Paz E. Sguiong, plaintiff-Appellee vs. Go Tecson et al., defendants- appellants, G.R. Nos. L-3430-3431, May 23, 1951

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Title: Paz E. Sguiong, plaintiff-Appellee vs. Go Tecson et al., defendants- appellants, G.R. Nos. L-3430-3431, May 23, 1951
extracted text: in a manner of speaking, won the first and very important round of the contest which Judge Ramos' order set at naught. It is said, with good reason, apropos of this feature of the case that tire respondent Judge was wrong in saying that the application had not been published. Lucila. Ornedo's counsel points out that the r~uired publication was made in La Nueva Era~ a newspaper of general circulation in the province of Marinduque, before the first trial, and that copies of t.he periodical carrying the notice plus supporting testimonial evidence were introduced at tha.t trial held by Judge Melendres. Lucila Ornedo's counsel also calls attention, with support of precedents and authorities, to the fact that with the consent or acquiescence of the parties concerned, title to property involved in a. testate or intestate proceeding may be litigated and adjuClged by the proba.te court. Lucila Ornedo ti.id not do so but she could also cite the fact that the movants' motions for reconsideration of Judge Enriqucz's order did not impugn the sufficiency ot the publication, nor did they attack the court's jurisdiction to give judgment on the conflicting claims of o~ership between the parties. Even so, certiorari does not lie. Relief must be sought by other mode of procedure. The error, if error was committed by Judge Ramos, was one of omission and not commission. To set aside Judge Enriquez's order was within Judge Ra.mos' jurisrliction, in much the same manne:- and to the same extent that Judge Enriquez, if he had not been replaced, would have authority to change, modify or reverse his decision or order. · Judge Ramos' order amounts &imply to a refusal, notwith .. i:;tanding the parties' 3.gTecmcnt, to determine the validity of the alleged donation executed by the now deceased Ornedo in favor of his dau~hter, partly because, according to the Judge, the ap. plication for letters of administration had not been publisht:d, and principally because, in his judgment, this ma.tter should be tried in a separate, ordinary action. In the last analysis, the petitioner's contentiun could only be that in the present state of the proceedings in the court below Judge Ramos should decide' the motions for reconsideration and affirm Jud"ge Enriquez'a order without requiring· a new publication of1 the application for let.. ters of administration. By its nature, certiorari is predicated on a positive O!' affirmative action that is injurious to the interests of the complain·ant. It is net a remedy for a lower court's inaction, irrespective c.f the reasons gi vcn therefor, Upon the foregoing considerations, the petition for certiorari is dismissed without special finding as to costs. Momn, Feria, Pa/:llo, Bt:'ll9:.:in, Padillo, Montemayor, Reyes, Jugo, and Bautista Angelo, concur. Mr. Justice P<lras voted for di:>mii<:sal. IX Paz ~; ji.qui'on9, Plaintiff.Appellee vs. Go Tecson et al., Defendant. Appet 7its, G. R. Noi;. L.3430. 3431, May 23, 1951. 1. DESCENT & DISTRIBUTION; MORTGAGES; ONLY ACTUAL FILING OF CLAIM IN INTESTATE OR PROCEEDINGS CAN CONSTITUTE WAIVER OF MORTGAGE LIEN. - In order that a mortgage creditor may be said to have waived his mortgage lien again:>t an estate, he must appe<!.r to have formally filed his 'claim in the tRstate or intestate proceeding. The fact that the administrator has merely made an overture to pay the mortgage debt and the mortgagees Cor one of them> have sig~ nified willingness to accept. payment., is not sufficient to constitute a waiver of th~ mortgage lien, where there is nothing to show that the offer of payment has bt>cn preceded by the formal filing of a claim. Without t hat formality, the mortgagees cannot be deemed to have waived their mortgage so as to be estopped from bringing a foreclosure suit. 2.PLEADING & PRACTICE; ANSWER; MATTER NOT SET UP AS DEFENSE IN ANSWER OR MOTION TO DISMISS CAN NOT BE RELIED UPON AS A GROUND ON APPEAL. - The validity or t.he constitutionality of Republic Act 342 c2.11nvt be mo.de an issue on appeal, where moratorium has not been invoked as