G.R. No. L-29388. December 28, 1970
VINCENT P. DAYRIT, PETITIONER, VS. THE COURT OF APPEALS, HON. FRANCISCO ARCA, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, BRANCH I, MOBIL OIL PHILIPPINES, INC., AND ELADIO Y…
CASTRO, J.:
Petition for certiorari by way of appeal from the Court of
Appeals’ minute resolution of June 14,
1968 dismissing the petition for certiorari in CA-G.R. No.
41359-R, as well as its resolutions of July
9, 1968 and August 5, 1968
denying the first and second motions for reconsideration, respectively, in the
same case.
On July 21,
1965, the defendants
Vincent Dayrit, Leonila T. Sumbillo and, Reynaldo Angeles entered into a contract with
the Mobil Oil Philippines, Inc., entitled “LOAN & MORTGAGE AGREEMENT,”
providing, among others, that:
“(a) For and in
consideration of Sales Agreement dated July 21, 1965, among the parties herein,
Mobil grants a loan of P150,000 to borrowers.
“(b) Defendants-Borrowers shall repay Mobil the
whole amount of P150,000 plus 10% interest per annum on the diminishing balance
for 48 months.
“(c) To secure
the prompt repayment of such loan by defendants-borrowers to Mobil and the
faithful performance by Borrowers of that Sales Agreement, Defendants-Borrowers
hereby transfer in favor of Mobil by way of first mortgage lands covered by TCT
No. 45169 and TCT No. 45170, together with the improvements existing in said
two (2) parcels of land.
“(d) In case of default of
Defendants-Borrowers in payment of any of the installments and/or their failure
to purchase the quantity of products stated therein Mobil shall have the right
to foreclose this mortgage.
“(e) Mobil, in case
of default and foreclosure shall be entitled to attorney’s fees and cost of
collection equivalent to not less than 25% of total indebtedness remaining
unpaid.
“(f) All expenses in
connection with the preparation and registration of this mortgage as well as
cancellation of same shall be for the account of Defendants-Borrowers.
“(g) If
Defendants-Borrowers shall perform the full obligation above stated according
to the terms thereof, then this obligation shall be null and void, otherwise, it shall remain in full force and
effect.”
The defendants violated the Loan & Mortgage Agreement, they
having paid but one installment in the amount of P 3,816, of which P1,250 was applied to interest, and the
remaining P2,566 to the principal obligation.
The defendants likewise failed to buy the quantities of products as
required in the Sales Agreement (exh. D). The
plaintiff made due demand (exh. I), which the defendant
Dayrit answered, acknowledging his liability in his letter exh.
I-1.
On November
17, 1967, after
trial and after the parties had submitted their memoranda,[1] the trial court rendered its decision, the dispositive portion of which reads:
“WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants Vincent Dayrit, Leonila T. Sunbillo and Reynaldo
Angeles, ordering them to pay to the plaintiff one-third each of the sum of P147,434.00 with interest of 10% per
annum from the time it fell due according to agreement, and in default of such
payment, the properties put up in collateral shall be sold in foreclosure sale
in accordance with law, the proceeds to be applied in payment of the amount due
to the plaintiff from the defendants as claimed in the complaint,
provided that, as to Dayrit, his liability shall in
no case exceed 1/3 of the total obligation.
“The defendants are likewise ordered to pay to the plaintiff,
in the same proportion of 1/3 each, 25% of the obligation as attorney’s fees as
provided in the contract; and P300.60 for the registration of the contract.
* * *
“Each of the three said defendants shall also pay 1/3 of the
costs.”
No appeal having been interposed by the defendants, the above
decision became final and executory.
An undated Mobil’s motion for execution of the decision and for
the appointment of Eladio Ylagan
as special sheriff (annex D) was received by the herein petitioner Dayrit on February
8, 1968. Whereupon, he filed
his opposition and motion to stay execution, alleging that before the finality
of the aforesaid judgment, he and the plaintiff had agreed not to appeal
and/or file any motion for reconsideration, the petitioner offering to pay his one-third share with a reasonable
discount, if possible, in so far as the interests and the award for attorney’s
fees were concerned, with the corresponding release of the mortgage on all his
properties, and praying, in view thereof, for a 30-day grace period within
which to pay the plaintiff. The 30-day
grace period was granted by the court
in its order of February 24, 1968.
