JOSEPA LAPLANA, AS ADMINISTRATRIX OF THE ESTATE OF ANA MARIA ALCANTARA, PLAINTIFF AND APPELLANT, VS. MARIANO GARCHITORENA CHEREAU AND ANDREE GARCHITORENA CHEREAU, DEFENDANTS AND…

This
action was instituted on December 27, 1921, in the Court of First
Instance of Camarines Sur by Josefa Laplana, as administratrix of the
estate of Ana Maria Alcantara, against Mariano Garchitorena Chereau and
Andree Garchitorena Chereau, for the purpose of compelling them to
execute a mortgage on certain real property and to recover the
indebtedness secured by said mortgage. In connection with this
complaint the plaintiff asked for an order for the preventive
annotation of her right to be secured by said mortgage, in the registry
of titles, for the purpose of securing the benefit of lis pendens,
contingent upon the outcome of the litigation. This order was granted.
Upon hearing the cause the trial judge ignored the prayer for the
creation of a formal mortgage but gave judgment for the plaintiff to
recover the amount sued for, consisting of the sum of P24,902.86, with
interest from July 2, 1921, and an additional sum of P2,000 to cover
expenses of litigation and attorney’s fees. From this judgment the
plaintiff appealed in respect to the action of the court in refusing to
require the defendants to execute the mortgage, and the defendants
appealed in respect to the order requiring them to pay to the plaintiff
the amounts stated.

Omitting a long series of historical
antecedents not necessary to the determination of the case, the facts
are briefly these: On July 2, 1921, the defendant Mariano Garchitorena,
acting under competent power of attorney from his sister, Andree
Garchitorena, executed a public document in the City of Manila, on
behalf both of himself and his said sister, admitting that the two were
indebted to the plaintiff, Josefa Laplana, as administratrix of Ana
Maria Alcantara, in the amount of P24,902.86, as of the date of June
30, immediately preceding. In the same document the said Mariano
Garchitorena obligated himself and sister to pay said sum within one
year from July 1, of the same year, with interest at the rate of one
per centum per month, payable within the first fifteen days of each
month beginning with the succeeding August.

In the same
document it was declared that the obligors in this contract, Mariano
and Andree Garchitorena, were the owners of a large estate, known as
the Hacienda Salvacion, located in the barrio of Hignaroy,
municipality of Tigaon, Ambos Camarines, for the registration of which
proceedings were then pending in the Court of First Instance of said
province; and it was agreed that as soon as they should obtain a
Torrens title to the said hacienda a second mortgage upon the
same would be executed by Mariano Garchitorena, acting in his own
behalf and as attorney in fact of his sister, to secure said debt.
Finally, it was declared that the mortgage to be executed should
respond not only for capital and interest of said debt but furthermore
for the sum of P2,000, agreed upon for costs and expenses, including
the attorney’s fees of the creditor in case of litigation.

It appears that in the official survey made for the purposes of the registration proceedings the Hacienda Salvacion
was divided into three parcels, consisting, respectively, of about
452.81, 176, and 103.52 hectares, all of which were subject to a first
mortgage in favor of the Philippine National Bank for the sum of
P15,000. Of these three parcels the lot No. 2 was the first to be
registered, and when the certificate of title issued, the defendant,
Mariano Garchitorena, instead of constituting a second mort- gage
thereon in favor of the estate of Ana Maria Alcantara, mortgaged the
lot on November 28, 1921, to one Bartolome M. Martin, to secure a loan
for the sum of P11,000, received on that date by said Garchitorena.
Three days thereafter the plaintiff instituted the present action for
the purpose, as already stated, of compelling the defendants to execute
a mortgage and to recover the amount claimed in the complaint. It will
be noted that the action was brought before the date of the maturity of
the debt as fixed in the contract, but the plaintiff insists that the
act of Mariano Garchitorena in mortgaging lot No. 2 to a stranger
constitutes a diminution of the value of the security which he had
contracted to give to the plaintiff and, under No. 3 of article 1129 of
the Civil Code, confers on the creditor the right to treat the whole
debt as due. The trial court considered this contention to be well
founded, a conclusion in which we agree. The contention of the
defendants that the action was prematurely brought is therefore not
well founded.

By the terms of the contract of July 2, 1921,
it was explicitly agreed that a mortgage should be created in favor of
the plaintiff upon the Hacienda Salvacion as soon as a
Torrens title should be secured, and the defendants were obligated to
execute a mortgage in favor of the plaintiff immediately upon obtaining
a title to any part thereof, in preference to any creditor other than
the Philippine National Bank which had a first mortgage for P15,000 on
the estate. It is pretended by the defendants that the intention was
that the mortgage should be created when a Torrens title should be
obtained to the whole hacienda, and that the obligation to
execute a mortgage did not arise when a certificate of title had been
obtained to one lot only of the three constituting the hacienda.
We consider this suggestion an untenable evasion of the spirit of the
agreement, and it is obvious that the creation of a second mortgage in
favor of Martin was in violation of the stipulation to execute a second
mortgage on the property to the plaintiff.

