isat this
stage. The possibility may seem remote,indeed, since they have actually acknowledged thecompletion of the house in
the second agreement,where they also agreed to pay the balance of thecontract price. At any rate, the allegation, if
madeand proved, could still be enforceable against the
petitioner alone as one of the solidary debtors,subject to his right of recourse against Biscocho. The respondent court was
correct in ruling that thesecond agreement, which was concluded alone bythe petitioner with the private respondents, wasbased on
the original Construction and ServiceAgreement. So too in fact was the promissory notelater signed by Manuelita Saligo
since it was for theamount owing on the construction cost. However,this matter is not really that important now in viewof our
conclusion that the complaint could havebeen filed alone by the petitioner. The rest of the pieces should easily fall
into place.Section 7, Rule 3 of the Rules of Court mandates theinclusion of indispensable parties as follows:Sec. 7. Compulsory
joinder of indispensableparties. Parties in interest without whom no finaldetermination can be had of an action shall be
joined either as plaintiffs or defendants.Indispensable parties are those with such aninterest in the controversy that a final
decree wouldnecessarily affect their rights, so that the courtcannot proceed without their presence. Necessaryparties are
those whose presence is necessary toadjudicate the whole controversy, but whoseinterests are so far separable that a final
decree canbe made in their absence without affecting them. 9(Necessary parties are now called proper partiesunder the
1964 amendments of the Rules of Court.)10According to Justice Jose Y. Feria, "where theobligation of the parties is
solidary, either one of theparties is indispensable, and the other is not evennecessary (now proper) because complete relief
may be obtained from either." 11We hold that, although he signed the originalConstruction and Service Agreement,
Biscocho neednot be included as a co-plaintiff in the complaintfiled by the petitioner against the privaterespondents.
Quiombing as solidary creditor can byhimself alone enforce payment of the constructioncosts by the private respondents and as a
solidarydebtor may by himself alone be held liable for anypossible breach of contract that may be proved bythe
private respondents. In either case, theparticipation of Biscocho is not at all necessary,much less
indispensable.WHEREFORE, the petition is GRANTED. The decisionof the respondent court dated March 27, 1990,
isSET ASIDE, and the Regional Trial Court of Antipolo,Rizal, is directed to REINSTATE Civil Case No. 913-A.Costs
againstthe private respondents.
SO ORDERED.
G.R. No. 96405. June 26, 1996] BALDOMERO INCIONG, JR., petitioner, vs. COURT OF APPEALS and
PHILIPPINE BANK OF COMMUNICATIONS,respondents.

1. REMEDIAL LAW; EVIDENCE; PAROL EVIDENCE RULE; DOES NOT SPECIFY THAT THE
WRITTEN AGREEMENT BE A PUBLIC INSTRUMENT.- Clearly, the rule does not specify that the
written agreement be a public document. What is required is that the agreement be in writing as the rule is in
fact founded on "long experience that written evidence is so much more certain and accurate than that which
rests in fleeting memory only, that it would be unsafe, when parties have expressed the terms of their contract in
writing, to admit weaker evidence to control and vary the stronger and to show that the parties intended a
different contract from that expressed in the writing signed by them" [FRANCISCO, THE RULES OF COURT
OF THE PHILIPPINES, Vol. VII, Part I, 1990 ed., p. 179] Thus, for the parol evidence rule to apply, a written
contract need not be in any particular form, or be signed by both parties. As a general rule, bills, notes and other
instruments of a similar nature are not subject to be varied or contradicted by parol or extrinsic evidence.