On March 25, 1968
the petitioner filed another motion for 20 days’ extension within which to pay
his one-third share of the judgment obligation and to submit the corresponding
compromise agreement for the satisfaction of the judgment. The said motion was granted on April 1, 1968.
Thereafter, the respondent Mobil filed an “Urgent Reply to
Opposition and Motion to Stay
Execution dated Feb. 21, 1968 and Motion dated March 25, 1968,” alleging
therein that the respondent agreed to release the mortgage or collateral for
the entire judgment obligation only if “the whole principal mortgaged
debt plus the whole accrued interest” were fully paid. Mobil further
prayed for a writ of execution to be issued against the petitioner after the
lapse of 20 days
from March 25, 1968,
if by then the parties shall not have submitted a compromise agreement for the satisfaction of the judgment; Mobil
also reiterated its prayer for the appointment of respondent Eladio Ylagan as special sheriff.
On April 3, 1968 the petitioner filed a manifestation and motion,
praying that he be allowed to deposit with the Clerk of Court the amount
corresponding to his one-third share of the obligation under the decision of
November 17, 1967, and that thereupon the collateral or mortgage over
petitioner’s properties or lands be ordered released or cancelled.
On April 10, 1968
the court a quo ordered all pending incidents set for hearing
on. April 19, 1968,
“so that the Court may have the opportunity to confer with the parties to
thresh out the settlement of this case.” At this hearing Mobil did not
appear; the court reset the hearing for May
23, 1968.
Under date of May 8, 1968, Mobil filed an addendum to its reply dated
April 1, 1968 and
opposition to petitioner’s motion dated April 3, 1968, praying that the
motion of petitioner Dayrit that the entire mortgaged collateral be released upon his payment of mere
1/3 of the loan obligation, be denied and instead a writ of execution against him in
accordance with the dispositive portion of the
decision and sections 2 and 3 of Rule 68 of the Revised Rules of Court be issued.
On May 18, 1968
the petitioner filed his rejoinder to respondent Mobil’s aforesaid addendum and
opposition.
On
May 23, 1968; after hearing oral argument, the court denied the
manifestation and motion of Dayrit filed thru counsel
and dated April
3, 1968; the court further ruled that “There is no further need to
issue an order for the issuance of a writ of execution and appointment of
special sheriff … considering that the Court, in its order of February 24, 1968, has
already ordered the issuance of a writ
of execution for the satisfaction of the judgment.”
The petitioner then filed his petition for certiorari with the
Court of Appeals, dated May 30, 1968, alleging that “respondent Judge Arca acted without or in excess of his jurisdiction and/or
with grave abuse of discretion, in denying petitioner’s motion to allow him to
pay or deposit his one-third share of the judgment obligation” as well as the consequent release or
cancellation of the mortgage on his properties.
The Court of Appeals, however, in its minute resolution of June 14, 1968, dismissed the petition
for certiorari, in the following words:
“Upon consideration of the petition for certiorari filed in
this case, the Court RESOLVED TO DISMISS the petition, there being no abuse of
discretion in ordering the execution of a final judgment. Details of execution for satisfaction of
Vincent Dayrit’s liability will be worked out in
connection with the sale of the collateral for mortgaged debt, and the judgment
in Civil Case No. 64138 of the CFI-Manila will control the disposition and
application of the collateral.”
The petitioner filed a motion for reconsideration dated June 9, 1968 which the Court of
Appeals denied in its resolution of July
9, 1968, as follows:
“Both the petition and the motion for reconsideration are
based on a misapprehension of the terms of the judgment. The Mortgage obligation is one and
indivisible. It was executed to assure
payment of the total indebtedness of the three defendants in Civil Case No.
64138, and not merely one-third (1/3) thereof corresponding to petitioner
Vincent P. Dayrit’s liability.”
The petitioner’s second motion for
reconsideration of July 25, 1968
was summarily dismissed on August 5,
1968, for lack of merit.
The petitioner, in his present petition, tenders the following
issues for resolution:
“1) Whether or not respondent
Judge [CFI-Manila] acted
without or in excess of his jurisdiction, and/ or with grave abuse of
discretion in denying petitioner’s motion to allow him to exercise his clearly legal right to pay or
deposit his one-third share of the judgment;
“2) The next
issue was that brought about by the Court of Appeals resolution dismissing the petition for
certiorari, and which was raised in petitioner’s motion dated June 19,
1968 for reconsideration of said
resolution, contending
that the ground for dismissal did not jibe with the issue raised
in the petition for certiorari;
“3) And lastly,
the Court of Appeals’ resolution of July 9, 1968 denying said motion for
reconsideration apprehension on the part of petitioner of the terms of the respondent judge.”
