35. Peyer vs. Martinez, G.R. No.

L-3500, January 12, 1951

Republic of the Philippines

EN BANC 

G.R. No. L-3500             January 12, 1951

ROBERT C. PEYER, petitioner, 
vs.
FELIX MARTINEZ, Judge, Court of First Instance of Manila, TERESA FANLO PEYER, and
HONGKONG AND SHANGHAI BANKING CORPORATION, respondents.

Gibbs, Gibbs, Chuidian and Quasha for petitioner.

TUASON, J.:

This is a petition for certiorari and mandamus to review certain orders of the Court of First Instance
of Manila in civil case No. 7769, and to command the respondent judge to reopen that case and
allow petitioner's intervention therein.

It appears that Teresa Fanlo Peyer is, or was, the wife of Robert C. Peyer, who left the Philippines
on April 1, 1948 with one Grace Ryle allegedly to escape trial for concubinage with which he and
Ryle were to be charged in the Court of First Instance of Manila.

On March 30, 1949, Teresa Fanlo Peyer brought an action, docketed as case No. 7796, in the said
court of first instance against the Hongkong and Shanghai Banking Corporation (1) to compel that
Bank to cancel a real state mortgage executed in its favor by Robert C. Peyer over the conjugal
house at 150 V. Mapa, Manila, and (2) upon payment of the outstanding mortgage debt in the sum
of P15,000, to surrender to the plaintiff the Torrens certificate of title to that house, Manufacturer's
Life Insurance policy No. 683258, and certain shares of stock or corporate securities, all of which
admittedly are owned in common by the spouses.

It was alleged that Robert C. Peyer formerly had an indebtedness of P120,000, more or less, by way
of overdraft in current account with the defendant Bank; that as security for the payment of his
indebtedness Robert C. Peyer executed a real estate mortgage in favor of the Bank on the conjugal
home aforementioned and also pledged the said insurance policy and shares of stock or securities;
that during the enemy occupation the payment of Peyer's debt was demanded by the Bank of
Taiwan in its capacity as liquidator of the so-called enemy banks, and such payment was effected
except the P15,000 which was left outstanding. It was explained that although the aforesaid house,
insurance policy, and shares of stock or securities were conjugal assets, yet she was bringing the
action as afeme sole (a) because the plaintiff had been living at said house separate and apart from
her husband since June, 1945, for the reason that, as above stated, the latter had abandoned and
deserted her in order to live with another woman not his wife, which led to the filing of a criminal
complaint for concubinage him and Grace Ryle; (b) because Robert C. Peyer was a fugitive from
justice having fled from the Philippines on April 1, 1948 together with Grace Ryle without any
intention of returning in order to avoid trial and punishment for said crime; (c) because in thus
leaving the Philippines Robert C. Peyer had rendered himself absolutely disqualified to discharge the
duties incumbent upon him as manager of the conjugal properties and exposed these to lose and
damage; (d) because in order to defraud and further prejudice the interest of the plaintiff in the
community property, Robert C. Peyer on September 12, 1946 changed the beneficiary of his various
insurance policies, including the Manufacturer's Life Insurance policy, the premiums on which had
been paid out of the conjugal funds, and substituted for the plaintiff as beneficiary, without her
consent, the name of Lula G. Ryle; (e) because the plaintiff was without any means to support
herself and her daughter, who had been placed under her legal custody, as Robert C. Peyer had
failed to send her monthly allowances in violation of a court order in civil case No. 70172, an order
which was affirmed by the Supreme Court in G. R. No. L-145, on September 7, 1946. 1

The complaint was subsequently amended, with the court's approval previously had, so as to include
a prayer for authority "to dispose of or sell said shares and/or securities and have the complete
power of disposition over the conjugal house and Manufacturer's Life Insurance policy No. 683258."

The defendant Bank made a motion for compulsory joinder of Robert C. Peyer as an indespensable
party. That motion having been denied, the Bank filed an answer alleging that its only interest in this
litigation was that it be paid whatever balance remained unpaid of the overdraft account of Robert C.
Peyer, after deducting the payment alleged to have been made during the Japanese occupation to
the Bank of Taiwan; that upon receipt of such balance it was ready and willing to execute a
cancellation of the mortgage on the house at 150 V. Mapa and to hand over the insurance policy and
the corporate securities it had received in pledge from Robert C. Peyer, to whoever the court might
find lawfully entitled thereto.

The court upon trial handed down a decision the dispository part of which is as follows: "For the
foregoing, let a judgment issue requiring the defendant bank to execute a deed of cancellation of the
real estate mortgage over the house at 150 V. Mapa, upon payment of the amount of P15,000, and
thereafter to surrender to the plaintiff the corresponding title and to deliver to the same plaintiff the
Manufacturer's Life Insurance Policy No. 683258 and the shares of stock and/or securities listed in
Annex 'A'.

"The plaintiff shall preserve and properly manage those properties, and she may dispose thereof for
the purposes, and subject to the conditions set forth above. She may also lease the property on 150
V. Mapa St., Manila."