a defense Or as a ground for a motion to dismiss. Bienvenfr[u A. Tan, Jr. for appellant. J . Perez Cardenas for appellees. D -ECI SION REYES, J.: On October 1, 1927, Paulino P. Gocheco mortgaged to Paz E. Siguion a piece 'Jf registered real property in the City of Manila to secu1·e a debt of 1"30,000.00. Some ten years later, he constituted a second mortgage on t he sa.me p:·operty in fiwor of Paz E. Sigt1ion's son, Alberto Maximo Torres, to secure a debt of !'20,000. Both mortgag,~s were duly registered. Gocheco died in 1943 without having discharged either mortgage. The following year, proceedings for the settlement of his estate were instituted in the Court of First Instance of Manila, and Go Tecson was appointed judicial administrator. On Februa.ry 3, 1949, the present actions were filed against the administrator Go Tecson for the foreclosure of the two n1orl:gages, and judgment having been rendered against him in both, he has elevated t.hc cas"es here by way of appeal, contending that the lower court erred in not holding (1) that he could no longer be sued a~ administrator because the 2..dministration proceedings had ail'eady been dosed; ~2> th:it the matte1· in controversy was already re~ jttdicata; l3) that plaintiffs' claim had already been paid; and <4> that Republic Act No. 342 was unconstitutional and void. The first error assigned deserves no serious consideraticn, it appearing from the certificate of 1.hc Clerk of the Court of First Instance c.f Manila CExh. " B") tha.t the order for the diEtr1bution of the ei;t-ate among the heirs has not as yet been complied with. In fact, counsel for appellant admits in his brief that, technically speaking, the administration proceedings arc still pending. As to the second assignment of error, the record does not disclose facts sufficient to support th~ claim of res judicata. The record of the administration proceedings, if already r econstituted, has not been presented, and nowhere rioes it appear that a claim for the mortgage indebteduess was formally filed in the administration proceedings and that it wa2 there litigated and judicially determined. There is, for sure an alleged order read at the hearing, which says: ORDER "A written constancia having been forwardP.d to this Court by registered mail b)' Paz E. Siguion, whe1·ein she ma.de known her willingness to accept the payment for the mortgage obliga.. tion contracted by the d1..-ceased, Paulino P. Gochocho within ten (10) days after receipt of the written notice from the administrator r.ignifying his intention to pay, the Court hereby advises t he herein administrator to ta.kc the necessary steps to make payment to said P&z E. Siguion. S'l ordered. "Manila, Philippines September 7, l!J44 "<SGD.> ROMAN A. CRUZ Judge' This order conveys the information that the administrator has made an overture to pay the mortgage debt and the mortgagees Cor one o( them) have signified willingness to accept l>ayment. But there is nothing in the order to show that the offer of payment has been preceded by the formal filing of a claim, Without that formality, the mortgagees cannot be deemed to ha.ve waived their mortgage so as to be estopped from bringing a foreclosure suit. "In order that the mortgage creditor may be said to have waived hi;; mortgage lien, he must appear to have filed formally his claim in the test.etc or intestate proceeding. The fact that he requested the committee on claims <now abolished) to take the necessary measures to have h0 is claim p;1id at its ma.. turity, does not imply that he has presented such claim as to be estopped from foreclosing his mortgage. S0:, also, the mere fa.ct of bringing his credit to thC attention of the committee on claim for the purpose of having it included among the debts and taken into account in case the estate should be 136 THE LAWYERS JOURNAL March 31, 1954 sold, but with a statement at the same time that sai<l clain1 is secured by a mortgage duly registered, is not equivalent to filing the claim and does not, therefore, constitute a w!liver of said mortgage." (II Moran, Comments· on the Rules of Court 3rd ed. p. 406>. The p ayment alleged in the third assignment of error is not evidenced by any receipt, and there is nothing to suppo1-t it ex cept the bare declaration of the administrator's former attoi-ney, J udge Bienvenido Tan, to the effect