G.R. No. 20813. February 02, 1924
IN RE ESTATE OF J. F. H. HASEMEYER, DECEASED. JULIA HASEMEYER, ADMINISTRATRIX AND APPELLEE, VS. PHILIPPINE NATIONAL BANK, CREDITOR AND APPELLEE, COMPANIA MARITIMA ET AL., CREDIT…
ROMUALDEZ, J.:
The committee appointed in this proceeding for the settlement of the estate
of the deceased J. F. H. Hasemeyer filed in court on October 17,1922, its report
containing the following:
“The following claims were duly presented to the commissioners, and allowed
or rejected as follows:
Allowed
Provincial government of Sulu Do Do Do Paris-Zamboanga Jolo Garage, Inc Tan Dico Do Tan Dico, for Ghee Liong & Co Philippine National Bank (secured by
mortgage of all properties mentioned in the inventory hereafter shown)Levy Hermanos, Manila
__________Total Philippine Education Co., Inc., Manila P. D. Rogers (see same amount awarded to
Province)
The lower court entered an order on October 23, 1922, which, among other
things, provides as follows:
“The court, therefore, orders the administratrix to pay all the debts of the
estate approved by the committee on claims and appraisal and which have not been
appealed; and to render an account from the date she took possession of her
office as such administratrix to the present time.”
On the following day, October 24, 1922, the committee filed, with regard to
the credit of the Philippine National Bank, the following amendatory report:
“Come now the undersigned commissioners in the above entitled case, and to
this Honorable Court respectfully ex- pound :
“That the original report of the undersigned having been already filed and
considered in this court without any opposition from the creditors of the
estate, we pray for a modification of the said report by the exclusion therefrom
of the account of the Philippine National Bank in the amount of sixty-six
thousand three hundred thirteen pesos and sixty-one centavos (P66,313.61). This
account appears in our original report as approved. The agent of the Philippine
National Bank, after a conference with his attorney, having now decided to
withdraw his claim in view of the fact that it is already secured by first
mortgage on all the properties pertaining to this estate, which mortgage is duly
registered in the office of the register of deeds of this province, we,
therefore, pray that this petition be considered as an amendment to the original
report, and that this claim be considered as never having been either presented
or approved by the undersigned commissioners.
(Sgd.) “Carl M. Moore “L. Palileo “Commissioners
“Sworn and subscribed to before me this 24th day of October, 1922.
(Sgd.) “H. C. Rodriguez “Deputy Clerk of Court
“Received copy: (Sgd.) “J. S. Alano “Attorney for the administratrix.”
After a hearing upon this report, the court below on October 28, 1922,
approved the same by an order of the following tenor:
“The matter is before the court upon an additional report presented by the
committee on claims and appraisal appointed in this proceeding, wherein it is
prayed that the credit of the Philippine National Bank against the estate of the
deceased J. F. H. Hasemeyer, amounting to P66,313.61 and which had been
presented to the aforesaid committee on claims and appraisal, and was approved
by it, be considered as if not presented to it on the ground that said credit is
secured by a mortgage registered in the office of the registrar of deeds of this
province.
“The fiscal appeared on behalf of the Philippine National Bank and stated
that he agrees with the aforesaid report of the committee on claims and
appraisal and Mr. Alano who was present did not object thereto.
“The court, in view of these facts and circumstances, approves the additional
report of the committee on claims and appraisal presented in this
proceeding.
“So ordered.
“Jolo, Sulu, P. I., October 28, 1922.
(Sgd.) “A. HORRILLENO “Judge, 26th Judicial District “Received copy November 1, 1922. (Sgd.) “J. S. Alano “Vicente Bautista “Fiscal (Sgd.) “Carl M. Moore “L. Palileo”
Under date of April 24, 1923, Paris-Zamboanga, Philippine Refining
Corporation, Compania Maritima, Fernandez Hermanos, Philippine Steamship Co.,
Tan Dico, and Ghee Liong & Co. filed a motion praying, among other things,
that the order of October 28, 1922, above set out be annulled and set aside.
After hearing the parties, the court passed upon this motion in an order dated
April 28,1923, which is literally as follows:
“The motion of the attorneys P. H. Young and Pablo Lorenzo dated April 24,
1923, was finally heard yesterday. The said attorneys represent the following
corporations: Paris-Zamboanga, Philippine Refining Corporation, Compania
Maritima, Fernandez Hermanos, Philippine Steamship Company, Tan Dico, and Ghee
Liong & Co., and are praying the court that the ‘auto’ of this court dated
October 28, 1922, approving the additional report of the commissioners in this
case be declared null and void, that the prayer contained in the additional
report of said commissioners dated April 24, 1923, be disapproved, and that the
executrix in this estate be directed to recover whatever money has been paid to
the Philippine National Bank, and that the money proceeds from the sale which is
to take place on April 28, 1923, be distributed among the creditors in
proportion to their claims.