This judgment was promulgated on July 12, 1949 and the Hongkong and Shanghai Banking
Corporation did not appeal, but on August 11, the law firm of Gibbs, Gibbs, Chuidian and Quasha,
as attorneys for Robert C. Peyer filed a motion to intervene, to reopen the case and to set aside the
judgment. The last motion having been denied, the said attorneys instituted the instant proceedings,
alleging that "the respondent Judge acted not only without or in excess of his jurisdiction, but also
unlawfully excluded petitioner, without his presence, from the use and enjoyment of his managerial
rights over the conjugal properties to which he is by law entitled."

Foremost among the questions raised is whether Robert C. Peyer is an indispensable or necessary
party to the action. The answer to this question will largely decide the others. Consideration of
collateral matters brought out in the annexes to the pleadings will be omitted from this decision
except in so far as they may have some bearing on the issues herein formulated.

Section 4 of Rule 3 provides:

(a) When the action concerns her paraphernal property;

(b) When the action is between herself and her husband;

(c) When she is living separately and apart from her husband for just cause.

Subparagraph (c) of this section fits into the facts of the present case. Not only are the plaintiff and
her husband living apart but he has deserted and abandoned his wife and child. More than that, the
suit, it is to be kept in mind, is not one against the husband but one, in the eyes of the law at least, to
preserve the property in which he and the plaintiff have a common interest, and to use it to meet
common responsibilities. From both viewpoints and from the very nature of the situation, the wife
must necessarily sue alone to protect her natural right and manage the property during her
husband's absence. The husband can not expect to be made a party when it is precisely from his
inability to act and from the exigencies of the case that the wife derives her cause of action. To
include him and require that he be served with process by publication or any other mode would, to a
large measure, be a contradiction and defeat the law's purpose.

Aside from specific rules of court, authorities are numerous and emphatic in the assertion of the
legal capacity of the wife to sue without her husband under such circumstances as those in which
the plaintiff here finds herself and the conjugal property. Grounded on public policy, on simple
justice, and on the fundamentals of ownership, these authorities are of universal application, sound
and good under all legal systems of civilized society. A few of them, selected at random, should
suffice for illustration.

In exceptional cases the wife may sue to recover community property. Law of Marital Rights,
Speer, 3d Ed., sec. 510.

One of these cases is when she has been abandoned and deserted by her husband.
(Savage Oil Co., vs. Johnson et al., No. 3941, 141 S. W., 2d, p. 996.).

Mr. Sanborn has abandoned his family and his homestead, and abjured the realm. He is in
voluntary banishment and hiding, a confessed criminal, to avoid arrest and punishment for a
great crime. A wife, under those circumstances, is regarded by the law as a feme sole for
the purpose of suing and being sued. Story Eq. PI., sec. 71; 6 Am. and Eng. Enc. Law, 734;
Clarke vs. Valentino, 41 Ga., 145; Love vs. Moynehan, 16 Ill., 278; Gregory vs. Pierce, 4
Metc. (Mass.), 478." (Sanborn vs. Sanborn, 62 N. W., 372.).

A husband's right to sue alone for the recovery of community property is incidental to his
statutory right to the exclusive management thereof based on the assumption that he will
discharge his obligation as the head of the family, and not on any legal disability of the wife,
so that when the husband leaves his wife, the reason for his control over community property
ceases, and an action by the wife alone for damages for slander was not fundamentally
defective that her petition would be disregarded and her suit treated as a nullity. . . . It was
not essential to her right to sue alone that the husband should have expressly refused to
bring a suit, as the jury might conclude that if she had not brought it, it would not have been
brought, and that any damages recoverable would have been lost, and that she was
dependent on her own resources or the generosity of her parents for support. (Davis vs.
Davis, 186 S. W., 776.).
 While the right to manage and control the community estate is by the terms of the statute to
continue with the husband during the existence of the marriage relations, still it must be
necessarily meant to apply only in those cases where the husband by his presence and
willingness to assume such duty and trust is in a position to properly discharge the same with
justice to the wife. "The authorities are numerous to the effect that, where the husband has
abandoned his wife and is no longer discharging the duties incumbent upon him as manager
of the connubial partnership, the rights of the wife which have hitherto been passive
immediately become active, and she herself may do things which ordinarily are intrusted by
law to the husband as the head of the family. This arises out of necessity of the situation,
based upon the inherent right of the wife herself to her own property and a share in the
community, and out of the dereliction of the husband in the discharge of the statutory duties
imposed upon him as agent of the community." Speer's Law of Marital Right, sec. 112, p.
154. See authorities there cited in note. (Webster vs. Isbell, 71 S. W., [2d], 346.)

