G.R. No.
L-49101, October 24, 1983
RAOUL S.V. BONNEVIE and HONESTO V. BONNEVIE, petitioners,
vs.
THE HONORABLE COURT OF APPEALS and THE PHILIPPINE BANK OF COMMERCE, respondents.
GUERRERO, J:
FACTS:
December 6, 1966 – Sps. Jose M. Lozano and Josefa P. Lozano executed a Deed of Mortgage in favor
of private respondent Philippine Bank of Commerce over their land to secure the payment of the
loan amounting to ₱75,000.00 which they were about to obtain from respondent bank.
December 8, 1966 – A Deed of Sale with mortgage was executed in favor of petitioner Honesto
Bonnevie for and in consideration of the sum of ₱100k; ₱25k of which is payable to the Lozano
spouses upon the execution of the document, ₱75k being payable to the bank.
Dec. 12, 1966 – It was only then when Sps. Lozano received the ₱75k loan; executed a promissory
note (together with co-maker Alfonso Lim)
September 4, 1968 – respondent extra-judicially foreclosed; Sold for ₱84,387.00 – bank as the
highest bidder.
January 26, 1971 – Petitioner Honesto Bonnevie filed with the CFI-Rizal for the annulment of the
Deed of mortgage and its foreclosure alleging that:
(a) The Deed of Mortgage lacks consideration – no principal obligation to secure (because ₱75k
was only received on Dec. 12, 1966) and
(b) The mortgage was executed by one who was not the owner of the mortgaged property.
It further alleged that the property in question was foreclosed pursuant to Act No. 3135 as
amended, without, however, complying with the condition imposed for a valid foreclosure.
Granting the validity of the mortgage and the extrajudicial foreclosure, it finally alleged that
respondent Bank should have accepted petitioner's offer to redeem the property under the
principle of equity said justice.
After Honesto rested its case, petitioner Roaul intervened
CFI: In favor of respondent bank; dismissed the complaint;
CA: Affirmed; hence, this petition.
ISSUES:
1. WON the real estate mortgage executed by sps. Lozano was valid.
2. WON the extrajudicial foreclosure was valid.
3. WON petitioner had the right to redeem the foreclosed property.
4. WON the refusal of the offer to purchase was justified.
HELD:
1. YES.
A contract of loan being a consensual contract, it was perfected at the same time the contract
of mortgage was executed. The promissory note executed on December 12, 1966 is only an evidence of
indebtedness and does not indicate lack of consideration of the mortgage at the time of its
execution.The mortgage deed was executed for and on condition of the loan granted to the Lozano
spouses. Hence, Sps. Lozano’s late receipt of the amount is immaterial.
As to the subsequent renewals of the original loan:
Provision 2 of the contract of mortgage: (1) prohibits the sale, disposition of, mortgage and
encumbrance of the mortgaged properties, without the written consent of the mortgagee; (2) if in spite
of said stipulation, the mortgaged property is sold, the vendee shall assume the mortgage in the terms
and conditions under which it is constituted.
These provisions are expressly made part and parcel of the Deed of Sale with Assumption of Mortgage.
In the case at bar:
Petitioners did not secure the consent of respondent Bank to the sale with assumption of mortgage.
The sale/assignment was not registered so that the title remained in the name of the Lozano
spouses, insofar as respondent Bank was concerned, the Lozano spouses could rightfully and validly
mortgage the property.
Respondent Bank had every right to rely on the certificate of title. It was not bound to go behind the
same to look for flaws in the mortgagor's title, the doctrine of innocent purchaser for value being
applicable to an innocent mortgagee for value.
A mortgage follows the property whoever the possessor may be and subjects the fulfillment of the
obligation for whose security it was constituted.
Petitioners voluntarily assumed the mortgage when they entered into the Deed of Sale with
Assumption of Mortgage. Hence, estopped from impugning its validity whether on the original loan
or renewals thereof.
2. YES.
The lack of notice of the foreclosure sale on petitioners is untenable. Respondent Bank not being a
party to the Deed of Sale with Assumption of Mortgage, it can validly claim that it was not aware of
the same and hence, it may not be obliged to notify petitioners.
Petitioner Honesto was not entitled to any notice because as of May 14, 1968, he had transferred
and assigned all his rights and interests over the property in favor of intervenor Raoul Bonnevie
and respondent Bank not likewise informed of the same. For the same reason, Raoul Bonnevie is
not entitled to notice.
Act No. 3135 does not require personal notice on the mortgagor. Instead:
Sec. 3. Notice shall be given by posting notices of the sale for not less than twenty days in at
least 3 public places of the municipality or city where the property is situated, and if such
property is worth more than four hundred pesos, such notice shall also be published once a
week for at least three consecutive weeks in a newspaper of general circulation in the
municipality or city.
In the case at bar:
Notice of sale – published in the Luzon Courier on June 30, July 7 and July 14, 1968
Posted for not less than twenty days in at least 3 public places in the Municipality where the
property is located. Petitioners were thus placed on constructive notice.
3. NO.
No consent having been secured from respondent Bank to the sale with assumption of mortgage by
petitioners, the latter were not validly substituted as debtors. In fact, their rights were never
recorded and hence, respondent Bank is charged with the obligation to recognize the right of
redemption only of the Lozano spouses.
But even granting that as purchaser or assignee of the property, as the case may be, the petitioners
had acquired a right to redeem the property, petitioners failed to exercise said right within the
period granted by law. Thru certificate of sale in favor of appellee was registered on September 2,
1968 and the one year redemption period expired on September 3, 1969. It was not until September
29, 1969 that petitioner Honesto Bonnevie first wrote respondent and offered to redeem the
property. Moreover, on September 29, 1969, Honesto had at that time already transferred his rights
to intervenor Raoul Bonnevie.
