G.R. No. 21640. August 28, 1924
THE PHILIPPINE NATIONAL BANK, PLAINTIFF AND APPELLEE, VS. JOSE MARIA DE LA VINA, ADMINISTRATOR OF THE TESTATE ESTATE OF DIEGO DE LA VINA, DECEASED, DEFENDANT AND APPELLANT.
VILLAMOR, J.:
It is alleged in the complaint:
(a) That on July 15, 1919, the defendant Diego de la Vina, through
his attorney-in-fact Jose Maria de la Vina, obtained and received from the
plaintiff an agricultural loan of P160,000, Philippine currency, as evidenced by
a promissory note executed by him for the purpose, which is as follows:
1919.“On or before the 15th day of July, 1919, for value received, I promise to
pay to the Philippine National Bank at its office in Manila, Philippine Islands,
the sum of one hundred sixty thousand pesos (P160,000) with interest thereon,
payable semiannually, at the rate of eight (8%) per centum per annum, from date
until paid, and with interest at the same rate on all annual installments
overdue and unpaid. Annual payments of principal and interest to be made as per
attached amortization schedule.
attorney-in-fact”(b) That to secure the payment of the aforesaid loan of P160,000
with interest thereon, Diego de la Vina, through his attorney-in-fact Jose Maria
de la Vina, executed a special and voluntary mortgage upon the property
described in paragraph IV of the complaint. This mortgage was recorded in the
registry of property of the Province of Oriental Negros, Philippine Islands, a
copy of which is attached to the complaint and made a part thereof, marked
Exhibit A.(c) That according to the deed of mortgage Exhibit A, the deceased
Diego de la Vina is under the obligation to pay to plaintiff the aforesaid sum
of P160,000, with interest thereon, in ten yearly installments, subsequent to
the year in which the notes set out in paragraph V of the complaint for
P24,017.60 were executed payable each on or before the 15th day of July of each
year.(d) That in violation of the terms of the deed of mortgage
above-mentioned, the defendant has not paid to plaintiff any of the said ten
installments, with the exception of the sum of P12,008.80 which said defendant
paid on January 21, 1921, on account of the first installment corresponding to
the year 1920.(e) That the amounts owing from Diego de la Vina to plaintiff
secured by the aforesaid mortgage Exhibit A, and computed up to November 30,
1922, are as follows:
Paid a/c January 21, 1921
____________Interest due July 15, 1920 Paid a/c January 21, 1921 Interest on 149,038.40 from 1/21/21 to 7/15/21 @ 8%
Interest on 13,056.00 from 7/15/20 to 1/21/21 @ 8%
Interest on 39,741.85 from 7/15/22 to 11/30/22 @ 8%
_________
Total amount due Nov. 30, 1922
Daily interest on P188,780.25 (f) That by virtue of the fifth clause of the contract of mortgage
Exhibit A, the mortgage obligation contracted by the deceased Diego de la Vina
in favor of the plaintiff has already become due and therefore the mortgage may
be foreclosed.Wherefore the plaintiff prays that the defendant be sentenced to pay the sum
of one hundred ninety-four thousand five hundred sixty-nine pesos and
forty-eight centavos, Philippine currency, with interest thereon at the rate of
8 per centum per annum from December 1, 1922, until full payment, with the costs
of the action; that in case the judgment is not satisfied within the period
fixed by the law, the mortgaged property be sold and the proceeds of the sale
applied on the payment of the amounts claimed in the complaint and the costs of
the suit; that in case the proceeds of the sale of the mortgaged property are
not sufficient to cover the whole amount claimed with interest thereon and the
costs of the action, a writ of execution be issued against any other property of
the estate of Diego de la Vina not exempt from execution until the balance is
completely paid.The deed of mortgage is attached to the complaint as Exhibit A.
