ASIA BANKING CORPORATION, PLAINTIFF AND APPELLEE, VS. WALTER E. OLSEN & CO., INC., ET AL., DEFENDANTS. WALTER E. OLSEN, APPELLANT.

About
February 6, 1920, the defendant Walter E. Olsen & Co., Inc.,
obtained a loan of P200,000 from the plaintiff for the purpose of
purchasing a piece of land in Tondo. On account of this loan the other
defendants and Mr. A. D. Gibbs—all stockholders of the defendant
corporation—executed jointly and severally a promissory note for the
amount, of P200,000 in favor of the plaintiff. After the land had been
purchased, the defendant corporation, Walter E. Olsen & Co., Inc.,
executed in favor of its codefendants and of Mr. A. D. Gibbs a
promissory note for the amount of P200,000 and a mortgage upon the land
to secure the payment of the P200,000, or any such part thereof as any
of them might be compelled to pay the plaintiff upon the promissory
note subscribed by them.

On April 25, 1921, the defendant
corporation Walter E. Olsen & Co., Inc., through its president and
treasurer, Mr. Walter E. Olsen, one of the defendants, mortgaged the
same land to the plaintiff to secure the payment of the loan of
P200,000. Due to the fact that this land, as already stated, was
mortgaged by the defendant corporation, Walter E. Olsen & Co.,
Inc., to its codefendants and to Mr. A. D. Gibbs, the mortgage in favor
of the plaintiff could not be recorded in the registry inasmuch as it
was necessary to cancel first the other mortgage. The loan of P200,000
in favor of the plaintiff has not been paid until this date. These are
the facts appearing from the record and the documents accompanying the
complaint as a part thereof.

The complaint prays that
judgment be rendered against defendants and each and every one of them
jointly and severally for the sum of P200,000, with interest at the
rate of 9 per cent per annum from November 4, 1920; that the plaintiff
be subrogated in the place of the defendants, except Walter E. Olsen
& Co., Inc., as to the mortgage of the land made in their favor and
that this mortgage be cancelled; and should the amount of P200,000 not
be paid to the plaintiff, that the land mortgaged be sold in order to
pay the amount of this loan.

All the defendants, except Mr.
Walter E. Olsen, subscribed a document wherein they agreed that a
judgment be rendered as prayed for in the complaint.

The
judgment appealed from dismisses the complaint as to the defendants
Walter E. Olsen, John W. Marker, Louis McCall, B. A. Green and Theobald
Diehl, sentencing the defendant Walter E. Olsen & Co., Inc., to pay
the plaintiff within three months the sum of P200,000, with interest at
9 per cent per annum from November 4, 1920, and ordering, in default of
said payment, that the mortgaged land be sold in order to apply its
proceeds to the amount of the judgment. The judgment appealed from
further orders that the mortgage of the land in favor of the
defendants, except Walter E. Olsen & Co., Inc., be cancelled
subrogating the plaintiff thereinto. From this judgment Walter E. Olsen
appealed.

Appellant alleges that the lower court erred in
cancelling the mortgage in favor of the defendants. Appellant cannot
object to this cancellation. As president and treasurer of the
defendant corporation, Walter E. Olsen & Co., Inc., he mortgaged
this land unto the plaintiff. This mortgage cannot be recorded, and
thus acquire full efficacy, without first cancelling the mortgage upon
the same land executed in favor of the appellant and of his
codefendants. Appellant cannot now refuse to do that which is necessary
for the efficacy of the mortgage he made in favor of the plaintiff in
behalf of Walter E. Olsen & Co., Inc. On the other hand, the
mortgage in favor of the defendants, in view of the judgment rendered,
is now useless. It was made solely for the purpose of securing the
reimbursement of any amount that they may have had to pay to the
plaintiff on account of the loan of P200,000 which they guaranteed.
Since they have been absolved from all liability on account of this
loan, that mortgage has no longer any purpose.

Another error
assigned by the appellant is the fact that the lower court took into
consideration the documents attached to the complaint as a part
thereof, without having been expressly introduced in evidence. This was
no error. In the answer of the defendants there was no denial under
oath of the authenticity of these documents. Under section 103 of the
Code of Civil Procedure, the authenticity and due execution of these
documents must, in that case, be deemed admitted. The effect of this is
to relieve the plaintiff from the duty of expressly presenting such
documents as evidence. The court, for the proper decision of the case,
may and should consider, without the introduction of evidence, the
facts admitted by the parties.

The judgment appealed from is affirmed with costs against the appellant. So ordered.

Street, Malcolm, Villamor, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.