MARIA C. VIUDA DE ECHEGOYEN, PLAINTIFF AND APPELLEE, VS. JUAN M. COLLANTES Y JAVIER ET AL., DEFENDANTS AND APPELLANTS.

The
plaintiff herein in her capacity as administratrix of the intestate
estate of her deceased husband, Rafael Echegoyen, brought this action
in the Court of First Instance of Manila to foreclose the real estate
mortgage constituted by the defendants herein to secure a loan obtained
by them in the amount of P90,000 plus interest thereon at the rate of
10 per cent per annum. The defendants appealed from the judgment
rendered in this case, the dispositive part of which reads as follows.

“Let
judgment be entered herein sentencing the defendants to pay to the
office of the clerk of this court or to the plaintiff, within the
period of ninety (90) days after this judgment becomes final, the sum
of P90,000 representing the amount loaned, together with interest
thereon at 10 per cent per annum from October 15, 1931, until fully
paid, plus the insurance premium of P527.64 with interest thereon at 10
per cent per annum from December 16, 1931, also until fully paid, with
the costs of this suit. Attorney’s fees equivalent to 10 per cent of
the debt, that is P9,000, is claimed in the complaint, but, inasmuch as
this court believes the amount in question to be very excessive in view
of the nature of the action and the professional services rendered by
the attorney in this case, the court sentences the defendants1 herein
to pay the sum of P1,000 only as attorney’s fees, which sum shall be
understood doubled in the event that the said defendants appeal from
this judgment. It should be understood, further, that the mortgaged
property shall be sold at public auction and the proceeds thereof
applied to the payment of the aforesaid amounts. It is so ordered.”

On April 15, 1930, Juan M. Collantes, Maria E. Collantes, Antonio
Collantes, Felicidad P. Collantes and Paz P. Collantes, the last two
represented by their guardian Juan M. Collantes, obtained a loan of
P90,000 from Rafael Echegoyen, binding themselves to pay interest
thereon at 10 per cent per annum, to insure the real properties for
P30,000, to pay the corresponding premium, and to pay a penalty of 10
per cent in case the terms of the contract are violated and judicial
action is brought by the creditor. To secure the loan in question, they
mortgaged the two parcels of land together with the improvements
thereon, described in the complaint and in the annex A. The mortgage
thus constituted was duly recorded in the office of the register of
deeds of Manila and noted on the transfer certificate of title No.
33163. Beginning October 15, 1931, the appellants defaulted in the
payment of the interest stipulated as well as of the premium on the
insurance of the buildings, amounting to P527.64 which was paid by the
plaintiff.

The appellants appeared in court in their own
behalf, without the aid of any counsel, and in their answer they
alleged, by way of special defense, that the complaint was prematurely
filed giving as their ground therefor that the interest in the payment
of which they defaulted fell due only on December 20, 1931, and
therefore, the right of action of the appellee has not yet commenced,
inasmuch as the mortgage contract requires default in the payment of
the interest thereon for two consecutive months. The appellants did not
appear during the trial of the case and their motion for the
postponement thereof was denied by the court. Notwithstanding all the
foregoing, the said appellants assign in this appeal seven (7) alleged
errors from which it may be inferred that the only questions raised
are: (1) That the mortgage was null and void on the ground that two
minors who were not legally represented concurred therein, and (2) that
the action brought by the appellee was premature.

When the
mortgage in question was constituted, Felicidad P. Collantes and Paz P.
Collantes were really minors, but they were represented by their
brother and guardian Juan M. Collantes who signed for them. The
assignment of error relative to the intervention of the two minors in
question is unfounded: (a) Because it is raised for the first time in this appeal, and (b)
because, in the absence of proof to the contrary, it should be presumed
that the guardian who represented them was duly appointed and
authorized to execute the mortgage in question.

The last
assignment is, likewise, unfounded. According to the terms of the
mortgage, the interest thereon, with the exception of that for the
month of April, 1930, was due and payable in advance during the first
five days of every calendar month. The interest due and unpaid
corresponded to the period from October 15, to December 15, 1931, and
the complaint was filed on December 17, 1931. It is evident, therefore,
that the action was filed after the interest corresponding to two
consecutive months had fallen due, and also after the appellants herein
had failed to pay it.

The judgment appealed from is hereby
affirmed, with double costs of this instance against the appellants on
the ground that the appeal taken by them is frivolous. So ordered.

Malcolm, Villa-Real, Abad Santos, and Hull, JJ., concur.