2. CIVIL LAW; OBLIGATIONS; SOLIDARY OR JOINT AND SEVERAL OBLIGATION, DEFINED.-

A solidary or joint and several obligation is one in which each debtor is liable for the entire obligation, and
each creditor is entitled to demand the whole obligation. [TOLENTINO, CIVIL CODE OF THE
PHILIPPINES, Vol. IV, 1991 ed., p. 217] Section 4, Chapter 3, Title 1, Book IV of the Civil Code states the
law on joint and several obligations. Under Art. 1207 thereof, when there are two or more debtors in one
and the same obligation, the presumption is that the obligation is joint so that each of the debtors is liable
only for the proportionate part of the debt. There is a solidary liability only when the obligation expressly
so states, when the law so provides or when the nature of the obligation so requires. [Sesbreño v. Court of
Appeals, G.R. No. 89252, May 24, 1993, 222 SCRA 466, 481.]
3. ID.; GUARANTY; GUARANTOR AS DISTINGUISHED FROM SOLIDARY DEBTOR.- While a
guarantor may bind himself solidarily with the principal debtor, the liability of a guarantor is different from
that of a solidary debtor. Thus, Tolentino explains: "A guarantor who binds himself in solidum with the
principal debtor under the provisions of the second paragraph does not become a solidary co-debtor to all
intents and purposes. There is a difference between a solidary co-debtor, and a fiador in solidum (surety).
The latter, outside of the liability he assumes to pay the debt before the property of the principal debtor has
been exhausted, retains all the other rights, actions and benefits which pertain to him by reason of the
fiansa; while a solidary co-debtor has no other rights than those bestowed upon him in Section 4, Chapter
3, Title 1, Book IV of the Civil Code." [Tolentino, Civil Code of the Philippines, Vol. V, 1992 ed., p. 502]
APPEARANCES OF COUNSEL
Emilio G. Abrogena for petitioner.
Teogenes X. Velez for private respondent.

DECISION
ROMERO, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals affirming that of the
Regional Trial Court of Misamis Oriental, Branch 18,[1] which disposed of Civil Case No. 10507 for collection
of a sum of money and damages, as follows:

"WHEREFORE, defendant BALDOMERO L. INCIONG, JR. is adjudged solidarily liable and ordered to pay
to the plaintiff Philippine Bank of Communications, Cagayan de Oro City, the amount of FIFTY THOUSAND
PESOS (P50,000.00),with interest thereon from May 5, 1983 at 16% per annum until fully paid; and 6% per
annum on the total amount due, as liquidated damages or penalty from May 5, 1983 until fully paid; plus 10%
of the total amount due for expenses of litigation and attorney's fees; and to pay the costs.

The counterclaim, as well as the cross claim, are dismissed for lack of merit.

SO ORDERED."

