SERAFIA BAS, JORGE BAS, BASILISA BAS DE GIANAN, ASSISTED BY HER HUSBAND TOMAS GIANAN, AND RITA BAS DE MANLAGNIT, ASSISTED BY HER HUSBAND JULIAN MANLAGNIT, PLAINTIFFS AND APPELLA…

Vicente Bas married twice. The plaintiffs-appellants are his
legitimate children by his first wife Felipa Santelices. The
defendant-appellee Paulina de los Reyes is his second wife, whom he
married on October 15, 1928.

After the death of his first wife, and before marrying the
defendant, Vicente Bas acquired by purchase from Luisa Balaivo (Annex
A), the parcel of land which is the subject-matter of this litigation
that arose after his death, the plaintiffs claiming it as inheritance
from their father, and the defendant as a gift in consideration of
marriage, by virtue of the note appearing at the back of the document
of sale Annex A, which was written and subscribed by Vicente Bas:

“This date October 15, 1928, I am giving to
“Señora” Paulina de los Reyes this document of sale to show that she is
now the real owner of this document and without trouble of any kind for
I shall be responsible to any heir. In witness whereof, I signed this
date.

“Calolbon, October 15, 1928.

(Sgd.) “Vicente Bas”

In the Court of First Instance of Catanduanes (where the property is
located), the controversy was submitted upon a stipulation of facts,
and the issue was stated to be whether the defendant had acquired any
real right by virtue of the above annotation, the plaintiffs
maintaining the negative side, on the ground that as the transaction
was a donation, it should have been evidenced by a public instrument
and accepted by the donee. The defendant on the other hand contended
that a mere memorandum was sufficient under the statute of frauds.

The trial court rendered judgment for the defendant. The plaintiffs
appealed. They invoke the decisions of this court in Camagay vs. Lagera, Velasquez vs. Biala and Solis vs. Barroso ^[*] all holding that, to be valid as between the parties and as regards third persons, a donation propter nuptias must be made in a public instrument. The doctrine was founded mainly on articles 1328 and 633 of the Civil Code.

The above decisions appear to be conclusive on the matter.

The trial judge believed that inasmuch as under the statute of
frauds a mere memorandum signed by Vicente Bas was sufficient to prove
“an agreement made upon the consideration of marriage” there was in
this case a valid transfer of the realty to the defendant. His Honor
probably noticed that none of the above three cases discussed the
effects of the statute of frauds upon article 633 of the Civil Gode;
and so he felt free to opine differently.

But upon reflection, it will be perceived that the statute of
frauds merely provides for rules of evidence referring to the form of
contracts. Whereas the above civil law articles concern the substantial
validity of the contract or transaction.

In other words, by virtue of the statute of frauds, the agreement
in consideration of marriage could be proved by the memorandum; but the
effect of such private writing is governed by the Civil Code.

The appellee notes that section 335 of the Code of Civil Procedure
which is the source of section 21, Rule 123, has the caption
“Agreements invalid unless made in writing.” He argues that, by
inference, the agreements mentioned therein are valid if in writing. The caption is misleading, as has been pointed out in Conlu vs. Araneta (15 Phil., 387), Gallemit vs.
Tabiliran (20 Phil., 241), and others, because the section speaks of
evidence—not validity. Anyway, the caption of section 21, Rule 123, is
actually “Agreements which must be evidenced by writing.” Which
represents the true principle established by the rule.

Now, as a contract mentioned in the statute of frauds is not per se null and void simply because it is not written,^[1] it follows e converso, that such contract does not per se become valid simply because it is written.

Premises considered, the appealed decision is reversed and the
disputed parcel is declared to be property of plaintiffs as heirs of
Vicente Bas. The defendant will pay costs. So ordered.

Ozaeta, Pablo, Tuason, Montemayor, and Reyes, JJ., concur.

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^[*] 7 Phil., 397; 18 Phil., 231; 53 Phil., 912.

^[1] See Conlu vs. Araneta, Gallemit vs. Tabiliran, etc.