De Mesa v. Acero (G.R. No. 185064. Jan 16, 2012)

CASE DIGEST: SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE MESA, Petitioner, vs. SPOUSES CLAUDIO D. ACERO, JR. and MA. RUFINA D. ACERO, SHERIFF FELIXBERTO L. SAMONTE and REGISTRAR ALFREDO SANTOS, Respondents.

The family home’s exemption from execution must be set up and proved to the Sheriff before the sale of the property at public auction.

FACTS: X and Y are married and they live in a family home. For issuing bouncing checks, X was convicted. Civil damages were also granted against him. Time came to satisfy judgment.

The family home was levied upon and sold where Z, the judgment creditor was the purchaser in sheriff’s sale. They did not invoke the exemption from levy of the family home. They however renamed as lessees but for failure to pay the rentals, they were sued for ejectment where judgment was rendered. In the execution, they invoked the exemption of the family home from levy but the plaintiff contended that the spouses did not assert and prove that their house and lot was a family home prior to the public auction conducted by the sheriff.ISSUE: What is the effect of the spouses' failure to assert and prove that their house and lot was a family home prior to the public auction conducted by the sheriff?

HELD: Statutory rights not seasonably invoked may be considered waived. Their failure to invoke and prove that the house and lot was a family home is a waiver of such defense or right. In once case decided by the Supreme Court, it was held that at no other time can the status of a residential house as a family home can be set up and proved and its exemption from execution be claimed but before the sale thereof at public auction. The Court further explained:

While it is true that the family home is constituted on a house and lot from the time it is occupied as a family residence and is exempt from execution or forced sale under Article 153 of the Family Code, such claim for exemption should be set up and proved to the Sheriff before the sale of the property at public auction. Failure to do so would estop the party from later claiming the exemption.

Personal privileges when not invoked on time are waived.

The settled rule is that the right to exemption or forced sale under Article 153 of the Family Code is a personal privilege granted to the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself before the sale of the property at public auction. It is not sufficient that the person claiming exemption merely alleges that such property is a family home. This claim for exemption must be set up and proved to the Sheriff.

Having failed to set up and prove to the sheriff the supposed exemption of the subject property before the sale thereof at public action, they now are barred from raising the same. Failure to do so estops them from later claiming the said exemption.

Additional reading: Honrado v. CA, 512 Phil. 657 (2005)