065 central bank vs. ca

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Central Bank vs. CA

G.R. No. L-45710 October 3, 1985Topic: Mortgage

Ponente:MAKASIAR, CJ.:

Author: Charles Atienza

Notes:

FACTS:

1. Island Savings Bank (Bank) and private respondent, Sulpicio Tolentino (Tolentino) entered into acontract. The Bank will grant the loan application by Tolentino worth P80k and Tolentino in turnwill execute a mortgage over his real estate property covering 100 hectares of land. The loan is

repayable in semi-annual instalments for a period of 3 years, with 12% annual interest.

2. On May 22, 1965, the Bank made a partial release of the loan amounting to only P17k. The bankdeducted the amount of P3,459 as an advance payment for the interest of the P80k. This was,

however, refunded back to Mr. Tolentino because the Bank had no available funds to release the

remaining P63k of his loan. Tolentino signed a promissory note for P17k at 12% annual interest,

payable within 3 years from the date of execution of the contract at semi-annual instalments of

P3,459.00

3. On 13 Aug. 1965, the Monetary Board issued a resolution against the Bank because of its liquidityissues.Resolution No. 1049. It provides:

In view of the chronic reserve deficiencies of the Island Savings Bank against its deposit

liabilities, the Board, by unanimous vote, decided as follows:

1) To prohibit the bank from making new loans and investments [except investments in

government securities] excluding extensions or renewals of already approved loans, provided

that such extensions or renewals shall be subject to review by the Superintendent of Banks,

who may impose such limitations as may be necessary to insure correction of the bank's

deficiency as soon as possible;The resolution of the Monetary Board placed the Bank

into receivership and appointed Antonio Castro as the Banks Acting Preident to

handle the asset of the corporation during this period.

4. On 1 Aug. 1968 the Bank filed an application for the extra-judicial foreclosure of the real estatemortgage covering the 100-hectare land of Tolentino because of the non-payment of the promissory

note.

5. Tolentino, then, filed a petition with the CFI for injunction, specific performance or rescission anddamages with preliminary injunction, alleging that since Island Savings Bank failed to deliver the

P63k balance of the P80k loan, he is entitled to specific performance by ordering the Bank to deliver

the P63k with interest of 12% per annum from April 28, 1965, and if said balance cannot be

delivered, to rescind the real estate mortgage.

6. The CFI later dismissed the petition of Tolentino and the foreclosure proceedings continued. Uponappeal to the CA. It modified the CFI decision by affirming the dismissal of Sulpicio M. Tolentino's

petition for specific performance, but it ruled that Island Savings Bank can neither foreclose the realestate mortgage nor collect the P17k loan.

7. Hence, this petition to the SC.ISSUE:

1. Is Sulpicio M. Tolentino liable to pay the P17k debt covered by the promissory note?1. If Sulpicio M. Tolentino's liability to pay the P17k subsists, can his real estate mortgage be foreclosed to

satisfy said amount?

HELD:

1. YES.3. YES but not the entire 100 hectares. NOT THE ENTIRE 100 HECTARE.RATIO:1. The bank was deemed to have complied with its reciprocal obligation to furnish a P17k loan. The

promissory note gave rise to Tolentino's reciprocal obligation to pay the P17k loan when it falls due.


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Art. 1192 of the Civil Code provides that in case both parties have committed a breach of their

reciprocal obligations, the liability of the first infractor shall be equitably tempered by the courts.

The liability of the Bank for damages in not furnishing the entire loan is offset by the liability of

Tolentino for damages (penalties and surcharges) for not paying his overdue P17k debt. Since

Tolentino derived some benefit for his use of the P17k, he should account for the interest thereon

(interest was not included in the offsetting).2. The fact that when Tolentino executed his real estate mortgage, no consideration was then inexistence, as there was no debt yet because Island Savings Bank had not made any release on the loan,

does not make the real estate mortgage void for lack of consideration. It is not necessary that any

consideration should pass at the time of the execution of the contract of real mortgage. lt may either

be a prior or subsequent matter. But when the consideration is subsequent to the mortgage, the

mortgage can take effect only when the debt secured by it is created as a binding contract to pay.

And, when there is partial failure of consideration, the mortgage becomes unenforceable to the extent

of such failure. Where the indebtedness actually owing to the holder of the mortgage is less than the

sum named in the mortgage, the mortgage cannot be enforced for more than the actual sum due.

The rule of indivisibility of a real estate mortgage provided for by Art. 2089 of the Civil Code isinapplicable to the facts of this case. The rule of indivisibility of the mortgage as outlined by Art. 2089

above-quoted presupposes several heirs of the debtor or creditor which does not obtain in this case.

Hence, the rule of indivisibility of a mortgage cannot apply.

Since Island Savings Bank failed to furnish the P63k balance of the P8Ok loan, the real estate mortgage of

Sulpicio M. Tolentino became unenforceable to such extent. P63k is 78.75% of P80k, hence the real estate

mortgage covering 100 hectares is unenforceable to the extent of 78.75 hectares. The mortgage covering

the remainder of 21.25 hectares subsists as a security for the P17k debt. 21.25 hectares is more than

sufficient to secure a P17k debt.

DOCTRINE:

The rule of indivisibility of a real estate mortgage provided for by Article 2089 of the Civil Code is inapplicable to thefacts of this case.

Article 2089 provides:

A pledge or mortgage is indivisible even though the debt may be divided among the successors in interest of the debtor orcreditor.

Therefore, the debtor's heirs who has paid a part of the debt can not ask for the proportionate extinguishment of thepledge or mortgage as long as the debt is not completely satisfied.

Neither can the creditor's heir who have received his share of the debt return the pledge or cancel the mortgage, to theprejudice of other heirs who have not been paid.

The rule of indivisibility of the mortgage as outlined by Article 2089 above-quoted presupposes several heirs of the debt-or or creditor which does not obtain in this case.SEPARATE OPINION:


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065 central bank vs. ca

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