The settled rule is that defenses not pleaded in the answer may not be raised

The settled rule is that defenses not pleaded in the

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The settled rule is that defenses not pleaded in the answer may not be raised for the first time on appeal. 1 A party cannot, on appeal, change fundamentally the nature of the issue in the case. 2 When a party deliberately adopts a certain theory and the case is decided upon that theory in the court below, he will not be permitted to change the same on appeal, because to permit him to do so would he unfair to the adverse party. 3 Consequently, we have to disregard the petitioner’s theory that the action is for reformation of an instrument, and must proceed on the basis of the issues properly raised and ventilated before the trial court. - II - We do not agree with the respondent court’s legal conclusion that the deed of "Assignment of Right to Inheritance" is void ab initio and inexistent on the grounds that real consent was wanting and the consideration of P1.00 is so shocking to the conscience that there was in fact no consideration, hence, the action for the declaration of the contract’s inexistence does not prescribe pursuant to article 1410 of the new Civil Code. Article 1409 (2) of the new Civil Code relied upon by the respondent court provides that contracts "which are absolutely simulated or fictitious" are inexistent and void from the beginning. The basic characteristic of simulation is the fact that the apparent contract is not really desired or intended to produce legal effects or in any way alter the juridical situation of the parties. 4 The respondents’ action may not be considered as one to declare the inexistence of a contract for lack of consideration. It is total absence of cause or consideration that renders a contract absolutely void and inexistent. 5 In the case at bar consideration was not absent. The sum of P1.00 appears in the document as one of the considerations for the assignment of inheritance. In addition — and this of great legal import — the document recites that the decedent Mateo Carantes had, during his lifetime, expressed to the signatories to the contract that the property subject-matter thereof rightly and exclusively belonged to the petitioner Maximino Carantes. This acknowledgment by the signatories definitely constitutes valuable consideration for the contract. - III - The present action is one to annul the contract entitled "Assignment of Right to Inheritance" on the ground of fraud. Article 1390 of the new Civil code provides that a contract "where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud," is voidable or annullable. Even article 1359, which deals on reformation of instruments, provides in its paragraph 2 that "If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the parties, the proper remedy is not reformation of the instrument but annulment of the contract." When the consent to a contract was fraudulently obtained, the contract is voidable. 6 Fraud or deceit does not render a contract void ab initio, and can only be a ground for rendering the contract voidable or annullable pursuant to article 1390 of the new Civil Code by a proper action in court. 7
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  • Summer '14
  • Maximino Carantes

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