that, threatened with con kmpt proceedings for refusing ro receive. p ayment, the a!)pellee l'az E. Siguion came to see him in his office and accep ted the payment tendered by him. But the testimony is denied by this ap pellee, and we note that J udge Tan has merely inferred from what she told him on that occasion that she was then accep ting sel p robably mea.nt to challenge the constitutionality of Repub. lic Act No. 342. But the petition to amend was withdrawn when it encountered determined opp osition from the adverse p arty, and in any event the validity of that Act cannot be made an issue since moratorium has not been invoked as a. defense or as a ground for a motion to dismiss. In view of the foregoing, and without p assing on the con stitutionality of Republic Act No. 342 because it is not a necess.ary issue in the cnse, the decision appealed from fa nffirm<!d, with costs against the- ap pellant. Paras, Fe•ria, Bengzon, Padilla T1taso11� .Montemayor, Jugo and Angeln. - JJ, CO»CUT Pablo, J., t.:iok no p art. the money tendered by him in p ayment for the debt, an inference not warranted by app ellee's actual words, as may be seen from following testimony of J udge Tan: "Q Meaning to say that you personally p aid her the money? , . . ' "A After the JT.loti.on < to cite for con�empt>. was present S �� ui ::e; e ;: ��·e :�ti�� ic :hc an ;0 : 1 :::� p;:s : ::d t1;or N T W D. - me to ask the court that she be declared in contempt since she was willing to accept payment. -And I told �:; :::y if in sh ;Y w o��ic;_1 lli ? t!°k ��: ep ;10�:�f::� 1 a h .:� yang' 1md delivered it to her but she said: 'Well, I am sorry I ca.nnot carry this bag of money with rnc be - cause it is very dangerous and besides I am going to the �i; o � n ::j1 ;;;; u it�� u ��:� e i: e :h!! � et m i ;ar:'t��a� ff ��: ::= cepted the p ayment. "Q And, the money, J udge Tan, remained with you ? "A Yes, it remained with me. "Q Until when? "A Until now. It is still in the office." Far from exp ,ressing actual acep tance of p ayment and con Eequent significt.tion �f intenti�n to have the money k'E!pt for her by J udge Tan as her dep ositary desp ite the fact that he was attorney for the adverse p arty, appellee's words should rat.her be construed as a refusal on her part to receive p ayment, an inter p retation which would be consistept with her previous attitude in repeatedly declining to receive p ayment, as denounced in J udge Tan's motion for contemp t, and also in consonance with What may be expected to be the natural reaction of any creditor to a tender of payment in the dep reciated currency of those days <October, 1944). Indeed, had the money really been accepted, con sidering the amount involved, a receipt would surely have been required for the same; and not only a receipt, but also a release or discharge of mortgage. No such document, however, has been signed by Paz E. Siguion, it does not even appear that the money ,•:as counted. In the circumstances, we have no hesitation in holding that the lower court did not err in not finding that the mortgage debt has already been p aid. As to the fourth and last assignment of error, the record does not show that app ella.nt has in a definite and suitable manner in voked moratorium in the court below. That defense was neither plea'Cled in the answer nor made a ground for a motion to dismiss. On the other hand, the answer admits the allegation of the com plaint that the moratorium on prewar debts has already been lifted by Republic Act No. 342 subject to the exception or con dition therein sp ecified in favor of debtors who have filed their claim with the· War Damage Commission, to which class the estate represented by appellant does not belong since it has not filed any war damage da.im. All this reveals lack of ir.tention to resort to the defense of moratorium, especialy when consider. ed in connection with the allegation in the answer that desp ite defendant's repeated attemp ts to p ay the debt, plaintiffs have 1·efused to accept p ayment. It is true that at the conclusion of the trial ap pellant's counsel in open court asked for leave to amend his answer "so as to allege therein," to use his own lan. guage, "that the moratorium is unconstitutional." By this counMarch 31, 1954 THE LA WYERS JOURNAL 137
Date: 1954
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