MARIANO NEPOMUCENO AND AGUEDA G. DE NEPOMUCENO, PLAINTIFFS AND APPELLANTS, VS. EDILBERTO A. NARCISO AND MAURA SUAREZ, DEFENDANTS AND APPELLEES.

On November 14, 1938, appellant Mariano Nepomuceno executed a
mortgage in favor of the appellees on a parcel of land situated in the
municipality of Angeles, Province of Pampanga, to secure the payment within the
period of seven years from the date of the mortgage of the sum of P24,000
together with interest thereon at the rate of 8 per cent per annum.

On September 30, 1943, that is to say, more than two years
before the maturity of said mortgage, the parties executed a notarial document
entitled “Partial Novation of Contract” whereby they modified the terms of said
mortgage as follows:

“(1) From December 8, 1941, to January 1, 1944, the interest on
the mortgage shall be at 6 per cent per annum, unpaid interest also paying
interest at the same rate.

“(2) From January 1, 1944, up to the end of the war, the
mortgage debt shall likewise bear interest at 6 per cent. Unpaid interest during
this period shall however not bear any interest.

“(3) At the end of the war the interest shall again become 8
per cent in accordance with the original contract of mortgage.

“(4) While the war goes on, the mortgagor, his administrators
or assigns, cannot redeem the property mortgaged.

“(5) When the mortgage lapses on November 14, 1945, the
mortgage may continue for another ten years if the mortgagor so chooses, but
during this period he may pay only one half of the capital.”

On July 21, 1944, the mortgagor Mariano Nepomuceno and his wife
Agueda G. de Nepomuceno filed their complaint in this case against the
mortgagees, which complaint, as amended on September 7, 1944, alleged the
execution of the contract of mortgage and its partial novation as above
indicated, and

“7. That as per Annex B, No. 4, it is provided that the
mortgagor cannot redeem the property mortgaged while the war goes on; and that
notwithstanding the said provision the herein plaintiffs-mortgagors are now
willing to pay the amount of the indebtedness together with the corresponding
interest due thereon;

“8. That on July 19, 1944, the mortgagors-plaintiffs went to
the house of the mortgagees-defendants to tender payment of the balance of the
mortgage debt with their corresponding interest, but said spouses defendants
refused and still refuse to accept payment;

“9. That because of this refusal of the defendants to accept
tender of payment on the mortgage consideration, the plaintiffs suffered and
still suffer damages in the amount of P5,000;

“10. That the plaintiffs are now and have deposited with the
Clerk of Court of First Instance of Pampanga the amount of P22,356 for the
payment of the mortgage debt and the interest due thereon;

“Wherefore, it is most respectfully prayed that this Honorable
Court will issue an order in the following tenor:

“(a) Ordering defendants to accept tender of payment
from the plaintiffs;

“(b) Ordering defendants to execute the corresponding
deed of release of mortgage;

“(c) Ordering defendants to pay damages in the amount of
P5,000; and

“(d) Ordering defendants to pay the amount of P3,000 as
attorney’s fees and the costs of suit and any other remedy just and equitable in
the premises.”

After the trial the court sustained the defense that the
complaint had been prematurely presented and dismissed it with costs.

Appellants contend that the stipulation in the contract of
September 30, 1943, that “while the war goes on the mortgagor, his
administrators or assigns cannot redeem the property mortgaged,” is against
public policy and therefore null and void. They cite and rely on article 1255 of
the Civil Code, which provides:

“ART. 1255.—The contracting parties may establish any pacts,
clauses, and conditions they may deem advisable, provided they are not contrary
to law, morals, or public order.”

They argue that “it would certainly be against public policy
and a restraint on the freedom of commerce to compel a debtor not to release his
property from a lien—even if he wanted to by the payment of the
indebtedness—while the war goes on, which was undoubtedly of a very uncertain
duration.”

The first two paragraphs of article 1125 of the Civil Code
provide:

“ART. 1125.—Obligations for the performance of which a day
certain has been fixed shall be demandable only when the day arrives.

“A day certain is understood to be one which must necessarily
arrive, even though its date be unknown.”

Article 1127 says:

“Art. 1127. Whenever a term for the performance of an
obligation is fixed, it is presumed to have been established for the benefit of
the creditor and that of the debtor, unless from its tenor or from other
circumstances it should appear that the term was established for the benefit of
one or the other.”

It will be noted that the original contract of mortgage
provided for interest at 8 per cent per annum and that the principal together
with the interest was payable within the period of seven years from November 14,
1938. But by mutual agreement of the parties that term was modified on September
30, 1943, by reducing the interest to 6 per cent per annum from December 8,
1941, until the end of the war and by stipulating that the mortgagor shall not
pay off the mortgage while the war went on.

We find nothing immoral or violative of public order in that
stipulation. The mortgagees apparently did not want to have their prewar credit
paid with Japanese military notes, and the mortgagor voluntarily agreed not to
do so in consideration of the reduction of the rate of interest.

It was a perfectly equitable and valid transaction, in
conformity with the provisions of the Civil Code hereinabove quoted.

Appellants were bound by said contract and appellees were not
obligated to receive the payment before it was due. Hence the latter had reason
not to accept the tender of payment made to them by the former.

The judgment is affirmed, with costs against the
appellants.

Moran, C.J., Paras, Feria, Bengzon, Padilla, Tuason,
Montemayor, Reyes, and Torres, JJ., concur.