HIJOS DE I. DE LA RAMA, PLAINTIFF AND APPELLEE, VS. JOSE SAJO, DEFENDANT AND APPELLANT.

JOHNSON, J.:


The appellant contends that the lower court committed an error in allowing
the plaintiff to maintain a personal action for the recovery of a sum of money,
instead of an action to foreclose a mortgage given as security for the payment
of said sum. He further contends that the lower court committed an error in
dismissing his cross-complaint and counterclaim. The appellant admits the
execution and delivery of a certain mortgage to secure the payment of the amount
which the plaintiff claims. He does not deny his liability upon said contract,
but contends that the plaintiff should be adjudged to pay him certain damages
resulting from the issuance of an attachment upon his property.

The record shows that on the 9th day of April, 1920, the defendant executed
and delivered to the plaintiff a mortgage upon certain real and personal
property mentioned in said contract, to secure the payment by the defendant to
the plaintiff of the sum of P35,000. Upon the presentation of the complaint the
plaintiff prayed that a writ of attachment should be issued upon certain
property of the defendant upon the grounds (a) that the property secured by the
mortgage was not sufficient to satisfy the debt due, and (b) that the defendant
was trying to dispose of his property for the purpose of defrauding his
creditor. Upon a reading of the petition, the lower court granted the
attachment. Later, the defendant answered by a general and special defense,
together with a counterclaim, and prayed for a judgment against the plaintiff in
the sum of P63,000.

Upon the issue thus presented, the Honorable Cayo AIzona, auxiliary judge,
after hearing the evidence adduced by the respective parties, reached the
conclusion that a preponderance of the evidence shows that the defendant was
indebted to the plaintiff under and by virtue of the terms of the contract of
the 9th day of April, 1920, in the sum of P32,996.39, with interest at 12 per
cent from the 4th day of August, 1921, until paid; together with the interest at
12 per cent on the sum of P35,000 from the 9th day of April, 1920, until the 4th
day of August, 1921; together with the sum of P164.05 as commission due the
plaintiff on the sale of 1,640 piculs of sugar; together with 15 per cent on the
sum of P32,996.39, as attorney’s fees, in accordance with the terms of said
contract. From that judgment the defendant appealed and now asserts that the
lower court committed the errors indicated above.

The appellant contends that inasmuch as he executed and delivered a mortgage
to the plaintiff to secure said indebtedness, the plaintiff could not waive that
security and maintain a personal action for the amount due. In the first place
it may be said that the action was based upon the contract executed and
delivered by the defendant to the plaintiff on the 9th day of April, 1920. But
while the action was based upon said contract, it is true that the plaintiff
prayed for a personal judgment only. He did not ask for a foreclosure of the
mortgage. He prayed only for a personal judgment for whatever amount might be
found due under and by virtue of said contract. While it is true in some
jurisdictions, by virtue of statutory provisions, that when a mortgage is given
to secure the payment of an indebtedness the action brought to recover a
judgment for said indebtedness must be one for the foreclosure of the mortgage,
yet we are of the opinion that in the absence of statutory provisions the
mortgagee may waive the right to foreclose his mortgage and maintain a personal
action for the recovery of the indebtedness. There is no statutory provision in
this jurisdiction prohibiting a personal action to recover a sum of money even
though a mortgage has been given as security for the payment of the same.

The appellant argues, however, that if the plaintiff may waive his right
under the mortgage and maintain a personal action, he is liable to be subject to
two actions. That contention, in our judgment, is without merit. The appellant
further argues that the purpose of the plaintiff in maintaining a personal
action was to enable him to obtain a deficiency judgment, that is, a judgment
for whatever sum or sums might be due after the liquidation of the property
covered by the mortgage. That argument is also without merit for the reason that
by virtue of section 260 of Act No. 190 the plaintiff is entitled to a
deficiency judgment, whether the action is a personal one or one to foreclose
the mortgage. The rule is well established that the creditor may waive whatever
security he has and maintain a personal action, in the absence of statutory
provisions in the contract. In this jurisdiction there are no statutes covering
the question.

With reference to the contention that the lower court should not have issued
the attachment, it may be said that if the facts alleged in the complaint, to
the effect that the defendant was attempting to defraud his creditors, were
true, then the court is within its discretion not only to authorize but to
justify the issuance of the attachment, considering the form of the action
instituted by the plaintiff. If the grounds upon which the attachment was issued
were not true and unsupported by the facts, the defendant has his remedy by
immediately presenting a motion for the dissolution of the same. That he did not
do.

Considering the fact that the contract required the defendant to deliver to
the plaintiff all of the sugar produced upon the real property included in the
mortgage, and considering the fact that out of 1,800 and some piculs of sugar,
he only delivered to the plaintiff 208 and sold the balance to other persons,
thereby injuring and reducing the security held by the plaintiff, we are not
inclined to hold that the attachment was illegal.

The appellant claims that he was damaged to the amount of about P60,000
resulting from the issuance of said attachment. The record shows that
practically all of the property attached was claimed by third persons, and the
attachment for that reason was dissolved upon said property. And, moreover, even
granting that some damage resulted to the defendant by virtue of said
attachment, yet the evidence presented by the defendant upon the question of
damages is too speculative and remote, upon which to render a judgment.

The appellant alleges that the lower court should not have admitted Exhibit F
for the reason that it had not been sufficiently identified. Exhibit F, in our
judgment, was sufficiently identified to make it admissible in evidence. Its
purpose was simply to show the amount of sugar which had been produced upon
various haciendas with which the plaintiff had business relations; and
moreover, the record contains sufficient proof, without Exhibit F, to show the
amount of sugar produced by the defendant upon the real property mentioned in
the contract of April 9, 1920. The facts stated in Exhibit F were, therefore,
not necessary to support the conclusion of the lower court upon that
question.

After a careful examination of the record in relation with the assignments of
error made by the appellant, we find no reason nor justification for modifying
the judgment appealed from. The same is therefore hereby affirmed, with costs.
So ordered.

Araullo, C. J., Street, Malcolm, Avancena, Johns, and Romualdez,
JJ., concur.