NICOMEDES SULLER, PROTESTANT AND APPELLEE, VS. PRIMITIVO S. PEREZ, PROTESTEE AND APPELLANT.

This is an appeal from an order of the Court of First Instance
of Pangasinan, dated October 25, 1944, the dispositive part of which reads as
follows: “En su virtud el Juzgado ordena que se ponga a disposicion del
protestado la cantidad de mil pesos ya mencionada en pago de las costas a que
han sido condenados el protestante y sus fiadores, y al Registrador de Titulos
de Pangasinan a que restituya los Certificados de Titulo de las parcelas de
terrenos constituidas en fianza hipotecaria, la cual queda por la presente
cancelada.”

The case was originally elevated to the Court of Appeals which,
in view of the fact that no evidence was introduced at the hearing in the lower
court, and only questions of law are raised by the appellant, certified the same
to this Court in a resolution dated October 28, 1950, which recites the facts
necessary to the present appeal. Said facts are as follows:

“In the general elections of 1937, Primitivo Perez was
proclaimed elected Mayor of the municipality of San Manuel, Pangasinan.
Nicomedes Suller filed a motion of protest, and after it was given due course in
the lower court and in the Court of Appeals, the protest was finally lost in the
Supreme Court.

“Upon return of the records to the court of origin, the latter,
by order of November 27, 1941, approved the bill of costs filed by the protestee
amounting to Pl,967. The protestant and his bonds-men asked for a
reconsideration of that order, but by reason of the war that broke out in the
Pacific, the motion was not heard until September 27, 1944, when the bondsmen,
Francisco Asuncion and Bonifacio Sicam, filed a petition praying that the
protestee or his lawyers be ordered to receive from the Clerk of Court the sum
of P1,000 they had deposited in payment of the costs which the protestant had
been sentenced to pay to the protestee, and to order the Register of Deeds of
Pangasinan to deliver to the movants the Torrens Titles of their respective
parcels of land given as mortgage security in favor of the protestant. As this
petition was granted, protestee’s counsel appealed from that order and filed the
corresponding record on appeal on November 17, 1944, on which no action was
taken by the court due to the uncertainties prevailing at that period on account
of the war.

“After liberation, or on August 14, 1950, the matter of the
approval of the record on appeal dated November 17, 1944, was set for hearing,
and there being no objection raised, the same was approved by the lower court by
order of August 30, 1950.”

It may be added that the appellant had refused to accept the
deposit of P1,000 made by the bondsmen with the clerk of the Court of First
Instance of Pangasinan, on the ground that the lower court had no jurisdiction
over the proceedings because the Election Law under which the lower court
approved appellant’s bill of costs in the sum of P1,967 on November 27, 1941,
was not in force during the Japanese regime, when said deposit was made.
Although the appellant is not pressing this obligation, in his brief, it may not
be amiss to point out that while political laws were suspended during the
Japanese military occupation, the order of November 27, 1941, awarding to the
appellant costs in the amount of PI,967, merely became the source of a civil
obligation against the appellee and his bondsmen; and the lower court obviously
had jurisdiction to entertain the petition of the bondsmen to direct the
appellant to accept the amount of P1,000 deposited by the bondsmen on September
27, 1944, in satisfaction of the civil liability of said bondsmen.

The contention now insisted upon by the appellant is that as
the judgment for costs was for P1,967, the amount of P1,000 deposited by the
bondsmen was not a full payment of the obligation, with the result that the
appellant (creditor) could not be compelled to receive such partial payment, in
accordance with article 1169 of the old Civil Code which provides that “unless
the contract expressly authorizes it the creditor cannot be compelled to accept
partial performances of the undertaking of which the obligation consists.” This
contention is without merit, as it fails to take into account the fact that the
liability of the bondsmen under their bond was limited to P1,000, the very
amount deposited by them in court. Hence, as to the bondsmen, the amount of
P1,000 represented the full payment of their obligation, without prejudice of
course to the right of appellant to recover the unpaid balance from the
appellee, the principal judgment debtor.

The fact that the amount deposited was in Japanese military
notes is of no moment, since said notes were legal tender at the time. Although
as intimated by counsel for appellant, the order of November 27, 1941, did not
direct the appellee and his bondsmen to deposit the amount of costs within a
certain period, it is nonetheless evident that said amount could be paid at any
time thereafter, without waiting for the coercive process of execution which is
resorted to only in ease the judgment debtor fails or refuses to pay.

Wherefore, the appealed order is affirmed with costs against
the appellant. So ordered.

Bengzon, Padilla, Montemayor, Jugo, Bautista, Angelo, and
Labrador, JJ., concur.

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DISIDENTE

PABLO, M.:

La obligacion de pagar la cantidad de PI,967 en concepto de
costas quedo exigible desde el 27 de noviembre de 1941 y debia pagarse en moneda
filipina segun los terminos precisos de la fianza; pero los fiadores consignaron
en 27 de septiembre de 1944, P1,000 en papel moneda japonesa y no en moneda
filipina. Por tal motivo, el protestado no estaba obligado a recibir la
consignation, pues el articulo 1170 del Codigo Civil expresamente dispone que
“el pago de las deudas de dinero debera hacerse en la especie pactada” y el
articulo 1177 del mismo codigo dispone que “la consignation sera ineficaz si no
se ajusta estrictamente a las disposiciones que regulan el pago.”

Tengase en cuenta que, al tiempo de la consignation, no habia
ninguna orden legal que prohibiese el uso de la moneda filipina. La proclama de
10 de enero de 1942 del General en jefe de las fuerzas japonesas es del tenor
siguiente:

“The currencies which shall be sanctioned by the authorities of
the Japanese Army to circulate in the Philippine Islands shall be the Paco
Military Notes which are issued by the Imperial Japanese Government, and the
Philippine peso currency, which is already in circulation.

“The circulation of the Yen Paper money (paper money issued by
the Japanese Imperial Government, Yen notes issued by the Bank of Japan, Yen
notes issued by the Bank of Chosen, Yen notes issued by the Bank of Taiwan, and
the military notes other than Peso Military Notes), piastre currency (notes
issued by the Bank of Indo-China), and all other currencies of foreign countries
shall be prohibited.

“However, as for the U. S. dollar currency, the circulation
shall be approved at the rate of two pesos (P2), per one dollar ($1), for the
time being.

“Not only the payer of the above-mentioned currencies, which
are prohibited to circulate as the means of payment of all transactions, but
also the receiver of such currencies shall be punished in accordance with the
provisions of the martial law.

“As to the treatment of the possession in the market of the
above-mentioned currencies and the U. S. dollar currency which are prohibited to
circulate shall be regulated later on.

COMMANDER-IN-CHIEF OF THE IMPERIAL JAPANESE FORCES.”

No solamente no se prohibio la circulation legal de la moneda
nlipina sino que se sanciono su uso. El primer parrafo de la proclama no da
lugar a duda alguna. El protestado tenia perfectisimo derecho de obligar a los
fiadores a que le paguen con moneda filipina legitima, o que la consignacion sea
de la misma moneda.

En mi opinion, debe revocarse la orden apelada y los fiadores
deben pagar hoy los mil pesos en moneda filipina.

Order affirmed.