“This motion is based on section 708 of the Code of Civil Procedure as
already interpreted by the Supreme Court in its decisions reported in vol. 25,
Phil. Rep., page 404 and vol. 33, Phil. Rep., page 306, wherein it was held that
once a creditor has elected to present its claim before the committee it is
considered that the creditor has renounced his mortgage security.
“The commissioners in this case filed a memorandum regarding the petition of
the attorneys above referred to and stated that the Bank did not abandon its
security on the mortgage as it was expressly stated on the commissioners’ report
that such indebtedness was secured by first mortgage. The Court after examining
the commissioners’ report found out that said report really states that said
indebtedness was secured by first mortgage. The committee further states in
their memorandum that the National Bank merely desired to have the mortgage
taken into consideration if the properties of the estate were to be sold
later.
“The court believes that no one is qualified to clarify this case than the
commissioners themselves who are presumed to know what had taken place in their
meetings.
“According to section 708 and to the decisions of the Supreme Court above
referred to, a creditor may rely on whatever action he desired, and it appears
from the ‘auto’ of Honorable Judge Horrilleno dated October 28, 1922, which is
the subject of this controversy, that the Philippine National Bank relied on the
mortgage security in its favor.
“The undersigned does not doubt in the least that Honorable Judge Horrilleno
was well aware of the facts and circumstances of the case when he allowed the
Philippine National Bank to rely on its mortgage security and dictated the
‘auto’ of October 23, 1922, above referred to.
“Wherefore, the court hereby denies the motion above referred to.
“It is so ordered.
“Jolo, Sulu, P. I., April 28, 1923.
Jud. Dist”
This is the order appealed from, the appellants Compania Maritima, Fernandez
Hermanos, Philippine Steamship Co., Tan Dico, Paris-Zamboanga, and Philippine
Refining Corporation, represented by their respective attorneys, contending that
the trial court erred: (a) In not holding that the Philippine National Bank, by
presenting its claim to the committee, waived the mortgage in its favor; (b) in
permitting the withdrawal of said claim after it was approved by the committee
and its payment ordered by the court; (c) in entering the order appealed from;
and (d) in not ordering the administratrix to recover from said bank the amounts
that might have been paid to it on ac- count of said mortgage.
Appellants’ claim is based on the provision of section 708 of the Code of
Civil Procedure, construed by this court in the sense that if the mortgage
creditor of a deceased elects to present his claim to the committee in the
proceeding, he cannot make use of the remedy of the foreclosure of the mortgage
and vice versa.
The grounds for the amendatory report of the committee, excluding from their
report the credit of the National Bank, are given in the memorandum filed by
said committee, and found on pages 42 and 43 of the Bill of Exceptions, and
which says;
“The board was expressly made to understand that the mortgage was relied
upon, and it was simply an error in the original report to have the amount of
such mortgage included as one of the ordinary claims approved, instead of merely
making a statement that all the properties of this estate are mortgaged to the
Bank.”
This statement of the committee is sufficiently clear and there exists in the
record no circumstance whatsover tending to overthrow or destroy it. There is no
proof or circumstance indicative of collusion between the committee and the bank
in question, and the presumption that the committee has complied with its duty
in this respect stands unrebutted and unassailed.
If, as appears, the intention of the said bank in appearing before the
committee was not to present said claim but to have it included among the
ordinary claims, it cannot be said that said bank elected such a remedy before
the committee, nor can it therefore be held to have waived its remedy based on
the security.
If that credit was included as such in the original re- port of the
committee, it was an error of the latter, as appears from the aforesaid
memorandum, and not of the bank. But even if it were an error of the bank, the
election of the remedy was not yet conclusive for the attention of the committee
was called on time and the latter amended its report on time, excluding the
credit in question therefrom.
We find, therefore, no sufficient merit in the first assignment of error.
As to the second, which has reference to the action of the trial court in
allowing that said claim of the bank be withdrawn from the committee, there
exists no reason why the court should have prevented the withdrawal of the
claim, included under the aforesaid circumstances in the original report, which
was amended in due season, by the filing in court of the proper amendment before
the order approving said first report became final. The court had full
jurisdiction and ample authority to amend the order of approval by entering
another that was more in consonance with the facts and the requirements of
justice. So it did, and in doing so, it did not commit any error.
The cases of Osorio vs. San Agustin (25 Phil., 404), and Veloso vs. Heredia
(33 Phil., 306), have no application in this case. In those cases the creditors
made a conclusive and final election of both remedies, whereas here the filing
of the claim with the committee, which was lawfully withdrawn on time, does not
constitute a final or conclusive election.
The other assignments of error are but a consequence of the preceding
ones.
The order appealed from is affirmed with the costs against the appellants. So
ordered.
Araullo, C. J., Johnson, Malcolm, Avanceña, Ostrand, and Johns,
JJ., concur.
Street, J., reserves his vote.