Petitioner's liability resulted from the promissory note in the amount of P50,000.00 which he signed with
Rene C. Naybe and Gregorio D. Pantanosas on February 3, 1983, holding themselves jointly and severally
liable to private respondent Philippine Bank of Communications, Cagayan de Oro City branch. The promissory
note was due on May 5, 1983.
Said due date expired without the promissors having paid their obligation. Consequently, on November 14,
1983 and on June 8, 1984, private respondent sent petitioner telegrams demanding payment thereof. [2] On
December 11, 1984 private respondent also sent by registered mail a final letter of demand to Rene C. Naybe.
Since both obligors did not respond to the demands made, private respondent filed on January 24, 1986 a
complaint for collection of the sum of P50,000.00 against the three obligors.
On November 25, 1986, the complaint was dismissed for failure of the plaintiff to prosecute the case.
However, on January 9, 1987, the lower court reconsidered the dismissal order and required the sheriff to serve
the summonses. On January 27, 1987, the lower court dismissed the case against defendant Pantanosas as
prayed for by the private respondent herein. Meanwhile, only the summons addressed to petitioner was served
as the sheriff learned that defendant Naybe had gone to Saudi Arabia.
In his answer, petitioner alleged that sometime in January 1983, he was approached by his friend, Rudy
Campos, who told him that he was a partner of Pio Tio, the branch manager of private respondent in Cagayan de
Oro City, in the falcata logs operation business. Campos also intimated to him that Rene C. Naybe was
interested in the business and would contribute a chainsaw to the venture. He added that, although Naybe had
no money to buy the equipment Pio Tio had assured Naybe of the approval of a loan he would make with
private respondent. Campos then persuaded petitioner to act as a "co-maker" in the said loan. Petitioner
allegedly acceded but with the understanding that he would only be a co-maker for the loan of P5,000.00.
Petitioner alleged further that five (5) copies of a blank promissory note were brought to him by Campos at
his office. He affixed his signature thereto but in one copy, he indicated that he bound himself only for the
amount of P5,000.00. Thus, it was by trickery, fraud and misrepresentation that he was made liable for the
amount of P50,000.00.
In the aforementioned decision of the lower court, it noted that the typewritten figure "P50,000-" clearly
appears directly below the admitted signature of the petitioner in the promissory note. [3] Hence, the latter's
uncorroborated testimony on his limited liability cannot prevail over the presumed regularity and fairness of the
transaction, under Sec. 5 (q) of Rule 131. The lower court added that it was "rather odd" for petitioner to have
indicated in a copy and not in the original, of the promissory note, his supposed obligation in the amount of
P5,000.00 only. Finally, the lower court held that even granting that said limited amount had actually been
agreed upon, the same would have been merely collateral between him and Naybe and, therefore, not binding
upon the private respondent as creditor-bank.
The lower court also noted that petitioner was a holder of a Bachelor of Laws degree and a labor consultant
who was supposed to take due care of his concerns, and that, on the witness stand, Pio Tio denied having
participated in the alleged business venture although he knew for a fact that the falcata logs operation was
encouraged by the bank for its export potential.
Petitioner appealed the said decision to the Court of Appeals which, in its decision of August 31, 1990,
affirmed that of the lower court. His motion for reconsideration of the said decision having been denied, he
filed the instant petition for review on certiorari.
On February 6,1991, the Court denied the petition for failure of petitioner to comply with the Rules of
Court and paragraph 2 of Circular No. 1-88, and to sufficiently show that respondent court had committed any
reversible error in its questioned decision.[4] His motion for the reconsideration of the denial of his petition was
likewise denied with finality in the Resolution of April 24, 1991. [5] Thereafter, petitioner filed a motion for leave
to file a second motion for reconsideration which, in the Resolution of May 27, 1991, the Court denied. In the
same Resolution, the Court ordered the entry of judgment in this case.[6]
Unfazed, petitioner filed a motion for leave to file a motion for clarification. In the latter motion, he
asserted that he had attached Registry Receipt No. 3268 to page 14 of the petition in compliance with Circular
No. 1-88. Thus, on August 7,1991, the Court granted his prayer that his petition be given due course and
reinstated the same.[7]
Nonetheless, we find the petition unmeritorious.
Annexed to the petition is a copy of an affidavit executed on May 3, 1988, or after the rendition of the
decision of the lower court, by Gregorio Pantanosas, Jr., an MTCC judge and petitioner's co-maker in the
promissory note. It supports petitioner's allegation that they were induced to sign the promissory note on the
belief that it was only for P5,000.00, adding that it was Campos who caused the amount of the loan to be
increased to P50,000.00.
The affidavit is clearly intended to buttress petitioner's contention in the instant petition that the Court of
Appeals should have declared the promissory note null and void on the following grounds: (a) the promissory
note was signed in the office of Judge Pantanosas, outside the premises of the bank; (b) the loan was incurred
for the purpose of buying a second-hand chainsaw which cost only P5,000.00; (c) even a new chainsaw would
cost only P27,500.00; (d) the loan was not approved by the board or credit committee which was the practice, at
it exceeded P5,000.00; (e) the loan had no collateral; (f) petitioner and Judge Pantanosas were not present at the
time the loan was released in contravention of the bank practice, and (g) notices of default are sent
simultaneously and separately but no notice was validly sent to him. [8] Finally, petitioner contends that in
signing the promissory note, his consent was vitiated by fraud as, contrary to their agreement that the loan was
only for the amount of P5,000. 00, the promissory note stated the amount of P50,000.00.
The above-stated points are clearly factual. Petitioner is to be reminded of the basic rule that this Court is
not a trier of facts. Having lost the chance to fully ventilate his factual claims below, petitioner may no longer
be accorded the same opportunity in the absence of grave abuse of discretion on the part of the court below.
Had he presented Judge Pantanosas' affidavit before the lower court, it would have strengthened his claim that
the promissory note did not reflect the correct amount of the loan.
Nor is there merit in petitioner's assertion that since the promissory note "is not a public deed with the
formalities prescribed by law but x x x a mere commercial paper which does not bear the signature of x x x
attesting witnesses," parol evidence may "overcome" the contents of the promissory note. [9] The first paragraph
of the parol evidence rule[10] states:

"When the terms of an agreement have been reduced to writing, it is considered as containing all the terms
agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such terms
other than the contents of the written agreement."

Clearly, the rule does not specify that the written agreement be a public document.
What is required is that agreement be in writing as the rule is in fact founded on "long experience that
written evidence is so much more certain and accurate than that which rests in fleeting memory only, that it
would be unsafe, when parties have expressed the terms of their contract in writing, to admit weaker evidence to
control and vary the stronger and to show that the parties intended a different contract from that expressed in the
writing signed by them."[11] Thus, for the parol evidence rule to apply, a written contract need not be in any
particular form, or be signed by both parties.[12]As a general rule, bills, notes and other instruments of a similar
nature are not subject to be varied or contradicted by parol or extrinsic evidence.[13]
By alleging fraud in his answer, [14] petitioner was actually in the right direction towards proving that he and
his co-makers agreed to a loan of P5,000.00 only considering that, where a parol contemporaneous agreement
was the inducing and moving cause of the written contract, it may be shown by parol evidence. [15] However,
fraud must be established by clear and convincing evidence, mere preponderance of evidence, not even being
adequate.[16] Petitioner's attempt to prove fraud must, therefore, fail as it was evidenced only by his own
uncorroborated and, expectedly, self-serving testimony.
Petitioner also argues that the dismissal of the complaint against Naybe, the principal debtor, and against
Pantanosas, his co-maker, constituted a release of his obligation, especially because the dismissal of the case
against Pantanosas was upon the motion of private respondent itself. He cites as basis for his argument, Article
2080 of the Civil Code which provides that:

"The guarantors, even though they be solidary, are released from their obligation whenever by some act of the
creditor, they cannot be subrogated to the rights, mortgages, and preferences of the latter."

It is to be noted, however, that petitioner signed the promissory note as a solidary co-maker and not as a
guarantor. This is patent even from the first sentence of the promissory note which states as follows:

"Ninety one (91) days after date, for value received, I/we, JOINTLY and SEVERALLY promise to pay to the
PHILIPPINE BANK OF COMMUNICATIONS at its office in the City of Cagayan de Oro, Philippines the sum
of FIFTY THOUSAND ONLY (P50,000. 00) Pesos, Philippine Currency, together with interest x x x at the rate
of SIXTEEN (16) per cent per annum until fully paid."

A solidary or joint and several obligation is one in which each debtor is liable for the entire obligation, and
each creditor is entitled to demand the whole obligation.[17] On the other hand, Article 2047 of the Civil Code
states:

"By guaranty a person, called the guarantor, binds himself to the creditor to fulfill the obligation of the principal
debtor in case the latter should fail to do so.

If a person binds himself solidarily with the principal debtor, the provisions of Section 4, Chapter 3, Title I of
this Book shall be observed, In such a case the contract is called a suretyship." (Italics supplied.)

