G. URRUTIA & CO., PLAINTIFF AND APPELLANT, VS. AMALIA MORENO AND LEON REYES, SHERIFF OF AMBOS CAMARINES, DEFENDANTS AND APPELLEES.

“1. Mendezona & Co., a partnership, in liquidation, obtained a judgment
on a bond in the Court of First Instance of Manila in civil cause No. 3326
against Mariano Moreno, as principal, and against Amalia Moreno, Camilo Moreno,
and Rafael Serra, as sureties, for the sum of P18,154.24, with interest at 6
percent per annum from the 11th day February, 1905; together with costs.
Mendezona & Co. on the 2d day of July, 1908, by an instrument in writting,
sold and transferred said judgment to G. Urruitia & Co.

“2. On the 1st day of July, 1908, the sheriff sold under execution issued
upon the judgment described in the preceding paragraph one house belonging to
Mariano Moreno, described in the first paragraph of the complaint, to Mendezona
& Co. for the sum of P2,500. At the same time and under the same execution
the sheriff sold seven parcels of land belonging to said Mariano Moreno,
described in the second paragraph of the complaint, to said Mendezona & Co.
for the various sums stated in the complaint, amounting in all to P2,710. Under
the same execution there were also sold other lands belonging to Mariano Moreno
and to his sureties, among them lands belonging to Amalia Moreno, those
belonging to the latter selling for P5,250.

“3. The clerk of the Court of First Instance of Manila on the 24th of June,
1908, issued an execution upon a judgment in civil cause No. 4905 in an action
entitled G. Urrutia & Co. vs. Mariano Moreno, said judgment being
for the sum of P27,185.90, with interest from the 31st of July, 1906, at 9 1/2
per cent per annum. Said G. Urrutia & Co. presented said execution to the
registrar of real estate titles of the Province of Ambos Camarines on the 24th
of July of the same year, who entered in his daily registry of property at folio
483, entry No. 6411, the following annotation:

” ‘Don Antonio V. Herrero, agent and attorney for G. Urrutia & Co.,
presents at 4.30 of the afternoon of this day an execution issued in cause No.
4905 in the Court of First Instance of Manila begun by G. Urrutia & Co. as
plaintiff against Mariano Moreno as defendant, a judgment wherein [which] was
entered by Judge Powell in favor of the plaintiff company; said presentation of
said execution being made for the purpose of making a levy upon all of the real
estate which according to the index of the registry of property belongs to said
Mariano Moreno, said company desiring at the same time to levy upon and attach
the right of redemption therein which said Mariano Moreno has according to
section 464 of the Code of Civil Procedure in each and every one of said parcels
of land which appears in his name, it appearing that all of said parcels are
announced for public sale on the 27th of the present month. Nueva Caceres, 24th
of July, 1908. (Sgd.) Tomas Flordeliza.—Antonio V. Herrero.’

“The registrar made a preventive annotation of said execution in the books
and pages corresponding to the lands described in paragraphs 1 and 2 of the
complaint.

“4. Doña Amalia Moreno, as surety of said Mariano Moreno, and subrogated to
the rights of Mendezona & Co. and its successors in interest, delivered to
the defendant sheriff, Leon Reyes, the sum for which the lands of Mariano Moreno
described in the complaint had been sold, together with interest at 1 per cent
per month to the 16th of June and the 22d of July, 1909, and said sheriff
executed to said Amalia Moreno two documents to the effect that the said Amalia
Moreno had redeemed the said lands as such surety and under said subrogation
within the legal period.

“5. No other creditor of Mariano Moreno, nor any other person, has redeemed
the said lands described in the complaint.

“6. G. Urrutia & Co., on its own behalf and as successors in interest to
Mendezona & Co., refused to receive the sum delivered by Amalia Moreno to
the sheriff for the redemption of the lands of Mariano Moreno and refuses to
recognize the validity of such redemption and alleges that Amalia Moreno had and
has no right to redeem nor to retain possession of the said lands of Mariano
Moreno, nor to be subrogated in the rights of Mendezona & Co. and its
successor in interest.

“7. Doña Amalia Moreno is now and has been since the month of July, 1909, in
possession of the lands described in the complaint, pretending that she is the
owner of the same and alleging that having been obliged to pay as surety of said
Mariano Moreno the sum of P5,796.66 for the satisfaction of the judgment against
him, she was subrogated in all of the rights which pertain to Mendezona &
Co. or t6 its assigns with regard to the said lands to the extent of the money
paid by her.

“8. The amount paid by Amalia Moreno for the redemption of skid lands
described in the complaint is in the hands of the defendant sheriff, Leon
Reyes.”

Upon this statement the learned trial court held that Amalia Moreno was
entitled under the law to redeem the premises belonging to Mariano Moreno which
were sold under the judgment held by Mendezona & Co. This appeal is from
that judgment.

