G.R. Nos. L-4140-41. December 29, 1951
BERNARDO S. DUÑGAO AND MARIA GERVACIO BLAS, PETITIONER, VS. ANGEL ROQUE, ALFONSO ROQUE AND JUSTINA ROQUE, RESPONDENTS.
TUASON, J.:
a case involving the validity of a consignation and a case to foreclose
a mortgage. By stipulation the two cases were consolidated for trial
and decision.
The facts as found by the Appellate Court and the issues submitted before it are set forth in the following paragraphs:
“On September 23, 1941 Maria Gervacio Bias, of
Malabon, Rizal, borrowed from Alfonso Roque the sum of P3,000 and from
the latter’s sister Justina Roque, the sum of P2,000 payable within 5
years from said date with an annual interest of 10 percent, payable
yearly at the creditors’ residence. Justina dnd Alfonso are children of
Angel Roque. As security for said loan Maria Gervacio Bias mortgaged in
favor of the creditors a certain parcel of land in Lubao, Pampanga,
covered by Transfer Certificate of Title No. 13297 of the Registry of
Pampanga, the contract of mortgage (Exhibit 2) having been duly
recorded in the Office of the Register of Deeds on September 26, 1941.
On December 21, 1943 Bernardo Dungao, husband of plaintiff Maria
Gervacio Bias, paid the interests then due on the loan in question and
payable from October 23, 1941 until December 21, 1943 at the reduced
rate of 6 percent to herein defendant Angel Roque, the aforesaid father
of the creditors (Exhibits A and A-1).“In or about July
1944, Atty. Conrado S. Carlos acting for the spouses Maria Gervasio
Bias and Bernardo Dungao, went to Macabebe, Pampanga, where defendant
Angel Roque evacuated at the time and was there temporarily residing.
In behalf of his clients, Attyi Carlos offered to pay to Angel
Roque-the whole indebtedness in question in the sum of P5,000 plus the
interests then due. Angel Roque refused to accept the payment on the
ground that he was not the mortgagee but his children.Alfonso and
Justina who were then in San Jacinto, Pangasinan. Inasmuch as Atty.
Carlos could not tender the payment personally to the mortgagees he
went to the office of the Clerk of Court of San Fernando, Pampanga, and
there deposited the amount of P5,183.28 representing the capital of the
loan in question plus the interests due thereon from December 22, 1943
until July 31, 9 1944. And on July 26, 1944 the spouses, through Atty.
Carlos, commenced against Alfonso Rqque, Justina Roque and Angel Roque
the case which was docketed as Civil Case No. 105 of the Court of First
Instance of Pampanga (CA-G. R. No. 4264-R). In their complaint therein
they alleged that in July 1944 they offered to pay the whole
indebtedness plus interests to mortgagees1 father, Angel Roque, but the
latter refused to accept payment alleging that his children were then
in Isabela and that their exact residence could not bu ascertained and
that they consigned the sum of P5,183.28 with the Clerk of Court for
the payment of the amount indebted together with the interests due
thereon. They prayed that defendants Alfonso Roque and Justina Roque be
ordered to execute the corresponding release of the mortgage, to accept
the payment of said mortgage from the Clerk of Court and that defendant
Angel Roque be ordered to surrender the owner’s duplicate of T-13297
covering the mortgaged land, allegedly in his possession.“On
March 24, 1947, Alfonso Roque and Justina Roque, in turn, filed the
complaint for foreclosure of the mortgage in question against the
spouses Maria Gervacio Bias and Bernardo Duñgao which was docketed as
Civil Case No. 77 of the Court of First Instance of Pampanga (CA-G. R.
No. 4263-R). On the ground that another action was pending between the
same parties and for the same cause—which is Civil Case No. 105—Maria
Gervacio Bias and her husband filed a motion to dismiss the latter
case, No. 77, The motion was denied and they filed their answer
alleging that the amount of the loan under consideration was not
obtained from Alfonso Roque and Justina Roque but from their father,
Angel Roque, who requested that the mortgage contract be executed in
the names of, and in favor of his aforesaid children, in order to avoid
the payment of the inheritance taxes in the event of his death; that on
December 21, 1943 the stipulated interest of 10 percent per annum on
the said mortgage was reduced to 6 percent per annum, by agreement
between the mortgagors and the mortgagees and that having tendered
payment to Angel Roque on July 2, 1944 which the latter-refused they
consigned in court the amount of P5,l832 as full payment of their
standing obligation; and that they had filed in court the above
mentioned Civil Case No. 105.“As regards Civil Case No. 105
it is revealed by the.records that Justina Roque and Angel Roque were
served with summons on July 11, 19^7 only while the other defendant
Alfonso Roque who was then residing in San Jacinto, Pangasinan, has not
been served with summons until the date of the hearing in the lower
court. However, on July 24, 1947, the three defendants, Alfonso,
Justina and Angel, through counsel, filed their answer to the
complaint4 They alleged therein that Angel Roque had nothing to do with
the mortgage contract in question; that the mortgagees Justina Roque
and Alfonso Roque were not duly notified of the alleged consignation
in. court, and consequently, the same has no effect? and that the money
deposited was in Japanese military notes which were already worthless.