1. The question raised by the respondent Mobil that the present
petition for certiorari was filed way beyond the reglementary
period of 15 days from appellant’s receipt of notice of judgment or of the
denial of his motion for reconsideration pursuant to section 1, Rule 45 of the
Revised Rules of Court,[2]
needs to be resolved before consideration of this case on the merits. Admittedly, the ex parte first motion for reconsideration filed by the
herein petitioner was denied, and copy of such denial was received by the
petitioner on July 15, 1968. Still not satisfied, petitioner filed another
ex parte motion for
reconsideration on July 26, 1968,
notice of the denial of which, under CA resolution dated August 5, 1968, was received by said petitioner
on August
9, 1968.
Respondent Mobil contends
that the second motion for reconsideration filed by the petitioner was a
mere scrap of paper and pro forma since it was filed ex parte and without express leave of court, contrary to the mandate of section
1, Rule 52 of the Rules of Court.[3]
The rule appears to be inflexible in the
sense that no more than one motion for reconsideration shall be filed without
express leave of court. The requirement
that the second motion for reconsideration must be presented, with leave of
court, within fifteen days from notice of the order or judgment, deducting the
time during which the first motion was pending, is to afford the court
sufficient time to evaluate whether there is prima facie merit
therein, so that, “if the court finds merit prima facie in
the motion for rehearing or reconsideration, the adverse party shall be given
time to answer, after which the court,
in its discretion, may set the case for oral argument.”[4]
And only upon compliance with the above stated requirements may the second
motion for reconsideration stay the final order or judgment sought to be re-examined.[5]
The Court of Appeals gave due course to the second motion for
reconsideration of the herein petitioner, but nevertheless, dismissed the same
summarily for lack of merit.
However, even assuming, that the ex
parte second motion for reconsideration was
properly filed so as to toll the reglementary period
within which to appeal, it appears that the petition for certiorari filed with
this Court on August 20, 1968
was time barred. From the date of denial
of the petitioner’s ex parte first
motion for reconsideration received by him on July 15, 1968 assuming that the
period was interrupted by the ex parte
second motion for reconsideration from July 26, 1968 to August 9, 1968 (15
days) – to the elevation of the said case to this Court on August 20, 1968, 36
days had elapsed. Deducting the 15 days
during which the ex parte second motion
for reconsideration was pending from the total period of 36 days leaves 21
days. This means that the present
petition was filed with this Court six days late, contrary to and in violation
of section 1, Rule 45, which
specifically provides that a petition
for certiorari under such Rule should be filed within 15 days from notice of
judgment or denial of motion for reconsideration. Hence, the present petition may be dismissed
on the aforestated ground.
But we opt, nevertheless, to consider the
merits of this case, if only to demonstrate to the petitioner his error.
2. The decision of the lower court, let it not be forgotten, has
admittedly become final and executory. The controverted
judgment ordered the defendants (Dayrit, Sumbillo and Angeles) “to pay the plaintiff one-third
each of the sum of P147,434.00
with interest of 10% per annum from the time it fell due according to agreement, and in default of such payment, the
properties put up in collateral shall be sold in foreclosure sale in accordance
with law, the proceeds to be applied due to the plaintiff from the defendants as claimed in the complaint, provided that, as to Dayrit, his liability shall in no case exceed 1/3 of
the total obligation.”
In sum, the issue that must be resolved in the instant case is, whether
or not the Court of First Instance of Manila erred in ordering
the sale at public auction of the mortgaged properties to answer for the entire P147,434 principal obligation after the defendants (Dayrit Sumbillo and Angeles) had failed to pay their
respective one-third shares of the obligation to the respondent Mobil;
otherwise stated, whether or not the respondents Court of First Instance
and the Court of Appeals erred in refusing to allow the alleged proposed
deposit of a sum equivalent to 1/3 of the
loan agreed upon and in refusing to release forever the collaterals
owned by Dayrit, although the other 2/3 portion of the loan obligation had not been satisfied due to insolvency of the other
two co-defendants.