Article 1441 of the Civil Code, cited and relied upon by the petitioner, tends to uphold rather than
detract from the validity of the challenged judgment. The article says:

"Art. 1441. The management of the property belonging to the marriage shall transferred to the wife:

1. Whenever she may be the guardian of her husband in accordance with article 220;

2. When she institutes proceedings to have her husband adjudged an absentee, in

3. In the case provided for by the first paragraph of article 1436.

The courts shall also confer the management upon the wife, with such limitation as they may
deem advisable, if the husband should be a fugitive from justice or should have been
adjudged in default in a criminal case, or, if, being absolutely disqualified for the
administration, he should have taken no steps with respect thereto.

These provisions refer to permanent transfer of management of the community property, and it is
doubtful if they contemplate temporary administration such as that granted the wife by the
respondent Judge. Supposing however that they are, by analogy, applicable, then the wife's cause is
rendered the stronger by reason thereof; for the article permits the wife to assume the management,
with the authority of a court of competent jurisdiction, when the husband is absent or otherwise unfit
to discharge his duties as administrator. The plaintiff and the court below did just that.

Counsel are probably right in contending that under the article in question, declaration of the
husband's absence must precede the transfer of the management; i.e., it must be sought in a
separate action in which the absent husband or his representative was given an opportunity to be
heard. But if this be so, the requirement, eminently remedial or procedural in character, must be
deemed superseded by the new Rules of Court. By section 4 of Rule 3, supra, applications to
pronounce the husband an absentee and to place the management of the conjugal assets in the
hands of the wife may, in our opinion, be combined and adjudicated in one and the same
proceeding.

We therefore concluded that Robert C. Peyer was not an indispensable or necessary party and that
the court below properly proceeded in trying and deciding the case without him being joined. It
likewise follows that the lower court did not err in disallowing his motion to intervene.
Allowance of a motion to intervene rests in the sound discretion of the court where the proposed
intervenor is not an indespensable party. In the exercise of that discretion, the court shall consider
whether or not the intervention will unduly or prejudice the adjudication of the rights of the original
parties and whether or not the intervenor's rights may be fully protected in a separate proceeding.
(Sec. 3, Rule 13) In the light of this provision and of the circumstances of the case, and putting aside
the fact that the judgment had become final when the husband's motion to intervene was registered,
the court did not abuse its discretion. There was no possible injury to the husband's interest flowing
from his omission for which he could not obtain redress in other ways; nor was there any valid
objection to the proceeding which he could make. (The nature of his objection and what he intended
to do are not disclosed.) As long as he stays away we can not see any substitute for the wife's
management which he could offer. Upon the principles set out the decisions herein before quoted,
nothing short of his physical presence in the country or his ready availability personally to administer
the conjugal property should stop the wife from replacing him in the administration. It is only upon
these conditions that he can keep the management under the Civil Code. Managing the conjugal
property by remote control over the opposition of his wife who has an equal share in the property
would not do. (See Davis vs. Davis, supra, and Webster vs. Isbell, supra.)

The husband's management of the conjugal estate is not a natural right like his right to do as he
pleases with his private affairs. It is a mere privilege or preference given him by law on the
assumption that he is better able to handle the administration. It results that when his supposed
superiority over the woman in this regard; when indeed, as in this case, his ability as manager totally
disappears, the raison d' etre of the privilege vanishes, and it is only just and proper that his co-
partner should take control.

Upon the facts of this case, the petitioner should be content with instituting, if he so desires, an
independent action to liquidate the partnership or contest the right of his wife to take over its
management. Not being a party to his wife's action he is not barred from pursuing this course. If
such procedure would, as he claims, entail delay, he can afford to wait better than his wife and his
child. After all, he himself has created the emergency and is estopped from complaining against its
consequences. While, as a general proposition, multiplicity of suits is abhorrent, this is one case
which should operate as an exemption to the rule. The case demands prompt and resolute action to
cope with an existing emergency — to enable the plaintiff to tide over her plight, to meet her and her
child's necessities, and to meet conjugal obligations long overdue. As Mr. Chief Justice Cardozo of
the New York Court of Appeals, later Associate Justice of the United States Supreme Court, has
said, "The law does not stand upon punctilible if there is a starving wife at home."

It is interesting to note, apropos of this topic, that the husband time and opportunity at the start of the
suit to come into the case and do whatever he now proposes to do. Notwithstanding the plaintiff's
objection to his joinder suggested by the Hongkong and Shanghai Banking Corporation, Attorneys
Ross, Selph, Carrascoso and Janda, who were or had been his lawyers, were notified by the
counsel of the defendant of the pending suit. We find no denial that the notification was relayed to
the plaintiff which in the ordinary course of professional dealings the said attorneys are presumed to
have done.

Before closing, it is worth repeating and re-emphasizing that under the terms of the judgment
complained of, the administration conferred upon the wife is temporary; that said administration is
open to the defendant to reclaim and resume if and when he comes forward and puts himself in a
position to attend to it in the manner and form provided by law, and that in the last analysis the wife
is authorized by the judgment to do no more than what the defendant himself would be compelled to
do if he were the administrator.
Upon the foregoing considerations, the petition for certiorari and mandamus is dismissed, with costs
against the petitioner.

Ozaeta, Feria, Pablo, Bengzon, Montemayor and Reyes JJ., concur.