SOLEDAD L. LACSON, ET AL., PLAINTIFFS AND APPELLEES, VS. ABELARDO G. DIAZ, DEFENDANT AND APPELLANT.

The facts of this case are not
disputed: In connection with a final decision rendered by the Court of First
Instance of Negros Occidental in Civil Case No. 5790
(Soledad L. Lacson, et al. vs. Abelardo G. Diaz), sentencing therein defendant to pay the
plaintiffs the sum of P97,532.93 with legal interest
thereon from July 1, 1960 until fully paid, plus a sum equivalent to 25% of the
total amount as attorney’s fees, the court issued a writ of execution on August
1, 1961. On August 7, 1961, the Provincial Sheriff of Negros Occidental sent to the manager of Talisay-Silay Milling Company, wherein defendant Diaz was
employed, a notice to garnish one-third of his monthly salary and of any other
personal properties belonging to said defendant, to cover the total amount of
P132,718.30.

Diaz filed with the court a
motion to quash the writ of execution and to lift the notice of garnishment (of
his salary), on the ground that the same are not enforceable gait his present
family. It was claimed that since the judgment arose out of a contract entered
into by him during his first marriage, said judgment cannot be enforces against
his salaries which form part of the conjugal properties of the second marriage.
Plaintiffs opposed s motion, for the reason that re-marriage is not a cause for
extinction of obligations. As his aforesaid motion, after hearing, was denied by
the court for lack of merit, the defendant instituted the present
appeal.

Appellant does not dispute the
existence of the money judgment against him in the amount above-stated, which
decision was rendered in 1947 and affirmed by the appellate court in 1950. It
appears, however, that appellant, who became a widower in 1951, remarried in
1960. The writ of execution and notice of garnishment in this case were issued
and implemented in 1961. It is now contended that, as the conjugal partnership
resulting of the second marriage is different from that of the first marriage,
during which existence the obligation arose, such obligation, as far as the
second conjugal partnership is concerned, is personal to the husband and cannot
be charged against the properties of the second union. And, since his salaries form part of the conjugal assets, the same
cannot be garnished to satisfy his personal obligations. In support of this
proposition, appellant cites Article 163 of the new Civil Code and the ruling of
this Court that the right of the husband to one-half of the assets of the
conjugal partnership does not vest until the dissolution of the marriage.^[1]

Article 163 of the new Civil Code
relied upon by appellant provides:

“Art. 163. The payment of debts
contracted by the husband or the wife before the marriage shall not be charged
to the conjugal partnership.

“Neither shall the fines and
pecuniary indemnities imposed upon them be charged to the
partnership.

“However, the payment of debts
contracted by the husband or the wife before the marriage, and that of fines and
indemnities impost upon them, may be enforced against the partnership assets
after the responsibilities enumerated in article 161 have been covered, if the
spouse who is bound should have no exclusive property or if it should be
insufficient; but at the time of the liquidation of the partnership such spouse
shall be charged for what has been paid for the purposes
above-mentioned.”

As a general rule, therefore,
debts contracted by the husband or wife before the marriage,^[2] as well as fines and pecuniary indemnities
imposed thereon, are not chargeable to the conjugal partnership. However, such
obligations may be enforced against the conjugal assets if the responsibilities
enumerated in Article 161^[3] of tile new
Civil Code have already been covered, and that the obligor has no exclusive
property or the same is insufficient. Considering that the enforceability of the
personal obligation of the husband or wife, against the conjugal assets, forms
the exception to the general rule, it is incumbent upon the one who invokes this
provision or the creditor to show that the requisites for its applicability are
obtaining.

In the instant case, although it
is not controverted that there is due and owing the
plaintiffs-appellees a certain sum of money from the
appellant debtor-a personal obligation-yet, it has not been established that the
latter does not have properties of his own or that the same are not adequate to
satisfy appellees claim. Furthermore, there is no
showing that the responsibilities named in Article 161 of the new Civil Code
have already been covered in order that the personal obligation of the husband
may be made chargeable against the properties of the second
marriage

In view of the foregoing
considerations, this case is hereby remanded to the court of origin for further
proceedings, in accordance with the aforestated
observation. No costs.

So
ordered.

Bengzon, C.J., Bautista Angelo, Reyes,
J. B. L., Paredes, Makalintal, Bengzon, J. P. and
Zaldivar, J.J., concur.

^[1] Ansaldo, et al. vs. Sheriff of Manila, 64 Phil. 115.

^[2] In the absence of any rule to
the contrary, the foregoing provision shall apply to obligations contracted
during the first marriage by the surviving spouse who has
re-married.

^[3] “ART. 161. The conjugal
partnership shall be liable for: (1) 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, * * *; (2) Arrears or income due, during the
marriage, from obligations which constitute a charge upon property of either
spouse or of the partnership; (3) Minor repairs or for mere preservation made
during the marriage upon the separate property of either the husband or the
wife; major repairs shall not be charged to the partnership; (4) Major or minor
repairs upon the conjugal partnership property; (5) The maintenance of the
family and the education of the children of both husband and wife, and of
legitimate children of one of the spouses; (6) Expenses to permit the spouses to
complete a professional, vocational or other course.”