The question presented for our determination is whether or not a surety
against whom a judgment has been obtained jointly with the principal can redeem
the real estate belonging to the principal which was sold by virtue of an
execution issued upon said judgment, the surety having been obliged to
contribute to the payment thereof.

It does not appear from the record whether the judgment was fully satisfied
by the sale of the properties described in the stipulation of facts. Whether it
was or not we do not consider important, although the claim that it was not
perhaps gave rise to the contention that the case of Somes vs. Molina (15 Phil,
Rep., 133), is decisive of this case. Whether the judgment was fully paid by the
sale under execution does not affect in any way the right to redeem, whereas in
the Somes case it was the decisive question. In that case we held that
subrogation rests upon purely equitable grounds and will not be enforced against
superior equities; and that it ought not to be allowed to the plaintiff in that
case because it would work an injustice to the creditor. For the purpose of
showing its inapplicability to the present case, we incorporate a memorandum
which, while not added as a part of the opinion in that case, was before the
court and was part of the reasoning by which the final decision was reached.

“Subrogation ought not to be allowed to the plaintiff because it would work
an injustice to the creditor. The defendant Molina, in making Somes pay under
the appeal bond, merely took advantage of a right which Somes gave him. Can
Molina, in thus exercising that legal right, be made to suffer in his relations
with De la Riva? Can one be prejudiced for rightfully taking what the law gives
him? No act of Molina injured Somes. If the latter has suffered any loss it is
because of his own act in signing the bond in question. What Molina did was
merely to take advantage of a right which Somes had already given him and for
the exercise of which Molina had already paid a valuable and adequate
consideration. The bond in question, so far as Somes is concerned, is not
without consideration; the consideration for the principal the consideration
also for the secondary obligation of Somes as surety. Molina had a right, except
for the intervention of the law of appeal, to take advantage of judgment No.
3402, which he had secured against De la Riva, and proceed to collect it
forthwith. Every presumption was in favor of its validity and he had the
undoubted right to proceed at once to its collection,, except for the code
provisions relating to appeals. They provide that when a judgment-debtor shall
appeal from the judgment against him, the judge of the court from which the
appeal is taken may require him to give a bond, with sufficient sureties,
conditioned that, in case the judgment is affirmed by the appellate court, he
will see that it is paid. This bond is required by the judge when he believes it
necessary for.the protection of the judgment creditor. By this provision the
judgment-creditor, by being obliged to forbear collection of the judgment he
has, is deprived of. certain rights, and, in compensation for and the protection
of those rights, he is given a bond by the judgment-debtor by which he shall be
assured of the payment of his judgment should it be affirmed by the appellate
court. AH this indicates clearly and necessarily that the law regards the
forbearance of the judgment-creditor as a valuable and adequate consideration
for the obligation of the judgment-debtor and the sureties incurred under the
bond in question. If this were not so, and, if the judgment-creditor were not,
by his forbearance, giving a valuable consideration, then the law would
be giving him something for nothing, in that it would be requiring his
protection at the hands of the judgment-debtor and his sureties without the
judgment-creditor doing anything to warrant it. This the law never does. That
forbearance to prosecute a judgment to collection is a valuable and adequate
consideration upon which to found an obligation is recognized in the
jurisprudence of every country, and the law, in requiring a bond on appeal as a
prerequisite to this forbearance, recognizes fully the valuable and adequate
character of such for bearance as a consideration for that bond.

“The result of all of this is that, when the bond is executed and the
creditor is obliged to forego the prosecution of his judgment, the transaction
is closed; the creditor has paid his consideration and, as a result thereof, the
surety has, incurred his obligation. Now, to compel the surety to fulfill that
obligation does not require any new consideration on the part of the
judgment-creditor; nor does it place him under a new or additional obligation.
The consideration for what the surety does when he pays was given by the
creditor when he withheld the prosecution of his judgment, even though that was
done by mandate of the law. It ought to be evident that no new obligation is
incurred by the creditor in requiring the surety to do the very thing for which
the original consideration was given by the creditor. Therefore, if subrogation
is allowed in this case and the surety is permitted to share with the creditor
in the debtor’s property pro rata, we are making the creditor pay again for the
privilege of collecting from the surety on an obligation the consideration of
which had already once been paid by the creditor. When the creditor with holds
his rights to collect and awaits the law’s delays, and the resulting risks, for
an opportunity to prosecute the appeal from the judgment which he has obtained
in order that he may realize upon it, and incurs the expenses incident thereto,
is it then just to say to him that he must divide the benefits which the law
gives him for this waiting, this expense, and this risk, with the very man who
has caused it all? The weapon which the law gave the creditor for his own
protection ought not now to be placed in the hands of his enemies for use
against him.

“When the creditor’s obligation against the debtor is fully paid, then the
surety will have his subrogation to the rights of the creditor in this judgment,
and he may then take it and collect it against the debtor whenever opportunity
may offer.

