[ G. R. No. L-2090. September 27, 1948 ] 81 Phil. 512
[ G. R. No. L-2090. September 27, 1948 ]
TOMASA FACTURAN ET AL., PETITIONERS, VS. RAYMUNDA SABANAL, HEREDEROS DE FRANCISCO SEVILLA, BENEDICTO LIBCON, BERNABELA FACTURAN AND EUGENIO SEVILLA, RESPONDENTS. R E S O L U T I O N
FERIA, J.:
Contrary to petitioner’s contention, the transcription of stenographic notes attached to the record of the case elevated to this Court shows that exceptions were expressly taken from the trial court’s orders striking out the corroborative testimonies of witnesses for appellant. Under the last assignment of error such ruling might and it is to be presumed to have been discussed on appeal as erroneous (appellant’s brief not being attached to the reconstituted record), because of the legal presumption that the Court of Appeals, in considering said testimonies, acted in accordance with law. Even disregarding such corroborative evidence, widow’s own testimony to the effect that the property was acquired during marriage, even if uncorroborated by other evidence, is a sufficient basis for the legal presumption that the property in question is conjugal, there being no sufficient evidence to destroy said presumption according to the conclusion of the Court of Appeals,which can not be disturbed by this Court. Assuming that said testimonies were the only evidence on the acquisition of the property in question during marriage, and disregarding the widow’s testimony, the question of law; whether or not the Court of Appeals erred in reversing the rulings of the lower court that ordered that the corroborative testimony of witnesses for appellant be stricken out, is unsubstantial, for it is very obvious that said decision is in accord with law, because the statute of frauds on which the ruling of the Court of First Instance is based “is not applicable in actions which are neither for a violation of contract nor for the performance thereof,” (III Moran on Evidence, 165), and the action at bar is not such kind of action. And besides the statute of frauds is applicable only to executory contracts (dicto 167) and not to executed contracts such as the contract of sale of the property in question to the spouses during their marriage, testified to by the witnesses whose testimonies were stricken out by the erroneous ruling of the said Court of First Instance. Therefore the notion for reconsideration is denied. Moran, C. J., Paras, and Tuason, JJ., concur.