MIGUEL PEREZ, PLAINTIFF AND APPELLEE, VS. JUAN BARCIA, DEFENDANT AND APPELLANT.

On June 22, 1925, the defendant, Juan Barcia y Zanuy, resident
of Pontevedra, Occidental Negros, borrowed the sum of P20,000, for two years,
from Jose Ledesma y Rosario, with interest at 12 per centum per annum, payable
annually. To secure this debt Barcia mortgaged to Ledesma the hacienda Cambaros,
being lot No. 1500 of the cadastral survey of Pontevedra, Occidental Negros,
containing something more than 294 hectares, and registered in transfer
certificate No. 4890 of the property registry of Occidental Negros. The property
thus mortgaged belonged to the plaintiff herein, Miguel Perez y Tejido, who had,
however, duly authorized the creation of this mortgage. Among the stipulations
contained in this mortgage is one to the effect that in case of failure on the
part of the debtor to comply with any of the obligations of the mortgage, all
terms then pending should be considered as lapsed (se daran por vencidos todos
los plazos que entonces hubiere pendientes). When the first year was ended
Barcia failed to pay the interest then due, and as a consequence the creditor
threatened to foreclose the mortgage. Thereupon, for his own protection, the
owner, Miguel Perez, was compelled to intervene to avoid the sacrifice of the
estate. To this end he procured indulgence for several months from the creditor
Ledesma and later paid off the interest then due on the mortgage, amounting to
P2,400. 

Following this act, the plaintiff Perez instituted the present
action against Barcia on April 22, 1927, in the Court of First Instance of
Occidental Negros. In the petitory part of the complaint the court is asked to
declare that the defendant has lost the right to the period for payment allowed
in the mortgage, and it is further prayed that the defendant be required to pay
to the plaintiff the sum of P20,000, with interest, in order that the plaintiff
may free his property from the lien fixed upon it by the mortgage in favor of
Ledesma. Upon hearing the cause the trial court gave judgment in favor of the
plaintiff to recover the sum of P20,000 as capital of the loan, with interest at
12 per cent per annum from June 23, 1927, as well as for the sum of P2,400
which the plaintiff had paid to Ledesma as stipulated interest for one year on
the mortgage indebtedness, with interest on the last named sum from the date of
the judgment. From this judgment the defendant appealed.

With respect to the sum of P2,400 which the plaintiff paid to
Ledesma to cover the interest for one year upon the mortgage debt, the propriety
of the judgment in favor of the plaintiff is unquestionable. Though not
literally such, the plaintiff was substantially in the position of a surety for
the defendant, by reason of the mortgage upon the hacienda Cambaros; and a
debtor is bound to indemnify his surety for any outlay that the latter makes in
satisfying the obligation of the debtor (art. 1838, Civil Code). Moreover, the
judgment for the amount mentioned was a proper remedy to extend to the plaintiff
under the prayer for general relief. It results that no error was committed by
the trial court in giving judgment for the item mentioned.

With respect to the item of P20,000, with interest, for which
the court gave judgment in favor of the plaintiff, the case is different. As
regards this part of the judgment, the cause of action rests on article 1843 of
the Civil Code which recognizes the right of the surety, in case of the
insolvency of the debtor, to proceed against the principal debtor even before
the surety has paid off the debt. But in giving judgment for this item the court
apparently overlooked the fact that, in the closing paragraph of the article
cited, the precise relief to which a surety may be entitled before paying the
principal debt is defined; and the giving of a money judgment in favor of the
surety for the amount of the debt is not among the remedies there enumerated.

The relief to which a surety is entitled, according to the
paragraph referred to, is to obtain his release from the contract of suretyship
or to obtain security to protect himself against any proceedings on the part of
the creditor and against danger of insolvency of the debtor. Article 1843 of the
Civil Code was therefore infringed by the trial court in giving judgment in
favor of the plaintiff for the principal debt.

Furthermore, in the case before us, the plaintiff has
voluntarily disabled himself from seeking security from the defendant as
contemplated in the last paragraph of the article mentioned; for we find that in
Exhibit 8, denominated memorandum, and executed by Perez in favor of Barcia, the
plaintiff expressly agreed that, in view of the fact that Barcia could not give
security for any amount which he might obtain by mortgaging the hacienda
Cambaros, Perez would not require security or bond, and the plaintiff expressly
renounced all security in his favor for the payment of the debt. It results that
inasmuch as Perez thus disabled himself from obtaining the precise remedy which
the law would have given, under the last paragraph of article 1843, Civil Code,
no remedy at all can be extended to him under said article. In other words, the
plaintiff will have no right of action to recover the debt from the defendant
until the debt has actually been paid by the plaintiff.

Another point which is discussed in the briefs is this, namely,
whether the plaintiff had a cause of action prior to the due date of the
mortgage, the action having been begun full two months before the end of the
period conceded to the debtor in the mortgage. Upon this it is insisted for the
defendant that the action was prematurely brought; while the plaintiff contends
that he had a present right of action when the suit was begun, both under
article 1129 of the Civil Code and under the clause of the mortgage accelerating
the maturity of the debt upon failure of the debtor to comply with any of his
obligations. Into this question it is not necessary to enter, in the view which
we have taken of the feature of the case last above discussed.

From what has been said it follows that the appealed decision
must be reversed in so far as it gives judgment in favor of the plaintiff to
recover of the defendant the sum of P20,000, with interest at 12 per centum per
annum from June 23, 1927; and with respect to said item the defendant is
absolved from the complaint, but without prejudice to the plaintiff. In respect
to the sum of P2,400, with lawful interest from the date of the judgment in the
court below, the judgment is affirmed. So ordered, without costs.

Johnson, Malcolm, Ostrand, Romualdez, and Villa-Real, JJ.,
concur.