G.R. No. 1619. December 02, 1905

This case comes from the Court of Land Registration. The petitioner,
Filomena Villarruel y Basilio, was the owner of the land described in
the petition, but prior to the presentation thereof she had sold a part
of the same to Miguel Herrera and the remainder to Petronila
Encarnacion, the appellee. In the deed of sale to Miguel Herrera there
was a clause which gave the petitioner the right to repurchase the
property within two years from the date of the sale, and in the deed to
Petronila Encarnacion there was a similar clause giving the petitioner
the right to repurchase the property within one year. At the time the
petition was presented the periods named in these deeds had not
expired, and the only right or interest which the petitioner had was
the right secured to her by the deeds to repurchase the land according
to the terms thereof. Miguel Herrera and Petronila Encarnacion appeared
in the court below and opposed the registration of the land.

The question in the case is whether the petitioner had a right at that time to register her aforesaid interest.

Act No. 496, section 19, gives the owner in fee simple the right to
register the land. There is no claim made in this case that the
petitioner was such owner.

That section also gives to a mortgagor the right to have his
interest registered, and it is claimed by the petitioner that she is a
mortgagor within the meaning of that section. The contract evidenced by
the deeds in this case is defined and governed by article 1507 et seq. of the Civil Code. It is known as the contract of pacto de retro.
The rights and obligations of the parties to such a contract are stated
in those articles and the two contracts in question come exactly within
the terms of those articles. The law in regard to mortgages is found in
the Mortgage Law, and in title 15 of book 4 of the Civil Code. An
examination of these provisions of the law will show that there is a
radical difference between a contract of pacto de retro and a
mortgage. Under the former if the seller does not repurchase the
property upon the very day named in the contract, by the express terms
of article 1509 he loses all interest therein, whereas by the
provisions in regard to mortgages the mortgagor does not lose his
interest in the property if he fails to pay the debt at its maturity.
It is the duty of the mortgage to foreclose the mortgage if he wishes
to secure a perfect title thereto, and after the maturity of the debt
secured by the mortgage, and before foreclosure, the mortgagor has a
right to redeem. In the case of a pacto de retro there is no
obligation resting upon the purchaser to foreclose. Neither does the
vendor, as has been said, have any right to redeem the property after
the maturity of the debt. When the word “mortgage” was used in section
19 of Act No. 496 there was in existence a contract of that name, and
it must be considered that the intention was to refer to that contract,
and not to any other. If it had been the intention of the Commission to
have included in section 19 rights derived from contracts differing
from mortgages both in name and nature, it would have undoubtedly so
stated. Since this case has been removed to this court a law has been
passed which expressly gives to a person in the situation of the
petitioner the right to have his interest registered. (Act No. 1108,
sec. 6.)

We hold, in conformity with the decision of the court below, that
the petitioner, at the time she presented her petition for
registration, was not entitled to have the land registered, and the
decision of that court is affirmed, and, after the expiration of twenty
days, judgment shall be entered accordingly and this decision certified
to the Court of Land Registration. Sa ordered.

Arellano, C. J., Torres, Mapa, Johnson, and Carson, JJ.,concur.