The trial court found for the Roques and rendered decision with the following dispositive part
‘WHEREFORE, the complaint in Civil Case No. 105 is
hereby dismissed and the defendant-mortgagor, Maria Gervacio Bias in
Civil Case No. 77 is hereby ordered to pay into Court or to the
mortgagees, Alfonso and Justina Roque the sums of P3,000 and P2,000
respectively, plus interests thereon at the rate of 10 percent per
annum from September 23, 194-1 up to date on which the principal is
paid, and the amount of P500 as attorney’s fees and costs within ninety
(90) days from the date of the service of this order, and in default of
such payment the property mortgaged be sold to realize the mortgage
debts and costs.’“The judgment appealed from is assailed on
the ground that the trial court erred$ (l) in denying the motion to
dismiss Civil Case No. 77 predicated on the pendency of Civil Case No.
105 between the same parties; (2) in not holding that the real
mortgagee in the mortgage in question is Angel Roque and not his
children Alfonso Roque and Justina Roque; (3) in not finding that the
tender of payment made by Atty. Carlos of the sum of P5,183.28 to Angel
Roque in the early part of July 1944, and the subsequent deposit of
the.same amount with the Clerk of Court on July 26, 1944, were
sufficient redemption and payment of the aforesaid mortgage; (4) in
dismissing Civil Case No. 105 and ordering the appellants to pay to
Alfonso Roque and Justina Roque the amount of the mortgage with yearly
interests of 10 percent thereon from September 23, 1941 until full payment, plus P500 as attorney’s fees and costs; and (5) in denying
appellants1 motion for new trial.”
The appellants, in this instance, make five assignments of error,
the last two of which are a general repetition of the first three, and
will be omitted. It is alleged—
“The lower court erred in denying appellants’ motion to dismiss dated April 10, 1947 in Civil Case No. 77 of the said court;
“The
lower court likewise erred in denying not having declared that the real
mortgages in the real estate mortgage, a copy of which is attached to
the complaints in Civil Cases Nos. 165 and 77, is Angel Roque, the
father, and not his children, Alfonso Roque and Justina Roque, the
appellees in both cases;“The court a quo also
erred in not declaring that the tender of payment made by Atty. Conrado
S. Carlos, former counsel of the herein appellants, of the sum of
P5,183.28 to Angel Roque in the early part of July, 1944 and the
subsequent deposit of the same amount with the Clerk of Court on July
26, 1944, was in full and sufficient redemption and payment of the said
real estate mortgage.”
The second assignment of error, extensively discussed in
appellants’ briefs, already has been decided by the Court of Appeals,
which found that Alfonso Roque and Justina Roque owned the money loaned
to the mortgagors. This finding is not open to review and will not be
touched except Cor reference.
The heart of the case is the third assignment of error and the
applicable law is Articles 1162, 1176 and 1177 of the Civil Code of
Spain, which was the Code in force when these cases were instituted and
tried. These articles provide:
“ART. 1162. Payment must be made to the persons in
whose favor the obligation has been constituted or to another
authorized to receive . it in his name.“ART. 1176. If the
creditor to whom a tender of payment is made refuses to accept it
without reason, the debtor shall be released from liability by the
consignation of the thing due.“Consignation by itself alone
shall produce the same effect when made during the absence of the
creditor, or v/hen he is incapacitated to receive the payment at the
time it is due. and when several persons claim to have a right to
collect it, or when the title to the obligation has been lost.“ART. 1177. In order that the consignation of the thing due may release
the obligor, notice thereof must be previously made to the persons
interested in the fulfillment of the obligation.“Consignation shall be inefficacious if not made strictly in accordance with the provisions governing payment.”
No tender of payment having been made to the persons found by the
Court of Appeals to be the creditors, the consignation under
consideration does not come within the provision of the first paragraph
of Article 1176; it is governed by Article 1177 in relation to the
second paragraph of Article 1176. And as already seen, by Article 1177
previous notice of the consignation to the person interested in the
fulfillment of the obligation is strictly prescribed.
It is a fact admitted by the appellant that no such notice was sent
to Alfonso Roque and Justina Roque. These, however, were not at their
former residence in Guagua, Pampanga, where the mortgage document had
been executed, nor in Macabebe whither they and their father are said
to have evacuated after the outbreak of war? and the question arises
whether by reason of that absence they lost their right to be informed
of the consignation.