As already
stated, while giving judgment for the debt, the trial court at first
failed; to make any pronouncement with reference to the right of the
plaintiff to have said mortgage executed. In the motion dated September
13, 1924, the attorney for the plaintiff asked the court to make a
proper provision in the judgment for the execution by the defendants of
the second mortgage in favor of the plaintiff on the hacienda.
In reply to this motion the trial judge made its order of December 24,
1924, in which said motion was denied on the ground that the two causes
of action, namely, to enforce the execution of the mortgage; and to
recover judgment for the indebtedness, were mutually inconsistent and
that both species of relief could not properly be granted. We are of
the opinion that this ruling was erroneous. It is true that a promise
to constitute a mortgage gives rise only to a personal obligation
between the contracting parties (art. 1862, Civ. Code) and creates no real
right in the property, but the agreement to constitute the mortgage is
lawful and such stipulation can be enforced by the creditor, being in
no wise inconsistent with the right to recover the indebtedness. But a
court of equity never requires an unnecessary thing and in this case
all of the rights of the creditor will be adequately protected by
declaring that the indebtedness recognized by Mariano Garchitorena in
the document of July 2, 1921, constitutes a lien in the nature of a
mortgage upon the Hacienda Salvacion, it appearing that the
registration of the whole has been effected. It is a maxim of
jurisprudence that “equity regards that as done which ought to be
done,” and in obedience to this precept, as between the parties to this
record, the property must be considered to be subject to the same lien
as if the mortgage which had been agreed to be made had been actually
executed. (1 Pom., Eq. Jur., secs. 363-377.) It is our opinion,
therefore, that there is merit in the plaintiff’s appeal, though the
remedy to be conceded is not precisely the compelling of the defendants
to execute the mortgage, a declaration of the existence of the lien
being sufficient.

We note that in the brief of the
defendants, as appellees, it is insisted that the plaintiff’s appeal
was not perfected in time, with the result that this court has no
jurisdiction to entertain the appeal. This contention is not well
founded. In this connection we note that the original judgment was
rendered by the trial court on August 27, 1924, and notice of this
decision was served on the attorney for the appellant on September 5,
1924. On September 13 said attorney presented his motion, asking the
court to amplify the judgment and in particular to pass upon the rights
of the plaintiff to compel the defendants to execute a mortgage in
favor of the plaintiff. The court kept this motion under consideration
until December 24, 1924, when the motion was overruled. The submission
of this petition to the court had the effect of suspending the running
of the time for the taking of the necessary steps for appeal; and if
this period be deducted, it will be found that all of the steps looking
towards the perfection of the appeal were taken within due time and in
the manner necessary to give this court jurisdiction over the cause.
The contention of the defendants-appellees that the appeal of the
plaintiff should not be entertained is therefore ill-founded.

In the third, fourth and fifth errors assigned in the brief of the
defendants, as appellants, an effort is made to demonstrate that the
true amount of the defendants’ indebtedness to the plaintiff is not
more than P8,000, with interest at twelve per centum per annum from
October 20, 1920, and that the document of July 2, 1921, admitting
indebtedness to the extent of P24,902.86 was obtained from Mariano
Garchitorena by fraud and deceit. We have examined the considerations
in support of this contention and find the same to have been so
completely refuted in the able opinion of the trial court that we find
it unnecessary to comment further, adopting the conclusion of the
appealed decision upon this point.

We note that during the
pendency of this litigation Carmen Garchitorena Alcantara was declared,
in the proceedings over the estate of her mother, Ana Maria Alcantara,
to be the latter’s heir and entitled to succeed to the right of action
in this case, for which reason the said Carmen Garchitorena Alcantara
was substituted as party plaintiff by order of the court of August 2,
1922, since which date the litigation has proceeded in her own name and
right.

For the reasons stated the decision which is the
subject of appeal will be affirmed in so far as it requires the
defendants jointly and severally to pay to the present plaintiff,
Carmen Garchitorena Alcantara, the sum of P24,902.86, with yearly
interest at twelve per centum from July 2, 1921, until paid, plus the
further sum of P2,000 as costs, expenses and attorney’s fees, and said
decision will be modified by adding thereto a pronouncement that the
aforesaid indebtedness constitutes a lien upon the Hacienda Salvacion
consisting of the three lots described in the complaint, and a duly
certified copy of the dispositive part of this decision will be
certified to the register of deeds of Camarines Sur, in order that the
existence of this lien may be noted in the proper certificates of
title, to which end the defendants are enjoined to produce before said
register the owner’s duplicates. No express pronouncement will be made
as to costs.

Avanceña, C. J., Malcolm, Villamor, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.