The administrator of the estate of Diego de la Vina, deceased, filed a
general denial of the allegation of the .complaint, and as a special defense
alleged: ” (a) That plaintiff in this action has prosecuted its claim
before the commission appointed to consider claims against the estate of Diego
de la Vina, deceased, in special proceeding No. 85 of this judicial district; on
the 20th day of June, 1920, the commission in session allowed the claim of the
plaintiff, and so reported to this court on the 8th day of January, 1921;
(b) the plaintiff is estopped under section 708 of the Code of Civil
Procedure by reason of having abandoned its security) from the remedy prayed for
in the complaint in this case.”And he prayed for the dismissal of the complaint with the costs against the
plaintiff.The trial court, in a well-reasoned decision, sentenced the defendant,
executor in the testamentary proceeding for the settlement of the estate of the
deceased Diego de la Vina, to pay the sum of P184,569.48, Philippine currency,
with interest thereon at the rate of 8 per centum per annum from December 1,
1922, until the execution oi; the judgment and the costs and ordered that the
aforesaid sum of one hundred eighty-four thousand five hundred sixty-nine pesos
and forty-eight centavos (P184,569.48), be paid into the court below on January
2, 1923, and in case of failure to make such payment, the land with the building
and improvements thereon, be sold in accordance with the deed of mortgage
Exhibit A in order that said obligation might be paid with the proceeds of the
sale.From this judgment the administrator of the estate of Diego de la Vina
appealed. In his brief he assigns error to the action of the trial court in not
holding that the plaintiff is estopped from foreclosing the mortgage by virtue
of the order of the lower court approving the report of the committee on claims
in the proceeding for the settlement of the estate of Diego de la Vina. In other
words, the contention of the plaintiff, and this is the decisive issue in the
case, is that the appellee bank, having presented its claim to the committee on
claims in the said proceeding, is now estopped from bringing this action.True that according to section 708 of the Code of Civil Procedure a mortgage
creditor may present his claim to the committee on claims, or may, at his
election, realize upon the security he may have by an action against the
executor or administrator; but said creditor cannot exercise his right
successively by presenting his claim to the committee first, and then suing the
executor or administrator. And this is so because the policy of the law is to
avoid multiplicity of litigations. (Osorio vs. San Agustin, 25 Phil.,
404; Luengo & Martinez vs. Moreno, 26 Phil., Ill; Veloso
vs. Heredia, 33 Phil., 306.)But in the instant case the plaintiff bank did not present its claim to the
committee in the proceeding for the settlement of the estate of Diego de la
Vina. Exhibit J is a letter of the president of the plaintiff National Bank to
the committee on claims in the aforesaid proceeding, wherein, at the instance of
the administrator himself of the estate, he requested them, in view of the fact
that the maturity of the first annual installment of P24,017.60, upon the loan
of P160,000 obtained from the bank by said deceased Diego de la Vina, was coming
near, that the necessary measures be taken for the payment of said amount in due
time, that is to say, on July 15, 1920. Said Exhibit J appears dated in Manila
on the 21st day of June, 1920. Exhibit L is a letter, dated in Cebu on June 26
of the same year, from the attorney of the estate of Diego de la Vina to the
president of the Bank, wherein mention is made of the annual payment of P24,000
demandable July 15, 1920; and wherein the attorney of the estate asked for an
information as to whether the bank was willing to prosecute its claim under the
provisions of section 708 of the Code of Civil Procedure. In answer to said
letter the president of the Bank wrote Exhibit M on June 30, 1920, wherein it
was expressly stated that the bank was not willing to prosecute its claim
against the estate under the provisions of section 708 of Act No. 190.And, indeed, the National Bank could not prosecute its claim for the, payment
of the obligation, which was not then demandable. Nor could it claim payment of
the whole of its credit, for the reason that then the installments had not
become due, nor was there any violation whatsoever on the part of the debtor
that could render the stipulated installments to become due. (Limpangco
vs. Mercado, 10 Phil., 508.)If the committee on claims in the proceeding for the settlement of the estate
of Diego de la Vina understood the letter of June 20, 1920, as a claim of the
bank for the payment of its credit of P160,000, with interest thereon, and
approved the payment of said sum, as stated in the minutes of January 8, 1921,
said committee acted officiously, and its ruling can in no way affect the rights
of the plaintiff bank.Without the necessity of entering into a discussion of the other errors
assigned by the appellant, we find that the appellee bank, not having presented
its claim to the committee on claims in the proceeding for the settlement of the
estate of the deceased Diego de la Vina, has the perfect right to bring this
action.Counsel for appellee bank calls our attention to a clerical error in the
dispositive part of the judgment appealed from, with reference to the amount due
from the defendant, which error was discovered only after the case was brought
to this court, and upon the authority of the doctrine laid down by some courts
of the United States, prays that the necessary correction be made by this court,
so that the judgment will conform to the facts found by the trial court. In the
case of Belford vs. Woodward, the Supreme Court of Illinois held:“Any clerical mistake in the amount for which a judg- ment is entered in the
Appellate Court may be corrected in the Supreme Court, where there is sufficient
in the record and on the face of the judgment itself to show the correct
amount.” (29 L. R. A., 593.)The same doctrine was announced in the following cases: Dickey vs.
Gibson (113 Cal., 26; 45 Pac, 15; 54 A. S. R., 321); Bank of Cadiz vs.
Slemmons (34 Ohio St., 142; 32 Am. Rep., 364; 15 R. C. L., 681).The trial court having held that the defendant has not paid to the Philippine
National Bank any of the ten installments, stipulated, with the exception of the
sum of P12,008.80 which was paid on January 21, 1921, on account of the first
installment corresponding to the year 1920; and that the defendant owed the
plaintiff creditor on November 30, 1922, the sum of £194,569.48 plus P41.96 as
interest per day; it seems to us clear that it could not have rendered a
judgment against the defendant for only Marshall-Wells Co. vs. Henry W.
Elser & Co. the sum of P184,569.48. So that taking into account the facts
appearing from the record and the same decision rendered by the trial court, and
the appellant not having made any objection to this petition to amend, we think
that there is here a clerical error (lapsus calami), which must be corrected in
justice to the parties litigant.It being understood that the dispositive part of the judgment appealed from
is modified in the sense that the defendant is sentenced to pay the plaintiff
the sum of P194,569.48, the same is hereby affirmed in all other respects with
the costs against the plaintiff. So ordered.Johnson, Street, Malcolm, Avanceña, Ostrand, and Romualdez,
JJ., concur.