DIONISIO CONSTANTINO ET AL., PLAINTIFFS AND APPELLANTS, VS. THE PHILIPPINE NATIONAL BANK, DEFENDANT AND APPELLEE.

On October 26, 1928, the Panabutan Lumber
and Plantation Co., Inc., a domestic corporation, constituted a
mortgage on practically all of its personal property in favor of the
Philippine National Bank to secure an indebtedness amounting to
P120,000. Inasmuch as the mortgagor failed to pay the obligation in
question, the mortgagee directed the sheriff to make an extrajudicial
sale of all the mortgaged property. Torrejon, Jurika & Co., Inc.,
et al. instituted in the Court of First Instance of Zamboanga civil
case No. 1683 against the Panabutan Lumber & Plantation Co., Inc.,
and obtained a preliminary injunction in that case. In view of said
writ, the sheriff suspended the extrajudicial sale. Later, however,
while the aforesaid case was still pending, the parties agreed to the
extrajudicial sale and the sheriff sold the said property to the
Philippine National Bank for the sum of P31,000. On February 19, 1931,
judgment was rendered in the aforesaid civil case No. 1683, declaring
the chattel mortgage valid. The attorney for the Philippine National
Bank notified the latter of the said judgment and the bank, believing
that the judgment in question was already final and executory, sold all
the mortgaged property it had acquired to Antonio de la Riva for the
sum of P20,000. It appears, however, that before the aforesaid judgment
became final, the attorney for the Philippine National Bank entered
into a stipulation, without the latter’s knowledge and consent, to have
the judgment modified in the sense that certain personal properties,
which appeared not to belong to the Panabutan Lumber & Plantation
Co., Inc., be excluded from the said judgment, the mortgage and sale
made by the sheriff. Said properties are described in paragraph 4 of
the complaint. Consequently, the sale by the Philippine National Bank
to De la Riva of the chattels, which were later excluded, was null and
void.

On the other hand the herein plaintiffs instituted in the said
Court of First Instance civil case No. 1681 against the Panabutan
Lumber & Plantation Co., Inc., and obtained judgment against it in
the sum of P30,495.91. In executing the said judgment, the sheriff
attached the same property which was mortgaged to the Philippine
National Bank and which the latter had sold to Antonio de la Riva. For
this reason, Antonio de la Riva filed a third party claim of ownership.
The sheriff notified the attorney for the plaintiffs of such third
party claim and required the said plaintiffs to file a bond in the sum
of P132,000, if they wanted him to proceed with the attachment and the
sale of the property. The said plaintiffs, however, failed to file
the-bond whereupon the sheriff lifted the attachment.

In view of the circumstances the plaintiffs filed the suit, which
gave rise to this appeal, alleging as a cause of action that their
failure to execute the judgment obtained by them was due to the sale
made by the Philippine National Bank to Antonio de la Riva of the
excluded chattels. By way of relief they prayed that the Philippine
National Bank be ordered to pay the full amount of the judgment
obtained by them. The plaintiffs appealed from the judgment of the
court dismissing their complaint, without costs.

The appellants assign the following alleged errors as committed by the trial court, to wit:

“I. The lower court erred in not declaring null and
void the sale by the defendant Philippine National Bank to Antonio de
la Riva of the property described in paragraph IV of the plaintiffs’
complaint.

“II. The lower court erred in holding that the
plaintiffs had no cause of action against the defendant Philippine
National Bank.

“III. The lower court erred in not condemning
the defendant Philippine National Bank to pay the plaintiffs the sum of
P30,495.91 with legal interest thereon from December 27, 1929, and
damages equivalent to the said sum, with costs.

“IV. The lower court erred in denying the plaintiffs-appellants’ motion for a new trial.”

The trial court did not expressly declare null and void the sale made
by the Philippine National Bank to Antonio de la Riva of the chattels
excluded from the mortgage and judgment because it decided the case
upon the theory that the plaintiffs had no cause of action against the
defendant. On this point the trial court committed no error. Under the
law the plaintiffs had a more adequate and speedy remedy which
consisted in filing the bond required of them by the sheriff and
proceeding with the sale of the attached property until the amount of
the judgment obtained by them was satisfied by the proceeds thereof.
However, they renounced such remedy and therefore they are not now
entitled to ask for a positive relief against the Philippine National
Bank. Even granting that the sale of the excluded chattels by the
Philippine National Bank to De la Riva was null and void, the
plaintiffs’ action should be brought against the purchaser because it
is he who is in possession of the chattels against which the judgment
for a certain sum of money obtained by them is sought to be satisfied.

Wherefore, the appealed judgment, being in accordance with the law,
is hereby affirmed, without special pronouncement as to the costs of
this instance. So ordered.

Malcolm, Villa-Real, Hull, and Goddard, JJ., concur.