ASUNCION PEREZ VDA. DE DE LA VIÑA, MANUEL, ALEJANDRINO, PILAR, CESAR, EDUARDO AND JAYME, ALL SURNAMED DE LA VINA, PLAINTIFFS AND APPELLANTS, VS. SIMON BUENAVENTURA, DEFENDANT AN…

On September 27, 1938, defendant Simon Buenaventura obtained from the late Delfin de la Vina, immediate legal predecessor of the plaintiffs herein, a loan of P4,500 payable on or before March 31, 1939.  In security for this obligation, defendant constituted, with the consent of the mortgagees, a second mortgage on his three lots Nos. 591, 592 and 838 of the cadastral survey of Pilar, Capiz.  As an additional guaranty, “__________ el deudor hipotecario __________ asigna al acreedor hipotecario novecientos (900) picos de azucar de exportación que se convierten de las cañas sembradas y cortadas en los tres lotes de terreno__________ correspondientes a la cosecha 1939-40.”  Defendant having failed to pay the obligation at its maturity, a complaint for the foreclosure of the mortgage was filed on April 3, 1939, and, in relief, plaintiffs prayed that the three lots and the 900 piculs of export centrifugal sugar be sold at public auction.  Defendant interposed a demurrer to this complaint on the ground of prematurity.  It is contended that the mortgage on the three lots and on 900 piculs of export centrifugal sugar is indivisible, and since the sale of said piculs of sugar cannot be ordered because they were not yet in existence when the action of foreclosure was instituted, the milling season not having then commenced, the action in its entirety is premature.  The trial court sustained the demurrer and plaintiffs appealed from the order of dismissal of the complaint.

We hold that the demurrer should have been overruled.  The foreclosure of the mortgage on the three lots and on the 900 piculs of export centrifugal sugar may be decreed at the same time although, after the rendition of the judgment of foreclosure, the mortgaged properties should be ordered sold at different times because a simultaneous sale is impossible.  Besides, there exists no legal obstacle in the sale of the 900 piculs of export centrifugal sugar although they were not actually in existence at the time of the order of sale.  A valid sale may be made of a thing which though not yet actually in existence is reasonably certain to come into existence as the natural increment or usual incident of something already in existence.  (Sibal vs. Valdez, 50 Phil., 512, 522, citing Mechem on Sales, secs. 200 and 763; 55 C. J., 63.)  In the present case, the 900 piculs of export sugar are reasonably certain to come into existence at a determinate time as the natural by-product of the sugar cane then actually in existence on the three lots in question.

Order is reversed and let this case be remanded to the court of origin for further proceedings.

Imperial, Diaz, Laurel, and Horrilleno, JJ., concur.
Avancena, C. J., did not  take part.
Order reversed.