“It is evident that if subrogation is allowed in this case the creditor will
be injured. He has already collected judgment No. 3402 from the plaintiff’s
surety, Somes. This he had a right to do because he had long before paid? the
consideration for the privilege of doing that very thing. There remains of the
judgment-debtor’s property not enough to pay the two remaining judgments now
held by the judgment-creditor against him. If now Somes is allowed to be
subrogated and share under judgment No. 3402 with the judgment-creditor in said
property, pro rata, it is evident that the creditor will be injured; for, the
property of the debtor, which ought to be divided between two judgments, will be
divided among three. Bearing in mind the fact that the creditor has already paid
for the privilege of making Somes pay judgment No. 3402, why should he pay again
for that same privilege by permitting Somes to share in property which
rightfully belongs to him?”

This additional exposition of the Somes case shows that it is not authority
in the case before us. Here the question is one of redemption rather than one
between the creditor and the surety. The former right is granted by statute and
its provisions define specifically and clearly the persons who are entitled to
exercise it. Section 464 of the Code of Civil Procedure reads:

“Who may redeem.—Property sold subject to redemption, as provided in
the last section, or any part sold separately, may be redeemed in the manner
hereinafter provided, by the following persons, or their successors in
interest:

“1. The judgment debtor, or his successor in interest in the whole or any
part of the property;

“2. A creditor having a lien by attachment, judgment, or mortgage on the
property sold, or on some part thereof, subsequent to that on which the property
was sold.

“Persons mentioned in the second subdivision of this section are termed
redemptioners.”

From these provisions it is clear that in order to be able to redeem, the
defendant Amalia Moreno must be either the judgment-debtor or his successor in
interest or must hold a lien by judgment or mortgage upon the premises to be
redeemed, which lien is subsequent to the lien of the judgment under which
the property to be redeemed was sold. Passing without comment the word
“lien,” as it has been defined by this court, we observe instantly when we ask
the question whether or not the defendant Amalia Moreno falls within the first
class entitled under the section to redeem, that she does not fall within that
class unless her contribution to the payment of the judgment against her
principal is sufficient in law to substitute her in the place of the
judgment-debtor or to make her his successor in interest to the extent of
conferring upon her the right to redeem. We are of the opinion that she does not
occupy the place of the judgment-debtor in this or any sense. The right of
redemption is a right belonging to the debtor and cannot be taken away from him
without authorization of law. If the surety upon payment of the judgment were to
be substituted in his place and allowed to redeem as such, the right of the
judgment-debtor would be thereby destroyed or, better said, would be exercised
by another and he would be unable to exercise it thereafter himself. The surety
has no right directly to take the property of his principal whose debt he has
paid or assisted in paying unless he is expressly authorized to do so by law or
has pursued the courses necessary under the law to that end. Courts are not
authorized, generally speaking, to take rights from one person and give them to
another without notice to the person from whom they are taken and an opportunity
to be heard. Not being the judgment debtor or his successor in interest, in
short, not representing him in such a way, as to be able to exercise his right
relative to the redemption, defendant’s claim under the first class must
fail.

We arrive at the same conclusion when we consider whether the defendant falls
within the second class. As a general proposition it is true that when a surety
pays a judgment which has been obtained jointly against him and his principal,
he is subrogated to the rights of the creditor (not the
debtor) in the judgment and may execute that judgment against his
principal in the same manner and with the same effect as the creditor could have
executed it; and it is a rule laid down by some courts that the judgment is kept
alive and subsists as a lien in favor of the surety paying it. This principle of
subrogation, however, does not aid the surety in this case. The judgment, to the
rights in which she is subrogated, is the same judgment that the creditor
held. Its lien is the same as to time. The code, however, requires, before
the right of redemption can be exercised, that the person who exercises it must
be the owner of a judgment the lien of which is subsequent to the
judgment under which the sale of the property to be redeemed was made. This is
the particular provision which prevents the defendant from exercising the right
of redemption under the second class even though we concede to her the benefits
of the widest doctrine of subrogation. The language of the statute is plain. It
needs no interpretation or construction. Our duty, then, is simply to apply it.
Applying it, we exclude the defendant from the class known as redemptioners.

It is, therefore, adjudged that the defendant Amalia Moreno has no right to
redeem the lands belonging to Mariano Moreno sold under judgment obtained
against him by Mendezona & Co. and referred to in the stipulation of facts;
and that the attempt to redeem and all of the acts performed in relation thereto
by said defendant are without force or effect against the plaintiff. The
judgment is reversed, without costs in this instance.

Nothing in this decision shall be understood as preventing Amalia Moreno from
redeeming her own lands that were sold under execution, provided she
has not done so, and her right to do so still subsists.

Arellano, C. J., Torres and Araullo, JJ., concur.

Johnson, J., concurs in the result.

Carson and Trent, JJ., dissent.