To begin with, the prayer of the complaint filed with the
respondent Court of First Instance recites as follows:
“WHEREFORE, it is respectfully prayed that judgment be
rendered –
“a) Ordering the defendants to pay the sum of P147,484 with
10% interest per annum from the time, it fell due as agreed upon and that in
default of such payment, the above described properties be sold and the
proceeds of sale be applied to the payment of the amount due to the plaintiff
from the defendants under this complaint.”
The complaint, in effect, is acollection suit with damages and foreclosure of mortgage
against the three defendants, Leonila Sumbillo, Reynaldo Angeles and Vincent Dayrit.
Although the Loan and Mortgage Agreement was signed by the three defendants as
mortgagors, the properties being foreclosed belong solely to, and are
registered solely in the name of, the petitioner Vincent Dayrit.
The pertinent dispositive portion of the decision rendered by the lower
court reads:
“WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants”‘ Vincent Dayrit;
Leonila T. Sumbillo and
Reynaldo Angeles, ordering them to pay to the plaintiff one?third each of the sum of P147,434 with
interest of 10% per annum from the time it fell due according to agreement, and
in default of such payment, the properties put in collateral shall, be sold in
foreclosure sale in accordance with law, the proceeds to be applied in payment
of the amount due to the plaintiff from the defendants as claimed in the complaint,
provided that, as to Dayrit, his liability shall in
no case exceed 1/3 of the total obligation.”
The petitioner contends that the said judgment is a simple
money judgment and not a foreclosure judgment, and that because the
respondent Mobil resorted to the remedy of enforcing his right by a complaint against
the defendant-petitioner for collection of a sum of money, with the consequent
simple money judgment, the satisfaction of his 1/3 share of the joint
obligation would release all the mortgaged properties put up as collateral to
secure the payment of the whole obligation.
The reason advanced by the petitioner is that the decision rendered
being a simple money judgment and not a mortgage-foreclosure judgment, the
distinction in its execution is decisive, that is, whereas in mortgage
foreclosure the judgment should conform to the requirement, embodied in section
2, Rule 68 of the Rules of Court, that the order of payment be made into the
court “within a period not less than ninety (90) days x x x and in default of such
payment, the property mortgaged be sold to realize” the indebtedness, in a
simple money judgment, upon satisfaction of part (in the instant case his 1/3
share) of the joint obligation, the mortgaged properties should be released
from such mortgage contract.
This contention of the petitioner is clearly devoid of merit.
The decision which the petitioner describes as a simple money
judgment orders the defendants Vincent Dayrit, Leonila T. Sumbillo
and Reynaldo Angeles to pay the plaintiff the sum of P147,434, and in default
of such payment, the properties put up in collateral shall be sold in foreclosure sale in accordance
with law, the proceeds to be applied
in payment of the amount due to the
plaintiff from the defendants as claimed in the complaint. While
it is true that the obligation is merely joint and each of the
defendants is obliged to pay only his/her 1/3 share of the joint obligation,
the undisputed fact remains that the intent and purpose of the Loan and
Mortgage Agreement was to secure, inter alia,
the entire loan of P150,000 that the respondent Mobil extended to the
defendants. The court below found that
the defendants had violated the Loan and Mortgage Agreement, they having paid
but one installment. The undisputed fact
also remains that the petitioner alone benefited from the proceeds of the loan
of P150,000, the said amount having been paid directly to the Bank of the
Philippines to bail out the same properties from a mortgage that was about to
be foreclosed. In effect, Mobil merely
stepped into the shares of the Bank of the Philippines.
The petitioner insists that the dispositive
portion of the judgment declaring the obligation merely joint with the proviso
that “as to Dayrit, his liability shall in no case exceed 1/3 of the total obligation, should be construed in
the light of the opinion of the
lower court that “said collateral must answer in full but only to the extent of Dayrits liability which as above determined, is 1/3 of the obligation, thereby entitling him to
pay or deposit in court his
corresponding share of the joint obligation in satisfaction thereof, with the
automatic release of all the mortgaged properties.
A
judgment must be
distinguished from an opinion. The latter is the informal expression of
the views of the court and cannot
prevail against its final order or decision. “While the two may be combined in one instrument,
the opinion forms no part of the judgment. There is a distinction between the findings and conclusion of a court and its
judgment. While they may constitute its decision and amount to
a rendition of a judgment they are
not the judgment itself. They amount to nothing more than an order for judgment which must be distinguished from the judgment.
