BIAN HIN & CO., INC., PLAINTIFF AND APPELLEE, VS. TAN BOMPING, DEFENDANT AND APPELLANT.

It appears from the evidence that on September 6, 1921, the defendant
executed the following document (Exhibit d) in favor of Julian Miranda
& Co., the plaintiff’s predecessors in interest:

“I,
Tan Bomping, married to Julia Solis, both residents of the municipality
of Jimenez, Province of Misamis, Philippine Islands, by these presents
say that my account with the firm ‘Julian Miranda & Co.,’ doing
business in the same municipality of Jimenez and with a store
established in the Rizal Street of the same municipality, having been
liquidated, it appears that I owe to said mercantile partnership the
sum of P11,000 for cash and goods taken from said store. And being at
the present time engaged in commerce, I will pay said amount by
installments within the period of five years from today, September 6,
1921.

“And to guarantee the payment of the aforesaid amount
of P11,000, I mortgage all of my properties movable and immovable
together with those of my said wife Julia Solis, present and future,
including my semimovable properties.

“In witness hereof, I
signed by these presents together with my wife Julia Solis, in the
municipality of Jimenez, Misamis, this 6th day of September, 1921, A. D.

(Sgd.)		“TAN BOMPING
		“JULIA SOLIS

“(Acknowledged both by Tan Bomping and by Julia Solis before Notary.)”

The document was prepared by the justice of the peace of the
municipality of Jimenez, Misamis, who assured the parties that it was a
sufficient mortgage deed of all the property of the defendant, but it
was subsequently found that for lack of a sufficient description of
said property, the document could not be admitted to record in the
office of the register of deeds, and the defendant having failed to pay
his debt, this action was brought on November 15, 1923, to compel a
reformation of the document so as to make it a valid mortgage
admissible to record.

In his complaint the plaintiff alleges
that the plaintiff is a mercantile partnership, duly incorporated under
the laws of the Philippine Islands, with domicile in the municipality
of Jimenez, Misamis, and is the successor of the firm of Julian Miranda
& Co.; that the defendant owes to Julian Miranda & Co., now
substituted by the plaintiff, the sum of P11,000 in accordance with the
document hereinbefore quoted; that in the execution of said document,
it was the intention of both parties, and so specifically agreed
between them, that in order to guarantee the payment of said debt of
the defendant in favor of Julian Miranda & Co., said defendant
mortgaged in favor of the company the nine parcels of land described in
the complaint; that owing to the lack of skill and sufficient legal
knowledge on the part of the person who drafted and prepared said
document, it suffers from defects which prevent it from being enforced
before the courts of justice; that the defendant has no other property
from which the plaintiff can satisfy its claim in the amount of P11,000
against the defendant and that the plaintiff has been informed and so
believes that the defendant, in order to defraud the plaintiff and
prevent the collection of his debt to the plaintiff, is about to sell
and transfer to third persons all of his properties. The plaintiff
therefore prays that the court order the defendant to execute in favor
of the plaintiff a good and valid mortgage deed of the properties
described in the complaint to guarantee the payment of the
aforementioned debt of P11,000.

In answer to the complaint
the defendant entered a general denial and set up a counterclaim
against the plaintiff for P12,000, as damages for unlawful arrest and
imprisonment under section 412 of the Code of Civil Procedure.

The trial court rendered a judgment ordering the defendant to execute a
good and sufficient mortgage in favor of the plaintiff to secure the
sum of P11,000. It also found that the defendant’s counterclaim was not
sustained by the evidence and absolved the plaintiff from the same.
From this judgment the defendant appeals and makes the following
assignments of error:

“I. The lower court
erred in declaring that the stipulation between Julian Miranda &
Co. and the defendant is a contract of mortgage of the property movable
and immovable of the defendant to guarantee and secure the payment of
the debt of P11,000, which the defendant owes to the plaintiff and that
Exhibit D does not state properly said agreement.

“II. The
lower court also erred in sentencing the defendant and appellant to
execute in favor of the plaintiff and appellee, in lieu of Exhibit D, a
good, valid and specific mortgage deed of all his properties described
in the complaint, and to pay the costs.

“III. The lower court likewise erred in denying the defendant’s counterclaim.”

A reading of the document itself, in connection with the testimony
presented, is the best refutation of the first assignment of error and
leaves no doubt as to the intention of the parties to create a
mortgage. This being so, the second assignment is also without merit.
In its present form the document evidences an equitable mortgage valid
as between the parties, but for lack of a detailed description of the
lands mortgaged, it cannot be recorded and thus made effective against
third parties. The defect is merely formal and it is settled beyond
discussion that under such circumstances, the party who executed the
document may be compelled to reform it or to execute another document
sufficient to carry out the intent of the agreement. Articles 1278 and
1279 of the Civil Code read as follows:

“Art.
1278. Contracts shall be binding, whatever may be the form in which
they may have been entered into, provided that the essential conditions
required for their validity exist.

“Art. 1279. Should the
law require the execution of an instrument or any other special
formality in order to make the obligations of a contract effective, the
contracting parties may compel each other to comply with such formality
from the moment in which consent has been given, and the other
requirements for the validity of the contract exist.”

Applying the articles quoted, this court said in the case of Cuyugan vs. Santos (34 Phil., 100):

“*
* * The lack of the formal requisites prescribed by the Code in order
that such contracts may become effective to bind or convey the
property, such as their execution in public instruments and the like,
does not invalidate them as personal obligations, as ‘either party may
compel the other to comply with such formalities’ from the moment the
valid personal obligation has been entered into. (Article 1279 of the
Civil Code.)” (See also Rodriguez vs. Pamintuan and De Jesus, 37 Phil., 876, 880-882; Gutierrez Repide vs. Afzelius and Afzelius, 39 Phil., 190.)

As to the third assignment of error we agree with the trial court that
the evidence is not sufficient to enable the court to determine the
amount of the damages sustained by the appellant by reason of his
imprisonment. The Civil Law does not recognize nominal damages (Algarra
vs. Sandejas, 27 Phil., 284; Tan Te vs. Bell, 27 Phil.,
354) and the general rule in this jurisdiction is that, in regard to
damages to an established business, satisfactory evidence of the amount
of business transacted before and after the injury complained of must
be submitted before damages can be awarded (Tan Ti vs. Alvear, 26 Phil., 566; Algarra vs. Sandejas, 27 Phil., 284; Tan Te vs.
Bell, 27 Phil., 354). In this case we have only the bare statement of
the defendant that he estimated his damages at P12,000. That is merely
an expression of opinion and is not sufficient.

For the
reasons stated, the judgment appealed from must be affirmed. To prevent
misunderstanding, it may however be noted that a mortgage executed by
the husband alone, without special authorization from the wife, is of
no effect as to her paraphernal property.

Judgment affirmed with costs. So ordered.

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