El Hogar v. Paredes
El Hogar v. Paredes
Antonio Sanz and Fisher, DeWitt, Perkins and Brandy for petitioner.
The respondent in his own behalf.
Hilado and Hilado and Thos. L. Hartigan as amici curiae.
STREET, J.:
The question thus presente is one that, so far as we are aware, has
not heretofore been considered by this court, in connection with a
mortgage of real property; but it is clear that the power to which
criticism is directed is entirely valid. This doctrine is supported not
only by the Spanish jurisprudence but also by the pratically
unanimous voice of the courts of Great Britain and the United
States. In resolution adopted in 1901 for the information and
guidance of register in Spain, we find a declaration to the following
effect:
So far as appears from our reported decisions this court has never
had occasion to consider the validity of the power of sale in relation
with mortgage of real property, but the court has not hesitated to
sustain the same power when incorporated in a contract of pledge.
This point was clearly involved in Peterson vs. Azada (8 Phil., 432),
where certain jewelry had been pledged, with a stipulation to the
effect that in case of non-payment of the debt the pledge could sell
the jewelry at the best price obtainable in the market and apply the
proceeds to the payment, or in part payment, of the debt. The
contingency thus contemplated occurred, and enough was not
realized at the sale to satisfy the entire debt. The creditor,
therefore, brought an action to recover the balance due on the note,
and the action was sustained. In discussing the power conferred
upon the pledgee in that case, the court observed: "The will of
conditions stipulated with regard to the jewelry in this case are not
in contravention of law, of morals, or of public order." (Peterson vs.
Azada, 8 Phil., 432, 437.) chanrobles virtual law library
Our attention has been called to section 185 of the Corporation Law
(Act No. 1459) wherein it is declared that when a borrowing
stockholder of a building and loan association shall be three months
in arrears in the payment of his dues or stock or the interest or
premium or installments of premium on any loan, the whole loan, at
the option of the board of directors, shall be due and payable and
the board may proceed by action to enforce collection upon the
securities held by the corporation. From the circumstance that the
board of directors is authorized to proceed by action to enforce the
collection of any of the obligations mentioned, it is argued that the
remedy by action was intended to be exclusive, and that any special
stipulation conferring a power of extrajudicial sale must be contrary
to the policy of the law and therefore void. It is our opinion,
however, that the statutory remedy by action conferred in the
section cited is not exclusive; and the provisions referred to
constitutes no impediment to the making of an express stipulation
of the character of that now under consideration. chanroblesvirtualawlibrary chanrobles virtual law library
The demurrer of Doña Aniceta Ardosa is overruled and the answer
of Geronimo Paredes which, as already stated, is in the nature of a
demurrer, is declared insufficient and likewise overruled; and
judgment will be entered for the issuance of the writ as prayed,
requiring the respondent Geronimo Paredes, as register of deeds of
the Province of Occidental Negros, to register the document, Exhibit
B, in the manner prescribed by law, unless within five days after
notification of this resolution the respondents shall interpose a
sufficient answer to the petition.
chanroblesvirtualawlibrary chanrobles virtual law library
So ordered, without special pronouncement as to costs. chanroblesvirtualawlibrary chanrobles virtual law library