Only the dispositive portion may be
executed.”[6]
Besides, well-entrenched in
law is the rule that a mortgage
directly and immediately subjects the property upon which it is imposed,[7] the same being indivisible even though the debt may be divided,[8] and such indivisibility likewise being unaffected by the fact that the debtors are not solidarily liable.[9] As Tolentino, in his Commentaries and Jurisprudence on the
Civil Code of the Philippines,[10] puts it –
“When several things are pledged or mortgaged, each thing for
a determinate portion of the debt, the pledges or mortgages are considered
separate from each other. But when the
several things are given to secure the same debt in its entirety, all of them are liable for the debt, and the
creditor does not have to divide his action by distributing the debt among the
various things pledged or mortgaged.
Even when only a part of the debt remains unpaid, all the things are
still liable for such balance. Hence, a
mortgage voluntarily constituted by the debtor on two or more parcels of land
is one and indivisible, and the mortgagee has the right to have either or
both parcels, jointly or singly, sold to satisfy his claim. In case the mortgaged properties are a house
and lot, it can not be claimed that the lot and the house should be sold
separately and not together.”
But then there is this other seeming posture of the petitioner: that the judgment which has become final and executory either modified or superseded the Loan and
Mortgage Agreement between the parties, and since the obligation is merely
joint, upon payment thereof, as in attachment, the properties mortgaged are released from liability. The decision under consideration, however,
did nothing of the sort. The petitioner
conveniently refused to recognize the true import of the dispositive
portion of the judgment. The said
portion unequivocally states that “in default of such payment, the
properties put up in collateral shall be sold in foreclosure sale in accordance
with law, the proceeds to be applied in payment of the amount due to
the plaintiff as claims d in the complaint.” And the claim in the complaint was the full satisfaction of the
total indebtedness of P147,434; therefore, the release of all the mortgaged
properties may be authorized only upon the full payment of the
above-stated amount secured by the said mortgage.
With respect to the provisions of section 2 of Rule 68 of the
Rules of Court giving the petitioner a period of 90 days within which he might
voluntarily pay the debt before the sale of the collateral at public auction
was ordered, we agree that the trial court failed to provide such period.
However, this failure can be regarded as having resulted in mere damnum absque injuria.
From November 17, 1967 when the decision was rendered to May 23, 1968
when the final order to sell the mortgaged properties was issued, a period of
more than six months had passed,
which is considerably much more than the 90-day period of grace allowed the
petitioner to validly tender the proper payment.
ACCORDINGLY, the petition is denied, at petitioner’s cost.
Concepcion, C.J., Reyes, Dizon, Makalintal, Zaldivar, Teehankee, Barredo, Villamor, and Makasiar, JJ., concur.
Fernando, J., no part.
[1]
Defendants Leonila T. Sumbillo
and Reynaldo Angeles, by motion of the plaintiff Mobil, were declared in default for
failure to answer the complaint. Only Vincent P. Dayrit
filed an answer to the Mobil complaint.
[2]
“Filing
of petition with Supreme Court. – A party may appeal by certiorari, from a
judgment of the Court of Appeals, by filing with the Supreme Court a petition
for certiorari, within fifteen (15) days from notice of judgment or of the
denial of his motion for reconsideration filed in due time, and paying tat the
same time, to the clerk of said court the corresponding docketing fee. The petition shall not be acted upon without
proof of service of a copy thereof to the Court of Appeals.”
[3]
“Motion for re-hearing. – A
motion for a re-hearing or reconsideration shall be made ex parte and
filed within fifteen (15) days from notice of the final order or
judgment. No more than one motion for re-hearing or reconsideration shall be
filed without express leave of court. A
second motion for reconsideration may be presented within fifteen (15) days
from notice of the order or judgment deducting the time in which the first
motion has been pending.”
[4]
Section 2, Rule 52, Rev. Rules
of Court.
[5]
Section 3, ibid.
[6]
Casilan vs. Kapunan,
G.R. No. L-23247, Jan. 31, 1969, 26 SCRA 744.
[7]
Art. 2126, Civil Code of the Philippines.
[8]
Art. 2089, ibid.
[9]
Art. 2090, ibid.
[10]
Vol. V, 1959 ed., pp. 463-464. To the
same effect, see Philippine National Bank vs. Mallorca, G.R. No. L-22538, Oct.
31, 1967, 21 SCRA
694, 697-698.