While a guarantor may bind himself solidarily with the principal debtor, the liability of a guarantor is different
from that of a solidary debtor. Thus, Tolentino explains:

"A guarantor who binds himself in solidum with the principal debtor under the provisions of the second
paragraph does not become a solidary co-debtor to all intents and purposes. There is a difference between a
solidary co-debtor, and a fiador in solidum (surety). The later, outside of the liability he assumes to pay the debt
before the property of the principal debtor has been exhausted, retains all the other rights, actions and benefits
which pertain to him by reason of the fiansa; while a solidary co-debtor has no other rights than those bestowed
upon him in Section 4, Chapter 3, title I, Book IV of the Civil Code."[18]

Section 4, Chapter 3, Title I, Book IV of the Civil Code states the law on joint and several obligations.
Under Art. 1207 thereof, when there are two or more debtors in one and the same obligation, the presumption is
that the obligation is joint so that each of the debtors is liable only for a proportionate part of the debt. There is
a solidarity liability only when the obligation expressly so states, when the law so provides or when the nature
of the obligation so requires.[19]
Because the promissory note involved in this case expressly states that the three signatories therein are
jointly and severally liable, any one, some or all of them may be proceeded against for the entire obligation. [20]
The choice is left to the solidary creditor to determine against whom he will enforce collection. [21] Consequently,
the dismissal of the case against Judge Pontanosas may not be deemed as having discharged petitioner from
liability as well. As regards Naybe, suffice it to say that the court never acquired jurisdiction over him.
Petitioner, therefore, may only have recourse against his co-makers, as provided by law.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED and the questioned
decision of the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.

[G.R. No. 134100. September 29, 2000] PURITA ALIPIO, petitioner, vs. COURT OF APPEALS and
ROMEO G. JARING, represented by his Attorney-In-Fact RAMON G. JARING, respondents.
 The question for decision in this case is whether a creditor can sue the surviving spouse for the collection of
a debt which is owed by the conjugal partnership of gains, or whether such claim must be filed in proceedings
for the settlement of the estate of the decedent. The trial court and the Court of Appeals ruled in the affirmative.
We reverse.
The facts are as follows:
Respondent Romeo Jaring[1] was the lessee of a 14.5 hectare fishpond in Barito, Mabuco, Hermosa, Bataan.
The lease was for a period of five years ending on September 12, 1990. On June 19, 1987, he subleased the
fishpond, for the remaining period of his lease, to the spouses Placido and Purita Alipio and the spouses
Bienvenido and Remedios Manuel. The stipulated amount of rent was P485,600.00, payable in two installments
ofP300,000.00 and P185,600.00, with the second installment falling due on June 30, 1989. Each of the four
sublessees signed the contract.
The first installment was duly paid, but of the second installment, the sublessees only satisfied a portion
thereof, leaving an unpaid balance ofP50,600.00. Despite due demand, the sublessees failed to comply with
their obligation, so that, on October 13, 1989, private respondent sued the Alipio and Manuel spouses for the
collection of the said amount before the Regional Trial Court, Branch 5, Dinalupihan, Bataan. In the alternative,
he prayed for the rescission of the sublease contract should the defendants fail to pay the balance.
Petitioner Purita Alipio moved to dismiss the case on the ground that her husband, Placido Alipio, had
passed away on December 1, 1988.[2] She based her action on Rule 3, §21 of the 1964 Rules of Court which
then provided that "when the action is for recovery of money, debt or interest thereon, and the defendant dies
before final judgment in the Court of First Instance, it shall be dismissed to be prosecuted in the manner
especially provided in these rules." This provision has been amended so that now Rule 3, §20 of the 1997 Rules
of Civil Procedure provides:

When the action is for the recovery of money arising from contract, express or implied, and the defendant dies
before entry of final judgment in the court in which the action was pending at the time of such death, it shall not
be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment
obtained by the plaintiff therein shall be enforced in the manner especially provided in these Rules for
prosecuting claims against the estate of a deceased person.