The law and available commentaries are vague as to v/hat action the
obligor is to take in a situation such as here presented. Common sense
would tell us that the person obligated to receive the money or thing
consigned could not demand that he be notified of the consignation if
he purposely kept away to elude notice or where his location was
unknown and could not be ascertained with the exercise of reasonable
diligence. On the other hand, it must also be true that mere absence of
the creditor or bona fide removal to another place known to or easily
ascertainable by the debtor, will not furnish a valid excuse for
dispensing with a legal requirement so vital to the right and interest
of the obligee.
The Court of Appeals did not make an express finding that the
debtors knew the creditors were staying in San Jacinto, Pangasinan; but
it is fairly safe to assume that they did. It was natural that they
should ask Angel Roque where his children were, when the father
refused to accept the payment, or that Angel should volunteer the
information without being asked. It is significant that the debtors do
not now assert that they were ignorant of Alfonso’s and Justina’s
whereabouts.
Knowing, then, as they did, or ought to have known, where their
creditors resided, it was a simple matter for the debtors to
communicate with the Roque brother and sister. At the very least, they
could have made a try at reaching the latter by mail or messenger; the
mail was in operation and Pangasinan was easily accessible by ordinary
means of transportation. But the debtors did or attempted to do nothing
of the kind, keeping the parties to whom the payment was due or for
whom the deposit was intended in complete ignorance of it.
This omission rendered the consignation inefficacious. If the
debtors were to be discharged from their obligation by the deposit, it
was their elementary duty to put the creditors in a position to withdraw
the money, if they chose, or shoulder the loss if they failed to claim
it. The notice of the consignation was especially necessary in this
case, for then the money to be deposited was fast depreciating in value
and soon was to be absolutely worthless.
Significant of the importance of the notice of consignation to the
creditors is the fact that not only before but also after the
consignation was effected, such notice is required. “Article 1178
provides among other things that “After consignation has been made,
notice thereof must be given to the interested parties.” Subsequent
notice is imperative for the reason that, notwithstanding the previous
notice it is possible for the debtor, and it is his privilege, to
desist from his announced intention. In the light of the last-quoted
provision and the possibility it envisages, the creditor may rightly
assume that the debtor changed his mind if he did not follow up the
previous announcement with the definite information that his intention
had been carried out.
How the second notice is to be effected is not specified. The usual
method is, when the consignation is followed by the filing of a suit,
through service to the defendant of the summons accompanied by a copy
of the complaint. (Limkako vs. Teodoro, Off. Gaz., No. 9 p. 980; 74 Phil., 313.)
The appellants did not in any shape or form acquaint the appellees
with the fact that the amount owed them had been placed in the custody
of the court. The action to compel the mortgagees to accept the
consignation having been commenced on July 26, 1944, Justina Roque was
served with summons only on July 11, 1947, when the Japanese war notes
had ceased to be legal currency; and Alfonso Roque was never served
with summons at all, although he filed his answer on July 2h through
counsel. The appellants’ failure to send the appellees a second notice
in time to enable them to withdraw, if they desired, the consignation,
when the money deposited could still be of some use to them, was also
fatal to the validity and efficacy of the consignation.
The facts relative to the first assignment of error are set out in
the Appellate Court’s findings hereinbefore transcribed. The Court of
Appeals dismissed the objection raised in this assignment of error,
saying—
“* * *. The two cases having been tried and decided
jointly upon agreement of both parties, the question as to whether the
first action should have abated the second has become moot. However,
the rule is that identity between the two actions must be such that any
judgment rendered on the one will, regardless of which party is
successful, amount to an adjudication . on the other. Such situation is
not obtaining in the cases under consideration for if the judgment in
Civil Case No, 105 were that the consignment therein relied upon was
not valid and operative, it would not at the same time dispose of the
foreclosure of mortgage sought for in Civil Case No. 77.”
It may be added that the objection was deemed waived when the
parties agreed to have the two cases tried and decided jointly* At the
very most, the error, if any, was not prejudicial or reversible. As it
turned out, the action of the court refusing to dismiss the case for
foreclosure of the mortgage has saved the parties time and unnecessary
trouble and expense.
The appealed decision is affirmed with costs against the appellants.
Pablo, Bengzon, Montemayor, Reyes, Jugo and Bautista Angelo, JJ. concur.
PADILLA, J.,
I concur in the result only, because of the implication that if the
consignation had been valid, the obligation would have been discharged.
My view on this point is stated in my opinion in the case of La Orden
de los Padres Benedictinos vs. Philippine Trust Company, 47 O.G. 2894, 2897; 85 Phil., 217.