G.R. No. 24127. November 23, 1925
THE BANK OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. BENJAMIN A. GREEN, DEFENDANT AND APPELLANT.
MALCOLM, J.:
is an appeal taken by the defendant from an order of the Court of First
Instance of Manila, confirming the sale of defendant’s property by the
sheriff of Manila to the plaintiff as judgment creditor upon an
execution issued to satisfy a judgment in favor of the plaintiff and
against the defendant. The principal issue in the case is whether the
variance between the execution and the judgment on which it is issued
is so material as to vitiate the execution.
A statement of
the case is first in order. The Bank of the Philippine Islands, as
plaintiff, began action, against Benjamin A. Green, as defendant, in
the Court of First Instance of Manila to foreclose a mortgage and to
recover on two promissory notes. The answer was in the form of a
general denial. The case proceeded to trial on the merits, after “which
the presiding judge handed down a decision which concluded thus:
“Benjamin A. Green is sentenced to pay to the plaintiff party the sum
of fifty-seven thousand nine hundred pesos (P57,900), after deducting
P62.24, with the agreed interest at 12 per cent a year from August 9,
1921, plus 10 per cent on the principal as attorney’s fees and court’s
costs.” The defendant attempted to appeal from this judgment, but on
September 2, 1924, the Supreme Court dismissed the appeal.
The judgment having become final upon dismissal of the appeal by the
Supreme Court, an “Ejecucion de Credito Hipotecario” (Execution
Foreclosing Mortgage) was issued on November 20, 1924, by the same
Judge of First Instance who had rendered judgment. A textual copy of
this document follows:
“UNITED STATES OF AMERICA
“PHILIPPINE ISLANDS“IN THE COURT OF FIRST INSTANCE OF THE CITY OF MANILA
] ] ] “To the Sheriff of Manila.
“GREETINGS:
“Whereas
on April 25, 1924, judgment was rendered by the Court of First Instance
of Manila, Branch I, in the above entitled case, ordering the defendant
Benjamin A. Green to pay into this court on or before July 29, 1924,
the sum of P57,900, after deducting P62.24, Philippine currency, with
interest thereon at the rate of 12 per cent per annum from August 9,
1921, until payment, plus 10 per cent on the principal as attorney’s
fees and court’s costs.“And, whereas Benjamin A. Green has not complied with the order contained in the above cited judgment.
“Now, therefore, we command you to sell at public auction to the highest bidder the property described as follows :
”
‘Land situated on Calle Azcarraga, district of Santa Cruz, composed of
Lot No. 11-B, Block No. 2201 of the sub-divided property of the
Government of the Philippine Islands known as Hacienda de San Lazaro,
according to the amendatory plan of the former attached to the
proceeding No. 235, record No. 11546 of the General Land Registration
Office, copy of which amendatory plan is attached to the file No. 45.
Said lot contains an area of two thousand thirty-five square meters
(2,035.00), and its boundaries are stated in the aforesaid amendatory
plan.’“And of the proceeds thereof you
cause to be made the sum of P57,900, Philippine currency, after
deducting P62.24, with interest thereon at the rate of 12 per cent per
annum from August 9, 1921, until payment, plus the sum of 10 per cent
on the principal as attorney’s fees, plus the sum of P80.24, Philippine
currency, as costs of the suit, aside from your lawful fees on this
execution; and to make return of your proceedings with this writ to the
court within the period prescribed by the law.“Manila, November 20, 1924.
“Judge of the Court of First
In
pursuance of the foregoing writ of execution, the property described
therein was sold at sheriff’s sale on December 29, 1924, to the
plaintiff, the Bank of the Philippine Islands, as the highest and only
bidder, for the sum of ten thousand pesos (P10,000). Thereupon, counsel
for the plaintiff petitioned the court to confirm the sale. Opposition
was entered by counsel for the defendant. The resolution of the court
overruled this opposition and approved the sale of the land to the Bank
of the Philippine Islands for the sum of ten thousand pesos (P10,000).
Appeal followed.
The defendant advances three propositions
to support his appeal. They are: (1) The so-called writ of “Execution
Foreclosing Mortgage” issued by the lower court on November 20, 1925,
is null and void and of no effect whatsoever; (2) the issuance of the
so-called “Execution Foreclosing Mortgage” was premature, irregular,
and insufficient; (3) the price was inadequate.
The first
proposition is meritorious. The remaining two are not meritorious. As
to the last two points, we content ourselves with citing the
controlling authority and pass on to discuss the first point as
decisive of the appeal. (See as to the second proposition the
Code of Civil Procedure, secs. 502 and 506, and 4 Corpus Juris, 607;
and as to the third proposition, Warner, Barnes & Co. vs. Jaucian and Jaucian [1909], 13 Phil., 4; Warner, Barnes & Co., vs. Santos [1909], 14 Phil., 446; and National Bank vs. Gonzalez [1924], 45 Phil., 693.)
It is elemental that the execution must conform substantially to the
judgment on which it is issued. From this point of view, let us examine
the judgment and writ of execution in this case.
The
judgment is entirely valid. The appellant is the first to so admit. It
is a judgment for a sum of money. It should have been drawn more
clearly so as to make it speak the true conclusion flowing from the
findings of the court. The appellee is the first to so admit.
The writ of execution is entitled “Execution Foreclosing Mortgage”. It
recites, among other things, that the judgment rendered ordered “the
defendant Benjamin A. Green to deposit in this Court on or before the
29th of July, 1924, * * *,” that is after the three-month period
provided by law, whereas as a matter of fact the judgment contains no
such order. The execution further provides for the sale of the
mortgaged property in conformity with sections 256 et seq. of the Code of Civil Procedure.
The writ of execution is not a valid sale of mortgaged property for the
judgment on which it depends is for money. It is not an execution
referring to a judgment for money since it is not so labelled and since
the attempt is to comply with the legal provisions dealing with the
foreclosure of real estate mortgages. In other words, the execution is
so out of harmony with the judgment that legal implications cannot save
the execution from being found to be fatally defective. As the
execution is not warranted by the judgment and exceeds it, it has no
validity.
The order appealed from confirming the sale of
defendant’s property to the plaintiff must be set aside without
prejudice to the right of the plaintiff to secure a new writ of
execution for the enforcement of the money judgment. It is so ordered
without special pronouncement as to costs in this instance.
Avanceña, C. J., Street, Villamor, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.