The trial court denied petitioner's motion on the ground that since petitioner was herself a party to the
sublease contract, she could be independently impleaded in the suit together with the Manuel spouses and that
the death of her husband merely resulted in his exclusion from the case. [3] The Manuel spouses failed to file
their answer. For this reason, they were declared in default.
On February 26, 1991, the lower court rendered judgment after trial, ordering petitioner and the Manuel
spouses to pay private respondent the unpaid balance of P50,600.00 plus attorney's fees in the amount of
P10,000.00 and the costs of the suit.
Petitioner appealed to the Court of Appeals on the ground that the trial court erred in denying her motion to
dismiss. In its decision[4] rendered on July 10, 1997, the appellate court dismissed her appeal. It held:

The rule that an action for recovery of money, debt or interest thereon must be dismissed when the defendant
dies before final judgment in the regional trial court, does not apply where there are other defendants against
whom the action should be maintained. This is the teaching of Climaco v. Siy Uy, wherein the Supreme Court
held:

Upon the facts alleged in the complaint, it is clear that Climaco had a cause of action against the persons named
as defendants therein. It was, however, a cause of action for the recovery of damages, that is, a sum of money,
and the corresponding action is, unfortunately, one that does not survive upon the death of the defendant, in
accordance with the provisions of Section 21, Rule 3 of the Rules of Court.
xxxxxxxxx

However, the deceased Siy Uy was not the only defendant, Manuel Co was also named defendant in the
complaint. Obviously, therefore, the order appealed from is erroneous insofar as it dismissed the case against
Co. (Underlining added)

Moreover, it is noted that all the defendants, including the deceased, were signatories to the contract of sub-
lease. The remaining defendants cannot avoid the action by claiming that the death of one of the parties to the
contract has totally extinguished their obligation as held in Imperial Insurance, Inc. v. David:

We find no merit in this appeal. Under the law and well settled jurisprudence, when the obligation is a solidary
one, the creditor may bring his action in toto against any of the debtors obligated in solidum. Thus, if husband
and wife bound themselves jointly and severally, in case of his death, her liability is independent of and separate
from her husband's; she may be sued for the whole debt and it would be error to hold that the claim against her
as well as the claim against her husband should be made in the decedent's estate. (Agcaoili vs. Vda. de Agcaoili,
90 Phil. 97).[5]

Petitioner filed a motion for reconsideration, but it was denied on June 4, 1998. [6] Hence this petition based
on the following assignment of errors:
A. THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN APPLYING CLIMACO
v. SIY UY, 19 SCRA 858, IN SPITE OF THE FACT THAT THE PETITIONER WAS NOT
SEEKING THE DISMISSAL OF THE CASE AGAINST REMAINING DEFENDANTS BUT
ONLY WITH RESPECT TO THE CLAIM FOR PAYMENT AGAINST HER AND HER
HUSBAND WHICH SHOULD BE PROSECUTED AS A MONEY CLAIM.
B. THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN APPLYING IMPERIAL
INSURANCE INC. v. DAVID, 133 SCRA 317, WHICH IS NOT APPLICABLE BECAUSE THE
SPOUSES IN THIS CASE DID NOT BIND THEMSELVES JOINTLY AND SEVERALLY IN
FAVOR OF RESPONDENT JARING.[7]
The petition is meritorious. We hold that a creditor cannot sue the surviving spouse of a decedent in an
ordinary proceeding for the collection of a sum of money chargeable against the conjugal partnership and that
the proper remedy is for him to file a claim in the settlement of estate of the decedent.
First. Petitioner's husband died on December 1, 1988, more than ten months before private respondent filed
the collection suit in the trial court on October 13, 1989. This case thus falls outside of the ambit of Rule 3, §21
which deals with dismissals of collection suits because of the death of the defendant during the pendency of the
case and the subsequent procedure to be undertaken by the plaintiff, i.e., the filing of claim in the proceeding for
the settlement of the decedent's estate. As already noted, Rule 3, §20 of the 1997 Rules of Civil Procedure now
provides that the case will be allowed to continue until entry of final judgment. A favorable judgment obtained
by the plaintiff therein will then be enforced in the manner especially provided in the Rules for prosecuting
claims against the estate of a deceased person. The issue to be resolved is whether private respondent can, in the
first place, file this case against petitioner.
Petitioner and her late husband, together with the Manuel spouses, signed the sublease contract binding
themselves to pay the amount of stipulated rent. Under the law, the Alipios' obligation (and also that of the
Manuels) is one which is chargeable against their conjugal partnership.Under Art. 161(1) of the Civil Code, the
conjugal partnership is liable for ¾

All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and those
contracted by the wife, also for the same purpose, in the cases where she may legally bind the partnership.[8]

When petitioner's husband died, their conjugal partnership was automatically dissolved [9] and debts
chargeable against it are to be paid in the settlement of estate proceedings in accordance with Rule 73, §2 which
states:

Where estate settled upon dissolution of marriage. ¾ When the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried, administered, and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the
conjugal partnership shall be liquidated in the testate or intestate proceedings of either.

As held in Calma v. Tañedo,[10] after the death of either of the spouses, no complaint for the collection of
indebtedness chargeable against the conjugal partnership can be brought against the surviving spouse. Instead,
the claim must be made in the proceedings for the liquidation and settlement of the conjugal property. The
reason for this is that upon the death of one spouse, the powers of administration of the surviving spouse ceases
and is passed to the administrator appointed by the court having jurisdiction over the settlement of estate
proceedings.[11] Indeed, the surviving spouse is not even a de facto administrator such that conveyances made by
him of any property belonging to the partnership prior to the liquidation of the mass of conjugal partnership
property is void.[12]
The ruling in Calma v. Tañedo was reaffirmed in the recent case of Ventura v. Militante.[13] In that case, the
surviving wife was sued in an amended complaint for a sum of money based on an obligation allegedly
contracted by her and her late husband. The defendant, who had earlier moved to dismiss the case, opposed the
admission of the amended complaint on the ground that the death of her husband terminated their conjugal
partnership and that the plaintiff's claim, which was chargeable against the partnership, should be made in the
proceedings for the settlement of his estate. The trial court nevertheless admitted the complaint and ruled, as the
Court of Appeals did in this case, that since the defendant was also a party to the obligation, the death of her
husband did not preclude the plaintiff from filing an ordinary collection suit against her. On appeal, the Court
reversed, holding that ¾

as correctly argued by petitioner, the conjugal partnership terminates upon the death of either spouse. . . . Where
a complaint is brought against the surviving spouse for the recovery of an indebtedness chargeable against said
conjugal [partnership], any judgment obtained thereby is void. The proper action should be in the form of a
claim to be filed in the testate or intestate proceedings of the deceased spouse.

In many cases as in the instant one, even after the death of one of the spouses, there is no liquidation of the
conjugal partnership. This does not mean, however, that the conjugal partnership continues. And private
respondent cannot be said to have no remedy. Under Sec. 6, Rule 78 of the Revised Rules of Court, he may
apply in court for letters of administration in his capacity as a principal creditor of the deceased . . . if after
thirty (30) days from his death, petitioner failed to apply for administration or request that administration be
granted to some other person.[14]

The cases relied upon by the Court of Appeals in support of its ruling, namely, Climaco v. Siy Uy[15] and
Imperial Insurance, Inc. v. David,[16] are based on different sets of facts. In Climaco, the defendants, Carlos Siy
Uy and Manuel Co, were sued for damages for malicious prosecution. Thus, apart from the fact the claim was
not against any conjugal partnership, it was one which does not survive the death of defendant Uy, which
merely resulted in the dismissal of the case as to him but not as to the remaining defendant Manuel Co.
With regard to the case of Imperial, the spouses therein jointly and severally executed an indemnity
agreement which became the basis of a collection suit filed against the wife after her husband had died. For this
reason, the Court ruled that since the spouses' liability was solidary, the surviving spouse could be
independently sued in an ordinary action for the enforcement of the entire obligation.
It must be noted that for marriages governed by the rules of conjugal partnership of gains, an obligation
entered into by the husband and wife is chargeable against their conjugal partnership and it is the partnership
which is primarily bound for its repayment. [17] Thus, when the spouses are sued for the enforcement of an
obligation entered into by them, they are being impleaded in their capacity as representatives of the conjugal
partnership and not as independent debtors such that the concept of joint or solidary liability, as between them,
does not apply. But even assuming the contrary to be true, the nature of the obligation involved in this case, as
will be discussed later, is not solidary but rather merely joint, making Imperial still inapplicable to this case.
From the foregoing, it is clear that private respondent cannot maintain the present suit against petitioner.
Rather, his remedy is to file a claim against the Alipios in the proceeding for the settlement of the estate of
petitioner's husband or, if none has been commenced, he can file a petition either for the issuance of letters of
administration[18] or for the allowance of will,[19] depending on whether petitioner's husband died intestate or
testate. Private respondent cannot short-circuit this procedure by lumping his claim against the Alipios with
those against the Manuels considering that, aside from petitioner's lack of authority to represent their conjugal
estate, the inventory of the Alipios' conjugal property is necessary before any claim chargeable against it can be
paid. Needless to say, such power exclusively pertains to the court having jurisdiction over the settlement of the
decedent's estate and not to any other court.
Second. The trial court ordered petitioner and the Manuel spouses to pay private respondent the unpaid
balance of the agreed rent in the amount of P50,600.00 without specifying whether the amount is to be paid by
them jointly or solidarily. In connection with this, Art. 1207 of the Civil Code provides:

The concurrence of two or more creditors or of two or more debtors in one and the same obligation does not
imply that each one of the former has a right to demand, or that each one of the latter is bound to render, entire
compliance with the prestations. There is a solidary liability only when the obligation expressly so estates, or
when the law or the nature of the obligation requires solidarity.

Indeed, if from the law or the nature or the wording of the obligation the contrary does not appear, an obligation
is presumed to be only joint, i.e., the debt is divided into as many equal shares as there are debtors, each debt
being considered distinct from one another.[20]
Private respondent does not cite any provision of law which provides that when there are two or more
lessees, or in this case, sublessees, the latter's obligation to pay the rent is solidary. To be sure, should the lessees
or sublessees refuse to vacate the leased property after the expiration of the lease period and despite due
demands by the lessor, they can be held jointly and severally liable to pay for the use of the property. The basis
of their solidary liability is not the contract of lease or sublease but the fact that they have become joint
tortfeasors.[21] In the case at bar, there is no allegation that the sublessees refused to vacate the fishpond after the
expiration of the term of the sublease. Indeed, the unpaid balance sought to be collected by private respondent
in his collection suit became due on June 30, 1989, long before the sublease expired on September 12, 1990.
Neither does petitioner contend that it is the nature of lease that when there are more than two lessees or
sublessees their liability is solidary. On the other hand, the pertinent portion of the contract involved in this case
reads:[22]

2. That the total lease rental for the sub-leased fishpond for the entire period of three (3) years and two (2)
months is FOUR HUNDRED EIGHT-FIVE THOUSAND SIX HUNDRED (P485,600.00) PESOS, including
all the improvements, prawns, milkfishes, crabs and related species thereon as well all fishing equipment,
paraphernalia and accessories. The said amount shall be paid to the Sub-Lessor by the Sub-Lessees in the
following manner, to wit:

A. Three hundred thousand (P300,000.00) Pesos upon signing this contract; and

B. One Hundred Eight-Five Thousand Six-Hundred (P185,6000.00) Pesos to be paid on June 30, 1989.

Clearly, the liability of the sublessees is merely joint. Since the obligation of the Manuel and Alipio spouses
is chargeable against their respective conjugal partnerships, the unpaid balance of P50,600.00 should be divided
into two so that each couple is liable to pay the amount of P25,300.00.
WHEREFORE, the petition is GRANTED. Bienvenido Manuel and Remedios Manuel are ordered to pay
the amount of P25,300.00, the attorney's fees in the amount of P10,000.00 and the costs of the suit. The
complaint against petitioner is dismissed without prejudice to the filing of a claim by private respondent in the
proceedings for the settlement of estate of Placido Alipio for the collection of the share of the Alipio spouses in
the unpaid balance of the rent in the amount of P25,300.00.
SO ORDERED.